text:
    A02A1467.
    STONE v. THE STATE.
    (571 SE2d 488)
   Miller, Judge.

Following a bench trial, Howard H. Stone was found guilty of violating OCGA § 40-6-181 by driving 69 mph in a 55-mph zone. Stone makes a pro se appeal of his speeding conviction. For the reasons which follow, Stone’s claims of error are without merit, and we therefore affirm.

On appeal from a criminal conviction, the' evidence is viewed in the light most favorable to the verdict, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence. Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993). “In bench trials, the findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses.” (Citations, punctuation and footnote omitted.) Thomas v. State, 253 Ga. App. 866 (1) (560 SE2d 745) (2002).

The record shows that an officer of the Henry County Police Department was on duty at 2:00 a.m. on October 8, 1998. The officer saw Stone’s vehicle traveling north on Highway 19/41 at what he estimated to be 73 or 74 mph. The officer confirmed Stone’s speed with radar at 74 mph. After conducting a traffic stop, the officer told Stone that he had stopped him for traveling 74 mph in a 55-mph zone. He also told Stone that he had the right to a calibration check of the radar detection equipment, but Stone declined to ask for a check. The officer then wrote Stone a citation for speeding.

1. Stone first claims that his conviction should be reversed because the officer was using a speed detection device without a permit. Stone offered evidence of a map of the City of Hampton to show that the officer was inside the city limits when he stopped Stone. Stone argues that the officer was required to have a permit to use a speed detection device from the City of Hampton if he was operating in its city limits, and that he did not have such a permit. See OCGA §§ 40-14-2; 40-14-3; 40-14-10. The trial court noted that, although he could not tell whether the map showed that the officer was operating in the city limits of Hampton, he would consider the radar detection evidence to be inadmissible. He proceeded to find Stone guilty based solely on the visual estimate of speed made by the officer. An officer’s estimate of speed is sufficient to support a conviction on a speeding violation. See Jackson v. State, 223 Ga. App. 27, 28 (2) (477 SE2d 28) (1996). The State made it clear in the prosecution of the case that it was not depending on the radar confirmation of the speed to convict Stone. It follows that the trial court’s determination of guilt was not invalid even if Officer Thornton was using a speed detection device without a city permit.

2. Stone next claims that the Henry County Police Department was in violation of the Open Records Act, OCGA § 50-18-70, for failing to provide timely access to documents that he needed to conduct his defense. The record confirms that Stone asked for a number of documents from the Henry County Police Department which he claims were not delivered in time for him to prepare his defense, although it is not clear exactly what he received in response to his request and when he received it. Stone brought the matter up at his trial, but the trial court pointed out that although the Henry County Police Department might be responsible for any violation of the Open Records Act, such was a matter separate from the criminal proceeding.

We agree with the trial court that Stone cannot tie any failure of the police department to timely comply with his request under the Open Records Act to the criminal procedure at issue here. The intent of the Open Records Act is to encourage public access to information and to promote confidence in government through openness to the public, Athens Observer v. Anderson, 245 Ga. 63, 66 (2) (263 SE2d 128) (1980), and although a criminal defendant may have access to government records as a member of the public, the access is not based on his status as a criminal defendant. Accordingly, there is no basis for making a governmental unit’s compliance with the Open Records Act a prerequisite to the success of the State’s prosecution here.

Decided September 19, 2002.

Howard H. Stone, pro se.

John T. Rutherford, Solicitor-General, Charles A. Spahos, Lydia M. Ferguson, Assistant Solicitors-General, for appellee.

3. Stone claims that the officer violated OCGA § 40-14-7 by obstructing his vehicle from the view of approaching motorists. Putting aside the question of whether the record shows that the officer’s vehicle was obstructed from the view of oncoming motorists, OCGA § 40-14-7 only applies to the operation of a stationary speed detection device. As we noted above, the trial court found the speed detection device results inadmissible, and Stone’s conviction was not based on the use of such a device. Accordingly, Stone’s conviction for speeding does not depend on the officer’s compliance with OCGA § 40-14-7.

4. Stone claims that his conviction was in error because his citation was issued on the basis of the radar speed detection device. The citation shows tha.t radar was used and that Stone refused a calibration check on the detection device. However, the record also shows that the officer made the initial estimate of Stone’s speed based on visual observation, and so Stone cannot say that he was stopped and cited based only on the results of the speed detection device.

5. Stone’s final claim of error is that, while the legislation on which his speeding conviction is based was written to promote the public health, welfare, and safety, the transcript shows “that not once is there a reference to public health, welfare, or safety.” In order to secure his conviction, however, the State was only required to show that Stone committed the crime charged, and the elements of speeding do not require the State to address the public health, welfare, or safety.

Judgment affirmed.

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


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A02A1510.
    HERNDON v. MOSLEY et al.
    (571 SE2d 491)
   Miller, Judge.

A fifteen-year-old student injured when two correctional officers restrained him during his class’s visit to a prison sued those officers individually. Finding undisputed evidence that the officers were acting within the scope of their official state duties, the trial court granted the officers’ motion for summary judgment. The student appeals, claiming that the abusive and malicious nature of the officers’ actions stripped away any immunity protection. We affirm on the ground that where a state officer is performing his official state duties, OCGA § 50-21-25 (a) immunizes those actions regardless of their malicious or abusive nature.

Construed in favor of the plaintiff student, the evidence showed that Rusty Herndon’s school class was visiting a prison as part of a program designed to imbue students with the desire not to engage in behavior that would land them in prison. Prison officials warned the students to follow all tour instructions strictly. One instruction was that students were to keep their hands behind their backs and that they were not to place their hands in their pockets. Herndon forgot this instruction and placed his thumbs in the front pockets of his pants. The two correctional officers escorting the group confronted Herndon and required him to do push-ups. When Herndon refused to continue doing push-ups as demanded by the officers, the officers rushed him and abusively restrained him, injuring his knee, neck, nose, and lower back.

Herndon sued the two officers individually for the injuries. Nearly two years later the officers moved for summary judgment, submitting undisputed evidence that restraining and controlling students during such tours were within the scope of their official duties. Based on the immunity afforded by OCGA § 50-21-25 (a), the trial court entered summary judgment in their favor. Herndon appeals, arguing that abusively restraining a young student did not fall within the officers’ state duties and that the court should not have ruled on the motions until depositions of the officers took place.

1. OCGA § 50-21-25 (a) provides: “A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” Cf. Ga. Const., of 1983, Art. I, Sec. II, Par. IX. Thus, an action against a state officer individually for torts committed while acting in an official capacity is improper and subject to summary disposition. McGee v. State of Ga., 227 Ga. App. 107, 109 (2) (487 SE2d 671) (1997); see Brooks v. Barry, 223 Ga. App. 648, 649 (1) (478 SE2d 616) (1996). This immunity applies even if the officer acted intentionally and with malice. Ridley v. Johns, 274 Ga. 241, 242-243 (552 SE2d 853) (2001); see Hardin v. Phillips, 249 Ga. App. 541, 544 (1) (547 SE2d 565) (2001) (OCGA § 50-21-25 (a) “provides immunity from liability for torts committed during a state employee’s performance of official duties without regard to intent or malice”) (punctuation and footnote omitted).

Decided September 19, 2002

Phillips & Kitchings, Richard Phillips, Joseph C. Kitchings, for appellant.

Here the correctional officers submitted undisputed evidence that they were acting within the scope of their official duties at the prison. As part of their official duties, the officers were commissioned to escort student tours through the prison. They were responsible to control the tour participants and to restrain and discipline any uncooperative participants by requiring push-ups and by using verbal means or physical force. Thus, the officers’ actions here in requiring Herndon, who had disobeyed instructions, to do push-ups was within-the scope of their official duties. Their further actions in restraining and disciplining him when he became uncooperative also fell within that scope. Herndon himself conceded that the officers were simply “trying to teach me discipline. . . .” Since no evidence showed that the officers were not acting within the scope of their official duties, summary judgment was proper. See Brooks, supra, 223 Ga. App. at 649 (1). Even if they performed such duties maliciously or with bad intent, immunity still protects them. Ridley, supra, 274 Ga. at 243. The trial court did not err in granting summary judgment to the officers. See McGee, supra, 227 Ga. App. at 109 (2); Mattox v. Bailey, 221 Ga. App. 546 (1) (472 SE2d 130) (1996) (no action available against correctional officer who, while escorting a prisoner, slammed that prisoner’s head into a door and then beat him).

2. Herndon complains that the trial court should have delayed ruling on the motions for summary judgment until he had taken the depositions of the officers. The motions were filed a year and a half after the defendants’ answers were filed and thus long after the six-month discovery period had expired. See -Uniform Superior Court Rule 5.1. Herndon responded to the motions without invoking OCGA § 9-11-56 (f), which allows a party to ask for a continuance if that party shows by affidavit the need for additional affidavits or depositions or other discovery. Indeed, he did not even request the officers’ depositions until weeks after responding to the summary judgment motions. Having failed to request a continuance or to submit any affidavits justifying a continuance, Herndon cannot now complain that the court erred in going forward and deciding the pending motions.

Judgment affirmed.

