author: Blackburn, Judge.

text:
    A97A0257.
    SMITH v. DEPARTMENT OF HUMAN RESOURCES.
    (487 SE2d 94)
   Blackburn, Judge.

Paul R. Smith appeals the trial court’s denial of his motion to reopen a consent order requiring him to pay child support for a minor child, born out of wedlock, on June 6, 1989 (shown in complaint as June 6, 1986), based on newly discovered evidence of his non-paternity.

Smith contends that after dating for approximately one year, he and Cynthia Moss, the mother, lived together from the summer of 1988 until the fall of 1991. During this period, Ms. Moss conceived and delivered two children. He further contends that the parties continued to live together until the fall of 1991, when Ms. Moss vacated their residence. Because of his understanding that their relationship was monogamous, Smith signed a Consent Administrative Order and a Consent Income Deduction Order on July 10, 1992, acknowledging paternity and agreeing to pay support for the two minor children. Smith contends that he had no reason at that point in time to doubt his paternity nor to question the veracity of the mother. The Office of Child Support Enforcement subsequently filed a complaint against Smith in Fulton County Superior Court, alleging that he had failed to provide adequate support for such children. Smith entered into a consent order in Fulton County Superior Court on January 5, 1993.

Smith states that long after the separation of the parties, he learned that Ms. Moss may have been engaged in affairs with other men during their period of cohabitation, and that he may not be the father of the two children. After unsuccessfully seeking help from the Office of Child Support Enforcement, Smith had himself and the children genetically tested during a visitation period on July 31, 1995. Upon determining that he was the father of A. S., but not the father of D. S., Smith filed a motion to reopen the judgment of paternity and child support as to D. S. on October 24, 1995.

In the motion, Smith stated that he had signed the consent order in the belief that he was the father, but that a subsequent blood test had conclusively established that he could not be the father of one of the children. Smith attached to the motion a copy of a report from a genetic testing company stating that he could not be the father of one of the children.

A hearing on Smith’s motion was scheduled for March 11, 1996. Smith contends that prior to holding the hearing, the court denied the motion, holding that the issue of Smith’s paternity was res judicata and that Smith had failed to obtain a court order authorizing genetic testing. There is no hearing transcript in the record. We have limited our review to the ruling of the court and the record in this matter.

1. The court erred in holding that the doctrine of res judicata precluded reconsideration of the issue of Smith’s paternity. Smith’s motion to reopen the judgment was in substance an extraordinary motion for new trial based on newly discovered evidence. See Roddenberry v. Roddenberry, 255 Ga. 715, 717 (342 SE2d 464) (1986); Dept. of Human Resources v. Browning, 210 Ga. App. 546, 547 (1) (a) (436 SE2d 742) (1993) (construing “Petition for Blood Test” as extraordinary motion for new trial). “[S]ince this is an attempt to set aside a judgment through the mechanism of an extraordinary motion for new trial, the doctrines of res judicata and estoppel by judgment are inapposite.” Roddenberry, supra at 717.

“On an extraordinary motion for a new trial based on newly discovered evidence, it is incumbent on the movant to satisfy the court: (1) that the newly discovered evidence has come to his knowledge since the trial; (2) that want of due diligence was not the reason that the evidence was not acquired sooner; (3) that the evidence was so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credit of a witness.” (Punctuation omitted.) Id. at 717.

In this case, it is clear from its order that the trial court did not consider the above factors, but instead relied on its erroneous determination that consideration of new evidence regarding Smith’s paternity was barred by res judicata. See Browning, supra at 548 (1) (b).

2. Smith attached to his appellate brief an affidavit setting forth facts regarding his execution of the consent orders and his subsequent testing of the children. Although we have not considered such affidavit on appeal as it was not considered by the trial court, we make the following observations.

If the above evidence is true, Smith’s belief that the children were his, and his reliance on the mother’s representations that he was the father, should be considered as factors in evaluating his diligence in obtaining the new evidence. The fact that Smith did not demand a paternity test before signing the consent orders does not necessarily demonstrate lack of due diligence. Where a purported father has no reason to suspect the fidelity of the mother, it may not be unreasonable, and may in fact be admirable, for him to acknowledge his paternity without further proof thereof. The law should not punish a purported father for failing to insist on a paternity test when he has no reason to believe that he is not the father. A contrary rule would invite suspicion and distrust, and essentially require all purported fathers, upon divorce or separation, to accuse their spouses or partners of infidelity by demanding proof of paternity. In addition to fostering animosity between the parents, a rule encouraging fathers to contest paternity could also have a negative impact on the father-child relationship.

While it is the policy of this state to require fathers to support their minor children, it is not the policy to extort such support from persons who are not in fact the fathers. Indeed, if the facts are as Smith represents, we can see no legitimate reason why the DHR, as an agent of the state and of its citizens, would seek to enforce the legal fiction of his paternity. It does not appear that the child was, in fact, deprived of support, as the record indicates that the child was receiving public assistance for which the DHR sought reimbursement from Smith. See OCGA § 19-11-5.

Smith contends the trial court relied on Wright v. Newman, 266 Ga. 519 (467 SE2d 533) (1996), in issuing its decision. Although such reliance is not apparent from the record, we note that Wright is not controlling in any event. In Wright, the defendant was held liable for child support notwithstanding the fact that DNA tests showed he was not the father of one of the plaintiff’s children. However, the defendant’s liability was based on the fact that he voluntarily agreed to support the child with full knowledge that he was not the father. Id. at 520. If, as he contends, Smith was unaware that he was not the child’s father at the time he agreed to pay support, the promissory estoppel principles relied upon in Wright would not be applicable.

In its order, the court noted that Smith failed to obtain a court order for the blood test and therefore, such evidence could not be considered. The trial court erred in holding that such evidence, which is otherwise admissible, is rendered inadmissible because its procurement was not ordered by the court. This fact does not render the results of the blood test inadmissible. OCGA § 19-7-46 allows admission of the results of court-ordered blood tests “without the need for foundation testimony or other proof of authenticity or accuracy.” The statute does not, however, preclude the admission of test results not ordered by the court, if a proper foundation is laid for admission.

3. The DHR also contends that Smith’s application for discretionary appeal was untimely because it was erroneously filed with the Supreme Court, which then transferred the application to this Court. OCGA § 5-6-37, dealing with the filing of notices of appeal, provides that an appeal shall not be dismissed or denied consideration because of a designation of the wrong appellate court. Although OCGA § 5-6-35, dealing with applications for discretionary appeals, does not contain this language, dismissal is not mandated when an application is filed in the wrong appellate court.

Decided May 16, 1997

Before Judge Wofford.

Jeffrey H. Fonseca, Tracey-Anne Napolitano, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin M. O’Connor, Assistant Attorney General, for appellee.

Supreme Court Rule 34 provides that “[discretionary applications to appeal of which the Court of Appeals has jurisdiction may be transferred to that Court or may be dismissed for improper filing.” As the Supreme Court elected to transfer the application to this Court, it is appropriate that we grant the application and consider the merits of this case. See Marr v. Ga. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995) (transferring application for discretionary appeal from Supreme Court to Court of Appeals); see also OCGA § 5-6-30 (appeal statute should be construed so as to “avoid dismissal of any case or refusal to consider any points raised therein”).

Accordingly, the order of the superior court is reversed and this case is remanded for proceedings consistent with this opinion.

Judgment reversed.

Pope, P. J., and Johnson, J., concur.

        Roddenberry does not establish an absolute rule that failure to require a paternity test demands a finding of lack of diligence. In that case, the Supreme Court affirmed the trial court’s denial of an extraordinary motion for new trial based on newly discovered evidence, holding that the purported father did not show that want of due diligence was not the reason the new evidence was not acquired sooner. Although the Court noted that the father did not take advantage of the statute authorizing the use of blood tests, it also relied on other facts, including the fact that the mother was pregnant at the time they were married, and that the father entered into a separation agreement and divorce decree acknowledging the child as his. Roddenberry, supra at 717. There is no indication that the parties were living together at the time the child was conceived, or that the father reasonably believed he and the mother were engaged in a monogamous relationship at the time. Thus, while failure to require a paternity test is one factor that should be considered in evaluating a party’s diligence, it is not the only factor.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A97A0980.
    STANDER v. THE STATE.
    (486 SE2d 712)
   Beasley, Judge.

Stander was charged with five crimes.

Count 1 alleged that on January 17, 1995, Stander committed a burglary by entering and remaining in the dwelling of Tarver without authority and with intent to commit the felony of aggravated assault. Count 2 alleged that, also on January 17, Stander committed an aggravated assault on Priscilla Williams with his hands and feet. Count 3 charged Stander with aggravated assault on Bolton with a handgun on January 22. Counts 4 and 5 charged Stander with committing an aggravated assault and aggravated battery on Williams on January 29.

