text:
    A90M764. A90A1765. A90A2001.
    McWHORTER v. THE STATE. BRAZELTON v. THE STATE. McWHORTER v. THE STATE.
    (402 SE2d 60)
   Carley, Judge.

Appellants were jointly tried before a jury and found guilty of aggravated assault. After the trial court entered judgments of conviction and sentences on the jury’s guilty verdicts, each appellant filed a separate notice of appeal. The three appeals raise the same enumerations of error and they are hereby consolidated for appellate disposition in this single opinion.

1. Construing the evidence most favorably for the State, the jury could have found beyond a reasonable doubt that appellant W. Mc-Whorter, acting without a reasonable belief that such force was necessary to prevent death or great bodily harm to himself, struck the victim in the head with a baseball bat and then struck him again after he had fallen to the ground. It follows that “[t]he evidence was sufficient to enable any rational trier of fact to find [appellant W. McWhorter] guilty of aggravated assault beyond a reasonable doubt. [Cits.]” Young v. State, 188 Ga. App. 601 (373 SE2d 837) (1988).

“ ‘While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, “ ‘presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.’ ” (Cit.)’ [Cits.] ‘ “(I)f the (defendant) had knowledge of the intended crime and shared in the criminal intent of the principal actor, he is an aider and abettor. (Cits.) Hence, if the defendant was at the scene and did not disapprove or oppose the commission of the offense, a trier of fact may consider such conduct in connection with prior knowledge and would be authorized to conclude the defendant assented to the commission of the offense, that he lent his approval to it, thereby aiding and abetting the commission of the crime. (Cit.)” (Cits.)’ [Cit.]” (Emphasis in original.) Butler v. State, 194 Ga. App. 208, 209 (2) (390 SE2d 278) (1990). The evidence that appellant Brazelton drove appellant W. McWhorter to the scene and waited while the crime was being committed in his presence and then drove the getaway vehicle in a precipitous manner was sufficient to authorize the jury to find him guilty beyond a reasonable doubt as a party thereto. Bell v. State, 156 Ga. App. 190 (274 SE2d 153) (1980). The evidence that appellant D. McWhorter was acting as a “look-out” during the commission of the crime and fled after its commission likewise authorized the jury to find him guilty as a party to that crime beyond a reasonable doubt. Lay v. State, 184 Ga. App. 655, 656 (1) (362 SE2d 458) (1987).

Decided January 17, 1991

Rehearing denied February 5, 1991

John A. Beall IV, William C. Drosky, for appellants (case nos. A90A1764 and A90A1765).

Michael R. Hauptman, for appellant (case no. A90A2001).

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

2. Appellants enumerate as error the trial court’s giving of a charge on simple battery. However, error, if any, was harmless because the giving of the charge was favorable to appellants. “We find no harm to a defendant in a charge which permits a jury to select a lesser offense than that charged — even though it be error, where his conviction of the greater offense is supported by the evidence.” Dismuke v. State, 142 Ga. App. 381, 385 (4) (236 SE2d 12) (1977). See also Wright v. State, 182 Ga. App. 570, 571 (2) (356 SE2d 531) (1987).

3. Appellants enumerate the trial court’s charge on self-defense and mutual combat as erroneously burden-shifting.

The charge tracked the language of OCGA § 16-3-21 and expressly placed the burden of proof on the State as to self-defense. Nevertheless, even “[assuming arguendo that a reasonable juror could potentially have interpreted [some portion of] the subject language as [unconstitutionally burden-shifting], we find no prejudice to [appellants’] substantial rights under the circumstances in this case. The trial court thoroughly and correctly charged the jury as to the burden of proof in a criminal case.” Mattox v. State, 185 Ga. App. 787, 789 (2) (366 SE2d 158) (1988).

4. Appellants enumerate as error the trial court’s failure to instruct on simple assault.

Even assuming that such an instruction would have been authorized (but see Ross v. State, 173 Ga. App. 313, 315 (8) (325 SE2d 919) (1985)), there was no reversible error. “There was no request either oral or written by [appellants] for an instruction on the lesser included offense of simple assault. In the absence of a timely written request, the trial court’s failure to charge on a lesser included offense is not error. [Cits.]” Lee v. State, 166 Ga. App. 644, 645 (5) (305 SE2d 175) (1983).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A90A1738.
    HALL et al. v. JOHNSON.
    (402 SE2d 98)
   Banke, Presiding Judge.

This is an appeal by the plaintiffs from a grant of summary judgment to the defendant in a personal injury action.

Plaintiff Larry Hall was injured when he was intentionally “headbutted” by the defendant, a fellow-employee, at their place of employment. He made a claim for workers’ compensation benefits as a result of the incident and received an award of compensation. He and his wife, Wanda, then instituted the present action to recover for his injuries and for his wife’s loss of consortium. The defendant moved for summary judgment on the ground that the plaintiff’s workers’ compensation claims constituted his exclusive remedy under the provisions of the Workers’ Compensation Act, and the trial court granted the motion. Held:

OCGA § 34-9-11 (a) provides: “The rights and the remedies granted to an employee by this chapter shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death; provided, however, that no employee shall be deprived of any right to bring an action against any third-party tortfeasor, other than an employee of the same employer. . . .” (Emphasis supplied.) The present action is clearly barred by this Code section. Accord Mann v. Workman, 257 Ga. 70 (354 SE2d 831) (1987); see also Williams v. Thomas, 187 Ga. App. 527 (370 SE2d 773) (1988) (holding that where an injured employee was barred by the exclusive remedy provision of the Workers’ Compensation Act from obtaining a judgment against a co-employee for injuries sustained as a result of the co-employee’s negligence, he was also precluded from recovering for the co-employee’s negligence under the uninsured motorist provisions of his automobile insurance policy). The appellants’ reliance on Brown v. Trefz & Trefz, 173 Ga. App. 586 (327 SE2d 556) (1985), as authority for a contrary conclusion is misplaced, inasmuch as there was no showing in that case that the injured plaintiff had received workers’ compensation benefits. Moreover, there was evidence in that case that the injury to the plaintiff had resulted from an intentional act directed against her by fellow employees for “purely non-work-related personal reasons.” Thus, it was not apparent as a matter of law in Brown that the Workers’ Compensation Act was applicable.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided February 5, 1991.

Charles W. Wrinkle, for appellants.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Michele R. Smith, Perkins & Perkins, Cliff C. Perkins, Jr., for appellee.


author: Sognier, Chief Judge.

text:
    A90A2183.
    SMALLWOOD v. MULKEY.
    (402 SE2d 99)
   Sognier, Chief Judge.

Frances T. Mulkey petitioned the Superior Court of Dawson County for an order adjudging Robert D. Smallwood in contempt for his intentional failure to abide by a previous order of that court. The trial court entered such an order, and Smallwood appeals.

The contempt order recites that the matter had previously come before the court on appellee’s motion to enforce a settlement agreement arrived at between the attorneys for the parties in the presence of their respective clients in open court. The contempt order also recites that a previous lawful order was entered on that motion, in which appellant was ordered to comply with the settlement agreement. The contempt order shows that the trial court heard evidence and argument, and found that appellant had not complied with the terms of the previous order, and that his conduct was both “wilful and contemptuous.”

Appellant contends the trial court erroneously held him in contempt, since before the appearance on his behalf in open court at which the settlement agreement originally was negotiated, his attorney had neither entered a formal appearance on his behalf nor signed any pleading pursuant to USCR 4.2, and thus was not an “attorney of record” with apparent authority to enter into a settlement agreement on appellant’s behalf under USCR 4.12. We need not address the merits of this argument (although we note that appellant was present when the settlement was purportedly negotiated), because no evidence supports appellant’s assertion other than his bare allegation, as no transcript appears in the record. In his notice of appeal appellant requested transmittal of a transcript, but this court has ascertained that no transcript exists, and the parties have failed to produce a transcript from recollection or stipulation as provided by OCGA § 5-6-41 (g), (i). There being a presumption in favor of the regularity of proceedings in courts of competent jurisdiction, we thus must assume that the trial court’s findings are supported by sufficient competent evidence. Siegel v. General Parts Corp., 165 Ga. App. 339, 340 (2) (301 SE2d 292) (1983). The facts as found by the trial court support an adjudication of contempt. Id.

Decided February 5, 1991.

L. Eddie Benton, Jr., for appellant.

Thompson, Fox, Chandler & Homans, David A. Fox, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2193.
    MOBLEY v. THE STATE.
    (402 SE2d 100)
   Sognier, Chief Judge.

Danny Mobley was convicted of selling cocaine, and he appeals.

The evidence adduced at trial, construed to support the jury’s verdict, showed that Agent Jeff Canady of the Grady County Drug Squad had been engaged in an undercover narcotics investigation for several months, during the course of which he became acquainted with Phillip Simmons. Simmons did not know Canady was a law enforcement officer. On August 9, 1989, Canady and Simmons were riding in a car furnished to Canady for the undercover operation when Simmons told Canady to follow a blue Pontiac Grand Prix because the driver had some “tens and twenties,” which Canady testified meant either ten or twenty dollar rocks of cocaine or ten or twenty dollar bags of marijuana. Simmons then instructed Canady to go to a certain park in the city of Cairo and wait. When the Grand Prix arrived at the park, Simmons and Canady approached the driver, who was the lone occupant of the Grand Prix, and Canady purchased a twenty dollar rock pf cocaine. Immediately after the purchase, Simmons told Canady the driver’s name was “David.”

