text:
    A00A0083.
    WOLLESEN v. STATE OF GEORGIA.
    (529 SE2d 630)
   McMurray, Presiding Judge.

In this case we must determine the sufficiency of a certificate issued by a court in a foreign state seeking to compel the appearance of a Georgia witness before a grand jury in the foreign state, as contemplated by the Uniform Act to Secure the Attendance of Witnesses from Without the State (“Uniform Act”), OCGA § 24-10-92. The Act provides in pertinent part:

(a) If a judge of a court of record in any state which by its laws has made provision for commanding persons within that state to attend and testify in this state certifies under the seal of such court . . . that a grand jury investigation has commenced or is about to commence, that a person within this state is a material witness in such . . . grand jury investigation, and that his presence will be required for a specified number of days, upon presentation of such certificate to any judge of a court of record in the county in which the person is found, such judge shall fix a time and place for a hearing and shall make an order directing the witness to appear at a time and place certain for the hearing. The witness shall at all times be entitled to counsel.
(b) If at a hearing the judge determines that the witness is material and necessary, that it will not cause undue hardship to the witness to be compelled to attend and testify in . . . the other state, and the laws of the state in which the . . . grand jury investigation has commenced or is about to commence, will give to him protection from arrest and the service of civil and criminal process, he shall issue a summons, with a copy of the certificate attached, directing the' witness to attend and testify in the court where ... a grand jury investigation has commenced or is about to commence, at a time and place specified in the summons. In any such hearing the certificate shall be prima-facie evidence of all the facts stated therein.

(Emphasis supplied.)

The statute also requires that the witness receive compensation for travel to the foreign state. Pursuant to Maryland’s reciprocal act, the Circuit Court for Montgomery County, Maryland, issued an order on July 7, 1999, requesting that the Superior Court of Cobb County order Leona M. Wollesen to appear before a grand jury in Maryland on July 22, 1999. Appended to.the order was the state’s motion for an order certifying Wollesen as a material witness, a supporting affidavit of the state’s attorney, a subpoena duces tecum directing Wollesen to produce evidence of her financial transactions with her son, Woodrow D. Wollesen, from 1995 through 1998, and a certificate issued by the judge. The affidavit averred that Wollesen was an essential witness for the state.

In the certificate, the Maryland judge made a finding that Wollesen was a material witness in the grand jury investigation of her son. The certificate also provided for the witness’s compensation and for her protection from all service of process while traveling to the court.

On July 9,1999, the assistant state’s attorney executed a supplemental affidavit, which was not appended to the certificate, setting forth the factual basis for Maryland’s request to compel Wollesen’s testimony and production of documents. The affidavit indicated as follows: Wollesen’s son had been held in contempt in Maryland for failure to pay child support and had been ordered to pay his ex-wife proceeds of an individual retirement account (“IRA”) totaling $16,000. Instead of complying with the order, Woodrow Wollesen remitted the funds to his attorney, who deposited them in the registry of the State Court of Cobb County. Leona Wollesen sued her son, and the proceeds were disbursed to her. Woodrow Wollesen had testified at the contempt proceeding in Maryland that he owed his mother $85,000. According > to the affidavit, Leona Wollesen’s testimony is needed to determine the validity of any loans she may have made to her son and whether she directed him to send the IRA proceeds to Georgia.

On behalf of the State of Maryland, the Cobb County District Attorney filed a motion for a hearing pursuant to OCGA § 24-10-92 (b). The supplemental affidavit was filed in the Superior Court of Cobb County as an amendment to the motion. The superior court considered the certificate, the amendment and argument of counsel. Leona Wollesen did not testify, and no evidence was presented on her behalf. The superior court granted the state’s motion, finding that Leona Wollesen was a material and necessary witness and that it would not cause her undue hardship to be compelled to attend, testify and produce evidence before the Maryland grand jury. Wollesen appeals. Held:

1. Wollesen argues that the certificate was not entitled to prima facie validity because it presented insufficient facts upon which the superior court could determine that she was a necessary and material witness. This argument lacks merit.

In the context of grand jury proceedings, we find no Georgia case prescribing the evidentiary sufficiency of the requesting state’s certificate under OCGA § 24-10-92 (a). We note, however, that in affirming a Georgia court’s refusal to certify an out-of-state witness as material in a trial in Georgia, this Court has held that

the statute requires the presentation of enough facts to enable both the court in the demanding state and the court in the state to which the requisition is directed to determine whether the witness should be compelled to travel to a trial in a foreign jurisdiction.

Chesser v. State, 168 Ga. App. 195, 196 (308 SE2d 589); Mafnas v. State, 149 Ga. App. 286, 287 (254 SE2d 409).

In deciding what facts are enough to certify a person as a material witness in a grand jury proceeding, we derive guidance from our sister state of Florida, which has construed its similar statute thusly:

Since the certificate is in the words of the statute, we think that it is sufficient. It is usual for certificates of this type to follow the statute; (citations omitted) and inasmuch as the certificate is issued by a judge of the requesting state who has satisfied himself as to the sufficiency of the evidence or facts to establish the necessary conditions for the making of the certificate, it is not required that he give the basis of his decision in order to have a certificate that is prima facie good.

Skakel v. State of Fla., 738 S2d 468, 471 (Fla. App.), quoting Epstein v. People of the State of N. Y., 157 S2d 705, 707 (Fla. App.). Accord In re State of Cal. for the County of Los Angeles &c., 57 Md. App. 804 (471 A2d 1141), cert. denied, Rees v. County of Los Angeles, 467 U. S. 1205 (104 SC 2388, 81 LE2d 346); In re Rhode Island Grand Jury Subpoena, 414 Mass. 104 (605 NE2d 840); Ex Parte Armes, 582 SW2d 434 (Tex. Crim. App.); In the Matter of Failla, 89 AD2d 923 (454 NYS2d 25).

Further, in Epstein, supra, and Skakel, supra, the certificate of the requesting court had appended to it an affidavit of an assistant district attorney which detailed the reasons why the witness should be required to appear before a grand jury in the foreign state. So too, in the case sub judice, the supplemental affidavit of the assistant state’s attorney set forth detailed facts in support of Maryland’s request to compel Wollesen’s appearance. Moreover, the certificate issued by the Maryland court tracked the wording of OCGA § 24-10-92 (a).

Therefore, the superior court was entitled to rely on the certificate, as well as the supplemental affidavit, as prima facie evidence of materiality and necessity. Wollesen had ample opportunity to rebut the prima facie case or provide evidence of undue hardship, which she failed to do. “It is logically the witness’ burden to come forward with evidence of undue hardship, not the State’s duty to negate the existence of undue hardship.” Ex Parte Armes, supra at 439.

We reject Wollesen’s reliance on Chesser, supra, and Mafnas, supra, for the proposition that she was not required to rebut the prima facie case or provide evidence of undue hardship. In those cases, this Court held that the defendants had presented insufficient evidence to justify summoning witnesses from without the state to testify at trial. This Court explained that “[t]he Act. . .is. . . aprocess for obtaining a court order for the production of the witness, who may also appear in the jurisdiction where he is found and convince the court to deny or quash it.” (Emphasis supplied.) Chesser, supra at 196. In Chesser and Mafnas, the defendants were unable to convince the Georgia court that the witnesses were necessary and material. In the case sub judice, the assistant state’s attorney in Maryland presented evidence sufficient to persuade the requesting court that Wollesen was essential to the grand jury’s investigation. The local Georgia trial court found the facts similarly persuasive. Wollesen, having presented no evidence, failed to convince the superior court to deny the State’s petition to grant Maryland’s request.

2. She next argues that the supplemental affidavit was inadmissible because it did not comply with OCGA § 24-7-24, which provides the method for authenticating out-of-state court records. This argument must fail because the affidavit was not a court record.

Moreover, the admission of evidence in a hearing held to determine whether a witness who resides in Georgia should be compelled to testify before a grand jury in a foreign state is analogous to the admission of evidence at a grand jury proceeding.

“ ‘It is an established rule of evidence in this State that, in a judicial trial in a court of law, where evidence is finally adjudicated and final judgments are rendered, ex parte affidavits are inadmissible, and their admission in such a case over proper objection constitutes reversible error.’ (Cits.)” Lanthripp v. Lang, 103 Ga. App. 602, 605 (120 SE2d 59) (1961). However, the instant appeal is not “such a case.” Here, we are concerned with proceedings before a grand jury, not the judicial trial of a case in a court of law.

(Emphasis omitted.) In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 351 (3) (333 SE2d 389).

The superior court did not abuse its discretion in considering the supplemental affidavit.

3. Finally, Wollesen contends that the Uniform Act does not áuthorize the issuance of a subpoena duces tecum. We disagree.

The majority of states which have considered this issue have ruled that the power to order a witness to travel to a foreign state for the purpose of testifying at a grand jury hearing implicitly encompasses the power to order the witness to produce relevant documents. “Patently, the ability to compel [Wollesen], who apparently has possession of certain relevant, material evidence, to appear before the grand jury, but the inability to compel the production of that evidence, borders on the absurd.” In re State of Cal. for the County of Los Angeles &c., supra at 816. “Indeed, the power to compel a witness to appear and the power to compel production of documents both are critical and fundamental to the evidence-gathering process. . . .” Delit v. State of Fla., 583 S2d 1083, 1085.

