text:
    A99A0692.
    WARD v. THE STATE.
    (519 SE2d 304)
   Barnes, Judge.

Stephen Anthony Ward appeals his conviction for burglary. He contends the evidence was insufficient to support his conviction and also contends the trial court erred by allowing the prosecution to place his character in issue. We find no error and affirm.

1. On appeal we view the evidence in the light most favorable to the verdict, and Ward no longer enjoys the presumption of innocence. Further, this Court determines the sufficiency of the evidence, but neither weighs the evidence nor judges the credibility of the witnesses. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

Viewed in the light most favorable to the verdict, the evidence shows that very early one morning a warehouse employee saw a car parked near the warehouse. When he went to investigate, he saw a man that he later identified as Ward leave the warehouse carrying a box, get in the car, and drive away with the lights off. The employee testified he “got a good look” at the driver of the car because it passed right by him in a well-lighted area. In court, he positively identified Ward as the man who drove the car.

The employee followed the car until he saw a police officer getting gas at a nearby filling station. He approached the police car, explained the situation to the policeman, and pointed out the car that had stopped for a nearby stoplight. When the car drove off, the officer followed.

The police officer testified that a man flagged him down, told him someone had broken into a storage building, and pointed out a car with Ward in it. According to the officer, this was the only car on the road. He testified further that he turned his police car around and followed the car without losing sight of it. At one intersection the driver stopped the car, entered the intersection, backed into the cross street, and stopped as if waiting for the traffic light to change. The officer testified he pulled up right next to the car, turned on his blue lights, and told the driver to get out of the car. The officer later identified Ward as the driver of the car. Ward responded, “I had a reason to be there.” When the traffic light turned green, Ward drove off. The police followed Ward until he entered a driveway, parked the car, and ran off with the motor still running. The officer attempted to catch Ward, but was unsuccessful.

When the officer returned to the car, he found a woman, later identified as Ward’s sister, standing by the car and asking what was going on with her car. The officer looked in the car and found a case of transmission fluid. Ward’s sister said the transmission fluid was not hers and also said that Ward had been using the car that night with her permission. When another officer reported that a case of transmission fluid was missing from the warehouse, the officer took the transmission fluid from the car.

Ward testified that he did not break into the warehouse and take the transmission fluid. Instead, he related that he left for San Antonio about 8:00 the night in question. Ward also testified that he earlier pleaded guilty to two other burglaries because he was guilty of those burglaries, but he pleaded not guilty in this case because he was innocent of this charge.

Based upon this evidence, we conclude that a rational trier of fact could have found Ward guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Ward contends in his second enumeration of error that the trial court erred by “allowing the State to argue the inference from similar transactions the defendant was a ‘career criminal,’ thus improperly placing the defendant’s character into evidence.” The transcript shows that this issue arises from a motion Ward made before closing argument in which he asked the trial court to instruct the prosecutor not to refer to Ward as a career criminal as the prosecutor had done in opening statement. The trial court denied the motion. Thereafter, the prosecutor did not refer to Ward as a “career criminal” in his closing argument and did not argue, based upon Ward’s earlier convictions, that he was a career criminal.

Review of the prosecutor’s closing argument shows that the prosecutor referred to Ward one time as a “career burglar” and argued another time that “[Ward] chose to be a burglar.” In the first instance the prosecutor’s argument was that Ward was “caught red-handed” this time like he had been caught before. In the second instance, the prosecutor’s argument was that while Ward should not be punished for his past, Ward’s past reflected his choice to be a burglar. Thus, in neither instance did the prosecutor argue that because of Ward’s prior convictions the jury could infer that he was a career criminal. Ward made no objection to these comments.

Although a party does not waive an error by failing to object to admission of evidence after a motion in limine is denied (Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 285-286 (1) (260 SE2d 20) (1979)), this rule cannot be invoked to preserve a different, if perhaps related, error. See Wilkins v. State, 220 Ga. App. 516, 517 (1) (469 SE2d 695) (1996). To allow such a procedure would deprive the trial court of the opportunity to consider the error alleged, and take corrective action, if necessary. Therefore, pretermitting whether the prosecution’s argument was improper, Ward failed to make a timely objection or invoke a ruling by the trial judge on whether the other argument made by the State was improper.

In these circumstances, we need not review this allegation. Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999). A defendant must object to alleged improprieties when they occur to allow the trial court the opportunity to take remedial action. Id. at 450. Failure to object generally results in a waiver of the right to urge the alleged impropriety on appeal, and in appeals of non-capital cases, the failure to object to the State’s closing argument waives an appellant’s right to assert the alleged impropriety of that argument on appeal. Id. at 451. Accordingly, Ward’s failure to object to the prosecutor’s argument precludes our consideration of this enumeration of error.

Decided June 11, 1999.

Brimberry, Kaplan & Brimberry, John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1003.
    McCOY et al. v. WINN DIXIE STORES, INC.
    (519 SE2d 689)
   Blackburn, Presiding Judge.

In this slip and fall action, Kenneth F. McCoy appeals the trial court’s grant of summary judgment to Winn Dixie Stores, Inc., contending that the trial court improperly presumed that he had knowledge of the puddle which caused his fall because he had walked across it moments earlier. For the reasons set forth below, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant [or denial] of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the record shows that McCoy delivered a truckload of flour to the Crackin’ Good Bakery, a subsidiary of Winn Dixie, in the early morning hours of June 23, 1993. Jimmie King, a bakery employee, informed McCoy that the flour intake pipe had to be set up, and that he would wave when things were ready. In order to see King’s signal, McCoy followed Williams inside the bakery into an open four-story room where flour and sugar silos were housed. McCoy testified that the lighting inside the room was dim and that the silos threw shadows across the walls. McCoy walked approximately 100 feet into the room, waited for Williams’ signal, and then turned to go out using approximately the same path by which he had entered. After taking a couple of steps, McCoy slipped and fell in a puddle of water, injuring his knee. McCoy deposed that he never saw the puddle prior to his fall.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Robinson v. Kroger Co., 268 Ga. 735, 749 (493 SE2d 403) (1997). In order to show that the plaintiff was negligent, a defendant must show “that the plaintiff intentionally and unreasonably exposed self [sic] to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Id. In slip-and-fall actions, summary judgment is appropriate only in plain, palpable, and undisputed cases. Id. at 748.

Winn Dixie does not dispute that it had knowledge of the puddle in which McCoy slipped prior to his fall, and it concedes that McCoy has satisfied prong one of the Robinson standard. Nevertheless, Winn Dixie contends that McCoy cannot satisfy prong two of the Robinson standard because he had previously traversed the puddle without incident just prior to his fall.

It has generally been held that

[w]hen a person has successfully negotiated an alleged dangerous condition on a previous occasion, that person is presumed to have knowledge of it and cannot recover for a subsequent injury resulting therefrom. In cases where this rule has been applied, however, the defect causing the fall invariably has been a static condition readily discernible to a person exercising reasonable care for his own safety.

(Citation and punctuation omitted.) Anderson v. Reynolds, 232 Ga. App. 868, 870 (502 SE2d 782) (1998) (plaintiff slipped on wet rocks and bricks beneath a water spigot).

In this case, the evidence does not support a finding on summary judgment that the puddle was or should have been readily discernible to McCoy prior to his fall. McCoy testified that he saw nothing on the floor, the lighting in the bakery was dim, and the silos of flour and sugar threw shadows across the interior of the building. McCoy’s testimony that he did not see the puddle prior to his fall under the conditions outlined above, would be sufficient to overcome any presumption of knowledge of the defect by McCoy and creates a fact issue for jury determination. In any event, a presumption relating to slip-and-fall plaintiffs who re-encounter static, readily discernible conditions has no application under the facts of this case.

Decided May 26, 1999

Reconsideration denied June 14, 1999 — Cert. applied for.

Lane & Jarriel, Walter J. Lane, Jr., Robert H. Malone III, for appellants.

Clyatt, Clyatt, Wallace & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

At its root, “the issue [in this case] is whether taking into account all the circumstances existing at the time and place of [McCoy’s] fall, [McCoy] exercised the prudence the ordinarily careful person would use in a like situation.” Robinson, supra at 735. Because the facts in this case are far from being plain, palpable, and undisputed, this issue is one a jury must resolve. Accordingly, the trial court erred in granting summary judgment to Winn Dixie based on this standard.

Judgment reversed.

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


author: Judge Harold R. Banke. Barnes, Judge,

text:
    A99A0023.
    DUCKWITZ v. MANOR.
    (519 SE2d 483)
   Judge Harold R. Banke.

Randall Duckwitz appeals a jury verdict rendered in favor of James C. Manor, Jr. In his sole enumeration of error, Duckwitz contends that the verdict was contrary to and against the weight of the evidence.

When viewed in a light most favorable to the verdict, the evidence showed that as James Manor approached an intersection, he slowed down, put on his left turn signal, and then came to a complete stop. See Kirkland v. Moore, 128 Ga. App. 34, 35 (195 SE2d 667) (1973). Although Manor tried to determine whether there was any on-coming traffic, the setting sun partially obscured his vision. When Manor believed it was safe to proceed, he did so and moved forward. As he slowly began to execute a left turn, Duckwitz’s bicycle struck his right front fender. Although Duckwitz braked, he was not able to stop in time. Duckwitz sought to impose strict liability upon Manor for failing to yield. The jury disagreed and found for Manor. Held:

Duckwitz appeals the denial of his motion for new trial, arguing the evidence plainly established that Manor was negligent per se in failing to yield the right of way, thereby establishing liability as a matter of law.