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

Thurbert E. Baker, Attorney General, Hicks, Casey & Barber, Mark A. Barber, Carlock, Copeland, Sender & Stair, Rebecca C. Wall, Adam L. Appel, for appellees.


author: Mikell, Judge.

text:
    A02A1574.
    In the Interest of D. B. et al., children.
    (572 SE2d 9)
   Mikell, Judge.

The mother of D. B., C. T., and W. J. appeals the juvenile court’s order terminating her parental rights, contending that the evidence is insufficient to support the court’s decision. We disagree and affirm.

The decision to terminate parental rights is a two-step process. First, the juvenile court must determine whether there is present clear and convincing evidence of parental misconduct or inability. This determination is made by finding that (1) the children are deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. If these four factors exist, then the court must determine whether termination of parental rights is in the best interests of the children, considering their physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. The standard of review on appeal from an order terminating parental rights is whether, viewing the evidence in a light most favorable to the appellee, a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. We must defer to the lower court’s factfinding and affirm unless the appellate standard of review is not met.

1. Viewing the evidence most favorably to the appellee, the Georgia Department of Human Resources, there was ample clear and convincing evidence of the four factors required to establish parental misconduct or inability.

(a) As to the first factor, the mother never appealed the deprivation order entered on October 2,1998. Thus, she cannot challenge the finding that the children are deprived.

(b) Second, in determining that lack of proper parental care or control caused the deprivation, the juvenile court properly considéred “evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature” and a “medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.”

The record is replete with evidence that the children suffered physical abuse while in their mother’s custody. The presence of unexplained, severe bruises on two-year-old D. B. and eleven-month-old W. J. prompted the Floyd County Department of Family & Children Services (the “Department”) to remove all three children from the mother’s custody in September 1998. The mother admitted that she injured D. B.’s ankle and foot and that she did not seek medical attention for him because she knew the authorities would investigate. The mother also admitted that she slapped D. B. and C. T. on the face, used a hickory stick and a belt to punish the children, and bruised them with a paddle. During a home visit, another caseworker observed that D. B. had deep, infected cuts through all of his fingernails. Once W. J. was struck in the eye with a socket wrench, requiring emergency room treatment to repair the cut. W. J.’s foster mother testified that the child had fifteen bite marks on his arms and back when he was returned to her after a four-day stay with the mother in 2000. Finally, expert testimony was presented that five-year-old C. T. was sexually abused by the mother’s brother.

The mother failed a polygraph test concerning abuse of W. J. She was charged with two counts of cruelty to children and ultimately pleaded nolo contendere to two counts of simple battery.

The mother claimed that the children caused each other’s injuries. For example, she told a caseworker that the children bit each other. “Even if the mother did not cause [some of] the injuries, the juvenile court was authorized to conclude that the injuries were attributable to her inability to protect her [children], which also constitutes lack of proper parental care and control.” In any event, an obvious connection exists between the nolo contendere plea and harm inflicted upon the children.

In addition, the juvenile court was presented with evidence of the mother’s medically verifiable mental deficiency, which rendered her unable to provide adequately for the children. Dr. Robert Connell, the mother’s treating psychologist, who testified by deposition, diagnosed her with major depressive disorder and passive/aggressive tendencies. Dr. Richard Hark, the psychologist who evaluated her at the Department’s request, deposed that she suffered from some depression, along with a personality disorder having passive/aggressive and hysterical features.

Decided September 19, 2002.

Dr. Connell deposed that the mother refused to take her antidepressant medication regularly and that she admitted lying to the Department about obtaining employment for herself and medical treatment for the children. As to her ability to care for the children he stated: “I sure as heck don’t believe that she can meet the needs of the three children on a day in and day out basis.” Dr. Hark’s opinion of the mother’s parenting abilities was similarly dismal: “[S]he doesn’t have the ability to take care of these children. ... I don’t think she even has the true motivation.” Accordingly, clear and convincing evidence supports the finding that the mother’s mental deficiency contributed to the children’s deprivation.

(c) As to the third and fourth factors, whether the cause of the deprivation is likely to continue and is likely to cause serious harm to the children, we hold that clear and convincing evidence supports the juvenile court’s findings. The court was permitted to consider the mother’s past conduct in determining that the deprivation would likely continue. The court was not required to return the children to the mother’s custody to suffer further physical abuse.

2. Finally, the juvenile court was authorized to conclude that the termination of the mother’s parental rights was in the children’s best interests. In making this determination, the court could consider the same factors that supported its finding of parental inability. Based on the evidence discussed above, any rational trier of fact could have concluded that termination of parental rights was in the best interests of the children.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

William H. Newton III, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Holly A. Bradfield, for appellee.

       OCGA § 15-11-94 (a).

       OCGA § 15-11-94 (b) (4) (A). See In the Interest of B. W., 254 Ga. App. 63, 64 (1) (561 SE2d 199) (2002).

       OCGA § 15-11-94 (a). See In the Interest of V. M. T., 243 Ga. App. 732, 736 (3) (534 SE2d 452) (2000).

        In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1995).

        In the Interest of C. J. V., 236 Ga. App. 770, 771 (513 SE2d 513) (1999).

       See id. at 774.

       OCGA § 15-11-94 (b) (4) (B) (i), (iv).

       (Footnote omitted.) V. M. T, supra.

       See In the Interest of I. S., 238 Ga. App. 304, 308 (520 SE2d 470) (1999) (mother’s guilty plea to cruelty to children showed that her conduct caused deprivation); In the Interest of R. M., 232 Ga. App. 727, 728 (503 SE2d 635) (1998) (“obvious link” between physical abuse of children and parents’ convictions of cruelty to children and aggravated battery).

       OCGA § 15-11-94 (b) (4) (B) (i).

       See In the Interest of J. M. D., 249 Ga. App. 457, 460 (548 SE2d 454) (2001) (untreated mental condition supported conclusion that children’s deprivation likely would continue); In the Interest of A. M. R., 230 Ga. App. 133, 135 (1) (a) (495 SE2d 615) (1998) (mental condition and erratic behavior showed parental inability).

        In the Interest of M. V., 253 Ga. App. 669, 672 (560 SE2d 125) (2002).

       Id.

       Id.


author: ELDRIDGE, Judge.

text:
    A02A1697.
    DAVIS v. THE STATE.
    (571 SE2d 497)
   ELDRIDGE, Judge.

A Coffee County jury convicted defendant Willie Davis of a single count of aggravated assault (OCGA § 16-5-21). He was sentenced to 20 years confinement, to serve 18 years and the remainder probated. The defendant appeals from the denial of his amended motion for new trial, contending that the superior court erred: (1) in allowing him to represent himself for want of a valid waiver of his right to counsel, and (2) in admitting photographs of the victim showing the extent of her injuries because the State failed to produce the photographs ten days before trial as required by OCGA § 17-16-4 (a) (3). These claims of error are without merit, and we affirm. Held:

1. Initially, the defendant was represented by a public defender. He thereafter filed numerous motions pro se, among them a motion seeking to represent himself. At the first of two hearings on the motions, the superior court granted the defendant’s motion to proceed to trial pro se after an inquiry wherein the defendant acknowledged that, in representing himself, he would face dangers as a non-lawyer because of his unfamiliarity with the rules of evidence and the rules of criminal procedure. The defendant also indicated that his request to proceed pro se was freely and voluntarily made; that he understood that he was entitled to court-appointed counsel; and that a decision to allow him to represent himself would be final. However, in ruling upon the defendant’s motion to proceed pro se, the superior court ordered court-appointed counsel to “sit with [defendant] at the table . . .” through the remainder of the trial to provide him technical assistance as required.

After ascertaining that the defendant had not completed high school at a further motions hearing conducted the day before trial, the superior court informed the defendant:

It appears to me that you will be at a great disadvantage if you try to represent yourself specifically with the recidivism statute that’s being used. And that from the motions that you have filed I also have a great concern that you understand the legal process at all. And you are entitled to a trial by jury and I want to make sure that you get the fairest trial I can give you and if you represent yourself I’m not sure you are not doing yourself a great disservice. But you need to know what the law is because I cannot tell you. I will not grant you any leniencies because you don’t know. I’ll have to treat you as any other lawyer and expect you to know the law as any other lawyer would know it.

The defendant was asked at this point if he wished to proceed pro se in light of the trial court’s stated concerns and responded in the affirmative. The superior court persisted, asking the defendant if he wished court-appointed counsel to represent him. The defendant responded, “No, Sir.” Further asked if he knew what the maximum permissible punishment was in his case, the defendant told the superior court: “Maximum of 20 years in Georgia Correctional Prison. Which under the State of Georgia law I would do ninety percent of that time because it’s a violent offense if I was to be found guilty.” On this, the superior court again found that defendant knowingly, voluntarily, and intelligently waived his right to counsel; confirmed that the defendant wished to proceed pro se; and once more ordered appointed counsel to remain with the defendant during trial to provide him procedural assistance as necessary.

Relying upon Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 236) (1998), the defendant argues that the record does not demonstrate a valid waiver of the right to counsel because the trial court did not establish that he understood the “nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” (Citations, punctuation and emphasis omitted.) Id.; Rutledge v. State, 224 Ga. App. 666, 669-670 (3) (482 SE2d 403) (1997). Certainly, it would be helpful if the record showed inquiry into each of the foregoing matters; however, there is no requirement for the same. Wayne v. State, 269 Ga. 36, 38 (2) (495 SE2d 34) (1998). Rather, the record must show that “the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Id. This the totality of the circumstances shows in that the superior court twice found it necessary to inquire into the defendant’s decision to proceed pro se at trial.

