text:
    A99A0595.
    CLOYD v. THE STATE.
    (516 SE2d 103)
   Blackburn, Presiding Judge.

Dominic Cloyd appeals his conviction of three counts, of armed robbery, three counts of aggravated assault, and three counts of kidnapping, following a jury trial. Cloyd contends that the evidence does not support the verdict and that the trial court erred by: (1) denying his motion for directed verdict; (2) failing to charge the lesser included offense of false imprisonment; and (3) improperly recharging the jury. For the reasons set forth below, we affirm.

1. The same standard of review applies to the enumeration of error for the denial of the motion for directed verdict and to the enumeration of error for the sufficiency of the evidence, so we will consider these enumerations together. “[W]e view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Punctuation omitted.) Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998).

[T]he appellant... no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation omitted.) Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the evidence shows that on April 27, 1996, Cloyd and Terrence Toliver came to the back door of the apartment of Eugene Jones, asking to see Jones’ roommate. Although the roommate was not in, Jones, who recognized the two men, invited them into the apartment. While Cloyd blocked the door, Toliver held a gun to Jones’ head and ordered Jones and his two guests, Everett and Bennet Barnett, to a back bedroom. Cloyd then “hog-tied” all three. Toliver and Cloyd took money, jewelry and watches from the three victims before proceeding to ransack the apartment. Toliver and Cloyd carried Jones, who was still hound, to the bathroom where he was repeatedly dunked in the bathtub. Thereafter, Cloyd counted four bullets in his gun. While Cloyd held Jones down, Toliver shot him in the head. Cloyd and Toliver then shot both of the Barnetts in the head. All of the victims survived and testified at trial naming Cloyd as one of their assailants.

Despite this overwhelming evidence, Cloyd contends that the evidence showed that he was merely present at the crime. Although

[p]resence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party . . ., criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) Norris v. State, 220 Ga. App. 87, 89 (2) (469 SE2d 214) (1996). In this case, there was ample evidence to authorize the jury’s finding that Cloyd was guilty, beyond a reasonable doubt, and to support the convictions. Jackson v. Virginia, supra.

2. Cloyd contends the trial court erred by failing to charge the jury on false imprisonment, a lesser included offense of kidnapping; however, Cloyd did not request the charge, either orally or in writing. “ ‘A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.’ ” Livery v. State, 233 Ga. App. 882, 886 (4) (506 SE2d 165) (1998); Howard v. State, 233 Ga. App. 724, 729 (6) (505 SE2d 768) (1998).

3. Cloyd argues that the trial court erred in its recharge on aggravated assault and party to a crime by failing to recharge on reasonable doubt and the defendant’s not guilty plea as well. “As a general rule, 'the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.’ ” Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996).

Decided April 12,1999.

Where a jury, which has been fully and properly charged, requests a recharge on a specific question, it is within the discretion of the trial court whether to recharge entirely or to recharge only on the specific question. Miller, supra; Dyson v. State, 155 Ga. App. 297, 299 (270 SE2d 711) (1980). It is not error to recharge only on the specific question so long as the recharge “taken alone [does not] leave an erroneous impression in the minds of the jury.” (Citations omitted.) Brannon v. State, 163 Ga. App. 340, 341 (2) (295 SE2d 110) (1982).

To determine whether a recharge is erroneous, we examine the charge as a whole, including both the initial charge and the recharge. Miller, supra. In this case, the trial court charged the jury in the initial charge on the burden of proof, reasonable doubt, suspicion, mere presence, mere association and Cloyd’s plea of not guilty. Later, when the jury returned with a question regarding party to a crime and assault, the trial court recharged the jury by reading the definitions of assault and party to a crime. Additionally, prior to reading the definitions, the trial court instructed the jury:

Ladies and Gentleman, let me say, that anything I’m about to tell you now in the way of further or recharge or further charge should be given no greater weight than the information and the charge that I gave you yesterday evening before you adjourned for the night. So that anything I tell you now needs to be taken in the context of the previous charge as well as the new or different or further elucidation of the particular legal question that you had asked about.

Here, as the trial court properly instructed the jury to consider the charge as a whole and to consider as equally important the initial charge, we conclude that the recharge did not overemphasize the State’s case and did not leave an erroneous impression in the mind of the jury. See Miller, supra. The trial court did not err.

Judgment affirmed.

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

Thomas R. Moran, for appellant.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Assistant District Attorney, for appellee.

       The jury asked, “How does party to a crime apply to an indictment of assault says assisting, advising et cetera make one guilty of assault?”


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A0655.
    MAPP v. THE STATE.
    (516 SE2d 322)
   Eldridge, Judge.

After a jury trial, Nicholas Mapp was convicted of the offense of armed robbery. Mapp’s sole enumeration of error questions the sufficiency of the evidence to authorize his conviction.

Viewing the evidence in the light most favorable to the jury’s verdict, the following was shown: Shortly after 11:00 p.m. on June 11, 1997, Officer John Timothy Lively of the Clayton County Police Department responded to an armed robbery call at the E-Z Serve convenience store on Tara Boulevard in Jonesboro, Clayton County. The clerk, Denise Marie Jackson, informed Officer Lively that she had been robbed by two males at gunpoint. Jackson testified that two males approached the store and stood talking outside the front glass windows. One of the men, whom Jackson positively identified as Mapp, came into the store and bought a lollipop. Jackson testified that the lollipops were located on the second aisle, which was directly in front of the cash resister, and that she was able to watch Mapp the entire three or four minutes he was in the store. Jackson further testified that when Mapp paid for the lollipop, they had a brief conversation concerning the fact that he was short one penny, but that she agreed to let him have the lollipop anyway.

Jackson testified that one or two minutes after Mapp left, the second male came into the store. He was wearing a black hat, black jeans, and a black jacket with the words Karl Kani on the back in tan print. The second male requested a package of cigarettes. Jackson leaned down to retrieve the cigarettes from under the counter. When she looked back up, he had a gun pointed at her and demanded that she give him all of the money in the register. When Jackson did not comply quickly enough, the second man threatened to shoot her. Jackson gave him all of the money in the register, which she estimated to be about $80 in small denomination bills, i.e., mostly $1 and $5 bills and a couple of ten dollar bills.

As the gunman exited the store, Johnny Smith was coming in the door of the store. Jackson pointed to the gunman and told Smith that he had just robbed the store. Smith went back outside and walked to the corner of the store. He saw the gunman get into the driver’s seat of a “goldish bronze looking Delta 88,” which was parked in a dark area on the side of the store by the pay phones. Smith testified that there was at least one more man in the vehicle. Smith got into his truck and watched the gunman’s car drive around the building and pull out onto the highway. Smith followed the gunman’s vehicle and obtained the tag number.

Police ran the tag number, determined that the registered owner of the car was Mapp, and obtained a Riverdale address for Mapp of apartment 26-C, Twelve Oaks Apartments. A “be on the lookout” was put out for the vehicle.

Officer Michael Gothard of the Riverdale Police Department went to Twelve Oaks Apartments. Several hours later, at approximately 5:30 a.m., Officer Gothard spotted Mapp’s car as it pulled into the parking lot of the apartments. Officer Gothard pulled his marked police car behind Mapp’s vehicle so that it could not back out. Mapp exited from the passenger side of the car. When Officer Lively instructed him to remain where he was, Mapp “took off running^’ northbound into the apartment complex. Officer Gothard held the driver of the vehicle at gunpoint while he waited for backup officers to respond.

Officer E. K. Stevens of the Clayton County Police Department testified that he went to apartment 26-C of the Twelve Oaks Apartments and found the door unsecured. Officer Stevens found Mapp hiding in a closet under a pile of clothing.

In addition to other items, the police recovered from Mapp’s car: a Loricin .380 caliber semi-automatic gun, which was located under the passenger seat of the car; a black jacket with the word “Kani” on the back, which was located in the trunk of the car; $63 in small denomination bills; and a small bag of cocaine, which was located under the driver’s seat. Jackson identified the gun and the jacket as the ones the gunman had during the armed robbery. Both Mapp and the gunman gave statements to police in which they admitted being at the E-Z Serve convenience store on June 11, 1997.

On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]

Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, supra at 319. “[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id.

Decided April 12,1999.

Jeffrey W. Cofer, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Further

[u]nder OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that a defendant is a party to a crime. However, criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) McGhee v. State, 229 Ga. App. 10, 11 (492 SE2d 904) (1997). Considering the evidence as a whole, we conclude that the evidence adduced at trial was sufficient to enable a rational trier of fact to find Mapp guilty beyond a reasonable doubt as a party to the crime of armed robbery.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Mapp was found not guilty of a violation of the Georgia Controlled Substances Act, for which he also was indicted.

        Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).


author: Blackburn, Presiding Judge.

text:
    A99A0688.
    SWEET v. THE STATE.
    (516 SE2d 317)
   Blackburn, Presiding Judge.

Ron Sweet appeals his convictions, following a jury trial, of aggravated child molestation and child molestation of his three-year-old daughter. Sweet contends (1) that the evidence was insufficient to support the verdict and (2) that the trial court erred in admitting similar transaction evidence.

