text:
    A97A1563.
    HOWARD v. THE STATE.
    (492 SE2d 683)
   Johnson, Judge.

Elijah Howard was charged with kidnapping, burglary and criminal attempt to commit kidnapping for offenses involving Deborah Pitts. In a separate indictment, he was charged with committing aggravated assault and false imprisonment upon Queronar Hamilton. He was tried on both indictments in a single trial, without objection. A jury found Howard guilty of kidnapping and criminal trespass on the Pitts indictment, and guilty of aggravated assault on the Hamilton indictment. Howard appeals from the convictions entered on the verdicts and the denial of his motion for new trial.

Viewed in the light most favorable to the verdicts, the evidence shows the following facts involving Deborah Pitts: In June 1994, Pitts ended a three-year relationship with Howard and moved into her mother’s home. A few days later, when Pitts refused to let Howard come into the home, he broke a back window and climbed inside Pitts’ mother’s house. Pitts ran out the front door, but was captured by Howard. Pitts’ ten- and twelve-year-old children were in the house at the time. Howard grabbed Pitts and shoved her into his car, then held a butcher knife to her throat and threatened to kill her. After driving Pitts to his cousin’s house and to a hotel, he drove her back to her neighborhood and released her.

Facts relating to the offenses involving Queronar Hamilton are as follows: In October 1994, Howard was trying to persuade Hamilton, his girl friend, to dismiss criminal trespass and assault warrants she had sworn out against him earlier. Howard argued with Hamilton, then choked, repeatedly punched, and pushed her into a mirror, cutting her. He dragged her down the hallway, out of her house and into the yard. Hamilton’s three-year-old son, her sister’s boyfriend and a neighbor witnessed the events.

1. Howard claims the trial court erred in allowing the state to introduce evidence of two similar transactions because the prior offenses were too remote in time and were not sufficiently similar to the offenses charged. We disagree.

Howard refers to evidence admitted regarding the following incidents: In 1982, after Howard poured a can of beer into the hair of his girl friend, Shirley Banks, Banks and a female friend started walking to the store to purchase hair care products. Howard told Banks “she wasn’t going no damn where,” but she and the friend left anyway. Howard caught up with them on the street, told Banks he was going to kill her, then beat her in the head with his fists and the butt of a gun and kicked her as she lay on the ground. The other incident occurred in 1991. In it, Howard’s girl friend, Jemisa Fambro, asked him if he was seeing Pitts. In response, Howard beat Fambro in the face, threw her on the floor, punched her, dragged her by the hair, and tried to suffocate her with a pillow. He returned later and hit and kicked Fambro, then forced her to have sexual intercourse with him. Fambro’s four-year-old son witnessed the attacks. The state sought to admit the evidence to show Howard’s intent and course of conduct.

The transactions were sufficiently similar to the crimes charged. As with the charged offenses, both of the challenged prior incidents involved an assault and battery committed by Howard upon a girl friend, while other people were present. In both the 1982 assault and the charged offense involving Pitts, the girl friend was captured outside as she tried to leave the house. The 1991 Fambro incident and the charged Hamilton incident both involved the girl friend being hit and dragged. In both the 1991 case and the charged offense involving Pitts, the victims alleged that Howard forced them to have sexual intercourse during the ordeal. The superficial dissimilarities cited by Howard, namely that one of the prior acts occurred on the street rather than inside a home, one involved hitting the victim with a gun while the charged offenses did not, and that one of the prior attacks did not include a sexual assault or kidnapping, do not destroy the basis for admitting this evidence of similar transactions. See Moore v. State, 207 Ga. App. 897, 898 (1) (429 SE2d 340) (1993).

The argument that the 1982 and 1991 transactions were too remote in time is similarly without merit. The 1991 assault occurred only three years prior to the charged offenses. See Talley v. State, 209 Ga. App. 79, 80 (2) (a) (432 SE2d 667) (1993). Furthermore, the 1982 assault was not too remote in time, particularly in light of the fact that Howard was incarcerated for several years between 1982 and 1991. See Moore v. State, 207 Ga. App. 412, 416 (1) (b) (427 SE2d 779) (1993). The evidence was probative of Howard’s method of resolving disputes with his girl friends by committing violent acts upon them. The trial court did not abuse its discretion in admitting this evidence under the standard set forth in Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). See Posey v. State, 222 Ga. App. 405 (1) (474 SE2d 206) (1996) (physical precedent only).

2. In a separate enumeration, Howard contends the trial court erred in reversing its pre-trial ruling and permitting the state to introduce evidence regarding the 1982 fatal shooting of Shirley Banks, a crime to which Howard pled guilty to voluntary mánslaughter. We find no error.

At trial, Howard testified on his own behalf and, when cross-examined about the 1982 aggravated assault on Banks, denied being the aggressor or having had a gun that day. The state renewed its motion to allow evidence of the fatal shooting as a similar transaction and also moved to admit the evidence to impeach Howard’s testimony that he did not have a gun on the day he allegedly pistol-whipped Banks. The trial court ruled that evidence of the manslaughter was admissible because it was sufficiently similar to the charged offenses and because it impeached Howard’s testimony. Howard argues that evidence regarding the homicide should not have been admitted as a similar transaction because the facts were different from the charged offenses and the past crime was too remote. Howard argues further that it was not admissible for impeachment purposes because evidence of the shooting did not contradict his trial testimony regarding the prior aggravated assault.

(a) Similarity between the 1982 manslaughter and the charged offenses. In both the manslaughter case and the Pitts case, Howard climbed through a window in his girl friend’s residence and then injured or killed her. The differences cited by Howard are superficial rather than substantive. See Moore, 207 Ga. App. 897, supra. And, as shown above, the past crime was not too remote in time.