The jury found him not guilty of Count 2 but guilty of the remaining counts. After merging Count 4 with Count 5, the court sentenced Stander on burglary, aggravated assault (Count 3), and aggravated battery. Stander appeals the judgment and the order denying his motion for new trial.

Stander was Williams’ former boyfriend, and Bolton was her new boyfriend. On January 17, Williams invited Bolton to meet her at Tarver’s apartment. Construed in a light most favorable to the verdict, the evidence in regard to Count 1 showed that Stander, who was in an intoxicated and belligerent condition, followed her to the apartment and forced his way in. He threatened to kill her and Bolton, who barricaded themselves in the bedroom. Tarver agreed to let Stander remain in the apartment and “sle[ep] it off.” Stander only pretended to be asleep, and when Tarver sought entry to the bedroom in order to retrieve an item, Stander broke down the door and burst in. After Williams retreated to the bathroom, Bolton and Stander got into a fight which ended when Bolton stabbed Stander with a pair of scissors. When the police arrived on the scene, Stander was standing at the stairwell leading to Tarver’s apartment. After the police allowed Stander to return to the apartment to get his coat, he forced his way into the bathroom and began punching Williams.

As to Count 2, the evidence showed that on January 18 (rather than January 17, as alleged in the indictment), Stander assaulted Williams by beating her with his fist and kicking her. The evidence as to Count 3 showed that several days later, Stander saw Bolton at Tarver’s apartment, chased him down the street, and shot at him with a handgun.

As to Counts 4 and 5, the evidence showed that on January 29, Stander again sought out Williams, found her and beat her. This time, he slammed her head into a brick wall and stomped her repeatedly after telling her he intended to kill her. When police found her, she was unconscious and lying in a large pool of blood. The right side of her face had been ripped off, and her skull was visible. She was in a coma for several weeks and remained in the hospital for several months. She required speech therapy, as well as physical therapy in order to learn to walk again, and her face was scarred.

1. Stander enumerates as error the jury charge on burglary.

Under OCGA § 16-7-1 (a), a person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he “enters or remains” within the dwelling house of another. The indictment in this case alleged that Stander did “enter and remain” in Tarver’s dwelling. After instructing the jury on both the wording of the statute and the indictment, the court charged that to constitute the offense of burglary, it was necessary only that the evidence show that Stander did “enter or remain” in the dwelling.

In reliance on Pettway v. State, 204 Ga. App. 804 (420 SE2d 619) (1992), and Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978), Stander contends that it was error for the court to charge the jury that the crime could be committed by alternative methods when the indictment charged that it was committed by one specific method. Those eases are distinguishable. In each, the indictment alleged that the defendant had committed a crime by one method, and the court instructed the jury that the crime could be committed by another method not alleged in the indictment.

Stander’s indictment alleged that the crime was committed in more than one way, i.e., conjunctively, and the court charged the jury that the defendant could be convicted if the evidence showed that he committed the crime in either of the ways alleged, i.e., disjunctively. “ When a defendant is charged with the violation of a penal statute containing disjunctively 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 if it charges more than one of them. (Cits.) Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all of 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.’ [Cit.]” Leverenz v. State, 140 Ga. App. 632, 634 (1) (231 SE2d 513) (1976); see Lubiano v. State, 192 Ga. App. 272, 273 (1) (a) (384 SE2d 410) (1989).

Stander nonetheless argues that the variance between the allegations of the indictment and the court’s jury charge prejudiced his defense. By reason of defense counsel’s imputed knowledge of the above-quoted rule, Stander was on notice that the State could prove his guilt of the offense in either of the ways alleged in the indictment. Moreover, Stander states that his defense was that he did not enter Tarver’s apartment with the intent to commit a felony and that he remained there with Tarver’s consent. Therefore, he can hardly claim that the allegations of the indictment did not enable him to present his defense or that he was taken by surprise by the evidence offered at trial. See Walker v. State, supra at 240-241 (1) (b), citing DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969).

2. Stander contends that the court erred in allowing the State to introduce testimony regarding similar transactions between him and Williams without the pretrial notice and hearing required by Uniform Superior Court Rules 31.1 and 31.3 (B).

On direct examination, Williams was asked why the police were summoned to Tarver’s residence on January 17. She responded, “Because [Bolton] and [Stander] got to fighting. [Stander] kicked the door down and came in the bedroom where we was. I ran in the bathroom and tried to hide. . . . And, you know, I already had a black eye he had given me about two days previous to that.”

Stander’s failure to object to admission of this evidence at trial bars appellate review of the asserted error. See Riddle v. State, 208 Ga. App. 8 (430 SE2d 153) (1993). Moreover, the State was not required to give defendant pretrial notice and a hearing as a condition to admission of the witness’ testimony concerning this transaction, because the witness’ reference to it was not responsive to the question asked by the prosecuting attorney. Compare id. at 9 (1) (b).

Decided May 16, 1997.

Before Judge Coursey.

Wilburn C. Whitlock, Jr., Bruce S. Harvey, for appellant.

J. Tom Morgan, District Attorney, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

Stander also complains of admission of evidence concerning his January 18 assault on Williams. This evidence was admissible because it concerned, and was introduced to prove, Count 2 of the indictment.

3. Stander charges the court with error in allowing the State to repeatedly place his character in evidence without his having opened the door to such testimony.

The testimony was given by three State’s witnesses. Stander cannot complain of the testimony of the first (Eddie Harris, who witnessed the January 29 assault and battery), because it was elicited by defense counsel on cross-examination. A party cannot complain of testimony which he introduced. Adside v. State, 216 Ga. App. 129, 131 (453 SE2d 139) (1995). Stander’s failure to object to the testimony of the other two witnesses (Tarver and Williams) precludes appellate review. See, e.g., Jenkins v. State, 223 Ga. App. 314, 317 (2) (477 SE2d 608) (1996); compare Ledford v. State, 202 Ga. App. 694 (1) (415 SE2d 693) (1992).

4. The enumeration regarding the court’s jury charge on Count 4 is moot because the court merged Count 4 into Count 5. Miller v. State, 223 Ga. App. 453, 454 (2) (477 SE2d 878) (1996).

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A97A0993.
    PATTON v. THE STATE.
    (487 SE2d 97)
   Judge Harold R. Banke.

Michael Steven Patton was convicted of operating a motor vehicle after being declared an habitual violator and speeding. On appeal he challenges the sufficiency of the evidence.

The charges arose just after a police officer operating a radar device on Interstate 75 detected a 1981 Buick traveling at 91 mph. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdiet). The officer gave chase, activating his bright headlights, emergency lights, a spotlight and two overhead takedown lights, and followed the car off the interstate. When the car abruptly pulled over at the end of the exit ramp, the officer immediately parked ten to fifteen feet behind it. Patton opened the driver side door, got out, and walked toward the officer. When Patton reached the gap between the two cars, he turned left and started running. The officer followed Patton to a six-foot fence where Patton struggled, trying to free himself from the barbed wire topping the fence. The officer, standing a few feet away, shined his flashlight in Patton’s face, observed that Patton had been drinking and warned him to be careful or he would hurt himself. Patton ultimately disentangled himself and ran away. The officer learned Patton’s name during the course of his investigation, and Patton was subsequently arrested. Held:

Decided May 16, 1997.

Before Judge Benefield.

Thomas M. Martin, for appellant.

Robert E. Keller, District Attorney, Rita B. Jackson, Assistant District Attorney, for appellee.

We reject Patton’s contention that the evidence was insufficient to establish that he was driving the car, an element essential to both crimes charged. The officer testified that he followed the speeding car until it stopped, illuminated its passenger compartment, and watched Patton emerge from the driver’s seat. He stated that the people in the car did not move around and it never appeared that anyone else was driving. This evidence was sufficient to allow the jury to find that Patton was the driver, notwithstanding his denial of that fact. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Furthermore, a person’s flight after seeing a police officer may be some evidence of guilt. Weaver v. State, 208 Ga. App. 105, 107 (430 SE2d 60) (1993).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


author: Johnson, Judge.

text:
    A97A1014.
    WRIGHT v. THE STATE.
    (486 SE2d 711)
   Johnson, Judge.

A jury found Gregory Jerome Wright guilty of armed robbery. He appeals from the judgment entered on the verdict and the denial of his motion for new trial, challenging the sufficiency of the evidence and asserting the trial court erred in allowing the admission of hearsay testimony.

