author: Johnson, Chief Judge.

text:
    A00A1517.
    VAN DORAN v. THE STATE.
    (536 SE2d 163)
   Johnson, Chief Judge.

Richard Van Doran was convicted of aggravated assault for stabbing and cutting Terry Crawford with a knife and of possessing a knife during the commission of that aggravated assault. He appeals, arguing, that the trial court erred in not instructing the jury that reckless conduct and simple battery are lesser included offenses of the aggravated assault charge. The argument is without merit.

“Absent a written request for a charge on a lesser included offense, made at or before the close of the evidence, the failure to so charge is not error.” Van Doran admits in his appellate brief that he made no request, written or otherwise, for a charge on reckless conduct as a lesser included offense of aggravated assault. Absent such a written request, the trial court did not err in failing to charge the jury on reckless conduct.

Decided June 13, 2000.

Richard L. Moore, Kathryn E. Cozzo, for appellant.

Van Doran did, however, file a written request for a charge on simple battery and orally asked the court to charge the jury on battery as a lesser included offense of aggravated assault. But the court found that such a jury charge was not supported by the evidence. We agree with the trial court’s finding.

“[W]here the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” In the instant case, the evidence established all the elements of aggravated assault with a knife. The state proved that Van Doran and Crawford got into a verbal and physical fight, that Crawford was unarmed, that Van Doran pulled a knife from his pants pocket, and that Van Doran then repeatedly stabbed and cut Crawford. Van Doran did not deny that he cut the unarmed Crawford with the knife but testified that he could not remember using the knife and that he had simply tried to defend himself after Crawford initiated the altercation.

The evidence thus did not raise the issue of simple battery. Rather, the evidence showed either that Van Doran committed the aggravated assault with the knife or that he did not commit the crime because his use of the knife was justified. “Where the evidence shows either the completed offense as charged or no offense, such evidence will not support a verdict for one of the lesser grades of the offense.” Because there was no evidence raising simple battery as a lesser included offense of the aggravated assault, the trial court did not err in refusing to give such a lesser offense jury charge. We therefore find no basis for reversing Van Doran’s convictions.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

T Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

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

       See Gagnon v. State, 240 Ga. App. 754, 757 (3) (525 SE2d 127) (1999).

       (Citation, punctuation and emphasis omitted.) Huckeba v. State, 217 Ga. App. 472, 475 (3) (458 SE2d 131) (1995).

       See OCGA § 16-5-21 (a) (2) (a person commits an aggravated assault when he assaults with a deadly weapon or with any object which, when used offensively against a person, is likely to or actually does result in serious bodily injury).

       (Citations and punctuation omitted.) Jones v. State, 204 Ga. App. 279-280 (419 SE2d 542) (1992).

       See Givens v. State, 199 Ga. App. 845 (1) (406 SE2d 272) (1991).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0694.
    In the Interest of H. L. W., a child.
    (535 SE2d 834)
   Phipps, Judge.

H. L. W.’s biological father appeals the dismissal as untimely of his appeal of the termination of his parental rights. On August 16, 1999, the Juvenile Court of Henry County entered an order terminating the rights of H. L. W.’s biological parents and awarding temporary custody to the couple who had been caring for the child. On August 20, 1999, “NUNC PRO TUNC to August 16, 1999,” on the motion of the custodial couple, the court entered a second order to change several dates, a monetary amount, and other facts found in the first order. On September 20, 1999, the father filed a notice of appeal. The custodial couple filed a motion to dismiss the appeal as untimely because it was not filed within 30 days of the August 16, 1999 order. The motion was granted.

The question here is whether the notice of appeal filed 30 days after the “nunc pro tunc” order was timely. We find that it was timely because the “nunc pro tunc” order did more than correct mere “clerical errors” or record some previously unrecorded action and was, therefore, an improper use of a nunc pro tunc entry.

“A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . ,” “The proper and timely filing of a notice of appeal is an absolute requirement.” The failure to do so requires dismissal unless an extension of time has been granted by the trial court or appellate court to which the appeal is to be taken. “A nunc pro tunc entry does not extend the statutory period for filing a notice of appeal. [Cit.]”

But “[t]he purpose of a [nunc pro tunc entry] is to record some previously unrecorded action actually taken or judgment actually rendered. [Cit.] It may not be used to supply an order not yet made by the court.” A “ ‘[njunc pro tunc’ entry is an entry made now of something actually previously done to have effect of former date; office being not to supply omitted action, but to supply omission in [the] record of action really had but omitted through inadvertence or mistake.” The general rule is that nunc pro tunc entries are proper to correct clerical errors but not judicial errors.

A clerical error involves an error or mistake made by a clerk or other judicial or ministerial officer in writing or keeping records; it does not include an error made by the court itself. To be clerical in nature it must [be] one which is not the result of judicial reasoning or determination.

The original order contained a variety of errors — eight in the findings of fact and one in the conclusions of law. In the findings of fact, six dates, a monetary amount and a factual statement were wrong. The conclusions of law also contained an incorrect factual statement. The nunc pro tunc order changed the factual findings to include findings not made in the original order.

In addition to the several dates and the monetary amount, the factual findings in the order were changed as follows:

Original

From March 16, 1998 through the date of the filing of this action, [the mother] did not visit with the minor child on any occasion, nor did she contribute any money towards the support of the minor child.

Each parent made sporadic telephone calls to the [custodial couple], but neither parent made an effort to see the child.

Revised

From March 16, 1998 through the date of the filing of this action, [the mother] visited with the minor child only on two (2) brief occasions in April 1998 and June/July 1998. She did not contribute any money towards the support of the minor child.

Each parent made sporadic telephone calls to the [custodial couple], [the father] made no effort to see the child, and [the mother] made only sporadic attempts to visit with the child.

This was not a case of recording that which had been decreed but not recorded or correctly recording that which had been decreed but misrecorded. Here, the trial court made neither a ruling nor findings at the conclusion of the termination hearing. Instead, the court told the several parties that they had ten days to present proposed orders if they wished and that custody would remain with the custodial couple until the termination issue was decided. Twenty-four days later on August 16, 1999, the court apparently adopted a proposed order submitted by the custodial couple, and upon a motion from them, on August 20, 1999, adopted their revised version of the order.

Decided June 14, 2000.

Richard D. C. Schrade, Jr., for appellant.

Bach, Carver & Dewherry, Tara G. McNaull, for appellee.

The changes made to the original order by the nunc pro tunc order went beyond correcting mere clerical errors or recording that which was previously unrecorded. The errors in the factual findings were judicial errors and not clerical errors, because they necessarily involved judicial reasoning or determination. The nunc pro tunc changes incorporated factual determinations that had not been made or expressed previously by the trial court.

Because of the nature of the corrections and changes to the' original order, including factual matters of judicial determination, we find that this was an improper use of a nunc pro tunc entry and that the effective date of the appealable order was the date of the revised order — August 20, 1999. The father’s notice of appeal was filed on the thirtieth day after August 20. It was timely.

For these reasons, we reverse the trial court’s dismissal of the father’s appeal.

Judgment reversed.

Johnson, C. J., and Mikell, J., concur.

        Coles v. State, 223 Ga. App. 491, 492 (2) (477 SE2d 897) (1996) (quoting OCGA § 5-6-38 (a)).

       (Citations and punctuation omitted.) Id.; Hester v. State, 242 Ga. 173, 175 (249 SE2d 547) (1978).

       See Associated Bldrs. Supply v. Ga-Pacific Corp., 123 Ga. App. 222 (180 SE2d 273) (1971); OCGA § 5-6-39 (extensions of time).

        Bowen v. Clayton County Hosp. Auth., 160 Ga. App. 809, 810 (288 SE2d 232) (1982).

        Moseley v. Interfinancial, 224 Ga. App. 80, 84 (5) (479 SE2d 427) (1996).

       Black’s Law Dictionary (5th ed.).

       46 AmJur2d, Judgments, §§ 165-167.

       Id. at § 167.

       See Clark v. Ingram, 150 Ga. App. 127, 129 (3) (257 SE2d 33) (1979) (clerical errors do not involve matters of substance).


text:
    A00A0080.
    McELROY v. THE STATE.
    (536 SE2d 188)
   Phipps, Judge.

Timothy McElroy appeals his conviction of aggravated assault. He asserts that the trial court erred in its response to a jury question and in its failure to grant him a new trial based upon ineffective assistance of counsel. We find that the trial court did not err in either respect and affirm McElroy’s conviction.

The charges against McElroy stemmed from his attack upon Debra McBride. McElroy and McBride were romantically involved, and he lived with McBride and her children. McBride told McElroy that she wanted him “to get out.” At about midnight on August 6, 1995, McElroy approached McBride in the front yard of her home, threw her to the ground, hit her in the face at least twice with a beer bottle, punched her in the face repeatedly and, according to McBride, stabbed her in the face with the beer bottle, which had broken after he first hit her with it.

A doctor at a local hospital emergency room testified that he treated McBride for superficial lacerations to her face, a more severe laceration to her arm and swelling around both eyes. He asked McBride to return to the hospital the next day for a CT scan. McBride testified that she was diagnosed with shattered bones in her face, that she underwent surgery to replace the damaged bones with plastic and that she lost most of the feeling in her face as a result of her injuries.

McElroy was indicted for aggravated assault, criminal trespass and battery. The State nolle prossed the criminal trespass charge. The court charged the jury on battery as a lesser included offense of aggravated assault and simple battery as a lesser included offense of battery. The jury convicted McElroy of aggravated assault and battery. The counts were merged by law, and the court sentenced McElroy on aggravated assault.

1. During its deliberations, the jury sent a note to the judge asking, “Can we convict of assault on account [sic] # 1 as opposed to aggravated assault?” The judge wrote “No” on the note and returned it to the jury.

McElroy argues that the judge’s response may have misled the jury to believe that it could not convict on any lesser included offense of aggravated assault, including battery. He asserts that the possibility of confusion was compounded by the lack of a special verdict form and that the court should have reread its original instructions to the jury regarding the possible verdicts which it might render.

