text:
    A01A1096.
    HIGGINS v. THE STATE.
    (554 SE2d 212)
   Ellington, Judge.

A Fulton County jury convicted Lewis Higgins of three counts of aggravated sodomy, OCGA § 16-6-2 (a), two counts of aggravated child molestation, OCGA § 16-6-4 (c), and three counts of child molestation, OCGA § 16-6-4 (a). The trial court granted Higgins’ motion for an out-of-time appeal, and Higgins filed his appeal with this Court. Higgins contends his trial counsel was ineffective, the trial court erred in denying his motion for a continuance and in admitting certain evidence, and the evidence was insufficient to support his convictions. Finding no error, we affirm.

1. On appeal from his criminal convictions, Higgins no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Bethel v. State, 232 Ga. App. 82, 83 (1) (500 SE2d 595) (1998). So viewed, the record reveals that shortly after Higgins began living with his girlfriend, Deborah Nolen, his eight-year-old daughter, T. H., moved in with them. T. H. had been living with her paternal grandmother in Tennessee. On December 5,1989, Nolen caught Higgins in the act of performing oral sex on T. H. Nolen testified that shortly after she told Higgins she planned to shower and then go to bed, she walked through the living room and saw T. H. sitting on the couch, her gown pushed up and her underpants pulled down. Higgins was crouched between T. H.’s legs, his mouth on her genitals. Nolen testified that she froze in horror, dropped the lotion bottle she had been holding, and said, “Oh, my God.” Higgins told Nolen that he wanted her to catch him so that she would force him to get help. Nolen agreed to give Higgins a month to seek professional help. During that period, Nolen, and a neighbor in whom she confided, ensured that Higgins was never alone with T. H. Higgins never sought psychological help.

On January 1, 1990, Nolen confronted Higgins when he attempted to discipline T. H. by whipping her. Higgins became enraged and irrational. He began breaking things, “flicking” a knife back and forth, and threatening to kill himself. Two days after this incident, Nolen told Higgins she had “had it,” that something had to be done about the situation with T. H. That night, while Nolen and T. H. watched television in bed, Higgins began fondling Nolen’s breasts. Nolen told him to stop, but he refused. Nolen, herself a victim of child sexual abuse, testified that she was so frightened, she felt frozen in a state of shock. Higgins straddled Nolen and ordered T. H. to suck Nolen’s breast. The frightened child complied. Higgins also pushed T. H.’s head toward his penis and ordered her to orally sodomize him while he orally sodomized Nolen. Nolen started to leave, but Higgins ordered her back into the bedroom. Higgins pushed Nolen’s face between T. H.’s legs while he began to have anal sex with Nolen. When Nolen refused Higgins’ command to perform oral sex on T. H., Higgins began to fondle T. H.’s genitals and to orally sodomize her. Again, Nolen tried to leave, but Higgins ordered her back, saying: “You know that’s the best sex we’ve ever had since we’ve been together.” A few days after this incident, Nolen confided in her neighbor and the two called the police.

Although T. H. later recanted her testimony, she initially told investigators and her paternal grandmother that Higgins molested her. Immediately after the police arrested Higgins, T. H. whispered in a detective’s ear that her father “made her suck” Nolen’s “boobs.” A detective testified that during a videotaped interview, T. H. used anatomically correct dolls to illustrate the events of December 5 and of January 3. The videotaped interview was also played for the jury.

We find this evidence sufficient to support Higgins’ convictions for child molestation, aggravated child molestation, and aggravated sodomy beyond a reasonable doubt. See McCorkle v. State, 245 Ga. App. 505, 507 (1) (538 SE2d 161) (2000); Mann v. State, 244 Ga. App. 756, 757-758 (1) (536 SE2d 608) (2000).

2. In his first two enumerations of error, Higgins contends the trial court erred in admitting the child victim’s videotaped statement into evidence. Higgins argues he was not given proper notice of the State’s intent to use the videotape nor was he afforded ample time to prepare his defense once the videotape was admitted.

The record reveals that on March 12, 1990, Higgins filed “Consolidated Motions and Demands” for discovery. While under former OCGA § 17-7-210, Higgins was entitled to a copy of his in-custody statements ten days prior to trial, he was not entitled to a copy of the victim’s videotaped statement. See, e.g., Osborn v. State, 233 Ga. App. 257, 259-260 (2) (a) (504 SE2d 74) (1998). In fact, discovery rules in effect in 1990 did not require the disclosure of nonexculpatory witness statements. Walter v. State, 256 Ga. 666, 668 (1) (352 SE2d 570) (1987); see also State v. Lucious, 271 Ga. 361, 362 (1) (518 SE2d 677) (1999). Further, because the trial court found (and Higgins concedes) that the videotape contained no exculpatory evidence, the State was not required to produce it under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). McCoy v. State, 174 Ga. App. 621, 624 (4) (330 SE2d 746) (1985).

Even though Higgins was not entitled to a copy of the videotape prior to trial, the trial court did allow him the opportunity to review the tape prior to its introduction since the prosecutor had said in a pretrial hearing that he did not plan to use the videotape. The record shows that the prosecutor made the tape available to Higgins a full day before it was admitted. Moreover, the trial court recessed early to allow Higgins a chance to study the tape. Further, the prosecutor made Higgins a copy of the tape so that it might be evaluated by any expert Higgins chose to retain. We find no evidence that Higgins was prejudiced by the prosecutor’s statement that he did not intend to use the videotape at trial. The record shows that despite this statement, Higgins subsequently asked for and received funds from the State to retain an expert to assist in assessing the victim’s mental state, in cross-examining the State’s witnesses, and in generally preparing a defense. We find no error.

3. In parts (3) and (3) (a) of that section of his brief entitled “Preservation of Errors,” Higgins asserts he was denied the effective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)).

In enumeration (3) (a), Higgins asserts that trial counsel was ineffective for failing to object to portions of the prosecutor’s closing argument. Higgins, however, has neither identified the specific statements to which counsel should have objected nor presented facts or legal argument in support of his assertion that the prosecutor’s statements were objectionable. Although Higgins included record citations to several pages of closing argument, we have found nothing within those pages that could be characterized as improper. Because this enumeration of error is essentially unsupported, we deem it abandoned pursuant to Court of Appeals Rule 27 (c) (2). Lewis v. State, 245 Ga. App. 234, 236 (3) (a) (537 SE2d 111) (2000).

In enumeration (3), Higgins states that he was “denied effective assistance of counsel.” In the “Argument and Citation” portion of his brief, Higgins elaborates a little further, contending that he did not receive a fair trial “due to counsel’s inability to adequately prepare for his defense.” We surmise that Higgins believes his counsel was deficient because he failed to retain an expert to assist in the preparation of his defense. Given the testimony at the motion for new trial hearing, the expert would have benefitted Higgins’ defense, at best, by showing that T. H. was possibly “programmed or coached” by Nolen or investigators into giving untruthful statements. A review of the trial transcript, however, reveals that substantially the same evidence came in through the testimony of T. H. She testified that Nolen “told lies on her dad” and that Nolen told her “to tell the police that my dad had touched me where he wasn’t supposed to, and he didn’t.” Also, Higgins’ mother testified that T. H. told her that Nolen had coached her on what to do with the anatomically correct dolls. Because the expert’s testimony would have been redundant of that already adduced, Higgins has not carried his burden of showing he was prejudiced by counsel’s failure to retain an expert. See Zant v. Moon, 264 Ga. 93, 98 (440 SE2d 657) (1994) (even if trial counsel’s conduct was deficient, defendant must prove there is a likelihood that counsel’s deficient performance prejudiced the defense). We find no error.

Decided August 10, 2001.

Johnson, Prioleau & Kenison, Theodore Johnson, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       Higgins requested exculpatory material under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963); discovery under former OCGA § 17-7-210 (defendant’s statements); discovery under former OCGA § 17-7-211 (scientific reports); and a copy of the indictment and a list of witnesses. We have not found, nor has Higgins shown us by citation to the record, a notice to produce the videotape at issue.

       Although former OCGA § 17-7-210 was repealed effective January 1, 1995, it is still applicable to the instant case because Higgins was indicted prior to that date. See, e.g., Matthews v. State, 221 Ga. App. 129, 130 (2) (470 SE2d 518) (1996).

       An assertion of error followed by a case citation is not legal argument. As we have explained, legal analysis “is, at a minimum, a discussion of the appropriate law as applied to the relevant facts.” Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000).

       In his brief, Higgins summarized the motion for new trial transcript by presenting a lengthy account of what his trial counsel did and did not do and of v/hat his proffered expert witness thought about the case and the evidence adduced. However, Higgins never specifically articulated how counsel’s performance was deficient or how that deficient performance affected the outcome of the trial.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A01A1158.
    PHILLIPS v. THE STATE.
    (553 SE2d 847)
   Ellington, Judge.

A Dawson County jury convicted Dwight Glen Phillips of two counts of aggravated child molestation, OCGA § 16-6-4 (c). Phillips appeals from the judgment of conviction, contending the evidence was insufficient to support his convictions and the trial court erred in admitting certain evidence. Finding no error, we affirm.

