text:
    A98A0499.
    A98A0500.
    COLLINS v. THE STATE. STEVENS v. THE STATE.
    (502 SE2d 498)
   Andrews, Chief Judge.

John Walter Collins and Anthony Shields Stevens appeal from the judgments entered on their convictions of armed robbery after a joint jury trial. The appeals are considered together.

1. Both defendants, in their second enumerations, contend the trial court erred in allowing in-court identifications of them by the robbery victims. They claim these identifications were tainted by an impermissibly suggestive showup.

“ ‘There is no per se exclusionary rule applied to pre-indictment confrontations. Yancey v. State, 232 Ga. 167, 169 (205 SE2d 282) (1974). Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation. Towns v. State, 136 Ga. App. 467, 468 (1) (221 SE2d 631) (1975), applying the factors enumerated in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).’ (Citations and punctuation omitted.) Ferguson v. State, 221 Ga. App. 415, 418 (471 SE2d 528) (1996).” Flores v. State, 228 Ga. App. 152, 153 (491 SE2d 86) (1997).

Here, around 5:00 a.m. on October 3, 1996, Buiza, assistant manager of an Athens Majik Market, and Silva were alone in the Majik Market. Silva, whose shift was to begin at 6:00 a.m., had come in early to do some paperwork while Buiza was putting out newly arrived magazines near the front window. Buiza was stooping down in front of the magazine rack when she heard a commotion, which she initially thought was students playing a joke, since the store was near a university. As she stood up, however, she realized there was a man, later identified as Stevens, wearing pantyhose over his face and holding a gun on Silva at the cash register. Buiza backed up an aisle and hid behind a lottery station so she could see the activity at the counter. Silva, who was Brazilian, initially did not understand what the robber said, but realized it was a robbery when he saw the handgun. As Silva was attempting to open the cash register, he saw a second man outside the store. This man, later identified as Collins, then entered the store, jumped on the counter, and grabbed money from the register drawer. Silva was told to lie on the floor and he backed away, continuing to face the two men, until he lay down. The gun held by Stevens was within a “hand” of Silva’s face during the encounter.

The two men then ran out of the store and right by a window next to where Buiza was hiding. She saw them run by the window, noted the direction and called the police, telling them the two were running toward a local restaurant. She described the two as young black men, very thin, wearing black clothing, and one had a gun. The man with the gun was wearing long pants and a “thermal type” long sleeve shirt. The other was wearing long black shorts and a black tee shirt. After closing out the register, Silva and Buiza discovered $288 missing.

Officers Rodriguez and Eckert were dispatched to the robbery at 5:13 a.m. and given the description of the two men and the direction they had headed. As they were nearing the Majik Market, they saw two young men matching the description and wearing black pants and shorts walking hurriedly through a university parking lot and one was carrying a handgun. Officer Eckert immediately turned the marked car around, jumped the curb, and went towards the two men. The car’s spotlight was on the two as they ran into a wooded area. The two officers pursued, but fell down an embankment into a creek. They listened for sounds of running and heard none, so they believed the two were hiding in the woods. A police perimeter was set up around the wooded area within three to eight minutes of the officers’ entering the woods and a canine unit was called. The dog and handler arrived within 30 to 45 minutes, during which time Officers Eckert and Rodriguez remained near the creek watching. Deputy Phillips and Nero entered the woods and Nero led the officers to Collins, about 20 yards down the creek from where he had entered the woods, curled up on the creek bank. After Collins was taken away, Officer Eckert found $286 in cash stuffed underneath a rock and leaves where Collins had been lying. A loaded revolver with the hammer cocked was found about 15 to 20 feet from where the two men entered the woods.

Officer Gooch was dispatched to the perimeter at 5:38 a.m. and ended up in a back yard about 60 yards from the university parking lot where he noticed a patch of black cloth near a fence and found Stevens hiding. No other foot traffic was seen in the area. Stevens was wearing dark-colored pants and a shirt that looked “grayish, gold” in the dark. Silva had described the shirt worn by the man holding the gun as a “brown underwear shirt” and Buiza said it was a “thermal type.” Both said the man who grabbed the cash was wearing black shorts and shirt, as Collins was when arrested.

Collins and Stevens were transported to the Majik Market where Buiza and Silva were separated and asked whether these were the men who robbed them. Officer Rodriguez advised them both that the fact that these two men were in police custody did not mean they were the robbers. Silva identified Stevens at 6:34 a.m. and Buiza identified him at 6:35 a.m. as the man with the gun. Collins was identified by them at 6:37 a.m. and 6:38 a.m. as the second robber. Officer Rodriguez described Buiza and Silva as identifying the men “[ajlmost immediately” upon seeing them. Both victims were firm in their testimony that their in-court identifications were based on their experience in the robbery and not on the showup or later seeing the two men in court. Buiza said she was intent on watching the men, who she believed did not know of her presence in the store, and was “positive” and “absolutely sure” of her identifications. Silva said he got a “good look” at the man with the gun and that he could see Collins outside through the window before he entered the store as well as afterwards when Collins was about one and a half meters from him.

“[P]rompt, on-the-scene confrontations and identifications, though inherently suggestive because of the presentation of a single suspect, [nevertheless] are permissible in aiding a speedy police investigation and that where possible doubts as to identification need to be resolved promptly, such on-the-spot identifications promote fairness by enhancing the accuracy and reliability of identification, thereby permitting expeditious release of innocent subjects.” Bennefield v. Brown, 228 Ga. 705, 706 (3) (187 SE2d 865) (1972). See also Davis v. State, 233 Ga. 847, 849 (1) (213 SE2d 695) (1975); Flores, supra.

The trial court’s admission of the identification testimony was not clearly erroneous and we find no merit in these enumerations. Baxter v. State, 188 Ga. App. 598, 600 (3) (373 SE2d 834) (1988); see Odim v. State, 228 Ga. App. 158, 160 (2) (491 SE2d 218) (1997).

2. Collins’ third and Stevens’ first enumerations of error are that the court erred in denying their Batson challenges to three of the state’s peremptory strikes.

“ ‘To evaluate claims that the state or defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. The opponent of a peremptory challenge must make a prima facie showing of racial discrimination; the burden of production shifts to the proponent of the strike to give a race-neutral reason for the strike; the trial court then decides whether the opponent of the strike has proven discriminatory intent.’ (Footnotes omitted.) Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996).” Griffeth v. State, 230 Ga. App. 298, 299 (496 SE2d 309) (1998).

Here, the only information in the record concerning the makeup of the panel from which the jury was struck is Collins’ counsel’s statement that nine of the twenty-nine jurors were African-American, or thirty-one percent of the panel, and that the State used three of its five strikes on African-Americans, or sixty percent. Pretermitting the issue of whether such a statement is sufficient to perfect the record, see Sharp v. Fagan, 215 Ga. App. 44 (1) (449 SE2d 648) (1994) and Shaw v. State, 201 Ga. App. 438, 439-440 (1) (411 SE2d 534) (1991), there is no indication in the record of the makeup of the jury which was actually sworn to try the two defendants, as required for a prima facie showing of racial discrimination. Smith v. State, 231 Ga. App. 677, 683 (5) (499 SE2d 663) (1998); Love v. State, 205 Ga. App. 27 (1) (421 SE2d 125) (1992).

Therefore, there was no error in the court’s denial of the challenges. Love, supra; Shaw, supra.

3. Stevens’ third enumeration is that the evidence was insufficient.

“ ‘On appeal, the evidence must be viewed in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]’ [Cit.]” Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995).

So viewed, the evidence, as set out in Division 1, was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 226 Ga. App. 619, 623 (8) (487 SE2d 371) (1997).

4. Collins contends that the trial court erred in admitting into evidence and playing for the jury a copy of the videotape of the robbery made by the surveillance camera because it was not the original, based on the best evidence rule. OCGA § 24-5-1.

This rule, however, applies only to writings and not to videotapes. Perkins v. State, 260 Ga. 292, 295 (7) (392 SE2d 872) (1990); Smith v. State, 228 Ga. App. 144, 146 (2) (491 SE2d 194) (1997).

There was no error.

5. Collins’ fourth enumeration is that the court erred in not granting his motion for mistrial regarding display to the jury of State’s Exhibits #2 and #3, a thermal shirt and pair of black shorts.

When the exhibits were originally tendered, Collins objected to their admission because no chain of custody had been shown.

“ ‘The chain of custody requirement does not apply to distinct and recognizable physical objects that can be identified upon observation. . . .’ [Cits.]” Fields v. State, 223 Ga. App. 569, 572 (3) (479 SE2d 393) (1996). See also Brown v. State, 195 Ga. App. 389, 390 (393 SE2d 514) (1990).

At that time, although the court did not sustain the chain of custody objection, the State was directed to connect up the items with the defendants. Although the prosecutor indicated his intention to do that, the only such evidence was Buiza’s testimony that the clothing was substantially similar to that worn by the two robbers. The court, out of an abundance of caution, did not admit the physical items and instructed the jury to consider only the evidence admitted and testimony of witnesses. As reflected in the court’s response to the jury’s later question during their deliberations, they were to consider testimony about the shirt and shorts, but the clothing had not been admitted into evidence.

Decided May 15, 1998

Reconsideration denied May 26, 1998.

