text:
    A98A1377.
    JEFFERSON-PILOT LIFE INSURANCE COMPANY v. FRAKER.
    (507 SE2d 188)
   Beasley, Judge.

Can an insurance company require its insured, who has received only partial compensation from the tortfeasor for his injuries, to reimburse the company for medical bills where the insurance contract requires the insured to pay one-third of his net recovery to the company as reimbursement? That is, does such policy language avoid the complete compensation rule by constituting “an express provision to the contrary?”

After Jerry Fraker was involved in an automobile accident, his employer’s medical insurance carrier (Jefferson-Pilot Life Insurance Company) paid out nearly $900,000 in medical benefits. Because several people were injured and, as appellant states in its brief, the damages “greatly exceeded” the limits of liability of the insurance carrier for the driver of the other vehicle, that carrier instituted an interpleader action. It paid the limits of its policy into the registry of the court and named Fraker as one of the competing claimants. Jefferson-Pilot intervened, claiming it was entitled to a portion of the funds as reimbursement.

The parties stipulated that Fraker’s portion of the interpled funds was $98,750. Jefferson-Pilot contended that under the formula in its insurance contract it was entitled to one-third of that portion after attorney fees and expenses, for a total of $21,944.44. Because Fraker had not been fully compensated for his loss, the court awarded the entire $98,750 to Fraker and nothing to Jefferson-Pilot.

1. Jefferson-Pilot seeks a decision which is founded on Georgia law. It argued to the trial court that North Carolina law applies, but it presumes both are the same. Insurer concedes that the reimbursement provision of its insurance contract cannot be enforced by this Court absent compliance with the public policy set forth in Duncan. As stated in Duncan, this is a matter of Georgia public policy, and is thus dependent on Georgia law. Accordingly, we resolve the issues based on Georgia law.

2. OCGA § 33-24-56.1, invoked by Fraker, prohibits the enforcement of reimbursement provisions unless the insured is first completely compensated. This statute did not become effective until July 1, 1997, after the insurance contract was executed and after the time of the injuries. “[A]ny subrogation rights were vested and therefore could not be abrogated by a later statute.”

3. On the other hand, Duncan approximates this case. Duncan recovered $15,000 from the tortfeasor, which was less than her losses. Her insurance company sought reimbursement of the $5,000 it had paid her under the medical payments provision of its insurance contract. The reimbursement provision stated: “ ‘If we make a payment under this policy and the person to or for whom payment is made recovers damages from another, that person shall: 1. Hold in trust for us the proceeds of the recovery; and 2. reimburse us to the extent of our payment.’ ”

Duncan framed the issue as “whether the complete compensation rule, which requires that an insured be completely compensated for his losses before his insurer can exercise a right of subrogation or reimbursement, is applicable to an insurance policy provision which requires the insured to reimburse the insurer for amounts paid under medical payments coverage.” The Supreme Court concluded that “consistent with the public policy of Georgia, the complete compensation rule does limit the applicability of such a reimbursement provision, at least where the insurance contract does not contain an express provision to the contrary.” The absence of such an express provision led to the holding that Duncan’s insurer was entitled to nothing.

Fraker’s insurance contract states: “You or a dependent may incur medical expenses due to injuries suffered in an accident. The accident may be caused by the alleged negligence or misconduct of another person; if so, you or the dependent may have a claim against the person for payment of the medical bills. Jefferson-Pilot will be subrogated to the right of recovery you or your dependent has against that person. You or the dependent will be required to reimburse Jefferson-Pilot out of the recovery made from the other person or his or her insurance company by way of judgment, settlement, or otherwise.

“Only that portion of the recovery made for medical expenses will be subject to subrogation or reimbursement. For the purpose of this provision, 1/3 of the net recovery made shall be deemed to be the portion of the recovery made for medical expenses. Jefferson-Pilot’s right of subrogation or reimbursement will not exceed the amount of benefits paid by Jefferson-Pilot.

“ ‘Net Recovery’ is defined as follows: The recovery you or your dependent makes less attorney’s fees and expenses incurred in making the recovery. . . .” “ ‘Reimbursement’ means repayment to Jefferson-Pilot for benefits paid.”

Fraker’s insurance contract, like Duncan’s, does not expressly state whether Fraker’s incomplete compensation would or would not constitute a limitation on the reimbursement provision. Jefferson-Pilot nevertheless claims that the formula reconciles the competing interests of the insured and the insurance company by attributing only one-third of the net recovery to medical expenses, and that this compromise, different from the “unconditional priority’ the insurance company sought in Duncan, establishes a clearer and enforceable order of priorities between the insurance company and an undercompensated insured.

Jefferson-Pilot’s argument misapprehends Duncan. If the provision in Duncan, which required the insured to place all proceeds in trust and to reimburse the insurance company for all payments made, does not clearly address what results if the insured is not fully compensated, then certainly a provision that ignores whether the insured has been made whole and arbitrarily apportions one-third to the insurance company and two-thirds to the insured does not. Neither provision articulates that the subrogation rights will obtain even when the insured is not fully compensated.

If an insurer intends to contract for reimbursement from a less-than-completely-compensated insured, then under the public policy judicially established in Duncan, the company must expressly so provide in the insurance contract. The reason is that it is asserting a priority over its insured when one or the other must go unpaid to some extent.

Jefferson-Pilot’s formula could result in the insurer being reimbursed all of the medical expenses (if they are one-third of the total net recovery) and leave its insured with less than full recovery for the balance of damages. This disserves the rationale for the complete compensation rule, which rationale is articulated in Duncan. Jefferson-Pilot cannot expect that the insured or the court will read between the lines of the policy. “[T]he absence of an express provision must be strictly construed against [the insurance company] and in accordance with the reasonable expectations of [the lay insured].” Regardless of whether the formula provision for reimbursement comports with the rationale of the wholly compensated rule, the Supreme Court has created a bright line test for determining whether an insurance policy provides for reimbursement before its insured is fully compensated. The requirement is that there be an express provision that the rule does not apply. If it is expressly provided in the policy, the insured will be alerted to the fully compensated rule and its non-applicability, which decreases the insurer’s risk and increases the insured’s.

Decided September 17, 1998.

Fain, Major & Wiley, Gene A. Major, Kim M. Jackson, for appellant.

Bobby B. Terry, Gary W. Smith, for appellee.

Whether the insurer will be entitled to reimbursement in the future, after all of Fraker’s claims are resolved, remains open. The court award of $98,750 to Fraker and zero to Jefferson-Pilot was not error.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

        Duncan v. Integon Gen. Ins. Co., 267 Ga. 646 (482 SE2d 325) (1997).

       Appellant likens this case to Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 (373 SE2d 813) (1988), but there is no suggestion in that case that Shook had not been fully compensated by the settlement with defendant’s insurer.

       Supra.

       267 Ga. at 646. See Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 334 (494 SE2d 29) (1997) (“Georgia public policy [is] that an insurer cannot seek subrogation unless and until its insured has been completely compensated for his or her losses”) (citing Duncan). See Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123) (1996); Nasco, Inc. v. Gimbert, 239 Ga. 675, 676 (2) (238 SE2d 368) (1977).

       Ga. L. 1997, p. 668, § 1.

        Blaylock v. Ga. Mut. Ins. Co., 239 Ga. 462, 463 (238 SE2d 105) (1977); Ga. Const. of 1983, Art. I, Sec. I, Par. X; OCGA § 1-3-5.

       267 Ga. at 646.

       Id.

       Id.

       267 Ga. at 647.

       Id.

         Id.

       Id. at 648. See Chemin v. State Farm Mut. Auto. Ins. Co., 226 Ga. App. 702, 704, n. 2 (487 SE2d 638) (1997).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1783.
    McCANT v. THE STATE.
    (506 SE2d 917)
   Johnson, Presiding Judge.

