text:
    A00A0762.
    A00A0763.
    JONES v. THE STATE. GRAHAM v. THE STATE.
    (533 SE2d 437)
   Ruffin, Judge.

A Camden County jury found Edward Jones and Bobby Graham guilty of violating the Georgia Controlled Substances Act by selling and distributing cocaine. In Case No. A00A0762, Jones challenges the sufficiency of the evidence. In Case No. A00A0763, Graham contends that the trial court erred in admitting evidence of similar transactions, instructing the jury with regard to the similar transactions, and denying his motion for new trial. As both cases involve the same operative facts, we have consolidated them on appeal. For reasons that follow, we affirm.

The record shows that, beginning in 1996, the Camden County Sheriff’s Department was engaged in an 18-month-long undercover operation to capture suspected drug dealers. As part of this operation, Investigator Lynda Taylor posed as a truck driver’s wife who was purchasing crack cocaine to sell to truck drivers and others.

On September 20,1996, Taylor drove to the intersection of Dover Bluff Road and Highway 17, and she parked on the side of the road near a clearing in the woods. Taylor saw Graham, who was standing in the clearing. Taylor testified that Graham told her, “Don’t park here; go across the road.” He then asked her what she wanted, and Taylor responded “60,” which, according to Taylor, means $60 worth of crack cocaine. Graham said “Okay,” and Taylor pulled across the street and parked her truck.

While watching through the rearview mirror, Taylor saw Jones come out of the clearing and walk across the street. Jones went to the driver’s side window and handed Taylor six pieces and several crumbs of what she believed to be crack cocaine, and Taylor gave him $60. James Campbell, a forensic chemist with the Georgia Bureau of Investigation, testified that he tested the substance Jones handed to Taylor and it was crack cocaine. Both Jones and Graham were charged with selling the crack cocaine.

Case No. A00A0762

1. Taylor’s truck was equipped with a hidden camera, which captured the transaction on a videotape that was shown to the jury. Apparently, the video did not actually show Jones handing Taylor the crack cocaine. Jones argues that, without the actual exchange on video, “[t]here existed no independent evidence that any contraband was delivered by Mr. Jones to Officer Taylor.” Thus, in his sole enumeration of error, he contends that the evidence was insufficient to support his conviction.

On appeal from a criminal conviction, Jones no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to upholding the jury’s verdict. As long as there is some competent evidence to support each element of the State’s case, we will uphold the jury’s verdict. “Furthermore, the testimony of a single witness is generally sufficient to establish a fact.”

Here, Taylor testified unequivocally that Jones handed her the crack cocaine in exchange for $60, which constitutes a violation of the Georgia Controlled Substances Act. There is no legal requirement that the State capture the event on videotape. Accordingly, the evidence was sufficient to support Jones’ conviction.

Case No. A00A0763

2. Following a hearing on the admissibility of the evidence, the trial court allowed the State to introduce evidence of two similar transactions. In two enumerations of error, Graham contends that the trial court erred in admitting this evidence.

The first incident, which occurred on October 3, 1996, also took place at the intersection of Dover Bluff Road and Highway 17. Taylor saw Jones, Graham, and others standing in the same clearing in the woods. Taylor entered the clearing and asked Graham if he had $100 worth of crack cocaine, and he said yes. Taylor left to get the money and, when she returned, said, “My customer only had $80.00.” Graham pointed to a bucket that contained the crack cocaine, and Taylor put the money in the bucket and took the cocaine.

The second transaction occurred on September 23, 1997, in Glynn County. Police Officer David Westall testified that a confidential informant told him that a man named “Bobby was coming from Camden County to deliver a quantity of cocaine to his house.” Westall and another officer drove to the informant’s house, and Westall saw Graham talking to the informant. As soon as the officers identified themselves as police, Graham grabbed a package from his car, began to run from the officers, and then threw the package. The police officers then chased and tackled him. Graham admitted to the police that the package he had thrown contained about 40 pieces of crack cocaine. Graham then pled guilty to possession of cocaine with intent to distribute.

Graham argues that the trial court erred in admitting this evidence. As a general rule, proof that the defendant committed a criminal act other than the one for which he is on trial is inadmissible because of its highly prejudicial nature. Accordingly, Georgia courts limit the introduction of such independent criminal acts to those that have a logical connection to the crime being tried. In order to admit this “similar transaction” evidence, the State must first show (1) that the evidence is offered for a proper purpose; (2) that sufficient evidence exists that the defendant committed the similar transaction; and (3) that there are enough similarities between the other transaction and the charged offense that proof of the former tends to prove the latter. A proper purpose for the introduction of the evidence would be to establish motive, intent, plan, identity, bent of mind or course of conduct.

Graham contends that the State did not have a proper purpose for admitting the similar transaction evidence. He argues that the only reason the State offered the evidence was to impugn his character. We disagree. As Graham acknowledges, one of the issues in this case was whether he participated in the sale or was merely a bystander. Thus, evidence that he had engaged in similar conduct in the past was properly admitted to establish his bent of mind and course of conduct.

Graham also contends that the trial court erred in admitting the similar transaction evidence without first balancing its probative value against its prejudicial impact. There is no requirement, however, that the trial court conduct an express balancing determination on the record. Accordingly, this claim of error lacks merit.

3. Graham argues that the trial court erred in instructing the jury with respect to the similar transaction evidence. The trial court gave limiting instructions to the jury three times — twice when the State introduced the similar transaction evidence and once in its general charge. The two times the trial court issued contemporaneous limiting instructions, Graham failed to object and, thus, waived any error in this regard.

In its general charge, the trial court instructed the jury that the similar transaction evidence was “admitted for the limited purpose of showing, if it did show, the defendant’s identity, bent of mind or course of conduct as it relates to the criminal charges in this case.”

As Graham notes, his identity was not at issue, because he stipulated that he was one of the men captured in the videotape of the crime. Thus, Graham argues that the limiting instruction was over-broad. But we fail to see how this legally accurate, if overbroad, instruction harmed Graham. The jury was still authorized to consider the similar transaction evidence to establish Graham’s course of conduct and bent of mind. We find it highly unlikely that the inclusion of the word “identity” confused the jury. Accordingly, this claim of error presents no basis for reversal.

4. In a related enumeration of error, Graham maintains that the trial court erred in failing to “limit the [similar transaction] instructions as to the specific defendant against whom it could be considered.” It is true that when similar transaction evidence pertains to only one of several defendants, the trial court should caution the jury to consider the evidence with respect to only that one defendant. Here, however, all of the similar transaction evidence pertained to Graham. Accordingly, his complaint has no basis.

Decided April 6, 2000.

Clyde M. Urquhart, for appellant (case no. A00A0762).

John J. Ossick, Jr., for appellant (case no. A00A0763).

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellee.

5. Finally, Graham contends that the trial court erred in denying his motion for new trial. Graham provides no new argument in support of this contention but merely points to the arguments made in Divisions 2 through 4 of this opinion. For the reasons set forth in those divisions, we affirm.

Judgments affirmed.

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

       The videotape was not included with the record on appeal.

        Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

       Id.

       (Punctuation omitted.) Id.

       See OCGA § 16-13-30 (b).

        Hudson v. State, 271 Ga. 477, 479 (2) (521 SE2d 810) (1999).

       Id.

        Ford v. State, 239 Ga. App. 257, 258 (2) (520 SE2d 923) (1999).

        Jones v. State, 236 Ga. App. 330, 332 (1) (b) (511 SE2d 883) (1999).

        Byrd v. State, 236 Ga. App. 485, 488 (6) (c) (512 SE2d 372) (1999).

        Parrish v. State, 237 Ga. App. 274, 281 (5) (514 SE2d 458) (1999).

       See Jones, supra at 333-334 (2) (b) (unnecessary inclusion of phrase “state of mind” in limiting instruction was unlikely to have misled jury and, thus, did not require reversal).

       See Williamson v. State, 234 Ga. App. 146 (505 SE2d 845) (1998).

        See Albert v. State, 236 Ga. App. 146, 151 (4) (511 SE2d 244) (1999).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1732.
    RUSSELL v. THE STATE.
    (532 SE2d 137)
   Miller, Judge.

A jury found Paul Russell guilty of possession of marijuana with intent to distribute (three counts), unlawful use of a communication facility, possession of devices to commit a crime, and hindering a law enforcement officer. Russell appeals, enumerating as error the denial of his motion for a directed verdict of acquittal on all counts. He also contends that the trial court erred in imposing separate sentences for each of the possession with intent to distribute counts. We affirm.

1. In six enumerations of error, Russell claims the trial court erred in denying his motion for a directed verdict of acquittal on five counts. “Where, as in this case, sufficiency of the evidence is challenged by a motion for directed verdict of acquittal, the proper test is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” On appeal we view the evidence in the light most favorable to support the verdict to determine the sufficiency of the evidence and do not weigh the evidence or determine the credibility of witnesses.

Viewed in this light, the evidence showed that sometime in February 1998, Russell telephoned Lechelle Milner and asked her if she could receive a package for him that he would later pick up. Milner agreed, picked up the package from Federal Express, and gave it to Russell, who gave Milner $100. On March 12, 1998, Russell telephoned Milner and told her he had another package to be delivered to her home. After finding a notice of attempted delivery on her door, Milner went to Federal Express around noon and retrieved a white box with tape across the top and a label, which she delivered to Russell’s apartment. Russell’s girlfriend Tee gave Milner another $100.

Meanwhile, Federal Express employees had opened a brown package with a nonexistent address to find more information about the recipient. Upon opening the package, the employees discovered what they believed to be marijuana and called police. Police confiscated the package but returned it to Federal Express on March 12 when they were told a woman arrived to pick it up.

