text:
    A98A1087.
    JOHNSON v. THE STATE.
    (506 SE2d 234)
   Andrews, Chief Judge.

Christopher Alan Johnson appeals from the denial of his motion for new trial after being convicted of theft by taking (motor vehicle). He contends the court erred in admitting his statement that he had just stolen the vehicle and that evidence of his character was improperly admitted.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that Dr. Hester had left his red soft top Jeep CJ5 at Kennesaw Auto for service. When Hough, the owner of Kennesaw Auto, left those premises Saturday, September 14, 1996, around 2:00 p.m., the Jeep was sitting on his lot and he had the key to it in his pocket. He had planned to test drive it but did not due to bad weather.

Kennesaw Officer Tolbert was patrolling in her marked patrol car at approximately 5:50 a.m. September 15 when she saw a red Jeep soft top rapidly exit the parking lot of Kennesaw Auto without stopping or slowing before entering the roadway. The Jeep was accelerating rapidly and fishtailing as it headed northbound on Main Street. Officer Tolbert called for backup and began following the Jeep because of prior incidents of people breaking into cars at Kennesaw Auto and stealing radios.

The Jeep began signaling a right turn onto Knightsbridge Road about a half-mile from the auto center, and Officer Tolbert activated her blue lights. The Jeep immediately veered back onto Main Street and accelerated, causing the driver to have trouble controlling it. Officer Tolbert activated her siren and pursued the jeep another .7 mile until the Jeep struck the right curb, blowing both passenger side tires, crossed into the southbound lane, went into the ditch and flipped several times. The Jeep came to rest on its wheels facing southbound and was still slowing as Johnson was ejected from the driver’s side door, landing face down on the pavement. The second occupant, Harmon, was thrown out of the passenger’s side door, suffering a broken leg and arm. Johnson’s injuries appeared more serious, including internal injuries resulting in bleeding from his nose and ears. Officer Tolbert opined that these injuries were caused by Johnson’s colliding with the steering wheel in the accident.

Johnson did not move after being ejected, while Harmon stood and made a motion that indicated to the officer that he was going to do something. Officer Tolbert handcuffed Harmon for a moment, believing he was preparing to flee, but when he complained of pain in his arm and she realized he was not going to flee, she released him. She testified that she cuffed him “for my safety. I had no idea what his intentions were. He was not under arrest; however, I was conducting an investigation.”

As she was handcuffing Harmon, Officer Riley arrived. Johnson apparently recognized him, asking “Riley, is that you?” Officer Riley recognized Johnson, and Johnson asked him for help. Officer Riley advised that the ambulance was on the way and asked Johnson why he had run. Johnson answered that they had just stolen the Jeep. Asked who was driving, Johnson said he was. Medical personnel arrived, and both Johnson and Harmon were taken to the hospital where they were later charged.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Johnson’s first enumeration is that the trial court erred in denying his motion to suppress evidence of his statements to Officer Riley, arguing that Miranda warnings were required.

“In Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), the United States Supreme Court held that a person taken into official police custody or otherwise deprived by police of their freedom of action in any significant way must be advised of their constitutional rights. In its decision, however, the Supreme Court failed to set forth what was meant by ‘in custody.’ But, it later addressed this issue in Berkemer v. McCarty, 468 U. S. 420 (104 SC 3138, 82 LE2d 317) (1984).

“In that case, the Supreme Court formulated an objective test to determine whether a detainee is ‘in custody.’ That test is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. Id. at 442. The Supreme Court also held that the safeguards prescribed by Miranda become applicable only after a detainee’s ‘freedom of action is curtailed to a “degree associated with formal arrest.” (Cit.)’ Id. at 440. The rationale behind the holding is that although an ordinary traffic stop curtails the freedom of action of the detained motorist and imposes some pressures on the detainee to answer questions, such pressures do not sufficiently impair the detainee’s exercise of his privilege against self-incrimination so as to require that he be advised of his constitutional rights.” State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996). See also Hardin v. State, 269 Ga. 1, 3 (2) (a) (494 SE2d 647) (1998).

The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous. Hendrix v. State, 230 Ga. App. 604, 605 (1) (497 SE2d 236) (1998).

Here, Johnson, who had known Officer Riley for two years, testified that he got hit in the head, had substantial chest injuries, and had no recollection of the events after the wreck or the next four weeks. Johnson was on the ground bleeding and not moving when he asked Officer Riley for help. It was obvious to the officers that he was seriously injured, and medical assistance had already been summoned when Officer Riley asked him why he had run. After Officer Riley told Johnson the EMTs were on the way, one of the officers asked who was driving and Johnson responded he was.

Johnson argues that he was not free to leave because he had been pursued by Officer Tolbert with activated lights and siren, he attempted to elude the officer, reaching speeds of 70 mph in a 35-mph zone, and wrecked. Additionally, Harmon had been handcuffed, although only momentarily, and Johnson was physically unable to leave the scene.

There is no question that, under the circumstances, Officer Tolbert had sufficient basis upon which to make a Terry stop of the car prior to the wreck to investigate her suspicions regarding Kennesaw Auto. Once the wreck occurred, however, the officers were faced with also investigating the accident, and that is the primary context for our consideration of the Miranda custody issue.

In Morrissette v. State, 229 Ga. App. 420, 424 (2) (b) (494 SE2d 8) (1997), Morrissette lost control and flipped his vehicle, injuring his passengers. When Officer Nix responded to the accident, Morrissette identified himself as the driver and the officer noticed a strong odor of alcohol. He decided to call an officer more experienced in DUIs and placed Morrissette in the rear of his patrol car for approximately five minutes to await that officer. The door handles had been removed from the rear doors, making them difficult to open from inside.

There, this Court concluded that, even though Morrissette had no apparent way of leaving the scene and had a legal duty to remain at the accident scene, see OCGA § 40-6-270 (a), he had not been arrested for Miranda purposes by such initial investigative steps even though momentarily detained in the rear of the police car. See also Gray v. State, 222 Ga. App. 626, 632 (4) (476 SE2d 12) (1996); Dupont v. State, 204 Ga. App. 262, 263 (2) (418 SE2d 803) (1992); Daugherty v. State, 182 Ga. App. 730 (356 SE2d 902) (1987).

Nor does the fact that someone has become the focus of an investigation, even to the point where police have probable cause for an arrest, trigger Miranda. Morrissette, supra; McConville v. State, 228 Ga. App. 463, 465 (1) (491 SE2d 900) (1997); Dupont, supra. Therefore, that the officers had probable cause regarding the numerous traffic offenses committed by Johnson did not convert the situation to a custodial one requiring Miranda warnings before inquiry was made concerning the accident, including who had been driving the car and why Johnson had fled from the officer.

The “reasonable person” in this situation “does not mean a person with a guilty conscience who knows as soon as they see the blue light that they will be arrested for matters known to them, but [which] are not as yet known to the police. [Cit.]” Brown v. State, 223 Ga. App. 364, 367 (477 SE2d 623) (1996).

Although Johnson may have known he was subject to arrest for auto theft, the officers did not when they began their accident investigation. We conclude, as did the trial court, that a reasonable person under these circumstances would not have believed his freedom of action had been more than temporarily curtailed by the accident investigation and, therefore, he was not in custody for Miranda purposes.

State v. Wintker, 223 Ga. App. 65 (476 SE2d 835) (1996), relied upon by Johnson, is factually distinguishable. There, the driver of the car had already been arrested for speeding, driving with a suspended license, and marijuana possession and placed in the rear of the police car when Wintker, the daughter of the car’s owner and a passenger, was placed in the rear with him after refusing consent to a search of the car. The remaining two passengers were allowed to stand outside the car while the officers awaited a drug dog, which alerted on the car, and a suitcase containing drugs was located. It was then that Wintker’s statement that the suitcase was hers, made in direct response to an officer’s inquiry at this point, occurred, resulting in a finding that she was entitled to Miranda warnings.

3. Johnson also complains that his character was improperly placed into evidence by the State when he was asked on cross-examination why he left school.

During direct examination, Johnson testified that he went through the tenth grade, last attending school in 1992. On cross-examination, he was asked why he quit school and replied “[r]un away from home.” Then, the following exchange occurred: “Q. I’m sorry. You will have to speak up. A. I ran away from home. Q. How many times? A. Several times. I couldn’t tell you exactly how many.” At this point, trial counsel stated “[y]our Honor, relevance.”

Decided August 25, 1998.

David C. Butler, for appellant.

Benjamin F. Smith, Jr., District Attorney, Debra H. Bernes, W. Thomas Weathers III, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Pretermitting the fact that Johnson arguably opened the door to this area of inquiry and the objection made was untimely, Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997), the argument made here was not part of the objection voiced below and will not be considered here for the first time. Thomas v. State, 224 Ga. App. 816 (1) (482 SE2d 472) (1997).

Judgment affirmed.

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

       Since the motion sought to prevent Officer Riley’s testimony regarding Johnson’s statement, the motion was properly one in limine. McClain v. State, 226 Ga. App. 714, 715 (1) (487 SE2d 471) (1997).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       Although Cobb County officers prepared the official accident report, they were not yet on the scene.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1125.
    KITTLER v. THE STATE.
    (506 SE2d 231)
   Johnson, Presiding Judge.

Following a bench trial, the trial judge found John Daniel Kittler guilty of possession of cocaine with intent to distribute, simple possession of LSD, and possession of marijuana with intent to distribute. Kittler appeals, and we affirm.