(b) Impeachment of his trial testimony. Howard argues that evidence that he had a gun when Banks was shot at 4:00 or 5:00 a.m. on October 8, 1982, did not impeach his testimony in the trial of the charged offenses that he did not have a gun on October 7, 1982. While the two offenses did not occur on the same day, they happened only approximately thirteen hours apart. Evidence that he had a gun in the early morning hours of October 8 may be probative to show the falsity of Howard’s statement during the trial of these cases that he did not have a gun when he assaulted Banks on the afternoon of October 7. Therefore, he could be impeached with proof of the fact that he did have a gun within hours of the time Banks was pistol-whipped. See generally Porter v. State, 254 Ga. 388 (330 SE2d 94) (1985). Because the evidence was admissible for these reasons, we need not consider whether it was also admissible to impeach his testimony regarding whether he was the aggressor in the charged offenses.

3. Howard argues that the trial court erred in allowing the state to present similar transaction evidence prior to presenting evidence of the charged offenses. However, Howard did not object at trial to the order in which the evidence was presented. Therefore, the issue has been waived. See generally Hunter v. State, 202 Ga. App. 195, 197-198 (3) (413 SE2d 526) (1991).

Decided September 26, 1997

Reconsideration denied October 10, 1997

Debra G. Gomez, for appellant.

4. Howard contends that the prosecutor engaged in misconduct by misrepresenting to the court, in the state’s renewed motion to introduce evidence of the Banks’ shooting, the amount of time which lapsed between the beating of Banks and the fatal shooting. Howard argues the state implied that the two events occurred contemporaneously or within a very short time period when they actually transpired on different calendar days. Assuming, arguendo, that this enumeration was preserved below, it is without merit.

The state introduced evidence during the pre-trial similar transaction hearing showing that the beating and shooting occurred on two separate dates. It is clear from the record that the trial court was aware of the differing dates, as the judge specifically noted in the pre-trial hearing that one incident occurred on October 7 and the other took place on October 8, 1982. In addition, in arguing the renewed motion to admit evidence of the fatal shooting during the trial, the prosecutor stated that the shooting happened “hours later,” not that it occurred contemporaneously with the aggravated assault. Finally, immediately after the court changed its earlier ruling, the prosecutor reminded the court that the two transactions did not occur on the same calendar day. Howard has failed to prove by the record that the prosecutor misrepresented the facts to the court. See Moclaire v. State, 215 Ga. App. 360, 364 (6) (451 SE2d 68) (1994).

5. Howard argues on appeal that his trial counsel rendered ineffective assistance. However, the record does not indicate that this assertion was made to the trial court. Howard was convicted in February 1995. New counsel was appointed to represent him in November 1995, eight months before a hearing on his motion for new trial was held. Howard’s failure to raise the ineffectiveness claim before appeal when he had the opportunity to do so precludes him from raising the issue here. See Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996).

Judgment affirmed.

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

Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.

       Early the next morning, Howard shot Banks to death. He pled guilty to voluntary manslaughter and was sentenced to serve 17 years in prison. The trial court’s reversal of its pre-trial decision not to allow the introduction of evidence regarding this crime is raised in a separate enumeration and is discussed in Division 2, below. Only the aggravated assault against Banks, rather than the manslaughter, is discussed in this division.

       Although Howard lists several other assaults which the court ruled admissible in the similar transactions hearing, he argues in this enumeration only that the admission of evidence of the 1982 aggravated assault on Banks and the 1991 assault on Fambro was erroneous. He specifically concedes that evidence of prior offenses committed against Pitts and Hamilton was properly admitted. See Height v. State, 214 Ga. App. 570, 573 (5) (448 SE2d 726) (1994).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1709.
    WRIGHT v. THE STATE.
    (492 SE2d 680)
   Blackburn, Judge.

Jimmie Lee Wright appeals his convictions of armed robbery and aggravated assault, contesting the sufficiency of the evidence. He also contends that a photographic lineup was impermissibly suggestive and that the court erred in failing to charge on a lesser included offense. For the reasons discussed below, we reverse the conviction for armed robbery but affirm the conviction for aggravated assault.

1. Wright contends that the court erred in denying his motion for directed verdict of acquittal on the armed robbery charge. “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.) Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997).

Viewed in the light most favorable to the verdict, the evidence showed that Wright entered a convenience store, jumped over the counter, and attacked the manager, Rose Marie Lane. He grabbed her by the hair, slammed her head on the floor, hit her in the face, and kicked her in the head. Wright took a roll of quarters from the ledge of a safe mounted in the counter.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” OCGA § 16-8-41 (a). The undisputed evidence shows that Wright did not possess a weapon during the robbery. However, the indictment states, and the State contends, that Wright’s hands and fists constituted an offensive weapon in the manner used.

The State does not cite, and we have not found, any authority for the proposition that hands and feet may be considered offensive weapons for purposes of OCGA § 16r8-41. We have held that hands and feet may be considered deadly weapons for purposes of OCGA § 16-5-21, the aggravated assault statute. See Wright v. State, 211 Ga. App. 474, 475 (1) (440 SE2d 27) (1993); Haygood v. State, 154 Ga. App. 633, 635 (4) (269 SE2d 480) (1980); Kirby v. State, 145 Ga. App. 813, 815 (4) (245 SE2d 43) (1978). However, the language of the aggravated assault statute is not the same as that of the armed robbery statute. OCGA § 16-5-21 (a) (2) provides that a person commits aggravated assault when he assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Under this language, a person may properly be found to have committed aggravated assault where hands and feet are used in a manner which is likely to or actually does produce serious bodily injury.

The armed robbery statute, by contrast, expressly requires the use of an “offensive weapon.” Although we have held that this term includes “instrumentalities not normally considered to be offensive weapons per se which may be found by a jury to be likely to produce death or great bodily injury depending on the manner and means of their use,” we have never construed the statute to authorize a conviction for armed robbery where no weapon or instrument was used other than the defendant’s own hands and feet. (Emphasis supplied.) Meminger v. State, 160 Ga. App. 509 (2) (287 SE2d 296) (1981) (liquor bottle may constitute offensive weapon), rev’d on other grounds, 249 Ga. 561 (292 SE2d 681) (1982); see also Vicks v. State, 189 Ga. App. 835 (377 SE2d 863) (1989) (flare may constitute offensive weapon).