(a) “As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. [Cit.]” “When the jury requests more instructions upon a particular phase of the case, the trial court is under a duty to instruct them in a plain, clear manner so as to enlighten rather than confuse them. [Cit.]” The court may respond to a jury’s question by repeating charges which are legally sufficient and not misleading. But it is not necessarily error for the court to respond with a direct answer. The critical issue is whether the charge taken as a whole presents the issues in a way not likely to confuse a jury of average intelligence.

Here, it does not appear that the judge’s response to the jury’s question was likely to lead to confusion when the response is considered in light of the charge as a whole. The court clearly instructed the jury that it could convict on battery as a lesser included offense of aggravated assault. Its response to the question could not logically be taken as an instruction that the jury not consider any lesser included offense as an alternative to conviction for aggravated assault; instead, it must be taken as a directive that the jury was authorized to consider only battery as a lesser included offense to aggravated assault.

(b) At trial, McElroy expressed no objection to the form of the verdict. Therefore, he waived his claim that a special verdict form should have been submitted to the jury. Additionally, McElroy has cited no precedent which would have required the trial court to submit a special verdict form. A special verdict form may have reminded the jury of its alternatives, but we do not find that in its absence the jury was likely confused.

2. To prove ineffectiveness of counsel, McElroy must show that “(1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cits.]” “[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Cit.]” “A reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order.”

(a) McElroy’s first claim of ineffectiveness is that after telling him that “there was no evidence against him,” his trial attorney later informed him that the State had offered him a sentence of eight years, to serve four years, and became upset with him when he declined the offer.

At a hearing on McElroy’s motion for new trial, his trial attorney testified that her initial impression of McElroy’s trial prospects was that a jury might acquit him of aggravated assault or convict him of a lesser offense because a beer bottle is not per se a deadly weapon. However, she also testified that she later formed the opinion that acceptance of the plea offer would be in McElroy’s best interests because if he were convicted of aggravated assault, the court might sentence him to the 20-year maximum, because of his criminal history and the severity of the injuries sustained by McBride. Counsel’s opinion in that regard proved prophetic, as McElroy was convicted and sentenced to 20 years, to serve 12 years.

Counsel had a duty to inform McElroy of the State’s plea offer. Her advice to him was sound. Moreover, McElroy can show no prejudice, because he did not accept the offer.

(b) McElroy next argues that his trial counsel was ineffective by failing to challenge the jury array and failing to make a Batson objection. He claims that his trial attorney stated in court that the jury was 86 percent white and 14 percent black.

At the motion for new trial hearing, McElroy’s trial attorney testified that the petit jury was composed of two blacks and ten whites. She further testified that the State did not exclude any African-Americans with its peremptory strikes.

To successfully challenge a jury array based on racial composition, purposeful discrimination must be shown. That burden is not carried “by evidence that a single jury panel contained a disproportionately small percentage of African-Americans compared to the population at large.” McElroy has presented no evidence of the racial composition of Houston County, where he was tried. But, assuming that his jury panel was underrepresentative of blacks, he has not established that his trial attorney could have challenged the jury array successfully. Moreover, McElroy has failed to point to any evidence that his lawyer should have made a Batson challenge.

(c) In his final claim of ineffectiveness, McElroy asserts that his trial counsel was generally “thrown off” by objections from the State. The only instance to which McElroy refers is an attempt by his lawyer to impeach a police officer with his report. McElroy does not include a citation to the trial transcript for this matter. And, at the hearing on his motion for new trial, he conceded that the transcript contains no objection from the State regarding defense counsel’s attempt to impeach with a police report. McElroy maintained that the objection was inexplicably absent from the transcript. On the other hand, his trial lawyer testified that she was able to use the report at trial to the extent she thought was best. With no evidence to contradict the attorney’s testimony, we find that McElroy has not carried his burden of showing that he was prejudiced by a failure of his trial counsel to respond adequately to objections posed by the State.

Decided June 20, 1999.

L. Elizabeth Lane, for appellant.

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

       McElroy did not request a jury instruction on simple assault as a lesser included offense of aggravated assault, and lie does not claim on appeal that the court should have responded to the jury’s question by instructing on simple assault as a lesser included offense.

       (Punctuation omitted.) Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999).

        Herrin v. State, 229 Ga. App. 260, 262 (2) (493 SE2d 634) (1997).

       Id.

       See Kimmel v. State, 261 Ga. 332, 334-335 (3) (404 SE2d 436) (1991).

       See Herrin, supra.

       See Wilkes v. State, 210 Ga. App. 898, 899 (2) (437 SE2d 837) (1993).

        Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991).

       Id.

       (Citations and punctuation omitted.) Ponder v. State, 201 Ga. App. 388-389 (1) (411 SE2d 119) (1991).

       See Larochelle v. State, 219 Ga. App. 792, 795 (3) (466 SE2d 672) (1996).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       See Jewell v. State, 261 Ga. 861, 862-863 (3) (413 SE2d 201) (1992).

        Pryor v. State, 231 Ga. App. 136, 137 (1) (497 SE2d 805) (1998).


author: Smith, Presiding Judge.

text:
    A00A0103.
    PLUNKETT v. THE STATE.
    (535 SE2d 852)
   Smith, Presiding Judge.

Deborah Plunkett appeals her conviction by a Forsyth County jury of first degree arson. Her sole enumeration of error is that the trial court erred when it refused to give her requested jury charge on third degree arson. We affirm because the evidence did not warrant the charge.

On July 19, 1998, Plunkett lived with her sister Athena Stevens in Stevens’s house in Cumming. Plunkett and Stevens had an argument, and Stevens left the house, leaving Plunkett alone in the residence. That evening, firefighters responded to a fire at the Stevens house. After arriving, the firefighters extinguished the fire and found Plunkett, unconscious, lying in an upstairs hallway. When she regained consciousness, she told a firefighter that she had set the house on fire, and when asked where she had set the fire, she responded that she had set it anywhere she could. At trial, Plunkett denied setting the fires but admitted taking 20 Xanax pills and drinking 12 beers that night.

The arson investigator found five individual fires. A fire was set in a “play/office” room, in the laundry room, in the living room fireplace, in a hallway, and on a plastic grill cover on the back porch. There was no indication that the. separate fires had migrated from one point to another. The arson investigator testified that each fire was deliberately set.

Decided June 20, 2000.

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

The trial court charged the jury on first degree arson, which includes damaging by fire the dwelling house of another. OCGA § 16-7-60 (a) (1). Defense counsel requested, but the trial court refused to give, a charge on third degree arson, which constitutes knowingly damaging by fire the personal property of another. OCGA § 16-7-62.

Plunkett contends that because there was at least slight evidence of intent to set fire only to personal property, a charge of arson in the third degree should have been given to the jury. See Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998); Koritta v. State, 263 Ga. 703, 704-705 (438 SE2d 68) (1994). The State maintains that the evidence did not support such a charge, and we agree.

Plunkett argues that three fires in the house could have been ignited accidentally by stray cigarette ashes and that the fire in the fireplace caused no damage. The fifth fire was set to the cover of a gas grill on the porch of the house and did not spread. Plunkett maintains that because the grill was personal property, a charge of arson in the third degree was warranted.

A jury charge may be given so long as the evidence is “enough to enable the trier of fact to carry on a legitimate process of reasoning. [Cit.]” Koritta, supra at 704-705. Plunkett asks us to consider a scenario in which she wandered around the house, accidentally setting three fires, innocently lighting a fire in the fireplace (in July), and then intentionally lighting the cover of the gas grill. This strains the process of deliberation beyond reason.

Furthermore, Plunkett’s defense was that she did not set the fires. The evidence produced at trial indicates that five fires were intentionally set, that at least three of the fires damaged a dwelling house, and that one of the fires may have damaged only personal property. Logically, Plunkett set either all the fires or none of them. There is no evidence to support a finding that Plunkett set only the grill on fire. It is not error for a trial court to refuse to charge a lesser included offense when the evidence does not reasonably raise the issue that defendant may be guilty only of the lesser crime. See Quick v. State, 139 Ga. App. 440, 443 (5) (228 SE2d 592) (1976). The evidence would not reasonably allow a finding that Plunkett was guilty only of third degree arson, and so she suffered no harm when the trial court refused to give the requested charge on that count.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

Philip C. Smith, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.


author: POPE, Presiding Judge.

text:
    A00A0126.
    HOFFMAN v. FLETCHER et al.
    (535 SE2d 849)
   POPE, Presiding Judge.

On November 14, 1997, Jennifer Hoffman signed an agreement to purchase a home from Wendy and Andrew Fletcher. ReMax Associates of Athens acted as dual agent in the transaction, with agent Susan Mosley representing the Fletchers and another ReMax agent representing Hoffman. Hoffman filed suit against the Fletchers, Mosley and ReMax after the septic tank for her newly acquired home overflowed.

In conjunction with the transaction, the Fletchers signed a “Seller’s Property Disclosure Statement.” The Fletchers checked a “yes” box on the statement indicating that they were “aware of past or present drainage or flooding problems” with the property. Their handwritten explanation of this response stated, “Oconee County Road Department is in the process of re-doing the drainage pipe in the neighborhood which happen [sic] to lie in our front yard. This is expected to be completed in October, so I am told.” On another portion of the form, however, the Fletchers indicated that they had no knowledge of “any past or present leaks, backups, or other similar problems relating to any of the plumbing, water and/or sewage related items.” The disclosure statement was incorporated into the parties’ purchase agreement. And as a part of that agreement, the Fletchers warranted that to the best of their knowledge and belief the information in the disclosure statement was “accurate and complete” as of the date of the contract.

