author: McMurray, Presiding Judge.

text:
    A98A1171.
    BUSCH v. THE STATE.
    (527 SE2d 604)
   McMurray, Presiding Judge.

In Busch v. State, 234 Ga. App. 766 (507 SE2d 868), we affirmed defendant Busch’s judgments of conviction, remanded the case to the trial court in Divisions 4 (b), (c), and (d) for resentencing under several counts of the indictment, and held in Division 6 of our opinion that “[t]he trial court did not err in sentencing defendant to seven consecutive five-year sentences for being convicted of possession of a firearm during the commission of a crime under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment.” Id. at 769 (6). The basis of this holding was our determination that “the trial court did not have discretion [under OCGA § 16-11-106 (b)] to impose concurrent five-year sentences for defendant’s convictions under Counts 5, 6, 9, 13, 16, 19 and 21 of the indictment.” Id. The Supreme Court of Georgia did not agree with this holding in Division 6 and reversed our judgment in Busch v. State, 271 Ga. 591 (523 SE2d 21) (1999), holding that OCGA § 16-11-106 (b) mandates consecutive sentencing only as to the particular felony during the commission of which the defendant possessed a firearm. Accordingly, our judgment in the case sub judice is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court. The case sub judice is hereby remanded for resentencing according to the Supreme Court of Georgia’s holding and according to our holding in Divisions 4 (b), (c), and (d) of Busch v. State, 234 Ga. App. 766, supra.

Decided January 10, 2000.

Elizabeth Lane, for appellant.

Kelly R. Burke, District Attorney, Amy E. Lambert, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part and case remanded for resentencing.

Blackburn, P. J., and Eldridge, J, concur.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A1774.
    IMAGING SYSTEMS INTERNATIONAL, INC. et al. v. MAGNETIC RESONANCE PLUS, INC.
    (527 SE2d 609)
   Phipps, Judge.

Imaging Systems International, Inc. and North Georgia Diagnostic Imaging, L.P. (collectively “ISI”) appeal an award of $32,002 in attorney fees to Magnetic Resonance Plus, Inc. (“MRP”). MRP had agreed to service and repair magnetic resonance imaging equipment for ISI under the terms of a service contract. After ISI terminated the service contract without giving MRP the required 30 days notice and opportunity to remedy any material default, MRP sued ISI for breach of contract. The trial court awarded MRP $21,584.37 in damages for lost profits and $32,002 in attorney fees. The attorney fees were awarded pursuant to a service contract provision that, “[i]n the event any proceeding or lawsuit is brought by MRP or [ISI] in connection with the Agreement, the prevailing party in such proceeding shall be entitled to receive its . . . reasonable attorney’s fees.”

On appeal this court vacated the awards to MRP for lost profits and attorney fees. In the appeal, the parties did not address whether an award of attorney fees under the service contract was proper in the absence of an award of damages for lost profits. We remanded the action, stating that “the trial court should consider whether, in light of the holdings of this opinion, MRP is entitled to attorney fees under the contract.”

On remand, the trial court found that because this court did not disturb the trial court’s finding that ISI breached the service contract, MRP was the prevailing party on its breach of contract claim. The trial court then found that MRP’s attorney fees for litigating the contract dispute were $32,002 and awarded that amount to MRP. We reverse because MRP obtained no relief from the lawsuit and thus was not the “prevailing party” in the ordinary meaning of the term.

We must ascertain whether the trial court’s judgment was based upon an erroneous legal conclusion. “ ‘Initially, the construction of the contract is a question of law for the court.’ ” “ ‘If the terms used are clear and unambiguous [,] they are to be taken and understood in their plain, ordinary, and popular sense.’ ”

The question before the trial court was whether, within the meaning of the service contract, MRP prevailed in the underlying action. MRP recovered no monetary damages but argues that to prevail in a lawsuit it is not necessary to recover actual damages. For example, in Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., a lease provided that if the landlord should bring suit for possession of the premises, the prevailing party in that action would be entitled to recover attorney fees. The landlord was awarded possession of the premises in a dispossessory action and was thus the “prevailing party” on that issue and, under the terms of the lease, entitled to attorney fees even though no monetary damages were awarded.

MRP did not recover monetary damages in the underlying action, and neither did it otherwise establish a right to nonmonetary relief as in Hardwick. Although the cases addressing payment of costs under OCGA § 9-15-1 or attorney fees under OCGA § 13-6-11 are not controlling here, they do stand for the proposition that a plaintiff who is granted no relief does not prevail. For instance, a plaintiff may receive a directed verdict on liability in a civil case and yet be assessed costs as the loser because he failed to recover any damages. This situation is analogous. Although MRP showed that ISI technically breached the service contract, no remedy was forthcoming for the breach.

Decided January 10, 2000

Chambers, Chambers & Chambers, Timothy D. Chambers, John W. Chambers, Jr., for appellants.

Gaslowitz & Associates, Adam R. Gaslowitz, Timothy J. McGann, Walter Hamberg III, for appellee.

Interpreting the language of the service contract in its plain, ordinary and popular sense, we find that MRP was not the prevailing party in the underlying action. Therefore, it is not entitled to recover attorney fees.

ISPs second assertion of error, addressing the improper award of attorney fees incurred in connection with issues on which MRP was not successful, is moot.

Judgment reversed.

Johnson, C. J., and McMurray, P. J., concur.

        Imaging Systems Intl. v. Magnetic Resonance Plus, 227 Ga. App. 641 (490 SE2d 124) (1997).

       Id. at 646 (3).

        Nucor Corp. v. Meyers, 211 Ga. App. 787, 788-789 (1) (440 SE2d 531) (1994).

        Rohm & Haas Co. v. Gainesville Paint &c. Co., 225 Ga. App. 441, 443 (2) (b) (483 SE2d 888) (1997).

        Wickcliffe v. Wickcliffe Co., 227 Ga. App. 432, 435 (2) (489 SE2d 153) (1997).

       184 Ga. App. 822, 824-825 (2) (363 SE2d 31) (1987).

       Id.

        Ellis v. Gallof, 220 Ga. App. 518, 519 (1) (469 SE2d 288) (1996) (plaintiffs must prevail on their basic cause of action in order to obtain litigation expenses); see also Herrli Homes v. Roon, 175 Ga. App. 85, 87 (3) (332 SE2d 379) (1985) (plaintiff must recover damages before he can recover expenses of litigation); but see Barnett v. Morrow, 196 Ga. App. 201, 203 (396 SE2d 11) (1990) (court has permitted recovery of attorney fees in equity cases where there was no monetary recovery but where equitable relief was granted).

        King v. Loyd, 170 Ga. App. 638, 640 (2) (317 SE2d 879) (1984); King v. Cox, 130 Ga. App. 91, 93 (6) (202 SE2d 216) (1973).


text:
    A99A1903.
    PHILLIPS v. THE STATE.
    (527 SE2d 604)
   Phipps, Judge.

Phillips appeals his convictions of the rape, aggravated child molestation, and child molestation of his niece, K. P. Over hearsay objection, the trial court admitted testimony concerning out-of-court statements by K. P. and her sister, S. R, that were consistent with the testimony given by them. The trial court admitted the hearsay under Gibbons v. State and Cuzzort v. State. The hearsay testimony was, however, inadmissible under Cuzzort as clarified in Woodard v. State. Although the out-of-court statements by the victim may have been admissible under the Child Hearsay Statute, the improper admission of the hearsay statements of her sister in and of itself necessitates a reversal.

The indictment charged Phillips with committing various acts of rape and molestation between early 1990 and late 1993. The trial was held in 1997. K. R, born in 1981, was 16 years old at trial. S. R, born in 1983, was 13 years old.

In spring 1990, K. P. and S. P. began living with their paternal grandmother, Phillips’s mother, because their mother had suffered a mental breakdown and was institutionalized for approximately five months. During that time, the paternal grandmother was appointed guardian for the children’s mother. After her release, K. R, S. R, and their mother lived with the grandmother until June 1992.

According to the mother, in 1993, her daughters returned from a weekend visit with their grandmother, and S. P. informed her that Phillips, who lived in a trailer near the grandmother’s house, had been hurting K. P. When confronted, K. P. confirmed what her sister had said.

K. P. testified that, beginning when she was about eight or nine years old, Phillips began molesting her by fondling and placing his mouth on her breasts and vagina, by having her fondle his penis, by placing his penis on her vagina and in her mouth, by digitally penetrating her vagina and attempting to force his penis into it, and by showing her pornographic videotapes and attempting to have her perform the acts depicted. K. P. testified that these incidents occurred at her grandmother’s house and at Phillips’s trailer and that, at times, her younger sister, S. R, was present. At trial, K. P. explained that she did not initially report the molestation to anyone because Phillips told her she would be blamed, but that she later admitted what had happened when confronted by her mother.

S. P. testified that she had observed Phillips do things to K. P. that made S. P. feel uncomfortable. S. P. specified that on one occasion, she observed Phillips pull down his pants when he and K. P. were alone in a room.

The Department of Family & Children Services investigator interviewed K. P. and S. P. during the 1993 school year. Over hearsay objection, she testified to statements the children made which were consistent with their trial testimony. The investigating police officer interviewed both children during the same time period. He too testified to out-of-court statements made by the children that were consistent with their testimony at trial. And he was allowed to compare each child’s in-court testimony to her out-of-court testimony as he testified to the consistency of their statements.

A similar transaction witness, Phillips’s first cousin, testified that, on an occasion when she was alone with Phillips at his mother’s house, when she was approximately five years old, Phillips offered her money if she would place her mouth on his penis and then forced her to perform oral sex on him and fondle him after giving her drugs.