Although statements in Meminger and Vicks imply that anything which constitutes a deadly weapon under the aggravated assault statute, including fists, may also constitute an offensive weapon under the armed robbery statute, such statements are dicta and not necessary to the decisions. We take this occasion to clarify that a defendant’s hands and feet do not constitute offensive weapons for purposes of the armed robbery statute. This ruling comports with common sense and the clear intent of the statute, since a defendant who does not carry or imply that he is carrying some form of external weapon or instrument cannot in any realistic sense be said to be “armed.” “The layman’s phrase ‘armed robbery’ is not at all an inaccurate description of the offense.” People v. Dozie, 36 Cal. Rptr. 728, 730 (3rd Dist. 1964).

Our decision is not incompatible with our holdings in aggravated assault cases, because the purposes of the two statutes are different. The purpose of the aggravated assault statute is to treat as a felony those assaults likely to result or actually resulting in serious bodily injury, whether through the use of an external weapon or the defendant’s hands and feet. Compare OCGA § 16-5-20 (misdemeanor simple assault) with OCGA § 16-5-21 (felony aggravated assault). The purpose of the armed robbery statute, by contrast, is to punish more severely those defendants who use a weapon in the commission of a robbery, which would constitute a felony even in the absence of such a weapon. Compare OCGA § 16-8-40 (felony robbery) with OCGA § 16-8-41 (felony armed robbery). Thus, the focus in an aggravated assault case is the likelihood or actual presence of serious bodily harm, while the focus in an armed robbery case is on the presence of a weapon.

Accordingly, as there was no evidence of the use of an offensive weapon in this case, Wright’s conviction for armed robbery must be reversed.

2. Wright contends that his identification as the assailant was the result of an impermissibly suggestive photographic lineup, and that the court thus erred in denying his motion in limine to exclude identification testimony. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial, likelihood of irreparable misidentification.” Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996).

The record reflects that Dean McManus of the Georgia Bureau of Investigation showed the victim and other witnesses Polaroid photographs of six black males. Although the photographs are not included in the record, McManus testified that all of the subjects appeared to be approximately the same age, with medium complexion, similar hair, and no facial hair. McManus did not inform the witnesses that Wright was in the photographic array. Each of the witnesses picked Wright from the array.

Under these circumstances, the identification procedure was not impermissibly suggestive. Although Wright contends that some of the subjects in the array were not the same size as him, this does not render the array impermissibly suggestive. See Green v. State, 219 Ga. App. 878, 880-881 (4) (467 SE2d 203) (1996). And while he contends that he was the only individual in the array wearing a t-shirt, the record reflects that it was a different color t-shirt than he was wearing during the attack. Cf. Hendry v. State, 177 Ga. App. 439, 440 (1) (339 SE2d 650) (1986) (photographic lineup not impermissibly suggestive even though suspects wearing same clothing as during robbery). “Since the pre-indictment lineup procedures were not impermissibly suggestive, so as to lead the witnesses to an £all but inevitable’ identification of defendant,” this enumeration is without merit. (Punctuation and emphasis omitted.) Brewer v. State, 219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995).

3. Given our reversal of Wright’s armed robbery conviction, we need not address his contention that the court erred in failing to charge on the lesser included offense of robbery by intimidation.

Judgment affirmed in part and reversed in part.

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

Decided September 19, 1997

Reconsideration denied October 10, 1997

Harold D. McLendon, for appellant.

Ralph M. Walke, District Attorney, Wesley C. Ross, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A96A0800.
    DEPARTMENT OF TRANSPORTATION v. NORRIS et al.
    (493 SE2d 414)
    Decided October 10, 1997.

      Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, Cathy A. Cox-Brakefield, Assistant Attorney General, for appellant.

      Kirbo, McCalley & Forehand, Thomas L. Kirbo III, David S. Herndon, Sims, Fleming & Spurlin, John C. Spurlin, for appellees.
   McMurray, Presiding Judge.

The Supreme Court having reversed the judgment of this Court in Dept. of Transp. v. Norris, 222 Ga. App. 361 (474 SE2d 216), that judgment is hereby vacated, and the judgment of the Supreme Court in Norris v. Dept. of Transp., 268 Ga. 192 (486 SE2d 826) is made the judgment of this Court.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: POPE, Presiding Judge.

text:
    A97A1118.
    WORTHINGTON INDUSTRIES et al. v. SANKS.
    (492 SE2d 753)
   POPE, Presiding Judge.

In this workers’ compensation case, we granted a discretionary appeal to Worthington Industries and its insurer, Continental Casualty Company (hereinafter “Worthington”). The ALJ found that claimant Jamie Sanks had aggravated a congenital back problem while working for Worthington in 1995, but also found that aggravation had resolved as of January 18, 1996. Holding that any continuing disability Sanks suffered after January 18 was not causally related to his on-the-job injury, the ALJ terminated benefits as of that date. The appellate division of the State Board of Workers’ Compensation affirmed the ALJ. The superior court, however, found “no competent evidence to support a change in condition for the better” and ordered Worthington to pay continuing benefits after January 18, 1996. We reverse the superior court.

1. Before we reach the merits of the superior court’s holding, we address Worthington’s claim that the trial court’s failure to timely file the order affirmed the appellate division’s award as a matter of law. The court’s order is signed November 1, 1996, but is stamped “filed in office” November 7, 1996. Although OCGA § 34-9-105 (b) requires the superior court to enter its order within 20 days of the hearing, the court entered a supplemental order stating that its order was, indeed, filed with the clerk of court on November 1, 1996. As that date is within the statutory period, this enumeration is without merit. See Sunbelt Specialties v. Keith, 201 Ga. App. 167 (1) (410 SE2d 364) (1991).

