author: Pope, Presiding Judge.

text:
    A97A0332.
    SABO v. THE STATE.
    (485 SE2d 591)
   Pope, Presiding Judge.

Defendant Frederick Anthony Sabo was convicted by a jury of three counts of armed robbery. He appeals following the denial of his motion and amended motion for new trial.

1. Defendant first enumerates as error the denial of his motion to sever the offenses for trial. A defendant has an absolute right to severance of offenses joined for trial where the offenses have been joined solely because they are similar in nature. Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752) (1975). “Where, however, the similarity of the offenses reaches the level of a pattern which shows a common scheme, plan or a modus operandi so strikingly similar ‘that the totality of the facts unerringly demonstrates and designates the defendant as the common perpetrator, the offenses may be joined — subject to the right of the defendant to a severance in the interests of justice.’ (Citations omitted.) Davis v. State, 159 Ga. App. 356, 357 (283 SE2d 286) (1981); Wilson [v. State, 188 Ga. App. 779, 780 (374 SE2d 325) (1988)].” Dobbs v. State, 199 Ga. App. 793 (1) (406 SE2d 252) (1991).

In this case the armed robberies all occurred at convenience-type gas stores, and the stores were located in the same general area. The crimes were committed in a short time period, between July 8, 1994 and August 19, 1994. All three crimes occurred during the afternoon hours. In all three crimes a gun was used and the store clerks were ordered to place the money from the cash register in a bag. Defendant fled the scene of the July 8 and August 19 crimes in a silver Toyota. Similar descriptions of defendant and his clothing were given in all three incidents. Under these circumstances, the trial court did not abuse its discretion in denying the motion to sever. See, e.g., Alford v. State, 224 Ga. App. 451 (480 SE2d 893) (1997), and cites; Campbell v. State, 206 Ga. App. 456, 458 (2) (426 SE2d 45) (1992).

2. Defendant contends the trial court erred in admitting pre-trial and in-court identification testimony.

(a) Defendant’s contention that a show-up identification at the time of his arrest was impermissibly suggestive is without merit. “ ‘This court has thoroughly considered the dangers inherent in the practice of bringing single suspects to confront witnesses for the purpose of pre-trial identification, in particular, the danger of the “ ‘substantial likelihood of irreparable misidentification.’ (Cit.)” [Cit.] To evaluate that likelihood, we apply the test enunciated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) [(1972)] which requires that we consider the witnesses’ opportunity to view the suspect at the time of the offense, the witnesses’ degree of attention, the accuracy of the witnesses’ prior description and their level of certainty. However, both state and federal courts have also recognized consistently those countervailing considerations which may render the one-on-one confrontation permissible if not desirable. These include the necessity ... to resolve promptly any doubts as to identification so as to enhance the accuracy and reliability of the identification, thus expediting the release of innocent subjects. [Cits.]’ ” Simmons v. State, 209 Ga. App. 21, 22 (2) (432 SE2d 623) (1993).

Here, based on the description of the car driven by the robber, police attempted to stop defendant about ten minutes after the robbery. Defendant attempted to elude the officer, and a chase ensued. Defendant was subsequently apprehended, and the identification witness was transported to the scene of defendant’s arrest. Approximately one hour had elapsed since the robbery. The witness had observed defendant during the robbery and had provided an accurate description of defendant to the police. The identification witness immediately and certainly identified defendant as the robber. The witness also stated that defendant was wearing a different shirt from the one he wore during the robbery, and a shirt matching the description of the one the witness said the robber wore during the crime, as well as dark glasses and a hat that the witness also said the robber wore during the robbery, were found during a subsequent search of defendant’s car. Under these circumstances, there was not a substantial likelihood of misidentification. It follows that the trial court did not err in denying defendant’s motion to suppress this identification testimony. Mattison v. State, 215 Ga. App. 635, 636 (1) (451 SE2d 807) (1994); Bigsby v. State, 210 Ga. App. 696, 697 (1) (436 SE2d 817) (1993).

(b) We find defendant’s contentions relating to his identification by witnesses from the other armed robberies also to be without merit.

3. Defendant next complains of the admission of several statements he made while in custody.

(a) Defendant argues the trial court should have excluded testimony about incriminating remarks he made while being transported to jail because at the time he made the statements he had not been given Miranda warnings. The record shows that one of the officers at the scene attempted to read defendant Miranda warnings prior to his being transported to the jail by another officer, but that defendant became verbally abusive to the officer and the officer determined that it would be useless to attempt Miranda warnings at that time. This Court has previously held that Miranda warnings are required only in the context of an in-custody interrogation, and the record here clearly demonstrates the statements were not in response to any questioning or prodding by the arresting officer. The trial court did not err in denying defendant’s motion to suppress on this basis. See, e.g., Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813) (1994); Moon v. State, 208 Ga. App. 540 (1) (a) (431 SE2d 128) (1993).

(b) Testimony was also presented at trial that after defendant was read his Miranda warnings he stated to one of the investigating officers that he had just been released from jail the previous September and that the Lord had promised him a year of freedom, and if they arrested him that promise was not going to come true. The trial court admitted the statement on the basis that it could be viewed as indicating a consciousness of guilt. We agree that, taken in context, the statement could be interpreted this way. “Any statement or conduct of a person, indicating a consciousness of guilt, made at a time when he is charged with or accused of crime or thereafter, is admissible as a circumstance against him upon his trial [for committing it].” (Citations and punctuation omitted.) Moon v. State, 154 Ga. App. 312, 315-316 (5) (268 SE2d 366) (1980). See also Parker v. State, 181 Ga. App. 590, 591 (2) (353 SE2d 83) (1987). Competent evidence is admissible even if it places the defendant’s character in issue. See, e.g., Lockette v. State, 181 Ga. App. 649, 650 (3) (353 SE2d 585) (1987). This enumeration is without merit.

(c) Under this enumeration, defendant also argues that the trial court erred by admitting a Department of Corrections identification card. This argument is outside the scope of the enumerated error, and will not be considered by this Court.

Decided April 7, 1997.

Before Judge Robinson.

Alice C. Stewart, Richard A. Hunt, for appellant.

4. Defendant argues the trial court erred by allowing one of the investigating officers to testify that several days after defendant’s arrest defendant refused to talk to him about the crimes and requested an attorney. We find no merit to this contention. First, the record shows that defendant never requested a curative instruction, although the trial court indicated it would give such an instruction upon defendant’s request. See, e.g., Battle v. State, 195 Ga. App. 542, 544 (2) (394 SE2d 788) (1990). Moreover, ££[w]e find defendant’s Fifth Amendment rights were not violated by the admission of [this] testimony. It is clear from our study of the transcript that this testimony did not focus on the defendant’s silence or suggest that the defendant had asserted his right to remain silent. The testimony simply related, in the course of a lengthy narrative, that the defendant requested an attorney; it did not purport to be evidence of the defendant’s guilt or to be directed toward undermining any of his defenses. [Cit.] The true focus of this court’s inquiry must be whether the testimony produced a trial which was so fundamentally unfair as to deny defendant due process. [Cit.] £To reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury. No such situation exists here.’ [Cits.]” Duck v. State, 250 Ga. 592, 595 (1) (300 SE2d 121) (1983).

5. Defendant argues certain rulings by the trial court imposed upon his right to present a full and unimpaired defense.

(a) Defendant argues the trial court should have allowed him to comment on the State’s failure to present certain witnesses at trial. See Morgan v. State, 267 Ga. 203 (476 SE2d 747) (1996). But the record shows that the trial court never ruled on the State’s motion to prevent defendant from commenting on its failure to call all its witnesses, and that the trial court refused to give the State’s charge which would also have precluded defense comment on the State’s failure to call all its witnesses. This enumeration is thus without merit.

(b) We have examined defendant’s remaining contentions under this enumeration and find them also to be without merit.

6. Contrary to defendant’s final enumeration of error, we find the evidence sufficient to sustain defendant’s conviction as to all three armed robberies under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Thomas J. Charron, District Attorney, Michael S. Moody, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A0515.
    BM&J CONTRACTORS, INC. v. LIBERTY COUNTY BOARD OF EDUCATION.
    (485 SE2d 262)
   Eldridge, Judge.

The case sub judice arises out of the construction of a new school, Taylor Creek Elementary, now located on Airport Road in Liberty County, Georgia. Appellant brought suit to recover an alleged outstanding balance in the amount of $13,300 owed to it for the work it performed, and $10,000 for the value of the timber on the property to which appellant claimed it had a right to under the terms of its contract with appellee.

On May 1, 1992, appellee advertised for bids for the clearing, grading, filling, and site work of the site for the construction of a new elementary school. Bids were to be received on or before 2:00 p.m. on June 2, 1992, the date set for the opening of the bids. Appellant submitted a bid for the project, which was the low bid, and the contract was awarded to it.

The contract between appellant and appellee for such work was entered into on June 8, 1992. The terms of the contract included, among other things, the right of appellee to withhold a ten percent retainage on certain progress payments made to appellant for work completed and provided that all merchandisable timber on the property would become the property of appellant.