Kristopher Shepherd, for appellant (case no. A98A0499).

Pete, Pete & Associates, Anthony T. Pete, for appellant (case no. A98A0500).

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Collins made a motion for mistrial after the State rested its case, contending that allowing the clothing to be displayed to the jury, but not admitted as a result of his objection, was “prejudicial.” Pretermitting whether such an objection raises any issue for the trial court, we conclude that Collins has waived this issue by failing to renew his motion for mistrial after the court’s initial denial of it and after the court’s response to the jury’s inquiry involving the same issue. Maddox v. State, 227 Ga. App. 602, 604 (2) (490 SE2d 174) (1997); Burrell v. State, 225 Ga. App. 264, 268 (2) (483 SE2d 679) (1997).

Judgments affirmed.

Blackburn and Eldridge, JJ, concur.

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

       The foundation required for admission of the videotape was provided by Silva and Buiza. Phagan v. State, 268 Ga. 272, 279 (5) (486 SE2d 876) (1997); Wingfield v. State, 226 Ga. App. 448, 449 (2) (486 SE2d 676) (1997).


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A98A0264.
    CLAY v. THE STATE.
    (503 SE2d 560)
   Birdsong, Presiding Judge.

Sandy Clay appeals his conviction for armed robbery. Clay contends he was denied the effective assistance of counsel because trial counsel failed to file a motion to suppress an eyewitness identification and to object to an in-court identification, failed to call witnesses necessary to his defense, and failed to request jury instructions on identification. Clay further asserts the trial court erred in not charging the jury on his sole defense of misidentification. We affirm.

On June 3, 1996, an unidentified man entered the Hot Spot convenience store in Monroe and announced he was going to rob the store. He then produced a knife. The robber reached over the counter, held the knife about one foot from the store manager’s upper body, and demanded “all the greens.” The manager later determined $226 had been stolen. She described the robber as a black male, short, and with a husky build. After obtaining the currency, the robber fled the store and 911 was called. Across the street from the Hot Spot, Mary Robinson was sitting in her front yard and witnessed a man enter and then exit the store moments later. Robinson then saw the manager come out of the store and exclaim that she had been robbed. Robinson described the assailant as “[h]e wasn’t tall and he wasn’t short” and “[sjort of stocky, sort of heavy.”

Sometime later, Sergeant Neal Hutchins of the Monroe Police Department apprehended an individual fitting the description of the man who robbed Hot Spot. Hutchins immediately transported the individual back to Hot Spot where he was identified by the store manager and Mary Robinson. The man identified was appellant Clay. Held:

1. In his first enumeration of error, Clay claims he was denied the effective assistance of counsel. We disagree. In order to prevail on a claim of ineffective assistance of counsel, appellant must show both that counsel’s performance was deficient and, but for the deficiency, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443). Furthermore, there is a strong presumption that trial counsel’s performance “ ‘falls within the wide range of reasonable professional assistance,’ and that any challenged action by trial counsel ‘ “might be considered sound trial strategy.” ’ Id. at 689.” Id. at 121. Moreover, a trial court’s finding that a defendant has been provided effective assistance of counsel will not be reversed unless it is clearly erroneous. Harris v. State, 198 Ga. App. 503 (402 SE2d 62).

(a) Clay asserts that his trial counsel was ineffective because counsel did not file a motion to suppress an on the scene show-up identification and subsequent in-court identification. At the hearing on the motion for new trial, trial counsel testified that his strategy was to “shake the identity or testimony from the witnesses.” He also testified that in his opinion, there was no basis to object to the in-court identification. Here, it is clear that trial counsel made a strategic choice not to attempt to suppress the identification evidence, but instead to attack the identification testimony on cross-examination. Since counsel’s performance might be considered sound trial strategy, Clay’s claim is without merit.

(b) Clay also asserts his trial counsel was ineffective because counsel did not call necessary witnesses. Clay maintains his banker, as well as his mother, would have testified how $225 might have been on his person at the time of his arrest. He also maintains that his brother would have testified that he dropped appellant off at the bus station earlier in the day, thus explaining appellant’s purpose for being in Monroe. What witnesses to call is within the province of the trial attorney, after consultation with his client. Van Alstine v. State, 263 Ga. 1 (426 SE2d 360). Trial counsel testified that any testimony from these witnesses would be cumulative of appellant’s testimony and that counsel and appellant thought it would be best to preserve the last word in closing argument. Accordingly, we find Clay was not denied the effective assistance of counsel based upon a failure to call necessary witnesses.

(c) Finally, Clay contends his trial counsel was ineffective in failing to request jury instructions on identification. Clay cites no law in support of his position. Furthermore, even assuming counsel’s assistance was deficient in failing to request jury instructions on identification, Clay’s contention does not satisfy the second prong of Strickland; that the outcome of the trial would have been different had the instruction been given. The trial court thoroughly instructed the jury on the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, impeachment of witnesses and prior inconsistent statements, conflicting testimony, and direct and circumstantial evidence. Given the trial court’s jury instructions and the overwhelming evidence of guilt, we find there is not a reasonable probability that the jury would have reached a different verdict, absent the error of counsel. Stanley v. State, 222 Ga. App. 750 (476 SE2d 58).

2. In his final enumeration of error, Clay maintains the trial court erred in failing to charge the jury on his “sole defense” of misidentification in the absence of a request from trial counsel. “Generally, where no written request for a jury charge has been filed, the failure to give that charge is not error. . . . However, failure to charge the sole defense, even without a request, constitutes reversible error” Animashaun v. State, 207 Ga. App. 156, 159-160 (2) (427 SE2d 532). Here, the failure of the trial court to give an unrequested charge on identification was not “a substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c). Clay did not request such a charge nor object when the trial court inquired as to whether there were any objections to the proposed charges.

“While such a charge may be helpful to the jury in guiding its deliberation on the question of identification, as recognized by inclusion of a charge on identification in the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, 2d ed., p. 39, it is not required as a matter of law.” Hubbard v. State, 220 Ga. App. 678, 679 (469 SE2d 866); Micheli v. State, 222 Ga. 361 (149 SE2d 803). As noted in Division 1 (c), the trial court thoroughly instructed the jury. Accordingly, the issue being identity, “these charges patently related to it.” Hubbard at 679. “ ‘[TJhere is no requirement of our law that a trial judge warn the jury against the possible dangers of mistaken identification of an accused as the person committing a crime. [Cit.]’ Young v. State, 226 Ga. 553, 557 (7) (176 SE2d 52) (1970).” Weems v. State, 268 Ga. 515, 517 (491 SE2d 325). When a trial court has charged the jury fully on the presumption of innocence, reasonable doubt, burden of proof, credibility of witnesses, and impeachment of witnesses, it is not error to fail to charge the jury, sua sponte, on identification. Micheli v. State, supra; Young v. State, supra; Hubbard v. State, supra. The general principles of law underlying Clay’s defense having been charged, it cannot be said that the jury was not instructed on his sole defense.

Decided May 26, 1998.

Joseph S. Rhymer, for appellant.

Alan A. Cook, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A0426.
    McKINLEY v. CITY OF CARTERSVILLE.
    (503 SE2d 559)
   Birdsong, Presiding Judge.

Annie McKinley sued the City of Cartersville for disabling injuries she received in a car accident which she contends occurred because unknown persons had turned the stop sign on Carter Street, on which she was driving westbound, at the intersection of Carter and Gilmer Streets, so that she could not see that stop sign, and her vehicle was hit by a car which was traveling southbound on the intersecting street, Gilmer Street, on which no stop sign had ever been erected.

McKinley shows that in October 1992, twenty-one months before her accident, the city commissioned a traffic accident study of this intersection, which gave it actual knowledge that a stop sign on Gilmer street was the cause of nine “right-angle” accidents in two years. The city’s report concluded and recommended: “This intersection ranks . . . #1 for accidents on City streets, which are not State routes. ... It is recommended that a 4-way stop be established at this intersection [and that] stop lines be placed on all 4 approaches.” Notwithstanding this specially commissioned report and its conclusions and recommendations, the city did not erect four-way stop signs at the intersections for more than two years later — after appellant McKinley’s accident occurred.

McKinley filed claims for both negligence and maintenance of a nuisance. The trial court granted summary judgment to the City on the negligence claims (impliedly as to both the turned sign on Carter Street and the absence of a stop sign on Gilmer Street); the maintenance (erection) of a traffic device is a governmental rather than a ministerial function and the City had no knowledge that the stop sign on the street on which appellant was traveling (Carter Street) had been turned by unknown persons. The trial court further granted summary judgment to the City on appellant’s nuisance claim as to the City’s failure to erect a stop sign on Gilmer Street so as to make the intersection a four-way stop; the court reasoned that while normally the appellant’s evidence would be sufficient to create an issue of fact as to the extremely dangerous condition of the intersection which was known to the City, nevertheless “common sense dictates that this Court examine the [evidence] in light of all the evidence. It is readily apparent from . . . the record that this particular collision did not occur as a result of the absence of four-way stop signs. Had the turned stop sign been in its correct position, and had the plaintiff obeyed said stop sign, this accident would have never happened.” Appellant appeals. Held:

1. Appellant concedes the City had no notice of the turned stop sign on Carter Street; she thus expressly declines to appeal the portion of the trial court’s order dealing with the turned stop sign on Carter Street. However; despite the trial court’s finding that this accident would never have occurred if unknown persons had not turned the stop sign on that street, she contends that issues of fact remain.