1. On appeal from his criminal convictions, Phillips no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. McCorkle v. State, 245 Ga. App. 505, 506 (538 SE2d 161) (2000). So viewed, the record reveals that in 1990, the victim, nine-year-old K. R, her sister, S. R, and their mother, Sheila Phillips, lived with the appellant’s mother, June Phillips Young. K. P. and S. P. stayed with Young while their mother recovered from having witnessed a car accident in which her husband, the appellant’s brother, was killed. Phillips, who is K. P.’s uncle, lived nearby in a trailer. K. P. told investigators that from 1990 through 1993, Phillips fondled her breasts and genitals, put his finger inside her vagina, put his penis in her mouth, and once attempted anal intercourse with her. K. P. testified that Phillips often made her watch pornographic videos and reenact what she had seen. K. P. testified that on one occasion, Phillips took her to his bedroom and tried to have sexual intercourse with her. K. P. testified that Phillips put his penis inside her vagina and that it hurt so bad she cried out. S. P. testified that she saw K. P. on Phillips’ bed and saw Phillips nude from the waist down.

After the girls moved out of their grandmother’s home, S. P. told their mother what had happened to K. P. The mother spoke with K. R, and K. P. reluctantly explained that her uncle had been “doing things” to her. The mother notified the Department of Family & Children Services (“DFACS”) and the sheriff’s office. The sheriff and a DFACS employee also testified as to K. P.’s statements regarding the molestation. A gynecological examination revealed that K. P.’s hymen had been perforated.

The State also introduced similar transaction testimony from R. G., Phillips’ cousin. R. G. testified that when she was five years old, Phillips gave her money to put her mouth on his penis. When R. G. was ten years old, Phillips drugged her, took her to his bedroom, made her watch pornographic videos, and put his penis in her mouth. R. G. once tried to report Phillips’ conduct to Young, her aunt. Young, however, ignored the complaint, calling R. G. “a little liar.”

Phillips testified in his own defense, claiming he was never alone with S. P., K. P., or R. G. Young also testified that Phillips was never alone with the children. Young and her husband both testified that their relationship with K.P.’s mother soured after a court battle between them, intimating that K. P.’s mother fabricated the charges out of revenge. Young also claimed that R. G. was unduly influenced by her mother, Young’s sister, whose relationship with Young had been strained.

In rebuttal, the State presented the testimony of J. R., R. G.’s brother. J. R. testified that when he was between six and twelve years old, he and his sister were frequently alone with Phillips, that Phillips showed him pornographic videos, and that Phillips engaged him in oral sodomy.

The evidence was sufficient to enable a rational trier of fact to find proof of Phillips’ guilt of two counts of aggravated child molestation beyond a reasonable doubt under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See McCorkle v. State, 245 Ga. App. at 507 (1).

2. Phillips contends the trial court erred in admitting S. P.’s statements regarding K. P.’s molestation through the testimony of other witnesses, a violation of the rule against hearsay, OCGA § 24-3-1. See Phillips v. State, 241 Ga. App. 764, 766-767 (527 SE2d 604) (2000). None of the statements about which Phillips complains, however, were made by S. P. Only K. P.’s statements, which were admissible under the Child Hearsay Statute, OCGA § 24-3-16, were placed in evidence. See Crider v. State, 246 Ga. App. 765, 766-767 (1) (542 SE2d 163) (2001). Because the record does not support Phillips’ argument, this enumeration of error is without merit.

3. Phillips contends the trial court erred in allowing Sheila Phillips to testify that she suffered an emotional breakdown after she learned that K. P. had been molested. As we have held:

Admissibility of evidence is a matter which rests largely within the sound discretion of the trial court. Even though alone it may not be sufficient, evidence which in connection with other evidence tends, even slightly, to prove, explain, or illustrate a fact is probative and relevant. Doubt as to relevancy should be resolved in favor of admission and against exclusion, with the evidence’s weight left to the jury.

Decided August 10, 2001.

Sean A. Black, for appellant.

Lydia J. Sartain, District Attorney, Lisa A. Jones, Assistant District Attorney, for appellee.

(Punctuation and footnotes omitted.) Wells v. State, 243 Ga. App. 629, 630-631 (2) (534 SE2d 106) (2000). Because the evidence was relevant to the witness’s credibility and how the witness responded to K. P.’s outcry of molestation, the trial court did not abuse its discretion in admitting the testimony. See id.

4. Phillips also contends the trial court erred in admitting through the testimony of K. P., R. G., and J. R. evidence that Phillips possessed pornographic materials. Because Phillips failed to object to this testimony, the claim of error was not preserved for appeal. Hines v. State, 246 Ga. App. 835, 836 (1) (541 SE2d 410) (2001). Moreover, even if Phillips had properly objected, evidence of his possession of pornographic materials under these circumstances is inadmissible only when the State fails to properly link that evidence to the crime charged and offers it only to show the defendant’s lustful disposition in general. See Jowers v. State, 245 Ga. App. 773, 774 (2) (538 SE2d 853) (2000). Because the witnesses testified that Phillips showed the pornographic videos to them, the fact that Phillips possessed those videos was properly linked to the crimes charged. Id.

5. Phillips argues the trial court erred in admitting the similar transaction testimony of J. R. on the sole ground that it should have been introduced during the State’s case-in-chief and not on rebuttal. However, “[r]ebuttal testimony should not be excluded merely because the state could have introduced it during its main case.” Thompson v. State, 237 Ga. App. 91, 93 (2) (514 SE2d 870) (1999). J. R.’s testimony rebutted the assertions and inferences that K. P., S. R, and R. G. fabricated their stories and that Phillips was never alone with the children. Consequently, it was properly admitted. See generally Verble v. State, 172 Ga. App. 321, 322 (2) (323 SE2d 239) (1984). We find no error.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A1209.
    SWANGER v. THE STATE.
    (554 SE2d 207)
   Ellington, Judge.

A jury convicted Michael Swanger and his girlfriend, Melissa Golden, of trafficking in amphetamine, OCGA § 16-13-31 (e), and possession of marijuana, OCGA § 16-13-30. Swanger challenges his convictions on appeal, contending the evidence was insufficient to support the jury’s verdict and that the trial court erred in failing to give an instruction on a lesser included offense. Finding no error, we affirm.

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

(Citations and punctuation omitted.) Ellison v. State, 233 Ga. App. 637 (504 SE2d 779) (1998).

Viewed in this light, the evidence showed that, on August 6, 1998, Agents Witmer and Bridgeman of the Clayton County Drug Enforcement Task Force investigated reports of illegal drug activity at 1040 Lakeshore Drive, Jonesboro. Golden resided at this address, was at home when the officers arrived, and let them into the house. Although Golden refused to give her consent to a search, the officers saw a marijuana cigarette in plain view in the living room. While Agent Bridgeman left the scene to secure a search warrant, and Golden was transported to the police station, Agent Witmer remained to secure the house.

Shortly thereafter, Swanger drove his car into the driveway and unlocked the front door with a key. Agent Witmer ordered Swanger to “get down on the ground” and patted him down for weapons. The officer found a “bulge” in Swanger’s right front pocket and, when he removed it, discovered that it was marijuana in a plastic bag. Swanger was arrested for possession of marijuana. After Agent Bridgeman returned with the warrant, the officers executed the search. The officers found a large quantity of amphetamine in a duffel bag under the bed in the master bedroom, along with men’s clothing. They also found several plastic sandwich bags of amphetamine hidden elsewhere in the bedroom. The amphetamine weighed a total of 401.8 grams and was valued at over $40,000. In the same bedroom, officers discovered postal scales, packaging materials, straws with “little scoops on the end,” a beer can with a false bottom and marijuana residue inside, and sandwich bags — “the same kind of baggie in which [Swanger] had his marijuana packaged in.” The officers also found marijuana in the bedroom and observed seven marijuana plants growing in the yard.

1. Swanger contends the evidence was insufficient to support his conviction for trafficking in amphetamine. Specifically, Swanger argues that the circumstantial evidence was insufficient to establish that he resided in the house where the drugs were found, contending instead that he was “merely present” at the scene. Further, he claims that other people had equal access to the house, so that the circumstantial evidence did not exclude the possibility that someone else put the drugs in his bedroom without his knowledge.

In order to prove the crime of trafficking in amphetamine under OCGA § 16-13-31 (e), the State must show that the defendant knowingly sold, manufactured, delivered, or possessed 28 grams or more of the drug.

In prosecuting [Swanger] for these offenses, the State relied on circumstantial evidence to show constructive possession of the [amphetamine] found in the house because there was no evidence establishing that he was in actual possession of the contraband. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. Similarly, evidence merely showing that contraband was found in the residence occupied by the defendant is insufficient to support a conviction if it affirmatively appears from the evidence that other persons had equal access to the contraband and therefore an equal opportunity to commit the offense. And, where [,] as in this case, the conviction is based on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused! ] is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence,. . . than is a court of law. It is only where the evidence or a lack of evidence, tested by all human experience, establishes a reasonable hypothesis of innocence, that this Court may declare it so as a matter of law.

(Citations and punctuation omitted.) Ellison v. State, 233 Ga. App. at 638-639 (2). See also OCGA § 24-4-6; Sutton v. State, 245 Ga. App. 881, 882 (1) (539 SE2d 227) (2000); Brown v. State, 244 Ga. App. 440, 442-443 (2) (535 SE2d 785) (2000).