Phillips’s mother and his former roommate testified that Phillips and K. P. had not been alone together. Phillips’s stepfather testified that following a guardianship hearing in 1990, he overheard the children’s mother say she would get even with the grandmother “even if she had to use the girls.” K. P.’s former best friend testified that in 1994 she had heard K. P. say that the acts of molestation had never occurred and that her mother was just trying to obtain money. A friend of K. P.’s family testified that in June 1995, K. P. confided to him that her mother had put her up to saying that she was molested and that it had not happened.

Although Phillips does not complain of the admission of the DFACS investigator’s hearsay testimony, he does charge the trial court with error in overruling his hearsay objection to the investigating officer’s testimony to out-of-court statements by the children.

Gibbons held that a prior inconsistent statement of a witness who testifies at trial and is subject to cross-examination is admissible as substantive evidence and not merely for impeachment purposes. Cuzzort extended the Gibbons rule to allow admission in evidence of a prior consistent statement of a witness who testifies and is subject to cross-examination at trial.

But in the key case of Woodard v. State, the Supreme Court of Georgia held that Cuzzort had been improperly construed (1) to permit admission of a witness’s prior consistent statement regardless of whether the veracity of the witness had been challenged on cross-examination and (2) to eliminate the need for any inquiry into whether a prior consistent statement was offered solely for the purpose of bolstering a witness’s credibility. Woodard concluded that prior consistent statements are admissible only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.

Importantly, Woodard held that only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination is a witness’s veracity placed in issue so as to permit the introduction of a prior consistent statement. Even then, the prior consistent statement may be admitted as nonhearsay only if it was made before the motive or influence came into existence or before the time of the alleged recent fabrication. Otherwise, it is pure hearsay, which cannot be admitted merely to bolster the witness’s credibility

The charge here is that the mother improperly influenced the children because of her antagonism toward their grandmother after the grandmother was appointed her guardian. The mother’s motive to exert the influence would have arisen at the time of the guardianship hearings in 1990. The children made the out-of-court statements to the investigating officer (as well as the DFACS investigator) in 1993. It thus does not appear that the extrajudicial statements of the children were made before the improper influence came into existence. Therefore, the hearsay testimony of the officer (and of the DFACS investigator) as to these statements was not admissible under Cuzzort.

Was such testimony admissible on other grounds? Under certain circumstances, the Child Hearsay Statute authorizes admission of hearsay statements of children in cases of sexual abuse. Although this statute was not invoked in this case, it is arguable that testimony as to the out-of-court statements of the victim was admissible under this statute. The same cannot, however, be said of the extrajudicial statements of her sister. This is so because that part of the statute authorizing admission of hearsay by child witnesses was held unconstitutional in Woodard.

Does harmful error appear?

“The test for harmful error is whether it is highly probable that the error contributed to the [verdict]. In determining whether hearsay testimony is harmful, this [c]ourt has found inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict. . . .’’[Cits.]

In deciding whether the testimony of the investigating officer could have affected the verdict, the first question we address concerns Phillips’s failure to raise an appellate challenge to the admission of the DFACS investigator’s testimony as to the children’s out-of-court statements. Was any error in admission of the officer’s testimony rendered harmless because it was cumulative of the testimony of the DFACS investigator? We must answer this question in the negative because there was an objection to the DFACS investigator’s testimony at trial, the objection was meritorious, and the testimony was improperly admitted. Improper admission of hearsay evidence may be harmless only if it is cumulative of other “legally admissible” evidence of the same facts.

Here, there was no physical evidence. The State’s case turned on the credibility of testimony given by prosecution witnesses, primarily K. P. and S. P. The testimony of a number of defense witnesses raised serious questions as to the credibility of these children. The improper bolstering of their credibility with the hearsay testimony added critical weight to the State’s case and did contribute to the verdict. Even if the officer’s testimony as to the victim’s out-of-court statements was admissible under the Child Hearsay Statute, the improper admission of the hearsay statements of her sister requires this case to be reversed.

Decided January 10, 2000.

Christopher W. Duncan, Sean A. Black, for appellant.

Lydia J. Sartain, District Attorney, Scott A. Drake, Assistant District Attorney, for appellee.

We need not address the remaining assertions of error, except to note that it is error for a trial court to admit similar transaction evidence without first conducting the admissibility hearing required by Uniform Superior Court Rule 31.3 (B).

Judgment reversed.

Johnson, C. J., and McMurray, P. J., concur.

       248 Ga. 858, 862 (286 SE2d 717) (1982).

       254 Ga. 745 (334 SE2d 661) (1985).

       269 Ga. 317 (496 SE2d 896) (1998).

       OCGA § 24-3-16.

       Id. at 319, n. 14.

       Id. at 320.

       See OCGA § 24-3-16.

       See generally Gregg v. State, 201 Ga. App. 238, 240-241 (2) (b) (411 SE2d 65) (1991).

       269 Ga. at 321-323 (3).

        Wright v. State, 226 Ga. App. 499, 500-501 (2) (486 SE2d 711) (1997).

       See Carter v. State, 238 Ga. App. 708, 711 (2) (520 SE2d 15) (1999).

       See Woodard, supra at 324 (4).

        White v. State, 213 Ga. App. 429 (1) (445 SE2d 309) (1994).


author: Johnson, Chief Judge.

text:
    A99A2369.
    JONES v. STATE OF GEORGIA.
    (527 SE2d 611)
   Johnson, Chief Judge.

The primary question in this forfeiture case is whether the trial court erred in dismissing Bruce Jones’ answer and entering judgment of forfeiture based on Jones’ failure to include in his answer information required by the forfeiture statute. We conclude that the trial court acted properly and thus affirm.

The State of Georgia filed a complaint seeking forfeiture of cocaine, marijuana, a Lincoln Towncar and its electrical components, and $622 seized by law enforcement officers when they stopped Jones as he drove the Towncar with what they suspected were illegally tinted windows. Jones answered the complaint, claiming ownership of the car, its components, and the money but denying any knowledge of the drugs and all other allegations contained in the complaint. The State moved to dismiss Jones’ answer, contending that the pleading did not meet the requirements of OCGA § 16-13-49 (o) (3). After a hearing, the trial court granted the State’s motion to dismiss the answer. Shortly thereafter, the trial court entered judgment of forfeiture. This appeal follows.

1. At the outset we note that the form of Jones’ pro se brief does not comply with the rules of this court. The sequence and content of his nine enumerations of error bear little resemblance to the sequence and content of the ten arguments made in his brief. Many of the arguments are intermingled, and others are completely unrelated to any of the enumerated errors.

This court requires that there be a direct and logical relationship between the enumerations of error and the arguments contained in the briefs. Court of Appeals Rule 27 (c) (1). We created the requirements as to the form of appellate briefs not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by the court. Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996). As presented, Jones’ arguments are extremely difficult to decipher. Nonetheless, we will exercise our discretion to consider what we believe are the main arguments presented, to the degree that we are able to discern them. See Ray v. Ford Motor Co., 237 Ga. App. 316 (514 SE2d 227) (1999).

2. The trial court did not err in dismissing Jones’ answer as insufficient. The sufficiency of an answer to a forfeiture petition must be judged in light of the specific statutory requirements. Dennis v. State of Ga., 224 Ga. App. 11 (1) (479 SE2d 380) (1996). The forfeiture statute expressly requires that the answer be verified and contain certain factual information, such as: the address at which the claimant will accept mail; the nature and extent of the claimant’s interest in the property; the dates and circumstances of the claimant’s acquisition of the interest in the property; the identity of the transferor; the specific provision of the Code section relied upon in asserting that the property is not subject to forfeiture; all essential facts supporting each assertion; and the precise relief sought. OCGA § 16-13-49 (o) (3) (B)-(G). Jones’ answer was not verified and did not include any of the information required by subparts (o) (3) (B)-(G).

The pleading requirements of the forfeiture statute have been strictly construed by our courts. Jett v. State of Ga., 230 Ga. App. 655, 657 (3) (498 SE2d 274) (1998). The failure to timely file an answer in strict compliance with the specific pleading requirements of the forfeiture statute results in dismissal. Id. The trial court did not err in dismissing Jones’ answer and in entering judgment of forfeiture. See Mitchell v. State of Ga., 217 Ga. App. 282 (457 SE2d 237) (1995).

3. Jones asserts that no answer was required because the affidavit the State filed with the complaint was not sufficient and the complaint, therefore, was not valid. Specifically, he states that the affidavit was not made by someone with personal knowledge of the facts supporting the forfeiture.

The statute requires that a complaint for forfeiture be “verified on oath or affirmation by a duly authorized agent of the state in a manner required by the laws of this state.” OCGA § 16-13-49 (o) (1). In this case, the assistant district attorney signed a verification in which he swore under oath that “the facts contained in the foregoing complaint for condemnation are true and correct to the best of his knowledge and belief.” In proceedings brought under the forfeiture statute, a district attorney’s verification that the allegations are true and correct to the best of his knowledge and belief is a proper verification by a duly authorized agent of the state. Chester v. State of Ga., 168 Ga. App. 618, 620 (2) (309 SE2d 897) (1983). Thus, the affidavit here was proper.

Decided January 10, 2000.

Bruce Jones, pro se.

Ralph M. Walke, District Attorney, Trade J. Hobbs, Assistant District Attorney, for appellee.