Decided February 10, 2000.

Charles S. Hunter, for appellant.

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

We adopt the well-reasoned rulings of our sister states that the Uniform Act necessarily implies the authority to issue a subpoena duces tecum. The superior court did not err in ordering Wollesen to produce the requested documents.

Judgment affirmed.

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

       Md. Courts Code Ann. § 9-302.

       Fla. Stat. § 942.02 (2) (1997).

       In. Illinois, the conclusion alone of a petitioning court that the witness sought is material and necessary is not entitled to prima facie evidentiary value. New York v. Wagner, 79 Ill. App. 3d 369 (398 NE2d 372). Similarly, in Vermont, the local judge must make independent findings on materiality, necessity, and undue hardship. In re Stoddard, 144 Vt. 6 (470 A2d 1185).

        Ex Parte Simmons, 668 S2d 901; In re Bick, 82 Misc. 2d 1043 (372 NYS2d 447); In re Saperstein, 30 N. J. Super. 373 (104 A2d 842), cert. denied, 348 U. S. 874 (75 SC 110, 99 LE 688); State v. Harman, 165 W. Va. 494 (270 SE2d 146); Application of Grand Jury &c. of New York, 8 Mass. App. Ct. 760 (397 NE2d 686).


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A00A0809.
    SADEGHY v. THE STATE.
    (529 SE2d 446)
   McMurray, Presiding Judge.

Defendant, pro se, was convicted by a Fulton County jury of one count of simple battery.* The state court denied his motion for new trial, and he now appeals through counsel, contending that: (1) the trial court erred in denying defendant’s motion for new trial “since no record exists and statements by the trial court support the argument that a valid waiver [of the right to counsel] was not made in the instant case . . . [,]” and (2) the evidence was insufficient to support his conviction. Held:

1. There is no motion of record wherein defendant sought an order of the trial court requiring that matters not reported in the trial court be reported. OCGA § 5-6-41 (d) (“Where matters occur which were not reported, . . . the court, upon motion of either party, shall require that a transcript of these matters be made and included as a part of the record.”). Neither is a stipulation of pertinent portions of the record or an order of findings of fact entered by the trial judge with the record on appeal. OCGA § 5-6-41 (g). “Without a transcript to review, this court must assume as a matter of law that the evidence presented at trial supported the court’s findings. [Cit.]” Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500); Keown v. State, 236 Ga. App. 517 (512 SE2d 391). Having no evidence that supports defendant’s waiver of counsel claim, we conclude that the trial court did not err in permitting defendant to represent himself at trial upon an intelligently given waiver of the right to counsel.

Decided February 10, 2000.

Patrick G. Longhi, for appellant.

Mohammad K. Sadeghy, pro se.

2. Defendant’s challenge to the sufficiency of the evidence is likewise without merit. Defendant appears to argue the defense of self-defense pointing to evidence at trial which, among other things, established that: (1) the victim did not deny striking the defendant while wanting to be rid of him; (2) a state’s witness not present when the fight began testified he did not know how the fight had begun; (3) no pictures of a bleeding nose were in the police report; (4) the responding police officer was not told of any injury upon arriving on the scene of the incident; and (5) the defendant testified as to the injuries he sustained in defending himself.

Briefly, the evidence shows that the victim asked to escort Nosratolah Etezadi-Tabrizi and his family from a concert for the local Persian community at an Atlanta hotel, feeling it necessary to do so after separating the defendant from Tabrizi in a dispute earlier in the evening. As defendant approached the departing group, the victim warned the defendant that “I asked you one time before just to stay away from this guy, let him pass through; he’s with his wife and his daughter.” The defendant responded by striking the victim in the face and breaking two of the victim’s teeth.

It is the jury, not this Court, whose duty it is to decide conflicts in the evidence. “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) Porter v. State, 233 Ga. App. 337, 339 (503 SE2d 912). Here the jury chose to believe the victim. Viewed in the light most favorable to the verdict, the evidence was sufficient to authorize a rational trier of fact to find the defendant guilty of simple battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Walton v. State, 225 Ga. App. 701, 702 (484 SE2d 765).

Judgment affirmed.

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

Carmen D. Smith, Solicitor, Jody L. Peskin, Cynthia Strong-McCarthy, Assistant Solicitors, for appellee.

       The jury found the defendant not guilty of a second count of simple battery brought by the two-count accusation.


author: Eldridge, Judge.

text:
    A99A2324, A99A2325.
    MILLS et al. v. NORFOLK SOUTHERN RAILWAY COMPANY; and vice versa.
    (526 SE2d 585)
   Eldridge, Judge.

This case comes on appeal after the trial court granted a new trial on special grounds to Norfolk Southern Railway Company on the train-vehicle collision that occurred when the automatic warning devices at the crossing failed to timely activate before the vehicle entered the crossing. The special ground for the grant stated that testimony as to prior notice of the gravity of danger from activation failures of automatic crossing warning devices, evidenced by similar occurrences, should not have been admitted, because each such occurrence had not been shown to be substantially similar by a separate evidentiary foundation for each occurrence. Federal regulations, however, mandated that all automatic warning devices provide the same minimum standard of configuration and performance for all such automatic warning devices at all crossings so that each performs the same. See 49 CFR § 234.1; 59 FR 50105. Thus we hold that all the prior similar occurrences had sufficient substantial similarity to the activation failure in this case to be relevant and material for admission into evidence, because all automatic warning devices had to perform to a minimum federal standard, creating substantial similarity in function as to all other automatic warning devices, as well as to the duty of the train crews when a failure occurred. See 49 CFR § 234. The trial court’s grant of a new trial on this special ground requires reversal as a matter of law.

Case No. A99A2324

James William Mills and Lorraine Mills Stephens brought this wrongful death action. The collision killed Christopher Mills and Patrick Mills, the minor children of James and Vanlie Pearl Mills, now deceased.

1. Appellants’ first enumeration of error is that the trial court erred in granting Norfolk Southern’s motion for new trial on the special ground that the trial court erred in admitting evidence of prior notice of the existence and gravity of danger at the first trial. We agree and reverse, vacating the order, and order the trial court to reinstate the original judgment.

The wrongful death action involved issues of negligence and causation based upon the malfunctioning of the railroad’s grade crossing warning system through negligent maintenance together with the negligent failure of the train crew to keep a proper lookout, to sound the horn in warning, and to slow down when approaching the crossing when such malfunction became apparent to the train crew from the absence of flashing warning lights at the crossing, indicating an activation failure.

The crossing was controlled by an “active” warning system that should have activated lights, bells, and a gate arm when the train approached within the range of the sensors. The failure to observe timely the absence of warning signals at the crossing evidenced the train crew’s inattention. The failure of engineer Hick to sound the horn as the train approached the crossing further evidenced his failure to observe the blow post, which warns of the approach to the crossing and indicates when to blow the horn.

A high fence blocked Mills’ view of the approaching train as he approached the crossing. The vehicle entered the crossing just as the lights began to flash but before the gate came down; Mills could not stop and continued into the crossing, where the train then struck the vehicle. The collision also occurred before the gates came down to prevent entry onto the crossing. The fact that the gates came down after the train entered the crossing evidenced the delayed activation failure of the automatic warning system. Under federal regulations, the warning lights must flash at least, twenty seconds prior to the arrival of the train and the gate must begin to descend at least three seconds after the lights begin to flash and close at least five seconds before the train arrives.

Despite the federal regulations that an active warning system must activate warning devices 20 seconds before the train enters the crossing and the automatic warnings have 3.5 to 4 seconds of flashing lights and bells, followed by the descent of the gate over the next 20 seconds, this automatic warning system failed to meet such minimum federal standards. 49 CFR § 234.5; 56 FR 33728. Under the regulations, the bells stop, but the gate must be completely down with the lights flashing when the train enters the crossing. When the train exits the crossing, the lights stop flashing immediately and the gates go up.

In this case, the facts all fit a delayed activation failure. A “delayed activation failure” occurs when the warning is activated late by the train after it passes the sensor so that the train reaches the crossing before the gates go down and before motorists can receive a proper warning of the approach of the train. See 49 CFR § 234.5; 56 FR 33728. Delayed activation failures result from short circuits in the track circuit monitored by warning system control devices; this type of failure is called a “shunt.” Track circuits consist of the crossing and track approaches in both directions from the crossing. A short shunt registers on the warning system as a train, activating the warning devices. When the shunt does not move for 20 seconds, the control device releases the warning devices at the crossing, which acts as if the train just exited the crossing. The lights, bells, and gates immediately cease operation. The control device continues to search for trains down both lengths of track for approaching trains; however, the control device can search down the prescribed length of track in only one direction. If there is a standing shunt, the control device cannot search beyond the shunt’s location for an actual train. The control device cannot sense a train until it crosses a standing shunt. The standing shunt delays the activation of warning devices and results in a false “all clear.”

