text:
    A95A0609.
    WILLIAMS v. THE STATE.
    (458 SE2d 671)
   Andrews, Judge.

Demetrius Williams was charged and convicted of a violation of the Georgia Controlled Substances Act and appeals from that conviction.

Evidence at trial was that on the evening of April 20, 1991, Clayton County deputies James Watkins and Samuel Smith were patrolling the area of Springdale Road. Watkins and Smith were part of the Night Hawk Unit, which is a street-level drug interdiction team within the Clayton County sheriff’s office.

As the uniformed deputies, who were traveling in a marked sheriff’s vehicle, neared a pool hall, they observed several men standing on the sidewalk near the front of the pool hall. Because the location was known for drug dealing, the officers decided to investigate. As they neared the group on the sidewalk, they observed Williams bending over an area of the fence located between the pool hall and the next building. Williams then straightened up and returned to the group of men on the sidewalk.

Deputy Smith began talking to the individuals in the group and looking for' any drugs that may have been thrown down on the ground. Meanwhile, Deputy Watkins walked over to the fence behind the subjects. He testified that he had been advised that drugs were often hidden in a fence post at a gate in the area which Williams had just left. Watkins inserted his fingers into the fence post cavity and felt a plastic bag. This bag contained 15 smaller plastic bags, each of which contained a white chunky substance later determined to be crack cocaine. After a non-verbal signal from Watkins, the two deputies returned to their vehicle and drove around to the street behind the pool hall. They then walked to a wooded area close to the fence where they could observe the fence post without being seen.

The officers heard Williams ask one of the other men, Bruce Hines, “who’s selling this dope, you or me?” Hines then walked past Williams to the fence post from which the officer had removed the cocaine. Hines knelt down and reached inside the same hole from which Watkins had retrieved the crack cocaine. Hines then told Williams that “it was not there.” Williams responded excitedly to this and went over to the fence post himself. Williams put his hand into the cavity where the officers had found the cocaine. Williams then stood up and asked where “it” was. At this time, Hines began looking around on the ground. Both officers stated that the conversation between Hines and Williams was loud enough for them to hear.

Watkins and Smith returned to the front of the building and placed Hines under arrest. Williams was no longer in the area. About four months later, Officer Smith found Williams and placed him under arrest for possession of cocaine.

1. In his first enumeration of error, Williams claims that the prosecutor improperly impeached Williams’ only defense witness. But, as Williams himself admits, there was no objection to this raised at trial, and it cannot be raised for the first time on appeal. See Lewis v. State, 188 Ga. App. 205, 206 (372 SE2d 482) (1988).

2. Second, Williams claims that the court erroneously refused his written request to give the jury the “two theories” charge. The “two theories” charge states that “where the evidence and all reasonable deductions present two theories, one of guilt and the other consistent with innocence, the theory consistent with innocence must be accepted.” (Emphasis omitted.) Stonaker v. State, 134 Ga. App. 123, 126 (213 SE2d 506) (1975).

Assuming, arguendo, that this enumeration was properly preserved below, we find no error. The “two theories” charge has been disapproved by this court. Shutt v. State, 215 Ga. App. 617 (451 SE2d 530) (1994). It is a statement of law that “does not accurately state the principle addressed and should never be given.” Cantrell v. State, 212 Ga. App. 288, 290 (441 SE2d 879) (1994); Johnson v. State, 210 Ga. App. 99, 102 (435 SE2d 458) (1993). Therefore, the trial court did not err when it refused Williams’ request to give the “two theories” charge.

3. In his third, fourth, and eighth enumerations, Williams claims that the trial court erred in denying his motion for new trial and that the verdict was contrary to law and contrary to the evidence. Williams claims that the State never proved beyond a reasonable doubt that Williams and Hines possessed the cocaine jointly.

“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.] ” Rigenstrup v. State, 197 Ga. App. 176, 181 (398 SE2d 25) (1990).

In this case, viewing the evidence in the light most favorable to the verdict, we conclude that there was sufficient evidence from which a rational trier of fact could find that Williams was guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The two officers testified that as they approached the group in front of the pool hall, they saw Williams bend over the area in the fence where they later found the cocaine hidden. The officers observed Williams’ behavior and heard Williams’ response when Hines told him that the cocaine was not in the cavity in the fence.

It is the duty of the jury to determine the credibility of witnesses and resolve conflicting testimony. Davis v. State, 203 Ga. App. 227, 228 (416 SE2d 771) (1992). The evidence was sufficient for a rational trier of fact to find Williams guilty beyond a reasonable doubt. Jackson v. Virginia, supra. Therefore, the verdict was not contrary to law or to the weight of the evidence, and the trial court did not err in denying Williams’ motion for new trial on these grounds.

4. Next, Williams argues that the prosecutor committed an act of prosecutorial misconduct which influenced the jury to convict him. Williams claims that the prosecutor’s question at trial as to whether Williams had any prior drug convictions constitutes prosecutorial misconduct.

After the prosecutor asked the question, defense counsel objected immediately. The trial court sustained the objection and instructed the prosecutor not to say any more. This issue was never raised again, and there was never any argument raised in the trial court as to prosecutorial misconduct. “[T]he contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” Ledford v. State, 264 Ga. 60, 67 (439 SE2d 917) (1994) (quoting Spencer v. State, 260 Ga. 640, 646 (398 SE2d 179) (1990)). Further, this is a serious charge, and once appellant raises a charge of prosecutorial misconduct, he “has the duty to prove it by the record and by legal authority.” Moclaire v. State, 215 Ga. App. 360, 364 (451 SE2d 68) (1994), quoting Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993). Williams does not cite to any legal authority for his claim that this question rises to the level of prosecutorial misconduct and, therefore, we find this enumeration of error to be without merit. Smith v. State, 214 Ga. App. 631, 634 (448 SE2d 906) (1994); Meredith v. State, supra at 215.

5. Williams claims that the trial court incorrectly charged the jury regarding the moral and reasonable certainty test, instead of with the proper legal standard of proof beyond a reasonable doubt. But, the trial court charged the moral and reasonable certainty test in addition to and not instead of the test of beyond a reasonable doubt. The trial court charged: “[no] person shall be convicted of any crime unless and until each element of the crime is proved beyond a reasonable doubt and to a moral and reasonable certainty.” The trial court then stated that “[m]oral and reasonable certainty is all that can be expected in a legal investigation.”

While this court has since concluded that this terminology should not be used in jury instructions, Lloyd v. State, 214 Ga. App. 564, 569 (448 SE2d 729) (1994), it has not held that the charge constitutes reversible error. As long as the jury is charged on the standard of reasonable doubt and it is unlikely that the jury could have interpreted the court’s charge as allowing conviction on proof which does not meet the reasonable doubt standard, there is no reversible error. Lloyd, supra at 569.

6. Williams claims that his trial counsel was ineffective and that the court erred in failing to so find. Williams argues that his trial counsel was ineffective in that he failed to call Hines as a witness, failed to object to the prosecutor’s improper questions, and failed to object to improper impeachment of appellant’s witness.

In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990). Here, Williams must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66 (8) (410 SE2d 173) (1991). “To establish ineffective assistance of counsel, [a defendant] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cits.]” The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Gross v. State, 262 Ga. 232, 233-234 (1) (416 SE2d 284) (1992).

After the hearing on Williams’ motion for new trial, the trial court found that defense counsel was not ineffective at trial. As to defense counsel’s failure to call Hines, Williams’ co-defendant, the court stated that defense counsel had considered this and decided it would not be a good decision to have Hines testify. Defense counsel testified that Williams had told him that he and Hines had a falling out at one time. Further, defense counsel testified that he was concerned that Hines could be easily impeached and might do more harm than good if called as a witness. Therefore, based on this information, defense counsel made the tactical decision not to call Hines as a witness. The trial court found that this was a matter of trial strategy and was not ineffective assistance of counsel.

As to Williams’ claim that defense counsel failed to object to the prosecutor’s improper question allegedly placing Williams’ character in issue, the record shows that defense counsel did object and the trial court sustained his objection. Defense counsel did not move for a mistrial at the time, but the trial court found that defense counsel was justified in making the tactical decision not to move for a mistrial.

Defense counsel did not object when the prosecutor cross-examined a defense witness at trial and asked the witness about his prior convictions. Defense counsel explained that he did not object because he had already elicited this information from the witness on direct examination and, therefore, it was perfectly proper for the prosecutor to ask the question. Defense counsel testified that he felt it would be better to have the witness volunteer this information because he knew that it would come out ultimately for impeachment purposes.

Further, as the trial court pointed out, defense counsel conferred with Williams, developed a trial strategy, filed pretrial motions, cross-examined witnesses, presented defense witnesses, and submitted numerous requests to charge. Therefore, the trial court’s finding that defense counsel rendered reasonably effective assistance of counsel is not clearly erroneous, and the trial court did not err when it denied Williams’ motion for new trial on this ground.