The fact that Manor’s vehicle and Duckwitz’s bicycle collided, without more, did not automatically translate into liability on the part of Manor because even a finding of negligence per se does not mean liability per se. See Keith v. Beard, 219 Ga. App. 190, 192 (1) (464 SE2d 633) (1995) (physical precedent only). Even where evidence indicates that a defendant’s actions were negligent per se, a jury must still resolve issues such as causation and the applicability of certain defenses. Herrin v. Beeches Neighborhood Grill & Bar, 235 Ga. App. 528, 533 (2) (509 SE2d 103) (1998).

A responding officer conducted an investigation at the scene. The officer testified that problems with visibility near sunset at this location were a daily occurrence. According to the officer, when he arrived just moments after the accident, “I couldn’t see ahead of me because the sun was so bright.”

By law, a plaintiff must use ordinary care to avoid the consequences of a defendant’s negligence when it is apparent or when in the exercise of ordinary care it should become apparent. Whatley v. Henry, 65 Ga. App. 668, 674 (6) (16 SE2d 214) (1941); see OCGA § 51-11-7 (doctrine of avoidable consequences).

It does not follow from the fact that a driver has the right-of-way at an intersection that he is thereby entitled to drive blindly or recklessly across the intersection, . . . without regard to the conditions and consequences. Even if the other driver ... is guilty of negligence per se or has otherwise failed to exercise ordinary care in approaching the intersection, this will not relieve the driver having the right-of-way of his own legal duty to exercise ordinary care under the facts and circumstances of the situation. It is his duty to exercise ordinary care, to remain alert in observing the vehicles approaching the crossing, and to exercise ordinary care to avoid a collision, after he sees or by ordinary diligence could have seen that one is threatened or imminent.

(Citations and punctuation omitted.) Stroud v. Woodruff, 183 Ga. App. 628, 629 (1) (359 SE2d 680) (1987).

Here, it was Duckwitz, not Manor, who had more familiarity with the angle of the sun on this particular road at sunset. Duckwitz conceded that he did not apply his brakes until after he noticed Manor turning in front of him and by then it was too late for him to stop. Duckwitz admitted that he saw Manor’s left turn signal blinking and incorrectly assumed that he would be able to bike through the intersection before Manor made his turn. Duckwitz also incorrectly assumed that Manor saw him. This evidence did not demand a finding of liability against Manor. See Porter v. Southern R. Co., 73 Ga. App. 718, 721 (1) (37 SE2d 831) (1946) (plaintiff must use ordinary care to avoid the consequences of a defendant’s negligence where reasonably possible). In these circumstances, the jury had to resolve who, if anyone, had been negligent. See Kirkland, 128 Ga. App. at 35-36; cf. Florence v. Knight, 217 Ga. App. 799, 800 (459 SE2d 436) (1995) (equal knowledge rule may preclude recovery notwithstanding a defendant’s negligent per se conduct). Similarly, it was up to the jury to decide whether Manor had been at fault and was liable for causing the accident. See Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 451 (224 SE2d 25) (1976) (issues of liability, lack of liability, diligence, negligence, and proximate cause, except in very rare instances, should be resolved by the jury and not by trial and appellate judges); Stroud, 183 Ga. App. at 629 (2) (whether appellant with right of way exercised due care approaching the intersection was for jury). Because there was some evidence to support the verdict, the denial of Duckwitz’s motion for new trial cannot be disturbed. Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993).

Judgment affirmed.

Blackburn, P. J., concurs. Barnes, J, concurs specially.

Barnes, Judge,

concurring specially.

I write separately because, although I reach the same result, I do not concur in the majority’s analysis. The defendant presented some evidence he was not negligent, which is sufficient to affirm the jury’s verdict. However, in order to affirm, it is only necessary to find that appellant’s one enumerated error is not valid grounds for reversing this case.

The majority’s opinion holds that Duckwitz failed to exercise ordinary care because he did not brake as soon as he saw Manor’s car approaching him with its left turn signal on. According to the majority, “Duckwitz admitted that he saw Manor’s left turn signal blinking and incorrectly assumed that he would be able to bike through the intersection before Manor made his turn.” The majority further holds that “it was Duckwitz, not Manor, who had more familiarity with the angle of the sun on this particular road at sunset,” even though Manor was facing the sun before the collision. We have held that “[o]ne who has the right-of-way may assume that others will obey the rules of the road absent some factual indicia that such is not the case.” (Emphasis supplied.) Cannon v. Street, 220 Ga. App. 212, 215 (3) (469 SE2d 343) (1996).

In Cannon, the defendant ran a red light and hit plaintiff’s car. The trial court granted summary judgment to the plaintiff as to liability, and the defendant argued on appeal that “plaintiff could have braked and prevented the collision altogether.” Id. at 214. We affirmed the partial summary judgment to plaintiff, holding that even if the plaintiff had seen the defendant coming, no evidence showed that plaintiff would have had any reason to anticipate that the defendant would fail to yield the right of way. Id. at 215. See Morgan v. Braasch, 214 Ga. App. 82, 85 (2) (446 SE2d 746) (1994).

Decided June 14, 1999.

Blackford & Blackford, Peter M. Blackford, Martin E. Valbuena, for appellant.

Downey & Cleveland, Richard A. Griggs, for appellee.

Stroud v. Woodruff, 183 Ga. App. 628, 629 (1) (359 SE2d 680) (1987), cited by the majority, is distinguishable. Evidence in that case showed that the defendant who had the right of way knew that he would not be able to see a car waiting to pull out of a side street, and that the driver of the car would not be able to see him. No such evidence exists in the case before us.

For these reasons, I do not concur in the analysis used by the majority but reach the same result.


author: Andrews, Judge.

text:
    A99A0392.
    SAVANNAH AIRPORT COMMISSION et al. v. HIGGERSON-BUCHANAN, INC.
    (519 SE2d 475)
   Andrews, Judge.

This case makes its second appearance here, having been previously before us after the trial court’s grant of summary judgment to Savannah Airport Commission, the Mayor, and the Alderman of the City of Savannah (referred to collectively as the Commission) in this construction contract dispute. Higgerson-Buchanan, Inc. v. Savannah Airport Comm. (Case No. A96A0007, issued April 16, 1996 and not officially reported).

That opinion set out the basic facts which will be supplemented here as necessary. As set out therein, the issue was whether Caffrey Construction Company (Caffrey), the grading subcontractor for Higgerson-Buchanan, Inc., the prime contractor on the airport project (contractor), was entitled to fully complete the clearing and grubbing work required by the contract and had been improperly prevented from doing so by the Commission or its representatives.

This Court concluded in that opinion that summary judgment was improperly awarded to the Commission and found that the contract between the contractor and the Commission

reveals clearly and without ambiguity that the area to be cleared or cleared and grubbed was initially depicted in the “limits” contained in the project “plans,” although payment was to be made upon the unit price per acre. Compare DeKalb County v. Beacon Industries, 187 Ga. App. 370 (370 SE2d 191) [(1988)]. Any subsequent modification of the area designated in the plans to be cleared or cleared and grubbed would be a form of alteration of work and quantities within the meaning of § 40-02 of the construction contract. Pursuant to § 40-02, [the Commission] “reserves and shall have the right to make such alterations in the work as may be necessary or desirable to complete the work originally intended in an acceptable manner.” (Emphasis supplied.) The “work originally intended,” within the meaning of § 40-02 refers to that of project completion, as the project was defined within the provisions of the contract and any documents incorporated by reference therein. And, as expressly provided in § 40-01, “the intent of the contract is to provide for construction and completion, in every detail, of the work described.” (Emphasis supplied.) Thus, it appears that [the Commission was] authorized by the terms of the contract to alter the quantity of clearing or clearing and grubbing to be done, provided such alteration was either necessary or desirable to complete the airport project in an acceptable manner. However, this authorization would not include the authority to alter the scope of the work merely to secure an economic advantage to the detriment of the prime contractor and his sub-contractors who had entered their contracts in good faith reliance upon the scope of the project as defined within the four corners of the project construction contract.

(Emphasis supplied.) Higgerson-Buchanan, Inc., supra, pp. 4-5.

On the state of the record at that time, this Court concluded that there remained issues of fact as to whether the Commission acted in bad faith in deleting 52.1 acres from the clearing and grubbing area included within the limits of the area specified in the project plans, and whether a change order, as provided by the contract, had been issued regarding this deletion.

1. The Commission contends that the trial court erred in granting summary judgment to the contractor after extensive additional discovery was engaged in and both parties had moved for summary judgment.

In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), and with our prior opinion as the law of the case, Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731 (514 SE2d 201) (1999); Dicks v. Zurich American Ins. Co., 231 Ga. App. 448 (499 SE2d 169) (1998), the evidence is that the contract unambiguously provided that the contractor was to clear or clear and grub within the limits shown on the project plans, including removal of brush and grass. While Greiner, the Commission’s engineer, had estimated that area to include 513 acres by using aerial photographs, no one from Greiner or the Commission had actually walked and measured the property shown within the clearing and grubbing limits. While the contract provided that the 513 acres was an estimate not binding on the Commission, this did not change the fact that the contractor was to complete clearing and grubbing of the acreage contained in the limits, absent an appropriate change order.

When Caffrey actually measured this area, it included 580 acres. Neither Clyde Martin, the Commission’s project manager for the airport project, nor Patrick Graham, the Executive Director of the Airport Commission, could dispute that the area actually contained 580 acres instead of the 513 estimated by Greiner. Both Martin and Graham concurred that nothing was deleted from the scope of the work to be completed and that the entire area included within the limits of the clearing and grubbing area was in fact being used by the airport and that some preparation work on it had been done by others during construction.