1. Kittler contends that the Chief Judge of the Magistrate Court of Cobb County, who presided over the case, lacked authority to act in this case pursuant to Hicks v. State, 231 Ga. App. 552 (499 SE2d 341) (1998). However, the record reveals that Kittler has waived this issue on appeal by waiting until after his trial was completed to raise the issue. Id.; Troncone v. Troncone, 261 Ga. 662, 663 (3) (409 SE2d 516) (1991); Bennett v. Jones, 218 Ga. App. 714, 715 (1) (463 SE2d 158) (1995).

2. Kittler next contends the evidence was insufficient to support his conviction for possession of cocaine with intent to distribute. Viewed in a light most favorable to support the verdict, the evidence shows that an agent with the Cobb County police received information from a previous arrestee that “John” was selling drugs from his girlfriend’s apartment. Two agents proceeded to the apartment, identified themselves, and informed the girlfriend of the complaint. The girlfriend gave the agents permission to search the apartment. When the agents located a powdery substance, the girlfriend identified the substance as cocaine.

After she was given Miranda warnings, the girlfriend named Kittler as her source and agreed to help the agents set up a drug buy from Kittler. She paged Kittler, agreed to place a recording device in her ear, and held the phone so that one of the agents could also listen to the conversation when Kittler returned her page. When Kittler called, the girlfriend told him she needed “eight,” which means an eight ball and is approximately three grams of cocaine. The girlfriend then said that Kittler would be arriving in approximately 15 minutes and described Kittler to the agents as a black male of a particular height and weight driving a 1993 red Ford Mustang. She also told the agents Kittler would be carrying a weapon.

The agents waited in the parking lot, and approximately 15 minutes later a red Mustang pulled up and a man matching Kittler’s description got out of the car and walked to the door. The agents approached him, and Kittler turned to look at them after one of them said “John.” The agents identified themselves and patted him down for their safety. During the pat-down, the agents discovered three bags of cocaine in KLttler’s left shirt pocket and one bag of marijuana in his right shirt pocket.

Kittler was placed under arrest, read his Miranda warnings, and placed in the agent’s car. During questioning, Kittler stated that he “might have a little marijuana at home.” He then asked for an attorney and questioning ceased. The agents requested and received a search warrant for Kittler’s house. The agents discovered marijuana, cocaine and 12 hits of LSD in the house. They also found a revolver and a semi-automatic weapon.

This evidence was sufficient to support the trial judge’s finding that Kittler was guilty of possession of cocaine with intent to distribute. While no bright line rule exists regarding the amount or type of evidence sufficient to support a conviction for possession of a controlled substance with intent to distribute, the evidence in the present case shows that the agents were informed by two individuals that Kittler sold drugs, and Kittler arrived at his girlfriend’s apartment with three grams of cocaine shortly after she called and told him she needed three grams for someone. In addition, the packaging of the cocaine supports an inference of intent to distribute in that it was packaged in three separate bags.

“Possession with intent to distribute can be proven by circumstantial evidence. A conviction on circumstantial evidence is authorized if the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. Whether this burden has been met is a question for the [factfinder].” (Citations and punctuation omitted.) Tillman v. State, 217 Ga. App. 269, 270 (1) (457 SE2d 228) (1995). The evidence was sufficient to support Kittler’s conviction for possession of cocaine with intent to distribute. See id.; Dean v. State, 211 Ga. App. 28 (1) (438 SE2d 380) (1993).

3. Kittler maintains the trial court erred in denying his motion to suppress drugs found on his person since the search of his person was not reasonable and exceeded the scope of any warrant that could have been authorized by a magistrate. We disagree.

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.” (Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

In the present case, the agents were justified in stopping Kittler. “To justify a brief Terry stop under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) [(1968)], an officer must have an articulable, reasonable suspicion that the law is being violated. The reasons justifying an investigatory stop need not rise to the level of probable cause, but must be more than a mere hunch and must not be arbitrary or harassing.” (Citation and punctuation omitted.) Hinson v. State, 229 Ga. App. 840, 842 (1) (c) (494 SE2d 693) (1997). Here, the agents were informed that “John” was selling drugs at his girlfriend’s apartment. The officers proceeded to the apartment, discovered drugs after the girlfriend consented to a search of the apartment, and were informed by the girlfriend that Kittler provided the drugs. The girlfriend then paged Kittler and allowed the agents to listen and tape the phone call where she requested Kittler to bring three grams of cocaine to her apartment. She described Kittler and the car he would be driving, stated that Kittler would be at her apartment in approximately 15 minutes, and told the agents he would be carrying a weapon. Fifteen minutes later, a car and suspect matching her description arrived at the apartment, and the suspect responded when one of the agents called his name. These facts gave the agents a reasonable, articulable suspicion that Kittler was engaged in selling drugs. See Bright v. State, 265 Ga. 265, 278-279 (5) (a) (455 SE2d 37) (1995). That one or both of the agents may have had their gun drawn does not transform the stop into an arrest under the circumstances. Id.

Once Kittler was stopped, the agents were justified in searching Kittler for weapons based on his girlfriend’s statement that he would be carrying a weapon. “A policeman making a reasonable investigatory stop may conduct a limited protective search for concealed weapons when he has reason to believe that the suspect is armed and dangerous, and if, during the search contraband is turned up, it may be used as evidence in a prosecution for its possession.” (Citation and punctuation omitted.) Hinson, supra at 841 (1) (b). The trial court did not err in denying Kittler’s motion to suppress the drugs found on his person.

Decided August 25, 1998.

Daniel E. Gavrin, for appellant.

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

Judgment affirmed.

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


author: Smith, Judge.

text:
    A98A1267.
    In the Interest of D. L. N., a child.
    (506 SE2d 403)
   Smith, Judge.

This appeal arises out of the juvenile court’s termination of John Nealy Nelms’s parental rights. Sharon Lea Streetman, the natural mother of D. L. N., filed a petition in juvenile court to terminate Nelms’s parental rights, alleging as ground for termination Nelms’s failure to provide child support for D. L. N. as required by a divorce decree. Following a hearing, the juvenile court found among other things that D. L. N. was deprived and that the deprivation was likely to continue. Nelms’s motion for new trial was denied, and he appeals, contending that the juvenile court did not have jurisdiction over the action and that the evidence did not support the court’s finding that D. L. N. was deprived. We find no error and affirm.

1. We first consider Nelms’s contention that the juvenile court did not have jurisdiction over this matter. The relevant jurisdictional statute is OCGA § 15-11-5 (a) (2) (C). At the time the juvenile court entered its order, that statute gave juvenile courts exclusive jurisdiction over cases involving “termination of the legal parent-child relationship, other than that in connection with adoption proceedings . . ., in which the superior courts shall have exclusive jurisdiction.” Citing In the Interest of B. G. D., 224 Ga. App. 124 (479 SE2d 439) (1996), Nelms argues that this action is one “in connection with” an adoption and that the superior court therefore had exclusive jurisdiction.

We first note that OCGA § 15-11-5 (a) (2) (C) was amended after the juvenile court entered its order. As amended, the statute gives superior courts concurrent jurisdiction over cases “in connection with adoption.” Ga. L. 1997, p. 1681, § 1. This Court must apply the law as it exists at the time of our review. In the Interest of L. L. B., 256 Ga. 768 (353 SE2d 507) (1987). For that reason, even if this case were “in connection with adoption,” the superior court did not have exclusive jurisdiction over it. Second, even if the prior version of the statute were applicable, this case is distinguished from B. G. D. In that case, a child placement agency brought an action in juvenile court to terminate the putative father’s rights for the purpose of placing the child for adoption. Id. at 125. We concluded that because the purpose of the termination hearing was to facilitate adoption, the proceeding was “ ‘in connection with’ ” an adoption, and the superior court had exclusive jurisdiction over the action. Id.

Although Streetman testified on cross-examination that she and her current husband had discussed his adopting D. L. N. and acknowledged that the proceeding would “facilitate” a future adoption, B. G. D. is not controlling. It is undisputed that no adoption proceeding was pending when Streetman filed the termination petition and that she had not even contacted an attorney to initiate an adoption action. She also testified that they planned to “wait until about a year or a year and a half” to seek adoption. And on redirect examination, Streetman acknowledged that in addition to bringing the petition to facilitate a future adoption, she filed the proceeding to “extinguish the connection between . . . Nelms and his son who neither of them know each other.”

Streetman’s contemplation of possible adoption did not automatically render this proceeding one “in connection with” an adoption. Unlike B. G. D., in which the termination petition was clearly filed by an adoption agency for the purpose of placing the child for adoption, the petition here is silent concerning adoption. More importantly, the record supports the conclusion that it was filed for another purpose as well: “extinguishing” Nelms’s legal relationship with D. L. N. because Nelms had failed to provide for the child. We conclude that contemplation of future adoption was not “part and parcel” of the proceeding but was simply ancillary to the purpose of terminating Nelms’s parental rights. The juvenile court therefore properly exercised its jurisdiction. See generally In the Interest of C. D. C., 230 Ga. App. 237 (1) (495 SE2d 872) (1998) (jurisdiction in juvenile court upheld because no adoption proceeding in progress and action was “merely a termination of parental rights so that . . . the children may be placed for adoption at some time in the future”).