1. On appeal, the presumption of innocence no longer prevails. We view the evidence in the light most favorable to the verdict and do not speculate which evidence the jury chose to believe or disbelieve. Gurlaskie v. State, 196 Ga. App. 794 (1) (397 SE2d 66) (1990). At trial, Daniel Wessner testified that he is a route salesman and was staying at a motel in Albany. At approximately 6:30 in the morning he was loading his truck for his day’s work when a man approached him and asked him for the time. While he was looking to see what time it was, the man produced a handgun and demanded Wessner’s money. As Wessner started to take money out of his wallet, the man snatched the wallet and ran away. Wessner testified that he looked at the man’s face closely because he wanted to remember it. One month later Wessner picked Wright’s picture out of a photo lineup, and also identified him in court as the man who robbed him. Contrary to Wright’s contention on appeal, this evidence is sufficient to enable a rational trier of fact to find Wright guilty of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Widner v. State, 203 Ga. App. 823, 825 (5) (418 SE2d 105) (1992); Arnold v. State, 166 Ga. App. 313, 316-317 (6) (304 SE2d 118) (1983).

2. Over Wright’s objection, the trial court allowed the investigating police officer to testify as to what two people told him after he described the suspect to them, stating that the testimony explained the officer’s course of conduct. After some testimony was given, Wright again objected, asserting that the testimony was “pure unadulterated hearsay.” The prosecutor agreed and stated that he would “move on” with his questioning. Relying on Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), and Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984), Wright enumerates the trial court’s admission of the police officer’s testimony as error. “Hearsay evidence is admissible to explain an investigating officer’s conduct only when the officer’s conduct is at issue and needs to be explained.” (Emphasis in original.) Lyles v. State, 221 Ga. App. 560, 562 (3) (472 SE2d 132) (1996). As was the case in Lyles, this is not one of those rare instances in which the officer’s conduct is a matter of concern, and it is clear from our review of the evidence that the testimony was inadmissible.

However, the erroneous admission of the hearsay testimony was not harmful as a matter of law. “This court has recognized the general rule that in order to justify a new trial or reversal, the trial court’s ruling must be both erroneous and harmful to the appellant. The test for harmful error is whether it is highly probable that the error contributed to the judgment. In determining whether hearsay testimony is harmful, this Court has found inadmissible hearsay which is received over objection does not require a new trial if it appears that the evidence could not have affected the verdict because other evidence by a witness with immediate and personal knowledge is sufficient to establish the fact in question.” (Citations and punctuation omitted.) Head v. State, 220 Ga. App. 281, 283 (3) (469 SE2d 406) (1996). See also Hardy v. State, 223 Ga. App. 597, 598 (1) (478 SE2d 423) (1996). Here Wessner testified that he made a conscious effort to look closely at the perpetrator of the crime so that he would be able to identify him later, which he did both in a photographic array and in court. Wessner’s immediate and personal knowledge of Wright’s description was sufficient to establish the identity of the perpetrator. Because the evidence of Wright’s guilt was overwhelming, the hearsay testimony of the police officer regarding responses to his descriptions of Wright to explain how he conducted his investigation of the crime was harmless error.

Decided May 16, 1997.

Before Judge Kelley.

David E. Perry, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


text:
    A97A1063.
    NEWTON v. THE STATE.
    (486 SE2d 715)
   Beasley, Judge.

Following denial of his motion for new trial, Newton appeals his conviction of possession of cocaine. OCGA § 16-13-30.

City of Augusta police officer Burton testified that between 2:45 and 3:00 a.m. on August 24,1994, he was on patrol when he observed Newton standing with a known prostitute and a third individual on a street corner in a known drug area. After positioning himself in front of them and activating his takedown lights and spotlight, Burton observed Newton reach into his right front pants pocket and throw a shiny object to the ground. After another officer arrived, Burton walked to where Newton had been standing and retrieved a package of cigarettes which had a wad of aluminum foil in it. He opened the aluminum foil and observed five pieces of rock-like substances which appeared to be crack cocaine.

He asked to whom the cigarettes belonged. Newton said his cigarettes were in his vehicle over the sun visor, and his two companions said they did not smoke. After checking the sun visor and finding no cigarettes, Burton arrested Newton and transported him to police headquarters. The substance in the aluminum foil tested positive for cocaine. At trial, Newton denied throwing anything from his pocket at the time in question.

1. The first enumerated error is the failure to exclude evidence that Newton asserted his post-arrest, post -Miranda right to remain silent.

On direct examination, Burton was asked what steps he took after arriving at headquarters. He responded, “The crack cocaine was placed in the evidence room to be sent to the Augusta Crime Lab for expert testing. Mr. Newton was read his rights, at which time he refused to give any oral or written statements.”

No objection was raised nor motion for mistrial made, so there is no trial court ruling for appellate review in this regard. And as the law stands now, the trial court is not required to take action sua sponte when this type of inadmissible evidence which approaches abridgement of a defendant’s Fifth Amendment right to remain silent comes into the jury’s ken. Thus defendant waived the right to complain on appeal. Brewer v. State, 219 Ga. App. 16, 19 (4) (463 SE2d 906) (1995). Neither did defendant raise any objection with respect to his state constitutional right against self-incrimination. Ga. Const. of 1983, Art. I, Sec. I, Par. XVI.

Nevertheless, we point out that the comment should not have been made. It was clearly gratuitous because the witness was asked what he did, not what defendant did or did not do. The State is obligated to prepare its law enforcement witnesses to preclude inadmissible evidence.

The Supreme Court of Georgia has held that “[t]o reverse a conviction the evidence of the defendant’s election to remain silent must point directly at the substance of defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” Smith v. State, 244 Ga. 814, 816 (262 SE2d 116) (1979). The analysis in Smith rests on Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976). Thus, “not every comment directed toward á defendant’s silence will result in an automatic reversal. [Cit.]” Morris v. State, 167 Ga. App. 351, 352 (1) (306 SE2d 409) (1983). The officer’s comment did not point to the defendant’s defense and did not relate to his innocence. Nor was there any other evidence or commentary concerning this subject. Under these circumstances, we do not find “substantial prejudice” such that defendant’s trial was fundamentally unfair. Smith, supra; Duck v. State, 250 Ga. 592, 595 (300 SE2d 121) (1983). Compare Gibbs v. State, 217 Ga. App. 614 (458 SE2d 407) (1995).

2. Newton contends the State failed to prove guilt beyond a reasonable doubt because there is no evidence linking him to the cigarette package found by the officer.

Whether the officer’s testimony was sufficient to connect Newton to the cigarette package and thus to the cocaine was a jury question. On appeal of a guilty verdict, we do not redetermine the factual issues decided by the jury nor the weight of the evidence, but only its sufficiency under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Winn v. State, 215 Ga. App. 120 (1) (449 SE2d 667) (1994). Viewed to support the verdict, the evidence was sufficient to enable a rational trier of fact to find Newton guilty beyond a reasonable doubt of possession of the cocaine.

Decided May 16, 1997.

Before Judge Fleming.

Lawrence D. Gatehouse, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. As to the asserted break in the chain of custody of the contraband, “this issue was not preserved for appeal by any objection at trial. Defendant thus waived any error. [Cits.]” Mathis v. State, 204 Ga. App. 244, 245 (2) (418 SE2d 800) (1992).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A97A1084.
    JOHNSON v. THE STATE.
    (487 SE2d 90)
   Johnson, Judge.

John Daniel Johnson was convicted of misdemeanor involuntary manslaughter. The trial court sentenced him to 12 months on probation with the conditions that he reside for 120 days at a boot camp and that he stay in the county jail until reporting to the camp. On appeal, this Court vacated that portion of the sentence requiring Johnson to remain in confinement until reporting to boot camp, but affirmed that portion of the sentence requiring him to attend boot camp as a condition of his probation. See Johnson v. State, 219 Ga. App. 547 (466 SE2d 63) (1995). The Supreme Court reversed in part, holding that participation in the boot camp program was available only to probationers sentenced for felony offenses. See Johnson v. State, 267 Ga. 77 (475 SE2d 595) (1996). We remanded the case to the trial court for resentencing. See Johnson v. State, 223 Ga. App. 224 (477 SE2d 913) (1996). On remand, the trial court again sentenced Johnson to 12 months on probation, this time imposing special conditions that he serve 120 days at the Athens Diversion Center and serve weekends at the Clarke County Jail until acceptance into the diversion center. Johnson asserts in this appeal of the new sentence that the trial court erred by sentencing him to an indeterminate jail sentence as a condition of misdemeanor probation. We disagree.

Decided May 16, 1997.

Before Judge Stephens.

Lawrence S. McLarty, for appellant.

Harry N. Gordon, District Attorney, Richard L. Dickson, Assistant District Attorney, for appellee.