The bid documents required that a single unit price be bid for all types of clearing and grubbing, although the area actually included 75 acres of swampy land, 165 acres of heavily wooded land, 235 acres of lightly wooded land, and 105 acres of grasslands. The actual price to do each type of grubbing varied with the degree of difficulty and ranged from $2,250 per acre for the swampy areas to $100 for the grassland acres. At the time when Caffrey was ordered to stop work, all of the more difficult areas, where most of the costs of doing the entire project accrued, had been cleared and grubbed and Caffrey was beginning work on the grasslands areas. Since the bid was averaged to a single unit price, doing this work would have allowed Caffrey to reap the profit for the entire job. Caffrey was not allowed to do 52.1 acres, which would have been charged at the unit price of $1,635 per acre. The contractor was paid only for the 460.9 acres which it actually was permitted to clear or clear and grub.

Although the Commission argues valiantly that the 52.1 acres were not intended by the engineer and the Commission to be cleared and grubbed, that issue was resolved adversely to them by our prior decision in this case.

Approximately one year after Caffrey actually completed work on the 460.9 acres, the Commission issued Change Order 11 which deleted 52.1 acres from the 513 estimated acres. It was signed by Gaddy, the contractor’s project administrator, under protest based on the contractor’s previously submitted Request for Equitable Adjustment which sought an adjustment in the unit price based on the Commission’s refusal to allow Caffrey to work the 52.1 acres of grasslands.

The Commission contended below and the trial court agreed that the 52.1 acres, which is the difference in the 513 acres estimated and the 460.9 acres actually cleared and grubbed and paid for, was actually a “final determination of the quantities.” As concluded by the trial court, even though the document was titled “change order,” it was not a change order as contemplated by the contract documents. Instead, it was the Commission’s final adjustment of the quantities which the Commission’s engineer allowed the contractor to actually clear and grub. It did not remove the contested 52.1 acres from the limits within which the contractor was entitled to complete the clearing and grubbing work.

The Commission has failed to refute the contractor’s evidence that this was not a change order as provided by the contract and that the refusal to allow the contractor to complete the work was done for the purpose of giving the Commission an economic advantage to the detriment of the contractor. Therefore, we affirm the trial court’s finding of liability against the Commission.

2. The Commission also contends that the trial court erred in its computation of damages and we agree.

The trial court’s computation of damages is set out below:

The unit bid price submitted by the plaintiff consisted of four categories of work. It was the least expensive category of work that reflects compensation for the grassland area the plaintiff was denied the opportunity to clear. Inclusion of this category in the unit price calculation for the work actually allowed to be completed effectively reduces the amount of compensation for the work performed. With the grassland factored into the unit price, the price per acre totaled $1,635.00. With the grasslands removed from the unit price per acre, the unit price would have been $1,863.00. The difference between the two unit prices is $228.00 per acre. When this adjusted amount is factored into the 460 acres the plaintiff was allowed to clear and grub, the amount plaintiff was damaged totals $104,880.00.

Decided June 14, 1999.

Wiseman, Blackburn & Futrell, James B. Blackburn, Abda L. Quillian, for appellants.

Hunter, Maclean, Exley & Dunn, Christopher IE Phillips, Smith, Currie & Hancock, Glower IE Jones, for appellee.

In effect, the trial court has recomputed the unit price to be that which the contractor would have bid had the contract not contained the fourth grassland component.

Basically where the contract is wrongfully breached by the owner [,] the contractor is entitled to recover damages measured by his actual expenditure to the date of breach, less the value of the materials he has left on hand, plus the profit he would have realized in the event of complete performance, but in no event to exceed the contract price.

Crankshaw v. Stanley Homes, 131 Ga. App. 840, 842 (1) (207 SE2d 241) (1974). See generally PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 872 (257 SE2d 285) (1979); Dept. of Transp. v. Dalton Paving &c., 227 Ga. App. 207, 219 (6) (489 SE2d 329) (1997); Marathon Oil Co. v. Hollis, 167 Ga. App. 48, 50 (2) (305 SE2d 864) (1983).

There being no evidence in the record before us regarding the required proof and computation set out above, that portion of the judgment awarding damages is reversed and remanded for further proceedings. Dill v. Chastain, 234 Ga. App. 770 (507 SE2d 872) (1998).

Judgment affirmed in part and reversed in part.

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

       Higgerson-Buchanan, Inc. has a pass-through agreement with Caffrey Construction which requires that, upon recovery, Higgerson-Buchanan, Inc. will pay Caffrey the amount recovered for clearing and grubbing, minus five percent.

       The unit price consisted of Caffre/s bid price of $1,050 per acre plus the contractor’s mobilization costs for the entire project. Inclusion of mobilization costs in the first contract item to be paid out is standard in the construction industry when there is not a separate bid item for mobilization, as occurred here.


author: Smith, Judge.

text:
    A99A0771.
    JAMES v. THE STATE.
    (519 SE2d 478)
   Smith, Judge.

Sharrod D. James was indicted jointly with two co-defendants on the charge of trafficking in cocaine. He was tried by a jury, which found him guilty of the included offense of possession of cocaine. He appeals, contending in his sole enumeration of error that the trial court erred in admitting the alleged contraband and its wrappers because the State showed an insufficient chain of custody. We do not agree, and we affirm the judgment.

The evidence presented at trial showed that James was driving a car north on 1-95 in Bryan County with two friends, Jeffrey McMillan and Howard Delts, as passengers. He was stopped by Deputy Eddie Bashlor of the Bryan County Sheriff’s Department because he was not wearing a seatbelt and one of the car’s brake lights was out. Bashlor asked the three occupants to step out of the car and step back with another deputy. They did so, and all three occupants of the car gave Bashlor consent to search it.

Bashlor began his search on the passenger side of the front seat, where he found a package wrapped in duct tape under the seat, within arm’s length reach of the driver’s side. The package was between golf ball and tennis ball size. Bashlor attempted to pull it open, but was unsuccessful. He then cut it open, revealing dryer sheets under the duct tape, then a clear plastic layer containing white powder. Suspecting the powder was cocaine, Bashlor drew his weapon, ordered James and the passengers to the ground, and handcuffed them. He walked back to his patrol car to retrieve a field-test kit, and he noticed a second package wrapped in duct tape on the shoulder of the interstate near the back of his car. He took the test kit up to the front of his car and found a third similarly wrapped package lying in the grass at the front of his car. He placed all three packages on the hood of the patrol car and numbered them with a magic marker according to where they were found.

James argues there were significant inconsistencies in the testimony of the officers regarding the chain of custody. We find no such significant inconsistencies. Bashlor testified that he placed the three packages numbered one, two, and three, into an evidence bag and sealed the bag. Bashlor had field tested only the first package, which was discovered inside the car. He placed the sealed bag in his patrol car and locked the car. When he arrived back at the Sheriff’s Department, he turned the bag over to Chief Deputy McGowan to be placed in the evidence locker. He testified that he turned the packages over exactly as he found them at the scene, with the exception of the small cut on the first package that enabled him to field test the material. He testified that other than the small cut, he did not alter or replace any of the material seized.

In Bashlor’s presence, McGowan did a repeat field test of the first package and placed all three packages, still wrapped in duct tape, into another sealed bag. The evidence was then placed in the evidence room. The evidence custodian, Deputy Larry Jacobs, testified that he received the evidence from Bashlor and turned it over to the Tri-Circuit Drug Task Force approximately two days later. Jacobs testified that no one else had access to the evidence and he did not alter or tamper with it while it was in his possession.

Deputy Rick Rountree of the Bulloch County Sheriff’s Department testified that at the time in issue, he was an investigator for the Tri-Circuit Drug Task Force. He and Jacobs both testified that Rountree received the evidence from the hands of McGowan in the presence of Jacobs. McGowan and Rountree entered the evidence room with Jacobs, and McGowan picked up the bag and handed it to Rountree. Rountree testified that when he received the evidence, one duct tape wrapped package had been “partially opened and the other two were intact.” He signed the evidence receipt, secured the evidence in his car, and questioned the suspects. He then returned to his office in Claxton, where he separated the suspected cocaine from the packaging material, placing the packaging and the suspected cocaine in separate containers. He retained the packaging in the evidence room in Claxton until the morning of trial, when it was removed and brought to court. He field tested the suspected cocaine himself, placed it in another bag, and sealed the bag. He took that bag himself, sealed with his evidence tape, to the State Crime Lab and relinquished it to Patrick Long. He did not alter or tamper with the suspected cocaine. At trial, the bag was shown to Rountree and he testified that except for the markings presumably made by the State Crime Lab, it appeared unchanged.

Patrick Long, a forensic chemist for the Georgia Bureau of Investigation Division of Forensic Sciences, identified the markings on the bag as his own and testified he received the evidence from Rountree. He testified that the bag was essentially in the same condition at trial as it was when he received it. The evidence remained in his custody until retrieved for trial. He removed some material for analysis and resealed the bag.

It is true that Bashlor testified that he turned the evidence over to McGowan, while Jacobs, the evidence custodian, testified he received it from Bashlor. But this minor discrepancy in the testimony of the officers did not affect the sufficiency of the chain of custody, particularly since all the officers were present when the evidence was placed in the custody of the evidence custodian and all the officers who testified specifically denied any tampering or alteration. Such minor discrepancies go only to the weight of the evidence. Darden v. State, 212 Ga. App. 345, 346 (1) (441 SE2d 816) (1994).

Co-defendant McMillan admitted he, James, and Delts had purchased the cocaine together. James argues that McMillan testified that the amount purchased was more than was found in State’s Exhibit 2, the evidence bag containing the cocaine seized, suggesting that the package had been opened and tampered with. James is simply incorrect, however, about McMillan’s testimony. Long’s analysis showed that the material weighed 152.2 grams, tested positive for cocaine, and the portion tested had a purity of 87 percent. The record shows that McMillan admitted the three friends had bought six and one-half ounces of cocaine. When informed that the package contained 152.2 grams, he testified “Well, that’s all of it, then.”

Decided June 14, 1999.

George A. Waters, for appellant.