Around 3:00 p.m. on March 12, Russell telephoned Milner a second time and informed her that he had another package that needed to be picked up from Federal Express. Between 3:00 and 3:30, Milner returned to Federal Express with a tracking number Russell had given her to pick up this third package and was arrested. She told police that she was picking up the package to deliver to Russell and subsequently agreed to perform a controlled delivery of the package to Russell’s apartment. In a conversation monitored by police, Milner phoned Russell’s apartment and asked to speak with him but was informed by Tee that he was not home. Tee inquired whether the package looked as if it had been opened. Milner said it did not and then was told by Tee to deliver the package, while Tee paged Russell. Shortly after 4:00 p.m., Milner delivered the package to the apartment and handed it to Tee, as Russell approached the building. Police then executed a search warrant and attempted to apprehend Russell, who fled. Officers ordered him to stop and chased him between apartments. Russell was carrying a white package as he ran which he threw away before being apprehended. Officers apprehended Russell, held him down, and ordered him to show his hands, but Russell kept his right hand under his body. One of the officers testified that Russell “was trying to roll around and wrestle.” After officers pulled his arm from under him they found a pistol in his waistband loaded with hollow point .45 caliber automatic ammunition.

Officers recovered $4,900 in cash, several packages of baggies from a kitchen pantry, some electronic scales from a cabinet in a bathroom, a shoe box containing nearly four ounces of marijuana from an entertainment center, and other items. The white package that Russell threw away while fleeing contained what was later determined to be almost three pounds of marijuana, while the brown package used for the controlled delivery, later found behind the apartment, contained 1.57 pounds of marijuana.

(a) Count 4 of the indictment alleged that Russell, between the hours of 8:00 a.m. and 2:00 p.m. on March 12,1998, received and possessed more than one ounce of marijuana with intent to distribute. Count 5 alleged that he received and possessed more than one ounce with intent to distribute between the hours of 2:00 p.m. and 6:00 p.m. on the same day. Russell contends that the evidence was insufficient to sustain the convictions on these counts. The evidence showed that Russell received two packages on March 12, both later tested to contain more than one ounce of marijuana, one around 12:00 p.m. and another around 4:00 p.m., which was the controlled delivery by police. Thus, under the standard of Jackson v. Virginia, the evidence sufficed to sustain the convictions.

(b) Russell argues that the evidence was insufficient to support the conviction on Count 2 of the indictment (possession of more than one ounce of marijuana with intent to distribute between February 18 and March 11, 1998), because there was no testimony as to the contents of the package and no evidence to show that the boxes found at the apartment were those delivered by Milner. Milner’s testimony that she picked up and delivered a package to Russell sometime in February is evidence that Russell was in possession of a third package. The shoe box officers found in the entertainment center contained more than one ounce of marijuana but less than that contained in the white and brown packages Milner delivered on March 12. Milner testified to delivering three packages to Russell, one of which was the brown package used for the controlled delivery and another that she described as a “white box with tape across the top and a label on the top,” which fits the description of the package Russell threw away as he fled. This authorizes the rational inference that the first package Milner delivered to Russell was the shoe box found by officers at the apartment.

Thus, based on Milner’s testimony of the number of packages she picked up and delivered to Russell and the corresponding number found at the apartment, there was sufficient evidence to show that the shoe box and/or its contents were from the first package delivered to Russell by Milner in February. The evidence sufficed to sustain the conviction on Count 2 of the indictment.

(c) Russell also claims that there were no scientific tests performed to show that the substance in the package was in fact marijuana. An officer trained in identifying marijuana and other substances testified without objection that he performed two chemical tests as well as a visual test on the contents of the three packages found at the apartment and determined that they all contained more than one ounce of marijuana. This is sufficient to establish that each substance was marijuana. And as explained in Division 2, the evidence was sufficient to show that the package delivered by Milner in February is the same as that found in the entertainment center containing marijuana.

2. Russell contends that the State failed to show that electronic scales and baggies were tools commonly used to commit the crime of possession with intent to distribute more than one ounce of marijuana. Under OCGA § 16-7-20, a person commits the offense of possession of tools for the commission of a crime “when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.”

An officer on the scene testified that there were several packages of plastic baggies in the apartment and that they are “commonly what marijuana is divided up into.” He further testified that electronic scales were also found inside the apartment which are used to weigh certain amounts of marijuana. In his opinion the amount of marijuana found in the apartment was for resale because of “the quantity we have, the way it’s packaged, it just bricked up for transport, baggies laid everywhere, large sums of cash, just everything that you need to package and distribute.” This testimony is sufficient to establish that electronic scales and baggies found in the circumstances here amounted to tools commonly used in the commission of the crime of possession of marijuana with intent to distribute.

3. Russell contends that the State failed to prove that he used a communication device to obtain possession of more than one ounce of marijuana. He claims that there was no evidence that he had any discussion in furtherance of a drug transaction. OCGA § 16-13-32.3 (a) provides that,

it shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of any act or acts constituting a felony. . . . [Communication facility . . . includes . . . the telephone. . . .

To establish the element of facilitation, the State must show that Russell’s telephone calls to Milner come within the common meaning of facilitate or “ ‘to make easier’ or less difficult, or to assist or aid.” Milner testified that the phone calls from Russell were to arrange the pickup of the packages and to instruct her to deliver them to his apartment. The telephone clearly aided in assisting Russell to gain possession of the packages of marijuana. The evidence sufficed to sustain the conviction.

4. The court reduced Russell’s initial charge of obstruction to a charge of hindering a law enforcement officer. He argues that his failure to respond immediately to officer’s orders was insufficient to sustain the conviction because he did not threaten, speak to, or argue with the officer. Under OCGA § 16-10-24 (a), a person who wilfully and knowingly obstructs or hinders any law enforcement officer in the lawful discharge of his duties is guilty of a misdemeanor. And “[t]o consummate an offense of misdemeanor obstruction, some form of knowing and wilful opposition to the officer sufficient to constitute obstruction or [hindrance] is required, but actual violence or threat thereof is not.”

Russell fled, failed to stop when ordered, and refused to show his right hand while held down by police. As “flight from police apprehension has been held to constitute sufficient opposition to support [a misdemeanor] obstruction charge,” certainly the totality of the circumstances in this case sufficed. Whether Russell’s conduct had the effect of hindering the officer in making his arrest was for the trier of fact to decide.

5. Russell contends that the court erred in imposing separate sentences for three possession with intent to distribute counts where the charges differed from one another only with respect to the date and time. “The general rule is that when individual acts are prohibited, each act is punished separately, no matter how close they may be in time to each other.” Here, the evidence showed that Russell had three separate packages of more than one ounce of marijuana delivered to him on three separate occasions. Under the evidence three sequential but entirely separate crimes were committed, and a conviction and separate sentence for each were authorized.

Decided March 22, 2000

Reconsideration denied April 7, 2000

Timothy T. Herring, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

Judgment affirmed.

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

       (Citation omitted.) Smith v. State, 237 Ga. App. 77 (1) (514 SE2d 710) (1999); see White v. State, 238 Ga. App. 367 (1) (519 SE2d 13) (1999).

        Smith, supra, 237 Ga. App. at 77 (1).

       Supra, 443 U. S. at 307.

       See Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993); compare Adkinson v. State, 236 Ga. App. 270, 271 (1) (a) (511 SE2d 527) (1999) (Georgia Bureau of Investigation chemist thought green leafy material was marijuana but did not test it); cf. Burse v. State, 232 Ga. App. 729, 730 (1) (503 SE2d 638) (1998) (even if police officers were not formally tendered as expert witnesses, with the proper foundation, their testimony as to their experience in drug enforcement and training is admissible).

       See Cook v. State, 226 Ga. App. 113, 115 (1) (485 SE2d 595) (1997); cf. Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996).

       (Punctuation omitted; emphasis in original.) Hunt v. State, 196 Ga. App. 694, 695 (3) (396 SE2d 802) (1990).

       (Citations omitted.) Id.

       See id. at 696.

       (Citations omitted.) Weidmann v. State, 222 Ga. App. 796, 797 (2) (476 SE2d 18) (1996); see also Pinchon v. State, 237 Ga. App. 675, 676 (516 SE2d 537) (1999) (argument, flight, and obstinance are examples of conduct that may satisfy the obstruction element).

       (Citations omitted.) Weidmann, supra, 222 Ga. App. at 797 (2).

        Pinchon, supra, 237 Ga. App. at 676.

       (Citations and punctuation omitted.) Lovell v. State, 235 Ga. App. 140, 143 (2) (508 SE2d 771) (1998).

       See id.


text:
    A99A1906.
    SCOTT v. THE STATE.
    (532 SE2d 141)
   Miller, Judge.

Arthur Scott, also known as Dan Scott, was tried before a jury and found guilty of two counts of aggravated battery and three counts of aggravated assault, for acts directed at his common law wife. At sentencing, two counts of aggravated assault (Counts 4 and 6) were merged with related counts for aggravated battery. He appeals from the denial of his amended motion for new trial, enumerating (1) the admission of hearsay testimony, (2) the admission of evidence of an extrinsic act for which he had been tried and acquitted, and (3) the sufficiency of the evidence. Finding no harmful error, we affirm.

Viewed in the light most favorable to the jury’s verdicts, the evidence revealed that, on February 9, 1997, at 2:34 p.m., Scott telephoned 911 and reported that, on the night before, an armed robber had hit Scott’s wife, Susan Ann Sims, with a gun. When an officer arrived at Scott’s residence, he noticed Sims’ face was severely swollen, with dried blood. Scott claimed that he had been robbed of $2,000 around 4:00 a.m. and that during this robbery, Sims had been severely beaten. Although the victim did not initially dispute this account, once out of Scott’s presence, she confided to the officer that her injuries had been administered by Scott. In addition to Sims’ swollen left eye and the lacerations and indentations on her forehead and scalp, the officer observed burn marks, scalding and blistering on her thigh, abdomen and breast areas. The victim’s oldest child, then six-year-old Mercedes, volunteered to the officer that it was Scott who struck her mother with a gun.