2. Nelms also challenges the juvenile court’s finding that D. L. N. was deprived. “The determination of deprivation and the decision to terminate parental rights based thereon is an exercise of discretion by the trial court and[,] if based upon evidence, will not be controlled by a reviewing court.” (Citations and punctuation omitted.) In the Interest of C. G. A, 204 Ga. App. 174, 175 (2) (418 SE2d 779) (1992). “On appeal, we must view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. We do not weigh the evidence and must defer to the trial judge as the factfinder.” (Citations and punctuation omitted.) In the Interest of K. A. C., 229 Ga. App. 254, 255 (3) (493 SE2d 645) (1997).

Decided August 25, 1998.

Jason R. Hasty, for appellant.

Terrence J. Paulk, James K. Knight, Jr., for appellee.

Viewing the evidence in favor of the juvenile court’s findings, we find no error. Nelms was required by the settlement agreement incorporated into his 1992 divorce decree to provide child support for D. L. N. in the amount of $60 per week or 17 percent of his weekly salary, whichever was higher. Undisputed evidence was presented that the last child support payment he made was in 1994, about two years before Streetman filed the petition to terminate parental rights. Nelms “did not offer any justifiable cause or other satisfactory explanation for his failure to provide financial support for his [child]. The juvenile court was well within its discretion to give great weight to the father’s failure to provide support in its decision to terminate his parental rights.” (Citation and punctuation omitted.) K. A. C., supra at 257. Additionally, Nelms had no contact, whether personally, by telephone, or by any form of correspondence, with D. L. N. since the child was 18 months old. D. L. N. was five years old at the time of the hearing. Streetman testified that neither she nor anyone else had kept Nelms from seeing D. L. N. This evidence further supports the juvenile court’s finding of deprivation. See generally id. (appellant admitted he had not paid child support in a year and had failed to visit with children); In the Interest of R. J. P., 222 Ga. App. 771, 772 (1) (476 SE2d 268) (1996) (failure to support or contact children evidence of continuing deprivation). Clear and convincing evidence of deprivation was presented to the juvenile court, and the trial court did not err in denying Nelms’s motion for new trial.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A98A0948.
    HARRIS v. THE STATE.
    (505 SE2d 49)
   Ruffin, Judge.

Sonell Harris was charged with aggravated assault, simple battery, theft by taking, possession of a firearm by a convicted felon and possession of a firearm during the commission of a crime, i.e., aggravated assault. A jury found Harris guilty on the theft by taking and possession of a firearm charges, but not guilty on the aggravated assault and battery charges. Harris appealed, asserting that he could not be found guilty of the possession of a firearm during the commission of a crime charge since he was not found guilty of aggravated assault. Harris additionally asserts that the evidence was insufficient to convict him of theft by taking, that the State impermissibly placed his character into evidence, and that he was denied effective assistance of counsel. For the following reasons, we affirm in part and reverse in part.

1. “ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a 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.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the evidence shows that Harris was acquainted with Kathy Sapp and Kim Lewis, who lived together in an apartment with their children. One evening at approximately 11:30 p.m., Harris went to their apartment and asked to borrow money.

Sapp testified at trial that during Harris’ uninvited visit, Lewis and Harris began arguing and both she and Lewis told Harris to leave their apartment. Sapp testified that Harris grabbed her and then Lewis. After much struggling with Harris to get him out of the apartment, Sapp said, Lewis retrieved a gun from her bedroom in an attempt to make Harris leave. But Harris continued arguing with Lewis and Sapp. At one point, all three began struggling for possession of the gun. Eventually, Harris got the gun and aimed it at both Lewis and Sapp. Sapp testified that Harris pulled the trigger four times while pointing it at Lewis and one time while pointing the gun at her. However, there was only one bullet in the gun, and the gun did not fire in these first five attempts. Sapp testified that when Harris pointed the gun at Lewis in an attempt to fire the gun a sixth time, Sapp grabbed Harris’ hand and attempted to push the gun away from Lewis’ direction. At that instant, the gun fired, hitting the bottom of a sofa. After the gun fired, Harris ran out of the apartment, carrying the gun, Sapp said.

Lewis testified, corroborating Sapp’s recollection of events. Lewis further testified that Harris slapped her in the face. Lewis stated that she owned the gun and that she did not give Harris permission to take it.

In support of the possession of a firearm by a convicted felon charge, the State introduced certified copies of Harris’ prior 1991 felony convictions.

(a) We find that the evidence was sufficient for any rational trier of fact to find Harris guilty of theft by taking and possession of a firearm by a convicted felon beyond a reasonable doubt. See Jackson v. Virginia, supra.

(b) Regarding the conviction for possession of a firearm during the commission of a crime, both Harris and the State agree that the holding in Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996), controls.

Similar to Harris’ charges in this case, Strong was charged with aggravated assault and possession of a firearm during the commission of a felony, i.e., aggravated assault. Strong was acquitted of the aggravated assault charges but found guilty of the firearm possession charge. We held that “[b]ecause the jury acquitted Strong of an essential element of the felony firearm charge, the aggravated assault charges upon which her felony firearms indictment was predicated, the jury’s verdict on the felony firearms charge is not merely inconsistent . . . , [but] it is mutually exclusive and therefore contrary to law. [Cit.]” Strong, supra at 434-435. We accordingly reversed Strong’s conviction as to the possession of a firearm charge. Id.

Here, Harris’ conviction of possession of a weapon during the commission of a felony has to stand or fall in conjunction with the underlying felony — the aggravated assault upon Lewis and Sapp. See Strong, supra. Since he was acquitted of the aggravated assault, we must reverse the possession of a firearm during the commission of a crime conviction. See id.

2. Harris asserts that the trial court erred in allowing Lewis and Sapp to testify regarding Harris’ drug use, which impermissibly placed his character into evidence.

Sapp testified that after Harris first entered the apartment, she and Lewis started “talking to him and telling him he needed to get his life together, and . . . stop using drugs and like that, because he had some white stuff around his nose.” Harris did not object to this testimony, and on cross-examination, defense counsel questioned Sapp regarding her conversation with Harris over his drug habit.

Lewis testified that she and Sapp had told Harris prior to the night of the incident not to come to their apartment because “[w]e knew he was dealing in drugs, he was on them, and so, we didn’t want that around . . . our kids.” She also said that while Harris was in their apartment that night, she and Sapp told him “to get off the drugs [and] get his life together. . . .” Harris did not object to these statements, and defense counsel asked Lewis on cross-examination whether Harris was intoxicated or under the influence of drugs on the night of the incident.

Finally, Harris, who testified on his own behalf at trial, admitted that either Lewis or Sapp had called him a “crack head.”

We conclude that Harris waived his right to assert this issue on appeal by failing to object to the statements at trial. “ ‘A party cannot during the trial ignore what he thinks to be an injustice, take his chances on a favorable verdict, and complain later.’ [Cit.]” Maxwell v. State, 170 Ga. App. 831, 835 (3) (318 SE2d 650) (1984). “As this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court. [Cit.]” Cheesman v. State, 230 Ga. App. 525, 526 (2) (497 SE2d 40) (1998). See also Lawson v. State, 224 Ga. App. 645, 646 (2) (481 SE2d 856) (1997).

Moreover, Harris contributed to any asserted error by introducing further evidence of his drug habit through his testimony and his attorney’s cross-examination of both Lewis and Sapp. Harris and his attorney opened the door for such testimony by their participation, and this coupled with their failure to object precludes Harris from raising the issue on appeal. See Reynolds v. State, 231 Ga. App. 33, 37 (5) (497 SE2d 580) (1998).

Moreover, even if Harris had timely objected and not elicited this evidence during cross-examination and by his own testimony, the victims’ testimony that Harris appeared to be on drugs that evening was relevant evidence of Harris’ state of mind and admissible as part of the res gestae. See Pless v. State, 260 Ga. 96, 98 (2) (390 SE2d 40) (1990).

Furthermore, even though the victims’ testimony incidentally put Harris’ character into evidence, their testimony was admissible to explain their motives, intent, and course of conduct in not wanting Harris in their home. See Page v. State, 159 Ga. App. 344, 345 (3) (283 SE2d 310) (1981). Accordingly, the trial court properly allowed the State to introduce evidence concerning Harris’ drug use.

3. Harris asserts that he received ineffective assistance of counsel because his trial counsel failed to move to bifurcate the possession of a firearm by a convicted felon charge from the other charges and failed to object when the State introduced Harris’ prior convictions in support of the possession of a firearm count.

Decided July 23, 1998

Reconsideration dismissed August 26, 1998.

Sonell Harris, pro se.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

“A defendant claiming ineffective assistance of counsel must show (1) that 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 results of the proceeding would have been different. [Cit.] The decisions on which witnesses to call, whether and how to conduct cross[-] examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client. [Cit.]” (Punctuation omitted.) Richards v. State, 232 Ga. App. 584, 588-589 (5) (502 SE2d 519) (1998).

At the hearing on Harris’ motion for new trial, his trial attorney testified that he met with Harris a dozen times in preparation for the trial. According to trial counsel, he discussed severing the charges with Harris, but they agreed to try all the charges together since it was Harris’ intention to get an acquittal on the aggravated assault count. And, trial counsel was able to obtain an acquittal on the aggravated assault charge as a result of this trial strategy.

Trial counsel’s decision not to move for a bifurcated trial was not the result of inadequate preparation but the result of his choice of trial tactics based on his conversations with Harris. See Richards, supra. Moreover, trial counsel’s failure to object to the introduction of Harris’ prior convictions was also part of the trial strategy to allow all the counts to be tried together; it was not a result of unprofessional errors. See id.