Johnson relies on Pitts v. State, 206 Ga. App. 635, 639 (3) (426 SE2d 257) (1992), but this reliance is misplaced. “[T]he imposition of any term of continuous and uninterrupted incarceration in a jail or penitentiary as a special condition of probation ... is unauthorized by law.” (Emphasis omitted.) Id. As now crafted, the sentence does not require continuous and uninterrupted incarceration and therefore does not violate the holding of Pitts. In fact the Court in Pitts specifically recognizes that confinement for intermittent periods, such as weekends, or confinement in a facility other than a jail or penitentiary for a continuous period are appropriate conditions of probation. Id.

Neither is the requirement that weekends be served at the jail until Johnson can be placed at the Athens Diversion Center indeterminate and therefore an improper condition of probation. “A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved.” (Citation, punctuation and emphasis omitted.) Pitts, supra at 637 (3). In Ballenger v. State, 210 Ga. App. 627, 629 (3) (436 SE2d 793) (1993), we noted that the conditions of probation cannot exceed the length of the sentence. Therefore, Johnson can expect to serve 52 weekends in jail, unless an opening at the diversion center becomes available prior to the expiration of that time. See Acker v. State, 184 Ga. App. 321 (361 SE2d 509) (1987). Noting that conditions of probation are not imposed involuntarily, but are accepted by convicted criminals, such as Johnson, to avoid incarceration, Falkenhainer v. State, 122 Ga. App. 478, 479 (177 SE2d 380) (1970), we do not find that the conditions of this probated sentence, as tailored by the trial judge, are either unreasonable or indefinite.

Judgment affirmed.

Pope, P. J., and Blackburn, J., concur.


author: Smith, Judge.

text:
    A97A0631.
    TANKSLEY v. THE STATE.
    (487 SE2d 98)
   Smith, Judge.

Patrick Tanksley along with two other persons was charged by indictment with armed robbery (OCGA § 16-8-41) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). He was tried alone. A jury found him guilty of both counts. His motion for new trial was denied, and he appeals.

Construed to support the jury’s verdict, the evidence presented at trial showed that Tanksley picked up two other men and drove them in his girl friend’s 1982 tan Oldsmobile to a fast food store. The other two men robbed the clerk at gunpoint and left in the car driven by Tanksley. They took the clerk’s purse, the cash drawer, a bottle of wine, and a pack of cigarettes. The victim described the car as an older model, beige or tan.

Eddie Ray Lyle, a patrol officer with the Richmond County Board of Education Department of Public Safety, saw a beige car “almost run” a red light shortly thereafter. He had heard a description of the car over his police scanner and decided to follow the car. Although the description stated the car had three occupants, he observed only one. The car began evasive maneuvers, swerving around corners although not traveling at high speed. Lyle saw the driver’s face numerous times as the driver looked back at him. At some point during the chase, the other two occupants of the car became visible to Lyle. He then saw the car wreck and the occupants flee. Because he was alone, he decided not to follow any of the occupants. He kept the car under observation until the arrival of sheriff’s deputies. Lyle identified Tanksley as the driver the next day.

Tanksley testified in his own defense, admitting that he was driving the car, but denying he had participated in the robbery. He stated that when the two men entered the store, he did not know they were going to rob it and that when they returned to his car, he did not know they had done so. He claimed he knew nothing about a gun. He stated that the reason he evaded Lyle’s police cruiser was because he had left a diversion center before completing his sentence for being a habitual violator, and he did not want to face the consequences shortly before Christmas.

Kenneth Boose, Violent Crimes Investigator for the Richmond County Sheriff’s Department, testified that he processed the car the next day and discovered the victim’s purse, the cigarettes, and the wine in the car. He also testified that he visited Tanksley in jail after Tanksley asked to speak with him at his probation revocation hearing. Tanksley dictated a statement to Boose in which he stated that on the night of the robbery, one of the other men had shown him his gun. Nevertheless, Tanksley claimed in the statement he did not know about the robbery.

Decided May 20, 1997.

Before Judge Pierce.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

In three enumerations of error, Tanksley contends the trial court erred, both in denying his motion for directed verdict on the firearms .charge and in denying his motion for new trial, because the evidence was insufficient to authorize his conviction on either charge. We do not agree.

The clerk’s purse was found on the front passenger floorboard of the car. Boose testified that the purse would be visible to someone sitting in the driver’s seat. When viewed together with the other evidence showing Tanksley’s driving the car, his evasive maneuvers, and his statement to Boose that he saw the gun, the evidence demonstrates that Tanksley knowingly participated in the armed robbery by driving the getaway car. Although Tanksley offered an explanation for his conduct, the jury was not required to believe it. Campbell v. State, 221 Ga. App. 105, 107 (470 SE2d 503) (1996).

The evidence was sufficient to authorize the jury to convict Tanksley as a party to the crime of armed robbery under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Ellis v. State, 211 Ga. App. 605, 607-608 (1) (440 SE2d 235) (1994). Under similar reasoning, evidence was presented that he also aided and abetted the other two men in possessing a firearm while committing armed robbery, and the jury therefore was authorized to convict Tanksley as a party to that crime as well. Victrum v. State, 203 Ga. App. 377, 380 (3) (416 SE2d 740) (1992).

Judgment affirmed.

McMurray, P. J, and Beasley, J., concur.


author: Andrews, Chief Judge.

text:
    A97A0808.
    GRANT v. THE STATE.
    (486 SE2d 717)
   Andrews, Chief Judge.

Charles Jerome Grant appeals from the judgment entered on a jury verdict finding him guilty of robbery by sudden snatching. Grant contends the evidence was insufficient to support the verdict. For the reasons which follow, we agree and reverse the conviction.

The evidence at trial was that two men entered the Corrall Food Store shortly after lunch and one of them, identified at trial as Charles Grant, told the clerk he wanted to buy some batteries. He looked at batteries for a long time and seemed unsure what size he wanted. After she finished helping Grant with the batteries, the other man told her he wanted to buy some cigars, and he also took a long time looking at the cigars.

Decided May 20, 1997.

Before Judge George.

Gardner & Gardner, Milton F. Gardner, Jr., James M. Setters, for appellant.

The clerk then went to help another customer, and while she was waiting on this customer, the manager of the store came running out of the office and told her to call 911. The clerk testified she never saw anyone go into the office or take any money and was unaware that a robbery was taking place.

The manager of the store, Johnson, testified that on the day in question she was in the office getting the bank deposit ready when a man stuck his head in the door and asked the way to the rest room. After she directed him to the rest room, another man came to the office and asked to see the manager about a job in the store. Johnson laid aside the deposit money and went out to talk to him. She said the man was not paying any attention to her when she talked to him and kept looking toward the front of the store. He then asked her about birthday cards and she showed him where to find them. Johnson went back to the office and discovered the cash for the bank deposit was gone. As she ran out of the store, she saw a car speeding out of the parking lot.

The jury was charged only on the offense of robbery by sudden snatching under OCGA § 16-8-40. This Code section provides in pertinent part: “(a) A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: (1) By use of force; (2) By intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another; or (3) By sudden snatching.”

The offense of robbery by sudden snatching is committed when the victim becomes conscious that something is being taken from him and for some reason is unable to prevent it. McNearney v. State, 210 Ga. App. 582, 583 (436 SE2d 585) (1993). This awareness on the part of the victim is an essential element of the crime of robbery by sudden snatching. Id. at 584. The evidence at trial clearly showed that none of the victims was aware the money had been taken until after the men left the store and the crime was complete. Therefore, the evidence was insufficient to support the verdict. Id.

Judgment reversed.

Beasley and Smith, JJ., concur.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.


author: Eldridge, Judge.

text:
    A97A1231.
    KIRVES et al. v. JUNO INDUSTRIES.
    (487 SE2d 31)
   Eldridge, Judge.

Appellants Mark K. Kirves and Gary Hopkins appeal from the trial court’s order granting summary judgment to appellee/plaintiff Juno Industries on the issue of appellants’ personal liability for debts incurred by appellants’ corporation, Plastechnical Services, Inc. (“Plastechnical”). We affirm.

On October 18, 1989, appellants signed a “Letter of Guarantee” which stated in part that the undersigned parties, appellants, were “authorized in my/our capacity to bind my/our firm” to the credit terms delineated therein. However, the final line of the contract stated that “I/we the undersigned, personally guarantee the payment of all charges on the above account.” (Emphasis supplied.) Following this statement, the company name, Plastechnical Services, Inc., and the company address were supplied. Appellant Kirves’ signature was followed by the title “President,” and appellant Hopkins’ signature was followed by “Sec/Treasurer.” Under both signatures, apparently as part of the standard contract language, was the notation, ‘^Authorized Signature and Title,” and at the bottom of the contract was the note “*Must be officer of company.”