While the defendant correctly claims that the superior court did not advise him of possible punishments at its initial motions hearing, the record shows that defendant was well aware of the sentencing authority of the court and responded sua sponte to the superior court at its second hearing on the motions as to the maximum permissible punishment in his case. Under these circumstances, it was not incumbent on the superior court to advise the defendant of what he already knew. Defendant’s claim that the superior court failed to advise him of the dangers of self-representation is unsupported in the record.

Finally, the superior court offered the defendant an opportunity to change his decision to proceed pro se at its second motions hearing. Defendant’s claim that he waived counsel involuntarily because the court advised him that such a decision was irrevocable upon originally granting his motion to proceed pro se is moot.

Even assuming that the decision to allow the defendant to represent himself was error (and we have held that it was not), “such error was harmless [because] court-appointed counsel provided assistance regarding procedural matters during trial, so that the defendant did not stand trial alone with no assistance or protection of his rights.” (Citations, punctuation and emphasis omitted.) Hamilton v. State, supra at 467-468 (1) (c). And as in Rutledge, the State’s evidence that the defendant had beaten the victim’s head with a two-by-four was overwhelming. Under these circumstances, we find that the State met its burden of proving a valid waiver in this case. Rutledge v. State, supra at 670-671 (3). Accordingly, the superior court did not err in finding that the defendant knowingly and voluntarily waived his right to counsel. See Wilson v. State, 230 Ga. App. 74 (495 SE2d 330) (1997) (on appeal, the burden of proof is on the State to show that the right to counsel was knowingly and voluntarily waived); see also Cook v. State, 227 Ga. App. 674, 676 (490 SE2d 181) (1997) (State’s evidence showing knowing, voluntary waiver of right to counsel must be sufficient to overcome presumption against waiver).

2. Neither did the superior court err in admitting the photographs of the victim for the State’s failure to produce them ten days before trial under OCGA § 17-16-4 (a) (3). “[I]f the State fails to comply with a defendant’s discovery request, then the court may order the [S]tate to permit the discovery or inspection, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed.” (Punctuation omitted.) Brown v. State, 236 Ga. App. 478, 481 (3) (512 SE2d 369) (1999).

The record shows that defendant was not surprised by the photographs in issue, these having been provided to former counsel approximately one week before trial and to the defendant the day before. Neither did the defendant present any evidence of bad faith on the part of the State. Further, the record shows that the photographs were no more than cumulative of the testimony of the victim to the effect that the defendant had beaten her in the head with a “stick,” as well as the testimony of the other witnesses for the State. See Caldwell v. State, 263 Ga. 560, 564 (12) (436 SE2d 488) (1993), citing Jefferson v. State, 206 Ga. App. 544, 548-549 (5) (425 SE2d 915) (1992) (views of the extent of the injuries sustained by victim of alleged aggravated assault relevant at the trial of defendant notwithstanding claims that these might inflame or prejudice the jury).

Decided September 19, 2002.

John A. Rumker, for appellant.

Richard E. Currie, District Attorney, Allen R. Knox, Assistant District Attorney, for appellee.

In the absence of evidence showing prejudice to the defendant and bad faith by the State, the harsh sanction of excluding evidence improperly withheld from the defense under OCGA § 17-16-6 is not available. The defendant having failed to come forward with such evidence, the superior court did not abuse its discretion by admitting the complained-of photographs into evidence. See Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997) (on appeal, trial court’s decision as to sanction or other corrective action under OCGA § 17-16-6 reviewed upon an abuse of discretion standard).

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       On appeal, defendant is again represented by counsel originally appointed to represent him at trial.

       The defendant testified he had completed the eleventh grade in high school.


author: Eldridge, Judge.

text:
    A02A1882.
    DELOACH v. THE STATE.
    (571 SE2d 496)
   Eldridge, Judge.

The Superior Court of Bulloch County issued an order denying Antonio DeLoach’s motion for an out-of-time appeal. DeLoach appeals from such order. We affirm.

In 1997, a Bulloch County jury found DeLoach guilty of armed robbery. He retained attorney Charles W. Bell to represent him on motion for new trial; the motion included a claim of ineffective assistance of trial counsel and asserted numerous grounds as a basis therefor. Following a hearing on the new trial motion, the trial court issued an extensive order, dated April 15, 1998, in which the court denied DeLoach’s motion; the court’s order both factually and legally addressed the grounds for each claim of ineffective assistance of trial counsel.

Thereafter, DeLoach apparently made an oral motion for an extension of time in which to file an appeal of the denial of his motion for new trial; the request was made because DeLoach needed time to raise the funds to retain attorney Bell for appellate purposes. The trial court granted the motion and extended the filing time until June 15, 1998. The record shows that DeLoach made a second request for an extension of time, claiming DeLoach’s mother, “Maime Long, has been trying to raise fimds to retain counsel. She was unable to obtain the funds until June 16, 1998. Wherefore, Defendants respectfully request that the court extend the time to an additional thirty (30) days.” Based upon OCGA § 5-6-39 (c) (“[o]nly one extension of time shall be granted for filing of a notice of appeal”), the trial court denied DeLoach’s second request.

In October 2000, DeLoach filed a pro se motion for appointment of appellate counsel. In such motion, DeLoach claimed that, post conviction, he was indigent; that he had a right to appointed counsel on appeal; that no one informed him of his right to appointed counsel on appeal; that no one filed a notice of direct appeal on his behalf; and that thus, through no fault of his own, he was denied his right to a direct appeal. In response, the trial court appointed counsel for DeLoach and held a hearing “to determine whether the defendant is entitled to pursue an out-of-time appeal.” Attorney Bell testified at the hearing; Bell testified that he informed DeLoach of his appellate rights and provided DeLoach with a copy of his transcript. In addition, the trial transcript shows that, immediately after sentencing, the trial court informed DeLoach of his appellate rights, including his right to appointed counsel:

[Trial Court:] [Y]ou do have a right to an appeal and that appeal must be completed within 30 days from the date of the sentence. That means that the appeal process must be initiated, the paperwork must be filed asking that the case be appealed. So you’ve got a timespan in there which you’ve got to look at. If you can’t afford to pay the costs far as the appeal process is concerned, that cost will be paid in your behalf. If you can’t afford to hire a lawyer, the Court would appoint a lawyer to represent you during that appeal process. So you understand that there is an appeal process that you can go through at this point. Do you understand that, Mr. DeLoach?
[DeLoach:] Yes, sir. . . .
[Trial Court:] Good luck to you in the future. If you need any assistance as far as the appeal process is concerned, if you’ll notify us, we will make whatever is necessary available to you at that point in time.

Following the hearing on DeLoach’s motion for out-of-time appeal, the trial court denied the motion, finding that “the failure to file an appeal can be attributed to the conduct of the Defendant, alone.” Held,-.

Decided September 19, 2002.

Kicklighter & Persse, Robert L. Persse, for appellant.

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.

A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal.

Here, the record shows that the trial court thoroughly advised DeLoach of his right to an appeal and to appointed counsel on appeal. The attorney who represented DeLoach on motion for new trial testified that he advised DeLoach of same, and the trial court was, of course, authorized to believe such testimony. Accordingly, the record supports the trial court’s finding that DeLoach, “himselfi,] slept on his rights.” Because the trial court’s factual findings are not clearly erroneous, we conclude that the court correctly denied DeLoach’s motion for an out-of-time appeal.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       (Citation omitted.) Taylor v. State, 251 Ga. App. 769, 770 (555 SE2d 135) (2001).

        Butts v. State, 244 Ga. App. 366, 368 (536 SE2d 154) (2000).

       (Citation omitted.) Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985).

        Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1995).


text:
    A02A0855.
    HEARD v. THE STATE.
    (571 SE2d 524)
   Miller, Judge.

Andrew Heard appeals his convictions for possession of a controlled substance (cocaine) and for driving with a suspended license. With respect to the drug conviction, he contends that (1) the evidence wás insufficient because it was supplied only by one accomplice, and (2) the videotape of the arrests and of the statements of his companions should not have been admitted because the audio portion of the tape malfunctioned and because it contained hearsay statements by his companions. With respect to the driving while suspended conviction, he claims that there was insufficient evidence that he was served with notice that his license was suspended. For the reasons that follow, we affirm both convictions.

Heard was jointly indicted on the drug charge with Dennis Marks and Martha Johnson, both of whom pled guilty and testified for the State at Heard’s trial. Viewed in the light most favorable to the verdict (Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979)), the record reveals that on July 6, 2000, Heard and Marks rode with Johnson to a mobile home park. Johnson and Marks both testified that the reason the threesome went to the park was to buy cocaine. Johnson testified that Heard and Marks each claimed to have $50.

Johnson and Marks testified that when they got to the park, Heard and Marks went into a trailer. Marks testified that there he and Heard each bought $50 worth of cocaine. Johnson and Marks both confirmed that the three then headed toward a motel to smoke the cocaine. Marks started smoking cocaine in the backseat. The officers who stopped the car immediately arrested Heard for driving with a suspended license. Police found Marks’s cocaine in the backseat.