Plaintiffs used several kinds of evidence to prove a delayed activation failure caused the deaths in the train-vehicle collision: (1) post-impact physical evidence at the scene, which showed that the gate arms were not down at impact between the train and vehicle; (2) the witnessed operation of the warning system immediately after the train exited the crossing after the collision, demonstrating a continuing failure; and (3) maintenance records for the warning system at the crossing, showing delayed activation failures occurring on an intermittent basis before the time of the collision. From the train crew, plaintiffs also presented evidence of similar occurrences to establish the foreseeability of this danger, the duty to exercise ordinary care, and causation.

Maintenance records for this crossing kept by signal maintainer Jones showed that between the inspections in December 1987 and January 1988 that a “false alarm” malfunction occurred. Delayed activation failures are first proceeded by “false alarm” maliunctions. Norfolk Southern’s training and instruction materials stated that a signal maintainer must look for and correct the cause of prior “false alarm” malfunctions, even if they clear up, because the condition may deteriorate into a delayed activation failure. Jones failed to do this before the collision. Thus maintenance did not discover and correct the cause of the delayed activation failures prior to the collision.

Routine inspections of this warning system after the collision showed that delayed activation failures had chronically occurred prior to the collision. This indicated that delayed activation failures had occurred on an intermittent basis at the time of the collision. Thus, plaintiffs made out a prima facie case that there was a delayed activation failure at the time of the train-vehicle collision and a failure to maintain by the railroad, which caused the warning devices at the crossing not to work timely.

To prove the liability of Norfolk Southern, plaintiffs proved the negligent maintenance of the crossing warning signals with a delayed activation failure and proved the negligent acts and omissions of the train crew in not keeping a proper lookout, in not blowing a warning of the train’s approach, and in not appropriately reducing speed when approaching this dangerous crossing when they knew or should have known that a delayed activation failure existed at the crossing, because the warning lights had not flashed and the gate had not descended. Such negligent failure to react appropriately in reducing speed, blowing the horn, and keeping a proper lookout to a delayed activation failure depended upon the foreseeability of the general consequences and danger to the public from the warning signal’s failure at any crossing with any automatic warning equipment with a short shunt, regardless of the design, manufacture, or configuration. The amount of time that a warning system must operate and the sequencing before a train enters a crossing have been mandated for all automatic systems, all circumstances, and all railroads by federal regulations, so that there exists substantial similarity in function and requirements as a matter of federal regulations for purposes of uniformity. See 49 CFR § 234. Therefore, the specific control device, signal warning equipment, wiring sensor, and defect had nothing to do with the duty of the train crew under all circumstances where a delayed activation failure occurred, because the train crew’s duty was the same in all cases, i.e., slow the approach speed, blow the horn, and keep an appropriate lookout approaching the crossing, with any and all equipment and defects at any crossing experiencing a delayed activation failure/short shunt. All delayed activation failures, no matter what defect, control device, circuitry, or warning system used, have the same effect on the motorist and pose the same inherent dangers to the motorist, requiring the same duty of care by the train crew. See 49 CFR § 234. Therefore, the train crew would be under the same standard of care toward a motorist no matter which automatic warning system was used where there was a delayed activation failure.

The substantial similarity standard for admission of evidence of prior substantially similar occurrences had been satisfied in this case, because this was a standard of care under the same or similar circumstances required by federal regulations. 49 CFR § 234.

The dangerous character or condition of a grade crossing, as evidenced by prior train-vehicle collisions at the crossing, has long been admissible to establish the duty of the train crew when approaching such dangerous crossing and requires for admission in evidence only that the collision be of the same or similar circumstances, i.e., a crossing, prior occurrences, a train, a vehicle, and a collision or, as here, the additional facts of an automatic warning system and a delayed activation failure. Norfolk Southern R. Co. v. Thompson, 208 Ga. App. 240, 248 (7) (430 SE2d 371) (1993); Wright v. Dilbeck, supra at 216-217; Louisville &c. R. Co. v. Bean, 49 Ga. App. 4, 5 (1) (a), (b) (174 SE 209) (1934).

In this case, train crew member Dale Hamilton testified regarding his experiences with automatic warning devices that had delayed activation failures, and this experience established the duty of care under such circumstances based upon previous knowledge and appreciation as to the inherent danger by an experienced train crewman. The trial court erred as a matter of law in finding that, without a separate evidentiary foundation as to substantial similarity for each occurrence being first laid, such prior occurrences had been erroneously admitted; in determining that the testimony of Hamilton was harmful error requiring a new trial; and in granting a new trial on such special ground, because such foundational requirement had been fully satisfied. The trial court ignored that the federal regulations made all crossing warning system failures from a delayed activation failure substantially similar, because the standard of performance for each warning system had the same requirements, and the duty of the train crew imposed the same standard of care.

2. Appellants’ remaining enumerations of error are moot.

Case No. A99A2325

3. While Norfolk Southern moved for new trial on special grounds or, in the alternative for judgment notwithstanding the verdict, the trial court ruled on some grounds but did not rule on the two issues presented in Norfolk Southern’s cross-appeal on the motion for j.n.o.v. “The grant of a new trial on grounds specified in the judge’s order in effect overrules others not passed on, which omission on the part of the trial judge may be assigned as error in a cross-[appeal] filed by the movant. [Cits.]” Selman v. Manis, 100 Ga. App. 422, 425 (1) (111 SE2d 747) (1959). See also Allen v. Schweigert, 113 Ga. 69, 74 (4) (38 SE 397) (1901). The grant of a new trial in effect overruled the grounds not passed upon on motion for j.n.o.v. See Selman v. Manis, supra at 425.

Norfolk Southern contends that the trial court erred in denying its motion for j.n.o.v. on the plaintiffs’ claim of negligent maintenance of the crossing signal equipment, because plaintiffs allegedly presented no probative evidence showing that negligence in the care or maintenance of the equipment in question proximately caused a signal malfunction. We do not agree.

[A] directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. OCGA § 9-11-50 (a); Norfolk Southern Corp. v. Smith, 262 Ga. 80, 82 (2) (414 SE2d 485) (1992). The same standard applies to a motion for judgment notwithstanding the verdict. See Goggin v. Goldman, 209 Ga. App. 251, 252 (433 SE2d 85) (1993).

St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998). “In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. The standard for directed verdict and judgment n.o.v. are identical.” (Citations and punctuation omitted.) Outdoor Systems v. Woodson, 221 Ga. App. 901 (1) (473 SE2d 204) (1996).

In this case, plaintiffs established that there had been a false alarm prior to the last inspection; that Jones failed to determine the cause and fix it prior to the collision; that false alarms precede delayed activation failures; that there had been a record of delayed activation failures at this crossing both prior and subsequent to the collision; that the physical evidence at the collision scene evidenced a delayed activation failure; that the engineer did not slow the train down although there was a delayed activation failure at the crossing; and that a collision occurred. Such evidence was sufficient to require the trial court to deny the motion for j.n.o.v. See Sims v. Sims, 265 Ga. 55, 56 (452 SE2d 761) (1995); Horton v. City of Macon, 144 Ga. App. 380, 381-382 (2) (241 SE2d 311) (1977). There was some evidence to support the verdict on this issue.

4. Norfolk Southern contends that the trial court erred in not granting j.n.o.v. as to the negligent violation of OCGA § 46-8-150. We do not agree, because federal regulations did not preempt state law at the time of the collision and a causation issue arose from the evidence.

(a) Norfolk Southern seeks to raise issues in its brief that it did not independently enumerate as errors, i.e., that the trial court erred in failing to rule on its motion for j.n.o.v. and that the case proceeded to the jury on an improper or unsupported theory of liability. Failure to properly enumerate such alleged errors ordinarily waives such issues. Sass v. First Nat. Bank of Cherokee, 228 Ga. App. 7, 8 (2) (491 SE2d 76) (1997); see also Brown v. Brown, 237 Ga. 201, 202 (227 SE2d 360) (1976); Jardine v. Jardine, 236 Ga. 323 (1) (223 SE2d 668) (1976); Ware v. State, 232 Ga. App. 165, 166 (1) (500 SE2d 601) (1998). Nonetheless we will address such issues.

(b) At the time of the collision, OCGA § 46-8-150 established a state minimum standard for qualification to be an engineer through training, supervision, and experience over a three-year period before becoming an engineer. Norfolk Southern admits that its engineer did not satisfy the requirements' of the statute, because he had only a year and one month of training before being made an engineer. Instead, he received on-the-job training to become an engineer under federal regulations, so that he had less than three years total training before the collision. See 49 CFR §• 240 et seq.

Norfolk Southern contends that there has been a federal preemption of the Georgia statute by the subsequent federal regulation. Neither the regulations existing in 1988 nor the underlying federal statute either expressly or impliedly indicates that Congress had the intent to preempt state minimum standards for engineers prior to 1991.