J. Thomas Durden, Jr., District Attorney, Henry P. Smith, Assistant District Attorney, for appellee.

When the State seeks to introduce evidence that is fungible in nature, the only showing required is a reasonable certainty that the evidence is the same as that seized and that no tampering or substitution has taken place. Sartin v. State, 203 Ga. App. 293, 295 (2) (b) (416 SE2d 572) (1992). The evidence presented satisfied the State’s burden. Contrary to James’s argument, the fact that McGowan did not testify at trial did not, without more, make the cocaine or the testimony relating to it inadmissible. Id. “There being, at most, bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence.” (Citation and punctuation omitted.) Sartin, supra.

Judgment affirmed.

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

       James told Bashlor that McMillan owned the car, but McMillan said it was owned by his “old lady.”


text:
    A99A0900.
    YOUNG v. THE STATE.
    (519 SE2d 481)
   Blackburn, Presiding Judge.

David Young, Jr., appeals his conviction, following a jury trial, for aggravated assault contending that: (1) the evidence was insufficient to support the verdict because the State failed to prove beyond a reasonable doubt that Young was not justified in shooting Hershel Carter in the back with a .22 caliber pistol; (2) the trial court’s charge that an aggressor is not justified in using force was contrary to the evidence; and (3) the trial court erred by failing to instruct the jury that it must find beyond a reasonable doubt that Young’s actions were unjustified with its instruction that it was authorized to convict Young if it found beyond a reasonable doubt that Young made an assault upon Carter. For the reasons set forth below, we affirm.

This court as a reviewing court must not necessarily pass on the weight of the evidence, but on the sufficiency of the evidence to support the verdict. On appeal of a conviction based on a jury verdict we should examine the evidence in a light most favorable to support that verdict. We resolve all conflicts in favor of the verdict. It is the duty of this Court to sustain the verdict if we should find when viewing the evidence in a light most favorable to the verdict that a rational trier of fact could find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Reid v. State, 232 Ga. App. 313, 315 (2) (501 SE2d 842) (1998); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The evidence, viewed in favor of the verdict, revealed that Young confronted Hershel Carter because Young thought Carter owed him some money. A verbal argument ensued between Young, Carter, and one of Carter’s friends. The verbal argument turned physical when Young and Carter exchanged shoves. Carter began to run away, and Young shot him in the back.

1. Young contends that the State failed to prove that Young was not justified in shooting Carter in the back. “When a defendant presents evidence that he was justified in using deadly force, the burden is on the State to disprove the defense beyond a reasonable doubt.” Andrews v. State, 267 Ga. 473, 474 (1) (480 SE2d 29) (1997).

“[A] person is justified in using force which is intended or likely to cause . . . great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself.” OCGA § 16-3-21 (a). “Whether or not the circumstances of the case are such that they would excite the fears of a reasonable man to the point that he felt it necessary to use deadly force is a question for the jury.” Young v. State, 229 Ga. App. 497, 499 (494 SE2d 226) (1997).

The evidence amply supports the jury’s determination that the shooting was not justified. Although Young claimed that he believed that Carter was reaching for a gun, Carter and two eyewitnesses testified that Carter did not reach for a gun, and, in fact, was not armed. Moreover, the testimony showed that Carter was running away from Young at the time Young gunned Carter down. Therefore, both the testimonial evidence of the eyewitnesses and the physical evidence of the bullet hole in Carter’s back provide a sufficient basis for a rational trier of fact to find beyond a reasonable doubt that Young was not justified in shooting Carter. See Jackson v. Virginia, supra.

2. In two enumerations of error, Young contends the trial court erred in charging the jury that: (1) “a person is not justified in using force ... if that person is the aggressor,” and (2) the jury was authorized to convict him if it found beyond a reasonable doubt that he “made an assault upon Hershel Carter with a .22 caliber handgun by shooting him.” Young claims respectively that: (1) the aggressor charge was not adjusted to the evidence and, therefore, harmful as a matter of law; and (2) without reminding the jury that it must find Young’s actions were unjustified beyond a reasonable doubt, the assault charge was improper.

The record shows that Young’s counsel neither objected nor reserved objections to the charge of the court when expressly asked by the trial judge.

The general rule in this state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. If, however, the trial court asks if there are objections to the charge, defense counsel must either state his objections or reserve the right to object on motion for new trial or on appeal. Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.

(Citations omitted.) Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982).

Nevertheless, Young argues that, although his trial counsel failed to preserve the alleged erroneous charges either by express objection or by reservation, the error was preserved as a matter of law. “[T]he appellate courts shall consider and review erroneous charges where there has been a substantial error in the charge which was harmful as a matter of law, regardless of whether objection was made hereunder or not.” OCGA § 5-5-24 (c).

Carter and the two eyewitnesses testified that Young shoved Carter causing him to fall against a car. This testimony established a clear factual issue allowing the jury to find that Young was in fact the aggressor when the argument turned from verbal to physical. Furthermore, in reviewing the entire charge in context, we find that the jury was adequately instructed on justification thereby affording it ample opportunity to properly consider the defense. Boyd v. United States, 271 U. S. 104, 107 (46 SC 442, 70 LE 857) (1926). Since the charges were not erroneous, they could not have been harmful as a matter of law as contended.

As we find no error in the trial court’s charge, Young’s final two enumerations of error are without merit.

Judgment affirmed.

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

Decided June 14, 1999.

Dwight J. Stewart, for appellant.

J Thomas Durden, Jr., District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A99A1017.
    SMITH v. THE STATE.
    (519 SE2d 474)
   Judge Harold R. Banke.

Traci Smith was charged with possession of cocaine and marijuana. After the trial court denied his motion to suppress, he was convicted of cocaine possession based on stipulated facts presented at a bench trial. In this appeal, he contends that the cocaine was seized pursuant to a search warrant unsupported by probable cause.

The evidence introduced at the hearing on the motion to suppress showed that a housing project known as Lyman Homes was under surveillance by the Marietta Police Department because of numerous complaints of illegal drug sales. The area is also notorious for open-air drug activity, i.e., drive-by sales. During their surveillance, officers observed a known drug seller make numerous, apparent drug sales to passing motorists. During the course of these transactions, the subject repeatedly entered and exited Apartment 3 of the 371 Hunt Street Building. Smith and his sister resided therein.

After another convicted drug user was seen going to and from this apartment, an undercover officer drove his vehicle into the area, approached a suspected dealer near the apartment, and asked for $20 worth of crack cocaine. The suspected dealer thereupon went into the apartment but departed quickly. He then gave an undetermined amount of crack cocaine to another known user, who in turn handed it to the officer in exchange for the money. Based on the foregoing information, the police obtained a warrant to search the apartment the next day. Marijuana and cocaine were found in the apartment during execution of the warrant. Held:

In determining whether to issue a search warrant, “the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . concluding]’ that probable cause existed.” (Cits.) [Cit.]

Decided June 14, 1999.

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, Ann B. Harris, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

McKenzie v. State, 208 Ga. App. 683, 685 (2) (431 SE2d 715) (1993).

In arguing that probable cause for issuance of the warrant was lacking here, Smith relies on a line of cases represented by State v. Porter, 167 Ga. App. 293 (306 SE2d 377) (1983). These decisions hold that observations of drug traffic patterns raise at most a mere suspicion of drugs being sold and falls short of information upon which probable cause for issuance of a search warrant must be based. See State v. Brown, 186 Ga. App. 155, 158 (3) (366 SE2d 816) (1988) (physical precedent only).

But here there was more than mere observations of suspicious activity. The police surveillance culminated in an actual purchase of cocaine by an undercover officer from an individual who, like the ones before him, appeared to retrieve the drug from Smith’s apartment. At a minimum, the information provided to the magistrate issuing the warrant provided a substantial basis for concluding that the apartment had been used as a storehouse for the cocaine sold to the undercover officer. See Atkins v. State, 211 Ga. App. 712, 714 (440 SE2d 476) (1994); Hamilton v. State, 210 Ga. App. 496, 497-498 (1) (436 SE2d 500) (1993); McKenzie v. State, supra; Borders v. State, 173 Ga. App. 110, 112-113 (1) (325 SE2d 626) (1984). The court did not err in denying the motion to suppress.

Judgment affirmed.

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


text:
    A99A0941.
    JACKSON v. THE STATE.
    (520 SE2d 11)
   Judge Harold R. Banke.

James Jackson pled guilty to shoplifting. During sentencing, the State introduced sixteen prior convictions, nine of which were guilty pleas for shoplifting. Prior to the hearing, Jackson and his attorney had reviewed the State’s ten exhibits evidencing the convictions. Jackson objected only to the rape and armed robbery charges, of which he had been acquitted. The State conceded the point. Explaining that a six-year sentence imposed in 1992 for a prior shoplifting plea apparently had not worked, the court sentenced him to seven years.

Two and a half months later, Jackson moved to- withdraw his guilty plea and separately moved to amend his sentence. At the hearing on the motions he contended that the rape and armed robbery charges had been used against him and that four of the exhibits evidencing the guilty pleas had not included documents showing the voluntariness of the guilty pleas. The court denied both motions, which he appeals. Held:

1. Whether to allow a defendant to withdraw a guilty plea lies within the discretion of the trial court. Palmer v. State, 233 Ga. App. 779, 780 (505 SE2d 527) (1998). After imposition of the sentence, a court may allow a withdrawal only to correct a manifest injustice. Id.

(a) Jackson’s contention that rape and armed robbery convictions were considered in sentencing is without support in the record. To the contrary, the State conceded that he was not convicted of the charges, and the State’s documents submitted to the court reflected acquittals of same. The court indicated it understood the charges were not to be considered and expressly rested its sentence on the failure of the 1992 shoplifting sentence to rehabilitate Jackson. Where the record indicates the judge did not rely on the challenged evidence in imposing the sentence, no injustice is manifest. Thomas v. State, 218 Ga. App. 455, 456 (2) (462 SE2d 166) (1995); Hughes v. State, 161 Ga. App. 824, 825 (6) (288 SE2d 916) (1982); compare Manker v. State, 223 Ga. App. 3, 6 (5) (476 SE2d 785) (1996) (sentencing transcript clearly showed judge relied on defective plea).