Scott had lived with Sims for seven years and was the father of her children. On the evening in question, she and Scott had been to a wake from 8:00 p.m. until midnight. Each had been drinking, and on the way home, they got into an argument, with Scott cursing Sims and wrongly accusing her of taking money from him. When they got home, the argument turned violent: Scott started beating Sims with his fists and hands, actually striking her about ten or fifteen times. Scott then picked up his pistol and struck Sims on the top of her head seven or eight times. When the beating stopped, Sims walked toward the bathroom, and Scott put the pistol to her head and told her to get in the shower. When she got in, Scott turned on scalding hot water. Steaming hot water splashed on her thigh, her stomach and her breast. Sims required stitches for her head wounds and skin grafts for her third-degree burns. She sustained nerve damage and lost feeling in the top of her head and has permanent scars and memory lapses.

1. The third enumeration urges the general grounds.

(a) On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary for the State’s case, the jury’s verdict will be upheld.

(b) A person commits the offense of aggravated battery when he “maliciously causes bodily harm to another by depriving . . . her of a member of . . . her body, by rendering a member of . . . her body useless, or by seriously disfiguring . . . her body or a member thereof.”

Here, proof that defendant’s unjustified and malicious blows to the victim’s head cáused memory lapses and permanent nerve damage is sufficient to authorize the jury’s verdict that he committed aggravated battery by depriving her of a member of her body as alleged in Count 1 of the indictment.

(c) “Black’s Law Dictionary defines ‘disfigurement’ as ‘that which impairs or injures . . . the appearance of a person . . . ,’ and defines ‘serious’ as ‘grave, (or) great.’ ” It is not necessary that the disfigurement be permanent. Here, the victim sustained third-degree bums requiring hospitalization and skin grafts, and she has permanent scarring because defendant held her at gunpoint and subjected her to scalding hot water. This is sufficient to authorize the jury’s verdict that Scott committed aggravated battery by seriously disfiguring the victim as alleged in Count 2 of the indictment.

(d) A person commits the offense of aggravated assault when he assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Whether Scott’s fists and hands constituted objects likely to result in serious injury was a question of fact for the jury. The evidence that Scott beat the victim about the head and face with his hands is sufficient to authorize the jury’s verdict that he is guilty, beyond a reasonable doubt, of aggravated assault as alleged in Count 5 of the indictment.

2. On February 10, 1997, the day after this incident, a detective spoke with the young witness, Mercedes, at the home of her grandmother, and obtained a recorded statement from her. In this statement, she told the detective that her father “was hitting [her] mamma with a gun,” saying, “where’s my money?” He hit her “on her face [and] he hit her in the eye [with] the gun.” Then, he “put her in hot water.” Out of the presence of the jury, Mercedes was examined by the court, but she did not remember giving that statement, nor did she remember anything about what happened the previous year when her mother had to go to the hospital. Over Scott’s hearsay objection, the trial court allowed the audiotaped recording of Mercedes’ interview to be played to the jury. After the State rested, Mercedes was called as the court’s witness. The State had no questions for her. Under cross-examination by Scott, Mercedes testified she did not remember anything about the incident and further answered “No” when asked if she ever saw an argument between her mother and father. Scott enumerates the admission of the audiotape as error.

We agree with defendant that this recording of a contemporaneous statement by a witness (not herself the victim) is not admissible hearsay under the amendment to the Child Hearsay Statute, under the controlling authority of Woodard, v. State While the tape would be admissible as a prior inconsistent statement, the State failed to lay a proper foundation, namely having the witness testify before the jury that she did not see any argument between her parents. Nevertheless, the erroneous admission of the child’s hearsay evidence was rendered harmless in this instance by proof of the same facts by properly admissible evidence. The audiotape was entirely cumulative of the child’s admissible res gestae statement that it was Scott who struck her mother with the gun, as well as the victim’s direct testimony.

3. The State notified Scott of its intent to introduce evidence of three prior acts of violence he committed against this victim. At the hearing on the admissibility of these allegedly similar transactions, Scott objected to proof of an October 1993 battery because he had been tried before a jury and acquitted. The State’s attorney conceded the acquittal and offered to pull the case file but argued that the incident was admissible despite Scott’s acquittal. Without examining the file, the trial court concluded the incident was admissible as a prior difficulty, to show course of conduct and bent of mind. At trial, the victim was permitted to testify over objection that, in the October 1993 incident, the two of them got into an argument and Scott “started beating [her] with his fists . . . and he heated [sic] the contact lens down in [her] eye.” The victim “couldn’t do anything [to defend herself]. He had done beat the hell out of [her] that time, too.”

While the admissibility of the State’s evidence of “prior difficulties” between the accused and the victim no longer must be determined at a pre-trial hearing under Uniform Superior Court Rules 31.1 and 31.3, the circumstance here of Scott’s prior acquittal of a criminal charge arising out of the proffered prior difficulty does demand close pre-trial scrutiny by the trial court.

Although some jurisdictions have adopted a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, [the Supreme Court of Georgia] has not. Instead, the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.

The trial court committed procedural error by deciding the admissibility of this prior incident without determining whether the purpose for which the prior incident was offered here (to prove course of conduct and bent of mind) involved an issue resolved in Scott’s favor by the verdict of acquittal. In the absence of evidence to the contrary, we will assume that a general verdict of “not guilty” was returned.

In order to introduce evidence of an independent offense as a relevant similar transaction [or prior difficulty] the state must prove two factors. It must be shown that the defendant was in fact the perpetrator of the separate offense and that there is a sufficient similarity of offenses so that proof of the former tends to prove the latter. It is in establishing the first factor that collateral estoppel comes into play where there has been [an] acquittal. . . .

Here, Scott testified that the prior incident involved self-defense when Sims tried to stab him and that he “won the case at a jury trial.” The evidence of record thus demands a finding that Scott’s “course of conduct” was a disputed issue that the jury resolved in his favor. Consequently, the specifics of this prior difficulty were irrelevant and inadmissible, and the trial court substantively erred in admitting this evidence. But in light of the admissible prior difficulties, the direct evidence of the victim, and the contemporaneous (res gestae) account of Scott’s daughter, we conclude the error was harmless beyond a reasonable doubt, in that it is highly probable the erroneous admission of this irrelevant prior difficulty did not contribute to the verdicts.

Decided March 22, 2000

Reconsideration denied April 7, 2000

James M. Feagle, Kris K. Skaar, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Keith E. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

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

        Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

       OCGA § 16-5-24 (a).

       See Griffin v. State, 170 Ga. App. 287 (10) (316 SE2d 797) (1984) (brain injury resulting from forceful blows to the head is sufficient).

        Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980).

        In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991).

        Price v. State, 160 Ga. App. 245-246 (1) (286 SE2d 744) (1981).

       OCGA § 16-5-21 (a) (2).

        Arnett v. State, 245 Ga. 470, 473 (3) (265 SE2d 771) (1980).

        Maloy v. State, 237 Ga. App. 873, 874 (2) (516 SE2d 370) (1999).

       OCGA § 24-3-16.

       269 Ga. 317, 321 (3) (496 SE2d 896) (1998).

        Griffin v. State, 251 Ga. 431, 432 (4) (306 SE2d 283) (1983).

       Compare Barksdale v. State, 265 Ga. 9, 11 (2) (a) (453 SE2d 2) (1995) (co-indictee’s in-court refusal to testify is “no testimony in court with which the prior statement could be judged to be inconsistent,” under Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982)).

        Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990). Accord Smith v. State, 266 Ga. 827, 831 (4) (470 SE2d 674) (1996).

        Haska v. State, 240 Ga. App. 527, 530 (4) (523 SE2d 589) (1999). Accord Owens v. State, 270 Ga. 199, 201 (2) (509 SE2d 905) (1998) (defendants no longer need comply with USCR 31.1 and 31.6 in order to admit evidence of prior difficulties with the victim).

       (Citations and punctuation omitted.) Salcedo v. State, 258 Ga. 870 (376 SE2d 360) (1989).

       Id. at 871.

       See OCGA § 17-9-2.

       (Citation omitted.) Moore v. State, 254 Ga. 674, 676 (333 SE2d 605) (1985).

       The best evidence of an acquittal is a certified copy of the verdict or judgment of acquittal. See In the Interest of B. K., 239 Ga. App. 822, 823 (522 SE2d 255) (1999).

       We do not intend to exclude a victim’s factual statement that she and a companion quarreled or fought frequently, as that does not necessarily implicate the character of the accused.

        Bohannon v. State, 208 Ga. App. 576, 580 (2) (d) (431 SE2d 149) (1993).


author: Phipps, Judge.

text:
    A99A1627.
    COWAN v. THE STATE.
    (531 SE2d 785)
   Phipps, Judge.

A jury found Anthony Lamar Cowan guilty of two counts of armed robbery, two counts of possession of a firearm by a convicted felon, and possession of a firearm during the commission of a crime. The trial court sentenced him to two consecutive terms of life imprisonment for the armed robberies and to concurrent five-year sentences for each of the remaining crimes. After the trial judge denied Cowan’s motion for new trial, he appealed, contesting the jury selection process, the sufficiency of the evidence, the admission of certain evidence, a photographic lineup procedure, the failure to charge on alibi, the use of his prior felony convictions in aggravation of sentencing, a delay in receipt of his trial transcript for appeal, and the effectiveness of his trial counsel. Having determined that no reversible error occurred and that the evidence was sufficient to support the verdict, we affirm.