However, appellant cannot maintain a cause of action for negligence against the City for failure to erect a stop sign on Gilmer Street. OCGA § 32-4-93 (a) provides: “A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.” (Emphasis supplied.)

Appellant contends that the failure to erect a stop sign on Gilmer Street is a “defect” which would exempt the city from claiming immunity under OCGA § 32-4-93. We disagree. The reference to “defects” in the Code section refers to the physical condition of the street itself; it includes defects brought about by the forces of nature and by persons and which render the street unsafe and includes objects adjacent to and suspended over the street. City of Bainbridge v. Cox, 83 Ga. App. 453 (64 SE2d 192); City of Barnesville v. Sappington, 58 Ga. App. 27 (197 SE 342); and see Town of Fort Oglethorpe v. Phillips, 224 Ga. 834 (165 SE2d 141) where the court said, citing numerous cases, that obstructions or defects in the streets within the meaning of OCGA § 32-4-93 are physical obstructions or defects in the streets themselves, for the quality and condition of a street as being reasonably safe for travel thereon has reference to its physical condition and is a different matter than the regulation of traffic. Id. at 836-837. Furthermore, we have held that the erection of stop signs and barriers is a discretionary act by a municipality, which fact renders it immune to liability for failure to act in the absence of a law or ordinance requiring the city to perform that act. See OCGA § 36-33-2; and see Tamas v. Columbus, Ga., 244 Ga. 200 (259 SE2d 457); McLaughlin v. City of Roswell, 161 Ga. App. 759 (289 SE2d 18); Bowen v. Little, 139 Ga. App. 176 (228 SE2d 159); Englander v. City of East Point, 135 Ga. App. 487 (218 SE2d 161).

Decided May 26, 1998.

Henderson & Associates, Daniel L. Henderson, Chad A. McGowan, for appellant.

Jenkins & Nelson, G. Carey Nelson III, Peter R. Olson, for appellee.

2. The trial court also correctly awarded summary judgment to the City on appellant’s nuisance claim. Mayor &c. of Savannah v. Palmerio, 242 Ga. 419, 424 (3) (249 SE2d 224) and cases cited; Bowen v. Little, supra; Hancock v. City of Dalton, 131 Ga. App. 178, 181 (205 SE2d 470). See also Tamas v. Columbus, Ga., supra and City of Bowman v. Gunnells, 243 Ga. 809 (256 SE2d 782).

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A0732.
    JAY v. THE STATE.
    (503 SE2d 563)
   Judge Harold R. Banke.

Fredrick Bernard Jay was convicted of aggravated assault for a brutal attack on his wife. Notwithstanding the victim’s absence from Jay’s trial, the jury convicted him. On appeal, he contends that the underlying indictment was fatally defective and that the trial court erred in admitting several of the victim’s statements made to others shortly after the beating.

This domestic violence case arose from a social outing which turned ugly. When the victim and her dinner companions were leaving Dugan’s Restaurant, Jay suddenly appeared and began arguing with the victim, striking her repeatedly on the head, shoulders, and back. When a customer, Cynthia Brown, observed Jay bang the victim’s head up against the cement and drag her “like a rag doll” to Jay’s Lexus, she contacted 911 and reported the tag number. After Jay beat the victim with his fists at their apartment, she managed to escape and sought help from her pastor, Howárd Franklin. When she disclosed to Franklin that Jay had hit her with his fists and another object, Franklin summoned police and paramedics. While the paramedics were administering treatment, the victim told responding officer, F. L. Stanford, that Jay had beaten her and struck her in the head with a gun. According to Stanford, the victim was bleeding heavily from her face and back of her head and had bruises and hand marks on her neck. The emergency room physician, Dr. Jorje Mujica, testified that the victim said that her husband had assaulted her with his fists and a gun, causing her to lose consciousness. While at the hospital, despite having difficulty speaking, she managed to tell Detective Raymond Ice that her husband beat her up and pistol-whipped her at Dugan’s and beat her at their apartment. Her statement was consistent with her obvious physical injuries. The next day, the victim provided a taped statement to Detective Ice in which she said that Jay had beaten her and punched her in the face with his fists.

Less than three weeks before trial, the victim suddenly disappeared. Despite investigators’ repeated efforts to locate her to serve her with a subpoena, her whereabouts remained unknown. The trial court issued a material witness warrant and delayed the trial for about a week to enable the State to find her. Due to Jay’s speedy trial demand, the case proceeded to trial without the victim. The jury convicted Jay of aggravated assault with his fists but did not convict him of aggravated assault with a gun or possession of a firearm during the commission of a crime. Held:

1. Jay contends that the trial court erred in denying his motion to dismiss because the indictment was fatally defective.

The indictment at issue accused Jay of an assault inflicted on the person of his wife “with his fists, objects which when used offensively against said person, were likely to result in serious bodily injury contrary to the laws of [this] State. . . .” The pertinent essential elements of aggravated assault are: (1) an assault on a person as defined in OCGA § 16-5-20 and (2) with use of a deadly weapon or an object which when used offensively against a person is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (a) (2). Subsection 2 is a disjunctive clause. Because the indictment charged that Jay’s fists were likely to result in serious bodily injury, no reference to deadly weapons was required. See Davis v. State, 184 Ga. App. 230, 232 (2) (361 SE2d 229) (1987) (the two clauses are “alternative” bases for conviction).

Notwithstanding Jay’s claim to the contrary, intent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2). Matthews v. State, 224 Ga. App. 407, 408 (1) (481 SE2d 235) (1997). Accord Osborne v. State, 228 Ga. App. 758, 759 (492 SE2d 732) (1997).

Jay’s reliance on Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995) is misplaced. In that case, the aggravated assault indictment merely alleged “ ‘an assault upon (the victim) by placing his hands around (her) neck and using his hands to apply pressure to her neck contrary to the law.’ ” Id. The fatally defective indictment in Smith failed to allege “with a deadly weapon,” or “with any object. . . likely to . . . result in serious bodily injury.” Id. Here, we find no error. See State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996).

2. The trial court did not err in determining that the victim was unavailable. According to the victim’s grandmother with whom she had been living, the victim unexpectedly failed to come home from work one day, leaving her children behind. The grandmother testified that she had not heard from her and did not know her whereabouts despite checking with the victim’s sister and mother.

Unavailability depends upon a showing that the party seeking admission of the hearsay made diligent efforts to find the absent witness and bring the witness to court. Jones v. State, 250 Ga. 166, 168 (2) (296 SE2d 598) (1982). The evidence showed that investigators exerted conscientious and repeated efforts to locate her. Jay has made no showing that the trial court abused its discretion in deeming the witness unavailable. See Banks v. State, 262 Ga. 190, 191 (2) (415 SE2d 634) (1992).

3. Jay contends that the trial court erred in admitting the victim’s remarks made to Detective Ice because her statements lacked sufficient trustworthiness to render them admissible under the necessity rule. OCGA § 24-3-1 (b). See Mallory v. State, 261 Ga. 625 (2) (409 SE2d 839) (1991) (“necessity” and “particularized guarantees of trustworthiness” must be established); McKissick v. State, 263 Ga. 188, 189 (3) (429 SE2d 655) (1993).

One statement, the victim’s first conversation with Detective Ice occurring at the hospital shortly after the commission of the crime, was admissible as part of the res gestae. OCGA § 24-3-3; Griffin v. State, 251 Ga. 431, 432 (2) (306 SE2d 283) (1983); see Stovall v. State, 216 Ga. App. 138, 139 (1) (453 SE2d 110) (1995).

The other statement, the victim’s taped interview made 18 or 19 hours later to Detective Ice, was not part of the res gestae. However, the victim’s minister and her treating physician had testified, without objection, to essentially the same facts. Even assuming for the sake of argument only that the trial court erred in deeming it sufficiently trustworthy, the evidence was doubtlessly cumulative and the failure to exclude it would not constitute reversible error. Eaton v. State, 184 Ga. App. 645, 646 (1) (362 SE2d 375) (1987). See Smith v. State, 164 Ga. App. 704 (2) (297 SE2d 490) (1982).

4. The trial court did not err in admitting the victim’s statements to Officer Stanford, who responded to the emergency call. These spontaneous declarations which occurred very shortly after the commission of the beatings and were a natural consequence thereof, were admissible as part of the res gestae. OCGA § 24-3-3. Horn v. State, 140 Ga. App. 592, 596 (7) (231 SE2d 414) (1976).

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.

Decided May 26, 1998.

Robert L. Mack, Jr., for appellant.

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


author: Blackburn, Judge.

text:
    A98A1033.
    HALL v. THE STATE.
    (502 SE2d 764)
   Blackburn, Judge.

Rodriquez Hall was convicted following a jury trial of trafficking in cocaine. He appeals the trial court’s denial of his motion to suppress. We affirm.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Punctuation omitted.) Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997).