We note that the cases upon which Jones relies for his argument pertain to affidavits or evidence submitted in support of motions for summary judgment in tort or guardianship cases. See Hill v. Loren, 187 Ga. App. 71, 72 (1) (369 SE2d 260) (1988); Davidson v. American Fitness Centers, 171 Ga. App. 691, 692-693 (2) (320 SE2d 824) (1984); Davis v. Haupt Bros. Gas Co., 131 Ga. App. 628, 629 (2) (206 SE2d 598) (1974). The requirements of the specialized, forfeiture statute ordinarily prevail over the more general requirements of the Civil Practice Act. See Lee v. State of Ga., 225 Ga. App. 733, 735 (484 SE2d 777) (1997). His argument is without merit.

4. Jones filed numerous motions challenging the forfeiture petition in the trial court, such as motions to suppress, to strike affidavit, to discover, to dismiss complaint, and to admit evidence. He argues that the trial court erred in not considering the motions. However, in the absence of a legally sufficient answer, the trial court was without authority to consider his motions. See Tuggle v. State of Ga., 224 Ga. App. 353, 355-356 (3) (480 SE2d 353) (1997); Greene v. State of Ga., 220 Ga. App. 292 (469 SE2d 428) (1996). Furthermore, having reviewed the bases of these motions, we find no harm in the trial court’s failure to rule upon the motions. See generally Robinson v. State of Ga., 209 Ga. App. 446, 448 (2) (433 SE2d 707) (1993).

Judgment affirmed.

McMurray, P. J., and Phipps, J, concur.


text:
    A00A0123.
    SMITH v. THE STATE.
    (527 SE2d 608)
   McMurray, Presiding Judge.

Defendant entered guilty pleas to each of the charges in an indictment charging him with armed robbery, kidnapping, driving under the influence of alcohol or drugs to an extent that it was less safe for him to drive, driving with a suspended license, fleeing or attempting to elude a police officer, and reckless driving. Because defendant had previously been adjudicated for two offenses in Florida which would have each amounted to an armed robbery offense had the crimes been committed in Georgia, the trial court determined that defendant is a serious violent felon under OCGA § 17-10-6.1 (a) (2) (defining armed robbery as a serious violent felony) and sentenced him to life in prison without parole for the armed robbery offense as required by OCGA § 17-10-7 (b) (2). This appeal followed. Held:

1. Defendant contends the trial court erred in sentencing him to life in prison without parole under OCGA § 17-10-7 (b) (2), arguing that the charging instrument which the State proffered to show that he had been convicted in Florida of two serious violent felonies (“the Florida indictment”) did not indicate that these offenses were serious violent felonies under OCGA § 17-10-6.1 (a) (2). We do not agree.

Defendant agreed at the sentencing hearing to the admission into evidence of a certified copy of the Florida indictment. This two-count indictment shows that defendant was convicted in Florida for committing two robbery offenses on July 17, 1982. Although the language of the Florida indictment does not track Georgia’s armed robbery statute, the Florida indictment’s language describes that defendant was in possession of a shotgun when he forcefully and violently took valuables from two victims. This is sufficient to prove that defendant was convicted of two offenses in Florida which would have each been the serious violent felony of armed robbery had the offenses been committed in Georgia. OCGA § 17-10-7 (b) (2). A person commits the offense of armed robbery in Georgia when, with intent to commit theft, he “takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a).

The trial court therefore did not err in sentencing defendant as a serious violent felon in the case sub judice.

2. Defendant has supplemented the brief and enumeration of error filed by his appellate attorney, whose representation of appellant is still in effect, with a document entitled, “APPELLANT’S SUPPLEMENTAL CITATION OF AUTHORITY.” This Court does not generally consider such supplemental filings because a defendant does not have a right to be represented by counsel and also represent himself. See Boyd v. State, 195 Ga. App. 758, 759 (395 SE2d 7). But given the magnitude of defendant’s life sentence without parole, we consider this supplemental filing, and we do so in furtherance of the upholding of the fairness and integrity of our judicial system. See Peterson v. State, 212 Ga. App. 147 (441 SE2d 481); Taylor v. State, 186 Ga. App. 113, 114 (3) (366 SE2d 422).

Decided January 10, 2000.

Clyde M. Urquhart, for appellant.

Stephen D. Kelley, District Attorney, for appellee.

Citing Peterson v. State, 212 Ga. App. 147, supra, and Taylor v. State, 186 Ga. App. at 114 (3), supra, defendant argues that his Florida convictions cannot be considered in aggravation of punishment. These cases hold that prior out-of-state convictions cannot be considered in aggravation of punishment under OCGA § 16-13-30 (d). In the case sub judice, defendant was sentenced under OCGA § 17-10-7, which contemplates consideration of prior out-of-state convictions in aggravation of punishment.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Ellington, Judge.

text:
    A98A0316.
    NASH v. THE STATE.
    (528 SE2d 258)
    Decided January 11, 2000.

      Anthony T. Pete, for appellant.

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

In Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999), the decision of this Court in Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998), was affirmed in part, reversed in part, and remanded to the trial court with directions. Accordingly, the portion of our decision which was reversed and remanded by the decision of the Supreme Court is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed in part and remanded in part.

Johnson, C. J., McMurray, P. J., Pope, P. J., Andrews, P. J., Blackburn, P. J., Smith and Eldridge, JJ., concur.


author: Miller, Judge.

text:
    A99A2037.
    WILSON v. THE STATE.
    (527 SE2d 623)
   Miller, Judge.

Bennie J. Wilson was tried before a jury and found guilty of robbery by intimidation (two counts), false imprisonment (two counts), kidnapping (two counts), and aggravated assault. On appeal, Wilson’s sole assertion of error contends the trial court erred in refusing to give his written request to charge on “mistake of fact” as a defense to the charge of kidnapping. We agree with the trial court that this request was not adjusted to the evidence and affirm.

OCGA § 16-3-5 provides: “A person shall not be found guilty of a crime if the act or omission to act constituting the crime was induced by a misapprehension of fact which, if true, would have justified the act or omission.” If a jury instruction on this Code section is warranted by the evidence, it is reversible error to refuse to give a proper request. Reversible error can occur even if “mistake of fact” is not the sole defense of the accused.

Wilson took the stand, admitted he attempted to break into the Knight residence, and claimed he ran away when he heard voices. As he ran past Knight, Knight “fell back on his leg. . . .” Wilson was afraid he had hurt Knight and even though Knight was hollering “get away from me, get away from me,” Wilson felt obliged to assist, telling Knight, “I am going to leave you alone, I will help you up. [Knight] said no, get away from me.” Wilson “put [his] arm up under [Knight’s] armpit and . . . lifted [Knight] up from the ground.” Because Knight was scared, breathing hard, and limping, Wilson insisted on carrying Knight to the porch. Knight again said, “leave me alone.”

Wilson argues he was justified in carrying Knight back to the house because he believed Knight had been injured and could not walk. But the truth of that circumstance would not justify Wilson’s act of forcibly lifting Knight by the armpit and carrying him, against his will, back to the porch.

“[I]gnorance or mistake of fact constitutes a defense to a criminal charge only if it is ‘honest and real (and) not superinduced by the fault [or] negligence of the party doing the wrongful act. . . .’ ”

Since Wilson’s own testimony indicates his misapprehension of fact was the result of his own fault or negligence in committing the burglary and kidnapping, the trial court correctly refused to give an instruction on “mistake of fact” under OCGA § 16-3-5.

Decided January 11, 2000.

David J. Famham, for appellant.

Alan A. Cook, District Attorney, Jeffrey L. Foster, Eugene S. Hatcher, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

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

        High v. State, 153 Ga. App. 729, 732 (4) (266 SE2d 364) (1980).

        Adcock v. State, 260 Ga. 302 (392 SE2d 886) (1990).

       (Citations omitted.) Clark v. State, 192 Ga. App. 718, 719 (2) (386 SE2d 378) (1989).

        Crawford v. State, 267 Ga. 543, 544-545 (2) (480 SE2d 573) (1997).


text:
    A99A2371.
    LOVELACE v. THE STATE.
    (527 SE2d 878)
   Miller, Judge.

Convicted of aggravated assault with intent to rape, Michael Lovelace enumerates as error the denial of his motion for new trial and the trial court’s jury instruction on assault. He also contends that he was denied effective assistance of counsel.

1. Lovelace’s third claim urges the general grounds. Specifically, he argues the evidence is insufficient because there was no competent evidence to support the incident date of November 5, 1997, as alleged in the indictment.

The specific contention that a time variance prejudiced Lovelace’s alibi defense is not preserved for appellate review by a motion for directed verdict or other challenge to the sufficiency of the evidence; rather, Lovelace should have moved for a continuance, postponement, or recess.

Viewed in the light to uphold the jury’s verdict, the evidence revealed that Lovelace, while giving the victim a ride home, stopped the vehicle, put his hand over her mouth and nose, held her arm behind her back so that it hurt, and ripped her clothes. He told her that he “was going to get what he wanted if he had to rape [her],” and he held a gun to her head. Lovelace twice attempted to penetrate her, but she kicked him and got out of the car.

The victim stated that Lovelace gave her a ride home from a bar around 10:00 p.m. on November 4. One of the victim’s friends testified that the victim called after 12:00 a.m. and that she was nervous, upset, and crying. The crime was reported to the police at 12:14 a.m. on November 5, and the victim was examined at a hospital around 1:00 a.m.

Alibi evidence does not make the date alleged in the indictment material unless proof of a different date effectively barred an alibi defense. That was not the case here, for Lovelace’s brother testified that he and Lovelace were together from 11:30 p.m. on November 4 to 1:30 a.m. on November 5. The evidence is sufficient if the State proves the offense occurred as of any date within the statute of limitation. Thus, the evidence sufficed to sustain the conviction.

