author: Phipps, Judge.

text:
    A99A1175.
    GRIFFIN v. THE STATE.
    (523 SE2d 910)
   Phipps, Judge.

Morris Griffin was convicted by a jury of two counts of aggravated child molestation. On appeal, he asserts that his conviction should be reversed for two reasons. First, he claims the evidence was insufficient to prove his guilt beyond a reasonable doubt. Second, he claims the trial court erred when it denied his motion for mistrial after the testimony of a State’s witness improperly placed his character in issue. Viewing the evidence in the light most favorable to the prosecution, we hold that the evidence was sufficient for any rational trier of fact to find guilt beyond a reasonable doubt. And, because we find that the testimony complained of did not improperly place Griffin’s character in issue, we hold that the trial court did not abuse its discretion when it denied Griffin’s motion for mistrial.

1. On appeal, we do not weigh evidence or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we view the evidence in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Yvonne McDaniel was Griffin’s former girlfriend. On October 31, 1995, McDaniel left her ten-year-old daughter, B. A. G, and her three other children in the house with Griffin. B. A. G. testified that Griffin told her sisters to go outside and told her to go to her mother’s bedroom. Griffin went into the bedroom with B. A. G. and told her to take off her clothes. Griffin pulled her pants down and took off his clothes. He put B. A. G. on the bed, got on top of her, and rolled around on her.

B. A. G. also testified that Griffin put his penis in her mouth; he placed his mouth on her vagina; then he “peed”, on her and wiped her with a rag. He told her that if she told anyone what had happened, he would whip her.

On February 20, 1996, B. A. G. told her teacher and counselor about the incident with Griffin. B. A. G. also spoke to Niki Denham, a social service specialist with the Putnam County Department of Family & Children Services. Denham confirmed B. A. G.’s trial testimony was consistent with the way B. A. G. described the incident to her. Denham testified that B. A. G. told her, without prompting, that Griffin put his penis in her vagina and that a yellow, creamy substance came out of it and went between her legs.

Child molestation is an immoral or indecent act done to or in the presence of a child under the age of 16 with the intent to arouse or satisfy the sexual desires of the child or the perpetrator. A person commits aggravated child molestation when the act of child molestation physically injures the child or involves an act of sodomy.

Griffin contends the evidence was insufficient because B. A. G. admitted in letters sent to him in jail that she had told a story and that she was sorry. At the trial, however, B. A. G. testified that she wrote the letters because she was afraid that she would be sent to foster care. She also confirmed that her trial testimony was accurate, but testified that the letters were not.

Viewed in the light most favorable to the prosecution, we conclude that the evidence was sufficient to support the conviction beyond a reasonable doubt. Because the victim’s testimony alone is sufficient to sustain the convictions, we do not address Griffin’s claims of inconsistency in McDaniel’s testimony.

2. Griffin contends the trial court erred when it denied his motion for mistrial in which he claimed that his character had been put in issue. The motion was based on testimony from McDaniel about the timing of the incident between Griffin and B. A. G. On cross-examination by Griffin’s trial counsel, McDaniel gave the response that led to the motion:

Decided October 21, 1999.

GRIFFIN’S COUNSEL: And, after talking with the DFACS worker, y’all put two and two together and found out it happened back on Halloween Day.
MCDANIEL: The reason I said it couldn’t have happened between December is because he had did it to me around about that time.

At that point, Griffin’s attorney moved for a mistrial. The judge denied the motion, but instructed the jury that “the response of the witness to the last question was not responsive to the question. I instruct you to ignore that response that she made and give it no consideration whatsoever in your deliberations.”

Griffin contends McDaniel’s testimony improperly placed his character in issue. He also claims the curative instructions were not sufficient to remove any prejudice from the minds of the jurors.

As the trial judge pointed out, McDaniel’s testimony, “because he had did it to me . . . could not have been construed to imply Griffin had also molested her, because she is not a child. Regardless of its construction, however, we find McDaniel’s testimony did not place Griffin’s character in issue. “A [witness’s] nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.”

Even if Griffin’s character was placed in issue, we do not find McDaniel’s nonresponsive testimony so prejudicial that the judge’s curative instructions were ineffective. Decisions on motions for mistrial based on the nonresponsive testimony of a witness are left to the discretion of the trial court. And the decisions will not be overturned if the jury is properly instructed and the remark is not so prejudicial that it violates the defendant’s fair trial rights. Under the circumstances, we find that the trial court did not abuse its discretion when it denied Griffin’s motion for a mistrial.

Judgment affirmed.

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

J. Philip Carr, for appellant.

Fredric D. Bright, District Attorney, Richard M. Gailey, Jr., Assistant District Attorney, for appellee.

        Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991).

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

       Although a warrant was issued against Griffin for the offense of rape, the indictment in the record includes only two counts of aggravated child molestation.

       OCGA § 16-6-4 (a).

       OCGA § 16-6-4 (c).

        Johnson v. State, 231 Ga. App. 823 (1) (499 SE2d 145) (1998).

        Hansley v. State, 267 Ga. 48, 49 (3) (472 SE2d 305) (1996); Eagle v. State, 264 Ga. 1, 2 (2) (440 SE2d 2) (1994).

       See Nelson v. State, 204 Ga. App. 409, 410 (2) (419 SE2d 502) (1992).

        Young v. State, 217 Ga. App. 575 (1) (458 SE2d 391) (1995).


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A99A1752.
    MALDONADO v. THE STATE.
    (523 SE2d 917)
   Ellington, Judge.

Jermaine Maldonado was arrested after he brought a quantity of cocaine to a designated location to sell to an undercover officer pursuant to a deal arranged by his co-defendant. Maldonado was convicted by a Cobb County jury of violating the Georgia Controlled Substances Act, OCGA § 16-13-30. Following the denial of his motion for new trial, Maldonado appeals, enumerating four errors. We adopt the thorough and well-reasoned analysis of the trial court and, for the reasons reiterated below, affirm.

1. Maldonado contends that the trial court lacked jurisdiction in that the designation of the chief magistrate to preside over the trial did not comply with OCGA § 15-1-9.1 and court rules. Maldonado failed to object to the appointment of the magistrate to sit as a superior court judge prior to the commencement of the trial and, thus, failed to preserve the issue for appeal. Bennett v. Jones, 218 Ga. App. 714, 715 (1) (463 SE2d 158) (1995); cf. Hicks v. State, 231 Ga. App. 552, 553 (1) (499 SE2d 341) (1998) (issue of jurisdiction of chief magistrate raised before trial was not waived).

2. Maldonado contends that the trial court should have granted a mistrial after the narcotics agent testified that Maldonado knew him, the agent, “very well.” The statement did not give rise to an inference that Maldonado knew the agent in his capacity as a police officer and therefore did not place Maldonado’s character in issue. Childs v. State, 202 Ga. App. 488, 489-490 (2) (414 SE2d 714) (1992). The trial court did not abuse its discretion in denying Maldonado’s motion for a mistrial.

3. Maldonado contends that the trial court erred in admitting similar transaction evidence in that the transactions were not sufficiently similar to satisfy the standard set in Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). Under Williams, the State must show that “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” Id. at 642 (2) (b). The similar transaction need not be identical to the charged offense to be admissible. Chappell v. State, 215 Ga. App. 596, 597 (1) (451 SE2d 491) (1994).

The State proffered evidence that Maldonado was under indictment for possession with intent to distribute cocaine for a transaction which occurred eleven months earlier, in a location about one-half mile away, involved the same form of the same controlled substance, and displayed other similarities as compared to the charged offense. Following a pretrial hearing, the trial court found that the previous transaction was sufficiently similar to the offense charged to be admitted for the stated purpose of showing modus operandi, design, bent of mind and course of conduct. Having reviewed the evidence of the similar transaction and the evidence of the crime charged, we conclude that the trial court’s ruling that the transactions were sufficiently similar to satisfy Williams was not clearly erroneous.

Decided October 21, 1999.

David C. Butler, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

4. In his final enumeration, Maldonado contends that the limiting instruction the trial court gave before the introduction of evidence of the similar transaction discussed in Division 3 was legally inadequate. In its instructions to the jury, the trial court told the jury that the evidence was being admitted for a limited purpose, specifically Maldonado’s modus operandi, bent of mind or course of conduct with regard to the offense charged. The trial court stated that it was within the jury’s discretion to determine whether the other transactions were sufficiently similar for that purpose. The trial court further instructed the jury not to determine Maldonado’s guilt or innocence regarding the similar transaction and to consider the evidence of the similar transaction only to the extent, if any, that it tended to prove the offense charged. Under these circumstances, the instruction given adequately informed the jury about the limits on its consideration of the similar transaction evidence. Looney v. State, 232 Ga. App. 828, 829-830 (3) (503 SE2d 79) (1998); Parson v. State, 229 Ga. App. 117, 118-119 (2) (493 SE2d 256) (1997).

Judgment affirmed.

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


text:
    A99A1820.
    ELLIS v. THE STATE.
    (523 SE2d 914)
   Ellington, Judge.

Frederick Ellis entered a guilty plea to one count of armed robbery, OCGA § 16-8-41, and was sentenced to serve ten years in prison. Following the denial of his motion to withdraw his guilty plea, Ellis appeals, contending that he received ineffective assistance from his trial counsel and that, as a result, his plea was not knowingly, intelligently and voluntarily entered. We conclude that Ellis received effective representation and affirm.