1. Heard first contends that the evidence was insufficient to convict him of possession of cocaine because the only evidence was that supplied by one accomplice. OCGA § 24-4-8 provides that “in . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .” This rule “applies only when the accomplice is the sole witness upon whose testimony the State relies. Slight evidence of a defendant’s . . . participation from an extraneous source is all that is needed to corroborate the accomplice’s testimony.” (Punctuation and footnotes omitted.) Parker v. State, 249 Ga. App. 509, 511 (1) (548 SE2d 475) (2001). Moreover, “[a]n accomplice’s testimony may be corroborated by the testimony of a second accomplice.” (Footnote omitted.) Wilbanks v. State, 251 Ga. App. 248, 260 (8) (554 SE2d 248) (2001).

Marks’s testimony that Heard bought cocaine for $50 and left with him and Johnson to go to a motel to smoke it is evidence that Heard committed the offense of possession of cocaine. This evidence was amply corroborated by Johnson’s testimony that the reason they went to the mobile home park was to buy cocaine, that she heard that each man had $50, that Heard and Marks went into a trailer, and that all three then headed toward a motel to smoke the cocaine. A further corroborating circumstance was that the officer who stopped the car on its way to the motel found cocaine on the backseat.

Accordingly, we hold that the evidence was sufficient to convict Heard of possession of cocaine.

2. Heard next claims error in the admission of a videotape (which recorded the arrests and statements of Johnson and Marks at the time of those arrests) because the audio malfunctioned and only recorded portions of the statements. He also argues that the statements of Johnson and Marks on the videotape were inadmissible hearsay. “Whether to admit ... a tape recording of a conversation when part of the conversation is inaudible is in the trial court’s discretion. [Cit.]” Brady v. State, 270 Ga. 574, 580 (7) (513 SE2d 199) (1999). Heard has shown no abuse here. Indeed, poor audio quality that results in inaudible portions of a videotape can certainly be used to attack the weight and credibility of the videotape, but is not necessarily a roadblock to the tape’s admissibility. See State v. Forehand, 246 Ga. App. 590, 595 (2) (542 SE2d 110) (2000); Ellison v. State, 242 Ga. App. 636, 637 (4) (530 SE2d 524) (2000); Guerra v. State, 210 Ga. App. 102, 105 (3) (b) (435 SE2d 476) (1993).

Regarding the hearsay statements made by Johnson and Marks on the videotape at the time of the arrests, we hold that their admission was not reversible error, as they were res gestae. See Taylor v. State, 226 Ga. App. 339, 340 (1) (486 SE2d 601) (1997) (“Hearsay statements made to an investigating officer shortly after the incident are part of the res gestae and are admissible at trial.”) (citations and punctuation omitted); see generally Hutson v. State, 216 Ga. App. 100, 101 (5) (453 SE2d 130) (1995) (“ ‘all the circumstances connected with a defendant’s arrest are admissible as a part of the res gestae.’ [Cit.]”). Also, they were cumulative of the testimony given by Johnson and Marks at trial. See Lynn v. State, 181 Ga. App. 461, 464 (2) (352 SE2d 602) (1986) (competent evidence that is cumulative of incompetent evidence may render admission of incompetent evidence harmless). Since both Johnson and Marks testified and were cross-examined, any Sixth Amendment concerns were satisfied. See White v. State, 273 Ga. 787, 789 (2) (546 SE2d 514) (2001). We discern no reversible error.

3. Heard contends that the trial court erred in denying his motion for a directed verdict on the driving while suspended charge because according to Heard, there was insufficient evidence that he was served with notice that his license was suspended. See Farmer v. State, 222 Ga. App. 591 (474 SE2d 760) (1996) (State must show that the accused had received actual or legal notice of the suspension). The officer who stopped Heard testified (and the videotape showed) that when he asked Heard whether his license was suspended, Heard responded, ‘Yes.” Heard conceded that this evidence could properly show what he said. Accordingly, the record shows that Heard had actual knowledge and notice that his license was suspended. See Kovacs v. State, 227 Ga. App. 870, 872 (2) (490 SE2d 539) (1997) (“Appellant acknowledged that his license had been suspended, so it follows that he had received either actual or legal notice of such suspension.”) (citations and punctuation omitted).

Decided September 20, 2002.

Abernathy & Ballinger, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Lawton W. Scott, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       He was also convicted of driving with defective taillights and without proof of insurance, but his enumerations of error relate only to the possession and suspended license offenses.


author: Ellington, Judge.

text:
    A02A0877.
    DAMARE v. THE STATE.
    (571 SE2d 507)
   Ellington, Judge.

A Cobb County jury convicted Gregory Stephen Damare of four counts of child molestation, OCGA § 16-6-4 (a). He appeals from the denial of his motion for new trial, contending the trial court erred in refusing to charge the jury on lesser included offenses, in admitting evidence of similar transactions, and in failing to merge certain convictions for sentencing. He also challenges the sufficiency of the evidence. We affirm.

1. Damare complains that the evidence presented was insufficient to support his convictions.

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. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Kapua v. State, 228 Ga. App. 193 (1) (491 SE2d 387) (1997). “This Court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citations and punctuation omitted.) Id. at 195 (1). “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 verdicts will be upheld.” (Citations and punctuation omitted.) Shelnutt v. State, 234 Ga. App. 655, 657 (2) (506 SE2d 643) (1998).

Viewed in this light, the evidence showed that, in May 1997, Damare followed a 14-year-old girl (hereinafter “Victim One”) as the girl walked home from school. Damare drove his car slowly alongside the girl, asked her to stop, and asked her questions, such as “What is your name?” and “Do you have a boyfriend?” Victim One did not know the man, who told her his name was “Steve.” He asked her for her phone number and handed her a pencil and paper through the car window. Victim One decided to give him a fake number so that he would go away, but when she reached for the paper, she noticed he was not wearing any pants. She saw his exposed, erect penis. She decided to pretend she did not see anything and walked away. He continued following her in his car, asking her if she walked home every day. When she arrived home, he asked if it was her house. She replied “yes,” and he drove away. Victim One alerted a neighbor, and they called the police immediately. Victim One identified Damare at trial as the man who exposed himself to her.

Victim Two was a 13-year-old girl who was walking home from school in May 1997 when a stranger, Damare, approached her on his bicycle. He rode next to her and began asking her questions, such as her name and whether she played-an instrument. He told her he was doing a “survey” and asked whether she was wearing a bra or underwear. Then, according to the girl, he “said that he wanted to lick my p— up and down and he was going to put his penis inside my p— and wouldn’t I enjoy that.” Surprised, Victim Two told him “to get the f— away from me you sicko,” and he left. When she was sure he was gone, she went home, called her older sister, wrote down everything she could remember, and called the police when her mother got home approximately an hour later. Victim Two identified Damare at trial as the man on the bicycle.

A month later, Damare approached two 15-year-old girls (Victims Three and Four) after school in their high school parking lot. Damare drove up to within three to five feet of the girls and asked them if they would like to make some extra money. Damare swung open his car door, and Victim Three saw that he was naked from the waist down and was masturbating. Victim Four saw that Damare was not wearing pants, but did not see his penis. Shocked, the teens “froze” for a moment and then ran away toward the school. As Damare drove away, Victim Three turned around and memorized his Louisiana license tag number. The teens told a school administrator, and the police were contacted. Investigating officers determined that the tag number belonged to Damare. Police arrested Damare at work on June 9, 1997. Victims One, Two, and Four picked Damare out of a photographic lineup.

The State also presented evidence of four separate similar transactions which occurred in North Carolina and Louisiana between August 1994 and January 1997. This evidence was presented to show Damare’s intent, bent of mind, and course of conduct, and the jury was so charged in a limiting .instruction. During these transactions, Damare approached children or teenagers, exposed his penis, masturbated, and said obscene things. In one case, Damare exposed himself to a teenager, followed her home after she ran away, approached her again the same day, and confronted her a third time a few weeks later. In another case, llamare shoved his penis in the face of a 16-year-old girl as she bent over to pick up her book bag. Damare then grabbed her as she attempted to run. She escaped only through the assistance of her friends.

We find that the overwhelming evidence of Damare’s actions was sufficient for a jury to find that he was guilty beyond a reasonable doubt of child molestation. Arnold v. State, 249 Ga. App. 156, 158-159 (1) (a) (545 SE2d 312) (2001) (exposing penis to child in lewd manner was child molestation, even though the child turned her head and did not actually see the penis); Worley v. State, 193 Ga. App. 58, 60 (3) (386 SE2d 879) (1989) (exposing penis); Bentley v. State, 179 Ga. App. 287 (1) (346 SE2d 98) (1986) (same); see also Chapman v. State, 170 Ga. App. 779-780 (1) (318 SE2d 213) (1984) (defining “immoral” and “indecent” under the child molestation statute); cf. Vines v. State, 269 Ga. 438, 440 (499 SE2d 630) (1998) (defendant’s sexually explicit phone call to 14-year-old girl did not constitute child molestation because the act was not performed in the child’s presence).

2. Damare contends the trial court erred in refusing to give requested jury instructions on lesser included offenses. He submitted written requests for jury charges on the statutory language of OCGA § 16-6-8 (a), public indecency, and OCGA § 16-5-20, simple assault. He argues that, because the indictment encompassed these crimes and the evidence presented could have supported a conviction for these crimes, the court was required to give the requested instructions. We agree with his assertions, but find the error to be harmless in light of the overwhelming evidence of Damare’s specific intent to commit child molestation.