2. Lovelace claims that the trial court erred by failing to charge the jury that assault includes the intent to injure and that this failure allowed the jury to convict him because he made a substantial step toward raping the victim instead of a substantial step toward assaulting the victim.

Lovelace did not submit a written request to charge on the elements of the crime; however, the court charged the jury on the crimes of assault, aggravated assault, and rape. The court also instructed the jury on carnal knowledge and that the intent to rape is a material element of aggravated assault in this case. Included in the crime of assault is the attempt to commit a violent injury. And “[w]hether the requisite intent is manifested by the circumstances is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” The instructions to the jury were correct statements of law, tailored to the evidence of the case, and a sufficient charge on the elements of aggravated assault with the intent to rape.

3. Lovelace raises several grounds for ineffective assistance of counsel. To establish ineffectiveness, he must show (1) that counsel’s performance was deficient, and (2) that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for that deficiency. “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.”

(a) Lovelace argues that trial counsel failed to interview and investigate the alibi witness and failed to inform him of his right to testify. But the record reflects otherwise. Trial counsel testified at the new trial hearing that he interviewed the alibi witness, Lovelace’s brother who lived in Missouri, by telephone 11 days before trial. Counsel also testified that he made a practice of informing his clients of their right to testify and told Lovelace that “he has a right to testify, he has a right not to testify, if he chooses not to testify then no adverse inference can be drawn from his failure to testify.” Thus, the trial court was authorized to find that Lovelace failed to prove ineffective assistance on these grounds.*

(b) Counsel admitted he did not interview the State’s witnesses, but he did get discovery and wrote to Lovelace’s former treating psychiatrist to obtain records of his previous mental history. After consultation with Lovelace, counsel developed the theory of the case: “That [Lovelace] was not guilty, he was not at the bar at the time the alleged incident occurred.” Lovelace contends trial counsel was ineffective because he failed to interview and investigate the State’s witnesses and failed to use his history of mental illness in his defense. But Lovelace has not satisfied the second prong of the Strickland test in that he has not shown how the outcome of the trial would have been different but for the performance of trial counsel. He has presented no evidence that the failure to interview the State’s witnesses prejudiced his defense or that mental illness contributed to his actions.

(c) Lovelace and his brother stated that they were together from 11:30 p.m. to 1:30 a.m. Lovelace claims that he was at work from 6:00 p.m. to 10:00 p.m., but his brother testified that he saw Lovelace around 7:00 p.m. In his ineffective assistance claim, Lovelace argues that trial counsel allowed his brother to testify, although he was aware that there were inconsistencies in the testimony. Trial counsel testified that “what was important to [him] was the fact that he had an alibi witness [;] otherwise it was [Lovelace’s] word against the victim’s,” and that he decided, as part of his trial strategy, to put Lovelace’s brother on the stand because “it’s all [Lovelace] had in terms of a defense.” The trial court correctly concluded that counsel’s professional decision to use the alibi witness, despite knowledge of minor time discrepancies between the testimony of Lovelace and this witness, was acceptable trial strategy and not any evidence that counsel’s performance fell outside that broad range of effective assistance members of the bar in good standing are presumed to render.

Decided January 11, 2000.

Robert L. Mack, Jr., for appellant.

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

Judgment affirmed.

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

        Roberts v. State, 149 Ga. App. 667, 668 (5) (255 SE2d 126) (1979); Caldwell v. State, 139 Ga. App. 279, 286-287 (2) (228 SE2d 219) (1976) (physical precedent only).

        Roberts, supra.

        Pickstock v. State, 235 Ga. App. 451 (1) (509 SE2d 717) (1998).

        Edgehill v. State, 253 Ga. 343, 345 (3) (320 SE2d 176) (1984); Miller v. State, 226 Ga. App. 509, 510 (1) (486 SE2d 911) (1997); Arnold v. State, 167 Ga. App. 720 (1) (307 SE2d 526) (1983).

        Hillery v. State, 236 Ga. App. 819, 820 (2) (513 SE2d 527) (1999).

       See OCGA § 16-5-20 (a).

       (Citation and punctuation omitted.) Riddle v. State, 145 Ga. App. 328, 330-331 (1) (243 SE2d 607) (1978), overruled on other grounds, Adsitt v. State, 248 Ga. 237, 240 (6) (282 SE2d 305) (1981).

       See Bissel v. State, 153 Ga. App. 564-565 (1) (266 SE2d 238) (1980); compare McKibben v. State, 212 Ga. App. 370-371 (2) (441 SE2d 895) (1994).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997).

       (Citations and punctuation omitted.) Johnson v. State, 214 Ga. App. 77, 78 (1) (447 SE2d 74) (1994).

       See Flemister v. State, 229 Ga. App. 8, 9 (2) (492 SE2d 907) (1997).

       See Cline v. State, 224 Ga. App. 235, 238 (4) (480 SE2d 269) (1997); Mosier v. State, 218 Ga. App. 586, 590 (5) (a) (462 SE2d 643) (1995).

        Johnson, supra, 214 Ga. App. at 79 (1); see also Teat v. State, 237 Ga. App. 867, 869 (2) (a) (516 SE2d 794) (1999).


text:
    A99A2517.
    YARBROUGH v. THE STATE.
    (527 SE2d 628)
   Phipps, Judge.

Joey Yarbrough was convicted of violation of duty upon striking a fixture, driving under the influence of alcohol to the extent it was less safe to drive, and driving while having an alcohol concentration of 0.10 grams or more. He appeals, challenging the admission of his blood alcohol test results and a statement he made to the arresting officer, the trial court’s denial of his motion for mistrial and restriction of his cross-examination of the arresting officer, and the sufficiency of the evidence to support denial of his motion for directed verdict and the jury’s verdict. We find no merit in any assertion of error and affirm Yarbrough’s conviction.

In the early morning hours of July 9,1995, a pickup truck traveling south on State Highway 11 between Athens and Social Circle apparently failed to negotiate a curve, went off the right side of the road, hit a guardrail, careened back across the road, traveled 450 feet down an embankment, and crashed into a wooden four-by-four fence. At 5:50 a.m., Yarbrough was treated at Newton General Hospital. He had lacerations, abrasions, and bruises. He told the attending nurse, Patty Boswell, that he had been injured in an accident involving his truck and that he was riding in the passenger seat when the accident occurred.

Pursuant to hospital policy, Boswell called the police to report the accident. Officer Brent Langley of the Newton County Sheriff’s Department was dispatched to the hospital. Yarbrough told him that he had been riding in the back of his truck, a friend was driving, and the truck wrecked somewhere near Social Circle. Langley noticed that Yarbrough’s speech was slurred and that he smelled strongly of alcohol.

Langley got the keys to the truck from Yarbrough and went to investigate the accident. The truck had come to rest in a ditch where it had pushed the fence. The truck had extensive damage, and a fence post had penetrated the windshield and the passenger side of the interior. No one was found in or near the truck.

After investigating the accident, Langley went back to the hospital and read Yarbrough implied consent warnings. Yarbrough consented to a blood test, and his alcohol concentration level was later determined to be 0.21 grams.

1. Prior to trial, Yarbrough moved in limine to condition admissibility of the blood test results on a showing by the State that Langley had accurately read the implied consent warning to him. Langley was asked to read the warning he read to Yarbrough at the hospital. While reading, he stated, “If you submit to the testing and the results indicate an alcohol concentration of .010 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year.” Langley read the warning incorrectly. The legal blood alcohol concentration limit is 0.10. Concerned more with what Langley read to Yarbrough at the hospital than with what he read at the pretrial hearing, the court denied Yarbrough’s motion in limine. Later at trial Langley read the implied consent warning correctly.

In Maurer v. State, a similar situation occurred. An officer who was reading the implied consent warning at trial stated 0.01 instead of 0.10 but later corrected himself. He explained that his initial mistake was due to a slip of the tongue. We held that even if the officer had misstated the legal alcohol limit when he read the warning to the defendant, the mistake was harmless and did not render the test results inadmissible. We reasoned:

[T]he amended version of OCGA § 40-5-67.1 (b) states that the implied consent notice “ ‘need not be read exactly so long as the substance of the notice remains unchanged.’ (Cit.)” [Cit.] . . . An understatement of the legal limit would naturally induce the person to whom the warning was given to withdraw his consent to testing whereas he otherwise might not. Conversely, the person might be led to submit to testing if the legal limit were overstated. Because [the defendant] did not withdraw his consent, any understatement of the legal limit did not change the substance of the notice in anyway harmful to him. [Cits.]

The same reasoning applies to Yarbrough’s assertion of error. The court did not err in denying Yarbrough’s motion in limine and admitting the results of his blood test.

2. Yarbrough asserts that the court erred in admitting his statement to Langley that he was riding in the back of the truck and a friend was driving when the accident occurred. Before trial, Yar-brough moved in limine to exclude the statement on the ground that Langley had not read him Miranda rights before he made the statement.

Langley testified at the pretrial hearing that he questioned Yar-brough twice — when he initially met Yarbrough at the hospital and when he returned to the hospital after investigating the accident scene. The trial court determined that Miranda was applicable to Langley’s second encounter with Yarbrough but not his first, because Yarbrough was not under arrest until the second conversation. Langley initially testified at the pretrial hearing that the statement was made during the second conversation. After a recess, he changed his testimony and said the statement was made during the first conversation.