1.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

(Punctuation omitted.) Patterson v. State, 233 Ga. App. 776 (1) (505 SE2d 518) (1998). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to support the verdict, the evidence reveals that Teresa Carol Bailey, mother of the victim, testified that the victim returned from visitation with Sweet, her father, exhibiting a “very red” vagina and complaining of pain. The victim told her mother that Sweet had “licked her butt and tickled it.” Bailey testified that when her daughter referred to her “butt,” she was actually indicating her vagina. When Bailey confronted Sweet with the child’s allegations, Sweet said that nobody would believe her because of his stature in the community. Kathy Kolberg, case manager for the Fannin County Department of Family & Children Services, testified that she interviewed the victim and was told by her that her “Daddy” licked her in her private area.

Sweet was convicted of (1) aggravated child molestation in that he licked the victim’s vagina with the intent to satisfy his sexual desires and (2) child molestation in that he touched the groin area of the victim with the intent to satisfy his sexual desires. Even without the consideration of the similar transaction evidence, we conclude that a rational trier of fact could have found Sweet guilty beyond a reasonable doubt of the offenses charged.

Sexual offenses against children necessarily occur in secret. This is one reason that Georgia law does not require corroboration of a child molestation victim’s testimony. Scales v. State, 171 Ga. App. 924 (2) (321 SE2d 764) (1984); see Baker v. State, 245 Ga. 657, 664 (5) (266 SE2d 477) (1980); see also OCGA § 24-4-8. Accordingly, “(t)aking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize [Sweet’s] conviction of the (offenses as charged) under the standard set forth in Jackson v. Virginia, (supra).” Bryant v. State, 226 Ga. App. 135, 136 (486 SE2d 374) (1997).

Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998).

2.

“(T)he rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. (Cit.)” Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996). Moreover, “(a) trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” Farmer v. State, 231 Ga. App. 78, 79 (1) (498 SE2d 559) (1998).

Mangham v. State, 234 Ga. App. 567, 569 (1) (507 SE2d 806) (1998).

In the present case, during the hearing pursuant to Uniform Superior Court Rule 31.1, the State proffered that two witnesses would testify as to similar transactions. First, Sweet’s older daughter would testify that when she was 11 years old, Sweet would touch her vagina on the pretense of “checking for ticks.” Sweet would also seek to dry off her private area after she took a bath. The witness would also testify as to other incidents in which Sweet would attempt to see her naked or expose himself to her while he was in a naked condition. The witness was twenty-one years old at the time of trial, making the similar transactions occur approximately ten years in the past. The second similar transaction witness was Sweet’s sister. The State proffered that his sister would testify that when she was a child, Sweet would touch her vagina while he masturbated. Sweet’s sister testified that she was six to nine years old when these incidents occurred and thirty-eight years old at the time of the trial, making the similar transactions occur approximately twenty-nine to thirty-two years in the past. The trial court determined that the similar transaction evidence was admissible to show bent of mind, lustful disposition, scheme and motive or intent.

Sweet contends that the similar transaction evidence was too remote in time. In Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991), the Supreme Court of Georgia held that “[w]here ‘similar transaction’ evidence has been admissible otherwise, lapses of time of 11 years and of 19 years have not demanded that the evidence was inadmissible. It should be clear, however, that an event 31 years in the past is too remote.” (Citations omitted.) Id. Therein, however, our Supreme Court was primarily concerned with the fact that the State prejudiced the defendant by putting up all of its similar transaction evidence before putting up evidence directly related to the specific charges. This was not a concern in the present case. In Snow v. State, 213 Ga. App. 571, 572 (2) (445 SE2d 353) (1994), we found that where a grandfather was charged with molestation of his granddaughters, similar transactions showing that he molested his daughters were admissible as they evidenced a continuous course of identical conduct over a 27-year period. Also in Nichols v. State, 221 Ga. App. 600, 601-602 (3) (473 SE2d 491) (1996), where the defendant was charged with raping his stepdaughter, we allowed similar transaction evidence showing that he had sexually assaulted his teenage daughters 24 and 27 years prior to trial. The present case shows a similar continuous course of conduct on the defendant’s part.

Decided April 12,1999.

David E. Ralston, for appellant.

Roger Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Additionally, any error in allowing the similar transaction evidence was clearly harmless for the reasons set forth in Division 1. See Brooks v. State, 232 Ga. App. 115, 116 (501 SE2d 286) (1998) (applying the harmless error rule to admission of similar transaction evidence in a case involving child molestation and incest).

Judgment affirmed.

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

       The jury found Sweet not guilty of one count of cruelty to children regarding his three-year-old daughter and one count of cruelty to children and two counts of child molestation regarding another minor female child.


author: McMurray, Presiding Judge.

text:
    A99A0719.
    SMITH v. THE STATE.
    (516 SE2d 319)
   McMurray, Presiding Judge.

A jury convicted William E. Smith of trafficking in cocaine, possession of cocaine, and attempting to elude a police officer. He appeals from the order denying his motion for new trial, contending the trial court erred in denying his motion to suppress and that the evidence is insufficient to support his trafficking conviction. We affirm.

1. In enumerations of error 1, 2, 3, and 6, Smith argues the evidence was insufficient to support his conviction for trafficking in cocaine and that the trial court should have directed a verdict of acquittal on that charge.

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”

Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257). The standard of review of a denial of a motion for a directed verdict is the same as that for the sufficiency of the evidence. Cottingham v. State, 206 Ga. App. 197 (1) (424 SE2d 794).

Viewed in this light, the record reveals that on January 22,1996, the DeKalb County police arranged to buy nine ounces of cocaine from Smith through informant Theresa Burke. Earlier that evening, Gwinnett County police had arrested Burke for selling cocaine. Burke told her arresting officer that she could set up a deal to buy another nine ounces of cocaine from Smith who was at her residence in Stone Mountain in DeKalb County. The Gwinnett police contacted officers with the DeKalb County Narcotics Unit who then met with Burke. Burke gave the DeKalb County police her address, described Smith and his car in detail, and offered to make the call. After the police set up surveillance on Burke’s home and at the designated meeting place, a McDonald’s parking lot, Burke called Smith from her cell phone while the police listened.

Moments after Burke spoke with Smith, Smith was seen leaving Burke’s home. Smith got in a gold-colored Nissan Maxima and drove toward the McDonald’s parking lot. Several officers posted along the way observed Smith drive by. After Smith entered the McDonald’s parking lot, a uniformed officer in a marked patrol car blue-lighted Smith and attempted to stop him. Smith veered past the officer and sped away toward a residential neighborhood. The uniformed officer and detectives in unmarked cars gave chase. A detective following immediately behind Smith observed Smith’s car veer off the side of the road briefly during the chase. After chasing him about a mile, the police stopped Smith when he turned his car down a dead-end road. The arresting officers saw that Smith’s passenger side window was down, despite the cold winter weather. Suspecting that Smith had thrown the cocaine out of the car during the chase, the police searched the roadside where Smith had swerved and found a plastic bag containing what tested positive for 253 grams of 40 percent pure cocaine. During a search incident to Smith’s arrest, the police found in Smith’s coat pocket two small bags containing cocaine residue. The police also found electronic scales, $1,520 in cash, and several small plastic bags inside Smith’s car.

Smith argues the evidence was insufficient to support the verdict because the State failed to prove that he 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). Possession can be proven by circumstantial evidence. See Kittler v. State, 234 Ga. App. 120 (2), 121 (506 SE2d 231).

“A conviction on circumstantial evidence is authorized if the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the (factfinder).”

Id. In light of the evidence that police had information that Smith would be in possession of nine ounces of cocaine, that Smith fled when confronted by the police, that he veered onto the roadside momentarily during the chase, that his passenger side window was open, and that police found nine ounces of cocaine by the road where Smith swerved, the jury was authorized to infer that the cocaine found on the roadside was in Smith’s possession until he abandoned it by throwing it out the car window. We do not find that the circumstantial evidence in this case established a reasonable hypothesis of innocence as a matter of law. See Ellison v. State, 233 Ga. App. 637, 638-639 (2) (504 SE2d 779). Under the standard of Jackson v. Virginia, supra, the evidence adduced at trial was sufficient to authorize the jury’s verdict, and the trial court did not err in denying Smith’s motion for a directed verdict. See Milton v. State, 232 Ga. App. 672, 673 (1) (503 SE2d 566).

2. In his fourth enumeration of error, Smith contends the trial court erred in refusing to suppress the cocaine and drug paraphernalia used as evidence against him. When reviewing a trial court’s ruling on a motion to suppress, evidence is construed by this Court most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Morgan v. State, 195 Ga. App. 732, 734-735 (3) (394 SE2d 639). Smith argues that the officers were not authorized to initiate a traffic stop based upon the tip provided by Burke, an informant of unknown reliability, and that any contraband seized as the result of that stop was the “fruit of the poisonous tree.”