Between April and July 1992, almost three years after this contract was executed, Plastechnical failed to pay invoices totaling $19,582.69. Appellee sued for breach of contract of suretyship in August 1995, claiming an outstanding debt of $31,082.69 for goods and services provided, as well as accrued interest and attorney fees. The trial court granted appellee’s motion for summary judgment on January 17, 1997, awarding appellee $19,482.69 in principal, $13,909.90 in interest, and $4,998.88 in attorney fees, pursuant to OCGA § 13-1-11 (a) (2). Appellants challenge the trial court’s order, asserting that material issues of fact exist regarding whether or not they signed the letter of guarantee in their personal capacity or as representatives of Plastechnical.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Decided May 6, 1997

Reconsideration denied May 21, 1997

Before Judge Bishop.

Burruss & Anderson, Michael J. Anderson, for appellants.

Cabaniss & Adkins, George M. Cabaniss, Jr., for appellee.

Further, “[t]he construction of a contract is a question of law for the court,” while fact questions must be resolved by a jury. OCGA § 13-2-1. “It is well established that a court should avoid an interpretation of a contract which renders portions of the language of the contract meaningless. Burch v. Ragan, 92 Ga. App. 605 (89 SE2d 541) [(1955)]; OCGA § 13-2-2 (4).” Bd. of Regents &c. of Ga. v. A. B. & E., Inc., 182 Ga. App. 671, 675 (357 SE2d 100) (1987).

In the case sub judice, the contract is unambiguous, and it is clear that appellee extended credit for future product shipments to Plastechnical while also securing a personal guarantee of payment from the appellants. Any other construction of the “Letter of Guarantee” signed by appellants would be meaningless.

As such, this case is virtually indistinguishable from Upshaw v. Southern Wholesale Flooring Co., 197 Ga. App. 511 (398 SE2d 749) (1990), which held that a corporate secretary was personally bound under a surety contract, even though the abbreviation “Sec.” immediately followed her signature on the contract. Id. at 513 (3). This Court held that appellant had “unambiguously signed in her individual capacity and not in her representative capacity” and that “if appellant’s signature were held to have been made in her corporate capacity, the language of guaranty would be rendered meaningless. [Cit.]” Id.

Therefore, the trial court did not err in granting appellee’s motion for summary judgment on the issue of appellants’ personal liability under the contract and in ordering the appellants to pay $38,391.47 in principal, accrued interest, and attorney fees.

Judgment affirmed.

Birdsong, R J, and Ruffin, J., concur.

       Plastechnical filed for bankruptcy at an indeterminate time during the proceedings.


text:
    A97A1378.
    MILLER v. THE STATE.
    (486 SE2d 911)
   Eldridge, Judge.

William Jack Miller appeals the judgment entered upon a Stephens County jury verdict finding appellant guilty of rape and child molestation. We affirm.

Viewed in a light most favorable to the verdict, the evidence of record shows that during a two-week spring vacation in 1992, appellant asked his ten-year-old granddaughter into his bedroom and gave her a Barbie doll. He closed and locked the bedroom door. Appellant told his granddaughter that he had “another present” for her and removed the clothing from the lower half of his body, as well as the clothing from the lower half of the victim’s body. Appellant put the child on his bed and got on top of her; he fondled her “neck,” breasts, and touched her vaginal area. He then penetrated the victim’s vagina with his penis. Appellant hurt the victim. She “had trouble walking for two to three days,” and “it felt like ... a stick had been put up side [sic] of her.”

The victim made outcry to her elementary school counselor, to her mother, and subsequently to a Department of Family & Children Services worker and to the police, all of whom testified at trial as to the victim’s consistent statements to them regarding the appellant’s sexual acts against her as reflected above. The victim also testified at trial as to appellant’s acts of molestation and rape. In addition, the State introduced a sexually explicit picture that the victim had drawn during her first outcry to the school guidance counselor; the picture detailed her rape by the appellant. The cartoon-like picture contained the caption “This is the things his [sic] done to me!” and included dialogue balloons illustrating a conversation between appellant and the victim during the sex act, wherein the victim was crying “Don’t,” and the appellant was responding “Don’t tell this is fun this is our game [sic].”

1. Appellant first challenges the sufficiency of the evidence to support the verdict. We find the evidence sufficient for a rational trier of fact to have found the appellant guilty of the offenses of rape and child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Any conflicts in the evidence regarding the date the offenses were alleged to have occurred do not alter this result. Where the date alleged in the indictment is not a material element of the offense, the State may prove the offense as of any date within the statute of limitation. Wade v. State, 147 Ga. App. 511 (249 SE2d 323) (1978); Decker v. State, 139 Ga. App. 707 (229 SE2d 520) (1976); Jefferson v. State, 136 Ga. App. 63 (220 SE2d 71) (1975). While in this case there was conflicting evidence as to whether the events in question occurred in May 1991 or in May 1992, such testimony sufficiently placed the date of the charged offenses within the seven-year limitation period. OCGA § 17-3-1 (b), (c); see Caldwell v. State, 139 Ga. App. 279 (228 SE2d 219) (1976); Decker, supra.

2. Next, appellant contends that the trial court erred in permitting the victim to testify about prior acts of rape appellant had committed upon her. Appellant styles these occurrences as “similar transactions” and contends that the State did not provide notice pursuant to Uniform Superior Court Rule (“USCR”) 31.3, nor was a hearing conducted pursuant to that rule.

Specifically, appellant protests that portion of the victim’s testimony in the midst of direct examination wherein the following dialogue occurred: Prosecutor: “Where did that [rape] take place?” Victim: “At his house.” Prosecutor: “Did it take place in a particular room in his house?” Victim: ‘Yes.” Prosecutor: “Where?” Victim: “In his bedroom.” Prosecutor: “Was it on the floor or in the bed or where?” Victim: “On the bed.” Prosecutor: “How many occasions — how may different times did that [rape] happen?” Victim: “I can’t really count how many times but —” Prosecutor: “Was it more than one time?” Victim: ‘Yes, we had lived with him.” Prosecutor: “Did the same thing happen each time?” Victim: ‘Yes.” Prosecutor: “Did grandpa [appellant] do this in the same place each time?” Victim: ‘Yes.”

Thereafter, appellant objected, contending that prior testimony from another witness showed that the victim and her mother had lived with appellant when the victim was four years old, six years earlier than the offenses alleged in the indictment; thus, appellant argued, the victim’s references to prior acts that had occurred when she had “lived with” the appellant must be similar transactions, and a mistrial was required.

Upon review of this testimony, it is unclear to this Court that the victim was referring to a time period other than the spring vacation in which the indicted acts occurred. However, even if such interpretation is possible, an “indictment charging the commission of an offense, without showing that the date alleged therein is an essential averment,’ covers any offense of the nature charged within the [appropriate] period of limitation, including the date alleged.” Grantham v. State, 117 Ga. App. 444 (1) (160 SE2d 676) (1968); see also Pittman v. State, 179 Ga. App. 760 (1) (348 SE2d 107) (1986). “[T]he State is not confined to proof of a single transaction, but may prove or attempt to prove any number of transactions of the nature charged within the period, although punishment upon conviction is limited to a single offense, and acquittal or conviction, upon proper plea, operates as a bar to further prosecution for any offense of the nature charged within the period. [Cits.]” Grantham, supra at 444 (1); accord Pittman, supra at 760. See also State v. Stamey, 211 Ga. App. 837, 838 (1) (440 SE2d 725) (1994); Nolton v. State, 196 Ga. App. 690, 691 (1) (396 SE2d 605) (1990); Garrett v. State, 188 Ga. App. 176, 177 (2) (372 SE2d 506) (1988); Bowman v. State, 184 Ga. App. 197 (2) (361 SE2d 58) (1987).

Further, where molestation, incest, or even rape occurs repeatedly over the period of the statute of limitation against the same victim in the same way, proof of such occurrence is not a prior similar offense but constitutes proof of the offense charged, and thus excludes such acts from the ambit of the rules governing the admission of similar transaction evidence. Robinson v. State, 202 Ga. App. 576, 577 (1) (415 SE2d 21) (1992). See also Garrett, supra at 177; Bowman, supra at 197; Pittman, supra at 760; Worth v. State, 183 Ga. App. 68, 70 (2) (358 SE2d 251) (1987); Caldwell, supra at 281. The trial court did not err in permitting the testimony about which appellant complains.

3. In his third enumeration of error, appellant objects to the trial court’s charge to the jury on the law regarding similar transaction evidence, which instruction limited the jury’s consideration of such evidence to the demonstration of appellant’s “state of mind.” This contention is meritless.

Appellant voluntarily put his character at issue by calling a character witness and asking the statutory questions pursuant to OCGA § 24-9-84. Evidence of prior acts was then admitted into evidence in the case sub judice; both of appellant’s adult daughters testified that, as children, appellant had raped them.