Yarbrough disputes the trial court’s finding that the statement was made during the first conversation. He asserts Langley lacked sufficient credibility for the court to accept the change in his testimony regarding the timing of the statement. Yarbrough emphasizes that the court refused to admit another statement Langley attributed to Yarbrough because the court found it incredible. In this regard, Langley testified at the hearing that Yarbrough also told him during the first conversation that Yarbrough had wrecked his truck. Langley had not noted the statement in his police report, however, and neither the defense nor the prosecution had heard of the statement before the pretrial hearing.

“In cases involving the review of the grant or denial of . . . motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s finding as to disputed facts and credibility must be adopted unless clearly erroneous. (Cits.)” [Cit.]

The court’s finding regarding the timing of Yarbrough’s statement turned on a credibility determination. Despite the court’s finding that Langley’s testimony was incredible in one respect, we cannot find the court was required to reject the remainder of his testimony. The court’s determination in favor of admissibility was not clearly erroneous.

3. Although the court ruled before trial that Langley could not testify that Yarbrough had told him he was driving the truck when it wrecked, Langley did so.

PROSECUTOR: At what point did you return to the accident — or actually go to the accident scene?
LANGLEY: Well, in speaking with the defendant I learned his vehicle was a Ford Ranger pickup truck and, like I said, he told me he wrecked it somewhere near Social Circle, it was wrecked somewhere near Social Circle —.

Defense counsel immediately moved for mistrial.

Following a conference outside the presence of the jury, the judge gave the jury a curative instruction stating Langley misspoke when he said Yarbrough told him he had been driving and that, in fact, Yarbrough had not said that. The judge added that the testimony was expected to show that Yarbrough said someone else was driving. The judge then asked the jurors whether they could disabuse themselves of the statement. Each indicated he could.

Testimony then proceeded without a renewal of the motion for mistrial. Therefore, the denial of the motion was not preserved for appellate review.

4. Yarbrough moved for directed verdict on the grounds that the evidence did not warrant findings that he was the driver or that he was a less safe driver. On appeal, Yarbrough challenges the denial of his motion and the sufficiency of the evidence for conviction. Yar-brough’s insufficiency claim presents the same grounds as his motion for directed verdict but also asserts that his conviction for per se DUI must be reversed because no evidence was presented that he was driving within three hours of the time his blood was drawn for testing.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we 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.” [Cit.] . . . [Mjoreover, 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.

(a) Yarbrough asserts that the hypothesis that he was a passenger in the truck remained a reasonable one at the conclusion of the evidence and, therefore, the evidence was insufficient to support a conviction based on circumstantial evidence. Yarbrough emphasizes testimony from Nurse Boswell and a paramedic, Benny Atkins, that abrasions on Yarbrough’s body were more likely sustained through ejection from the truck rather than presence in the passenger compartment of the truck.

Questions of reasonableness are generally left to the jury unless the jury’s verdict is unsupportable as a matter of law. Despite the testimony noted by Yarbrough, the reasonableness of the hypothesis that he was a passenger depended on weighing the evidence and resolving credibility issues, which were matters for the jury. The testimony emphasized by Yarbrough was contradicted by testimony from Langley that the injuries were most likely sustained by impact with the steering wheel and other parts of the interior of the truck. Further, Yarbrough’s own witness Atkins conceded that the nature of the injuries did not rule out that Yarbrough was the driver. Finally, Yarbrough gave inconsistent statements regarding where he had been positioned in the truck; the only information he could provide about the person-he claimed to be the driver was that his name was Alan; no one else was found at or near the accident scene; and Yar-brough had the keys to the truck. The evidence was sufficient to establish Yarbrough was the driver.

(b) Yarbrough argues that even if he were determined to be the driver, the only evidence of less safe driving ability was the accident. This argument is without merit. The evidence showed the following additional circumstances: (1) Yarbrough’s alcohol concentration level was more than twice the legal limit; (2) he testified that he had drunk very heavily that night and was too intoxicated to drive safely, which was why Alan was driving him; and (3) when Langley encountered him, he smelled heavily of alcohol and had slurred speech. There was sufficient evidence to find Yarbrough was a less safe driver.

Decided January 11, 2000.

Moulton & Massey, Terry N. Massey, for appellant.

(c) OCGA § 40-6-391 (a) (5) declares a person per se DUI if: “The person’s alcohol concentration is 0.10 grains or more at any time within three hours after . . . driving or being in actual physical control [of a moving vehicle] from alcohol consumed before such driving or being in actual physical control ended.” Contrary to Yarbrough’s assertion, the statute does not require that the person be tested within three hours. It need be established only that his alcohol concentration was 0.10 grams or greater during the three-hour period after he ceased driving or exercising actual physical control of the vehicle.

Yarbrough’s alcohol concentration, determined from blood drawn at the hospital, was 0.21 grams. His testimony that a passing car took him directly from the accident scene to the hospital indicates that he did not consume additional alcohol after the wreck and that his alcohol concentration was 0.21 or greater when the accident occurred. There was sufficient evidence that his alcohol concentration exceeded the legal limit within the requisite time period.

5. During cross-examination, defense counsel asked Langley how Yarbrough’s possession of the keys to the truck proved Yarbrough had been driving the truck. The court sustained an objection by the State that the question was one for the jury. Yarbrough asserts that the trial court improperly restricted his cross-examination.

[T]he scope of . . . cross-examination is within the sound discretion of the trial court who may curtail inquiries which are not relevant or material. The trial court may curtail inquiries which are unduly repetitive or harassing and may exercise reasonable judgment in determining when a subject is exhausted. Such restrictions lie within the discretion of the trial court and will not be disturbed on appeal unless manifestly abused. [Cit.]

The court did not abuse its discretion in sustaining the State’s objection. The question posed was for the jury to decide after considering all of the evidence.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J, concur.

Alan A. Cook, District Attorney, Jennifer E. Greene, Assistant District Attorney, for appellee.

       OCGA § 40-5-67.1 (b) (2).

       240 Ga. App. 145, 146-147 (2) (525 SE2d 104) (1999).

       Id. The subject amendment to OCGA § 40-5-67.1 (b) became effective March 27, 1998. But, because it is procedural in nature, it applies retroactively. State v. McGraw, 237 Ga. App. 345, 346 (1) (514 SE2d 34) (1999).

        State v. Terry, 236 Ga. App. 248, 249 (511 SE2d 608) (1999).

        Anderson v. State, 236 Ga. App. 679, 685 (7) (513 SE2d 235) (1999).

        Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

        Lewis v. State, 149 Ga. App. 181, 182 (1) (254 SE2d 142) (1979).

        Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998).


author: Eldridge, Judge.

text:
    A99A2460.
    GRIFFIN v. THE STATE.
    (527 SE2d 577)
   Eldridge, Judge.

A Clayton County jury found Ted Lamar Griffin guilty of aggravated assault, battery, false imprisonment, and impersonating an officer. The charges arose when Griffin, out of anger, shot Raul Molina in the leg, then handcuffed him and beat him in the head with a pistol. Griffin appeals, raising 11 enumerations of error. Because each of Griffin’s enumerated errors lacks merit, we affirm his conviction.

1. Griffin first contends that, between his own testimony alleging self-defense and other evidence offered by the defense, a rational trier of fact could not have believed the testimony of the victim so as to find Griffin guilty of aggravated assault. This contention, however, goes to the issue of credibility and the weight to be given the testimony of the victim. This is an issue within the jury’s exclusive province. Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). “Our role is limited to evaluating the sufficiency of the evidence, not reweighing it.” Jones v. State, 232 Ga. App. 630 (502 SE2d 557) (1998) . The victim’s testimony supplied the essential elements of the offenses and was corroborated by six other witnesses. Any contradictory evidence was rejected by the jury, as reflected by its verdict. Accordingly, Griffin’s challenge to the sufficiency of the evidence fails. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Browning v. State, 236 Ga. App. 893 (1) (513 SE2d 779) (1999) .

2. Following a Williams hearing, the trial court permitted the State to introduce two similar transactions. In his second enumeration of error, Griffin challenges that ruling and claims the independent acts were not sufficiently similar to the indicted act to warrant admission. The record shows that, in the first independent act, Griffin was angry with James Moore for permitting Moore’s dogs to get loose. Griffin obtained a handgun, went to Moore’s house, and threatened to shoot the occupants with the gun. In the second independent act, Griffin was angry with William Apple for the way in which Apple was managing their mutual business, a barbeque restaurant. Griffin obtained a handgun, went to the restaurant, and threatened to shoot Apple with the gun.

In the case-in-chief, Griffin was angry with Raul Molina for the way in which Molina was treating Jamie Molina, Raul Molina’s ex-wife and Griffin’s girlfriend. Griffin obtained a handgun, went to Jamie Molina’s apartment to wait for Raul Molina to pick up his daughter for visitation, and then shot Raul Molina with the gun. All three incidents occurred in broad daylight with witnesses present. All three incidents occurred without immediate provocation, when the victims were not expecting an attack. All three incidents resulted from Griffin’s anger.

We find that the independent acts were of sufficient similarity to the crimes charged so that the court did not err in admitting evidence of them for the limited purpose of showing a course of conduct by Griffin. Each incident showed Griffin’s temper and his propensity to settle his disputes with a gun. See Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994). In addition, “ ‘[s]ince appellant claimed self-defense, evidence of previous unprovoked attacks was relevant to show malice, intent, motive, and bent of mind.’ [Cit.]” Farley v. State, 265 Ga. 622, 624 (458 SE2d 643) (1995).