(b) Regarding the guilty pleas that were not affirmatively shown to be voluntary, Jackson’s failure to object to this evidence at the sentencing hearing waived the issue. Bright v. State, 265 Ga. 265, 285-286 (20) (455 SE2d 37) (1995); Spencer v. State, 260 Ga. 640, 649 (10) (b) (398 SE2d 179) (1990). Unless the defendant raises the issue at or prior to trial or sentencing, the State is not required to prove the voluntariness of prior guilty pleas. Fulton v. State, 232 Ga. App. 898, 901-902 (6) (503 SE2d 54) (1998). Raising the issue in a motion for new trial is too late. Id.

Even if the matter were not waived, the record is clear that the court relied on the 1992 shoplifting guilty plea to determine the sentence, which guilty plea Jackson does not challenge. Indeed, the State’s evidence affirmatively demonstrated this plea to be voluntary. No injustice is manifest. See Thomas, supra, 218 Ga. App. at 456 (2); Hughes, supra, 161 Ga. App. at 825 (6).

2. Whether to grant a motion to amend sentence also lies within the discretion of the trial court. Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998). So long as the sentence imposed is within the statutory limits, we will not disturb it. Id. But Jackson does not contend the sentence falls outside the statutory limits. Cf. OCGA § 16-8-14 (b) (1) (C). He simply repeats the arguments rejected in Division 1. Accordingly, we discern no error.

Decided June 15, 1999.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Patricia P. Stone, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A99A0697.
    WASHINGTON v. THE STATE.
    (519 SE2d 234)
   Judge Harold R. Banke.

LeBarron Washington was convicted of selling cocaine and sentenced to a life term. Washington appeals.

The evidence showed that while Agent David Gordon was working undercover in an area of known drug activity, Washington approached him to effectuate a drug deal. After negotiating the sale, they walked together to the end of a shopping center where Washington showed the agent four pink small ziplock baggies each containing a rock of crack cocaine. When Washington informed Gordon that the price was $80 for two, Gordon kept one baggie and returned the other to him. At a signal from Gordon, uniformed officers began to pursue Washington whom they apprehended moments later inside a laundromat. Serial numbers on the two $20 bills discovered during a custodial search of Washington matched the numbers recorded by Gordon prior to the sale. At another location, Gordon identified Washington as the person who sold him the cocaine. Held:

1. In two enumerations of error, Washington contends that the verdict was contrary to the law and the evidence.

On appeal, the evidence must be viewed in a light most favorable to the verdict and Washington no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence showed that Washington made a direct hand-to-hand sale of $40 worth of crack cocaine to an undercover agent who later identified him. The serial numbers on the money were the ones previously recorded by the agent. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to support Washington’s conviction for selling cocaine.

2. Offering four grounds, Washington contends that he was denied a fair trial because he received ineffective assistance of counsel.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an ineffectiveness claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). Moreover, a defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. Ross v. State, 231 Ga. App. 793, 795 (1) (499 SE2d 642) (1998).

(a) Washington asserts that his counsel’s failure to request the recordation of voir dire constituted ineffectiveness.

Transcription of voir dire is not mandatory in non-capital felony cases. Primas v. State, 231 Ga. App. 861, 862-863 (2) (501 SE2d 28) (1998). Moreover, Washington has not established any particular error that would have been disclosed had voir dire been transcribed. Lindo v. State, 218 Ga. App. 756, 758 (2) (463 SE2d 148) (1995). Washington’s failure to demonstrate harm stemming from the absence of a transcript is fatal to this claim. Williams v. State, 265 Ga. 681, 683 (3) (461 SE2d 530) (1995).

(b) Washington contends that his counsel was ineffective for not choosing to submit a motion pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Because Washington failed to supplement the record pursuant to OCGA § 5-6-41 (f) or to obtain sufficient stipulation pursuant to OCGA § 5-6-41 (i), he has not carried his burden to prove the existence of a Batson issue. Love v. State, 205 Ga. App. 27-28 (1) (421 SE2d 125) (1992); see Sharp v. Fagan, 215 Ga. App. 44-45 (1) (449 SE2d 648) (1994).

(c) Washington asserts that his counsel was ineffective for not challenging the undercover agent’s identification since his main defense was misidentification. Washington’s argument is belied by the unexplained presence of the marked bills on his person. Nor did Washington establish that the outcome of this trial would have been different had his counsel contested the agent’s identification. Maddox v. State, 218 Ga. App. 320, 324 (2) (461 SE2d 286) (1995).

(d) Washington contends that his counsel was ineffective for advising him not to testify. He asserts that he received flawed advice that if he were to testify, then the prosecution would inject his criminal history into the case. But, his trial counsel contradicted this claim and testified that he carefully explained to Washington that he did not have to testify, but that if he did take the stand, he would need to be careful to avoid placing his character in issue.

The decision to testify on one’s own behalf lies in the exclusive province of a defendant after full consultation with an attorney. Reid v. State, 235 Ga. 378, 379 (1) (219 SE2d 740) (1975). Here, such a consultation occurred. In view of the strong presumption that his counsel properly advised him, we cannot say the trial court’s finding that Washington was not denied effective assistance of counsel was clearly erroneous. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996); Ross, 231 Ga. App. at 795.

Decided May 28, 1999

Reconsideration dismissed June 16, 1999.

Robert A. Maxwell, for appellant.

Patrick H. Head, District Attorney, Nancy I. Jordan, Debra H. Bernes, Forrest K. Shealy, Assistant District Attorneys, for appellee.

3. Although Washington contends that the Chief Judge of the Magistrate Court of Cobb County who presided over his trial lacked the authority to do so, he waived this issue by waiting until after his trial concluded to raise the issue. Kittler v. State, 234 Ga. App. 120 (506 SE2d 231) (1998); compare Hicks v. State, 231 Ga. App. 552, 553 (1) (499 SE2d 341) (1998).

4. Washington contends that the court erred in sentencing him to a life term under OCGA § 16-13-30 (d) because the State failed to give him written notice of its intent to seek the imposition of a life term.

Where a life sentence is sought to be imposed under OCGA § 16-13-30 (d), the State must notify a defendant of any conviction that it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2 (a). Armstrong v. State, 264 Ga. 237, 238 (442 SE2d 759) (1994). But neither OCGA § 17-10-2 (a) nor § 16-13-30 (d) requires the State to give such notice in writing. Rather, under OCGA § 17-10-2 (a), the State must provide “clear notice.” Powell v. State, 229 Ga. App. 52, 53 (1) (494 SE2d 200) (1997); Jordan v. State, 217 Ga. App. 420, 422-423 (3) (457 SE2d 692) (1995). Written notice that the State intends to present evidence of prior convictions coupled with oral notice that the State intends to seek a life sentence satisfies the notice requirement. Kendrick v. State, 224 Ga. App. 72, 75 (8) (479 SE2d 464) (1996); Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992). The record establishes that such dual notice was given to Washington here. Moreover, due to Washington’s failure to object to the admission of the prior convictions during sentencing, the alleged error was waived. Armstrong, 264 Ga. at 239 (3); Hatcher v. State, 224 Ga. App. 747, 750 (2) (b) (482 SE2d 443) (1997).

Judgment affirmed.

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


text:
    A99A0613.
    SNYDER v. THE STATE.
    (519 SE2d 509)
   Smith, Judge.

Frederick Snyder was convicted of one count of burglary. His motion for new trial was denied, and he appeals. Snyder contends that his in-custody statement was not voluntarily given, that certain portions of his statement were erroneously admitted, and that without his statement, the State presented insufficient evidence of his guilt. Although we agree with Snyder that the entirety of his statement was not admissible, we conclude that any. error was harmless given the overwhelming evidence of his guilt. We consequently affirm.

Construed in support of the jury’s verdict, evidence was presented that the custodian of the First United Methodist Church of Brunswick discovered, when he reported for work between 6:30 a.m. and 7:30 a.m. on November 12, 1996, that someone had broken into the church. He saw that a window in a door had been broken, a soft drink machine had been broken into, and "several door knobs [had been broken] off the doors” inside the church. He found a hammer belonging to the church in an area near the drink machine and pliers and a screwdriver in the ladies’ bathroom. He identified at trial the coin box from the drink machine. The coin box was found inside the ladies’ bathroom. The church secretary testified that between $60 and $65 was taken from the drink machine.

Officer James Jordan of the Brunswick Police Department testified that while on patrol at about 4:35 a.m. that same morning, he saw a man he identified at trial as Snyder walking toward him near the church parking lot. Jordan followed Snyder as he walked a few blocks and became concerned for Snyder’s safety because he was walking toward “a rough area.” Jordan pulled up to Snyder and asked where he was going. Snyder replied that he was “heading out to the interstate to try to catch a ride” to Savannah. He told Jordan that he rode with truck drivers and helped them unload trucks, and that he had ridden into town with a container truck driver. Jordan took Snyder to the interstate, allowing him to ride in the front seat of his patrol car, and met a county police officer who took Snyder to a truck stop. At approximately 6:42 a.m., after he dropped off Snyder, Jordan responded to a call concerning the burglary at the First United Methodist Church and saw that a window pane had been broken out of a doorway leading into the church. He also found a bag of potato chips and an open box of cookies in the kitchen of the church and another at the top of a set of stairs and, just outside the door of the church, a cigarette pack and a partial butt of a cigarette. In the ladies’ bathroom he observed the pliers and coin box found earlier by the custodian; he also saw coin wrappers in the trash can. He identified a photograph depicting a room having a door with a “money sign” on it and testified that “someone had rummaged through the room.”

