text:
    A98A0693.
    NOBLES v. THE STATE.
    (503 SE2d 321)
   Smith, Judge.

Charles Nobles was found guilty in August 1996 by a Gordon County jury of two counts of child molestation and one count of aggravated child molestation. He did not file a motion for new trial or a timely notice of appeal. He filed an appeal in this Court, which was dismissed as untimely. He then filed a motion for an out-of-time appeal, which was granted , on October 6, 1997. This pro se appeal ensued.

Construed to support the jury’s verdict, the State presented evidence that Nobles and his wife were living in his uncle’s home in Gordon County, along with a number of other people. His uncle’s seventeen-year-old stepdaughter found Nobles in an upstairs bedroom with her seven-year-old stepsister. The child had her underwear and jeans pulled down and Nobles was pulling his shirt over his pants. She reported this to her mother, who together with her sister examined the child in the bathroom. They discovered that the victim’s vagina was red and “puffy” and that a white lotion, like suntan lotion with a tropical scent, had been rubbed into her vaginal area. The victim told her mother that Nobles had rubbed it on her.

The victim’s father made a report to the Gordon County Sheriff’s Department, and Detective Laura McElrath was assigned to investigate. She interviewed the victim at her school along with a representative of the Department of Family & Children Services (DFACS) and a school counselor. This interview was preserved on audiotape, and the tape was played for the jury at trial. In that interview the victim stated that more than ten times her uncle had rubbed suntan lotion on her vagina and had ejaculated. When the victim testified at trial, however, she testified only that Nobles had rubbed suntan lotion on her vaginal area and that he cautioned her not to tell anyone or her father would “whoop” her. McElrath testified that based upon her interview with the victim, she examined the carpet in the bedroom with a black light, which indicated the presence of a protein on the surface. She then cut a small sample of the carpet and sent it to the State Crime Lab. A forensic serologist testified at trial, however, that his testing did not indicate the presence of semen on the carpet sample.

The State also presented evidence of a similar transaction. Nobles’s fifteen-year-old stepdaughter from a former marriage testified that when she was about seven or eight years old, her mother was in the hospital and Nobles touched her vagina several times while they were watching television.

1. We conclude that the evidence presented at trial was sufficient to authorize Nobles’s convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Nobles contends he was not afforded effective assistance of counsel. Nobles failed to raise this allegation in the trial court, however, after being granted an out-of-time appeal. The grant of an out-of-time appeal “should be seen as permission to pursue the post-conviction remedies which would be available at the same time as a direct appeal.” Ponder v. State, 260 Ga. 840, 841 (400 SE2d 922) (1991). It therefore includes the right to file a motion for a new trial. Id. And it follows that because a claim of ineffective assistance of counsel must be determined through an evidentiary hearing at the earliest practicable moment, such a claim may not be asserted in an out-of-time appeal unless it has been raised in a motion for new trial after the grant of an out-of-time appeal, and the issue has been raised and resolved at an evidentiary hearing. Id. at 841-842 (1). The holding in Ponder is specifically addressed to “appellate counsel” having secured an out-of-time appeal. Id. But the Supreme Court has also held that a pro se petitioner is in the same position. White v. Kelso, 261 Ga. 32, 33 (401 SE2d 733) (1991). We therefore conclude that Nobles waived his right to assert this issue on appeal.

3. Nobles’s assertion that the trial court erred in permitting the audiotape of the victim’s interview to be played to the jury because the State failed to lay an adequate foundation is completely without merit. Before a recorded statement may be admitted into evidence, the State must authenticate the tape and show how it was preserved and that no changes were made to the recording. In addition, the State must show the identity of the speaker; that the recording machine was working properly; that the machine’s operator was competent; and that the testimony on the tape was not given under duress. Howell v. State, 167 Ga. App. 294, 295 (1) (306 SE2d 378) (1983). The State did exactly that in this case.

McElrath identified the persons present at the interview. She testified that she did not speak to the victim except to say hello and introduce herself before the recording began. She authenticated the tape and stated that she found the equipment and the tape to be in proper working order; that no changes had been made; and after transcription no one had access to it other than McElrath until it was turned over to the State. This sufficed to lay a foundation for playing the tape notwithstanding McElrath’s testimony that she listened to the tape “just briefly” after turning it over to the State.

4. Nobles also contends the trial court erred in the cautionary instruction given to the jury before the tape was played. The State had prepared an edited transcript to enable the jury to follow the interview on tape. The transcription was passed out to the members of the jury. Before playing the tape, the court instructed the jury that the “written transcription is one person’s interpretation of what was said. If you find any discrepancies between the written transcription and the tape itself, you are to go by the tape and it is — that is, the tape itself is the highest and best evidence. This written transcription is just intended to be an aid to you in listening to the tape, but if there are any discrepancies, you are to use your best judgment as to what was actually on the tape as opposed to what was in the written transcription.”

It is clear that this instruction did not refer to the best evidence rule, as urged by Nobles. That rule has absolutely no application under these circumstances; it applies only to writings. In the Interest of F. L. P., 184 Ga. App. 164, 166 (2) (361 SE2d 43) (1987). Here, the court merely attempted to explain to the jurors that each of them must resolve any conflicts between what was actually heard and what had been transcribed by the State in favor of what was actually heard. This practice has been noted with approval by this Court. See, e.g., Butler v. State, 201 Ga. App. 58, 60 (410 SE2d 168) (1991).

Nobles is mistaken as well in his assertion that the trial court erred in allowing the tape to be replayed at the request of the jury. “It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. [Cits.]” Byrd v. State, 237 Ga. 781, 782 (229 SE2d 631) (1976). The court cautioned the jury that allowing the tape to be replayed is “not an indication on my part that I think it bears more weight than any of the other evidence presented in the case.” We find no error.

5. Trial counsel did not request a charge on circumstantial evidence and secondary evidence. No objection was made to the trial court’s failure to charge on circumstantial or secondary evidence. Relying on OCGA § 5-5-24 (c), Nobles nevertheless maintains this omission was reversible error. We do not agree. First, failure to give this charge is not necessarily error absent a request. Yarn v. State, 265 Ga. 787 (1) (462 SE2d 359) (1995). “A defendant is relieved from the necessity of requesting instructions only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence. It is a rare case that does not include both direct and circumstantial evidence and the omission of a charge on circumstantial evidence as set forth in OCGA § 24-4-6 is not harmful or erroneous as a matter of law where there is some direct evidence and the jury is properly charged on reasonable doubt.” (Citation and punctuation omitted.) Id.

Here, the State’s case depended primarily on the victim’s testimony, which was not circumstantial. The trial court instructed the jury that “where circumstantial evidence alone is relied upon to establish a fact or a theory, it must be such as to reasonably establish that fact or theory rather than anything else. You’re authorized to return a verdict of guilty only if the evidence as a whole, whether direct or circumstantial, is consistent with and establishes guilt beyond a reasonable doubt.” This was not harmful or erroneous as a matter of law.

Decided June 23, 1998.

Charles E. Nobles, pro se.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A98A1050.
    CHENEY v. THE STATE.
    (503 SE2d 327)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with aggravated assault, by use of a deadly weapon, and also with possession of a firearm during the commission of a felony. The evidence at his jury trial revealed the following: Shortly after 7:00 a.m. on Sunday, July 7, 1996, Officer Tony Hajjar of the Locust Grove Police Department responded to a call of a “person shot.” As Officer Hajjar arrived, “Defendant. . . was in the doorway [of Rusty Blaydes’ mobile home] calling to [the officer] by name because [defendant knows him]. And [Officer Hajjar] immediately . . . observed the victim lying on the porch on his back and he was bleeding.” Officer Hajjar tried “to keep him [the victim] conscious by talking to him and not letting him go into a coma . . . until the EMS could arrive. There was a bottle of vodka ... on the porch, near the victim, and [also] a spent round of, it appeared to be a .38 caliber round ... on the porch beside the victim.” After the emergency medical technicians arrived, Officer Hajjar “immediately went to the Defendant’s [nearby] residence, where Officer Gunter from the Henry County Police Department had him in custody in the front yard. [Officer Hajjar] took custody, . . . handcuffed [defendant], and placed him under arrest and ... read him his Miranda.” After these warnings, defendant “said, T shot him.’ ” The weapon was recovered from defendant’s residence, “on an ironing board . . . between the kitchen and living room.” The weapon contained “[f]ive spent cartridges. . . .” Sergeant Keith Nichols with the Henry County Bureau of Police Services identified a half-gallon bottle of vodka and two empty shot glasses recovered from Rusty Blaydes’ mobile home.