1. Ellis contends that his trial counsel Linda Lyons provided ineffective assistance in two ways: (1) that she represented him together with his co-defendant Robert Callahan at their guilty plea hearing despite a conflict of interest, and (2) that she failed to advise him accurately of the parole consequences of pleading guilty to armed robbery.

These undisputed facts are relevant to Ellis’s first claim of ineffective assistance. Three men, one of whom wore a ski mask and held a sawed-off shotgun, robbed three restaurant patrons in a parking lot. One of the victims immediately called the police and described the car in which the three robbers left. About 30 minutes later, a car matching that description avoided a roadblock. During the ensuing chase, the police saw three men get out of the car, discard a backpack containing a ski mask and a shotgun, and run away. The police found Ellis, Callahan and Thomas Rollins hiding in the area and arrested them for the robbery. One of the victims identified Rollins and the shotgun at a showup that night; none identified Ellis or Callahan. Ellis and Callahan both maintained that they had been in the car during the robbery and that two other men had participated in the robbery with Rollins, but the other two alleged participants in the robbery were never identified.

Callahan hired Lyons to represent him and asked if she could also represent Ellis. Lyons represented both men at the preliminary hearing and during the pretrial phase. About one month before the trial date, Ellis told Lyons for the first time that he had been shown the gun and invited to take part in the robbery but that he had declined. Lyons believed that this statement compromised Ellis’s ability to support Callahan’s alibi and advised her clients that she could not represent either of them if they decided to go to trial. Lyons got two attorneys to agree to take over the representation if Ellis and Callahan decided to go to trial. She counseled her clients separately about the option of entering a guilty plea as authorized by North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970). Lyons did not disclose to her clients what the other had decided about pleading or going to trial until both had decided to plead guilty.

(a) In ruling on Ellis’s claim that a conflict of interest made his counsel ineffective, the trial court was required to apply the standard for proving ineffectiveness in the context of a guilty plea combined with the standard for proving ineffectiveness due to conflict of interest. Tarwater v. State, 259 Ga. 516, 517-518 (383 SE2d 883) (1989). To judge the effectiveness of counsel representing multiple defendants in negotiating and taking a guilty plea, the court must determine (1) whether the performance of counsel fell below an objective standard of reasonableness, and (2) whether there is a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. Id. To judge the effectiveness of counsel representing multiple defendants with conflicting interests where a defendant raised no objection at trial, the court must determine whether an actual conflict of interest adversely affected the lawyer’s performance. Id. at 518. A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous, and the defendant must overcome a strong presumption that trial counsel’s conduct falls within the wide range of reasonable professional conduct. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

In this case, the undisputed evidence is that Ellis and Callahan each independently arrived at the decision to plead guilty to armed robbery. Lyons did not negotiate guilty pleas for Ellis and Callahan that were conditioned on both pleading guilty. Cf. Tarwater v. State, 259 Ga. at 519 (ineffective assistance of counsel is conclusively established by showing that a defendant was allowed to plead guilty upon the condition that another defendant represented by the same attorney also plead guilty). Even though an actual conflict might have existed if Lyons had represented both co-defendants at trial, the trial court’s conclusion that no conflict of interest existed when Ellis and Callahan each independently decided to plead guilty, and therefore that Lyons’s performance was not ineffective on this basis, was not clearly erroneous.

(b) Secondly, Ellis claimed that his counsel was ineffective in that she failed to advise him accurately of the parole consequences of pleading guilty to armed robbery. As part of their plea agreement, the State requested that the trial court sentence Ellis to the statutory minimum for armed robbery, ten years, and the trial court abided by that request. OCGA § 17-10-6.1 (c) (3) requires Ellis to serve the entire sentence imposed by the trial court and prohibits any release on parole or other reduction of the sentence. See Williams v. Duffy, 270 Ga. 580, 582 (1) (513 SE2d 212) (1999).

At the time Ellis entered his plea and the trial court denied his motion to withdraw it, an attorney’s failure to apprise the defendant of a collateral consequence of a negotiated sentence, such as ineligibility for parole under OCGA § 17-10-6.1, could constitute ineffective assistance of counsel. Hutchison v. State, 230 Ga. App. 143 (495 SE2d 618) (1998), overruled, Williams v. Duffy, 270 Ga. at 582 (1). In Hutchison, this Court held that a defendant was entitled to withdraw his guilty plea to rape because his counsel was unaware that his client would be ineligible for parole under OCGA § 17-10-6.1 and therefore was unable to correctly advise of the consequences of pleading guilty. 230 Ga. App. at 144.

Decided October 21, 1999

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

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

The evidence regarding what Lyons told Ellis about the possibility of parole is conflicting. Ellis testified that Lyons told him that there was a chance he could get out after three years. Lyons testified that she advised Ellis that he would be sentenced to a minimum of ten years and would have to serve at least ninety percent of that and could very well have to serve every day of ten years. The trial court was authorized by this evidence to find that Lyons advised Ellis that he would have to serve at least nine years of a minimum ten-year sentence. Ellis also knew that if he were convicted at trial he could be sentenced to a maximum of 20 years. Under these facts, we conclude that there is not a reasonable probability that, but for counsel’s error, Ellis would not have chosen to plead guilty but would have insisted upon going to trial. Considering the conflict in the testimony provided at the hearing, we cannot say that the trial court’s finding that Ellis had been afforded effective assistance of counsel was clearly erroneous. Hall v. State, 210 Ga. App. 792, 794 (1) (437 SE2d 634) (1993). Accordingly, the trial court did not err in denying Ellis’s motion to withdraw his guilty plea based on ineffective assistance of trial counsel.

2. Because we have concluded that Ellis did not receive ineffective assistance of counsel, as discussed above in Division 1, we reject his argument that his guilty plea was not knowingly, intelligently and voluntarily entered because of his counsel’s performance. The trial court’s denial of Ellis’s motion to withdraw his guilty plea was not a manifest abuse of discretion and will not be reversed. Wilcox v. State, 236 Ga. App. 235, 236 (2) (511 SE2d 597) (1999). We likewise find no merit in Ellis’s argument that the withdrawal of his guilty plea must be allowed to correct a manifest injustice. Martin v. State, 268 Ga. 584, 585 (492 SE2d 223) (1997).

Judgment affirmed.

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

        Williams v. Duffy applies prospectively only because it announced a new principle of law by overruling clear past precedent. Brown v. Earp, 261 Ga. 522, 524 (407 SE2d 737) (1991).


author: Eldridge, Judge.

text:
    A99A2003.
    ASHLEY v. THE STATE.
    (523 SE2d 901)
   Eldridge, Judge.

Appellant Terry Melvin Ashley challenges the denial of his motion for new trial, which followed his July 1997 conviction for burglary. We affirm.

“On appeal from a criminal conviction, the defendant is no longer presumed innocent, and the evidence is viewed in the light most favorable to the verdict. [Cit.]” Johnson v. State, 223 Ga. App. 668, 669 (1) (478 SE2d 404) (1996). The evidence presented at trial showed that, on April 26, 1997, Doris Hope operated a personal care home at 1728 Wrightsboro Road, Augusta, Richmond County. Hope’s grandson, Dennis Futch, and his fiancée, Kimberly Cook, were staying overnight with Hope and sleeping on a sofa bed in the living room. The light in a nearby bathroom was kept on all night in order to assist the elderly residents.

At approximately 4:20 a.m., Cook’s baby began to cry, and Cook went to the kitchen for a bottle. When the baby continued crying, Cook began looking for a clean diaper. Cook noticed something that resembled the diaper bag under the bed, but when she touched it, she realized it was a person. As she cried out, a man suddenly “shot out” from under the opposite side of the bed. Futch woke up, and they both saw the man run into the bathroom and shut the door. When Futch pushed on the door, the intruder “dove” out the bathroom window. Futch ran out the back door and gave chase, but lost sight of the intruder when the intruder ran around the corner.

At trial, both Futch and Cook testified that the intruder wore a white or light-colored shirt and pants, but they did not see his face. Cook also testified that, after the intruder had left, she noticed that someone had opened a bag next to the bed containing some of the family’s belongings; she stated that the bag had been closed when they went to bed. According to Cook, it appeared that someone had “fumbled through” the bag. Futch testified that he later discovered that someone had removed the screen from the bathroom window and had placed a garbage can under the window.

Within minutes, police officers responded to a distress call from 1720 Wrightsboro Road, just down the street from Hope’s home. The resident reported to police that someone was “banging around” on her back door and/or attempting to enter the residence. When police arrived, they found Ashley sitting on the back porch, “extremely intoxicated.” Ashley had on white pants and a white sweatshirt! The police photographed Ashley at the scene, and the State introduced the photographs at trial. The police searched Ashley for weapons and found a knife, which was admitted as evidence at trial.

Soon thereafter, Futch arrived at the scene “screaming and yelling” that “[t]hat’s the guy that broke into my house.” Police arrested Ashley and charged him with burglary.

Ashley testified at trial and denied any involvement with the burglary. He asserted two defenses, as follows: (a) he had been drinking at a nearby, unidentified club at the time of the burglary and was walking home when the police stopped him, arrested him, and took him to 1720 Wrightsboro Road; and (b) at the time of the crime, he was physically unable to commit the crime, as he was extremely intoxicated and could barely walk, “much less climb anywhere.” He also claimed that he, himself, had just been robbed of his shoes and $270. However, on cross-examination, he stated that he had “cut through” the building at 1720 Wrightsboro Road and “may have stumbled or fell” onto the back porch.