(c) Norfolk Southern contends that the violation of OCGA § 46-8-150 had no causal connection with the collision. Plaintiffs’ evidence demonstrates, however, that the engineer did not blow the horn, did not see Mills’ vehicle approaching the crossing, did not see the absence of flashing grade crossing lights, and did not reduce the train’s speed when approaching the crossing where an observable delayed activation failure existed; that delayed activation failure was a known danger among experienced engineers and train crews; and that reduction of a train’s speed, blowing the horn, and keeping a proper lookout were the appropriate ways to reduce the danger of an activation failure. Although the railroad’s rules required a speed at this crossing of 40 mph, the engineer had the train at 42 mph as he approached the crossing where no signals flashed. See 49 CFR § 213.1. The engineer testified that he was traveling at between 37 and 38 mph before the collision; Hamilton, however, testified that the train slightly exceeded the speed limit. Norfolk Southern contended that the train’s speed at the time of collision was 30 mph. Had the engineer timely observed, through a proper lookout, that the warning lights had failed through an activation failure, then the engineer should have sounded the horn and stopped the train before the crossing to put down a crew member to act as flagman at the crossing and proceeded at 15 mph through the crossing. Thus, lack of training, experience, and judgment had a causal connection with how this inexperienced engineer acted or failed to act under these facts and circumstances. OCGA § 46-8-150.

OCGA § 46-8-150 creates a minimal standard of training and experience established by the legislature; violation of such standard must be shown to be the proximate cause or a concurrent proximate cause of plaintiffs’ damages. See Keith v. Beard, 219 Ga. App. 190, 192 (1) (464 SE2d 633) (1995); see also Cannon v. Street, 220 Ga. App. 212, 214 (3) (469 SE2d 343) (1996); Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (3) (385 SE2d 725) (1989); Sumner v. Otasco, Inc., 175 Ga. App. 177, 178 (2) (333 SE2d 28) (1985). Whether or not the violation of OCGA § 46-8-150 (a) was the proximate cause or concurrent proximate cause of plaintiffs’ damages cannot be decided as a matter of law but depends upon the jury determination of causation, which they found through their verdict. Ga. R. & Banking Co. v. Cook, 94 Ga. App. 650, 652 (4) (95 SE2d 703) (1956); see as to concurrent proximate cause Coleman v. Atlanta Obstetrics &c., 194 Ga. App. 508 (390 SE2d 856) (1990), aff’d, Atlanta Obstetrics &c. v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). Since the evidence was in dispute, then causation could not be decided either on directed verdict or j.n.o.v. The lack of training and experience in compliance with OCGA § 46-8-150 (a) under the circumstances cannot be ruled out as a concurrent causal factor in the failure to blow an approach warning and in the fatal speed and force of the collision when approaching a crossing and where the automatic warning system failed but went unobserved by the engineer. The jury could have found that an experienced engineer would have observed the vehicle in the crossing sooner, determined an emergency, i.e., an activation failure and vehicle in the crossing, and hit the emergency brake quicker, reducing the collision impact or avoiding the collision entirely. When a specific hazard exists, the engineer and train crew must make an “appropriate response” to avoid the danger. Gay v. Sylvania Central R. Co., 79 Ga. App. 362, 367-368 (3) (53 SE2d 713) (1949). Thus, the duty to keep a proper lookout, blow an approach warning, and slow down for a specific hazard of an activation failure with a vehicle in the crossing changed the maximum speed under federal regulations. See Central of Ga. R. Co. v. Markert, 200 Ga. App. 851, 852 (3) (410 SE2d 437) (1991); 49 CFR §§ 213.1; 234.105 (c) (2), (3).

The knowledge, training, and experience of an engineer to deal with such specific hazards come from service; thus, Hick’s experience of less than three years was an appropriate issue of causation for the jury to consider. See OCGA § 46-8-150 (a); Ga. R. & Banking Co. v. Cook, supra at 650.

Judgment affirmed in Case No. A99A2325. Judgment reversed and case remanded in Case No. A99A2324 with directions that the prior judgment be reinstated.

Barnes, J., concurs.

Blackburn, P. J., concurs in Divisions 3 and 4 and concurs in judgment only in Divisions 1 and 2.

On Motion for Reconsideration.

On motion for reconsideration, Norfolk Southern argues that reliance upon 49 CFR § 234.225 is misplaced, because it was not adopted until 1994, and the collision occurred in 1988. See 59 FR 3051 (1994). While it is true that these rules and regulations did not appear in the Federal Register until 1994, the substantial equivalent rules and regulations had governed railroad grade crossing signal devices since 1978 as approved by the Federal Highway Administrator as the National Standards for All Highways in unofficially published form and as the basis for such later rules and regulations. See 23 USCS §§ 109 (b), (d); 402 (a); 23 CFR § 1204. The Federal Railroad Administration through powers delegated by the Secretary of Transportation promulgated the Manual on Uniform Traffic Control Devices for Streets & Highways (MUTCD), which was not separately set forth in the Code of Federal Regulations but which was available through the Superintendent of Documents, U. S. Government Printing Office. 49 CFR Part 7, App. D; 23 CFR § 655.601 (a) (1990). The authority to promulgate such rules and regulations had been granted the Secretary under the Federal Railroad Safety Act of 1970. P.L. 91-458, 84 Stat. 971, 45 USCS §§ 431-441. The Secretary of Transportation adopted the MUTCD in 1983. See MUTCD §§ 8C-4; 8C-5; 8C-6. See also Hatfield v. Burlington Northern R. Co., 757 FSupp. 1198, 1203 (D. Kan. 1991), rev’d on other grounds, 958 F2d 320 (10th Cir. 1992). In 1990, MUTCD was incorporated by reference into the Code of Federal Regulations. See 23 CFR § 655.601 (a) (1990).

49 CFR § 234.225 was adopted after nearly six years of hearings and study, beginning in 1988 under congressional mandate, with the same uniform performance criteria for all grade crossing warning systems as the MUTCD. P.L. 100-342, 102 Stat. 625, 45 USCS § 431 et seq.; 53 FR 47554 (1988); 54 FR 49 (1989); 54 FR 4319 (1989); 55 FR 38707 (1990); 56 FR 33722 (1991); 56 FR 61169 (1991); 57 FR 28819 (1992); MUTCD §§ 8C-4; 8C-5; 8C-6. On July 23, 1991, the Federal Railroad Administration adopted the Grade Crossing Signal System Information, 49 CFR § 234.225, but subsequently gave several extensions of the effective date until 1994. See 56 FR 33722; 56 FR 61169; 57 FR 28819.

Decided December 3, 1999 —

Reconsideration denied February 11,2000

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, Gambrell & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Donald L. Swift III, for appellee.

While 49 CFR § 234.225 was not in force in 1988 at the time of the collision in that form, its core contained substantially the same performance criteria as rules and regulations that existed, governing Norfolk Southern, at such time but that did not appear in the Code of Federal Regulations; therefore, what was said regarding 49 CFR § 234.225 applied also to the MUTCD, that was the applicable rules and regulations, governing Norfolk Southern at the time of the occurrence.

Motion for reconsideration denied.

       Formerly known as Southern Railway Company.

       49 CFR § 234.1 reads:
      [t]his part imposes minimum maintenance, inspection, and testing standards for highway-rail grade crossing warning systems. This part also prescribes standards for the reporting of failures of such systems and prescribes minimum actions railroads must take when such warning systems malfunction. This part does not restrict a railroad from adopting and enforcing additional or more stringent requirements not inconsistent with this part.

       Executrix for the estate of Vanlie Pearl Mills, as administratrix d.b.n. for the estates of Christopher and Patrick Mills.

       49 CFR § 234.5, Definitions.
      As used in this part: “Activation failure” means the failure of an active highway-rail grade crossing warning system to indicate the approach of a train at least 20 seconds prior to the train’s arrival at the crossing.. .. (This failure indicates to the motorist that it is safe to proceed across the railroad tracks when, in fact, it is not safe to do so.)

       49 CFR §§ 234.223, Gate arm; 234.225, Activation of warning system.

       See 49 CFR §§ 234.5; 234.9; 234.105; 234.107; 234.223; 234.225.

       49 CFR §§ 234.9; 234.247-234.273.

       In regard to duty of care under the same or similar circumstances in nonproduct liability cases, the existence of a blind, dangerous crossing, requiring automatic warning systems, all have similar equipment, i.e., an automatic sensing device to activate the warning system, connecting circuits, control sensor, and warning devices. Any delayed activation failure causes the warning system to act similarly; therefore, there existed sufficient similarity for such evidence to be probative. See Cochran v. Lowe’s Home Center, 226 Ga. App. 417, 418-419 (487 SE2d 50) (1997); Wright v. Dilbeck, 122 Ga. App. 214, 217 (4) (176 SE2d 715) (1970); see also Skil Corp. v. Lugsdin, 168 Ga. App. 754, 756 (1) (309 SE2d 921) (1983). See Ga. Cotton Oil Co. v. Jackson, 112 Ga. 620, hn. 4 (37 SE 873) (1901).
      While the relevancy of other occurrences is ordinarily within the sound discretion of the court, “it is necessary that the conditions of the things compared be substantially similar.” Green, Georgia Law of Evidence, p. 172, § 68. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate. [Cits.]