Scott Ted Strickland, the victim, testified he was at the mobile home of his friend, Rusty Blaydes, “helping him sheetrock and renovate it.” They “stay[ed] up all night working on it[.] . . . [Around five or six in the morning, the victim] was asleep on the floor [when he] was awakened by the Defendant. He kicked [the victim], nudged [him] with his foot and told [the victim] to get up.” After complimenting the renovation work, defendant “left and he came back a while later.” He “had a bottle of vodka in his hand[, and said,] ‘This is a welcome to the neighborhood bottle.’ ” After the victim consumed his second shot glass of vodka, the defendant “all of a sudden just changed. . . . His whole demeanor changed. He just started getting cocky and then just comes up and says, ‘I’m going to kick your a— .’ ” The victim “thought he was joking, at first. And then [the victim] looked at him and . . . realized, ‘Hey, he’s not joking.’ [The victim] said, ‘Well, I’m going to stomp your a— , you MF. . . .’ [But defendant] pulled out [a] pistol and [the victim] jumped back. [The victim] said, ‘Hey, everything’s cool,’. . . and as soon as [the victim] jumped back and threw [his] hands up, [defendant] shot [the victim] in the chest.” The victim “hollered, ‘Run,’ and . . . threw [his] hands up over [his] face and . . . arms up over [his] chest. . ., and [he] was struck in the elbow.” The victim turned and fled towards the door, and “was struck twice [more] in the back. [The victim] fell face first out on the front porch[, and] couldn’t move.” The victim was “pretty much paralyzed from [the] chest down. [He] couldn’t move and [he] heard [defendant] walk up beside [him] and [the victim] looked up. . . . [Defendant] pulled the hammer back, had the gun pointed ... at [the victim’s] head. . . . [The victim] turned [his] head down, and when [he] did, [defendant] dropped [the gun] down and shot [the victim] in the back. . . .”

Rusty Duke Blaydes confirmed that defendant was “standing in front of the window, drinking . . . out of the bottle, and just all of a sudden he goes [to the victim], . . . T want to kick your a— , MF.’ ” Rusty Blaydes “turned around and Scott [the victim] said, ‘Do what, MF?’ And [Rusty Blaydes did not] really remember seeing where the gun come [sic] from, but [defendant] pulled a gun. It was, like, bam, bam, and . . . [the victim] put his hands up in front of his head. . . . [Rusty Blaydes ran] out the door and . . . jumped off the porch.” Rusty Blaydes further confirmed that, “with no provocation of any nature whatsoever, [defendant] pulled out a pistol and shot [the victim] five times.”

Defendant testified he acted in self-defense, only after Rusty Blaydes kicked him in the groin, shooting “without aiming or looking where [he] was shooting, [and that] in panic [he] pulled the gun and emptied it, all five rounds. . . .” Nevertheless, the jury found defendant guilty as charged. This direct appeal followed. Held:

1. Defendant first enumerates the denial of his motion for mistrial predicated upon the State’s reference to defendant’s initial exercise of his right to remain silent.

In the State’s opening statement, the State’s Attorney told the jury that, when defendant was asked if he would speak to police without a lawyer, “he told them, ‘No, I don’t think I will,’ ” to give some context to defendant’s subsequently volunteered custodial statement, “I shot him.” Defendant’s motion for mistrial was denied but the trial court ordered the State’s Attorney to “stay off of that.” After trial, defendant renewed his motion for mistrial, asking first that the jury be admonished “to totally disregard whatever that comment was. . . .” The trial court noted it excluded evidence of that statement and had already charged the jury that “anything said in the opening statements and closing arguments was not evidence, and that if anything were said in those that were not borne out by the evidence they should disregard it.” Thereafter, defendant declined the trial court’s offer to “specifically charge them to ignore that particular statement.”

(a) The decision whether to grant a mistrial under OCGA § 17-8-75 is committed to the sound discretion of the trial court and its ruling will not be disturbed on appeal except upon an abuse of that discretion such that a new trial is necessary to protect the defendant’s right to a fair trial. Cowards v. State, 266 Ga. 191, 193 (3), 194 (3) (c) (465 SE2d 677); Floyd v. State, 227 Ga. App. 873 (1) (490 SE2d 542). “Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. Improper reference tó a defendant’s silence, however, does not automatically require reversal.” (Citations and punctuation omitted.) Brewer v. State, 219 Ga. App. 16, 18 (4), 19 (463 SE2d 906).

“In the case of Dowda v. State, 74 Ga. 12, the Supreme Court commended the practice of an opening statement by the solicitor-general [now district attorney] of what he expected to prove in behalf of the State, on the ground that it gave the accused information of the facts that he was expected to meet. This commendation, however, could properly apply only to a statement of facts which the [district attorney] really expected to prove, and which, under the rules of evidence, he would be allowed to prove. It certainly could not apply to allegations which could not be supported by evidence, or which, even though true, could not, under the rules of law, be admitted as evidence against the defendant. In our opinion [of the case sub judice,] the [opening] statement by the [State’s Attorney referring to defendant’s initial invocation of his right to silence] was improper and should not have been permitted by the [trial] court.” Gossett v. State, 6 Ga. App. 439, 440 (65 SE 162).

“[W]here unwarranted and prejudicial remarks are made which do not refer to any matter [admissible] in evidence in the case, and a motion for mistrial is based on such remarks, the court has the duty of eradicating the effect of the remarks from the jury’s mind by ruling them out, reprimanding counsel, and instructing the jury to disregard them, and ordinarily this cures the error.” Emerson v. State, 90 Ga. App. 323, 324 (82 SE2d 882). In the case sub judice, the trial court immediately admonished the State’s Attorney to stay away from defendant’s initial silence, and ultimately excluded evidence of the same. The trial court also instructed the jury that the remarks of counsel are not evidence and that it should disregard those portions of the opening statement not supported by evidence. In our view, this was sufficient to cure the error in permitting the State’s Attorney to make reference to defendant’s silence upon arrest, during opening statement. Consequently, we find no manifest abuse of discretion in overruling defendant’s motion for mistrial.

(b) Additional arguments directed to the inadmissibility of defendant’s volunteered custodial statement, “I shot him,” due to the absence of additional Miranda warnings are beyond the scope of the enumeration complaining of the denial of the mistrial. Moreover, Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) expressly held: “Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by [the Supreme Court’s] holding [in that case].” 16 LE2d at 726.

2. Defendant’s two remaining enumerations of error urge the general grounds. Defendant contends the evidence is insufficient because he adduced character evidence and because his testimony shows he was justified in using lethal force, “in order to repel the felonious unprovoked attack . . . initiated against him.”

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hawkins v. State, 230 Ga. App. 627, 629 (3) (497 SE2d 386). Conflicts in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311); Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130).

Decided June 23, 1998

Lee Sexton & Associates, Lee Sexton, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Sandra A. Graves, Assistant District Attorneys, for appellee.

“A person commits the offense of aggravated assault when he assaults with a deadly weapon, which, when used offensively, is likely to or actually does cause serious bodily injury. OCGA § 16-5-21 (a) (2). The act of intentionally firing a gun at another, in the absence of justification, is sufficient to support a conviction for aggravated assault under this statute. Steele v. State, 196 Ga. App. 330, 331 (2) (396 SE2d 4).” Belins v. State, 210 Ga. App. 259 (1) (435 SE2d 675). In the case sub judice, both the victim and his friend Rusty Blaydes testified that defendant’s assault with a deadly weapon was unprovoked. This was sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of aggravated assault as alleged in Count 1 of the indictment. This same evidence authorized the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of possession of a firearm during the commission of a felony in violation of OCGA § 16-11-106 (b) (1) as alleged in Count 2. Adside v. State, 216 Ga. App. 129 (1) (453 SE2d 139). The general grounds are without merit.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Eldridge, Judge.

text:
    A98A1447.
    WILLIAMS v. THE STATE.
    (503 SE2d 324)
   Eldridge, Judge.

John Fitzgerald Williams appeals a Gwinnett County jury’s verdict finding him guilty of trafficking in cocaine and possession of a firearm during the commission of a felony. We affirm.

The evidence shows that in October 1995, at approximately 7:15 p.m., Williams’ car was pulled over on 1-85 by Gwinnett County Sheriff’s deputy W. G. Chapel for following another vehicle too closely. Deputy P. Corso, who had been eating dinner with Chapel just prior to the stop, was behind deputy Chapel’s vehicle and pulled in to render assistance in the stop. Corso is a K-9 handler for the Gwinnett County Sheriff’s Department, and his drug dog was in his patrol car.

Deputy Chapel asked Williams for his license, registration, and proof of insurance. After receiving same, Chapel ran a computer check of Williams’ license for outstanding violations. Because “John F. Williams” is a common name, the computer registered 12 to 15 “hits,” i.e., possibilities of pending violations. Time was required for Chapel to check these possibilities on the computer and eliminate them.

During the course of the computer license check, deputy Chapel asked Williams if he had a weapon; Williams responded affirmatively, and deputy Corso retrieved a loaded handgun from the glove compartment of Williams’ car. Following the license check, Chapel ran a quick computer check on the weapon. Approximately 35 minutes elapsed since the initial stop and the completion of the computer checks.

After his investigation was complete, Chapel returned the weapon to Williams’ vehicle, wrote out a courtesy “warning” ticket for Williams, and told him he was free to leave. Williams expressed extreme joy, shaking both deputies’ hands and hugging deputy Chapel. Thereafter, directly in front of the patrol car’s video camera, deputy Chapel asked Williams if he could perform a search of his car prior to his departure. Williams consented. Chapel asked deputy Corso to perform the search with his drug dog. The dog “alerted” first on the left, back door of the car and then on a shoe box in the back floorboard of the car. The shoe box contained 503.3 grams of cocaine. Held:

1. Williams challenges the trial court’s denial of his motion to suppress. Williams contends that the length of and purpose for his detention exceeded the boundaries of a legitimate Terry traffic stop. He relies upon this Court’s decision in Smith v. State to support his contentions.

