author: Beasley, Judge.

text:
    A97A1834.
    WEST LUMBER COMPANY v. BECK et al.
    (497 SE2d 647)
   Beasley, Judge.

Sherle Beck filed a complaint against West Lumber Company for damages arising from injuries she sustained in a slip and fall on West’s premises. The trial court denied West’s motion for summary judgment which addressed only whether Beck’s own negligence prohibited her recovery. We granted West’s application for interlocutory appeal.

Construing the facts favorably to Beck, on a very bright and sunny day in June 1994, while Beck was in a check-out line at West’s building supply store, customer Avriett was exiting the store through a set of automatic doors. As she did, a can of white paint fell from her cart, spilling onto the white concrete ground. The size of the spill has been estimated as “maybe about the size of a basketball” by an employee of West, and “probably two by three feet” by Beck herself.

West positioned two managers at the exit almost immediately and made announcements calling for a cleaning crew. Before Beck exited, there were no warning signs or cones marking the spill. The shopping cart from which the paint fell was still located just inside the door, and Avriett was standing nearby. Within two to three minutes of the spill, Beck walked past the shopping cart, Avriett, and the two store managers in order to exit the store. She did not hear any warnings from store employees telling people to watch out for the paint. She was looking ahead in a “normal manner” when, upon her first step through the automatic door, Beck’s left foot slipped in the spilled paint and she fell in the paint, severely injuring her right knee. Thereafter she saw the paint can next to the spill.

West contends the undisputed facts show Beck failed to exercise ordinary care for her own safety, and second, that the paint spill was open and obvious, i.e., in “plain view.” The instructions in the Supreme Court’s recent decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997) apply to the legal analysis.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to an essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson, supra at 748.

“[T]he defendant has the evidentiary burden as to the issue of the plaintiff’s negligence after it has been established or assumed for purposes of a motion for summary judgment that the defendant was negligent, i.e., that the defendant had actual or constructive knowledge of the existence of a hazard on its premises.” Robinson, supra at 748. There is no dispute that West had knowledge of the hazard. There is a factual issue as to whether it took adequate measures to protect its invitee Beck from the danger. This issue was not raised on appeal. West moved for summary judgment on the sole ground that the plaintiff’s own negligence prohibited her recovery. Thus, to warrant summary judgment, West must present evidence “that the plaintiff’s injuries were proximately caused either by the plaintiff’s voluntary negligence, i.e., plaintiff’s intentional and unreasonable exposure of self to a hazard of which plaintiff has knowledge, or by the plaintiff’s casual negligence, i.e., the plaintiff’s failure to exercise ordinary care for personal safety.” Id.

Putting West’s arguments in the framework of Robinson, West contends Beck was voluntarily negligent because (1) she had constructive knowledge of the spill, in that there were announcements and other facts which put her on notice and (2) she admitted the spill was in plain view and did not uphold her duty to take reasonable steps to avoid it. West contends she was casually negligent in that she admitted she failed to let her eyes adjust to the light before she proceeded and failed to look down as she was exiting.

1. Voluntary negligence. The initial question is, did Beck have constructive knowledge of the spill, i.e., was it in plain view or were there other reasons she should have known of it. That is debatable. “The ‘plain view’ doctrine is the equivalent of the ‘constructive knowledge’ aspect of voluntary negligence on the part of the plaintiff.” Robinson, supra at 743. It is “applied to a hazard in plain view at a location where it is customarily found and can be expected to be, but which the invitee professes not to have seen prior to the fall.” Id. The paint was not where it is customarily found or could be expected to be. Thus, the doctrine as defined in Robinson does not apply here.

Nor are there other undisputed facts to establish constructive knowledge as a matter of law. When approaching the door, although Beck saw Avriett and the cart and the two managers, she heard no warnings about the spill, and there was nothing plain, palpable, and undisputed about the scene to put her on notice. There allegedly were announcements about the spill, and one employee claims to have warned Beck as she exited, but Beck testified she heard nothing about it. Thus, we cannot conclude as a matter of law that she should have known of the spill before she fell, although a jury may find there were announcements and/or warnings and she should have heard them.

2. Casual negligence. We now address Beck’s actions in leaving the store as measured against those of an ordinary and reasonable person where there is no warning of a spill. Beck testified that as she exited she was looking ahead in a “normal manner.” She did not look down as she stepped. Failure of the injured person to look down as he or she steps, standing alone, does not entitle the owner/occupier to summary judgment. Robinson, supra at 743.

West argues that Beck admitted the spill could be seen. When asked in her deposition “how many store employees from their stations do you think could have seen that spill,” she replied, “I would say one at this register closest to the exit.” Beck was referring to a diagram she had drawn which was attached to her deposition as an exhibit. The diagram indicates that the employee to whom she was referring was located some distance behind where she would have been as she exited the store, i.e., the employee was farther from the spilled paint than Beck was as she exited. But this testimony came immediately after the following exchange: Q: “Do you think it was large enough that a store employee should have seen it?” A: “It was a very large spill, and they were aware that it was there, so I think they probably should have seen it.” Thus it is unclear whether Beck understood the subsequent question to mean “Given that employees knew of the spill, which employees could see it from their workstations?”

Decided March 10, 1998.

Sullivan, Hall, Booth & Smith, Karl M. Braun, for appellant.

J. Phillip Boston, for appellees.

The meaning of Beck’s statements is not sufficiently plain, palpable, and undisputed to justify summary judgment as required by the Supreme Court in Robinson. Further, the fact “that one inspecting a post-fall scene can observe a hazard from a standing position is not dispositive of whether or not the injured invitee was exercising ordinary care for personal safety before the fall. [Cit.]” Robinson, supra at 743.

Although West argues the paint fell on a black mat, Beck testified the white paint was on white concrete, not a mat, and hard to see. The paint can was near the spill, but she did not trip on it. Questions of fact and credibility are for the jury. Although the size of the spill was large, the degree of visibility to an exiting customer is a question of fact. Since this is in dispute, a jury must decide. Inherent is the question of credibility, which the appellate court cannot resolve. It must instead construe the evidence in Beck’s favor.

During her deposition Beck testified that due to the changed lighting conditions as she exited the store, she did not have full use of her eyesight. Her deposition also indicates that she was aware that her vision was temporarily impaired: “I wasn’t totally blinded, but I’m sure it did take some adjusting.” She proceeded to step outside, “expecting] to have a clear passageway”

There is an issue of fact as to whether she would have seen the paint had she stopped to let her eyes adjust and whether she should have stopped, as one is not required to look down at every step. Application of the principles in Robinson v. Kroger Co. precludes summary judgment.

3. We need not address Beck’s argument based on the distraction doctrine.

Judgment affirmed.

McMurray, P. J., and Smith, J, concur.

       See also, e.g., J. C. Penney Co. v. Knight, 119 Ga. App. 70 (166 SE2d 434) (1969).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A97A1850.
    FINCHER v. STATE OF GEORGIA et al.
    (497 SE2d 632)
   Ruffin, Judge.

In August 1993, the State Board of Pardons & Paroles of Georgia (“State Board”) released to a local television station, pursuant to Georgia’s Public Records Act (OCGA § 50-18-70 et seq.), an investigatory report concerning claims that Chuck Fincher had sexually harassed a co-worker and engaged in other misconduct while in the State Board’s employment. Fincher sued the State Board and several of its employees, asserting that the release of the report violated his common law and constitutional rights to privacy. He sought damages from the State Board and the individual defendants under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., and 42 USC § 1983. Fincher further claimed the individual defendants violated his due process rights under the Georgia Constitution and that OCGA § 50-21-25 (a) was unconstitutional to the extent it barred the claim. The trial court dismissed this last claim, concluding that Fincher had no independent cause of action against the individual State Board employees. Subsequently, the State Board moved to dismiss the remainder of Fincher’s claims. The trial court, treating the motion to dismiss as a motion for summary judgment, dismissed Fincher’s complaint altogether. Fincher appealed, and for the following reasons, we affirm.

As the trial court noted, the motion to dismiss was transformed to a motion for summary judgment. See OCGA § 9-11-12; White House v. Winkler, 202 Ga. App. 603, 605-606 (415 SE2d 185) (1992). “On a defendant’s motion for summary judgment, the evidence is construed in the respondent’s favor; the respondent is given the benefit of all doubts and all reasonable inferences therefrom are indulged in [his] favor. The burden is on the movant to show that no genuine issue of material fact exists and that it is entitled to summary judgment as a matter of law. [Cit.] Where the movant fails in that burden, the grant of summary judgment is error. [Cit.] But where the movant carries this burden, the respondent may not rest on [his] pleadings but must put forth evidence showing actual issues for trial. [Cit.]” Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

Viewed in this light, the evidence reveals that in July 1992, the State Board investigated Fincher, a State Board employee, regarding claims that he had sexually harassed a co-employee and had improperly used his firearm issued by the State Board. The investigatory report concluded that the facts supported the credibility of Fincher’s accuser and that it was “plausible in this instance to believe that an act of misconduct may have taken place.” There is no indication in the record whether Fincher was fired or quit as a result of the investigation, or at what time Fincher stopped working for the State Board. Nor is there evidence in the record that any criminal or civil action stemming from the misconduct was ever filed.

In June 1993, a television producer requested the investigatory report from the State Board. In August 1993, the State Board released the report to the television producer. Subsequently, Fincher filed the instant action. In dismissing Fincher’s assertion that the individual defendants were liable for invading his privacy, the trial court did not address the constitutionality of OCGA § 50-21-25 (a). In dismissing the remainder of Fincher’s complaint, the trial court held that, after reviewing the evidence in the light most favorable to Fincher, the public’s interest in disclosing the report outweighed Fincher’s private interests and that neither Fincher’s common law nor federal constitutional right to privacy was violated by the release.