During his approach to the Grand Prix Canady noted its tag number and, after leaving Simmons, Canady called the commander of the drug squad, Jimmy Black, and asked him to investigate the tag number. The car was registered to appellant. Canady testified that he later identified appellant, from a photograph, as the driver of the car. Chain of custody of the cocaine rock was established at trial, and expert testimony identified it as cocaine.

1. We find the evidence sufficient to authorize the jury to convict appellant of selling cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Dublin v. State, 194 Ga. App. 606 (391 SE2d 451) (1990).

2. Appellant contends the trial court erred by denying his motion to sever his trial from that of his codefendant, Simmons. We find no merit in this enumeration. The decision regarding severance is within the discretion of the trial court. Causey v. State, 192 Ga. App. 294, 297 (4) (384 SE2d 674) (1989). Appellant argues that because the jury was told he had gone to school with Simmons and had known him since childhood, he was prejudiced by evidence presented of Simmons’ history of cocaine abuse and several other charges of selling cocaine pending against Simmons, in that the jury naturally associated appellant with Simmons’ other illegal activities, which would not have been admissible against appellant in a separate trial. That concern is, indeed, one of the factors the court must consider in deciding whether severance is required. Id. However, the transcript shows that the trial court “meticulously instructed [the jury] that a separate verdict must be returned for each of the two defendants,” id., and that they were to consider any evidence of Simmons’ prior crimes “solely with reference to . . . Simmons” and should “not give such evidence any consideration in [their] deliberation of the guilt or innocence of [appellant].” Consequently, here, as in Causey, we find that the trial court’s denial of appellant’s motion to sever was not an abuse of discretion. Id.

3. Appellant maintains that Canady’s identification of him from a single photograph offended the requirements of due process, and that consequently the photograph should not have been admitted into evidence. However, even assuming, arguendo, that the original identification from a single photograph was impermissibly suggestive, see Talley v. State, 137 Ga. App. 548, 551 (224 SE2d 455) (1976), in order to establish a due process violation appellant must also show a very substantial likelihood of irreparable misidentification. Id. “[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972). Applying these factors, we find that the likelihood of misidentification was not very substantial. Canady was completely certain of his identification both at trial and shortly after the crime. He testified that he “stared at” appellant for a few minutes during the drug deal and got a good look at him.

Appellant’s argument that Simmons’ identification of appellant as “David” before the deal was made shows that appellant was not the driver of the Grand Prix is rebutted by Canady’s testimony that different names are often used in drug deals. The jury would have been authorized to conclude that a different name was given to protect appellant’s identity. Appellant’s emphasis on the absence of a description of the driver on the incident report completed by Canady is misplaced, as the missing description was explained by Canady, and any inference drawn from the lack of such a description would go to the weight, rather than the admissibility, of the photograph. See Manson v. Brathwaite, 432 U. S. 98, 117 (97 SC 2243, 53 LE2d 140) (1977). Accordingly, we find no error in the trial court’s admission of the photograph into evidence on this basis. Id.

4. Appellant contends the trial court erred by admitting the photograph into evidence because it impermissibly placed appellant’s character in issue by displaying him with an identifying number hung around his neck, thus intimating that appellant had been guilty of a previous crime. This court has held that “ ‘[t]he picture of [a] defendant with an identifying number does not indicate that the defendant was guilty of any previous crime and does not place his character in issue.’ [Cit.]” Anderson v. State, 152 Ga. App. 268, 269 (2) (262 SE2d 560) (1979); Little v. State, 135 Ga. App. 772 (1) (219 SE2d 19) (1975). Although in Anderson the photograph was taken at the time the accused was arrested for the crime which was being tried rather than upon a previous arrest, contrary to appellant’s assertion we find that to be a distinction without a difference, as the jury would have no way of discerning that the photograph admitted was made at the time of a previous arrest.

5. In his final enumeration, appellant contends the trial court erred by denying his motion for a mistrial made when Black referred to the photograph as having come from Cairo Police Department files. Appellant argues that this statement was prejudicial to him by indicating to the jury that he had a police record, and that our holding in Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978) requires reversal. We do not agree.

In Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983), overruled on other grounds, Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984), the Supreme Court held that no per se rule was set out in Boyd, and that the decision whether to grant a mistrial in such circumstances remained in the discretion of the trial court. The Sabel court set out some of the factors to be reviewed in making such a determination, which include “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Id. at 644 (5). In the case sub judice, we note that the court gave immediate curative instructions to the jury, thus lessening the prejudicial impact of the statement. In Ogles v. State, 238 Ga. 716 (235 SE2d 384) (1977), the Supreme Court determined that a very similar response by a testifying police officer did not place the character of the defendant in issue and was not grounds for reversal. See State v. Marshall, 195 Ga. App. 535, 537 (2) (394 SE2d 379) (1990). Moreover, appellant failed to renew his motion for mistrial after the curative instruction and thus has not preserved this ground for appellate review. See Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981).

Decided February 5, 1991.

Porter, Lehman & Chason, J. Kevin Chason, for appellant.

J. Brown Moseley, District Attorney, Donald E. Henderson, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2195.
    HOSPITAL AUTHORITY OF BEN HILL COUNTY v. BOSTIC.
    (402 SE2d 103)
   Sognier, Chief Judge.

Maggie Nelms Bostic brought suit against the Hospital Authority of Ben Hill County d/b/a Dorminy Medical Center (the “hospital”) to recover damages for injuries allegedly sustained when she fell on the sidewalk outside the hospital entrance. We authorized the hospital’s interlocutory appeal from the denial of its motion for summary judgment.

The material facts are not in dispute. Appellee had come to the hospital on September 4, 1987 to make a payment on an outstanding bill, which she testified by deposition she had done every week or every other week since incurring the obligation in 1985. Upon leaving the building, she walked along the same sidewalk she traversed on each visit. She caught the front portion of the sole of her shoe in a sidewalk expansion joint and fell, injuring her arm and knee. Appellee stated the weather was clear on the day at issue and that nothing obstructed her view of the sidewalk. She testified she was aware from previous visits to the hospital that the sidewalk contained cracks of uneven width, but did not realize her foot could become caught in them.

Proof of a fall, without more, does not give rise to liability on the part of a proprietor. There must be proof of fault on the part of the owner and ignorance of the danger on the part of the invitee. Gyles, Inc. v. Turner, 184 Ga. App. 376, 377 (361 SE2d 538) (1987). “[T]he basis for an owner’s liability for injury occurring to another while on the owner’s property is the owner’s superior knowledge of the danger or defect which was the proximate cause of the injury. The true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. ... [If the] invitee knows of the condition or hazard, there is no duty on the part of the proprietor to warn the invitee and there is no liability for resulting injury because the invitee has as much knowledge as the proprietor does.” (Citations and punctuation omitted.) Froman v. Ga. World Congress Auth., 197 Ga. App. 338, 339 (398 SE2d 413) (1990).

Decided February 5, 1991.

Dillard & Landers, Daniell S. Landers, Bryant H. Bower, Jr., for appellant.

John E. Smith III, for appellee.

We agree with appellant that the sidewalk expansion joint at issue was a “static condition”; that is, one that is not inherently dangerous or likely to cause injury until one drives or falls into it or trips over it. Id.; Hadaway v. Cooner Enterprises, 172 Ga. App. 113, 114 (321 SE2d 830) (1984). Here, as in Froman and Hadaway, appellee had traversed the same sidewalk on numerous occasions and was aware that the expansion joints existed and were of varying widths. It was incumbent upon her to exercise ordinary care for her own safety and to use her eyesight to detect any discernible hazard in her path. Froman, supra at 339. Although she testified she did not look at the joint in which she tripped, the reason she gave was that she was looking ahead rather than down. There is no evidence to suggest that appellant caused any distraction or otherwise impaired her view. See id.; see also Hadaway, supra at 115.

Moreover, we do not agree with appellee that cases such as Showalter v. Villa Prado Assoc., 182 Ga. App. 705 (356 SE2d 895) (1987) compel a finding that a fact question remains regarding her knowledge of the specific hazard she encountered. Appellee acknowledged that she had seen the expansion joints, that she knew they were of varying widths, and that she was aware they contained no filler material. She does not contend the specific joint in which she tripped differed from the cracks she previously had observed or that it contained a hazard not visible to one who was exercising ordinary care. Compare id. at 706. Accordingly, we hold the trial court erred by denying summary judgment to appellant. See Gyles, supra.

Judgment reversed.

McMurray, P. J., and Carley, J., concur.


text:
    A90A2247.
    VILLARREAL v. THE STATE.
    (402 SE2d 104)
   Sognier, Chief Judge.

Antonio Jairo Villarreal was convicted on two counts of trafficking in cocaine. He appeals from the judgment entered below, enumerating as error the trial court’s denial of his motion to sever the two counts of the indictment.