The purchase agreement also provided that the Fletchers were to provide “a septic tank letter and information from [the] county that any sewer problem on [the] street has been satisfactorily taken care of.” Prior to closing, the Fletchers furnished Hoffman’s agent with a letter from the Oconee County Health Department certifying that a visual inspection gave no indication of any obvious existing problem. A handwritten note on the letter stated: “Several years ago, this system had some effluent coming to the top of the ground. This is now working properly since the subsurface drain located on the property line was uncovered and given an outlet through a new culvert installed under the road.” In addition, Hoffman hired her own home inspector, who found no problems relating to the drainage of the property or the septic tank.

The transaction closed on December 12, 1997, and within two months, sewage began seeping out of the septic tank on Hoffman’s property. On February 19, 1998, the Oconee County Health Department advised Hoffman in writing that the conditions at her home violated county health ordinances and ordered her to correct the situation within 30 days. Hoffman testified in her deposition that in a subsequent conversation, Wendy Fletcher acknowledged that they had had problems with the septic tank for years.

Hoffman’s complaint alleged claims for breach of warranty, fraud and intentional infliction of emotional pain. The trial court granted summary judgment to defendants on all claims, and Hoffman appeals. We affirm.

On appeal from a grant of summary judgment, this Court conducts a de novo review of the record, construing the evidence and all inferences therefrom in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998). To succeed on summary judgment, the moving party must demonstrate:

that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

1. Hoffman argues that the trial court erred in granting summary judgment to the Fletchers on the breach of warranty claim. She argues that evidence creates a jury issue as to whether the Fletchers breached the warranty in the purchase agreement that the seller’s disclosure statement was accurate and complete.

The Fletchers stated in their disclosure statement that they were aware of past drainage problems and noted that the county was scheduled to do work on the drainage system to correct the situation. In response to this disclosure, Hoffman requested a septic tank letter and a representation from the county that any sewage problems had been corrected. The county’s letter disclosed that the earlier problems included “effluent coming to the top of the ground.” The letter went on to state that the sewer system was “now working properly” due to repairs by the county. The county’s letter, therefore, affirmed the representations made by the Fletchers in their disclosure statement concerning the state of the drainage system. Although the Fletchers did provide a negative response when asked if they were aware of “any past or present leaks, backups, or other similar problems relating to any of the plumbing, water and/or sewage related items,” their response to the prior question was sufficient to disclose that prior drainage problems existed and to put Hoffman on notice of such conditions.

Although the property may have experienced numerous problems in the past, there is no evidence indicating that the problem that occurred in February 1998 stemmed from any hidden defect on the property or anything other than drainage problems noted in the disclosure statement and the county’s letter. And the county represented that those problems had been remedied at the time of closing. Accordingly, there is no evidence to indicate that the Fletchers’ representations were not accurate and complete to the best of their “knowledge and belief,” and the trial court properly granted summary judgment on the breach of warranty claim. See Masinter v. Salem Road Assoc., 240 Ga. App. 522, 523 (522 SE2d 562) (1999).

2. Hoffman also contends that it was error to grant summary judgment on her fraud claims against the Fletchers and Mosley. Fraud in real estate transactions can occur in several ways:

[F]raud in the sale of real estate may be predicated upon a wilful misrepresentation, i.e., the seller tells a lie; upon active concealment where the seller does not discuss the defect but takes steps to prevent its discovery by the purchaser; and thirdly a passive concealment where the seller does nothing to prevent the discovery but simply keeps quiet about a defect which!,] though not readily discernible, is known to the seller.

(Punctuation omitted.) Smalls v. Blueprint Dev., 230 Ga. App. 556, 557 (1) (497 SE2d 54) (1998).

Here, Hoffman is asserting that the Fletchers and Mosley passively concealed the extent and nature of the drainage problems on the property. She relies upon an established exception to the general rule of caveat emptor which “places upon the seller or agent a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision.” (Citation and punctuation omitted.) Deckert v. Foster, 230 Ga. App. 164 (495 SE2d 656) (1998).

As discussed in Division 1, the disclosure statement and letter from the county put Hoffman on notice of prior drainage problems on the property. The county represented that the drainage problems had been corrected, and the Fletchers and Mosley relied upon that representation. There is no evidence that the Fletchers experienced any further problems between the time the corrections were made and closing. In fact, Hoffman noticed no problems with the drainage after she moved onto the property until the county contacted her in February 1998.

Hoffman received notice of the prior drainage problems and the repairs to those problems. It was not necessary for the Fletchers to detail in their disclosure statement all their prior problems where it appeared the problems had been repaired. See Deckert v. Foster, 230 Ga. App. at 165; Conner v. Branch, 185 Ga. App. 565, 566 (364 SE2d 890) (1988). There is no evidence to suggest that the Fletchers or Mosley had any knowledge that repairs had been ineffectual, and, thus, they did not knowingly conceal any defects from Hoffman. The trial court, therefore, properly granted the motions for summary judgment on the fraud claim. Id. Compare Akins v. Couch, 271 Ga. 276 (518 SE2d 674) (1999).

3. Hoffman next argues that the trial court could not rule on Mosley’s motion for summary judgment until it had resolved her claim that venue was improper. Pretermitting the issue of whether Hoffman can assert this issue, we find no error. In her answer to Hoffman’s complaint, Mosley asserted as an affirmative defense that venue “may not be proper as to Mosley in this court.” But Mosley did not reassert that defense in her motion for summary judgment, and she concedes that she has waived it. A party may waive the defense of improper venue by his conduct during the course of litigation or by failing to elicit a ruling on the venue issue before entry of judgment. Williams v. Willis, 204 Ga. App. 328, 329 (419 SE2d 139) (1992). Therefore, we find that Mosley waived her venue defense and the trial court’s ruling on her motion for summary judgment was not premature. Compare Hight v. Blankenship, 199 Ga. App. 744 (406 SE2d 241) (1991) (ruling on merits premature where defendant reasserted issue of venue in seeking summary judgment).

4. Hoffman also argues that the trial court’s ruling was premature because discovery was not yet complete. On January 26, 1999, all parties filed a joint motion to extend discovery to allow the parties to resolve an ongoing dispute regarding Hoffman’s psychiatric records. The Fletchers filed their motion for summary judgment the next day, and Mosley filed her motion after the court entered an order extending the discovery period.

“ [I]t is not unusual for discovery to be ongoing at the time that summary judgment motions are filed and/or ruled upon.” Corry v. Robinson, 207 Ga. App. 167, 170 (3) (427 SE2d 507) (1993). A motion for summary judgment may be properly filed at any time after the expiration of 30 days from the commencement of the action. OCGA § 9-11-56 (a). The motions in this case were filed long after the 30-day deadline. Moreover, there is no evidence that Hoffman was waiting on any additional discovery; she sought no discovery after the discovery period was extended. Nor did she file any request that the trial court defer its ruling until discovery was completed. Under these circumstances, the trial court’s ruling was not premature. Belcher v. James, 207 Ga. App. 796, 797 (3) (429 SE2d 165) (1993).

Decided June 20, 2000.

Finch & Finch, Walter R. Finch III, for appellant.

Nelson, Mullins, Riley & Scarborough, Scott P. Hilsen, James C. Warnes II, for appellees.

Judgment affirmed.

Smith, P. J., and Miller, J., concur.


author: Ellington, Judge.

text:
    A00A0419.
    BELL v. COHRAN.
    (536 SE2d 187)
   Ellington, Judge.

Brenda Bell appeals from the superior court’s order dismissing her complaint with prejudice. Because Bell’s notice of appeal was untimely, we lack jurisdiction to consider the merits of her case and must dismiss it.

On June 11, 1999, the superior court entered an order dismissing Bell’s complaint with prejudice because she served process upon the defendant, Mary Katherine Cohran, 25 days after the statute of limitation expired. The superior court found that Bell failed to exercise due diligence in serving Cohran; consequently, Bell’s belated service did not relate back to the date she filed her complaint. On June 30, 1999, Bell filed her “Motion to set aside Order to Dismiss,” which the superior court denied in its August 8, 1999 order. Bell filed her notice of appeal on September 7, 1999, seeking only to appeal directly the superior court’s June 11, 1999 order.

Although Bell’s motion was labeled a “motion to set aside,” it was, in substance, a motion for reconsideration in which Bell reargued the issue of her diligence. It is well settled that a motion for reconsideration does not toll the time for filing a direct appeal. Blackwell v. Sutton, 261 Ga. 284 (404 SE2d 114) (1991); OCGA § 5-6-38 (a); see also MMT Enterprises v. Cullars, 218 Ga. App. 559, 560-561 (2) (462 SE2d 771) (1995) (a motion to set aside, even when based upon lack of jurisdiction or a nonamendable defect, does not extend the time for filing an appeal). Bell’s notice of appeal was not filed within 30 days of the superior court’s June 11, 1999 order; consequently, it is untimely. OCGA § 5-6-38 (a). We lack jurisdiction to consider this appeal because the “proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court. [Cit.]” Hammond v. Unified Govt. of Athens-Clarke County, 240 Ga. App. 432 (525 SE2d 709) (1999).

Fúrther, Bell cannot argue that her notice of appeal was timely taken from the court’s August 8,1999 order because it is not in and of itself directly appealable. See OCGA § 5-6-34.

Bell’s motion to set aside set forth none of the grounds listed in OCGA § 9-11-60 (d). The order appealed, therefore, was not one denying a § 9-11-60 (d) motion to set aside which may be appealed by application pursuant to OCGA § 5-6-35 (a) (8). Rather, it was a so-called “discretionary” motion to set aside, one which calls upon the court to exercise its inherent power to amend or modify those orders still within the breast of the court. See, e.g., Stone v. Dawkins, 192 Ga. App. 126, 127 (384 SE2d 225) (1989); see also Piggly Wiggly v. McCook, 216 Ga. App. 335, 337 (454 SE2d 203) (1995). In Stone, we held that the denial of such a motion “is never appealable in its own right; nor does the filing of such a motion extend the time for filing an appeal. [Cits.]” 192 Ga. App. at 127. As we explained then, a discretionary motion to set aside “is simply a request for the trial court to reconsider its decision, and we reiterate that the denial of such a motion is not an appealable judgment.” Id. In so holding, we overruled a previous contrary position taken by this Court in Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (366 SE2d 394) (1988), because “that holding was mistaken” and based upon law that was “not apposite.” Stone, 192 Ga. App. at 127.