1. Fincher first appealed to the Supreme Court of Georgia, arguing, inter alia, that OCGA § 50-21-25 (a) was unconstitutional. The Supreme Court, noting that the trial court did not specifically rule on the statute’s constitutionality, transferred the appeal to this Court.

We will not address this claim as it is well settled that “[arguments regarding constitutional issues which were not raised or ruled on below will not be considered on appeal. [Cit.]” Atlantic Steel Credit Union v. Shephard, 204 Ga. App. 297, 299 (3) (419 SE2d 132) (1992).

2. The State Board contends that it properly released the report in accordance with OCGA § 50-18-70 (b), which provides that “[a]ll public records of an agency[,] . . . except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public, shall be open for a personal inspection by any citizen of this state at a reasonable time and place; and those in charge of such records shall not refuse this privilege to any citizen.”

“Where there is a request for disclosure of documents under the Public Records Act, the first inquiry is. whether the records are ‘public records.’ ‘(D)ocuments, papers, and records prepared and maintained in the course of the operation of a public office are “public records” within the meaning of [OCGA § 50-18-70].’ [Cit.]” Napper v. Ga. Television Co., 257 Ga. 156, 160 (a) (356 SE2d 640) (1987). The investigatory report was clearly “prepared and maintained in the course of the operation” of the State Board. Accordingly, the report was a public record. Id.

Fincher argues that the investigatory report was part of his personnel file, the dissemination of which constituted an unwarranted invasion of his personal privacy. We disagree that the investigatory report was necessarily part of Fincher’s personnel file. In Irvin v. Macon Tel. Publishing Co., 253 Ga. 43, 45 (3) (316 SE2d 449) (1984), the Supreme Court of Georgia concluded that placement of the records of GBI investigations of several employees of the State Farmer’s Market in Macon, Georgia, into the personnel files of the investigated employees did not automatically transform the investigation records into personnel records. Id. at 45. Furthermore, there is no blanket exclusion exempting from disclosure a person’s personnel records. Hackworth v. Bd. of Ed. &c. of Atlanta, 214 Ga. App. 17, 22 (2) (447 SE2d 78) (1994).

As the investigative report was a public record, the next inquiry is “(A) whether [the report was] within the exceptions to disclosure set forth in OCGA § 50-18-72 (a)[,] ... or (B) whether under OCGA § 50-18-70 (a) [it was] otherwise protected from disclosure by court order or by statute.” Napper, supra at 160 (b). In the instant case, there is no evidence that the information released by the State Board was protected by a court order. Id.; OCGA § 50-18-70 (a).

Furthermore, the investigatory report was not exempt from disclosure under OCGA § 50-18-72 (a) (5). This subsection prohibits from public disclosure “records consisting of material obtained in investigations related to the suspension, firing, or investigation of complaints against public officers or employees until ten days after the same has been presented to the agency or an officer for action or the investigation is otherwise concluded or terminated. . . .”

The investigatory report in this case was related to a complaint of misconduct against Fincher, who was a public officer and employee. Accordingly, the report could be released ten days after it had been presented to the State Board or an officer for the Board, or if the investigation had concluded or terminated. Fincher does not allege, nor is there any evidence in the record, showing that the State Board released the investigatory report prior to the time the investigation was concluded or terminated or before ten days had passed after submission to the State Board.

Another exemption under OCGA § 50-18-72 sets forth that “[p]ublic disclosure shall not be required for records that are . . . [mjedical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy.” OCGA § 50-18-72 (a) (2). The Supreme Court of Georgia has rejected the contention that the term “ ‘similar files’ must relate in some respect to the history, diagnosis, treatment, prognosis or result of disease or other medical condition.” Doe v. Sears, 245 Ga. 83, 86 (2) (263 SE2d 119) (1980). Rather, the court concluded that “ ‘[píroperly construed, [OCGA § 50-18-72 (a) (2)] forbids disclosure to the general public from (public) records or files of any information which would invade the constitutional, statutory or common law rights of . . . privacy. [Cit.]’ [Cit.]” (Emphasis in original.) Napper, supra at 160 (c).

“The invasion of personal privacy encompassed as an exception to the right of the public to access is to be determined by an examination of the tort of invasion of privacy. [Cit.]” Harris v. Cox Enterprises, 256 Ga. 299, 301 (348 SE2d 448) (1986). “The tort of invasion of privacy protects the right of a person to be free from unwarranted publicity or the unwarranted appropriation or exploitation of one’s personality, the publicizing of one’s private affairs with which the public has no legitimate concern. .[Cit.]” (Punctuation and emphasis omitted.) Napper, supra at 160 (c). “While this state has a strong policy of open government, there is a corresponding policy for protecting the right of the individual to personal privacy. References to matters about which the public has, in fact and in law, no legitimate concern, though found in a public document are not subject to disclosure under the Public Records Act because they are not the subject of legitimate public inquiry.’ ” Harris, supra at 302. See Napper, supra at 161.

We agree with the trial court that the public interest in obtaining the information outweighed Fincher’s privacy interest. The-investigatory report contained information regarding Fincher’s improper conduct while working for the State Board. “[T]he public has an interest in learning about the operation and functioning of a public agency . . . and the work-related conduct of public employees; in gaining information to evaluate the expenditure of public funds and the functioning of a public institution or agency; in having information openly available to them so that they can be confident in the operation of their government; and in [ejnsuring that both the activity of public employees suspected of wrongdoing and the conduct of those public employees who investigate the suspects is open to public scrutiny.” (Punctuation omitted.) Irvin, supra at 45. As the investigation concerned a public employee’s alleged improper activities in the workplace, the public had a legitimate interest in the conduct that outweighed Fincher’s interest in non-disclosure. Id.

There are no other exceptions to disclosure in OCGA § 50-18-72 that are applicable, and Fincher has failed to come forward with any claim or evidence that disclosure was prohibited by Georgia statutory authority.

Accordingly, the State Board not only had the authority but was required under the Public Records Act to release the information, and thus the trial court properly dismissed Fincher’s action for invasion of privacy under the Georgia Tort Claims Act.

3. We also find that dismissal of Fincher’s 42 USC § 1983 claim was proper. 42 USC § 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”

“The Constitution protects individuals against invasion of their privacy by the government. [Cits.]” Ramie v. City of Hedwig Village, 765 F2d 490, 492 (5th Cir. 1985). “The right to privacy consists of two inter-related strands; one protects an individual’s interest in avoiding disclosure of personal matters (the confidentiality strand) and the other protects an individual’s interest in making certain personal decisions free of government interference (the autonomy strand). [Cit.]” Cantu v. Rocha, 77 F3d 795, 806 (5th Cir. 1996). Clearly, in the instant case, we are dealing with the first strand.

“In the context of government disclosure of personal matters, an individual’s right to privacy is violated if: (1) the person had a legitimate expectation of privacy; and (2) that privacy interest outweighs the public need for disclosure. Fadjo v. Coon, [633 F2d 1172 (5th Cir. 1981)].” Cantu, supra at 806. See also James v. City of Douglas, 941 F2d 1539, 1544 (11th Cir. 1991) (“state official may not disclose intimate personal information obtained under a pledge of confidentiality unless the government demonstrates a legitimate state interest in disclosure which is found to outweigh the threat to the individual’s privacy interest”).

Applying the first prong of this balancing test, it cannot be said that Fincher had a legitimate expectation of privacy as to the investigatory report, a public record, that addressed his sexual harassment of a co-worker and other misconduct while in the course of his employment for the State. “ ‘[T]here is no liability for giving publicity to facts about the plaintiff’s life which are matters of public record.’ . . . [Ascertaining and publishing the contents of public records are simply not within the reach of these kinds of privacy actions.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 494 (95 SC 1029, 43 LE2d 328) (1975). See Irvin, supra (public’s legitimate interest in ensuring that the activity of public employees suspected of wrongdoing is open to public scrutiny).

Even if Fincher had some legitimate expectation of privacy in the investigatory report, this interest would not outweigh the public’s interest in disclosure. “Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.” Cohn, supra at 495. See also Irvin, supra. “Great responsibility is accordingly placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.” Cohn, supra at 491-492.

Consequently, Fincher could not establish that his purported expectation of privacy in the investigatory report outweighed the public’s need for disclosure for purposes of ascertaining the administration and proceedings of the government. Cox Broadcasting, supra; Cantu, supra. Accordingly, Fincher was not deprived of any right or privilege secured by the U. S. Constitution or federal law, and therefore the trial court did not err in dismissing his claim under 42 USC § 1983.

Judgment affirmed.

Decided March 10, 1998.

Chuck Fincher, pro se.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, C. Latain Kell, Senior Assistant Attorney General, Lori V. Winkleman, Kimberly L. Schwartz, Assistant Attorneys General, for appellees.


author: Johnson, Judge.

text:
    A97A1961.
    SOUTHERN HORIZONS AVIATION v. FARMERS & MERCHANTS BANK OF LAKELAND.
    (497 SE2d 637)
   Johnson, Judge.

In this appeal, we decide which creditor/claimant has a superior interest in an airplane: an aircraft repair company which asserted a mechanic’s lien on the airplane in superior court but failed to record its interest with the Federal Aviation Administration (“FAA”), or a bank which recorded its purchase money security interest in the airplane with the FAA after the mechanic initiated lien foreclosure proceedings. In affirming the trial court, we hold that the bank’s security interest has priority over the repair company’s interest.

On January 25, 1994, Edward Blythe borrowed money from Farmers & Merchants Bank (“the Bank”) in order to purchase a cropdusting airplane. Blythe executed a promissory note and security agreement granting the Bank a security interest in the aircraft. Blythe purchased the plane on the same date.