3. Enumerations of error 5 and 6. Griffin contends that the trial court erred in refusing to admit evidence to rebut the State’s similar transactions. His contentions are meritless for the reasons that follow:

(a) Griffin proffered the testimony of his neighbor, Crable, who allegedly would provide evidence that Griffin’s act of arming himself when dealing with Moore’s dogs was reasonable because the dogs were vicious and placed Griffin in fear. Initially, the trial court let the evidence in as rebuttal to the extent that it showed Griffin’s acts were reasonable. When called to the stand, however, Crable testified about his own perceptions of the dogs’ viciousness and his own fear of the dogs. He could not provide any testimony about Griffin’s fear of the dogs so as to bear upon the reasonableness of Griffin’s actions. The trial court found that Crable’s perception of the dogs was irrelevant and ruled out that testimony. Absent a manifest abuse of discretion, a trial court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal. Bevil v. State, 220 Ga. App. 1, 2 (4) (467 SE2d 586) (1996). We find no abuse of discretion here.

(b) Griffin contends that the trial court erred by refusing to permit the introduction of certified copies of two court documents which showed a nolle prosequi was ordered as to each similar transaction incident. However, the record shows the trial court permitted the introduction of the nolle prosequi order on one of the similar transactions. As to the second similar transaction, any error in failing to admit the nolle prosequi order was harmless: the victim of the similar transaction incident testified at trial that the charges against Griffin were dropped. “Because the document in question would have given the jury no information not already provided by other evidence concerning the incident, we find no error in the trial court’s exclusion of it from evidence.” James v. State, 270 Ga. 675, 678 (6) (513 SE2d 207) (1999).

4. Enumerations of error 3, 4, 9 and 11. Next, Griffin contends the trial court’s final jury instructions contained several errors which require reversal. We disagree:

(a) Griffin claims the trial court’s limiting instruction as to the use of similar transaction evidence was insufficient pursuant to our decision in Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999). However, the error that caused reversal in Rivers was not duplicated here. The jury was not permitted to use the similar acts to show any “element of the offense charged in this indictment.” (Emphasis omitted.) Id. at 710. Here, the trial court twice limited the jury’s consideration of the similar transaction evidence to the state of mind or course of conduct of the defendant and instructed the jury that “[s]uch evidence, if any, may not be considered by you for any other purpose.” There was no error.

(b) Griffin contends the following charge was error because a defendant’s knowledge of a victim’s violent acts, offered as part of a justification defense, is not a relevant inquiry in a jury’s consideration of such evidence:

Ladies and gentlemen of the jury, what a defendant reasonably believes may be viewed by the jury in the light of what the defendant knew as to the alleged victim’s character for violence, that knowledge is relevant whether it was obtained by the defendant’s experience with the alleged victim or by hearing of other specific acts of violence by the alleged victim that were not committed in his presence or by knowledge of the alleged victim’s reputation for violence unconnected to any specific act. The alleged victim’s violent acts against a third party, if any, are relevant in considering the defendant’s claim of justification in this case.

We agree that a defendant need not have knowledge of a victim’s violent acts, and, to the extent the trial court charged the jury to the contrary, the charge was wrong. Marks v. State, 210 Ga. App. 281, 282-283 (1) (435 SE2d 703) (1993). But considering that the trial court gave the charge only because Griffin requested it, we find no reversible error. Taylor v. State, 195 Ga. App. 314, 316 (4) (393 SE2d 690) (1990).

(c) Griffin contends that the trial court erroneously instructed the jury on an unindicted form of aggravated assault. That is not so. The aggravated assault count of the indictment charged Griffin with “making an assault on the person of Raul Molina with a certain pistol, a deadly weapon.” The trial court instructed the jury on the definition of “assault” and that a person commits aggravated assault when “that person assaults another person with a deadly weapon.” There was no error.

(d) Also without error is the trial court’s charge on voluntary intoxication. The off-duty police officer who initially detained Griffin testified that Griffin appeared to be inebriated at the time of the incident and that he could smell alcohol on Griffin’s breath. “Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.” (Citation and punctuation omitted.) Adams v. State, 193 Ga. App. 628 (388 SE2d 747) (1989).

5. Enumeration of error 7. Griffin contends the trial court abused its discretion by denying his request to voir dire a juror who informed the court during trial that her stepdaughter knew the co-defendant. However, following the trial court’s denial of his voir dire request, Griffin did not object to the court’s ruling, move for mistrial, or in any fashion attempt to preserve this issue for appellate review. Since he acquiesced in the trial court’s ruling, this claim of error is waived. Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).

6. Enumeration of error 8. An indictment for aggravated assault that tracks the language of OCGA § 16-5-21 (a) (2) and alleges an accused made “an assault upon the person of [victim], with a handgun, a deadly weapon,” is not subject to demurrer for failure to inform the accused of the charges against him. Wallace v. State, 216 Ga. App. 718, 719 (1) (455 SE2d 615) (1995). Griffin’s contentions to the contrary are without merit.

7. Enumeration of error 10. Finally, Griffin alleges the trial court improperly restricted his cross-examination of the victim. However, as a factual basis for this contention, Griffin cites to a portion of the transcript where defense counsel was conducting a direct examination of a defense witness, and the trial court properly sustained an objection to an irrelevant question. Since the restriction to which Griffin directs our attention involved neither cross-examination nor the victim, there is no factual basis in the record for the legal arguments made. The error as enumerated is without merit.

Judgment affirmed.

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

Decided December 30, 1999

Reconsideration denied January 12, 2000

Brian Steel, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

        Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991).

       Griffin also contends that the indictment failed to allege the essential element of “intent.” But this issue was not raised as a basis for the demurrer filed below and is waived. Sosebee v. State, 169 Ga. App. 370, 371-372 (5) (312 SE2d 853) (1983).


text:
    A99A1685.
    LANDRUM v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (527 SE2d 637)
   Ellington, Judge.

William Landrum, the administrator of the estate of Samuel Landrum, appeals from the trial court’s order entering a $115,000 judgment in favor of State Farm Mutual Automobile Insurance Company on its cross-claim for indemnity in this personal injury/automobile accident case brought by Elliott King, who is not a party to this appeal. For the following reasons, we affirm.

King sued Samuel Landrum for damages arising out of an automobile accident. Pursuant to OCGA § 33-7-11 (d), State Farm cross-claimed against Landrum, the tortfeasor, for indemnity or repayment of any award that King collected from State Farm under King’s uninsured motorist coverage. Prior to trial, Colonial Insurance Company of California, Landrum’s automobile liability insurer, tendered its policy limits to King ($100,000) and King released Colonial and Landrum for all claims “except to the extent other insurance coverage is available which covers such claim or claims.” The release, drafted by Landrum’s attorneys, was limited as follows:

This limited release is in no way intended to release any claims for uninsured or underinsured motorist coverage I [(Kang)] have or may have against State Farm Insurance Company. This release cannot and does not release whatever rights and interests State Farm Insurance Company might have or claim hereafter against Samuel Landrum pursuant to Darby v. Mathis, 212 Ga. App. 444 [(441 SE2d 905) (1994)]. This provision takes precedent [sic] to any other provisions herein to the contrary.

King then proceeded to trial, the jury awarded him $300,000, and the trial court entered judgment against Landrum. The parties agree that after the insurers paid their policy limits, $85,000 of the jury’s award to King remained unsatisfied. After releasing the jury, the trial court heard argument on State Farm’s cross-claim and entered judgment for State Farm against Landrum in the amount of State Farm’s payment to King, $115,000. Landrum argues that because Kang did not receive full compensation for his loss, State Farm may not assert its subrogation rights against him. State Farm argues that under the circumstances of this case, King was fully compensated.

“The right of subrogation can arise from either equity, contract, which is referred to as ‘conventional subrogation,’ or statute.” State Farm &c. Ins. Co. v. Cox, 271 Ga. 77 (515 SE2d 832) (1999). Pursuant to OCGA § 33-7-11 (f), State Farm is subrogated to King’s rights against Landrum to the extent of the payment it made to Kang. Traditionally, a subrogee “stands in the shoes” of the insured and can pursue any cause of action assigned to it. “[T]he subrogee is placed in the same position as the subrogor which includes the disabilities as well as the rights.” Travelers Ins. Co. v. Commercial Union Ins. Co., 176 Ga. App. 305, 308 (335 SE2d 681) (1985). State Farm’s rights against Landrum were not altered or destroyed. The release King signed not only reserved his cause of action against Landrum to the extent of his UM coverage, it was conditioned upon a reservation of whatever rights State Farm might thereafter claim against Lan-drum. See Darby v. Mathis, supra at 445-446 (2). And, because State Farm is not seeking reimbursement of benefits paid to King from King or exercising its subrogation rights to achieve such a reimbursement, the “full compensation” rule does not act to bar State Farm’s subrogation rights against Landrum under the circumstances of this case.

In 1997, the Supreme Court articulated the rationale underlying the “full compensation” rule, stating:

Where the insurer or the insured must go unpaid to some extent, the loss should be borne by the insurer, since the insurer has already been paid a premium for assuming this risk and would have been obligated to pay medical expenses regardless of its insured’s negligence and regardless of whether a culpable third party could have been found.

(Citation omitted.) Duncan v. Integon Gen. Ins. Corp., 267 Ga. 646, 647 (482 SE2d 325) (1997). This “full compensation” rule was codified a year later in OCGA § 33-24-56.1. The statute provides, in pertinent part, that a benefits provider may require reimbursement for medical expenses or disability payments from the injured party only if the injured party has received a recovery that “exceeds the sum of all economic and non-economic losses incurred as a result of the injury, exclusive of losses for which reimbursement may be sought under this Code section.” OCGA § 33-24-56.1 (b) (1). To further the purposes of this rule, the legislature provided that “[s] Abrogation for medical expenses and disability payments by a benefit provider against a person at fault for injury is prohibited.” OCGA § 33-24-56.1 (e). Thus, an insured is not put in a position of “contracting away his or her right to sue after being compensated by the insurer for medical expenses and disability payments.” 14 Ga. St. U. L. Rev. 172, 176 (1997). And, as the Supreme Court recently explained, this statute renders unenforceable conventional subrogation provisions in a policy that permits reimbursement from the insured when the insured is not fully compensated. Davis v. Kaiser Foundation Health Plan, 271 Ga. 508, 511 (521 SE2d 815) (1999).