It is important to note that before this Court, appellant does not contest the admissibility of such testimony, but argues only that such evidence was not “similar transaction evidence” so as to support a jury charge thereon. Appellant contends that one daughter’s testimony (the victim’s aunt) was admitted for a “distinct purpose unrelated to similar transaction protocol,” and the other daughter’s testimony (the victim’s mother) was introduced “in rebuttal of [appellant’s] direct testimony” that he had never touched his daughters. Appellant argues that, as there was no proper evidence of similar transactions in the case sub judice, the giving of a jury charge thereon constituted reversible error. We disagree for several reasons.

First, during trial, appellant repeatedly referred to the testimony from the victim’s aunt and mother as “similar transaction” evidence and cannot now complain because the trial court agreed with him and, accordingly, charged the jury on the law regarding similar transactions. A party cannot complain of error created by his own conduct. Bevil v. State, 220 Ga. App. 1, 3 (7) (b) (467 SE2d 586) (1996).

Next, following appellant’s introduction of his character into evidence, the testimony of the victim’s mother and aunt that appellant had raped them when they were children was admitted as evidence of prior similar acts, which admission supported the giving of a similar transaction jury charge. “[PJrior act evidence will be inadmissible because evidence of the accused’s character is not admissible unless and until the accused puts his character in evidence. McCormick on Evidence, 4th Edition, § 190.” (Emphasis supplied.) Barrett v. State, 263 Ga. 533, 534 (2) (436 SE2d 480) (1993). However, “[i]f upon the trial of the case the defense places the defendant’s character in issue, evidence of similar transactions or occurrences, as shall be admissible according to the rules of evidence, shall be admissible, the above [notice and hearing] provisions notwithstanding.” USCR 31.3 (D). In the case before us, the defense’s placement of appellant’s character in evidence acted as a waiver of the character issue and made admissible the testimony of appellant’s daughters regarding his prior similar sexual acts against them as children. Such testimony was presented in accordance with the rules of evidence pursuant to Title 24 of the Official Code of Georgia. See OCGA §§ 24-9-20; 24-2-2; 24-9-68; see also Farley v. State, 265 Ga. 622 (2) (458 SE2d 643) (1995). The admission of this prior crimes evidence demonstrating the sexual exploitation of young family members over generations was clearly relevant and material to the offenses as charged. Nichols v. State, 221 Ga. App. 600 (473 SE2d 491) (1996); Hall v. State, 204 Ga. App. 469, 470-471 (1) (419 SE2d 503) (1992). There is little question that, under prior decisions, the appellant’s molestation of his two daughters would be admissible to show “lust,” bent of mind, and propensity to molest young female relatives. See also Johnson v. State, 242 Ga. 649, 652-653 (3) (250 SE2d 394) (1978); Wilson v. State, 220 Ga. App. 487, 489-491 (2) (469 SE2d 516) (1996); Phillips v. State, 220 Ga. App. 248 (1), 249 (469 SE2d 292) (1996); Painter v. State, 219 Ga. App. 290, 291-293 (2) (465 SE2d 290) (1995); Guest v. State, 216 Ga. App. 457, 459-460 (4) (454 SE2d 622) (1995); Upshaw v. State, 215 Ga. App. 529, 530 (2) (451 SE2d 125) (1994); Gonzalez v. State, 213 Ga. App. 667, 668 (445 SE2d 769) (1994); McGarity v. State, 212 Ga. App. 17, 19 (2) (440 SE2d 695) (1994); Bryson v. State, 210 Ga. App. 642, 643-644 (2) (437 SE2d 352) (1993); Moore v. State, 207 Ga. App. 412, 414 (427 SE2d 779) (1993); Stine v. State, 199 Ga. App. 898, 899 (2) (406 SE2d 292) (1991); Daniel v. State, 194 Ga. App. 495, 496 (1) (391 SE2d 128) (1990); White v. State, 193 Ga. App. 428, 429 (1) (387 SE2d 921) (1989).

Child molestation, child abuse, and family violence are uniquely those cases in which the victim or victims are repeatedly and secretly the subject of criminal conduct over long periods of time, and the accused may maintain a public fagade of “good character,” which can be used to defend against such charges. Thus, when an accused seeks to hide behind the masking evidence of “good character,” the requirements of USCR 31.3 are waived, and evidence of prior similar acts of abuse against family members may be used to strip away the mask. Farley, supra at 623; USCR 31.3 (D). This type of evidence was before the jury in the instant case, and a jury charge on the law regarding similar acts, although not necessary for such impeaching evidence, was appropriate under the circumstances and certainly tailored to the evidence. See Griffin v. State, 155 Ga. App. 77, 78 (270 SE2d 299) (1980).

Finally, appellant has failed to allege how a jury charge which limited the jury’s consideration of prior acts evidence to a single, relevant purpose, “state of mind,” was in any way harmful, especially in light of the fact that the jury could have considered such evidence for a myriad of purposes, since it was properly introduced in rebuttal to appellant’s claim of good character. As the similar acts evidence was properly before the jury, such limiting instruction was beneficial to the appellant and definitely forms no basis for reversal. “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal.” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994). Appellant has shown neither.

4. The trial court properly denied appellant’s motion for new trial based on the “newly discovered evidence” that the victim recanted her accusation that appellant committed the crimes against her.

“That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that her former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication.” (Citations and punctuation omitted.) Logan v. State, 212 Ga. App. 734, 738 (2) (442 SE2d 883) (1994). No such evidence of “pure fabrication” was presented to the court below, nor has any been presented to this Court. We find as persuasive the finder of fact’s determination at the jury trial that appellant committed the offenses against the victim as alleged and proved.

5. Appellant was convicted of rape and child molestation; he next contends that the offense of child molestation merged, factually, into the rape count, and thus his sentence for the offense of child molestation cannot stand.

“While child molestation may be a lesser included offense of. . . rape, where separate and distinct acts of molestation occur which are short of rape or where they occur at different locations or on different dates, no merger occurs.” Walker v. State, 214 Ga. App. 777, 780 (6) (449 SE2d 322) (1994). In this case, the State introduced evidence that appellant fondled the victim’s breasts and vaginal area with his hands, prior to committing the actual rape of the victim. Such evidence is sufficient to sustain appellant’s conviction of child molestation independent of the rape conviction. This enumeration of error is meritless.

6. In his last enumeration of error, appellant alleges, for the first time, a claim of ineffective assistance of counsel against his trial attorney.

Following conviction, appellant’s trial counsel filed a motion for new trial and an amended motion. A hearing on the motion was held October 3, 1994, and was continued for further evidence. On January 9, 1996, trial counsel made a motion to withdraw, which motion was granted. On July 8, 1996, appellate counsel filed an entry of appearanee. Appellate counsel represented appellant at the second hearing on the motion for new trial on November 26, 1996, five months following the entry of appearance. Following the second hearing, the motion for new trial was denied on December 2, 1996, and appellate counsel filed a notice of appeal on appellant’s behalf.

Decided May 9, 1997

Reconsideration denied May 21, 1997.

Before Judge Struble.

Glyndon C. Pruitt, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

A motion for new trial may be amended any time on or before the ruling thereon. OCGA § 5-5-40 (b). After his entry of appearance, appellate counsel had six months and an. entire evidentiary hearing in which to amend the motion for new trial in order to add a claim of ineffective assistance of trial counsel, before the ruling of the trial court on the motion precluded such amendment. This was not done, although “ample opportunity” was available. Sartin v. State, 223 Ga. App. 759 (479 SE2d 354) (1996). Accordingly, we will not consider such claim raised for the first time on direct appeal by appellate counsel, when direct appeal does not mark the first appearance of appellate counsel. Glover v. State, 266 Ga. 183 (465 SE2d 659) (1996). This enumeration of error is waived.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       All parties agree that the date of the offenses alleged in the indictment, May 27,1992, was immaterial, and the indictment specifies such.

       At the time of the offenses committed herein, the statute of limitation for rape and for all felonies committed against persons under the age of fourteen was seven years. OCGA § 17-3-1 (b), (c).

       Compare those instances wherein the indictment charged that the molestation was committed in a specific manner, and the similar offense evidence showed that the prior abuse was committed in a different manner from the offense charged. Robinson v. State, 213 Ga. App. 577, 578 (1) (445 SE2d 564) (1994); Burnett v. State, 202 Ga. App. 563, 564 (415 SE2d 43) (1992). Herein, however, the victim testified that the nature and manner of the prior abuse was the same as the offense alleged.