“Georgia law provides that a lesser offense can be included in a greater offense either as a matter of law or as a matter of fact.” (Citation omitted.) Strickland v. State, 223 Ga. App. 772, 773 (1) (479 SE2d 125) (1996).

A crime is a lesser included offense of the crime charged as a matter of fact when “it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. . . .” OCGA § 16-1-6 (1). In construing this provision, this Court has held that “even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well” Thus, whether a lesser offense is included in a greater offense as a matter of fact must be detérmined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations and punctuation omitted; emphasis in original.) Id. at 773-774 (1) (a).

Further, for a crime to be considered a lesser included offense as a matter of fact, it must be supported by evidence at trial and be adequately averred in the indictment. Strickland v. State, 223 Ga. App. at 775 (1) (a). Simply stated, “[a] charge on [public indecency or assault] as a lesser included offense of child molestation is required when the indictment puts the defendant on notice that he could be convicted of the lesser included offense and the evidence presented at trial is sufficient to establish the lesser included offense consistent with these averments.” (Emphasis in original.) Id. at 776 (1) (a). In other words,

where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [However, w]here a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

(Citation omitted; emphasis in original and supplied.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994) (jury instruction on lesser included offense required when there was some evidence to support it, but overwhelming evidence of guilt on greater offense made error harmless). This rule recognizes that the jury may choose to disbelieve some of the State’s evidence on the greater offense, but may still find the remaining evidence sufficient to prove the lesser offense. See id. at 133, n. 3. The failure to give a requested charge on a lesser included offense when the evidence warrants it is error. State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990).

(a) Public indecency jury instruction. In this case, the indictment charged Damare with four counts of child molestation, OCGA § 16-6-4 (a), alleging within each count that he did certain “immoral and indecent act[s] to, with, and in the presence of [each victim,] a child under 16 years olí age, with the intent to arouse and satisfy the sexual desires of said accused and said child . . . contrary to the laws of said State, the good order, peace and dignity thereof.” In Counts 1, 3, and 4, the State charged that Damare committed child molestation by exposing his penis to three different victims. In Count 2, the indictment alleged Damare committed child molestation when he asked Victim Two “if she would like him to use his tongue to lick her ‘p—’ up and down and shove his ‘dick’ in her.”

Under OCGA § 16-6-8 (a) (2) and (3), a person commits public indecency when, in a lewd manner while in a public place, he either exposes his sexual organs or appears partially nude. Counts 1, 3, and 4 of the indictment, in charging that Damare exposed his penis to the victims, encompassed all of the elements of public indecency and, therefore, put him on notice that he could be convicted of public indecency under Counts 1, 3, and 4. See Strickland v. State, 223 Ga. App. at 776 (1) (b). Further, the evidence presented at trial could have supported public indecency convictions. See Division 1, supra; Williams v. State, 255 Ga. App. 775 (566 SE2d 477) (2002); Whitehead v. State, 160 Ga. App. 644 (287 SE2d 648) (1981). Accordingly, the trial court should have charged the jury on public indecency as a lesser included offense.

We also find, however, that there was overwhelming evidence that Damare exposed his penis “with the intent to arouse or satisfy the sexual desires of either the child or [himself].” This evidence included his sexually explicit statements to the girls, his conduct in following and grasping at them, his masturbation in their presence, and his predatory pattern evidenced by numerous similar transactions. Accordingly, we find it was highly probable that the failure to give the public indecency charge did not contribute to the child molestation verdicts. See Edwards v. State, 264 Ga. at 133. Any error was harmless.

(b) Simple assault jury instruction. Under OCGA § 16-5-20, a person commits the crime of simple assault when he commits an act which places another in a reasonable apprehension of immediately receiving a violent injury. The indictment, as drafted, did not allege acts which could support a conviction for simple assault as a matter of law. Therefore, the trial court did not err in refusing to charge the jury on simple assault. See Strickland v. State, 223 Ga. App. at 776 (1) (a), 777 (1) (b).

3. Damare contends the trial court erred when it admitted similar transaction evidence, arguing it was unnecessary and prejudicial because the State’s case-in-chief was “clear and uncontradicted.” This enumeration lacks merit.

The State gave notice of its intent to present twenty-three separate similar transactions occurring in three states, pursuant to Uniform Superior Court Rule 31.3. Following a hearing on the admissibility of four of the transactions, the trial court admitted the evidence, finding that it showed Damare’s intent, bent of mind, and course of conduct; that Damare committed the offenses; and that they were sufficiently connected or similar to the crimes for which he was charged in this case. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The court also specifically found that the relevancy of the evidence outweighed its prejudicial nature. The court gave the jury a limiting instruction when the evidence was presented.

“The decision to admit a prior similar transaction into evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” (Citations and punctuation omitted.) Banks v. State, 250 Ga. App. 728, 730 (3) (552 SE2d 903) (2001). We find the trial court did not abuse its discretion in admitting the similar transaction evidence in this case. See Hardeman v. State, 247 Ga. App. 503, 506 (4) (a) (544 SE2d 481) (2001) (“[a]cts involving the sexual molestation of children or teenagers, regardless of the type of acts, are of sufficient similarity to be admissible” as similar transactions) (footnote omitted).

4. Damare contends that his convictions on Counts 3 and 4 of the indictment should have been merged for sentencing, as they constituted multiple convictions for a single incident. We disagree. These counts were for acts committed against separate victims. And, as we have held: “The offense of child molestation is a crime against the person, and every child involved in the . . . incidents was a victim of this crime.” Close v. State, 195 Ga. App. at 655 (5); see also Worley v. State, 193 Ga. App. at 58 (1).

Decided September 20, 2002

Richard D. Wilson, for appellant.

Patrick H. Head, District Attorney, Bruce D. Hornbuckle, Dana J. Norman, Assistant District Attorneys, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       “A person, commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

       Cf. Armstrong v. State, 274 Ga. 771, 774 (3) (560 SE2d 643) (2002) (charge on robbery as a lesser included offense of armed robbery was not required when evidence conclusively established that a weapon was used to kill the victim); Strickland v. State, 223 Ga. App. at 777 (1) (b) (jury instruction on sexual battery was not appropriate in this child molestation case, since there was no evidence to support the offense); Close v. State, 195 Ga. App. 652, 654-655 (4) (394 SE2d 563) (1990) (defendant asserted an alibi defense, so the evidence proved only that the greater offense was committed or that no offense was committed. Therefore, an instruction on a lesser included offense was not appropriate); Worley v. State, 193 Ga. App. at 59 (1) (accord).


text:
    A02A0939.
    THOMPSON v. COUNTRYWIDE HOME LOANS, INC.
    (571 SE2d 523)
   Miller, Judge.

Countrywide Home Loans, Inc. instituted dispossessory proceedings against Jennifer Thompson. After a bench trial, the court granted Countrywide a writ of possession. Thompson appeals, arguing that the trial judge and Countrywide’s attorney held “secret” discussions, that she was not allowed to present evidence or arguments, and that the evidence showed Countrywide was engaging in predatory lending. Thompson’s arguments fail for at least three reasons.

First, Thompson fails to make a single citation to the record to support any of her assertions. “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not . . . consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i). Moreover, this Court’s own review of the record reveals no evidence in support of Thompson’s assertions.

Second, Thompson does not support any of her enumerations of error with citation of authority or argument. “Any enumeration of error which is not supported in the brief by citation of authority or argument [may] be deemed abandoned.” Court of Appeals Rule 27 (c) (2).

Third, Thompson failed to include a copy of the trial transcript or a legal substitute in the record.

Where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at his expense. Thus, where the transcript is necessary for the review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

Ward v. Berry, 251 Ga. App. 394 (554 SE2d 532) (2001). Since Thompson’s enumerations of error require consideration of evidence presented at trial or otherwise, in the absence of a transcript or of other evidence in the record, we must assume the court’s judgment was correct and affirm. Id.; accord Oliver v. Green, 240 Ga. App. 439 (523 SE2d 68) (1999).

Decided September 20, 2002.

Jennifer F. Thompson, pro se.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Robert M. Sheffield, for appellee. '

Judgment affirmed.

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


text:
    A02A1000.
    BROOKS v. THE STATE. MOON v. THE STATE. BAUGHCUM v. THE STATE.
    A02A1001.
    A02A1002.
    (571 SE2d 504)
   Miller, Judge.

The sole issue in all three appeals concerns the interpretation of statutory language setting forth the terms of court for Barrow County. OCGA § 15-6-3 (32) (B) states that those terms shall commence as follows: “Last Monday in January, first and second Mondays in February, second and third Mondays in August, and first and second Mondays in May and November.” The question is whether this sets forth (1) nine terms of court with some terms lasting only a week or (2) four terms with the starting date of these terms being one of two or three dates. We find that based on the case law and legislative intent of the statute, there are four terms of court. We therefore affirm the trial court’s denial of defendants’ demands for discharge for failure to try their cases within two weeks of their trial demands.