Following Ashley’s conviction, appellate counsel filed a motion for new trial based upon general grounds. New counsel was appointed on October 8, 1998, and filed an amended motion for new trial. On December 30, 1998, the trial court denied the motion on all grounds. Ashley appeals. Held:

1. In his first enumeration, Ashley contends that the evidence presented was purely circumstantial and did not support his burglary conviction. On appeal, this Court reviews only the sufficiency of the evidence; the credibility and weight to be accorded the evidence are tasks for the jury. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Richardson v. State, 233 Ga. App. 890, 891 (505 SE2d 57) (1998).

Even if the evidence presented was, as asserted, entirely circumstantial, we note that

[t]o support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Under this rule, the [Sjtate is not required to remove every possibility of innocence of the crime charged.

(Citations omitted.) Haney v. State, 234 Ga. App. 214, 216 (1) (507 SE2d 18) (1998). See also Ware v. State, 198 Ga. App. 24, 26 (1) (400 SE2d 384) (1990). After reviewing the evidence in the record, this Court finds that the evidence was sufficient for a rational trier of fact to find Ashley guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, supra.

2. In his second enumeration of error, Ashley asserts that the trial court committed reversible error in failing to give a jury instruction on alibi, even absent a request. It is undisputed that no such instruction was requested. See also Division 3, infra.

This issue is controlled by the Supreme Court of Georgia’s ruling in Rivers v. State, 250 Ga. 288, 300 (8) (298 SE2d 10) (1982), which reads as follows:

since the true effect of an alibi defense is to traverse the [S]tate’s proof that the defendant committed the crime, the charge that the burden is on the [S]tate to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt. [Therefore,] it is ordinarily not error to fail to charge specifically on alibi absent a request. ... [In this case, the] trial court did charge, completely and correctly, on the defendant’s presumption of innocence, on the [S] fate’s burden of proving beyond a reasonable doubt that the defendant committed the crimes at issue, and on credibility of witnesses. The [S]tate produced evidence sufficient to prove beyond a reasonable doubt that the defendant perpetrated these crimes; the defendant testified that he did not do so, and that he could not have done so because he was [walking home while heavily intoxicated after drinking at a club] at the time [the crime] occurred. The absence of a charge on alibi did not change the fact that no juror who believed the defendant’s testimony could find that the [S]tate had carried its burden of proof.

(Citations omitted.) See also OCGA § 5-5-24; Booker v. State, 247 Ga. 74 (274 SE2d 334) (1981) (an affirmative defense “need not be specifically charged if the case as a whole is fairly presented to the jury. [Cit.]”); Hightower v. State, 224 Ga. App. 703, 704 (1) (481 SE2d 867) (1997); Green v. State, 219 Ga. App. 24 (464 SE2d 21) (1995).

Accordingly, there was no error.

Decided October 21, 1999.

Elizabeth C. Calhoun, for appellant.

3. In his third enumeration," Ashley asserts that he was denied effective assistance of counsel due to trial counsel’s failure to request a jury instruction on alibi or misidentification. See Division 2, supra. In order to prove ineffective assistance, a defendant must show that his trial counsel’s performance was deficient and that there was a reasonable possibility that the results of the proceedings would have been different but for counsel’s errors. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “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.” (Citations and punctuation omitted.) Brown v. State, 237 Ga. App. 231, 233 (2) (517 SE2d 529) (1999).

In this case, trial counsel testified at the motion for new trial that he had questioned Ashley prior to trial and that

[i]t was very difficult to formulate a defense for Mr. Ashley because basically what Mr. Ashley was saying was just that it was a mistake and that he was not [at the crime scene].... He really never told me that he had an alibi; he just said, I wasn’t there, or I don’t recall being there.

Counsel testified that, based on the information he received from Ashley, he did not file a jury instruction on alibi because he did not feel it was “appropriate” under the circumstances. Such testimony is bolstered by the fact that counsel did not respond to the State’s demand for written notice of his intent to introduce alibi evidence.

However, counsel submitted several other jury instructions, filed discovery motions, discussed discovery with Ashley, cross-examined the State’s witnesses at trial, and filed an application for sentence review. He testified that he could not call any other defense witnesses because “there was nobody else to call.” He also attacked Futch’s identification of Ashley as the perpetrator during closing arguments.

Under the facts of this case, trial counsel could hardly be expected to file a pre-trial, written request for a jury instruction regarding a defense of which he was unaware, particularly when such circumstance is due solely to Ashley’s own failure to assert an alibi until his testimony at trial. Accordingly, the trial court did not err in finding that trial counsel’s representation was not deficient.

Judgment affirmed.

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

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

       “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.” OCGA § 16-7-1 (a).

       An alibi defense “involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission. The range of [the] evidence in respect to time and place must be such as reasonably to exclude the possibility of presence.” OCGA § 16-3-40.

       Contrary to Ashley’s contentions, the alibi that he presented during trial was not his sole defense, as he also asserted that he was physically incapable of committing the crime because of his extreme intoxication. Accordingly, the “sole defense” cases cited by Ashley are inapplicable herein. See Wells v. State, 200 Ga. App. 104,105 (1) (407 SE2d 86) (1991); Tiller v. State, 118 Ga. App. 590 (1) (164 SE2d 915) (1968). Further, even if alibi had been his sole defense, failure to charge on alibi absent a request is not error. Seese v. State, 235 Ga. App. 181, 183 (1) (509 SE2d 94) (1998); Johnson v. State, 174 Ga. App. 751, 752 (330 SE2d 925) (1985).

       Closing arguments were not transcribed.


text:
    A99A2059.
    BRABHAM v. THE STATE.
    (524 SE2d 1)
   Eldridge, Judge.

David Brabham appeals a Chatham County jury verdict finding him guilty of armed robbery and false imprisonment. We affirm his conviction.

1. Brabham challenges the sufficiency of the evidence introduced against him, contending that: (a) the State failed to prove that he possessed a weapon or an article having the appearance of such so as to support his conviction for armed robbery; and (b) the State failed to prove that he kidnapped the victim.

(a) A defendant’s use of an offensive weapon, or an article having the appearance of such, may be established by circumstantial evidence. McCluskey v. State, 211 Ga. App. 205, 207 (2) (438 SE2d 679) (1993). Thus, a conviction for armed robbery may be sustained, even when a weapon was not seen by the victim. Id. What is required is some physical manifestation of a weapon, or “some evidence from which the presence of a weapon may be inferred.” (Punctuation omitted.) Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Proof of an actual offensive weapon is not required. McCluskey v. State, supra at 207.

Here, the evidence showed that Brabham entered a CVS Pharmacy with a black plastic bag over his hand and told the victim “I have a gun.” This evidence was sufficient to establish the use of an offensive weapon in contravention of our armed robbery statute, OCGA § 16-8-41 (a). “The legislature intended the Code section to encompass armed robbers who have concealed offensive weapons in their pockets or under wraps or other devices [.] [Cit.]” McCluskey v. State, supra at 207. The fact that the victim did not see an actual gun and that no gun was ultimately recovered does not alter the fact that, in order to perpetrate the robbery, Brabham used an article having the appearance of an offensive weapon and represented to the victim that it was such. Id.

(b) Brabham contends that the State failed to prove he kidnapped the victim. However, the jury acquitted Brabham of kidnapping and found him guilty instead of the lesser included offense of false imprisonment. In that regard, the victim testified that Brabham forced him at gunpoint to sit on the floor of the pharmacy and remain there, while Brabham found painkillers on the pharmacy shelves. This evidence is sufficient for a rational trier of fact to have found Brabham guilty of false imprisonment. OCGA § 16-5-41 (a); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided October 21, 1999.

Martin G. Hilliard, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

2. Brabham was sentenced as a recidivist. In two enumerations of error, he contends that the application of the recidivist statute, OCGA § 17-10-7: (a) violates the constitutional proscription against cruel and unusual punishment under the Eighth Amendment of the United States Constitution and Art. I, Sec. I, Par. VII of the Georgia Constitution; and (b) violates the Separation of Powers doctrine of Art. II, Sec. I, Par. Ill of the Georgia Constitution.

(a) Brabham’s contentions regarding cruel and unusual punishment in relation to sentencing under OCGA § 17-10-7 have been decided adversely to him. See Ortiz v. State, 266 Ga. 752 (470 SE2d 874) (1996). Thus, this contention lacks merit.

(b) Brabham argues that, by enacting OCGA § 17-10-7 and that statute’s mandatory sentencing scheme, “the legislative branch has squarely stepped into the realm of the judicial (sentencing citizens accused of crimes),” in violation of the Separation of Powers doctrine. However,

[t]he power to create crimes and to prescribe punishment therefor is legislative. The judge is a mere agent of the law. He has no discretion except as it is given him. The penalty is affixed by law. In the absence of legislation, the judiciary cannot exercise discretion in fixing the quantum of punishment to be inflicted upon criminals. Such power is not one which inheres in the judicial department. Thus it is within the power of the legislature to direct the punishment to be prescribed for second offenders and to leave no discretion to the trial judge.

(Citations, punctuation and emphasis omitted.) Knight v. State, 243 Ga. 770, 771 (257 SE2d 182) (1979). Accordingly, Brabham’s Separation of Powers argument is without merit.

Judgment affirmed.

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


text:
    A99A2143.
    BARRETT v. J. H. HARVEY COMPANY.
    (523 SE2d 912)
   Ellington, Judge.