On January 29, 1994, as part of the sales agreement, the seller took the plane to Southern Horizons Aviation for an annual inspection and repairs. An aircraft mechanic with Southern Horizons began the repair work in January and continued working on the plane “through July” 1994. When the seller failed to pay the repair charges, Southern Horizons retained possession of the airplane. Southern Horizons allowed Blythe to use the plane for cropdusting missions, though he was required to return the plane after each flight.

On July 22, 1994, the Bank filed a financing statement in Cook County Superior Court, showing its security interest in the aircraft. The Bank also sent the security agreement and related documents to the FAA sometime prior to September 13,1994; however, because the plane’s serial number had been omitted from the application, the FAA returned the documents and did not record them until December 1994 or February 1995.

In November 1994, Southern Horizons filed an action in superior court to foreclose its aircraft mechanic’s lien. See OCGA § 44-14-550 et seq. The Bank intervened and requested a probable cause hearing. After conducting two hearings, the trial court held that Southern Horizons failed to perfect its claim of lien, that the Bank had perfected its security interest in the aircraft, and that the Bank’s perfected interest had priority over Southern Horizons’ unperfected claim. Southern Horizons appeals, arguing that its claim was perfected before the Bank’s and that its mechanic’s lien therefore has priority. We disagree and affirm the judgment of the trial court.

Southern Horizons claims to have perfected its mechanic’s lien on the airplane pursuant to OCGA § 44-14-363 on November 17, 1994, when it filed its foreclosure action. OCGA § 44-14-363 (a) provides, in relevant part, that all mechanics shall have a special lien on personal property for work done and material furnished in manufacturing or repairing the personal property, and such liens shall be asserted by the retention of the personal property or by surrender of the property and enforcement of the lien in accordance with OCGA § 44-14-550.

In support of its position, Southern Horizons cites authority holding that no conveyance of or lien on an aircraft is valid until recorded with the FAA (see Dawson v. Gen. Discount Corp., 82 Ga. App. 29 (60 SE2d 653) (1950); Bishop v. R. S. Evans, East Point, Inc., 80 Ga. App. 324 (56 SE2d 134) (1949)), and notes that the Bank’s interest was not recorded by the FAA until February 1995, months after Southern Horizons perfected its lien by filing the underlying foreclosure action.

This argument, however, does not help Southern Horizons. Southern Horizons has neither alleged nor shown that it recorded its purported lien with the FAA. In Philko Aviation v. Shacket, 462 U. S. 406 (103 SC 2476, 76 LE2d 678) (1983), the United States Supreme Court held that federal law regarding aircraft recordation preempts state law and “[a]lthough state law determines priorities, all interests [in aircraft] must be federally recorded before they can obtain whatever priority to which they are entitled under state law.” (Emphasis supplied.) Id. at 413; see Aero Support Systems v. Fed. Deposit Ins. Corp., 726 FSupp. 651, 653 [1,2] (N.D. Tex. 1989); see United States v. One 1951 Douglas DC-6 Aircraft, 525 FSupp. 13, 15-16 (5) (W.D. Tenn. 1979). A mechanic’s lien which has not been recorded with the FAA is not valid. See Aero Support Systems, supra. Thus, assuming Southern Horizons has a lien at all, that unrecorded lien cannot have priority over a federally recorded interest. See, e.g., James Talcott, Inc. v. Bank of Miami Beach, 143 S2d 657 (Fla. App. 1962); Crescent City Aviation v. Beverly Bank, 219 NE2d 446, 448-449 (Ind. App. 1966).

We note that although the above-cited cases were decided based on former 49 USCS § 1403, federal statutes enacted on July 5, 1994, are similar in substance to the former statute and are consistent with the holdings in those cases. For example, 49 USCS § 44107 provides for a system of recording conveyances affecting an interest in aircraft by the FAA; and 49 USCS § 44108 provides that such conveyances are not valid before filing with the FAA., except in certain situations inapplicable here, and provides further that a recorded conveyance is valid from the date of filing against all persons.

Decided March 10, 1998.

Cork & Cork, Patrick C. Cork, Robert L. Cork, for appellant.

Moore & Studstill, Daniel L. Studstill, for appellee.

We further note that even if federal recordation was not required, the Bank would have priority under state law. The Bank perfected its security interest in the collateral under Georgia law in July 1994 when it filed its financing statement in superior court. See generally OCGA §§ 11-9-302; 11-9-303 (1). Southern Horizons asserted its claim of lien in September 1994, after the Bank perfected its security interest. Indeed, Southern Horizons could not have asserted a valid mechanic’s claim of lien before July 22, the date the Bank perfected its interest, because a mechanic’s claim of lien is recordable only after the work is done, and Southern Horizons worked on the aircraft “through July.” See OCGA § 44-14-363 (c).

Finally, even if Southern Horizons had recorded its interest with the FAA, priority between its and the Bank’s interests in the airplane would be determined by reference to state law. See Philko Aviation, supra. Under Georgia law, a perfected security interest in collateral takes priority over a mechanic’s lien. See Newton Ford &c. Co. v. J. I. Case Credit Corp., 163 Ga. App. 497, 498 (294 SE2d 723) (1982); OCGA § 11-9-310 (1). The trial court did not err in granting summary judgment to the Bank.

Judgment affirmed.

Pope, P. J., and Blackburn, J, concur.


author: POPE, Presiding Judge.

text:
    A97A2011.
    FOGARTY v. THE STATE.
    (497 SE2d 628)
   POPE, Presiding Judge.

On August 31, 1994, a 12-count indictment was filed against defendant Mark Joseph Fogarty. Count 1 accused defendant of kidnapping Jaymie Flood; Count 2 accused him of aggravated assault against Flood; Count 3 alleged that defendant had stalked Connie Johnson; Count 4 accused defendant of simple battery against Melanie Harty; Count 5 alleged that defendant had stalked Harty; Count 6 accused defendant of stalking Karen Rogers; and Counts 7 through 12 accused defendant of stalking five other women. A jury convicted defendant on, Counts 1 through 6, and defendant was acquitted on Counts 7 through 12. Following the denial of his motion for a new trial, defendant appeals. We affirm.

1. Construed in a light most favorable to the verdict, the evidence presented by the State in this case, including the testimony from each of the victims of Counts 1 through 6, which contained their positive identification of defendant as the perpetrator of the individual crimes alleged in those counts, was clearly sufficient for any rational jury to conclude that defendant was guilty of having committed the crimes for which he was convicted under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Prior to trial, defendant filed a request with the State for the production of exculpatory material pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). In his first enumeration, he contends that he is entitled to a new trial based on the State’s failure to fully comply with his request. Specifically, defendant contends he is entitled to a new trial because the State suppressed (1) information concerning a latent fingerprint found on the passenger door of Flood’s car; (2) police reports and interviews taken from several of the victim witnesses and other witnesses which could have been used for impeachment purposes at trial and which would have alerted defendant to the fact that some of the victims alleged that the perpetrator was driving a red truck when he could demonstrate that he had no access to such a truck; and (3) lead sheets prepared by the police after a composite picture of the suspect in several of the crimes was broadcast on the news. We cannot agree.

With respect to the fingerprint, the record clearly demonstrates that in response to defendant’s Brady request, the State sent defendant a copy of a crime lab report on the print showing a negative identification with regard to defendant, thereby fulfilling its obligation to defendant. A review of the police reports and interviews that the State admittedly did not supply to defendant reveals that, for the most part, they contain information that defense counsel already knew, including the information concerning the purported use of a red truck in the incidents alleged in Counts 1, 2, 8, 11 and 12. The requirements of Brady are not applicable to evidence about which a defendant already has knowledge. See Bromley v. State, 259 Ga. 377, 378-379 (2) (380 SE2d 694) (1989). To the extent those reports and interviews contain statements about which defense counsel did not know, which created contradictions as to any witness’s trial testimony, we note that any such contradictions created by the statements were minor. As such, even when we consider the State’s failure to produce the abovementioned reports and interviews along with its admitted failure to produce lead sheets apparently created by the police, the import of which is left to mere speculation and conjecture in this case, we reach the conclusion that the defendant is not entitled to a new trial because there is no “reasonable probability” that the State’s production of the abovementioned documents would have brought about a different result in defendant’s trial. Kyles v. Whitley, 514 U. S. 419 (115 SC 1555, 131 LE2d 490, 496-497) (1995).

3. Defendant contends that he is entitled to a new trial in this case based on his trial counsel’s ineffectiveness. Specifically, he argues that the fee agreement he entered into with trial counsel constituted a contingency fee contract that created a conflict of interest that adversely affected his counsel’s performance. Under the fee agreement, trial counsel’s fee of $25,000 was to be paid upfront. However, pursuant to the agreement, if the charges against defendant were dismissed and a new suspect identified, the fee would be reduced to $10,000.

Clearly defendant is correct that such an agreement constitutes a contingency fee contract in a criminal case and is improper. Defendant also is correct in his assertion that the fee agreement created an actual conflict of interest for his trial counsel in that it made it more lucrative for trial counsel not to pursue avenues that might lead to dismissal of the charges against defendant and the identification of a new suspect. Having said this, however, we disagree with defendant that this conflict of interest requires a finding of ineffective assistance and a new trial.

“To establish ineffective assistance of counsel due to a conflict of interest on the part of trial counsel, a defendant who raised no objection at trial [as is the case here] must prove that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer’s performance.” (Citations and punctuation omitted.) Ney v. State, 227 Ga. App. 496, 500 (4) (a) (489 SE2d 509) (1997). As set forth above, defendant has clearly demonstrated an actual conflict of interest in this case. But the record in this case does not establish that his trial counsel’s performance in the case was adversely affected by the conflict.