Appellant’s work under the terms of the contract was to commence on June 15, 1992, and was to be completed within 75 calendar days, which would have been August 29, 1992. The work was not completed by August 29, 1992. Several extensions were granted to appellant by appellee. Finally, on April 5, 1993, appellee, through its supervising architect, directed a letter to appellant giving it 14 days to complete the work.

After the expiration of the 14 days, appellee engaged a building and construction contractor, Wise of Georgia, Inc. (“Wise of Georgia”) to complete the site work including filling and grading to the specifications of the contract. Wise of Georgia hired Paul Krebs Construction Company to complete the unfinished site work. The total amount paid by appellee to have such site work completed was $13,330, which was deducted from the contract retainage of $22,263.06. The balance of the retainage of $8,933.06 plus interest was paid to the appellant.

Appellant filed suit against appellee to recover the $13,330 that was deducted by appellee from the retainage, and to recover the additional sum of $10,000 for certain timber that had been cut off the property; appellant contended the timber was on the site at the time of its bid and contended it had a right to the timber under the terms of the contract. The case was tried before a jury, and the jury found for appellee. Appellant filed a timely motion for new trial on the usual general grounds, i.e., (1) the verdict was contrary to law; (2) the verdict was contrary to the evidence; and (3) the verdict was strongly against the weight of the evidence. The motion for new trial was denied by the trial court on August 8, 1996. It is from this order that appellant appeals.

Appellant’s sole enumeration of error is that there was insufficient evidence at trial to support the verdict.

“The appellate court will not disturb the trial court’s refusal to grant a new trial if there is any evidence at all to support the verdict, however slight, and regardless of what may be the character of the witnesses. Our function is to review the sufficiency of the evidence, and not to determine its weight. Though the evidence might have authorized a different verdict or the verdict is supported by only slight evidence or the evidence is conflicting or preponderates against the verdict[,] where no material error of law appears, the court will not disturb the trial judge’s judgment in overruling the motion for new trial.” (Citations and punctuation omitted.) Haynes v. McCambry, 203 Ga. App. 464, 465 (416 SE2d 893) (1992); Locke v. Vonalt, 189 Ga. App. 783 (377 SE2d 696) (1989).

In the case sub judice, the following evidence of probative facts supports the jury’s verdict as to both of the claims of appellant.

(a) Appellant’s claim for $13,330 deducted by appellee from the retainage.

Robert Ingram of Wise of Georgia testified that because of the delay of appellant in completing the site, they were asked to begin work prior to the full completion of the earthwork. Ingram further testified that after Wise of Georgia took possession of the site, there were six or seven weeks during which they were working on the site at the same time as appellant, that appellant was “spasmatic” in its work performance, and that there were days or weeks in which no work was performed by appellant. Ingram went on to testify that after having worked with the school board industry for approximately 40 years he knew that the contract between appellant and appellee called for appellant to complete the site in every respect, i.e., elevation, grading, and drainage. Ingram testified that his company had to finish work that was appellant’s responsibility and which was not complete when appellant left the site. Further, Wise of Georgia was paid between $12,000 and $13,000 to bring in additional fill so that the fill could be elevated for grass, roadways, sidewalks, and drainage; that Wise of Georgia’s contract could not be completed without the additional fill; and that Wise of Georgia was reimbursed for such work through a change order. After examining the change order, Ingram was able to testify that his company was reimbursed $12,400 for sums paid to his subcontractor for bringing in the additional fill in addition to the general contractor profit and overhead of seven and one-half percent which amounted to $930; the total payment was $13,330.

The subcontractor, Paul Krebs, testified that he was hired by Wise of Georgia to do the underground work, such as pipe work, sewer lines, sanitary sewer lines, water lines, and affiliated appurtenances connected therewith; that after he started the job, it was determined that the site was deficient on fill and was not to the grade required on the plan drawings; that he was then engaged by Wise of Georgia to complete the site work; and that he brought in 234 loads of fill which were placed and compacted at a price of $50 a load at a total cost of $11,700.

(b) Appellant’s claim for $10,000 for the value of the timber.

Joseph F. Kent, who is a timber dealer and broker, testified that he bought, cut and paid for the planted pine timber from the subject site. Kent further testified that he harvested all the pine timber between February 17, 1992, and March 6, 1992. Defendant’s exhibits 8, 9, and 10, which are documents generated by Kent’s company showing the weekly cutting and how much timber was harvested during this period of time, further reinforces and supports Kent’s testimony. Further, Kent testified that the only timber remaining on the property when he finished cutting on March 6, 1992, was some hardwood in a pond or wet area and possibly a few pines at the back of the site.

The date of the invitation to bid was May 1,1992, one month and 25 days after the planted pine timber was cut and removed from the subject site by Kent.

“ ‘Only when there is a complete absence of probative facts to support the conclusion reached does a reversible error appear. But where, as here, there is an evidentiary basis for the jury’s verdict, the jury is free to discard or disbelieve whatever facts are inconsistent with its conclusion. And the appellate court’s function is exhausted when that evidentiary basis becomes apparent, it being immaterial that the court might draw a contrary inference or feel that another conclusion is more reasonable.’ ” Smith v. Merck, 206 Ga. 361, 375-376 (57 SE2d 326) (1950).

Judgment affirmed.

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

Decided April 7, 1997.

Before Judge Rahn.

Robert F. Pirkle, for appellant.

Jones, Osteen, Jones & Arnold, Charles M. Jones, for appellee.


text:
    A97A0552.
    BATCHELOR v. BROWN et al.
    (486 SE2d 53)
    Decided April 7, 1997.
    Before Judge Cramer.

      Webb, Carlock, Copeland, Semler & Stair, William E. Zschunke, Melissa C. Duffey, for appellant.

      C. Arthur Moss, Jr., for appellees.
   Pope, Presiding Judge.

After their property was damaged in a fire started by a child who lived next door, plaintiffs Wally Brown and Dorothy Poole sued the child’s mother and David Batchelor, the appellant here, for negligence in supervising the child. David Batchelor was married to the child’s mother, but was not the child’s father or guardian. And at the time of the fire, David Batchelor and the child’s mother were separated, so he was not even present at the house that day. Accordingly, even if we assume all other elements of this cause of action can be shown, David Batchelor cannot be liable because he did not undertake to supervise the child and had no duty to supervise the child. The trial court’s denial of David Batchelor’s motion for summary judgment is therefore reversed. Cf. McPherson v. City of Ft. Oglethorpe, 200 Ga. App. 129, 131 (1) (407 SE2d 99) (1991) (if plaintiff cannot establish duty, an essential element of negligence, defendant cannot be liable and summary judgment is proper).

Judgment reversed.

Johnson and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A0810.
    COOK v. THE STATE.
    (485 SE2d 595)
   Judge Harold R. Banke.

Jennifer Cook was convicted of trafficking in methamphetamine and possession of tools for the commission of a crime. On appeal, she enumerates three errors.

The evidence, viewed in the light most favorable to the verdict, revealed the following. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996). On the night of Cook’s arrest, her codefendant, Jeffrey McMillan, was a guest at the Holiday Inn in Cartersville, where he frequently stayed on weekends. After McMillan checked in, elderly guests reported a burglary and police were dispatched. When police asked the desk clerk if he had seen anyone suspicious, he mentioned McMillan, who had been seen wandering through the hotel’s halls with a blue bank bag before leaving. Upon learning that McMillan had registered under several different names in the past, police got a description of his car and waited in the parking lot for him.

When McMillan returned with Cook, his passenger, the waiting officer stopped him in the parking lot and noticed that he appeared intoxicated. After McMillan failed several field sobriety tests, the officer arrested him for driving under the influence.

At this point, officers initiated a search of McMillan’s car. Behind the driver’s seat, officers found two police scanners and a bottle of vitamin B, a product used to cut methamphetamine. Cook sat on the front fender during the search. One of the officers noticed a blue bank bag under her jacket and asked her about it. She stated that McMillan had asked her to hide it for him. The bag contained $9,117, a syringe loaded with liquid methamphetamine, two sets of electronic scales, one of which contained drug residue, a spoon, plastic baggies, and a photograph of McMillan. Cook denied knowledge of the bag’s contents. After the officer explained that she would do well to come clean, Cook gave him a quarter gram of a white powdery substance and advised that she had more but needed some privacy to retrieve it. Cook then sat in the rear of the police car and removed a bag containing a white powdery substance, some of which spilled on the car seat when the bag split open. After being told she was going to prison, she ingested enough of the substance to require three days of hospitalization. The bag contained 36 grams of methamphetamine. A search of McMillan’s room revealed a .380 handgun, ammunition, a spoon with drug residue, plastic baggies, and men’s clothing. Held:

1. The evidence was sufficient to allow the jury to find each essential element of trafficking in methamphetamine. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). A conviction on this offense requires proof of knowing possession of 28 grams or more of methamphetamine. OCGA § 16-13-31 (e). The evidence that Cook pulled the plastic bag filled with over 34 grams of methamphetamine from her pants satisfies each element. See Capers v. State, 220 Ga. App. 869, 875 (5) (470 SE2d 887) (1996).

This conclusion remains unchanged notwithstanding Cook’s contention that all the methamphetamine belonged to McMillan. Assuming that is true, the evidence was nevertheless sufficient to support her conviction as a party to the crime. OCGA § 16-2-20 (b) (3). Her conduct in hiding the drugs from the police and then injesting them in the police car demonstrated her intent to assist McMillan in his commission of the crime. See Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996); see Bowe v. State, 201 Ga. App. 127, 131 (5) (410 SE2d 765) (1991) (intent determined by conduct both before and after offense).