A jury found Joe Lewis McCant guilty of two counts of theft by taking. McCant appeals from the conviction entered on the jury’s verdict, and we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Greg Barnett, a Zone Assets Protection Analyst for Taco Bell, was asked by Dave Dannunzio, Taco Bell’s Office Market Manager, to review the financial data from one of Taco Bell’s stores because the store was issuing excessive refunds. Barnett reviewed the store documents and realized the store had a problem with refunds and that there was a high probability that theft was occurring. The store had a refund percentage 12 times higher than the standard for Taco Bell stores. Review of the business summaries and transaction histories also showed that during the night shift, the store experienced negative sales, meaning it was giving more money to customers in refunds than it was actually receiving from customers in sales.

Manager approval is needed to issue a refund, and McCant was the shift manager on duty over 90 percent of the time when the excessive refunds and negative sales occurred. The evidence revealed that McCant was the manager on duty July 26-29,1995. The refunds on those four days were $217, $223, $232, and $250. Between July 30 and August 1, 1995, days McCant did not work, the refunds were $0, $5.21, and $2.51.

Barnett determined the refunds were fraudulent and estimated that Taco Bell’s loss totaled over $3,300. The jury heard evidence that during a meeting with Barnett, McCant admitted he took approximately $5,000 from the store by processing fraudulent refunds and that he used the money to pay his bills. He informed Barnett that he began by taking only $10 or $20 at a time, but later began taking between $50 and $200 at a time. McCant told Barnett he would process a large refund at one time by entering 20 burritos, 20 tacos, and so forth, hit the refund key, and take the money for his own personal use. This practice was confirmed by Taco Bell’s documents, which showed that on July 27, 1995, during McCant’s shift, there was one refund transaction for $157. McCant also admitted to several Taco Bell managers that he took $5,000 from Taco Bell. When asked to make a written statement, McCant refused because he was on probation. He told Dannunzio he would make a written statement only if Taco Bell agreed not to press charges. At trial, McCant denied telling any of these people that he took money from Taco Bell.

1. McCant claims the evidence was insufficient to support the jury’s verdict because the state failed to provide corroboration of his confession as required by OCGA § 24-3-53. We do not agree. “A conviction may be had on a confession although corroborated only by proof of the corpus delicti. The corroborating evidence or circumstances need not connect the defendant definitely with the perpetration of the offense. Corroboration in any material particular satisfies the requirements of the law.” (Citations and punctuation omitted.) Goswick v. State, 201 Ga. App. 799, 800 (412 SE2d 293) (1991). The jury must determine the amount of evidence necessary to corroborate a confession. McCloud v. State, 210 Ga. App. 69 (1) (435 SE2d 281) (1993).

In the present case, Barnett’s testimony that Taco Bell lost over $3,000 due to fraudulent refunds established the corpus delicti. Witness testimony and documentary evidence that McCant was shift manager during each of the times the store experienced excessive refunds and negative sales and that the shift manager had to approve all refunds provided sufficient corroboration of McCant’s statements to Taco Bell employees. This evidence was sufficient for a rational trier of fact to find McCant guilty beyond a reasonable doubt of theft by taking under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Bigham v. State, 222 Ga. App. 353 (474 SE2d 254) (1996); Goswick, supra.

2. McCant next contends the trial court’s charge on the law of confessions was incomplete and failed to provide the jury with the proper guidelines for determining guilt or innocence. Specifically, McCant contends the trial court failed to instruct the jury that (1) before using his statement, the jury must find it was corroborated by proof of the corpus delicti; and (2) proof beyond a reasonable doubt that a crime has been committed may, but does not necessarily, constitute supporting evidence of the defendant’s statement. We disagree.

We note initially that McCant did not make an oral or written request that the jury be charged as to either of these matters of law. In general, if a defendant fails to request a charge in writing, the trial court does not commit error in failing to give the charge. Slaughter v. State, 227 Ga. App. 739, 741 (2) (490 SE2d 399) (1997) (no error in not giving charge regarding number of witnesses required and effect of corroboration when not requested in writing). However, relying on OCGA § 5-5-24 (c) and Carswell v. State, 179 Ga. App. 56 (345 SE2d 66) (1986), McCant urges this Court to find that the trial court committed a substantial error which was harmful as a matter of law.

At McCant’s request, the trial court charged the jury on OCGA § 24-3-53: “All admissions shall be scanned with care and confessions of guilt shall be received with great caution. A confession alone uncorroborated by any other evidence, shall not justify a conviction.” The trial court also charged the jury regarding the presumption of innocence and the state’s burden of proving all the elements of the crime.

Considering the jury instructions as a whole, which we must do (Douglas v. State, 228 Ga. App. 368, 370 (4) (491 SE2d 821) (1997)), we find that the trial court did not err by failing to charge the jury as alleged. See Barnes v. State, 260 Ga. 398, 399 (3) (396 SE2d 207) (1990) (no error in not giving oral request to charge regarding the state’s burden of proving the corpus delicti). The charges as a whole adequately covered the applicable principles of law, and there was no substantial error in the charge which was harmful as a matter of law. Id.

McCant’s assertion in his appellate brief that trial counsel was ineffective due to his failure to request complete instructions in this area is waived. This ground of ineffectiveness of trial counsel was not raised in McCant’s amended motion for new trial. A defendant has an obligation to raise all allegations of ineffective assistance of counsel at the earliest practicable moment and any allegation not raised is waived. Hayes v. State, 262 Ga. 881, 882 (2) (426 SE2d 886) (1993).

3. McCant claims he was denied effective assistance of counsel because trial counsel failed to call several witnesses. To establish ineffectiveness of trial counsel, McCant must show both that trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Bradford v. State, 221 Ga. App. 232, 234 (3) (471 SE2d 248) (1996). McCant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. See Powell v. State, 198 Ga. App. 509, 510 (1) (402 SE2d 108) (1991). In addition, the trial court’s determination that McCant was afforded effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. See Bradford, supra at 235.

At the hearing on the motion for new trial, trial counsel testified that he interviewed the potential witnesses that McCant wanted to call at trial. After interviewing McCant’s wife, trial counsel determined that the only testimony she could offer was that she and McCant were behind on their bills and that she had medical expenses. Trial counsel did not call McCant’s wife because her testimony would have provided a motive for McCant to steal money. Trial counsel also interviewed Taco Bell employees who McCant wanted to call to testify that people other than managers could authorize and process refunds. Based on interviews with the potential witnesses he could locate, trial counsel determined that none of the witnesses would support McCant’s contention that non-managers processed refunds and none would be able to challenge the expected testimony from the state’s witnesses. Trial counsel did not call these witnesses because, based on his interviews with them, their testimony would show that McCant had the opportunity to steal money from Taco Bell and was not following proper procedures for counting the cash drawers.

Trial counsel’s decision not to call the potential witnesses was a tactical decision based upon sound reasoning. “The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. The fact that appellant and his present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.” (Citations and punctuation omitted.) Id. In addition, McCant has failed to demonstrate a reasonable probability that, but for trial counsel’s failure to call the witnesses, the outcome of the trial would have been different. This enumeration lacks merit.

Decided September 17, 1998.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Maria Murcier-Ashley, Noah H. Pines, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A98A2008.
    TEACHERS’ RETIREMENT SYSTEM OF THE STATE OF GEORGIA v. FOREHAND.
    (506 SE2d 913)
   Eldridge, Judge.

The Teachers’ Retirement System of the State of Georgia (“TRS”) sought to suspend the retirement benefits of David Arthur Forehand (“Forehand”), who had retired under the system in 1991 after 30 years of service, and to recoup benefits that it contended had been improperly paid to Forehand in 1996,1997, and 1998, when TRS contended Forehand had been reinstated to service. See OCGA § 47-3-127. At the time of Forehand’s retirement, he had served the last three years of service as the superintendent of the Crisp County schools.