Appellant was charged in count I of the indictment with the sale on April 4, 1989 of more than 28 grams of cocaine to an undercover officer. The second count charged him with possession of more than 400 grams of cocaine on August 7, 1989. The first charge arose from a controlled buy made by Detective Jack Stein of the Gwinnett Police Department, who testified that he bought the cocaine from John Hydock, but during the transaction observed a man whom he identified as appellant drive up in a silver Jaguar, and Hydock introduced the man as his supplier. Count II was based on an incident that occurred four months later. An undercover officer who saw appellant driving a Chrysler LeBaron and recognized him as the subject of an outstanding warrant took him into custody. A subsequent inventory search of the car uncovered a kilogram of cocaine in the trunk. Hydock, who was arrested on drug charges early in the summer and began cooperating with authorities, testified that appellant had been his supplier for two or more years. He stated that on August 7, 1989, he arranged for an undercover agent to purchase five kilograms of cocaine from appellant’s cousin, Jesus Villarreal, whom he had met through appellant. Hydock stated that after the agent changed the amount to four kilograms, he and Jesus Villarreal met appellant that afternoon at a designated location where he observed appellant and his cousin swap bags of contraband. Jesus Villarreal, who testified for the defense, stated that on August 7 he drove appellant’s LeBaron to pick up the five kilograms of cocaine from his supplier, whom he refused to identify, and that after the transaction was changed to four kilograms he left the remaining kilogram in appellant’s trunk.

“Where criminal offenses are joined solely on the ground that they are of the same or similar character, the defendant has a right to have the offenses severed. [Cit.] However, where the offenses are so similar that they show a common scheme or plan or have an identical modus operandi, severance is discretionary with the trial court.” Mack v. State, 163 Ga. App. 778-779 (1) (296 SE2d 115) (1982). When offenses are based on the same conduct, on a series of acts connected together, or on a series of acts constituting parts of a single scheme or plan, severance becomes discretionary, not mandatory, Davis v. State, 159 Ga. App. 356-357 (283 SE2d 286) (1981), and the trial court may order severance if necessary to achieve a fair determination of the defendant’s guilt or innocence on each count. Floyd v. State, 186 Ga. App. 777, 778 (1) (368 SE2d 541) (1988).

We do not agree, with appellant that the charged offenses were joined solely because they were of the same or similar character. Although the two events were separated in time, the facts show a continuing course of criminal conduct and a series of acts constituting a common scheme or plan — that is, appellant’s activities in supplying cocaine for each transaction. Accordingly, denial of the motion to sever was not an abuse of the trial court’s discretion. See Camp v. State, 162 Ga. App. 857, 858 (3) (293 SE2d 389) (1982); see also Floyd, supra.

Decided February 5, 1991.

Jeffrey R. Sliz, for appellant.

Thomas C. Lawler III, District Attorney, Daniel J. Porter, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    A90A1578.
    HARRIS v. THE STATE.
    (402 SE2d 62)
   Carley, Judge.

Appellant was tried before a jury on charges that he had committed child molestation and aggravated sodomy against two sisters. He was acquitted on the charges as to one of the sisters and found guilty on the charges as to the other sister. He appealed to the Supreme Court from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts. The case is now before this court pursuant to the Supreme Court’s order of transfer.

1. The denial of appellant’s motion for new trial on the ground that he was denied effective assistance of trial counsel is enumerated as error. The alleged deficiency is the failure of appellant’s trial counsel to call certain additional witnesses.

“The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” Brogdon v. State, 255 Ga. 64, 68 (3) (335 SE2d 383) (1985). The determination as to which defense witnesses will be called is a matter of trial strategy and tactics. “Appellant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, appellant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.” Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990). “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous. ‘In fact, counsel was so successful that (appellant) was acquitted on two of the [four] counts against him.’ [Cit.]” Garrett v. State, supra at 874 (1).

2. One ground of the motion for new trial was predicated upon the purported failure of certain jurors to answer truthfully and fully voir dire questions regarding whether they knew appellant. The denial of appellant’s motion for new trial on this ground is enumerated as error.

In support of this enumeration, appellant relies upon the testimony given by his wife at the hearing on the motion for new trial. However, in her testimony, appellant’s wife also conceded, that she had been present throughout the trial and had been sitting in the front row immediately behind the defense table and that she had not been hindered from, but rather had the opportunity of speaking to appellant and his lawyers during voir dire. Furthermore, she acknowledged that the defense may have preferred to have jurors who knew appellant.

“[T]his situation is controlled by Brown v. Holland, 228 Ga. 628, 629 (2) (187 SE2d 246) (1972), where it was held the acceptance of a juror with knowledge of any alleged disqualification was a waiver of such disqualification.” Sanders v. State, 246 Ga. 42, 43 (3) (268 SE2d 628) (1980). Moreover, “[i]n the absence of a showing of some prejudice other than the possible opportunity to exercise a knowledgeable peremptory, challenge, the court’s refusing to grant a new trial because of juror inaccuracy will not constitute an abuse of discretion. [Cit.] There was no showing of prejudice here. Further, there was no showing of bad faith or deliberate attempt to mislead on the part of the juror[s] who [knew appellant]. There was no abuse of discretion on the part of the trial judge in refusing to grant a new trial. [Cit.]” Mosley v. State, 257 Ga. 382, 384 (4) (359 SE2d 653) (1987). See also Brown v. Holland, supra at 629 (2).

3. In support of his motion for new trial, appellant presented evidence of the exculpatory results of his post-trial polygraph examination. The denial of appellant’s motion for new trial on the ground that the polygraph results constituted newly discovered evidence is enumerated as error.

Appellant has offered no explanation as to why he did not submit to a polygraph examination prior to trial. “There was no factual showing that this evidence could not have been discovered by the exercise of ordinary diligence. . . . More important, [because the State failed to so stipulate, the results of the polygraph examination are] not admissible evidence. . . .” Timberlake v. State, 246 Ga. 488, 491-92 (1) (271 SE2d 792) (1980). “ ‘Absent an express stipulation by the State and the accused that the results of a polygraph test will be admitted in evidence, the results are inadmissible.’ [Cits.]” Rucker v. State, 177 Ga. App. 779, 781 (4) (341 SE2d 228) (1986).

4. Appellant challenges the constitutionality of OCGA § 24-3-16. However, “[t]he transfer of the case by the Supreme Court to this court is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” Egerton v. Jolly, 133 Ga. App. 805, 806 (1) (212 SE2d 462) (1975). See also In the Matter of J. S. S., 175 Ga. App. 361, 364 (1) (333 SE2d 417) (1985).

5. A physician was asked if, based upon his physical examination of the victim, he had an opinion whether she had been sexually molested. Over appellant’s objection that this question called for an opinion as to the ultimate issue to be decided by the jury, the physician was allowed to respond. This evidentiary ruling is enumerated as error.

The physician’s opinion was based upon his physical examination of the victim, not upon the child abuse accommodation syndrome. See State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986). Compare Allison v. State, 256 Ga. 851 (353 SE2d 805) (1987). “The jury, having the benefit of [neither] extensive testimony as to the lineaments of the child abuse syndrome, [nor] testimony that [the victim] exhibited several symptoms that are consistent with the syndrome, was [not] fully capable of deciding — upon their own — whether the [victim] in fact was abused, and, if so, whether [appellant] did it. For that reason, the admission of this aspect of the expert’s testimony was [not] incorrect. ([See] State v. Butler, [supra].)” (Emphasis in original.) Allison v. State, supra at 853 (6).

6. The trial court did not err in ruling that another witness for the State was qualified as an expert as to the child abuse accommodation syndrome. See generally Baker v. State, 156 Ga. App. 283 (274 SE2d 678) (1980).

7. Appellant enumerates as error the admission into evidence of certain drawings made by the victim. The only objection that was raised at trial to the admission of these drawings was to their lack of authentication. On appeal, however, appellant relies upon other grounds for asserting that the drawings were not admissible. The objection that was raised below is, therefore, deemed abandoned and the grounds that are raised for the first time on appeal will not be considered.

8. The arrest warrant charged appellant with commission of the crimes on July 3, 1988, and he was originally indicted for having committed the crimes on that date. However, appellant was subsequently reindicted for having committed the crimes on June 22, 1988. At trial, appellant sought to introduce into evidence the arrest warrant and original indictment. The trial court sustained the State’s objection to the relevancy of these documents and appellant enumerates this ruling as error.

Obviously, the arrest warrant and original indictment had no direct or tangential relevancy whatsoever to any issue related to appellant’s guilt or innocence. Moreover, “[assuming that the [arrest warrant] and [original indictment] were admissible as legally relevant and material, there was no harm to [appellant] here by the exclusion because the same defense point, i.e., that a [different date] was initially reported, was presented to the jury by other means. [Cit.]” Warren v. State, 185 Ga. App. 108, 109 (2) (363 SE2d 357) (1987).

9. The trial court’s failure to sustain appellant’s objection to the relevancy of certain evidence is enumerated as error. However, appellant’s objections at trial were insufficient to preserve the issue of admissibility of this evidence for review on appeal. Brown v. State, 122 Ga. App. 59 (176 SE2d 240) (1970).

10. “[T]he victim testified to [four] entirely separate act[s] of sodomy. . . . [This testimony was supported by the medical evidence.] Thus, ‘the evidence authorized the jury to find that more than one instance of (sodomy) occurred, permitting conviction for each offense based on separate occasions.’ [Cit.] ‘LaPalme [v. State, 169 Ga. App. 540 (313 SE2d 729) (1984), and Horne v. State, 192 Ga. App. 528, 533 (6) (385 SE2d 704) (1989), are] inapplicable, since there were multiple, separate acts as bases for each conviction.’ [Cit.]” Stander v. State, 193 Ga. App. 212 (2) (387 SE2d 422) (1989). Thus, the child molestation count did not merge into the aggravated sodomy count and appellant was properly sentenced for both crimes.

11. Appellant enumerates as error the denial of his motion for a directed verdict of acquittal and the denial of his motion for new trial on the general grounds.