The record reveals that trial counsel investigated the case on bis own and by hiring an independent investigator to look for leads in the case and attempt to locate other suspects, which is what the investigator did. Based on the above investigation, counsel appeared to be well informed at trial, as is evident by his thorough cross-examination of the State’s witnesses and his own direct examination of defendant’s witnesses. Counsel attempted to have witnesses interviewed and also filed a pre-trial discovery motion in the case seeking to find exculpatory evidence on behalf of his client. When he did not receive any lead sheets from the State pursuant to his discovery request, he specifically inquired about the lead sheets, at which time he was informed they did not in fact exist. This was believable, in light of the district attorney’s admission during the motion for new trial hearing that such lead sheets often were destroyed. Defense counsel also met on a regular basis with the district attorney and, during those meetings, pursued informal requests for the State to dismiss what defense counsel believed were the weakest charges against defendant. The State, however, refused. Counsel further pursued informal discovery during these meetings.

Decided March 10, 1998

Rich & Smith, Randolph G. Rich, David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, for appellee.

Trial counsel’s strategy in this case was to demonstrate to the jury that defendant had alibis concerning most of the crimes for which he was indicted. He hoped that if the jury believed defendant’s major alibi, which was his purported absence from the state during several of the crimes alleged in the indictment, a domino effect would occur that would result in defendant’s acquittal on all charges. Because of this planned strategy, which appears to have been quite successful, defense counsel did not file any pre-trial motion seeking to have the State set forth firm dates for each of the incidents alleged in the indictment and to have such dates made material parts of the indictment. Counsel was afraid such a motion might allow the State to hone in on his alibi defense. Counsel also decided not to file any pre-trial motion to sever in light of this strategic plan. Such decisions based on trial strategy and tactics do not equate to ineffective assistance of counsel. Ney, 227 Ga. App. at 499 (4); White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989).

In light of defendant’s failure to demonstrate that his trial counsel’s performance was adversely affected by the actual conflict of interest created by the fee agreement in this case, or that any alleged deficient performance prejudiced his defense, we cannot say that the trial court’s determination that defendant was not entitled to a new trial based on ineffective assistance of counsel was clearly erroneous. Accordingly, we must uphold the trial court’s determination as to that issue. Riser v. State, 222 Ga. App. 348, 349 (474 SE2d 632) (1996).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Smith, Judge. Ruffin, Judge,

text:
    A97A2486.
    JOINER v. THE STATE.
    (497 SE2d 642)
   Smith, Judge.

Brenda Joiner was convicted following a bench trial in Troup County of DUI and driving with a suspended license. Joiner appeals, raising for the first time on appeal her sole contention that the State failed td'prove venue beyond a reasonable doubt. We do not agree.

Criminal actions generally must be tried in the county where the crime occurred. OCGA § 17-2-1 (a). Proof of venue is an essential element in proving guilt in a criminal case, and “‘[l]ike every other material allegation in the indictment it must be proved beyond a reasonable doubt.’ [Cits.]” Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988). But when the evidence does not conflict and no challenge to venue is made at trial, slight evidence is sufficient to prove venue. Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988).

Here, the evidence presented showed that an on-duty officer of the Troup County Sheriff’s Office responded to a call concerning a domestic dispute. When he reached the residence where the altercation had occurred, he spoke with Joiner and noticed that she appeared to be intoxicated. Joiner asked him “continuously ... to take her to the store to purchase some type of alcoholic beverage.” The officer refused to comply with Joiner’s request and told her not to drive. After investigating the altercation, the officer left the residence, drove to a service station, parked his car, and began to prepare his report concerning the incident. While writing the report, he saw Joiner, who waved and smiled at him, drive a vehicle into the same parking lot. Knowing that Joiner had appeared intoxicated and that he had told her not to drive, the officer stopped her, performed field sobriety tests, and arrested her. He also took her to the LaGrange Police Department and administered an Intoxilyzer test.

In this case, as in Hunter v. State, 191 Ga. App. 219, 220 (381 SE2d 525) (1989), “the State is at least entitled to an inference” that the officer acted within his territorial jurisdiction, Troup County. There is no contention that he acted outside that jurisdiction, and “[i]t is a well settled principle that public officials shall be presumed to have performed their duties unless clearly proven otherwise.” (Citations and punctuation omitted.) Id. This rule has been followed on numerous occasions. See Hamilton v. State, 228 Ga. App. 285 (491 SE2d 485) (1997); Sawyer v. State, 217 Ga. App. 406, 409 (2) (457 SE2d 685) (1995); In the Interest of T. S., 211 Ga. App. 46, 47 (2) (438 SE2d 159) (1993); Shannon v. State, 205 Ga. App. 831, 834 (6) (424 SE2d 51) (1992); Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989); Williams v. State, 193 Ga. App. 630, 632 (2) (388 SE2d 884) (1989). See also Minter, supra (evidence that Griffin police department investigated case satisfied slight evidence requirement).

Joiner does not contend that venue was improper in Troup County but instead argues that the State presented insufficient evidence of venue. She claims the only evidence of venue presented by the State was that the offense occurred on “Vernon Ferry Road.” But this case is factually and legally similar to Hunter. Evidence was presented here that the investigating and arresting officer worked for the Troup County Sheriff’s Office and was on duty on the day he made the arrest. Further, the officer took Joiner to the LaGrange Police Department to administer the Intoxilyzer test. This evidence was sufficient to permit an inference that the officer was acting with authority and within the scope of his duties, and the evidence therefore supports a finding that the offenses of which Joiner was accused occurred in Troup County. See, e.g., Hamilton, Hunter, Sawyer, Shannon, supra.

We recognize a line of authority that seems to conflict with Hunter, supra. In Calloway v. State, 227 Ga. App. 775, 776 (2) (490 SE2d 521) (1997), we relied upon Mega v. State, 220 Ga. App. 481 (469 SE2d 771) (1996) and concluded that venue in a particular county was not sufficiently shown by the State, even though the investigating officer worked for that county’s police department. Calloway, supra. In Mega, the investigating officer similarly testified that she was employed by her county police department, but we cited Perry v. State, 154 Ga. App. 559 (269 SE2d 63) (1980), concluding that the State failed to meet its burden concerning venue. In Perry, this Court found the State’s evidence of venue in Sumter County insufficient despite evidence concerning the affiliation with the Sumter County Sheriff’s Office of the investigating officers and the fact that the officers took defendant to the Sumter County Sheriff’s Department. Id.

We believe the correct rule is that found in Hunter, supra, and its progeny. Perry was decided eight years before the Supreme Court issued Minter. And the Court in Minter did rely in part on the investigating officers’ affiliation with the Griffin Police Department in concluding that venue in Spalding County was shown by the State. In addition, this Court in opinions such as Perry, Mega, and Calloway required more than the “slight evidence” held sufficient in Minter.

More significantly, refusal to apply the rule found in Hunter — that law enforcement officers investigating a crime generally act with authority and therefore within their jurisdiction — could implicitly lead to an assumption that those officers do not so act. In other words, ignoring evidence that investigating or arresting officers acted within their capacities as agents of particular city or county law enforcement departments raises a logical presumption that those officers acted outside their jurisdiction. We do not believe this Court intended to question the actions of law enforcement officials in this manner. Accordingly, to the extent that Perry, Mega, and Calloway provide authority for the proposition that venue can never be shown by evidence concerning an investigating officer’s affiliation with a county or city law enforcement unit, they are overruled.

While we appreciate the dissent’s concern that the decisions of this Court not farther undermine the reasonable doubt standard in criminal prosecutions, a review of the history of the “slight evidence” rule in Georgia demonstrates that from as early as 1886, our courts have held that slight evidence is sufficient to prove venue when evidence is not in conflict on this issue. See Porter v. State, 76 Ga. 658, 660 (2) (1886). See also Baker v. State, 55 Ga. App. 159 (189 SE 364) (1937), citing Johnson v. State, 62 Ga. 300, 301 (1) (.1879) as precedent for the “slight evidence” rule. In Dickerson v. State, 186 Ga. 557 (199 SE 142) (1938), the Supreme Court discussed at length the requirements for proving venue. While reiterating the reasonable doubt requirement, the Dickerson court concluded that the evidence regarding venue was sufficient. Because no evidence was presented indicating that the crime occurred in another county, the court concluded that “[a]ny such hypothesis [that the crime occurred in another county] would be mere conjecture, unsupported by evidence or any reasonable inference deducible therefrom.” Id. at 563. In light of the history of this debate, the dissent’s concern with the perceived erosion of reasonable doubt in this context appears misplaced.

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J, Beasley, Johnson, Blackburn and Eldridge, JJ, concur. Ruffin, J., dissents.

Ruffin, Judge,

dissenting.

“Everything is simpler than we can think, and at the same time more complicated than we can comprehend. . . ,”

Because the “slight evidence” rule, as well as the “any evidence” standard, is improperly eroding the reasonable doubt standard concerning proof of venue, I respectfully dissent.

1. Under both the United States Constitution and the Constitution of Georgia, all criminal cases must be tried where the crime is committed. U. S. Const., Art. 3, Sec. 2, Cl. 3; U. S. Const., Amend. VI; Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. The United States Supreme Court has observed that venue is a matter that touches “closely the fair administration of criminal justice and public confidence in it,” and commanded that we do not treat venue as “merely [a matter] of formal legal procedure.” United States v. Johnson, 323 U. S. 273, 276 (65 SC 249, 89 LE 236) (1944). See also Brinkworth v. State, 222 Ga. App. 288, 289 (474 SE2d 9) (1996) (Ruffin, J., dissenting).