7. Williams argues that the trial court erred by requiring his counsel to pay the court reporter for takedown and for transcription of proceedings of August 2, 1994. At the August 2 hearing, after a discussion with counsel for both sides, the trial court continued the hearing on Williams’ motion for new trial until September 20, 1994. There was no testimony at this proceeding.

Williams does not point out anywhere in the record where this argument was raised below. Further, there was no testimony given at this proceeding, only argument of counsel. OCGA § 17-8-5 does not require that proceedings which consist solely of argument be transcribed. Miller v. State, 165 Ga. App. 487, 489 (299 SE2d 174) (1983). Moreover, Williams has not made out a colorable need for the transcript of the proceeding for purposes of this appeal. Sales v. State, 152 Ga. App. 635, 636 (263 SE2d 519) (1979). Therefore, we find this enumeration of error to be without merit.

Judgment affirmed.

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

Decided June 7, 1995

Reconsideration denied June 21, 1995

Lloyd J. Matthews, for appellant. Robert E. Keller, District Attorney, Tom Woodward, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A0764.
    CANTRELL v. THE STATE.
    (459 SE2d 564)
   McMurray, Presiding Judge.

Defendant and his co-indictee were jointly tried before a jury, and defendant was found guilty of a single count of possession of cocaine with intent to distribute. He appeals directly from the judgment of conviction and life sentence entered on the jury’s verdict. Held:

1. In defendant’s first enumeration, he contends the trial court erred in refusing to accept a verdict for mere possession of cocaine, under the following circumstances: The trial court instructed the jury on possession of cocaine as a lesser offense included within the indicted offense of possession of cocaine with the intent to distribute. After a period of deliberation, the jury announced a guilty verdict on mere possession of cocaine. The verdict form further recites: “We the jury are unable to reach a verdict on the charge of intent to distribute a controlled substance, cocaine. ...” The foreman explained “It hadn’t been unanimous. We’re in disagreement.” The trial court refused to accept this verdict and directed the jury to continue deliberations until it reached a verdict as to the indicted offense of possession of cocaine with the intent to distribute, charging them: “[Y]ou must first consider the charge for which they have been indicted.” The jury subsequently returned a guilty verdict on the indicted offense and the judgment of conviction was entered on that verdict. Defendant argues “if a verdict contains a finding of guilt as to an offense for which the judge has charged the jury . . . , then . . . the verdict must be accepted,” because it is tantamount to an acquittal of any greater offense.

“In Romine v. State, 256 Ga. 521 (1), 524 (1, b) (350 SE2d 446), the Supreme Court of Georgia held as follows: ‘(1) Where a jury is unable to agree on a verdict, that disagreement is not itself a verdict; and (2) whether a jury is hopelessly deadlocked is an evaluation (committed) to the sound discretion of the trial court, subject to appellate review for an abuse of discretion.’ ” Tyson v. State, 217 Ga. App. 428 (1) (457 SE2d 690). “A charge to the jury, that it is only authorized to consider the lesser[-included] offense if the defendant be found not guilty of the greater [indicted] offense, is a correct statement of the law. Alexander v. State, 247 Ga. 780, 784 (3) (279 SE2d 691) (1981) [, overruled in part, Edge v. State, 261 Ga. 865 (2), 867 (414 SE2d 463)]; Moore v. State, 151 Ga. App. 100, 101 (2) (258 SE2d 915) (1979).” Leslie v. State, 211 Ga. App. 871, 872 (440 SE2d 757). In the case sub judice, the special rule of Edge v. State, 261 Ga. 865 (2), supra, regarding the sequential charge on felony murder and voluntary manslaughter is not applicable. Rather, the general rule applies, i.e., that the jury is authorized to consider a lesser-included offense only after a verdict is reached on the indicted offense. The statement on this verdict form that the jury is unable to reach a verdict respecting the indicted offense of possession of cocaine with intent to distribute is not itself a verdict of acquittal on that charge. Romine v. State, 256 Ga. 521 (1), supra; Tyson v. State, 217 Ga. App. 428 (1), supra. It follows that the trial court was authorized to postpone acceptance of any verdict on the lesser-included offense until the jurors had reached a verdict on the indicted offense. Entry of judgment on the subsequent verdict for the greater offense was not error, for the verdict on the lesser-included offense merged. Leslie v. State, 211 Ga. App. 871, 872, supra.

2. Defendant was sentenced to life imprisonment under OCGA § 16-13-30 (d). In his second enumeration, he contends the trial court erred in failing to declare unconstitutional the mandatory recidivist sentencing provisions of OCGA § 16-13-30 (d) as applied to African-Americans. This contention is controlled by the recent decision of Stephens v. State, 265 Ga. 356 (456 SE2d 560). In Stephens, the Georgia Supreme Court rejected a racial discrimination challenge based on statistics, articles, and charts and held “there is a rational basis for the [mandatory recidivist] sentencing scheme in OCGA § 16-13-30 (d) and that it does not deprive persons of due process or equal protection under the law. See Tillman v. State, 260 Ga. 801 (400 SE2d 632) (1991); accord Isom v. State, 261 Ga. 596 (408 SE2d 701) (1991).” Stephens v. State, 265 Ga. 359 (4), supra. This enumeration is without merit.

3. Defendant’s final enumeration contends the trial court erred “in refusing to grant the Defendant’s motion for continuance . . .” due to alleged Batson violations by the State’s Attorney in the use of peremptory challenges. The court noted for the record that the qualified venire contained “two [black potential jurors] on a panel of thirty. . . .” The State’s Attorney employed only two of ten available peremptory challenges, and struck one of the two black potential jurors because she had “known the [co-defendant] for ten or fifteen years, lived close to her for many years . . . [and may have] knowledge of the [co-defendant’s inadmissible reputation] about her being a bootlegger. ...” The remaining black venireman served on the jury. Defendant moved for a “continuance or in the alternative ... a mistrial,” contending the State’s Attorney used peremptory challenges as a pretext to exclude all blacks from the jury. The trial court was unconvinced that a prima facie case of racial discrimination had been established and further concluded the reasons given by the State’s Attorney were sufficiently racially neutral.

Decided June 5, 1995

Reconsideration denied June 21, 1995

Troy R. Millikan, for appellant.

Lydia J. Sartain, District Attorney, Lee Darragh, Thomas A. Gump, Assistant District Attorneys, for appellee.

“As in any equal protection case, the ‘burden is, of course,’ on the [party] who alleges discriminatory selection of the venire [or petit jury] ‘to prove the existence of purposeful discrimination.’ [Cit.] . . . Circumstantial evidence of invidious intent may include proof of disproportionate impact. [Cit.] . . . For example, ‘total or seriously disproportionate exclusion of Negroes from jury venires,’ [cit.], ‘is itself such an “unequal application of the law ... as to show intentional discrimination.” ’ [Cit.]” Batson v. Kentucky, 476 U. S. 79 (III, B) (106 SC 1712, 90 LE2d 69). “[T]he ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. [Cit.]” Purkett v. Elem,_U. S._(115 SC 1769, 131 LE2d 834). In the case sub judice, however, the use of a peremptory challenge to exclude one of two qualified black venire does not raise any inference of purposeful racial discrimination by the State’s Attorney under Batson v. Kentucky, supra. It did not result in the total or even the disproportionate exclusion of black venire on account of their race, nor is this single strike such an overwhelming application of peremptory challenges as to authorize the inference of intentional racial discrimination. Since “defendant has presented no ‘other relevant circumstances,’ [cit.], in support of his claim, and we find none[, the] trial court correctly held the defendant failed to make a prima facie case of discrimination under Batson v. Kentucky, supra. [Cits.]” Brown v. State, 261 Ga. 184, 185 (3) (402 SE2d 725).

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0810.
    ROOKS v. THE STATE.
    (458 SE2d 667)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with making harassing telephone calls, impersonating a public officer or employee, and criminal attempt to commit aggravated stalking. The evidence at his jury trial showed the following: The victim in each case is defendant’s former wife. They have been divorced for ten years. Their daughter is now 20 years old. On September 17, 1993, the victim received a telephone call at work. When she answered, a voice asked her by name: “[I]s [her daughter] pregnant?” The victim said “What?” and the caller repeated the question. The victim then hung up the telephone. She recognized the caller’s voice as that of defendant, her former husband. On October 27, 1993, defendant again called his former spouse at work and asked her: “ ‘Are you the one with the double chin and the pointed nose?’ And then he slammed the phone down.” That day, defendant “repeated that three times, maybe, and then [he would call but] wouldn’t say anything, so [the victim] decided [to] get a warrant.” When she returned to her office, defendant was still “calling within every few minutes.” Ann Fulcher also recognized defendant’s voice when one of these calls was “placed on a speaker phone[.]”

Defendant was acquitted of impersonating a public officer but found guilty of making harassing telephone calls and of criminal attempt to commit aggravated stalking. This appeal followed the denial of his motion for new trial. Held:

1. Defendant enumerates the denial of his motions to quash the indictment and to disqualify the entire district attorney’s office because the Barrow County District Attorney, Tim Madison, personally “had an interest in the prosecution,” in that he is the public officer defendant was accused of impersonating. To the extent they had any merit, these two enumerations are rendered moot by defendant’s acquittal of that charge as alleged in Count 2 of the indictment. Accordingly, they will not be considered on appeal. OCGA § 5-6-48 (b) (3). But see Timberlake v. State, 246 Ga. 488, 500 (7) (271 SE2d 792).