Appellant’s reliance upon the inconsistent verdict rule is misplaced. “ ‘Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), abolished the inconsistent verdict rule in criminal cases. Thus, the sole question is whether the evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). . . .’ [Cit.]” Powell v. State, 192 Ga. App. 688 (1) (385 SE2d 772) (1989). See also Fitzgerald v. State, 193 Ga. App. 76 (1, 2) (386 SE2d 914) (1989).

“The weight of the evidence and the credibility of the witnesses are questions for the factfinder. [Cits.] Here the jury chose to believe the [State’s rather than appellant’s witnesses].” Crump v. State, 183 Ga. App. 43, 44-45 (357 SE2d 863) (1987). The victim’s in-court and out-of-court statements, the medical testimony, “and other evidence adduced at trial [were] more than sufficient to enable any rational trier of fact to find [appellant] guilty beyond a reasonable doubt of the offense[s] of aggravated [sodomy and] child molestation. [Cit.] The trial court did not err in denying [appellant’s] motion for directed verdict of acquittal. [Cit.]” Westbrook v. State, 186 Ga. App. 493, 496 (3) (368 SE2d 131) (1988). See also Braggs v. State, 189 Ga. App. 275 (1) (375 SE2d 464) (1988).

Decided January 17, 1991

Rehearing denied February 6, 1991

Hudson & Solomon, James D. Hudson, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.


author: Cooper, Judge.

text:
    A90A1627.
    ROLLE v. THE STATE.
    (402 SE2d 106)
   Cooper, Judge.

Appellant appeals from his conviction of trafficking in cocaine, contending that the trial court erred in denying his motion to suppress.

The evidence adduced at the suppression hearing demonstrated that on the day of appellant’s arrest, a Drug Enforcement Administration agent, while observing passengers deplane a flight from Nassau, Bahamas, at Hartsfield International Airport noticed appellant exit the plane and appear to follow another passenger, Duane Thurston. When Thurston stopped to obtain continuing flight information, appellant stopped and stood approximately eight to ten feet behind him. Thurston proceeded down the concourse to another gate looking back several times at appellant, who then trailed Thurston by 15 to 20 feet. Before reaching the gate, appellant got closer to Thurston and the two appeared to be having a conversation. When they reached the gate desk, appellant got in line behind Thurston, and the two did not speak to each other. As the tickets were surrendered, the agent noticed that neither ticket had baggage claim stubs attached to it and that appellant and Thurston were each carrying only a tote bag for their trip from Nassau to Baltimore. After surrendering their tickets, the two went to opposite ends of the gate area. The agent examined the tickets and discovered that appellant’s ticket was a one-way cash ticket issued in the name “R. Smith” and that Thurston’s round-trip ticket was issued in the name “Wayne Thompson.” An examination of Delta Air Lines reservation records indicated that the tickets were purchased one minute apart at the Nassau airport prior to departure. The agent, wearing casual clothing with his weapon concealed, identified himself to appellant as a law enforcement officer, displayed his identification and asked appellant if he would speak to the agent for a few minutes. Appellant replied, “Yes,” and the agent asked to see his ticket. The agent verified that the ticket was issued to R. Smith; however, at the suppression hearing, the agent could not recall whether appellant identified himself as R. Smith or Kavin Rolle, his true name. Nevertheless, appellant produced his passport on which the name Kavin Averial Rolle was listed. The agent observed at that point that appellant began to get nervous, and appellant’s breathing quickened. Appellant was asked if he were travelling with someone else, and he replied, “No.” The agent then explained that he was a narcotics agent and asked if appellant would consent to a search of his tote bag and his person. Initially, appellant offered no verbal response, but while handing his tote bag to the agent appellant stated, “Yes. I don’t have any drugs.” Appellant then agreed to the agent’s suggestion that the search take place in a private office on the concourse. Once inside the office the agent again asked appellant’s permission to search the bag, and appellant consented. Finding no drugs, the agent replaced the items in the bag; however, appellant’s anxiety increased, and he began opening his pants to show the agent he was wearing a pair of elastic underpants. The agent told appellant it was not necessary that he take off his pants and asked if he could pat appellant down. Appellant raised his arms and said, “Yes.” Around appellant’s upper body the agent discovered a “girdle or belt-like object” wrapped in masking tape containing a “chunky, lumpy substance” the consistency of cocaine. Appellant was arrested, and the substance was later determined to be 703 grams of cocaine.

1. Appellant contends there was no probable cause to justify his seizure. “As pointed out in Allen v. State, 172 Ga. App. 663 (324 SE2d 521) (1984), the seizure of a person occurs only when all the circumstances indicate that a reasonable person would believe that he was not free to leave. Brief seizures, however, require a reasonable suspicion of criminal activity while full-scale arrests must be supported by probable cause.” Mixon v. State, 184 Ga. App. 623, 624 (362 SE2d 111) (1987). The agent’s testimony was the only evidence introduced at the suppression hearing, and that evidence does not support appellant’s contention that he was seized in the airport concourse. “Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Cit.]” Aguero v. State, 169 Ga. App. 462, 465 (2) (313 SE2d 735) (1984). In the instant case, the agent was dressed casually and did not display a weapon. In the public concourse and in a conversational tone, the agent requested, but did not demand, appellant’s ticket and identification. “ ‘Such conduct, without more, did not amount to an intrusion upon any constitutionally protected interest. [Appellant] was not seized simply by reason of the fact that the agent approached him, asked him if he would show him his ticket and identification, and posed to him a few questions. Nor was it enough to establish a seizure that the person asking the questions was a law enforcement official. In short, nothing in the record suggests that [appellant] had any objective reason to believe that he was not free to end the conversation in the concourse and proceed on his way, and for that reason we conclude that the agent’s initial approach to him was not a seizure.’ ” (Citation and punctuation omitted.) Voight v. State, 169 Ga. App. 653, 654 (314 SE2d 487) (1984).

Decided February 6, 1991.

William E. Frey, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

Further, appellant exhibited several characteristics of the drug courier profile which “were sufficient to serve as a basis for reasonable suspicion ... to justify the brief Terry-type investigative ‘seizure.’ [Cit.]” Aguero, supra at 465.

2. Appellant also contends he consented to the search of his tote bag and. a pat-down for the officer’s protection against weapons and that the discovery of the belt-like object containing cocaine expanded the search beyond his consent. The agent testified that appellant consented to a search of his person in the concourse and consented to a pat-down in the private office after the agent identified himself as a Drug Enforcement Agency official, and there is no evidence that the pat-down was to be limited to the discovery of weapons. “The trial court’s decision on questions of fact and credibility at a suppression hearing must be accepted unless clearly erroneous. [Cit.]” (Citation and punctuation omitted.) Allen, supra at 666. Based on the foregoing, we conclude the trial court did not err in denying appellant’s motion to suppress.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


author: Cooper, Judge.-

text:
    A90A1649.
    POWELL v. THE STATE.
    (402 SE2d 108)
   Cooper, Judge.-

Appellant was convicted by a jury of the crime of theft by receiving stolen property. He appeals from the denial of his motion for a new trial.

1. Appellant’s first enumeration is that the trial court erred in denying his motion for a new trial because he lacked effective assistance of counsel at his trial. Appellant was represented by retained counsel prior to and during his trial and in this appeal contends that counsel failed to present a defense at trial. Specifically, he first claims that his counsel did not call as a witness at trial a person that appellant wanted to testify in his behalf. Appellant argues that his attorney told him that his case would not be called for trial during the week that it was in fact called and as a result appellant did not have the witness present to testify. Appellant complains that his attorney did not interview the witness nor did he make arrangements to have the person present at trial. Appellant argues that the person’s testimony would have been relevant to his main defense in the case — his denial of any knowledge that the goods were stolen. Next, appellant contends that his representation was ineffective because he was not called to testify on his behalf, over his wishes to do so. Therefore, according to appellant, there were no witnesses called at trial to testify on his behalf. Additionally, appellant states that no motions or requests to charge were submitted by his attorney, and that only a small portion of the trial transcript was elicited by appellant’s attorney. Appellant further states that his counsel should have, but did not, move for a directed verdict. As a final example of his counsel’s ineffectiveness, appellant cites the lawyer’s failure to file a motion to suppress evidence which was obtained from his property as a result of the issuance of a search warrant. The affidavit in support of the warrant recited that the police had received an anonymous tip which led them to appellant’s property. The officer’s testimony at trial was consistent with the affidavit; however, at the pre-trial hearing, the officer stated that the tip that led them to appellant’s property was given to them by the victim of the theft. Appellant contends that this inconsistency required the filing of a motion to suppress.