In May 1996, the Mitchell County Board of Education (“Board”) contacted Forehand to work as a consultant, because the Mitchell County School Superintendent was resigning and leaving. The Board wanted to hire Forehand as a consultant to come in and hold the system together while the Board sought to employ a superintendent. Neither the Board nor Forehand wanted to create the relationship of employer-employee; therefore, the written contract between the Board and Forehand was worded as an independent contractor relationship so as to permit Forehand to act as a consultant to supply the function and duties of a school superintendent for the county.

TRS contended that Forehand had been restored to service within the meaning of OCGA § 47-3-127 (a), because he had acted in the same role as school superintendent when he retired and he had resumed such role for the Board. Forehand contended that he was a bona fide consultant and that the Board did not control the time, manner, and method of his work, but only had the right to assure compliance with the performance of the results as required under the contract.

Forehand brought an action seeking a temporary and permanent injunction to prevent TRS from suspending his retirement benefits and seeking to collect the alleged wrongly paid benefits. TRS answered and counterclaimed that Forehand had breached the statutory retirement contract by returning to service while seeking continued benefits. After an evidentiary hearing, on March 23, 1998, the Crisp County Superior Court made findings of fact and conclusions of law in granting a permanent injunction against TRS and found that the Board had no right to control the time, manner, and method of Forehand’s employment and that he had no duty to notify TRS or make an election under OCGA § 47-3-127. TRS appeals.

The sole enumeration of error is “whether it was error for the Superior Court of Crisp County to conclude that Appellee/Plaintiff provided services as Superintendent of the Mitchell County Board of Education as an ‘independent contractor’ thereby enjoining the Appellant Teachers’ Retirement System from suspending the payment of his retirement benefits pursuant to OCGA § 47-3-127 and dismissing its counterclaim for repayment of retirement benefits received while employed as a teacher[.]”

Under the “clearly erroneous” standard of review of the findings of fact of the trial court, the trial court must be affirmed. “Findings of fact made by a trial court in a nonjury trial may not be set aside unless they are clearly erroneous. [Cit.]” Swafford v. Bradford, 225 Ga. App. 486, 488 (1) (484 SE2d 300) (1997); accord Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 282 (1) (466 SE2d 855) (1996). “Under the ‘clearly erroneous’ test, we will not disturb the trial court’s factual findings if there is any evidence to sustain them. [Cit.] Furthermore, we must construe the evidence to uphold the judgment. [Cit.]” (Punctuation omitted.) Morrow v. Vineville United Methodist Church, 227 Ga. App. 313, 317 (2) (489 SE2d 310) (1997).

Since this is an appeal from the grant of a permanent injunction, then “the standard of review is whether or not the trial court manifestly abused its discretion. [Cit.]” Caring Hands, Inc. v. Dept. of Human Resources, 214 Ga. App. 853, 857 (1) (449 SE2d 354) (1994); accord Slaven v. City of Buford, 257 Ga. 100 (355 SE2d 663) (1987). In an equity case, the trial judge has no discretion to exercise absent a material conflict in the evidence. See Slaven v. City of Buford, supra. Thus, the trial judge manifestly abuses his discretion when he grants an injunction adverse to a party without any evidence to support such judgment and contrary to the law and equity; such judgment “is so clearly wrong as to amount to an abuse of discretion.” (Citations and punctuation omitted.) McClure v. Davidson, 258 Ga. 706, 708 (2) (373 SE2d 617) (1988), quoting Cohen v. Glass, 225 Ga. 646, 647 (171 SE2d 118) (1969). Applying such standard, the trial court did not manifestly abuse its discretion with the following evidence supporting such judgment.

The Board, as well as other school systems of this state, routinely engages independent contractors to perform consulting services. Forehand and the Board entered into a seven-month, independent contractor-consulting contract for him to perform duties as if he were the superintendent. The contract expressly prohibited Forehand from applying for the position of school superintendent, while the Board sought to fill the position. As an independent contractor under the contract, Forehand had to pay and return all taxes, state and federal. The contract excluded those fringe benefits that an appointed superintendent of schools was entitled to receive for medical insurance coverage or premiums. The contract provided that the Board could terminate the contract for disability or sickness, because it was a personal performance contract. Since the contract performance required nearly daily presence, then it had provisions for absence for sickness or other reasons, but the Board had no right to control the time of Forehand’s performance. Further, as to sick leave, Forehand was treated differently than employees who had sick leave records kept by the payroll clerk; a separate log as to sick days was kept for Forehand to assist in determining performance. If no sick days were taken, then Forehand could not accrue such days like Board employees. The contract gave Forehand no tenure. Nowhere in the contract, either expressed or implied, did the Board retain the right to control the time, manner, and method of Forehand’s performance of the contract.

After two-and-one-half months of unsuccessful search for a school superintendent, on August 13, 1996, the Board entered into a similar six-month contract to follow the first contract. This contract provided for an automobile and for a period when Forehand was not expected to be present, denominated “vacation time.” Such “vacation time” was contracted for by Forehand so that there would be periods of time when he was not expected to perform work on the contract, so that he could perform his other consulting work for numerous school systems, both inside and outside Georgia. The Board contracted with Forehand with the full knowledge and expectation that he would continue to conduct his profession of consulting, which would result in absences.

On February 11, 1997, after another six months of search without finding a superintendent, the Board entered into a third contract with Forehand for an additional twelve months on substantially the same terms. Forehand made several contacts with prospective candidates and provided other assistance to find a permanent superintendent. The Board finally found a superintendent in January 1998. Forehand terminated his contract with the Board by March 1, 1998.

On October 30,1997, the trial court conducted a lengthy hearing. Forehand testified that he at no time intended to enter into an employment relationship with the Board or to have the Board control the time, manner, and method in which he performed the contract. It was Forehand’s understanding from the Board and his intent that neither “the Board of Education or anybody else on the face of the planet [had] the right to direct or change the methods of [his] performance of the work.” No one ever told Forehand what time to work or how many hours to work. Likewise, no one told Forehand how to perform his contract. As an independent contractor, Forehand paid his own taxes and self-employed Social Security contributions without withholdings by the Board; had no unemployment coverage; and had no medical coverage. The Board reported its payments to Forehand to the IRS on Form 1099 rather than Form W-2. Forehand never took the oath of office as school superintendent. See OCGA § 20-2-1. Forehand had only one contract for twelve months; OCGA § 20-2-101 (a) requires the school superintendent to have a contract of not less than one nor more than three years. Forehand was not required to nor did he provide an annual superintendent’s report to the Board, and he was not evaluated by the Board as to his performance. The Board never gave Forehand written instructions or directives as to the performance of his contract. No one supervised the performance of the contract or evaluated his work. No one had the right under the consulting contract to exercise control over Forehand’s work. Forehand signed contracts for the Board not as superintendent, but only as acting superintendent. He did not act as the alter ego of the Board.

In applying the control test to determine if the relationship between the Board and Forehand was employer-employee or Board-independent contractor, the right, either expressed or implied, to control the time, manner, and method of employment must be considered. Gray v. Vaughn, 217 Ga. App. 872, 874-875 (2) (460 SE2d 86) (1995); N. S. Co. v. Cincinnati Ins. Co., 203 Ga. App. 347, 348 (416 SE2d 859) (1992). “The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.” (Citations and punctuation omitted.) RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990). “The right to control the time of doing the job means the right to control the hours of work.” Id. Inherent in employment of a school system superintendent employee is greater independence, discretion, and absence of supervision than any other Board employment position. Therefore, such employment appears more like the relationship of independent contractor than it does regular employment.

Decided September 17, 1998.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Susan L. Rutherford, Senior Assistant Attorneys General, for appellant.

Davis, Gregory, Christy, Forehand & Maniklal, David A. Forehand, Jr., for appellee.