2. In his third enumeration, defendant contends the evidence is insufficient to support his “conviction of Criminal Attempt to Commit Aggravated Stalking.” We agree.

“A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. Pretermitting whether the evidence supporting defendant’s conviction for harassing telephone calls completely “used up” (within the meaning of OCGA § 16-1-7 (a) (1)) all the evidence relied on to show defendant completed any “substantial step” toward the alleged attempt to commit aggravated stalking, we conclude that the crime of attempted stalking as alleged in Count 3 of the indictment is a legal impossibility.

A person commits the offense of “stalking” as proscribed by OCGA § 16-5-90 when he “places under surveillance, or contacts another person ... for the purpose of harassing and intimidating the other person. . . . [T]he term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself. . . or to a member of his . . . immediate family, and which serves no legitimate purpose.” This is in essence a common law assault, which by definition “is nothing more than an attempted battery. See Code [Ann.] § 26-1301 [now OCGA § 16-5-20 (a) (2)].” Scott v. State, 141 Ga. App. 848 (1), 849 (234 SE2d 685). “We know of no law authorizing the conviction for an attempt to commit a crime which itself is a particular type of attempt to commit a crime.” Porter v. State, 124 Ga. App. 285, 286 (183 SE2d 631). “As an assault is itself an attempt to commit a crime, an attempt to make an assault can only be an attempt to attempt to do it, or to state the matter still more definitely, it is to do any act towards doing an act towards the commission of the offense. This is simply absurd. . . . The refinement and metaphysical accumen [sic] that can see a tangible idea in the words an attempt to attempt to act is too great for practical use. It is like conceiving of the beginning of eternity or the starting place of infinity.” Wilson v. State, 53 Ga. 205, 206. See also Patterson v. State, 192 Ga. App. 449, 452 (4), 453 (385 SE2d 311) (physical precedent as to Division 4). Defendant’s conviction for making harassing telephone calls as alleged in Count 1 is supported by ample competent evidence and is affirmed. OCGA § 16-11-39 (4). Defendant’s conviction for criminal attempt to commit aggravated stalking as alleged in Count 3 is reversed.

Decided June 5, 1995

Reconsideration denied June 21, 1995

Scott, Quarterman & Wells, Donald T. Wells, Jr., for appellant.

Timothy G. Madison, District Attorney, Deborah S. Wilbanks, Robin Riggs, Assistant District Attorneys, for appellee.

Judgment affirmed as to Count 1; judgment reversed as to Count 3.

Andrews and Blackburn, JJ., concur.


text:
    A95A0862.
    ONWUZURUOHA v. THE STATE.
    (458 SE2d 675)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (a). This appeal followed the denial of defendant’s motion for new trial. Held:

In four enumerations of error, defendant asserts that evidence of his threatening, abusive and profane language in the presence of law enforcement officers is insufficient to support his conviction for obstruction of a law enforcement officer. This argument is without merit.

Decided June 7, 1995

Reconsideration denied June 21, 1995.

Joan P. Davis, for appellant.

Kinsley C. Onwuzuruoha, pro se.

Benjamin F. Smith, Jr., Solicitor, Barry E. Morgan, Andrea L. Snell, Assistant Solicitors, for appellee.

The obstruction of a law enforcement officer charge was not leveled against defendant because of his threatening, abusive and profane language in the presence of law enforcement officers. Defendant was charged with obstruction of a law enforcement officer because he resisted arrest for violating a city ordinance. To this extent, law enforcement officers testified that defendant violently resisted arrest for violating a city ordinance against disorderly conduct. This testimony is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of obstruction of a law enforcement officer in violation of OCGA § 16-10-24 (a). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Whaley v. State, 175 Ga. App. 493, 494-495 (333 SE2d 691). Accordingly, the trial court did not err in denying defendant’s motion for directed verdict of acquittal.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Blackburn, Judge.

text:
    A94A1088.
    EVANS et al. v. STATE OF GEORGIA.
    (458 SE2d 859)
   Blackburn, Judge.

Appellants, Sara Augusta Evans and James Danny Gaddis, appeal the forfeiture judgment rendered against them and in favor of the State. After a bench trial, the trial court determined that appellants’ property was used to facilitate a violation of the Georgia Controlled Substances Act in the manufacture and growing of marijuana, and condemned approximately 5.1 acres of land owned by appellants which included their house. Appellants appealed the trial court’s ruling and asserted, among other things, that the forfeiture of the entire property on the basis of the discovery of 8.8 ounces of marijuana was cruel and unusual punishment and an excessive fine outlawed by the Eighth Amendment to the United States Constitution and Art. I, Sec. I, Par. XVII of the Georgia Constitution. In Evans v. State of Ga., 214 Ga. App. 844 (449 SE2d 302) (1994), this court affirmed the forfeiture judgment rendered against appellants. Thereafter, by order dated February 9,1995, the Supreme Court of Georgia granted appellants’ petition for certiorari and remanded the case to this court for consideration in light of the Supreme Court’s decision in Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994), decided after our original opinion in this matter.

In Thorp, the Supreme Court adopted the three-factor analysis found in United States v. Real Property &c. 6625 Zumirez Drive, 845 FSupp. 725 (C.D. Cal. 1994), for evaluating whether a civil in rem forfeiture is constitutionally excessive. Thorp, 264 Ga. at 717. This test first requires “consideration of the inherent gravity of the offense compared with the harshness of the penalty.” Id. “Under this factor, in evaluating the harshness of the penalty imposed, the court must not only consider the monetary value of the property forfeited, but also the intangible value of the particular type of property involved. For example, society and the courts place a higher value on real property, in particular the home, than on personal property. In a recent forfeiture decision, the Supreme Court [of the United States] affirmed the essential principle that individual freedom finds tangible expression in property rights. At stake in this and many other forfeiture cases are the security and privacy of the home and those who take shelter within it.” (Citations and punctuation omitted.) Id. The second factor of the Thorp test requires an evaluation as to “whether the property was close enough to the offense to render it ‘guilty.’ ” Id. “The third part of the analysis is ‘whether the criminal activity involving the defendant property was extensive in terms of time and/or spatial use.’ [Cit.]” Id.

“Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous. Cf. Santone v. State, 187 Ga. App. 789, 790 (371 SE2d 428).” Thorp v. State of Ga., 217 Ga. App. 275, 276 (457 SE2d 234) (1995). In the present case, the trial court must be afforded the opportunity to make its factual determinations and apply the analysis of the Supreme Court in Thorp, 264 Ga. 712.

Therefore, as in Thorp, 217 Ga. App. 275, we must remand this case for further proceedings in the trial court. The trial court is directed to hold a post-trial hearing for the determination of the Eighth Amendment issue herein presented. Either party shall be entitled to appeal the trial court’s new order within 30 days of its entry. See Art. VI, Sec. I, Par. IV, Ga. Const, of 1983.

Decided June 21, 1995.

Garland, Samuel & Loeb, Donald F. Samuel, for appellants.

Garry T. Moss, District Attorney, Margaret E. Daly, Assistant District Attorney, Gary D. Bergman, Thomas W. Hayes, for appellee.

Judgment vacated and case remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.

       This factor is the same as Justice Scalia’s instrumentality test contained in his special concurrence in Austin v. United States, 509 U. S._(113 SC 2801, 125 LE2d 488, 506) (1993), and discussed in our original opinion. See Evans, supra at 847.


author: Beasley, Chief Judge.

text:
    A95A0628.
    TRAYLOR v. THE STATE.
    (458 SE2d 682)
   Beasley, Chief Judge.

Aaron Traylor was convicted by a jury of armed robbery and sentenced to life imprisonment. His appeal follows denial of a motion for new trial.

Viewed in a light supporting the jury verdict, the evidence was that the victim’s car was parked at the West End Mall near Eckerd’s while the victim, a college student, waited in the passenger seat for a friend to complete an errand. Traylor entered the car on the driver’s side and demanded the victim’s money at knifepoint. She gave him $6, and he allowed her to exit the car before driving it away. Nine days later, Traylor was apprehended at a roadblock while driving the car. The victim identified Traylor as the perpetrator both at a photographic lineup and at trial.

1. Traylor enumerates as error the court’s denial of his motion to suppress evidence of the victim’s photo and anticipated in-court identifications. Traylor argues that the lineup was impermissibly suggestive because Traylor’s photo was the only one of thirty in which the subject was smiling.

“Admission of testimony regarding a pre-trial identification is error only if the identification procedure was impermissibly suggestive and it appears that, under the totality of the circumstances, the suggestiveness of the procedure gave rise to a substantial likelihood of misidentification. [Cits.]” (Emphasis in original.) Reid v. State, 210 Ga. App. 783, 786 (2) (437 SE2d 646) (1993). “The considerations in evaluating the likelihood of misidentification include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. [Cits.]” McGee v. State, 209 Ga. App. 261, 262 (433 SE2d 374) (1993).