Frances Barrett sued J. H. Harvey Company for injuries she sustained when she slipped and fell on a foreign substance in a Harvey grocery store. The trial court granted Harvey’s motion for summary judgment, and Barrett appeals. Because issues of fact remain as to Harvey’s liability, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in this light, the evidence shows that Barrett fell as she approached a checkout lane in a Harvey store and that cashier Christy Williams was working at the register nearest to where Barrett fell. Barrett was not looking at the floor when she fell and did not know what caused her to slip. The manager on duty, Levon Shatteen, and the assistant manager, Charles Vaughn, reported to the site of Barrett’s fall. Shatteen helped Barrett into his office to fill out an accident report form. Vaughn photographed a puddle of a substance which appeared to be baby vomit and which was believed to be the cause of Barrett’s fall. Before Barrett fell, Williams, the cashier, knew that another customer’s baby had vomited in or near the checkout lane.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed [her] self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.

Decided October 21, 1999

Gibson & Spivey, Douglas L. Gibson, for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, for appellee.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

A jury could infer from this evidence that Harvey had actual knowledge of the foreign substance on the floor. Although Williams did not clearly remember many details of Barrett’s fall, denied seeing a baby vomiting and denied seeing any substance on the floor before Barrett fell, she made statements to Shatteen and Vaughn immediately after Barrett’s fall that indicate she was nevertheless aware that a baby had vomited on the floor. These statements were admissible as part of the res gestae under OCGA § 24-3-3 and possibly as an admission against interest under OCGA § 24-3-33. Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 425-426 (504 SE2d 245) (1998). Williams’ statements were sufficient to create an issue of fact regarding whether Harvey had actual knowledge that there was a puddle of vomit on the floor and had the opportunity to protect its customers from the hazard of slipping in the substance. Watson v. Kroger Co., 231 Ga. App. 741, 742-743 (1) (500 SE2d 631) (1998); cf. Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 587 (490 SE2d 107) (1997) (statements that a child had thrown up in the store were not admissible as part of the res gestae because the plaintiff could not identify the employees who made the statements).

Turning to the second prong of Robinson, the issue is whether Barrett lacked knowledge of the hazard despite the exercise of ordinary care. 268 Ga. at 749 (2) (b). The only evidence identified by Harvey as showing a lack of care is that Barrett was not looking at the floor when she fell. After Robinson, an admission by the plaintiff that she did not look at the site on which she placed her foot or that she could have seen the hazard had she looked does not establish as a matter of law that she failed to exercise care for her own safety. Id. at 748 (2) (b). Questions regarding a “plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and ... summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. We find that Harvey has not met its burden of showing that Barrett failed to exercise ordinary care. Accordingly, the trial court erred in granting Harvey summary judgment.

Judgment reversed.

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


text:
    A99A2218.
    BRASWELL v. THE STATE.
    (523 SE2d 904)
   Ellington, Judge.

Following a bench trial at which she represented herself, Beverly Braswell was convicted of two counts of deposit account fraud, OCGA § 16-9-20, and was sentenced to serve four months in jail and the remainder of her two consecutive twelve-month terms on probation. Because the record is silent as to whether Braswell knowingly and voluntarily waived her right to counsel, we reverse.

On March 25, 1999, Braswell was brought to trial in Decatur County State Court. The transcript reflects that the trial court did not ask Braswell a single question about her need for counsel or her readiness for trial. The solicitor presented five witnesses, whom Braswell briefly and artlessly cross-examined. In her defense, Bras-well called one witness, Alice Love. When Braswell attempted to examine this witness, the solicitor and the judge informed the witness that her self-incriminatory testimony could result in her immediate arrest and prosecution. Braswell made no objections during the trial, she presented no physical or documentary evidence, and her argument at sentencing consisted of statements like: “Dear God, please. Can I say something to my son? Please Lord. Can I give him my keys? Oh, my God. I can’t believe this.”

1. A defendant put on trial for any offense, felony or misdemeanor, for which imprisonment is a penalty, has a constitutional right to counsel which may be waived only by voluntary and knowing action. Rutledge v. State, 224 Ga. App. 666, 669 (482 SE2d 403) (1997); Callaway v. State, 197 Ga. App. 606, 607 (398 SE2d 856) (1990). The trial judge has the duty of determining whether the defendant has voluntarily and knowingly waived the right to counsel and validly elected to exercise the alternative right to proceed pro se. Burnett v. State, 182 Ga. App. 539, 540 (356 SE2d 231) (1987); McCook v. State, 178 Ga. App. 276-277 (342 SE2d 757) (1986). When a defendant elects to represent himself, the record should reflect a finding by the trial court that he has validly chosen to proceed pro se. The record should also show that the defendant made this decision after being informed of the right to counsel and the dangers of proceeding without counsel. Clarke v. Zant, 247 Ga. 194, 196-197 (275 SE2d 49) (1981); Burnett v. State, 182 Ga. App. at 540. “When the record is silent, waiver is never presumed!,] and the burden is on the state to present evidence of a valid waiver.” Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984); see also Kirkland v. State, 202 Ga. App. 356, 357-358 (414 SE2d 502) (1991).

Decided October 21, 1999.

Ronnie J. Lane, for appellant.

Kirho & Kendrick, Ben Kirho, for appellee.

The State argues that it has met its burden of showing a valid waiver. The solicitor points to a lengthy, pre-printed document which is titled “Rights and Information Form” and which Braswell signed. The document informed Braswell of her right to counsel, the right to appointed counsel if she could not afford an attorney, and the right to represent herself. Implicitly acknowledging that Braswell is illiterate, the solicitor states in his brief that Braswell’s son read this document to her on March 18, 1999 (a week before trial) and that she had no questions. The solicitor noted this event on the face of the document, and he initialed it. While this may be evidence that Braswell was informed of her right to counsel by the solicitor, her adversary, it is hardly evidence that the trial judge fulfilled his duty to determine whether Braswell knowingly relinquished that right:

The constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused.

(Citations and punctuation omitted.) Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998).

The trial transcript shows that Braswell’s efforts at defending herself were minimal and misguided. Although the State presented strong evidence of Braswell’s guilt, we cannot conclude under these circumstances that the error was harmless. See Hamilton v. State, 233 Ga. App. at 469 (1) (d); McCall v. State, 232 Ga. App. 684, 686-687 (503 SE2d 578) (1998).

2. Because we reverse the convictions and remand for a new trial, we do not address Braswell’s remaining enumeration of error.

Judgment reversed.

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

       Braswell was charged in a four-count accusation of presenting four bad checks, three of which were payable to grocery stores, for a total of less than $500.


author: Miller, Judge.

text:
    A99A1268.
    CLARK v. DENNIS.
    (522 SE2d 737)
   Miller, Judge.

The first question is whether evidence supported the trial court’s finding that service was improper in an earlier action between these same parties. If service was improper, then the earlier action was void and could not serve as a basis for this renewal action.

Cory Clark suffered injuries when he fell out of LeRoy Dennis’ truck in 1991. When Clark sued Dennis in 1992 to recover damages, Clark immediately served Dennis by having process left with Dennis’ mother at her address on Rolling Hills Road. Dennis never responded to the complaint, and Clark voluntarily dismissed the action without prejudice in February 1997. Within six months Clark re-filed the action and had Dennis served personally. Dennis moved to dismiss on the ground that the two-year statute of limitation had run.

After an evidentiary hearing, the court found that service in the original action was invalid because in 1992 Dennis was not living with his mother on Rolling Hills Road. Concluding that the original action was void and could not serve as a basis for a renewal action under OCGA § 9-2-61 (a), the court applied the statute of limitation to the date the second action was filed and dismissed the case. Clark appeals, arguing that improper service made the first action voidable, not void, and thus did not invalidate it as a basis for the renewal action. Because evidence showed that the Rolling Hills address was not Dennis’ usual place of abode in 1992, and because improper service renders an action void, we affirm.

1. In an attempted renewal action, “[t]he original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. [Cits.]” Black v. Knight, cited by Clark for the proposition that lack of service makes the original action only voidable, did not so hold. If the original suit is void, then the second suit is not a renewal suit under OCGA § 9-2-61 (a) and cannot rely on the original suit’s filing date for statute of limitation purposes.

Decided September 24, 1999

Reconsideration denied October 22, 1999

Carl A. Veline, Jr., for appellant.

Hall, Booth, Smith & Slover, Robert L. Shannon, Jr., for appellee.

Here the only service in the original suit was to leave a copy of the complaint with Dennis’ mother at an address where he did not reside. Such service is insufficient under OCGA § 9-11-4 (d) (7). This rendered the original suit void and precluded use of its filing date for statute of limitation purposes in this second suit.

2. Clark argues that because Dennis received actual notice of the original lawsuit from his mother, he waived the insufficiency of process defense when he failed to raise it in a defensive pleading to the original action. Without proper service in the original action, Dennis had no duty to file an answer or other responsive pleadings. Since he did not file any pleadings, he did not omit or waive the defense. Nor did his receipt of the summons and complaint from his mother cure or waive the service defect.

The court did not err in dismissing the action.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       See OCGA § 9-3-33.

       The court also held that service was improper because Dennis was a minor. But the parties stipulate on appeal that in fact Dennis was not a minor. Because the trial court’s judgment was also based on the finding that Dennis did not reside at the Rolling Hills address, we proceed on thé basis that a judgment “right for any reason” must be affirmed. See Johnson v. Equicredit Corp., 238 Ga. App. 380, 381 (1) (517 SE2d 353) (1999).