On December 16, 1996, a narcotics investigator with the Richmond County Sheriff’s Office received a tip from a confidential informant that Hall was currently in possession of a large amount of crack cocaine and was traveling with it by car to the 2100 block of Second Avenue. The investigator knew the informant, had dealt with him on previous occasions, and knew the informant had provided information in the past that led to a conviction. The investigator was also familiar with Hall, knew he frequented the area described by the informant, and knew he had been previously arrested on drug charges.

Based on the information provided, the investigator drove to the 2100 block of Second Avenue where he saw Hall. Hall was driving a Jeep and was accompanied by his 14-year-old cousin. The investigator stopped Hall. He told Hall he wanted to talk to him about whether he was carrying cocaine and asked him for permission to search the car. Hall made no response. The investigator “patted down” Hall and searched the immediate interior of the driver’s side of the Jeep for weapons. The investigator then turned to Hall’s cousin, who had gotten out of the Jeep of his own volition, and asked the cousin if he had anything to give him. The cousin reached into his pocket and pulled out plastic bags containing, combined, approximately 48 grams of crack cocaine. The cousin said the crack belonged to Hall.

In his sole enumeration of error, Hall contends the cocaine evidence should have been suppressed because the investigator discovered it in his automobile following a warrantless search that was not supported by probable cause, asserting that: “[t]he stop was not an investigative stop as so categorized by the police officer.” To entertain Hall’s argument — which is set forth in one conclusory paragraph — we would have to construe the evidence in a manner most favorable to him, which we are not authorized to do. Sanders v. State, supra. In testimony elicited by Hall, the investigator explained that he did not search the car until after the cousin voluntarily produced the cocaine in response to his initial questioning. Prior to that, the investigator had only “patted down” Hall and checked the inside of the car for weapons.

Construed to uphold the court’s ruling, the record evidence establishes that the investigator conducted a brief investigatory stop based upon a confidential informant’s tip. As we have repeatedly stated, probable cause is not necessary to conduct such a stop. “Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Punctuation omitted.) McFadden v. State, 218 Ga. App. 327 (1) (461 SE2d 542) (1995). A confidential informant’s tip may provide an officer with the articulable suspicion needed to justify the stop. Id. at 328 (1); D’Angelo v. State, 223 Ga. App. 558, 559 (1) (479 SE2d 384) (1996). And, a “policeman making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous, and if, during the search contraband is turned up, it may be used as evidence in a prosecution for its possession.” (Punctuation omitted.) Hinson v. State, 229 Ga. App. 840 (494 SE2d 693) (1997). Hall has not enumerated as error nor argued that the informant’s tip was insufficient to authorize the investigatory stop or that the officer’s weapons searches were unreasonable; therefore, those issues are not before us for determination. OCGA § 5-6-40; MacDonald v. MacDonald, 156 Ga. App. 565, 567 (1) (c) (275 SE2d 142) (1980).

Judgment affirmed.

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

Decided May 26, 1998

Christopher G. Nicholson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A98A0561.
    REDD v. THE STATE.
    (502 SE2d 467)
   Blackburn, Judge.

Richard Redd was convicted on two counts of child molestation. Redd now appeals, contending that the evidence against him was insufficient to support the verdict, that the trial court gave an erroneous charge on the affirmative defense of accident, that the trial court failed to charge the jury on mistake of fact, and that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

1. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Redd] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

K. M., the nine-year-old niece of Redd’s girl friend, N. H., testified that Redd rubbed her “boobs” and her “privates” beneath her nightgown and panties one night when she slept in the same bed with N. H. and Redd. Redd stopped when K. M. told him to do so. K. M. later described what had happened to her that night to her friend, A. Z., and her preacher, Randy Strickland. Both of these witnesses testified that K. M. had told them that Redd had rubbed her “private parts.” In addition, K. M. described the incident to Melinda Quinn, a social service specialist with the Department of Family & Children Services, and Investigator David Potts. Based on K. M.’s testimony and the testimony of the corroborating witnesses, there was sufficient evidence, under the standard of Jackson v. Virginia, supra, to convict Redd for child molestation.

2. In several enumerations of error Redd takes issue with the substance of the trial court’s charge on the affirmative defense of accident. Each of Redd’s enumerations lacks merit.

(a) Redd contends that the trial court committed reversible error by not reiterating the State’s burden of proof at the time the charge on accident was given. We disagree.

“[Redd] is not entitled to a new trial because the trial court did not expressly instruct the jury that it was the State’s burden to disprove the defense of accident beyond a reasonable doubt. Where, as here, the court charges the jury on the elements of the defense of accident, the presumption of innocence, the burden of proof in general, criminal intent, and the burden to prove the elements of the crimes alleged in the indictment, it is not error to fail to again instruct on the State’s burden in the context of the accident defense.” Ross v. State, 268 Ga. 122, 125 (7) (485 SE2d 780) (1997).

(b) Redd contends that the trial court committed reversible error by not charging the jury that “an affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it.” We disagree.

Although Redd argues that the jury could not have understood its duty without a definition of affirmative defense, “the charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same. . . . We do not believe that the charge as a whole would mislead a jury of average intelligence.” (Punctuation omitted.) Leigh v. State, 223 Ga. App. 726, 731 (3) (478 SE2d 905) (1996).

(c) Redd contends that it was reversible error for the trial court to charge the jury that “[a]ny evidence as to misfortune or accident should be considered by you in connection with all the other evidence in the case. If in doing so you should entertain a reasonable doubt as to the guilt of the accused, then it would be your duty to acquit. On the other hand, should you believe from the evidence as a whole that the Defendant is guilty beyond a reasonable doubt, it would be your duty to convict” (Emphasis supplied.) Specifically, Redd argues that the trial court should have substituted the phrase “you may convict” for the highlighted language.

“Although this instruction [as given] has been criticized, it does not constitute reversible error. Considered in the context of the charge as a whole, the single objectionable phrase did not misdirect the jury concerning their lawful obligations.” (Citation and punctuation omitted.) Garren v. State, 220 Ga. App. 66, 68 (6) (467 SE2d 365) (1996).

3. Redd contends that the trial court committed a reversible error by not charging the jury on mistake of fact. For the first time on appeal, Redd argues that he mistakenly thought that he was groping his girl friend instead of nine-year-old K. M. However, the evidence of record presented at trial did not warrant a charge on mistake of fact, and, accordingly, this enumeration has no merit. See Stewart v. State, 257 Ga. 211, 213 (4) (356 SE2d 515) (1987). Moreover, Redd did not preserve this issue for consideration on appeal, as neither a request for such charge was made nor was an objection made with regard to its omission. See, e.g., Funderburk v. State, 221 Ga. App. 438, 440 (3) (471 SE2d 535) (1996).

4. Redd contends that he received ineffective assistance of counsel, alleging numerous errors made by his attorney including, among other things, insufficient preparation and investigation, failure to impeach witnesses, failure to call character witnesses, failure to consider the defenses of mistake of fact and sleepwalking, and failure to request charges on certain lesser included offenses.

“In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Redd] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See also Bowley v. State, 261 Ga. 278 (4) (404 SE2d 97) (1991). Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.” (Punctuation omitted.) Stephens v. State, 265 Ga. 120, 121-122 (2) (453 SE2d 443) (1995). In addition, “[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

The record contains evidence that Redd’s counsel adequately investigated and prepared his case and that she had strategic reasons for not impeaching certain witnesses, including the victim, for not calling certain other witnesses, including character witnesses, and for not requesting charges on the lesser included offenses of simple battery and sexual battery, assuming without deciding that such lesser included offenses were applicable. In addition, the record reveals that the evidence made available to Redd’s counsel did not support either a mistake of fact defense or a sleepwalking defense in the manner which Redd contends. As such, Redd’s claims are merit-less.

Decided April 15, 1998

Reconsideration denied May 27, 1998

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Timothy G. Madison, District Attorney, James L. Moss, Jr., Robin R. Riggs, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A98A0611.
    ENTERTAINMENT SALES COMPANY v. SNK, INC.
    (502 SE2d 263)
   Blackburn, Judge.

Entertainment Sales Company d/b/a Entertainment Sales, Inc. (ESI), appeals the superior court’s grant of summary judgment to SNK, Inc. (SNK) on ESI’s breach of contract claim. We affirm.

SNK manufactures video arcade games and sells them to distributors. ESI is a distributor and has bought arcade games from SNK. Both ESI and SNK agree they are “merchants” within the meaning of the Uniform Commercial Code (UCC). In 1993, according to ESI’s president, SNK stopped supplying ESI, opting instead to distribute its arcade games through another larger distributor. When ESI was unable to get the arcade games it needed to resell to its customers, it sued SNK and others alleging tortious interference with business relations and breach of contract. The trial court granted SNK’s motion for summary judgment as to both claims. ESI appeals only the grant of summary judgment on the breach of contract claim.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “The movant has the original burden of making this showing. Once the movant has made a prima facie showing that it is entitled to judgment as a matter of law, the burden shifts to the respondent to come forward with rebuttal evidence.” (Punctuation omitted.) Kelly v. Pierce Roofing Co., 220 Ga. App. 391, 392-393 (2) (469 SE2d 469) (1996). In rebutting this prima facie case, “an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in [OCGA § 9-11-56] must set forth specific facts showing that there is a genuine issue for trial.” OCGA § 9-11-56 (e). See also Lau’s Corp., supra.