       Further, in Farley, supra at 622-623, when finding that prior similar conduct satisfied the admissibility requirements of USCR 31.3 and Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), our Supreme Court stated, “[bjowever, OCGA § 24-9-20 (b) [character voluntarily introduced by defendant] has no applicability here, since we do not deal with any issue concerning appellant’s testimony'or the evidentiary consequences of his opening of the ‘character’ door.” Implicit in this statement is that the rights enunciated in Williams, and afforded a defendant under USCR 31.3, can be waived by putting good character into evidence pursuant to OCGA § 24-9-20 (b), as was done in the case sub judice.

       We will not consider the testimony of psychologist Dr. Barrie Alexander, who was called by the defense at the motion for new trial to testify as to whether Dr. Alexander was “satisfied that [the victim] was not telling the truth at the original trial and that she has told the truth today [recantation].” Such evidence was as improper as it was unpersuasive. “In no circumstance may a witness’ credibility be bolstered by the opinion of another, even an expert, as to whether the witness is telling the truth. An expert witness may not testify as to his opinion of an ultimate issue of fact unless the inference to be drawn from the evidence is beyond the ken of the [factfinder]. Credibility of a witness is not beyond the ken of the [factfinder] but, to the contrary, is a matter solely within the province of the [factfinder]. OCGA § 24-9-80. An expert witness may not testify as to his opinion of the victim’s truthfulness.” (Citations and punctuation omitted.) Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994).


text:
    A97A0513.
    McNAIR v. THE STATE.
    (487 SE2d 100)
   Andrews, Chief Judge.

Ollie M. McNair appeals from the judgment entered on a jury verdict finding him guilty of possession of cocaine with intent to distribute. On appeal, McNair argues the evidence was insufficient to support the verdict and the trial court erred in allowing evidence of a similar transaction without a Uniform Superior Court Rule 31.3 (B) hearing.

The evidence at trial, taken in the light most favorable to the jury’s verdict, Gazaway v. State, 207 Ga. App. 641, 642 (428 SE2d 659) (1993), was that two police detectives were looking for McNair in order to question him about a homicide they were investigating. The officers saw McNair and another man standing on a street corner and pulled over to the curb. When McNair saw the officers, he threw something on the ground and stepped on it. The detectives got out of the car, went over to the two men and asked McNair to step back. They found what was later identified as seven rocks of crack cocaine.

An officer testified at trial that McNair was charged with possession with intent to distribute because of the amount of the cocaine. The officer stated that a user normally would have only one or two rocks in his possession, not seven.

The State presented evidence of a similar transaction which occurred after the events described above. McNair was stopped and arrested for driving without a license and a search of the car resulted in the discovery of six to ten pieces of crack cocaine under the driver’s seat. He was then charged with possession with intent to distribute.

1. On appeal, McNair argues the evidence was insufficient to show possession with intent to distribute. He contends the officer’s testimony that the amount of crack cocaine found was consistent with distribution and not mere possession was insufficient because the officer was not qualified as an expert. We agree.

The evidence at trial was clearly sufficient to show possession of the cocaine. However, mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980). “We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.” Stephens v. State, 219 Ga. App. 881, 882 (1) (467 SE2d 201) (1996) (physical precedent only), citing James v. State, 214 Ga. App. 763, 764 (449 SE2d 126) (1994).

Here, the only additional evidence presented was the officer’s testimony that the amount recovered was consistent with distribution and the similar transaction evidence. In Davis v. State, 200 Ga. App. 44, 46 (406 SE2d 555) (1991), we determined that “knowledge of the amount of crack cocaine one would generally possess for personal use or the amount which might evidence distribution is not necessarily within the scope of the ordinary layman’s knowledge and experience. Therefore, the testimony was properly admissible under OCGA § 24-9-67.” Id. at 46 (2).

In the present case, the officer who testified as to the amount being consistent with distribution was not qualified as an expert. Moreover, the prosecutor did not elicit any background information from the officer from which a jury could infer his expertise and special knowledge on this issue. Lindley v. State, 225 Ga. App. 338 (484 SE2d 33) (1997). “This unqualified testimony was not competent evidence of an intent to distribute.” Stephens, supra at 883 (1).

Decided May 21, 1997.

Before Judge Land.

Mark T. Phillips, for appellant.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

The State argues that, even without any expert testimony, the similar transaction evidence was enough to support the conviction. We disagree. The only evidence at trial of a similar transaction was the officer’s testimony that he arrested McNair for driving without a license and then discovered six rocks of crack cocaine underneath the seat of his car. Another officer testified that this amount was consistent with distribution rather than mere possession, but once again, the officer was never qualified as an expert nor was he asked to give any personal background information. Moreover, there was no evidence that McNair was ever convicted on this charge.

Therefore, the only competent evidence introduced at trial was that McNair was in possession of seven rocks of cocaine. There was no additional evidence offered from which the jury could find an intent to distribute. Accordingly, we find the evidence was insufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find McNair guilty of possession with intent to distribute beyond a reasonable doubt. Stephens, supra; Dyer, supra. Since there was sufficient evidence to support a verdict for possession of cocaine, this case is remanded with direction that the judgment of conviction for possession with intent to distribute be vacated and judgment and sentence for possession of cocaine be entered. Stephens, supra.

2. In light of the holding above, we need not address the remaining enumeration of error.

Judgment vacated and case remanded with direction.

McMurray, P. J., and Beasley, J., concur.

       We also note that this Court has held that evidence of a prior conviction of possession with intent to distribute along with expert testimony that the amount was consistent with an intent to distribute amounted to proof of intent. See, e.g., Dyer v. State, 218 Ga. App. 879, 880 (463 SE2d 718) (1995); Davis, supra at 46. Accordingly, under these cases, neither expert testimony nor a prior conviction, standing alone, would be sufficient competent evidence of intent to distribute.


author: McMurray, Presiding Judge.

text:
    A97A0003.
    CATES v. THE STATE.
    (486 SE2d 654)
   McMurray, Presiding Judge.

Defendant was charged with homicide by vehicle in the second degree and following another vehicle too closely. He now appeals the trial court’s denial of his motion for discharge and acquittal based on the State’s alleged failure to comply with his speedy trial demand under OCGA § 17-7-170.

The trial court entered an order finding that defendant filed his statutory demand for trial on November 15, 1994, during a court term in which juries were impaneled and qualified to try him; that defendant was not tried within this court term; that the next succeeding regular court term began on January 3, 1995, and ended on July 3, 1995; that defendant’s trial was set for January 20, 1995, but was continued (upon the State’s request) and specially set for trial on March 15, 1995; that the trial court granted the State’s motion to nolle prosequi the charges against defendant on March 15, 1995; that the State filed an accusation recharging defendant with these offenses on May 26, 1995; that defendant failed to appear when his case was called for trial on June 20, 1995, pursuant to a published trial calendar; that defendant’s case was recalled for trial on June 28, 1995, and that defendant’s trial then began, which was six days before expiration of the last court term in which defendant was required to be tried under OCGA § 17-7-170 (b). The trial court’s order also reveals that defendant requested a recess while the State was presenting evidence on the second day of trial, June 29, 1995 (within the same court term); that the trial court granted this recess until July 6,1995 (three days after expiration of the court term); that the trial judge presiding over defendant’s trial was unable to resume his judicial duties after this recess (due to the sudden death of his father), and that the trial court’s Chief Judge declared a mistrial when defendant refused to accept a substitute judge or consent to a recess until the assigned trial judge was able to resume his judicial duties.

The trial court denied defendant’s motion for discharge and acquittal, finding that “[t]he conduct of the Defendant and by his counsel of demanding a trial, proceeding to trial, not consenting to a substitute judge and objecting to a further recess of the case in addition to requesting the mistrial and realizing that such action would pass the case into the next term, amounts to conduct seeking to avoid a trial and thereby affirmatively waives the demand.” Held:

A defendant may waive his right to be tried within the time fixed by OCGA § 17-7-170 (b) by causing or consenting to a delay of the proceedings. Jackson v. State, 222 Ga. App. 700, 701 (475 SE2d 717). Such a waiver will not be found, however, where the State unfairly schedules trial so as to deliberately deprive an accused of his statutory right to a timely trial or discharge. Birts v. State, 192 Ga. App. 476, 477-478 (385 SE2d 120). The trial court, in the case sub judice, found no such “prosecutorial misconduct” and we find nothing in the record which refutes this finding. Notwithstanding, defendant contends the State’s delay in calling his case for trial was the primary reason he was not tried within the court term prescribed by OCGA § 17-7-170 (b). This assertion is without merit.

Decided May 8, 1997

Reconsideration denied May 22, 1997

Before Judge Jackson.

Casey & Rowsey, Kellie R. Casey, for appellant.

June D. Green, Solicitor, James M. Miller, Assistant Solicitor, for appellee.