Jordan then contacted Officer Lowe of the Glynn County Police Department, telling him that he had “dropped a guy off to one of our county officers . . . and that he needed him back.” Lowe found Snyder at a nearby truck stop based on a description given by Jordan. He asked Snyder whether the police gave him a ride, and Snyder responded affirmatively. Snyder agreed to return to the city police station with Lowe, after Lowe told Snyder that “they wanted to talk.”

When Snyder arrived at the Brunswick Police Department, he was interviewed by Officer David Seawell. A pat-down search prior to the interview revealed a $10 package of rolled coins inside his coat pocket and a partial pack of Monarch cigarettes inside his shirt pocket. With respect to the rolled coins, Snyder spontaneously blurted out, “I found that.” Seawell read Snyder his Miranda rights and began the interview. Snyder first denied breaking into the church. Seawell testified that he “then gave him a way out by saying perhaps you didn’t know it was a church and you broke in it.” Snyder again denied that he committed the crime. According to Seawell, however, they “talked further and the conversation led to him admitting to me that he was a burglar. He told me that his whole criminal life consisted of numerous burglaries.” The conversation continued as Seawell stressed the fact that because Snyder was from out of town, “perhaps he didn’t know it was a church.”

Snyder then admitted that he broke into the building without realizing it was a church. He told Seawell that he had been sitting in the breezeway area, was cold, and had smoked his last Monarch cigarette; he “decided to break in to get some money so he could move on to the next town.” He also stated to Seawell that his lifestyle involved “traveling from one place to another, whenever he needs money, he breaks in to a place.” Snyder admitted he used a section of pipe to break into the window of a door. He also admitted breaking into the drink machine, taking the machine’s coin box to a bathroom and emptying it onto a towel on the counter top, and rolling the coins he took from the box. Seawell testified that after Snyder gave his statement, Snyder called Officer Jordan on the telephone and told him “that he was sorry for what he had done.”

1. Snyder first contends that his statement was not voluntarily given. During a hearing held before trial, Seawell testified that he read Snyder’s Miranda rights to him and that Snyder signed a waiver of rights form and understood the English language. According to Seawell, Snyder did not request the assistance of an attorney, did not appear to be under the influence of drugs or alcohol, and was not threatened nor promised leniency. Snyder then made a statement initially denying involvement in the burglary but later admitting that he needed something to smoke and that he broke into the church and into a drink machine and took money from the machine. He also told Seawell that he opened potato chip and cookie packages. Finally, Snyder stated to Seawell that he had recently been released from prison in Florida for burglary and had “done a lot of burglaries in the past.” Snyder did not testify or offer any evidence rebutting this testimony. After finding that the statement was freely and voluntarily made, the trial court initially ruled that Snyder’s entire statement was admissible but later modified the ruling to exclude evidence that Snyder had been recently released from prison. The trial court did, however, permit the State to elicit testimony that Snyder “admitted that he was a burglar; that his whole criminal life consisted of numerous burglaries.”

We cannot agree with Snyder’s contention that his statement was not voluntarily given. Evidence was presented that he appeared to understand the English language, that he signed a waiver of rights form, that he was not coerced into making the statement, and that he was not under the influence of drugs or alcohol when he made the statement. Ample evidence existed authorizing the trial court to find that Snyder freely and voluntarily made his statement. See Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733) (1992); see Billings v. State, 212 Ga. App. 125, 127 (2) (441 SE2d 262) (1994).

2. We do agree with Snyder, however, that portions of his statement concerning his “criminal life” as a burglar were inadmissible.

It is the general rule that if evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue. It is an equally well-recognized general rule that what is forbidden is the introduction by the state in the first instance of evidence whose sole relevance to the crime charged is that it tends to show that the defendant has bad character.

(Citations, punctuation and emphasis omitted.) Robinson v. State, 192 Ga. App. 32, 33 (383 SE2d 593) (1989). Snyder’s statement that he “breaks into a place whenever he needs money” may have had some very marginal relevance to show his motive or intent in breaking into the church and may be considered “an integral part of a criminal confession.” See Dampier v. State, 245 Ga. 427, 433-434 (10) (265 SE2d 565) (1980). But we cannot say that other references to Snyder’s past burglaries at unknown places and on unknown dates were relevant to any issue in this trial. These references “had nothing whatsoever to do with the conduct for which he was on trial.” Robinson, supra at 34. Instead, the only possible relevance the confession concerning generalized prior burglaries could have served “was an impermissible one, i.e., to impugn the appellant’s character before the jury by showing that he was generally prone to criminal conduct.” (Citation and punctuation omitted.) Id.

Decided June 16, 1999.

Patrick C. Kaufman, for appellant.

Stephen D. Kelley, District Attorney, Gregory C. Perry, Assistant District Attorney, for appellee.

Although we have concluded that portions of Snyder’s statement were erroneously admitted, this does not end our inquiry, for harm as well as error must be shown to warrant reversal of a criminal conviction. Here, Snyder’s statement that he broke into the church and took church property was properly admitted. Given this evidence, in addition to the other admissible evidence presented by the State at trial, we conclude that the evidence against Snyder was overwhelming, and we cannot say that any error in admitting Snyder’s statement in nearly its entirety contributed to the jury’s verdict. Consequently, the error was harmless. See Willis v. State, 199 Ga. App. 658, 659-660 (2) (405 SE2d 739) (1991); Florence v. State, 162 Ga. App. 830, 832 (1) (292 SE2d 923) (1982).

Judgment affirmed.

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


text:
    A99A0687.
    COPPOLLA v. THE STATE.
    (519 SE2d 494)
   Smith, Judge.

Anthony Brian Coppolla was indicted along with codefendants Andrew Licausi and Reece Scotty Payne on one count each of burglary, aggravated assault, armed robbery, violation of the Georgia Controlled Substances Act, and possession of a firearm during the commission of a crime. Coppolla and Licausi were also indicted on one count each of possession of a firearm by a convicted felon. Coppolla was tried alone and was convicted on all charges, with the exception of the drug charge. His motion for new trial, as amended, was denied, and he appeals. We find no .reversible error, and we affirm.

Construed to uphold the jury’s verdict, evidence was presented that on October 8, 1996, the victim was visiting his next-door-neighbor when Coppolla knocked at the neighbor’s door and asked if the victim was present. The victim walked over to his own trailer with Coppolla, and after they entered the victim’s living room, he saw that Coppolla was carrying a gun on a strap. Coppolla asked, in a sarcastic tone, ‘You got my money, b — ?” The victim, who owed Coppolla $200, explained that he did not have the money, and Coppolla responded, “Well, I’m going to take your s — .” The victim testified that Coppolla pointed the gun at his head. While Coppolla held the gun and stayed inside with the victim, three other men began taking items from the home to a car outside. These items included compact discs, a television, a stereo, four stereo speakers, a telephone, a caller identification machine, a jacket, and a video game system.

Meanwhile, the neighbor whom the victim had been visiting looked out of her window after she heard “banging” outside and saw someone standing on the victim’s porch. She also saw Coppolla standing in the living room while the victim sat on the couch. At the time, she believed Coppolla was carrying a night stick, but after Coppolla walked outside, she realized he had a gun when he raised it up, pointing it at the victim, as if “to show [the victim] that he didn’t need to go” anywhere. The men inside the trailer, with the exception of the victim, left in two cars. The police were called by this neighbor and arrived a short time after the men left the victim’s home.

Police officers immediately began searching for the two vehicles as described by witnesses at the scene: a “gray and primer Z24 Chevrolet Cavalier” and a blue Toyota Célica. One officer observed the Chevrolet but lost sight of it; however, another officer, James Koury, did stop the Célica. Koury identified Coppolla as one of three individuals inside the car. He searched Coppolla and found a television remote control. A search of the car by other officers revealed a mag light, handcuffs, a television, and stereo speakers. A gun was found outside the passenger side door on the ground. The officer who found it stated that as he “opened the window, it just dropped on the ground.” He described it as a “Mach 11,” equipped with laser sights. The officer who transported the three suspects to jail testified that the men sat in the back seat of his patrol car, while he drove, and he noticed “a lot of movement, a lot of fumbling around going on in the back.” After the suspects exited the car at the jail, this officer “pulled up the back seat” and discovered a vial containing a substance later identified at trial as cocaine.

The State also presented the testimony of William Williams, who stated that he and two friends, Scotty Payne and Andrew “Drew” Licuasi, went to an apartment, where they met Coppolla on October 8, 1996. Coppolla asked them if they wanted to help him “move” a stereo. They drove in two separate cars to a trailer park. Payne drove a Toyota Célica, with Williams and an individual named Charles Page as passengers, and Coppolla and Licausi were in a primer gray Chevrolet Cavalier. Williams testified that Coppolla and Licausi walked inside one of the trailers and returned, saying that “he wasn’t there.” They went next door, returned with another man, and walked back inside the trailer. At Coppolla’s request, Williams walked onto the porch, and he testified that Coppolla “told me if I ran that he was going to shoot me.” Williams saw a man sitting on the couch inside, crying. He also saw Coppolla holding a gun that looked like a machine gun, with a flashlight taped to it. Coppolla told him “to start loading this stuff up in the car. . . . Drew was putting it on the porch, and I was loading it in the car.” He stated that after the cars were loaded, he left the scene. Coppolla had given him the keys to the Cavalier and told him and Page to leave.

Payne also testified. He stated he believed he and his friends were going to help Coppolla move a stereo. According to Payne, who sat inside his car, soon after Coppolla and Licausi walked into the trailer with the victim, Williams and Page began carrying stereo equipment and other items from the trailer. While carrying these items from the trailer, Williams appeared frightened and told him “that Tony was robbing this . . . person.” Payne stated that after all items were loaded, Williams and Page left the scene in Coppolla’s car, and about ten minutes later, he, Licausi, and Coppolla left in his Célica. A short time later, he noticed a police car behind him, and he stated that Coppolla “was wanting to take apart the gun and get the bullets out of the gun” and throw it out the door. The car was then stopped by the police.