“Where the contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.” (Citations and punctuation omitted.) McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982); accord Goins v. Tucker, 227 Ga. App. 524, 528 (4) (489 SE2d 857) (1997) (use of other factors to determine relationship). While factors other than control of time, manner, and method of work do not legally define the relationship of employer-employee versus Board-independent contractor, in this case, such factors demonstrate a legitimate intent by the parties to create the relationship of Board-independent contractor, i.e., economic reality. Clearly, such factors were not in the best economic interest of Forehand: (1) paying the employer’s as well as employee’s contribution to Social Security; (2) paying estimated state and federal income tax; (3) not having unemployment compensation; (4) not having workers’ compensation; (5) not having medical insurance; (6) not accruing sick leave; (7) not having tenure or the job security of a multi-year contract; and (8) terminability of the contract upon disability or illness. See generally Goins v. Tucker, supra at 528-529. In the real world of business, these economic savings induce employers to outplace work with independent contractors.

Accordingly, the evidence construed most favorably to uphold the judgment clearly supports the decision of the Superior Court of Crisp County. See Morrow, supra at 317.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Since vested rights are involved and there has been no clear expression by the legislature that Ga. L. 1998, p. 620, § 1 (OCGA § 47-3-127 (e)) should be applied retroactively, then the law existing in 1996 and 1997, when the benefits were paid by TRS, governs.


author: Ruffin, Judge.

text:
    A98A1653.
    PATEL v. GUPTA.
    (507 SE2d 763)
   Ruffin, Judge.

Narinda Gupta sued Vasant Patel and Kirit Patel for fraud and breach of contract arising out of the sale of a convenience store. Vasant Patel failed to answer and now appeals the trial court’s denial of his motion to open default. For reasons which follow, we vacate the order denying Patel’s motion and remand this case to the trial court.

The record shows that one of Gupta’s associates provided Patel with an unsigned “Complaint for Damages” that was not filed with the court during the first week of November 1997. On November 19, 1997, a sheriff served Patel with a complaint that was filed with the clerk’s office earlier that day. On November 20, 1997, Patel left the country for a trip to India which was scheduled to last until January 16, 1998. Patel claims that Gupta was aware of his planned trip. Patel did not take steps to answer the complaint because he thought it was merely another threat and did not realize it was a “real lawsuit.” Patel, a native of India, also asserts that he has “extreme problems speaking English and more problematic is actually understanding English.” [sic]

Gupta filed a motion for entry of final judgment on January 14, 1998. On January 28, 1998, Gupta approached Patel and told him that he owed Gupta $170,000 because Patel was in default. Patel consulted an attorney the next day and filed a motion to open his default on January 30, 1998. Patel paid the costs of the lawsuit and submitted an affidavit in support of his motion. He also verified under oath the facts contained in his motion and supporting brief. In these pleadings, Patel offered to plead instanter and announced ready for trial. He also asserted facts in support of his defenses to the complaint.

The trial court granted Gupta’s motion for entry of judgment and denied Patel’s motion to open the default. In its order, the trial court stated: “The Court has some discretion in opening default when a Defendant has neglected to answer a Complaint filed against him and offers a plausible excuse. A default, prior to judgment, may be opened if the Defendant has made out an extremely good case for excusable neglect. Cobb County Fair Assoc. v. Boyle, 143 Ga. App. 754. . . . We are not convinced today that there is excusable neglect on the part of Defendants.” Patel appeals, asserting that (1) the trial court improperly imposed a heightened standard for opening default and (2) the trial court abused its discretion when it denied the motion to open his default.

1. OCGA § 9-11-55 (b) provides that “[a]t any time before final judgment, the court, in its discretion, upon payment of costs, may allow the default to be opened for providential cause preventing the filing of required pleadings or for excusable neglect or where the judge, from all the facts, shall determine that a proper case has been made for the default to be opened, on terms to be fixed by the court. In order to allow the default to be thus opened, the showing shall be made under oath, shall set up a meritorious defense, shall offer to plead instanter, and shall announce ready to proceed with the trial.” (Emphasis supplied.)

“ ‘The question of whether to open a default on one of the three grounds rests within the discretion of the trial judge. The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law.’” (Emphasis supplied.) Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 328 (1) (444 SE2d 578) (1994).

In this case, the record shows that the trial court apparently considered only one of the three grounds for opening default, excusable neglect. Moreover, the trial court required Patel to make out “an extremely good case for excusable neglect.” This is not the correct standard. For purposes of OCGA § 9-11-55 (b), “ ‘[ejxcusable neglect has been defined as referring to where there is a reasonable excuse for failing to answer.’ [Cit.]” (Emphasis in original.) Spikes v. Holloway, 212 Ga. App. 653, 655 (442 SE2d 471) (1994).

It is well-settled that a statute which confers discretion upon a judge to decide a particular question also imposes a correlative duty to exercise that discretion when the occasion arises. Harrington v. Frye, 116 Ga. App. 755, 756 (159 SE2d 84) (1967); American Liberty Ins. Co. v. Sanders, 120 Ga. App. 202, 210 (3) (170 SE2d 249) (1969), rev’d on other grounds, Sanders v. American Liberty Ins. Co., 225 Ga. 796 (171 SE2d 539) (1969). “ ‘[I]f the appellate court is unable to ascertain whether the (lower) court has exercised its discretion, the appropriate course for the appellate court. . . is to vacate the judgment and remand the case to the (lower) court for further proceedings consistent with its statutory duty.’ [Cit.]” Padilla v. Melendez, 228 Ga. App. 460, 463 (2) (491 SE2d 905) (1997). See also Mathes v. Mathes, 267 Ga. 845, 846 (483 SE2d 573) (1997). In this case, it appears the trial court may not have properly exercised its discretion because it imposed a more stringent standard for showing excusable neglect and did not analyze the other two grounds for opening a default. As a result, we vacate the trial court’s order denying Patel’s motion to open default and remand this case so that the trial court may, in accordance with this opinion, exercise its discretion and enter a new order. See Padilla, supra; Mathes, supra.

2. Patel’s remaining enumeration of error is rendered moot by our holding in Division 1.

Judgment vacated and case remanded.

Pope, P. J., and Beasley, J., concur.

Decided August 21, 1998

Reconsideration denied September 18, 1998.

Wade C. Hoyt III, for appellant.

James A. Robbins, Jr., Weldon T. Hay good, Jr., for appellee.

       Gupta’s claims against Kirit Patel are not a part of this appeal.


text:
    A98A1008.
    TELFAIR v. THE STATE.
    (507 SE2d 195)
   Ruffin, Judge.

A jury found Trinity Telfair guilty of armed robbery. The same jury acquitted his co-defendant, Eloise Burley. Telfair appeals, asserting there is insufficient evidence to support his conviction. Specifically, Telfair contends that his conviction must be reversed because it is based upon the uncorroborated testimony of an alleged accomplice. For reasons which follow, we affirm.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465, 466 (1) (494 SE2d 257) (1997).

Viewed in this light, the record shows that on November 22, 1995, two men dressed as women entered the Strawberry Patch store. They were wearing dark-colored wigs, make-up and large, hoop earrings. The owner of the store, Faye Gatliff, testified that the men told a salesperson, Evelyn Dismuke, that “this was a holdup and one of them put a gun to her head. . . .” They then instructed all the people in the store to move behind the jewelry counters while the two robbers removed gold and sterling silver jewelry from the counters. The robbers exited the store through its back door. Gatliff testified that the retail value of the stolen jewelry was approximately $75,000. She did not identify the robbers during her testimony and was never asked to do so.

Paige Whittington, a Strawberry Patch employee who was working at the time of the robbery, also testified for the State. During her testimony, Whittington identified Telfair as one of the robbers. Specifically, Whittington explained that while reviewing mug shots at the police station after the robbery, she recognized one of the robbers. Although she could not independently identify Telfair as one of the robbers at trial, she testified that she was able to positively identify him as one of the robbers in a previous court proceeding.