       Cf. Patterson v. Douglas Women’s Center, 258 Ga. 803, 804 (3) (374 SE2d 737) (1989).

       See Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213) (1995) (trial court’s finding that defendant resided elsewhere is upheld if there is some evidence to support it).

        Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

       231 Ga. App. 820 (499 SE2d 69) (1998).

       Id.

        Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991).

       Id.

       Cf. Jones v. Roberts Marble Co., 90 Ga. App. 830, 833 (84 SE2d 469) (1954) (decided prior to Civil Practice Act).

       See Dotson v. Luxtron, Inc., 155 Ga. App. 504, 505 (271 SE2d 644) (1980) (defendant who files no responsive pleadings preserves the defense of insufficient service). Compare Meier v. Bennett, 208 Ga. App. 688, 689 (431 SE2d 462) (1993) (defensive pleading that is filed without raising sufficiency of process waives issue).

       See Dotson, supra, 155 Ga. App. at 505; Denny v. Croft, 195 Ga. App. 871, 872 (2) (395 SE2d 72) (1990).


text:
    A99A1344.
    DRIVER v. THE STATE.
    (523 SE2d 919)
   Miller, Judge.

After witnessing Melanie Driver speed., run a red light, and weave out of her lane, an officer pulled her over and observed her watery, bloodshot eyes, smelled an odor of alcohol coming from her car, heard her slur her speech and admit to drinking a couple of beers, and watched her respond sluggishly to requests. She performed poorly on three field sobriety tests and tested positive on the breath alco-sensor. After arresting her for DUI, the officer searched her purse for inventory purposes and discovered a green, leafy substance in a plastic baggie, which Driver conceded at trial was marijuana. A jury found her guilty of running a red light, possessing marijuana, and driving under the influence of alcohol to the extent that it was less safe for her to drive. Driver appeals, contending among other things that the evidence did not suffice to sustain the convictions. Because the evidence was more than sufficient, we affirm.

1. Driver argues that the State failed to establish a scientific foundation regarding the reliability of three police lab tests (Duquenois-Levine, fast blue V, and microscopic) performed on the marijuana. Claiming the court should have excluded the lab results, she contends that nothing else supported a finding of guilt on her alleged possession of marijuana and that therefore her motion for directed verdict should have been granted.

In testimony elicited by her own counsel, Driver admitted three times that the substance found in her purse was marijuana. This testimony moots her appellate arguments challenging the State’s evidence that the substance was marijuana. Where a defendant at trial admits to the essential elements of a crime, alleged defects in the State’s evidence on that crime become irrelevant. Because we consider all evidence introduced at trial, such admissions, even if made after the State has concluded its case-in-chief, preclude any error in denying a defendant’s motion for directed verdict based on evidentiary grounds.

2. Driver claims error in the court’s denial of her motions that were based on the State’s failure before trial to provide allegedly exculpatory material found in a police report. Specifically, she argues that the officer’s notes that she recited the entire alphabet (though with slurred speech), that she told the officer she had weak ankles before failing the one-leg stand test, and that she touched the tip of her nose one out of the four times requested were exculpatory material wrongfully withheld from her until mid-way through the officer’s direct testimony, despite her pre-trial Brady motion.

Because a Brady motion calls for the production of exculpatory evidence known to the prosecution but unknown to the defense, it “does not reach the defendant’s own statements made prior to trial, as they are known to the defense.” Similarly, Driver, who was the subject of the sobriety tests, knew all along how she performed on the tests and so testified at trial. In preparing her defense, she could have recited her performance to her counsel or to an expert for evaluation. No Brady violation occurred.

Moreover, even if she had been unaware of the allegedly exculpatory information in the police report, no Brady violation occurred where the information became available to her at trial. “Brady does not require pre-trial disclosure of the materials.” Because Driver cross-examined the officer extensively about the police report information, she cannot show that the delayed disclosure deprived her of a fair trial.

3. Driver challenges the trial court’s allowing the officer to give a professional opinion that Driver was under the influence of alcohol to the extent that she was less safe to drive. Driver urges that the officer’s opinion testimony addressed the ultimate issue and thus invaded the jury’s province. Setting aside whether Driver waived this issue by not objecting when the officer first gave this opinion, we hold that a court in its discretion may allow a trained and experienced officer, such as the officer here, to render such an opinion based on the officer’s personal observations of the defendant.

4. Driver argues that the court erred in allowing the State to introduce her two prior DUI convictions. She claims that the State did not make the three affirmative showings required by Williams v. State to introduce similar transactions. This argument is without merit.

The first affirmative showing is that the State seeks to introduce the similar transactions for an appropriate purpose. Here the prosecution stated that it sought to show bent of mind and course of conduct, which are appropriate purposes for introducing prior DUI convictions in a pending DUI charge.

The second affirmative showing is that the accused committed the prior DUI. Here the prosecution had an officer testify as to the circumstances of each prior DUI conviction and confirm that Driver was the defendant in both cases.

The third affirmative showing is that there is sufficient similarity between the prior DUIs and the current charge. Here the prosecution cited to Kirkland v. State, which held that in a pending DUI charge a prior DUI conviction is “essentially committed under the same factual circumstances” as the DUI offense at issue, regardless of any slight variance of facts such as the type of vehicle driven or the degree or source of intoxication. Subsequent cases have confirmed that regardless of the circumstances surrounding its commission, a prior DUI offense is logically connected to a pending DUI charge, for the prior charge is relevant to establish that the perpetrator has the bent of mind to drive after consuming alcohol.

Here the prosecution showed additional similarities between the prior and pending DUI charges, in that in each Driver was driving the same Toyota truck in the late night or early morning hours. The court did not abuse its discretion in finding the State made the Williams showings and in admitting the prior transactions.

5. Driver complains that the court erred in charging the jury that police may search a driver arrested for DUI for both drugs and alcohol which could be the basis for the driver’s intoxication. She does not claim that the charge was an inaccurate statement of law, but that the charge did not fit the facts of the case. She points to the officer’s testimony that the only search was of Driver’s purse, which search was for inventory purposes and which resulted in the discovery of the marijuana. Because this alleged error pertains to Driver’s possession of marijuana, it was mooted by her voluntary admissions at trial that her purse contained marijuana.

Decided October 22, 1999

Wallace C. Clayton, Amelia G. Pray, for appellant.

David McDade, District Attorney, William J. Atkins, Assistant District Attorney, for appellee.

Moreover, the charge was not reversible error. Police may search an arrestee and items in her possession for inventory purposes or for the purpose of discovering evidence of the charged crime. Because either would have been acceptable here, the jury charge referencing the “discovering evidence” purpose but not the inventory purpose was, if anything, favorable to Driver. The jury was left with the impression that police could search only to discover evidence of the charged crime, not that the police could search for inventory purposes as was the purpose police testified to here. Thus, the error was harmless as to Driver.

6. Driver’s last two enumerations of error concern the sufficiency of the evidence and the denial of her motion for new trial. Regarding the DUI and running a red light convictions, the officer testified that she saw Driver run a red light and that, based on the officer’s observations and the sobriety tests, Driver was under the influence of alcohol to the extent that she was less safe to drive. Regarding the possession of marijuana conviction, Driver testified that she knew her purse contained marijuana. The evidence sufficed to sustain the convictions. As Driver has failed to demonstrate any reversible errors in the conduct of the trial, the court did not abuse its discretion in denying her motion for new trial.

Judgment affirmed.

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

       OCGA § 40-6-20 (a).

       OCGA § 16-13-30 (a).

       OCGA § 40-6-391 (a) (1).

       See Thorp v. State of Ga., 217 Ga. App. 275, 276 (1) (457 SE2d 234) (1995) (admission in appellate brief that amount of cocaine was 7.1 grams moots challenge to the State’s evidence on the amount and weight of cocaine); cf. Jackson a State, 208 Ga. App. 391, 392 (1) (430 SE2d 781) (1993) (“[o]bviously, if defendant admits that she possessed cocaine at any time within the period alleged, she would be guilty of the crime”).

       See Bowen v. State, 235 Ga. App. 900 (510 SE2d 873) (1999) C“[i]n reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense’ ”).

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       (Citation omitted.) McCarty v. State, 249 Ga. 618, 620 (292 SE2d 700) (1982); see Cunningham v. State, 248 Ga. 558, 561 (6) (284 SE2d 390) (1981).

       See Sanders v. State, 199 Ga. App. 671, 674 (5) (405 SE2d 727) (1991) (for Brady purposes, a defendant is deemed to know of tests that he was the subject of).

       See Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996); Leary v. State, 260 Ga. 730, 731 (4) (399 SE2d 63) (1991); Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998).

       (Citation and punctuation omitted; emphasis in original.) Castell v. State, 250 Ga. 776, 781 (2) (b) (301 SE2d 234) (1983).

       Id.; see Ahmed Al-Beti v. State, 210 Ga. App. 312, 313 (3) (436 SE2d 50) (1993).

        Waits v. State, 232 Ga. App. 357, 358 (1) (501 SE2d 870) (1998); see Brent v. State, 270 Ga. 160, 162-163 (3) (510 SE2d 14) (1998); Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994); Fisher v. State, 177 Ga. App. 465 (1) (339 SE2d 744) (1986); see generally OCGA §§ 24-9-65; 24-9-67.

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       Id.

       See Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999); Nameth v. State, 234 Ga. App. 20 (1) (505 SE2d 778) (1998); Tam v. State, 232 Ga. App. 15 (1) (501 SE2d 51) (1998); Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

        Williams, supra, 261 Ga. at 642 (2) (b).