The evidence is likewise sufficient to support her conviction as a party to the crime of possession of tools for the commission of a crime. OCGA § 16-7-20. While proof of mere presence during a crime’s commission will not support a conviction as a party to a crime, presence, companionship, and conduct before and after the crime are circumstances from which the intent to participate in the crime may be inferred. Looney v. State, 221 Ga. App. 224, 225 (1) (471 SE2d 243) (1996).

The evidence established that McMillan possessed electric scales, spoons, and baggies, tools commonly used in drug sales. McMillan-admitted that he used the scales to weigh methamphetamine. The fact that Cook hid these for him is sufficient to support her conviction, particularly in light of testimony that the bag would not zip shut.

2. The trial court did not commit reversible error by refusing to charge the jury on the lesser included offense of simple possession. Howard v. State, 220 Ga. App. 579, 582-583 (2) (469 SE2d 746) (1996); see Hancock v. State, 210 Ga. App. 528, 533 (3) (c) (437 SE2d 610) (1993). “ ‘(A) written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.’ [Cit.]” Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994).

In Howard, this Court found that simple possession of cocaine was a lesser included offense of cocaine trafficking. Howard, 220 Ga. App. at 582-583 (2). The rationale for the simple possession instruction was that possession of any amount of cocaine was necessarily included in the elements of trafficking, which included knowing possession of 28 grams or more of cocaine. Id.

This same rationale applies here. However, as in Howard, the error does not require reversal in light of the overwhelming evidence that Cook actually possessed at least 36 grams of methamphetamine during her attempt to assist McMillan in concealing the offense from authorities. See Edwards, 264 Ga. at 133 (if it is highly probable that the failure to give instruction did not contribute to the verdict, reversal is not required).

3. We reject Cook’s contention that reversal is required because the trial court permitted McMillan to raise questions about Cook’s character during her cross-examination. Cook agreed to testify for the State. In so doing, she explained that the reason she overdosed was “because I wasn’t used to taking methamphetamines.” On cross-examination, McMillan then inquired whether she had dated an individual incarcerated for selling drugs. Over objection, the court permitted this line of questioning to impeach Cook’s statement about her lack of experience with methamphetamine. When McMillan then asked if the incarcerated individual had introduced her to methamphetamines, Cook answered in the affirmative and admitted to occasional use of the drug.

Decided April 7, 1997.

Before Judge Pope.

Thomas N. Brunt, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

When criminal defendants elect to place their actual character in issue through statements to the jury, such statements may be impeached with evidence disproving them. Lucas v. State, 215 Ga. App. 293, 295 (2) (450 SE2d 313) (1994). McMillan was entitled to impeach Cook’s statement that she was not accustomed to taking methamphetamine. See id. In any event, the officers’ testimony detailing Cook’s arrest renders harmless the error, if any, in allowing these questions. See Keef v. State, 220 Ga. App. 134, 140 (3) (469 SE2d 318) (1996).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A97A0826.
    SIMS v. THE STATE.
    (486 SE2d 365)
   Birdsong, Presiding Judge.

Steven Sims appeals his conviction for armed robbery. He challenges the sufficiency of the evidence and claims he was prejudiced by certain comments a prospective juror made during voir dire. He also asserts error in the trial court’s admission in evidence of his mug shot and of a gun found in his home. Held:

1. We review Sims’ challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), construing the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Just before 9:00 p.m. on December 27, 1995, a man wearing a mask, black sweatshirt, jeans, and tennis shoes entered the Corner Pantry convenience store wielding a pistol. He held up the store and fled with a paper bag full of cash and change. Although the cashier could not identify her assailant, the incident was captured on a videotape which the jury viewed at trial.

Around 9:00 p.m., Sims and another man knocked on the door of an apartment near the Corner Pantry occupied by Michael Moody. Moody testified Sims and the other man had a mask, a gun, and a paper bag full of money. They soon left, threatening Moody that he should not tell anyone, but Moody called the police. Athens police retrieved from a trash can outside the apartment a mask, which the clerk identified as the one the robber wore.

Trial testimony shows Moody was not completely cooperative with police at first and wanted $100 for Sims’ identity. Several days later, however, Moody confirmed to an Athens detective that Steven Sims was one of the men. In a resulting search of Sims’ room in his mother’s house, police found a silver revolver hidden in the closet. Moody testified at trial that this gun “looked like” the one Sims and his companion had the night of the robbery. The detective also testified this gun appeared to be the gun shown in the videotape of the robbery. The detective further testified that he had known Sims for several years, and the robber in the videotape possessed the same build and mannerisms as Sims. When Sims was arrested, he was wearing Adidas tennis shoes matching the description of those worn by the robber. Sims received his Miranda warnings, and police told him that they knew where he had gone after the robbery and that they had recovered the mask, sweatshirt, and shoes shown in the videotape. Asked if he wanted to explain, Sims replied, ‘You’ve got everything, what else is there for me to say?” He also asked the officers several times, “Who told on me?”

This evidence, construed most strongly in favor of the jury’s verdict, supports the conviction. Although the jury heard that Moody had at one point recanted his statement implicating Sims, Moody claimed he changed his statement because he was afraid of Sims. Moody’s credibility was a question for the jury, and not for this Court, to determine. See Jones v. State, 220 Ga. App. 161, 162 (1) (469 SE2d 300). Furthermore, the detective’s testimony identifying Sims as the person in the videotape, Sims’ own statements, and independent physical evidence allowed the jury to determine Sims was the robber shown in the videotape. See Shropshire v. State, 223 Ga. App. 118 (1) (476 SE2d 859).

2. The trial court did not err in refusing to grant a mistrial based on a prospective juror’s comments during voir dire. In response to questioning, the venireman stated that he had worked with “mentally retarded kids, behavior kids coming up here, kids that have been subjected to drugs” and had also worked with the YDC, or Youth Development Center. Referring to Sims, then a young adult, he stated, “I’m not totally sure, but I think I remember his face, but I’m not sure.” Defense counsel requested a mistrial, which the court denied, but refused the court’s offer to give curative instructions. The court later questioned each prospective juror individually to determine whether he or she would be influenced by anything said by other prospective jurors during voir dire, and every juror answered negatively. The venireman’s comments did not establish he knew Sims, nor did they even raise any inference that Sims had a criminal record or had ever been detained at the YDC, or even that the juror thought Sims had. The comments were not inherently prejudicial, and the trial court took appropriate action to ensure the jury had not been influenced by the statements. Therefore, the trial court did not err by denying Sims’ motion for mistrial. See Nelson v. State, 222 Ga. App. 443, 444 (2) (474 SE2d 304); Yarber v. State, 159 Ga. App. 392, 393 (283 SE2d 620). This case is very different from Lingerfelt v. State, 147 Ga. App. 371, 372 (1) (249 SE2d 100), in which the venireman’s statements in a rape case accused the defendant of being a sexual deviant.

3. The trial court did not improperly allow character evidence by admitting “mug shot” photos of Sims after removing from those photographs any information which might indicate the nature of the photos. The detective identified these as photos of the person who Moody said came to his apartment the night of the robbery. Considering Moody’s later refutation of that statement, these photographs were relevant to show his prior consistent statement. Because the photographs were relevant and did not indicate Sims had any prior arrest or criminal record, the photographs were admissible. See Edwards v. State, 224 Ga. App. 14, 17-18 (3) (479 SE2d 754). Moreover, testimony that a defendant’s name and photograph are on file with police does not alone put defendant’s character in issue. Milsap v. State, 196 Ga. App. 820, 822 (1) (397 SE2d 168). Compare Roundtree v. State, 181 Ga. App. 594 (353 SE2d 88), in which the photographs indicated the date a defendant was arrested for a prior crime.

4. In Sims’ final enumeration of error, he contends the trial court erroneously admitted the silver, pearl-handled revolver found in the closet of his room in his mother’s house. We find no error. The clerk and the detective testified the gun in the videotape appeared to be a silver revolver, and Moody testified this gun “looked like” the one Sims brought to his apartment the night of the robbery. Whether the gun admitted into evidence was the weapon used in the robbery was, therefore, a jury question, and the trial court did not err by ruling this evidence relevant and admissible. Sims v. State, 197 Ga. App. 214, 215 (1) (398 SE2d 244); Holloway v. State, 190 Ga. App. 528, 530 (3) (379 SE2d 542). The case Sims cites, Paxton v. State, 160 Ga. App. 19, 23 (6) (285 SE2d 741) is not authority to the contrary, for a key question there was whether the defendant used a gun in the attack, and thus the State’s arbitrary introduction in evidence of a weapon having no connection whatsoever to the crime or to the defendant was found to prejudice that defendant.

Judgment affirmed.

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

Decided April 7, 1997.

Before Judge Gaines.

Rosemary M. Hathaway, for appellant.

Harry N. Gordon, District Attorney, Henry R. Thompson, Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A97A0301.
    SANDERS v. COMMERCIAL CASUALTY INSURANCE COMPANY.
    (485 SE2d 264)
   Smith, Judge.