The evidence, viewed in the light most favorable to ESI, reveals that ESI had a history of purchasing video arcade games from SNK by telephone. Only on “some” occasions would ESI follow up on its phone orders by transmitting facsimile purchase orders. ESI’s method of placing orders was rather informal because, as its president explained, ESI had to meet the unpredictable demands of its customers, the arcade operators. Those orders “as a general rule of thumb . . . are not firm committed.” In turn, orders placed between distributor and manufacturer are only a “little bit more” firm.

In September 1993, ESI sought to purchase from SNK several “Samurai Showdown” coin-operated video arcade games. Between September and December 1993, ESI’s president placed what he called “verbal purchase orders” with SNK. The SNK representatives with whom ESI’s president spoke were not deposed and SNK does not admit any contract was formed. In addition to ESI’s having placed a verbal order, the evidence adduced shows only that ESI prepared three purchase orders for the arcade games. ESI’s president admits that the first order was placed by telephone and that the corresponding written purchase order was never'sent to SNK. He speculates that the remaining two purchase orders may have been transmitted to SNK by facsimile, but he cannot confirm this because he did not place or fax the orders himself nor could he produce any printed confirmation of a transmission. The person who may have prepared those purchase orders did not give an affidavit nor was he deposed. Further, there is no testimonial or documentary evidence in the record that SNK actually received the orders. ESI’s president stated in his affidavit that he later called an SNK sales representative who informed him that SNK would not fill ESI’s purchase orders. Contrary to ESI’s argument, a juror could not reasonably infer from this statement that written or facsimile purchase orders were either sent or received because in the context of this affidavit, the term “purchase order” included a verbal order.

1. Any agreement made by SNK to sell ESI arcade games is unenforceable because the purchase orders allegedly evidencing that agreement do not form a writing sufficient to avoid the application of the UCC’s statute of frauds, OCGA § 11-2-201. That Code section provides in pertinent part that “a contract for the sale of goods ... is not enforceable . . . unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought.” OCGA § 11-2-201 (1). In this case, ESI’s purchase orders are not signed by any employee or authorized agent of SNK. Consequently, the writing does not satisfy OCGA § 11-2-201 (1) and, absent an applicable exception, is unenforceable against SNK. Harris v. Hine, 232 Ga. 183, 185-186 (1) (205 SE2d 847) (1974).

Decided April 15, 1998

Reconsideration denied May 27, 1998.

Waycaster, Morris, Johnson & Dean, R. Leslie Waycaster, Jr., for appellant.

Fellows, Johnson, Davis & La Briola, Henry D. Fellows, Jr., David C. Keating, for appellee.

ESI argues that the purchase orders are sufficient writings under OCGA § 11-2-201 (1), though unsigned, because the purchase orders constitute written confirmation of an oral contract pursuant to OCGA § 11-2-201 (2). However, to avail itself of this statutory exception to the statute of frauds, ESI must present some evidence from which a jury could infer that SNK received the pertinent purchase orders and had an opportunity to repudiate the orders within ten days as provided in OCGA § 11-2-201 (2). Id.; see JEM Patents v. Frost, 147 Ga. App. 839 (250 SE2d 547) (1978). In this case, there is no evidence that SNK received the purchase orders at issue. ESI established only that it occasionally followed its phone orders with facsimile purchase orders. ESI’s president testified that he did not mail or fax to SNK any of the purchase orders at issue. Moreover, he testified that although his sales representative “usually” followed up on his orders with facsimiles, he had no personal knowledge whether that employee did so in this case. No one established that the three purchase orders at issue were ever sent to SNK. Consequently, there is no competent evidence from which a jury could infer that the purchase orders were received by SNK. See, e.g., Greene v. Jenkins, 224 Ga. App. 640, 644 (2) (481 SE2d 617) (1997) (“[Speculation and conjecture cannot form the basis of an inference.”).

2. Because ESI failed to adduce evidence from which a jury could infer the existence of a writing sufficient to avoid the application of the UCC’s statute of frauds, the trial court correctly determined any agreement was unenforceable and properly granted SNK summary judgment on ESI’s breach of contract claim. Our resolution of this issue in SNK’s favor renders ESI’s remaining enumerations of error moot. Therefore, we do not address them.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A0724.
    MILTON v. THE STATE.
    (503 SE2d 566)
   Ruffin, Judge.

A jury found Demar Fitzgerald Milton guilty of trafficking in cocaine, fleeing or attempting to elude a police officer, reckless driving, and speeding. Milton appeals his convictions, and we affirm.

The standard of review for a criminal conviction is whether after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Hopkins v. State, 222 Ga. App. 157 (473 SE2d 267) (1996).

The evidence, viewed in this light, shows the following. On December 9,1996, Officer Phillip Neely received information from an unidentified individual who called the narcotics hotline and informed Neely that a well-dressed male who was racially described and driving a Ford car would meet with a “heavy set” male who was racially described with a certain hair style to conduct a large drug deal at the McDonald’s restaurant or Amoco station in the vicinity of Glenwood Road and Columbia Drive. In response to this information, the police established surveillance at Glenwood and Columbia Drive. During the surveillance, Neely saw a car and two individuals who matched the informant’s descriptions. Neely, who was working as a narcotics undercover agent, testified that he observed a drug transaction between the two subjects and radioed the other surveillance units. However, before the officers could initiate an investigative stop, the subjects left the scene. Police officers followed in pursuit, and Officer Davis, who was in uniform and driving a marked patrol car, pulled in behind Milton’s car and turned on his blue lights. According to Neely, Milton “slowed his vehicle to almost stop, [then] he took off.” While the officers pursued Milton, he drove in the emergency lane, crossed lanes of traffic, jumped the curb and reached speeds of 100 to 120 mph. Neely and Davis saw Milton throw a burgundy briefcase out of the driver’s side window. While other uniform officers pursued Milton, Davis and Neely retrieved the briefcase. Neely secured the briefcase in the trunk of his vehicle and continued the pursuit. Milton eventually abandoned his vehicle and jumped a fence. He was subsequently apprehended by police officers.

When Neely looked in the discarded briefcase, he discovered what appeared to be three individually wrapped kilos of cocaine, which were actually coconut wrapped in clear plastic wrap. Two of the three packages of coconut, however, contained a smaller package of crack cocaine wrapped around the coconut. One such package contained 23.7 grams of crack cocaine, and the other contained 24.6 grams of crack cocaine. The total weight of the crack cocaine was 48.3 grams.

1. Milton contends that there was insufficient evidence to support the verdict because the State failed to prove that he knowingly possessed the cocaine. We disagree. A person commits trafficking when he knowingly delivers or is knowingly in possession of 28 grams or more of cocaine. OCGA § 16-13-31 (a) (1). “[K]nowledge or scienter may be proved, like any other fact, by circumstantial evidence.” (Citations and punctuation omitted.) Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345) (1990).

In light of the evidence presented by the State that Milton initially fled from the police by car, was seen throwing the briefcase that contained the cocaine from the car window, abandoned the car, and continued to flee on foot until his apprehension, the jury was authorized to find that he was knowingly in possession of cocaine. Consequently, under the standard of Jackson v. Virginia, supra, the evidence adduced at trial was sufficient to authorize the jury’s verdict.

2. Milton contends the trial court erred in admitting evidence that he was previously convicted of possession of cocaine on April 3, 1991. More specifically, Milton asserts that the evidence was introduced for an improper purpose, that it was not sufficiently similar to the charged crime, and that it occurred over five years prior to the charged crime.

The evidence regarding his 1991 conviction shows that more than five years before the instant case, Clayton County Police Officer Phillip Bailey stopped Milton for running a red light and detected an odor of alcohol. The officer saw a brown paper bag on the passenger seat and an open can of beer between Milton’s legs on the floorboard. A computer check revealed Milton had a suspended license. Milton was arrested for the open container and driving with a suspended license. After obtaining Milton’s consent, the officer searched Milton’s vehicle, and the officer found crack cocaine in the brown paper bag, along with a quantity of powder cocaine and marijuana. Milton was charged with possession with intent to distribute because the total weight of the cocaine was 14.4 grams. In the instant case, the State tendered evidence of the 1991 conviction to establish “guilty knowledge,” identity, modus operandi, and course of conduct.

In general, “evidence óf an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.” Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). However, “[ejvidence of similar crimes is admissible where its relevance to show identity, motive, plan, scheme, bent of mind and course of conduct, outweighs its prejudicial impact.” (Emphasis in original.) Oller v. State, 187 Ga. App. 818, 819 (2) (371 SE2d 455) (1988). Before independent crime evidence is admitted the State must demonstrate the following: (1) the evidence of the independent crime is relevant for a purpose other than to show a probability that the defendant committed the present charge and not to show criminal character; (2) there is sufficient evidence to prove the independent crime was committed by the accused; and (3) there is a sufficient connection or similarity between the independent offense and the present charge so that proof of the former tends to prove the latter. Williams, supra at 642. The number of similarities is not determinative, but rather the evidence is admissible when “the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged. . . .” (Citations and punctuation omitted.) Barker v. State, 226 Ga. App. 747, 749 (3) (487 SE2d 494) (1997).