“ ‘To prove he has received ineffective assistance of counsel, “(t)he defendant must show both that counsel’s performance was deficient and that this deficiency prejudiced the defense.” [Cits.] “Thus counsel’s performance will not be found to be deficient if it falls within the range of ‘reasonably effective assistance.’ ” [Cit.]’ [Cit.]” Spivey v. State, 193 Ga. App. 127, 130 (3) (386 SE2d 868) (1989). “ ‘ “The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” [Cit.] As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel. (Cit.)’ [Cit.]” White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989). The appellant’s attorney testified before the trial court in the hearing on the motion for a new trial and provided reasonable explanations for the actions appellant argued were ineffective. The counsel’s testimony revealed that the defense strategy was discussed with appellant and that, because they were basing their defense on the strict legal argument that appellant had no knowledge that the goods were stolen, the lawyer did not think that the testimony of the witness suggested by appellant would be important enough to relinquish the final argument to the jury. The lawyer testified that, when asked by appellant if the case would be called in the week in which it was called, he answered that he did not expect it to be called because it was his understanding that other cases were in line to be called prior to appellant’s case. The lawyer explained to appellant that his reasons for not calling any witnesses were based on his desire to have the final argument. The record reveals that appellant’s counsel did interview several of the State’s witnesses prior to trial and did review the prosecutor’s file. He stated that he did not see any exculpatory material that would warrant filing a Brady motion. The lawyer explained that his decision not to call appellant to the stand was based on appellant’s statement to him that appellant would not reveal who brought the property to his premises. The lawyer testified that appellant said he did know the property was stolen but that the “code of the mountain” dictated that he could not snitch on the person who brought it to him. The lawyer stated that appellant was unwilling to negotiate a guilty plea and therefore he advised appellant that the best defense was to require the State to prove appellant’s knowledge that the property was stolen. The lawyer testified that appellant never specifically asked to testify in his behalf, yet in their discussions the lawyer told appellant that if he testified he would most probably be asked on the stand who brought him the vehicle and if he refused to answer, his case would be quite damaged. Since appellant was adamant in not divulging this information, the lawyer did not call him to the stand and the appellant did not then object to this strategy. The record shows that appellant’s counsel did cross-examine witnesses and thereby attempted to defend appellant. Appellant shows no prejudice from the failure of his counsel to move for a directed verdict, especially in light of the denial of the motion for new trial in which the general grounds were asserted. As to the failure to file a motion to suppress, the lawyer indicated that he felt any inconsistency in the officer’s testimony at the pre-trial hearing was clarified at trial. Our review of the affidavit, which appellant’s counsel stated he reviewed, reveals that the officer himself observed identifiable stolen property on appellant’s premises, and this information was included in the affidavit for the search warrant. Thus, the warrant was supported by information other than the allegedly conflicting testimony. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]’ [Cit.]” Spivey, supra at Division 3. Despite appellant’s dispute with portions of his attorney’s testimony, we find appellant’s allegations of ineffective assistance of counsel to be without merit.

Decided February 6, 1991.

Amy A. Petulla, Christopher A. Townley, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Scott K. Camp, Assistant District Attorney, for appellee.

2. Appellant next asserts that the trial court erred in failing to grant his motion for a mistrial based upon remarks made by the State in closing argument. Although the transcript does not include the text of the closing arguments, appellant contends that the State impermissibly commented on appellant’s failure to give an explanation to the officer for the presence of the goods on his property, after he had been given his Miranda rights. Appellee argues that such a comment was not made but that appellee did refer to the contents of the statement appellant gave to the officers. The record reveals only that a motion for a mistrial was made on the grounds that the prosecutor mentioned the lack of an explanation, and the court denied the motion. “ ‘ “[T]he trial judge in passing upon a motion for mistrial on account of alleged improper argument ... is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Cit.)’ [Cit.]” Martin v. State, 193 Ga. App. 581, 587 (4) (388 SE2d 420) (1989). Further, “ ‘[a]bsent a transcript, this court can only presume that this portion of the trial was conducted in a regular and proper manner. (Cit.) When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allegedly erroneous matter. (Cit.)’ [Cit.]” Reedman v. State, 193 Ga. App. 688, 689 (2) (388 SE2d 763) (1989). Thus, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.

3. Appellant has submitted a supplemental brief containing an additional enumeration of error. “We . . . decline to consider this enumeration of error, based on the rule that enumerations of error may not be supplemented after the time for filing has expired.” Pupo v. State, 187 Ga. App. 765, 768 (8) (371 SE2d 219) (1988).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1664.
    CULBERTSON v. THE STATE.
    (402 SE2d 111)
   Cooper, Judge.

Appellant was convicted by a jury of two counts of aggravated assault upon two correctional officers and one count of aggravated assault upon a fellow inmate. He appeals from the denial of his motion for new trial.

All of the charges against appellant arose out of a single incident which occurred when appellant, an inmate occupying a cell next to the victim’s cell, threw a container of boiling liquid on the victim and two correctional officers who were escorting the victim to the shower. At trial, appellant contended that he feared a life-threatening assault by the victim and that he threw the liquid at the victim as a means of obtaining a transfer to a cell away from the victim’s cell.

1. Appellant contends that since he was the subject of an administrative proceeding involving the same incident, the trial court erred in not dismissing the indictment against him to afford him the constitutional protection against double jeopardy. “[T]he criminal and administrative conviction and punishment of a defendant for the same act does not constitute double jeopardy. [Cits.]” Anderson v. State, 250 Ga. 500, 501 (300 SE2d 163) (1983). This enumeration of error is without merit.

2. Appellant also argues that he was denied a fair and impartial trial because he was required to wear leg shackles while in the courtroom in the presence of jurors. Prior to the selection of the jury, the trial judge heard evidence from two officers familiar with appellant’s prison history, who testified that the records reflected that appellant had attempted to escape on several occasions and had been unruly to the point of having to be physically restrained at times. Compare Mapp v. State, 197 Ga. App. 7 (397 SE2d 476) (1990). The prosecutor informed the court of a case pending against appellant for assaulting correctional officers. The record also reflects that after jury selection and before opening statements, appellant admitted to the court that he had escaped many times. We find no abuse of discretion in the trial court’s decision to have appellant tried in leg shackles. See Dennis v. State, 170 Ga. App. 630 (3) (317 SE2d 874) (1984).

3. Appellant enumerates the general grounds. Construing the evidence in favor of the verdict, the jury was authorized to find that appellant intended to assault his fellow inmate with boiling water, an object which when used offensively is likely to cause great bodily harm, and that in the course of that assault, two correctional officers were injured. “[T]he jury was also authorized to find the original intent was transferred in law to the [correctional officers] as well.” Fussell v. State, 187 Ga. App. 134, 137 (4) (369 SE2d 511) (1988). The evidence was sufficient for a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 6, 1991.

Cheney & Cheney, Curtis V. Cheney, Jr., for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1743.
    ARNOLD et al. v. THE STATE.
    (402 SE2d 312)
   Cooper, Judge.

Appellants Roderick Arnold and Ricky Sanders were tried before a jury and convicted of trafficking in cocaine. Sanders was also convicted of possession of a firearm during the commission of a felony involving drugs. They appeal the trial court’s denial of their motion for new trial.

At the time of his arrest, an informant told police officials that he could arrange a drug purchase. In the presence of two officers, who overheard and taped the conversation, the informant called appellants’ co-defendant Anthony Nixon and arranged for the purchase of three kilograms of cocaine for $54,000. The plan was for the informant and two undercover officers to meet Nixon the following day between 3:00 p.m. and 4:00 p.m. in a McDonald’s parking lot in southeast Atlanta. Nixon was to have been driving a red Camaro, and the suppliers were to meet them in a burgundy Nova. The informant was wired with a body bug and was to signal the police to begin the bust after he had seen the drugs. The informant and two undercover officers parked next to the McDonald’s and saw Nixon arrive in a red Camaro. Nixon briefly spoke with the informant and then called the supplier’s beeper. The two cars then moved to the McDonald’s parking lot, and the informant got into Nixon’s car to await the delivery of the drugs. Several other undercover cars were situated in the area to observe any activity consistent with the information generated in the telephone conversation. A burgundy Nova soon circled through the parking lot, returned and parked. Nixon walked over to the driver’s side of the Nova, and Arnold reached into the back seat and retrieved a large brown bag which he passed to Sanders, who then gave the bag to Nixon through the window. Sanders and Arnold left the parking lot, and Nixon placed the bag in his car. The informant opened the bag and counted out five kilos, which signaled the police to commence the bust. Police followed appellants to a service station where Sanders was arrested in possession of a pistol. Arnold led the police on a high-speed chase and was arrested after wrecking the car, in which $17,000 was discovered. The cocaine, weighing 4,500 grams, 10.3 pounds, tested greater than 90 percent pure.

1. Appellants contend that their arrests were made without probable cause because the arrests were predicated on information provided by an unreliable informant and that the trial court erred in admitting into evidence contraband seized pursuant to warrantless arrests. “ ‘Under Georgia law, an officer may arrest without a warrant “if the offense is committed in his presence or within his immediate knowledge ... or for other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.” OCGA § 17-4-20 (a). The constitutional validity of an arrest without a warrant depends “upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at the moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the (suspect) had committed or was committing an offense.” [Cits.]’ ” Manzione v. State, 194 Ga. App. 227, 228-229 (390 SE2d 121) (1990). Appellants argue that there was no probable cause because the informant had not provided information in the past and the information provided was insufficient to gauge the informant’s reliability. “ ‘The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the “totality of the circumstances” surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. [Cit.] “(A) deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or some other indicia of reliability.” [Cit.]’ [Cit.]” Goldsby v. State, 186 Ga. App. 180, 182 (1) (367 SE2d 84) (1988).

In the case sub judice, one of the officers testified that at the informant’s arrest, he expressed a desire to make a deal with the officers to stay out of jail; thus, the informant was highly motivated to tell the truth to obtain favorable treatment by the police. Further, although the informant had never before provided the officers involved in the case with information, the events preceding the arrest affirmed the informant’s tip in every respect, save the quantity of cocaine expected, the ultimate seizure exceeding what was anticipated. Under the totality of the circumstances, we find that the testimony provided by the officers at the hearing on the motion to suppress demonstrated that they had sufficient information prior to the arrests linking appellants to illegal drug activity to support the warrantless arrests. Accordingly, the trial court did not err in finding probable cause and in denying the motion to suppress. Manzione, supra; Goldsby, supra at 183. See also Frankum v. State, 174 Ga. App. 660 (1) (331 SE2d 52) (1985).