2. “ ‘In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the [ALJ and] appellate division. . . . [N]either the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the [State] Board [of Workers’ Compensation].’ [Cits.]” Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996). The ALJ found that in February 1995, Sanks “felt a sharp pain in his back” while welding and was placed on light-duty status. Doctors determined that he had aggravated a congenital deformity of his lumbar spine. Sanks received physical therapy and medical treatment, which a doctor believed would allow him to return to normal work. On January 18, 1996, his physician determined he had reached maximum medical improvement even though he continued to suffer pain “aggravated by prolonged sitting” as a full-time college student. In July 1996, Worthington fired him for reasons unrelated to his injury.

From this evidence, the ALJ determined that after Sanks reached maximum medical improvement, his on-the-job injury had resolved and was no longer the cause of any disability. The appellate division affirmed the ALJ’s findings and further found that Worthington had carried its burden of showing that the “injury-induced aggravation had subsided” as of January 18,1996. The superior court reversed and held that “[i]t is not sufficient that the Employer can show that the Employee has reached maximum medical improvement. [Worthington] must show that there has been a change in condition for the better such that [Sanks] has returned to his preexisting physical condition. In the case at bar, there is no competent evidence to support that theory.”

The superior court erred, as Worthington “needed only to establish that benefits were terminated because [Sanks’] present disability was not causally connected with his employment. [Cit.]” Molden, supra at 391. When Dr. Walsh examined Sanks in June 1995, he suggested Sanks participate in physical therapy and recommended he “continue on light duty status until he has reached maximum improvement through therapy.” At the January 18, 1996 appointment, Dr. Walsh found Sanks had “reached MMI” even though he continued to have “low backache with some radiation, down the left leg . . . aggravated by prolonged sitting. He is now a full time student.” Though not overwhelmingly persuasive? this evidence allowed the ALJ and appellate division to infer that although Sanks continued to have pain and disability, those problems were not causally related to his prior injury at Worthington but were unrelated aggravations of his congenital defect. The superior court and this Court must strongly construe such inferences to uphold the award of the ALJ and appellate division. See United Family Life Ins. Co. v. Sasser, 224 Ga. App. 871 (482 SE2d 491) (1997). “Whether [Sanks’] original injuries had completely healed and whether [his] current disability was connected to his on the job injury were . . . questions of fact for the ALJ and appellate division. These questions were decided adversely to [Sanks], and neither the superior court nor this Court is authorized to find otherwise.” Molden, 223 Ga. App. at 392; see also Elbert County Bd. of Commrs. v. Burnett, 200 Ga. App. 379, 382 (408 SE2d 168) (1991).

Decided October 10, 1997.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Wendy Goodwin, for appellants.

Slappey & Sadd, E. Scott Slappey, for appellee.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A97A1293.
    HOWARD v. THE STATE.
    (492 SE2d 759)
   Judge Harold R. Banke.

Daniel Howard was convicted of rape and burglary. He enumerates eight errors on appeal, five of which challenge the sufficiency of the evidence and will be addressed collectively.

This case arose after Howard asked the 26-year-old victim, a mentally retarded woman, for a glass of water. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). Howard had been mowing a nearby lawn and observed the victim as she walked home from her aunt’s house. The victim knew Howard from his acquaintance with her mother.

After the victim poured Howard some water and brought it to her back door, Howard pushed in through the doorway, forced the victim onto a chair, pulled down her undergarments, and raped her. The victim yelled and struggled until he left her alone. When the victim threatened to tell her mother, Howard gave her $90. The victim nevertheless telephoned her mother when Howard left and described what he did to her.

After making this tearful call, the victim insisted upon attending graduation ceremonies for the son of a friend, her “play mom.” The victim’s mother allowed this, and then notified law enforcement. A physician who subsequently examined the victim found her upset and in pain, at times sobbing inconsolably. He also discovered tears in her perineum and hymen and reported that before this attack, she had been a virgin. He found no evidence of seminal fluid. Held:

1. The evidence, viewed in the light most favorable to the State, was sufficient to permit the jury to find all the essential elements of the offenses. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).' The State established the essential elements of rape through the victim’s testimony that Howard penetrated her against her will. OCGA § 16-6-1; Hollis v. State, 225 Ga. App. 370 (1) (484 SE2d 54) (1997) (rape requires proof of forcible and non-consensual penetration of the female sex organ by the male sex organ). The physician’s testimony that the lacerations in the victim’s perineum could be due to forceful intercourse corroborated her statements.

Howard’s arguments regarding the inconsistency between the victim’s complaints of pain and her appearance at the graduation, the absence of semen, and the victim’s purported unreliability all seek a reweighing of the evidence. This we cannot do. Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994).

The victim’s testimony that Howard pushed his way into her home and immediately forced himself on her established the essential elements of burglary. OCGA § 16-7-1; Hambrick v. State, 174 Ga. App. 444, 446-447 (1) (330 SE2d 383) (1985) (the elements are: (1) entering into the dwelling house of another (2) without authority (3) with the intention of committing a felony).

2. We reject Howard’s contention that admission of the victim’s prior consistent statements was error. The victim’s mother’s testimony of her daughter’s telephone call to her immediately after the rape was admissible as res gestae, as was the “play mom’s” testimony that the victim stated that she had been raped by somebody named Howard. OCGA § 24-3-3; Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (3) (471 SE2d 240) (1996). Howard’s failure to object to the admission of corroborating testimony by the investigating officer waived that claim of error. Mobley v. State, 218 Ga. App. 739, 741 (3) (463 SE2d 166) (1995). The record demonstrates that Howard’s motion in limine on this issue was, given its broadest construction, limited to testimony of the victim’s mother and the “play mom.”

Decided October 10, 1997.

Charles R. Floyd, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Roosevelt Hamb, Jr., Juliette O. W. Scales, Assistant District Attorneys, for appellee.