As one commentator stated, “[t]he intent of the statute is to give the injured party first priority of recovery from the tortfeasor until complete compensation has been achieved.” (Emphasis supplied.) 49 Mercer L. Rev. 313, 319, Trial Prac. & Proc. Also, this Court has consistently discussed the application of subrogation rights in this context using priority terminology. See, e.g., Cherokee Ins. Co. v. Lewis, 187 Ga. App. 628, 630 (371 SE2d 103) (1988), rev’d on other grounds, 258 Ga. 839 (375 SE2d 850) (1989) (“[N]o paramount right of subro-gation arises until the insured has received full satisfaction of his judgment against the uninsured driver.”) (emphasis supplied); Mul-lenberg v. K. J. Saxon Constr. Co., 192 Ga. App. 281, 282 (1) (384 SE2d 418) (1989).

In this case, State Farm has not sought reimbursement from Ring, the injured party. It has not claimed any portion of the $215,000 in King’s possession. Therefore, the “full compensation” rule codified at OCGA § 33-24-56.1 (b) (1) does not prohibit State Farm’s subrogation claim against Landrum. Further, State Farm has not sought to recover medical or disability payments it made to King either from King or from Landrum pursuant to a subrogation agreement. Therefore, OCGA § 33-24-56.1 (e) does not apply. State Farm exercised its statutory subrogation rights pursuant to OCGA § 33-7-11 (f) and sought reimbursement from the tortfeasor for the amount it paid to King. Because King released Landrum for all claims except to the extent of his UM coverage, King has no further claim against Landrum nor is he entitled to any potential recovery from Landrum. See Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499, 501 (1) (492 SE2d 268) (1997). Thus, State Farm is not asserting priority to any part of King’s actual or potential recovery. Consequently, this is not a contest between the insured and the insurer which could result in the insured going unpaid to some extent. Thus, pretermitting whether King was fully compensated for his loss under the circumstances of this case, allowing State Farm to exercise its subrogation rights against Landrum will not deprive King of his priority under the full compensation rule. Moreover, to bar subrogation in this case would defeat one of the equitable purposes of subrogation: to deter wrongdoing by placing the ultimate responsibility for paying an obligation on “the person who in equity and good conscience ought to pay for it.” See 16 Couch on Insurance 2d, § 61.18, p. 9. For these reasons, we find that the full compensation rule does not defeat State Farm’s subrogation rights under these circumstances.

Decided January 12, 2000.

Downey & Cleveland, Tara M. Waller, for appellant.

Greer, Klosik & Daugherty, Robert J. McCune, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       Because it appears the trial court made a ruling of law based upon undisputed facts, we apply the “plain legal error” standard of review. See Glover v. Ware, 236 Ga. App. 40, 45 (3) (510 SE2d 895) (1999).


text:
    A99A1778.
    HATHAWAY v. THE STATE.
    (527 SE2d 894)
   Miller, Judge.

To counter evidence that he stabbed a victim 17 times, Ronnie Hathaway testified that he acted in self-defense when he saw the victim pull out a gun. The victim and all other witnesses to the stabbing denied that the victim had a gun or otherwise threatened Hathaway. The trial court instructed the jury on self-defense, and the jury found Hathaway guilty of aggravated assault. Because Hathaway’s complaints about the jury instructions are without merit, we affirm.

1. Contrary to its indications in the charge conference, the court did not give an instruction requested by the State that the use of excessive force in self-defense was unjustified. After the jury charge the State objected to the omission, but Hathaway openly opposed any effort to bringing the jury back to charge them on the issue. He argued that “[i]t would bring undue emphasis to that fact and may influence the jury to think that that’s extremely important. I think the prejudicial effect would outweigh the benefits from it.” The court agreed and did not recharge the jury.

Reversing positions, Hathaway on appeal argues that the court erred in not giving the instruction. “One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.” Moreover, because the instruction would have primarily benefitted the State, Hathaway can show little harm in the court omitting it.* There is no reversible error.

Decided January 12, 2000.

Nancy A. Atkinson, for appellant.

Charles H. Weston, District Attorney, Angela J. Manson, Assistant District Attorney, for appellee.

2. Hathaway contends that the trial court failed to instruct the jury on the essential elements of self-defense. The record belies this contention. Not only did the court charge the language of OCGA § 16-3-21 (a), but it instructed that the State bore the burden of proving beyond a reasonable doubt that Hathaway was not justified in his actions. We discern no error.

3. Hathaway claims that the court erroneously shifted the burden to bim when it instructed the jury that for the use of force to be justified, Hathaway must have really acted under the influence of fear and not in the spirit of revenge. Yet not only did the court charge that the State bore the burden of disproving self-defense, but we approved similar language in Pope v. State. We see no reason to rule otherwise here.

Judgment affirmed.

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

       (Citations and punctuation omitted.) McDaniel v. State, 248 Ga. 494, 495 (2) (283 SE2d 862) (1981); compare Goins v. State, 177 Ga. App. 536 (1) (339 SE2d 790) (1986) (defendant timely objected to court’s failure to give charge).

       See Smallwood v. State, 193 Ga. App. 807, 809 (3) (389 SE2d 390) (1989).

       See Doss v. State, 262 Ga. 499, 500 (3) (422 SE2d 185) (1992).

       193 Ga. App. 384 (388 SE2d 25) (1989); compare Reece v. State, 210 Ga. 578, 579 (2) (a) (82 SE2d 10) (1954) (jury instruction was misleading and confusing to jury).


author: Barnes, Judge.

text:
    A99A1792.
    GROOVER v. JOHNSON CONTROLS WORLD SERVICE.
    (527 SE2d 639)
   Barnes, Judge.

We granted Seymour J. Groover’s application for discretionary review of the superior court’s order affirming an award of the State Board of Workers’ Compensation (“Board”). Both the court and the Board refused to embrace Groover’s interpretation of Board Rule 260 that would include health insurance payments by the employer when determining an employee’s average weekly wage. For the reasons that follow, we affirm.

Groover suffered a compensable injury in February 1994 while employed by Johnson Controls World Service (“Johnson Controls”). During the 13 weeks immediately preceding his injury, Groover received a $361.60 per week salary, and his benefits were calculated from this amount. Groover requested a hearing, contending that his average weekly wage should ■ include the $30 shoe allowance he received and the value of Johnson Controls’ contribution to his health insurance benefits. Johnson Controls and Groover paid $80.77 and $12.50 respectively toward the cost of Groover’s health benefits package. The administrative law judge (“ALJ”) applied Board Rule 260 (a) as it existed on the date of the accident. Rule 260 (a) formerly provided:

[Computation of wages shall include, in addition to salary, hourly pay, or tips, the reasonable value of food, housing, and other benefits furnished by the employer without charge to the employee which are listed as earned income on employee’s Federal Form W-2 for federal income tax purposes.

(Emphasis supplied.) Relying upon Atlanta Journal &c. v. Sims, 200 Ga. App. 236 (407 SE2d 464) (1991), the ALJ determined that the shoe allowance and the employer’s payment of part of the health care premiums should have been included in the computation of Groover’s average weekly wage base. Finding that the shoe allowance and insurance benefits were “real economic gain[s]” to the employee, the ALJ recomputed Groover’s workers’ compensation benefits to include the value of those benefits.

Subsequently, the Board reversed part of the award. The Board affirmed the inclusion of the $30 shoe stipend but rejected the inclusion of Johnson Controls’ contributions toward Groover’s health plan. The Board concluded that “the employer’s contributions toward the claimant’s health plan do not constitute a ‘net economic gain’ as contemplated by Atlanta Journal & Constitution v. Sims, [supra].” The superior court found a substantial difference exists between non-cash fringe benefits such as group health and life insurance and cash payments such as tips and excess mileage reimbursements because the former “do not result in the receipt of funds which can be spent by the recipient.” The superior court affirmed the Board’s decision, finding no legal basis for expanding the statutory definition of “average weekly wage.” Groover then brought this appeal.

In his sole assertion of error, Groover contends the trial court erred in affirming the award because it was based upon an erroneous legal theory. Groover claims that the term “wages” under OCGA § 34-9-260 means any payment made by an employer to an employee for his services which constitutes a net economic benefit to the employee. Groover argues that because he received a net economic gain of $80.77 from the employer’s contribution to his medical benefits, that amount should be included in determining his average weekly wage.

By law, the “average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation.” OCGA § 34-9-260. Groover contends that Johnson Controls’ payment of the insurance premium constituted a financial benefit which should have been included in his average weekly wage, notwithstanding the fact that none of Johnson Controls’ contributions to Groover’s health insurance premium was listed on his W-2 tax form. See Pizza Hut Delivery v. Blackwell, 204 Ga. App. 112 (418 SE2d 639) (1992).

Groover has not offered and we have found no reported Georgia judicial decision so broadly construing the OCGA § 34-9-260 definition of “average weekly wage” to encompass an employer’s direct payment to an insurance provider for employee health benefits. Further, a majority of the states that have considered this question have concluded that fringe benefits should not be included in computing an employee’s average weekly wage. See Kissiah, Ga. Workers’ Compensation Law (1997), § 13-4 (e), pp. 382-383; 5 Larson, The Law of Workmen’s Compensation, § 60.12 (b) (1996).