One of the robbers, Mark Freeman, also testified for the State in exchange for a lighter sentence recommendation from the State. Freeman explained that the robbery was planned while Burley, Tel-fair and Freeman were riding in a car driven by Ronald Craig. In order to prepare for the robbery, Freeman, Telfair, Burley and Craig went to the home of Craig’s grandmother where Freeman and Telfair changed their appearance to look like women. Burley put make-up on Freeman and Telfair and also helped them put on wigs.

The four then drove to the Strawberry Patch and dropped Burley off in front of the store. Burley went inside the store to “look the place over” and returned to the car. Craig then drove to the home of one of Burley’s relatives and Burley went inside. Craig, Telfair and Freeman left Burley at this location and went back to the Strawberry Patch. Craig dropped off Telfair and Freeman in the store’s parking lot and they agreed to meet on a side street after the robbery.

According to Freeman, he was armed with a meat cleaver and Telfair was armed with a “little handgun” when they entered the store. When Freeman observed Telfair “grab one of the employees and pull the gun out,” Freeman told everyone in the store to lie down on the floor. Freeman and Telfair made all of the store employees lie down inside the jewelry counter area as they took all the jewelry from the showcase. They left the store through the back door, met Craig on the side street and drove away.

Telfair contends this evidence cannot support his conviction because there was insufficient corroboration of his accomplice’s testimony. See OCGA § 24-4-8. We disagree. “ ‘[T]he rule that a felony conviction is not to be had on the uncorroborated testimony of an accomplice applies only when the accomplice is the sole witness upon whose testimony the State relies. (Cits.)’ . . . McDaniel v. State, 158 Ga. App. 320 (279 SE2d 762) (1981). In the instant case, the State introduced evidence other than the testimony of [Telfair’s accomplice], including evidence of the victim’s pre-trial identification of [Telfair] as one of [the robbers].” Morris v. State, 204 Ga. App. 437, 438 (2) (419 SE2d 733) (1992). “Slight evidence of a defendant’s identity and participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony. [Cit.]” Terry v. State, 224 Ga. App. 157, 159 (1) (b) (480 SE2d 193) (1996).

We find the evidence in this case sufficient to sustain Telfair’s conviction and corroborate his accomplice’s testimony. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Terry, supra; Morris, supra.

Decided September 18, 1998.

Layne & Layne, Alan P. Layne, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A98A1283.
    CHEEKS v. THE STATE.
    (507 SE2d 204)
   Beasley, Judge.

Following the denial of his motion for new trial, Cheeks appeals his conviction of trafficking in cocaine. OCGA § 16-13-31 (a).

1. He enumerates as error the court’s charge to the jury that it was authorized to convict him of trafficking based on a finding of either actual or constructive possession, in that the indictment only charged him with actual possession.

As originally enacted, the cocaine trafficking statute (now OCGA § 16-13-31 (a) (1)) required the State to prove that the defendant was in actual possession of cocaine in order to secure a conviction for trafficking. A statutory amendment was enacted in 1988 deleting the actual possession requirement. Under the current version of the statute, a defendant may be convicted of trafficking in cocaine based on a finding of either actual or constructive possession.

“ ‘[I]t is error to charge the jury that a crime may be committed by alternative methods [under the statute], when the indictment charges it was committed by one specific method. If there is a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, then the conviction is defective because of a fatal variance between the proof at trial and the indictment returned by the grand jury.’ [Cit.]”

The evidence showed that in 1994 a Hall County drug unit received a tip that on a specified date Cheeks would be transporting crack cocaine from Atlanta to Hall County. Officers were given a description of the car he would be driving, the time of his arrival in the county, the residential address to which he was going, and the route by which he would get there. The car belonged to Cheeks’ girlfriend, who told police that Cheeks was driving it with her permission. After a surveillance team observed a car fitting the basic description being driven along the stated route at the time in question, they proceeded to the address given and observed the vehicle parked in an adjacent driveway. Agents encountered Cheeks walking from the car to the residence. In his hand was a set of three keys; the key which unlocked the door to the car was pressed between his thumb and forefinger. In the car’s glove compartment, one of the agents found 69 grams of cocaine. This agent testified that the warmth of the car indicated it had been driven recently. In a statement given by Cheeks to another agent, he admitted that he and other named individuals had used the car to obtain and transport the crack cocaine and that he intended to turn the cocaine over to one or two other individuals who were expected at the scene several minutes after he was apprehended by police.

This evidence indisputably showed that immediately before his arrest Cheeks knowingly had direct physical control over the cocaine (actual possession) and not merely the power and intention to exercise dominion or control (constructive possession). Under these circumstances, the court’s charge to the jury on constructive possession did not constitute harmful error. “[T]he evidence was that appellant was in ‘actual’ possession ... of the cocaine while he drove the car. . . . So, [he] could not have been harmed by [the instruction] that he could be convicted upon mere constructive possession.”

Analogous is Dukes v. State, where the jury charge recited the entire statutory definition of a crime but the indictment did not. As to one of the defendant’s convictions, the Supreme Court held that the absence of a remedial instruction did not create a reasonable possibility that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment, because there was no evidence establishing that the defendant committed the crime in such manner.

Boatwright v. State, relied on by Cheeks, is distinguishable. The evidence there showed actual possession of the cocaine, not by the defendant, but rather by his alleged co-conspirator. Boatwright is part of a line of decisions of this Court holding that a charge that the jury was authorized to convict the defendant of trafficking in cocaine based on a finding of constructive possession was “substantially in error and harmful as a matter of law,” when the cocaine trafficking statute required the State to prove actual possession. These cases were decided under the authority of Lockwood v. State, supra. In view of the 1988 amendment to the cocaine trafficking statute, Lockwood is no longer controlling.

2. Cheeks next contends he was deprived of his right to a fair and impartial jury because jurors four and ten were excused on the basis that they were related to him within the prohibited degree of consanguinity when in fact they were not.

During voir dire, jurors four, ten, and forty-six responded affirmatively when the members of the panel were asked whether anyone was related to Cheeks. Juror four informed the court that she had always been told that her mother and Cheeks’ mother were second cousins. This would make Cheeks and the juror third cousins. According to juror ten, his mother and Cheeks’ mother were sisters, making him and Cheeks first cousins. Juror forty-six revealed that Cheeks was married to his sister, so Cheeks was his brother-in-law.

The judge stated that it appeared to him that jurors ten and forty-six should be stricken for cause and that he was inclined to excuse juror four as well, but that he would entertain arguments from counsel if they felt any of these jurors were not legally disqualified. Both the prosecuting attorney and defense counsel agreed that all three jurors were disqualified for cause. After defense counsel noted that his only concern was that this would result in removal of one-third of the African-Americans from a panel that was only 20 percent African-American, the jurors were excused without objection. The trial court’s removal of jurors four and ten was effectively waived.

3. Cheeks’ final complaint is that defense counsel was constitutionally ineffective because he failed to object to the trial court’s excusal of these jurors.

“OCGA § 15-12-163 requires that a juror ‘shall be set aside for cause’ if‘he is so near of kin to the prosecutor, the accused, or the victim as to disqualify him by law from serving on the jury.’. . . ‘All trial jurors in the courts of this state shall be disqualified to act or serve in any case or matter when such jurors are related by consanguinity or affinity to any party interested in the result of the case or matter within the sixth degree as computed according to the civil law. . . .’ OCGA § 15-12-135 (a). ‘The civil law is computed by counting from one of the persons up to the common ancestor, and then down again to the other person.’ [Cit.]” “At the common law and the canon law the degrees between collaterals are found by taking the number from the common ancestor to either, or the more remote, of them.” Under the civil law, “ ‘[t]he correct method of computation is to count the “steps” or generations from one ancestor to the next counting each “step” or generation as one degree, and not to count each ancestor as a degree. If the sum is within the sixth degree, the juror is disqualified to serve in the matter. . . .’ [Cit.]” Consequently, under the civil law formula, first cousins are related within the fourth degree of consanguinity, second cousins come within the sixth degree, and third cousins are eighth-degree relations.