Our decision in Smith v. State, supra, is not applicable. Here, Williams voluntarily consented to the search of his vehicle; thus, the purpose for the initial traffic stop does not impact on the legitimacy of the search. See State v. Duran, 220 Ga. App. 296, 297 (2) (469 SE2d 429) (1996); see also Simmons v. State, 223 Ga. App. 781, 782 (479 SE2d 123) (1996).

Further, “an officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents.” (Citations and punctuation omitted.) Sutton v. State, 223 Ga. App. 721, 723 (478 SE2d 910) (1996). We decline to find, as appellant’s argument suggests, that an officer running such legitimate check must abandon it when the commonality of a detainee’s name requires a somewhat more time consuming effort. As long as the purpose for the detention is legitimate, the duration of the detention remains reasonable, and the investigation remains diligent throughout, the requirements of Terry are met. State v. Johnson, 209 Ga. App. 84, 86 (432 SE2d 580) (1993). Accordingly, we find no error in the trial court’s denial of Williams’ motion to suppress on the bases enumerated.

2. We find no merit to Williams’ contention that his conviction warrants reversal because a superior court clerk was not present in the courtroom during his trial. Nothing regarding the specific, statutory duties of a superior court clerk requires his or her presence in the courtroom during trial. OCGA §§ 15-6-61; 15-6-62. In fact, the statutory duties of the clerk were amended in 1989 to remove the requirement that a clerk of the superior court “attend all sessions of the court[.]” Ga. L. 1989, pp. 395, 399.

Further, also contrary to appellant’s contentions, the current statutory duties of a superior court clerk do not include providing aid to criminal defendants during trial, so as to render the absence of such clerk a “deni[al] [of Williams’] fundamental procedural and substantive right to have clerical assistance during his felony prosecution.” Accordingly, the trial court did not err in excusing the clerk during the trial of Williams’ case.

3. It has long been the law in this State that where the trial court exercises its discretion in allowing a police officer who is the nominal prosecutor to remain in the courtroom based on the district attorney’s statement that such officer’s presence is necessary for the orderly presentation of the State’s case, the discretion of the court in allowing him to remain will not be disturbed. Davis v. State, 225 Ga. App. 564, 569 (6) (484 SE2d 284) (1997); Howard v. State, 144 Ga. App. 31 (240 SE2d 589) (1977). Accordingly, there was no violation of the “Rule of Sequestration” as enumerated by Williams.

4. Next, Williams challenges the trial court’s charge to the jury on intent, claiming that the “inference” language in the charge shifted the burden of proof to the defense and thus rendered Williams’ conviction illegal. ‘We reject any suggestion that the ‘you may infer’ language in the charge on intent was unconstitutionally burden shifting. The jury was clearly instructed that whether or not it made the inference was a matter solely within its discretion. The charge was permissive in nature and did not require the jury to draw a conclusion.” (Citations omitted.) Roberson v. State, 265 Ga. 658, 661 (6) (461 SE2d 212) (1995).

5. Williams also challenges the trial court’s charge to the jury that “If you find the person owns or leases a vehicle, you’ll be permitted, but not required, to infer that such a person is in possession of the entire premises and all the property located on that premises.” Williams objects to this charge on the grounds that the State allegedly presented no proof that he leased or owned the vehicle in which he was stopped, and thus, the charge was allegedly burden shifting, placing “the burden of proving this defense on the Defendant.” We do not agree. The evidence was replete with references by Williams to “my car”; Williams testified that he gave deputy Chapel the registration to his car; and the defense attorney asked Williams about “your car.” Sufficient evidence was presented from which the jury could conclude that Williams had a possessory interest in the car so as to make the challenged jury charge proper. McGinnis v. State, 208 Ga. App. 354, 355 (3) (430 SE2d 618) (1993).

Decided June 23, 1998.

Daniel B. Kane, for appellant.

Daniel J. Porter, District Attorney, Ben L. Leutwyler III, Assistant District Attorney, for appellee.

6. Finally, Williams challenges the circumstantial evidence charge given to the jury, contending that the trial court’s instruction was not clear as to what circumstantial evidence is and how it may be applied. We do not agree. A review of the trial court’s charge on such evidence shows that the court fully defined circumstantial evidence and instructed the jury that “[t]he comparative weight of circumstantial evidence and direct evidence on any given issue is a question of fact for the jury to decide.”

Further, the State’s evidence in this case was not dependent solely upon circumstantial evidence, and Williams did not submit a request to charge on circumstantial evidence. Under such a scenario, there was no error in the trial court’s charge. Yarn v. State, 265 Ga. 787 (462 SE2d 359) (1995); Hodges v. State, 222 Ga. App. 381, 382 (3) (474 SE2d 218) (1996).

Judgment affirmed.

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

       The record in this case includes a videotape of the initial traffic stop involved.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1967).

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


author: Pope, Presiding Judge.

text:
    A98A0209.
    In the Interest of A. D. C., a child.
    (503 SE2d 334)
   Pope, Presiding Judge.

The Sumter County Juvenile Court adjudicated A. D. C. delinquent for committing the offense of criminal attempt to commit armed robbery. During A. D. C.’s delinquency hearing, the State presented evidence, including confessions from both A. D. C. and another juvenile, the material aspects of which were corroborated by testimony from other witnesses, demonstrating that A. D. C. and the other juvenile had forcibly entered a house, wherein they used a toy gun to demand money from the house’s occupants, but fled without obtaining anything. A. D. C. did not put forth any specific defense during the delinquency hearing and did not present any evidence. Accordingly, there was sufficient evidence presented in this case from which any rational trier of fact could have adjudicated A. D. C. delinquent under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Following the adjudication, the juvenile court entered a dispositional order committing A. D. C. to the custody of the Department of Children & Youth Services. A. D. C. did not appeal from the dispositional order or the adjudication itself on any grounds, but subsequently, he did file a motion with the juvenile court seeking to have it modify or vacate its dispositional order and, pursuant thereto, grant A. D. C. a new delinquency hearing based on purported newly discovered evidence. See OCGA § 15-11-42 (a) (3). After a hearing on the matter, the juvenile court denied A. D. C.’s motion. A. D. C. appeals solely from that denial. Finding no error, we affirm.

In determining whether or not to grant A. D. C.’s motion and afford him a new delinquency hearing, the juvenile court applied the criteria set forth in Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), wherein the Supreme Court of Georgia held that “[i]t is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.” (Citations and punctuation omitted.) A. D. C. argues that the juvenile court committed reversible error in doing so because the criteria set forth in Timberlake relate only to motions for new trial, which he contends may not properly be entertained by the juvenile courts of this State. We cannot agree.

Contrary to A. D. C.’s assertion, the juvenile courts of this State do have the authority to entertain motions for new trial. In the Interest of T. A. W., 265 Ga. 106, 107 (454 SE2d 134) (1995). While A. D. C.’s motion in this case was designated as a motion to modify or vacate the juvenile court’s dispositional order on the ground that new evidence had been discovered, any such motion, which seeks a new delinquency hearing pursuant to OCGA § 15-11-42 (a) (3), in substance amounts to no more than a motion for a new trial or hearing premised on the grounds of newly discovered evidence. Consequently, it was appropriate for the juvenile court in this case to consider, as have other juvenile courts in this State, the requirements set forth in Timberlake in reaching a determination as to whether or not A. D. C.’s motion should be granted. In the Interest of J. F. F., 177 Ga. App. 816, 817-819 (1) (341 SE2d 465) (1986); In re S. Y. H., 180 Ga. App. 831 (2) (350 SE2d 778) (1986) (physical precedent only).

Decided June 24, 1998.

Ellis, Easterlin, Peagler, Gatewood & Skipper, William H. Dudley, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Having said this, we note that during the hearing on A. D. C.’s motion to modify or vacate the juvenile court’s dispositional order, A. D. C. produced no evidence or affidavits, but instead merely made an offer of proof that some seven unnamed individuals could now provide an alibi for him. He also failed to account for the lack of any alibi witnesses’ affidavits. Additionally, while his trial counsel asserted that the purported newly discovered evidence had come to his attention since the delinquency hearing, neither he nor A. D. C. made any showing that the failure to discover that evidence any sooner than some six months after A. D. C.’s delinquency hearing was not owing to a lack of diligence on their part.

In light of the above, it is clear that A. D. C. failed to meet several of the requirements set forth in Timberlake. “All six requirements!, however,] must be met to [warrant] a new trial[ or delinquency hearing].” In the Interest of J. F. F., 177 Ga. App. at 817 (1). Therefore, the juvenile court did not err in denying A. D. C.’s motion in this case.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Beasley, Judge.

text:
    A98A0316.
    NASH v. THE STATE.
    (503 SE2d 23)
   Beasley, Judge.

Nash was convicted in 1996 of aggravated assault on Iris Johnson for assaulting her with a knife when he became enraged with Johnson during a visit to her mother’s home. OCGA § 16-5-21.