In Georgia, it is well established that “ ‘venue is an essential element in proving guilt in a criminal case’ ” and thus must be proven beyond a reasonable doubt. Thayer v. State, 189 Ga. App. 321, 322 (1) (376 SE2d 199) (1988), citing Bush v. Chappell, 225 Ga. 659, 660 (171 SE2d 128) (1969); Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988); OCGA § 16-1-5. See also Rowland v. State, 90 Ga. App. 742, 743-744 (1) (84 SE2d 209) (1954) (venue is a jurisdictional fact that must be proved clearly and beyond a reasonable doubt); Jones v. State, 220 Ga. App. 161, 162 (2) (469 SE2d 300) (1996) (venue, a jurisdictional fact, must be proven beyond a reasonable doubt); Futch v. State, 90 Ga. 472, 476 (16 SE 102) (1892) (again, venue is a jurisdictional fact and must be established clearly and beyond reasonable doubt).

However, coexisting with this well-established principle is the theory that when venue is not contested, slight evidence may be sufficient to prove venue. Rowland, supra; Minter, supra. While the effect of this “slight evidence” rule has been to undermine the reasonable doubt standard, or push it aside, it does not appear that forging a new standard of proof was intended by the appellate courts. For example, in Womble. v. State, 107 Ga. 666, 669 (3) (33 SE 630) (1899), the Supreme Court of Georgia, in deciding whether venue had been proven, stated that “all the evidence relating to the venue tends to show that the offense charged against the accused, if committed at all, was committed in the county of Upson. There was no evidence in the slightest degree tending to show that it was committed elsewhere. We therefore think the venue was sufficiently established. [Cits.]” (Emphasis supplied.) Essentially, the Court was stating that in this particular instance, where there was no evidence to show otherwise, venue was established by the evidence presented beyond a reasonable doubt. The problem with following the majority opinion, of course, is that the defendant does not have to put up any evidence, and the State still has the burden of proving venue beyond a reasonable doubt. Additionally, once the defendant has entered a plea of not guilty, the burden of proof is on the State, at that time, to prove each and every element of the crime charged beyond a reasonable doubt.

Moreover, the Supreme Court of Georgia in Musselwhite v. State, 217 Ga. 755 (125 SE2d 46) (1962), employed the “slight evidence” rule as incorporated within the reasonable doubt standard. “ ‘It may be stated as a rule that the venue in criminal cases is a matter of jurisdictional fact, and like every other material allegation in the indictment must be proved beyond a reasonable doubt. . . .’ [Cits.] ‘Evidence as to venue, though slight, is sufficient where there is no conflicting evidence.’ [Cits.] “When all of the evidence introduced on the trial of a criminal case strongly and decidedly tended to show that the offense was committed in the county where the trial was had, and there was no evidence warranting even a bare conjecture that it was committed elsewhere, it will be held that the venue was sufficiently proved.’ [Cits.]” Id. at 757.

Accordingly, the “slight evidence” rule was not meant to abrogate the reasonable doubt standard, but to explain that in certain situations slight evidence of venue may be all that is necessary to prove venue beyond a reasonable doubt. However, I believe that the propounding of this “slight evidence” rule was unnecessary, and as I mentioned in my dissent in Brinkworth, diminishes the State’s burden without reason. 222 Ga. App. at 291. The State is required to produce competent evidence of venue, and “[i]t is then for the factfinder to decide whether he or she is persuaded beyond a reasonable doubt that the State has proven venue. [Cit.] . . . Whether the factfinder is persuaded by only slight evidence or some greater amount of proof should not be a matter of rules. . . . The rule allowing venue to be proven by only slight evidence is at best superfluous, and only clouds the law concerning the State’s burden of persuasion. . . .” Id. The slight evidence rule, I believe, improperly places a burden on a defendant to produce evidence as to an essential element of the crime; for otherwise, the State may meet its burden of proving venue with only slight evidence. See id.

2. In light of the above, I do not find it necessary to overrule Mega v. State, 220 Ga. App. 481 (469 SE2d 771) (1996); Calloway v. State, 227 Ga. App. 775, 776 (2) (490 SE2d 521) (1997), and Perry v. State, 154 Ga. App. 559 (1) (269 SE2d 63) (1980), as those cases properly relied on the reasonable doubt standard in concluding that venue had not been established. While I agree with the majority in the instant case that the State is at least entitled to an inference that the arresting officer acted with authority, which would be within the county where defendant was tried, I also believe that allowing the State to prove venue “by simply showing that the crime was investígated by an officer of the forum county” improperly “absolves the State of its burden to prove venue.” Hunter v. State, 191 Ga. App. 219, 221 (381 SE2d 525) (1989) (McMurray, P. J., dissenting).

The fact that Perry was decided several years before Minter is of no consequence. The requirement that venue be proven by the State beyond a reasonable doubt, as well as the theory that slight evidence may prove venue beyond a reasonable doubt when there is no conflicting evidence, pre-existed Perry as well as Minter. Minter did not establish a new rule of law.

Additionally, the majority appears to state that if we do not accept as slight evidence of venue the inference that an arresting officer was acting within the scope of his duties, we are concluding, or making an assumption, that the arresting officer did not so act. I disagree. The inference that an officer was performing properly his duties at the time of the arrest can be used in proving venue. However, it is not necessarily the only evidence that need be shown to establish even slight evidence of venue. And in many situations, such as in Perry, Mega, and Calloway, the arresting officer’s employment status was insufficient to prove venue beyond a reasonable doubt.

Finally, I believe the instant case is more akin to Mega, Perry, and Calloway than to the cases cited by the majority to support its finding that venue was proven by slight evidence. Here, the only evidence of venue is that the offense occurred on Vernon Ferry Road and that the officer worked for the Troup County Sheriff’s Office. The Court cannot logically infer or take judicial notice of the fact that Vernon Ferry Road was located wholly within Troup County or that the arrest occurred in that county. The sole fact that the arresting officer worked for Troup County, without more, does not provide even slight evidence supporting proof of venue beyond a reasonable doubt.

3. I also respectfully dissent because the majority, by utilizing the “slight evidence” rule, has in effect employed the “any evidence” standard of review as to the issue of venue, which I believe violates the United States Supreme Court’s decision in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The “any evidence” standard for reviewing venue determinations appears to have originated in Johns v. State, 239 Ga. 681, 682 (1) (238 SE2d 372) (1977). The Supreme Court of Georgia in Johns stated, without any supporting authority, that “[t]he question of venue is to be decided by the jury and its decision as to venue will not be set aside where there is any evidence to support it.” (Emphasis supplied.) Id. Subsequent cases from the Supreme Court and this Court have relied on this standard. See, e.g., Alderman v. State, 241 Ga. 496, 509 (5) (246 SE2d 642) (1978); Etchison v. State, 149 Ga. App. 866 (1) (256 SE2d 148) (1979); Patterson v. State, 157 Ga. App. 233, 234 (276 SE2d 900) (1981); Ludden v. State, 176 Ga. App. 109, 111 (3) (335 SE2d 428) (1985).

In direct contrast to this “any evidence” standard is the holding in Jackson v. Virginia. The issue in Jackson v. Virginia was “not whether there was any evidence to support a state-court conviction, but whether there was sufficient evidence to justify a rational trier of [fact] to find guilt beyond a reasonable doubt.” Id. at 312-313. Relying on its holding in In the Matter of Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970), the United States Supreme Court in Jackson v. Virginia noted that “the Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ [Cit.]” (Emphasis supplied.) Id. at 315. Venue, as earlier established, is an essential element of a crime. Thayer, supra.

The Jackson v. Virginia court concluded that “[a]ny evidence that is relevant — that has any tendency to make the existence of an element of a crime slightly more probable than it would be without the evidence [cit.] — could be deemed a ‘mere modicum.’” Id. at 320. While a “mere modicum” of evidence may satisfy a “no evidence” standard, as concluded in Thompson v. Louisville, 362 U. S. 199 (80 SC 624, 4 LE2d 654) (1960), it cannot “seriously be argued that such a ‘modicum’ of evidence could by itself rationally support a conviction beyond a reasonable doubt. The Thompson doctrine simply fails to supply a workable or even a predictable standard for determining whether the due process command of Winship has been honored.” Id.

Accordingly, the use of the “any evidence” standard to determine the sufficiency of evidence concerning venue clearly violates Jackson v. Virginia, which requires that all essential elements of a crime be proven beyond a reasonable doubt. The existence of a “mere modicum” of evidence, such as an arresting officer’s status, cannot seriously be considered as meeting the reasonable doubt standard as to the element of venue. With due respect to the Supreme Court of Georgia decisions that have utilized the “any evidence” standard in regard to venue, I believe that all such cases should be reconsidered inasmuch as they appear to violate Jackson v. Virginia. There is nothing as noble as law when it is right; there is nothing as ignoble as law when it is wrong.

Decided March 10, 1998.

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

Louis J Kirby, Solicitor, for appellee.

In summary, to the extent the majority in the instant case relies on the “slight evidence” rule and the “any evidence” standard, and avoids determining whether venue was proven beyond a reasonable doubt, I dissent.

       This is not to say that venue may always be sufficiently shown by evidence that an investigating officer worked for a particular city or county law enforcement agency; it is conceivable that factual situations may arise when such evidence does not constitute even slight evidence. But when, as here, the evidence shows that the investigating officer was on duty for a specified county sheriff’s office, and no question is raised concerning whether he acted within the scope of his employment, the State should be entitled to an inference, which the trier of fact can accept or reject, that the officer performed his duties in accordance with the law and within his jurisdiction under the rule of Hunter, supra.

       Johann W. Von Goethe (1749-1832).