1. On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

The State presented the testimony of Derrick Walker, who pled guilty for his participation in the crimes. Walker testified that on August 27, 1995, he and Cowan drove to a Crown convenience store in a stolen white Mitsubishi 3000 GT that he had “purchased” for $20. Cowan robbed the cashier at gunpoint. They also took beer and Atlanta Braves hats. Then they drove to a nearby Krystal fast-food restaurant. When they got to the drive-through window, Cowan got out, walked to the window, and robbed the cashier at gunpoint.

Walker testified that the next day, he and Cowan drove to a Kentucky Fried Chicken fast-food restaurant to rob it. They drove to the drive-through window, but when Cowan got out of the car, a police patrol car drove up behind them. Walker drove away, leaving Cowan at the scene.

The arresting officer testified that as he was apprehending Cowan, a small gun fell from Cowan’s clothing. Cowan was wearing an Atlanta Braves hat. At trial, the officer identified Cowan as the person apprehended and described the car driven by Walker as a White Mitsubishi 3000 with Georgia tag number “YEC 705.”

Cowan challenges the sufficiency of the evidence, contending that his conviction was based on the uncorroborated testimony of Walker, an accomplice. But the rule that a felony conviction may not be based upon the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the State relies. Here, the State introduced other evidence which, independently of the accomplice’s testimony, directly connects Cowan to the crimes.

(a) The Crown convenience store manager testified that on the night of the armed robbery, the store’s videocamera system was programmed to record the cashier’s area. He testified that after the robbery, he went to the store, confirmed that the videocamera had recorded the robbery, and gave the videotape to police. He also testified that at the time of the armed robbery, the store had for sale Atlanta Braves hats and the size and kind of beer taken.

Elsa Asmelash, the victim of the Crown convenience store armed robbery, testified that on August 27, 1995, at around 10:30 p.m., two men drove up in a white car, entered the store, walked to the cashier’s counter, and demanded money at gunpoint. After taking money from the cash drawer, the robbers then took hats and beer. Asmelash watched the men drive away, memorizing “705” as part of the car’s tag number.

With Asmelash on the witness stand, the videotape was admitted into evidence. As the videotape played, Asmelash described the activities on the tape. As one of the men threatened her with the gun, she handed over the money from the cash drawer, and the men approached the hats and took beer. She then pointed to Cowan, in the courtroom, and identified him as the gunman seen in the video. Cowan’s argument that Asmelash failed to identify his picture before trial merely raises an issue of the weight to be given her testimony.

(b) Regarding the Krystal fast-food restaurant robbery, Detective Veillon of the DeKalb County Police Department testified that Stanley Shanks, the victim of the Krystal armed robbery, identified Cowan from a photographic lineup as the robber. Although Cowan complains that Veillon’s testimony is hearsay, “[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.”

(c) The State introduced certified copies of Cowan’s nine prior Texas felony convictions to support the charge of possession of a firearm by a convicted felon.

The record shows that the State introduced evidence, including testimony of the victims’ identification of Cowan as the person who robbed them at gunpoint, which independently of the accomplice’s testimony directly connected Cowan to the armed robberies. The evidence was sufficient to support Cowan’s conviction.

2. The State presented evidence, as a similar transaction, of an armed robbery at an Arby’s fast-food restaurant on the day before the armed robberies for which Cowan was convicted. Corey Harris testified that he was working at the restaurant’s drive-through window when a car arrived. A man got out of the car, walked to the window, threatened him with a gun, and demanded money. Harris described the car as a white “Eclipse” with tag number “YEC 705.” He testified that he later identified Cowan as the robber. An eyewitness to the Arby’s robbery also testified that Cowan was the robber.

Cowan contests the admission of the similar transaction evidence on several grounds.

(a) Relying on Gilstrap v. State, Cowan contends that the trial court erroneously admitted the similar transaction evidence before the admission of any evidence concerning the charges in the indictment on trial. In Gilstrap, the trial court permitted the State to introduce evidence of nine similar transactions before it had offered any evidence concerning the charges in the indictment on trial. The trial court has discretion as to the order of admission of evidence, but that discretion is not unlimited. Gilstrap concluded that the procedure followed in the trial court raised a substantial possibility that the jury could have settled upon the guilt of the defendant based solely upon evidence of a large number of similar transactions before hearing a single witness testify as to the indicted offenses. Gilstrap, however, expressly declined to determine the limits of the trial court’s discretion as to the order of the admission of evidence.

Unlike in Gilstrap, here the State presented evidence of only one similar transaction before presenting evidence of the indicted offenses. The trial court did not abuse its discretion in allowing the State to do so.

(b) Cowan contends that the trial court erred in admitting similar transaction evidence although the State had not complied with Williams v. State, asserting that at the pretrial hearing to determine the admissibility of the evidence, the State did not articulate the purposes of the evidence. Williams requires that the State make an affirmative showing that it “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 record demonstrates that after the State proffered evidence of the similar transaction at the pretrial hearing, the trial court determined that the State had made that showing. Moreover, Cowan did not object at trial to the admission of the evidence on that ground. Thus he failed to preserve the argument for our consideration on appeal.

(c) Cowan contends that the trial court erred by giving an instruction on similar transaction evidence that did not adequately limit how the jury was to consider the evidence. Prior to the State presenting the similar transaction evidence, the trial court gave the following instruction:

Members of the jury; I understand this will be proffered evidence of something that may or may not have happened down in Fulton County. . . . [T]he State may only offer this evidence to show, if it does, the defendant’s motive, bent of mind, plan, scheme, course of conduct, or other matters depending on the person’s state of mind, and he is not on trial for anything that may have happened that this witness may or may not testify to about here.

Cowan complains that the trial court’s instruction authorized the evidence for many purposes. But the mere fact that the Court permitted multiple purposes does not render the instruction inadequate, and the stated purposes bear upon relevant questions in this case.

(d) Cowan contends that the trial court erred by allowing the State to present testimony that he had been indicted for the similar transaction. But Cowan failed to object to the introduction of the evidence at trial, which waived the issue on appeal. “[T]he rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.”

3. Cowan contends that he was denied the right to select jurors from a fair cross-section of the community. The Court Administrator for the DeKalb Superior Court testified that the county uses figures from the 1990 Census to draw demographically proportionate pools of jurors from voter registration files. When potential jurors appear for jury duty, they are placed on jury panels through random computer selection. There are no further attempts to impanel a jury in a particular case with a certain racial makeup. He testified that the 1990 population of DeKalb County and the pool of jurors from which panels are drawn were both 37.8 percent African-American. Cowan complained that the panels brought to the court for his trial were only 28.5 percent African-American and requested that the trial court add some African-Americans. The trial court denied Cowan’s request.

DeKalb County’s random jury panel selection process does not show unconstitutional jury discrimination, and the trial court did not err in so finding.

4. Cowan contends that hearsay statements of nontestifying witnesses to the Krystal armed robbery were erroneously allowed into evidence. A police officer testified that Shanks and Anwar Bass, who were working at the Krystal restaurant at the time of the armed robbery, gave him descriptions of the suspects, the vehicle, and the events. But Cowan’s accomplice also testified to the same facts, without objection. Therefore, even if the admission of the complained-of testimony was error, the error was harmless.

5. Cowan testified that he was working on the nights in question and now complains that the trial court erred by not giving the jury a sua sponte charge on his sole defense of alibi. He relies on Chapel v. State and Tarvestad v. State for the proposition that the trial court must give a charge on the sole defense even when not requested if there is some evidence to support it. Cowan’s reliance is misplaced. In Chapel, the trial court gave an instruction regarding alibi, and Tarvestad concerned the defense of justification. Unlike justification,

alibi is not an affirmative defense. ... It generally challenges the assertion of defendant’s presence at the scene of the crime, obviously a necessary element. . . . [I]t was not error for the court to fail to charge specifically on alibi absent a request. The rationale is that “since the true effect of an alibi defense is to traverse the state’s proof that the defendant committed the crime, the charge that the burden is on the state to prove that the defendant committed the crime beyond a reasonable doubt itself necessarily covers the question of whether the evidence of alibi was sufficient to create a reasonable doubt.”

Moreover, “[Cowan’s] testimony concerning his whereabouts at the time the crime [s] [were] being committed is vague and uncertain, and it does not negate the possibility of his presence at the scene. [Cit.]” Cowan testified that on the night of the Crown and Krystal robberies, he went to work at an Amoco gas station, located on Ponce de Leon Avenue, at approximately 10:00 p.m., where he cleaned the parking lot. He testified that it “only takes [him] about 30 minutes to finish [working].” There is no evidence in the record of Cowan’s whereabouts afterward. Asmelash, the victim of the Crown armed robbery, testified that the two men drove up at “approximately” 10:30 p.m. Officer Barstow of the DeKalb County Police Department stated that he received the Krystal restaurant robbery call at 10:36 p.m. The distance between the Crown station and the Krystal restaurant is approximately one mile and could have been driven within two minutes.

The range of the evidence with respect to time and place fails to “exclude the possibility of [Cowan’s] presence” at the scene of the crimes. Under these circumstances, there was no reversible error in the court’s failure to charge on alibi.

6. At the pretrial hearing to determine the admissibility of the similar transaction evidence, Harris, the victim of the similar transaction, testified that he did not initially identify Cowan when the police officer showed him a photographic display. But after the police officer showed Harris the photographic display again, he identified Cowan as the gunman who robbed him. Cowan complains that the second showing “pressured” Harris and contends that the trial court erred by admitting testimony of a highly suggestive lineup.

Pretermitting whether this contention was preserved for appeal, it is error to allow testimony concerning a pretrial identification of the defendant,

if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. A court need not consider whether there was a substantial likelihood of misidentification if it determines that the identification procedure was not impermissibly suggestive. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of [a] defendant as the perpetrator or [when it] is the equivalent of the authorities telling the witness, [t]his is our suspect.