1. Nash contends the court erred in admitting testimony concerning several threatening telephone calls allegedly made by him to the victim’s mother in that insufficient evidence to prove he made the calls resulted in the absence of a proper foundation for this testimony.

Inasmuch as Nash conceded at trial that a proper foundation had been laid and then objected to it on grounds that its prejudicial effect outweighed its probative value, the foundation issue has not been preserved for appellate review. Regardless, there was ample evidence identifying Nash as the caller.

2. Nash enumerates as error the trial court’s consideration, in aggravation of punishment, of his 1991 conviction based on a guilty plea to a felony and two misdemeanors.

At sentencing, the prosecuting attorney submitted a certified copy of the conviction for felony obstruction, terroristic threats, and criminal damage to property. The purpose was to warrant recidivist punishment under OCGA § 17-10-7 (a). He urged that under the statute, the court was required to give Nash the maximum 20-year sentence for aggravated assault, although any part could be probated. Accordingly, the court imposed the maximum 20-year sentence, with the last 12 years probated.

When Nash challenged the voluntariness of the guilty plea, the State was unable to produce a transcript of the plea proceeding. Evidence did show that Nash’s guilty plea hearing was reported but not transcribed.

To fill the void, the State submitted the testimony of the attorney who had prosecuted the case. Although he had no independent recollection of Nash’s plea, he testified that he was certain and had “no doubt whatsoever” that the plea was knowingly and voluntarily entered because in every case it was his practice, as well as that of the presiding judge, both to inform the defendants of all the rights they were waiving and the consequences of their pleas and to ensure that the pleas were knowingly and voluntarily entered. He explained the procedure used and the rights articulated.

Defendant offered no evidence whatsoever to rebut this or to show he did not enter a proper plea. Following argument, the court found that the State had proved a valid plea and ruled that the conviction could be considered in arriving at a sentence.

Nash’s position is squarely seated on the requirements established by the United States Supreme Court in Boykin v. Alabama. The Court held that federal constitutional due process requires that after a defendant raises the question of the validity of his plea of guilty, the burden is on the State to affirmatively show that the plea was intelligently and voluntarily entered. It may be accomplished by one of two means: (1) the record of the plea shows the prisoner was aware of the rights he was waiving and the consequences of the plea; and (2) extrinsic evidence shows the same.

Boykin involved direct review of a conviction allegedly based on an uninformed guilty plea. In 1992 the United States Supreme Court had before it a case similar to Nash’s, Parke v. Raley, in that both challenged their state court’s use of prior guilty pleas so as to impose persistent offender sentences. The issue was whether due process imposed the same burden of proof on the State when a prior guilty plea is offered to enhance a sentence pursuant to a recidivist statute. The Court distinguished this situation from Boykin, pointing out that Raley “never appealed his earlier convictions. They became final years ago, and he now seeks to revisit the question of their validity in a separate recidivism proceeding. To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the ‘presumption of regularity’ that attaches to final judgments, even when the question is waiver of constitutional rights. [Cit.]”

The Court reasoned further that on collateral review, “it defies logic to presume from the mere unavailability of a transcript (assuming no allegation that the unavailability is due to governmental misconduct) that the defendant was not advised of his rights. In this situation, Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.” Consequently, it held, “the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin”

The trial court in Nash’s case did place the burden on the State, and the State accepted it, presumably on the authority of Boykin. Clearly there was no recognition of Parke. In any event, the State’s proof of validity was not assailed by Nash, much less undermined, other than by objection to its sufficiency, and Nash was not deprived of the right upon which he stands. He had an opportunity to present contrary evidence and did not do so, counting instead on the absence of a guilty plea transcript and what he considered to be deficient extrinsic evidence. He, too, missed Parke.

On appeal, Nash still ignores that controlling authority. All of the cases he relies on are bottomed on Boykin. Some, like Gadson v.

State, Gadson v. State again, and Pope v. State, are pre-Parke collateral attacks on sentence enhancement use, as Nash has undertaken. Although Miller v. State is also such a case but is postParke, it fails to take Parke into account and erroneously considered the burden to be on the State to prove the sentence-enhancing plea’s validity per Boykin, without the presumption of regularity. No harm was done because the State showed the plea was valid.

Other cases which Nash cites, like State v. Germany, Johnson v. State, Spurgeon v. State, Bowens v. State, Lopez v. State, and Parks v. State are direct appeals and thus properly apply Boykin

Nash also presents two habeas corpus cases, Bowers v. Moore and Roberts v. Greenway, which Bowers follows. Both of these cases impose Boykin’s burden of proof requirement on the State when the plea is challenged by a prisoner in a habeas corpus proceeding. Although Bowers (but not Roberts) was decided several years after Parke, the Supreme Court of Georgia did not discuss it even though the issue arose in a habeas corpus setting as it did in Parke.

Parke was a Kentucky warden against whom Raley brought a federal habeas corpus action after the state trial court, and the state appellate court on direct appeal, rejected his contention that his prior guilty pleas should have been suppressed in sentencing. His reasoning was that they were invalid under Boykin in that the records did not contain transcripts of the plea proceedings and thus did not affirmatively show the pleas were knowing and voluntary.

Bowers differs from Parke only in that the collateral nature of the attack is solely by way of the habeas corpus proceeding itself, whereas Raley’s primary collateral attack was his motion to suppress evidence of the guilty plea for sentence enhancement; it was the state courts’ rejection of his position that led to the habeas corpus proceeding, which itself was a collateral attack. Nevertheless, in Parke, the United States Supreme Court discussed habeas corpus challenges of guilty pleas in the samé vein as efforts to undermine guilty pleas to heighten sentence. Both are collateral attacks in which the presumption of regularity applies and due process does not require a presumption of invalidity.

Decided May 26, 1998

Reconsideration denied June 24,1998

Pete, Pete & Associates, Anthony T. Pete, for appellant.

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, for appellee.

Bowers is bottomed on Boykin and not on state grounds (such as the due process provision of the Georgia Bill of Rights). Consequently it does not govern disposition of Nash’s case; Parke does.

The trial court did not deprive Nash of due process of law, as protected by the Fourteenth Amendment, by admitting in evidence his prior guilty plea so as to make him eligible for a recidivist sentence. The court was authorized to, but did not, apply the presumption of regularity which is “deeply rooted in our [American] jurisprudence” and in Georgia is codified in OCGA § 24-4-24 (b) (l). The plea was shown to represent “a voluntary and intelligent choice among the alternative courses of action open to the defendant.”

Nash has presented neither in the trial nor here any independent state ground, either by way of state constitutional basis, statute, or common law. OCGA § 17-10-7, the statute which calls for enhanced punishment for repeaters and constituted the authority for his sentence, does not provide otherwise.

Judgment affirmed.

Andrews, C. J, McMurray, P. J, Birdsong, P. J., Pope, P. J, Johnson, Blackburn, Smith, Eldridge, JJ, and Senior Appellate Judge Harold R. Banke concur.

        See Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985).

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

        Beck v. State, 222 Ga. App. 168 (473 SE2d 263) (1996), and cits. This is a judicially fashioned Georgia rule of evidence methodology. See Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764) (1975). Boykin focuses on the contemporaneous record method but impliedly does not preclude the extrinsic method. Id. at 244.

       506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992).

       Id. at 29.

       Id. at 30.

       Id. at 34.

       197 Ga. App. 315 (398 SE2d 409) (1990).

       202 Ga. App. 417 (414 SE2d 332) (1992) (same Gadson, on second appeal following resentencing).

       256 Ga. 195, 209 (17) (345 SE2d 831) (1986).

       Although the second Gadson appeal was decided the same year as Parke, the Court of Appeals of Georgia decided Gadson in January and the United States Supreme Court decided Parke the following December.

       214 Ga. App. 393, 394 (2) (448 SE2d 20) (1994).

       245 Ga. 326 (265 SE2d 13) (1980).

       227 Ga. App. 390 (1) (489 SE2d 138) (1997).

       214 Ga. App. 227 (447 SE2d 164) (1994).

       194 Ga. App. 391 (2) (390 SE2d 634) (1990).

       207 Ga. App. 554 (1) (428 SE2d 448) (1993).

       223 Ga. App. 694 (479 SE2d 3) (1996).

       The Supreme Court of Georgia anticipated the problem of proof for later collateral proceedings in Germany.

       266 Ga. 893 (471 SE2d 869) (1996).

       233 Ga. at 475 (1).

       Parke, 506 U. S. at 29-30.

       Id. at 20.

       See also Touchton v. Stewart, 229 Ga. 303 (190 SE2d 912) (1972).

        North Carolina v. Alford, 400 U. S. 25, 31 (91 SC 160, 27 LE2d 162) (1970).


author: Judge Harold R. Banke.

text:
    A98A0333.
    DEAL v. THE STATE.
    (503 SE2d 288)
   Judge Harold R. Banke.

David Eric Deal was convicted of kidnapping with bodily injury, aggravated battery and aggravated assault. He enumerates 15 errors on appeal.