John Sanders, d/b/a Sanders Service Company, brought suit against Commercial Casualty Insurance Company to recover on a payment bond issued to JaTech and Associates, Inc., the general contractor on a sidewalk construction project for the City of East Point. Sanders alleged that he entered into a contract with JaTech to perform concrete work on the project and that he had not been paid in accordance with the terms of that contract. Commercial Casualty answered, denying the existence of a contract and alleging that Sanders had been paid in full. The case was tried to a jury. After Sanders rested his case, Commercial Casualty moved for a directed verdict, which was granted. Judgment was entered in favor of Commercial Casualty, and Sanders appeals following the denial of his motion for new trial.

1. Sanders contends the trial court erred in directing a verdict against him on the basis that he failed to prove all elements of the contract sued upon. We agree and reverse.

Sanders testified that he entered into a written contract with M & R Company & Associates, a subcontractor on the sidewalk project, to perform certain specified work for $9,000. Sanders testified that M & R was “fired” by the general contractor, JaTech, and that he left the work site as well, believing that because he was M & R’s subcontractor, he would not be allowed to work. He testified that the next day, JaTech’s principal, Jimson Akinpelu, called him at home and asked him to finish the job. According to Sanders, Akinpelu told him “don’t worry about [a] contract”; he told him just to submit bills for his truck and labor and “he would take care of it.” Sanders worked on the project intermittently for several months and completed the work. He performed the work listed in his original subcontract with M & R plus additional work. He submitted the payroll and equipment records regularly, as requested by Akinpelu. His complaint as amended claimed he was entitled to payment in the amount of $69,340 for work performed, plus interest, determined by adding all the bills he submitted to JaTech for payroll and equipment. He was paid only $8,000.

Sanders called Akinpelu during his case-in-chief for purposes of cross-examination. Akinpelu’s testimony differed from that of Sanders. He testified that when JaTech informed M & R it was dissatisfied with the work of another subcontractor M & R had procured to do this particular work, M & R proffered Sanders as a subcontractor to complete the work. He also testified, however, that M & R brought Sanders to him and told him Sanders “would be working ... on their behalf.” Commercial Casualty argued below and contends on appeal that this constituted an “assignment” by M & R to JaTech of its contract with Sanders, so that Sanders was working for JaTech for the amount stipulated in Sanders’s written contract with M & R. Akinpelu testified that he instructed Sanders to submit payroll forms to him as the job progressed.

The trial court granted Commercial Casualty’s motion for directed verdict because it found that Sanders did not prove a prima facie case and that the evidence did not establish the necessary .elements of the alleged oral contract between Sanders and Commercial Casualty’s principal, JaTech.

“A contract is an agreement between two or more parties for the doing or not doing cp some specific thing.” OCGA § 13-1-1. To be enforceable, it must be set forth with “such certainty and completeness that either party may have a right of action upon it. . . . When a contract is substantially alleged, some details might be supplied under the doctrines of reasonable time or reasonable requirements. But indefiniteness in subject matter so extreme as not to present anything upon which the contract may operate in a definite manner renders the contract void.” (Citations and punctuation omitted.) Jackson v. Williams, 209 Ga. App. 640, 642 (1) (434 SE2d 98) (1993).

Sanders’s testimony set forth the elements of a contract. The contract, as alleged in Sanders’s testimony, is not so indefinite or uncertain that it is unenforceable. He testified that he agreed with JaTech, in the person of Akinpelu, that he should complete the concrete work on certain streets in the East Point sidewalk project, and that he would submit bills for his equipment and labor, which would be paid by JaTech. Because such a contract is not within the Statute of Frauds, the fact that it was an oral contract did not make it unenforceable. OCGA § 13-5-30.

The law does not favor destroying contracts on the basis of uncertainty, and a contract that may originally have been indefinite may later acquire more precision and become enforceable because of the subsequent words or actions of the parties. Because the determination of whether a contract contains the requisite certainty must be made at the time enforcement is sought, an objection of indefiniteness may be obviated by performance on the part of one party and the acceptance of the performance by the other. Steinemann v. Vaughn & Co., 169 Ga. App. 573, 577 (313 SE2d 701) (1984).

Sanders may have been somewhat inarticulate in explaining the terms of the contract, and inconsistencies may have existed between his deposition testimony and his trial testimony regarding the rates he charged for his workers. These matters, however, go only to the credibility of his testimony. His demand for payment under the contract was explicit: he alleged that the agreement was that he was to be paid according to the bills he submitted. Those bills were admitted into evidence. The scope of the contract was not in dispute, and Sanders’s work was accepted. This was sufficient to establish a prima facie case.

Of course, Sanders’s testimony was in conflict with that of Akinpelu. But here, as in Steinemann, that conflict does not reveal a problem with uncertainty or failure to establish a contract; but instead, it presents material issues of fact that required resolution by the jury. When a motion for directed verdict is made, the issue to be determined is whether the evidence introduced, with all reasonable inferences from that evidence, demands a verdict for the movant. A directed verdict may be granted only when, without weighing the evidence, only one reasonable conclusion emerges as to the proper judgment. When the evidence is in conflict, or when insufficient evidence is presented to demand a judgment for the movant, a directed verdict is improper. Jackson, supra at 642 (1). A jury must resolve the issues of whether a separate contract existed between Sanders and JaTech or whether instead M & R assigned its contract with Sanders to JaTech so that Sanders was performing on that contract. The trial court erred in granting a directed verdict in favor of Commercial Casualty.

2. Because this case must be retried, we consider Sanders’s contentions that the trial court also erred in ruling that Sanders would not be entitled to recover on a theory of account stated and in refusing to allow the jury to consider a theory of recovery based upon quantum meruit even in the absence of a contract. Of course, should the jury decide that Sanders was working under an oral contract with JaTech, it would not consider these theories. But should the jury decide that neither Sanders’s contract with M & R nor his alleged contract with JaTech was enforceable, Sanders would be entitled to have the jury consider both alternative theories.

(a) If the jury concludes that neither contract existed, it could consider whether the work Sanders performed established an account between the parties and whether, when JaTech accepted Sanders’s billings, the open account became an account stated. Sanders’s claim was for “an obligation for the payment of money arising out of a transaction to . . . furnish . . . goods or services other than a ‘retail installment transaction,”’ and as such was a “commercial account.” OCGA § 7-4-16. “ ‘An account stated is an agreement by which persons who have had previous transactions with each other fix the amount due in respect to such transactions and the one indebted promises payment of the balance. (Cits.)’ ” Kay Solar Systems v. Rome Printing Co., 160 Ga. App. 825, 826 (1) (287 SE2d 675) (1982).

An open account may become an account stated even without an express agreement if the account is rendered to the debtor and the debtor fails to object to it. Id. In such case, “a jury ‘might be authorized to infer that the failure of the party to raise [an] objection was an implied agreement on his part that the account was correct’; but this inference is not demanded as a matter of law. [Cit.]” Lawson v. Dixie Feed &c. Co., 112 Ga. App. 562, 564 (2) (145 SE2d 820) (1965). In this case, the jury could consider whether Sanders turned in billings to JaTech periodically and whether Akinpelu’s failure to object to these accounts established an implied promise to pay the account.

(b) If the jury concludes that recovery may not be premised upon any other theory advanced, it may consider quantum meruit. Quantum meruit applies when as a matter of fact no contract exists, and a benefit has been conferred upon the party sought to be charged by the party contending an unjust enrichment. Ga. Tile Distrib. v. Zumpano Enterprises, 205 Ga. App. 487, 488 (1) (422 SE2d 906) (1992). OCGA § 9-2-7 provides in pertinent part that “[o]rdinarily, when one renders service . . . which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” Even if neither the oral contract alleged by Sanders nor the written contract with M & R alleged by Commercial Casualty governed the transaction here and no account existed, JaTech was conferred a benefit by Sanders. Sanders would be entitled to reasonable compensation for the work he performed.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

Decided April 8, 1997.

Before Judge Cook.

Levy & Adams, D. Merrill Adams, for appellant.

Thompson & Slagle, Dewitte Thompson, Jr., Jefferson B. Slagle, for appellee.

       Commercial Casualty also filed a third-party complaint against JaTech, but that is not material to this appeal.

       Akinpelu testified, however, that Sanders did not submit them until they were again requested and he gave Sanders the proper forms.


author: Blackburn, Judge.

text:
    A97A0407.
    FRIEDLANDER v. HMS-PEP PRODUCTS, INC. et al.
    (485 SE2d 240)
   Blackburn, Judge.

Mitchell K. Friedlander appeals the trial court’s grant of summary judgment in favor of HMS-PEP Products, Inc. (Pep), Gregory Thomas, and an unspecified number of John Doe defendants. Fried-lander’s suit alleged violations of the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq., and the False Advertising Act, OCGA § 10-1-420 et seq. His primary contention is that the trial court erroneously found that he lacked standing to bring suit under either of these statutes.