1. Coppolla first contends that his character was erroneously placed into evidence during the prosecutor’s closing argument and that the trial court erroneously failed to give curative instructions or grant a mistrial.

The victim testified at trial concerning a conversation he had with Coppolla. He said that while the robbery was occurring, he “was being sarcastic” and asked, “Hey, you got a line?” According to the victim, Coppolla then “threw five dollars” and told the victim, “Go, buy you one.” The State then moved to prevent Coppolla from eliciting any testimony from the victim concerning the victim’s past drug usage. The trial court ruled that Coppolla’s counsel could question the victim concerning his general knowledge about drugs, such as his knowledge as to the meaning of “a line” but ruled that counsel could not go into the victim’s past usage of drugs.

During closing argument, the prosecutor commented on the victim’s testimony that he asked Coppolla for “a line.” The prosecutor stated:

An interesting thing . . . [the victim’s] statement about “you got a line I can do,” will pretty much have you infer that it’s obvious that [the victim] does drugs, uses cocaine. Well, I’ll tell you what. If somebody said, “Do you have a line I can do,” I wouldn’t put out a five-dollar bill and tell them “Go get yourself one.” I have no idea what a line of cocaine would cost. But the Defendant didn’t hesitate. So what does that tell you about the Defendant and his knowledge of drugs and the price of drugs?

Coppolla objected and moved for mistrial or curative instructions, arguing that the prosecutor had placed his character into evidence as a result of these comments. The trial court stated to the prosecutor, “You are awful close to putting his character in issue,” and the prosecutor replied, “That’s as far as I intended to go, Your Honor, and just draw the same inference that the defense wants them to draw about the victim.” The prosecutor also pointed out that Coppolla was charged with violation of the Georgia Controlled Substances Act for possession of cocaine and that cocaine had been found “where he was present.” The trial court stated, “Just be careful. I’m not going to call the jury’s attention to it any more than it already has.”

Coppolla argues that the prosecutor impermissibly placed his character into evidence and that “[i]t is blatantly unfair to allow the prosecution to hide the drug use of its witness from the jury, and then make references to inadmissible drug use evidence concerning the defendant.” He further contends the trial court was duty bound to either grant a mistrial or give curative instructions. We do not agree with Coppolla that the prosecutor’s comments require reversal.

The permissible scope of [closing] argument is vast: counsel may draw from the evidence properly before the factfinder any inference apparently reasonable and legitimate. Counsel should be allowed considerable latitude of speech; and so long as extraneous facts are not injected or improper language used, the trial judge should not interfere. Upon the facts in the record, and upon the deductions the attorney may choose to draw therefrom, an attorney may make almost any form of argument the attorney desires.

(Citations and punctuation omitted.) Morgan v. State, 267 Ga. 203-204 (1) (476 SE2d 747) (1996). Here, the prosecutor’s comment was a fair inference drawn from the evidence and was relevant to the issues at trial. Some evidence of Coppolla’s knowledge of the price of drugs was presented, without objection. Furthermore, he was on trial for violation of the Georgia Controlled Substances Act. The fact that Coppolla was not permitted to inquire about the victim’s past drug usage is irrelevant; the victim was not on trial.

2. Coppolla also contends he was denied the right to self-representation. We do not agree. After Coppolla’s arrest, an attorney was appointed to represent him. A short time later, Coppolla filed a pro se motion seeking dismissal or disqualification of counsel. At a hearing on the motion, appointed counsel orally moved to withdraw. Upon questioning by the trial court, Coppolla stated that he no longer needed assistance from “an official of the courts” and that appointed counsel was not the counsel of his choice. The trial court allowed counsel to withdraw and informed Coppolla that “[u]nless you can show me where he’s been incompetent or has done something against your interest, you’ll not get another attorney appointed” and that the Constitution did not guarantee Coppolla an attorney of his choice. The individual from whom Coppolla desired representation, however, was incarcerated and was not a member of the State Bar of Georgia, and the trial court would not permit him to assist Coppolla as counsel. Although the trial court permitted Coppolla’s first appointed counsel to withdraw, the court required the presence of “back-up” counsel, attorney John Sumner, in the courtroom for all further proceedings.

Throughout numerous pre-trial proceedings, Coppolla reiterated his desire for counsel of his own choosing and refused to cooperate with the trial court in its attempts to ensure that Coppolla understood his right to appointed counsel. In response to many questions by the court, Coppolla often replied that he could “not meaningfully participate as I have no assistance of counsel present” or because he had “no assistance of counsel of my choice.” He stated that Sumner “doesn’t think as I do” and that he did “not accept the counsel that the State appointed.” During these pre-trial proceedings the trial court repeatedly advised Coppolla of his right to have appointed counsel present and of the valuable assistance counsel could provide. For example, during one hearing, the court said the following:

I’m going to advise you that you have the right to have an attorney represent you at that trial. If you cannot afford an attorney, the Court would appoint an attorney to represent you at no cost to you. I’m going to further advise you that an attorney would and could provide you very valuable assistance in preparing for trial and in trying the case, picking a jury and examining and cross examining witnesses. I’m going to further advise you that the Court has designated Mr. John Sumner, who is standing here, to stand by to assist you in any way that you may wish him to assist you. Do you understand that?

Coppolla replied, “I have no use for any State appointed attorney and I’m reserving my right to remain silent.” Significantly, when asked whether he wished to proceed without an attorney, Coppolla was silent.

Finally, just prior to trial, the trial court asked Coppolla if he was ready to proceed, and Coppolla said he would “reserve my right to remain silent.” The court yet again advised Coppolla of his right to appointed counsel, and after Coppolla stated that he did not “need representation from the State-appointed attorney,” the court asked whether Coppolla wished to proceed pro se. Coppolla again responded only that he wished to remain silent. Sumner then testified, upon questioning by the State, that Coppolla had refused all communication with him and that during prior court appearances, he had “tried to make it apparent to him I’m here in any way he needs me.” Sumner also stated, however, that he was prepared to represent Coppolla at trial “[a]s best I can be.”

After Sumner testified, the trial court again advised Coppolla of his right to appointed counsel, of the assistance that appointed counsel could provide, and of the “grave risk” posed by proceeding without the aid of counsel. The court then told Coppolla that it would ask him questions concerning these rights and that the court would “consider any response to these questions other than ‘yes’ or ‘no’ as a yes answer.” The court asked whether Coppolla understood his right to have an appointed attorney, and if Coppolla understood that he had the right to represent himself. Coppolla was silent to each of these questions. With respect to the court’s final question, the court told Coppolla that it would consider Coppolla’s “failure to respond or any response other than ‘yes’ or ‘no’ a no answer.” Coppolla did not respond to the court’s next question of whether Coppolla wished to represent himself “without the assistance of appointed counsel or any counsel.” Because Coppolla did not respond, the trial court ruled that Coppolla did not intend to represent himself and instructed Sumner to represent Coppolla as his court appointed attorney. Sumner extensively participated in the entire trial.

It is true that a defendant may waive his or her right to legal representation. See, e.g., Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). See also Williams v. State, 169 Ga. App. 812, 814 (315 SE2d 42) (1984). Coppolla, though, was not denied this right. Although he filed numerous pro se motions, it is clear from the record that he did not seek to represent himself; instead, he desired representation by an individual of his own choosing. But while an indigent defendant accused of a crime for which imprisonment is possible has the right to the assistance of reasonably effective counsel, the accused “is not entitled to counsel of his own choosing.” (Citations and punctuation omitted.) Reynolds v. State, 231 Ga. App. 33, 36 (4) (497 SE2d 580) (1998). Furthermore, Coppolla was not entitled to be represented by an individual who was not a member of the State Bar of Georgia. See, e.g., Mercier v. State, 203 Ga. App. 494 (2) (417 SE2d 430) (1992).

We recognize that the trial court might have been authorized in this case to conclude that Coppolla’s repeated rejection of Sumner as counsel in addition to his insistence on representation by counsel of his own choosing “was the functional equivalent of a knowing and voluntary waiver of counsel.” (Punctuation omitted.) Id. at 494-495 (2). See also Gamble v. State, 235 Ga. App. 777, 781-782 (4) (510 SE2d 69) (1998); Staples v. State, 209 Ga. App. 802, 804 (3) (434 SE2d 757) (1993). But we conclude that under the facts of this case, the trial court was not required to permit Coppolla to proceed pro se. “The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” (Citations and punctuation omitted.) Williams v. State, 183 Ga. App. 373, 374 (1) (358 SE2d 914) (1987). Coppolla repeatedly insisted on representation by counsel of his own choosing and insisted on his right to remain silent even in the face of questions that clearly were not designed to elicit inculpatory responses. We conclude from this behavior that he engaged in “dilatory tactics calculated to disrupt the proceedings against him, and hence the trial court’s refusal to allow defendant to proceed pro se does not constitute reversible error.” (Citation and punctuation omitted.) Id. Furthermore, as discussed above, Coppolla refused to respond to the trial court’s question of whether he desired to proceed pro se, after the trial court specifically told him that a failure to respond would be deemed a negative answer. Under these circumstances, we conclude that Coppolla knowingly and voluntarily waived his right to represent himself.

3. Coppolla contends he was denied his right to cross-examine the victim concerning pending arrest warrants for traffic violations and his competency to testify. During trial, the State moved to exclude evidence of pending arrest warrants for traffic violations, and as discussed above, to exclude evidence of past drug use. The trial court did not permit Coppolla to question the victim concerning past drug usage but allowed limited inquiry concerning the victim’s knowledge of terminology relating to drug use. The court did not, however, allow Coppolla to question the victim concerning the alleged warrants.