This case arose during the victim’s early morning jog when Deal ran up to her. As she activated her hand-held alarm, he grabbed her and struck her on top of her head with a length of rebar pipe. He continued beating her on her head, shoulders, chest and arms, striking at least 50 blows. Eventually, she fell, and he dragged her into some nearby woods where he started beating her again. The attack lasted approximately 15 minutes, at which point the man fled, leaving the victim bleeding and dazed.

Shortly after her release from the hospital, a police investigator presented the victim with a six-person photographic lineup. The victim immediately picked Deal’s brother, Kevin. After the investigator obtained an arrest warrant, he learned that Kevin was in a mental institution and that Deal, who lived in the vicinity of the attack, bore a marked family resemblance to Kevin. When Deal gave inconsistent stories about his actions at the time of the attack, the investigator conducted a live lineup. The victim identified Deal. Held:

1. Deal enumerates as error the trial court’s denial of his motion to suppress evidence of the photographic lineups, presumably as impermissibly suggestive. The dispositive question in resolving this issue is whether the procedure used resulted “ ‘in a very substantial likelihood of irreparable misidentification.’” Montgomery v. State, 210 Ga. App. 147, 148 (3) (a) (435 SE2d 510) (1993). Here, the record shows the victim had ample opportunity to observe her attacker. She “saw his face in full view” during the 15-minute ordeal. The victim’s testimony makes clear that her entire attention was on her attacker. She fully and accurately described his appearance to the investigator. At trial, she testified that “[h]is face is burned into my memory. I see it every day. It’s been almost two years and I know that is him. 100 percent sure. I’ll never forget that face.” She exhibited similar certainty during the lineup. Considering these factors, we must conclude that in the totality of the circumstances, the procedures used in this case were not so impermissibly suggestive that misidentification could be substantially likely. Isaacs v. State, 213 Ga. App. 379, 380-381 (2) (444 SE2d 409) (1994).

The record refutes Deal’s contention that he was taken into custody prior to the lineup on a pretextual arrest. The investigator testified that when he contacted Deal’s probation officer he learned she was about to secure a warrant on Deal for failure to report and requested that she advise him when she did.

2. Deal contends the trial court erred in denying his motion in limine seeking to suppress testimony of an inmate witness presumably on the ground that his Sixth Amendment rights were violated because the inmate, Warren Rhodes, was acting as an agent for the State when he elicited inculpatory statements from Deal. Deal sought to suppress his purported statement to Rhodes that he initiated the early morning attack with a pipe intending to drag the victim into the woods and rape her.

The record shows that Rhodes made the initial contact with the assistant district attorney in charge of this case. At that time, he already had the information at issue. Rhodes testified that law enforcement had no knowledge of his talks with Deal and in no way instigated his actions. These facts refute Deal’s argument. Burgan v. State, 258 Ga. 512, 515 (5) (371 SE2d 854) (1988) (“ An inmate who acts upon the expectation of an unpromised reward does not thereby become an agent for the state.’ ”).

3. Deal maintains the trial court erred in admitting Rhodes’ testimony because it was perjured and self-serving. He bases this contention on another inmate’s testimony indicating that he saw Rhodes take some paperwork with Deal’s name on it from Deal’s locker. The other inmate, Conan Spence, testified that he then asked Rhodes if he was working on a lawsuit and Rhodes answered, “[N]o, ain’t a lawsuit, just some legal work . . . I’m hoping . . . will get me out of jail.” Notwithstanding Deal’s inference to the contrary, there is absolutely no evidence that the State knowingly used false testimony to obtain Deal’s conviction. Compare Smith v. Zant, 250 Ga. 645, 651 (301 SE2d 32) (1983). Spence’s testimony, which did not directly contradict Rhodes, simply raised a credibility issue for the jury to resolve and did not establish perjury. See Ward v. State, 205 Ga. App. 504, 507 (3) (423 SE2d 288) (1992).

4. The trial court did not abuse its discretion by denying Deal’s motion for continuance and/or change of venue based on purportedly prejudicial pretrial publicity. OCGA § 17-7-150 (a). Deal made no showing that the trial’s setting was inherently prejudicial. Moore v. State, 224 Ga. App. 797, 799 (3) (481 SE2d 892) (1997). Although Deal cited three newspaper articles printed in the month prior to trial and a news broadcast on three channels, the court found the publicity only “minor,” noting the absence of headlines and the small size of the articles back in the body of the paper. The trial court’s review of the coverage did not reveal any extreme sensationalism. Id. at 800.

Nor did the jury selection process show actual prejudice. Moore, 224 Ga. App. at 799. Only eight venire members had been exposed to any media coverage about the case. Of those individuals, only two remembered enough about the coverage for Deal to seek their removal, and both were excused for cause. Because the trial court was able to seat a full panel of jurors untainted by pretrial publicity, Deal failed to show the prejudice necessary to justify a change of venue. Id. at 800. In light of these facts, we likewise find no abuse of discretion in denying Deal’s motion for continuance. Curtis v. State, 212 Ga. App. 237, 238 (2) (441 SE2d 776) (1994).

5. Deal claims the jury was not fair and impartial because two members attended grade, middle, and high school with a defense witness, Amy Sheperd. These jurors did not respond when asked on voir dire whether they knew her. At the motion for new trial hearing, however, Deal presented Sheperd’s affidavit which stated that she knew the jurors. In light of Deal’s failure to present any evidence that the jurors at issue knew Sheperd, notwithstanding her purported acquaintance with them, he failed to establish juror misconduct or any concomitant harm from the error alleged. McLamb v. State, 176 Ga. App. 727, 729 (3) (337 SE2d 360) (1985); see Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

6. Deal claims the trial court erred by refusing to ask the jury about its possible exposure to news accounts of the trial broadcast on the second day of trial. In declining, the court presumed that the jury had complied with its previous instruction to refrain from listening to trial coverage because Deal presented no evidence that this mandate had been violated. While the better practice in these circumstances would have been to question the jury about its media exposure, reversal is not required. See, e.g., Guess v. State, 264 Ga. 335, 338 (6) (443 SE2d 477) (1994); Dent v. State, 220 Ga. App. 147, 148 (2) (469 SE2d 311) (1996); Edwards v. State, 200 Ga. App. 580, 581 (1) (408 SE2d 802) (1991). Deal’s failure to present evidence at the motion for new trial hearing that any juror was exposed to the coverage precludes him from establishing harm caused by the alleged error. See Dennis v. State, 226 Ga. App. 390, 391 (1) (486 SE2d 656) (1997); Mozier v. State, 207 Ga. App. 264, 268 (2) (427 SE2d 551) (1993).

7. The trial court did not abuse its discretion in denying Deal’s motion for mistrial based upon prosecutorial overreaching and bad faith by attempting to prejudice the jury through the news media. Edwards, 200 Ga. App. at 582 (1). Deal presented no evidence of prosecutorial misconduct. See Parrish v. State, 160 Ga. App. 601, 604 (3) (287 SE2d 603) (1981).

8. The trial court did not abuse its discretion in denying Deal’s motion for mistrial based upon the victim’s statement, made while identifying Deal, that he had “grown a mustache since he’s been in jail.” See Dorsey v. State, 204 Ga. App. 71 (418 SE2d 426) (1992). Deal maintains that this statement improperly placed his character in issue. Wright v. State, 253 Ga. 1, 4 (3) (316 SE2d 445) (1984). We fail to see how the minor reference to Deal’s incarceration on the instant charges placed his character in issue. See Holloway v. State, 190 Ga. App. 528, 529 (2) (379 SE2d 542) (1989) (post-arrest mug shot is not suggestive of prior arrests so as to place defendant’s character in issue). Moreover, the trial court gave a proper curative instruction to disregard the reference to the mustache. See Dorsey, 204 Ga. App. at 71. In these circumstances, we find no abuse of discretion.

9. The trial court did not abuse its discretion in allowing the State to use an old aerial photograph of the area surrounding the crime scene as demonstrativé evidence, particularly when the trial court gave cautionary instructions to the jury. Harvey v. State, 175 Ga. App. 120, 122 (4) (332 SE2d 912) (1985). Defendants have no right to prevent the jury from seeing the crime scene. See Sorrells v. State, 267 Ga. 236, 239 (3) (476 SE2d 571) (1996). Moreover, Deal fails to set out the legal argument supporting this enumeration in his brief, and the objection he cites in the record was not to the use of the photograph, but to a witness drawing power lines on it. McClain v. State, 226 Ga. App. 714, 718 (3) (487 SE2d 471) (1997) (errors asserted for the first time on appeal are waived).

10. Deal argues that the trial court erred in permitting the State’s witness to draw power lines on the above-mentioned aerial photograph because there was insufficient evidence as to their correctness. Because Deal failed to challenge the accuracy of the lines in the trial court, we need not reach this issue. McClain, 226 Ga. App. at 718 (3). Moreover, Deal failed to show how this demonstrative evidence harmed his case. See Keanum v. State, 212 Ga. App. 662, 663 (2) (442 SE2d 790) (1994) (error and ensuing harm required for reversal).