       Id.

       Supra, 206 Ga. App. at 28 (3).

       See Smith, supra, 236 Ga. App. at 552 (3); Lucas v. State, 234 Ga. App. 534, 536 (2) (507 SE2d 253) (1998); Nameth, supra, 234 Ga. App. at 20-21 (1); Tam, supra, 232 Ga. App. at 16 (1); Druitt v. State, 225 Ga. App. 150, 152 (1), (3) (483 SE2d 117) (1997). This holding moots Driver’s argument that the court erroneously charged the jury in the language of these cases.

       See Harper v. State, 213 Ga. App. 564, 565 (445 SE2d 563) (1994) (driving same vehicle in both prior and pending DUI charges may show similarity); Guinn v. State, 224 Ga. App. 881, 882 (1) (a) (482 SE2d 480) (1997) (prior and pending DUI offenses may be similar in that ail offenses occurred in the late night or early morning hours).

       See Smith, supra, 236 Ga. App. at 552 (3) (abuse of discretion standard).

       The officer testified this was a common practice and policy of her police department.

        Sprinkles v. State, 227 Ga. App. 112,113 (1) (488 SE2d 492) (1997); see OCGA § 17-5-1 (a) (4); Bagwell v. State, 214 Ga. App. 15, 16 (446 SE2d 739) (1994).

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

       See generally Mills v. State, 188 Ga. 616, 622-623 (4 SE2d 453) (1939) (trial court may grant or deny new trial in its discretion; appellate court can only review whether law was followed).


author: Johnson, Chief Judge. McMurray, Presiding Judge,

text:
    A99A1952.
    CHINNIS v. THE STATE.
    (523 SE2d 924)
   Johnson, Chief Judge.

A police officer does not have an objective basis for suspecting that a person is engaged in a crime merely because the person is a white man driving in an African-American neighborhood late at night, and he picks up an African-American man at a high-crime location, and he then drives slowly in the neighborhood. Early one morning, a police officer saw Godfrey Chinnis and Henry Asbury, both of whom are white, sitting in a parked truck in a high-crime area of an African-American neighborhood, while an African-American man leaned into a window of the truck. The officer stopped Chinnis and Asbury as they drove away from the area because he was suspicious of the two white men being in an African-American neighborhood. During the stop he found cocaine in the truck. Was the stop of the truck lawful? We hold that it was not lawful because the officer did not have an objective basis for suspecting that Chinnis and Asbury were engaged in a crime merely because they were white men in an African-American neighborhood. And because the trial court erroneously denied Chinnis’ motion to suppress the cocaine found during the illegal stop, we must reverse his conviction for possessing that cocaine.

At 2:00 on an April morning in 1997, Police Officer Billy J. Ward was on patrol in Hampton. As he drove on Daniel Street in a residential area south of downtown, he saw a red Chevrolet pickup truck parked on the opposite side of the road. Two white men were sitting inside the truck, and an African-American man was standing outside it, leaning into the passenger’s window. When the police car approached, the African-American man stepped away from the truck and walked toward an apartment building. Ward drove past the truck, but planned to turn around and come back because he thought it was unusual for white people to be in that area. He called a police sergeant on his car radio to come back him up, and then circled the block.

On his way back to Daniel Street, Ward saw the truck drive past him, heading out of the city. Ward decided to stop the truck, so he turned on his police car’s blue lights and followed the truck until it pulled over to the side of the road. Ward ordered the driver to get out of the truck. The driver obeyed and identified himself as Chinnis. Sergeant Choya Barber then arrived at the scene and stayed with Chinnis at the back of the truck while Ward went to identify the passenger still sitting inside the truck. When he looked into the truck, Ward saw a piece of suspected crack cocaine inside a plastic bag on the front seat. Ward seized the suspected drug and arrested both Chinnis and the passenger, identified as Asbury.

Chinnis and Asbury were charged by accusation with possessing cocaine. They filed separate motions to suppress the cocaine found in the truck. The trial court denied the motions. Chinnis was then tried alone before a jury. During the trial the judge found Chinnis to be in contempt of court, and the jury ultimately found him guilty of possessing cocaine. Chinnis appeals, challenging, among other things, the denial of his motion to suppress and the contempt ruling.

1. A police officer may conduct an investigatory stop of a person in a vehicle if he has a particularized and objective basis for suspecting the person of criminal activity. The Supreme Court of Georgia has expressly held:

[T]here is no objective manifestation that a person is, or is about to be, engaged in criminal activity merely because the person is a white man in a black neighborhood late at night, who picks up a black man at a location police consider a high-crime area, and who then drives slowly in a circular fashion through the neighborhood.

The evidence in the present case, construed in favor of the trial court’s denial of the motion to suppress, shows at most that Chinnis and Asbury were parked in what the officer described as a high-crime area of an African-American neighborhood; that an African-American man was leaning into the truck; and that when the officer arrived in the area, the man walked away from the truck. Officer Ward conceded at the motion to suppress hearing that he did not actually see a drug transaction take place. And when asked why he stopped the vehicle, Ward testified: “I stopped the vehicle because of the fact that there were two white males in an all-black neighborhood at that time of the morning and plus we have a lot of violence in that neighborhood because of that.”

Officer Ward did not have an objective basis for belieying that Chinnis was engaged in criminal activity simply because he is a white man who was stopped with another white man in an African-American neighborhood early one morning and was talking to an African-American man who left when the officer arrived. Because the officer lacked an objective basis for the stop, the trial court erred in denying Chinnis’ motion to suppress the cocaine found during the improper stop. Chinnis’ conviction for possessing the illegally seized cocaine must therefore be reversed.

2. Contrary to the dissent’s position, the record contains no evidence to support a finding that Officer Ward was authorized to stop Chinnis for violating OCGA § 40-6-202, which provides:

Outside of a business or residential district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the roadway when it is practicable to stop, park, or so leave such vehicle off the roadway; but in every event, an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles, and a clear view of the stopped vehicle shall be available from a distance of 200 feet in each direction upon the highway.

Ward testified at the motion to suppress hearing and at trial that Chinnis had stopped his truck on the edge of the road. There is no testimony from Ward or any other witness that it was practicable for Chinnis to park off the road instead of on the edge of the road, nor is there testimony that the parked truck obstructed the opposite lane. On the contrary, Ward testified that he was able to drive in the opposite direction past the truck. Furthermore, Ward did not claim that Chinnis was parked illegally or that he stopped Chinnis for having been illegally parked. And the record contains no such parking citation. Moreover, the trial court, as a basis for its denial of Chinnis’ motion to suppress, made no finding that Chinnis had violated OCGA § 40-6-202. Based on the record before us, there is no evidence to support a conclusion that Officer Ward lawfully stopped Chinnis because he had been parked in violation of OCGA § 40-6-202.

3. Chinnis’ challenge to the sufficiency of the evidence supporting the court’s contempt finding is without merit. Criminal contempt of court means disregard for or disobedience of the order or command of the court. Here, Chinnis disobeyed repeated court orders to stop causing disruptions by audibly yawning, gesturing and talking during the proceedings. Given Chinnis’ misbehavior in the court’s presence and his disregard of the judge’s commands, the trial court did not abuse its discretion in finding beyond a reasonable doubt that Chinnis was in contempt of court.

Decided October 22, 1999.

4. Because of our holding in Division 1, we need not address Chinnis’ remaining challenges to the evidence sufficiency and jury instructions.

Judgment of contempt order affirmed. Judgment of conviction reversed.

Pope, P. J., Andrews, P. J., Smith, Miller and Phipps, JJ, concur. McMurray, P. J, dissents.

McMurray, Presiding Judge,

dissenting.

The existence of an improper or even illegitimate motive on the part of an arresting officer does not necessarily render a forcible stop unreasonable. The validity of a stop depends not on the officer’s subjective state of mind but rather on an objective assessment of the totality of the circumstances. Montoya v. State, 232 Ga. App. 24, 25 (2) (a) (499 SE2d 680); Larochelle v. State, 219 Ga. App. 792, 796 (4) (466 SE2d 672). Thus, I would disregard Officer Ward’s admirable candor about stopping white males at 2:00 a.m. in this known drug area where Ward had made previous drug arrests and focus on whether the objective facts authorize this traffic stop for another reason. The Supreme Court of the United States has held that a traffic stop based upon an observed traffic violation does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances, because “[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis.” Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SC 1769, 135 LE2d 89). An objective assessment of the totality of the circumstances in this case demands appellate approval of the trial court’s ultimate decision denying defendant Chinnis’ motion to suppress, based upon the violation of OCGA § 40-6-202 committed in the presence of the officer. This traffic violation authorized a custodial arrest of the driver, Chinnis, under the express holding of Ridgeway v. State, 205 Ga. App. 218, 219 (422 SE2d 4), authored by then-Presiding Judge Carley. On appeal, this Court is duty-bound to construe the evidence to uphold the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 57 (440 SE2d 646); In the Interest of J. L. G., 209 Ga. App. 565, 566 (434 SE2d 126) (whole court), citing Orkin v. State, 236 Ga. 176, 189 (3) (223 SE2d 61). Because the majority fails to do this and instead strays from the relevant appellate inquiry to improperly rule on an issue that does not control, and because the majority does not convincingly distinguish controlling precedent, I respectfully dissent from the judgment of reversal.