“ ‘Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect, reliability may be established if the details are corroborated by the observations of the police.’ ”

Buffington v. State, 228 Ga. App. 810, 812 (492 SE2d 762). In this case, the police were proceeding on significantly more than a tip supported by a detailed description of Smith and his car. Burke agreed to set up a drug buy from Smith, who was then at her residence. Burke made a phone call to Smith on her cell phone as the police listened. The police heard Burke setting up a drug deal. As the police watched, Smith responded to Burke’s call by following her instructions and driving to the McDonald’s parking lot where the drug transaction was to be consummated. The officer’s observations corroborated the details of Burke’s tip and were sufficient to establish her reliability. See id.; Easterlin v. State, 216 Ga. App. 112, 113 (452 SE2d 801). Moreover, this corroborated tip gave the officers reasonable articulable suspicion to suspect Smith of drug activity sufficient to justify an investigative stop. See, e.g., Ledford v. State, 220 Ga. App. 272, 274 (1) (469 SE2d 401). Of course, Smith did not stop when the police approached him. He fled, behavior that not only added another basis for the officer’s suspicions, but which, in itself, gave the officers probable cause to stop and arrest Smith for the offense of attempting to elude an officer. OCGA § 40-6-395 (a); Davis v. State, 235 Ga. App. 10 (507 SE2d 827). Thus, the drug paraphernalia and packets containing cocaine residue were lawfully seized from Smith pursuant to a search incident to a lawful arrest for attempting to elude. See Sprinkles v. State, 227 Ga. App. 112 (1), 113 (488 SE2d 492). And, because the cocaine found along the side of the road was abandoned by Smith while he was in a state of flight, that is, before he was seized within the meaning of the law, “ ‘it cannot be said that it was the fruit of an illegal arrest.’ [Cits.]” Milton v. State, 232 Ga. App. 672, 677 (4) (503 SE2d 566). The trial court properly denied Smith’s motion to suppress.

3. In his final enumeration of error, Smith argues the court erred in allowing two police officers to testify as to Burke’s hearsay statements that she could arrange a drug buy from Smith. However, because Smith did not make an objection on this basis at trial, the error is not preserved for our review. Waldrip v. State, 267 Ga. 739, 748 (12) (482 SE2d 299).

Although Smith claims the trial court gave him a continuing objection regarding the admissibility of Burke’s statements on hearsay grounds during the motion to suppress hearing, the transcript of that proceeding shows only that Smith asked for a continuing objection “to the court considering any of this for the truthfulness of it.” This vague entreaty appears to have been construed by the court as a request to instruct the jury that Burke’s statements be considered not for their truth, but only to explain the officer’s conduct because the court later gave such an instruction and Smith appeared to acquiesce in it. There is no indication in the record that the trial court specifically granted Smith a continuing objection on the grounds complained of or, on its own initiative, clearly designated such an objection as continuing. Therefore, Smith was required to make a contemporaneous objection to preserve this point of error for appellate review. State v. Larocque, 268 Ga. 352 (489 SE2d 806).

Decided April 12,1999

Franklin & Hubbard, Brooks S. Franklin, William F. Holbert, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


author: ELDRIDGE, Judge.

text:
    A99A0817.
    NELSON v. THE STATE.
    (516 SE2d 98)
   ELDRIDGE, Judge.

A Clayton County jury found Dana Nelson guilty of driving under the influence of alcohol (less safe driver) and habitual violator (previously declared). In his sole enumeration of error, Nelson challenges the sufficiency of the evidence introduced against him. We affirm his conviction.

Viewed in a light most favorable to the verdict, the evidence shows that on September 9, 1996, at approximately 9:30 p.m., Clayton County Police Sergeant Gregory Dickens was traveling northbound on 1-75 when he received an accident call. Upon arrival at the accident location, he saw a car stopped beside the median wall with its emergency flashers on. Pulling over, Dickens spoke to a man who had witnessed a collision in which a black Mercedes skidded across several lanes of 1-75, striking the median wall and coming to a halt. Sergeant Dickens saw automobile fluid and broken glass on the ground next to the median wall where the witness was standing. The witness told the officer that he had stopped to render assistance to the driver of the Mercedes. However, before the witness could render aid, the Mercedes pulled away. The witness called 911 from his cell phone. He informed the officer that the driver was wearing a baseball-type cap and a grey sweatshirt and that he drove the black Mercedes in the direction of the Old Dixie Highway exit.

Starting out in the direction that the witness had pointed, Sergeant Dickens followed a trail of leaking automobile fluid onto the Old Dixie Highway exit. At the end of the ramp, Dickens stopped at a red light. Directly across the street was an Amoco gas station. Parked at the gas pumps was a black Mercedes. The car was leaking automobile fluid and had sustained a large amount of front end damage, especially to the left front headlight area. The driver of the Mercedes exited the vehicle and started to walk toward a pay telephone; he was wearing a baseball-type cap and a grey sweatshirt.

Sergeant Dickens approached the driver. He “could smell alcohol” on the driver from several feet away. The driver was unsteady on his feet and swaying. When the officer directed the driver back to the Mercedes, the driver had to hold onto his car for balance. When asked if he had been drinking, the driver refused to answer and would not provide identification. The driver stated that he was calling his wife to come and get him. Dickens testified that based upon his observations, the driver was under the influence of alcohol to the extent that he was a less safe driver. He arrested the driver. Dickens read the implied consent warnings, and the driver apparently refused chemical testing. During an impound search, a luggage tag in the Mercedes identified the driver as Dana Nelson. The officer ran Nelson’s name on TAC radio, and it came back identifying Nelson as an habitual violator. During trial, the State introduced evidence that Nelson was served with an habitual violator notice in June 1992. Held:

A conviction for driving under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. We have no yardstick to measure consistency or reasonableness, save the opinion of the jurors, whose function it is to determine credibility of witnesses and questions of reasonableness.

(Citation and punctuation omitted.) McGhee v. State, 223 Ga. App. 123, 124 (476 SE2d 853) (1996). Here, the officer could “smell alcohol” on Nelson’s person; Nelson was unsteady on his feet; he struck his car against a median wall and left the scene; he has been served an habitual violator notice; and he apparently refused to take a chemical test. See Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988) (refusal to submit to a drug test “may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance”). Accordingly, we find the evidence sufficient for a jury to find Nelson guilty beyond a reasonable doubt of driving under the influence of alcohol and habitual violator. McGhee v. State, supra.

Decided April 12,1999.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A99A0926.
    GRIFFIN v. THE STATE.
    (516 SE2d 328)
   Eldridge, Judge.

Defendant Charles Griffin, Jr. appeals the trial court’s denial of his motion for new trial following his jury trial, which resulted in a conviction on two counts of aggravated assault and two counts of terroristic threats. We affirm the trial court’s order.

Viewed in a light most favorable to the verdict, the evidence showed that, in the early morning hours of November 9, 1997, one of the two victims, Jessie Brown, was driving a car in which Debbie Williams and a third woman were passengers. Pursuant to Griffin’s request, Brown went to another individual’s home to pick up Griffin. After the women picked up Griffin, Griffin and Brown argued, and Griffin “popped” open a knife, with which he threatened to “cut [Brown’s] throat.” When Williams intervened, he leaned over the front seat and made similar threats to her. As soon as Brown arrived at Williams’ father’s home to drop off the two female passengers, Williams and the other passenger went inside and called 911. Two police officers arrived and questioned all four individuals. After talking to Griffin, the officers found a knife in the front passenger seat of the car. Griffin was arrested and taken to jail.

A jury trial was conducted on April 27-28, 1998. At trial, Brown testified that Griffin had not threatened her or pulled a knife on her, and that she was not fearful for her life at the time of the incident. She also testified that Griffin had not threatened Williams. However, both female passengers testified that Griffin had, in fact, threatened Brown and Williams with a knife that night and that Brown was “scared” of Griffin. In fact, Williams testified that Brown, who does not read or write, asked her to write out a statement for the police affirming that Griffin had threatened her with a knife.

One of the investigating officers, Officer Byers, testified for the State. He stated that Brown was “uneasy”; Brown reported that Griffin had threatened to “cut her throat.” However, Officer Tumlin did not testify, having been excused by the State as a witness. The jury subsequently convicted Griffin on all four counts, and the trial court sentenced him to the maximum penalty for the crimes, due to Griffin’s status as a recidivist.

Griffin filed a motion for new trial asserting, inter alia, that he was denied effective assistance of counsel and that the evidence was insufficient to support the verdict. The trial court denied the motion, and Griffin appeals. Held:

1. In his first enumeration of error, Griffin asserts that trial counsel was ineffective for failing to subpoena Officer Tumlin as a witness for the defense. We disagree.

To prevail on a claim of inadequacy of counsel, appellant has the burden of showing that counsel’s performance was deficient and that the deficient performance prejudiced the defense by creating a reasonable probability of a different outcome but for counsel’s errors; an appellate court evaluates counsel’s performance from [her] perspective at trial time. Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) [(1997)]. ... “A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous and the defendant must overcome the strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct.” Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) [(1996)].

Milliken v. State, 230 Ga. App. 810, 812-813 (498 SE2d 127) (1998). See also Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986); Adefenwa v. State, 221 Ga. App. 429 (471 SE2d 900) (1996).

During the hearing on Griffin’s motion for new trial, counsel testified that she did not subpoena Officer Tumlin because he was included on the State’s list of witnesses. Based on the list, she testified that she planned to cross-examine the officer and that she believed the officer’s testimony on cross-examination would “bolster” Brown’s trial testimony, which was generally favorable to the defendant. However, prior to trial, the State excused Officer Tumlin from testifying. When trial counsel found out that Officer Tumlin was not present for trial, she requested a continuance so that she could subpoena the witness. After counsel admitted that she had not already subpoenaed the officer, the trial court denied the request for continuance.