Decided February 6, 1991.

Harry J. Bowden, for appellants.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Joseph J. Drolet, Charles W. Smegal, Assistant District Attorneys, for appellee.

2. In their second enumeration of error, appellants argue that inconsistencies in the testimony of three of the officers constituted perjury mandating a new trial. We disagree. “ ‘When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury. The credit to be given a witness’s testimony where impeached for . . . contradictory statements out of court shall be for the jury to determine.’ OCGA § 24-9-85. Only testimony which is wilfully and knowingly false must be disregarded in its entirety. [Cit.] The record does not disclose that [the officers] swore wilfully and knowingly falsely. Thus, the question of [their] credibility was for the jury to determine. [Cit.]” Williams v. State, 180 Ga. App. 365, 366 (349 SE2d 253) (1986). The trial court did not err in denying the motion for new trial.

3. We next consider appellants’ contention, in the third enumeration of error, that the trial court erred in failing to compel the State to identify the informant and in failing to conduct a hearing to determine whether the identity of the informant was material pursuant to appellants’ Brady motion. In addition, in their fourth enumeration of error, appellants charge that the trial court erred in failing to conduct a hearing on the witnesses’ alleged perjury and in not enforcing a witness subpoena. A review of the record reflects that no requests were made of the trial court to compel disclosure of the informant’s identity, to conduct either of the hearings urged on appeal or to attach a witness who failed to appear. Appellants have “ ‘ “the burden of showing error affirmatively by the record and this burden is not discharged by recitations in the brief.” (Cit.)’ [Cit.]” Fields v. State, 194 Ga. App. 149, 151 (3) (390 SE2d 71) (1990). Further, as stated in Division 2 above, there was no factual basis to justify a hearing on alleged perjury.

4. Finally, appellants contend that the verdict was contrary to the evidence. This enumeration is without merit. A review of the evidence in a light most favorable to the verdict reveals ample evidence to enable a rational trier of fact to find appellants guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1876.
    SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY v. DON HAMMOND, INC. et al.
    (402 SE2d 112)
   Cooper, Judge.

While employees of the appellee company were constructing a bridge pursuant to a contract with the Georgia Department of Transportation, certain underground telephone cables and conduits owned by appellant were damaged by the construction work. Appellant repaired the facilities and brought this suit against appellees, alleging that the damage was caused by the negligence of the appellee company’s employees. Appellant sought recovery of $71,633.84, which was the cost asserted by appellant to repair the damaged facilities. Appellees contended that appellant was negligent in not properly encasing the telephone facilities in the area of the known construction and in failing to provide to appellees plans which correctly indicated the type of casing around the facilities. Subsequent to the filing of the lawsuit, the appellee company distributed its assets to its shareholders, principally to appellee Don Hammond who stipulated that he would also be a party to any judgment rendered. After a jury trial, a verdict was returned for appellee Hammond, and judgment was entered. thereon.

Appellant’s sole enumeration of error is that the trial court erred in charging the jury that appellant was under a duty to mitigate its damages because such a charge was not authorized by the evidence. The court first charged the jury on negligence and comparative negligence, specifying under what circumstances either of the parties could recover at all. The court then went on to charge on damages as follows: “Should you find that the plaintiff in this case is entitled to recover damages from the defendant then the measure of those damages is the cost to the plaintiff of the necessary repairs to the plaintiff’s property. After a party is injured that party is under a duty to lessen its damages so far as practicable by the exercise of ordinary care and diligence.” Appellant argues that there was no evidence introduced of appellant’s failure to mitigate damages after the accident but only evidence of the reasonable and necessary costs of repair of the damage that occurred. The court determined that the testimony of two witnesses, an employee in appellant’s comptroller’s department and an underground splicing foreman for appellant, could be considered as presenting evidence that appellant employed too many people for the repair work, took too long to repair the damage and charged more than what was required for the repair work performed. “ ‘[I]t is the duty of the trial court to charge the jury on the law applicable to the issues where there is any evidence on which to predicate the instructions. . . .’ [Cit.]” Jump v. Benefield, 193 Ga. App. 612 (1) (388 SE2d 864) (1989). Further, “ ‘[i]t is well established an instruction is not abstract or inapplicable where there is any evidence, however slight, on which to predicate it. (Cit.)’ [Cit.]” McKinnon v. Street-man, 192 Ga. App. 647, 648 (1) (385 SE2d 691) (1989). After a review of the record, we agree with the trial court that the witnesses presented some evidence to support the charge on mitigation of damages and we determine that the giving of the charge was not error.

Decided February 6, 1991.

James M. Anderson III, for appellant.

Carey, Deal, Jarrard & Walker, R. Thomas Jarrará, Hartness, Link & Hardeman, Fredrick E. Link, for appellees.

Even if we were to consider the charge to have been given in error, we determine from a review of the entire record and a consideration of the charge to the jury as a whole, that any such error would be harmless because it did not “ ‘reasonably draw the jury away from the true issues in dispute. . . .’ [Cit.]” Hopkins v. First Union Bank of Savannah, 193 Ga. App. 109, 112 (2) (a) (387 SE2d 144) (1989). The jury was instructed on negligence and the basis for finding liability and rendered a verdict totally for appellees. As the court instructed, the issue of damages was to be considered if the jury first determined that appellant was entitled to recover from appellees. Since the liability issue was determined adversely to appellant, any error resulting from the mitigation of damages charge was harmless. We disagree with appellant’s contention that the court’s charge could have led the jury to believe that a failure by appellant to mitigate damages would prevent any recovery by appellant. The charge conveyed to the jury that once liability was independently determined, then damages were to be calculated considering the cost of necessary repairs and the duty to mitigate the damages as far as practicable.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1891.
    NEAL v. THE STATE.
    (402 SE2d 114)
   Cooper, Judge.

Following a jury trial, appellant was found guilty of aggravated assault by assaulting the victim with the intent to rape.

The victim worked as a counselor at the Georgia State Prison in Reidsville, Georgia. While she was in her office one morning, appellant, an inmate, appeared in her doorway with a “wild” look on his face. Appellant came in, shut and locked the door, and said to the victim: “I want your p_y.” Appellant repeated his demand and refused to leave the victim’s office. When the victim picked up the telephone to call for help, appellant ripped the telephone from her hand and threw it against the wall. The victim began to scream and appellant grabbed her around the throat with one hand, put the other hand between her legs and pushed the victim into her chair. The victim screamed again, and appellant got up and told the victim: “Go ahead and call for help.” The victim was able to call for an officer, who came and escorted appellant out of her office.

1. In his first enumeration of error, appellant contends that the trial court erred in denying his motion for mistrial after the prosecutor stated during closing argument: “Now, there’s not but two people in this world who knows exactly what went on in that room that day. Cause there wasn’t but two people in there. One’s Robbin. The other’s Ernest Neal.” Immediately following the above statement, appellant’s counsel moved for a mistrial which was denied by the trial court. Appellant argues that the statement violated his federal and state constitutional rights against self-incrimination as well as OCGA § 24-9-20. We disagree. “To reverse for improper comment by the prosecutor, we must find one of two things: that ‘the prosecutor’s manifest intention was to comment upon the accused’s failure to testify’ or that the remark was ‘of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ [Cits.]” United States v. Rochan, 563 F2d 1246, 1249 (5th Cir. 1977). The prosecutor’s statement was a summary of the evidence adduced during the trial. Inasmuch as there is another equally plausible explanation for the prosecutor’s statement, we cannot conclude that it was intended to comment on appellant’s failure to testify or that the jury would naturally take it to be such a comment. See Ranger v. State, 249 Ga. 315 (3) (290 SE2d 63) (1982); Kerr v. State, 193 Ga. App. 165 (1) (387 SE2d 355) (1989).

2. In his second and third enumerations of error, appellant contends that the trial court erred in denying his motion for directed verdict of acquittal made at the close of the State’s evidence and that the evidence was insufficient to support the verdict. Viewed in a light most favorable to the jury’s verdict, the evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.

Decided February 6, 1991.

Hugh J. McCullough, for appellant.

Dupont K. Cheney, District Attorney, David C. Walker, Assistant District Attorney, for appellee.


text:
    A90A1956.
    JOHNSON v. THE STATE.
    (402 SE2d 115)
   Cooper, Judge.

Appellant was charged in a multi-count indictment with three counts of child molestation and two counts of aggravated child molestation. He was convicted by a jury on all counts and appeals from the denial of his motion for new trial.

1. The evidence adduced at trial reveals that one of the victims, Tammy, was the niece of appellant’s wife, and lived with appellant and his wife from the time she was six until she was 12 years old. Tammy and her friend Diedre, who was younger than Tammy were molested by appellant on numerous occasions while Tammy was living with appellant. Both victims gave statements to the police and testified at trial describing the nature of the sexual acts which appellant performed on them and also acts that appellant forced the two victims to perform on each other. Viewing the evidence in favor of the State, the evidence was sufficient for a rational trier of fact to find appellant guilty of the offenses charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant contends in his second enumeration of error that the trial court erred in not dismissing the indictment on the ground that the indictment failed to allege dates and times of offenses with sufficient particularity to enable appellant to prepare his defense. Counts I, II, and IV of the indictment alleged that the offenses occurred between June 1985 and June 30, 1988. Counts III and V alleged that the offenses occurred between June 1985 and July 1986. “The indictment alleged specific dates as required, and, in any event, the State was not limited to proving that the offense was committed only on a specific date alleged. [Cits.]” Murphy v. State, 195 Ga. App. 878 (1) (395 SE2d 76) (1990).