       Federal courts have concluded that venue need be proven only by a preponderance of the evidence. See United States v. London, 714 F2d 1558, 1564 (11th Cir. 1983). Furthermore, other states are divided as to whether venue must be established beyond a reasonable doubt or by a preponderance of the evidence. See Wharton’s Criminal Evidence, Vol. 1, § 16 (14th ed. 1985); 67 ALR3d 988.

       While judicial notice may be taken that the intersection of certain streets is located within the jurisdiction of the court, there is no corresponding authority that judicial notice may be taken that a particular street is located within a particular county. Mega, supra; 67 ALR3d 988, 993. In cases cited by the majority, Hamilton v. State, 228 Ga. App. 285 (491 SE2d 485) (1997), Sawyer v. State, 217 Ga. App. 406, 409 (2) (457 SE2d 685) (1995), and Beard v. State, 193 Ga. App. 877 (1) (389 SE2d 384) (1989), the evidence concerning venue consisted of where the officer worked along with the alleged offense occurring at the intersection of two roads. This is different from the instant case, Mega, Perry, and Calloway, where the evidence at most showed the arresting officer’s or officers’ employment status and the name of a street or street address where the alleged offense occurred.


author: Blackburn, Judge.

text:
    A98A0009.
    SMITH v. THE STATE.
    (498 SE2d 561)
   Blackburn, Judge.

Following a jury trial, Robert Anthony Smith, pro se, was found guilty of possession of cocaine with intent to distribute. Smith, now represented by counsel, appeals and asserts several enumerations of error.

1. Smith contends that he was improperly denied trial counsel. The State responds that Smith knowingly and voluntarily waived his right to counsel.

“A person charged with a felony in a state court has an unconditional and absolute constitutional right to a lawyer. Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963). This right attaches at the pleading stage of the criminal process, Rice v. Olson, 324 U. S. 786 (65 SC 989, 89 LE 1367) (1945), and may be waived only by voluntary and knowing action. Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) (1938); Carnley v. Cochran, 369 U. S. 506 (82 SC 884, 8 LE2d 70) (1962). Waiver will not be lightly presumed, and a trial judge must indulge every reasonable presumption against waiver. Johnson, supra[ ] at 464. Boyd v. Dutton, 405 U. S. 1, 2 (92 SC 759, 30 LE2d 755) [(1972)]. It is clear, however, that should a defendant choose to represent himself, he must have an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel. Rogers v. State, 156 Ga. App. 466 (1) (274 SE2d 815) [(1980)]. Fernandez v. State, 171 Ga. App. 290, 292 (319 SE2d 503) (1984). [Cit.] Cf. Mock v. State, 163 Ga. App. 320, 321 (293 SE2d 525) (1982).

“The standard for waiver requires an intentional relinquishment or abandonment of a known right or privilege, and the constitutional right of the accused to be represented by counsel invokes, of itself, the protection of a trial court, in which the accused — whose life or liberty is at stake — is without counsel. This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused. While an accused may waive the right to counsel, whether there is a proper waiver should be clearly determined by the trial court, and it would be fitting and appropriate for that determination to appear on the record. Johnson[, supra]. Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). (Cits.) Butler v. State, 198 Ga. App. 217, 220 (1) (401 SE2d 43) (1990).” (Punctuation omitted.) Hasty v. State, 215 Ga. App. 155, 158 (2) (450 SE2d 278) (1994).

During a pretrial hearing, Smith initially asserted his right to represent himself. The trial court informed Smith of his right to court-appointed counsel, of the dangers of proceeding pro se, and of the maximum sentence which he faced. Thereafter, Smith stated that he believed that he needed a lawyer, and that he was going to hire an attorney of his own. Seven days later, Smith showed up for trial without a lawyer. When the court inquired as to whether Smith had a lawyer, Smith responded, “My sister, Phyllis Smith, she was supposed to get her personal attorney, Ken Carpenter, but I wasn’t sure if she had got him. She had called him at home. He was going to let me know if he was going to represent me. But I didn’t know. So — I think.” Without further questioning, the trial court required that Smith represent himself and proceeded with the trial of the case.

The record does not demonstrate that Smith ever knowingly, voluntarily, and intelligently waived his right to appointed counsel. The trial court never questioned Smith regarding obtaining appointed counsel or his diligence in obtaining a privately retained attorney. In Hasty v. State, 210 Ga. App. 722 (437 SE2d 638) (1993), after dismissing his court-appointed attorney on the day of trial, the defendant was given a continuance of over one month in order to retain a private attorney prior to trial. However, he appeared at trial without an attorney. Id. Therein, we determined that because the record did not contain any inquiry upon which the trial court could have based a determination that the defendant’s “lack of representation was attributable to his own lack of diligence in retaining counsel, we must remand the case to the trial court for a hearing to determine why [the defendant] appeared at trial without counsel after having been warned that he would have to proceed to trial if he appeared without representation.” Id. at 724.

Based upon our decision in Hasty, we remand the present case for a hearing. “If it appears that [Smith] was unable to obtain counsel despite diligent efforts, then a new trial is warranted. If, on the other hand, after this hearing, the court determines that [Smith’s] failure to obtain counsel was attributable to his own lack of diligence, then no new trial is demanded.” Id. at 724-725. See also Hasty, 215 Ga. App. at 157 (distinguishing lack of diligence in hiring an attorney from lack of funds to do so).

We will address Smith’s remaining enumerations of error which could occur during any new trial granted by the trial court upon remand.

2. Smith contends that the trial court erred in restricting his closing argument so as to not allow him to comment on the State’s failure to produce certain witnesses. We agree that Smith had the right to comment on the State’s failure to call witnesses where the jury was presented with evidence that the missing witnesses had “knowledge of facts relevant and material to the case.” Morgan v. State, 267 Ga. 203, 206-207 (476 SE2d 747) (1996). Although evidence was presented that another officer was at the scene where Smith was arrested and that this officer was not called by the State at trial, no evidence was presented that this other officer had any knowledge relevant or materiál to Smith’s case. See Dennis v. State, 226 Ga. App. 390, 391 (2) (486 SE2d 656) (1997) (no abuse of discretion where defendant failed to produce evidence that the missing witness had information relevant to the facts of defendant’s case); Kendrick v. State, 224 Ga. App. 72, 75 (6) (479 SE2d 464) (1996) (“even assuming arguendo that the trial court’s ruling was somehow error, [defendant] failed to show the requisite harm”).

3. Smith contends that the trial court erred in allowing evidence before the jury that he had previously been convicted of using a false name and giving a false date of birth. Smith asserts that the trial court failed to hold a hearing required by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), prior to allowing this evidence.

The record reflects that the trial court held a hearing to determine the admissibility of a similar transaction, a 1991 conviction for possession of cocaine. A certified copy of Smith’s 1991 conviction was introduced without objection at trial. Smith had also been charged with and convicted of giving a false name and birthdate to a police officer in connection with the 1991 possession charges. The indictment and sentence introduced at trial were not redacted, but allowed evidence of these other charges before the jury. However, Smith waived this “issue by failing to object to that portion of the prior conviction when it was tendered into evidence.” Id. at 643 (3).

4. Smith contends that the trial court erred by allowing the State to make prejudicial and inflammatory remarks during closing argument. However, Smith failed to object at the time of the remarks.

“The time to object to improper closing argument is when the impropriety occurs at trial, when the trial judge may take remedial action to cure any possible error. When no timely objection is interposed, the test for reversible error is not simply whether or not the argument is objectionable, or even if it might have contributed to the verdict; the test is whether the improper argument in reasonable probability changed the result of the trial. Todd v. State, 261 Ga. 766, 767 (2) (a) (410 SE2d 725) (1991).” (Punctuation omitted.) Hopkins v. State, 227 Ga. App. 567, 568 (489 SE2d 368) (1997). Under this standard, we cannot say that the State’s argument regarding the number of drug cases in arraignment in DeKalb County on a given day changed the result of the trial.

Decided March 10, 1998.

Marie M. Blue, for appellant.

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

Judgment affirmed on condition and case remanded with direction.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0028.
    CYRUS v. THE STATE.
    (498 SE2d 554)
   Blackburn, Judge.

Jordan Marcell Cyrus appeals his convictions on two counts of aggravated assault, contending that the evidence was insufficient to support the convictions and that certain testimony regarding gang culture was improperly admitted into evidence. For the reasons set forth below, we affirm Cyrus’ convictions.

1. In his first enumeration of error, Cyrus contends that the evidence was insufficient to support his conviction. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Cyrus] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson [u. Virginia] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctua-. tion omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Cyrus, a member of the Folks Gang, was convicted for shooting ten-year-old Keith Davis multiple times on the evening of April 11, 1996. Cyrus, who is approximately five feet six inches tall and had short hair on the night in question, was accompanied by Dewayne Johnson, a “friend” of the Folks Gang, at the time of the shooting. Johnson is approximately five feet eleven inches tall, and his hair was braided at the time of the shooting. Johnson testified that, upon going out that evening, Cyrus said, “let’s go make the news,” and that Cyrus shot Davis soon thereafter. Two witnesses to the shooting testified that the shooter fit Cyrus’ description. One such eyewitness, Davis’ father, testified that he saw two black men at the time of the incident, and that the gun was being fired by the shorter man. In addition, the handgun used to shoot Davis was found in Cyrus’ bedroom. Although other evidence was presented contradicting the conclusion that Cyrus committed the crime, “the credibility of witnesses is a question for the jury, and the evidence adduced by the State, which obviously was believed by the jurors, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that [Cyrus was] guilty of the offenses charged.” (Citation omitted.) Roker v. State, 262 Ga. 220, 221 (1) (416 SE2d 281) (1992).