Decided April 12,1999.

Emmett J. Arnold IV, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-!Stroud, Assistant District Attorney, for appellee.

Officer Tumlin then testified at the motion hearing and testified that, during his investigation, Brown initially told him that she did not feel that her life was threatened. However, Officer Tumlin also testified that Brown subsequently told him that Griffin had threatened to cut her throat and that he possessed a knife at that time. Officer Tumlin testified that Brown was “hesitant [about whether] she really wanted to tell me or not”; that she kept looking toward Griffin, who was seated in the patrol car; and that she was upset and “despondent.”

Based on this testimony, the trial court found that, regardless of whether counsel’s failure to subpoena Officer Tumlin amounted to ineffective assistance, his presence at trial would not have changed the outcome of the case. The trial court reasoned that the officer’s testimony actually appeared to be “damaging to the defendant’s case” and was more corroborative of the State’s witnesses than of Brown’s testimony.

After reviewing the transcripts of both the trial and motion hearing, this Court finds that the trial court’s finding was supported by the evidence and, therefore, was not clearly erroneous.

2. In his second enumeration, Griffin asserts that the evidence presented at trial was insufficient to support his conviction. However, on appeal, the “appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, supra at 464. See also Jackson v. Virginia, supra. In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319. In this case, the evidence presented was sufficient to support Griffin’s conviction.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990).


text:
    A99A0952.
    PETERS v. THE STATE.
    (516 SE2d 331)
   McMurray, Presiding Judge.

On July 1,1998, defendant Carlos Peters was convicted of violating the Georgia Controlled Substances Act. Defendant Peters filed a motion for new trial 34 days later on August 4, 1998, which was beyond the 30-day requirement set by OCGA § 5-5-40. On October 23, 1998, defendant filed an amended motion for new trial. The trial court denied defendant’s new trial motion on November 25,1998, and defendant Peters filed a notice of appeal on December 22,1998. Held:

Since no election to first file a timely direct appeal was employed, the 30-day time requirement set by OCGA § 5-5-40 within which a motion for new trial must be filed is jurisdictional and the failure to comply with it mandates dismissal of an appeal. Watson v. State, 202 Ga. App. 667 (415 SE2d 306). In the case sub judice, defendant Peters’

purported motion for new trial was not filed within 30 days as required by the Appellate Practice Act (Ga. L. 1965, pp. 18, 30; Code Ann. § 70-301[, now OCGA § 5-5-40 (a)]), was thus void and of no effect, and therefore did not toll the time for filing the notice of appeal under the Appellate Practice Act (Ga. L. 1965, pp. 18, 21; Code Ann. § 6-803 [, now OCGA § 5-6-38 (a)]).

Johnson v. State, 227 Ga. 219 (180 SE2d 94). The appeal in the case sub judice must, therefore, be dismissed.

In accordance with Rowland v. State, 264 Ga. 872 (452 SE2d 756), defendant Peters is hereby informed of the following: Your appeal has been dismissed because of a failure to file a motion for new trial timely. If you decide that you no longer wish to appeal your conviction, you need not do anything more. However, if you still want to appeal, you may file a request for an out-of-time appeal in the trial court.

If, upon defendant Peters’ application for out-of-time appeal, it be established to the trial court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties, defendant Peters is entitled to an out-of-time appeal. The trial court should appoint another attorney for you if you cannot pay for one. If the trial court grants an out-of-time appeal, you will have 30 days from the grant in which to file a notice of appeal. If the trial court denies your request for an out-of-time appeal, you may appeal that denial to this Court within 30 days of the trial court’s decision.

The Clerk of the Court of Appeals of Georgia is directed to send a copy of this opinion to defendant Peters, as well as to defendant Peters’ current appellate counsel with direction that appellate counsel also send a copy of the opinion to defendant Peters. Zachery v. State, 233 Ga. App. 519, 522 (504 SE2d 466).

Decided April 12,1999.

Cynthia A. Price, for appellant.

J. Tom Morgan, District Attorney, Thomas S. Clegg, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Appeal dismissed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0965.
    SPIVEY v. THE STATE.
    (516 SE2d 332)
   Eldridge, Judge.

On October 8, 1991, a Tift County jury found Gregory Spivey guilty of felony shoplifting. A motion for new trial was timely filed on October 14, 1991. For reasons unexplained, said motion remained on the superior court docket for approximately six years, until it was amended by new counsel on May 4, 1998, to raise a claim of ineffective assistance of trial counsel. Spivey’s motion for new trial was denied in an order dated May 22, 1998, and a timely notice of appeal from the denial of the motion was filed on June 10, 1998.

1. As he did in the motion for new trial, Spivey again claims ineffective assistance of counsel because his trial counsel failed to object or move for mistrial when an alternate juror was inadvertently sent out with the petit jury during the first portion of jury deliberations. The trial court, “after hearing evidence and argument of counsel, and upon careful consideration of same,” denied the motion for new trial. A transcript of the hearing on the motion for new trial was not made a part of the record on appeal and is not before us.

“Every presumption of legality will be made in favor of a judgment by a court of competent jurisdiction; and it will be presumed that a judgment of a court of competent jurisdiction is supported by every fact essential to make such judgment valid and binding.” (Citation and punctuation omitted.) First Financial Ins. Co. v. Mathis, 214 Ga. App. 537, 539 (448 SE2d 87) (1994). See also OCGA § 24-4-24 (b) (2); Key v. State, 147 Ga. App. 800 (250 SE2d 527) (1978); Johnson v. State, 27 Ga. App. 679 (109 SE 526) (1921).

Decided April 12,1999.

Benjamin Gratz, Jr., for appellant.

C. Paul Bowden, District Attorney, for appellee.

Based upon the plain language of its order denying Spivey’s motion for new trial, the trial court clearly relied upon evidence and argument adduced at the motion hearing in reaching its ruling on the issue raised herein. As such, in the absence of a transcript of the motion for new trial demonstrating otherwise, we will presume the trial court’s ruling was correct.

[I]f [Spivey] desired that we consider the evidence adduced at the hearing on his [new trial] motion, he should have made suitable arrangement to insure that it was transcribed and forwarded to this court. It is a well-established appellate rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing upon the issue raised by the enumeration of error] ] is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result. In such case, we must assume the judgment below was correct and affirm.

(Citations and punctuation omitted.) Wells v. State, 201 Ga. App. 398, 399 (411 SE2d 125) (1991).

2. Appellant also substantively raises the above-referenced issue, claiming that the trial court committed reversible error by failing to poll the jury with regard to the effect of the alternate’s presence during the initial jury deliberations. However, in the absence of an objection or motion for mistrial, we do not find reversible error. “It is well settled that this Court will not consider grounds for objections not raised and passed upon in the trial court. [Cit.]” Murchison v. State, 231 Ga. App. 769 (500 SE2d 651) (1998).

Judgment affirmed.

Pope, P. J, and Smith, J., concur.

       The mistake was discovered shortly after deliberations began. In response to the trial court’s questions, the juror responded that he did not participate “in any way” in the jury’s deliberations. Thereafter, the alternate was dismissed, the petit jury ate lunch, reviewed an evidentiary videotape, continued deliberations, and eventually returned its verdict.


text:
    A99A1056.
    BRADSHAW v. THE STATE.
    (516 SE2d 333)
   Eldridge, Judge.

A Richmond County jury found Craig Bradshaw guilty of burglary. He appeals, and we affirm.

In a light most favorable to upholding the jury’s verdict, the evidence showed that at approximately 7:00 p.m. on July 9, 1997, Allen Childs was getting dressed in preparation for an evening out. He heard a loud crashing noise, followed by a second, similar noise. Childs entered his living room to investigate. The window in his front door had been broken out, and glass covered the floor. A man’s arm was reaching through the window; the man was turning the turn-bolt lock above the door handle. An additional dead-bolt lock prevented the man’s entry. Childs screamed, “What are you doing?” The arm quickly disappeared, and the perpetrator’s face appeared in the window. Childs and the perpetrator locked eyes. Childs had never seen the man before. The perpetrator ran.

Childs got his .22 caliber revolver, climbed in his car, and gave chase. Initially, he spotted the perpetrator hiding behind the bushes near his mailbox. When Childs spotted him, the perpetrator came out from behind the bushes and began walking down the road away from Childs. Childs followed him in his car. The perpetrator started walking faster. Childs exited his car and confronted the perpetrator, asking “Why did you break into my home?” The perpetrator started walking toward Childs. Childs got nervous and pulled his revolver. The perpetrator started running, and Childs, barefoot, pursued him on foot, firing a warning shot into the air.

When the shot was fired, the perpetrator stopped. Childs confronted him again, stating “I’m telling you to stop, you just broke into my house.” The perpetrator noted that Childs’ hand was shaking as he held the gun and said “That gun is shaking, I think I’m going to come over there and take it away from you.” He told Childs that he was going to kill him. Childs replied, “If you take another step, I’ll cap you right here.” The perpetrator took off again, and a further foot chase ensued.