Friedlander holds a patent for a weight loss drug product. With the exception of some tests which were done at the inception of the patent, Friedlander has never produced a product from this patent which could be marketed to the consuming public. Although he plans to eventually seek approval from the Food & Drug Administration (FDA) for a tablet containing his patented ingredients, he has yet to apply for any such approval. He admits that it could take years to obtain the FDA approval he needs to sell his product to consumers. Pep is the manufacturer of two weight loss products, Diet Pep and Ultra Diet Pep. Pep markets these products as dietary supplements, and sells them nationwide at health food stores, grocery stores, and drug stores.

1. The trial court determined that Friedlander lacked standing to maintain his claims under either the Uniform Deceptive Trade Practices or the False Advertising Acts. The court based this ruling upon its findings that Friedlander was neither selling nor marketing a weight control product, and that he and Pep were not competitors in the weight loss market. Friedlander enumerates these findings as error.

(a) Injunctive relief is the only remedy available to a party under the Uniform Deceptive Trade Practices Act, OCGA § 10-1-370 et seq. To receive injunctive relief, a person must be “likely to be damaged by a deceptive trade practice of another.” OCGA § 10-1-373 (a). Fried-lander contends he is damaged or is likely to be by the lack of consumer confidence in the marketplace regarding weight loss products in general, brought about by the large number of false weight loss products like Pep’s. He also claims that Pep’s actions have damaged his reputation. The record, however, contains no evidence in support of either of these propositions.

Friedlander’s contention that he is likely to be damaged in the future, when he ultimately produces a weight loss product, cannot confer standing in this case. Friedlander has no product on the market competing with Pep’s, he is years away from having any such product, and it is possible that he may never have such a product. With respect to current damages, Friedlander contends that the affidavit of one of his investors proves he has been damaged. This affidavit states that the investor is willing to invest further money in Friedlander’s product “but for the fact that [Pep’s products] continue to be sold in the marketplace without substantiation of their safety and efficacy or undergoing required premarket approval.” Fried-lander is not entitled to an injunction for deceptive trade practices where the damages he claims are so remote and speculative as to avoid any attempt to quantify them. Such is the case with any damages which may be inferred from this investor’s affidavit. These presumed damages are not sufficiently concrete to either confer standing or justify the issuance of an injunction.

Friedlander also contends that he has standing because he is Pep’s competitor — he receives royalties from another company for the sale of its weight loss products. However, the record indicates that Friedlander does not receive any such royalties, because he executed an assignment of these royalty rights to another company. He further argues that he has standing because the Supreme Court found that he and the maker of another diet control product were competitors in Friedlander v. PDK Labs, supra, 266 Ga. 180, but PDK Labs is distinguishable. It specifically addressed Friedlander’s standing under the Georgia Fair Business Practices Act, and that Act is not at issue in this case. Additionally, as we are faced with different parties and a different record than the Supreme Court reviewed in reaching its decision in PDK Labs, we are not bound to conclude that Friedlander has standing as a matter of law.

The trial court correctly concluded that Friedlander was not a person likely to be damaged by Pep’s allegedly deceptive trade practices, as Friedlander has failed to show the existence of some interest he possesses capable of sustaining damages from Pep’s actions. At the very minimum, Friedlander must show some causal connection between something Pep has done and his own non-speculative damages in order to receive relief. Under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), where a defendantmovant on a motion for summary judgment shows the court that there is “no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case,” then summary judgment is appropriate. Friedlander having failed to “point to specific evidence giving rise to a triable issue,” summary judgment for lack of standing on the Deceptive Trade Practices claim was proper. Id.

(b) Friedlander also contests the trial court’s finding that he lacked standing to pursue his claims under the False Advertising Act, OCGA § 10-1-420 et seq. In order for a party to receive injunctive relief under that Act, the party must be “aggrieved or about to be aggrieved” by the false advertising sought to be enjoined. OCGA § 10-1-423. In the same way that he failed to show he was damaged or likely to be damaged by Pep’s allegedly deceptive trade practices, Friedlander has also failed to show that any of Pep’s advertising has aggrieved him or potentially will aggrieve him. Friedlander therefore lacks standing to pursue this claim, and the trial court correctly granted summary judgment on this issue.

2. Friedlander contends the trial court erred in determining he lacked standing to assert violations of the Federal Food, Drug & Cosmetic Act, 21 USCS § 301 et seq. According to Friedlander, Pep’s products are new drugs being illegally sold without FDA approval. However, the Act provides that all proceedings for its enforcement must be brought by the United States, or, in certain circumstances, by a state. See 21 USCS § 337 (a). No private right of action exists for its enforcement. See Nat. Women’s Health Network v. A. H. Robins Co., 545 FSupp. 1177, 1178 (Mass. 1982). Accordingly, Friedlander has no standing to bring any sort of claim against Pep for allegedly violating this Act, and to the extent he has attempted to do so, the trial court did not err in granting summary judgment for Pep.

Decided March 19, 1997

Reconsideration dismissed April 9, 1997

Before Judge Wyatt Cummings Moore.

Mitchell K. Friedlander, pro se.

Arnall, Golden & Gregory, William H. Kitchens, John C. Spinrad, for appellees.

3. In light of our holding in Division 1, we need not address Friedlander’s contention that summary judgment should have been granted for him.

4. Because Friedlander could have no reasonable basis for anticipating reversal of the trial court’s judgment, see Hallisy v. Snyder, 219 Ga. App. 128, 129 (464 SE2d 219) (1995), pursuant to Court of Appeals Rule 15 (b), a penalty of $500 for frivolous appeal is imposed against Friedlander. The trial court is ordered to enter judgment against Friedlander in this amount upon return of the remittitur.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       Friedlander’s complaint also alleged a violation of the Fair Business Practices Act, OCGA § 10-1-390 et seq., but after the Supreme Court determined in Friedlander v. PDK Labs, 266 Ga. 180 (465 SE2d 670) (1996), that Friedlander lacked standing to pursue a claim under that act, he abandoned that claim.

       Gregory Thomas is the proprietor of a General Nutrition Center health food store where Friedlander purchased Pep’s products. Friedlander never amended his complaint to specify who his other John Doe defendants are, but he maintains that they are Georgia retailers currently selling and marketing Diet Pep and Ultra Diet Pep. As Friedlander’s claims include all of the defendants, they will be collectively referred to as Pep.

       Friedlander’s first amended complaint seeks both restitution and injunctive relief. As injunctive relief is the only remedy available under the Act, summary judgment was appropriate with respect to all claims for monetary relief. See Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 498 (2) (455 SE2d 601) (1995).

       Friedlander does not allege that Pep infringed on his patent, that he is a consumer of Pep’s products who has been damaged by the products, or that Pep’s products ever misled him.

       Friedlander’s affidavit attached to his supplemental appellate brief stating that Pep’s activities have reduced his royalties cannot be considered by this Court, as it is not contained in the record. See Ehlers v. Schwall & Heuett, 177 Ga. App. 548, 550 (340 SE2d 207) (1986).


author: Ruffin, Judge.

text:
    A97A0683.
    XIONG et al. v. LANKFORD.
    (485 SE2d 534)
   Ruffin, Judge.

Seu and Joua Yang Xiong, the parents of Roger Xiong, brought this wrongful death action against Warren Lankford, who was operating a motor vehicle that struck and killed Roger. The jury returned a verdict in favor of Lankford, and the Xiongs appeal. For reasons which follow, we affirm.

1. The Xiongs enumerate as error the trial court’s denial of their motion for judgment notwithstanding the verdict. According to the Xiongs, a j.n.o.v. was mandated because Lankford was negligent in not looking where he was driving and in driving in excess of the posted speed limit at the time of the collision. We disagree.

“Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [the Xiongs’ motions] for . . . new trial and j.n.o.v. will not be disturbed.” (Citation and punctuation omitted.) Southeastern Security Ins. Co. v. Hotle, 222 Ga. App. 161, 162 (1) (473 SE2d 256) (1996).

In this case, eyewitnesses testified that Roger, a five-year-old boy, was bent over in the roadway at least one foot from the curb, tying his shoe, prior to the impact. When Roger stood up, he was almost immediately struck by Lankford’s vehicle. Eyewitness testimony further established that Roger was in the shadow of some overgrown brush from a vacant lot while he was tying his shoe, contributing to Lankford’s inability to see Roger until impact. Similarly, Sergeant Anderson, the police officer who investigated the incident, testified that Lankford’s view of Roger would have been obstructed by brush existing on a vacant lot close to where the impact occurred. Sergeant Anderson further testified that Lankford’s speed at the time of the incident was 25 mph, the posted speed limit. At least one eyewitness also testified that, in his opinion, Lankford was not speeding.

Contrary to the Xiongs’ contention, Thomas v. Kite, 206 Ga. App. 80 (424 SE2d 305) (1992) does not control. In Thomas, the defendant admitted she was not watching where she was going prior to impact, and the court specifically noted that there was no evidence to suggest that the incident was unavoidable. In the present case, Lankford testified that he maneuvered around cars parked on the right side of the roadway, that he reduced his speed when he observed children on the left side of the roadway, and that he was unable to see Roger until the time of impact. Lankford’s inability to see Roger was corroborated by Sergeant Anderson and eyewitnesses, who testified that nearby shrubbery obstructed Lankford’s vision of Roger. Additionally, there was testimony from three eyewitnesses that if they had been driving, they would have been unable to see Roger in time to avoid striking him.