The detective testified that in constructing the photographic lineup, he selected photographs of other individuals of similar age and with similar facial features and other characteristics. He asked Harris to look at the photographs but advised him that “he didn’t have to pick out anybody.” Although Harris selected no one when the lineup was initially shown to him, he later selected Cowan. The record shows that Harris had ample opportunity to observe Cowan during the robbery, and Harris testified that “[a] 111 know is the picture that I saw was the picture of the guy that robbed me. Because I slept with that for a while.”

The record contains no evidence that the photographic lineup was assembled or presented in an impermissibly suggestive manner.

7. Cowan contends that the trial court erred in charging:

While the law requires the State to prove the defendant’s guilt to your satisfaction beyond a reasonable doubt, the law does not require the State to prove the defendant’s guilt to an absolute or mathematical certainty beyond all doubt. A reasonable doubt is not an imaginary doubt. Neither does it mean the mere possibility that the defendant may be innocent. But as I said to you just now, it means a doubt that is founded upon reason.

Cowan argues that the phrase, “[n] either does it mean the mere possibility that the defendant may be innocent,” lessened the State’s burden of proof and constitutes reversible error. We do not agree. The correct inquiry to determine whether a trial court’s instruction on the State’s burden of proof allowed a finding of guilt based on a degree of proof below that required by due process is whether there is a “reasonable likelihood” that the jury applied the instruction in a constitutionally impermissible manner. “The word ‘possibility’ in the trial court’s charge would have been understood by the jury to constitute only a synonym of the vague, imaginary and fanciful doubts previously discussed by the trial court.” Therefore, after considering the charge as a whole, we find no reasonable likelihood that the jury applied a standard of proof less stringent than that required by the state and federal due process clauses or other applicable law.

8. The State introduced certified copies of Cowan’s nine prior Texas felony convictions to prove that he was a convicted felon in possession of a firearm. The trial court considered the same prior convictions at sentencing. Relying on State v. Freeman, Cowan contends that the trial court erred in doing so.

Freeman ruled that evidence of a prior felony conviction, necessary to prove possession of a firearm by a convicted felon, could not also be used to enhance punishment of that crime under OCGA § 17-10-7 (a). Freeman concluded that the punishment provisions established for the offense may be the only standard applied in sentencing. For the charges of possession of a firearm by a convicted felon, Cowan received two five-year sentences. Those sentences were permissible. Cowan’s life imprisonment sentences for the armed robberies also were within the permissible range of punishment authorized for armed robberies under OCGA § 16-8-41 (b).

“[T]here is a presumption that [a] sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” Cowan has failed to carry that burden.

9. Cowan contends that he was denied due process by a 19-month delay in receipt of the transcript for appeal. Whether a delay in the appellate process violates due process depends on (1) the length of the delay, (2) the cause of the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.

Here, Cowan has failed to show that the delay prevented him from presenting an adequate appeal or impaired a defense which otherwise would have been available. Moreover, none of Cowan’s other enumerations of error warrant a new trial. Under these circumstances, we conclude there was no violation of due process.

10. Cowan contends that the trial court erred in finding that his trial counsel rendered effective assistance. He complains that counsel was ineffective for failing to request a jury charge on the defense of alibi, failing to fully investigate his alibi defense and subpoena witnesses in support of that defense, and failing to present any evidence in mitigation at his sentencing hearing.

To establish ineffectiveness, an appellant must show that (1) counsel’s performance was deficient, and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(a) Cowan complains that trial counsel was ineffective by failing to request a jury charge on the defense of alibi. Our ruling in Division 5 controls this issue adversely to Cowan.

(b) Cowan’s trial counsel testified at the motion for new trial hearing that during his investigation of Cowan’s alibi, he learned that Cowan’s supervisor at Amoco had reported to police that she had seen Cowan leave with Walker in a white car the day after the robberies. He stated,

Decided March 21, 2000

Reconsideration denied April 10, 2000

Timothy W. Hoffman, for appellant.

J. Tom Morgan, District Attorney, Jennifer M. Daniels, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

[f]rom that, it didn’t really sound to me like we wanted to find his alibi witness, because his alibi witness is telling the police . . . she saw him with the co-defendant getting into a white car. And shortly after that the co-defendant comes by and ditches the white car after he is chased by the Atlanta police. . . . [It] sounds like she would be a great witness for the State.

Trial counsel stated that he “really did not think [it] was in his best interest to bring [the Amoco manager] in.”

Trial counsel also testified that Cowan later told him about another alibi witness at a Chevron station, saying that he was working there for somebody but was not sure of his manager’s name. When trial counsel’s investigator went to the station and showed Cowan’s picture to the manager, the manager did not recognize Cowan.

We find that trial counsel’s performance in this regard falls within the wide range of reasonable professional assistance. Further, the record does not show that there were any other witnesses who could have testified in Cowan’s defense. And Cowan has presented no evidence as to what any other witnesses would have testified in support of his alibi.

(c) The record contains no evidence of what any witnesses might have said on Cowan’s behalf at his sentencing hearing. The record shows that during sentencing, trial counsel asked Cowan whether he wanted to speak, but he declined to do so.

We conclude that the trial court did not err in finding that trial counsel’s representation was not deficient.

Judgment affirmed.

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

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

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

        Patterson, supra, 225 Ga. App. at 515.

       Id.

       OCGA § 24-4-8; Telfair v. State, 234 Ga. App. 444, 445 (507 SE2d 195) (1998).

        West v. State, 218 Ga. App. 341 (1) (461 SE2d 300) (1995).

       (Citations and punctuation omitted.) Neal v. State, 211 Ga. App. 829, 830 (1) (440 SE2d 717) (1994).

       See Jackson v. Virginia, supra, 443 U. S. at 307.

       261 Ga. 798, 799 (2) (410 SE2d 423) (1991).

       Id.

       Id.

       Id.

       Id.

       Id.

       See Charo v. State, 206 Ga. App. 297, 298 (424 SE2d 900) (1992).

       261 Ga. 640, 642 (1) (b) (409 SE2d 649) (1991).

       (Footnote omitted.) Id.

        Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991).

       See generally Jones v. State, 236 Ga. App. 330, 332 (1) (a) (511 SE2d 883) (1999).

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

        Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998).

       (Footnote omitted.) McClarity v. State, 234 Ga. App. 348, 350 (2) (506 SE2d 392) (1998).

       See generally Larmon v. State, 256 Ga. 228 (345 SE2d 587) (1986).

        Cherry v. State, 230 Ga. App. 443, 446 (4) (496 SE2d 764) (1998) (where the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless the admission of the same evidence over objection).

       270 Ga. 151 (510 SE2d 802) (1998).

       261 Ga. 605, 606 (409 SE2d 513) (1991).

       Supra, 270 Ga. at 156-157 (7).

       Supra, 261 Ga. at 605-606.

       (Footnotes omitted.) Seese v. State, 235 Ga. App. 181, 182-183 (1) (509 SE2d 94) (1998).

        Dixon v. State, 157 Ga. App. 550 (1) (278 SE2d 130) (1981); OCGA § 16-3-40 (the defense of alibi involves the impossibility of the accused’s presence at the scene of the offense at the time of its commission).

       See OCGA § 16-3-40.

       (Citations and punctuation omitted.) Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

        Estelle v. McGuire, 502 U. S. 63, 72, n. 4 (112 SC 475, 116 LE2d 385) (1991); Coleman v. State, 271 Ga. 800, 804 (8) (523 SE2d 852) (1999).

       Id.

       See id. (while disapproving the continued use of the challenged charge, the Court determined that the complained-of language did not require reversal — decided after Cowan’s trial).

       198 Ga. App. 553 (402 SE2d 529) (1991).

       Id. at 554-555 (1).

       Id. at 555 (1).

       OCGA § 16-11-131 (b).

       (Citation omitted.) Freeman, supra, 198 Ga. App. at 557 (3).

        Graham v. State, 171 Ga. App. 242, 250-251 (7) (319 SE2d 484) (1984).

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

        Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991).

        Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).


text:
    A99A2387.
    PYLE v. PYLE et al.
    (531 SE2d 738)
   Phipps, Judge.

Danny Pyle was buried in a cemetery owned and operated by the City of Cedartown. When his widow discovered that the city had granted title to his grave and the adjacent grave space to his son by a previous marriage, she sued the city, Lester Litesey Funeral Home, Inc., and the son. In this appeal, she contests the trial court’s grant of summary judgment to the funeral home on her claims of breach of contract and interference with burial rights. She also contests the grant of summary judgment to the funeral home and the son on her claims of conspiracy and fraud.

When Danny Pyle died on April 21, 1997, he was survived by his second wife, Caron Pyle, and children of his first marriage, including a son, Michael Pyle. The widow, the son, and other family members met with Lester Litesey III, vice-president of the funeral home, and entered into an agreement for funeral goods and services for the burial. Because Michael Pyle and Litesey were good friends, Litesey discounted the bill by $2,795.

Caron Pyle and Michael Pyle later met with the city’s cemetery superintendent and selected a burial plot with two adjacent grave spaces — one in which to bury Danny Pyle, and one in which Caron Pyle expected to be buried. She told the cemetery superintendent to title the plot in her name.

The city required payment for grave spaces before permitting burials. When Michael Pyle discovered that his father’s “funds were tied up,” he asked Litesey to add the cost of the burial plot to the funeral bill. Litesey deposed that he agreed to pay the city and that “somebody [would] bring [him] a check for the [burial plot] when they got the money.”