We take this opportunity to reaffirm the Stone decision. In so doing, we must overrule T. J. Brooklyne, Inc. v. Sullivan 75, 239 Ga. App. 588, 592 (2) (521 SE2d 644) (1999), to the extent that it holds that an order denying a discretionary motion to set aside is directly appealable. In T. J. Brooklyne, a panel of this Court mistakenly relied on Harbor Light Marina v. Ellis, 190 Ga. App. 389 (1) (378 SE2d 746) (1989), for the proposition that such an order is directly appealable. The Harbor Light decision, which was issued four months before Stone and which relied solely upon Allstate Ins. Co., was impliedly overruled by our whole court decision in Stone. For clarity’s sake, we also expressly overrule Harbor Light to the extent it holds that the denial of a discretionary motion to set aside is directly appealable.

Because Bell’s notice of appeal is untimely with respect to the superior court’s June 11, 1999 order and because the superior court’s August 8, 1999 order is not itself directly appealable, we lack jurisdiction to consider the merits of Bell’s appeal. Therefore, this appeal is dismissed.

Appeal dismissed.

Johnson, C. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Phipps and Mikell, JJ, concur.

Decided June 20, 2000.

Suzanne A. Littlefield, for appellant.

Sharon W. Ware & Associates, Jay F. Eidex, for appellee.


text:
    A00A0655.
    SMITH v. THE STATE.
    (539 SE2d 504)
   Smith, Presiding Judge.

Leonard Wayne Smith was charged by indictment with aggravated assault, simple battery, and possession of a firearm by a convicted felon. In a bifurcated trial, the jury first found Smith guilty of simple battery, acquitting him on the charge of aggravated assault, and then found him guilty of possessing a firearm by a convicted felon. Smith appeals, contending in two enumerations of error that the trial court erred in failing to recharge the jury fully after the first verdict was returned and arguments were made on the firearms charge. We find no reversible error, and we affirm the judgment below.

The charges against Smith arose out of an incident in which Smith shot a friend at the friend’s home after an altercation one Saturday evening. The evidence was in conflict as to what actually transpired, who started the fight, who had been drinking, and whether the gun was in the house or retrieved from a car. It is undisputed, however, that the friend hit Smith in the head with a heavy, albeit empty, pickle jar, breaking the jar; that the friend also pulled out several handfuls of Smith’s hair; and that Smith then shot his friend in the abdomen.

Smith’s defense during the first part of the trial was justification. Alternatively, he argued that the gun went off accidentally. After the jury returned its verdict acquitting Smith of aggravated assault and finding him guilty of simple battery, the jury was informed for the first time of the firearms charge against Smith. Evidence was introduced that Smith was a felon, having pled guilty to being an habitual violator. After Smith’s motion for a directed verdict on the firearms charge was denied, the court reinstructed the jury, charging that the offense of habitual violator was a felony and that the jury was to consider “the entire charge” given them only hours before in connection with the other two counts.

The trial court also instructed the jury that if its verdict of not guilty on the charge of aggravated assault was based upon its determination that Smith shot the victim in self-defense, it could not find him guilty of the firearms charge. Only if the jury had concluded that Smith was not guilty of aggravated assault because the gun was discharged accidentally could it find him guilty on the weapons charge. The court reasoned that if the sole defense had been justification, a directed verdict on the weapons charge would have been mandated. But since the defense had also raised (and insisted upon) the argument that the gun discharged accidentally, the trial court reasoned that if it was not in self-defense, Smith was not legally authorized even to pick up the gun. In that case, accident would not be a defense to the weapons charge. The jury deliberated and returned a verdict of guilty.

1. Smith contends it was error for the trial court not to recharge principles such as the presumption of innocence, burden of proof, and reasonable doubt, after argument in the second phase of the trial. He makes this contention even though the jury had been charged several hours earlier in the trial court’s charge as to the first two counts.

In support of this argument, Smith relies upon cases in which the trial court failed to repeat after closing argument preliminary instructions given before evidence was presented. In those cases, the court’s main charge, after presentation of evidence but before the jury deliberated, was therefore incomplete. See, e.g., Griffith v. State, 264 Ga. 326 (2) (444 SE2d 794) (1994); Little v. State, 230 Ga. App. 803, 805-808 (2) (498 SE2d 284) (1998). We have found no reported case holding that when charges are given fully and completely just before the jury deliberates in the first stage of a bifurcated trial, it is reversible error to fail to repeat them in the second stage held shortly thereafter.

It is unclear whether the holding in Griffith that “final jury instructions, i.e., those given after argument, must be complete in and of themselves [,] [cit.],” id. at 327, applies in circumstances such as those present here. Here, the trial court’s charge before the jury deliberated in the first stage of this bifurcated trial was full and com- . píete. Argument in the second stage took place almost immediately after the charges were given in the first stage. But even assuming it was error to fail to repeat those charges here, the evidence was clear and overwhelming that Smith actually possessed the gun and fired the shots. Given that evidence and the trial court’s explicit and detailed charge informing the jury that it could find him guilty of the firearms charge only if it did not acquit him of the charge of aggravated assault on the basis of his defense of justification, we find that the failure to repeat the charge instead of incorporating the earlier charge was harmless under the circumstances.

Decided June 20, 2000

Carlton H. Vines, Todd M. Johnson, for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

2. We find no merit in Smith’s contention that the trial court’s charge to the jury on accident was confusing or misleading.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       This court has held in an unpublished opinion, which is not precedential (both because it is unpublished and because one judge concurred in judgment only), that in a bifurcated trial such as this one, it is error to fail to repeat such charges at the close of the second phase. Faulkner v. State, 242 Ga. App. XXV (2000). But in Faulkner, we held that because the evidence clearly established Faulkner’s guilt on the firearm charge, the failure to repeat the jury instructions was harmless.


text:
    A00A0743.
    STROZIER v. THE STATE.
    (535 SE2d 847)
   Smith, Presiding Judge.

Charles Strozier appeals from his conviction on charges of cultivation of marijuana and obstruction of an officer, basing his contentions on the trial court’s denial of his motion to suppress. Because we conclude that the trial court did not err in denying Strozier’s motion, we affirm.

The State presented the testimony of Deputy David Jones, who testified that he was on routine patrol in a school zone at about 8:15 a.m. when, from approximately 100 to 150 feet away, he saw Strozier walking in his driveway from the edge of some woods toward his house carrying three potted plants. Although Jones was not positive, he believed the green leafy plants carried by Strozier might be marijuana plants. Jones testified that he had previously “seen marijuana as it was growing.” Based on his belief that these plants might be marijuana, and after proceeding to the end of the school zone because of heavy traffic, Jones returned to Strozier’s home and pulled up to the gate around Strozier’s house. Strozier was standing at the corner of his carport watering the plants at that time, approximately 35 to 40 feet away from Jones. Jones was then able to determine positively that the plants were marijuana. As Jones began to exit his car, Strozier laid the plants down “real quick, looked back behind him, looked back at me, grabbed the plants and took off running.” Jones gave chase, yelling that he was with the sheriff’s department and telling Strozier to stop. Strozier refused and continued running but was apprehended a short time later by Jones. Jones later found two of the three plants in the woods into which he chased Strozier.

Strozier filed a motion to suppress and a motion in limine to exclude the evidence seized from his property, contending that his arrest was made without probable cause.

We find the trial court’s order on Strozier’s motion well reasoned and correct. We therefore affirm.

The essential purpose of the Fourth Amendment is to shield the citizen from unwarranted intrusions by the government upon his privacy. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. Consequently, a police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.

(Citations and punctuation omitted.) State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989). Furthermore, when a police officer enters “private property only to the extent of knocking on outer doors, the Fourth Amendment is not violated. After all, such an officer is merely taking the same route as would any guest or other caller.” (Citations and punctuation omitted.) Jenkins v. State, 223 Ga. App. 486, 487 (1) (477 SE2d 910) (1996).

Here, Jones did not go so far as to knock on doors; he merely saw Strozier carrying plants that might be marijuana, in plain view, during the daylight hours in Strozier’s front yard. Under Zackery, supra, these plants therefore were not even “a subject of Fourth Amendment protection.” Id. at 319. As stated by the trial court, under these circumstances, Deputy Jones was authorized to enter Strozier’s

driveway as would any other caller. In fact, he would have been remiss in his sworn duty as a law enforcement officer had he not not done so. When he confirmed by visual observation from 35 feet away that the plants were marijuana, he then had probable cause to arrest the defendant.

Gates v. State, 229 Ga. App. 766, 767-768 (a) (495 SE2d 113) (1997), relied on by Strozier, is not controlling. In that case, we concluded that exigent circumstances did not exist justifying seizure when the police observed marijuana growing on defendant’s property. See also Carranza v. State, 266 Ga. 263, 266 (467 SE2d 315) (1996) (no exigent circumstances where, among other things, no pending danger of injury or contraband “not in immediate danger of destruction”). In contrast, here Jones actually saw Strozier transporting the marijuana plants. Under these facts, we conclude that the trial court therefore was authorized to state that “[t]he mobility of the plants and their ready destructibility or concealment created exigent circumstances which obviated the necessity for the officer to obtain a warrant.”

Decided June 20, 2000.

Strauss & Walker, John T. Strauss, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

An appellate court must construe the evidence in support of the findings and judgment of the trial court when reviewing a trial court’s order on a motion to suppress. Jenkins, supra. We will not disturb a trial court’s findings on disputed facts and credibility unless clearly erroneous. Id. So construing the facts of this case, we cannot conclude that the trial court’s findings of facts or credibility are clearly erroneous, and we therefore affirm its denial of Strozier’s motion to suppress. Based on our conclusion that the trial court was authorized to deny Strozier’s motion to suppress, we find no merit in Strozier’s remaining enumerations of error.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Strozier stipulated to a bench trial based on the evidence introduced at the hearing on his motion to suppress.