(a) In this case, there was sufficient circumstantial evidence to show that Swanger resided at 1040 Lakeshore Drive. Swanger had a key to the house. Two insurance bills, dated two months before Swanger’s arrest, were addressed to Swanger at 1040 Lakeshore Drive, Jonesboro. A letter from Golden to Swanger stated in part as follows: “I hope you have a very good time while your [sic] in Florida, but not that much fun. No need to worry about the home front. It’s already waiting on your return. Just if you would on the Fourth of July make sure you smoke one on the beach for me.” (Emphasis supplied.) Further, Swanger’s brother testified that Swanger kept clothes at the house. This evidence is sufficient to demonstrate that Swanger was more than a mere visitor and, in fact, jointly possessed the premises with Golden. Cantrell v. State, 204 Ga. App. 330, 331 (419 SE2d 141) (1992); Morris v. State, 161 Ga. App. 141-142 (288 SE2d 102) (1982); cf. Morrison v. State, 220 Ga. App. 151-152 (469 SE2d 686) (1996) (defendant had no key to the house and was unable to enter without co-defendant, a resident of the house). Since possession may be joint or exclusive, the fact that Golden and Swanger shared the master bedroom did not exculpate either defendant. Andrews v. State, 219 Ga. App. 808-809 (1) (466 SE2d 909) (1996); Cantrell v. State, 204 Ga. App. at 331.

Further, when he entered the house on the day of his arrest, Swanger possessed marijuana. The marijuana was packaged in the same type of sandwich bag as found in the bedroom with drug trafficking paraphernalia, and marijuana plants were grown in plain view in the backyard. This evidence of Swanger’s involvement in the drug trade supported a finding of his constructive possession of the other drugs in the house. Sutton v. State, 245 Ga. App. at 882 (1); Brown v. State, 244 Ga. App. at 442-443 (2).

Therefore, we find the circumstantial evidence presented was sufficient for the jury to find that Swanger was in joint, constructive possession of the amphetamine in the master bedroom.

(b) Swanger also contends that the circumstantial evidence did not exclude the hypothesis that others had access to the house and could have placed the duffel bag and amphetamine under the bed in the master bedroom.

The equal access defense is based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. For the equal access rule to rebut the inference of defendant’s possession of contraband, affirmative evidence must be presented that a person other than the defendant had equal access to the premises where the contraband was found. . . . Whether the evidence presented is sufficient to rebut the evidence of equal access is an issue for the jury.

(Citations and punctuation omitted.) Andrews v. State, 219 Ga. App. at 809 (1). See also Tran v. State, 246 Ga. App. 153, 159-160 (6) (539 SE2d 862) (2000). This equal access rule, however, generally applies to areas which are “open, notorious!,] and easily accessible to other persons.” Cantrell v. State, 204 Ga. App. at 331.

In supporting Swanger’s theory that the drugs belonged to someone else, Golden’s father testified that the front door to the house was sometimes left unlocked. A friend of Golden and Swanger claimed that there was a “get together” at their house the night before they were arrested. Although several people supposedly attended this party, no other witnesses testified about it. The friend claimed that he saw a man named “Steve” bring a duffel bag into the house. The same witness admitted, however, that he never saw “Steve” take the duffel bag to the master bedroom and, in fact, stated that the bedroom door was shut during the get-together. He also testified that the guests were using illegal narcotics, including methamphetamine, in the defendants’ presence.

Having heard evidence in support of Swanger’s equal access theory, the jury was authorized to reject it and find that, under these circumstances, no other person had an equal opportunity to place the amphetamine under the bed of the master bedroom. Tran v. State, 246 Ga. App. at 159 (6); Andrews v. State, 219 Ga. App. at 809 (1); see Mathis v. State, 204 Ga. App. 896, 897-898 (1) (420 SE2d 788) (1992) (access to a house by a mere visitor is not the same as equal access); see also Morrison v. State, 220 Ga. App. at 152 (1) (a) (this Court does not speculate about which evidence the jury chooses to believe or disbelieve).

Decided August 10, 2001.

Patricia F. Angelí, for appellant.

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

2. Swanger also contends the trial court erred in failing to give his requested charge on the lesser included offense of possession of amphetamine, arguing there was slight evidence of his possession of less than 28 grams of the drug. See OCGA § 16-13-31 (e). Swanger does not specify what evidence allegedly supported a simple possession charge besides the fact that the 401.8 grams of amphetamine found in the house as a mathematical rule included less than 28 grams. See Howard v. State, 220 Ga. App. 579, 582-583 (2) (469 SE2d 746) (1996).

In this case, the jury rejected Swanger’s “mere presence” and “equal access” theories and found him in joint, constructive possession of the amphetamine. See Division 1, supra. The large quantity of amphetamine found, 401.8 grams, was significantly more than that which supports a simple possession conviction under OCGA § 16-13-31 (e) and clearly constitutes trafficking. See Adorno v. State, 236 Ga. App. 588, 592 (4) (512 SE2d 703) (1999); cf. Lumpkin v. State, 245 Ga. App. 627, 629-630 (538 SE2d 514) (2000) (evidence showed that defendant possessed exactly 28 grams of cocaine, the minimum amount for a trafficking conviction). Accordingly, we find that, even if the trial court’s failure to give the requested instruction was error, it is highly probable that the error did not contribute to the verdict. Therefore, such failure was harmless under these circumstances. See Adorno v. State, 236 Ga. App. at 592 (4); Howard v. State, 220 Ga. App. at 583 (2).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       Golden, who also was convicted of obstruction of an officer, is not a party to this appeal. See Golden v. State, 250 Ga. App. 288 (551 SE2d 398) (2001).

       Other facts of this case are also presented in Golden v. State, 250 Ga. App. at 289.

       The undisputed evidence showed that Golden resided at the house.


author: Ruffin, Judge.

text:
    A01A1087.
    SULLIVAN v. THE STATE.
    (554 SE2d 217)
   Ruffin, Judge.

Anthony Wayne Sullivan pled guilty to one count of possession of marijuana over one ounce, and the trial court sentenced him to ten years, with five to serve in prison. In his sole enumeration of error on appeal, Sullivan contends that the trial court erred in considering evidence of an assault he allegedly committed, in aggravation of sentencing. For reasons that follow, we affirm.

On September 3, 1999, Sullivan was arrested for possessing marijuana, and he pled guilty to the offense on November 8, 1999. The trial court deferred sentencing Sullivan until a later date in order for the State to conduct a pre-sentencing investigation. Pending the completion of the investigation, the trial court permitted Sullivan to remain out of jail on bond.

The sentencing hearing took place on March 8, 2000. During the hearing, the State tendered evidence in aggravation of sentencing, including testimony that, while on bond, Sullivan struck his girlfriend, Sherry Clayton, with a baseball bat. Sullivan’s attorney objected to the introduction of this evidence on relevance and because the State did not have a certified copy of conviction. The trial court overruled the objection, permitting Clayton to testify regarding the incident. Although Sullivan denied hitting Clayton, the trial court evidently disbelieved him. Prior to announcing Sullivan’s sentence, the trial court informed him:

Well, in your case it would probably have been better if we had gone ahead and incarcerated you because I don’t take it lightly that while you were out pending sentencing this Ms. Clayton underwent some traumatic injuries that could have even [sic] resulted in her death. It certainly resulted in some serious bodily harm to her. And I feel a great deal of responsibility to the citizens of this State when I have people come before me who admit their guilt and then they’re out awaiting sentencing and if they go out and commit other offenses I don’t take that very lightly. I think that reflects very seriously on what the Court has to do in these type of cases.

The trial court then sentenced Sullivan to ten years confinement, with five years to serve.

On appeal, Sullivan asserts that the trial court erred in relying upon his alleged assault of his girlfriend in imposing his sentence. According to Sullivan, a trial court may not consider such unindicted criminal charges in aggravation of sentencing. We disagree.

Decided August 13, 2001.

Melodie S. Bedford, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

In determining what sentence to impose, a court is “authorized to consider in aggravation any lawful evidence which tends to show the motive of the defendant, his lack of remorse, his general moral character, and his predisposition to commit other crimes.” Moreover, “a prior crime may be proven in aggravation despite the lack of a conviction, so long as there has not been a previous acquittal.” Accordingly, the trial court was permitted to consider evidence that Sullivan struck his girlfriend, notwithstanding the fact that he had not been indicted for the crime.

The case cited by Sullivan, Sinkfield v. State, does not require a different result. In Sinkfield, the State tendered a prior indictment in aggravation of sentencing. The Supreme Court concluded that an indictment, alone, “is too much less than a conclusive determination of guilt to permit its use in aggravation of punishment.” Here, however, the State tendered more than a mere indictment. The State presented testimony from the alleged victim. As discussed above, in seeking enhanced punishment, the State may introduce evidence of a prior crime for which a defendant has not been convicted so long as there has not been an acquittal. To do so, however, the State must introduce testimony to establish the offense rather than relying solely upon the indictment. As Sullivan’s girlfriend testified regarding the alleged assault, the trial court did not err in considering the crime in aggravation of sentencing.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       The State also tendered, without objection, certified copies of several prior convictions in aggravation of sentencing.