2. In his second enumeration of error, Cyrus contends that the trial court abused its discretion by denying his motion in limine and allowing Detective Carl Fletcher to testify regarding gang culture. Specifically, Cyrus contends that such evidence should have been excluded because its prejudicial effect outweighed its probative value. We disagree.

In Stephan v. State, 205 Ga. App. 241, 242 (1) (422 SE2d 25) (1992), a case in which evidence of the defendant’s participation in satanism and witchcraft was allowed, we held, “the state is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence even though it may have incidentally placed appellant’s character in evidence. The court had the discretion to modify its pretrial ruling when it became apparent the evidence was relevant and material to appellant’s motivation for assaulting the witness. Material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue.” (Citations and punctuation omitted.) In the case at hand, there was testimony that Cyrus was a member of the Folks Gang, and Johnson indicated that Cyrus wrapped a black bandanna, a gang “sign,” around the handgun just before he shot Davis. Therefore, testimony explaining gang culture was material to informing the jury of all circumstances surrounding the crime charged, including Cyrus’ motivation for shooting Davis. As such, we cannot say that the trial court abused its discretion in admitting this evidence.

Decided March 10, 1998.

William A. Matos, for appellant.

Charles H. Weston, District Attorney, Thomas C. Woody II, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Johnson pled guilty as a party to the crime prior to Cyrus’ trial.


text:
    A98A0053.
    TAYLOR v. THE STATE.
    (498 SE2d 552)
   Blackburn, Judge.

Allan Roger Taylor appeals his conviction of two counts of obstruction of a law enforcement officer, contending that the evidence was insufficient and that the trial court erred in charging the jury. For the reasons discussed below, we affirm.

1. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant 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.” (Punctuation omitted.) Bell v. State, 226 Ga. App. 271, 272 (1) (486 SE2d 422) (1997).

Viewed in the light most favorable to the prosecution, the evidence shows that Taylor and his wife were staying at a hotel on Tybee Island. After dinner one night, Taylor and his wife became involved in a heated argument, and Taylor called the police.

Sergeant Larry Lowers and Officer Rene Lowers were the first officers to arrive on the scene. Taylor, who had consumed approximately 12 beers that day, appeared intoxicated. Rene Lowers took Taylor’s wife outside while Larry Lowers remained in the room with Taylor. Officer Henry Connors arrived at the scene and went into the room with Larry Lowers in an attempt to calm down Taylor, who was using foul language and acting in a boisterous manner. As the officers started to leave the room, Taylor swung open the door and cursed the officers. Larry Lowers then advised Taylor that he was being placed under arrest for disorderly conduct.

As the officers were attempting to place handcuffs on Taylor, Taylor pulled his arm away and struck them repeatedly in the face and head. Rene Lowers came back into the room, and Taylor hit her several times in the face and head. During this altercation, Larry Lowers suffered a dislocated jaw and had a tooth knocked out and two others broken. One of Connors’ fingers was broken in two places, and Rene Lowers received several cuts and bruises and a sprained hand.

Decided March 10, 1998.

Darden & Moyers, Richard M. Darden, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Although Taylor’s version of events differed from the officers’ testimony, such differences were a matter for the jury to resolve. Viewed in the light most favorable to the prosecution, the evidence was sufficient to enable a rational trier of fact to find Taylor guilty beyond a reasonable doubt of the offenses charged.

2. Taylor also contends that the trial court failed to adequately charge the jury on the State’s burden of disproving his affirmative defense of justification beyond a reasonable doubt. This contention is without merit. The trial court properly charged the jury that “an affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. . . . Once the issue of an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.” The trial court then instructed the jury on the legal principle of justification. “Considered as a whole, the charge fully conveyed to the jury the state’s burden of disproving the affirmative defense of justification.” Brown v. State, 267 Ga. 350, 351 (2) (478 SE2d 129) (1996).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


author: Judge Harold R. Banke.

text:
    A98A0212.
    WELCH v. THE STATE.
    (498 SE2d 555)
   Judge Harold R. Banke.

Tracy Welch was convicted of two violations of the Georgia Controlled Substances Act, possession of Alprazolam, a Schedule IV controlled substance, and possession of marijuana. He enumerates three errors on appeal.

This case arose after government agents executed a search warrant at Welch’s parents’ mobile homé. During the raid, at least six individuals were in the trailer. Agents discovered 14 Xanax tablets in a bottle in Welch’s pocket, a plastic bag containing marijuana on the kitchen table, and rolling papers and residue sitting on a tray under a couch in the living room. In total, the agents seized less than a half-ounce of marijuana (11.8 grams), none of which was on Welch’s person.

The record shows that the State intended to call Barbara Penwell as a witness to testify that she provided the Xanax to Welch. She had pleaded guilty to distribution of Alprazolam. At trial, however, Welch’s counsel informed the court that Penwell told him she would not testify because she had lied to the State about the trade in the hope that she would get out of trouble.

Consistent with defense counsel’s statement, at trial Penwell refused to testify on Fifth Amendment grounds. Although the trial court offered her immunity, the offer did not extend to prosecutions for perjury or false swearing. When Penwell again refused to testily, the court warned her that “your failing to testify is a contempt of this court,” but imposed no sanction and excused her. The court then permitted the State to call Agent Wilson to read Penwell’s unsworn statement into the record. Held:

1. The affidavit supporting the search warrant was sufficient to establish probable cause. The affidavit indicated that some months earlier the attesting agent learned Welch had sold marijuana. This information was corroborated by the agent from other sources.

Although the affidavit failed to supply information as to the past reliability and veracity of the informants, the corroboration of the information by multiple sources “ £reduce(d) the chances of a reckless or prevaricating tale.’ [Cit.]” Thomas v. State, 173 Ga. App. 481, 483 (1) (326 SE2d 840) (1985); see Kessler v. State, 221 Ga. App. 368, 370 (471 SE2d 313) (1996) (proof of veracity no longer an absolute requirement).

We reject Welch’s contention that the information was too stale to provide probable cause. Cline v. State, 178 Ga. App. 470, 472 (1) (343 SE2d 506) (1986). Given all the circumstances set forth in the affidavit, we believe the magistrate had a substantial basis for concluding that probable cause existed. Kessler, 221 Ga. App. at 369. Thus, the trial court’s denial of Welch’s motion to suppress was not clearly erroneous. Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997).

2. Welch argues that the trial court erred in admitting the hearsay testimony of Agent Wilson that Barbara Penwell told him that on the day of Welch’s arrest she traded him the 14 Xanax tablets in exchange for a half-ounce of marijuana. We agree.

The Confrontation Clause guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . .” U. S. Const., Amend. VI; see also Ga. Const. of 1983, Art. I, Sec. I, Par. XIV; OCGA § 24-9-64. In construing this essential right, the Supreme Court unanimously agreed “that when one person accuses another of a crime under circumstances in which the declarant stands to gain by inculpating another, the accusation is presumptively suspect and must be subjected to the scrutiny of cross-examination.” Lee v. Illinois, 476 U. S. 530, 541 (106 SC 2056, 90 LE2d 514) (1986). Here, the State’s failure to rebut this presumption of unreliability resulted in the emasculation of both the letter and the spirit of this essential right. Livingston v. State, 268 Ga. 205, 211 (4) (486 SE2d 845) (1997).

Because the use of hearsay is “at odds with the literal terms of the Confrontation Clause of the Sixth Amendment,” its admission is strictly limited to circumstances “meet[ing] the requirements of a firmly-rooted exception to the hearsay rule.” Livingston, 268 Ga. at 210 (2). These exceptions each require certain indicia of reliability which act as substitutes for cross-examination of the declarant. See OCGA §§ 24-3-1 to 24-3-17.

The trial court applied OCGA § 24-3-1 (b), which permits the use of hearsay “in specified cases from necessity.” Hayes v. State, 265 Ga. 1, 2 (3) (453 SE2d 11) (1995). But this exception is applicable only when the declarant is unavailable and there exists “ ‘a circumstantial guarantiee] of the trustworthiness of the offered evidence.’ [Cit.]” Livingston, 268 Ga. at 211 (4).

The requisite guarantees of trustworthiness are patently absent in the instant case, leaving unrebutted the presumption of unreliability arising from the use of such testimony. Lee, 476 U. S. at 541. Penwell made her confession at the county jail, where she had been called for questioning and read her rights. While she may not technically have been in custody, it appears that her prosecution was certain when she made the statements. See OCGA § 24-3-5. The fact that testifying in Welch’s case was a condition of Penwell’s probation confirms both the State’s interest in implicating Welch and the concomitant benefit to Penwell. Because Penwell stood to gain by furthering the State’s interest, her accusation of Welch must be considered presumptively suspect. Lee, 476 U. S. at 541.

The circumstances under which Penwell invoked the Fifth Amendment likewise undermine confidence in the trustworthiness of her statements. Prior to trial, she informed defense counsel that the statement was untrue. Compare Drane v. State, 265 Ga. 663, 664 (1) (461 SE2d 224) (1995). When she told the district attorney that she did not want to testify, he advised her that if she did not, she would go to jail. These circumstances preclude a finding that the suspect statement was free from any desire, motive or impulse Penwell might have had to implicate Welch for her own benefit. Lee, 476 U. S. at 544.