3. The evidence was sufficient to establish that Howard committed the similar transaction. The similar transaction witness clearly identified Howard as a maintenance worker at her apartment complex who often came to make repairs. She testified that two years earlier, while he was at her apartment working, Howard pushed her onto her bed and raped her. This evidence is sufficient to establish that Howard committed the rape for purposes of satisfying Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Howard v. State, 220 Ga. App. 267, 269 (2) (469 SE2d 396) (1996); OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); see Mooney v. State, 221 Ga. App. 420, 423 (1) (471 SE2d 904) (1996). Similar transactions need not result in convictions to be admissible. Howard, 220 Ga. App. at 269 (2).

4. Howard asserts that the trial court erred in admitting the similar transaction evidence without conducting a legal relevance balancing test. The trial court was not required to conduct an on-the-record balancing test. Fetterolf v. State, 223 Ga. App. 744, 746 (3) (478 SE2d 889) (1996).

Judgment affirmed.

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

       The State’s failure to address this issue is disappointing.


author: Pope, Presiding Judge.

text:
    A97A1327.
    In the Interest of L. P., a child.
    (492 SE2d 757)
   Pope, Presiding Judge.

L. P. was adjudicated delinquent after having been found to have committed two counts of vehicular homicide. OCGA § 40-6-393 (a). She appeals, challenging the sufficiency of the evidence.

On October 4, 1996, at approximately 10:30 p.m., L. P. was driving west across the St. Simons Island causeway. L. P. started to pass a Honda Civic, but the driver of the Civic, S. L., abruptly moved into her lane of traffic, cutting her off. L. P. testified that at first she was angry at being cut off, but then she saw someone in the passenger’s seat wave so she thought maybe she or her passengers, two other female juveniles, knew the occupants of the other car. L. P. said she changed lanes, and S. L. again abruptly changed lanes and moved in front of her. L. P. said she repeatedly changed lanes in an attempt to come alongside or “catch” S. L., but that every time she did he would change lanes and cut her off. L. P. said she never looked at her speedometer and did not know how fast she was driving. L. P. testified that S. L. was always in front of her and always traveling faster than she was. Because S. L. would not let her catch up, L. P. decided that she probably did not know the occupants of the car and that S. L. might be drinking. L. P. testified she was applying her brakes and backing off when she saw S. L. abruptly turn his wheels to the left and appear to lose control of the car.

S. L., who entered guilty pleas to two counts of vehicular homicide, testified that his attention was first drawn to the car driven by L. P. when he passed it “really fast” and then it passed him really fast. S. L. testified that he and L. P. were both driving fast, changing lanes frequently and passing each other. A passenger in S. L.’s car testified that L. P. “chased” them but never passed them. Both S. L. and his passenger testified that they did not know the occupants of the other car.

According to S. L., he was looking in his rearview mirror when one of his passengers called his attention to the car in front of him. S. L. testified that because he was coming up on the car too fast, he switched lanes and his car started swerving. His car then crossed into the oncoming lane, where it hit Richard Holman’s car. Holman and the rear seat passenger in S. L.’s car, who was ejected onto the highway when S. L.’s car disintegrated on impact, died at the scene of the accident. S. L. testified that he lost control of his car because he switched lanes too fast. He also testified that he had no doubt in his mind that windy conditions on the night of the accident affected his ability to control his car, and others testified about windy conditions that night.

In order to sustain the convictions for first degree vehicular homicide, the evidence must be sufficient to prove beyond a reasonable doubt that L. P. committed the offense of reckless driving, see OCGA §§ 40-6-390 and 40-6-393 (a), and that her reckless driving was the proximate cause of the death of the two victims. See Johnson v. State, 170 Ga. App. 433 (1) (317 SE2d 213) (1984). The evidence showed that both L. P. and S. L. were speeding and switching lanes improperly. Weather conditions were unfavorable, with several witnesses testifying that windy conditions the night of the accident made driving more difficult. And, though L. P. argues she had quit chasing S. L. at the time of the accident, her own testimony reveals that she had just started to slow down when the accident occurred. Under these circumstances, we agree with the juvenile court that both L. P. and S. L. were driving recklessly and that both L. P.’s and S. L.’s reckless driving caused the accident and resulting deaths. Cf. McKinney v. State, 204 Ga. App. 323 (419 SE2d 339) (1992).

Decided October 10, 1997.

Ronald E. Harrison II, for appellant.

Stephen D. Kelley, District Attorney, W. Franklin Aspinwall, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       One witness estimated that she was going between 60 and 65 mph when L. P. passed her. S. L. testified that his speed varied between 50 and 70 mph.

       “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a).


author: Smith, Judge.

text:
    A97A1431.
    ETHERIDGE v. THE STATE.
    (492 SE2d 755)
   Smith, Judge.

Tracy Etheridge was convicted on one count of burglary, OCGA § 16-7-1 (a). Etheridge’s motion for new trial as amended was denied, and this appeal ensued. Finding no merit to Etheridge’s arguments on appeal, we affirm.

1. Etheridge first contends the evidence was insufficient to support the verdict. The State presented evidence that around 11:00 p.m. on November 28,1995, a City of Decatur police officer responded to a call to a Texaco service station and convenience store located at the corner of North Candler Street and Ponce de Leon Avenue in Decatur. He discovered broken glass inside and outside the building where the glass door had been shattered, apparently with an iron water meter cover which was found inside the station. The cash register was missing. Two witnesses described their observations of an individual carrying an object away from the Texaco station late that evening. One witness, who lived in a second-floor apartment next door to the station, testified that around 11:00 p.m. that night, he heard a crash and looked from his apartment toward the station, where he could see an individual moving around inside. He watched the person leave the store carrying a rectangular, apparently heavy object. He described the person as being six feet tall, slender, black and as wearing a dark-colored baseball cap, a shirt with dark vertical stripes, dark pants, and tennis shoes. An employee of the convenience store testified that whoever broke the glass and took the cash register did not have permission to do so.