       He also contended in his motion to suppress that his Miranda rights were violated. He does not raise this contention on appeal, however.


author: Andrews, Presiding Judge.

text:
    A00A0555.
    CARSWELL v. THE STATE.
    (534 SE2d 568)
   Andrews, Presiding Judge.

Darren Edward Carswell appeals from the trial court’s denial of his motion for new trial after his conviction by a jury of kidnapping, terroristic threats, child molestation, criminal attempt to commit rape, and assault with a deadly weapon.

1. Carswell’s first enumeration is that the trial court erred in not permitting trial counsel to state and argue his motion for directed verdict and also that the trial court should have granted the motion based on the State’s failure to prove that the charged acts occurred in Twiggs County as alleged.

No objection was voiced by trial counsel when the trial court stated, after Carswell’s motion for directed verdict was made, that the court would allow the jury to consider the case and no farther argument was needed. Therefore, we do not further consider this argument.

Examining the sufficiency of the evidence regarding venue, which was alleged in Twiggs County on all charges, and viewing the evidence in favor of the jury’s verdict, Mincey v. State, 237 Ga. App. 463, 464 (2) (515 SE2d 433) (1999), it was that Carswell and Walker, the mother of victim L. S., had gone to school together and were neighbors in Danville. Danville is partially located in two counties, Twiggs and Wilkinson. Walker’s home was in Wilkinson County, and Carswell lived within walking distance of her home.

On December 12, 1995, when she was 11 years old, L. S. was walking from church, where she had been practicing for a Christmas pageant, to her maternal grandmother’s home not far from the church. Walker testified that L. S.’ grandmother’s house was located in Twiggs County.

As L. S. walked along, she saw Carswell, whom she knew, approach. He grabbed her by her arm and pushed her into some bushes and a ditch. Carswell tried to take her shirt off while holding her down with his knees on her legs, which he had spread. L. S. screamed and squirmed, but no one else was around. Carswell put his hands on her panties and rubbed her vaginal area. L. S. then managed to kick Carswell in the groin, causing him to grab himself and fall to the ground. She then ran away. As she was running, Cars-well told her that, if she said anything, he would break her neck and burn her house down.

L. S. went on to her grandmother’s house, where Walker was visiting her mother. L. S. did not mention the incident that day, because of fear. The next day, while L. S. was at the doorstep of Walker and her home, Carswell threw an iron pipe which struck L. S. in the ankle and caused swelling. Carswell said, “I told you I was going to get you.”

L. S. then told her mother of the-previous day’s incident and the pipe throwing, and authorities were called. The place where the incident occurred on December 12, according to Walker, was within walking distance of her home in Wilkinson County, “not even a half a mile” away.

On December 14, Carswell made a statement to Georgia Bureau of Investigation Agent Durham in which he acknowledged that, on December 12 around 6:30 p.m., he was walking on Pine Street in Danville when he saw L. S. He bumped into her, and she fell to the ground. He then knelt and was pulling on her shirt when he asked her, “what are you going to do[?]” Carswell stated that, when a black person asks a black person this, it means are you going to have sex. Carswell said L. S. declined and walked away. The next day, Carswell said he was walking across the backyard of an aunt of L. S. when he saw L. S. again. He had a 12-inch object in his hand which he thought was a stick but later learned was a pipe. He told L. S. if she told anyone, he would hurt her, and she would be in ashes. He acknowledged throwing the object at L. S.’ feet. At trial, venue is a jurisdictional fact which the State must prove to the jury beyond a reasonable doubt. It is a question to be decided by the jury whose decision will not be set aside if there is any evidence to support it. Cox v. State, 241 Ga. App. 388, 391 (4) (526 SE2d 884) (1999); Weidmann v. State, 222 Ga. App. 796 (1) (476 SE2d 18) (1996) (physical precedent only). As provided in OCGA § 17-2-2 (b), “[i]f a crime is committed on, or immediately adjacent to, the boundary line between two counties, the crime shall be considered as having been committed in either county.” (Emphasis supplied.)

Here, as to the four crimes alleged to have been committed by Carswell on December 12, there was sufficient circumstantial and direct evidence, as set out above, from which the jury could have concluded that the acts occurred in Twiggs County. Therefore, the evidence of venue on the first four counts was sufficient, and denial of the motion for directed verdict on that ground was not error. Weidmann, supra; Pippins v. State, 204 Ga. App. 318, 320 (4) (419 SE2d 28) (1992).

On the assault with a deadly weapon charge on December 13, the evidence is less clear. Nonetheless, it shows that L. S. was standing on the doorstep of her home in Wilkinson County within walking distance of Twiggs County when Carswell, walking through a nearby backyard, threw the pipe at her. This evidence is sufficient to trigger the provisions of OCGA § 17-2-2 (b) and was legally sufficient to prove venue in either Wilkinson or Twiggs County. Compare In the Interest of N. T. S., 242 Ga. App. 109, 111 (2) (528 SE2d 876) (2000) with Sypho v. State, 175 Ga. App. 833 (1) (334 SE2d 878) (1985).

The maps introduced by Carswell during the motion for new trial hearing do not require a different result but, instead, show the efficacy of OCGA § 17-2-2 (b) in such a case.

2. Carswell’s second enumeration is that the four December 12 crimes all merged as a matter of law or fact. Below, however, the only argument made was that the attempted rape and child molestation charges merged as a matter of fact, and that is all we consider.

Count 3 charged that Carswell committed child molestation by “fondl[ing] the genitals of [L. S.], a child. . . .” Count 4 charged that Carswell attempted to rape L. S., in that he “knowingly and intentionally [did] perform acts which constituted a substantial step toward the commission of said crime, to wit: [he] did pull [L. S.] into some bushes, try to take her shirt off, and did fondle the genitals of [L. S.]. . . .”

We agree that, as the crimes were alleged, while Carswell could be prosecuted for both child molestation and attempt to commit rape, the trial court erred in not merging the child molestation conviction into the attempt to commit rape conviction for sentencing purposes. Caldwell v. State, 263 Ga. 560, 562 (2) (436 SE2d 488) (1993); Wofford v. State, 226 Ga. App. 487, 488 (1) (486 SE2d 697) (1997); Lewis v. State, 205 Ga. App. 29, 30 (2) (421 SE2d 339) (1992).

3. In his third enumeration, Carswell contends the trial court erred in allowing the State to refer to Carswell’s admissions in its opening statement and in allowing into evidence the alleged admissions without a Jackson v. Denno hearing.

Carswell is correct that, “where the voluntariness of a confession is questioned it is necessary under the decision of Jackson v. Denno, supra, to have a separate hearing as to the voluntariness before it is finally presented to the jury for consideration.” Craver v. State, 246 Ga. 467, 468 (1) (271 SE2d 862) (1980).

Here, however, Carswell denied making the statement, did not request a Jackson v. Denno hearing, and did not object to the introduction of that portion of the statement which related to the crimes charged. Under these circumstances, “[d]ue process does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.” (Citations and punctuation omitted; emphasis in original.) Gamble v. State, 235 Ga. App. 777, 783 (5) (510 SE2d 69) (1998). See also Henderson v. State, 204 Ga. App. 884, 888 (4) (420 SE2d 813) (1992).

There was no error.

4. Carswell contends, in his fourth enumeration, that he was denied his right to effective assistance of counsel by the failure to appoint counsel to represent him until two years after his arrest and after he had requested appointment of counsel at his initial appearance before a magistrate on December 18, 1995.

Carswell was arrested without a warrant on December 13, 1995, and kept overnight in the Laurens County Jail. The next day, he was given a polygraph examination and questioned by GBI agents. During that questioning, as set out above, the State contends that he made certain admissions. Carswell was then kept in jail in Laurens County for a “week or two” until he was transferred to the Twiggs County Jail.

A warrant was issued on December 15, 1995, and Carswell appeared before a magistrate on December 18. As reflected by the Preliminary Arraignment Form, Carswell advised the magistrate at that time that he desired appointed counsel. No counsel was appointed at that time.

An indictment was returned on October 13, 1997, and Carswell was arraigned on November 14, 1997. Uniform Superior Court Rule 30.2 provides that:

[b]efore arraignment the court shall inquire whether the accused is represented by counsel and, if not, inquire into the defendant’s desires and financial circumstances. If the defendant desires an attorney and is indigent, the court shall authorize the immediate appointment of counsel.

Despite this requirement, Carswell was arraigned without counsel and, as far as reflected by the record here, without further inquiry concerning his previously expressed desire for counsel.

On January 12, 1998, Carswell completed his Application for Appointment of Counsel and Certificate of Financial Resources. That same day, the court entered its order appointing the Twiggs County Public Defender’s Office to represent Carswell.

In United States v. Cronic, 466 U. S. 648, 658-659 (104 SC 2039, 80 LE2d 657) (1984), the Supreme Court reiterated the maxim that the right to counsel is the right to effective assistance of counsel and:

that the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated. [Cits.] Moreover, because we presume that the lawyer is competent to provide the guiding hand that the defendant needs, [cit.], the burden rests on the accused to demonstrate a constitutional violation. There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete denial of counsel. The presumption that counsel’s assistance is essential requires us to conclude that a trial is unfair if the accused is denied counsel at a critical stage of his trial.

Decided May 12, 2000

Reconsiderations denied June 21, 2000

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

Ralph M. Walke, District Attorney, Trade J. Hobbs, Peter F. Larsen, Assistant District Attorneys, for appellee.

James C. Bonner, Jr., amicus curiae.

(Footnotes omitted; emphasis supplied.) Id.