During the second chase, Childs fired off another warning shot, and the perpetrator, again, stopped. The perpetrator told Childs that he was tired; that Childs “had him”; and that Childs should put the gun down. Childs began screaming for help. The neighbors called the police. While waiting for the authorities, the perpetrator, later identified as Craig Bradshaw, told Childs, “I’ve been in jail many times and I’ll be out before midnight. . . . Sleep tight, mother fucker.” Held:

1. In his first enumeration of error, Bradshaw alleges as reversible error the trial court’s refusal to give a jury charge on the lesser included offense of criminal trespass. We disagree.

Bradshaw testified at trial. He stated that, thinking he was at the home of a friend, he knocked on the window of Childs’ door, and the window just fell out. He testified repeatedly that “it’s a fact that my arm did not go in that door.” In addition, Bradshaw testified that he never touched the turn-bolt lock; that he never attempted to opén the door at all; and that no one ever came to the door, so he just left. Bradshaw stated that he ran because he was afraid when Childs came at him with a gun; he testified that Childs shot at him “at least four times.” Bradshaw told the jury that Childs was lying throughout his entire testimony.

[W]here the defendant has denied entering the burglarized premises, we have held that trespass instructions are not appropriate. . . . [T]he jury ha[s] the choice either to convict the defendant of burglary if it believed the State’s evidence or to acquit the defendant if the State did not meet its burden; however, the jury [will] not be permitted the compromise choice of disbelieving the defendant and returning a verdict of guilty on the lesser offense of criminal trespass, differing from burglary only in criminal intent.

(Citations and punctuation omitted.) Underwood v. State, 221 Ga. App. 93, 95-96 (470 SE2d 699) (1996).

Here, Bradshaw did not admit to entering Childs’ house, i.e., breaking the plane of the building by putting his arm through the door. In fact, he repeatedly denied that such act occurred. Thus, according to Bradshaw’s own testimony, there was neither a criminal trespass nor a burglary. Accordingly, there was no error in refusing to charge on criminal trespass. Wyley v. State, 169 Ga. App. 106, 109 (311 SE2d 530) (1983).

2. Under OCGA § 17-10-7, Bradshaw was sentenced as a recidivist to the maximum, i.e., 20 years. The trial court’s colloquy during sentencing reflects its belief that OCGA § 17-10-7 (c) required that Bradshaw be given the maximum sentence; however, the colloquy does not illustrate the trial court’s recognition of its discretion to probate or suspend any part of the sentence and, thus, the exercise of such discretion: “[Trial Court:] The Legislature passed a law and its mandatory 20 year sentence, because he’s a recidivist. So I’m going to sentence him to 20 years. I will run it concurrent with any other sentence that he has. That’s the best I can do for him. The Legislature passed a law and they said 20 years, and I have no discretion. . . . That’s mandatory. That’s the best I can do; that’s the only authority I have. I’m sorry he’s here.”

Decided April 12,1999

Paul W. David, for appellant.

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

As [State v. Carter, 175 Ga. App. 38 (332 SE2d 349) (1985),] makes clear, OCGA § 17-10-7 (a) required the trial court to impose the maximum sentence but gave it discretion to probate or suspend part of that sentence. Subsection (c), which prohibits parole, did not take away that discretion. The trial court’s failure to exercise its discretion was error, which we cannot find harmless under these circumstances. The sentence is therefore vacated, and this case is remanded for resentencing in accordance with this opinion.

(Citations and punctuation omitted; emphasis in original.) Banks v. State, 225 Ga. App. 754, 757 (484 SE2d 786) (1997). Upon remand, the trial court has the authority to reimpose the 20-years-to-serve sentence. However, let the exercise of the trial court’s discretion in the imposition of such sentence be cast upon the record.

Judgment of conviction affirmed, sentence vacated and case remanded for re-sentencing.

Pope, P. J., and Smith, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Glass from the window was found as far away as 25 feet from the door.

       Upon police investigation, Childs’ .22 revolver had been fired twice and contained four live rounds and two spent casings.


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

text:
    A99A0038.
    McCULLOUGH v. BRIARCLIFF SUMMIT, L. P. II et al.
    (516 SE2d 353)
   Judge Harold R. Banke.

After falling in an unlit stairwell, James A. McCullough brought a personal injury action against his landlord, Briarcliff Summit, L. P. II, and its general partners, Edward E. Lee III, and Robert A. Crowder. McCullough appeals the summary judgment.

The underlying lawsuit arose after an extended power blackout at Briarcliff Summit Apartments (“Summit”), a high-rise HUD housing project marketed to the elderly and infirm. During the first days of October 1995, a severe storm swept through Atlanta causing some scattered power outages.

When McCullough returned to his sixth floor apartment on the evening of October 4, he discovered the complex still lacked electricity. The next morning, between 10:30 and 11:00 a.m., when McCullough left his apartment to do some volunteer work, his apartment building still lacked electricity as well as any emergency lighting due to a total failure of the apartment’s back-up generator. This failure meant that the elevators were inoperable and that the emergency fire alarms and emergency lighting and exit lighting were not functional. McCullough used the stairwell closest to his sixth floor apartment, the only stairwell he had ever used. While descending the unlit interior stairwell, McCullough suddenly lost his footing on the fourth floor and fell in the dark. He fractured six ribs and suffered a deep head gash.

The undisputed evidence showed that Summit’s emergency back-up generator worked very briefly, if at all, before breaking down. Lt. Kenneth Thomas, a fire inspector from the City of Atlanta Fire Department, conducted an investigation after a tenant complained about the lack of emergency power lights at Summit. Lt. Thomas confirmed that the fire alarm system was not working and that all exit lights were out. Lt. Thomas testified that he advised Summit’s management that “emergency power is required by law in this building and if emergency power could not be restored, then a ‘fire watch’ would be required.” Lt. Thomas told Summit that it would “need some means of lighting for the tenant’s [sic] egress.” Three residents including McCullough testified that they did not observe any “fire watch.” It is undisputed that Summit did not install any alternate type of lighting during the power outage period.

Finding that McCullough had equal knowledge of the defective condition and that the stairwell in question was not the only means of access to McCullough’s apartment, the trial court granted summary judgment. McCullough appeals. Held:

1. McCullough contends that material disputed factual questions precluded summary judgment.

By law, a landlord has a duty to keep its premises in repair and is liable “for damages arising from the failure to keep the premises in repair.” OCGA §§ 44-7-13, 44-7-14. A landlord must maintain the common area in a reasonably safe condition. Oliver v. Complements, Ltd., 190 Ga. App. 30, 32 (378 SE2d 154) (1989). Nor can a landlord waive or avoid any duties set by statute or by ordinances adopted pursuant to Code Section 36-61-11. OCGA § 44-7-2 (b) (1)-(3).

Generally, whether a landlord has exercised the requisite degree of ordinary care in keeping its premises in repair necessitates jury resolution. Oliver, 190 Ga. App. at 32. Here, whether Summit acted negligently after learning that its back-up generator was irreparable is controverted. McDonald v. Coca-Cola Enterprises, 220 Ga. App. 567-568 (469 SE2d 805) (1996). No evidence showed that Summit supplied temporary lighting to its tenants, most of whom were elderly. Without question, Summit knew that its exterior stairwell had windows and was not pitch black. McCullough testified that he did not share that knowledge. According to McCullough, Summit did not warn him not to use the stairs closest to his apartment and did not advise him to use its exterior stairwell. No evidence showed otherwise. Thus, whether in these circumstances, Summit breached its statutory duties as a landlord or violated local ordinances or housing codes must be resolved by a jury. See Thompson v. Crownover, 259 Ga. 126, 129 (4) (381 SE2d 283) (1989); McDonald, 220 Ga. App. at 567-568.

2. McCullough contends that a jury must determine whether he failed to exercise reasonable care for his own safety and assumed the risk of injury.

Where the dangerous area is the tenant’s only access or only safe and reasonable access to his home, the tenant’s equal knowledge of the danger does not excuse the landlord from liability for damages caused by a failure to keep the premises in repair. Carey v. Bradford, 218 Ga. App. 325, 326 (2) (461 SE2d 290) (1995). Although Summit claims that by using its unlit stairs, McCullough voluntarily thrust himself into an unsafe activity, McCullough testified that he used the only stairs he had ever used and did not know that an exterior stairwell at the far end of the hall had windows. The diagram of his floor suggests that to reach the other stairwell with which he had no familiarity, McCullough would have had to grope his way down a dark hallway past other apartments to find the stairwell door which lacked a lighted exit sign. To hold as a matter of law that McCullough cannot recover because he assumed the risk of going down the dark stairs which Summit failed to illuminate or that McCullough should have used a more distant stairwell which he had never traversed would eviscerate the landlord’s statutory duty to keep the premises in repair. Carey v. Bradford, 226 Ga. App. 360 (486 SE2d 623) (1997) (physical precedent only). This we decline to do. See Richardson v. Palmour Court Apts., 170 Ga. App. 204, 207 (316 SE2d 770) (1984). A jury must determine whether McCullough exercised reasonable care for his own safety. Hull v. Mass. Mut. Life Ins. Co., 142 Ga. App. 269, 270 (235 SE2d 601) (1977); see Robinson v. Kroger Co., 268 Ga. 735, 743 (1) (493 SE2d 403) (1997).

Judgment reversed.