       (Punctuation omitted; emphasis in original.) Phillips v. State, 241 Ga. App. 689, 690 (527 SE2d 283) (1999).

        Isaacs v. State, 259 Ga. 717, 728 (16) (b) (386 SE2d 316) (1989).

       See Demetrios v. State, 246 Ga. App. 506, 510 (541 SE2d 83) (2000).

       262 Ga. 239 (416 SE2d 288) (1992).

       Id. at 240 (2).

       See Isaacs, supra.

       See Jefferson v. State, 256 Ga. 821, 827 (8) (b) (353 SE2d 468) (1987).

       Id.


text:
    A01A1143.
    AHMADI v. THE STATE.
    (554 SE2d 215)
   Ruffin, Judge.

A jury found Mohammad Ahmadi guilty of one count each of aggravated assault and cruelty to children and two counts of aggravated battery. Ahmadi appeals, challenging the sufficiency of the evidence supporting his convictions. We affirm.

On appeal, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Ahmadi guilty of the crimes charged beyond a reasonable doubt. Viewed in this light, the evidence showed that the month after Ahmadi divorced his wife of ten years, the two reunited. The reunion was short-lived, however, as Ahmadi and his former wife soon started arguing about Ahmadi’s accusations of infidelity. On the day of the attack at issue here, Ahmadi called his former wife at work and threatened to leave and take the couple’s two children with him.

When the former wife returned that evening to the motel room where they were living, Ahmadi was there with the two children. According to the former wife, they had spoken briefly, and she was sitting on the corner of the bed when Ahmadi pulled a baseball bat from beneath the bed and started beating her. The victim almost immediately lost consciousness, and a responding paramedic testified that, when he found her, she had “lost a substantial amount of blood,” suffered “extensive trauma to her head, with major hemorrhage,” and bruising on her chest. The paramedic further stated that the victim “appeared to have a broken arm, broken wrist, [her] fingers were swollen, [and she had] some bruises on her legs, this type of thing.” An emergency room physician testified that the victim suffered facial bone fractures, “eight different bones fractured on her left hand,” and “she also had fractures of fingers on the right hand.”

On appeal, Ahmadi advances two arguments in support of his assertion that the evidence was insufficient to support his conviction. First, Ahmadi argues that he “testified that he did not commit the acts of violence against his former wife and the issue of credibility should have been resolved in his favor.” Actually, the transcript reveals that Ahmadi did not deny beating his former wife, but merely testified that he had no recollection of the attack. In any event, “the credibility of witnesses is a question for the jury,” and the evidence, construed in favor of the verdict, was more than ample to support the verdict.

Decided August 13, 2001.

Lyle K. Porter, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.

Ahmadi next argues that “[n]o testimony was offered that the right index finger was rendered useless as set out in the indictment.” In Count 2 of the indictment, the State charged Ahmadi with aggravated battery, alleging that he “unlawfully and maliciously cause [d] bodily harm to [the victim] by rendering useless a member of her body, to wit: her right middle finger, by striking said finger with a baseball bat and fracturing it.” This allegation was supported by the treating physician’s testimony that the victim “had fractures of fingers on the right hand,” the victim’s testimony that the middle finger on her right hand was splinted, and a photograph admitted into evidence which reveals a splint on the middle finger of the victim’s right hand. In addition, the victim testified that, during her ten-day hospital stay, she was unable to write or do things with her hands. To constitute aggravated battery under our statute, “[t]he bodily member need not be rendered permanently useless, and even the temporary reduced use of a bodily member may be sufficient to render it useless.” With almost unexampled savagery on the part of Ahmadi, we have no difficulty concluding that the jury was authorized to return the verdict. Accordingly, we conclude that the evidence was sufficient to meet the standard of Jackson v. Virginia.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       The jury also found Ahmadi not guilty of a second count of cruelty to children.

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

        Weaver v. State, 262 Ga. 196, 197 (415 SE2d 640) (1992).

       (Emphasis supplied.)

       OCGA § 16-5-24 (a).

       (Footnotes omitted.) Ganas v. State, 245 Ga. App. 645, 647 (1) (b) (537 SE2d 758) (2000).

       See Jackson, supra. To the extent that Ahmadi asserts the evidence supporting his convictions on the other counts was insufficient, he has not supported such assertions with citation of authority or argument, and they are thus deemed abandoned. See Court of Appeals Rule 27 (c) (2).


text:
    A01A1268.
    SANFORD v. THE STATE.
    (553 SE2d 854)
   Ruffin, Judge.

Randall W. Sanford pled guilty to driving under the influence, driving with a suspended license, and driving without proof of insurance. The trial court sentenced Sanford to 36 months and directed that he serve 30 days in confinement with the remainder on probation. On December 22, 2000, after Sanford violated the terms of his probation, the trial court entered an order revoking the probation and requiring him to serve “180 days with credit for 24 days served/ NO EARLY RELEASE.” After the trial court denied Sanford’s motion to delete the “no early release” provision from the sentence, we granted his application for discretionary appeal. For reasons that follow, we remand the case to the trial court to modify the sentence.

Georgia law authorizes the custodian of a county inmate to “award earned time allowances . . . based on institutional behavior” and requires that “[a]n inmate sentenced to confinement as a county inmate shall be released at the expiration of his or her sentence less the time deducted for earned time allowances.” We have ruled that “these provisions are directly related to the duties of administration, affirmatively delegated to the custodians of inmates by the legislature.” Likewise, our Supreme Court has ruled that a sentencing “judge has no authority to say what good-time or extra good-time allowance a prisoner shall be given, as the law vests that authority in the Board of Corrections for prisoners under its jurisdiction . . . and as to misdemeanor prisoners sentenced to serve in the county, in the custodian of the prisoners.”

When the trial court in this case denied Sanford’s motion for sentence modification, it recognized that it had no authority to “ ‘impose its will over the Executive Department’ ” concerning an earned time allowance. The court insisted, however, that the “no early release” provision in the probation revocation order “was intended to be advisory to the sheriff,” and it therefore denied Sanford’s motion. While we will not dispute the trial court’s intent, the plain language of its revocation order emphatically requires Sanford to serve his time with “NO EARLY RELEASE.” Notwithstanding the trial court’s intent, the order speaks for itself, and Sanford’s “post-sentence custodian should not be asked to comply with an order of the trial court which is inconsistent with the law.” Accordingly, this matter is remanded to the trial court with direction to strike the “no early release” provision from the probation revocation order.

Judgment of probation revocation reversed in part and remanded with direction.

Johnson, P. J., and Ellington, J., concur.

Decided August 13, 2001.

Paola F. Torselli, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Amy R. Simon, Assistant Solicitor-General, for appellee.

       OCGA § 42-4-7 (b) (1), (3) (Supp. 2001).

        Davis v. State, 181 Ga. App. 498 (1) (353 SE2d 7) (1987).

        Grimes v. Stewart, 222 Ga. 713 (152 SE2d 369) (1966). See also Hutchins v. State, 243 Ga. App. 261 (2) (533 SE2d 107) (2000); Johns v. State, 160 Ga. App. 535, 536-537 (287 SE2d 617) (1981).

        Johnson v. State, 248 Ga. App. 454, 456 (3) (546 SE2d 562) (2001).


author: Phipps, Judge.

text:
    A00A2556.
    THE STATE v. JONES.
    (553 SE2d 631)
   Phipps, Judge.

In State v. Jones, we affirmed the trial court’s grant of a special demurrer to certain counts of an accusation preferred against Paul Jones. The Supreme Court of Georgia has granted certiorari, vacated our judgment, and remanded for consideration in light of Davis v. State.

This is an appeal by the State from the grant of Jones’s special demurrer to Counts 5 and 6 of a multi-count accusation. Counts 5 and 6 charged Jones with fleeing or attempting to elude a police vehicle in violation of OCGA § 40-6-395 (a). In pertinent part, OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. . . .

Count 5 alleged that Jones “did willfully attempt to elude a pursuing police vehicle when given a visual signal to bring the vehicle to a stop.” Count 6 alleged that Jones “did willfully fail to bring his vehicle to a stop when given a visual signal by a pursuing police vehicle.” The trial court granted Jones’s special demurrer to Counts 5 and 6 under the rule that “[w]here 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. [Cits.]” We held that the court was correct in this ruling, because the offense charged could have been committed by Jones’s failure to respond to a visual signal of the officer either by hand or by emergency light; the accusation did not allege which type of visual signal Jones was given; and Jones was entitled to this information to prepare his defense. In so holding, we distinguished between general and special demurrers.

An accusation or indictment is not subject to a general demurrer unless there is a defect so extreme that the defendant can admit the charge as made and still be innocent. In contrast, an accusation or indictment is subject to special demurrer if it is not “perfect in form as well as substance.” By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information. (Cit.)

Following his trial, the defendant in Davis appealed his conviction of reckless driving. Tracking the language of the reckless driving statute, Davis’s accusation alleged that he had driven his vehicle “in reckless disregard for the safety of persons or property.” Davis filed a special demurrer asserting that the accusation was defective because it was framed in the alternative. The trial court refused to sustain the demurrer. The Supreme Court affirmed on three independent grounds. First, the Court noted that the special demurrer was not timely. Second, the Court held that there was no merit in the special demurrer. Third, the Court concluded that even if the overruling of the special demurrer had been erroneous, the accusation nonetheless provided Davis with sufficient information to mount his defense so that he was not prejudiced.