3. Appellant also enumerates as error the trial court’s denial of his motion to dismiss the indictment on the ground that it was based solely on hearsay evidence. “First, the evidence presented at trial does not demand a finding that the indictment was returned wholly upon hearsay evidence. Secondly, the sufficiency of the legal evidence before a grand jury is not subject to inquiry. [Cits.]” Hornsby v. State, 159 Ga. App. 672, 673 (2) (284 SE2d 630) (1981). See also Reaves v. State, 242 Ga. 542 (2) (250 SE2d 376) (1978).

4. In his fourth and fifth enumerations of error, appellant contends that the trial court erred in failing to compel disclosure of certain evidence, specifically, the victims’ statements and the Department of Human Resources (“DHR”) file on one of the victims. The record reflects that the trial judge conducted an in camera inspection of the prosecutor’s entire file, including the DHR file, and determined that there was no exculpatory material in the file. The files reviewed as part of the in camera inspection were sealed and made part of the record. Although appellant contends that he was denied exculpatory evidence which would have resulted in a different verdict, he has not met his burden of describing the alleged exculpatory evidence or how it would have produced a different verdict. “ ‘We will not assume such a burden. This court is not a trial court and not a factfinder. The Court of Appeals is a court for the correction of errors below; it is not a court of original jurisdiction. [Cits.] If the possibility that materially exculpatory evidence was suppressed is so strong, [appellant] ought at least be able to name it and describe how it is material. Otherwise he has no right, under Brady or otherwise, to ask this court to fish amongst the files and substitute its judgment for that of the trial court.’ [Cits.]” Byrd v. State, 171 Ga. App. 344, 345 (3) (319 SE2d 460) (1984). Therefore, we find appellant’s fourth and fifth enumerations of error to be without merit.

5. During the trial, the State tendered into evidence the statements of both victims made to one of the investigating officers. The trial judge admitted the statements pursuant to OCGA § 24-3-16 for purposes of the record, allowed them to be read to the jury, and then made the requisite findings of fact outside the presence of the jury. We find no error with the trial court’s procedure and no merit to appellant’s sixth, seventh, and eighth enumerations of error. OCGA § 24-3-16; Windom v. State, 187 Ga. App. 18 (2) (369 SE2d 311) (1988).

6. At the close of the State’s examination of the doctor who examined one of the victims, the witness asked permission to make a comment to the jury. The witness stated to the judge that the comment was necessary to explain some of her answers and that it would be important. The court gave its permission and the witness stated: “I just think its important for the jury to understand that in any case of child abuse a lack of evidence of physical abuse, of physical abuse is not necessarily —” Appellant’s attorney objected and the court sustained the objection, but no motion for mistrial or for curative instructions was made. Since no motion for mistrial was made, any error which may have occurred was waived. Lofton v. State, 142 Ga. App. 579 (1) (236 SE2d 508) (1977).

7. In his final enumeration of error, appellant contends that the trial court erred in its charge to the jury as to the form of the verdict. The portion of the charge complained about is the following: “If, on the other hand, after considering the evidence presented to you, together with the charge of the court, you should not find and believe beyond a reasonable doubt that the defendant is guilty of any of the charges as set forth in the indictment, then in that event the form of your verdict would be, as to each count, we the jury find the defendant not guilty.” Although the charge does not use the exact language as the Pattern Jury Instructions, it was a correct statement of the law and was not confusing or misleading. Accordingly, we find no merit to appellant’s argument. See Shirley v. State, 245 Ga. 616 (3) (266 SE2d 218) (1980); Hudson v. State, 171 Ga. App. 181 (3c) (319 SE2d 28) (1984).

Decided February 6, 1991.

Moore & Davidson, Johnny R. Moore, W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1972.
    GRIGGS v. THE STATE.
    (402 SE2d 118)
   Cooper, Judge.

Appellant was tried before a jury and convicted of violation of the Georgia Controlled Substances Act by possessing methamphetamine. He appeals from the denial of his motion for a directed verdict of acquittal and asserts the general grounds.

On a single day, a sheriff’s deputy observed appellant driving a red Ford Maverick three times: once, with a passenger in the front seat; a second time, alone in the vehicle and a third time with two passengers, one seated in the front seat and the other in the back seat. On the third occasion, the car was parked behind a vacant building beside a van. The deputy approached the vehicle and observed the passenger in the front seat drop an object from his window, which the deputy’s examination revealed was a change purse containing several bags of amphetamine powder marked with black ink, empty plastic bag corners, plastic bag corners with white powder residue and several pre-cut twist tie sections. The men were removed from the car, and it was searched. Behind the driver’s seat at the corner near the door, within “finger’s reach” of the driver, the deputy discovered two plastic bags containing white powder. Two syringes were also found stuffed down in the back seat. The three men were arrested, and after Miranda rights were read, appellant made several statements which were documented by the deputy. Appellant asked, “did the dope have any black ink on it?” The deputy answered that the substance in the change purse did, but that discovered behind the driver’s seat did not. Appellant stated, “Then it wasn’t mine.” The white powder was thereafter identified as methamphetamine with a weight of .3 grams.

Appellant contends that the trial court erred in failing to grant a directed verdict because there was no evidence linking him to the contraband found behind the driver’s seat, asserting the “equal access rule” as a defense.

“ ‘ “In the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of premises, an automobile, or other property that the owner is in control and possession of contraband found therein.” [Cits.]’ This rule is equally applicable to an automobile in which the accused is only the driver or in possession of the vehicle. [Cits.] ‘As to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it.’ [Cits.] ... [In other words,] ‘ “(m)erely finding contraband (in a car) occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” ’ [Cits.] . . . If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then [the] prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the jury. ...” Fears v. State, 169 Ga. App. 172, 173 (1) (312 SE2d 174) (1983).

In the instant case, the trial court found that the testimony regarding the proximity of the contraband to appellant and statements made by appellant reflecting “some knowledge of presence of contraband” constituted additional evidence of possession sufficient to create a jury question. We conclude that “ ‘[t]he totality of the evidence was sufficient to connect [appellant] to the possession of the drugs, even though the evidence would have authorized a finding that others had equal access to the drugs. (Cit.)’ [Cit.]” Butler v. State, 192 Ga. App. 710, 713 (2) (386 SE2d 371) (1989). Accordingly, the trial court did not err in rejecting appellant’s motion for a directed verdict. In addition, we find that the evidence was sufficient to enable a rational trier of fact to find that appellant was guilty, beyond a reasonable doubt, of possession of methamphetamine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 6, 1991.

Chandelle T. Summer, for appellant.

C. Andrew Fuller, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2007.
    In the Interest of N. R., a child.
    (402 SE2d 120)
   Cooper, Judge.

The defendant juvenile was indicted for theft by taking an automobile and adjudicated delinquent in a bench trial in the Juvenile Court of Clarke County.

Under the facts as stipulated in lieu of a transcript pursuant to OCGA § 5-6-41 (i), the car was stolen from the parking lot of the victim’s apartment complex between 11:00 p.m., when she returned home, and 7:45 a.m. the next morning when she noticed it was gone. She immediately notified the police, who found the automobile between 8:00 a.m. and 12:00 noon the same day. The car was dusted for fingerprints and three were taken from the inside of the driver’s window near the lower edge. An expert from the State Crime Lab testified that the fingerprints matched those of the defendant’s right middle, right ring and right little fingers. The State rested and the defense moved for a directed verdict of acquittal on the ground that the circumstantial evidence was insufficient as a matter of law to exclude every other reasonable hypothesis except the guilt of the accused. The motion was overruled and, after the defense presented no evidence, the court found that the evidence showed beyond a reasonable doubt that the accused had committed the act as alleged.

The defendant contends on appeal that the judgment of delinquency cannot stand because the State did not meet its burden of excluding reasonable explanations of its evidence that were inconsistent with guilt, and the evidence was insufficient to establish guilt beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We do not agree. “ ‘To warrant a conviction based solely on fingerprint evidence, the fingerprints corresponding to those of the defendant must have been found in the place where the crime was committed, and under such circumstances that they could only have been impressed at the time when the crime was committed. (Cits.) These cases require the [S]tate to prove to the exclusion of every reasonable hypothesis that the fingerprints could only have been impressed at the time the crime was committed. (Cits.)’ [Cit.] There was no evidence of any other explanation of how defendant’s fingerprints came to be on the [car window] other than that they were put there during the course of the [theft]. ‘Questions as to reasonableness are generally to be decided by the [trier of fact who] heard the evidence and where the [trier of fact] is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.’ [Cit.]” (Indention omitted.) Jackson v. State, 158 Ga. App. 530, 531-532 (2) (281 SE2d 252) (1981).

Decided February 6, 1991.

Russell C. Gabriel, Megan C. De Vorsey, for appellant.

Harry N. Gordon, District Attorney, for appellee.