Lloyd, J Matthews, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

        Hughes v. State, 269 Ga. 258, 261 (1) (497 SE2d 790) (1998).

        Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994).

        Hughes v. State, supra.

       See State v. Robinson, 239 Ga. App. 349 (521 SE2d 377) (1999), in which this court found that an officer had no reasonable, articulable suspicion of criminal activity where he saw that the defendant was parked in a high-crime area and was talking to a man on a bicycle who fled when police tried to search him.

        Barlow v. State, 237 Ga. App. 152, 157 (4) (513 SE2d 273) (1999).

       See OCGA § 15-1-4 (a) (1); Carter v. State, 231 Ga. App. 42, 45-46 (497 SE2d 812) (1998).


text:
    A99A1390.
    MASINTER v. SALEM ROAD ASSOCIATES, L.L.C. et al.
    (522 SE2d 562)
   Ellington, Judge.

Michael Masinter contracted to buy a strip shopping center from Salem Road Associates, L.L.C. In the contract, Salem represented “to Seller’s knowledge without special inquiry or investigation” that, among other things, the rent roll attached to the contract accurately set forth all tenants presently in possession of the property and that use of all premises complied with all applicable laws and regulations. Masinter terminated the contract on grounds that the representations were false because the lease for one of the tenants, a dry cleaning business, had been “de facto” assigned (alleging someone else occupied the space) and that another tenant was selling alcoholic beverages in violation of unspecified local ordinances. Masinter also sued for breach of contract on these grounds, naming Salem and its limited liability company members as defendants.

Salem and its members moved to dismiss the complaint, which was later converted to a motion for summary judgment. They submitted the affidavit of Salem’s general manager, who unequivocally denied that Salem had any knowledge that the dry cleaning tenant had allegedly assigned its lease or that any establishment other than “Pro Cleaners” (as shown on the rent roll) had ever occupied the site and further denied that Salem was aware of any ordinance or regulatory violations by the liquor store. A copy of the local liquor ordinance, which did not appear to be violated, accompanied Salem’s pleadings. Salem also submitted the affidavit of the dry cleaning tenant who asserted without contradiction that he had not assigned his lease until a year after Masinter had terminated the contract. The liquor store tenant provided an affidavit stating that the store possessed a proper liquor license and had never been cited for violating any ordinance or law.

In response, Masinter submitted a memo from an agent for Salem attempting to address Masinter’s concerns (raised one month after the contract’s execution). The memo stated that if Masinter desired, Salem would ensure that the dry cleaning lease was assigned and that the liquor store tenant’s partner would co-sign and guarantee the lease. In his pleadings Masinter did not specify the alleged violation of the local ordinance. Based on this evidence, the court entered summary judgment in Salem’s favor, which Masinter appeals.

Decided September 15, 1999

Reconsideration denied October 25, 1999.

Thomas R. Todd, Jr., for appellant.

Weinstock & Scavo, Michael Weinstock, Adam M. Gleklen, Susan B. Jacobs, for appellees.

Defendants having challenged the lack of evidence of breach of contract, Masinter was obliged to present evidence demonstrating the alleged breaches or else face summary judgment. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The alleged breaches hinged on presenting evidence that the following statement was false: “to [Salem’s] knowledge without special inquiry or investigation” Pro Cleaners was the tenant at the dry cleaning property and the use of the liquor store was in compliance with law. Salem presented affidavits showing it knew nothing of any alleged assignment of the dry cleaner’s lease or of any violations of law by the liquor store. These affidavits further state that the dry cleaner’s lease was not assigned until a year after Masinter’s termination of the contract and that Pro Cleaners had continuously occupied the space. Masinter, however, presented no evidence that Salem, at the time it made these representations, had knowledge of anything to the contrary. The agent’s memo did not controvert Salem’s affidavits.

Controlling is Charles Evans Nissan v. Trussell Ford-Mazda, 200 Ga. App. 432, 434 (408 SE2d 419) (1991), in which the plaintiff’s warranty claim was based on defendant/seller’s alleged breach of a representation that “to the best of seller’s knowledge” the odometer reflected the true mileage of the vehicle being sold. (Emphasis in original.) Because the evidence showed the defendant had no reason to believe the true mileage differed from the mileage shown on the odometer, we affirmed summary judgment in favor of the defendant. Similarly, because the evidence here showed Salem had no reason to believe that Pro Cleaners was not the tenant in possession or that the liquor store was in violation of any law, we affirm the court’s granting of summary judgment to Salem and its members.

No breach having been shown, arguments regarding piercing the veil to make the limited liability company members personally liable are moot. We deny Salem’s motion for frivolous appeal.

Judgment affirmed.

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


author: McMurray, Presiding Judge. Phipps, Judge,

text:
    A99A1677.
    MINNIX et al. v. DEPARTMENT OF TRANSPORTATION et al.
    (525 SE2d 704)
   McMurray, Presiding Judge.

Seeking to recover for personal injuries to Craig David Minnix and for the wrongful death of Billy James Minnix arising out of an automobile incident, plaintiffs Jimmy Kay Minnix and Bonnie C. Minnix sued the other driver, defendant Tony Carroll Payne, for simple negligence, and also sued the Georgia Department of Transportation (DOT), alleging 30 specifications of DOT’s negligence. These allegations include the failure to paint “slash stripes” on the emergency lane; issuing an “access permit” for the construction of private, commercial or community driveway onto Georgia Highway 20; failing to require a clear zone of at least 40 feet; failing to comply with standards set forth in DOT safety manuals; failing to install object markers; negligent design configuration; negligent signs placement; plus violations of American Association of State Highway & Transportation Officials, Manual on Uniform Traffic Control Devices, and Georgia DOT standards. The complaint has no affidavit from an expert competent to testify, itemizing at least one specification of professional negligence and the factual basis for that opinion. In its answer, DOT objected to plaintiffs’ failure to file the affidavit of an expert as purportedly required by OCGA § 9-11-9.1 (a). The superior court granted DOT’s motion to dismiss certain claims, and this direct appeal followed. Plaintiffs enumerate the dismissal as error, arguing that DOT is not itself a licensed professional, and so after the 1997 amendment to OCGA § 9-11-9.1 (a), no expert affidavit is required. Held:

Because OCGA § 9-11-9.1 (a) applies to allegations that agents or employees of DOT failed to comply with the professional standards of architects, land surveyors, or professional engineers, we affirm the superior court’s dismissal of the specified claims against DOT.

OCGA § 9-11-9.1 (a) formerly required an expert’s affidavit in “any action for damages alleging professional malpractice. . . .” But in 1997, the General Assembly amended this law by striking Code section 9-11-9.1 (a), and inserting in its place the following:

In any action for damages alleging professional malpractice against a professional licensed by the State of Georgia and listed in subsection (f) of this Code section or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (f) of this Code section, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify. . . .

(Emphasis supplied.) OCGA § 9-11-9.1 (a); Ga. L. 1997, pp. 916, 917. Subsection (f) lists “[t]he [24] professions to which this Code section applies. . . .” Plaintiffs are correct that DOT is not licensed by the State to practice any of the professions itemized in subsection (f). From this, they reason that the clear implication of the 1997 amendment was to legislatively overrule prior decisions of this Court applying the affidavit requirement to engineering claims against DOT.

“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law, including decisions of the courts. [Cit.]” Chrysler Corp. v. Batten, 264 Ga. 723, 727 (4) (450 SE2d 208). This maxim of statutory construction also applies to amendments of existing law. See Botts v. Southeastern Pipe-Line Co., 190 Ga. 689, 700 (10 SE2d 375). Giving words their ordinary signification, OCGA § 9-11-9.1 (a) as currently drafted would appear to apply only to individuals licensed by the State. But a government agency, like a corporation, can act only through its human agents. The process of building and designing roads, requiring professional engineering services, has long been held to be within the purview of OCGA § 9-11-9.1. Dept. of Transp. v. Gilmore, 209 Ga. App. 656, 657 (2) (434 SE2d 114). Considering the old law, the perceived evil, and the legislative remedy, we conclude the 1997 amendment to OCGA § 9-11-9.1 did not change existing law with respect to claims of professional negligence against DOT. The affidavit requirement still applies to claims against a governmental entity when, in substance, liability is based on the exercise of professional skill and judgment by governmental agents or employees who are themselves licensed professionals as itemized in OCGA § 9-11-9.1 (f). Drawdy v. Dept. of Transp., 228 Ga. App. 338, 339 (491 SE2d 521); Adams v. Coweta County, 208 Ga. App. 334, 335 (2) (430 SE2d 599). Since plaintiffs failed to attach an expert’s affidavit to their complaint, the trial court correctly granted DOT’s OCGA § 9-11-12 (b) (6) motion to dismiss those claims sounding in professional negligence.

Judgment affirmed.

Johnson, C. J., concurs. Phipps, J., concurs specially.

Phipps, Judge,

concurring specially.

The Minnixes brought this action for damages against various defendants including the Department of Transportation (DOT). Plaintiffs charge the DOT with negligent design of a highway through acts and omissions of professionals employed by the DOT. But plaintiffs did not file an expert affidavit with the complaint because the professionals are not named as defendants.

Prior to its 1997 amendment, OCGA § 9-11-9.1 (a) required an expert affidavit to be filed with the complaint “[i]n any action for damages alleging professional malpractice.” Under that version of the statute, it was clear that the affidavit requirement applied in actions for damages against entities such as governmental agencies based upon the professional negligence of their agents or employees regardless of whether the agents or employees were party defendants. See Drawdy v. Dept. of Transp., 228 Ga. App. 338, 339 (491 SE2d 521) (1997) and cits. The question in this case is whether the affidavit requirement continues to apply in such settings.