Another witness who lived around a block from the Texaco station testified that around 11:00 the same evening, he heard a crash, looked outside, and saw an individual carrying and “fumbling with” what appeared to be an adding machine or cash register, with register tape trailing behind. He described the individual as being around six feet tall, slender, black and as wearing a vertically striped shirt, dark pants, and a baseball cap. He heard a nearby alarm sounding and called the police. Pieces of the cash register and several coins were later found in this witness’s yard. The cash register was found lying next to a wall nearby. After receiving this description, an officer observed Etheridge walking toward a MARTA station on Church Street in Decatur, in the vicinity of the Texaco station. He stopped Etheridge, who was carrying some change in his hands. The officer remembered seeing pieces of glass in Etheridge’s shoes. A micro-analyst from the GBI crime lab testified that he found glass embedded in the bottom of Etheridge’s tennis shoes, as well as fresh cuts in those shoes. He compared the pieces of glass from the tennis shoes to glass from the broken door of the Texaco station and concluded that two of the glass shards could have come from the door.

Finally, similar transaction testimony was presented that on May 26, 1993, Etheridge used a water meter cover to smash a glass door of a convenience store in Decatur and that he entered the store and stole a 12-pack of beer. Etheridge’s identity as the perpetrator of this prior burglary was established by the officer who investigated the burglary and by a certified copy of Etheridge’s conviction for the burglary.

The trial court fully charged the jury on the law concerning the State’s burden of proof, witness credibility, and circumstantial evidence. Considering the totality of the evidence and the court’s charge, the evidence, although circumstantial, was sufficient to authorize a rational trier of fact to find Etheridge guilty of burglary under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Gatling v. State, 203 Ga. App. 407, 408 (1) (416 SE2d 877) (1992).

2. Etheridge also contends he was denied effective assistance of counsel because his trial counsel failed to apprise him of his right to testify. To establish ineffective assistance of counsel under the standard of Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), an appellant must show that counsel’s performance was deficient and that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for the deficiency. See Ney v. State, 227 Ga. App. 496, 499 (4) (489 SE2d 509) (1997). Etheridge has failed to meet both prongs of this test.

First, he has not shown that trial counsel’s performance was deficient. Trial counsel, who had been admitted to practice law in 1991 and had handled several criminal matters, including 20 criminal jury trials while working in the public defender’s office and as a private practitioner, testified that she met personally with Etheridge and talked with him on the telephone several times prior to trial. She stated that she and Etheridge discussed the possibility of his testifying, but she advised him against this because of the quantity of evidence against him and because the “seasoned district attorney” trying the case “might trip him up and basically cause Mr. Etheridge to open the door as far as his criminal history.”

Counsel testified that Etheridge left the decision as to whether he should testify to her but that, if he had desired to testify, he would have done so because “that would have been his right.” This decision was one of trial strategy and is not tantamount to ineffectiveness of counsel. Trial tactics and strategy are within the “exclusive province of the lawyer after consultation with the client.” (Citation and punctuation omitted.) Ney at 499 (4). We note that Etheridge acknowledged he had testified on his own behalf in a previous criminal matter. In addition, he previously entered guilty pleas to other charges, and he admitted that each time he pled guilty he signed a document stating his understanding that he had the right to testify in that proceeding.

But even assuming trial counsel failed to tell Etheridge of his right to testify and that he did not have knowledge of this right as a result of prior proceedings, Etheridge has not shown a reasonable probability that the result of his trial would have been different had he testified. He testified during the hearing on his motion for new trial that he would have contradicted police officers’ testimony concerning where he was stopped on the night of the burglary and the amount of money taken from him. He also claimed that he would have explained that he had bought his tennis shoes several months prior to his arrest and could have picked up glass from other sources. Even had Etheridge testified, the jury, as trier of fact, would have been authorized to disbelieve contradictory testimony. See, e.g., Harmon v. State, 181 Ga. App. 133, 134 (351 SE2d 527) (1986). As for Etheridge’s argument concerning his tennis shoes, the microanalyst who tested the glass from the shoes could only state at best that the glass in the shoes “could” have come from the window, thus implying that the glass could have come from other sources. Etheridge’s testimony in this regard would have been merely cumulative. The trial court consequently did not err in denying Etheridge’s motion for new trial based on ineffective assistance of counsel.

Judgment affirmed.

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

Decided October 10, 1997.

Emerson Carey, Jr., for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.


author: Ruffin, Judge.

text:
    A97A1544.
    AMADO et al. v. CITY OF ATLANTA et al.
    (492 SE2d 761)
   Ruffin, Judge.

Karen Amado and Joel Cogdell d/b/a Onyx Productions International sued the City of Atlanta (“the City”), the City Attorney, members of the City Council, and Forrest Johnson (collectively “the defendants”) for alleged violations of the Georgia Racketeer Influenced & Corrupt Organizations Act (OCGA § 16-14-1 et seq.). The defendants moved the trial court to strike the complaint in its entirety pursuant to OCGA § 9-11-12 (f), and to order plaintiffs to redraft the complaint in compliance with OCGA § 9-11-8 (a) (2). The defendants also moved to disqualify plaintiffs’ counsel on the ground that he is a material witness to certain events in dispute. The trial court granted the motions, and the plaintiffs directly appealed both orders.

The defendants moved this Court to dismiss the appeal on the ground that neither order was directly appealable. The defendants argue that because both orders were interlocutory, and plaintiffs failed to employ the interlocutory appeal procedure, the appeal must be dismissed. We agree.

Our Supreme Court and this Court have both held that orders disqualifying counsel are interlocutory, and that parties desiring to appeal such orders are required to follow the interlocutory appeal procedure. See Cherry v. Coast House, Ltd., 257 Ga. 403, 404 (2) (359 SE2d 904) (1987); Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 496 (1) (268 SE2d 733) (1980). We have also ruled that where a trial court grants a motion to strike, and the case remains pending in the trial court, the order is not directly appeal-able. See Lunsford v. Fulton County, 227 Ga. 547 (181 SE2d 865) (1971); see also Mem. Med. Center v. Moore, 184 Ga. App. 176 (361 SE2d 49) (1987); Whatley v. Blue Cross &c., 165 Ga. App. 340, 341 (301 SE2d 60) (1983).