The defendant and the victim were strangers to each other prior to the theft of the victim’s automobile, and the defense offered no evidence to explain how appellant’s fingerprints could have otherwise appeared on the inside of the stolen car. Therefore, “[t]he conclusion is inescapable that the defendant’s prints were left on the [inside of the window] at the time of the [theft] and he has offered no alternative explanation for the existence of this evidence that is consistent with his claim of innocence. [Cit.]” Jones v. State, .193 Ga. App. 837, 838 (389 SE2d 402) (1989). Accord Glover v. State, 175 Ga. App. 285 (333 SE2d 165) (1985); Mercer v. State, 169 Ga. App. 723 (1) (314 SE2d 729) (1984). The evidence was sufficient to satisfy the standard of proof required in Jackson v. Virginia, supra.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2026.
    BRITT v. WEST COAST CYCLE.
    (402 SE2d 121)
   Cooper, Judge.

Appellee sued appellant on an account for the purchase of bicycles on November 1, 1988. Appellant answered on December 16, 1988, and appellee served appellant with a Request for Admissions (“Request”) on December 27, 1988. In February 1989, counsel for appellee wrote appellant’s counsel regarding the Request and appellant’s failure to answer the Request. Without obtaining an extension of time in which to answer the Request or seeking the court’s permission to withdraw or amend earlier admissions made due to appellant’s failure to timely answer the Request, appellant filed answers to the Request on January 5, 1990, and the jury trial occurred on January 11, 1990. At trial, appellee introduced the Request into evidence and established that all the requests were deemed admitted since a timely answer had not been filed. Attached to the Request was a copy of a check which was tendered by appellant to appellee in payment of the account due. The Request established that the check was a copy of a check payable to the appellee drawn on appellant’s checking account; that the check was tendered in payment of appellant’s account with appellee; that there were insufficient funds on deposit to pay the check when it was presented for payment; that the check has never been paid by appellant’s bank; that appellee has extended credit to appellant; and that there is an unpaid balance on appellant’s account with appellee. The copy of the check was sent out with the jury during their deliberations. Appellee also cross-examined appellant to establish that appellant had not paid the account by any means other than the check. Appellant presented no evidence at trial. Appellant appeals from the denial of her motion for a directed verdict and motion for a new trial.

1. The primary argument of appellant is found in the second and third enumerations of error. Appellant contends that the trial court erred in denying her motion for a directed verdict and that the court erred in its charge to the jury.

Appellant argues that the trial court did not give the admissions the appropriate consideration and therefore should have granted appellant’s motion for a directed verdict. “[A] matter admitted in response to requests for admission under OCGA § 9-11-36, ‘is conclusively established unless the court, on motion, permits withdrawal or amendment of the admission. ... In form and substance [such an admission] ... is generally regarded as a judicial admission rather than an evidentiary admission. . . .’ [Such] a solemn admission in judicio is conclusive as a matter of law on the matter stated and cannot be contradicted by other evidence unless it is withdrawn or amended on formal motion. [Cits.]” (Emphasis deleted.) Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987). The trial court correctly held that the failure to timely answer the Request resulted in conclusive admissions by appellant. The court further correctly disallowed appellant to present any evidence which contradicted or explained the admissions. The case was sent to the jury because the court determined that the issue of whether appellant had paid the account by any means other than the dishonored check had to be resolved. This was a matter outside the scope of the admissions, was appropriately handled by the trial court and did not result in an incorrect treatment of the admissions themselves. “A motion for directed verdict cannot be granted if there is ‘ “any evidence” creating a material issue of fact.’ [Cits.]” Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 831 (2) (386 SE2d 709) (1989). In view of the conclusive admissions of appellant introduced into evidence, appellant was not entitled to a directed verdict in her favor.

Decided February 6, 1991.

Harrison & Harrison, G. Hughel Harrison, for appellant.

John M. Miles, for appellee.

In her brief to this court, appellant asserts error with the court’s charge on the burden of proof but instead argues that the court erred in its charge on requests for admissions. As to the court’s charge on requests for admissions, the charge followed the language of OCGA § 9-11-36, was a correct statement of the law and was “ ‘sufficiently clear to be understood by jurors of ordinary capacity and understanding. (Cit.)’ [Cit.]” Archer Motor Co. v. Intl. Business Investments, 193 Ga. App. 86, 89 (6) (386 SE2d 918) (1989). There was no error in the charge.

2. Appellant also alleges that the court erroneously admitted the copy of the check attached to the Request and erroneously allowed the check to be sent out with the jury. However, appellant failed to demonstrate how the admission of the check, if in fact error, was harmful in light of the conclusive admissions of appellant which were correctly a part of the evidence. Without determining if an error occurred, we find that any contended error would be harmless and would not require a reversal. See Goss v. Mathis, 188 Ga. App. 702, 703 (373 SE2d 807) (1988). Additionally, we will not consider appellant’s attempt on appeal to object to the admission of the check on the basis of the best evidence rule since this objection was not raised at trial. See Myers v. Myers, 195 Ga. App. 529 (3) (394 SE2d 374) (1990).

Appellee’s request for ten percent damages is hereby denied. OCGA § 5-6-6.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2033.
    MILLS v. THE STATE.
    (402 SE2d 123)
   Cooper, Judge.

Appellant was charged in a five-count indictment with entering an automobile with intent to commit theft, theft by taking, misdemeanor obstruction of an officer, driving under the influence of alcohol and driving with a suspended license. He was convicted by a jury on all counts and appeals from the denial of his motion for new trial.

The charges against appellant arise out of events which occurred late one night while appellant was heavily intoxicated. The evidence adduced at trial further reflects that appellant lived at a trailer park where most of the State’s witnesses also lived. One witness testified that after hearing a rattling noise outside her trailer she looked out her window and saw appellant getting out of a truck belonging to her neighbor, Bobby Bass, with several things in his hand. She observed the man climb into the bed of the truck and take more things before getting out of the truck and starting across the street. She immediately called Bass and told him what she saw. Bass testified that after receiving that call, he ran outside and saw a man coming out of the back of his truck carrying some property belonging to Bass. Bass ran toward the man and told him to stop; however, the man ran away. Another witness testified that she saw appellant sitting in a red Ford Escort in a driveway trying to start the car and later observed the same man in the car which was then in the middle of the street. As the police approached the car, the man got out of the car and ran away. The owner of the red Ford Escort testified that she was awakened by noise outside, and when she looked out, she saw her car in the middle of the street. She also testified that she had not given appellant permission to enter her car. The arresting officer testified that he responded to a call that someone was entering a vehicle at the trailer park. After talking to the complainant, he rode in his patrol car to search for the suspect. He observed a red Ford Escort backing out of a driveway. When he turned his spotlight on the car, appellant got out of the car and ran away, but the officer was able to apprehend appellant after he ran into a tree. All of the State’s witnesses identified appellant as the man they observed on the night of the theft, and each also testified that appellant appeared to be intoxicated. Appellant testified that he had been drinking beer with a friend from about 1:30 p.m. until about 6:30 p.m.; that subsequently he and the friend began playing a drinking game with tequila; that he was not forced to play the drinking game during which he consumed most of the bottle of tequila; that he remembered waking up at his friend’s trailer later that night and falling out of the trailer while attempting to go home; but that he had no memory of any of the events which occurred later that night.

1. Appellant first contends that the trial court erred in denying his motion for a continuance. On the morning of trial, appellant’s counsel orally moved for a continuance on the ground that one of appellant’s witnesses was not present. The trial court denied the motion, finding that the motion was not in writing and did not name the witness and when he or she would be available. We find no error with the trial court’s ruling. OCGA § 17-8-25 provides: “In all applications for continuances upon the ground of the absence of a witness, it shall be shown to the court that the witness is absent; that he has been subpoenaed; that he does not reside more than 100 miles from the place of trial . . . that his testimony is material; that the witness is not absent by the permission, directly or indirectly, of the applicant; that the applicant expects he will be able to procure the testimony of the witness at the next term of the court; that the application is not made for the purpose of delay but to enable the applicant to procure the testimony of the absent witness; and the application must state the facts expected to be proved by the absent witness.” Appellant having failed to make the required showing under OCGA § 17-8-25, we find no abuse of the trial court’s discretion in denying appellant’s motion. Rhinehart v. State, 181 Ga. App. 507 (2) (352 SE2d 823) (1987).

Decided February 6, 1991.

Karen A. Robinson, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

2. Appellant next contends that the trial court erred in denying his motion for directed verdict of acquittal on the ground that the State failed to prove intent, an essential element of the crimes of entering an automobile and theft by taking. OCGA § 16-3-4 provides that “[voluntary intoxication shall not be an excuse for any criminal act or omission.” “Persons are not excused from criminal liability under [OCGA § 16-3-4] because they are incapable of forming criminal intent. . . . Lack of intent is a defense, but it is not implicated by [OCGA § 16-3-4].” Foster v. State, 258 Ga. 736, 744 (10) (374 SE2d 188) (1988). “Whether or not one has the requisite intent to commit a crime is a question for the jury.” Carsner v. State, 190 Ga. App. 141 (378 SE2d 181) (1989). The prosecution presented sufficient evidence from which the jury could have found that appellant had the requisite intent to commit the offenses charged. “ ‘It is not error to refuse to direct a verdict when, “viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Cits.]’ ” Rautenberg v. State, 178 Ga. App. 165, 167 (1) (342 SE2d 355) (1986). Accordingly, we find no error with the trial court’s denial of appellant’s motion for directed verdict of acquittal.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.