OCGA § 17-7-170 does not deprive the State of latitude in managing its caseload. It requires the State to try any person charged with a non-capital offense (who has properly filed a statutory demand) within the term in which “the demand is made or at the next succeeding regular term thereafter, provided at both court terms there were juries impaneled and qualified to try him. . . OCGA § 17-7-170 (b). The State discharged this duty by opening its case against defendant during the last court term in which defendant was required to be tried. See Bailey v. State, 209 Ga. App. 390 (1) (433 SE2d 610). Defendant delayed the proceedings by asking the trial court to recess trial until three days after expiration of the court term in which defendant was required to be tried. Under these circumstances, as well as defendant’s refusal to accept a substitute judge or consent to a recess until the assigned trial judge was able to resume his judicial duties, we cannot say the trial court erred in finding that “[t]he conduct of the Defendant and by his counsel of demanding a trial, proceeding to trial, not consenting to a substitute judge and objecting to a further recess of the case in addition to requesting the mistrial and realizing that such action would pass the case into the next term, amounts to conduct seeking to avoid a trial and thereby affirmatively waives the demand.”

The trial court did not err in denying defendant’s motion for discharge and acquittal.

Judgment affirmed.

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


author: McMURRAY, Presiding Judge. Beasley, Judge,

text:
    A97A0130.
    HOCKMAN v. THE STATE.
    (487 SE2d 102)
   McMURRAY, Presiding Judge.

Defendant filed this appeal after his conviction for trafficking in methamphetamine in violation of the Georgia Controlled Substances Act. Defendant challenges the denial of his motion to suppress, arguing that contraband found at his place of business was unlawfully-seized pursuant to a search warrant that was inadequately supported by the affidavit of Narcotics Investigator Kelly Meredith. Investigator Meredith signed this affidavit on September 6, 1994, and the issuing magistrate signed the underlying search warrant on September 6, 1994. Investigator Meredith’s affidavit provides, in pertinent part, as follows:

“In the past three (3) days from Friday, September 2, 1994, a controlled purchase of methamphetamine (approximately 1 gram) was made from [defendant at his place of business] by a confidential reliable source; hereto referred to as ‘Source A’. Source A’s person and vehicle [were] searched by affiant prior to Source A’s arrival at the aforementioned location and after the controlled purchase by Source A. No contraband was found before Source A’s arrival for the controlled purchase, and the only contraband found after the controlled purchase was the contraband which was purchased with official Piedmont Northern M.A.N.S. currency. Affiant did follow Source A to the aforementioned location, watched Source A enter the aforementioned location, and followed Source A back to a pre-arranged meeting place after the controlled purchase.

“Source A is believed to be reliable due to the following reasons: (1) Source A approached law enforcement personnel and affiant of his own free will, with no apparent motive for falsification of the information given. (2) Source A is a mature person, has proven to be prompt in his contacts with law enforcement. (3) Source A gave information to law enforcement officers and affiant against his own penal interest. (4) Source A has a personal interest and rapport with [defendant]. (5) All information supplied to affiant and other law enforcement officers to this point has proven to be truthful and consistent.

“Independent investigation by affiant has revealed the following: (1) A check of the described location was made by affiant, and it was found that the information given by Source A was correct as to the description of the location. (2) A check with law enforcement officers in Barrow County, Georgia reveals that information has been given to those officers for a number of months that [defendant] was involved in illegal drug manufacture, possession, sell, and use, however, local law enforcement has not been able to get enough information to take actions on the information they had received. This information has been given to Barrow County law enforcement on more than one occasion, and by more than one person. (3) A check with Special Agent Robert Curbelo of the Gainesville, Ga. Drug Office of the Georgia Bureau of Investigation reveals that they have also received information that [defendant is] involved in the manufacture, distribution, sell, and use of illicit drugs. (4) Investigator John Thompson of the Piedmont Northern M.A.N.S. Unit advises affiant that he has also [had] a confidential informant to give him information which alleges that [defendant] has been and is currently involved in the manufacture, distribution, sell, and use of illicit drugs. . . ” Held:

1. “The question presented is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched. See State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).” Perkins v. State, 220 Ga. App. 524 (1) (469 SE2d 796). While Investigator Meredith’s affidavit in the case sub judice is replete with conclusory allegations which do not establish “Source A’s” reliability, Veasey v. State, 113 Ga. App. 187 (3) (147 SE2d 515), the investigator’s information regarding the controlled drug buy at defendant’s place of business provided probable cause for a search of that establishment. Perkins v. State, 220 Ga. App. 524, 525 (2), supra. Defendant argues, however, that Investigator Meredith’s general information as to the time of the controlled drug buy does not support the magistrate’s judgment that illegal drug activity was a reasonable probability at defendant’s place of business when the search warrant issued on September 6, 1994. See Fowler v. State, 121 Ga. App. 22 (172 SE2d 447). Defendant suggests the investigator’s affidavit should have included the controlled drug buy’s specific date and time. We do not agree.

“ ‘Time is assuredly an element of the concept of probable cause. (Cit.) However, the precise date of an occurrence is not essential. Rather, the inquiry is as to whether the factual statements within the affidavit are sufficient to create a reasonable belief that the conditions described in the affidavit might yet prevail at the time of issuance of the search warrant. (Cit.)’ State v. Luck, 252 Ga. 347 (312 SE2d 791) (1984).” Dixon v. State, 197 Ga. App. 369, 370 (398 SE2d 428). In the case sub judice, the issuing magistrate signed the warrant for a search of defendant’s place of business on September 6, 1994. The probative facts alleged in Investigator Meredith’s supporting affidavit indicate that defendant’s place of business is a hub for illegal drug distribution. Under these circumstances, we find Investigator Meredith’s information that “Source A” executed a controlled drug buy at defendant’s place of business “[i]n the past three (3) days from Friday, September 2, 1994 . . .” sufficient to authorize the magistrate’s judgment that illegal drug activity was a reasonable probability at defendant’s place of business when the search warrant issued on September 6, 1994.

We are concerned because Investigator Meredith’s affidavit does not disclose that he was aware, when the search warrant issued, that “Source A” was a paid police informant and an admitted drug abuser. Redding v. State, 192 Ga. App. 87 (383 SE2d 640). “Even under the common sense ‘totality of the circumstances’ test of Stephens, [supra,] an informant’s reliability is a relevant consideration. Poole v. State, 175 Ga. App. 374 (1) (333 SE2d 207) (1985). Accordingly, officers seeking warrants should provide the magistrate with any information they have relevant to a Cl’s [confidential informant’s] reliability or motivation, including criminal records and any payments made; and in some cases, if the information is material and the affiant knowingly or recklessly omits it, suppression of the seized material could result. See Redding v. State, 192 Ga. App. 87[, supra] (if material information is knowingly or recklessly omitted, the reviewing court should include it with other information provided the magistrate to determine whether probable cause to issue the warrant existed).” Perkins v. State, 220 Ga. App. 524, 525 (2), supra. Although it appears in the case sub judice that Investigator Meredith did not provide the magistrate with all the information he had relevant to “Source A’s” reliability or motivation, these relevant factual omissions are not fatal to the search warrant’s vitality because the investigator independently affirmed that illegal drug activities were taking place at defendant’s place of business. See Perkins v. State, 220 Ga. App. 524, 525 (2), supra. Consequently, the trial court did not err in denying defendant’s motion to suppress.

2. The State’s motion to dismiss this appeal is hereby denied.

Judgment affirmed.

Beasley, J., concurs specially. Smith, J., concurs in the judgment only.

Beasley, Judge,

concurring specially.

I concur in the ruling that the detailed information in the affidavit concerning the recent controlled drug purchase constituted sufficient probable cause for the issuance of the search warrant. I do not conclude that all of the other information constituted nothing more than conclusory allegations as to the informant’s reliability.

We need not address whether the statements are supportive fact or inconsequential conclusions, either in toto or item by item, however, because of the sufficient base provided by the purchase controlled by the affiant. Of course, underlying facts must be set out, so that the magistrate can make an independent determination of reliability and the appellate court, if called upon, can provide an informed review of whether the warrant issuance met constitutional requirements. Caswell v. State, 219 Ga. App. 787, 788 (466 SE2d 907) (1996). See Keller v. State, 169 Ga. App. 596 (314 SE2d 255) (1984) (reviewing court determines if magistrate had substantial basis to find probable cause); State v. Jackson, 166 Ga. App. 671 (305 SE2d 417) (1983) (affiant must give underlying facts).

Decided May 22, 1997.

Before Judge Adamson.

Jeffrey R. Sliz, for appellant.

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

       The search warrant was executed by law enforcement officers on September 8, 1994.