Ruffin, J., concurs. Andrews, J., concurs specially.

Andrews, Judge,

concurring specially.

I concur in the judgment of the majority opinion, but not in its statement of the record or its analysis of the legal issues.

In the early part of October 1995, severe storms associated with hurricane Opal knocked out power in parts of Atlanta, including the area where the Briarcliff Summit apartments (Summit) were located. Although McCullough rented an apartment as a residence at Summit, on October 2 and 3 he stayed at his wife’s residence, which was located in an area of Atlanta which had power. McCullough returned to his apartment on the night of October 4, even though the area in which Summit was located was still without power, and the apartment building was without power and completely dark. McCullough testified that, if he had known the power was still out at Summit before he arrived there, he probably would have stayed at his wife’s residence. The elevators in the building were not operating because of the lack of power. In order to reach his sixth floor apartment, McCullough walked up a darkened stairwell without incident and then felt his way from the stairwell entrance along a hallway for about 40 feet until he reached his apartment where he spent the night. On the morning of October 5 the power was still out in the area, and the building was still unlighted except for natural sunlight through windows. McCullough said he probably left his apartment and walked down the same stairs to the first floor lobby to retrieve a newspaper, then walked back up the stairs to his apartment. The stairwell remained darkened at the time because of the lack of power and the absence of any windows in the stairwell to admit sunlight. Later that morning, McCullough again left his apartment and walked down the same darkened stairwell. This time, however, he lost his footing on the stairs because he could not see in the dark, fell, and was injured.

The darkened stairwell in which McCullough fell on the morning of October 5 was located about 40 feet down the hallway from the door to his apartment. A second stairwell which McCullough could have used to exit the building that morning was located about 80 to 100 feet down the hallway from the door to his apartment. The second stairwell had windows on the exterior of the building and was lighted with natural sunlight on the morning of October 5. McCullough testified that he knew about the second stairwell but had never used it. Despite having lived in the building for five years, he said he was unaware that the second stairwell was lighted by exterior windows.

In the event of power outages, Summit was equipped with an emergency power generator to provide light to the building, including the stairwells. There was evidence that the generator was required by law. When Summit first lost power, the generator worked briefly and restored power, but then failed sometime on October 4. Evidence showed that the generator may have failed because of flooding in the generator room. Evidence also showed that Summit immediately sought to have the generator repaired or replaced, however, it was not repaired or replaced before McCullough fell on October 5. Although the evidence shows that Summit acted diligently in attempting to repair or replace the generator after it failed on October 4, there was also evidence that Summit knew or should have known prior to October 4 that the generator was at risk of failing because of previous flooding in the generator room.

Obviously, the initial loss of power to the building caused by the severe storms cannot be attributed to any negligence by Summit. There is, however, evidence in the record creating a jury issue as to whether the lack of power to light the building and the stairwells on the morning of McCullough’s fall was caused by Summit’s negligent failure to provide a reliable emergency generator as required by law. Nevertheless, the general rule is that, even if Summit negligently created and knew about the hazardous darkened condition of the stairwell which caused McCullough’s fall, Summit would still not be liable for the fall if McCullough had equal or superior knowledge of the darkened condition of the stairwell. Although a landlord has a statutory duty to keep the premises in repair, the landlord is not an insurer of its tenant’s safety. OCGA §§ 44-7-13; 44-7-14; Standard Mgmt. Co. v. Scott, 229 Ga. App. 36, 38 (493 SE2d 216) (1997). Even where a landlord negligently allows a hazardous condition to exist on the premises, the landlord is not liable to a tenant injured by the hazard if the tenant had equal or superior knowledge of the hazard. Id. If the tenant was equally aware of the hazard and could have avoided it by the exercise of reasonable care, the case is subject to summary adjudication in favor of the landlord. Hall v. Thompson, 193 Ga. App. 574, 575 (388 SE2d 381) (1989). The record clearly shows that McCullough had equal knowledge of the darkened hazardous condition of the stairwell, yet chose to assume the risk of walking the stairs in the dark.

Although application of the “equal or superior knowledge rule” would support the grant of summary judgment in favor of Summit, the record shows that a factual issue precluding summary judgment is presented under the “necessity rule” exception to the “equal or superior knowledge rule.” The “necessity rule” tempers application of the “equal or superior knowledge rule” by recognizing that a tenant’s equal or superior knowledge of a hazard does not as a matter of law bar recovery against the landlord where a factual question exists as to whether, by necessity, the tenant had no alternative but to assume the risk and traverse a known hazard in order to enter or leave an apartment rented as the tenant’s dwelling place. Grier v. Jeffco Mgmt. Co., 176 Ga. App. 158, 159-160 (335 SE2d 408) (1985).

There is evidence that McCullough was not required to assume the risk of walking down a darkened stairwell to leave his apartment on the morning of October 5. Evidence showed there was another stairwell lighted through exterior windows on the building only 40 to 60 feet down the hallway from the darkened stairwell McCullough chose to use. But McCullough testified that, although he knew about the other stairwell, he never used it and never became aware during the five years he lived in the building that there were windows on the exterior of the building that provided light in the other stairwell. There was also evidence that McCullough and his wife maintained two residences. Although McCullough maintained a separate residence at Summit, there was evidence from which a jury could conclude that he had the alternative of staying at another residence rather than assuming the risk of the known hazardous conditions at Summit. On the present record, a jury issue was presented as to whether McCullough, by necessity, had no alternative but to assume the risk of traversing the hazardous conditions which caused his fall.

Decided April 13,1999.

Reid & Morgan, Donald W. Singleton, for appellant.

Cobb, Grabbe & Spillers, Nancy L. Pasterz, Nikolai Makarenko, Jr., for appellees.

       Although Summit claimed that its generator was well-maintained, McCullough offered evidence that Summit had carelessly located that generator in an area which sustained chronic flooding during rains.


text:
    A99A0064.
    ULTIMA REAL ESTATE INVESTMENTS, LLC et al. v. SADDLER.
    (516 SE2d 360)
   Blackburn, Presiding Judge.

We granted this interlocutory appeal to review the trial court’s denial of the defendants’, Ultima Real Estate Investments (Ultima) and J. C. Mervine, motion for summary judgment. Bobby Saddler brought the underlying complaint asserting slander pursuant to OCGA § 51-5-4 (a) (3) and breach of contract against the defendants.

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. Further, the standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) [(1991)]. 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. [Additionally,] [o]n motions for summary judgment, the court cannot resolve the facts or reconcile the issues.

(Citations omitted.) Adams v. Sears, Roebuck & Co., 227 Ga. App. 695, 696-697 (1) (490 SE2d 150) (1997).

The record reveals that Ultima hired Sadd-Co Properties, Inc. to perform interior finishing services at 1624 Virginia Avenue. Sadd-Co is owned by Bobby Saddler’s wife and son. After a dispute arose over the work and the charges therefor, Saddler, in his individual capacity, brought the underlying action pursuant to an oral assignment of the breach of contract cause of action. Saddler alleged Mervine made false statements to third parties regarding his business dealings with the intent to injure his business reputation. Specifically, Saddler alleged that Mervine told other tenants of the building where Saddler was doing business that Saddler did not know what he was doing and that he had intentionally underbid the job costs. Saddler also sought damages for breach of contract.

1. Saddler’s cause of action for slander against Mervine is based on OCGA § 51-5-4 (a) (3) which provides: “Slander or oral defamation consists in . . . [m]aking charges against another in reference to his trade, office, or profession, calculated to injure him therein.” Mervine contends that he is entitled to summary judgment because Saddler admitted that he did not have a trade, office, or profession. Although Saddler stated in his deposition that his wife and son owned Sadd-Co and that he had not been employed in the interior finishing business in the last five years, documents in the record indicate that Saddler submitted proposals and lien waivers on behalf of Sadd-Co. Construing this evidence in the light most favorable to Saddler, as the nonmovant, we find that the trial court correctly determined that issues of fact precluded the grant of Mervine’s motion for summary judgment on the slander claim.

2. Saddler contends that Sadd-Co’s oral assignment of its cause of action for breach of contract against Ultima was effective, citing McDonald v. Welding Specialty, 144 Ga. App. 303 (241 SE2d 18) (1977). However, the Court in McDonald recognized an assignment of an oral welding subcontract where all parties were informed of such assignment. The present case deals with an assignment of a cause of action, not an assignment of a contract. The law is clear that an assignment of another’s cause of action must be in writing. See Levinson v. American Thermex, 196 Ga. App. 291, 292 (1) (396 SE2d 252)(1990)

where the type of agreement on which the action is brought is alleged to be an assignment of a chose in action, and it is no more than an assignment, a mere purchase of another’s cause of action, it must be in writing if the assignee is to sue thereon in his own name in a purely legal action.

Decided April 13,1999.

Fred B. Wachter, for appellants.

S. Robert Hahn, Jr., for appellee.

Therefore, the trial court erred in denying Ultima’s motion for summary judgment on the breach of contract claim.

Judgment affirmed in part and reversed in part.

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


author: Judge Harold R. Banke.

text:
    A99A0122.
    FURGERSON et al. v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
    (516 SE2d 350)
   Judge Harold R. Banke.