We find Davis clearly distinguishable insofar as the first ground for the Davis decision is concerned. Unquestionably, Jones filed his special demurrer in a timely fashion. We, however, find the second and third grounds of the Davis decision more problematic. The Supreme Court in Davis concluded that the special demurrer was without merit there, because the accusation included all of the essential elements of the crime charged and advised the defendant of what he must have been prepared to confront. As authority, the Court relied primarily upon State v. Eubanks and Williams v. State, even though both of these cases involved general demurrers. As against a general demurrer,

Decided August 7, 2001

Reconsideration denied August 14, 2001

Joseph J. Drolet, Solicitor-General, Shukura L. Ingram, Assistant Solicitor-General, for appellant.

the true test of the sufficiency of the indictment is not “whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, ‘and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.’ ” [Cits.]

The foregoing test also applies when trial has been had before the appellate court reviews the merits of a special demurrer.

This case, however, involves a pretrial appeal by the State from the grant of a special demurrer. The accusation did not track the language of the statute, as it omitted any allegation as to whether the visual signal was given by hand or emergency light. Whether the omission of such an allegation would prove prejudicial to Jones’s presentation of his defense is unknowable, because the trial has not been held and we have no way of determining from the appellate record what the evidence will show. We, therefore, continue to believe that this case is governed by the rules concerning special demurrers cited in our earlier opinion.

But we do find reason to reconsider our earlier decision based upon other grounds not raised by the parties. Although Count 6 of Jones’s accusation failed to allege whether the visual signal was given by hand or emergency light, it did allege that the signal was given by a pursuing police vehicle. Of necessity, such signal must have been given by emergency light. We, therefore, reverse the trial court’s grant of Jones’s special demurrer to Count 6 of the accusation. We adhere to our affirmance of the grant of Jones’s special demurrer to Count 5.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Smith, P. J., concur.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellee.

       246 Ga. App. 482 (540 SE2d 622) (2000).

       272 Ga. 818 (537 SE2d 327) (2000).

        Haska v. State, 240 Ga. App. 527 (1) (523 SE2d 589) (1999).

       (Footnotes omitted.) State v. Jones, supra, 246 Ga. App. at 483.

       OCGA § 40-6-390 (a).

       239 Ga. 483, 486 (238 SE2d 38) (1977).

       165 Ga. App. 69, 70 (4) (299 SE2d 402) (1983).

        State v. Black, 149 Ga. App. 389, 390 (2) (254 SE2d 506) (1979).

        Franklin v. State, 243 Ga. App. 440, 441 (533 SE2d 455) (2000).


author: Blackburn, Chief Judge.

text:
    A01A0702.
    SMITH et al. v. GEORGIA KAOLIN COMPANY, INC. et al.
    (552 SE2d 495)
   Blackburn, Chief Judge.

In the third appellate appearance of this case involving the misappropriation of minerals and mineral rights, John W. Smith, individually and as the executor of the estate of Ruth Evelyn Smith, appeals the trial court’s grant of summary judgment to Georgia Kaolin Company, Inc. and Anglo-American Clays Corporation (collectively the Kaolin Company). See Smith v. Ga. Kaolin Co. (Smith I); Smith v. Ga. Kaolin Co. (Smith II). Smith now contends, inter alia, that the trial court erred by finding that he was collaterally estopped from bringing his claims for trespass, conversion, and damages against the Kaolin Company. For the reasons set forth below, we affirm.

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.

Viewing the evidence in this light, the record shows that, beginning in 1942, Smith’s mother leased certain real property to the Kaolin Company, including a rectangular plot which is at the heart of this dispute. The lease allowed the Kaolin Company to mine the land provided that, among other things, it gave Smith notice of mining activities and paid mining royalties.

In Smith’s previous action, see Smith I and Smith II, he filed a petition in Wilkinson County against the Kaolin Company and others to quiet title to the same portion of land involved in the present dispute. Smith also sought damages against the Kaolin Company for trespass and conversion in the prior action, claiming that, with respect to the rectangular plot in dispute, the Kaolin Company trespassed on the land, cut down trees, and mined kaolin without giving prerequisite notice. Smith further alleged that the Kaolin Company converted the kaolin and trees for its own use by not paying mining royalties.

In response to Smith’s first complaint, the Kaolin Company claimed that Smith did not hold title to the disputed portion of land. The trial court dismissed Smith’s quia timet action, concluding that the documents relied upon by Smith did not establish a current record title and that, at most, Smith had the possibility of an interest. Our Supreme Court then affirmed the dismissal and ruled that “[a]s Smith failed to prove ownership of the disputed property, issues regarding his trespass claim are moot.” Smith II, 269 Ga. at 477 (3).

Years after initiating the original suit, Smith filed the present action claiming, once again, trespass, conversion, and breach of lease regarding the disputed rectangular plot. And Smith admits that his “trespass and conversion claims now asserted against [the Kaolin Company] are substantially identical to the prior damage claims.” In response, the Kaolin Company argued that Smith did not hold title to the disputed portion of land. The Kaolin Company claimed to own the disputed portion of land through a separate chain of title.

The Kaolin Company moved for summary judgment, asserting res judicata and collateral estoppel barred all of Smith’s claims, and the trial court granted the motion. Smith thereafter filed a motion for summary judgment on the conversion and trespass claims, arguing that the Kaolin Company was estopped from challenging his title to the land under landlord-tenant law. The trial court denied the motion. It is from these rulings that Smith now appeals.

1. Smith argues that the trial court erred by granting the Kaolin Company’s motion for summary judgment on the trespass and conversion claims because those claims were never adjudicated on the merits in the previous lawsuit and, therefore, res judicata and collateral estoppel do not apply.

To support his contention, Smith points to an order of the trial court in the original case which stayed his claims for damages “until [his quiet title] action is concluded.” Smith asserts that now that the quiet title action has been decided, he is entitled to a ruling on the merits of his damage claims.

“Collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. . . . [U]nlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a different claim. Furthermore, collateral estoppel only precludes those issues that actually were litigated and decided in the previous action, or that necessarily had to be decided in order for the previous judgment to have been rendered.”

Gen. Elec. Capital Computer Svcs. v. Gwinnett County Bd. of Tax Assessors.

It is undisputed that the prior quiet title action was fully litigated and that the parties to that action were the same as those now before us. In that prior action, Smith failed to prove that he held title to the disputed rectangular plot of land. The determination on that issue collaterally estopped any ruling on the merits of Smith’s damages claims with respect to the disputed land. Smith could not, for example, have standing to claim that the Kaolin Company trespassed on the land because the land did not belong to him and he was not in possession of it. See Whitaker Acres v. Schrenk (“ ‘ “[t]o maintain an action for trespass . . . it is essential that the plaintiff show either that he was the true owner or was in possession at the time of the trespass” ’ ”). Indeed, in affirming the dismissal of Smith’s quiet title action, our Supreme Court ruled that “[a]s Smith failed to prove ownership of the disputed property, issues regarding his trespass claim are moot.” Smith II, 269 Ga. at 477 (3). Likewise, any claim for conversion would be moot.

2. In the alternative, Smith contends that the Kaolin Company was estopped from challenging his title to the land pursuant to OCGA § 44-7-9, which provides that a tenant:

may not dispute his landlord’s title or attorn to another claimant while he is in actual physical occupation, while he is performing any active or passive act or taking any position whereby he expressly or impliedly recognizes his landlord’s title, or while he is taking any position that is inconsistent with the position that the landlord’s title is defective.

Smith, however, raised this argument in the prior 1991 case. Nonetheless, the trial court ruled that he did not have record title to the property, and our Supreme Court affirmed. See Smith II. In doing so, the courts necessarily decided that OCGA § 44-7-9 did not apply. See Harris v. Massey (res judicata applies to issues of law and fact necessarily involved in the initial ruling). Therefore, we do not revisit the issue. See generally OCGA § 9-12-40.

Decided July 10, 2001

Reconsideration denied July 31, 2001 and reconsideration dismissed August 14, 2001

Franklin R. Nix, for appellants.

Harris & James, William C. Harris, John B. Harris III, for appellees.

3. Smith does not enumerate the trial court’s treatment of his breach of lease claim as an error, and, as such, he has not preserved this issue for our review. See Bellamy v. Fed. Deposit Ins. Corp

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Smith v. Ga. Kaolin Co., 264 Ga. 755 (449 SE2d 85) (1994).

        Smith v. Ga. Kaolin Co., 269 Ga. 475 (498 SE2d 266) (1998).

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

        Gen. Elec. Capital Computer Svcs. v. Gwinnett County Bd. of Tax Assessors, 240 Ga. App. 629, 630-631 (1) (523 SE2d 651) (1999).

        Whitaker Acres v. Schrenk, 170 Ga. App. 238, 240 (2) (316 SE2d 537) (1984).

        Harris v. Massey, 241 Ga. 580, 581 (1) (247 SE2d 55) (1978).

        Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 749 (512 SE2d 671) (1999).


author: Smith, Presiding Judge.

text:
    A01A0897.
    NEWTON v. THE STATE.
    (552 SE2d 896)
   Smith, Presiding Judge.