Charged by indictment or accusation with noncapital offenses in Barrow County and represented by the same attorney, defendants Brooks, Moon, and Baughcum each filed a demand for trial on October 26, 2001, and a demand for acquittal and discharge on December 5, 2001. They each claimed that Barrow County had a term of court beginning in August 2001 and ending on November 4, 2001, with the next term beginning on November 5 and ending on November 12. They showed that juries had been impaneled and qualified to try their cases during the weeks of October 29, 2001, and November 5, 2001. They argued to the trial court that inasmuch as they were not tried during the term in which they demanded trial nor in the one succeeding, they were entitled to discharge and acquittal under OCGA § 17-7-170 (b).

On December 10, 2001, the trial court heard the motions and found that the term beginning on November 5 did not end on November 12 but continued to January 2002, and therefore the court denied the demands for discharge and acquittal as premature. All defendants appeal, arguing that the trial court erred in its determination that the Barrow County term of court beginning on the first Monday in November continued past the second Monday in November.

OCGA § 15-6-3 sets forth the terms of court for the superior courts of the various circuits. Regarding the Piedmont Circuit, OCGA § 15-6-3 (32) provides that the ternas shall commence as follows:

(A) Banks County — First and second Mondays in April and October.
(B) Barrow County — Last Monday in January, first and second Mondays in February, second and third Mondays in August, and first and second Mondays in May and November.
(C) Jackson County — First and second Mondays in March and the second and third Mondays in September.

OCGA § 15-6-19 provides that “[t]he regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned.”

At issue here is the interpretation of the number and duration of the terms of court for Barrow County. Defendants claim that under the above language, Barrow County has nine terms of court, with the first two lasting a week, the third lasting nearly three months, the fourth lasting a week, the fifth lasting three months, the sixth lasting a week, the seventh lasting nearly three months, the eighth lasting a week, and the ninth lasting two and one-half months. On its face, this interpretation appears nonsensical, for there would be no logical reason to have so many and such wildly varying terms, with some terms lasting only a week and with others lasting two to three months. Indeed, under this approach, Banks County and Jackson County would each have four terms, with two lasting a week and the other two lasting nearly six months. Therefore, in any of these counties where juries are impaneled during the relevant weeks, a trial demand filed on the Friday before the last week of a term (preceding one of the short week-long terms) would possibly mean that the State would have to try the defendant within the next two weeks or else allow him to be discharged. We are loath to reach such a construction.

The State would have us construe the statute to set forth four terms for Barrow County, with the February term beginning the last Monday of January and the first and second Mondays of February, the May term beginning the first and second Mondays of May, the August term beginning the second and third Mondays of August, and the November term beginning the first and second Mondays of November. Under this approach, each term would be approximately three months long. This interpretation makes more sense, as it avoids the absurd consequence of having week-long terms and of requiring lightning-quick trials. “ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cits.]” (Emphasis in original.) Gen. Elec. Credit Corp. of Ga. v. Brooks, 242 Ga. 109, 112 (249 SE2d 596) (1978).

The legislative history of the statute comports with this latter interpretation. When enacted in 1941, the original act provided that “after the passage of this Act there shall be held in each year four terms of the Superior Court for the County of Barrow in the Piedmont Judicial Circuit of the State. . . . [T]he terms of said court shall be held on the third and fourth Mondays in February, May, August and November of each year.” Ga. L. 1941, p. 607, §§ 1, 2. Although superseded by subsequent enactments, including the present statute as enacted in 1993 (Ga. L. 1993, pp. 805-806, § 1), this original act demonstrated the legislature’s intent that commencing a term “ón the third and fourth Mondays” in a particular month meant that it was still only one term, not two terms with one lasting only a week. The court could begin its term on either of those two Mondays. See Davis v. State, 221 Ga. App. 168, 169, n. 1 (471 SE2d 14) (1996) (“The terms of court in Newton County Superior Court commence on the second and third Mondays in January, April, July, and October pursuant to OCGA § 15-6-3 (2) (A). In practice, however, the terms appear to actually begin on the third Monday of these months.”).

Case law describing court terms for other counties has consistently held that similar language means that there are four terms of court, not eight or nine. Wade v. State, 258 Ga. 324, 328 (9) (368 SE2d 482) (1988), held: “Newton County has four regular terms of court each year, beginning on the second and third Mondays in January, April, July and October. OCGA § 15-6-3 (2) (A).” See McKnight v. State, 215 Ga. App. 899, 903 (1) (453 SE2d 38) (1994), aff’d, State v. McKnight, 265 Ga. 701 (462 SE2d 142) (1995). Buxton v. State, 253 Ga. 137, 139 (4) (317 SE2d 538) (1984), held that Jeff Davis County has only three regular terms of court — March, September, and October, even though the March term begins on the first and second Mondays in March. See OCGA § 15-6-3 (7) (D). Citing OCGA § 15-6-3 (2) (B), Johnson v. State, 251 Ga. App. 489, 490 (554 SE2d 612) (2001), held: “Walton County has four terms of court, beginning on the first and second Mondays in February, May, August, and November.” (Footnote omitted.) Accord Groom v. State, 212 Ga. App. 133 (441 SE2d 259) (1994) (“There are four terms of the Walton County Superior Court, in February, May, August and November. OCGA § 15-6-3 (2) (B).”).

Decided September 20, 2002

William D. Healan III, for appellant.

The above cases generally refer to a single term of court by the month in which the term begins, even though that term may begin on the “first and second” or “second and third” Mondays of that month. See, e.g., Wade, supra, 258 Ga. at 328 (9); Johnson, supra, 251 Ga. App. at 490. Similarly, when interpreting the statutory language setting forth Barrow County’s court terms, State v. Dukes, 234 Ga. App. 343, 345 (1) (507 SE2d 147) (1998), referred to “the February term” as singular, not to multiple terms within February.

Thus, legislative history and prior cases have consistently interpreted similar language to refer not to multiple terms but to a single term beginning on alternative or joint dates within the month. This interpretation avoids the absurd result of having some week-long terms and some multi-month terms in the same county and of possibly requiring the State to try defendants within a two-week period of their trial demand. Accordingly, we agree with the trial court that Barrow County has four terms of court, and that the October 26 trial demands (filed during the August term) allowed the State until the end of the November Term (which continued to at least the last Monday in January) to try the cases. The court did not err in denying Brooks’s, Moon’s, and Baughcum’s demands for discharge and acquittal, all of which were prematurely filed on December 5. See Pope v. State, 214 Ga. App. 458, 459 (2) (448 SE2d 54) (1994); McIver v. State, 205 Ga. App. 648, 649 (423 SE2d 27) (1992).

Judgment affirmed in all three cases.

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

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

       An accusation filed October 4, 2001, charged Brooks with DUI and failure to maintain lane. An indictment filed August 13, 2001, charged Moon with possession of marijuana with intent to distribute and possession of more than one ounce of marijuana. An accusation filed October 4, 2001, charged Baughcum with family violence battery (misdemeanor), simple battery, and disorderly conduct.

       Under OCGA § 17-7-170 (a), a person indicted for or accused of noncapital offenses may demand trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term. If he is not tried at either term (provided that at both terms juries were impaneled and qualified to try him), “he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.” OCGA § 17-7-170 (b).


author: Smith, Presiding Judge.

text:
    A02A1136.
    WILCOX v. THE STATE.
    (571 SE2d 512)
   Smith, Presiding Judge.

This case appears here for the second time. In Wilcox v. State, 236 Ga. App. 235 (511 SE2d 597) (1999), we affirmed the trial court’s denial of Brandon Wilcox’s motion to withdraw his guilty plea to one count of armed robbery and two counts of kidnapping. Wilcox then filed a “Motion to Vacate a Void Sentence” on the ground that the trial court failed to exercise its discretion with respect to his request to be sentenced as a first offender. The trial court denied the motion, and Wilcox appeals. We agree with Wilcox that the trial court did not exercise the discretion with which it was vested, and we reverse and remand this case for resentencing.

Comments by the trial court during the hearing on Wilcox’s motion to withdraw his plea form the basis of Wilcox’s motion to vacate and his arguments on appeal. The court asked defense counsel whether he recalled the court’s statement made in a previous hearing that although the court was authorized by law to do so, it “did not intend to give first offender treatment on an armed robbery to reduce the ten years to serve.” The trial court made similar statements at other times during the hearing on Wilcox’s motion to withdraw, once stating that it refused to sentence Wilcox as a first offender to reduce his ten-year sentence because it “would not do that on an armed robbery.” And again the trial court stated that it “would not give first offender in an armed robbery.”

Wilcox argues that the trial court refused “to exercise its discretion for which the legislature has specifically provided” and that the sentence is therefore void. We have stated that “[a] trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility.” (Citation and punctuation omitted.) Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993). And although the decision whether to afford first offender treatment rests within the trial court’s discretion, “the trial court is required to exercise that discretion rather than apply an inflexible rule.” Cook v. State, 256 Ga. App. 353, 354 (1) (568 SE2d 482) (2002).