Based on information that the cemetery superintendent returned to her after meeting with the Pyle family, the city’s tax clerk prepared a “City of Cedartown Cemetery Lot and Grave Application.” The application showed that two grave spaces were being purchased, that the cost totaled $710, and that the deed was to grant title to Caron Pyle. Because the funeral home was paying for the grave, the grave application showed the funeral home as the applicant, and an authorized funeral home agent signed the grave application which provided, “I hereby agree to pay in advance.for said cemetery lots and/or opening of grave.” On April 23, Danny Pyle was buried in one of the two selected grave spaces.

The funeral home delivered its check to the city for $710 on April 25, and after receiving a check from Michael Pyle some days later, Litesey delivered that check to the city and received a refund of the funeral home’s payment. Litesey also gave the city a note which stated, “Make deed to Michael Pyle, 41 Beaver Run, Cedartown, Georgia 30125.” The tax clerk testified that she then changed the grave application to show that Michael Pyle was to receive the deed. Some time thereafter, she prepared a deed which granted title to the plot to him.

Caron Pyle discovered that Michael Pyle had title to the plot when she attempted to memorialize her husband’s grave with a double headstone inscribed with their names. Michael Pyle refused to permit it. When that happened, she sued.

The trial court granted summary judgment to the city on fraud and intentional infliction of emotional distress claims, and we affirmed that decision. The controversy is before us again on grants of summary judgment on Caron Pyle’s claims against the funeral home and Michael Pyle.

On appeal of a grant of summary judgment, we determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and was entitled to judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. We view the evidence, and all reasonable conclusions and inferences drawn from it, de novo and in the light most favorable to the nonmovant.

1. Caron Pyle contends that the trial court erred by granting summary judgment to the funeral home on her contract claim, maintaining that the funeral home breached the contract for funeral goods and services by causing the city to title the plot in Michael Pyle’s name. The funeral home argues that the contract did not include the purchase of the burial plot.

Although the contract charged $350 for “cemetery fees,” Litesey deposed that $300 was for opening and closing the grave and $50 was for the city’s grave application fee. He pointed to a section of blank lines in the contract and asserted that the section would have been completed had the contract included the purchase of a burial plot. Litesey’s statement that he did not discuss the purchase of grave spaces with the Pyle family when they entered into the contract is undisputed.

When viewed in the light most favorable to Caron Pyle as nonmovant, there was insufficient evidence from which a jury could find that the contract included securing a burial plot in her name. Even assuming that Litesey’s subsequent agreement with Michael Pyle that the funeral home would advance payment to the city for the plot amended the initial contract, the record remains devoid of evidence that the amendment further specified that title to the plot was to be in Caron Pyle’s name. Therefore, the trial court did not err by granting summary judgment to the funeral home on the breach of contract claim.

2. Caron Pyle contends that the trial court erred in granting summary judgment to the funeral home on her claim of interference with burial rights. She asserts that the funeral home, at Michael Pyle’s request, instructed the city to grant title to the burial plot to him, which has caused her to be prohibited from memorializing her husband’s grave and has interfered with her purchase of the adjacent grave site for her own burial.

Caron Pyle, as the surviving spouse, had the private right to bury her husband. Her private right to bury her husband included determining the time, manner, and place of burial. The funeral home owed her the duty not to wilfully or wantonly interfere with the burial of her husband. To show wilful or wanton conduct, one must demonstrate that a defendant’s acts evidenced “a wilful intention to inflict the injury, or else were so . . . charged with indifference to the' consequences as to justify finding a wantonness equivalent in spirit to actual intent.” While prior cases addressing tortious interference with burial rights have generally considered conduct prior to or during the burial, the fact that the conduct occurred after interment does not, as a matter of law, insulate the funeral home from tort liability.

In his deposition, Michael Pyle stated that he hated Caron Pyle and did not want her to be buried beside his father. He deposed that he and Litesey discussed that if he purchased the plot, he could control it. He testified that he now owns the plot, that he has prohibited Caron Pyle from placing a monument on his father’s grave, and that he would object to moving his father from that grave to another of her selection.

Litesey admitted that when he gave the city the note stating that the deed for the plot should grant title to Michael Pyle, he knew of the animosity between Caron Pyle and Michael Pyle. He deposed that he understood at that time that the “right of disposition in the funeral industry, as far as the funeral service, goes ... to the spouse and then children.” Yet, he never talked to Caron Pyle about the deed for the plot because, in that regard, he testified that he was acting on behalf of Michael Pyle.

The evidence was sufficient to support a jury finding that the funeral home’s actions unlawfully interfered with the exercise of Caron Pyle’s private right to bury her husband. It was error to grant the funeral home summary judgment on this claim.

3. Caron Pyle contends that the trial court erred in granting summary judgment to the funeral home and Michael Pyle on the issues of conspiracy and fraud because they conspired to fraudulently induce the city to title the plot to Michael Pyle. Michael Pyle argues that conspiracy constitutes no cause of action.

Where it is sought to impose civil liability for a conspiracy, the conspiracy of itself furnishes no cause of action. The gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.

Caron Pyle maintains that she was defrauded because the funeral home and Michael Pyle falsely represented to the cemetery superintendent that the plot should be titled to Michael Pyle and thereby induced the superintendent to convey the plot to him. But “actionable fraud must be based upon a misrepresentation made to the defrauded party, and relied upon by the defrauded party.” Because there is no evidence in the record that the funeral home and Michael Pyle told Caron Pyle that the deed should be titled to Michael Pyle and that she relied on that misrepresentation to her detriment, this contention is- without merit. The trial court did not err in granting summary judgment on the conspiracy and fraud claims.

Judgment affirmed in part and reversed in part.

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

Decided March 16, 2000

Reconsideration denied April 10, 2000

James A. Satcher, Jr., for appellant.

Seacrest, Karesh, Tate & Bicknese, Gary L. Seacrest, Jeffrey P. Raasch, Richard C. Sutton, for appellees.

       See Pyle v. City of Cedartown, 240 Ga. App. 445 (524 SE2d 7) (1999).

       OCGA § 9-11-56 (e).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

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

        Habersham Mem. Park v. Moore, 164 Ga. App. 676, 678 (1) (297 SE2d 315) (1982).

       Id. at 680 (2).

        McNeal Loftis, Inc. v. Helmey, 218 Ga. App. 628, 629 (462 SE2d 789) (1995).

       (Citation and punctuation omitted.) Id.

       See Habersham, supra, 164 Ga. App. at 677-679 (1) (defendant disrupted funeral by-arguing with members of the funeral party including minister as he was conducting the service); Stephens v. Watts, 53 Ga. App. 44 (184 SE 781) (1936) (physical precedent only) (defendant physically threatened those preparing grave and later delayed burial by blocking access to grave); Wright v. Hollywood Cemetery Corp., 112 Ga. 884, 890-892 (4) (38 SE 94) (1901) (defendant cemetery owner refused funeral procession bearing body access to family plot after grave had been prepared).

       (Punctuation omitted.) Cook v. Robinson, 216 Ga. 328-329 (1) (116 SE2d 742) (1960).

       (Emphasis omitted.) Fla. Rock & Tank Lines v. Moore, 258 Ga. 106 (365 SE2d 836) (1988).


author: McMuRRAY, Presiding Judge.

text:
    A00A0521.
    JarALLAH v. SCHOEN et al.
    (531 SE2d 778)
   McMuRRAY, Presiding Judge.

This action arises from prior litigation involving these parties. In JarAllah v. American Culinary Federation, 242 Ga. App. 595 (529 SE2d 919), this Court affirmed a judgment denying Tajuddin JarAllah’s request under OCGA § 14-3-1604 (c) for an award of costs and attorney fees against appellees American Culinary Federation, Inc., Greater Atlanta Chapter, (“ACF”) and its president, Malcolm Stanchfield. JarAllah’s request was based on an order issued on June 24, 1998, permitting him to inspect and copy ACF’s records.

After the hearing at which the order was entered, JarAllah filed this action pro se against ACF, Stanchfield, and their attorneys, Robert D. Schoen and Fred L. Somers, Jr., P.C., raising 20 claims based on alleged conduct by appellees which took place during the course of the litigation. The trial court determined that the complaint asserted causes of action for defamation, fraud, fraudulent inducement, and violation of JarAllah’s constitutional rights.

Appellees moved for summary judgment, which was granted on all claims except defamation. Summary judgment was denied on that part of JarAllah’s defamation claim which alleges that appellees made damaging statements about him outside the context of the litigation. JarAllah appeals. We affirm. Held:

1. In his first enumeration of error, JarAllah claims summary judgment was improperly granted on his claims of fraud and fraudulent inducement. We disagree.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). On appeal from a grant of summary judgment, this Court must conduct a de novo review.

We are unable to discern the true basis for JarAllah’s claims because he failed to plead them with the particularity required by OCGA § 9-11-9 (b). As best we can determine, JarAllah alleges the following: in 1984 he joined ACF, a national professional chef’s organization; appellees falsely represented to the trial court in this action as well as the prior litigation that the true name of ACF is Chef’s Association of Greater Atlanta, Inc. (“CAGA”); ACF’s officers falsely represented to him that he would enjoy all of the nonprofit corporation’s rights and privileges; and he was fraudulently induced to join and maintain membership in the organization.

In support of his claim, JarAllah submitted a copy of three canceled checks dated May 1998 and drawn on the account of “Greater Atlanta Chapter of the American Culinary Federation, Inc.” JarAllah also tendered a transcript of a telephone conversation he purportedly had with an officer of ACF, who expressed a desire to resolve matters between ACF and JarAllah. The transcript reflects the officer’s statement that the corporate name cannot be changed without a vote of the membership.

To survive a motion for summary judgment in an action for fraud (including fraudulent inducement), a plaintiff must come forward with some evidence from which a jury could find each of the following elements: false representation; scienter; intent to induce the plaintiff to act or refrain from acting; justifiable reliance; and damage proximately caused by the representation.