Additionally, Harris has failed to show that, despite the evidence of his guilt, there is a reasonable probability that but for his counsel’s allegedly deficient performance the results of the trial would have been different. See Richards, supra. Accordingly, we find that Harris was not denied effective assistance of counsel.

Judgment affirmed in part and reversed in part.

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


author: Andrews, Chief Judge.

text:
    A98A1598.
    VANN v. THE STATE.
    (506 SE2d 173)
   Andrews, Chief Judge.

Jacquelyn Vann appeals from the trial court’s denial of her pleas in bar to prevent prosecution on a DUI accusation after she had pled guilty to reckless driving and speeding arising from the same conduct and had begun service of the sentence entered on that plea.

The record reflects that, on October 16, 1997, Vann entered her guilty plea to reckless driving and speeding and the court pronounced sentence of 12 months probation, a $1,000 fine, and probation fee of $35 per month on the reckless driving plea and a small fine on the speeding plea. The plea and sentence document bears a filing stamp of October 16 and, in the lower left-hand corner, the judge’s signature.

The separate Order of Probation containing the sentence, the trial judge’s signature, and date of October 16, reflects it was served on Vann by a probation officer and both the officer and Vann signed the document, also on October 16, although it was not filed until November 4.

On the bottom of the plea/sentence document is the following handwritten notation: “Plea is refused by this Court and the matter is ordered to be placed on the jury trial calendar [on the DUI accusation].” It is signed by the trial judge and dated October 17.

Because the mandatory minimum sentence for DUI imposes additional penalties of 24 hours in jail, 40 hours of community service, and suspension of license, OCGA § 40-6-391 (c) (1) (A), (B) and (C), Vann argues such a prosecution is barred. We agree.

“A sentence which has been reduced to writing and signed by the judge may not be increased after the defendant has begun to serve that sentence. Higdon v. Cooper, 247 Ga. 746 (279 SE2d 451) (1981).” Curry v. State, 248 Ga. 183, 185 (4) (281 SE2d 604) (1981). This applies even if only an oral pronouncement of sentence has been made, but not yet reduced to writing. Curry, supra; Harp v. State, 228 Ga. App. 473, 474 (491 SE2d 923) (1997).

Here, the record clearly reflects a signed, filed sentence as of October 16, pursuant to which Vann met with a probation officer, thereby triggering commencement of her sentence. Edge v. State, 194 Ga. App. 466, 467 (391 SE2d 18) (1990); see Harp, supra at 475. Castillo v. State, 178 Ga. App. 312, 314 (5) (342 SE2d 782) (1986), relied upon by the State, is factually distinguishable because there was nothing in the record indicating Castillo had ever begun service of his probation, as there is here.

Decided August 14, 1998

Reconsideration denied August 26, 1998.

Lane & Crowe, Robert L. Crowe, for appellant.

Richard H. Taylor, Solicitor, for appellee.

Judgment reversed.

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

       Although the State’s brief contains numerous statements of fact regarding what was done in open court and the sequence of events, none of this is supported by the record before us and we cannot consider them. Parker v. State, 220 Ga. App. 303, 305 (3) (469 SE2d 410) (1996).


text:
    A98A0982, A98A1002.
    RAPPS v. COOKE et al. (two cases).
    (505 SE2d 566)
   Andrews, Chief Judge.

Betsy Luise Rapps and her husband purchased real property from James and Ellen Cooke and executed a note and deed to secure debt over the property in favor of the Cookes. After the Rappses defaulted by failing to make payments due on the note, the Cookes foreclosed on the property under the terms of the deed to secure debt and purchased the property at the foreclosure sale. Betsy Rapps sued the Cookes alleging wrongful foreclosure, defamation of title, and fraud. The Cookes answered denying the allegations and counterclaimed for a writ of possession. The trial court subsequently granted the Cookes’ motion for summary judgment on the claims against them and on their counterclaim for a writ of possession. In Case No. A98A0982, Rapps appeals from the summary judgment order. On motion by the Cookes, the trial court required that Rapps post a supersedeas bond on appeal. In Case No. A98A1002, Rapps appeals from the order requiring the supersedeas bond.

Case No. A98A0982

1. Rapps claims the trial court erred by granting the motion for summary judgment because the Cookes did not produce evidence in support of the motion sufficient to show that no genuine issue of material fact remained for trial.

Rapps failed to file a timely response to the Cookes’ motion for summary judgment and did not appear at the hearing on the motion. Because there is no such thing as a default summary judgment, Rapps’ failure to timely respond to the motion does not automatically entitle the Cookes to summary judgment in their favor. McGivern v. First Capital Income Properties, 188 Ga. App. 716, 717 (373 SE2d 817) (1988). A failure to respond to a motion for summary judgment results in waiver of the right to present evidence in opposition to the motion, but the moving party must still show from the pleadings and the evidence that summary judgment is appropriate. Id. Accordingly, we consider whether the record supported the grant of summary judgment in favor of the Cookes, but we give no consideration to untimely responsive materials filed by Rapps -after the hearing on the motion.

The Cookes’ motion for summary judgment was not supported by affidavit, deposition testimony, answers to interrogatories, or admissions. See OCGA § 9-11-56; Holland v. Sanfax Corp., 106 Ga. App. 1 (126 SE2d 442) (1962). Although the motion contained a statement of facts as to which the Cookes contended there was no genuine issue to be tried, submitted pursuant to Uniform Superior Court Rule 6.5, the right to summary judgment is not shown by mere reference to the Rule 6.5 statement of facts. The statement of facts under Rule 6.5 is not evidence for purposes of summary judgment, and Rapps’ lack of response thereto did not amount to an admission of fact. Waits v. Makowski, 191 Ga. App. 794, 796 (383 SE2d 175) (1989).

The record reflects, however, that the trial court based the grant of summary judgment on sworn oral testimony given at the hearing on the motion by James Cooke which verified the allegations, evidence, and statement of facts presented by the Cookes in support of the motion for summary judgment. Generally, a trial court may exercise its sound discretion to permit the introduction of oral evidence in support of a motion for summary judgment. Pierce v. Gaskins, 168 Ga. App. 446, 450 (309 SE2d 658) (1983). For example, the trial court may choose to consider oral evidence at the hearing on the motion when the parties so stipulate and arrangements have been made to report the evidence so that it can be reduced to writing and filed in the record. Price v. Star Svc. &c. Corp., 119 Ga. App. 171, 179 (166 SE2d 593) (1969). Pursuant to OCGA § 9-11-43 (b), the trial court may direct that the motion for summary judgment be heard on oral testimony by entering an order so notifying the parties. Johnson v. Aetna Finance, 139 Ga. App. 452, 453 (228 SE2d 299) (1976); Forest Lakes Home Owners Assn. v. Green Indus., 218 Ga. App. 890, 893-894 (463 SE2d 723) (1995). When the trial court admits oral evidence in support of a motion for summary judgment, there must be compliance with the requirements for considering evidence on summary judgment. Pierce, 168 Ga. App. at 450. This includes the requirement that, absent a stipulation by the parties or an order of the trial court extending the time for filing, only supporting material filed at least 30 days before the hearing shall be considered for the movant. Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631-632 (278 SE2d 377) (1981); Gunter v. Hamilton Bank &c., 201 Ga. App. 379, 381 (411 SE2d 115) (1991); OCGA §§ 9-11-56 (c); 9-11-6 (b), (d); Pierce, 168 Ga. App. at 450. “[This requirement] is designed to give the opposing party fair opportunity to contradict the supporting material relied upon by the movant.” Porter Coatings, 247 Ga. at 631.

Here, there was no order of the trial court notifying the parties that the motion would be heard on oral testimony, and the oral evidence given by James Cooke in support of the motion for summary judgment was not filed at least 30 days before the hearing. There was no stipulation by the parties or order of the trial court altering the 30-day notice requirement. Nevertheless, by failing to appear at the hearing to object, Rapps waived the right to notice and acquiesced in the trial court’s consideration of the untimely oral material. Gunter, 201 Ga. App. at 381; Peppers v. Elder, 248 Ga. 136-137 (281 SE2d 582) (1981).

Despite the waiver, there is no transcript of the sworn testimony given by Mr. Cooke nor any record of this oral evidence prepared in compliance with OCGA § 5-6-41, so we are unable to review the evidence to determine whether it provided a sufficient basis to support the trial court’s grant of summary judgment. See Springer v. Gaffaglio, 190 Ga. App. 272, 273-274 (378 SE2d 691) (1989). Without any record of the oral evidence, and there being no other evidence in compliance with OCGA § 9-11-56 submitted by the Cookes in support of the motion, we conclude that the Cookes failed to show by the record that there was no evidence sufficient to create a jury issue on Rapps’ claim of wrongful foreclosure. In this regard, the allegation in Rapps’ verified complaint that the Cookes declared a default and foreclosed without giving her the notice required under the terms of the deed to secure debt was sufficient to create a factual issue as to wrongful foreclosure. Although the attached verification did not state that the allegations of the complaint were made upon Rapps’ personal knowledge, as required in order to be considered under OCGA § 9-11-56 (e), the allegation that the Cookes did not give her proper notice was sufficient to affirmatively indicate that this allegation was within Rapps’ personal knowledge. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988); Morris-Bancroft Paper Co. v. Coleman, 188 Ga. App. 809, 811 (374 SE2d 544) (1988); Hansen v. Mt. Yonah Scenic Estates Club, 227 Ga. App. 258, 259 (488 SE2d 732) (1997).