We conclude that the trial court in this case adopted an “inflexible rule” with respect to the option of imposing first offender sentences in armed robbery cases; according to the trial court’s own statements, it simply would not do so. It is true that in its order denying Wilcox’s motion to vacate, the court stated it had “no policy in accepting/rejecting first offender treatment in any particular class of cases.” But this is not supported by the trial court’s multiple statements during the motion to withdraw hearing that it would not give first offender treatment to defendants in armed robbery cases to reduce the ten-year sentence, despite the fact that it was authorized at the time to do so. Based on the trial court’s own language during the hearing, it appears that with regard to the option of sentencing a defendant as a first offender, the trial court engaged in a sentencing policy based solely on the crime charged. And “[a] rigid sentencing policy based solely on the crime with which the defendant is charged is under no reasonable conception an exercise of judicial discretion.” (Citation and punctuation omitted.) United States v. Brown, 723 F2d 826, 829 (11th Cir. 1984), cited with approval in Cottingham v. State, 206 Ga. App. 197, 199 (424 SE2d 794) (1992). By adopting a per se rule of refusing to permit first offender treatment in armed robbery cases occurring before the effective dates of OCGA § 42-8-66 and the amendment to OCGA § 17-10-6.1, the trial court abdicated its judicial responsibility. We therefore remand this case to the trial court for consideration of Wilcox’s request to be sentenced as a first offender.

We note the State’s argument that Wilcox did not properly seek imposition of sentence as a first offender. Indeed, during the motion to withdraw hearing, Wilcox’s trial counsel testified that he did not request first offender treatment on the armed robbery charge because “in my view first offender was not a fact [sic] to an armed robbery case so it was not discussed within that time frame.” But because the State had indicated a willingness during plea negotiations to reduce the armed robbery charge to a lesser charge, defense counsel testified he discussed first offender treatment with Wilcox “in the context of the State’s recommendation to reduce the charges.”

Decided September 20, 2002.

Marcus C. Chamblee, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Despite the testimony of Wilcox’s defense counsel, however, statements made by the trial court indicate that first offender treatment was requested. As discussed above, during the motion to withdraw hearing, the trial court recounted events that occurred before Wilcox entered his guilty plea. In particular, the trial court recalled its response to defense counsel’s argument that first offender treatment was permissible in armed robbery cases. The court stated it had told defense counsel it “would not give first offender on an armed robbery.” We simply cannot say that Wilcox waived his arguments concerning the trial court’s refusal to consider sentencing him as a first offender. Compare Griffin v. State, 244 Ga. App. 447 (535 SE2d 783) (2000) (no obligation on trial court to consider first offender treatment when option not requested).

Judgment vacated as to sentence and case remanded for resen-tencing.

Eldridge and Ellington, JJ, concur.

       Wilcox was sentenced to ten years to serve on each count, with the sentences to run concurrently.

       Before the 1998 amendment to OCGA § 17-10-6.1 and the contemporaneous enactment of OCGA § 42-8-66, a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not barred from obtaining first offender treatment. See Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999). The offenses in this case occurred in 1997.

       These negotiations occurred in the trial court’s presence, with the trial court’s partici-pátion. During several discussions about the case, the court entertained the possibility of allowing the State to proceed on reduced charges. But after reviewing the State’s investigative file and reading what it believed to be inculpatory statements by Wilcox and his co-defendant, and after Wilcox’s co-defendant pled guilty and gave testimony that failed to exonerate Wilcox, the court would not allow the State to proceed on lesser charges.


text:
    A02A1188.
    SYMS v. THE STATE.
    (571 SE2d 514)
   Miller, Judge.

Louis Syms appeals from the trial court’s order modifying the terms of his probation. Syms contends on appeal that the probation modification was actually an improper “revocation” of his probation and argües that the trial court erred by (1) revoking or modifying his probation and requiring him to serve five years in a probation detention center, (2) amending its original order to clarify that Syms’s probation had been “modified” and not “revoked,” and (3) revoking or modifying his probation before the probationary period had begun for one of his offenses. We discern no error and affirm.

The record reveals that Syms pled guilty to DUI, being a habitual violator, and several other offenses. He was sentenced to fifteen years, five to serve and ten years probation. As a condition of his probation, Syms agreed that he would not consume alcohol and that he would not drive in Georgia. Syms subsequently violated his probation by, among other things, committing the offense of DUI.

The trial court held a probation revocation hearing and subsequently issued an order that “[r] evoked” Syms’s probation and required him to serve five years in a probation detention center before serving the remainder of his probation. Syms alleged that the court exceeded its authority under OCGA § 42-8-34.1, because a court can only “revoke” probation to require a defendant to serve up to two years in confinement. The court then corrected its order, stating that Syms’s sentence had only been “modified” by requiring him to serve five years in the probation detention center. Syms appeals.

1. Syms contends that the trial court erred by revoking or modifying his sentence to require him to serve five years in a probation detention center. Since the court only ordered Syms to go to a probation detention center (an alternative to confinement under OCGA § 42-8-34.1 (c)), the two-year limit on confinement for probation revocation under OCGA § 42-8-34.1 (c) does not apply. We therefore affirm.

OCGA § 42-8-34.1 (c) provides:

At any revocation hearing, upon proof that the defendant has violated any general provision of probation or suspension other than by commission of a new felony offense, the court shall consider the use of alternatives to include community service, intensive probation, diversion centers, probation detention centers, special alternative incarceration, or any other alternative to confinement deemed appropriate by the court or as provided by the state or county. In the event the court determines that the defendant does not meet the criteria for said alternatives, the court may revoke the balance of probation or not more than two years in confinement, whichever is less.

(Emphasis supplied.)

Pursuant to the plain language of OCGA § 42-8-34.1 (c), the use of a probation detention center is an “alternative to confinement” in jail following a probation violation. When a probation violation occurs other than through the commission of a felony, a defendant’s probation may only be “revoked” after the court determines that the defendant does not meet the criteria for the use of an alternative such as a probation detention center. While the court may only revoke probation for a maximum of two years, the plain language of OCGA § 42-8-34.1 (c) as drafted indicates that this statutory maximum only applies when a court finds that a defendant does not qualify for the use of any of the alternatives listed under the statute. Here, the court determined that the use of a probation detention center was an appropriate alternative under the circumstances, and pursuant to the plain language of OCGA § 42-8-34.1 (c), the two-year maximum for confinement in jail therefore did not apply. Thus, the trial court did not err by ordering Syms to a probation detention center in excess of two years.

Decided September 20, 2002

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

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

2. In light of our holding in Division 1 that the trial court properly used the alternative of a probation detention center, we find no harmful error in the trial court correcting its original order to indicate that Syms’s probation had been “modified” rather than “revoked.”

3. Syms’s argument that the trial court erred by revoking or modifying his sentence before the probationary period had begun for one of his offenses is also without merit. As this Court reiterated in Edwards v. State, 247 Ga. App. 835, 838 (2) (545 SE2d 143) (2001), “a trial judge may revoke a probated sentence that is to begin at a future date. . . .”

Judgment affirmed.

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


text:
    A02A1395.
    MANGHAM v. THE STATE.
    (571 SE2d 500)
   Miller, Judge.

A jury found Randy Hayes Mangham guilty of three counts of entering an automobile, two counts of obstruction of an officer, and one count of carrying a concealed weapon. Mangham appeals his convictions, contending that the court erred in examining Mangham and that his “trial counsel erred” by failing to advise the trial court of alleged improper juror conduct. We hold that Mangham’s claims have no merit and affirm.

Viewed in a light most favorable to the verdict, the record shows that when a police officer saw Mangham walking along the road at 4:00 a.m., he stopped to question him, but Mangham fled. A second officer located Mangham, who told the deputy he had a gun and then tried to walk away. The deputies were able to take Mangham into custody, and when they searched him they found a gun in his pocket. Mangham was also in possession of a stolen cell phone and a stolen bag containing jewelry which had been taken from two different automobiles. Mangham claimed to have been fishing and led the deputies to a pond where they found a bicycle, a fishing pole, and a black pouch that had been stolen from a third car.

1. Mangham claims the trial court erred when it questioned him during his testimony because the tenor and tone of the judge’s questions violated OCGA § 17-8-57, which provides that it is error for a judge in a criminal case “to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” In particular, he refers to testimony of his trial counsel during the motion for a new trial that, during the trial of the case, the judge had expressed an opinion to the effect that he found it difficult to believe a portion of Mangham’s testimony. The alleged statement by the trial court, however, does not appear in the trial transcript, and Mangham admits in his appellate brief that “the record does not bear out any specific violation of the letter of the statute. . . .” The only specific statement by the trial court that Mangham suggests was improper occurred when the judge told Mangham, “I think you’ve told me enough. You can come on down.....” We have reviewed the questioning of Mangham by the trial court, as reflected in the transcript, and we find no error. The complained-of statement does not express an opinion as to Mangham’s guilt, and the court’s examination of a witness is not alone grounds for a new trial. See Shields v. State, 272 Ga. 32, 34 (5) (526 SE2d 845) (2000).

2. During the motion for new trial, Mangham’s trial counsel disclosed that she had seen, although she had not heard, a discussion between two jurors and a State’s witness. Trial counsel sent a letter to the assistant district attorney detailing the communication, but the trial court was not informed of the allegedly improper contact during trial. Mangham’s trial counsel explained at the hearing on motion for new trial why she did not bring the possibly improper contact to the attention of the trial court:

Q: You said that the reason you didn’t [bring the matter to the attention of the court] is because you didn’t have any proof of it, is that correct?
A: Yeah, I just felt like based upon my testimony only, there was not sufficient proof of it.