        Carlton Co. v. Poss, 124 Ga. App. 154, 155 (3) (183 SE2d 231) (1971); see also Hayes v. Gary Burnett Trucking, 203 Ga. App. 693, 694 (1) (417 SE2d 676) (1992), overruled on other grounds, Patterson v. Lauderback, 211 Ga. App. 891, 893 (440 SE2d 673) (1994); Cooper v. Baldwin County School Dist., 193 Ga. App. 13, 14 (1) (386 SE2d 896) (1989).

       Even the requirements of Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 877-878 (1) (447 SE2d 302) (1994), i.e., that there be evidence showing that prior similar occurrences had sufficient substantial similarity to the case for admission to prove notice of the general danger, giving rise to foreseeability and to the duty of care, had been satisfied in this case when evidence established as to the other occurrences that the automatic warning system at the crossing came under federal regulations by being at public road crossings, that there was a public railroqd crossing, and that there had been a delayed activation failure. See as to the stricter substantially similar defects requirement in product liability cases in general Mack Trucks v. Conkle, 263 Ga. 539, 544 (3) (436 SE2d 635) (1993). See also Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284, 286 (2) (260 SE2d 20) (1979); Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 258 (5) (461 SE2d 877) (1995), rev’d on other grounds, Ford v. Uniroyal Goodrich Tire Co., 267 Ga. 226 (476 SE2d 565) (1996); Browning v. Paccar, Inc., 214 Ga. App. 496, 498 (1) (a), (b) (448 SE2d 260) (1994); cf. Cochran v. Lowe’s Home Center, supra at 418-419.

       See 49 CFR § 234.5; 56 FR 33723.

       On June 19, 1991, after the collision in 1988, 49 CFR § 240 was amended and was again amended on April 9, 1993. See 56 FR 28254; 58 FR 19002. After the amendments, 49 CFR § 240.5 (a) reads:
      [b]y issuance of these regulations, FRA intends to preempt any State law, rule, regulation, order, or standard covering the same subject matter [(the minimum qualification of engineers)] in accordance with the provisions of section 205 of the Federal Railroad Safety Act of 1970 (45 U. S. C. 434).
      There had been no assertion of federal preemption prior to June 19, 1991, as evidenced by the necessity to assert it after the collision.

       See 49 CFR § 240 et seq. While Norfolk Southern relies upon State of Wis. v. Wis. Central Transp. Corp., 200 Wis. 2d 450 (546 NW2d 206) (Wis. App. 1996), this is persuasive authority as to federal law and the issue of preemption but is not conclusive.

       While 49 CFR § 234.105 (c) and (d) imposed such duties as of September 30, 1994, such minimum standards are some evidence of the standard of ordinary care by a reasonable, prudent, and experienced engineer under the same or similar circumstances in 1988. See 59 FR 50106.


author: Ellington, Judge.

text:
    A99A2374.
    A99A2375.
    A00A0173.
    COX v. THE STATE. COOPER v. THE STATE. CHAPPELL v. THE STATE.
    (528 SE2d 871)
   Ellington, Judge.

Roger Jack Cox, Robert Lee Cooper, and Brandon Keith Chappell, were convicted by a jury of aggravated assault, OCGA § 16-5-21. Following the denial of their motions for new trial, each man filed a notice of appeal. Because they were tried together and raise related issues on appeal, we consolidated their appeals for review. For the reasons which follow, we affirm.

1. The victim was beaten by a group of teenagers in the parking lot of a skating rink. Cox and Cooper contend that there was insufficient evidence identifying them as participating in the assault.

On appeal the evidence must be viewed in the light most favorable to support the .verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

At trial, two eyewitnesses positively identified Cox, Cooper and Chappell as having kicked the victim repeatedly. Furthermore, both Cox and Cooper admitted their involvement. The night of the assault, after being advised of his rights to silence and to counsel and in the presence of his parents, Cooper made a statement to a uniformed officer in which he admitted being present at the altercation and admitted striking the victim. The day after the assault, after being advised of his rights and in the presence of his mother, Cox made a statement to the same officer in which he admitted being present at the altercation and admitted kicking the victim. The evidence, including the evidence of the assailants’ identity, was sufficient to support the verdicts. Peek v. State, 234 Ga. App. 731-732 (1) (507 SE2d 553) (1998).

2. Cooper contends that he was denied due process, particularly his right to counsel, in being required to appeal the juvenile court’s decision to transfer the case to the superior court within 30 days of the transfer order. See OCGA §§ 5-6-38; 15-11-39; J. T. M. v. State of Ga., 142 Ga. App. 635, 636-637 (1) (236 SE2d 764) (1977). The record does not support Cooper’s contention that the transfer to the superior court and the appointment of different counsel for trial in that court caused him to be unrepresented and unable to pursue an appeal of the transfer order. The juvenile court transcript shows that Cooper was advised of his right to appeal the transfer order and that he was represented by counsel at the time. Because Cooper failed to appeal the transfer to superior court within 30 days, he waived appellate review of this issue. Rivers v. State, 229 Ga. App. 12, 13 (1) (493 SE2d 2) (1997).

3. Chappell contends that his trial counsel rendered ineffective assistance by not calling him to testify at the pretrial hearing regarding the voluntariness of his inculpatory statement.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Chappell] must show both that counsel’s performance was deficient and that the deficient performanee prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

(Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citation and punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

In this case, Chappell claims that if given the opportunity he would have testified that he was coerced into making two false statements: that he kicked the victim approximately thirty times and that a fourth person, Eric O’Conner, did not participate in the assault. Chappell concedes that absent the coercion he still would have admitted kicking the victim but could not have specified how many times. His trial counsel testified at the hearing on the admissibility of Chappell’s statement that he advised Chappell about the advantages and disadvantages of testifying and that Chappell alone made the decision not to testify. The trial court found no reasonable probability that the outcome of the proceedings would have been different absent the alleged deficiency of counsel’s performance. We agree. Even if Chappell had received ineffective assistance of counsel, to obtain a new trial he had the burden of showing that “the deficient performance prejudiced the defense by creating a reasonable probability of a different outcome but for counsel’s errors.” Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). First, two eyéwitnesses positively identified Chappell as having been fully involved in kicking the victim; Chappell’s statement was cumulative as to his participation. Furthermore, the fact that the jury convicted Cox, Cooper, and Chappell of the same crime — aggravated assault — demonstrates that it was not influenced by whether a defendant admitted kicking the victim 30 times or only hitting him once. Under the circumstances presented here, we conclude that Chappell failed to carry his burden of showing a reasonable probability that he would have been acquitted but for his counsel’s failure, through Chappell’s testimony, to persuade the trial court that his statement had been coerced. Robinson v. State, 231 Ga. App. 368, 371 (6) (498 SE2d 579) (1998).

We further find that Chappell failed to show that he was prejudiced by his trial counsel’s performance with regard to sentencing. Chappell testified at his sentencing hearing that he did not know how many times he had kicked the victim and testified that the officer coerced him into stating that he kicked the victim 30 times. But the trial court specifically found that the number of times Chappell kicked the victim was irrelevant to the appropriate punishment. Because the trial court did not rest on the challenged evidence, no injustice has been shown. Jackson v. State, 238 Ga. App. 559, 560 (1) (a) (520 SE2d 11) (1999).

4. Cox contends that the trial court erred in refusing to sever his trial from that of co-defendants Cooper and Chappell. Before trial, Cox expected the evidence to show that he kicked the victim once in the leg and then “broke away” from the assault and that other assailants then kicked the victim another 30 times in the head. On appeal, Cox contends that the trial court abused its discretion in denying his motion to sever because the extensive medical evidence regarding the victim’s head injuries was likely to confuse the jury since Cox did not cause those injuries, citing Crawford v. State, 148 Ga. App. 523 (251 SE2d 602) (1978).

To be entitled to a severance, the appellant must have made a clear showing of prejudice resulting from joinder of these trials amounting to denial of due process, rather than the mere possibility that a separate trial would improve appellant’s chance of acquittal.

Autry v. State, 230 Ga. App. 773, 775 (3) (498 SE2d 304) (1998).

Viewed in the light most favorable to support the verdict, the evidence shows that Cox participated in the group attack on the victim. Therefore, he is criminally responsible for the injuries inflicted by all parties to the crime even if he personally delivered only one blow. Moore v. State, 216 Ga. App. 450-451 (1) (454 SE2d 638) (1995); Johnson v. State, 188 Ga. App. 411, 412 (2) (373 SE2d 93) (1988); see OCGA § 16-2-20. We find it unlikely that the jury was confused by the medical evidence of the severity of the victim’s injuries. There was no abuse of discretion in joining the trials.