Pretermitting whether a proper foundation was established for the admission of the transcript of the telephone conversation, neither the statements contained therein nor any other evidence JarAllah presented to the trial court is sufficient to create a jury issue on his claims that appellees defrauded him or fraudulently induced him to join or remain a member of their organization. Accordingly, the trial court’s ruling was correct.

2. We reject JarAllah’s contention that the trial court erred in ruling that no genuine issue of material fact existed as to his remaining causes of action, which are: breach of agreement; breach of fiduciary duty; malicious abuse of process; wrongful civil proceedings; tortious interference with plaintiff’s statutory and constitutional rights; denial of constitutional rights of access to court and due process of law; conspiracy against plaintiff’s legal, statutory, and civil rights; failure to prevent and/or aid in preventing any wrongs mentioned in § 1985 of Title 42; and ratification.

Having reviewed the record, we find that the appellees have pierced JarAllah’s allegations as to each remaining cause of action, making it incumbent upon JarAllah to come forward with evidence supporting those claims. JarAllah’s affidavit asserts that during a meeting of ACF, its chapter president stated: “What we Blacks and Female need to understand is that, America is a white male dominated society.” This assertion fails to create a triable issue concerning violation of any of JarAllah’s constitutional rights.

“The summary judgment law does not require the defendant to show that no issue of fact remains, but rather (that) no genuine issue of material fact remains . . .; and while there may be some ‘shadowy semblance of an issue’. . . , the case may nevertheless be decided as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion. (Cits.)” McCray v. Hunter, 157 Ga. App. 509, 511-512 (277 SE2d 795) (1981).

Walston v. White, 213 Ga. App. 441, 443 (444 SE2d 855).

JarAllah has presented no evidence creating a genuine issue as to any of the enumerated claims.

3. Next, JarAllah claims summary judgment was improperly granted on that part of his defamation claim that relates to statements allegedly made by appellee Schoen at the courthouse on June 24, 1998. This contention is without merit.

In his affidavit, JarAllah deposed that appellee Schoen called him a liar and a trouble maker and accused him of wasting ACF/ CAGA’s money and abusing the legal system. In support of their motion for summary judgment, appellees submitted the affidavit of appellee Stanchfield, in which he deposed as follows: he heard all statements made by Schoen to JarAllah at the courthouse; and Schoen never stated that JarAllah was a liar, a trouble maker, a waster of ACF/CAGA’s money, or an abuser of the legal system.

Under OCGA § 51-5-7 (formerly Code Ann. §§ 105-704; 105-709),

[a]n attorney at law has a conditional privilege to make, during the progress of a trial, such fair comments on the circumstances of the case and the conduct of the parties in connection therewith as in his judgment seem proper. . . . The attorney at law is protected by his privilege, on account of words spoken in the discharge of his duty in the regular course of judicial proceedings in the courts, unless express malice is proved.

Atlanta News Publishing Co. v. Medlock, 123 Ga. 714-715, hn. 5, 720 (51 SE 756).

Further, we observe that:

“[publication is indispensable to recovery for libel or slander. (Cits.) A defamatory matter is published as soon as it is communicated to any person other than the impugned party. (Cits.)” Roberts v. Lane, 210 Ga. App. 10, 11 (1) (435 SE2d 227) (1993); [cits.]

Baskin v. Rogers, 229 Ga. App. 250, 252 (3) (493 SE2d 728).

While generally, whether an allegedly defamatory communication was privileged or uttered with malice are jury questions, in the case sub judice, JarAllah failed to come forward with evidence that any communication at issue was made to, or heard by, anyone other than him. Therefore, appellees were entitled to summary judgment on this aspect of JarAllah’s defamation claim.

4. The trial court granted JarAllah sufficient time to conduct discovery.

Decided March 20, 2000

Reconsideration denied April 10, 2000

Tajuddin JarAllah, pro se.

Robert D. Schoen, for appellees.

JarAllah had requested an extension of time to conduct discovery because appellees Schoen and Stanchfield had not been served with process; JarAllah claimed they were avoiding discovery. In an order entered on June 30, 1999, the trial court denied Jar Allah’s request as moot, finding that the defendants had been served, answered, and were participating in discovery. The record reveals that Schoen and Stanchfield served their discovery responses upon JarAllah on June 28, 1999, although JarAllah claimed he did not receive them until July 12.

When faced with a motion for summary judgment and the unavailability of evidence to rebut such motion, OCGA § 9-11-56 (f) provides, “(s)hould it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavits facts essential to justify his opposition, the court. . . may order a continuance to permit . . . discovery to be had.” . . . The granting or denial of a motion under OCGA § 9-11-56 (f) lies in the sound discretion of the trial judge and will not be reversed absent a showing of clear abuse of discretion.

NationsBank, N.A. v. SouthTrust Bank &c., 226 Ga. App. 888, 895-896 (2) (487 SE2d 701).

In his affidavit, JarAllah claimed: appellees provided him with illegible documents and waived the attorney-client privilege “by putting their character in issue.” He did not demonstrate that a continuance would lead to the discovery of relevant evidence. There was no abuse of discretion.

5. Appellees’ motion to impose a frivolous appeal penalty is denied.

Judgment affirmed.

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

       The complaint alleges the following claims:
      Breach of Agreement, Fraudulent Misrepresentation, Fraudulent Inducement, Fraud of Deceit, Defamation, Breach of Fiduciary Duty, Malicious Abuse of Process, Conspiracy against Plaintiff’s Legal, Statutory and Civil Rights, Failure to Prevent and/or to aid in preventing any wrongs mentioned in section 1985 of Title 42, Denial of Constitutional Rights of Access to Court and Due Process of Law, Obstruction of Justice, Misbehavior of Court Officer in their Official Transaction, Lying and Covering up, Intentional Infliction of Emotional Distress, Wrongful Civil Proceedings, Tortious Interference with Plaintiffs Statutory and Constitutional Rights, Abusive Litigation, Ratification, and Negligence.

        Pyle v. City of Cedartown, 240 Ga. App. 445, 446 (524 SE2d 7).

        McLean v. Haden, 214 Ga. App. 413, 415 (1) (448 SE2d 69).

       Appellees submitted a document purportedly issued by the office of the Secretary of State showing that CAGA was dissolved in 1981.

        Pyle, supra at 447 (1); Todd v. Martinez Paint & Body, 238 Ga. App. 128 (1) (517 SE2d 844); Reeves v. Edge, 225 Ga. App. 615, 617-618 (2) (484 SE2d 498).

       See Cannady v. Lamb, 146 Ga. App. 850 (1) (247 SE2d 500).

        Hyde v. Gill, 236 Ga. App. 729, 731 (1) (513 SE2d 278); Mullen v. Nezhat, 223 Ga. App. 278, 282 (3) (477 SE2d 417).

         O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 334 (8) (514 SE2d 669).


author: Blackburn, Presiding Judge.

text:
    A00A0444.
    OUTDOOR SYSTEMS, INC. v. CHEROKEE COUNTY.
    (533 SE2d 446)
   Blackburn, Presiding Judge.

Outdoor Systems, Inc. appeals the trial court’s order which dismissed its claims against Cherokee County. Outdoor Systems brought the underlying declaratory judgment action for a determination that Cherokee County’s sign ordinance was unconstitutional. It also sought to enjoin Cherokee County from enforcing,the ordinance against it. The trial court determined that Outdoor Systems failed to properly attach a certified copy of the ordinance to its complaint and dismissed its claims. Because Cherokee County admitted that the ordinance attached to Outdoor Systems’ complaint was a true and correct copy of the applicable ordinance, a certified copy was not necessary, and the trial court erred in dismissing Outdoor Systems’ claims.

As it appears that the trial court considered matters outside the pleadings in dismissing Outdoor Systems’ claims, we must review its decision as one granting summary judgment. Accordingly, we review the evidence de novo. See Schulze v. DeKalb County, 230 Ga. App. 305, 306 (496 SE2d 273) (1998).

1. In its first enumeration of error, Outdoor Systems asserts that the trial court erred in finding that it failed to prove the ordinance at issue. Outdoor Systems argues that Cherokee County admitted in its answer that the copy of the sign ordinance attached to the complaint was a true and correct copy of the applicable sign ordinance. We agree.

When Outdoor Systems filed the instant action, it asserted that a “true and correct copy of the Cherokee County Sign Ordinance” was attached. However, the ordinance attached to the complaint was not a certified copy. While a municipal or county ordinance, for purposes of proof, is treated as foreign law, such law cannot be judicially noticed by any court other than the court of such jurisdiction, because the ordinance is not “published by authority.” See generally Oliver v. City of Macon, 241 Ga. 306 (245 SE2d 280) (1978); Leger v. Ken Edwards Enterprises, 223 Ga. 536 (156 SE2d 651) (1967); Poole v. State, 229 Ga. App. 406, 409 (2) (494 SE2d 251) (1997); Dudley v. State, 161 Ga. App. 310, 311 (1) (287 SE2d 763) (1982). Likewise, rules and regulations of a state agency, county, municipality, or private agency, unless published by authority, cannot be judicially noticed. Joel Properties v. Reed, 203 Ga. App. 257 (416 SE2d 570) (1992); Beall v. Dept. of Revenue, 148 Ga. App. 5 (251 SE2d 4) (1978). The rules, regulations, and ordinances stand in the same status as private acts so that they must be pled and proved. Childers v. Richmond County, 266 Ga. 276 (467 SE2d 176) (1996); Mayor &c. of Savannah v. TWA, Inc., 233 Ga. 885 (214 SE2d 370) (1975); Knutzen v. O’Leary, 210 Ga. App. 590 (437 SE2d 347) (1993). If the ordinance or regulations are set forth verbatim in the pleadings or an uncertified copy is attached to the complaint and the defendant admits the ordinance or regulations in the answer, then the ordinance or regulations have been proven. See Leger, supra at 539.