Therefore, counsel could have successfully objected to the removal of juror four, as third cousins are not within the legally prohibited degree of relationship. Based on the facts stated by juror ten at trial, an objection to his removal would not have succeeded, as first cousins are legally disqualified. At the hearing on Cheeks’ motion for new trial, he presented evidence contradicting the basis for juror ten’s representation that he and Cheeks were first cousins, i.e., that his mother and Cheeks’ mother were sisters. Cheeks’ mother testified that she is an only child. Cheeks testified he told defense counsel during voir dire that he did not know juror ten. In his testimony, counsel stated that Cheeks may have told him this, but he was probably more concerned with other matters.

When substandard professional representation is alleged, a critical factual inquiry relates to whether “ The omissions charged to trial counsel resulted from inadequate preparation rather than from unwise choices of trial tactics and strategy. Generally, the burden is on the defendant claiming ineffective (assistance) of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. . . .’ [Cit.]”

“ A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. A conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cit.]”

Although counsel’s failure to object to the removal of at least one of the jurors can be deemed a legal error, Cheeks did not make the second showing required in order to establish a claim of ineffective assistance.

Under Georgia law it is well established that “ ‘[a] party to a lawsuit has no vested interest in having any particular juror to serve; he is entitled only to a legal and impartial jury. The erroneous allowing of a challenge for cause affords no ground of complaint if a competent and unbiased jury is finally selected.’ ” Therefore, the removal of a juror or jurors based on erroneous determinations of legal disqualification did not lead to a trial the result of which is suspect. Nor can we conclude that the result of the trial would have been different had the two stricken jurors been allowed to serve.

Decided September 18, 1998.

Summer & Summer, Chandelle T. Summer, for appellant.

Lydia J. Sartain, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

Batson v. Kentucky and its progeny hold that a criminal defendant has a constitutional right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria and an individual juror has the right not to be excluded from a jury on account of race. No violation of these rights appears because the jurors in this case were struck for racially neutral reasons.

The trial court’s determination that Cheeks was not denied effective assistance of counsel is not clearly erroneous.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       See Ga. L. 1980, p. 432, § 1; Lockwood v. State, 257 Ga. 796 (364 SE2d 574) (1988).

        McCrief v. State, 260 Ga. 87 (390 SE2d 32) (1990), aff’g 193 Ga. App. 667, 669 (3) (388 SE2d 859) (1989).

       See Sanchez v. State, 197 Ga. App. 470, 473 (3) (398 SE2d 740) (1990) (physical precedent only).

        Blige v. State, 208 Ga. App. 851, 852 (2) (432 SE2d 574) (1993) (harmful error), aff’d on other grounds 264 Ga. 166 (441 SE2d 752) (1994); see Levin v. State, 222 Ga. App. 123, 126 (6) (473 SE2d 582) (1996) (harmful error); compare Hill v. State, 228 Ga. App. 362, 364 (2) (492 SE2d 5) (1997) (harmless error).

       See generally Lockwood v. State, supra.

        Romano v. State, 193 Ga. App. 682, 683 (2) (388 SE2d 757) (1989).

       265 Ga. 422 (457 SE2d 556) (1995).

       193 Ga. App. 141, 143 (5) (387 SE2d 386) (1989).

       See OCGA § 5-5-24 (c).

       See Riley v. State, 191 Ga. App. 781, 782 (2) (383 SE2d 172) (1989) (the case relied on in Boatwright) and cits.

        See McCrief v. State, supra.

       See Webster’s Third New International Dictionary, p. 523, defining “cousin” as follows: “a relative descended from one’s grandparent or from a more remote ancestor by two or more steps and in a different line . . . <the children of first cousins are second cousins to each other, the children of second cousins are third cousins, etc.> <the child of one’s first cousin is one’s first cousin once removed, the latter’s child is one’s first cousin twice removed, etc., though those are often called also second and third cousins respectively;»”

        Blankenship v. State, 258 Ga. 43 (2) (365 SE2d 265) (1988).

        Howard v. State, 191 Ga. App. 418, 419 (2) (382 SE2d 159) (1989).

       Webster’s, supra at p. 482, defining “consanguinity.”

        Howard v. State, supra.

       23 AmJur2d 792-793, Descent and Distribution, § 55 (1983).

       Id.

       The following diagram shows how third cousins are related in the eighth degree:
      _Common Ancestors_ Grandparents of 1st cousins [great-grandparents of 3rd cousins] Step 4 Step 5 Parents of 1st cousins Parents of 1st cousins [great-grandparents of 3rd cousins] [great-grandparents of 3rd cousins] _Step 3_ _Step 6_ 1st cousins 1st cousins [grandparents of 3rd cousins] [grandparents of 3rd cousins] Step 2 Step 7 2nd cousins 2nd cousins [parents of 3rd cousins] [parents of 3rd cousins] Step 1 _Step 8_ 3rd cousins 3rd cousins
      Application of the civil law formula has proved troublesome through the years. In Smith v. State, 2 Ga. App. 574 (59 SE 311) (1907), the court correctly determined that second cousins once removed are related in the seventh degree. Smith v. State, 62 Ga. App. 494 (8 SE2d 663) (1940), and Williams v. State, 206 Ga. 107, 108 (2) (55 SE2d 589) (1949), correctly concluded that where the common ancestors of the respective parties were their great-grandparents, the parties were related within the sixth degree, but incorrectly stated that this resulted in their being third cousins rather than second cousins. Eaton v. Grindle, 236 Ga. 324, 325 (223 SE2d 670) (1976), relied on Smith v. State, supra, 62 Ga. App. 494, in holding that the common ancestor of third cousins was their great-grandfather, thereby resulting in their being related in the sixth degree. In Howard v. State, supra, we cited Eaton as authority for the conclusion that third cousins are related in the sixth degree.

       See id.

       (Emphasis in original; physical precedent only.) Adefenwa v. State, 221 Ga. App. 429 (471 SE2d 900) (1996); see Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Bell v. State, 226 Ga. App. 271, 274 (7) (486 SE2d 422) (1997).

        Wells v. State, 261 Ga. 282, 283 (2) (404 SE2d 106) (1991); Jones v. State, 139 Ga. App. 824 (2) (229 SE2d 789) (1976); compare Eaton v, Grindle, supra.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).

       See Marshall v. State, 266 Ga. 304 (2) (466 SE2d 567) (1996).


author: Smith, Judge.

text:
    A98A1406.
    WOOTEN v. THE STATE.
    (507 SE2d 202)
   Smith, Judge.

J. W. Wooten was indicted on charges of DUI and operating a motor vehicle after having been declared a habitual violator, a felony. OCGA § 40-5-58 (c). His first trial resulted in a hung jury, and a mistrial was declared. After a second jury trial, he was convicted on both counts. His motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Wooten raises the general grounds, arguing specifically that the evidence was insufficient to support his conviction because no direct evidence was presented to show that he had been driving the vehicle and the circumstantial evidence did not exclude every other reasonable hypothesis. We do not agree.

The evidence showed that Officer Richard Godfrey of the Clayton County Police Department was dispatched to investigate a possible accident in the early morning hours of April 27, 1996. It is true that the State presented no direct evidence that Wooten had driven the vehicle. But Godfrey testified that when he arrived, he saw a red station wagon stuck in a ditch. Wooten was behind the wheel, the car was running, and the right rear wheel was spinning. It appeared to Godfrey that Wooten was trying to extricate the car from the ditch by “rocking” it. Wooten was the sole occupant of the car, and no other person was at the scene. Godfrey testified he was sure he saw Wooten attempting to drive the car out of the ditch. Wooten told Godfrey his “buddy” had driven the car into the ditch, but did not provide the name, address, or telephone number of the “buddy.”