Here, although Carswell did request counsel at the earliest opportunity available to him, he was not only not appointed counsel at that juncture, but was thereafter indicted and arraigned without counsel. Arraignment is one of those “critical stages” of a criminal proceeding during which an accused is entitled to representation. Hamilton v. Alabama, 368 U. S. 52 (82 SC 157, 7 LE2d 114) (1961). Compare Dixon v. Hopper, 237 Ga. 811 (229 SE2d 656) (1976) with State v. Houston, 234 Ga. 721, 723 (218 SE2d 13) (1975) and Bache v. State, 208 Ga. App. 591 (1) (431 SE2d 412) (1993). See also USCR 31.1.

The State argues that the onus was on Carswell to complete the application and, apparently, until that was done, the State had no obligation to appoint counsel. The Guidelines of the Georgia Indigent Defense Council, however, refute this argument. Section 1.1 provides that “[c]ounsel shall be provided to all persons eligible . . . whenever such a person is accused of a felony by indictment, warrant or warrantless arrest. . . .” (Emphasis supplied.) As of his arrest without a warrant on December 13, 1995, Carswell was entitled to counsel. Section 1.2 provides that “ [c] ounsel shall be appointed for every eligible person in custody within 72 hours of arrest or detention.” (Emphasis supplied.)

Under the specific facts of this situation and considering the length of time after which Carswell had requested counsel that he was deprived of counsel, we conclude that this is one of those unique cases in which no specific harm need be shown in order to require redress. United States v. Cronic, supra.

5. The remaining enumerations are either moot in light of our decisions herein or unlikely to recur upon retrial.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       Pursuant to the recent mandate of Felix v. State, 271 Ga. 534 (523 SE2d 1) (1999), we consider both assertions.

       378 U. S. 368, 376 (84 SC 1774, 12 LE2d 908) (1964).

       With regard to this enumeration, the Georgia Indigent Defense Council has filed a brief as amicus curiae.

       “All motions, demurrers, and special pleas shall be made and filed at or before time of arraignment... .”

       There is no question that Carswell was eligible for appointed counsel.


text:
    A00A0536.
    DANIELS v. THE STATE.
    (536 SE2d 206)
   Phipps, Judge.

In April 1993, Charles Daniels was convicted of sale of cocaine and sentenced to life imprisonment. In June 1999, he filed a pro se motion for reduction of sentence. The trial court denied the motion on the ground that it no longer had jurisdiction to modify Daniels’s sentence. Daniels appeals. Because the ordinary time period for modification of sentence had elapsed, and Daniels’s sentence was not subject to modification as void, we affirm.

A trial court does not have unlimited jurisdiction to modify a sentence.

A trial court has no jurisdiction to modify a sentence after the term of court ends or sixty days pass. Where a sentence is void, however, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow.

Terms of court for the Chatham County Superior Court, where Daniels was sentenced, begin on the “[fjirst Monday in March, June, September and December” of each year. Daniels’s motion was filed six years after the end of the term of court in which he was sentenced.

Daniels asserts that his sentence is void because the trial court improperly sentenced him as a recidivist under OCGA § 17-10-7 (c). That subsection provides that one convicted of a fourth felony offense must “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.”

The record does not indicate that Daniels was sentenced pursuant to OCGA § 17-10-7 (c). He was indicted under that provision, but the State did not seek sentencing under it. The court did not refer to that Code section in its oral pronouncement or written order on Daniels’s sentence. Neither did the sentence state that Daniels was ineligible for parole.

The court based its sentence of Daniels on OCGA § 16-13-30 (d), which, at the time, mandated a life sentence for conviction of a second offense of selling or possessing with intent to distribute Schedule I or Schedule II controlled substances. Cocaine is a Schedule II controlled substance. Daniels was convicted of sale of cocaine in this case, and in November 1987, he had pled guilty to possession of cocaine with intent to distribute.

Daniels’s life sentence was mandated by law, and it was not void. The trial court was without jurisdiction to modify the sentence more than six years after its imposition. Daniels’s motion for sentence reduction was properly denied as untimely.

Daniels also makes a puzzling claim that he did not receive a trial by a fair and impartial jury because the original indictment, which was presented to the jury, did not include his prior convictions. That claim is not related to the issue of whether the trial court properly sentenced him. Instead, it relates to the validity of his conviction. Through several motions for new trial and an extraordinary motion for new trial, Daniels has previously challenged the validity of his conviction. And in an unpublished opinion, we affirmed his conviction. 213 Ga. App. XXIX (1994). Daniels may not raise in this appeal issues which go to the validity of his conviction rather than the validity of his sentence.

In his brief to this court, Daniels raises several issues which were not presented to the trial court in his motion for reduction of sentence. “This court’s function is to review errors of the lower courts, not to review assertions made by [appellant] and brought directly to this court.” For that reason, we will not address the issues which were not raised below.

More than six months after this appeal was docketed, Daniels filed an amended enumeration of errors raising numerous additional arguments. We will not consider the enumeration because it was not timely filed. Moreover, the arguments raise issues which were not presented to the trial court in connection with the motion for reduction of sentence.

Decided June 21, 2000.

Charles Daniels, pro se.

Spencer Lawton, Jr., District Attorney, AnnM. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Mikell, J., concur.

       (Citations omitted.) Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991).

       OCGA § 15-6-3 (17).

       Effective July 1, 1996, OCGA § 16-13-30 (d) was amended to allow greater sentencing discretion for trial courts, but the amendment was not retroactive. Maddox v. State, 227 Ga. App. 602, 605 (5) (490 SE2d 174) (1997).

       OCGA § 16-13-26 (1) (D).

       Daniels’s argument appears to be a misapplication of prior precedent which stated that the defendant’s constitutional rights were not necessarily violated if the jury was shown an indictment which contained his prior convictions. See Landers v. Smith, 226 Ga. 274, 276 (3) (174 SE2d 427) (1970). Under Georgia’s old two-step felony trial procedure where sentence was imposed by the same jury which decided guilt, prior convictions had to be included in the indictment to be considered in aggravation of punishment. Wainwright v. State, 208 Ga. App. 777, 778 (2) (432 SE2d 555) (1993). Georgia now has judge sentencing, and recidivist punishment is no longer conditioned upon indictment of the defendant as a recidivist. Id.

       One of these contentions is that OCGA § 16-13-30 (d) is unconstitutional both on its face and in its application. Daniels raised that same argument in his direct appeal, and this court decided the issue adversely to him in an unpublished opinion, 213 Ga. App. XXIX (1994). Relitigation of this issue is barred by res judicata. Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991).

        Moore v. State, 176 Ga. App. 882, 884 (2) (339 SE2d 271) (1985).

       See McGraw v. State, 199 Ga. App. 389-390 (405 SE2d 53) (1991); Court of Appeals Rule 26 (a).


author: Ruffin, Judge.

text:
    A00A0564.
    MASHBURN v. THE STATE.
    (536 SE2d 208)
   Ruffin, Judge.

A jury found Ricky Lee Mashburn guilty of aggravated battery and cruelty to children. On appeal, Mashburn contends that the evidence was insufficient to support the aggravated battery conviction. He also asserts that the trial court erred in admitting certain evidence and in failing to merge the aggravated battery and cruelty to children convictions for sentencing purposes. For reasons that follow, we affirm.

The record demonstrates that in March 1998, Mashburn and his two children, Nicholas and Mariah, lived with Virginia Woolums and her daughter, Jennifer, in a trailer in Cherokee County. On Saturday morning, March 14, Mashburn, who had been drinking, picked up his five-year-old son, Nicholas, by his arm and hit him on his backside. Nicholas fell, and Mashburn picked him up and hit him again.

Later that afternoon, Woolums’s brother-in-law, Tim Owens, took Mariah and Jennifer to his home to spend the night. Nicholas was not allowed to go because he was being punished. When Owens picked up the girls, he noticed that Nicholas had a small bruise on his face and that his lips were swollen. Owens told Mashburn and Woolums that Nicholas should be taken to the doctor, and Mashburn responded, “This is nothing. You should have seen him a week ago.” Mashburn and Woolums then told Owens that Nicholas’s appearance was due to medication that he had been taking.

After the girls left, Mashburn continued to “punish” his son. According to Woolums, Mashburn “spanked” Nicholas to the point that he could no longer cry. Mashburn hit Nicholas with his belt and his hand, and he kicked him. At least five times that day, Mashburn forced Nicholas to walk back and forth in the trailer while Mashburn hit him with a belt. Woolums estimated that each “walk” lasted 30 to 45 minutes. Woolums testified that, at one point, Mashburn pulled Nicholas’s pants down to “spank” him, and she saw bruises on the boy. Apparently concerned by the extent of the bruising, Woolums reminded Mashbum that Nicholas had a doctor’s appointment that week. Mashbum said that he would cancel the appointment.

The next day, Nicholas’s punishment continued. Woolums testified that Mashbum told his son that “he wasn’t a baby and he wasn’t going to be treated like a baby anymore and that he was going to grow up and that [Mashburn] was going to teach him.” So, a few hours after breakfast, Nicholas was made to walk, and Mashburn continued to hit him. According to Woolums, the beatings lasted “[plretty much all day.”

On Monday, March 16, Nicholas woke up with a swollen face and a bruised body. Woolums testified that she told Mashbum that Nicholas looked bad and that something needed to be done. She claims that she also told him that she was leaving him and that he needed to make arrangements for his son. But Mashburn left Nicholas with Woolums and went to work at a dry cleaners owned by Woolums’s mother and stepfather, Mary and Ricky Starnes. Although Mashbum later picked up Mariah and Jennifer, he left his son with Woolums. Rather than returning to his trailer, Mashbum spent the night with his brother, Leonard.

Around 10:30 p.m., Woolums called her stepfather, Ricky Starnes, and told him that she was bringing the children to his house to spend the night. Woolums called later and told Starnes that she had left Nicholas in one of the bedrooms. Starnes got out of bed to check on Nicholas and found him in the bathroom. When Starnes turned on the light, he was appalled by Nicholas’s appearance. Starnes testified that “it was horrible. . . . [I]t just took my breath. His face was all swollen up and his mouth was all swollen. One of his eyes was — you know, nearly shut and it scared me to death.”