John Howard Newton and Steve Heard were indicted by a Clarke County grand jury on one count each of shoplifting. Newton was convicted by a jury, his motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Newton asserts the general grounds, essentially arguing that Heard committed the crime and that he was merely an innocent bystander. Construed to support the jury’s verdict, the evidence shows that two employees of a clothing store in Athens saw Heard enter their store, purchase a sweatshirt, return after 45 minutes to return the sweatshirt, then return to the store yet a third time another 45 minutes later accompanied by Newton. According to the employees, both Heard and Newton were acting in a suspicious manner, “staring at us and keeping conversation but making sure they knew where we were in the store.” They went to a rack that had designer pants stacked on top of it and stood “behind the rack so we couldn’t see them.” Both men were wearing coats: Heard was wearing a Yankees jacket, and Newton “had a longer coat on.” One employee testified that both men “got a lot fatter while they were in the store.” The other employee observed that Newton “appeared to have things stuffed in his attire” because he appeared larger and was “favoring his jacket” as if “trying to conceal something.” This employee thought that “both of their jackets were full of merchandise.” Suspicious, the employees “immediately went to the area [where] they were standing” and found that an entire stack of designer pants was missing. They called the police and described the men.

Based on the employees’ description, the police located Heard and Newton walking together on a nearby street. As soon as the officer stopped his patrol car and introduced himself to the men, Newton “started walking off,” then “took off running” when the officer told him to stop. The officers apprehended Newton after a short chase when he ran into a fence. One pair of pants was lying on the ground “right beside him,” and the officers found two more pairs of pants inside his jacket. The officers brought Heard and Newton back to the store, and one of the employees “identified both men positively” and identified the pants displayed by the police as the merchandise taken from the store.

Newton testified that he simply accompanied Heard to the store at Heard’s request. He denied that Heard told him he was planning to steal, denied that Heard asked him to help, and denied stealing anything himself while in the store. He testified that it was not his intention to help Heard steal and denied any knowledge that Heard took the pants. According to Newton, after they left the store Heard told him he had something to show him, pulled four pairs of pants out of his coat, and gave three to Newton to hold, although he later testified that Heard gave him all four. Newton intended to give them back to Heard “right then,” but at that moment the officers pulled up. Newton “panicked” and concealed the pants under his jacket. He began to walk away because he did not want to get caught, and when the officer told him to stop, he “just panicked” and “just took off running.”

“On appeal this court does not weigh the evidence or determine the credibility of witnesses. [Cit.]” Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994). While the evidence was in conflict, it was sufficient to authorize the jury to convict Newton of the crime charged under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Newton also contends the trial court erred in admitting evidence of Heard’s prior conviction for shoplifting, claiming it placed his character in evidence because he was also named as a co-defendant in the prior indictment. But the evidence, while incidentally calling Newton’s character into question, was admissible to impeach Newton’s earlier testimony. Newton testified extensively on direct examination regarding his ignorance of Heard’s activities and intentions, stating that he did not know of Heard’s plans, left the store without knowing of Heard’s plans, and did not know the pants were stolen until Heard placed them in his hands. Gn cross-examination, he reiterated that he did not know what Heard was doing in the store for such a long time and that he did not know the pants were stolen even after Heard pulled them out from under his coat but only “assumed” so because he did not see him purchase anything. Asked whether he knew the pants were stolen before he took them into his hands, he responded, “No, sir. I didn’t know they were stolen.” The State then asked, “Well, you do know that Steve Heard is a shoplifter, don’t you? You knew before this day that he was a shoplifter?” Newton responded, “No, sir.” The State then sought and received permission from the trial court to introduce evidence of the indictment of Heard, Newton, and another for shoplifting, along with Heard’s guilty plea. The State examined Newton regarding the fact that he was arrested for the earlier offense along with Heard, and thus was aware of the shoplifting charges against Heard, and that he knew Heard had pleaded guilty.

“A witness may be impeached by proving that statements made by him in his testimony are not the truth.” (Footnote omitted.) Fort-son v. State, 242 Ga. App. 304, 306 (2) (529 SE2d 429) (2000). Newton argues that the State’s questions nevertheless were improper, relying upon Arnold v. State, 193 Ga. App. 206, 207-208 (2) (387 SE2d 417) (1989). In Arnold, however, the contested issue was not Arnold’s character but whether he had shot another person at a nightclub. The evidence in question, a prior conviction for aggravated assault, was wholly irrelevant to any issue in the case. It was admitted only after persistent efforts by the State to inject the issue into the trial by asking Arnold repeatedly on cross-examination if he was a violent person. Id. at 207 (2). We held that “the State cannot rebut or question the presumption of a defendant’s good character unless the defendant first chooses to place his character in issue.” (Emphasis in original.) Id. at 208 (2).

In contrast, testimony that is not intended merely to rebut or question a presumption of good character may be admissible even if it incidentally reflects upon a defendant’s character, so long as it is offered to impeach relevant testimony offered by the defendant.

[I]t would violate rules of evidentiary law and contravene OCGA § 17-7-95 to allow the prosecution to elicit testimony initially from a criminal defendant on cross-examination and then impeach such testimony thereafter with evidence inadmissible in the case-in-chief. Nevertheless where evidence is offered that would tend to directly refute and impeach both defendant’s inherent assertions on direct examination and his express assertions on cross-examination, such evidence is duly admissible as rebuttal evidence for impeachment purposes as it is inextricably linked to the defendant’s direct testimony.

Decided July 25, 2001

Reconsideration denied August 15, 2001.

William C. Bushnell, for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

(Citations and punctuation omitted; emphasis in original.) Chezem v. State, 199 Ga. App. 869, 871-872 (3) (406 SE2d 522) (1991). Here, as in Chezem, Newton’s assertions on direct examination were rebutted and impeached by the State’s questioning. The repeated theme of Newton’s defense was his complete ignorance of Heard’s criminal actions and intent and, consequently, his status as innocent bystander rather than participant. Newton’s denial that he knew of Heard’s criminal history therefore was not a character issue alone, as in Arnold, but denial of the necessary knowledge and intent to participate in the crime.

Moreover, unlike the questions directed to Arnold, the State’s questions to Newton prior to the introduction of the evidence were not directed at Newton’s character. Instead, the State inquired regarding Newton’s knowledge of Heard’s character. The trial court, outside the presence of the jury, gave Newton the opportunity to withdraw his answer before evidence was admitted that would place his character in evidence. While the evidence of Heard’s guilty plea necessarily placed Newton’s character in evidence because of his arrest and indictment as a co-defendant, the fact that his knowledge was derived from his own arrest and indictment with Heard was incidental to the State’s purpose in introducing evidence of Heard’s guilty plea. The trial court did not err in permitting the State to impeach Newton’s testimony.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       The co-defendants’ cases were severed for trial.


text:
    A01A1689.
    WEST et al. v. MEN’S FOCUS HEALTH CENTERS OF GEORGIA, INC. et al.
    (553 SE2d 379)
   Phipps, Judge.

Henry West and his wife appeal an order of the State Court of Fulton County dismissing their renewal action against Men’s Focus Health Centers of Georgia, Inc. (Men’s Focus). The state court dismissed the renewal action on grounds that the original action was filed in violation of an automatic federal bankruptcy stay provided by 11 USC § 362 and was, therefore, void. We conclude that the original action was not void. Consequently, we reverse.

West sought treatment for “erectile concerns” at the Center for Men’s Health, Inc. (now Men’s Focus). He was treated by medical personnel acting under the direction or control of Dr. William Harper. Within the two-year statute of limitation applicable to medical malpractice actions, West and his wife sued Men’s Focus and Harper alleging that their medical malpractice caused West to become totally impotent. Unbeknownst to the Wests, Men’s Focus was then involved in a federal bankruptcy action. After being alerted to the pendency of the bankruptcy proceeding, the Wests moved for relief from the bankruptcy’s automatic stay to prosecute their medical malpractice action against Men’s Focus to the extent of available liability insurance. Although the bankruptcy court granted the motion, the Wests later dismissed the action without prejudice after expiration of the statute of limitation.

Several days after the dismissal, the Wests filed the present complaint seeking to renew their earlier action. OCGA § 9-2-61 (a) generally allows the renewal of an action by filing a new complaint “within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .” The privilege of dismissal and renewal does not, however, apply to void cases, although renewal of actions which were merely voidable is allowed. Because Jennings Enterprises v. Carie held that actions filed in violation of a federal bankruptcy stay are considered void ah initio in Georgia, the trial court granted Men’s Focus’s motion to dismiss.

But, as recently recognized by the Supreme Court of Georgia in McKeen v. Fed. Deposit Ins. Corp., the rule that actions in violation of a stay are void ab initio is not absolute. Rather, it is a general rule subject to an exception set forth in In re Albany Partners, Ltd. In Albany Partners, the federal court held,

Decided August 3, 2001

Reconsideration denied August 15, 2001

McGuire & Crohan, James D. McGuire, Richard B. Crohan, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., Gregory S. Ellington, Willis, McKenzie & Long, Edward L. Long, Jr., for appellees.