Nor can we say that the admission of the suspect statement, untested by any meaningful cross-examination, was harmless as to either charge. A violation of the right to confrontation is harmless only where the evidence of guilt is overwhelming and the minds of an average jury would not have found the State’s case significantly less persuasive had the hearsay been excluded. Crawford v. State, 203 Ga. App. 215, 216 (2) (416 SE2d 820) (1992). Here, Penwell’s hearsay statement implicating Welch was the only evidence directly contradicting Welch’s testimony that a doctor provided him with sample packages of the Xanax. Welch’s sister corroborated his testimony. Further, Penwell’s statement bolstered a case with minimal evidence of marijuana possession. The State presented no direct evidence that Welch possessed the marijuana seized, which was found in the common area of the trailer where Welch, along with at least five others, was arrested. In its brief, the State offered no evidence that Welch was smoking or otherwise exercising sovereignty over that marijuana. Paden v. State, 216 Ga. App. 188, 189 (1) (453 SE2d 788) (1995) (mere presence at the scene of the crime, without more, is insufficient to support a conviction). Penwell’s statement, which was not subjected to the procedures required under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), did not mention or relate to the possession charge on which Welch was being tried. See Tam v. State, 225 Ga. App. 101, 103 (2) (483 SE2d 142) (1997) (such improperly admitted testimony is not harmless when the admissible evidence is sufficient but not overwhelming). On retrial, the hearsay testimony must be excluded.

Decided March 10, 1998.

Weaver & Weaver, George W. Weaver, Jeffrey L. Floyd, for appellant.

Roger G. Queen, District Attorney, for appellee.

Judgment reversed.

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

       Xanax is a legal prescription drug which contains Alprazolam.

       After Welch’s arrest, an agent was told that Penwell had traded the Alprazolam found in Welch’s pocket for marijuana. Before Welch’s trial, Penwell pleaded guilty to distribution of Alprazolam.

       The absence of such a guarantee precludes the admission of an out-of-court co-conspirator’s confession when the co-conspirator does not testify at trial. Livingston, 268 Ga. at 211 (4); see also OCGA § 24-3-52. Nor is the use of a nontestifying co-defendant’s statement to police implicating his two co-defendants permitted. Livingston, 268 Ga. at 211 (4).

       The investigative summary states, “Mrs. Penwell was not arrested at this time. Agent Wilson did not feel the need to place Mrs. Penwell in jail just prior to the Christmas holidays.”

       Cross-examination of the police officer to whom the statement was made would not cure the constitutional infirmities apparent here. It would establish only that the declarant made the statement and would not permit the accused to “ ‘test the truth of the statement itself.’ ” Livingston, 268 Ga. at 211 (4).

       We further find no other exception authorizing the admission of Penwell’s statement. Because it was made after the transaction or enterprise concluded, OCGA § 24-3-52 would not apply. Livingston, 268 Ga. at 211. Georgia does not recognize the exception for statements against penal interests. Barksdale v. State, 265 Ga. 9, 11-12 (2) (a), n. 3 (453 SE2d 2) (1995).

         Welch’s doctor testified that he did not recall whether he provided any Xanax to Welch, but could not deny it. He admitted that he had given out Xanax samples in the past.


text:
    A98A0235.
    FARMER v. THE STATE.
    (498 SE2d 559)
   Blackburn, Judge.

Farmer appeals his conviction for child molestation of his niece, contending that the trial court erroneously admitted similar transaction evidence of a prior act of molestation against another one of his nieces. Farmer further contends that the trial court erred by refusing to give a limiting instruction requested by him with regard to such evidence at the time that it was admitted. For the reasons set forth below, we reverse Farmer’s conviction.

1. In his first enumeration of error, Farmer contends that evidence of a prior act of molestation against another one of his nieces was improperly admitted. We disagree.

“[B]efore any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to Uniform Superior Court Rule 31.3 (B). At that hearing, the state must make three affirmative showings as to each independent offense or act it seeks to introduce. The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Footnote omitted.) Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Furthermore, “[t]he sexual molestation of young children, regardless of sex or type of act, is of sufficient similarity to make the evidence admissible. The exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” (Punctuation omitted.) McKenzie v. State, 223 Ga. App. 108, 111 (2) (c) (i) (476 SE2d 868) (1996). A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion. See Rodriguez v. State, 211 Ga. App. 256, 259 (4) (b) (439 SE2d 510) (1993).

Farmer’s argument is without merit, as the State satisfied the requirements of Williams. At the evidentiary hearing, the State showed (1) that it intended to introduce evidence of the independent act “to corroborate testimony of the victim as well as to show the lustful disposition of the defendant”; (2) that there was sufficient evidence that the defendant had committed the prior act, which was subsequently shown at trial through testimony of the prior victim, her parents, and a DFACS caseworker; and (3) that there was sufficient similarity between the prior act and the present act of molestation in that both acts were committed against one of Farmer’s nieces under similar circumstances. Farmer contends, however, that the trial court did not make a determination on the record that each of the elements enunciated in Williams, supra, for admission of such evidence was satisfactorily shown by the State. “Even if the trial court did not make specific rulings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, there was no harmful error because the evidence was sufficient for the trial court to have concluded that the Williams requirements were satisfied.” Parker v. State, 220 Ga. App. 303, 306 (5) (469 SE2d 410) (1996).

The fact that the prior act of molestation occurred five years before the act for which Farmer was indicted does not require a different result, as the lapse of time between the two acts goes to the weight and credibility of the prior transaction evidence, not its admissibility. Cooper v. State, 173 Ga. App. 254 (1) (325 SE2d 877) (1985). In addition, Farmer’s contention that the probative value of the similar transaction evidence was outweighed by its prejudicial impact is without merit. The similar transaction evidence offered against Farmer concerned Farmer’s molestation of another of his nieces in a manner similar to the crime for which he was indicted. “Assuming arguendo that some degree of prejudice to [Farmer] would flow from the admission of this evidence, such prejudice was outweighed by its probative value or its relevancy to the issues on trial. Accordingly, we find no error.” (Citation and punctuation omitted.) Kincer v. State, 208 Ga. App. 360, 361 (1) (430 SE2d 597) (1993).

2. In his second enumeration of error, Farmer contends that the trial court committed a reversible error by not giving the jury a limiting instruction with regard to the similar transaction evidence prior to the testimony of the victim of the prior act of molestation. In response to Farmer’s request, the court informed him that it would give such a limiting instruction as part of the charge to the jury at the conclusion of the trial, and the court did so. However, we held in Hinson v. State, 229 Ga. App. 840, 842 (3) (494 SE2d 693) (1997), “the trial court committed reversible error in failing to give, sua sponte, a limiting instruction contemporaneous with the admission of extrinsic acts or similar crimes evidence.” Here, the court failed to give a limiting instruction contemporaneous with the admission of similar transaction evidence even though it was asked to do so. Consequently, we reverse the judgment of conviction and remand for a new trial.

Decided March 10, 1998.

Aldous D. McCrory, for appellant.

Tambra P. Colston, District Attorney, Leigh E. Patterson, Assistant District Attorney, for appellee.

Judgment reversed.

McMurray, P. J, and Eldridge, J., concur.


text:
    A98A0247.
    BENEFIELD v. THE STATE.
    (497 SE2d 650)
   Blackburn, Judge.

Richard L. Benefield appeals his convictions of child molestation and aggravated child molestation, contending that he received ineffective assistance of counsel. For the reasons set forth below, we affirm.

“To prove an ineffective assistance of counsel claim, the defendant must show that trial counsel performed deficiently and that the result of the trial would have been different but for the deficiency.” Fargason v. State, 266 Ga. 463, 465 (4) (467 SE2d 551) (1996). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Punctuation omitted.) Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992). “Review of counsel’s performance . . . must be highly deferential; tactical decisions amount to ineffective assistance only if so patently unreasonable that no competent attorney would have chosen them.” Howard v. State, 220 Ga. App. 267, 271 (4) (469 SE2d 396) (1996). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

Benefield contends that his trial counsel, Kenneth Krontz, was deficient in failing, to call character witnesses. “However, this Court has held that strategic or tactical decisions at trial are the exclusive province of the lawyer, and decisions concerning whether to call character witnesses and whether to place the defendant’s character in issue are matters of strategy or tactics such as do not equate with ineffective assistance of counsel.” Mitchell v. State, 223 Ga. App. 319, 320 (5) (477 SE2d 612) (1996).

Decided March 10, 1998.

Word & Simmons, Gerald P. Word, for appellant.

Benefield also contends that Krontz was deficient in failing to present evidence which he claims would have shown that the victim had a motive for fabricating her charges. In particular, Benefield contends that Krontz should have presented evidence that Benefield had been involved in a fight with the victim’s father, who had discovered that Benefield was having an affair with the mother. However, Krontz did ask Benefield at trial whether he had had any confrontations with the father, and Benefield testified about the fight. Although Benefield did not testify about his affair with the mother, the decision whether to elicit such testimony is clearly a strategic one, as' it reflects on the defendant’s character.

Finally, Benefield contends that Krontz failed to spend adequate time preparing for trial. At the motion for new trial hearing, Benefield testified that he met with Krontz for about 30 minutes a couple of weeks after his arraignment, and then met with him again a week or so later for 25-35 minutes. During these meetings, Benefield informed Krontz about the relevant facts, including details regarding his relationship with the victim’s mother and his fight with the father. Krontz testified that he had practiced law for 20 years, and had handled over 100 criminal trials, including 20-30 child molestation trials. He testified that he met with Benefield on more than one occasion, and that Benefield agreed with his recommendations about how to defend the case.

“[T]here exists no magic amount of time which a counsel must spend in preparation for trial in order to provide a client with adequate counsel. Each case must be judged upon its own circumstances and in light of its own degree of complexity.” Hand v. State, 205 Ga. App. 467, 469 (2) (422 SE2d 316) (1992). Benefield has failed to show how the amount of time spent by Krontz on this case was insufficient to enable him to provide adequate representation. Indeed, at the conclusion of the trial, Benefield told the judge that he was satisfied with Krontz’s advice and his conduct of the trial. Under the facts of this case, we cannot say that the trial court abused its discretion in finding that Benefield failed to show that counsel’s performance was deficient.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.