Starnes woke up his wife, Mary, and they took Nicholas downstairs where they lifted his shirt and found additional bruises. Starnes became angry and left to find Mashbum and Woolums. Although Starnes knocked on the door both at the trailer shared by Mashbum and Woolums and at Leonard Mashbum’s trailer, he received no response. The next morning, March 17, the Starneses took Nicholas with them to the dry cleaners.

At approximately 8:00 a.m., Mashburn arrived at the dry cleaners. When Mashburn first saw his son, he did not appear surprised by Nicholas’s appearance. Mary Starnes asked Mashburn what had happened to Nicholas, and he said that he did not know. Tonya Hansard, Woolums’s sister, told Mashburn that he was “crazy as h-e-1-1” if he did not know about the injuries. Mashburn responded that, although he had known about the bruises on Nicholas’s body, the child’s face had not been like that when he left him with Woolums.

Starnes told Mashburn that the child needed to be taken to the emergency room and that Nicholas was “not leaving [Starnes’s] sight until he goes to the hospital.” Starnes and Mashbum then took Nicholas to Scottish Rite Children’s Medical Center.

Erin York, the first nurse to see Nicholas, was so upset by the child’s appearance, which she described as the “worst child abuse” she had ever seen, that she began to cry. Because York felt that some of Nicholas’s injuries might be critical, she called in Dr. Raymond Deebs, the emergency medicine physician.

Dr. Deebs, like York, was “very distraught” by the extent of Nicholas’s injuries. In examining the child, he noted that Nicholas “had bruises literally from head to toe,” and that his eyes were swollen shut. Some of the bruises were new, but others appeared to be several weeks old. In addition to the bruises on Nicholas’s face, he had bruises on his stomach, back, buttocks, scrotum, inner thighs, and scalp. Nicholas also had lacerations or puncture wounds on his face and on his scrotum, a broken arm, a bleeding spleen, and a bleeding intestinal wall.

Dr. Deebs questioned Mashburn about the injuries, and Mash-burn provided a “very disjointed” story. At one point, he attributed the child’s injuries to medication the child was taking. But Deebs testified that the medication would not have caused the injuries. Deebs diagnosed Nicholas with “battered child syndrome.”

A social worker at Scottish Rite called the Cherokee County Sheriff’s Department, and Detective Joe McDonald went to the hospital and photographed Nicholas’s injuries. Shortly thereafter, Mash-burn and Woolums were arrested and charged with aggravated battery and cruelty to children. Following a trial, a jury found both defendants guilty of both charges.

1. In his first enumeration of error, Mashbum contends that the evidence was insufficient to support his conviction for aggravated battery. “[A] person commits the offense of aggravated battery when he . . . maliciously causes bodily harm to another by depriving him . . . of a member of his . . . body.” Contrary to Mashburn’s contention, the evidence was sufficient to support his conviction for this offense.

On appeal from Mashburn’s conviction, we view the evidence in the light most favorable to the jury’s verdict, and we neither weigh the evidence nor determine witness credibility. We simply determine whether the evidence is sufficient under the standard enunciated in Jackson v. Virginia. Here, the evidence amply supported Mashburn’s aggravated battery conviction. The evidence showed that Nicholas was with Mashburn and/or Woolums from Saturday, March 14, until he was taken to the Starneses’ house on Monday, March 16. During that time, Nicholas was subjected to unspeakable abuse at Mash-burn’s hands, and he suffered a broken arm. Although there is no direct evidence as to how or when Nicholas’s arm was broken, the jury was authorized to conclude that the only reasonable hypothesis is that it was broken while Nicholas was being abused.

According to Mashburn, Nicholas’s arm had been broken within the past 24 hours, and the evidence showed that he was not with his son during those 24 hours. Thus, he contends, he cannot be responsible for the injury. We note, however, that Dr. Deebs and Dr. Jerry Larrabee estimated that Nicholas’s arm had been broken within one to three days before his hospitalization. Thus, Mashburn mischaracterizes the evidence, and the jury was authorized to find that he was, in fact, responsible for his son’s broken arm.

Mashburn also asserts that the only evidence linking him to the crime is the uncorroborated testimony of his co-defendant, Woolums. Under OCGA § 24-4-8, an accomplice’s testimony must be corroborated, and such “corroborating evidence 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.” Only slight evidence is needed for corroboration, and such evidence may be circumstantial. Here, sufficient evidence corroborated Woolums’s testimony.

Again, we note that Nicholas was with Mashburn and Woolums the weekend of March 14 and that, during that time, he sustained multiple injuries. Dr. Deebs and Dr. Larrabee confirmed that the injuries were the result of abuse, which corroborates Woolums’s testimony. Additionally, Nicholas’s sister, Mariah, testified that when Nicholas was in trouble, Mashburn would “spank” him and force him to walk back and forth in the trailer while holding his hands in the air. Jennifer Woolums testified that, on the weekend of March 14, she saw Mashburn pick up Nicholas by one arm and hit him “off his feet.” Hansard, Woolums’s sister, testified that Mashburn locked Nicholas in his room at night. According to Nicholas’s foster mother, the one time she shut the door to his room he became hysterical. Nicholas’s biological mother testified that either the first or second night that Nicholas was in the hospital, he wet his bed. According to the mother, he became hysterical and said “I’m going to be in trouble. I’m going to get in trouble. My dad’s going to spank me.” Given this independent evidence that Mashburn abused his son and that Nicholas was afraid of his father, Woolums’s testimony was sufficiently corroborated.

2. Mashburn contends that the trial court erred in admitting into evidence a videotape of a statement given by his co-defendant, Woolums. According to Mashburn, the statement was merely a self-serving declaration, and thus, it should have been excluded.

“It is a well-established general rule that a statement of a party, whether oral or written, which is of a self-serving nature is not admissible in his favor.” However, a witness’s prior consistent statement is admissible where the veracity of the witness has been called into question and the witness is present at trial and available for cross-examination.

Here, Woolums was present at trial, testified, and was subject to cross-examination. When Mashburn’s attorney cross-examined Woolums, he attempted to discredit her earlier testimony by implying that she had lied about having not spanked Nicholas.

Thus, Mashburn placed Woolums’s veracity in issue, and the trial court did not err in admitting her prior consistent statement.

3. In his final enumeration of error, Mashburn asserts that the trial court erred in failing to merge the cruelty to children charge with the aggravated battery charge. We disagree.

“Under Georgia law, offenses merge and multiple punishment is prohibited if one offense is included in the other as a matter of law or fact.” This Court has recognized that “[c]ruelty to children (OCGA § 16-5-70) and aggravated battery (OCGA § 16-5-24) are not included offenses as a matter of law because the crimes have different elements, prohibit different conduct, and generally protect different classes of victims.” But, if the same operative facts are used to prove both crimes, the two offenses may merge as a matter of fact.

Decided June 21, 2000.

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Debra M. Sullivan, Assistant District Attorney, for appellee.

In this case, the evidence established that, over the course of the weekend, Nicholas was subjected to multiple injuries in addition to his broken arm, including a bleeding spleen, a bleeding intestinal wall, and puncture wounds and lacerations on his face and scrotum. None of these injuries are relevant to Mashburn’s aggravated battery conviction, which was predicated upon Nicholas’s broken arm. As Mashburn’s conviction for cruelty to children is supported by these additional facts, the trial court did not err in failing to merge the two offenses.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       Mashbum also was charged with a second count of cruelty to children for failing to seek medical treatment for Nicholas, but that count was nolle prossed.

       OCGA § 16-5-24 (a).

        Bethel v. State, 232 Ga. App. 82, 83 (1) (500 SE2d 595) (1998).

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

       See Chung v. State, 240 Ga. App. 394, 395-396 (1) (523 SE2d 615) (1999) (evidence supported reasonable hypothesis that the defendant injured his stepdaughter because he was alone with her when she was injured); see also Harris v. State, 223 Ga. App. 661, 662-663 (478 SE2d 458) (1996) (circumstantial evidence that mother intentionally burned son sufficient to support conviction for aggravated battery).

       See Hanifa v. State, 269 Ga. 797, 808 (7) (505 SE2d 731) (1998).

        Black v. State, 242 Ga. App. 271, 272 (2) (529 SE2d 410) (2000).

       Id.

       See Harris v. State, 180 Ga. App. 56, 57 (1) (348 SE2d 476) (1986) (accomplice’s testimony that the defendant abused child was corroborated by medical testimony that child’s injuries likely resulted from slapping and burning).

       See id.

       (Punctuation omitted.) Grude v. State, 189 Ga. App. 901, 903 (2) (377 SE2d 731) (1989).

        Woodard v. State, 269 Ga. 317, 320 (2) (496 SE2d 896) (1998).

       See Carter v. State, 238 Ga. App. 708, 710 (2) (520 SE2d 15) (1999).

       (Punctuation omitted.) Green v. State, 240 Ga. App. 377, 381 (9) (523 SE2d 581) (1999).

        Harmon v. State, 208 Ga. App. 271, 275 (8) (430 SE2d 399) (1993).

       Id.


author: Blackburn, Presiding Judge.

text:
    A00A0669.
    ARRINGTON v. THE STATE.
    (536 SE2d 212)
   Blackburn, Presiding Judge.

Tyrone Arrington appeals his convictions for armed robbery, aggravated battery, and aggravated assault, contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

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

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the evidence in this light, the record reveals that Joe Perdue testified that, in the early morning hours of March 25, 1998, he was walking toward his apartment when he noticed a white Cutlass with tinted windows. As he passed by the vehicle, one of the occupants opened the passenger’s side door, causing the overhead light to illuminate the interior. At that time, Perdue saw Arrington sitting in the backseat of the car behind the driver. Shortly thereafter, two men sitting on the passenger’s side of the car followed Per-due to the door of his apartment, robbed him, and shot him in both of his thighs. Perdue identified Clifford Belmar, one of Arrington’s co-defendants, as one of the men who shot him.