It is true that actions taken in violation of the automatic stay are generally deemed void and without effect. [Cits.] Nonetheless, § 362 (d) expressly grants bankruptcy courts the option, in fashioning appropriate relief, of “annulling” the automatic stay, in addition to merely “terminating” it. . . . As is stated in 2 Collier’s Bankruptcy Manual para. 362.06 (3d Ed. 1983):. . . “The difference between the two is that an order annulling the stay could operate retroactively to the date of the filing of the petition which gave rise to the stay, and thus validate actions taken by the party at a time when he may have been unaware of the existence of the stay. . . .”

As we interpret the order granting the Wests’ motion for relief from the automatic bankruptcy stay in this case, the federal court annulled the stay so as to validate the medical malpractice action previously filed by the Wests. The State Court of Fulton County therefore erred in granting Men’s Focus’s motion to dismiss the renewal action.

Judgment reversed.

Smith, P. J., and Barnes, J., concur.

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

       224 Ga. App. 538, 540 (1) (481 SE2d 541) (1997).

       274 Ga. 46 (549 SE2d 104) (2001).

       749 F2d 670 (11th Cir. 1984).

       Id. at 675.


author: Johnson, Presiding Judge.

text:
    A01A0931.
    STAFFORD v. THE STATE.
    (554 SE2d 219)
   Johnson, Presiding Judge.

On October 2, 2000, Travis Stafford pled guilty to theft by receiving a stolen motor vehicle. The trial court sentenced Stafford to serve three years on probation under the First Offender Act. Two weeks later, the state moved the court to reconsider its first offender sentence because Stafford already used his one opportunity to be treated as a first offender when, in 1999, he pled guilty to simple battery and was sentenced under the First Offender Act. The trial court granted the state’s motion, ordering that Stafford still serve three years on probation, but that he not be sentenced under the First Offender Act.

Stafford appeals from the trial court’s order removing his status as a first offender from his sentence. He asserts that the First Offender Act applies only to felony, not misdemeanor, offenses. Stafford, however, has not gone beyond this assertion to explain how it renders the trial court’s refusal to treat him as a first offender for the current felony erroneous. But the logical conclusion of his unfinished argument seems to be this: If the First Offender Act does not apply to misdemeanors, then Stafford’s prior use of that Act for the misdemeanor offense of simple battery is a nullity, so he may now use the Act for the first time in this felony case.

Regardless of Stafford’s ultimate argument, the premise of his appeal — that the First Offender Act may not be used in misdemeanor cases — is incorrect. On the contrary, the First Offender Act can be used in misdemeanor cases. Accordingly, Stafford’s claim that the trial court erred in granting the state’s motion to reconsider the first offender portion of the sentence is without merit.

The First Offender Act provides, in pertinent part: “Upon a verdict or plea of guilty . . . , but before an adjudication of guilt, in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant . . . [d]efer further proceeding and place the defendant on probation as provided by law. . . .”

We must read the statute according to the natural import of its language, without resorting to a forced construction for the purpose of limiting its operation. Absent words of limitation, we must give the statute’s words their ordinary and everyday meaning. According to the natural import of the First Offender Act’s language, there is nothing limiting the Act’s application to felony offenses.

It is true that the statute plainly limits its availability to cases in which the defendant does not have a prior felony conviction. But this limitation simply means that if a defendant has previously been convicted of a felony, then he is ineligible for treatment as a first offender on any subsequent criminal offense. Conversely, if a defendant has no prior felony convictions, then the court may sentence him as a first offender upon a guilty plea or verdict for a criminal offense. But nothing in the statute limits that criminal offense to a felony, i.e., nothing in the statute excludes a misdemeanor from being such an offense. Absent such limiting words, we will not resort to a forced construction of the statute to impose a limitation. Rather, we must give the statute’s language its ordinary meaning, which plainly allows the First Offender Act to apply to both felony and misdemeanor offenses.

This reading of the statute is Supreme Court, Court of Appeals and Attorney General of Georgia. Although the issue of whether a misdemeanor offense may qualify for First Offender Act sentencing has never been directly ruled upon by either of the state’s appellate courts, both courts have reviewed cases in which first offender sentences were imposed for misdemeanor offenses, and neither this Court nor the Supreme Court has indicated that such sentences were improper. Likewise, the Office of the Attorney General has issued its opinion expressly finding that the First Offender Act be used in misdemeanor cases.

In contradiction of the appellate court opinions, the Attorney General’s opinion and the plain language of the First Offender Act, Stafford cites Arrington v. State, in which this court made the offhanded comment that five years of the appellant’s probated sentence were “to be served under the provisions of the First Offender Act which are applicable only to felonies.” That comment was mere dicta because the issue ruled on in the case was not whether the First Offender Act applies only to felonies, but whether the appellant had fulfilled the terms of his probated sentence and should be discharged under the Act. Moreover, the statement is incorrect because, as discussed above, the provisions of the First Offender Act do not apply only to felonies, but also apply to misdemeanors. Consequently, the dicta in Arrington stating that the First Offender Act is limited to felonies is hereby disapproved.

Under the First Offender Act: “[U]pon the court determining that the defendant is or was not eligible for sentencing under this article, the court may enter an adjudication of guilt and proceed as otherwise provided by law. No person may avail himself of this article on more than one occasion.” In the instant case, because Stafford availed himself of the First Offender Act in 1999 after pleading guilty to simple battery, he may not now avail himself of it a second time. The trial court therefore did not err in refusing to sentence Stafford under the First Offender Act for his current theft by receiving conviction.

Decided August 15, 2001.

Willie T. Yancey, Jr., for appellant.

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

Judgment affirmed.

Blackburn, C. J., Pope, P. J., Andrews, P. J., Smith, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ, concur.

       OCGA § 42-8-60 et seq.

       OCGA § 42-8-60 (a) (1).

        Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692, 693 (353 SE2d 186) (1987).

        Mgmt. Compensation Group &c. v. United Security Employee Programs, 194 Ga. App. 99, 101-102 (2) (389 SE2d 525) (1989).

       See, e.g., Bowers v. Shelton, 265 Ga. 247 (453 SE2d 741) (1995) (defendant pled guilty to misdemeanor tax offenses and was sentenced under the First Offender Act); Strong v. State, 263 Ga. 587, 589 (3) (436 SE2d 213) (1993) (state cross-examined defendant and a defense witness about defendant’s prior guilty plea under First Offender Act to misdemeanor offense of carrying a pistol without a license); Littlejohn v. State, 191 Ga. App. 852 (383 SE2d 332) (1989) (appellant sentenced under First Offender Act for misdemeanor criminal trespass).

       2000 Op. Atty. Gen. 1.

       234 Ga. App. 187 (505 SE2d 851) (1998).

       Id. at 188.

       OCGA § 42-8-60 (b).


text:
    A01A0962.
    WASHINGTON v. THE STATE.
    (553 SE2d 855)
   Blackburn, Chief Judge.

Following a jury trial, Lynn C. Washington appeals her conviction for possession of cocaine with intent to distribute, contending that the evidence was insufficient to support the jury verdict and that the trial court erred by (1) denying Washington’s motion for directed verdict, (2j not allowing counsel to question a witness regarding other witnesses’ out-of-court statements, and (3) ordering Washington to pay $82 in restitution. For the reasons set forth below, we affirm the judgment and vacate the sentence in part.

1. In separate enumerations of error, Washington challenges the sufficiency of the evidence and the trial court’s denial of her motion for directed verdict.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.

(Punctuation and footnote omitted.) Yarbrough v. State.

Viewing the evidence in this light, the record reveals that, on the afternoon of April 15, 1999, Lynn Archer visited the apartment where his daughter, Tammy Kivett, resided. Archer knocked on the door and heard an unknown person say that “they was in the tub.” Archer left at that time but returned to the apartment at 8:30 p.m. Washington came to the front window of the apartment and spoke to Archer through the window for several minutes. Thereafter, Archer entered the apartment and found both Washington and James Timothy Glenn inside. Archer told Washington and Glenn that they had no business being in the apartment. Lynn Archer then left and called his daughter to inform her that Washington and Glenn were in the apartment.

Not knowing either individual in her apartment, Tammy Kivett called the police, and two deputies arrived at the apartment after midnight. With Tammy Kivett’s permission to enter the apartment, the deputies walked toward the doorway. Before the deputies had a chance to knock, however, Glenn opened the door. The layout of the apartment was described as an “open floor plan.” The deputies entered into the living room area, which was open and adjoined the dining room. From the living room, one could also look through an archway into the kitchen.

Inside the apartment, deputies found Washington, along with Glenn and Shari Denise Floyd. Washington was standing in the kitchen area, with her hands in the kitchen sink. She appeared to be doing dishes. When Washington took her hands out of the sink, they were wet. The sink was filled with soapy water. Later, after the water and suds had drained, investigators found cocaine particles, a smoking device, scorched spoons, and a razor blade on the bottom of the sink. The authorities also found the following contraband scattered throughout the apartment: scorched spoons on the kitchen counter; a crack cocaine smoking device on the dining room table, in plain view; a light bulb that had been converted into a smoking device inside a “pumpkin” container in the bedroom closet; razor blades with residue on a shelf in the bedroom; razor blades with suspected cocaine residue, a copper-style scouring pad, and a plastic bag either in a drawer or on top of a small table located in the dining room area; a bag containing cocaine in the back of the toilet in the bathroom; and a syringe filled with liquid cocaine in a box behind the living room couch. Over 12 grams of cocaine were recovered from the apartment.