Based on the arresting officer’s physical description of Traylor, Detective Keith Meadows compiled photographs of men of similar age and physical characteristics. The victim’s identification of Traylor from this array was signaled by her statement that his photograph “looked more like [the perpetrator] than any of the rest of them.” She was able to tell [the investigator] that “it was definitely [Traylor]. . . . [She] was quite sure” of the identification.

Even if the smile differentiated Traylor’s photograph and therefore rendered the array unduly suggestive, any taint was removed by the victim’s “absolutely sure” in-court identification of Traylor. The factors at the scene were strongly supportive of accurate identification. Traylor approached the victim and her friend in the parking lot on a sunny afternoon and warned them about a nearby puddle; shortly thereafter he returned, asked the victim for a quarter, then jumped into the car demanding money at knifepoint before he let her out and drove her car away. The witness had ample opportunity to view the criminal during commission of the crime, and she based her in-court identification on her recall of the crime seven and one-half months earlier and not on her identification of the photograph. Jacobs v. State, 207 Ga. App. 714, 715 (429 SE2d 256) (1993). The court’s denial of the motion to suppress was not error.

2. Traylor next contends that the trial court erred by failing to require the prosecutor to produce evidence at the Rule 31.3 hearing, and by admitting evidence of a prior incident because it was not offered for a proper purpose and was dissimilar to the charged offense. He argues that since he was convicted of the lesser offense of robbery by intimidation in 1987, for which he was sentenced to serve eight years in prison, that conduct is not admissible as a similar transaction.

First, the court did not err by allowing the prosecutor to state in his place what he expected the similar transaction evidence to show without producing such evidence at the Rule 31.3 hearing. The rule grants the court discretion as to the reception of evidence. USCR 31.3; Bryson v. State, 210 Ga. App. 642, 644 (2) (437 SE2d 352) (1993). If the evidence actually produced at trial differs, it should be rejected even if it would otherwise qualify, because the defendant was not put on notice in advance as required by Rule 31.3.

We turn next to the admissibility of the evidence at trial. “[B]efore any evidence of independent offenses or acts may be admitted into evidence, . . . the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.

“The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.] . . . [B]efore any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.” Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991).

At trial, the State produced evidence that on April 17, 1987, Traylor approached a young woman who was using a public telephone near her parked car, a 1982 white Ford Escort. Threatening to shoot if she said anything, he stole her car at gunpoint. When the car was recovered ten days later, it contained Traylor’s fingerprints and, on the front seat, Traylor’s blood from a gunshot wound. Traylor was charged with armed robbery and convicted of the lesser offense of robbery by intimidation.

There was evidence Traylor committed the April 17 offense and it was similar to the charged offense in that Traylor used a deadly weapon to steal a parked automobile from its female owner, then continued to drive the automobile until his arrest. Traylor’s conviction of robbery by intimidation rather than armed robbery did not bar use of the prior offense as evidence in this case. The relevance of the April 17 offense does not depend on whether Traylor committed all of the elements of armed robbery in that incident, but on whether his prior conduct was sufficiently similar to that charged so that proof of the former tends to prove the latter. It is the similarity between the underlying conduct in each instance which controls admissibility of a prior transaction, not the charge or conviction. Felker v. State, 252 Ga. 351 (314 SE2d 621) (1984). The indicia of similarity are such that they mark the two incidents as likely to have been committed by the same person.

The court did not err in admitting the similar transaction evidence for the limited purpose described to the jury. Evidence of the earlier incident tended to show that it was Traylor, whose past course of conduct was so strikingly similar, who committed the armed robbery in this case.

3. Traylor contends, thirdly, that prosecutorial misconduct requires a new trial. He maintains the prosecutor improperly argued to the jury that Traylor’s post-arrest silence was reason to discredit his testimony at trial.

Traylor testified that the person driving the victim’s car was an acquaintance who allowed Traylor to drive it. On the way to get something to eat, they came upon a police roadblock. As they approached, the acquaintance instructed Traylor to stop and fled on foot. Traylor admitted that as he proceeded to the roadblock, he knew the car was stolen. He further claimed on direct examination that when the police officer arrested him, “[the officer] knew that somebody else got out of that car. He knew it, but he didn’t ask me.” Traylor also testified that he told the officer at the time of his arrest, “Michael Johnson did just flee on foot.”

Decided June 21, 1995.

Mark R. Pollard, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

Traylor’s testimony on direct examination that he told the police someone else was responsible for stealing the car permitted the prosecutor to explore the subject on cross-examination and to argue its credibility to the jury. Johnson v. State, 235 Ga. 355 (219 SE2d 430) (1975); see Wilson v. State, 145 Ga. App. 315 (244 SE2d 355) (1978).

A new trial is not required.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A94A0061.
    ARBY’S, INC. v. COOPER.
    (458 SE2d 691)
    Decided June 22, 1995.

      Gorby & Reeves, Michael E. Fisher, Martha D. Turner, for appellant.

      Rubin & Wildau, Martin H. Rubin, for appellee.
   Ruffin, Judge.

In accordance with the judgment of the Supreme Court in Arby’s, Inc. v. Cooper, 265 Ga. 240 (454 SE2d 488) (1995), the decision of this court in Arby’s, Inc. v. Cooper, 213 Ga. App. 312 (444 SE2d 374) (1994), is vacated, and the judgment of the trial court is hereby reversed and the case remanded so that judgment may be entered consistent with the decision of the Supreme Court.

Judgment reversed and remanded.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A95A0028.
    BITTERMAN v. ATKINS et al.
    (458 SE2d 688)
   Blackburn, Judge.

J. F. Bitterman, Jr., appeals the trial court’s denial of his motion for summary judgment. Plaintiffs, John J. Atkins, Jr., and Katherine Atkins, individually and as parents and natural guardians of Kyle Atkins, and Kyle Atkins, personally, filed the underlying action seeking damages for injuries Kyle Atkins sustained when lockers in the physical education dressing room fell on him. Plaintiffs alleged that Bitter-man, the Chestnut Log Middle School Principal, was negligent in that he failed to adequately supervise the work being performed by defendants John Does.

On appeal, Bitterman contends that he is entitled to the protection of sovereign immunity. He asserts the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution (1991 amendment), reaffirmed the doctrine of sovereign immunity and eliminated the insurance coverage waiver, except to the extent provided for by the Georgia legislature. Under the Georgia Tort Claims Act (GTCA), although the “state” waives its sovereign immunity to the extent of insurance, the statute specifically excludes “counties, municipalities, school districts, other units of local government, [and] hospital authorities” from the definition of “state.” OCGA § 50-21-22 (5). Therefore, Bitterman contends that as no act applicable to school districts exists, sovereign immunity protection afforded by the 1991 amendment continues to apply to him.

The 1991 amendment provides that “[e]xcept as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” (Emphasis supplied.) Ga. Const. 1983, Art. I, Sec. II, Par. IX (e) (amended 1991). In Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992), the Georgia Supreme Court determined that the phrase “ ‘the state and all of its departments and agencies,’ ” as contained in former Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution, included municipalities. However, in City of Thomaston v. Bridges, 264 Ga. 4, 7 (439 SE2d 906) (1994), the Georgia Supreme Court interpreted the phrase “ ‘the state and all of its departments and agencies’ ” contained in the 1991 amendment so as not to include municipalities. The Court reasoned, “although in Hiers we construed the language in former Art. I, Sec. II, Par. IX to include municipalities, we cannot allow that construction, which effectuated the intent behind the 1983 provision, to bind this Court to a construction which directly conflicts with the obvious intent of the drafters of the 1991 amendment and contravenes the cardinal rule of construction.” City of Thomaston, supra at 6.

The Court inferred that the intent of the 1991 amendment was “manifest from the vote of the electorate and the express language of the General Assembly that the 1991 amendment was intended to address ‘the inherent unfair and inequitable results which occur in the strict application of the traditional doctrine of sovereign immunity,’ OCGA § 50-21-21 (a), while limiting the exposure of the state treasury to tort liability by means of the [GTCA], OCGA § 50-21-20 et seq. Viewed in light of the conditions and circumstances under which it was framed, see generally Birdsey v. Wesleyan College, 211 Ga. 583, 586 (87 SE2d 378) (1955), nothing in the history of the 1991 amendment intimates any intention by the voters or the legislature to reinstate sovereign immunity in an absolute form so as to terminate completely the public’s ability to bring an action for damages against a Georgia governmental entity.” City of Thomaston, supra at 5.