We first note that Milton entered a guilty plea to the independent crime. In addition, the admission of the certified copy of his conviction satisfied the first prong of the Williams criteria that Milton committed the independent crime. We now focus on the remaining two requirements.

(a) Milton contends that the independent evidence was not sufficiently similar to the present charge and that the State offered the independent crime evidence for the sole purpose of establishing Milton’s bad character. Milton also contends that the two crimes are not sufficiently similar because Milton was charged with trafficking cocaine in the independent crime, but was only indicted for possession of cocaine.

Even though each arrest occurred under different circumstances and resulted in different charges, “ ‘[t]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ [Cit.]” Gonzalez v. State, 213 Ga. App. 667, 668 (1) (445 SE2d 769) (1994). In Gonzalez, we held that a prior arrest for possession of cocaine was sufficiently similar to a present charge of trafficking in cocaine. Id. The State has met this standard of admissibility. Both crimes were sufficiently similar in that they both occurred within metropolitan Atlanta and involved enough cocaine to support an arrest for possession with intent to distribute. Moreover, Milton was driving a motor vehicle and committed traffic offenses when he was arrested for both crimes. The trial court correctly determined the independent crime was sufficiently similar to the present crime.

In addition, the purpose for the admission of the independent crime evidence must be examined as well. Evidence which is presented to prove the identity of the perpetrator may require numerous similarities between the crimes to show that the charged crime “bears the defendant’s ‘criminal signature.’ ” Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989). However, if identity is not at issue, then admission of such evidence requires a lesser degree of similarity to meet the standard for admissibility. Harris v. State, 222 Ga. App. 52, 54 (2) (a) (473 SE2d 232) (1996).

As we have discussed above, the State met the Harris standard for admissibility. Consequently, the trial court did not err in admitting the similar transaction evidence to prove guilty knowledge, intent, bent of mind, and modus operandi.

(b) Milton also contends that the independent crime, having occurred five years earlier, was too remote in time to be admissible. We disagree.

“ ‘Mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. [Cit.]’ [Cit.]” Dunbar v. State, 228 Ga. App. 104, 109-110 (2) (b) (491 SE2d 166) (1997). “The lapse of time between the prior occurrences and the offenses charged goes to the weight and credibility of such testimony, not its admissibility.” (Citations and punctuation omitted.) Id. at 110.

In this case, the mere passage of five years between the independent crime and the present case did not render the evidence inadmissible. Accordingly, notwithstanding the lapse of time, we find no error in admitting the similar transaction. Williams, supra.

3. Milton contends that the trial court erred in denying his motion for mistrial because the prosecutor made improper closing remarks regarding the prior conviction. On appeal Milton argues that the prosecutor improperly argued “unauthorized and illegal inferences pertaining to [Milton’s] character, requesting a conviction on the [instant case] merely by suggesting conformity with a prior criminal behavior.”

First, in this instance, Milton contends that the prosecutor stated in his closing argument that Milton was not a completely innocent person because he was a convicted felon. Milton argues that the prosecutor effectively argued the similar transaction evidence as character evidence. Milton also challenged this comment as burden shifting. Second, Milton asserts that the prosecutor stated that “[Milton] . . . got arrested in Clayton County for possession with intent to distribute back in 1991, and he was lucky enough to go to the courthouse and plead to possession of cocaine, he was a convicted felon, goes out there and meets Mr. Watson. And what do they do? There is this exchange, a transaction.” Milton argues that by emphasizing Milton’s prior conviction to the jury, the prosecutor again argued the similar transaction evidence as character evidence instead of using it for the purpose that it was admitted.

Although Milton did not object to the prosecutor’s closing argument until both arguments were concluded, the trial court accepted the objection as timely. At trial, Milton never specifically stated his objection but merely alluded to a repeated theme in the prosecutor’s closing argument that the defense “had not proved what [they] said [they] were going to prove.” In addition, Milton moved for a mistrial but did not request that curative instructions be given to the jury after the alleged improper argument. The trial court did not give a jury instruction sua sponte.

First, we note that “the trial court has the right and duty to govern the scope of argument by counsel both prior to and after the presentation of evidence. The proper range of comment by counsel is a matter within the discretion of the trial court. This court will not disturb a court’s ruling on a motion for a mistrial in the absence of a manifest abuse of discretion, and a mistrial is essential to preserve a defendant’s right to a fair trial.” (Citations and punctuation omitted.) Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992).

We have reviewed the context of the motion for mistrial with regard to the objectionable statements made by the prosecutor. As to the prosecutor’s comment that Milton was not a completely innocent person, we conclude that this remark was made to refute Milton’s defense that he was framed, that he had no knowledge of the cocaine, and consequently had no intent to possess the cocaine. Contrary to Milton’s assertion, we conclude that the prosecutor’s argument was not a comment on Milton’s presumption of innocence.

Moreover, “[Milton’s] failure to request a curative instruction constitutes , a waiver of any appellate issues regarding the giving of such an instruction to the jury. [Cit.] Reversible error would not flow from the failure to give an unrequested curative instruction, as in no case will a trial judge’s ruling or election be reversed for not going further than requested. [Cit.]” Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995). Pretermitting whether an abuse of discretion occurred in the denial of the motion for mistrial, we conclude that such error, if any, is harmless. Id. Consequently, the trial court did not err in its denial of Milton’s motion for mistrial based upon this objection to the prosecutor’s comments.

However, the prosecutor’s second comment concerning Milton’s prior conviction was improper. But under the circumstances of this case, no reversal is required. The trial court fully and correctly instructed the jury on the presumption of innocence, the State’s duty of proving guilt beyond a reasonable doubt, and the purpose of similar transaction evidence. Considering the subsequent jury instructions and the overwhelming evidence against Milton, we find the error harmless beyond a reasonable doubt. Oller, supra at 823.

4. Milton contends that the trial court erred in denying his motion to suppress the fruits of the purportedly illegal traffic stop. We disagree.

In this instance, the officers conducted surveillance after receiving an anonymous tip that a drug transaction would occur between two particular individuals. The officers observed two persons, who matched the descriptions given by the tipster, conduct a drug transaction. Before the police could make a traffic stop both individuals fled in separate vehicles. During the pursuit of Milton, the officers observed him discard the cocaine. The officers recovered it and subsequently arrested Milton.

The facts in the instant case are similar to the facts in Hunt v. State, 205 Ga. App. 490 (422 SE2d 24) (1992). In Hunt, police officers received an anonymous tip that the defendants would return to their residence in a white Chevrolet Spectrum with a large quantity of cocaine. The officers conducted surveillance of the location and observed the described vehicle pull in front of the residence. The officers attempted to initiate a traffic stop by activating the blue lights, but the vehicle fled. While in pursuit, the defendant threw a small object out of the vehicle’s window. The officers stopped the vehicle and retrieved the object, which was determined to be cocaine. Relying on the U. S. Supreme Court’s decision in California v. Hodari D., 499 U. S. 621 (111 SC 1547, 113 LE2d 690) (1991), we held that the “defendant was not ‘seized’ when the cocaine was abandoned. He had not been touched by the officers; he did not submit to the officers’ ‘show of authority’ — the flashing blue lights. Simply put, the defendant was in a state of flight when the cocaine was discarded and it cannot be said that it was the fruit of an illegal arrest.” Hunt, supra at 491. See also Smith v. State, 217 Ga. App. 680 (2) (458 SE2d 704) (1995).

Accordingly, Milton was not “seized.” Milton’s failure to submit to the authority of the police officers is evident by the fact that he was “in a state of flight when the cocaine was discarded.” Hunt, supra at 491. We thus conclude that the cocaine was not the fruit of an illegal arrest. Accordingly, the trial court did not err in denying Milton’s motion to suppress.

5. Milton contends that the trial court erred in denying his motion for mistrial on the grounds that he was seen by a juror outside the courthouse handcuffed to another criminal defendant. We disagree.

“ ‘Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse. However, where one or more jurors by chance see the defendant in handcuffs outside the courtroom, it is not error to deny a motion for mistrial.’ [Cit.]” Allen v. State, 210 Ga. App. 447, 448 (2) (436 SE2d 559) (1993).

Here, a juror exited the restroom across the hall from the elevator while Milton, handcuffed to another criminal defendant, waited for the elevator. In examining the juror outside the presence of the other jurors, the trial court determined that the juror saw some prisoners, but she tried not to look at them. The juror stated that she saw “a person in front of [the prisoners] in a suit. I couldn’t really identify if it was [Milton] or not.” The trial court noted outside the presence of the jury that “it would be nice if we had a judicial center . . . where the prisoners have separate elevators and facilities from the jurors. [But] we do the best we can here with everybody crowding onto the same elevators.”

Clearly, the evidence shows that the juror merely saw an unidentified individual and this observation was completely inadvertent. Under the facts and circumstances of this case, we find “justifying circumstances” for the juror’s observation of Milton in handcuffs, assuming such observation was in fact made. Accordingly, the trial court did not err in denying Milton’s motion for mistrial. Allen, supra.

6. Milton contends that the trial court erred in denying his motion to dismiss the indictment and asserts that the State destroyed exculpatory evidence by destroying the packaged coconut which was in the discarded briefcase that contained the cocaine.