We find no error in the trial court’s grant of summary judgment: (a) in favor of the Cookes on Rapps’ claims for defamation of title and fraud, and (b) in favor of the Cookes on their counterclaim for a writ of immediate possession.

As to the fraud and defamation of title claims, “[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). A review of the record shows an absence of evidence to support these claims. Rapps failed to make any timely response to the motion for summary judgment, and there are no sufficiently verified allegations in the complaint to create an issue of fact as to the essential elements of a claim for fraud or defamation of title. Vanacore v. Citizens Bank, 228 Ga. App. 87, 89 (491 SE2d 181) (1997); OCGA § 51-9-11.

As to the counterclaim for a writ of possession, Rapps’ sole basis for claiming that the Cookes were not entitled to the writ was that foreclosure was wrongful. After the foreclosure sale, the Cookes, who purchased the property at the sale, became the sole owners until and unless the sale is set aside. Womack v. Columbus Rentals, 223 Ga. App. 501, 503 (478 SE2d 611) (1996). As a former owner remaining in possession after a foreclosure sale, Rapps was a tenant at sufferance subject to being dispossessed. Frank v. Fleet Finance &c., 227 Ga. App. 543, 547 (489 SE2d 523) (1997). Because a tenant cannot dispute the title of her landlord, Rapps was not entitled to claim wrongful foreclosure as a defense. Womack, 223 Ga. App. at 504.

Case No. A98A1002

2. The trial court did not err in granting the Cookes’ motion to require Rapps to post a supersedeas bond on appeal pursuant to OCGA § 5-6-46. Rapps complains that the trial court required a supersedeas bond without a hearing and without giving her 30 days to respond pursuant to USCR 6.2 which provides for a 30-day period to respond to motions in civil actions unless otherwise ordered by the judge. The trial court was not required to conduct an oral hearing before granting a motion to require a supersedeas bond pursuant to OCGA § 5-6-46. There was no error in not giving Rapps 30 days to respond because USCR 6.2 does not apply to post-trial motions for supersedeas bonds under OCGA § 5-6-46. Cloud v. Ga. Central Credit Union, 214 Ga. App. 594, 597 (448 SE2d 913) (1994).

Judgment affirmed in Case No. A98A1002. Judgment affirmed in part and reversed in part in Case No. A98A0982.

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

Decided August 26, 1998.

Betsy L. Rapps, pro se.

Marvin C. Berkowitz, for appellees.

       We cannot consider as evidence in support of summary judgment unsworn allegations in the Cookes’ brief in support of the motion or unverified documents merely attached to the brief. Gilbert v. Farmers & Merchants Bank, 192 Ga. App. 700, 703 (385 SE2d 782) (1989); Parker v. Fidelity Bank, 146 Ga. App. 52, 53-54 (245 SE2d 364) (1978).


author: Pope, Presiding Judge.

text:
    A98A1422.
    WILLIS v. THE STATE.
    (505 SE2d 570)
   Pope, Presiding Judge.

James Willis, Jr., appeals from his convictions of possessing cocaine with intent to distribute, possessing a firearm during the commission of a crime, carrying a concealed weapon and having an improper license plate. He challenges the trial court’s denial of his motion to suppress evidence seized from his car and motel room.

At the motion to suppress hearing, the two arresting officers were the only witnesses. They testified that they saw Willis drive his car away from a motel where he was renting a room. The officers stopped the car because it had a broken taillight and a car dealer’s temporary license plate. According to one of the officers familiar with Willis and the car, the temporary plate had been on the car for more than thirty days. While the officers questioned Willis, he told them that he had a loaded handgun underneath the front car seat and that he did not have a permit for the gun. One of the officers looked in the car and found the gun. The officers arrested Willis for carrying a concealed weapon, impounded his car and conducted an inventory search of the car. During that search they found cocaine in the car trunk.

One of the officers then went back to the motel and told the manager that Willis had been arrested. The manager said that he wanted to remove Willis’ things from his motel room and asked the officer to accompany him. They went to the room, and the manager unlocked and opened the door. The officer, while standing outside the room, saw cocaine on a nightstand in the room. The officer then entered the room and seized cocaine from the nightstand.

Contrary to Willis’ arguments, the officers’ testimony provided a substantial basis for the trial court’s denial of his motion to suppress.

1. Willis argues the court erred in refusing to suppress the evidence seized from his car because the stop of his car for traffic violations was pretextual. “The United States Supreme Court has held, however, that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. [Cit.] In other words, if the driver of a stopped car has broken a traffic law, no matter how relatively minor, a motion to suppress evidence can no longer be based on the argument that the stop was pretextual — at least under federal law. [Cits.]” Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997).

In the present case, the trial court was authorized to conclude from the officers’ testimony that the initial stop of Willis’ car was a valid traffic stop for the broken taillight (OCGA § 40-8-23) and the expired temporary dealer’s license plate (OCGA §§ 40-2-8; 40-2-20). See Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997); Burtts v. State, 211 Ga. App. 840, 841 (440 SE2d 727) (1994); Lopez v. State, 184 Ga. App. 31, 32 (1) (360 SE2d 722) (1987). Even if the officers had an ulterior motive in making the traffic stop, they did not violate the Fourth Amendment. See Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997). Because there was no federal constitution violation and because Willis has made no claim based on the state constitution, we uphold the trial court’s refusal to suppress evidence seized from the car on the ground of an alleged pretextual stop. See Taylor v. State, 230 Ga. App. 749, 750-751 (1) (b) (498 SE2d 113) (1998); Brantley v. State, 226 Ga. App. at 873 (1).

2. Willis claims the court erroneously ruled that the officer was authorized by the plain view doctrine to make a warrantless seizure of evidence from his motel room. The plain view doctrine requires, among other things, that the discovery of the evidence be inadvertent. Pickens v. State, 225 Ga. App. 792, 794 (1) (b) (484 SE2d 731) (1997). Willis contends that the court should have found that the officer’s discovery of cocaine in the motel room was not inadvertent because there is evidence which contradicts the officer’s testimony that he saw the cocaine in plain view on the nightstand in the room.

The existence of conflicting evidence does not require a reversal of the trial court’s ruling. “The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Lambright v. State, 226 Ga. App. 424-425 (487 SE2d 59) (1997). Here, the officer’s testimony supports the trial court’s finding that the discovery of the cocaine was inadvertent. We therefore will not disturb the finding.

“[The officer’s] sighting of the cocaine occurred only when [the motel manager] consented to open the door, and the discovery was inadvertent. From [the officer’s] position at the doorway, a place where he was lawfully entitled to be, he saw what he reasonably believed was in all likelihood cocaine. [The officer] was rightfully standing before the open doorway of the motel room [at the motel manager’s request] when he saw the contraband. A police officer may seize what is in plain sight if, as here, he is in a place where he is constitutionally entitled to be.” (Citations and punctuation omitted.) Pickens v. State, 225 Ga. App. at 795 (1) (b). Accordingly, the trial court did not err in denying the motion to suppress evidence found in plain view in the motel room.

Decided August 27, 1998.

Anthony O. Van Johnson, for appellant.

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

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: McMurray, Presiding Judge.

text:
    A98A1141.
    PARKER v. THE STATE.
    (505 SE2d 784)
   McMurray, Presiding Judge.

Defendant was charged with four counts of aggravated assault, two counts of reckless conduct, and one count of discharging a firearm near a public road. The evidence adduced at a jury trial reveals that defendant fired a .38 caliber handgun at a car driven by Eric Atwater and occupied by Ryan Quiller, Calvin Harris, and Alonzo Ellison. The bullet missed the victims’ car, crossed a playground, and lodged in a double-paned window of the home of Frank and Sara Sanders. The Sanderses’ five-year-old son, Joshua, was playing near this window when the shot was fired.

The jury found defendant guilty of the crimes charged. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant challenges his aggravated assault and reckless conduct convictions, arguing that “there [is] no evidence to establish that [these offenses] were committed as specifically alleged in the indictment.”

“ ‘ “Our courts have departed from an overly technical application of the fatal variance rule, focusing instead on materiality. The true inquiry, therefore, is not whether there has been a variance in proof, but whether there has been such a variance as to affect the substantial rights of the accused....”’ Denson v. State, 212 Ga. App. 883 (2), 884 (443 SE2d 300). ‘ “Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), ‘(n)ot every variance in proof from that alleged in the indictment is fatal.’ Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. (Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).)” ’ Battles v. State, 262 Ga. 415, 417 (5) (420 SE2d 303).” Cole v. State, 216 Ga. App. 68, 70 (2), 71 (453 SE2d 495).

In the case sub judice, Counts 1-4 of the indictment charge defendant with aggravated assault in that he “did unlawfully make an assault ... by shooting at a moving vehicle occupied by [Eric Atwater, Ryan Quiller, Calvin Harris, and Alonzo Ellison].” Count 5 of the indictment charges defendant with reckless conduct in that he did endanger Joshua Sanders while this victim “was standing outside [his] home.” Count 6 of the indictment charges defendant with reckless conduct in that he did “endanger the . . . children on a playground.” Count 7 of the indictment charges defendant with discharging a “gun within 50 yards of a public road. . . .”