Cambridge Mutual Fire Insurance Company (“Cambridge”) filed a declaratory judgment action to ascertain whether it was obligated to defend or to provide coverage to Jodi Dover or Larry Dover under the terms of the Dovers’ homeowners’ policy. The trial court found in favor of Cambridge.

In subsection 1.b.(1) of Section II — EXCLUSIONS, the Dovers’ policy excluded from coverage for personal liability or medical payments to others, bodily injury

arising out of or in connection with a business engaged in by an insured. This exclusion applies but is not limited to an act or omission, regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, or implied to be provided because of the nature of the business.

The business exclusion was contained in a four-page section entitled SUPPLEMENTAL PROVISIONS which deleted and replaced a previous version of exclusion subsection l.b “in all Forms and Endorsement HO-73.”

Endorsement HO-322 in the Dovers’ policy provided,

[i]f an insured regularly provides home day care services to a person or persons other than insureds and receives monetary or other compensation for such services, that enterprise is a business. Mutual exchange of home day care services, however, is not considered compensation. The rendering of home day care services by an insured to a relative of an insured is not considered a business. Therefore, with respect to a home day care enterprise which is considered to be a business, this policy: 1. does not provide Section II — Liability Coverages because business pursuits of an insured is [sic] excluded under exclusion l.b.(l) of Section II — Exclusions.

The coverage question arose from an incident occurring in the Dovers’ home on October 9, 1996 while Jodi Dover, the insured, was babysitting Blake Furgerson. It is undisputed that after Tina Furgerson discovered Dover’s services through a newspaper advertisement, she and Dover reached an agreement whereby Dover would be paid to care for Blake from about 7:30 a.m. to 5:30 p.m., Monday through Friday. From July 22, 1996 until the incident on October 9, Wendell and Tina Furgerson paid $65 per week to Jodi Dover for her in-home babysitting services of their infant son, Blake. Dover provided this daycare to Blake on a regular basis in her home as a means of earning additional income for her family. Other than her own children, Blake was the only child that Dover cared for. It is undisputed that Blake is not related to the Dovers and that there was no mutual exchange of services. Dover was not a licensed daycare provider within the meaning of OCGA § 49-5-3 (8).

After Blake Furgerson suffered a serious head injury purportedly caused by being violently shaken while in Jodi Dover’s care in the Dovers’ home, Cambridge sought judicial interpretation of the terms of the policy. Based on the undisputed factual evidence and the explicit terms of the policy, the trial court granted summary judgment to Cambridge finding no coverage for Blake Furgerson’s injury which occurred while Jodi Dover was operating a business as defined by endorsement HO-322. Enumerating two errors, Wendell Furgerson, Tina Furgerson, and Blake Furgerson appeal. Held:

1. The Furgersons contend that the trial court erroneously construed the evidence against coverage rather than in favor of coverage by ruling as a matter of law that Jodi Dover’s babysitting for Blake constituted a “business.”

Where an insurer seeks to invoke an exclusion contained in its policy, it has the burden of showing both the existence of the exclusion and its applicability. Darby v. Interstate &c. Ins. Co., 107 Ga. App. 409 (1) (130 SE2d 360) (1963). Exceptions and exclusions to coverage must be construed strictly in favor of the insured and against the insurer. Sovereign Camp Woodmen &c. v. Heflin, 188 Ga. 234, 235 (2) (3 SE2d 559) (1939).

Notwithstanding these rules of insurance contract construction, however, where the policy language is clear, explicit, and unambiguous, as here, its interpretation is a matter for the court. Marsh v. Chrysler Ins. Co., 169 Ga. App. 639, 640 (1) (314 SE2d 475) (1984); OCGA § 13-2-1. Policy terms cannot be ignored or rewritten to provide coverage where there is none. Pacific Indem. Co. v. N. A., Inc., 120 Ga. App. 793, 794 (1) (172 SE2d 192) (1969). Instead, “[w]here the meaning [in an insurance contract] is plain and obvious, it should be treated as literally provided therein.” Genone v. Citizens Ins. Co., 207 Ga. 83, 86 (1) (60 SE2d 125) (1950).

Here, the insurance contract defined “business” to mean providing regular, in-home, daycare services for as few as a single person unrelated to the insureds, and for which monetary compensation was received. As of the date of the incident, Jodi Dover had been providing regular, daycare services, for ten consecutive weeks, in her home, to a non-relative, Blake Furgerson, and had been receiving monetary compensation for those services. These facts fit squarely within the unambiguous exclusion. Consequently, Cambridge was entitled to judgment as a matter of law. Pacific Indem., 120 Ga. App. at 796 (2).

Notwithstanding the Furgersons’ claim to the contrary, Nationwide Mut. Fire Ins. Co. v. Collins, 136 Ga. App. 671 (222 SE2d 828) (1975) neither demands nor authorizes a different result. In Collins, unlike here, the homeowners’ policy contained this illustration: “LIABILITY FEATURE PROTECTS you against claims arising from accidents to others involving: [c]hildren under 21 in your care.” Collins, 136 Ga. App. at 676. Moreover, given the explicit language here, the Furgersons’ “babysitting for pinmoney” argument has no application to this case. Compare Collins, 136 Ga. App. at 674. Similarly, the Furgersons’ reliance on United Svcs. Auto. Assn. v. Lucas, 200 Ga. App. 383, 385 (1) (408 SE2d 171) (1991) (physical precedent only) is misplaced. In Lucas, unlike here, the insurance policy’s sole definition of “business” was “trade, profession or occupation.” Id.

2. The Furgersons assert that the trial court erred by ruling that the “usual to non-business pursuits” exception to the business exclusion did not apply.

But, in this case, there is no question regarding whether the “usual to non-business” activity exception applied since that provision had been deleted from the policy by the “Supplemental Provisions.” Instead, this policy expressly foreclosed coverage for personal injuries “arising out of or in connection with a business engaged in by an insured,” including but not limited to any “act or omission, regardless of its nature or circumstance. . . .” Engaging in a business was specifically defined to include regular daycare services of the type Jodi Dover provided.

Decided April 13,1999.

Alembick, Fine & Callner, Mark E. Bergeson, for appellants.

Strickland & Strickland, Charles D. Strickland, Steven A. Hathorn, for appellee.

Under our law, “ [c]ourts have no more right by strained construction to make an insurance policy more beneficial by extending the coverage contracted for than they would have to increase the amount of coverage.’ [Cit.]” Jefferson Pilot Life Ins. Co. v. Clarke, 202 Ga. App. 385, 388 (2) (414 SE2d 521) (1991). Blake Furgerson sustained bodily injury in connection with a business conducted in the home of the insured, Jodi Dover. No evidence or testimony suggested otherwise. Therefore, summary judgment was proper. Bates v. Guaranty Nat. Ins. Co., 223 Ga. App. 11, 15 (2) (476 SE2d 797) (1996).

Judgment affirmed.

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

       The deleted version of subsection l.b excluded business pursuits from personal liability coverage but contained the following exception: “[t]his exclusion does not apply to (1) activities which are usual to non-business pursuits.”

       Jodi Dover was indicted for one count of child cruelty “for vigorously shaking said child.” During her deposition, Jodi Dover repeatedly invoked the Fifth Amendment, steadfastly refusing to respond to questions about how Blake’s injuries occurred. Tina Furgerson testified that Dover telephoned her at work saying, “Blake’s been crying all morning and now I can’t wake him up. Do you want me to call 911?” Doctors told the Furgersons that Blake’s brain damage had been caused by being shaken.


author: Ruffin, Judge.

text:
    A99A0125.
    CHASTAIN v. THE STATE.
    (516 SE2d 362)
   Ruffin, Judge.

A jury found Stephen Pepsi Chastain guilty of improper use of a probationary license and no proof of insurance, and the trial court sentenced him to six months. On appeal, Chastain contends the trial court erred in failing to grant his motion for discharge and acquittal. Because this contention lacks merit, we affirm.

We note initially that both Chastain and the State have violated Court of Appeals Rule 27 by failing to cite the record. “We have repeatedly held that it is not the function of this court to cull the record on behalf of a party.” (Punctuation omitted.) Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997). However, because the record in this case is very short and the issue is narrow, we will exercise our discretion and resolve this appeal on its merits. Id.

We further note that both Chastain and the State attempt to supplement the record with attachments to briefs. ££[P]arties cannot supplement the record merely by attaching matters to . . . their briefs.” State v. Ganong, 221 Ga. App. 250 (470 SE2d 794) (1996). Accordingly, we have not taken into account any attachment to the brief of either party in reaching our decision.

By accusation filed August 22, 1997, the State accused Chastain of improperly using his probationary driver’s license and driving with no proof of insurance. On December 11, 1997, Chastain filed a “Demand for Trial,” which stated: “Comes now, Stephen P. Chastain, and there being jurors duty [sic] sworn demands trial by jury.” On August 21, 1998, Chastain moved for discharge and acquittal pursuant to OCGA § 17-7-170, which provides:

Decided April 13,1999.

Frank B. Perry, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melodic S. Bedford, Assistant District Attorney, for appellee.

(a) Any person against whom ... an accusation is filed . . . may enter a demand for trial at the court term at which the . . . accusation is filed.
(b) If the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the . . . accusation.