Immediately following the initial phrase “[i]n any action for damages alleging professional malpractice,” the 1997 amendment to OCGA § 9-11-9.1 (a) adds the following language:

against a professional licensed by the State of Georgia and listed in subsection (f) of this Code section or .against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia and listed in subsection (f) of this Code section.

Did the 1997 legislature intend the statute to apply in an action for damages against an employer of a subsection (f) professional based on allegations of malpractice by the professional?

Although the statutory language is somewhat ambiguous on this point, the above question is resolved by examining the unquestioned purposes of the amendment. Clearly, the amendment was intended to change prior law by listing the professional occupations to which the affidavit requirement applies in the new subsection (f), Mug A Bug Pest Control v. Vester, 270 Ga. 407, 408 (1) (509 SE2d 925) (1999), something the unamended statute failed to do. See Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992). And the legislative history of the statute shows that reference to licensed health care facilities was included in subsection (a), not to change existing law, but rather to ensure that the statute continues to apply where damages are sought against a licensed health care facility based on allegations of malpractice by a professional employed by the facility. 14 Ga. St. Univ. L. Rev. 4, 6 (1997). Therefore, it does not appear that the legislature intended to restrict application of the statute to actions in which damages are sought against a licensed health care facility or subsection (f) professional. This conclusion is bolstered by the caption to the 1997 Act, which indicates that it continues to apply “in any action for damages alleging professional malpractice.” Ga. L. 1997, p. 916.

Decided October 12, 1999

Reconsideration denied October 27, 1999

Doffermyre, Shields, Canfield, Knowles & Devine, Foy R. Devine, David S. Hagy, Mundy & Gammage, William D. Sparks, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Lawson, Davis, Pickren & Seydel, Paul R. Jordan, Alison H. Price, G. Thomas Davis, for appellees.

For these reasons, I agree that the superior court did not err in dismissing those claims that involve allegations of professional negligence by subsection (i) professionals employed by the DOT.

       Specifically, the claims stated in the complaint at Paragraph 9 (a), (b), (c), (d), (f), (g), (h), (i), (j), (k), (1), (m), (n), (o), (p), (s), (v), (x), (y), (z), (aa), (bb), and (cc) all involve the application of professional engineering standards and expertise, and these were dismissed.


author: McMurray, Presiding Judge.

text:
    A99A2207.
    HASKA v. THE STATE.
    (523 SE2d 589)
   McMurray, Presiding Judge.

Defendant Ayet Haska was tried before a jury and found guilty of a single count of sexual battery in violation of OCGA § 16-6-22.1, in that he unlawfully and intentionally made “physical contact with the intimate parts of [E. T, the victim,] without [her] consent. . . .” In this direct appeal, Haska contends the trial court erred in failing to quash the accusation; in admitting inappropriate so-called similar transactions evidence; in commenting on the evidence; and in denying a mistrial after the State’s attorney referred to unnoticed similar transactions in the opening statement. Held:

1. Haska contends the accusation did not adequately inform him of the specific manner in which he allegedly violated OCGA § 16-6-22.1 because it did not allege the applicable “intimate parts” as defined in OCGA § 16-6-22.1 (a). We do not address the merits of this enumeration because Haska’s motion to quash was not timely.

Where a crime may be committed in more than one way, the failure to charge the manner in which the crime was committed subjects the indictment or accusation to a proper special demurrer. England v. State, 232 Ga. App. 842, 844 (2) (b) (502 SE2d 770). See also Barton v. State, 79 Ga. App. 380, 387 (1) (53 SE2d 707). Under Uniform Superior Court Rule 31.1, “All motions, demurrers, and special pleas shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial.” The accusation was preferred on September 29, 1998, and on November 4, 1998, defense counsel filed a notice of appearance announcing that defendant “waives arraignment and pleas [sic] not guilty.” Haska’s motion to quash was not filed until March 29, 1999, the morning of trial. There is no written extension of time for filing motions. Although the Supreme Court of Georgia recently held in D'Auria v. State, 270 Ga. 499, 500 (1) (512 SE2d 266) that an accusation which merely tracks the language of OCGA § 16-6-22.1 (b) is insufficient to enable the accused to prepare for trial, that authority would control here, but for defendant’s motion to quash being untimely. Haska waived any valid exception to the form of the accusation by failing to urge it in a timely written special demurrer. England v. State, 232 Ga. App. at 844 (2) (b), supra. Accord Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829).

2. Next, Haska contends the trial court erred in admitting three instances of allegedly similar transactions, complaining there is no similarity because none of the extrinsic events involved physical touching of intimate body parts as defined by the statute. We disagree.

The 15-year-old victim, E. T, worked part-time as a hostess for the Gondolier’s pizza restaurant where defendant Haska was the manager. He would flirt with E. T, and on the evening in question, Haska ordered E. T. to go in the back and restock a refrigerator with beer. As E. T. was facing the refrigerator, leaning over a little bit, defendant “came up behind [her] and placed his hand under [her] skirt and pinched [her] bottom.” E. T. was mad at Haska and hit him in the arm. She left the restaurant and went home.

Testimony about two extrinsic acts came from other restaurant employees: Cindy Atkins has worked at Gondolier’s on and off over the past six years. She confirmed that Haska grabbed her bottom “a couple of times, maybe three, four times . . . and that these advances were unwelcome. One time, Haska came up behind Atkins and snapped her bra strap. The victim’s sister, K. T, is three years older than E. T. She worked at Gondolier’s only two weeks and was not happy there. Haska never touched or grabbed K. T., but one time, as K. T. was standing at the front desk waiting to seat people, she had a sucker in her mouth. Haska asked K. T, “Do you do that for practice for guys?” The third extrinsic incident was related by the victim herself: Once, after driving E. T. home from work, Haska told her he had an important sporting event in the morning and asked E. T. for a “kiss for good luck.” She declined.

[T]he true test of admissibility is not the number of similarities between the [crime charged and the separate incident], but whether the evidence of prior incidents was substantially relevant for some purpose other than to show that the defendant likely committed the [charged] crime because he is a person of bad character. Bohannon v. State, 208 Ga. App. 576, 580 (431 SE2d 149).

Simmons v. State, 266 Ga. 223, 225 (2) (b) (466 SE2d 205). Cindy Atkins’ testimony of unwelcome touching at work, including incidents of grabbing similar to the charged crime, is highly probative of defendant’s general attitude toward his female employees, and is relevant to prove that the charged crime occurred as E. T. testified. Atkins’ testimony also rebuts the possibility of an unintended offense. K. T.’s testimony of Haska’s sexual innuendo also is probative of a pattern of inappropriate conduct directed at young female employees. The trial court correctly admitted evidence as to these extrinsic acts. Bohannon v. State, 208 Ga. App. at 579 (2) (b), supra. As to E. T.’s evidence that Haska asked for a kiss after driving her home, we assume, but do not hold, that the marginal relevance and probative value of this testimony does not sufficiently outweigh the risk of unfair prejudice. Nevertheless, in the context of the victim’s direct evidence coupled with properly admitted extrinsic acts evidence, it is highly probable the admission of this marginal evidence did not contribute to the verdict. Id. at 580 (2) (d).

3. Haska excepted to the trial court’s recharge in response to a note from the jury as an impermissible comment on the evidence. The note reads:

We, as a jury, feel that at some point, this behavior from the defendant [occurred]. But, we don’t feel that the State’s testimony [occurred] as presented. Does this 1) constitute reasonable doubt or 2) convict due to actions that we believe to be sexual [harassment] (battery)?

The trial court’s additional instructions included the following; error is assigned to the emphasized portion:

I don’t — can’t comment on the evidence itself, but, if it’s a question as to where it occurred, that is not that significance [sic]. The major thing is, did it occur with this alleged victim here, and was there intent to commit the act, and . . . obviously, a casual brushing against someone is not sufficient to commit a criminal act. There must be an intention to have an illegal touching of a person in one of the prohibited areas without that person’s consent.

Decided October 15, 1999

Reconsideration denied October 27, 1999

Smith, Price & Wright, Charles G. Price, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Seven minutes after receiving these instructions, the jury returned its guilty verdict.

Although Haska contends the trial court impermissibly minimized his successful impeachment of the victim as to the location in the restaurant and the location on her body where the alleged pinching occurred, we think the trial court’s comments correctly observe that “where,” that is, the location within the restaurant, is not an element of the offense, while explaining there must have been an intentional and prohibited touching in order to convict. In light of the court’s express disclaimer of commenting on the evidence, the recharge is not subject to Haska’s criticism that it violates OCGA § 17-8-57.

4. During opening statements, Haska moved for a mistrial contending the State’s attorney impermissibly referred to an unnoticed separate transaction, in which defendant tried to kiss the victim. The trial court correctly ruled that evidence of prior difficulties or incidents between the accused and the victim no longer needs a pre-trial hearing under USCR 31.1 and 31.3 in order to be admissible. Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904). It follows there was no abuse of discretion in denying defendant’s motion for mistrial in this instance.

Judgment affirmed.

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

       Defendant denied the pinching incident occurred and did not defend on the basis of a romantic attachment between a 27-year-old man and a 15-year-old girl. Compare Cornelius v. State, 213 Ga. App. 766 (445 SE2d 800).