Although the wording of a Board Rule has significance, such language cannot be used to supersede or replace express statutory language to the contrary. See Blackwell, supra, 204 Ga. App. at 112: “[N]o rule promulgated by the Board can change [the judicial] interpretation [of a statute].” Id. In other words, the Board cannot establish rules that subvert express statutory language or that contradict judicial decisions interpreting the statutory language. In Blackwell, we refused to apply this version of Rule 260 which restricted the basic wage calculation to include only such “other benefits” furnished by the employer to the employee which were listed as income on the employee’s W-2 form for federal tax purposes because the rule was not consistent with prior judicial decisions.

Here, however, there simply is no legal basis for expanding the statutory term “average weekly wage” to encompass fringe benefits such as an employer’s payment of insurance premiums. Further, even if the current version of Rule 260 were applicable, the result would not change because it is OCGA § 34-9-260, not Rule 260, which must control. Had the legislature desired to enlarge the statutory definition of “average weekly wage,” it could have done so. See Warden v. Hoar Constr. Co., 269 Ga. 715, 717 (2) (507 SE2d 428) (1998). Nor can we rewrite a statute under the guise of interpreting it. Cooper v. Edwards, 235 Ga. App. 48, 50 (508 SE2d 708) (1998). A change of this magnitude must be made by the legislature, not by judicial fiat or by agency rule-making. Roberson v. Tanner, 174 Ga. App. 128, 130 (329 SE2d 210) (1985); see also Smith v. Employers’ Fire Ins. Co., 255 Ga. 596, 597 (340 SE2d 606) (1986) (the legislature is charged with knowledge of judicial interpretation of statutes).

Decided January 12, 2000.

Phillip M. Eddings, for appellant.

Lee, Black, Scheer & Hart, R. Jonathan Hart, John D. Lange, for appellee.

Judgment affirmed.

Blackburn, R J., and Eldridge, J., concur.

       Board Rule 260 (a) currently provides:
      [c]omputation of wages shall include, in addition to salary, hourly pay, or tips, the reasonable value of food, housing, and other benefits furnished by the employer without charge to the employee which constitute a financial benefit to the employee and are capable of pecuniary calculation.


author: Ruffin, Judge.

text:
    A99A1901.
    DENNARD v. THE STATE.
    (527 SE2d 884)
   Ruffin, Judge.

Reginald Dennard appeals his conviction of robbery by intimidation, contending that the evidence was not sufficient to support the verdict. Because the evidence was sufficient, we affirm.

Brenda Braddock testified that she was working at a convenience store in Claxton shortly before 7:00 a.m. on October 25, 1996, when a man came into the store. After asking Braddock about some sunglasses for sale, the man stuck what she thought was a gun in her back and said, “This is a robbery. Put your hands on your head, and go to the cash register.” The man said, “I have a gun,” and told Braddock to open the cash register. Braddock testified that there was slightly more than $153 in the register at the time of the robbery, as well as about $10 in food stamps. She said that there were more coins than usual in the register that day. Braddock gave the man all of the money and food stamps in the register, except for three or four rolls of pennies that he did not want and some change that she dropped on the floor. The robber told Braddock that he had a drug problem and was out of drugs and money. After taking the money and food stamps, he placed Braddock in the cooler and left the store. Braddock waited two or three minutes and then called the police.

When the police arrived shortly thereafter, Braddock gave them a general description of the robber, describing him as a well-built, light-skinned black male with short hair, clean shaven, wearing dark jeans and a light T-shirt. Since the robber had mentioned needing the money for drugs, Officer Greg Carr suspected that he might have headed toward a known drug area nearby on Savoy Road. Officer Carr started toward Savoy Road, driving slowly in order to see anyone who might be running. At this time, it was approximately 7:00 a.m. As Officer Carr was driving, he saw a man fitting Braddock’s description walking toward him. Carr radioed back and asked if Braddock could provide any further description of the robber, and Braddock said that the robber’s T-shirt had a design on the front. Because this matched the individual he saw walking down the street, Carr turned his vehicle around to stop the man. However, by the time he turned around, the man had disappeared.

Carr started looking for the man and found him hiding behind a car parked in front of an apartment on Broad Street. Carr testified that this man, subsequently identified as Dennard, was wearing blue jeans and a white T-shirt with a design on the front and was sweating profusely. Carr searched Dennard and found currency, coins, and food stamps in his pockets. Versie Moore, whose mother lived in the apartment, told Carr that she saw Dennard throw something under her automobile, and Carr found some dollar bills under the car. In all, Carr found $149.28 in cash in Dennard’s pockets and under the car, as well as $10 in food stamps. The cash consisted of thirty-two $1 bills, eleven $5 bills, four $10 bills, thirty-five quarters, ninety-six dimes, sixty-seven nickels, and fifty-eight pennies. Carr testified that he did not see anybody else on the streets.

Moore testified that she had driven to her mother’s house that morning to drop her son off. As they got out of her car, Dennard came from the side of the house and approached her son. Moore told her son to go inside the house. Dennard then ran to Moore’s car, threw something underneath it, and told her to “come here.” She refused and asked what he threw under the car. He again told her to come to him. At about this time, Moore’s mother came out of the house, and Officer Carr arrived on the scene.

Officer Kenneth Jackson arrived shortly before Carr found the money under the car. Jackson testified that Dennard “blurted out that he wasn’t the only one involved in — in this, and he’s not taking the rap by [him] self.” At this point, another officer read Dennard his Miranda rights. Dennard subsequently told another officer that he had won the money and food stamps gambling.

After arresting Dennard, Carr brought him back to the convenience store to see if Braddock could identify him. Braddock testified that she saw Dennard in the back of the police vehicle and that he matched the general description of the robber, but she was unable to positively identify him as the robber. She testified that her back was to the robber most of the time and that she did not get a good look at his face during the robbery. When asked about the T-shirt Dennard was wearing when he was brought to the store by the police, Braddock testified that the design on the shirt looked bigger than the design she remembered seeing on the robber’s shirt.

On appeal, Dennard argues that there was not sufficient evidence to identify him as the robber. In particular, he points to the fact that the only eyewitness, Braddock, testified that the design on Dennard’s T-shirt appeared larger than the design she remembered seeing on the robber’s shirt. It is true that, “in any criminal case, proof that it was the defendant on trial who committed the alleged crime is essential.” However, “[t]here is no requirement that a criminal conviction be based upon direct evidence in the form of a positive identification given by a single witness.” Thus, the relevant question is not whether Braddock could make a positive identification of Den-nard, but whether the evidence as a whole was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that Den-nard was the robber.

Braddock’s testimony established that Dennard fit the general description of the robber and was wearing the same type of clothing — jeans and a white T-shirt with a design on the front. Although Braddock thought the design on Dennard’s T-shirt was larger than the one on the robber’s shirt, the jury could have attributed this apparent contradiction either to the fact that she got only a brief look at Dennard while he was sitting in the back of the police car or to the fact that she was not looking at the robber during most of the robbery.

Apart from Braddock’s testimony, there was significant circumstantial evidence supporting the conclusion that Dennard was the robber. Dennard was discovered trying to hide from the police shortly after the robbery, not far from the store, at a time in the morning when few people were out. After seeing Officer Carr, Dennard made an apparently aggressive move toward Moore and her child before throwing some money under her car and trying to hide from the officer. This attempt to hide from or elude the police constitutes circumstantial evidence of Dennard’s consciousness of guilt. Whether there was an innocent explanation for Dennard’s conduct was a matter for the jury to decide. Dennard’s statement that he was not the only one involved and was not taking the “rap” by himself also shows consciousness of guilt.

Decided January 12, 2000.

Joel E. Williams, Jr., for appellant.

J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

Perhaps most significantly, at the time he was arrested, Den-nard was carrying or attempting to hide $149.28 in cash and $10 in food stamps — almost precisely the amount believed to have been stolen in the robbery. The cash included an extremely large number of coins — 35 quarters, 96 dimes, 67 nickels, and 58 pennies — an amount that might be expected in a cash register but would be very unusual for an individual to carry around in his pockets. The amount of food stamps was the exact amount Braddock testified was taken during the robbery. Although Dennard told an officer that he won the money and food stamps gambling, he presented no evidence of this at trial.

When all of the evidence is considered as a whole — Dennard’s resemblance to the robber, his apprehension nearby at an early hour in the morning, his attempt to hide from the police and to. discard money, his aggressive move toward Moore and her child, his inculpa-tory statement to police, and the type and amount of money and food stamps found in his pockets or discarded under the car — we believe it was sufficient to enable a rational trier of fact to conclude that Dennard was guilty beyond a reasonable doubt of the robbery.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Price v. State, 180 Ga. App. 215 (3) (348 SE2d 740) (1986).

       Id. at 216 (3).

       See Moody v. State, 232 Ga. App. 499, 502 (1) (502 SE2d 323) (1998); Burley v. State, 172 Ga. App. 34 (2) (321 SE2d 783) (1984).

        Aldridge v. State, 229 Ga. App. 544, 545 (1) (494 SE2d 368) (1997).

       See id. at 544 (1) (“ ‘Any statement or conduct of a person, indicating a consciousness of guilt, where such person is, at the time or thereafter, charged with or suspected of crime, is admissible against him upon his trial for committing it.’ ”).

       See Thomas v. State, 128 Ga. App. 538, 540-541 (1) (197 SE2d 452) (1973) (affirming conviction although victim not positive about identification).