The trial court denied Chastain’s motion on August 25, 1998. Chastain contends that the State failed to timely try him and he is therefore entitled to acquittal as a matter of law.

Contrary to Chastain’s contention, he was not entitled to an acquittal since he never invoked his right to a speedy trial. “[A] demand for trial will not be considered sufficient to invoke the extreme sanction of . . . OCGA § 17-7-170 unless it is presented for what it is — a demand to be tried within the next succeeding term of court.” (Punctuation omitted.) Ferris v. State, 172 Ga. App. 729, 731 (1) (324 SE2d 762) (1984). “A written demand for a jury [trial] is not analogous to a demand for trial pursuant to OCGA § 17-7-170.” (Punctuation omitted.) Boyd v. State, 200 Ga. App. 591 (2) (409 SE2d 44) (1991). Here, nothing in Chastain’s written demand invokes OCGA § 17-7-170 or demands that he be tried during the current or next succeeding term of court. Rather, the demand simply documents Chastain’s request to be tried by a jury. Accordingly, the trial court did not err in denying Chastain’s motion for discharge and acquittal. Boyd, supra; Daniels v. State, 235 Ga. App. 296, 298 (2) (509 SE2d 368) (1998).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: Barnes, Judge.

text:
    A99A0374.
    TURNER v. THE STATE.
    (516 SE2d 343)
   Barnes, Judge.

A jury found Norman Turner guilty of two counts of armed robbery. Turner appeals, contending (1) there is insufficient evidence to support one of his armed robbery convictions; (2) the trial court erred when it failed to charge the jury on the lesser included offense of robbery by intimidation; (3) the trial court should not have admitted evidence of his escape from the county jail before his trial; and (4) he received ineffective assistance of counsel because his lawyer failed to object to the jury charge. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that on July 29, 1995 around 3:30 a.m., Turner purchased black pantyhose at a Lil’ Champ convenience store with the assistance of the store clerk, Alvin Wilson. Wilson testified that Turner was wearing a gray and blue jogging suit and a bandana on his head. Wilson observed that Turner was wearing the jogging suit over a pair of green pants and also noticed that Turner took off a pair of dark sunglasses as he entered the store.

Wilson recognized Turner as an occasional customer and watched where Turner went when he left the store. Wilson testified that he saw Turner pull the pantyhose out of its container and throw the container away as he walked across the street toward the Holiday Inn. He lost sight of Turner when he entered a parking lot.

Jim Rutland testified that on July 29, 1995, he was working as a night manager for the Holiday Inn. In the early morning hours, a man entered the motel and asked for a room. He was wearing a “do-rag” on his head, a gray and blue sweatsuit, and turtle shell sunglasses with dark green lenses. He also had a black stocking hanging around his neck.

Rutland told the man he did not have any available rooms and turned around to go back to his desk. When he caught a glimpse of movement out of the corner of his eye, Rutland turned around and saw that the man had pulled a stocking over his face and placed his hand in a sack. Rutland testified that the man “had the bag stuck over his hand and pointed at me” while saying “Give me the money — just the big bills.” Rutland gave the man the money because he presumed he had a gun in the sack. He admitted that he did not know if the man had a gun in the sack, but explained that he did not want to question it. After taking the money, the man told Rutland to step away from the counter and left. Rutland then called 911.

Wilson testified that the appellant returned to the Lil’ Champ convenience store the next evening with a handgun and robbed it. Police dogs tracked the appellant’s scent from the Lil’ Champ to his home. After learning the appellant’s name through a neighbor, the police showed Wilson a photo line-up of six men, including the appellant. Wilson identified the appellant as the man who had purchased black pantyhose and also robbed his store. The police arrested the appellant and found a gray and blue sweatshirt jacket and a black bandana in his room.

Rutland testified that the appellant “sort of looked like” the person who had robbed him at the Holiday Inn and that he was not sure that the appellant was the robber because he only saw the robber for 20 or 30 seconds. Rutland further testified that the gray and blue sweatshirt found in the appellant’s apartment was identical to the clothing worn by the robber.

1. In his first enumeration of error, Turner contends there was insufficient evidence to support his conviction of armed robbery of Rutland at the Holiday Inn. Turner concedes there was sufficient circumstantial evidence to show his presence at the scene of the crime. He bases his insufficiency claim on the lack of evidence showing he had a gun.

Under our law,

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

OCGA § 16-8-41 (a). In Moody v. State, 258 Ga. 818, 819-820 (1) (375 SE2d 30) (1989), the Supreme Court examined the “any replica, article, or device having the appearance of such weapon” portion of the Code section and determined that it does not require a victim to actually see an offensive weapon.

Since the purpose of [this language] is to create a reasonable apprehension on the part of the victim that an offensive weapon is being used, it is immaterial whether such apprehension is created by use of the sense of vision or by any other sense, provided that the apprehension is reasonable under the circumstances.

Id. Thus, if a victim reasonably apprehends that an offensive weapon is being used, the “appearance” element for an armed robbery conviction will be satisfied. Id.

In Brown v. State, 199 Ga. App. 773 (406 SE2d 248) (1991), we found sufficient evidence to support an armed robbery conviction based on the victim’s testimony that an intruder in her home “pulled something out of his pocket and pointed it at [her],” while demanding that she drop her gun. The victim testified that she dropped her gun because she believed that the intruder also had a gun.

As in Brown, the evidence in this case supports the conclusion that Rutland reasonably apprehended that Turner had a gun even though he never saw a gun. The evidence shows that Turner turned back toward the victim with a stocking over his face after he had already been told no rooms were available. At the same time, he pointed his hand, which was covered by a sack, toward the victim and demanded money. This conduct would cause apprehension that Turner had a gun in any reasonable person. As a result, we find sufficient evidence to support Turner’s armed robbery conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Turner contends the trial court erred when it failed to charge the jury on the lesser included offense of robbery by intimidation. We find no merit in this enumeration because no written request for this charge was made below. A trial court’s failure to charge on a lesser included offense is not error when no written request is made for the charge. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976).

3. In his third enumeration, Turner asserts the trial court erred when it allowed the State to present evidence that he escaped from the county jail approximately five months after his arrest while he was awaiting trial. According to Turner, the five-month period between his arrest and his escape was too long to support the conclusion that his escape was due to consciousness of guilt.

We find no merit in this enumeration. The State is entitled to offer evidence of flight while a defendant is awaiting trial and argue that it demonstrates consciousness of guilt. Renner v. State, 260 Ga. 515, 518 (3) (b) (397 SE2d 683) (1990); Welborn v. State, 236 Ga. 319, 320 (223 SE2d 698) (1976); Carver v. State, 137 Ga. App. 240, 242 (1) (223 SE2d 275) (1976). The amount of time that lapsed is “a factor to be weighed by the jury, along with the other circumstances surrounding the flight, to determine if the flight was due to a sense of guilt or some other reason.” Carver, supra, 137 Ga. App. at 242. See also Smith v. State, 184 Ga. App. 739, 740-741 (362 SE2d 384) (1987).

4. In his final enumeration of error, Turner complains he received ineffective assistance of counsel because his trial counsel failed to reserve objections at the conclusion of the trial court’s charge. According to Turner, his counsel’s failure to reserve objections waived his right to appeal the trial court’s failure to charge on robbery by intimidation as a lesser included offense.

During the hearing on Turner’s motion for new trial, his trial counsel testified that Turner’s sole defense at trial was that the State was prosecuting the wrong person because he did not commit the crimes. She further testified that she did not request a charge on the lesser included offense of robbery by intimidation because she believed it would have been inconsistent and detrimental to Turner’s case to assert that he was not present when the crime was committed and at the same time ask the jury to find that he committed robbery by intimidation instead of armed robbery. Finally, she explained that she did not reserve any objections to the jury charge because she did not have any objections to the charge. Turner also testified in the hearing and admitted telling his trial counsel that he was not present at the time the crime was committed.

Decided April 13,1999.

McGee & McGee, James B. McGee III, for appellant.

At the conclusion of the hearing, the trial court denied Turner’s motion for new trial, finding he failed to prove that the performance of his trial counsel was deficient and that the outcome of the trial would have been different absent her alleged deficiencies.

We must affirm a trial court’s finding that a defendant has not been denied effective assistance of counsel unless it is clearly erroneous. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996). In order to prevail on a claim of inadequacy of counsel, Turner bears the burden of proving that his trial counsel’s performance was deficient and that this deficient performance prejudiced his defense by creating a reasonable probability of a different outcome but for the errors of his trial counsel. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459, 462 (2) (396 SE2d 891) (1990).

In this case, the decision of Turner’s counsel not to request a charge on the lesser included offense of robbery by intimidation and, instead, to pursue an all-or-nothing defense was a matter of trial strategy. Milliken v. State, 230 Ga. App. 810, 812-813 (2) (b) (498 SE2d 127) (1998); Harshaw v. State, 222 Ga. App. 385, 387 (2) (474 SE2d 226) (1996). “As a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Milliken, supra, 230 Ga. App. at 812. Based on the all-or-nothing defense strategy of Turner’s trial counsel, her failure to object to the jury charge does not amount to a deficient performance. Id. The trial court did not clearly err when it denied Turner’s motion for a new trial based upon ineffective assistance of counsel.

Judgment affirmed.

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

Richard E. Currie, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.