As Washington was escorted out of the apartment, Tammy Kivett observed that Washington was wearing one of her dresses, which had been in the apartment. Washington was arrested for burglary and possession of cocaine with the intent to distribute. She was not charged with theft of the dress. Although she was acquitted on the charge of burglary, the jury found Washington guilty of possession of cocaine with the intent to distribute.

Washington argues that the evidence demonstrated only her spatial proximity to the contraband, which was insufficient to sustain a conviction for constructive possession of cocaine.

Possession may be joint or exclusive, and actual or constructive. It is true that spatial proximity alone, or mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction. But where drugs are found in the immediate presence of the defendant, the jury is authorized to find they are in the constructive possession of the accused. The drugs here were found in the immediate presence of the appellant. The jury would be authorized to convict if they should find beyond a reasonable doubt that the appellant had actual or constructive possession either alone or jointly with others. If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.

(Citations and punctuation omitted.) Widener v. State. See also Cars-well v. State

The evidence here demonstrated a connection between Washington and the contraband that went far beyond mere spatial proximity. When the police arrived, after midnight, Washington’s hands were wet and in the very sink where crack cocaine and drug paraphernalia were later found. No other individual was shown to be in custody and control of the sink area. A jury could properly conclude that Washington had sole constructive possession of the contraband found in the kitchen sink.

The cases relied upon by Washington are inapposite. See Reid v. State; Paden v. State; Diggs v. State. In those cases, the defendants were not caught with their hands in the immediate presence of the contraband, as was the case here. Furthermore, although Washington properly contends that the facts must exclude other reasonable hypotheses, “[w]hether this burden has been met is a question for the jury, and its determination will not be disturbed unless the verdict is insupportable as a matter of law.” (Punctuation omitted.) Carswell v. State, supra. The jury here was authorized to conclude that when Washington was caught in the apartment, after midnight, without the occupier’s permission, with her hands in the sink which contained crack cocaine, a razor blade, scorched spoons, and a cocaine smoking device, she was not, as suggested by counsel, simply offering to “clean up a bit by washing the dishes.”

In addition, a jury could infer that Washington had joint constructive possession of the other cocaine and drug paraphernalia found in the apartment. “By showing circumstantially that the three defendants had equal access to the cocaine, the evidence established that the defendants were parties to the crime, and thus, guilty of joint constructive possession of the cocaine. Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia.” (Citation and punctuation omitted.) Lowe v. State.

Washington was in the apartment at 8:30 p.m. and was there when the police arrived after midnight. No evidence was presented that she had left the apartment or the apartment area between 8:30 p.m. and midnight. Therefore, a jury could infer that she had been in the apartment or in the immediate vicinity for at least three and one-half hours. Her appearance at the front window in the living room area, as well as the kitchen, indicates that she moved freely throughout the open living room, dining room, and kitchen area, where cocaine and drug paraphernalia were found, including some in open view. Furthermore, a jury could infer that since Washington was wearing Ms. Kivett’s dress, she had been in the bedroom, where other paraphernalia with suspected cocaine residue was found. In addition, there was some evidence to indicate that Washington was “in the tub” earlier in the day, in a bathroom where more cocaine was found. Finally, the evidence of Washington’s immediate involvement with the cocaine and paraphernalia in the kitchen sink supports a finding that she was also involved with the other contraband found in the apartment. See Brown v. State (drugs found in defendant’s possession supported finding that defendant was also involved with other drugs discovered on the premises).

Viewed in the light most favorable to the verdict, the jury could properly infer that Washington was aware of the cocaine, was in control of same, and was in sole or joint constructive possession of it. Accordingly, we affirm the judgment and the denial of a directed verdict.

2. Washington contends that the trial court improperly limited the cross-examination of Virgil Kivett by excluding out-of-court statements allegedly made to him by Tammy Kivett and Lynn Archer, regarding Dale Archer’s (Lynn Archer’s son) use of drugs.

Washington contends that the proffered testimony concerning what Virgil Kivett heard about Dale Archer’s alleged drug problem “tends to support appellant’s theory of the case that she had been invited into the apartment by Dale Archer, who was to return that evening, and that she had no knowledge of drugs in the apartment.” Dale Archer was not in the apartment at the time of the incident. Although the evidence showed that Dale Archer had previously owned the apartment where Ms. Kivett resided, he did not own or reside there at the time of the incident. Furthermore, while Washington and Glenn told the authorities that Dale Archer had given them permission to be in the apartment, they did not contend that the drugs belonged to Dale Archer.

The scope of cross-examination is within the sound discretion of the trial judge and will not be disturbed absent manifest abuse. Demetrios v. State; Willett v. State. The exclusion of hearsay evidence elicited during cross-examination is proper. Nelson v. State.

OCGA § 24-3-1 (a) provides that “[h]earsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” Testimony offered for the truth of the matter asserted is hearsay. Moclaire v. State

Here, the testimony was clearly offered to prove the truth of the matter asserted, i.e., proof that Dale Archer used drugs, to support a theory that Dale Archer was somehow responsible for the presence of the contraband in the apartment. Thus, the testimony clearly did not derive its value from the credit of the witness, Virgil Kivett, but rested solely upon the veracity and competency of those who allegedly made the statements. The proposed testimony was hearsay.

Washington argues, however, that the testimony was offered to contradict Tammy Kivett’s and Lynn Archer’s prior testimony regarding Dale Archer’s alleged drug use. While the impeachment of a witness is an exception to the hearsay rule, there are certain foundational requirements which must first be met. “Before contradictory statements may be proved against [a witness], . . . the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.” OCGA § 24-9-83. These foundation requirements are necessary to allow the witness to explain or deny the prior inconsistent statement. See Searcy v. State.

In this regard, the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. If the witness denies the making of the statement, or fails to admit it, then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.

(Punctuation omitted; emphasis in original.) Horne v. State.

Washington’s counsel failed to lay the proper foundation for the testimony. Tammy Kivett and Lynn Archer were never asked whether they made any statements to Virgil Kivett (or in his presence), let alone were they offered an opportunity to explain the alleged statements. With no foundation laid, the testimony was properly excluded, and the trial court did not err in so ruling.

3. Washington contends that the trial court erred by ordering her to pay $82 for restitution in connection with the dress taken from the apartment. We agree and reverse the trial court’s order for restitution.

A court may award restitution for a victim’s damages incurred in connection with the same acts for which the offender has been convicted and sentenced. OCGA § 17-14-2 (2); Martin v. State. Here, appellant was not charged or convicted of theft of the dress. The act for which the trial court was authorized to impose sentence upon Washington was not the theft of the dress, but the possession of cocaine with the intent to distribute. See Robinson v. State Accordingly, the award of restitution was in error.

Decided August 15, 2001.

Joshua D. Earwood, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

“A sentence or portion thereof that is unauthorized by law is a nullity and void.” Harrison v. State. Consequently, we vacate Washington’s sentence as to restitution only and remand the case for corrective action by the trial court.

Judgment affirmed, sentence vacated in part and remanded.

Pope, P. J., and Mikell, J., concur.

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

        Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

       At the time, however, Tammy Kivett had been temporarily living at another location with Virgil Kivett.

         Co-defendant Glenn appeals his conviction separately and is not a party to this appeal.

       Co-defendants Shari Denise Floyd, Lisa Ann Brady, and Mark Q. Carter are not parties to this appeal.

        Widener v. State, 242 Ga. App. 438 (529 SE2d 899) (2000).

        Carswell v. State, 201 Ga. App. 746, 747 (412 SE2d 572) (1991).

        Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994).

        Paden v. State, 216 Ga. App. 188 (453 SE2d 788) (1995).

        Diggs v. State, 234 Ga. App. 335 (506 SE2d 683) (1998).

        Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996).

       There was evidence that minutes before the police arrived, Washington was standing on the apartment balcony having an argument with others who were in the driveway.

        Brown v. State, 244 Ga. App. 440, 442-443 (535 SE2d 785) (2000).

        Demetrios v. State, 246 Ga. App. 506, 510 (3) (541 SE2d 83) (2000).

        Willett v. State, 223 Ga. App. 866, 875 (4) (479 SE2d 132) (1996).

        Nelson v. State, 188 Ga. App. 244 (372 SE2d 829) (1988).

        Moclaire v. State, 215 Ga. App. 360, 363 (4) (451 SE2d 68) (1994).

        Searcy v. State, 214 Ga. App. 620, 621 (3) (448 SE2d 468) (1994).

        Horne v. State, 204 Ga. App. 81 (1) (418 SE2d 441) (1992).

       Lynn Archer was asked whether he ever made a statement to Glenn regarding Dale Archer’s use of drugs. However, there was no evidence to suggest that Virgil Kivett was present during the alleged conversation (in fact, the evidence suggested otherwise).

        Martin v. State, 189 Ga. App. 483, 493 (9) (376 SE2d 888) (1988).

        Robinson v. State, 169 Ga. App. 763 (315 SE2d 277) (1984).

        Harrison v. State, 201 Ga. App. 577, 583 (5) (411 SE2d 738) (1991).