11. Deal maintains the trial court erred in admitting a graphic and prejudicial photograph of the initial wound to the top of the victim’s head. Because the photograph was relevant to testimony regarding the nature and location of the victim’s injuries, we must reject this argument. Sorrells, 267 Ga. at 239 (3); Tiller v. State, 218 Ga. App. 418, 419 (3) (461 SE2d 572) (1995).

12. Deal maintains the trial court erred in admitting a length of rebar found near the crime scene with what appeared to be blood and hair on it. We disagree.

Trial courts have broad discretion in the admission of evidence. Parker v. State, 226 Ga. App. 462, 463 (4) (486 SE2d 687) (1997). “A weapon is generally admissible if it is similar to one used in a crime, even though it is not the same one. [Cit.]” Id. at 463-464 (4). Here, the evidence showed the wounds were inflicted with a metal bar or pipe.

13. This same reasoning applies to Deal’s contention that the trial court erred in admitting a photograph of the above-mentioned rebar. Parker, 226 Ga. App. at 463 (4).

14. Deal claims the trial court erred in denying his motion for directed verdict of acquittal. Because the appellate brief offers no grounds, argument, or citation of authority in support of this assertion, the enumeration is deemed abandoned. Court of Appeals Rule 27 (c) (2).

Decided June 10, 1998

Reconsideration denied June 25, 1998

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

15. Deal contends that his aggravated battery sentence merged with the sentence for kidnapping with bodily injury. The facts do not support this assertion. There was sufficient evidence for the jury to find that the aggravated battery was complete before Deal committed kidnapping with bodily injury. The aggravated battery concluded when Deal delivered the initial blow to the top of the victim’s head, a wound so seriously disfiguring that Deal objected to the admission of photographs depicting it. OCGA § 16-5-24 (a). The kidnapping with bodily injury occurred later, when Deal dragged the victim, weakened by the onslaught of blows, into the woods and continued to beat her. OCGA § 16-5-40 (a); Robinson v. State, 210 Ga. App. 175, 176 (2) (435 SE2d 466) (1993); see Ellis v. State, 181 Ga. App. 630, 634 (5) (353 SE2d 822) (1987).

Judgment affirmed.

Beasley and Ruffin, JJ., concur.

       This enumeration and several others do not clearly state the legal grounds of error. They simply state facts and then list cases without incorporating any legal argument. See Court of Appeals Rule 27 (c) (2).


author: Smith, Judge.

text:
    A96A2349.
    RICHARDS v. THE STATE.
    (503 SE2d 99)
    Decided June 25, 1998.

      Monte K. Davis, for appellant.

      June D. Green, Solicitor, James M. Miller, Assistant Solicitor, for appellee.
   Smith, Judge.

In Richards v. State, 225 Ga. App. 777 (484 SE2d 683) (1997), we affirmed the trial court’s denial of Brian Richards’s motion to suppress, concluding that the trial court’s failure to suppress breath test results constituted harmless error. Id. at 780. The Supreme Court granted certiorari and reversed in Richards v. State, 269 Ga. 483 (500 SE2d 581) (1998). Accordingly, the decision of this Court is vacated, the decision of the Supreme Court is made the decision of this Court, and the judgment of the trial court denying Richards’s motion to suppress is reversed.

Judgment reversed.

Andrews, C. J., and Pope, P. J., concur.


text:
    A98A0003, A98A0004.
    EVANS v. THE STATE (two cases).
    (503 SE2d 344)
   Judge Harold R. Banke.

Michael Evans, Jr. and William Jabreel Evans, Jr. were charged with three counts of aggravated assault with intent to rob. After a joint trial, they were each convicted on one count and both received twenty-year sentences. In total, they enumerate five errors on appeal.

One evening while Michael Evans, William Evans, and two co-defendants, Comandáis Head and Howard Weems, were sitting around the house, they decided to rob a convenience store. Michael Evans mentioned a store he had been watching which would be easy to rob. He suggested that William Evans wait in the getaway car while he and the others robbed the store. After William Evans obtained guns from his father’s gun cabinet and some masks, he drove the others to the store. The plan was for Head and Weems to enter the store first, with Michael Evans behind them.

However, only Weems and Head entered the store. As they did, Weems announced that this was a stickup, ordered the two customers to the floor, and pointed a gun at them. Head remained by the door, pointing a gun at the manager. Once the customers obeyed, Weems pointed his gun at the manager and fired. Just at that moment, the manager leaned down, reaching for the money. The bullet pierced some glass just above his stooped head. The manager responded by pulling a pistol from under the counter, returning fire, and setting off the alarm.

Weems was wounded in the neck. He made it back to the car, and William Evans dropped him off at the hospital. The police apprehended Weems shortly thereafter, and he gave a statement which did not implicate Michael or William Evans.

As Michael Evans and Head ran from the store, an off-duty police corporal who heard the gunshots and the ensuing police dispatch noticed them running and stopped them. He asked them what was going on, and Michael Evans answered that they were out for a walk. The corporal radioed their whereabouts to a sergeant on duty, who proceeded to that location. When Michael Evans and Head saw the patrol car, they ran into the woods.

The police captured Head that night. Head gave a statement which did not implicate Michael or William Evans. The corporal identified Michael from a high school yearbook. Both Head and Weems pleaded guilty and testified against the Evanses at trial. The jury acquitted the Evanses of aggravated assault with intent to rob the two customers. Held'.

1. Michael Evans maintains that the trial court’s failure to charge that flight from the police is not sufficient to support a criminal conviction requires reversal. The court gave the pattern charges on mere presence and mere association. Because these instructions covered the same relevant principles of law as the requested charge, we find no harm or error in the trial court’s decision. Griffin v. State, 228 Ga. App. 200, 204 (3) (491 SE2d 437) (1997). Moreover, the charge was not adjusted to the facts. See Duncan v. State, 213 Ga. App. 394, 397 (6) (444 SE2d 583) (1994). The evidence showed that Michael Evans did more than merely flee. He planned the offense and suggested the target. See Alexander v. State, 247 Ga. 780, 783-784 (2) (279 SE2d 691) (1981), overruled on other grounds, Edge v. State, 261 Ga. 865, 867 (414 SE2d 463) (1992).

2. The Evanses both argue that the trial court erred by failing to charge the jury on impeachment of a witness by showing bias or interest. The instruction given on credibility fully covered the concept of the jury’s right and responsibility to determine whether a witness’ impartiality was tainted by any interest, bias or prejudice. Jordan v. State, 172 Ga. App. 496, 500 (7) (323 SE2d 657) (1984). The trial court essentially tracked the pattern charge, instructing the jury, among other things, that they could consider a witness’ “interest or lack of interest” in the case. We find no error.

3. We must reject the appellants’ contention that reversal is required because the trial court denied their motions for directed verdicts of acquittal on the charges of aggravated assault with intent to rob the two customers. They offer no legal authority for their novel argument that defending those charges detracted from their ability to defend on the charge related to the store manager. Nor have we found any. In light of the success of their effort before the jury and the fact that the two offenses turned on a question of intent, we decline to find that they demonstrated the requisite harm. See Tucker v. State, 225 Ga. App. 757, 759 (4) (484 SE2d 793) (1997).

4. Michael and William Evans maintain that the trial court erred by failing to order the State to provide a taped statement Weems made at the time of his arrest. The record shows that the State provided defense counsel with a written transcript of the taped statement. Just prior to trial, defense counsel requested the tape, and the State admitted that it could not be found. The trial court resolved the issue by directing the State to provide the tape if it was found. Defense counsel did not object to this ruling.

Litigants cannot submit to rulings and then cite them as error on appeal. Morris v. State, 226 Ga. App. 535, 539 (3) (488 SE2d 685) (1997). They are required to stand their ground and fight in order to successfully enumerate as error a purportedly erroneous ruling. Id. at 539-540. The error is therefore waived. Moreover, inasmuch as the State provided a written transcript of the statement, no harm arose from the alleged error. See Herndon v. State, 229 Ga. App. 457 (3) (494 SE2d 262) (1997).

Decided June 25, 1998

Michael B. King, for appellant (case no. A98A0003).

Sharon D. Bundrage, for appellant (case no. A98A0004).

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

5. The trial court did not err in denying Michael Evans’ pretrial request to depose the victims after they refused to talk with his counsel. Although counsel had a right to interview the victims prior to trial, this right was subject to the victims’ acquiescence in such interrogation. Sears v. State, 182 Ga. App. 480, 483 (9) (356 SE2d 72) (1987). Because “ ‘[n]o broad right of discovery exists ... in criminal cases,’ ” the extant avenues for conducting such discovery are legislatively based. Id. The General Assembly has prohibited trial courts from ordering depositions in criminal cases except in several specific situations, none of which is applicable here. OCGA § 24-10-130 (b).

Judgments affirmed.

Johnson, P. J, and Smith, J., concur.


text:
    A98A0747.
    GREEN v. THE STATE.
    (503 SE2d 339)
   Judge Harold R. Banke.

Nathaniel Deshawn Green was convicted of armed robbery and possession of a firearm during the commission of a felony. He enumerates two errors on appeal.