Wooten’s clothing was in disarray, and he was unstable on his feet and swaying. Godfrey noticed “a very strong odor of alcoholic beverage.” Wooten told Godfrey he had consumed “several beers,” and Godfrey noticed that Wooten’s speech was slurred. Wooten failed three field sobriety tests, and Godfrey placed him under arrest. After being read the implied consent warnings he refused the State-administered tests for alcohol. During Godfrey’s investigation, Wooten did not produce a driver’s license and stated that his license had been suspended. Godfrey ran a computer check, and he determined that Wooten had been declared a habitual violator.

First, regardless of whether Wooten had driven to the location where he was found by Godfrey, the evidence presented showed clearly that while under the influence of alcohol, Wooten was “in actual physical control of” a vehicle that Godfrey observed was being “rocked” back and forth. That conduct alone violated OCGA § 40-6-391 (a) (1).

Second, DUI may be shown by circumstantial evidence. Walsh v. State, 220 Ga. App. 514, 516 (469 SE2d 526) (1996). It is not necessary that the circumstantial evidence exclude every other hypothesis except that of guilt, but only reasonable inferences and hypotheses. It was for the jury to decide whether all reasonable hypotheses have been excluded. Cantrell v. State, 230 Ga. App. 693, 695 (498 SE2d 90) (1998); Moore v. State, 186 Ga. App. 381, 383 (1) (367 SE2d 239) (1988). The jury was not required to believe Wooten’s testimony that another person had been driving. Matters of witness credibility are entirely within the jury’s purview. Walsh, supra at 516. The evidence presented was sufficient.

2. Wooten asserts that the trial court erred in failing to grant his motion for new trial based upon juror misconduct. At the hearing on the motion, evidence was presented that a bailiff informed the jury foreman during the jury’s deliberations that a previous trial had ended in a mistrial. The foreman informed others on the jury, but several jurors testified at the hearing that this information did not influence their verdict. One juror testified that it was a factor in her being able to reach a decision in this case but not the only factor. That juror also testified, however, that had she not known about the mistrial she probably still would have reached a verdict. The trial court found that the jury did receive this improper information, but that although it may have spurred the jury’s efforts to reach a verdict and caused them to scrutinize the evidence more carefully, it did not warrant a new trial.

Decided September 18, 1998

Patricia A. Buttaro, for appellant.

Unauthorized communication to the jury does not vitiate an otherwise valid verdict unless it prejudices the defendant. Dudley v. State, 179 Ga. App. 252, 255 (3) (345 SE2d 888) (1986). The State has the burden of showing that the communication did not prejudice the defendant. Martin v. State, 242 Ga. 699, 701 (251 SE2d 240) (1978). In this case, the State carried its burden. The information imparted to the jurors in this case differs from that in the cases cited by Wooten. It was not extrajudicial evidence that bore on Wooten’s guilt or innocence or involved the applicable law, and it could not be used by the jurors to become an unsworn witness against Wooten in violation of the Sixth Amendment. See Moore v. State, 179 Ga. App. 125, 126 (345 SE2d 631) (1986). The trial court did not abuse its discretion in ruling that the communication did not warrant a new trial.

3. Wooten contends the trial court erred when it denied him the opportunity to have a transcript of his first trial prepared at county expense so he could prepare for this trial. He claims this case is identical to Miller v. State, 231 Ga. App. 869 (501 SE2d 42) (1998), in which the defendant was represented by the same counsel representing Wooten. But Wooten did not raise this issue below, and we cannot consider it for the first time on appeal. The record on appeal shows nothing suggesting that he asked for such a transcript and was refused.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Robert E. Keller, District Attorney, Nancy T Bircher, Assistant District Attorney, for appellee.

       We note that the circumstances of this case also appear to be distinguished from those present in Miller, where we concluded that the defendant was denied a free transcript in violation of Britt v. North Carolina, 404 U. S. 226 (92 SC 431, 30 LE2d 400) (1971). In this case, Wooten’s counsel acknowledges that she made no written request for a transcript of the first trial, but admits she received a transcript of the first trial before the second trial began. Moreover, in Miller, the defendant received only a partial transcript that included only the testimony of defense witnesses. Id. at 869-870 (1). In its brief in this case, the State indicates that unlike the transcript in Miller, the transcript ordered by the State and given to defense counsel contained the testimony of both prosecution and defense witnesses.


text:
    A98A1614.
    PEEPLES v. THE STATE.
    (507 SE2d 197)
   Ruffin, Judge.

A jury found Spencer Peeples guilty of possessing cocaine and obstructing an officer. Peeples appeals from the judgment of conviction and the denial of his motion for new trial. We affirm.

1. Peeples asserts that the trial court erred in denying his motion to suppress. We disagree. In our review of the trial court’s order denying Peeples’ motion to suppress, we construe the evidence most favorably to uphold the court’s ruling. Mao v. State, 222 Ga. App. 482, 483 (474 SE2d 679) (1996). It is the trial court’s duty to resolve conflicts in the evidence, and its findings of credibility and fact will not be disturbed on appeal unless they are clearly erroneous. Id.

Viewed in this light, the evidence shows that at approximately 8:00 on the evening of his arrest, Peeples was arguing with three men over the use of a pay telephone located in front of a convenience store. Scott Gibson, who witnessed the argument, testified that Peeples wanted “to use the telephone or something, and the other three fellows were using it and didn’t want to give the phone up.” Peeples, who had a bottle of beer, became upset, shook the beer bottle and sprayed the men with his beer. According to Gibson, a fight ensued and “[t]he three males proceeded to whip Mr. Peeples.” After knocking Peeples to the ground the three men attempted to leave, but Peeples jumped up, screamed that he would “whoop [their] ass,” and attacked the men again. Gibson testified that the three men attempted to leave four or five times and each time Peeples got up and attacked them. All three men eventually retreated to their car and drove away.

A few minutes later, Cobb County Police officers arrived on the scene where they found Peeples, covered in blood, pacing in front of the store. While one officer spoke to Gibson about what he had witnessed, a second officer, Matthew Nerbonne, questioned Peeples about the incident. Officer Nerbonne testified that although he was just trying to figure out what was going on because Peeples was injured, Peeples became very disorderly and argumentative. When the two officers attempted to discuss the situation amongst themselves, Peeples started yelling and interfering.

Shortly thereafter, a radio transmission reported that there was an arrest warrant for Peeples in Cobb County. Officer Nerbonne testified that when they told Peeples he was under arrest, “he started resisting.” Nerbonne described the resistance as follows: Peeples was “pulling away . . . trying to get away. ... I wrestled with him away from the store and pushed him up against the car, at which time we tried to handcuff him. He continued to resist, pulling his arms away.” Three officers eventually restrained and handcuffed Peeples. When the officers searched Peeples after his arrest, they found a pipe containing cocaine residue in his pocket and another pipe, also containing cocaine residue, in a duffle bag he was carrying. Peeples moved to suppress evidence of the cocaine on the ground that the search followed an arrest unsupported by probable cause. The transcript shows, however, that “[a]t the moment the arrest was made, [Officer Nerbonne] knew that a valid bench warrant had been issued for [Peeples’] arrest. [Cit.] ‘The radio transmission, which confirmed the outstanding warrant[ ], established the necessary probable cause to arrest [Peeples]. (Cit.)’ [Cit.]” Harvey v. State, 266 Ga. 671, 672 (469 SE2d 176) (1996). Accordingly, we find no merit in Peeples’ contention that the officers did not have probable cause to arrest him. See id.