Quiller and Harris testified that defendant fired a handgun at the car in which they were passengers. Sara Sanders testified that she heard this gun fire and that she later discovered a bullet in her home’s double-paned window. Ms. Sanders explained that her five-year-old son, Joshua, was playing next to the window when this shot was fired. Sergeant Tommy Lyons of the City of Thomaston Police Department explained at trial that he investigated the shooting. His testimony reveals that a playground is located between where defendant fired the handgun and where the gun’s bullet lodged in the Sanderses’ double-paned window. Quiller’s testimony reveals that defendant fired the gun in the presence of Telly Wyche and another “boy.” Marie Walker’s testimony indicates that she witnessed the shooting and that she observed defendant standing with another boy in her backyard near a clothesline. Sergeant Lyons explained that this clothesline is in a yard adjoining a playground. Defendant denied shooting the handgun, but explained that Wyche shot a pistol while running across this playground. This evidence authorizes the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault as alleged in Counts 1-4 of the indictment and reckless conduct as alleged in Counts 5-6 of the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Defendant’s contention that Joshua Sanders was playing inside the Sanderses’ home, rather than outside his home as alleged in Count 5 of the indictment, is not a fatal variance between the allegata and probata. Count 5 of the indictment charging defendant with endangering Joshua Sanders’ safety sufficiently notified defendant of the charged offense so that he was able to present a defense and protected defendant against another prosecution for the same offense. Cole, supra, 216 Ga. App. at 70 (2), 71.

2. Defendant challenges his conviction for discharging a firearm near a public road, arguing that “there is no evidence that the firearm was fired within fifty yards of the public road. . . .” “An essential element of OCGA § 16-11-103 is proof that the accused discharged the weapon within 50 yards of a public highway or street.” Hawkins v. State, 262 Ga. 193, 194 (3) (415 SE2d 636). Walker testified, in the case sub judice, that defendant fired the gun from “right there at. . . the clothesline[.]” And Sergeant Lyons testified that he measured the distance from this clothesline to the street “right at fifty yards.” This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of discharging a firearm within 50 yards of a public road. Jackson, supra, 443 U. S. at 307.

3. Defendant’s fifth enumeration of error provides as follows: “The trial court abused its discretion in failing to grant the motion for mistrial made after the state elicited testimony from [Sergeant] Tommy Lyons interjecting a hearsay statement of the victim, Eric Atwater, which hearsay statement inculpated [defendant] and identified [defendant] as the perpetrator.” This enumeration of error is without merit.

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717). Atwater testified at trial in the case sub judice that defendant was not the shooter, but admitted on cross-examination that he informed Sergeant Lyons during custodial questioning that defendant shot a handgun at the car Atwater was driving. Sergeant Lyons testified and provided the substance of Atwater’s prior inconsistent statement. This testimony was admissible as substantive evidence under Gibbons to prove that defendant committed the crimes charged. Accordingly, the trial court did not err in denying defendant’s motion for a mistrial.

4. Sergeant Lyons testified that defendant identified Albert Campbell as an alibi witness. Sergeant Lyons testified that he interviewed Campbell and that Campbell “did [not] lend any credibility to [defendant’s] statement[.]” Defendant argues that this was inadmissible opinion testimony. We do not agree. The trial transcript reveals that Sergeant Lyons was not giving an opinion as to Campbell’s veracity, but was testifying that Campbell did not provide an alibi for defendant. The trial court, therefore, did not err in denying defendant’s motion for mistrial.

Decided August 10, 1998

Reconsideration denied August 28, 1998.

William A. Adams, Jr., for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

5. Defendant contends the trial court erred in “failing to permit [his] attorney to cross-examine [Ryan Quiller] about some pending criminal charges against [Quiller], in order to establish possible bias and prejudice toward the state in his testimony.” We agree.

As in Byrd v. State, 262 Ga. 426 (420 SE2d 748), the trial court in the case sub judice erred in failing to allow defendant to cross-examine Quiller about pending criminal charges against this witness. Nonetheless, we find this error harmless beyond a reasonable doubt because another eyewitness (Harris) testified that defendant discharged a handgun toward the victims, corroborating Quiller’s testimony that defendant was the shooter. See Byrd, supra, 262 Ga. at 428.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1492.
    WISE v. THE STATE.
    (506 SE2d 156)
   McMurray, Presiding Judge.

Defendant was charged via Uniform Traffic Citation (“UTC”) with speeding, in violation of OCGA § 40-6-181, by driving “96 MPH in a 55 zone.” The trial court conducted a bench trial and found defendant guilty of speeding by driving 88 mph in a 55 mph zone. The only evidence supporting this conviction is the arresting officer’s opinion testimony that defendant “was going at least 90, high 80’s, low 90’s.” Defendant filed this appeal after entry of his judgment of conviction and sentence. Held:

Citing State v. Rustin, 208 Ga. App. 431 (430 SE2d 765), defendant’s sole enumeration of error provides as follows: “The trial court erred by holding that the UTC accused [him] of a general speeding charge and did not accuse [him] of Speeding at 96 mph in a 55 mph zone.”

In Rustin, the accused was charged with alcohol influenced driving in violation of OCGA § 40-6-391 (a) (1). The State later employed an accusation to additionally charge the accused with driving with an unlawful alcohol concentration in violation of OCGA § 40-6-391 (a) (4). After the trial court granted the accused’s plea in bar based on OCGA § 17-3-1 (d)’s two-year statute of limitation, this Court pertinently held that OCGA § 17-7-71 (f) did not authorize the accusation’s expansion of the UTC’s original impaired driver charge to include the separate driving with an unlawful alcohol concentration charge. This holding does not control in the case sub judice because, unlike the separate impaired driving charge in Rustin, defendant in the case sub judice was charged for speeding under OCGA § 40-6-181 and this Code section provides only one manner in which this offense can be committed, i.e., exceeding the designated speed limit. See OCGA § 40-6-181 (b). Accordingly, the trial court did not err in its holding in the case sub judice.

Decided August 13, 1998

Reconsideration denied August 28, 1998.

Gregory A. Willis, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

Defendant also contends the State’s failure to prove he was driving “96 MPH in a 55 zone” amounts to a fatal variance between the allegata and probata. This contention is an unauthorized expansion of defendant’s sole enumeration of error. We therefore have no jurisdiction to consider it. Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A2392, A98A2393.
    PATEL v. GEORGIA POWER COMPANY; and vice versa.
    (505 SE2d 787)
   McMurray, Presiding Judge.

In this tort action to recover for personal injuries plaintiff Bhavna Patel received at a public park located on property owned by defendant Georgia Power Company, the trial court granted summary judgment to defendant in an order filed on Tuesday, January 13, 1998. In Case No. A98A2392, plaintiff’s notice of appeal was filed on February 13, 1998. In Case No. A98A2393, defendant’s notice of cross-appeal was filed on February 28, 1998. Held:

Case No. A98A2392

1. “A notice of appeal shall be filed within 30 days after entry of the appealable decision or judgment complained of. . . .” OCGA § 5-6-38 (a). “The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon an appellate court. [Cits.]” Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695 (293 SE2d 352). A notice of appeal filed on February 13, 1998, from an order entered on January 13, 1998, is not timely, in the absence of a proper extension of time. In Case No. A98A2392, we are without jurisdiction over this appeal, and it must be dismissed. Moncrief v. Tara Apts., Ltd., 162 Ga. App. 695, supra; Smith v. Forrester, 145 Ga. App. 281 (243 SE2d 575).

Decided August 10, 1998

Reconsideration denied August 28, 1998.

Mark B. McManus, for appellant.

Dye, Tucker, Everitt, Wheale & Long, A. Rowland Dye, Swift, Currie, McGhee & Hiers, W. Ray Persons, for appellee.

Case No. A98A2393

2. Defendant’s cross-appeal complains of the August 19, 1996, order of the trial court denying defendant’s motion to transfer venue.

“ ‘Although under OCGA § 5-6-48 (e), a cross-appeal may survive the dismissal of the main appeal, “this is true only where the cross-appeal can stand on its own merit.” Jones Roofing & Constr. Co. v. Roberts, 179 Ga. App. 169, 170 (345 SE2d 683) (1986).’ Serco Co. v. Choice Bumper, 199 Ga. App. 846 (406 SE2d 276).” Guy v. Roberson, 214 Ga. App. 391, 392 (2) (448 SE2d 60). In the case sub judice, the trial court’s denial of defendant Georgia Power Company’s motion to transfer venue is not a final appealable judgment within the meaning of OCGA § 5-6-34 (a) (1). Rather, that ruling is subject to the certification requirement and application procedures for interlocutory appeal of OCGA § 5-6-34 (b). Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647). Consequently, since the main appeal in Case No. A98A2392 must be dismissed in its entirety, and defendant filed no application under OCGA § 5-6-34 (b) for interlocutory review of the denial of its motion to transfer venue, we have no independent jurisdiction over the cross-appeal in Case No. A98A2393, and the same must be dismissed. Hutchison v. Nat. Svcs. Indus., 191 Ga. App. 885, 886 (3) (383 SE2d 212). Accord Guy v. Roberson, 214 Ga. App. 391, 392 (2), 393, supra.

Appeal dismissed in the main appeal, Case No. A98A2392, and also dismissed in the cross-appeal, Case No. A98A2393.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1305.
    BATTLE v. THE STATE.
    (505 SE2d 573)
   Andrews, Chief Judge.