Due to the conflict in the evidence regarding Lankford’s alleged negligence, the trial court properly denied the Xiongs’ motion for j.n.o.v. Even if Lankford was negligent to some degree, the jury was authorized to find in his favor. The jury could have concluded that: (1) Roger’s negligence in stopping in the roadway and bending over his shoe just beyond a curve where shrubbery obstructed the view of oncoming traffic, or (2) his parents’ negligence in permitting a five-year-old boy to walk home from school unsupervised by an adult equaled or exceeded that of Lankford’s. OCGA § 51-11-7; see also Union Camp Corp. v. Helmy, 258 Ga. 263, 267 (367 SE2d 796) (1988).

2. In their third, fourth and fifth enumerations of error, the Xiongs assert the trial court erred in admitting opinion testimony of non-expert witnesses in response to hypothetical questions and in denying their motion for new trial on this ground. Specifically, the Xiongs argue that the eyewitnesses should not have been permitted to testify that, in their opinion, the accident was unavoidable. We disagree.

Under OCGA § 24-9-65, any witness may give his opinion provided a sufficient foundation for the opinion is laid. American Golf Corp. v. Manley, 222 Ga. App. 7, 9 (3) (473 SE2d 161) (1996). “A witness in a position to know from his own experience what occurs in the ordinary course of affairs in a given situation should be allowed to testify, the credit to be given it being left to the jury.” Witt v. Robbins, 163 Ga. App. 182, 184 (2) (292 SE2d 894) (1982). “ ‘[T]he status of the witnesses] as lay or expert would go, not to admissibility, but to credibility.’ [Cit.]” Manley, supra at 9 (3).

Contrary to the Xiongs’ argument, we find that Eric Waller, Shannon Allen and Jeannie Harvey all provided a sufficient basis for their opinions. These witnesses testified that they were very familiar with the area and had driven the same route as Lankford on several occasions.

Waller testified that he had a good view of the road and saw a little boy in the roadway at a point where the road curved. He simultaneously saw Lankford’s vehicle approximately five feet from the boy and traveling toward the boy. He also identified the shrubbery that obscured Lankford’s view of the boy and testified that Lankford’s vehicle was traveling only 25 mph to 30 mph. Waller was then asked the following question: “Mr. Waller, I want you to assume that you were driving down the hill in question under the same lighting conditions as you observed on the day of the accident with the same vegetation on the lot as you described earlier adjacent to where this occurred; came around the curve to the right within the legal speed limit. Do you have an opinion as to whether you would be able to see the child in the same position that you observed on the day of the accident in time to avoid striking the child?” Waller responded that he had an opinion and that his opinion was, “No.”

Allen testified that it was sunny and clear on the day in question, although there were shadows from the trees. She saw Roger and Lankford’s car almost simultaneously. Allen described the overgrown vegetation on the vacant lot that obstructed a driver’s view when traveling in either direction on the road. Allen was asked the same question as Waller, and she, too, testified that a driver would not have been able to see the boy and would not have been able to avoid the accident.

Harvey testified that she saw Roger immediately upon impact. She testified that the weather was sunny on the day in question, with some shadows. She further testified that there was a curve in the road and there was a lot of brush around the curve. According to Harvey, she had driven down the road with the brush as it existed on the day of the incident. She was asked whether a driver traveling in the same direction as Lankford under the conditions set forth in the hypothetical question would have been able to see the child in the street in order to avoid the incident. She responded, “[b]ecause of the curve and with the brush, and the child was so small, I don’t, you know, I don’t think that it could have been avoided.”

It is well settled that “[determination of whether the witness has established sufficient opportunity for forming a correct opinion, and a proper basis for expressing his opinion, is for the trial court. [Cit.]” Doughty v. Simpson, 190 Ga. App. 718, 720 (2) (380 SE2d 57) (1989); see also Doughty v. State, 175 Ga. App. 317, 319 (2) (333 SE2d 402) (1985). “ ‘[T]his decision will not be disturbed absent an abuse of discretion.’ [Cit.]” Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 531 (2) (398 SE2d 817) (1990) (physical precedent only). The witnesses at issue stated the bases for their opinions and demonstrated to the satisfaction of the trial court that they had the opportunity for forming opinions. Hence, we find no abuse of discretion in the trial court’s admission of the opinion testimony. We likewise find that the trial court did not err in denying the Xiong’s motion for new trial on this ground.

Moreover, contrary to the Xiongs’ assertion, the witnesses were “questioned not as to [their] opinion on the ultimate issue of negligence, but on whether, in [their] opinion, as an eyewitness and in the given fact situation, there was anything [Lankford] could have done to prevent the [incident].” Foster v. Morrison, 177 Ga. App. 250, 252 (5) (339 SE2d 307) (1985). This is a proper line of questioning. Id.

3. In their last enumeration of error, the Xiongs allege that the trial court erred in denying their motion for new trial because the transcript and exhibits were lost or destroyed by the court reporter charged with maintaining their accuracy and safekeeping. Pursuant to OCGA § 5-6-41, the trial court held a hearing during which the parties and the court reviewed proposed narrative transcripts and replacement exhibits. The trial court further determined that a new trial was not demanded. As previously stated, “[a]s long as there is some evidence to support the verdict, the denial of [the Xiongs’ motions] for . . . new trial and j.n.o.v. will not be disturbed.” Hotle, supra at 162. Since the trial court followed the proper procedure in re-creating a narrative transcript to the best of its ability, and since we find some evidence in both the available transcript and the narrative transcript to support the jury’s verdict in favor of Lankford, we will not disturb the exercise of the trial court’s discretion in denying the Xiongs’ motion for new trial on this basis.

Judgment affirmed.

Birdsong, P. J, and Eldridge, J., concur.

Decided March 25, 1997

Reconsideration denied April 9, 1997

Before Judge Fuller.

Graham G. McMurray, G. Clyde Dekle III, for appellants.

Goodman, McGuffey, Aust & Lindsey, William P. Claxton, Joseph M. Maguire, Jr., for appellee.


text:
    A97A0724.
    SKIDMORE v. THE STATE.
    (485 SE2d 540)
   Birdsong, Presiding Judge.

Kevin Skidmore, a juvenile, was charged with armed robbery as an adult pursuant to OCGA § 15-11-5 (b) (2) (A) (vii) for his part in the holdup of a Clarkston convenience store. He was convicted by a jury, and sentenced to ten years in prison. On appeal he challenges the trial court’s refusal to sever his trial from that of his co-defendant and its admission of his custodial statements. He also contends OCGA § 15-11-5 (b) (2) (A) is unconstitutional and was discriminatorily applied to black males such as he. Held:

1. In this non-death penalty case, the trial court exercised its discretion and denied Skidmore’s motion to sever his trial from that of his co-defendant, Harrison, whom the jury acquitted. We will not disturb its decision absent an abuse of discretion. Smith v. State, 267 Ga. 372, 373 (2) (477 SE2d 827).

This case involved only two defendants. The trial court instructed the jury to consider the guilt or innocence of each defendant separately, and the jury acquitted Skidmore’s co-defendant. Therefore, we find no danger that the number of defendants was so great as to cause confusion of the evidence and the law. See Owen v. State, 266 Ga. 312, 314 (2) (467 SE2d 325). Although a custodial statement Harrison made was introduced at trial, the trial court cautioned the jury to consider that statement only against Harrison. See Story v. State, 194 Ga. App. 187, 188 (1) (390 SE2d 96). Harrison testified that Skidmore forced him to commit the armed robbery. However, antagonistic defenses alone do not require severance, and Skid-more fails to show how a separate trial would have prevented the State from introducing Harrison’s testimony. See Williams v. State, 213 Ga. App. 458, 459-460 (2) (444 SE2d 831).

Furthermore, the cashier identified Skidmore and Harrison as her assailants, and the State introduced in evidence Skidmore’s statement admitting he participated in the holdup. Considering such overwhelming independent evidence against Skidmore, we find the trial court’s denial of Skidmore’s motion to sever did not prejudice him to the point of denying him due process of law. See Williams, supra; Smith, supra at 373 (2).

2. Skidmore claims the trial court erred by admitting two custodial statements he made to police. As he acknowledges, any alleged violation by police of the juvenile arrest procedures outlined in OCGA § 15-11-19 (a) does not render the custodial statements inadmissible; rather, the issue is whether Skidmore made these statements after freely, knowingly, and voluntarily waiving his Miranda rights. Lattimore v. State, 265 Ga. 102, 104 (2) (b) (454 SE2d 474).

The factors applied by a trial court in determining whether a juvenile’s custodial statements were knowingly, freely, and voluntarily given are: the age and education of the accused; his knowledge of the charges against him and of his right to consult with an attorney; whether he was allowed to consult with relatives; whether he was interrogated before or after being formally charged; the method and length of the interrogation; whether the juvenile refused to give a voluntary statement on prior occasions; and whether the juvenile later repudiated the custodial statement. McKoon v. State, 266 Ga. 149, 150 (2) (465 SE2d 272).