In this same enumeration of error, Peeples asserts that the trial court erred in denying his demurrer to the indictment because the indictment alleged that he was “struggling with the officers” and that such conduct does not constitute an offense under Georgia law. “When, as here, an appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted in the single enumeration.” (Citations and punctuation omitted.) Norris v. State, 227 Ga. App. 616, 619 (3) (489 SE2d 875) (1997). We decline to address this additional assertion. See id.

2. Peeples asserts that the trial court erred in denying his motion for a continuance to review a patrol car videotape of his arrest. The record shows that Peeples requested discovery of any videotapes in the State’s possession. The State did not produce any tapes, and during the pretrial motions hearing Peeples again inquired about the existence of such a tape. When the prosecutor responded that he did not know if one existed, the trial judge instructed him to check with the arresting officers. The following morning, while the court was still hearing pretrial motions, the prosecutor stated that the arresting officer found a tape of the arrest. The court recessed proceedings while Peeples and his trial counsel viewed the tape. After viewing the tape, Peeples argued that the State’s failure to produce the tape was a discovery violation and that the tape contained exculpatory evidence. Peeples requested a continuance until “later on in the week” to determine whether portions of the tape should be redacted because they brought his character into evidence. After a lunch recess, during which time the court gave Peeples another opportunity to review the tape, Peeples argued that unless he had more time to study the tape, he could not incorporate the evidence on the tape into his opening statement or effectively cross-examine the State’s witnesses. The trial court again recessed the proceedings and gave Peeples another opportunity to view the tape.

Following this latest recess, the court announced that although it was proceeding with the trial that afternoon, it would not start the following day until 1:30 to give Peeples more time to review the tape. The court further barred the State from introducing the tape into evidence. The State also acquiesced in Peeples’ request that the State’s witnesses remain available for cross-examination throughout the trial.

Two days later, after the State presented its case, Peeples moved the court to allow him to introduce a redacted version of the tape. The trial court denied the motion, stating: “I think you have a lot to use for cross-examination if you choose to do so. I’m going to just let the original tape be played as it is and not redact any portions.” Peeples rested his case without introducing the tape.

The remedies for the State’s failure to timely provide Peeples with a copy of the tape are provided under OCGA § 17-16-6. That Code section authorizes the trial court to “ ‘order the state to permit the discovery or inspection . . . grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed ... , or may enter such other order as it deems just under the circumstances.’ ” “In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial. [Cit.]” Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997). “While the appellate courts have a duty to ensure that defendants are not brought to trial with such haste that the defense is prejudiced, we also have a duty to prevent defendants from delaying proceedings by frivolous motions and requests. ‘For this reason, (appellate courts) will find the denial of requests for continuance in situations such as this to be error only with great reluctance.’ [Cit.]” Livingston v. State, 266 Ga. 501, 503 (1) (467 SE2d 886) (1996).

In this case, though we do not believe that Peeples’ motion for continuance was frivolous, we also conclude the trial court did not abuse its discretion by refusing to continue the trial of the case. It is unclear from the record exactly how Peeples was prejudiced by the trial court’s denial of his motion for a continuance; he has not shown what he would have accomplished if he was provided more time. Moreover, the trial court accommodated most of Peeples’ concerns by allowing him some additional time to review the tape, prohibiting the State from introducing the tape and allowing Peeples to introduce the tape at his discretion. Likewise, the State addressed Peeples’ concerns regarding his cross-examination of the State’s witnesses by making all of its witnesses available for cross-examination throughout the trial.

As with his first enumeration of error, Peeples asserted error here which he did not enumerate as error. We decline to address these additional assertions. See Norris, supra.

3. Peeples asserts his trial counsel was ineffective because he failed to introduce the videotape into evidence. “ ‘The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ Strickland v. Washington, 466 U. S. 668, 686 (104 SC 2052, 80 LE2d 674) (1984). First, [Peeples] must prove that trial counsel’s performance was deficient. Second, he must show that but for trial counsel’s deficiencies, there is a reasonable probability that the results of the trial would have been different.” Jones v. State, 263 Ga. 835, 837 (2) (439 SE2d 645) (1994). “A trial court’s determination that a defendant was not denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. [Cit.]” Jones v. State, 230 Ga. App. 65, 66 (495 SE2d 327) (1997).

In this case, Peeples has not shown that trial counsel’s performance was deficient. During the motion for new trial hearing, trial counsel testified that he did not introduce the tape into evidence because “you can clearly hear Mr. Peeples saying something like I’m on parole. Either he was saying that or the police were saying that. . . . And although it looked pretty good in some respects, it also opened some issues that I just didn’t want — in combination with the way he was acting and his temper not looking too good on the tape, the fact that he admits that he’s on parole or the radio says he’s on parole, I just didn’t think it was useful. That’s why I wanted it redacted; that part redacted.”

It is clear from this testimony that trial counsel’s decision to not introduce the tape into evidence was part of his trial strategy. See Luallen v. State, 266 Ga. 174 (3) (b) (465 SE2d 672) (1996). Under these circumstances, we find that the trial court’s determination that Peeples received effective assistance of counsel was not clearly erroneous. See id.; Jones, 230 Ga. App. at 66.

4. Peeples asserts that the trial court erred in admitting into evidence testimony that there was an outstanding warrant for his arrest because the testimony impermissibly placed his character into evidence. We disagree.

“The reference to the ‘warrant’ was part of the circumstances surrounding [Peeples’] arrest. All circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. Where evidence may incidentally put character in issue or be prejudicial it may be admitted if otherwise relevant. The warrant, as a circumstance of the arrest, was certainly relevant to the issues on trial as required by Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982).” (Citations and punctuation omitted.) Coney v. State, 198 Ga. App. 272, 273-274 (3) (401 SE2d 304) (1991).

5. Peeples asserts that the trial court erred in reopening the evidence after his motion for directed verdict to allow the State to introduce additional testimony. The transcript shows the State introduced the testimony of the state crime lab forensic chemist who tested the substance found in the pipes as part of its case. During his examination of the chemist, the prosecutor established that the chemist tested the substance, but failed to elicit any testimony concerning the results of the test. At the close of the State’s case, Peeples moved for a directed verdict on the ground that the State failed to establish that the substance was cocaine. The trial court subsequently granted the State’s motion to reopen its case, whereupon the chemist testified that the substance was cocaine.

“ Whether to reopen the evidence is a matter which rests within the sound discretion of the trial court. [Cit.] A trial court’s ruling in this regard will not be reversed in the absence of an abuse of discretion. [Cit.] Whether there has been a reversible abuse of discretion requires a consideration of the totality of the circumstances. [Cit.]’ [Cit.]” Jackson v. State, 230 Ga. App. 292, 296 (7) (496 SE2d 315) (1998).

Under the circumstances of this case, we do not find such an abuse of discretion. The record shows that the indictment identified the forensic chemist as a witness for the State and that approximately six months before trial the State furnished Peeples with a copy of the chemist’s report which identified the substance as cocaine. Peeples’ ability to present a defense was clearly not prejudiced by the court’s action. See Gooch v. State, 155 Ga. App. 708 (1) (272 SE2d 572) (1980). Accordingly, we find that the trial court did not abuse its discretion by reopening the evidence. See id.

6. Finally, Peeples asserts that the evidence was insufficient to sustain his conviction. We disagree. As we concluded in Division 1, evidence of the cocaine was properly admitted by the trial court, and the evidence supporting Peeples’ conviction for obstructing an officer was sufficient for any rational trier of fact to find him guilty beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hardwick v. State, 210 Ga. App. 468 (1) (436 SE2d 676) (1993).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided September 18, 1998.

John R. Greco, for appellant.

Benjamin F. Smith, Jr., District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Assistant District Attorneys, for appellee.