Recently in Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), the Supreme Court again addressed a similar issue. Therein, the plaintiffs brought suit against the Walker County sheriff and deputy sheriff seeking damages for injuries sustained in a collision with the deputy sheriff while she was responding to an emergency call. The Court in Gilbert noted that it had previously determined that the phrase “state or any of its departments or agencies” contained in former Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution included counties of the State of Georgia. The Court reasoned that “[t]he language used in the 1991 amendment is virtually identical to that used in the 1983 amendment to describe the entities to which sovereign immunity applies. . . . [Therefore,] [a]bsent any evidence that the legislature intended a different interpretation or to indicate that the electorate did not intend to extend sovereign immunity to counties, we hold the 1991 amendment’s extension of sovereign immunity to ‘the state and its departments and agencies’ must also apply to counties. See Bibb County v. Hancock, 211 Ga. 429, 432 (86 SE2d 511) (1955); Thompson v. Talmadge, 201 Ga. 867, 885 (41 SE2d 883) (1947) (courts should accord virtually identical language in successor provisions the same construction given the original language); see also Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994) (identifying counties as departments or agencies of the state).” Gilbert, supra at 747.

The Court in Gilbert failed to acknowledge that in City of Thomaston they had previously determined that evidence existed of the “obvious intent of the drafters of the 1991 amendment” (emphasis supplied) for a different interpretation of the phrase “state and its departments and agencies” from that same phrase contained in former Art. I, Sec. II, Par. IX. However, the latest Supreme Court decision is our lodestar. See Hall v. Hopper, 234 Ga. 625, 631 (216 SE2d 839) (1975). “Let’s all realize that henceforth ‘stare decisis’ is like a train ticket — good for this date and this train only; tomorrow will be a new day and we will need a new ticket and we will not be bound by what a full bench decided yesterday or one hundred years ago.” Thomas v. State, 136 Ga. App. 165, 168 (220 SE2d 736) (1975) (Judge Evans concurring specially).

Pursuant to Gilbert, the Supreme Court’s decision including school districts within the phrase “state and its departments and agencies” as contained in former Art. I, Sec. II, Par. IX, see Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59 (335 SE2d 112) (1985), controls our decision in the present case. Therefore, sovereign immunity extends to school districts under the 1991 amendment, and the legislature has not provided for a waiver of such immunity. See OCGA §§ 50-21-22 (5) and 20-2-992 (no waiver of principal’s immunity by purchase of insurance).

“It is a well-established principle that a public official who fails to perform purely ministerial duties required by law is subject to an action for damages by one who is injured by his omission. However, it is equally well established that where an officer is invested with discretion and is empowered to exercise his judgment in matters brought before him, he is sometimes called a quasi-judicial officer, and when so acting he is usually given immunity from liability to persons who may be injured as the result of an erroneous decision; provided the acts complained of are done within the scope of the officer’s authority, and without willfulness, malice, or corruption. Where public officials are acting within the scope of their duties and exercising a discretionary power, the courts are not warranted in interfering, unless fraud or corruption is shown, or the power or discretion is being manifestly abused to the oppression of the citizen. Such discretionary acts lie midway between judicial and ministerial ones and the question depends on the character of the act. If the act done for which recovery is sought is judicial or quasi-judicial in its nature, the officer acting is exempt from liability.” (Citations and punctuation omitted.) Sisson v. Douglas County School Dist., 181 Ga. App. 77, 79 (351 SE2d 272) (1986).

In the present case, the plaintiffs alleged that the principal failed to adequately supervise work performed by other county employees in installing the free-standing lockers which fell on Kyle Atkins. Plaintiffs alleged that the principal’s failure was compounded by the fact that he was aware the lockers had previously been pushed over by students injuring another student. Although the principal was primarily responsible for ordering the new lockers, once they were delivered, he was not responsible for their installation. The maintenance supervisor was responsible for the installation of equipment. The principal’s responsibility was within his discretionary duties, and as such, the doctrine of sovereign immunity acts to shield them in the absence of evidence that they were wilful, malicious, or corrupt. See id. and Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980).

Decided June 22, 1995.

D. Jeffrey Grate, Mary P. Vilmos, Marshall L. Helms, Jr., for appellant.

Ervin H. Gerson, for appellees.

Harben & Hartley, Phillip L. Hartley, Martha M. Pearson, amici curiae.

Therefore, the trial court erred in denying Bitterman’s motion for summary judgment.

Judgment reversed.

McMurray, P. J., concurs. Andrews, J., concurs in judgment only.


text:
    A95A0064.
    JENKINS v. THE STATE.
    (458 SE2d 497)
   McMurray, Presiding Judge.

Defendant was indicted for burglary and forgery in the first degree. The evidence adduced at a jury trial reveals that defendant went to her daughter’s elementary school on October 8, 1992, and without authority took a teacher’s (the victim’s) purse from an unoccupied classroom. The purse contained a check made payable to the victim and the victim’s driver’s license. Later that afternoon, defendant presented the stolen check for payment at the drive-through window of a local bank and used the victim’s driver’s license as proof of identification. The attending bank tellers, however, were not fooled. They noticed that neither defendant nor the passenger in defendant’s car matched the identification on the victim’s driver’s license, and one of the tellers asked defendant to come inside the bank to resolve the apparent discrepancy. Although defendant agreed to come inside the bank, she drove off without retrieving the stolen check or the victim’s driver’s license.

The jury found defendant guilty of burglary and forgery in the first degree. This appeal followed. Held:

1. Defendant first contends the trial court erred in denying her motion for directed verdict of acquittal on the burglary charge, arguing that the State failed to prove she entered the victim’s classroom without authority. This contention is without merit.

“A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, [she] enters or remains within . . . any building ... or any room or any part thereof.” OCGA § 16-7-1 (a). In the case sub judice, the school secretary testified that defendant had no authority to enter the victim’s classroom. This evidence, evidence that defendant was in recent possession of stolen property and proof that defendant fled after she was questioned about the stolen check, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of entering the victim’s classroom without authority and with intent to commit theft therein. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gearin v. State, 208 Ga. App. 878 (1), 879 (432 SE2d 818).

Decided June 22, 1995.

Ellison & Moore, Coatsey Ellison, for appellant.

Robert E. Keller, District Attorney, Nancy Trehub, Assistant District Attorney, for appellee.

2. Defendant next contends the trial court erred in denying her motion for directed verdict of acquittal on the forgery in the first degree charge, arguing that the State failed to prove that she “uttered” the stolen check in violation of OCGA § 16-9-1 (a). Specifically, defendant points out that there is undisputed testimony that she presented the check on behalf of the passenger in her car.

“Uttering” or “delivering” a forged instrument is the distinguishing factor between forgery in the first degree and forgery in the second degree. Compare OCGA § 16-9-1 (a) with OCGA § 16-9-2 (a). And one may be guilty of forgery in the first degree as a party to the crime if there is some connection between the accused and the uttering. Howard v. State, 215 Ga. App. 342, 343 (1), 344 (450 SE2d 824). “ ‘(P)resence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. (Cit.)’ Lunz v. State, 174 Ga. App. 893, 895 (332 SE2d 37) (1985).” Howard v. State, 181 Ga. App. 187 (351 SE2d 550). In the case sub judice, defendant was not only connected to the “uttering” by actually presenting the stolen check for payment, she was at her daughter’s school when the check was stolen and defendant fled after the bank tellers questioned her about the validity of the transaction. This evidence is, at the very least, sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of being a party to the crime of forgery in the first degree. Jackson v. Virginia, supra; Howard v. State, supra.

The trial court did not err in denying defendant’s motion for directed verdict of acquittal.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0244.
    McKENNA v. GRAY.
    (458 SE2d 692)
    Decided June 22, 1995

      Heyman & Sizemore, William H. Major, for appellant.

      Loewenthal, Jackson & Brown, Gary E. Jackson, Thomas W. Malone, Michael E. Kaukins, Lawrence J. Pond, for appellee.
   McMurray, Presiding Judge.

This is the third appellate decision arising out of an ongoing dispute over the terms of a settlement of claims between plaintiff Cleair Gray and defendant Terry P. McKenna, in his capacity as executor of the estate of plaintiff’s late husband, James H. Gray, Sr. In McKenna v. Gray, 207 Ga. App. 444 (428 SE2d 370), this court affirmed an order of the Dougherty Superior Court holding McKenna, as executor, in contempt. This prior decision was reversed by the Georgia Supreme Court in McKenna v. Gray, 263 Ga. 753 (438 SE2d 901). The Supreme Court decision was directed primarily to issues concerning the use of contempt as a remedy to enforce a money judgment and did not comment upon the analysis contained in this court’s earlier decision, authored by now Chief Judge Beasley, which addressed the construction of the agreement between the parties and whether the annuity purchased by the estate was adequate to meet the estate’s obligation to Ms. Gray. While the reversal of our earlier decision may prevent the analysis contained therein being viewed as the law of the case, we continue to embrace the compelling logic set forth by Chief Judge Beasley and once again adopt it. The construction by the trial court of the agreement between the parties being consistent with that stated in this court’s earlier decision in McKenna v. Gray, 207 Ga. App. 444, supra, we find defendant’s enumerations of error to lack merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0349.
    SWINNEY v. THE STATE.
    (458 SE2d 686)
   McMurray, Presiding Judge.