Testimony at the Jackson-Denno hearing and at trial revealed that an officer took Skidmore into custody and informed him he was a suspect in the armed robbery of a store. Skidmore’s mother joined him at the Clarkston police station and was present when police read Skidmore his rights. Skidmore filled in blanks on a form styled “Advice of Miranda Warnings/Rights to Juveniles,” indicating that he was sixteen years old and in the tenth grade. The form detailed, in simple language, each of Skidmore’s Miranda rights. He and his mother signed the form twice, acknowledging that he understood each of his rights, that he was willing to waive his rights and answer questions, and that no promises or threats had been made to him. Skidmore signed the form at 2:51 p.m. and wrote out a statement which he and his mother signed. An officer signed as a witness to the statement at 3:17 p.m.

After he gave this first statement, Skidmore left the police department with his mother but returned with her at 4:09 p.m. He and his mother again signed juvenile Miranda waiver forms, and he wrote out another statement, which he and his mother signed and the officer witnessed at 4:34 p.m.

This evidence supports the trial court’s finding that Skidmore understood his rights but freely and voluntarily waived them and made these statements. The court was authorized to reject Skid-more’s contentions that the police told his mother he did not need a lawyer and misled him into believing he would not face charges as an adult, as the record does not support those contentions. See Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158); McKoon, supra at 151 (2).

Decided March 28, 1997

Reconsideration denied April 9, 1997

Before Judge Mallis.

Devon A. Orland, Letitia B. Delan, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Benjamin M. First, Assistant District Attorneys, for appellee.

3. In his remaining enumeration of error, Skidmore challenges on several grounds the constitutionality of the statute which allowed him to be tried as an adult in superior court, OCGA § 15-11-5 (b) (2) (A) (vii).

(a) This Court has no power to determine Skidmore’s challenges to the face of this statute on the grounds that it violates the federal and state constitutional principles of separation of powers and equal protection or the constitutional prohibition against cruel and unusual punishment. However, in Bishop v. State, 265 Ga. 821 (462 SE2d 716), the Supreme Court upheld the statute as constitutional in the face of challenges made on the first two grounds.

Although this statute does not prescribe a penalty for armed robbery, the Supreme Court has held that even a life sentence for armed robbery is not “cruel and unusual” punishment. Mydell v. State, 238 Ga. 450 (2) (233 SE2d 199). “[A] sentence which is not otherwise cruel and unusual does not become so simply because it is ‘mandatory.’ [Cit.]” Ortiz v. State, 266 Ga. 752, 753 (2) (a) (470 SE2d 874).

(b) Skidmore contends the statute was unconstitutionally applied to him and other black males. At the hearing on this challenge, Skidmore’s counsel admitted the statistics he provided the court showed no dissimilar treatment between white and black juvenile defendants charged as adults under OCGA § 15-11-5 (b) (2) (A). However, Skidmore contends that young black males are being discriminated against at the time of arrest, and young white males are apparently being charged with lesser crimes. He produced no evidence to support these allegations, and the statistics he did produce do not show any purposeful discrimination. This enumeration is, therefore, without merit. See Stephens v. State, 265 Ga. 356, 357 (1) (456 SE2d 560) (defendant required to prove purposeful discrimination, which will not be inferred from statistics showing disparate impact).

Judgment affirmed.

Ruffin and Eldridge, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A95A2152.
    DEPARTMENT OF TRANSPORTATION v. DAVISON INVESTMENT COMPANY, INC. et al.
    (486 SE2d 83)
    Decided April 9, 1997.
    Before Judge Bryant, pro hac vice.

      Michael J. Bowers, Attorney General, McClure, Ramsay & Dickerson, John A. Dickerson, Luther H. Beck, Jr., for appellant.

      Andrew J. Hill, Jr., for appellees.
   McMurray, Presiding Judge.

In Dept. of Transp. v. Davison Investment Co., 221 Ga. App. 29 (470 SE2d 900), we affirmed on condition, the judgment of the trial court in favor of condemnees. In Dept. of Transp. v. Davison Investment Co., 267 Ga. 568 (481 SE2d 522), the Supreme Court reversed our decision. 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 in favor of the condemnees is reversed.

Judgment reversed.

Andrews, C. J, Birdsong, P. J., Pope, P. J., Beasley, Johnson, Blackburn, Smith and Ruffin, JJ, concur.


text:
    A97A0231.
    MILLER v. THE STATE.
    (486 SE2d 368)
   Ruffin, Judge.

Following a bench trial, the trial court convicted Harvis Miller of aggravated assault and felony obstruction of an officer. The trial court sentenced Miller to eight years confinement for the obstruction conviction and eight years to serve concurrently for the aggravated assault conviction. In this appeal, Miller challenges the sufficiency of the evidence for both convictions and the sentence for his obstruction conviction. Because we find sufficient evidence to support both convictions, we affirm the court’s judgment. However, because Miller’s sentence for felony obstruction exceeds the maximum sentence, we remand only for resentencing.

1. The victim of the aggravated assault was Annie Brown, Miller’s sister. Viewed in the light most favorable to support the verdict, the evidence shows that Brown was driving Miller, who was restricted to a wheelchair, to a pawn shop so he could attempt to sell a car jack. Brown testified that they started arguing and she told Miller “ ‘Well, I’ll take you back round here to my mama’s house.’ ” When they arrived at the mother’s house, Brown retrieved Miller’s wheelchair, pushed it to the car, and he got out. According to Brown, the following events then transpired: “I went to the trunk to get the jack out, and when I was bent over in the trunk to pick the jack up — I had on a jacket, and he pulled my jacket from the back, snatched me down, and then he start stabbing me. He tried to stab me a lot of times. My daughter, she jumped out the car, and ran and grabbed him by his hair, and pulled him back [sic].”

Although Miller admitted that he stabbed Brown, he contended it was in self-defense. Miller stated that Brown “wouldn’t give me my jack out the car. But, when she reached in the trunk, she pulled a broom handle out. Hit me with the broom handle. I said, you ain’t gonna hit me with the broom handle no more. . . . [S]he was steady hitting me with the broomstick handle, and I just pulled around the car and threw her down to the ground, and you know, then I had done stabbed her then [sic].”

“As to whether all of the evidence raised any reasonable doubt of the commission of the [aggravated assault] or showed [Miller] acted in self-defense, this is exactly the sort of case where the [factfinder] is best empowered to resolve any conflicts in the evidence and determine the credibility of the witnesses and adjudge the facts. [Cits.]” Palmore v. State, 264 Ga. 108 (441 SE2d 405) (1994). The trial judge, sitting as the trier of fact, “chose not to believe [Miller’s] testimony that the [stabbing] was in self-defense. [Cit.] The evidence satisfies the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Weems v. State, 267 Ga. 182, 183 (1) (476 SE2d 585) (1996).

2. We also find there was sufficient evidence to support Miller’s conviction for felony obstruction. Viewed in the light most favorable to support the verdict, the evidence concerning this offense shows that Miller was sitting in his car, and Police Officer John Lanneau was investigating him for possibly driving under the influence. When a second officer, Jay Wood, arrived at the scene, “Miller had a tire tool in his hand, and he was trying to hit [Officer Lanneau].” A third officer, Gregg O’Berry, arrived and together they took the tire iron from Miller. Miller then reached under the front seat and pulled out a knife. Officer O’Berry testified: “I told him to put the knife down, that he was going to have to go with us. And, he attempted to cut myself and [the] two other officers. . . . Every advance we made to get him out of the car he would do the same with the knife, just lunge.” According to O’Berry, “after awhile we figured he wasn’t going to put the knife down, and the next thing we did was sprayed [Miller] with [pepper spray and] . . . [h]e dropped the knife then.”

Miller contended that the police officers would not tell him why he was being arrested and that his actions against them were in self-defense. Miller contended that when he opened the back door of his car in an attempt to retrieve his wheelchair, an officer “kicked the door back closed. My fingers were just in the door and he like to shattered my fingers there. I asked him again, what am I being arrested for? He said never mind that. ... I was just in self defense [sic].”

Decided April 9, 1997.

Before Judge West.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

The foregoing evidence shows that Officer Lanneau was in the lawful discharge of his official duties when Miller attacked him and the other officers with the tire iron and knife. See OCGA § 16-10-24 (b). Although Miller claimed that the officers slammed the door on his fingers and would not explain what they were investigating, it is evident that the trier of fact believed the officers’ testimony rather than Miller’s testimony. “In determining evidence sufficiency, this Court does not weigh the evidence or determine witness credibility. [Cit.]” Dennis v. State, 220 Ga. App. 420 (2) (469 SE2d 494) (1996). We thus conclude that the evidence was sufficient to enable a rational trier of fact to find Miller guilty of felony obstruction of a law enforcement officer. See id.; Jackson v. Virginia, supra. See also Jackson v. State, 213 Ga. App. 520 (444 SE2d 875) (1994).

3. We agree with Miller, however, that the trial court’s sentence of eight years confinement for the felony obstruction conviction exceeds the maximum permissible sentence. OCGA § 16-10-24 (b) provides that a person convicted of felony obstruction of a law enforcement officer shall “be punished by imprisonment for not less than one nor more than five years.” Accordingly, we vacate that portion of the trial court’s sentencing order. Furthermore, because the trial court’s eight-year sentence for aggravated assault ran concurrent with the obstruction sentence, which properly has a maximum of only five years, that sentence is also vacated. We accordingly remand the case to the trial court for resentencing on both convictions. See Cook v. State, 210 Ga. App. 323 (3) (436 SE2d 61) (1993).