In Cherokee County’s answer, it failed to specifically address each averment in Outdoor Systems’ complaint. Instead, it answered Outdoor Systems’ complaint by “stating that Cherokee County is in the process of revising [its] sign ordinance and will not attempt to defend [its] old sign ordinance.” It also asserted that the “[p]laintiff is not entitled to a recovery in this action, ... in that the process of revising the sign ordinance had begun prior to the institution of the lawsuit.” These statements do not specifically or tangentially address paragraph four of Outdoor Systems’ complaint which avers that a copy of the ordinance is attached as Exhibit A.

Generally, Georgia’s rules of pleading require that “[d]enials shall fairly meet the substance of the averments denied” and that when a responsive pleading is required, averments not denied are admitted. OCGA § 9-11-8 (b), (d). Therefore, because Cherokee County did not deny that a true and correct copy of the applicable ordinance was attached to Outdoor Systems’ complaint, the averment in Outdoor Systems’ complaint was admitted, and no further proof was required. See Associated Cab Co. v. Byars, 92 Ga. App. 73, 76 (4) (88 SE2d 329) (1955). See also Leger, supra at 539.

Because the trial court erred in finding that Outdoor Systems did not properly prove Cherokee County’s sign ordinance, we must reverse its dismissal of Outdoor Systems’ claims.

2. Outdoor Systems contends that the trial court erred in failing to grant its motion for judgment on the pleadings and in failing to grant its attorney fees. In its motion for judgment on the pleadings, Outdoor Systems sought a declaration that Cherokee County’s sign ordinance was unconstitutional and an order enjoining Cherokee County from enforcing the ordinance against it.

Evidence in the record indicates that Cherokee County was aware of constitutional problems with its sign ordinance and that it was in the process of adopting a new ordinance. Additionally, the Cherokee County attorney had directed the zoning administrator to enforce the sign ordinance according to specifically described “constitutional” changes, until such time as the new ordinance could be adopted.

Therefore, because Cherokee County admitted that its sign ordinance was unconstitutional, we will assume, without deciding, that it was unconstitutional. Based upon Cherokee County’s admissions, the trial court should have granted Outdoor Systems’ motion to the extent of finding that the sign ordinance was unconstitutional and that the county was enjoined from enforcing it as written. We do not address whether, by direction of the county attorney, Cherokee County could enforce its unconstitutional sign ordinance in a constitutional manner. As this issue was not addressed in the trial court and it is not asserted by either party on appeal, we are without authority to address it. We are not at liberty “to change [our] role from disinterested decision-maker to appellate advocate reviewing a trial record for error.” Rowland v. State, 264 Ga. 872, 874 (1) (452 SE2d 756) (1995).

Decided April 10, 2000.

Schreeder, Wheeler & Flint, David H. Flint, Mark W. Forsling, for appellant.

R. Mark Mahler, for appellee.

Outdoor Systems sought attorney fees pursuant to 42 USC § 1988. The evidence in the record indicated that Cherokee County did not intend to enforce the sign ordinance, as written. Therefore, Outdoor Systems did not receive any benefit that it would not have received without filing suit. The trial court correctly denied Outdoor Systems’ request for attorney fees. See Union City Bd. of Zoning Appeals v. Justice Outdoor Displays, 266 Ga. 393, 404-405 (8) (467 SE2d 875) (1996) (attorney fees available pursuant to 42 USC § 1988, where suit achieved some benefit sought).

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ, concur.


text:
    A00A0651.
    RODRIGUEZ-MARTINEZ v. THE STATE.
    (533 SE2d 443)
   Blackburn, Presiding Judge.

Several years after Jairo Walter Rodriguez-Martinez pled guilty to misdemeanor shoplifting he sought an out-of-time appeal which the trial court denied. Rodriguez-Martinez appeals the trial court’s order denying his motion for out-of-time appeal contending that the trial court abused its discretion by denying his motion without a hearing and that the record shows that his guilty plea was not knowing, voluntary, or intelligent. We affirm, as the trial court did not abuse its discretion in denying Rodriguez-Martinez’s motion for out-of-time appeal.

1. Because Rodriguez-Martinez has already completed his sentence ($350 fine, four days time served, and twelve months probation), we first address whether this appeal is moot.

Although a court may exercise its discretion to decide a criminal case even after the sentence has been served (St. Pierre v. United States, 319 U. S. 41 (63 SC 910, 87 LE 1199) (1943); Chaplin v. State, 141 Ga. App. 788 (234 SE2d 330) (1977)), it is not bound to do so. Jacobs v. New York, 388 U. S. 431 (87 SC 2098, 18 LE2d 1294) (1967); Tannenbaum v. New York, 388 U. S. 439 (87 SC 2107, 18 LE2d 1300) (1967).

Baker v. State, 240 Ga. 431-432 (241 SE2d 187) (1978).

The Supreme Court of Georgia declined to reach the merits of Baker’s appeals due to his failure to demonstrate efforts to expedite the appeal, prepare the record, and show adverse collateral consequences. Baker, supra at 432. Adverse collateral consequences have included the inability to engage in certain businesses, to vote, or to serve as a juror. Parris v. State, 232 Ga. 687, 690 (208 SE2d 493) (1974). Such consequences have also included potential enhancement of subsequent criminal punishment under second offender statutes. Id.

In this case, Rodriguez-Martinez has demonstrated adverse collateral consequences. Rodriguez-Martinez is a citizen of Colombia who could be deported from the United States based on this conviction because of changes in the immigration laws which occurred after his guilty plea.

Because of [this burden] which may flow from [Rodriguez-Martinez’s] conviction, he has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him. On account of these collateral consequences, the case is not moot.

(Citations and punctuation omitted.) Parris, supra.

2. Rodriguez-Martinez contends that the trial court erred in denying his motion for out-of-time appeal.

“The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion.” Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999). [Rodriguez-Martinez], as the movant, bears the burden of showing “good and sufficient” reason entitling him to an out-of-time appeal. Wheeler v. State, 269 Ga. 547, 548 (499 SE2d 629) (1998). Also, an out-of-time appeal is a remedy for a frustrated right of appeal; therefore, [Rodriguez-Martinez] must show that he was entitled to a direct appeal. Grantham v. State, 267 Ga. 635 (481 SE2d 219) (1997). Because a criminal defendant has no unqualified or absolute right to file a direct appeal from a judgment of conviction and sentence entered upon a guilty plea, [Rodriguez-Martinez] can meet his burden in this case only by setting “forth the questions he would raise should the appeal be granted, and show(ing) that the questions could be resolved by facts appearing in the appellate record.” (Citation omitted.) Wheeler v. State, 269 Ga. at 548; see also Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996). Finally, the disposition of a motion for out-of-time appeal hinges on who bore the ultimate responsibility for the failure to file a timely appeal. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). An out-of-time appeal is not authorized if the delay was attributable to the appellant’s conduct, either alone or in concert with counsel. Hasty v. State, 213 Ga. App. 731, 732 (445 SE2d 836) (1994).

Syms v. State, 240 Ga. App. 440, 441 (1) (523 SE2d 42) (1999).

(a) Initially, Rodriguez-Martinez asserts that the trial court erred in failing to hold a hearing on his motion. However, the trial court did hold a hearing on Rodriguez-Martinez’s extraordinary motion for new trial which he filed before the present motion. During that hearing, the trial court determined that an extraordinary motion for new trial was improper based upon Rodriguez-Martinez’s guilty plea. Rodriguez-Martinez’s counsel informed the trial court of his intention to file a motion for out-of-time appeal. And he acknowledged that his argument in a motion for out-of-time appeal would be the same as that made in the hearing on his extraordinary motion for new trial. Therefore, pretermitting whether a hearing is always required on a motion for out-of-time appeal, Rodriguez-Martinez was allowed to present his arguments to the trial court in a hearing.

(b) In order to meet his burden of providing questions to be raised if an appeal were granted, Rodriguez-Martinez contends that, pursuant to Article 36 of the Vienna Convention on Consular Relations, he had a right, as a noncitizen, to speak to a consular officer from Colombia prior to making a plea. He asserts in his motion that he was never informed of this right. However, this issue cannot be resolved on the appellate record as there is no evidence on the face of the record which indicates whether Rodriguez-Martinez was informed of his right to speak to a Colombian Consul. Because of his guilty plea, Rodriguez-Martinez can only raise questions that can be resolved by facts appearing in the appellate record. See Syms, supra.

(c) Regardless of Rodriguez-Martinez’s contentions regarding the validity of his guilty plea, he has failed to show that the delay of his appeal was not attributable to his own conduct. He does not contend that his trial counsel was ineffective or that he was not informed of his limited right to directly appeal his guilty plea. In fact, the sole reason for Rodriguez-Martinez’s delay in any attempt to appeal his guilty plea is the timing of the change in the immigration laws subsequent to his conviction. Rodriguez-Martinez complains that he would not have pled guilty had he known his conviction would have immigration consequences. However, a subsequent change in the law which is collateral to the conviction does not entitle a defendant to an out-of-time appeal. To allow an out-of-time appeal because of a subsequent change in the law would open the floodgates for challenges to convictions. No conviction would ever be final under such a scenario. The fact of a change in the immigration laws does not change the fact that Rodriguez-Martinez pled guilty to the criminal act. He would certainly be free to raise the issue of the appropriateness of applying the changed immigration laws to him based on a pre-change conviction in any immigration hearing that might be initiated.

Decided April 10, 2000.

Rakesh Surampudi, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jeffrey R Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors, for appellee.

The trial court did not abuse its discretion in denying Rodriguez-Martinez’s motion for out-of-time appeal.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.