5. Both Cox and Cooper contend that the trial court erred in denying their motion to sever their trials from that of co-defendant Chappell pursuant to the holding in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), that “the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand.” (Punctuation omitted.) Montijo v. State, 238 Ga. App. 696, 701 (3) (b) (520 SE2d 24) (1999). Cox and Cooper moved for severance when the investigating officer testified that co-defendant Chappell told him, inter alia, “that he knows now what everyone meant about you only get in trouble with your so-called friends.” We find that the trial court correctly concluded that Chappell’s statement did not clearly inculpate Cox and Cooper because it did not identify them either by name or by description and did not attribute any specific acts to them. Owen v. State, 266 Ga. 312, 314 (4) (467 SE2d 325) (1996). Because the challenged statement was not clearly inculpatory of Cox or Cooper, the trial court did not abuse its discretion in denying their Bruton motion. Todd v. State, 143 Ga. App. 619, 620 (2) (239 SE2d 188) (1977).

6. Chappell argues that his trial should have been severed from that of Cox and Cooper under a Bruton-type analysis. Chappell contends that he was harmed by the admission of Cox’s and Cooper’s statements which admitted minimal involvement in the beating thereby implying that Chappell, who had admitted kicking the victim 30 times, was responsible for the majority of the victim’s injuries. We find no prejudice in the joint trial where, despite Chappell’s greater degree of admitted culpability, the jury convicted him of the same crime as those with minimal admitted culpability — one count of aggravated assault. Lewis v. State, 147 Ga. App. 794, 796 (3) (250 SE2d 522) (1978).

7. Cox, Cooper and Chappell contend that the trial court erred in not granting a new trial based on the State’s failure to produce exculpatory evidence as required by Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). At trial, an eyewitness testified that he had seen about seven young men kicking the victim. The investigating officer later testified that just after the incident, that witness initially stated that he saw four or five males kicking the victim. OCGA § 17-16-7 requires the prosecution to “produce for the opposing party any statement of any witness that is in the possession, custody, or control of the state or prosecution . . . that relates to the subject matter concerning the testimony of the witness. . . .” In this case, the witness’s initial statement was never committed to writing. Because there can be no “possession, custody, or control” of an oral statement, the State has no obligation to produce a statement which has been neither recorded nor committed to writing. Forehand v. State, 267 Ga. 254, 255-256 (3) (477 SE2d 560) (1996); see OCGA § 17-16-1. The trial court did not err in concluding that the State committed no discovery violation. Baldwin v. State, 232 Ga. App. 335, 336 (1) (501 SE2d 548) (1998).

8. Cooper contends that the State violated its duties under the reciprocal discovery statute, OCGA § 17-6-1 et seq., by failing to provide him with the transcript of the juvenile proceedings which preceded the transfer to the superior court. Cooper did not raise the issue of whether the State had violated its discovery obligations at trial, nor did he raise the issue in his motion for new trial.

When the state fails to comply with any of the discovery provisions, OCGA § 17-16-6 provides remedies, which include the grant of a continuance and the exclusion of evidence. The record reveals that [Cooper] did not raise the state’s noncompliance at trial. Therefore, [he] did not give the trial court the opportunity to exercise its discretion in formulating an appropriate remedy and cannot complain for the first time on appeal.

White v. State, 271 Ga. 130, 131 (3) (518 SE2d 113) (1999).

9. Cox and Cooper both contend that the admission of evidence that they had been using marijuana just before the assault improperly introduced the issue of their character. Evidence as to whether a defendant was under the influence of alcohol or drugs at the time a crime was committed is deemed part of the res gestae and is admissible as such even though it may incidentally place the defendant’s character in evidence. Ramsey v. State, 233 Ga. App. 810, 812 (2) (505 SE2d 779) (1998). “Moreover, it is highly probable that this evidence did not contribute to the verdict in light of the overwhelming evidence of [Cox’s and Cooper’s] guilt.” Id.

10. Cooper complains that he was not allowed to cross-examine a witness. The witness, Harvey Welch, was sworn in and answered ten preliminary questions before indicating that he wanted to assert his constitutional right not to incriminate himself. The trial court suspended his appearance to allow him to consult with his lawyer before answering any other questions. The State opted not to call the witness to complete his testimony. Although Cooper never had the opportunity to cross-examine the witness, he never moved that the testimony be stricken. See Robinson v. State, 216 Ga. App. 816 (456 SE2d 68) (1995). Because Cooper never objected during trial 'to the witness’s testimony, he waived any objection and failed to preserve the issue for appeal. Anthony v. State, 236 Ga. App. 257, 258 (1) (511 SE2d 612) (1999).

11. Cox contends that he was entitled to a new trial because co-defendant Chappell’s counsel stated in his closing argument, “we all agree that these three boys did something stupid.” “The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) Hayes v. State, 236 Ga. App. 617, 618 (1) (512 SE2d 294) (1999). In this case, the closing argument was not transcribed, and Cox did not supplement the record with a stipulation pursuant to OCGA § 5-6-41 (g); therefore, the enumeration dealing with improper closing argument by co-defendant’s counsel is deemed abandoned. Ledesma v. State, 251 Ga. 487, 490 (8) (306 SE2d 629) (1983).

Judgments affirmed.

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

Decided January 28, 2000 —

Reconsideration denied February 11,2000

Lee Sexton, for appellant (casé no. A99A2374).

George C. Creal, Jr., for appellant (case no. A99A2375).

Furlong & Franco, Leonard L. Franco, for appellant (case no. A00A0173).

Robert E. Keller, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.


author: Andrews, Presiding Judge.

text:
    A99A1618.
    SPRADLEY v. THE STATE.
    (529 SE2d 647)
   Andrews, Presiding Judge.

Bobby Spradley appeals from the judgment entered after a jury found him guilty of two counts of armed robbery, possession of a firearm during the commission of a felony, possession of a controlled substance, obstruction, failure to stop, no license, reckless driving, and fleeing and eluding. Spradley claims the trial court erred in denying his plea in bar on the grounds of former jeopardy and in its charge to the jury. We find no reversible error and affirm.

This case arose when an anonymous caller reported to 911 that she heard a shot fired and saw two men in a white Chevette or Chevelle in front of her house, one of whom had a gun. Officers responding to the call saw a white Chevelle pull into a gas station and followed. When police approached the car after it stopped, Spradley, who was driving, sped off. Officers chased the car, and it ended up in a vacant lot. Spradley and co-defendant Shaun Frazier jumped out and ran. After a brief chase, police caught both men and arrested them. Police found a wallet belonging to Tracy Lundy in the car and also found cocaine on Spradley, who admitted that it was his.

The officer called Lundy who said that he and his brother-in-law had been robbed earlier in the evening but decided not to call the police. Both Lundy and his brother-in-law identified Spradley and Frazier as the men who robbed them.

At the time of the first trial, the 911 caller was still refusing to testify, and Spradley filed a motion in limine to exclude the content of the 911 call. Before the start of trial, the judge held a hearing on the motion and then granted it, stating: “Right now, I am sustaining the motion in limine as to the content of anything that’s in that report.” The prosecutor then said: ‘Your Honor, I would like to be clear on your ruling. We would like to have Detective Best testify that he was looking for a white Chevelle or Chevette as a result of a dispatch that he got.” Defense counsel objected, and the trial court stated: “I’m going to allow it. ... I will allow him to testify that he was instructed to look out for a white Chevelle.”

The jury was called in, and the prosecutor began her opening statement. During the statement, the prosecutor said: “And while they were on this Olympic detail, they got a dispatch on the radio, telling them to look out for a white Chevelle or white Chevette that was involved in a ‘shots fired’ call.”

Defense counsel objected to the prosecutor’s statement that police were responding to a “shots fired” call and moved for a mistrial, which the court granted. Spradley then filed a plea in bar, moving the court to dismiss the indictment on grounds of double jeopardy. The court denied the motion, and Spradley was tried and found guilty on all counts. Spradley now appeals, claiming it was error not to grant his plea of former jeopardy.

1. The primary purpose of the Double Jeopardy Clause is to prohibit the retrial of a criminal defendant where the prosecution has, at the initial trial, produced insufficient evidence to sustain a conviction. See, e.g., Burks v. United States, 437 U. S. 1 (98 SC 2141, 57 LE2d 1) (1978); Williams v. State, 258 Ga. 305, 311 (369 SE2d 232) (1988). “The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency.” Id. In general when a defendant makes a motion for a mistrial he waives any claim of double jeopardy. Id. But, where the prosecutor has goaded the defense into making a motion for a mistrial in order for the prosecution to avoid reversal of the conviction because of prosecutorial or judicial error or to otherwise obtain a more favorable chance for a guilty verdict on retrial, the Double Jeopardy Clause will stand as a bar to retrial. Id. See also Oregon v. Kennedy, 456 U. S. 667, 676 (102 SC 2083, 2089, 72 LE2d 416) (1982). The Supreme Court of Georgia has adopted the test set out in Oregon, supra. Beck v. State, 261 Ga. 826 (412 SE2d 530) (1992). The inquiry is whether the prosecutor intended to goad the defendant into moving for a mistrial and thus terminate the trial. What is critical is the objective of the prosecutor’s conduct. Unless a prosecutor is trying to abort the trial, his or her misconduct will not prohibit a retrial. Oregon, supra; Mosley v. State, 230 Ga. App. 890, 891 (497 SE2d 608) (1998). The question of whether the prosecutor intended to goad the defendant into moving for a mistrial is a question of fact for the trial court to resolve. Ward v. State, 230 Ga. App. 581, 582 (497 SE2d 65) (1998). The Supreme Court, in concluding that a standard that examines the intent of the prosecutor has some difficulties but is still manageable, stated: “It merely calls for the court to make a finding of fact. Inferring the existence or nonexistence of intent from objective facts and circumstances is a familiar process in our criminal justice system.” Oregon, supra at 675.