This case arises from the armed robbery and fatal shooting of a Citgo gas station clerk committed by Donald Demetrius Hall, Green’s confederate. Green, the leader of the Rolling 30 Crypts, wanted to advance Hall’s rank in the gang. To that end, he decided to order Hall to rob the Citgo station. Weeks before the offenses occurred, Green confided to an acquaintance, Joshua Milledge, that he intended to send Hall to rob the station, which was near Hall’s house.

After the offenses, Hall contacted police and immediately became a suspect, although his statement implicated a rival gang member. Milledge reported Green’s involvement after being arrested and charged with the crimes at issue here. The State dropped those charges and negotiated a favorable plea on two other unrelated charges, and Milledge testified against Green at trial. Milledge claimed that he offered this information before he made the deal with authorities. One of the primary investigators in the case testified that he had no evidence against Milledge and could not say why he was indicted. He explained that Green had first brought up Mil-ledge’s name. Held:

Decided June 25, 1998.

Farkas & Ledford, Thomas G. Ledford, for appellant.

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

1. Green maintains that Milledge was an accomplice and, as such, his testimony, without more, was insufficient to sustain the conviction. We disagree.

The fact that a witness was jointly indicted with the defendant does not of itself render him an accomplice. Ross v. State, 190 Ga. App. 735, 736 (1) (380 SE2d 333) (1989). The jury, which was instructed that an accomplice’s testimony alone is insufficient to support a conviction, implicitly found that Milledge was not an accomplice. Id. (a witness’ status as an accomplice may be a jury question). Because the record contains no evidence of Milledge’s participation in these crimes, we must affirm that conclusion. Collins v. State, 251 Ga. 521, 523 (1) (a) (307 SE2d 496) (1983).

2. Green further asserts that the verdict was contrary to the weight of the evidence presented at trial because Milledge’s testimony was not credible. Appellate courts do not weigh the evidence on appeal. Willis v. State, 263 Ga. 597, 598 (1) (436 SE2d 204) (1993). Instead, this Court reviews the evidence, in the light most favorable to the verdict, solely for its sufficiency. Walton v. State, 194 Ga. App. 490, 492 (5) (390 SE2d 896) (1990). Here, the record shows that Green planned the robbery and selected the target and the perpetrator. This evidence was sufficient for the jury to find him a party to the crimes under both OCGA § 16-2-20 (b) (3) and (4); Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A98A0760.
    LAWSON et al. v. HABERSHAM BANK.
    (503 SE2d 341)
   Ruffin, Judge.

Howard and Jenny Lawson sought an interlocutory injunction to prohibit Habersham Bank from foreclosing on their home located in Stephens County. The Superior Court of Habersham County denied the injunction and specifically ruled that the Lawsons were not entitled to an interlocutory injunction against the sale of the Stephens County property. The Lawsons appealed, and for reasons which follow, we affirm.

“We may not reverse the grant or denial of preliminary injunctive relief absent an abuse of discretion, ‘or, as alternatively stated, unless there was no evidence on which to base the ruling.’ [Cits.]” Allen v. Hub Cap Heaven, 225 Ga. App. 533, 534 (484 SE2d 259) (1997). In light of these principles, this case shows that the Lawsons purchased a poultry farm located in Habersham County (the “farm”) in December 1993. Habersham Bank agreed to lend the Lawsons the money for this purchase in the amount of $287,217.65 and took a deed to secure debt with a power of sale on the farm.

In the verified petition for interlocutory injunction, the Lawsons alleged that in 1994, after they began raising chickens on the poultry farm, they were advised by Fieldale Farms to make needed improvements on the farm’s chicken houses. The Lawsons discussed financing such improvements with Habersham Bank. The bank agreed to provide a $35,000 line of credit for the Lawsons to complete the improvements if the Lawsons would secure the loan with their Stephens County home. On August 1, 1995, the Lawsons executed a security deed on their home securing the $35,000 line of credit. In addition to providing that the Lawsons’ home would serve to secure the debt, the security deed also stated that their home would serve as collateral for “such additional sums as may now be due by Grantor to Grantee or hereafter incurred by Grantor, whether directly, indirectly, as principal, endorser, guarantor, or otherwise. . . .” The security deed on the home also included an “open-ended” or “dragnet clause” which provided that the home would secure “any renewals, extensions, or consolidations of any of the debts, notes, advances or indebtedness described” in the deed. The line of credit became due on October 30, 1995.

On October 5, 1995, the Lawsons signed a new promissory note (the “consolidation note”) to Habersham Bank in the amount of $332,420.86, which combined the loans for the farm and their home. The consolidated note required one monthly payment and specifically stated the purpose of the loan was to “combine notes #01/03 purchase and upgrade poultry houses” and that both the farm and the Law-sons’ home constituted the secured property for the loan. After the refinancing, the property improvements were completed. Habersham Bank obtained a new appraisal that showed the market value of the farm as of March 21, 1996, as $410,000.

The Lawsons defaulted on the consolidated note during the fall of 1996. Pursuant to the power of sale contained in the security deeds for the Stephens County house and the Habersham County farm, Habersham Bank commenced non-judicial foreclosure proceedings on the farm and the home. The notices of sale under power for both the farm and the home referenced the default of the consolidated note and a description of each parcel of property. Subsequently, the Law-sons filed a verified petition for injunction in the Superior Court of Habersham County to enjoin Habersham Bank from foreclosing on their home, but did not petition to enjoin the sale of the farm.

On August 5, 1997, the trial court temporarily enjoined Haber-sham Bank from foreclosing on the Lawsons’ home. However, this ruling did not affect the farm, and consequently, Habersham Bank foreclosed on the farm on August 5, 1997. Habersham Bank did not confirm the foreclosure sale of the farm.

Following evidentiary hearings, the trial court issued an order denying the Lawsons’ petition to permanently enjoin Habersham Bank from foreclosing on their home. The trial court held that Haber-sham Bank’s attempt to foreclose on their home was not an action to satisfy a deficiency judgment on the sale of the farm and therefore was not barred by the bank’s failure to obtain confirmation of its prior foreclosure sale of the farm. On appeal, the Lawsons assert that the trial court’s decision was erroneous. We disagree.

The confirmation statute provides: “When any real estate is sold on foreclosure, without legal process, and under powers contained in security deeds,. . . and at the sale the real estate does not bring the amount of the debt secured by the deed, ... no action may be taken to obtain a deficiency judgment unless the person instituting the foreclosure proceedings shall, within 30 days after the sale, report the sale . . . and shall obtain an order of confirmation and approval thereon.” OCGA § 44-14-161 (a). “A deficiency judgment is the ‘imposition of personal liability on mortgagor for unpaid balance of mortgage debt after foreclosure has failed to yield full amount of due debt.’ The Georgia courts have determined whether a deficiency judgment is being sought in a variety of circumstances. For example, when a secured creditor seeks to satisfy its claim from property of a debtor other than the security itself, the creditor is in substance seeking a deficiency judgment. After an initial foreclosure under a deed with a ‘dragnet clause,’ a subsequent foreclosure under a separate deed securing separate property is not a deficiency judgment, but is a separate contractual remedy of the creditor not subject to the confirmation requirement. Salter v. Bank of Commerce, 189 Ga. 328, 332 (6 SE2d 290) (1939).” (Citations and punctuation omitted.) C.K.C., Inc. v. Free, 196 Ga. App. 280, 282 (2) (395 SE2d 666) (1990).

The Supreme Court addressed a similar situation to the instant case in Salter. In that case, the borrower executed a 1931 security deed to secure several loans made between 1931 and 1936. In 1936, the borrower executed a second security deed to secure one of the loans. The security deeds contained a “dragnet clause.” The borrower defaulted on the loans, and the bank foreclosed on the 1931 security deed. The bank did not confirm the sale. When the bank proceeded to foreclose on the 1936 deed, the borrower filed an injunction contending the bank was barred from foreclosing on the 1936 deed because the previous foreclosure sale had not been confirmed. The trial court denied the borrower’s petition for injunction. In affirming the trial court’s decision, the Supreme Court of Georgia held that the bank was not required to confirm the initial foreclosure under a deed with a “dragnet clause,” because the subsequent foreclosure was under a separate security deed securing separate property. The Court held that the subsequent sale under power of separate property is a contractual remedy of the creditor and is not barred by a failure to meet the confirmation requirement. Id. at 331-332.

In this instance, the Lawsons initially executed two separate loans at two separate times and gave as security an interest in two separate parcels of real property. Subsequently, the Lawsons executed a consolidation loan that combined the debts, but the two separate parcels of real property remained as security for the original loans. The language in the security deed for the Lawsons’ home contained express language that was similar to the “dragnet clause” discussed in Salter. Moreover, language in the consolidated note provided that the Lawsons’ home would serve to secure any such additional sums that the Lawsons currently owe to Habersham Bank or that may later be incurred by the Lawsons. Pursuant to the “dragnet clause,” the home remained as security for both loans. Consequently, we do not find the subsequent consolidation of the loan determinative because the loan agreement expressly states that the security deed for the Lawsons’ home remained effective after any such consolidation. Thus, we find two debts remained and were secured by two separate parcels of real property. Habersham Bank’s attempt to foreclose on the Lawsons’ home was a separate contractual remedy. “As the [confirmation act] does not inhibit sale, under a power contained in a security deed, of property other than property previously sold by [Habersham Bank], which failed to bring the amount of the debt, it is inapplicable, and can not be invoked as a bar by the [Lawsons] in a suit to enjoin [Habersham Bank] from selling such other property under power of sale.” (Emphasis supplied.) Id. at 332 (b).