Defendant was charged in two indictments for crimes stemming from separate attacks upon the same victim, a 72-year-old man. The first attack occurred during the late evening of November 1,1989, and forms the basis of a single-count indictment charging defendant with armed robbery. The second attack occurred late in the evening on November 14, 1989, and forms the basis of a three-count indictment charging defendant with burglary, armed robbery and theft by taking a motor vehicle. Defendant moved to sever the indictments when the cases were called for trial, but the trial court denied this motion and the cases were jointly tried before a jury.

At trial, the elderly victim could not recall who attacked him on November 1, 1989, but he identified defendant as the perpetrator of the November 14, 1989, attack. Defendant did not dispute the victim’s testimony. In fact, he admitted going to the victim’s home on both occasions with accomplices, but explained that he was too drunk to remember either incident. The accomplices, however, testified that defendant was a party to acts which constitute the crimes charged in the indictments. Specifically, the first accomplice testified that he went with defendant to the victim’s home on November 1, 1989, and that defendant attacked the victim, beat him with a tire iron and took the victim’s wallet. The other accomplice testified that he and defendant went to the victim’s home on November 14, 1989, after musing about defendant’s success in robbing the victim on November 1, 1989, forced their way into the victim’s trailer and fled after beating the victim and taking various items of personal property. This accomplice explained that he escaped in defendant’s car while defendant fled in the victim’s pickup truck.

The jury found defendant guilty on all counts of the indictments, and the trial court entered a judgment of conviction and sentence for each offense. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in failing to direct verdicts of acquittal as to all counts of the indictments, arguing that the victim’s testimony is incomplete, inconsistent and unreliable. We decline to address this argument as it is not the function of this court to judge witness credibility or weigh the evidence. The credit to be given the testimony of any witness is for the jury to determine under proper instructions from the court. Welch v. State, 207 Ga. App. 27 (2) (427 SE2d 22). Defendant, however, also argues that the evidence is insufficient to corroborate the accomplices’ testimony that he committed acts which constitute the crimes charged.

Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is all that is necessary to corroborate the testimony of an accomplice. Earl v. State, 214 Ga. App. 891 (1) (449 SE2d 361). In the case sub judice, the victim identified defendant as the perpetrator of the assault on November 14, 1989, and defendant admitted that he went to the victim’s home with an accomplice on November 1, 1989. This evidence is sufficient to corroborate the accomplices’ testimony that defendant committed the specific acts which constitute the crimes charged. The evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing or being a party to each and every offense charged in the indictments. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443). The trial court did not err in failing to direct verdicts of acquittal as to any count of the indictments.

2. In his second enumeration, defendant contends the charges relating to the two separate assaults were improperly joined and that the trial court erred in denying his motion for severance.

Offenses stemming from separate criminal incidents may be joined for trial if they are based on a series of acts that are connected or part of a single scheme or plan. Dingler v. State, 233 Ga. 462, 463 (211 SE2d 752). “Only when the offenses have been joined solely because they are of the same or similar character shall the accused have a right to severance of the offenses. Dingler, supra; Davis v. State, 159 Ga. App. 356 (1) (283 SE2d 286) (1981).” (Emphasis omitted.) Jordan v. State, 172 Ga. App. 496 (1) (323 SE2d 657).

In the case sub judice, the separate assaults at the victim’s home were not just similar in character. There is evidence that defendant went to the victim’s home on November 14, 1989, because of the success of his attack upon the victim on November 1, 1989. Under these circumstances, we find no abuse of discretion in the denial of defendant’s motion to sever. “ Tt is not an abuse of that discretion in the interest of justice and economy for the judge to refuse a motion for severance of the trial of multiple charges where the crimes alleged were part of a continuous transaction or series of similar transactions conducted over a relatively short time, and from the nature of the entire transaction, it would be difficult to present to a jury evidence of one of the crimes without also referring or permitting evidence of the others. (Cit.) . . .’ Gilbert v. State, 163 Ga. App. 688, 690 (295 SE2d 173) (1982). Accord Jones v. State, 168 Ga. App. 652 (1) (310 SE2d 17) (1983).” Jordan v. State, 172 Ga. App. 496 (1), 497, supra.

3. Defendant contends the trial court erred in allowing evidence of incriminating admissions he made while in police custody, arguing that he did not voluntarily submit to police questioning because the interrogating law enforcement officer informed him that “his girlfriend . . . would be arrested if he did not tell what happened.”

“ ‘The trial court’s findings as to factual determinations and credibility relating to the admissibility of statements will be upheld on appeal unless they are clearly erroneous.’ (Citations and punctuation omitted.) Higginbotham v. State, 207 Ga. App. 424 (1) (428 SE2d 592) (1993).” Satterwhite v. State, 212 Ga. App. 543 (1) (442 SE2d 5). Contrary to defendant’s contention in the case sub judice, the interrogating officer testified at the hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908), that he did not threaten to arrest defendant’s girl friend if defendant did not make a statement. In fact, this officer gave a detailed account of the circumstances leading to defendant’s custodial admissions, testifying that defendant was never threatened or coerced in any way; that defendant was advised of his rights pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694); that defendant stated that he was not under the influence of drugs or alcohol; that defendant did not appear to be under the influence of drugs or alcohol; that defendant indicated he could read and write; that defendant carefully examined a form listing his Miranda rights; that defendant indicated that he understood those rights and that defendant signed a form waiving his rights before submitting to custodial interrogation. Under these circumstances, we find no basis for defendant’s assertion that the trial court erred in admitting evidence of incriminating admissions he made while in police custody. See Gatson v. State, 198 Ga. App. 279, 280 (2) (401 SE2d 71).

Decided June 22, 1995.

Bruce & Hentz, W. Davis Hentz, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0237.
    In the Interest of M. B., a child.
    (458 SE2d 864)
   Beasley, Chief Judge.

A petition was filed alleging that M. B. was delinquent, predicated upon theft of an automobile, OCGA § 16-8-2, driving without a license, OCGA § 40-5-20, and violating the conditions of his probation, OCGA § 15-11-42 (b). He was released on his own recognizance. A hearing was set at which he did not appear and a second delinquency petition was filed, for felony bail jumping. OCGA § 16-10-51 (a). The first petition was dismissed on M. B.’s motion. M. B. also sought dismissal of the bail jumping petition on the ground he could not legally be charged with committing such act. The motion was denied and M. B. was declared delinquent. He pursues on appeal the ground urged below.

OCGA § 16-10-51 (a) provides in part that “[a]ny person who has been charged with or convicted of the commission of a felony under the laws of this state and has been set at liberty on bail or on his own recognizance upon the condition that he will subsequently appear at a specified time and place commits the offense of felony-bail jumping [sic] if, after actual notice to the defendant in open court or notice to the person by mailing to his last known address or otherwise being notified personally in writing by a court official or officer of the court, he fails without sufficient excuse to appear at that time and place.” M. B.’s argument is that an essential element of OCGA § 16-10-51 (a) is that the accused be a person “charged with or convicted of the commission of a felony” and that he was charged with being delinquent, not with having committed a felony.

The legislative scheme for the treatment of juveniles alleged delinquent is replete with distinctions between criminal matters and matters concerning juveniles alleged delinquent. “An order of disposition or other adjudication in a proceeding under [the juvenile code] is not a conviction of a crime.” OCGA § 15-11-38 (a). The juvenile code is concerned with the care, guidance, and well-being of children. OCGA § 15-11-1. Juveniles are declared delinquent because they need treatment and rehabilitation. OCGA § 15-11-2 (7).

Other relevant legislative indications are that the juvenile court “shall have concurrent jurisdiction with the superior court over a child who is alleged to have committed a delinquent act which would be considered a crime if tried in superior court.” OCGA § 15-11-5 (b) (1). A juvenile under the jurisdiction of the juvenile court is not charged with the commission of a crime, but rather with the commission of a delinquent act, which is not a crime but instead “[a]n act designated a crime by the laws of this state.” OCGA § 15-11-2 (6) (A). Despite such designation, the act is only considered a crime if tried in superior court. OCGA § 15-11-5 (b) (1). Even when the delinquent act would be a felony if committed by an adult, a juvenile is not charged with committing a felony but with committing a “designated felony act.” OCGA § 15-11-37 (a) (2). “ ‘Designated felony act’ means an act which: . . . [i]f done by an adult, would be one or more of [a specific list of felonies].” OCGA § 15-11-37 (a) (2) (B).

There are several references in the juvenile code to acts that would be crimes if committed by an adult. See OCGA §§ 15-11-17 (c); 15-11-37 (a) (2) (B) (vi); 15-11-39.1 (a). The stated purpose of the legislature in creating what is now OCGA § 15-11-37 was to “provide that certain acts which, if done by an adult, would constitute certain crimes shall be known as ‘designated felony acts’ if committed by a juvenile.” Ga. L. 1980, p. 1013. “If’ is a word which looms large both here and in OCGA § 15-11-5 (b) (1), as noted above. The qualifier expressly distances the juvenile from the treatment visited upon adults for the same act. It excludes juveniles from the category of persons whose specified behavior leads to punitive consequences.