Andre Ramon Battle appeals from the judgment entered after he pled guilty to one count of cruelty to children and one count of simple battery. Battle argues on appeal that the trial court erred in denying his motion to withdraw his guilty plea because it was made after the trial court refused to appoint him a different attorney, the plea was not freely and voluntarily made, he was denied effective assistance of counsel, and there was insufficient evidence to support the plea. We find no merit to these arguments and affirm the judgment of the trial court.

1. There was a sufficient factual basis to support the guilty plea. Uniform Superior Court Rule (USCR) 33.9 requires the trial court to satisfy itself on the record that there is a factual basis for the guilty plea before entering judgment on the plea. State v. Evans, 265 Ga. 332 (454 SE2d 468) (1995). Contrary to Battle’s assertion, there is no requirement that the elements of the crime be proven beyond a reasonable doubt. King v. Hawkins, 266 Ga. 655, 656 (469 SE2d 30) (1996). Rather, the court must satisfy itself subjectively that the pleader knows both what he has done and that those acts constitute the crime with which he is charged. Id.

Here, the prosecutor’s evidence against Battle was discussed in great detail during the hearing on a motion in limine, prior to Battle’s decision to plead guilty. The record shows that Battle was charged with simple battery after he beat Sandra Battle, his girlfriend, because he thought she lied to him about paying a bill. Three days later he severely beat her three-year-old son because the child was coughing and would not stop. The prosecutor said Sandra Battle was willing to testify at trial that Battle had beaten her and the child. The prosecutor stated she would call the foster mother who took care of the little boy after the beating. The foster mother’s statement, which appears in the record, describes the little boy as having severely swollen eyes for days after the beating and bumps all over his head. The prosecutor also stated that she intended to introduce at trial similar transaction evidence of Battle’s prior assaults on girlfriends.

In addition, the plea hearing transcript shows sufficient facts from which the trial court could determine that Battle knew what he was accused of doing and knew that those acts constituted the crimes with which he was charged. Towns v. State, 228 Ga. App. 267, 269 (491 SE2d 597) (1997). Therefore, the State presented a sufficient factual basis to comply with USCR 33.9.

2. Next, Battle contends the trial court erred in denying his motion to -withdraw his guilty plea because the court had refused to appoint new counsel to represent him. Battle argues that because the trial court refused to appoint new counsel for him, he was forced to plead guilty to the charges.

We note at the outset that the trial court did not err in refusing to appoint new counsel. “The essential aim of the Sixth Amendment is to guarantee effective assistance of counsel, not to guarantee a defendant preferred counsel or counsel with whom a ‘meaningful relationship’ can be established.” Cotton v. State, 223 Ga. App. 288, 289-290 (477 SE2d 425) (1996), citing Wheat v. United States, 486 U. S. 153, 159 (108 SC 1692, 100 LE2d 140) (1988) and Morris v. Slappy, 461 U. S. 1, 13-14 (103 SC 1610, 75 LE2d 610) (1983).

Battle argues on appeal that criminal defendants have a constitutional right to be defended by counsel of their own choosing when possible. Battle also cites case law which states that a court cannot force a criminal defendant to accept counsel and deny a defendant’s request to conduct his own defense. This avails Battle nothing as the transcript is clear that Battle did not request counsel of his own choosing nor was he denied the right to represent himself. Battle requested that the court discharge his present trial counsel and appoint another. The trial court, after inquiring into defense counsel’s efforts on behalf of his client, determined that counsel had prepared adequately to defend Battle at trial and told Battle he could either accept the services of his appointed counsel or represent himself. This was not error. Durham v. State, 185 Ga. App. 163, 164 (363 SE2d 607) (1987).

3. Battle’s guilty plea was freely and voluntarily made. An unconditional guilty plea waives any defenses and objections on appeal except whether the plea was voluntarily made by the appellant and accepted by the trial court after proper inquiry. Mims v. State, 201 Ga. App. 277, 279 (410 SE2d 824) (1991). The State may meet its burden of showing that the plea was voluntarily entered in one of two ways: (1) by showing from the record of the guilty plea hearing that the defendant was cognizant of the rights he was waiving and the consequences of the plea, or (2) by filling a silent record by use of extrinsic evidence that affirmatively shows the guilty plea was knowingly and voluntarily made. Wood v. State, 190 Ga. App. 179, 180 (378 SE2d 520) (1989).

Here, the record shows that Battle was aware of the rights he was waiving and of the consequences of his plea. The trial court asked Battle if his lawyer had explained the charges against him, if he understood that he had a right to a jury trial if he pled “not guilty,” and if he understood that he would be giving up this right if he pled guilty. Battle replied with a “yes” to each of these questions. The court also questioned Battle as to whether he had a chance to discuss his case thoroughly with his lawyer, whether his lawyer had discussed the facts and law of the case with him and advised him about the case. Battle replied “yes” to each of these questions.

Decided August 28, 1998.

John A. Pickens, for appellant.

J. Tom Morgan, District Attorney, Jacqueline S. Hardy, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Therefore, the State was able to show by the record that Battle was cognizant of the rights he was waiving and aware of the consequences of pleading guilty to the charges. The trial court did not err in finding the plea was voluntarily and intelligently made.

4. Battle also claims he was denied effective assistance of counsel. “To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, [Battle] must show counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, absent counsel’s errors, he would not have pleaded guilty. A court’s finding that counsel has rendered effective assistance will be affirmed unless it is clearly erroneous.” (Citations omitted.) Martin v. State, 268 Ga. 584-585 (492 SE2d 223) (1997). Further, Battle must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991).

Battle contends that trial counsel was ineffective because of the conflict between Battle and his counsel at the time the plea was taken and because counsel failed to investigate, failed to develop a defense and failed to be an advocate for him. The record shows that any conflict existing between Battle and his counsel was a result of Battle’s refusal to cooperate with his trial counsel.

As to Battle’s contention that counsel failed to be an effective advocate, the record shows that defense counsel met with Battle at the jail, assigned an investigator to interview the victim and the witnesses, argued effectively at the pretrial motion hearing and, as Battle himself stated during the taking of the plea, discussed thoroughly with him the law and facts of his case and advised him of his rights.

Battle was not denied effective assistance of counsel. The trial court did not err in denying Battle’s motion to withdraw his guilty plea.

Judgment affirmed.

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


text:
    A98A0976.
    WILLIAMSON v. THE STATE.
    (505 SE2d 844)
    Decided August 31, 1998.

      Steven E. Phillips, for appellant.

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

Defendant and his co-defendant brother were jointly tried before a jury for committing an armed robbery. The jury found defendant guilty of robbery by intimidation and his co-defendant guilty of armed robbery. Defendant filed this appeal after the denial of his motion for new trial. Held:

Defendant contends the trial court should have severed his case from that of his co-defendant brother, arguing that proof of his co-defendant brother’s commission of a prior armed robbery prejudiced his defense. We do not agree. The prior similar transaction evidence at issue did not implicate defendant at all. “The trial court gave appropriate limiting instructions to the jury, cautioning that the evidence could be considered only in regard to [defendant’s co-defendant brother. Under such circumstances, we find] no error.” Hannah v. State, 261 Ga. 336, 337 (2) (b) (404 SE2d 440) (1991).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1345.
    MOODY v. DAVIS.
    (505 SE2d 845)
   McMurray, Presiding Judge.

On October 10,1994, plaintiff James H. “Skip” Moody obtained a $75,000 judgment against A. E. “Johnny” Davis. On June 8, 1995, Davis sought protection under the provisions of the federal bankruptcy laws, and plaintiff’s judgment debt was discharged. On May 13, 1996, plaintiff initiated the instant action to set aside certain allegedly fraudulent conveyances.

The only defendant named was the spouse of A. E. “Johnny” Davis, defendant Joanne Davis, “individually and as agent for . . .” Galaxy Services a/k/a Galaxy Investment Corporation (“Galaxy”). The case was tried before the Superior Court of Floyd County upon stipulated facts.

A. E. Davis owned 75 percent of the shares in Crownco Electric Company (“Crownco”), while plaintiff owned 25 percent. Mr. Davis also owned 100 percent of the shares in Galaxy. Galaxy sued Crownco and obtained a default judgment against Crownco. Without formal execution on this judgment, all the assets of Crownco were transferred to Galaxy, wholly owned by A. E. Davis. Plaintiff contends this amounted to a fraudulent conveyance, because defendant “Joanne Davis knew or reasonably should have known at the time she accepted certain real property [from her father-in-law’s estate] and at the time she accepted control of the assets of Galaxy . . . that said assets would be potentially subject to any judgment obtained by Plaintiff.” (Emphasis supplied.) Plaintiff also contends the fact that A. E. “Johnny Davis did waive his interest in the estate of his father in favor of his spouse . . .” amounted to a fraudulent conveyance.

At the conclusion of the case, the trial court granted defendant Joanne Davis’ motion for directed verdict (involuntary nonsuit) and also granted plaintiff’s motion to dismiss defendant’s counterclaim. From the judgment in favor of defendant Joanne Davis, plaintiff brings this direct appeal. Held:

1. Plaintiff first argues that he states a claim that A. E. Davis fraudulently assigned a chose in action, by executing an assent to the probate of his father’s last will and testament. This will devised an undivided one-third share of the father’s estate to defendant Joanne Davis (rather than A. E. Davis himself) and one-third shares to the brother and the sister of A. E. Davis.