Finally, Tufts v. Levin, 213 Ga. App. 35 (443 SE2d 681) (1994), relied on by the Lawsons in their appeal, is not controlling. Unlike the instant case, Tufts involved two debts secured by a single parcel of property in which the creditor had a security interest. In Tufts, the borrowers executed two separate notes to the lender for the purchase of a house, a 30-year purchase money note and a balloon note. The purchase money note was secured by a purchase money security deed, and the balloon note was secured by a separate security deed, but for the same property. When the borrowers defaulted on the payments due under the note, the lender foreclosed under the power of sale contained in the purchase money security deed but did not confirm the sale. The lender subsequently sued on the balloon note. We determined that the lender’s subsequent suit on the balloon note was an action to obtain a deficiency judgment for the balance of the purchase money note that remained unpaid after foreclosing on the purchase money security deed, and without confirmation, the lender was barred from recovery. Id. at 39.

Decided June 25, 1998.

Douglas L. Henry, for appellants.

Thomas E. Austin, Jr., for appellee.

The fact that there was a single parcel of property that was used as security for both notes weighed heavily in our decision. Tufts, 213 Ga. App. 39. However, here, there were two separate parcels of real property that were provided as consideration for two separate obligations, the first being the purchase money for the farm and the second being the line of credit for improvements on the farm that was secured by the farm and the home. Consequently, we find Tufts is factually distinguishable from the instant case. Accordingly, the trial court did not abuse its discretion in denying the Lawsons injunctive relief. Allen, supra.

Judgment affirmed.

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


text:
    A98A0357.
    MITCHELL v. THE STATE.
    (503 SE2d 293)
   Beasley, Judge.

Eric Mitchell appeals his convictions of cruelty to children (OCGA § 16-5-70) and battery (OCGA § 16-5-23.1) on grounds of insufficient evidence, inadequate jury charges, and improper admission of certain evidence.

1. The standard of review for sufficiency of the evidence is set out in Jackson v. Virginia: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” In addition, “ ‘appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. [Cits.]’ [Cit.]”

So construed, the evidence shows that on February 4, 1996, Mitchell disciplined his eight-year-old son for bed wetting by forcing him to sit naked in a bathtub filled with very hot water and bleach (or some other caustic chemical) to wash his soiled bed linens. Mitchell himself admitted to a police officer he placed the child in the liquid for disciplinary reasons. The child suffered severe burns to his feet, buttocks, and knuckles. Mitchell did not allow the boy to receive medical treatment for the open, oozing lesions until five days later when required to do so by investigating police.

The offense of cruelty to children occurs when a person maliciously causes a minor child cruel or excessive physical or mental pain. Battery is when a person intentionally causes substantial physical harm or visible bodily harm to another. The evidence sustains the convictions.

2. Mitchell claims the court erred in allowing the treating physician to rule out diaper rash as the cause of the buttocks burns. Although the doctor testified he was an expert on the treatment, not the cause, of burns, he testified without objection that the child’s lesions could have been caused by various agents, including hot water and bleach. He could not identify which agent but found no evidence the child suffered from diaper rash, which would normally be found in the groin area.

The State asked the doctor if, because of the absence of diaper rash there, he had an opinion whether the buttocks injuries were from diaper rash or some other cause. Mitchell objected on the ground the doctor was not an expert in cause and effect. Without ruling on the objection, the court stated it thought the question dealt with whether the symptoms were consistent with the child having urinated on himself, and the doctor responded they were not consistent.

This testimony, which excluded diaper rash as a cause of the buttocks injuries, did not conflict with the doctor’s earlier testimony that he could not identify which particular agent caused the burns. As the State analogizes, Mitchell’s argument is akin to contending that a physician treating blunt trauma, who cannot identify the specific blunt instrument, is not qualified to rule out gunshot as a cause. Even though a treating physician may not be able to identify the specific cause, he may be versed enough to eliminate the defendant’s theory as contraindicated.

3. Mitchell contends the court erred in allowing an officer to confer with State’s counsel prior to answering a question posed by the State. As conceded by Mitchell, the court has discretion to allow such a conference during the course of trial and “that discretion will not be interfered with unless abused.”

In pretrial motions Mitchell twice threatened to move for a mistrial if any witness referred to (a) certain portions of police interviews regarding his character or hearsay statements or (b) certain government reports that abuse had been confirmed. After Mitchell on cross-examination derided the investigating officer’s decision not to obtain a search warrant for Mitchell’s house, the State on re-direct asked the officer why he came to that decision. The officer hesitated and expressed concern his answer might intrude into a prohibited area. It was allowable to permit the officer to consult with the prosecuting attorney before answering. The court’s explanatory reference to orders from the pretrial conference could not possibly have prejudiced Mitchell, for the court did not describe those orders to the jury nor indicate at whose behest they were entered.

4. Mitchell claims the court erred in not striking the testimony of a State’s witness who on re-direct responded to three leading questions from the State. Mitchell did not object to these questions until the examination was complete and thereby waived his right to raise the issue on appeal. The belated motion to strike her testimony, which would have included her previous testimony on direct and cross-examination, not only exceeded the alleged wrong but did not excuse his failure to contemporaneously object.

Moreover, it was within the court’s discretion to allow leading questions. “It would be a rare case in which the trial court’s exercise of discretion on this issue would warrant reversal.”

5. Mitchell argues the court erred in failing to charge the jury as to bare suspicion and as to knowledge on the part of defendant that a crime was being committed. The proposed charge on bare suspicion was unnecessary, for the court charged on the need for the State to prove guilt beyond a reasonable doubt and on the presumption of innocence. “Although the trial court did not charge in the language requested by the appellant, the charge given covered substantially the same principles.” Similarly, the court’s charge on intent adequately covered the principles in his requested charge on knowledge.

Decided June 15, 1998

Reconsideration denied June 26, 1998

Paul R. Cadle, Jr., for appellant.

Mitchell also enumerates as error the court’s refusal to give the “two theories” charge, i.e., that “where all the facts and circumstances of the case and all reasonable deductions present two equal theories, one of guilt and the other of innocence, then the jury must acquit the accused.” The court did instruct the jury on circumstantial evidence, as requested, basically tracking the language in OCGA § 24-4-6 and the Suggested Pattern Jury Instructions. “It is never error to refuse to give a requested ‘two equal theories’ charge where a trial court properly instructs the jury on circumstantial evidence.”

6. Mitchell enumerates as error, without success, the jury charge as to criminal negligence where the facts did not establish reckless or wanton conduct. “A ‘crime’ is a violation of a statute of this state in which there is a joint operation of an act or omission to act and intention or criminal negligence.” Criminal negligence is “ ‘reckless and wanton negligence and of such a character as to show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.’ [Cit.]”

Placing a naked child in a bathtub containing very hot water and caustic chemicals for disciplinary reasons, and not seeking medical treatment for severe burns until forced to do so five days later, may be found by a jury to constitute reckless or wanton conduct. Mitchell even told the child the liquid in the bathtub would feel like “acid.”

Judgment affirmed.

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

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.

       (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

        Hight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996).

       OCGA § 16-5-70 (b).

       OCGA § 16-5-23.1 (a).

       See Gibson v. State, 160 Ga. App. 615, 619 (4) (287 SE2d 595) (1981) (failure to object to question by judge estops appellant from raising issue on appeal).

       See Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992).

        Fowler v. State, 179 Ga. App. 492, 494 (3) (347 SE2d 322) (1986).

        Sharpe v. Dept. of Transp., 267 Ga. 267 (476 SE2d 722) (1996).

       Id.

       See OCGA § 24-9-63; Perkins v. State, 226 Ga. App. 613, 615 (2) (487 SE2d 365) (1997).

       (Citation and punctuation omitted.) Id.

       See Lowe v. State, 267 Ga. 180, 181 (2) (476 SE2d 583) (1996); Kennedy v. State, 205 Ga. App. 152, 156 (5) (d) (421 SE2d 560) (1992).

       (Citations and punctuation omitted.) Id.

        Matthews v. State, 214 Ga. App. 104, 105 (2) (446 SE2d 790) (1994); see Hicks v. State, 221 Ga. App. 735, 739 (4) (472 SE2d 474) (1996).

       Vol. II: Criminal Cases, Part 2 (J), p. 11 (2nd ed. 1991).

       (Citation omitted.) Smith v. State, 264 Ga. 857, 860 (4) (452 SE2d 494) (1995); see Brinson v. State, 268 Ga. 227, 230 (6) (486 SE2d 830) (1997) (where “trial court properly instructs the jury on circumstantial evidence, it is not error to refuse to give a requested ‘two equal theories’ charge”).

       OCGA § 16-2-1; see Jordan v. State, 214 Ga. App. 598, 601-602 (2) (448 SE2d 917) (1994).

        Keye v. State, 136 Ga. App. 707, 708 (1) (222 SE2d 172) (1975).