In addition to these indications of a legislative intent that juvenile delinquency matters not be considered criminal matters, the distinction between juvenile and criminal cases has often been recognized and observed by this court. See In the Interest of D. Q. H., 212 Ga. App. 271, 272 (441 SE2d 411) (1994) (“this case is a delinquency case, i.e. a civil case”; the State therefore could not directly appeal the grant of a motion to suppress in a juvenile proceeding. See OCGA § 5-7-1); In the Interest of S. L. H., 205 Ga. App. 278, 279 (422 SE2d 43) (1992) (juvenile delinquency being separated from criminal conduct in various manners, OCGA § 16-1-8 (a) (2), does not apply to juvenile proceedings because it does not contain a principle necessary for a fair trial); T. L. T. v. State of Ga., 133 Ga. App. 895, 897 (1) (212 SE2d 650) (1975) (“it is clear from the entire statute that the General Assembly sought to treat matters of juvenile delinquency as a class of conduct separate and distinct from conventional criminality”); K. M. S. v. State of Ga., 129 Ga. App. 683 (200 SE2d 916) (1973) (“The juvenile court is a civil court, not a criminal court. . . . [Cit.] The juvenile court cannot find anyone guilty of a crime.”).

A felony is a crime, and all crimes are either felonies or misdemeanors. OCGA § 16-1-3 (5), (9). To be charged with a felony is an essential element of the crime of felony bail jumping. OCGA § 16-10-51 (a). Criminal statutes are to be strictly construed. Palmer v. State, 260 Ga. 330, 331 (393 SE2d 251) (1990); Flanagan v. State, 212 Ga. App. 468 (1) (442 SE2d 16) (1994). Legislative intent, judicially recognized, and the vigilant construction of criminal statutes in favor of the citizen, compels the conclusion that OCGA § 16-10-51 (a) does not embrace the failure of a juvenile to appear as ordered. As M. B. was a juvenile alleged delinquent he was not charged with a crime and could not commit the crime of felony bail jumping. It was error to deny the motion to dismiss the petition.

This does not, however, leave the juvenile court without recourse to sanction disobedience of an order to appear. The court may issue an order that the child be taken into custody for the failure to appear at the designated time. See OCGA § 15-11-19 (b). Additionally, a petition alleging delinquency may be based upon the failure to appear. OCGA § 15-11-62 authorizes the court to punish a person for contempt of its orders. That section is “read together with the remainder of the juvenile code so that, when a criminal contemnor is a child, the case is recognized to be a juvenile matter. Therefore, the case . . . can only be viewed as a delinquency proceeding predicated on an allegation that [the juvenile] has committed criminal contempt of court. See OCGA § 15-11-2 (6, 7).” (Footnote omitted.) In the Interest of J. E. H., 202 Ga. App. 29, 30 (413 SE2d 227) (1991). .

Had the State pursued contempt against M. B., the result might have been the same as that sought through the improper use of OCGA § 16-10-51 (a), i.e., a declaration of delinquency based upon failure to appear at a hearing.

Decided June 23, 1995.

Steven E. Phillips, for appellant.

Lewis R. Slaton, District Attorney, Sally A. G. Butler, Leonora Grant, Assistant District Attorneys, for appellee.

Judgment reversed.

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


text:
    A95A0298.
    RICHARDSON v. AIR PRODUCTS & CHEMICALS, INC. et al.
    (458 SE2d 694)
   Beasley, Chief Judge.

We granted Larry Richardson’s application to appeal the superior court’s order. It reversed an attorney fee award made by the Appellate Division of the Board of Workers’ Compensation. At issue is whether the evidence authorized the Appellate Division to award the attorney fees under OCGA § 34-9-108 (b) (1) for a frivolous appeal.

Richardson is a truck driver last employed for 14 years by Air Products & Chemicals, Inc. to haul hazardous materials. Richardson developed prostate problems in 1983. His physician diagnosed the chronic condition of prostatitis in 1987 and advised Air Products that prolonged sitting while driving a truck aggravated Richardson’s condition. Despite modifications of Richardson’s work schedule and frequent stops during trips, Richardson continued to suffer episodes of severe discomfort until he finally ceased driving for Air Products in November 1992, when his treating urologist stated it was imperative that he stop working as a truck driver.

At the hearing on Richardson’s claim for workers’ compensation benefits, the treating urologist testified that driving a truck for long distances, even with frequent stops and exercise, aggravated Richardson’s chronic prostatitis. With this painful condition, he was unable to concentrate on the road and his driving. Ultimately, his physician restricted Richardson from driving a truck at all and advised him to find another line of work. A board-certified urologist who reviewed Richardson’s medical record testified that, although Richardson had prostatitis and that chronic prostatitis could be considered an occupational hazard for truck drivers, Richardson “should be able to continue in his work” by walking around during frequent stops to check his load as mandated by federal regulations for hauling hazardous material. He also testified that bouncing up and down while sitting may aggravate prostatitis. The employer controverted the claim on the grounds that a) the employee did not have an accident arising out of and in the scope of employment and b) chronic prostatitis is a disease that was not aggravated by the employee’s driving of a truck.

The ALJ awarded temporary total disability benefits, based on her findings that the employee established by a preponderance of the evidence that his chronic prostatitis was aggravated by his job as a truck driver to the point he became unable, medically, to perform the job. She also found that the employer knew this and also knew this was the opinion of his physicians. The ALJ concluded that the chronic prostatitis was a compensable “accident” because the employment contributed to the aggravation of a preexisting condition, citing Colonial Stores v. Hambrick, 176 Ga. App. 544 (336 SE2d 617) (1985), and SMB Stage Line v. Leach, 204 Ga. App. 229 (418 SE2d 791) (1992). She applied the principle that an employer takes an employee as he finds him and assumes the risk of a diseased condition aggravated by injury, citing Chevrolet-Pontiac-Canada Group, GMC v. Millar, 182 Ga. App. 889, 890 (2) (357 SE2d 598) (1987), which cited Colonial Stores, supra at 545-546 (3).

The Appellate Division affirmed, and in addition granted Richardson’s request for the attorney fees in accordance with OCGA § 34-9-108 (b) (1). It found that Air Products’ appeal of the award was prosecuted in part without reasonable grounds, that is, the ground that the chronic prostatitis did not meet the definition of a compensable injury. (This was one of the grounds; the other was, as before the ALJ, that it did not arise out of and in the scope of employment.) The basis for the award of attorney fees was, the board quoting from Georgia Workers’ Compensation Practice Manual § 3.11 (1992 ed.), that “ ‘[f]ew principles are better settled in the Georgia workers’ compensation law than the one which states that when the performance of the duties of employment aggravates a pre-existing condition, there is a new injury.’ ” On this issue of compensability, the board also cited Henry General Hosp. v. Stephens, 189 Ga. App. 619, 620 (376 SE2d 705) (1988).

The board relied on OCGA § 34-9-108 (b) (1) as authority to make the award, noting that it could do so under that statute just as the superior court could make an award for a frivolous appeal to it in a workers’ compensation case, based on OCGA § 9-15-14. Contract Harvesters v. Clark, 211 Ga. App. 297, 298 (2), (3) (439 SE2d 30) (1993), cited by the board, supports its view. Both that case and this one deal with statutory power to sanction frivolous appeals. In both instances, the sanction of attorney fees assessment against the offending party is discretionary, but it must be factually justified. There is a difference, of course, because the appeal to the superior court is confined to issues listed in OCGA § 34-9-105 (c) and is not de novo as to the facts. On the other hand, Air Products’ appeal to the board was de novo, since it occurred prior to the amendment to OCGA § 34-9-103 (a), which now requires the board to accept the supported findings of fact by the ALJ (Ga. L. 1994, p. 887, § 8, effective July 1, 1994).

According to the law, the ALJ or the board may assess the attorney fees against a party who brings, prosecutes, or defends proceedings “in whole or in part without reasonable grounds.” OCGA § 34-9-108 (b) (1). “This presents an issue of fact for determination by the board, [cits.] and where there is any evidence to support the Board’s award the court must affirm. . . . [Cits.]” Motor Convoy v. Maddox, 172 Ga. App. 430, 431 (323 SE2d 235) (1984). “[T]he finding that the matter was defended without reasonable grounds must be supported by the evidence, and there must be supporting evidence upon which to make the finding, just as is the case of other findings upon which the award is made.” Pacific Employers Ins. Co. v. Peck, 129 Ga. App. 439, 441 (200 SE2d 151) (1973). As the ALJ concluded, it is a settled principle that when necessary work activities aggravate a preexisting condition, the aggravation is deemed a compensable “accident” under the Workers’ Compensation Act. Henry General Hosp., supra; Colonial Stores, supra; SBM Stage Line, supra at 231 (2); Chevrolet-Pontiac-Canada Group, GMC, supra; Thornton Chevrolet v. Morgan, 148 Ga. App. 711 (252 SE2d 178) (1979).

On appeal to the board, Air Products persisted that Richardson’s prostatitis does not meet the definition of a compensable injury under the Workers’ Compensation Act despite clear authority to the contrary.