Decided June 16, 1999.

John B. Sumner, for appellant.

(a) Coppolla sought to question the victim concerning the pending warrants in an effort to show his bias; he wanted to ask the victim whether he was attempting to garner favor with the prosecutor by testifying. We agree with Coppolla that the court should have permitted this inquiry.

Under the Sixth Amendment . . . the defendant in a criminal case has both the general right to cross-examine witnesses against him and the more specific right to cross-examine a key State’s witness concerning pending criminal charges against the witness. Although the extent of cross-examination is within the sound discretion of the trial court, cutting off all inquiry on a subject with respect to which the defense was entitled to a reasonable cross-examination was an abuse of discretion.

(Citations and punctuation omitted.) Garcia v. State, 267 Ga. 257, 259 (7) (477 SE2d 112) (1996). But here, as in Garcia, “[i]t does not necessarily follow” that error mandates reversal. Id. Testimony by more than one eyewitness showed that Coppolla was a party to the crimes and that he held the victim at gunpoint while the victim’s property was taken from his home. Moreover, the victim’s credibility was impeached by his own question to Coppolla concerning a “line” of cocaine. Given the overwhelming evidence of Coppolla’s guilt, “we find the trial court’s erroneous curtailment of [Coppolla’s] cross-examination of the state’s witness was harmless. [Cit.]” Id.

(b) Coppolla contends that cross-examination of the victim concerning the victim’s drug use was relevant to show his competency. He does not contend, however, that the victim was under the influence of drugs at trial, which may have affected his ability to understand his obligation to tell the truth and provide material evidence concerning the burglary. Instead, the import of his argument, both here and in the trial court, is that the victim may have been using drugs at the time of the burglary, a fact that may have affected his competency at that time. We find no merit in this contention, for the state of mind of a witness at the time of the crime would affect his or her credibility, rather than competency to testify at the time of trial. See Whitus v. State, 222 Ga. 103, 110 (2) (149 SE2d 130) (1966), rev’d on other grounds, 385 U. S. 545 (87 SC 643, 17 LE2d 599) (1967).

Judgment affirmed.

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

Garry T Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

       Also, in one pro se motion, Coppolla stated that “[a]s judges and lawyers are officers of the court, I feel inclined to provide for a separation from such power and rely on those who owe no allegiance to any branch of this government or foreign government to assist me.” And during calendar call, the trial court advised Coppolla when his case was scheduled for trial, advised him that he had the right to have an attorney appointed to represent him, and asked Coppolla whether he understood this right. Coppolla responded that he “reserve[d] his right to remain silent.”


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    A99A1002.
    KING v. THE STATE.
    (519 SE2d 500)
   Blackburn, Presiding Judge.

Stanley King appeals his conviction of possession of marijuana with intent to distribute (OCGA § 16-13-30) following a jury trial. King contends that: (1) the evidence does not support the verdict; (2) the trial court erred by denying his motion for directed verdict; (3) the trial court erred by admitting similar transaction evidence; (4) the trial court erred by denying his motion for a continuance where his legal counsel of choice was unavailable for trial, and (5) that he received ineffective assistance of counsel. For the reasons set forth below, we affirm in part and remand the case to the trial court.

1. In his first enumeration of error, King challenges the sufficiency of the evidence supporting the verdict. In his second enumeration of error, King contends the trial court erred by denying his motion for directed verdict. Since the same standard of review applies to these enumerations, we will consider them together.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [King] 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 standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that the Cherokee County Multi-Agency Narcotics Squad (“C-MANS”) learned that Federal Express had a package containing almost 35 pounds of marijuana which was to be delivered to Annette Smith, King’s sister. Karen Eberhardy, a C-MANS agent disguised as a Federal Express employee, delivered the package to the address on the box. Eberhardy was accompanied in the van by Agent Broadus Ledford. When Eberhardy arrived at the residence, King greeted her and called for Smith. After Smith signed for the package, Ledford saw King pick up the package and take it inside the residence.

Meanwhile, C-MANS Agent Britt Massey was observing the delivery from a vantage point on a ridge not far from the residence. As the van was leaving, Massey saw King point at the undercover agents’ cars on the ridge. Massey decided the agents should go to the residence, whereupon Massey lost sight of King. As the agents pulled into the driveway, Massey saw King run back toward the residence a distance of 30 to 35 yards. Upon securing the residence, the package which had just been delivered was nowhere to be found. However, King’s niece, who lived in the residence, said that King had run outside with it. The package was found about 40 yards from the house, in the direction from which King was seen running. In a car parked in front of the residence, C-MANS agents found, next to some buds of marijuana, a small red book with King’s name on it. The book contained a list of initials with numbers beside them.

At trial, an agent testified that marijuana for personal use was typically sold in ounce to quarter-pound quantities and that larger quantities of marijuana suggested that someone was dealing marijuana. He further testified as to the price of a quarter-ounce and half-ounce of marijuana. The State also introduced evidence of King’s prior conviction of the sale of methamphetamine.

To support a conviction of possession of a controlled substance with intent to distribute, the State must prove possession and link that possession to the enterprise of the sale. Bethea v. State, 220 Ga. App. 800 (470 SE2d 328) (1996). In this case, the jury was authorized to find that King possessed the marijuana from King’s hiding of the package, which was recently delivered and yet unopened. In addition, the large quantity of contraband, King’s red book, the testimony regarding the price of small quantities of marijuana and King’s prior conviction gave rise to the reasonable inference that King intended to sell the marijuana. This evidence, although circumstantial, was sufficient for a rational trier to find King guilty beyond a reasonable doubt of the crime of possession with intent to distribute. Jackson, supra.

2. In his third enumeration of error, King contends that the trial court erred by admitting into evidence his convictions of violations of the Georgia Controlled Substances Act (for the sale of methamphetamine) in 1984, arguing that the transactions were not similar and too remote since they occurred almost ten years prior. However, King has not cited to any portion of the appellate record showing how this enumeration was preserved for appellate review. Furthermore, our review of the transcript shows that King did not object to the introduction of the evidence at trial. As this issue was not preserved for appeal, the error is waived and we will not consider it. Sapeu v. State, 222 Ga. App. 509, 510 (4) (474 SE2d 703) (1996); Court of Appeals Rule 27 (c).

3. In his fourth enumeration of error, King contends that the trial court should have continued the trial because his counsel of choice was unavailable due to a trial in another court which had lasted longer than expected. King moved for a continuance after the jury was selected because he wanted Bruce Harvey to try the case, rather than two other attorneys from that firm. The denial of a continuance, including on grounds of absence of counsel, is within the discretion of the trial court and will not be disturbed in the absence of a manifest abuse of discretion. Stephens v. State, 208 Ga. App. 620 (431 SE2d 422) (1993); Blair v. State, 166 Ga. App. 434 (304 SE2d 535) (1983).

Motions for a continuance based on the absence of counsel are governed by OCGA § 17-8-24:

The illness or absence, from providential cause, of counsel where there is but one, or of the leading counsel where there are more than one, shall be a sufficient ground for continuance, provided that the party making the application will swear that he cannot go safely to trial without the services of the absent counsel, that he expects his services at the next term, and that the application is not made for delay only.

The movant must strictly comply with these statutory requirements, as a continuance on this ground is not favored. Blair, supra.

In this case, the trial court determined that, although King did not believe he could go forward safely without Harvey, there was no assurance that Harvey would be present at the next term to try the case. Questions existed regarding both Harvey’s availability for the next term and whether he had been fully retained to try the case. King had not paid Harvey in full, and there was evidence that Harvey would withdraw if his fee was not fully paid. Under these circumstances, it was not an abuse of discretion to deny the motion.

4. Finally, King contends, for the first time, that he was denied effective assistance of counsel. Since a motion for new trial was not filed and King’s appellate counsel was retained after notice of appeal had been filed with this Court, this appeal was King’s first opportunity to assert ineffective assistance of counsel. Thus, the issue was properly raised for the first time on appeal. See Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998). Accordingly, we remand the case to the trial court for a hearing on this issue alone, with the right to appeal the trial court’s ruling. Id.

Judgment affirmed in part and remanded.

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

Decided June 16, 1999.

William A. Jordan, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.


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    A99A1118.
    RYALS v. THE STATE.
    (519 SE2d 505)
   Blackburn, Presiding Judge.

Following a jury trial, Terrence Antonio Ryals appeals from his conviction of burglary of a business, contending there was insufficient evidence to support the conviction. We affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Ryals] 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.) Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the evidence shows that a bag containing approximately $2,000 in cash, which had been placed in bundles by denomination, was taken from the unlocked safe at Yawn’s Country Store. The cash was taken while the clerk for the store was outside measuring the gas in the store’s gas tanks, sometime around 8:00 a.m. The sheriff’s department found footprints leading from the store to the home of Kurt Duncan. Duncan identified clothing which was found on the way to the home as belonging to Ryals, his nephew who was staying with him. Duncan recalled that Ryals had gone in the direction of the store that morning.

Witnesses Tonya Williams, Sherwin Williams, and Mary McArthur saw Ryals on the morning of the burglary with a large amount of cash. Tonya Williams testified that Ryals initially told her he had received the money from his lawyer. However, he then told her that he had gone into the back of a store and taken the money from an open safe. Ryals told Williams the clerk was outside the store checking the gas. This evidence was sufficient for a rational trier of fact to find Ryals guilty beyond a reasonable doubt of burglary of a business. See Jackson, supra.

Decided June 16, 1999.

Straughan & Straughan, Laurel B. Straughan, Mark W. Straughan, for appellant.

Stephen D. Kelley, District Attorney, Jan Kennedy, Assistant District Attorney, for appellee.

Judgment affirmed.

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