Spradley claims the prosecutor intended to goad him into moving for a mistrial in order to obtain a more favorable chance for a guilty verdict on retrial. He points out that the court had just refused to admit the State’s similar transaction evidence and had also refused to allow the State to describe the 911 call. In addition, when the case was retried at a later date, the State’s first three witnesses were the woman who made the 911 call, the dispatcher who took the call and the officer in charge of the 911 tapes. At the time of the first trial, the anonymous 911 caller had not agreed to testify, and therefore, none of this evidence could have been introduced. Thus, Spradley argues the prosecutor deliberately ignored the court’s instruction not to mention the substance of the 911 call in order to force a motion for mistrial because she thought she had a better chance for a guilty verdict on retrial.

The prosecutor said she had not deliberately disobeyed the court’s order but “thought that I could address it in that manner.” The prosecutor also asked if they could strike another jury immediately. At the time, the trial court stated that it did not believe the prosecutor’s mistake was deliberate. At the hearing on the plea in bar, the prosecutor again stated that she did not intend to goad the defense into requesting a mistrial and that she was prepared to go to trial.

Spradley argues that this case is similar to Wilson v. State, 233 Ga. App. 327 (503 SE2d 924) (1998). In Wilson, the prosecutor was cross-examining the defendant and asked, “ ‘Mr. Wilson, did you try to negotiate a nolo contendere plea in this charge?’ ” Id. at 330. In that instance, this Court said that prosecutors are generally too well trained and knowledgeable to ask that question and, therefore, the prosecutor must have intended the mistrial.

This case, however, more closely resembles Haralson v. State, 227 Ga. App. 118 (488 SE2d 497) (1997), in which the trial court instructed the prosecutor not to elicit any testimony about the defendant’s gang membership. Because there was evidence that the robbers wore a certain color bandanna, the prosecutor asked if she could question a witness about what color bandannas the robbers were wearing. The court said she could, and she then proceeded to question a co-defendant about wearing bandannas and gang membership: whether the other co-defendants were members of gangs, what color bandannas they wore and what color bandanna the defendant wore. The trial court granted a mistrial, and after the subsequent hearing to bar retrial, the trial court found that the prosecutor’s intention was to convict Haralson, not to cause a mistrial. Id. at 120. This Court concluded that the trial court would have been authorized to reach the opposite result, but because there was evidence to support the trial court’s finding of fact, the defendant’s plea in bar was properly denied. Id. at 121.

Decided February 11, 2000 —

Reconsideration dismissed June 14, 2000.

Likewise, in this case, the trial court could have reached the opposite result. But, there was evidence that the prosecutor did not intend to cause a mistrial in order to gain a delay and was prepared to try the case again immediately. Therefore, because the trial court’s finding of fact was authorized by the evidence in the record, we conclude that the trial court properly denied Spradley’s plea in bar on the grounds of double jeopardy. Haralson, supra at 121.

2. Spradley also argues that the trial court erred in charging the jury and in answering a jury question on unanimous verdicts. During its charge, the court instructed the jury on the elements of armed robbery and the lesser included offense of robbery and the requirement that the verdict be unanimous and gave an explanation of the verdict form. After the charge, the jury sent out a question during deliberations, and the court responded as follows:

Let me read the question for the record and then I’ll answer it. The question is, do we have to be unanimous on armed robbery or robbery to not be a hung jury? And the answer is, you have to be unanimous, whatever your verdict is, which way it goes on anything, it has to be unanimous, that is, agreed to by all of you. Does that answer the question?

Spradley argues that the charge and the answer to the jury’s question somehow required the jury to first reach a unanimous verdict on the greater offense before it could consider the lesser included offense. We disagree.

Spradley cites Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996) and Kunselman v. State, 232 Ga. App. 323 (501 SE2d 834) (1998) as authority for this claim of error. But, these cases are not on point. In Cantrell, the trial court instructed the jury that it must first consider the greater offense of possession with intent to distribute before it could consider the lesser included offense of possession. Id. Likewise, in Kunselman, the trial court instructed the jury that it must first find the defendant not guilty of burglary before it could consider the lesser included offense of criminal trespass. Id. at 324. Here, the trial court gave no such instruction and never specified any order that must be followed by the jury in their deliberations. This claim of error is without merit.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Lori L. Canfield, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A99A1876.
    O’BRIEN v. THE STATE.
    (529 SE2d 657)
   Ruffin, Judge.

Siobhan Eileen O’Brien was convicted by an Atlanta City Court jury of driving under the influence of alcohol and improperly driving on a roadway laned for traffic. O’Brien appeals the order of the city court denying her motion for new trial. She enumerates as error that the evidence was insufficient to support her DUI conviction, that she was afforded ineffective assistance of counsel, and that the State improperly commented on her right to remain silent following the traffic stop in which she was cited for DUI. Because we find no merit in these enumerations of error, we affirm.

1. The record does not support O’Brien’s argument that the evidence is insufficient to support the DUI conviction. On appeal the evidence must be viewed in a light most favorable to the verdict, and O’Brien no longer enjoys the presumption of innocence. Viewed in that light, the State’s evidence was as follows.

At 4:00 a.m. on October 6, 1994, Officer Smail of the City of Atlanta Police Department saw a car turn onto Roswell Road and weave back and forth twice across two lanes, before abruptly stopping, signaling, and making a left turn. The officer stopped the car and asked the driver, O’Brien, for her driver’s license. Officer Smail noticed a strong odor of alcohol on O’Brien’s breath and had difficulty understanding her speech. O’Brien used the car door to pull herself out of her vehicle. Upon Officer Smail’s request, O’Brien agreed to participate in a field sobriety test, which the officer had been trained to administer.

Officer Smail administered a horizontal gaze nystagmus (“HGN”) test to O’Brien. Before administering the HGN test, the officer asked O’Brien if she was on any medication, and she said no. During the HGN test, the officer observed the tracking of O’Brien’s eyes as they followed a stimulus passing back and forth before her face. In the opinion of Officer Smail, the HGN test indicated that O’Brien was impaired. Smail then prepared to administer a “nine step walk and turn” test and asked O’Brien if she had any injuries that might affect her balance. O’Brien informed the officer that she had a spinal injury. Without performing any additional field sobriety tests, the officer, believing O’Brien to be less safe to drive, placed her under arrest for DUI. At trial, O’Brien admitted to having consumed four beers.

The evidence is sufficient to authorize a rational trier of fact to find O’Brien guilty beyond a reasonable doubt of DUI.

2. In her second enumeration of error, O’Brien contends that her motion for new trial should have been granted due to ineffective assistance of counsel.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, O’Brien must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. Furthermore,

[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

In her brief, O’Brien includes an almost endless list of complaints against her trial counsel, including complaints that he: (1) failed to call a doctor as a witness to document her spinal injury; (2) failed to call a doctor to confirm that O’Brien was hypoglycemic; (3) failed to ensure the admission of O’Brien’s medical records into evidence by subpoenaing the doctors responsible for generating the medical reports; (4) failed to make a motion to compel discovery; (5) failed to obtain discovery of the police videotape in advance of trial; (6) maintained a demeanor at trial that was aggravating to the court and the jury; (7) struck juror Abner by mistake, rather than juror Adams and (8) made numerous improper statements in his opening and closing statements to the jury.

We have reviewed the record and find that, other than as discussed below with respect to juror Adams, we agree with the trial court’s finding that counsel’s performance was not deficient. Counsel’s fáilure to subpoena medical doctors is understandable, because no experts had been retained by O’Brien. She was not willing to pay for a doctor to testify. The expert “from Tennessee” dismissed by counsel had apparently been retained only for an earlier court date. In any case, we do not know whether these unnamed doctors, who did not testify at the hearing on motion for new trial, would have helped O’Brien’s case. O’Brien argues that counsel should have compelled discovery to ascertain the exact charges against her but fails to show any surprise or prejudice. Discovery of the police videotape was impossible, because there was no tape. Counsel’s demeanor at trial was aggressive and perhaps occasionally patronizing, but this was a matter of style within the bounds of reasonable behavior. Counsel’s opening and closing statements, viewed as a whole, are consistent with a reasonable trial strategy.

After the jury was selected, trial counsel admitted to making a mistake in striking juror Abner rather than juror Adams, who neither drinks nor drives. This was not a mistake in judgment, but rather a matter of misidentification, or “flip-flopping,” of the jurors’ names. Although we cannot say that no reasonable attorney would have allowed juror Adams to remain on the jury, juror Adams remained on this jury due only to confusion on the part of trial counsel and not as a matter of strategy. Considering, however, that juror Adams was not openly prejudiced against O’Brien and that the evidence supports the verdict, we cannot say that but for counsel’s error, the result of the proceeding would have been different.