The superior court found that Air Products’ appeal to the board was not frivolous, as a matter of law, because it “presented sufficient evidence that would have authorized an award in [its] favor.” The court applied the same principle to the appeal which applies to the defense before the ALJ, that it is not unreasonable simply because it is unsuccessful, citing Goode Brothers Poultry Co. v. Kin, 201 Ga. App. 557, 559 (3) (411 SE2d 724) (1991). This court pointed out that the relevant inquiry in that case was not “the difficulty” of establishing the defense by Goode Brothers but rather “the reasonableness of the attempt to do so.” It was reasonable, the court concluded, because the employer’s evidence would have authorized a finding in its favor. This case, however, relates to the compensability of the prostatitis in the circumstances.

Since evidence supports the board’s assessment of attorney fees because Air Products appealed in part without reasonable grounds, it was error for the trial court to reverse the board as to its fee award. Maddox, supra. This is not an instance where the board found differently than the ALJ. The attorney fee is not stated as an issue in the ALJ’s award, and there was no finding either way. Even if there were a contrary finding, “[w]here . . . there is evidence in the record to support the findings of both the ALJ and the Board, the findings of the Board supersede those of the ALJ.” SBM Stage Line, supra at 231.

Decided June 23, 1995.

Robert C. Sacks, for appellant.

Whitehurst & Riexinger, Stephen P. Riexinger, for appellees.

The judgment is reversed as to attorney fees on the appeal to the Appellate Division and remanded to the trial court on the issue of attorney fees on the appeal to it, as sought by Richardson.

Judgment reversed and case remanded.

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


author: Johnson, Judge.

text:
    A95A0868.
    RICKS v. THE STATE.
    (458 SE2d 862)
   Johnson, Judge.

Deron Ricks appeals from his convictions of armed robbery and two counts of false imprisonment.

1. Ricks asserts the trial court erroneously found that his two prior robbery convictions are sufficiently similar to the current armed robbery to be admissible as similar transaction evidence. We agree. Before evidence of independent offenses may be admitted, the State must show, among other things, that there is a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Here, contrary to the finding of the trial court, the State did not make such a showing. Regarding the current crimes, the State showed that Brenda Curry was in her house with her grandson when a man, who she identified as Ricks, knocked on the door and asked to use her telephone. Curry knew Ricks as her son’s friend, so she let him into her house. After using the telephone, he threatened Curry with a knife and demanded that she give money to him. Curry opened her purse, and he took $45 and rings that Curry was wearing. He cut the telephone cords, shut Curry and her grandson in the bathroom, and fled. Curry said the entire incident lasted sometime between thirty minutes and two hours.

The State showed the two prior offenses were robberies. However, the circumstances of those prior crimes were very different from the facts of the present case. In one of the prior robberies, Ricks and another man accosted a woman and a man walking on a busy street by pushing the couple and grabbing the woman’s purse. In the other incident, the victim was getting into her car in a parking deck when Ricks snatched her necklace. Thus, unlike the current armed robbery, which took place in the home of a victim who knows Ricks and lasted at least thirty minutes, the two prior crimes were quick, unarmed robberies by snatching with victims who did not know Ricks and who were in public places. Under these circumstances, the mere fact that the prior and present crimes are of the same sort does not render evidence of the prior crimes admissible. See Wimberly v. State, 180 Ga. App. 148, 149 (1) (348 SE2d 692) (1986). Because of the lack of connection or similarity between the prior and current crimes, the prior crimes did not tend to show Ricks’ course of conduct or bent of mind, the purposes claimed by the State for introducing the prior crimes evidence. Accordingly, the trial court erred in admitting such evidence. See Banks v. State, 216 Ga. App. 326, 327-328 (2) (454 SE2d 784) (1995); Watkins v. State, 206 Ga. App. 701, 703-704 (1) (b) (426 SE2d 238) (1992).

Moreover, the evidence of Ricks’ guilt is not so overwhelming that we can hold the error was harmless. The State’s evidence identifying Ricks as the perpetrator of the crimes charged consisted of Curry’s testimony, the testimony of her son and two friends that Curry had told them Ricks was the perpetrator, and a police officer’s testimony that Curry picked Ricks out of a photographic lineup. Conversely, in support of his defenses of misidentification and alibi, Ricks testified that he was at his grandmother’s house at the time of the crimes. Ricks’ mother and grandmother supported his defense by also testifying that he was with them at the house during the time this incident occurred. Consequently, as to the ultimate issue of whether Ricks was the perpetrator, this case amounted to a credibility contest between Curry’s identification of Ricks and the sworn testimony of Ricks and his witnesses that he could not have committed the crimes charged. “It cannot be said with any degree of certainty that the erroneous admission of the ‘other crimes’ evidence did not have any prejudicial effect on the jury’s determination as to [Ricks’] credibility and, consequently, on the jury’s determination as to his guilt.” Higginbotham v. State, 207 Ga. App. 424, 427 (4) (428 SE2d 592) (1993). Accordingly, Ricks’ convictions of armed robbery and two counts of false imprisonment must be reversed, and a new trial held without admission of the prior crimes evidence.

2. Ricks objects that the court erred in allowing the State to improperly use the prior robberies to place his character in issue, in letting the jury see both sentencing information regarding the prior robberies and other charges listed on the prior indictments, in permitting a state witness to place his character in evidence, and in allowing the prosecutor to make improper closing arguments to the jury. Ricks concedes that none of these objections was raised in the trial court. Consequently, these objections were waived and cannot be raised for the first time on appeal. See Shutt v. State, 215 Ga. App. 617, 618 (3) (451 SE2d 530) (1994).

Decided June 23, 1995.

William P. Doupé, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Anita T. Wallace, Assistant District Attorneys, for appellee.

3. Ricks claims that his trial counsel was ineffective for failing to raise any of the objections listed in Division 2. Because of our holding in Division 1, we need not address this claim.

Judgment reversed.

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


author: Smith, Judge.

text:
    A95A0961.
    BOYD v. THE STATE.
    (458 SE2d 692)
   Smith, Judge.

Jerry Don Boyd was indicted with three co-defendants on five counts of theft by receiving stolen motor vehicles and parts, OCGA § 16-8-7. A Bartow County jury found him guilty on four counts and acquitted him of the fifth charge. He appeals, contending that the trial court erred in admitting evidence of a similar transaction.

In 1991, Boyd entered a guilty plea to a Bartow County indictment on three counts of theft by receiving stolen motor vehicles and a race car trailer. He also entered a guilty plea to a second Bartow County indictment on two counts of theft by receiving stolen motor vehicles. The same Bartow County sheriff’s officer investigated the prior offenses and those for which Boyd was convicted here. The officer testified that in both the prior and current offenses Boyd, in concert with others, engaged in a scheme to “clean up” stolen vehicles by manufacturing false ownership records. The stolen vehicles were older models that did not require the applicant to present a title to obtain a license plate. Vehicle identification number (VIN) plates were obtained from junk vehicles of the same make and model, and these were substituted for the true VIN plates on the stolen cars. Forged bills of sale were prepared with the false VINs and used to obtain license plates. The vehicles were then resold.

Under Uniform Superior Court Rule 31.3 and Williams v. State, 251 Ga. 749 (312 SE2d 40) (1983), admission of similar transaction evidence does not require that the similar transactions be identical to the offenses charged. What is required is evidence that the defendant was the perpetrator of the other crimes, and sufficient similarity between the incidents so that proof of the former tends to prove the latter. Martin v. State, 198 Ga. App. 488, 489 (402 SE2d 95) (1991). Boyd contends there was no proof that he, rather than his co-defendants, actually removed the VIN plates from the stolen vehicles and substituted false plates in the previous offenses. Boyd also contends the offenses were not similar because “confidential” or concealed VINs were not removed from the stolen vehicles in the earlier offenses.

Decided June 23, 1995.

Robert D. Pope, for appellant.

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

These minor variations in the virtually identical schemes in the prior and current offenses do not constitute sufficient dissimilarity to render the prior indictments and guilty pleas inadmissible. Particularly where, as here, guilty pleas were entered to the earlier crimes, it is immaterial whether Boyd or one of his associates committed any particular act in furtherance of the offenses. Hammitt v. State, 183 Ga. App. 382, 383 (1) (359 SE2d 4) (1987). The investigating officer testified that Boyd and his associates were “progressing” and refining their technique to eliminate concealed as well as primary VINs, because they had learned from the first two indictments that officers were able to trace stolen vehicles through the confidential numbers. Refinements in method learned by experience in committing a particular crime do not show dissimilarity, but rather tend to show a connection with the prior offense. The trial court admitted only the charges of theft by receiving stolen motor vehicles and refused to admit evidence of theft of a more recent vehicle “which does not fit the pattern.” The prior offenses were sufficiently similar to the incidents at issue here to satisfy the requirements of Uniform Superior Court Rule 31.3 and Williams. See Gill v. State, 183 Ga. App. 481 (359 SE2d 163) (1987).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.