Milton also contends that the coconut packages were exculpatory because they demonstrate the intent on the part of the package maker to frame him and correspondingly showed the lack of his intent to possess the drugs within the package.

At the motion hearing, Neely testified that the police recovered three “kilos” of suspected cocaine, wrapped in Saran Wrap. These “kilos” consisted of three to four packages of coconut. Two of the “kilos” contained another bag which was taped on top of the coconut packages, and these other bags were found to contain cocaine. With regard to the packages of coconut, the officer was told that perishable items would not be accepted into the property room. Accordingly, the officer photographed the coconut packages, and subsequently they were destroyed. The cocaine was submitted to the crime lab. After the hearing, the trial court did not find that the officers exhibited bad faith because the narcotics department had a policy not to preserve perishable items such as food and the officers took photographs of the evidence and made them available to the defense. Consequently, the trial court ruled that the destruction of the coconut did not deny Milton due process of law.

“ Tn dealing with the failure of the state to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. Arizona v. Youngblood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988). To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984).' [Cit.]” Pickens v. State, 225 Ga. App. 792, 799 (5) (484 SE2d 731) (1997). See also Walker v. State, 264 Ga. 676, 680 (3) (449 SE2d 845) (1994). “ “Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law/ Arizona v. Youngblood, [supra at] 58; [cit.]." Brantley v. State, 199 Ga. App. 623, 624 (1) (405 SE2d 533) (1991).

We first address the issue of the officer’s purported bad faith. We find no error in the trial court’s ruling. ‘Whether bad faith had been demonstrated was a question of fact. The trial judge was the trier of facts in this matter, and resolved all issues of truthfulness placed before [her]; we do not disturb [her] finding if there is any evidence for it.” (Citations and punctuation omitted.) Lynott v. State, 198 Ga. App. 688, 690 (4) (402 SE2d 747) (1991). Based on the foregoing evidence, the trial court did not err in finding a lack of bad faith.

We next review the materiality of the coconut packages. As the trial court noted, Milton was not prevented from reconstructing the evidence. The trial court reasoned that Milton could have obtained similar packages of coconut and demonstrated the manner in which the coconut packages were combined with the cocaine. Consequently, Milton has failed to satisfy the standard of constitutional materiality because “comparable evidence” was reasonably available. Pickens, supra. Milton further maintains that duplication of the evidence would not further his defense because the destruction of the coconut packages precluded him from examining the plastic bags that contained the coconut and from tracing the packages from the original distributor to the purchaser. However, Milton failed to establish that any package of coconut could be traced to the original purchaser or that any fingerprints could have been lifted from any plastic bag. Even if Milton could have presented evidence which identified the original purchaser or evidence which identified who handled the coconut packages, this evidence would not negate the uncontroverted evidence that Milton discarded the coconut packages that contained more than 28 grams of cocaine.

Accordingly, in the absence of evidence that the officers acted in bad faith by failing to preserve the coconut packages and that the coconut packages were material and exculpated Milton, we find that Milton was not denied due process of law. Walker, supra.

Decided May 27, 1998.

L. Burton Finlayson, for appellant.

J. Tom Morgan, District Attorney, Gregory J. Lohmeier, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A98A0795.
    SUPCHAK et al. v. PRUITT et al.
    (503 SE2d 581)
   Birdsong, Presiding Judge.

Karl and Beverly Supchak appeal the grant of summary judgment to Ruth W. Pruitt and to Boyce Pruitt d/b/a Boyce Pruitt Livestock & Feed under OCGA § 9-11-56 (h). The case remains pending below against Boyce Pruitt individually. Ruth Pruitt lives on her one hundred forty-acre farm in Gwinnett County, and her son Boyce Pruitt lives with his family on an adjoining seven-acre property that was deeded to him by his mother.

The Supchaks filed suit against Boyce Pruitt, individually, Ruth W. Pruitt, and Boyce Pruitt d/b/a Boyce Pruitt Livestock & Feed to recover for damages incurred by Karl Supchak when a vehicle driven by Mr. Supchak collided with a horse allegedly owned by the defendants. The complaint also contained a claim for Beverly Supchak’s loss of consortium. Boyce Pruitt and Ruth Pruitt filed separate answers.

Boyce Pruitt denied that he had ever done business as Boyce Pruitt Livestock & Feed and asserted that he was not aware of any business entity or operation known as Boyce Pruitt Livestock & Feed. Although Boyce Pruitt admitted that he owned and had custody of the horse, he denied that Ruth Pruitt either owned or had custody of the horse and otherwise denied the material allegations of the complaint. Ruth Pruitt’s answer also denied ownership or custody of the horse.

After discovery, Boyce Pruitt d/b/a Boyce Pruitt Trucking (“Pruitt Trucking”) filed a motion for summary judgment. The motion asserted that Boyce Pruitt had never done business as Boyce Pruitt Livestock & Feed, that Pruitt Trucking never had an ownership interest in or exercised custody or control over the horse involved in the collision, and that the horse was not kept on Pruitt Trucking’s property. This motion was supported by the affidavit of Boyce Pruitt.

The affidavit stated that Boyce Pruitt owned and did business as Boyce Pruitt Trucking and had never done business as Boyce Pruitt Livestock & Feed and that no such entity has ever existed. Boyce Pruitt’s affidavit also stated that he was the owner of the horse that was struck by Mr. Supchak and that neither Pruitt Trucking nor Boyce Pruitt Livestock & Feed owned or had ever been responsible for the care, custody, or control of the horse. Boyce Pruitt’s affidavit also stated that the horse had never been kept on the property of Boyce Pruitt Trucking or Boyce Pruitt Livestock & Feed.

Later, Boyce Pruitt submitted a second affidavit. This affidavit stated that Pruitt Trucking is in the business of hauling feed ingredients, does not engage in any other business, and does not engage in the purchase and sale of horses. The affidavit further stated that Pruitt Trucking is not associated with, does not have any financial relationship with, and does not have any jointly owned assets with Ruth Pruitt. Additionally, the. affidavit stated that Pruitt Trucking has a separate checking account from Boyce Pruitt and the funds of Pruitt Trucking and Boyce Pruitt are not commingled.

Ruth W. Pruitt also moved for summary judgment; she contended that she was not the owner of the horse in question, and although she owned the pasture where the horse was kept, she breached no duty owed the Supchaks. Her motion was supported by her deposition and the deposition of her son, Boyce Pruitt.

The Supchaks filed separate responses to the motions and submitted affidavits from two officers of the Gwinnett County Police Department Animal Control Unit and the affidavit of an expert. The police officers stated they responded to the call about Mr. Supchak hitting the horse and spoke to residents of the area who identified Boyce Pruitt as the owner of the horse. They also stated they spoke to Boyce Pruitt who admitted ownership of the horse and told them his son had been training the horse to open the gate and the horse had opened the gate and let itself out. The expert’s affidavit stated the proper standards for fences used to contain horses and also stated that the fences around Ruth Pruitt’s pasture were inadequate for the horse in question. The Supchaks also relied upon the depositions of Boyce and Ruth Pruitt to oppose the motions for summary judgment.

Subsequently, the trial court granted summary judgment to both Ruth Pruitt and Boyce Pruitt Livestock & Feed. The trial court’s order states, “[biased on the evidence in the record, it appears that Ruth Pruitt did not own, nor did she exercise custody or control over, the horse in question.” Then, in regard to Boyce Pruitt Livestock & Feed the order recited, “[likewise, the evidence in the record shows that none of the businesses owned by Boyce Pruitt, if they in fact exist, owned or exercised custody or control over the horse.” After the grant of summary judgment to these defendants, the action remained pending solely against Boyce Pruitt, and he, individually, is not a party to this appeal. Held:

1. The standards applicable to motions for summary judgment generally are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). Further, when reviewing the grant or denial of a motion for summary judgment, this Court conducts a de novo review of the law and the evidence. Boulware v. Quiktrip Corp., 226 Ga. App. 399 (486 SE2d 662); Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432).

2. Although Boyce Pruitt raised the issue of whether Boyce Pruitt Livestock & Feed was an entity capable of being sued, the trial court did not rule on this issue. Consequently, whether Boyce Pruitt Livestock & Feed is an entity capable of being sued is not properly before this Court.

3. The trial court did not err by granting summary judgment to Ruth Pruitt and Boyce Pruitt Livestock & Feed. Our law places the duty on owners of livestock to keep their animals from running at large: “No owner shall permit livestock to run at large on or to stray upon the public roads of this state or any property not belonging to the owner of the livestock, except by permission of the owner of such property.” OCGA § 4-3-3. Consequently, Ruth Pruitt and Boyce Pruitt Livestock & Feed could be liable for the damages incurred by the Supchaks only if they were owners of the horse involved in the collision. For these purposes our law defines an owner as “any person, association, firm, or corporation, natural or artificial, owning, having custody of, or in charge of livestock.” OCGA § 4-3-2 (2).

Under the facts of this case, neither Ruth Pruitt nor Boyce Pruitt Livestock & Feed falls within that definition of an owner. The evidence plainly shows Ruth Pruitt merely allowed her son Boyce Pruitt to keep his horses in her pasture, which adjoined his property, as she also allowed him to park his trucks on her property. She received no pay for allowing the horse to be in her pasture. These acts are not sufficient to create any issue of fact over whether Ruth Pruitt owned, had custody of, or was in charge of the horse involved in the collision. Further, nothing in Ruth Pruitt’s deposition testimony indicated that she owned the horse, that she had custody of the horse, or that she was in charge of the horse. In fact, the record shows that she did not even know the name of the horse and never rode the horse. Ruth Pruitt testified that her son’s family owned the horse.