OCGA § 18-2-22 (2) provides that the following acts by debtors shall be fraudulent in the law against creditors and null and void as to them: “Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with intention to delay or defraud creditors, where such transaction is known to the taking party. . . .” “A testator, by his will, may make any disposition of his property not inconsistent with the laws or contrary to the policy of the state.” OCGA § 53-2-9 (a). The May 7, 1994 “assent to the probate of said will in solemn form . . .” executed by “Asa Eugene Johnny Davis” (A. E. Davis) as an heir of the testator did not operate as an assignment or conveyance of any property interest of A. E. Davis subject to execution and levy by plaintiff, since his judgment was not entered until October 10, 1994.

2. Similarly, when the only named defendant, Joanne Davis, allegedly accepted property through Galaxy’s execution of its judgment against Crownco, plaintiff had not yet obtained his judgment against non-party A. E. Davis. Consequently, plaintiff was not a creditor at the time of the alleged conveyances, nor was defendant or Galaxy plaintiff’s debtor. In the case sub judice, the trial court correctly directed the verdict for defendant. OCGA § 9-11-50 (a); Brown v. Truluck, 239 Ga. 105, 107 (236 SE2d 60).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided August 31, 1998.

Douglas R. Daum, for appellant.

Harl C. Duffey III, for appellee.


author: Blackburn, Judge.

text:
    A98A1635.
    DANIEL v. CORPORATE PROPERTY INVESTORS.
    (505 SE2d 576)
   Blackburn, Judge.

Plaintiff Leonard Dale Daniel appeals from the trial court’s order granting the defendant Corporate Property Investors’ (CPI), motion to compel discovery and to dismiss plaintiff’s complaint as a sanction. We affirm. Daniel contends: (1) that the motion to compel discovery was defective as it did not contain the certification of a good faith effort required by Uniform Superior Court Rule (USCR) 6.4 (B); (2) that the trial court failed to make the required finding of wilfulness prior to the imposition of the sanctions; and (3) that he was denied due process because he was not provided a hearing.

“Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” (Citation omitted.) Fidelity Enterprises v. Heyman & Sizemore, 206 Ga. App. 602, 603 (426 SE2d 177) (1992).

Daniel filed the instant action on January 3, 1997, for injuries allegedly sustained as a result of an accident which occurred while he was riding an escalator at Lenox Square Mall. On January 24, 1997, CPI answered the complaint and served interrogatories and requests for production of documents on Daniel. Daniel failed to respond to the discovery requests. In a letter dated May 5, 1997, CPI requested that Daniel provide responses to discovery. The record contains no indication of a response to this letter.

On July 21, 1997, CPI filed a motion to compel and for sanctions resulting from Daniel’s failure to respond to discovery requests. Thereafter, CPI amended its motion for sanctions to include Daniel’s failure to appear for his properly noticed deposition. Daniel failed to respond to either motion to compel. No request for a formal hearing was made by either party, and the trial court entered an order dismissing Daniel’s case with prejudice on November 10, 1997.

1. In his first enumeration of error, Daniel contends that CPI failed to certify to the court that a good faith effort to resolve the discovery dispute was made, as required by USCR 6.4 (B). However, we have addressed this issue previously and decided it adversely to Daniel. See Fisher v. Bd. of Commrs. of Douglas County, 200 Ga. App. 353, 354 (2) (c) (408 SE2d 120) (1991). Therein, we determined that defense counsel’s letter requesting discovery responses satisfied USCR 6.4 where the plaintiff had failed to make any response to the defendant’s motion to compel. Id. We determined that USCR 6.4 “applie[d] more directly to the situation in which the parties disagree[d] over what [was] required by the discovery request or, for example, whether certain matters requested by discovery [were] privileged than to the total failure to respond to discovery.” Id. Therefore, Daniel’s enumeration is without merit.

2. Daniel’s contention that the trial court erred in entering an order without a prior finding of wilfulness also fails. ‘Willfulness is implied by the total failure to respond to discovery when no reason or excuse is offered in response to a motion to compel. Schrembs v. Atlanta Classic Cars, 197 Ga. App. 450 (398 SE2d 712) (1990)[, aff’d, 261 Ga. 182 (402 SE2d 723) (1991)]; see also Bells Ferry Landing v. Wirtz, 188 Ga. App. 344 (373 SE2d 50) (1988).” Fisher, supra at 354 (2) (b).

Daniel’s reliance on Gen. Motors Corp. v. Conkle, 226 Ga. App. 34, 40 (486 SE2d 180) (1997) is misplaced, as that case is physical precedent because only two judges supported the majority opinion and it is therefore not binding authority. The special concurrence disagreed that an explicit finding of wilfulness was required and noted that such finding could be implied from the trial court’s order. Id. at 49. Additionally, the facts in Conkle, supra, are distinguishable from those in the present case. Therein, General Motors had partially complied with the trial court’s discovery orders and had responded to Conkle’s motion to compel discovery. In the present case, Daniel failed to make any effort to respond to discovery requests and also failed to respond to CPI’s motion to compel. Under such a situation, an express finding of wilfulness is unnecessary. See Fisher, supra at 354.

3. In his third enumeration of error, Daniel contends that he was denied due process because the trial court dismissed his complaint without a hearing on CPI’s motion to compel. However, a hearing is not always required. The Supreme Court of Georgia has held that “the trial court need not conduct a hearing on the issue of wilfulness in every case. Such a requirement serves no purpose where the trial court can otherwise determine wilfulness on the part of the party against whom the sanctions are sought.” Schrembs, 261 Ga. at 182-183.

Decided August 31, 1998.

C. Samuel Rael, for appellant.

Duncan & Mangiafico, Royce F. Morris, for appellee.

In the present case, Daniel failed to respond to CPI’s motion to compel and for sanctions for the four months it remained pending prior to the trial court’s order. Daniel also failed to request a hearing on such motion, nor did he comply with the discovery request. Based upon these facts, the trial court was authorized to enter its order without a hearing. Schrembs, 261 Ga. 182.

Judgment affirmed.

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

       USCR 6.4 (B) requires that “[p]rior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved [and] shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed.”


text:
    A98A1991.
    ESTES v. THE STATE.
    (505 SE2d 840)
   Blackburn, Judge.

Anthony Leon Estes was convicted of kidnapping, false imprisonment, robbery, and simple battery. On motion for new trial, the trial court merged the false imprisonment conviction with the kidnapping conviction. In his sole enumeration of error on appeal, Estes contends that the evidence was insufficient to support his kidnapping conviction because there was no evidence of asportation. We affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Hawkins v. State, 230 Ga. App. 627, 629-630 (3) (497 SE2d 386) (1998).

“Pursuant to OCGA § 16-5-40[,] a person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will. . . . [A]s to the asportation element of kidnapping, only the slightest movement of the victim is required to establish that element. Further, kidnapping is not a continuous crime; it is completed when the victim has been seized and asported to some degree.” (Citation and punctuation omitted.) Lockett v. State, 217 Ga. App. 328, 329 (1) (457 SE2d 579) (1995).

Viewed in the light most favorable to the verdict, the evidence in this case showed that Heidi Clark was working the late shift at a Wal-Mart store in Hiram, Georgia. At about 1:25 a.m., she parked her truck in the parking lot, got out of the vehicle, and saw Estes running toward her. Estes told Clark to get back into the truck and grabbed her by the throat and arm. Clark testified that Estes “pulled me towards the door, and he started to reach for it, and I just — that’s when I tried to start getting away.” She testified that Estes “moved me a little towards the door,” and that she took a single step at that time. After a brief struggle, she was able to escape and run away from Estes.

Estes contends that Clark’s testimony shows she moved at most a single step, and that this slight movement cannot satisfy the asportation requirement. However, “[t]here is no minimum requirement as to the distance. That asportation was of short duration is without legal significance.” (Punctuation omitted.) Giddens v. State, 190 Ga. App. 723, 725 (3) (380 SE2d 274) (1989). See also McGinnis v. State, 183 Ga. App. 17, 18 (1) (358 SE2d 269) (1987) (“ ‘ “The distance the victim is carried is not material. Any carrying away is sufficient.” ’ ”). In Giddens, we found the asportation element satisfied when the defendant pushed the victim, who was standing in front of a car door, into the driver’s seat. In Harshaw v. State, 222 Ga. App. 385 (474 SE2d 226) (1996), the only evidence of asportation was that the defendant pushed the victim to the ground and there struggled with her. It is clear, then, that the asportation element may be satisfied by slight movement on the part of the victim. This body of law is well settled, and we are bound to follow the holdings of our Supreme Court. See Waters v. State, 248 Ga. 355, 367 (283 SE2d 238) (1981).

Estes’ claim that any movement by the victim was merely incidental to the struggle, and thus constituted a mere positional change, is not supported by the evidence. The jury was authorized to conclude that Estes was trying to force the victim into her truck, and in fact succeeded in moving her a short distance toward that objective. Although Estes claims that this at most constitutes attempted kidnapping, the offense of kidnapping “is completed when the victim has been seized and asported to some degree.” Lockett, supra at 329 (1). Because there was evidence that the victim was moved a short distance against her will, there was sufficient evidence of asportation to support Estes’ kidnapping conviction. Estes’ reliance on McGinnis, supra, is groundless, as there was no evidence of asportation in that case. Moreover, the defendant in McGinnis was charged with and convicted of attempted kidnapping, so the element of asportation was not at issue in that case.

Decided August 31, 1998.

Jason T. Shwiller, for appellant.

James R. Osborne, District Attorney, David B. Fife, Assistant District Attorney, for appellee.

Judgment affirmed.

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