Mangham now claims that his trial counsel erred by not informing the trial court of what she saw. His claim of error does not charge error by the trial court, but by his trial counsel. When we have said that “[t]his court is for the correction of errors,” we refer to the error of the trial court. Pyle v. City of Cedartown, 240 Ga. App. 445, 448 (3) (524 SE2d 7) (1999). Moreover, our review of the record and of Mangham’s arguments reveals that Mangham presents no viable basis for an ineffective assistance claim. Thus, there is no reason to reverse the trial court’s denial of his motion for new trial.

Judgment affirmed.

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

Decided September 20, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, C. Arthur Moss, Jr., for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.


text:
    A02A1493.
    HARRELL v. THE STATE.
    (571 SE2d 502)
   Ellington, Judge.

Randall Blair Harrell appeals the trial court’s order denying his motion for an out-of-time appeal of his 1997 convictions in Haber-sham County of statutory rape, OCGA § 16-6-3, and child molestation, OCGA § 16-6-4. For the reasons which follow, we reverse and remand with direction.

The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights. The right to appeal is violated when the appointed lawyer deliberately forgoes the direct appeal without first obtaining his client’s consent. Such action constitutes ineffectiveness. A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal. However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. We apply the “any evidence” standard to findings of the trial court, acting as the trier of fact, with regard to whether counsel informed the defendant of his appeal rights and whether the defendant voluntarily waived those appeal rights.

(Citations, punctuation and emphasis omitted.) Glass v. State, 248 Ga. App. 91, 92 (1) (545 SE2d 360) (2001).

Decided September 20, 2002.

Alan B. Fecteau, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

The record shows that, following a hearing on Harrell’s motion for new trial on July 31, 1997, the trial court orally announced its decision to deny the motion. The trial court, however, delayed filing a written ruling for over a year. The 30-day period for filing the notice of appeal began to run August 4, 1998, when the trial court denied his post-trial motions. OCGA §§ 5-6-34 (a) (1); 5-6-38 (a). Harrell, through his trial counsel, filed a notice of appeal on November 4, 1999. This Court dismissed Harrell’s direct appeal as untimely.

Before ruling on Harrell’s subsequent motion for an out-of-time appeal, the trial court conducted a hearing but received no evidence regarding Harrell’s personal role in the failure to file a timely direct appeal. As the State conceded, however, there was no evidence that Harrell chose not to file an appeal. Indeed, Harrell’s trial attorney attributed the failure to file a timely appeal to his own late receipt of notice from the trial court of the ruling on Harrell’s post-trial motions. The only conclusion the trial court could reasonably draw from the evidence on Harrell’s motion for an out-of-time appeal was that Harrell directed his attorney to file and prosecute a direct appeal.

Because the evidence shows that Harrell did not waive his right to a direct appeal, the trial court abused its discretion in denying Harrell’s motion for an out-of-time appeal. Glass v. State, 248 Ga. App. at 92-93 (1). The order denying Harrell’s motion for an out-of-time appeal must be vacated.

Harrell shall have 30 days from the date that this Court’s remittitur is filed in the trial court to file a motion for new trial or a notice of appeal. The clerk is directed to send a copy of this order directly to Harrell and a copy to Harrell’s trial counsel, who is directed to forward an additional copy to Harrell. The trial court is directed, upon a proper showing, to appoint new counsel to represent Harrell on appeal. See Rowland v. State, 264 Ga. 872, 875-876 (2) (452 SE2d 756) (1995); Ponder v. State, 260 Ga. 840, 841-842 (1) (400 SE2d 922) (1991); Reese v. State, 216 Ga. App. 773 (456 SE2d 271) (1995).

Judgment reversed and case remanded with direction.

Smith, P. J., and Eldridge, J., concur.


text:
    A02A1560.
    KALL v. THE STATE.
    (571 SE2d 520)
   Miller, Judge.

The State accused Richard Kail of (1) simple battery by causing physical harm and (2) simple battery by “contact of an insulting and provoking nature.” After the close of evidence in the jury trial, the trial court allowed the State to amend the accusation by changing “and” to “or,” so that Kail was accused of simple battery by “contact of an insulting or provoking nature.” The jury found Kail not guilty of simple battery by causing physical harm, but returned a verdict of guilty on the count of simple battery by contact of an insulting or provoking nature. On appeal, Kail argues that the trial court erred when it allowed the State to change the wording of the accusation after the close of evidence because it reduced the burden of proof. He also argues that the trial court erred when it refused to allow the defense to introduce into evidence a video recording of the inside of the house where the battery occurred. For the reasons set forth below, we disagree with Kail’s arguments and affirm.

Viewed favorably to support the verdict, the record shows that an officer went to Kail’s residence in response to a report of domestic violence. The officer found Kail’s wife to be upset and to have a visible injury to her right thumb. Kail had thrown a carpet sweeper at his wife.

1. Kail claims that although OCGA § 17-7-71 (f) allows a prosecuting attorney of a misdemeanor case to amend an accusation before trial, the statutory opportunity to amend does not extend to the period after the trial has begun. Kali also argues that the . Georgia Constitution requires that a defendant be served with a copy of the accusation or indictment, but that he was not served with the amended accusation. See Ga. Const., of 1983, Art. I, Sec. I, Par. XIV. Finally, he contends that amendment of the accusation after trial deprived him of his due process rights under the United States Constitution and the Georgia Constitution because he was not properly informed of the charges against him.

We agree with Kail that an accusation may not be amended after the trial has commenced if the amendment is a matter of substance. See Sutton v. State, 54 Ga. App. 349 (188 SE 60) (1936); Guess v. State, 155 Ga. App. 14 (270 SE2d 255) (1980). A trial court is not, however, required to grant a mistrial or continuance if the State amends an accusation after the commencement of the trial and the amendment is not material or prejudicial to the defense. Felchlin v. State, 159 Ga. App. 120 (1) (282 SE2d 743) (1981); see also Wilcox v. State, 229 Ga. App. 227, 232 (2) (493 SE2d 724) (1997). In his argument here, and as reflected by the arguments made by his trial counsel below, Kail contends that the accusation, as originally worded, would only allow a charge and a conviction básed on a showing by the State that his actions were both insulting and provoking, as opposed to either one.

This is incorrect, however:

When a defendant is charged with the violation of a penal statute containing disjunctively [“or”] several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively [“and”] if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all such separate ways or methods alleged in the indictment, but the state makes a prima facie case upon its establishment by. proof of any one of them.

(Citations and punctuation omitted.) Travitt v. State, 228 Ga. App. 711, 712 (3) (492 SE2d 574) (1997); see also Camsler v. State, 211 Ga. App. 826, 827 (440 SE2d 681) (1994).

In Travitt, the indictment charged that the defendant took property “from the person and immediate presence of another,” while the jury was charged that the offense of armed robbery consisted of taking property “from the person or the immediate presence of another.” (Punctuation omitted; emphasis in original.) Travitt, supra, 228 Ga. App. at 712 (3). We ruled that the charge as given was not erroneous. It has long been established that a defendant may be accused of methods of committing a crime in the conjunctive, as is originally the case here, but the jury may be properly charged with these methods in the disjunctive, as is also the case here. See Jones v. State, 75 Ga. App. 610, 615 (4) (44 SE2d 174) (1947) (“ [I]t is proper for the indictment ... to allege conjunctively, and the State makes a prima facie case upon its establishment by proof of any one or more of the methods of committing the one offense charged.”).

As the accusation was originally formed, the State was allowed to show Kail committed the crime of simple battery by proving a touch of either an insulting or provoking nature. The change in accusation did not alter that burden of proof, which is the argument Kail has made here and below. We conclude that when the trial court allowed the accusation to be amended by substituting “or” for “and,” there was no prejudice to Kail, and accordingly no reversal is warranted on the grounds that the accusation was amended after the beginning of trial.

With respect to Kail’s argument that the State failed to fulfill the requirement that he must be “furnished with a copy of the accusation,” Ga. Const., of 1983, Art. I, Sec. I, Par. XIV, it appears that he was served with a copy of the original accusation and knew of the changes to the accusation because they were made in front of him and his counsel in open court. We see no violation of Kail’s constitutional right to a copy of the accusation.

Decided September 20, 2002.

Suellen Fleming, for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Gary S. Vey, Assistant Solicitor-General, for appellee.

2. Kali also argues that the trial court committed reversible error by denying the admission of a videotape into evidence showing the inside of Kail’s house, which he maintains was offered to impeach the testimony of his children that they were able to see the events about which they testified from their location. Decisions concerning the admission of evidence are generally within the sound discretion of the trial court. Hosp. Corp. of Lanier v. Doster, 254 Ga. App. 169-170 (561 SE2d 846) (2002). In this case, the trial court viewed the videotape and found it to be irrelevant. We are not in a position to question the ruling, since the tape is not part of the record sent to this Court on appeal. See Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265 (401 SE2d 294) (1990); see also Lyon v. State, 262 Ga. 247, 249 (4) (416 SE2d 523) (1992). Furthermore, it appears from statements of counsel that one of Kail’s motives in introducing the tape was a desire to show the unkempt nature of the home (Kail’s trial counsel stated, in reference to the tape, that “I think it’s fair for the Jury to see what the standard of living in terms of the house was at that time. . . .”), which reinforces the conclusion of the trial court that the tape was inadmissible because it was not relevant. We find no error.

Judgment affirmed.

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