Although it might be inferred that Ruth Pruitt owned the horse because the horse escaped from her pasture, that inference is contra-dieted by the statements in her deposition, Boyce Pruitt’s affidavits, and his deposition that he owned the horse. “In passing upon a motion for summary judgment, a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. When uncontradicted and unimpeached evidence is produced as to the real facts, the inference disappears, and does not create a conflict in the evidence so as to require its submission to a jury.” Backus v. Ray Jones, Inc., 150 Ga. App. 753, 756 (258 SE2d 693).

Moreover, we find no merit to the Supchaks’ contention that Ruth Pruitt is liable in this case because the fences around her pasture were inadequate to contain this horse. “If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from the negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal.” (Citations and punctuation omitted.) Evancho v. Baker, 196 Ga. App. 903, 904 (2) (397 SE2d 166). There is no evidence in the record showing that Ruth Pruitt had custody of the horse, that she kept the horse for her son, or that she provided any care for the horse. She merely permitted her son to keep his horses in the pasture with her cows.

Because the evidence shows that she was not an owner of the horse as that term is defined in OCGA § 4-3-2 (2), Ruth Pruitt was not obligated to assure that the pasture fence was adequate to prevent her son’s horse from escaping. Ruth Pruitt’s interest in the pasture fence was to see that it was adequate to contain her cattle; as her cattle were not involved in this accident, she is not responsible for Karl Supchak’s damages. Moreover, Ruth Pruitt’s deposition testimony that the whole family attempted to make sure the pasture fence was in good repair does not change this result.

The Supchaks’ argument that Pruitt Livestock & Feed was the owner of the horse is without merit. There is no evidence establishing that Pruitt Livestock & Feed was the owner of the horse nor any evidence from which such ownership might be inferred. The Supchaks’ contentions to the contrary are based upon mere conjecture or supposition based on the fact that Boyce Pruitt’s truck was parked at his mother’s farm. As any inference arising from that fact is directly contradicted by the affidavits and depositions of Ruth and Boyce Pruitt, there is no issue for the jury. Backus v. Ray Jones, Inc., supra.

We also reject the Supchaks’ contention that under the evidence in this case either Ruth Pruitt or Boyce Pruitt Livestock & Feed could be held liable through any theory of liability based on the operation of a joint venture. See Kissun v. Humana, Inc., 267 Ga. 419 (479 SE2d 751). There is simply no evidence that the defendants in this action or any combination of them was engaged in a joint venture concerning the ownership of the horse. The uncontradicted evidence is that the horse was owned by Boyce Pruitt for the use of his immediate family, and neither Ruth Pruitt nor Boyce Pruitt Livestock & Feed owned or had any interest in the horse.

Decided May 27, 1998

Billy E. Moore, Jeffrey S. Gilbert, for appellants.

Bovis, Kyle & Burch, William B. Barrickman, John A. Love, for appellees.

Accordingly, the trial court did not err by granting summary judgment to Ruth Pruitt and Boyce Pruitt Livestock & Feed on Karl Supchak’s claims for damages arising from his collision with the horse.

4. Further, one spouse’s claim for the loss of the other spouse’s society or consortium is a derivative one stemming from the right of the other spouse to recover for his injuries. When the other spouse cannot recover from the alleged tortfeasor as a matter of law, however, the alleged tortfeasor also is not liable for loss of consortium arising from those injuries. Here, Karl Supchak cannot recover against Ruth Pruitt and Boyce Pruitt Livestock & Feed because they did not own the horse, and thus Beverly Supchak has no claim against them for the loss of consortium. White v. Hubbard, 203 Ga. App. 255, 257 (416 SE2d 568).

5. Boyce Pruitt Trucking’s motion for imposition of sanctions under Court of Appeals Rule 15 is denied.

Judgment affirmed.

Johnson and Smith, JJ, concur.


text:
    A98A0797.
    McCALL v. THE STATE.
    (503 SE2d 578)
   Birdsong, Presiding Judge.

William McCall was convicted of aggravated battery and sentenced to ten years imprisonment, being eligible for probation after five years. McCall appeals and asserts seven enumerations of error. For the reasons discussed below, we reverse.

The record shows that on October 5, 1996, McCall was indicted for aggravated battery. On January 29, 1997, McCall appeared for the arraignment on the indictment and was not represented by counsel. He pled not guilty and inquired about obtaining appointed counsel. He was provided an Application for Appointment of Counsel and Certificate of Financial Resources. McCall has only a ninth grade education and did not provide a response to all of the requested information, even though he did put “N/A” in response to some requests. This form shows that McCall’s net monthly income was $960 and that he had monthly expenses totaling $270 per month, excluding food and utility expenses. He did not own an automobile, a home or any other assets. He was married and also had an 11-month-old child. He incorrectly stated that his wife was working, but did not provide any information about her income as requested.

The form was presented to the trial court by the district attorney’s office in McCall’s presence. The trial court asked McCall if he was working and McCall replied that he was working. The trial court immediately responded, “You can hire you an attorney then if you’re working.” The trial court did not make any additional inquiry into McCall’s ability to pay for an attorney or the portions of the form which were not completed before denying McCall’s application for an attorney. McCall attempted to hire four different attorneys after his application was denied, but was unable to retain any of them due to a lack of funds. The lowest fee cost offered to him was $1,500.

On February 17, 1997, 19 days after his application was denied, McCall represented himself pro se in a jury trial which started at 2:30 p.m. and resulted in a guilty verdict by 5:10 p.m. There is no evidence in the record that the trial court made any additional inquiry into McCall’s ability to pay for counsel, his efforts to retain counsel or why he was not represented by counsel before allowing him to proceed pro se. Likewise, there is no evidence in the record that the trial court advised McCall about the dangers of proceeding without counsel or made a finding that he knowingly and voluntarily waived his right to counsel.

McCall moved for a new trial on the following grounds: (1) he was not given adequate time to prepare for trial; (2) he was not allowed to present evidence of prior threats by the alleged victim or motive, bias or interest of the alleged victim; (3) he was not allowed to present evidence that the alleged victim had threatened to take his child away from him; (4) the county’s application for appointment of counsel was inadequate to determine McCall’s indigent status; (5) the trial court did not properly determine whether McCall qualified for appointed counsel; and (6) the trial court erred when it failed to inquire about McCall’s diligence in retaining counsel.

An evidentiary hearing was held on October 29, 1997, and it was shown that McCall tried to hire an attorney, but was unable to do so due to a lack of funds. McCall and his wife both testified that she was unemployed at the time McCall completed the application for court-appointed counsel. It was also shown that McCall was two months behind on his rent and that his food expenses and utility bills were approximately $384 per month at the time he completed the application. At the conclusion of the evidentiary hearing, the trial court summarily denied McCall’s motion for a new trial. McCall appeals and asserts seven enumerations of error. Held:

1. In his seventh enumeration of error, McCall contends that the trial court erred when it failed to inquire into McCall’s diligence in attempting to retain counsel. We agree. In Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469), we held that even where a trial court determines that a defendant is not indigent, the defendant “is entitled to have the trial court consider his request for appointed counsel based on the individual circumstances of his case; and the defendant’s diligence in attempting to retain counsel would be one circumstance to consider.” (Emphasis in original.) Id. at 599. “While the court does not have the duty to appoint counsel for defendants who do not meet the indigency standard, it does have the discretion to do so. And this discretion must be affirmatively exercised, based on the individual circumstances of each case; the court cannot simply deny all such requests as a matter of policy.” (Emphasis in original.) Id. at 600. The record shows that the initial denial of defendant’s request for counsel was based solely on the trial court’s finding that the defendant failed to meet the indigency standard. It also shows that there was no later consideration of his diligence or other special circumstances when he appeared for trial without counsel. We find that the trial court erred when it failed to consider McCall’s diligence in attempting to retain counsel before forcing McCall to represent himself in a jury trial.

We also find that the trial court erred when it failed to find on the record that McCall had knowingly and intelligently waived his right to counsel. “ ‘The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.’ ” Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49), citing Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461). In Clarke, the Supreme Court of Georgia held “that in future cases, the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.” 247 Ga. at 197.

2. The State contends that any error by the trial court was harmless and that McCall’s conviction should nonetheless be affirmed. We disagree. We cannot find, under the facts and circumstances of this case, that forcing a defendant with a ninth grade education to represent himself was harmless error.

Decided May 27, 1998.

Jason K. Hoffman, for appellant.

Robert B. Ellis, Jr., District Attorney, George F. McCranie IV, Assistant District Attorney, for appellee.

3. Our decision in Division 1 renders McCall’s remaining enumerations of error moot. We reverse the judgment of conviction and sentence and remand the case to the trial court with direction that a determination be made, consistent with this opinion, as to the defendant’s present eligibility for court-appointed counsel.

Judgment reversed and case remanded with direction.

Johnson and Smith, JJ, concur.