Because there is no certificate authorizing an appeal from these interlocutory orders, they are not appealable under the Appellate Practice Act, and the appeal must be dismissed. See Lunsford, supra; Ewing Holding Corp., supra.

Appeal dismissed.

Birdsong, P. J., and Eldridge, J., concur.

Decided October 10, 1997.

Walter M. Henritze, Jr., for appellants.

Long, Weinberg, Ansley & Wheeler, Kathryn S. Whitlock, Pamela C. Corley, Phears & Moldovan, H. Wayne Phears, Richard E. Harris, for appellees.


author: Eldridge, Judge.

text:
    A97A2449.
    LEONARD v. THE STATE.
    (492 SE2d 747)
   Eldridge, Judge.

On December 5, 1996, Investigator Robert Spires of the Macon Police Department, a five-year member of the Macon-Bibb County Drug Unit, received information from a reliable confidential informant (“RCI”) regarding drug activity. The RCI told Investigator Spires that he had recently seen at least a cookie of cocaine in a 1980 light blue Dodge, Georgia tag number CSJ491; that one occupant was named “Donnie”; that the car was leaving the Antioch Road area with two to three people inside; and that the car would return to the area in a short time.

Investigator Spires ran the tag number and found that the tag was registered to Ronald Milner and was on a 1985 Dodge Charger. Investigator Spires, along with other narcotics investigators, set up surveillance at locations on Antioch Road. Within 15 minutes of the time frame given by the RCI, a car matching the description, being driven by Milner, appeared.

Investigator Spires pulled the car over and got the driver out, who was later identified as Milner. Investigator Spires informed Milner why he had been stopped and asked for consent to search the vehicle. Milner granted a consent to search his vehicle. Donnie Brown was seated in the right front seat. When the vehicle was stopped, Spencer Charles Leonard, appellant, was seated in the middle rear, leaning with his upper body between the front seats, over the console and partially over the brown paper bag with a Checker’s logo.

Investigators Chris Patterson and Harry Colbert conducted the search of the vehicle. Investigator Patterson pointed out to Investigator Spires the brown paper bag between the two front bucket seats, under the edge of the driver’s seat and the hump. The bag contained a cookie of crack cocaine, as well as two large pieces of crack. A piece of crack had fallen out of the bag and lay in plain view from the front passenger’s seat. Investigator Patterson saw the crack as soon as the passenger door opened and he put his hand on the front seat.

Investigator Spires took the bag and drugs into custody after the bag had been pointed out to him by Investigator Patterson.

All of the defendants denied ownership or knowledge of the crack. Leonard was searched, and no drugs, drug-related paraphernalia, or money was found on him.

Leonard stipulated and consented to submit to a polygraph examination, which was performed by Captain Raymond Moody of the Macon Police Department. Captain Moody interpreted the physical responses by Leonard to four questions as indicating deception. The four questions and answers were: “(1) Q: Did you have the cocaine with you when you got into the car? R: No; (2) Q: Did you know the drugs were in the car when you were stopped by the police? R: No; (3) Q: Did the drugs belong to you? R: No; and (4) Q: Have you told me the complete truth here today? R: Yes.” The polygraph procedure was very abbreviated, and the equipment used was the least advanced, which went to the weight and credibility of the operator’s opinion. The operator admitted that the same results could lead to different opinions as to interpretation by different operators.

All of the defendants stipulated to the introduction of the certified copy of the State Crime Laboratory report; the analysis showed 30.5 grams of cocaine with 69 percent purity.

Ronald Milner testified in his own defense at trial that Brown and Leonard waved him down as they walked to a convenience store, and he agreed to drive them to the store for a couple of dollars. At the store, Brown purchased beer. Milner then drove them to a location off Napier Avenue, and Brown and Leonard got out of the vehicle and went into a house, where they stayed for about 30 to 35 minutes. Milner drove them back toward the location where he had picked them up; Leonard saw a detective car and told Milner. Brown told Milner to “roll on down the street” before stopping.

Milner called as a witness Eric George McCrary, who was a prisoner when Leonard and Brown were booked into jail and had been two feet away from the defendants when he heard their conversation. According to McCrary’s testimony, Leonard told Brown that he was not going to take a drug charge for Brown; Leonard also asked Brown why he did not throw the drugs out the window when they saw the detectives; Brown then offered Milner $1,000 to take the drug charge.

On February 18, 1997, Leonard was indicted along with Brown and Milner with trafficking in cocaine. Leonard made motions to suppress, to sever, and to reveal the identity of the confidential informant, which were denied. On March 26, 1997, Leonard was found guilty of trafficking in cocaine and was sentenced on March 27, 1997. A motion for new trial was made and denied on June 30,1997. Notice of appeal was filed on July 3, 1997.

1. The first enumeration of error is that the trial court erred in denying the motion to sever. We do not agree.

There was no pretrial showing that the defenses were antagonistic; that there would be prejudice, i.e., the danger the jury might use evidence admitted against only one defendant against another, despite a cautionary instruction; that the defendants would testify for each other if tried separately; or that the number of defendants would confuse the jury as to the evidence and law applicable to each defendant. Absent such proper showing, the decision of the trial judge will not be disturbed absent an abuse of discretion which shows “that the defendant suffered prejudice amounting to a denial of due process.” OCGA § 17-8-4; Carroll v. State, 147 Ga. App. 332, 333 (248 SE2d 702) (1978); see also Jones v. State, 243 Ga. 584, 586 (255 SE2d 702) (1979); Cain v. State, 235 Ga. 128, 129 (218 SE2d 856) (1975); Mitchell v. State, 195 Ga. App. 255, 258 (2) (393 SE2d 274) (1990); Aaron v. State, 145 Ga. App. 349 (243 SE2d 714) (1978). Obviously the jury was not confused, because they convicted the passengers and acquitted the driver, who testified against his co-defendants. Leonard has failed to carry the burden of proving prejudice, other than that a separate trial might give him a better chance at acquittal, which is insufficient; there was no clear showing of prejudice or a consequent denial of due process. Cain v. State, supra at 129; Barnett v. State, 204 Ga. App. 491, 495 (420 SE2d 43) (1992). .