Judgment affirmed.

Sentence vacated and case remanded for resentencing. Birdsong, P. J, and Eldridge, J., concur.


text:
    A97A0338.
    BRYANT v. THE STATE.
    (486 SE2d 374)
   Smith, Judge.

Jeffrey Dwight Bryant was charged by accusation with one count of simple battery, OCGA § 16-5-23 (a) (1), and one count of battery. OCGA § 16-5-23.1 (a). He was tried before a jury, which found him guilty of simple battery and acquitted him of battery. He appeals from the judgment of conviction and sentence following the denial of his motion for new trial.

1. Bryant enumerates the general grounds. The victim testified that she and Bryant had known each other since 1989. On the night in issue in December 1995, they visited several nightclubs together. In the early morning hours, they drove in separate cars to her residence, where she left the car she was driving and accompanied him to his home. She refused to have sex with Bryant unless he wore a condom, and he ordered her to leave even though she had no car. Bryant then telephoned the police to have her removed from the premises. An argument ensued, and when the victim accused Bryant of being infected with the HIV virus and having no respect for women, Bryant struck her in the head with his fist. The victim then gathered her belongings and walked to her home. The next morning, when she sought medical attention for her head, a nurse at the hospital informed the police.

Bryant contends the evidence did not establish his guilt beyond a reasonable doubt because all evidence other than the victim’s testimony was circumstantial. Bryant was charged with violating OCGA § 16-5-23 (a) (1), simple battery, “by intentionally making contact of an insulting and provoking nature with [the victim] by hitting her.” The evidence was in conflict on the crucial question of whether Bryant hit the victim, and the jury was authorized to believe the testimony of the victim rather than that of Bryant. Taking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize Bryant’s conviction of the offense of simple battery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Bryant also argues that the evidence did not support his conviction because it showed the victim was a criminal trespasser who provoked and insulted him. He relies upon OCGA § 16-5-25, which provides that against a charge of simple battery a defendant may introduce evidence of “opprobrious or abusive language” used by the victim, and the trier of fact may find the attack justified. His reliance upon that statute is misplaced.

First, Bryant did not raise justification as his defense. Instead, he absolutely denied hitting the victim. Second, the jury in this case heard the evidence showing that the victim was asked to leave and that she used what Bryant contended was “opprobrious or abusive language” against him. OCGA § 16-5-25 requires nothing more. From this evidence, the jury would have been permitted to find that Bryant was justified in hitting the victim. Notwithstanding the introduction of this evidence, however, the jury was not required to find justification.

2. The trial court granted the State’s motion in limine prohibiting the defense from introducing at trial any evidence pertaining to a dispossessory action Bryant initiated against the victim seven months prior to this incident; in that proceeding, he sought to evict her from a condominium he rented to her. The motion also sought to exclude other civil actions he filed against her following this incident. Bryant argues that the court erred in excluding this evidence because it would have shown her motive for accusing him falsely of hitting her.

Bryant is correct in his assertion that it is permissible to question a witness to reveal any possible bias. See OCGA § 24-9-68; Harrell v. State, 139 Ga. App. 556, 560-561 (4) (228 SE2d 723) (1976). In this case, however, any such possible bias was exposed for the jury’s consideration. The jury heard from both Bryant and the victim that Bryant leased a condominium to the victim, that she lived there virtually rent-free until he became angry and demanded in May 1995 that she pay rent, and that she still owed him money. The fact that they did not hear about the court proceeding for eviction, which was never completed, is immaterial. The jury also heard other testimony that went to a possible motive for the victim to make a false accusation against Bryant. Both the victim and Bryant testified that he refused to invest in a business venture proposed by the victim. The victim’s credibility was clearly challenged on these issues.

The trial court simply ruled that the other civil actions were not relevant. Here, as in Harrell, supra, the “situation called for the exercise of the trial judge’s discretion in limiting cross examination to relevant issues and precluding repetitive questions. We find no abuse of discretion of the trial court.” (Citations and punctuation omitted.) Matthews v. State, 194 Ga. App. 386, 388 (3) (390 SE2d 873) (1990).

3. Bryant alleges two errors pertaining to the introduction by the State of similar transaction evidence.

(a) He maintains the trial court erred in allowing the State to introduce this evidence when the State did not timely serve notice upon him that it intended to introduce similar transactions. We do not agree.

In this case, the trial commenced on June 17, 1996. The State filed a copy of the notice on June 7, 1996, meeting the requirement for filing in USCR 31.1. Although the certificate of service attached to the notice recited that a copy had been mailed to Bryant’s attorney on that date, Bryant’s attorney informed the court that the envelope bore a postage meter postmark of June 11, 1996, which was the day he received it. We note that a postmark or postage meter imprint does not necessarily reflect the date on which an envelope is placed in the United States mail. But regardless of when the notice was mailed, USCR 31.1 provides that the notice be “given and filed at least ten days before trial unless the time is shortened or lengthened by the judge.” (Emphasis supplied.) We have interpreted this rule as “clothing the trial court with discretion which will not be controlled absent abuse.” Hall v. State, 181 Ga. App. 92, 93 (1) (b) (351 SE2d 236) (1986). Even if the time was shortened in this case, the rule permits it. Bryant showed no prejudice attributable to the shortened time, and we find no abuse of the trial court’s discretion.

(b) Bryant also asserts error in the trial court’s charge on similar transaction evidence. The court neglected to refer to the similar transaction as an “alleged” occurrence when first instructing the jury about the similar transaction before its presentation. We do not agree with Bryant, however, that this instruction created a mandatory presumption, in violation of Sandstrom v. Montana, 442 U. S. 510, 520524 (99 SC 2450, 61 LE2d 39) (1979), that the similar transaction actually occurred. The omission was immediately brought to the court’s attention, and the jury was promptly and properly recharged before the evidence was presented. The court also instructed the jury properly with regard to the similar transaction at the conclusion of the case.

Neither do we agree with Bryant that the jury charge on similar transactions amounted to an improper expression of opinion, in violation of OCGA § 17-8-57. It is obvious from the court’s charge that the jury was instructed it could itself determine whether the alleged incident took place.

4. Bryant next complains of the State’s cross-examining him about previous instances in which he hit women. He argues that this questioning introduced evidence of bad character, when he had not “opened the door” by testifying to his good character. We do not agree.

This line of questioning began when Bryant testified that he had offered the victim a ride after requesting that she leave. The prosecutor questioned him about being “nice” notwithstanding his anger at the victim, and in response, Bryant volunteered that he “controlled” his temper. He then explained that he did not “get in trouble. My record is clean.” At that point, the prosecutor began asking about whether he had ever been arrested or had other people file complaints against him. Later in the cross-examination, Bryant testified that he did not hit the victim because he knew “better than to hit anybody.” The prosecution then followed up on this testimony by asking him if he had never before hit anyone or been accused of hitting anyone. We need not decide whether Bryant’s statements “opened the door” to evidence of his bad character. When he described his characteristics and testified to the lack of past misdeeds, the State was entitled to explore the truth of these statements regardless of whether Bryant had placed his character “in issue” within the meaning of OCGA § 24-9-20 (b). Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988). In doing so, the State was simply attempting to impeach Bryant by rebutting his testimony and showing it to be false. Id. This was not improper.

Decided April 9, 1997.

Before Judge McLaughlin.

Alan I. Begner, for appellant.

5. Contrary to Bryant’s contention, trial counsel’s performance was not so deficient as to amount to ineffective assistance.

6. Bryant contends the trial court erred in denying his request to cross-examine a witness he had called. The witness was the victim’s roommate at the time of the incident. Claiming surprise when this witness testified he had not seen the victim the day after the incident, Bryant requested permission to lead the witness. Bryant’s counsel implied the witness had made a contradictory statement to another lawyer, who represented Bryant in certain civil matters. The judge refused to allow the defense to cross-examine its own witness.

OCGA § 24-9-63 provides that “[Beading questions are generally allowed only in cross-examination. However, the court may exercise discretion in granting the right to the party calling the witness and in refusing it to the opposite party when, from the conduct of the witness or other reason, justice shall require it.”

Justice did not require it here. Both the witness and the other lawyer testified that the witness had “no knowledge” about whether the incident occurred. Any contradiction in the witness’s testimony regarding whether he saw the victim after the incident was therefore immaterial. It is a rare case in which the trial court’s exercise of discretion on this issue warrants reversal. Billings v. State, 212 Ga. App. 125, 129 (5) (441 SE2d 262) (1994). We find no abuse of discretion here.

7. Bryant maintains the court erred in charging the jury that it could consider his motive while not charging that the jury could consider the victim’s motive. This enumeration is without merit. The jury instruction in issue is one on intent, rather than motive. The court charged the jury that Bryant could not be presumed to have acted with criminal intent, but that it could find intent or the absence of intent from a consideration of “conduct,” “demeanor,” “motive,” and other circumstances surrounding the act charged. The court also charged the jury that the State was required to prove intent beyond a reasonable doubt. The charge did not violate Sandstrom, supra, and we find no error.

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.

Ralph T Bowden, Jr., Solicitor, Lisa A. Jones, W. Cliff Howard, Assistant Solicitors, for appellee.