Decided February 11, 2000.

Elaine T. McGruder, for appellant.

Joseph J. Drolet, Solicitor, Rand J. Csehy, Assistant Solicitor, for appellee.

3. O’Brien contends that the State committed prosecutorial misconduct by commenting on her right to remain silent following the traffic stop in which she was cited for DUI. As part of her defense, O’Brien maintained she was using medication which may have caused her to seem impaired. In her closing argument, the prosecutor stated “the first we heard about the drugs is today.” This comment, O’Brien suggests, is a prosecutorial comment on her right to remain silent and is not allowed because such a statement is more prejudicial than probative.

O’Brien did not object to the prosecutor’s statement at trial or otherwise preserve this issue for appellate review. As this is a court for the correction of error of law, we will not consider any issues raised on appeal that were not raised and preserved in the trial court. Even if O’Brien had preserved this issue for appeal, it would not warrant reversal. The evidence shows that O’Brien responded negatively when the arresting officer asked her if she was on any medication. Thus, the comment by the prosecutor was a comment on the evidence and was not a comment on her silence.

Judgment affirmed.

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

       OCGA §§ 40-6-391 (a) (1); 40-6-48.

       O’Brien was convicted on June 8,1995. Her initial motion for new trial was dismissed on September 18,1995, because her attorney failed to appear in court. O’Brien filed a notice of appeal on October 2, 1995. By our order of April 1, 1996, the case was remanded to the trial court to allow the filing of a motion for new trial and an evidentiary hearing on O’Brien’s claim of ineffective assistance of counsel. The trial court denied O’Brien’s motion for new trial on May 14,1996. O’Brien filed a notice of appeal on June 12,1996. After a considerable delay, the appeal was received by this court on May 20, 1999.

       O’Brien did not question the sufficiency of the evidence in the hearing on her motion for new trial, which was limited by our order of April 1,1996, to the issue of ineffective assistance of counsel. However, because we are not certain that O’Brien had a reasonable opportunity to raise this claim earlier, we will consider this enumeration of error.

       O’Brien does not argue the sufficiency of evidence with respect to the lane violation.

        Brantley v. State, 230 Ga. App. 651 (1) (497 SE2d 399) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Forsman v. State, 239 Ga. App. 612 (1) (521 SE2d 410) (1999).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Bowley v. State, 261 Ga. 278, 280 (4) (404 SE2d 97) (1991).

        Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

       (Punctuation omitted.) Binion v. State, 222 Ga. App. 333, 334 (1) (474 SE2d 208) (1996).

       O’Brien’s attorney asked: “Were you willing to pay for the doctor to come and testify?” O’Brien responded: “No, I was not.”

       Juror Adams said: “I can’t see a person getting into the car with somebody that’s drunk either. Because I don’t drive, you know. .. .”

        Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988).

       The prosecutor said:
      We have met our burden. We’ve had the defendant admit that she was less safe. We’ve had the defendant admit that she was drinking on top — I’m not saying that the drugs was the reason why she was unsafe. I’m saying she was unsafe. The alcohol that she consumed — you can’t just isolate one piece of evidence. That’s ridiculous. Use your common sense. She was unsafe. She was unsafe. The first we heard about the drugs was today. It was surprising. Today.

        Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991).

        Cheesman v. State, 230 Ga. App. 525, 526 (2) (497 SE2d 40) (1998).

       Officer Smail: “I asked her whether she was on any type of medication and she gave me a negative response.”


author: Smith, Judge.

text:
    A99A2025.
    BROWN v. THE STATE.
    (529 SE2d 650)
   Smith, Judge.

Shawn Brown and a co-defendant, Venice Lipsey, were convicted by a Fulton County jury of two counts of armed robbery, aggravated assault, burglary, kidnapping, and false imprisonment. Brown’s amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Brown raises the general grounds. He does not argue the sufficiency of the evidence, however, conceding in his brief that “the evidence may have been sufficient to establish his guilt.” Instead, he argues only that the trial court’s answer to a question posed by the jury during deliberations rendered the verdict “contrary to the principles of justice and equity.” In a related enumeration of error, Brown contends that the trial court erred in its answer to the jury.

The aggravated assault charge against Brown alleged that Brown “did unlawfully commit an assault upon the person of [the victim] by applying a flammable liquid to the body of [the victim] and igniting said flammable liquid, all with intent to rob [the victim].” While considering the case, the jury sent several written questions to the trial court. Brown’s objection is raised with respect to the question: “If the jury agrees that aggravated assault occurred, but does not believe the flammable liquid was ignited, how should we rule? Can we still rule guilty on aggravated assault?” The trial court responded by writing ‘Yes” on the note.

The indictment charged Brown with aggravated assault by committing two acts, either of which “places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). “Because the statute requires proof of only one act . . . , inclusion in the indictment of more than one such act is mere surplusage, which is unnecessary to constitute the offense, need not be proved, and may be disregarded.” (Citations and punctuation omitted.) Ranson v. State, 198 Ga. App. 659, 661 (3) (a) (402 SE2d 740) (1991) (full concurrence as to Division 3). Moreover, when an indictment alleges that an aggravated assault was committed by two means, the State need prove only one of the two acts constituting the crime of aggravated assault to sustain the conviction. Lubiano v. State, 192 Ga. App. 272, 273-274 (1) (a) (384 SE2d 410) (1989) (full concurrence as to Division 1) (no fatal variance where indictment alleged assault by feet and revolver but evidence showed assault by feet only). The trial court’s response to the jury, therefore, was a correct statement of the law and not error. Id. at 276 (2) (b) (full concurrence as to Division 2); Ranson, supra.

2. Brown also contends the trial court erred in commenting in the presence of the jury that the victim had made a prior consistent statement. But this comment was made in the context of a ruling on Brown’s objection to the introduction of the victim’s earlier statement to investigators. When the veracity of a witness is in issue, a prior consistent statement is admissible as substantive evidence. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

It is well settled that remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence as contemplated by OCGA § 17-8-57. Here, the trial court was clearly assigning a reason for its ruling. Additionally, in its charge to the jury, the court instructed that by none of its rulings or comments had it intended to express any opinion as to the facts, the credibility of the witnesses, the evidence, or the defendant’s guilt.

(Citation and punctuation omitted.) Crews v. State, 226 Ga. App. 232, 237 (6) (486 SE2d 61) (1997). Here, as in Crews, the trial court’s charge to the jury included the caution that “[b]y no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of the case, upon the credibility of the witnesses, upon the evidence, upon the guilt or innocence of the defendants.” Brown also failed to object to the trial court’s statement or move for a mistrial. Brown’s contention on appeal that he failed to move for a mistrial because the trial court was so “severe” in its response to counsel’s first objection is belied by the transcript. In addition,

[n]o matter how erroneous a ruling of a trial court might be, a litigant cannot submit to a ruling or acquiesce in. the holding, and then complain of the same on appeal. He must stand his ground. Acquiescence deprives him of the right to complain further. A party’s acquiescence to the ruling of a trial court deprives the party of a right to complain of that ruling on appeal, and acquiescence can be caused by silence. Defendant has waived the issue argued on appeal by failing to raise an objection in the trial court.

(Citations and punctuation omitted.) Carr v. State, 214 Ga. App. 367, 368 (448 SE2d 33) (1994). See also Nolton v. State, 196 Ga. App. 690, 691 (2) (396 SE2d 605) (1990) (issue not preserved when no objection to comment by judge).

3. Finally, Brown contends that the sentences imposed by the trial court were unduly harsh in that they were more severe than those meted out to his co-defendant. But the sentences were within the statutory limits for each of the crimes for which Brown was convicted. See OCGA §§ 16-8-41 (b); 16-5-21 (b); 16-7-1 (b); 16-5-40 (b); 16-5-41 (b). “We will not review for legal error any sentence which is within the statutory limits. Any question as to the excessiveness of such a sentence should be addressed to the sentence review panel as provided in OCGA § 17-10-6.” (Citation and punctuation omitted.) Rehberger v. State, 235 Ga. App. 827, 830 (4) (510 SE2d 594) (1998) (allegation that sentence was “constitutionally excessive”). See also Lanzo v. State, 187 Ga. App. 616, 619 (7) (371 SE2d 119) (1988) (allegation that sentence was disproportionate to that of co-defendant must be addressed to sentence review panel). We note that under OCGA § 17-10-6 (a), Brown shall have 30 days after the remittitur from this court is made the judgment of the trial court to make application for sentence review.

Decided February 11, 2000.

Elaine T. McGruder, for appellant.

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

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       The alleged intent to rob the victim is an element of the offense of aggravated assault. OCGA § 16-5-21 (a) (1).

       As the trial court correctly observed, the revision of OCGA § 17-10-6, excepting from its provisions sentencing in a “serious violent felony” under OCGA § 17-10-6.1, did not become effective until after the commission of the offenses in this case. See Ga. L. 1994, pp. 1959, 1971, § 16.