Another of Arrington’s co-defendants, Antonio Thomas, who had previously pled guilty, testified that Arrington was privy to the plan to rob and shoot Perdue well before the crime was committed. Arrington wanted to run Perdue out of the apartment complex so that he could have a monopoly on marijuana sales there. According to Thomas, Arrington drove the car to the scene of the crime, and Belmar and Chauncey Brantley, an unindicted suspect, shot Perdue. Thomas further testified that, after the robbery, Arrington opined that they should have killed Perdue to prevent him from identifying them.

Eric Heard, a friend of Arrington and Belmar, testified that Arrington visited him while he was in jail for a probation violation and discussed his involvement in the shooting at that time. During this visit, Arrington told Heard that Thomas shot Perdue. Heard later retracted his testimony, however, indicating that he had made up facts in order to get assistance from the State in his probation revocation proceedings.

Dorian Nassau, a compatriot of Heard, testified that, during a three-way call at the jail, he heard Arrington describing the shooting to an unidentified woman. During this conversation, Arrington admitted that he had been in the backseat of the Cutlass when Per-due was shot.

Brantley, who was not indicted in this case, made a statement to police after his arrest that he was present when Arrington planned the robbery with his co-defendants. Brantley further stated that Arrington and the others then left, committed the robbery, and returned to the home of Brantley’s girlfriend.

A participant to a crime may be convicted although he is not the person who directly commits the crime. OCGA § 16-2-20. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels!,] or procures another to commit the crime may be convicted of the crime as a party to the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime. Whether [Arrington] was a party to the crime and aided and abetted [his co-defendants] in the [crimes for which he was indicted] or intentionally advised, encouraged, or counseled [his co-defendants] to commit the crimes was a question for the jury.

(Citations omitted.) Burks v. State, 268 Ga. 504, 505 (491 SE2d 368) (1997).

In this case, there was sufficient evidence to show that Arrington aided, abetted, advised, and counseled his co-defendants in the commission of the crimes against Perdue. It makes no difference that Arrington was not the one who shot Perdue, as the State only needed to prove that Arrington was acting in concert with the others. See, e.g., Ford v. State, 163 Ga. App. 745, 746-747 (296 SE2d 85) (1982) (“ ‘Once [a] common design is shown by evidence tending to indicate that the individuals have associated themselves together to do an unlawful act, any act done in pursuance of that association by any one of the associates, would, in legal contemplation, be the act of each of them.’ [Cits.]”).

The fact that [Arrington’s co-defendants] may have given contradictory, or even biased, testimony regarding [Arrington’s] role in the armed robbery does not change our result. “Although the co-defendants each tried to appear less culpable than the other and in so doing disagreed on many points, their testimony with regard to [Arrington’s] aid to them was sufficiently corroborative to establish that [Arrington] was a party to the [crimes committed].” Allen v. State, 224 Ga. App. 324, 325 (3) (480 SE2d 328) (1997). . . . Moreover, “(t)he weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness!,) for it is the function of the triers of fact to determine to what evidence it gives credence. It is not for us to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.” . . . Norris v. State, 220 Ga. App. 87, 88 (1) (469 SE2d 214) (1996).

Culberson v. State, 236 Ga. App. 482, 484-485 (512 SE2d 367) (1999).

Thus, for all of the foregoing reasons, the evidence in this case was sufficient to support Arrington’s convictions. Jackson, supra.

Decided June 21, 2000.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Sheila A. Connors, Assistant District Attorneys, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0811.
    D. ROBERT AUTREY, JR., P.C. v. BAKER.
    (536 SE2d 204)
   Andrews, Presiding Judge.

Pursuant to this Court’s prior decision in this matter, D. Robert Autrey, Jr., P.C. v. Baker, 228 Ga. App. 396 (492 SE2d 261) (1997), the trial court conducted a final hearing on D. Robert Autrey, Jr., P.C.’s motion to foreclose its lien for attorney fees arising from representation of Elena S. Baker in her divorce. From the trial court’s decision concluding that the lien was improper and failed, Autrey (P.C.) appeals.

Pursuant to OCGA § 44-14-550 (5), a final hearing in a lien foreclosure proceeding on an attorney’s lien (OCGA § 15-19-14 (b)) is held “on the validity of the debt if a further determination of the validity of the debt is desired.” See P & B Corp. &c. v. One 1983 BMW, 175 Ga. App. 462 (1) (333 SE2d 633) (1985).

Because lien laws, including the attorneys’ lien statute, are in derogation of the common law, they must be strictly construed. Ellis, Funk, Goldberg &c., P.C. v. Kleinberger, 235 Ga. App. 360, 361 (1) (509 SE2d 660) (1998). Further, on appellate review, a trial court’s determination of facts when acting as factfinder must be affirmed if there is any evidence to support them. OCGA § 9-11-52 (a); Brandon v. Newman, 243 Ga. App. 183 (532 SE2d 743) (2000); Neal v. Nat. Gas of Tenn., 222 Ga. App. 774 (1) (476 SE2d 73) (1996).

Viewing the evidence in favor of the trial court’s factual findings, it was that Autrey was brought into the Baker divorce by Baker’s lead counsel, Koehler, in late May 1995, solely for the purpose of providing insight and advice concerning tax consequences of proposals for resolving the divorce, as well as to serve as liaison with certified public accountants involved. At stake in the divorce were several million dollars.

From the beginning of his participation until November 16, 1995, no bills were submitted by Autrey (P.C.) to Baker for legal fees. Baker did pay Autrey $7,000 via two checks on June 1 and September 19, 1995. At some point, Autrey and Baker began to have an affair. By late October, Koehler and Autrey began having disagreements about the handling of the divorce, and, without Koehler’s knowledge, Autrey began negotiating with Kaufman, Mr. Baker’s attorney, concerning all aspects of the divorce. Koehler withdrew, and Mrs. Baker did eventually sign the divorce and custody agreement negotiated by Autrey. Asked by Autrey why she signed if she did not believe it was a fair and equitable settlement, Mrs. Baker answered:

[b]ecause I had had a sexual relationship with you and you told me I could not go to court because a jury would find out about it because I had been followed and indeed, I had been followed. My husband had a private investigator following me for two months and he knew about our relationship, so because of that, I had to sign and you had advised me that if I went to court, I would get nothing, because I had committed adultery with you and I wouldn’t get alimony and you said that I may possibly lose custody of my children. . . .

Only on November 6, 1995, after the settlement with her husband had been finalized, did Autrey (P.C.) and Mrs. Baker sign the Representation Agreement upon which the lien is premised. On November 16,1995, the day the Bakers’ divorce decree was finalized, Autrey hand-delivered to Mrs. Baker at her home a letter, including a bill, time sheets, and a demand for payment of $31,221.94, the amount included in the lien.

The trial court concluded that, according to testimony at the hearing as well as comparison of the respective bills presented by Koehler, Braver (CPA), and Autrey, “Autrey charged Baker in excess of the time actually spent on the matters the three of them together worked on in the case.” Further, the court found “conduct on the part of Autrey during his representation of [Baker] that persuaded the Court to call the debt into question. . . . There was also a social relationship between the parties aside from the divorce case.”

1. Autrey (P.C.)’s first enumeration is that the trial court erred in determining the merits because Baker, his former client, “never filed any defenses or defensive pleadings challenging the merits of the attorney fee liens.”

This claim was determined adversely to Autrey (P.C.) in D. Robert Autrey, Jr., P.C., supra at 396-397 (1). That holding is the law of the case and cannot be further contested by Autrey (P.C.). Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730 (514 SE2d 201) (1999); Dicks v. Zurich American Ins. Co., 231 Ga. App. 448 (499 SE2d 169) (1998).

Decided June 21, 2000.

D. Robert Autrey, Jr., for appellant.

Stephen E. Boswell, Philip S. Coe, for appellee.

2. The second and third enumerations are that the court erred in finding the lien invalid and void because there were differences in the amount actually owed and the amount of the claimed lien and that there was insufficient evidence to reach such a conclusion. They are addressed together.

There is more than enough evidence of record to support the trial court’s conclusion that the amount of the lien, as claimed, was disputed and had not been sufficiently proven for foreclosure. Despite Autrey (P.C.)’s argument to the contrary, such specific proof of amount is required in order to bring the claimant clearly within the law in order to foreclose on a lien. Shirah Contracting Co. v. Waite, 143 Ga. App. 355, 357 (1) (238 SE2d 728) (1977); Bowen v. Collins, 135 Ga. App. 221 (217 SE2d 193) (1975); Jackson’s Mill &c. Co. v. Holliday, 108 Ga. App. 663, 665 (5) (134 SE2d 563) (1963); see Ramsey v. Sumner, 211 Ga. App. 202, 205 (5) (438 SE2d 676) (1993); Esquire Carpet Mills v. Kennesaw Transp., 186 Ga. App. 367, 368 (1) (367 SE2d 569) (1988); Ga.-Pacific Corp. v. Dan Austin Properties, 126 Ga. App. 191 (190 SE2d 131) (1972).

Also, an additional impediment to Autrey’s recovery under the contract between his professional corporation and Baker’s Retainer Agreement exists. She and he, prior to the signing of the agreement, had engaged in an illicit and meretricious relationship which Baker contended adversely affected Autrey’s representation of her. Such conduct on the part of an attorney may present a client with a defense to a claim of attorney’s lien based on public policy. Brandon v. Newman, supra at 185 (1). Reading the trial court’s order as a whole, we conclude that this was an additional basis upon which the lien was found improper. There was evidence to support this conclusion also.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       For clarity, the professional corporation will be referred to as “Autrey (P.C.)” while the individual is referred to as “Autrey.”