2. The second enumeration of error is that the trial court erred in denying defendant’s motion to reveal the identity of the confidential informant. We do not agree.

OCGA §§ 24-9-21 (4) and 24-9-27 (d) provide for privilege against disclosure of the identity of a confidential informant who was not an eyewitness to the offense that forms the basis for the prosecution, although he or she may have seen the defendant in possession of the contraband at an earlier time, but did not participate in the offense. The informant, for evidentiary purposes, is considered a mere “tipster.” For purposes of probable cause, the issue of the status of a “reliable” confidential informant is a different evidentiary matter, not a constitutionál matter, because guilt or innocence is not at issue on a motion to suppress and does not involve the issue of right of confrontation. Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639) (1957); Mooney v. State, 243 Ga. 373, 395-396 (8) (254 SE2d 337) (1979); Swint v. State, 199 Ga. App. 515, 516-518 (2) (405 SE2d 333) (1991). The non-disclosure of the identity of a confidential informant encourages assistance, protects the future usefulness of the informant, and protects the safety of the informant, and is a matter of sound public policy within the statutes. The movant must establish the relevance, materiality, and necessity of the identity of the informant as a predicate for disclosure. Mooney v. State, supra at 395-396; Thornton v. State, 238 Ga. 160, 162-166 (2) (231 SE2d 729) (1977), later appeal, 239 Ga. 693 (238 SE2d 376) (1977); Keith v. State, 238 Ga. 157 (231 SE2d 727) (1977); Chancey v. Hancock, 233 Ga. 734, 736-737 (3) (213 SE2d 633) (1975); Pass v. State, 227 Ga. 730, 731-732 (4) (182 SE2d 779) (1971); Beck v. State, 216 Ga. App. 532, 534 (1) (455 SE2d 110) (1995); Stanford v. State, 134 Ga. App. 61 (213 SE2d 519) (1975).

However, absolute privilege against non-disclosure under all circumstances is not permitted where the informant possesses exculpatory evidence not otherwise available. See Thornton v. State, 238 Ga. at 164; Taylor v. State, 136 Ga. App. 31 (220 SE2d 49) (1975). Whether or not the identity of the confidential informant is discoverable rests within the sound discretion of the trial court, which discretion can be exercised only after the trial court has heard evidence as to the relevance, materiality, and necessity of disclosure from the defense. Leonard failed to prove any of these issues that would authorize disclosure of the informant’s identity. OCGA § 17-5-30 (b); Thornton v. State, 238 Ga. at 165; State v. Keith, 139 Ga. App. 399 (228 SE2d 332) (1976), aff’d, 238 Ga. 157 (231 SE2d 727) (1977); Swint v. State, supra at 517; Miller v. State, 163 Ga. App. 889 (296 SE2d 182) (1982); Hatcher v. State, 154 Ga. App. 770 (270 SE2d 16) (1980); Taylor v. State, supra; Stanford v. State, supra.

An eyewitness does not enjoy the protection of the statute, because such person is a factual witness to the offense. Swint v. State, supra; see also Henderson v. State, 162 Ga. App. 320 (292 SE2d 77) (1982). An informant who takes the police to a drug buy, introduces the officer, and witnesses the sale is an eyewitness. However, the trial court, in balancing the respective rights of the defendant and the interests of the State, can in the exercise of sound discretion deny disclosure. Howard v. State, 144 Ga. App. 208 (240 SE2d 908) (1977); Miller v. State, 141 Ga. App. 382 (233 SE2d 460) (1977); Bell v. State, 141 Ga. App. 277 (233 SE2d 253) (1977). Further, when the informant is a witness from participating directly in the offense prosecuted and the arrest, the trial court must balance the rights of the defendant against the rights of the State. Roviaro v. United States, supra. “Whether a proper balance renders nondisclosure' erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer’s testimony, and other relevant factors.’ Roviaro, supra at 62.” State v. Royal, 247 Ga. 309, 312 (275 SE2d 646) (1981).

In this case, Leonard moved for the disclosure of the identity of the confidential informant on the basis that the RCI was a witness to the possession of cocaine by two or three black males in the identified car prior to the arrest. Such testimony would not be exculpatory but inculpatory; however, Leonard was prosecuted for possession at the time of arrest, not for some earlier time; therefore, the RCI was not a witness to the offense for which Leonard was tried. Therefore, this case does not come within the ambit of a confidential informant as a witness, because the RCI was not present, did not participate in the arrest, or take part in the offense. Further, the owner/driver Milner consented to the search of the vehicle, so that there was no issue as to probable cause for the search and seizure. Thus, Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534) (1989) and Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988), which dealt with informants who were eyewitnesses to the arrests, were distinguishable on the facts and law from this case. See Wells v. State, 212 Ga. App. 60, 63-64 (3) (441 SE2d 460) (1994). The strained construction of the defense would make all RCIs witnesses, requiring the disclosure of their identity, in contravention of.the law and public policy. The trial court did not abuse its discretion in denying the disclosure of the identity of the RCI.

3. The third enumeration of error is that the trial court erred in denying the motion for new trial. We do not agree.

Leonard relies upon the principle that constructive possession based upon mere spatial proximity to the contraband is not sufficient to sustain a conviction for possession. Walden v. State, 196 Ga. App. 844 (397 SE2d 182) (1990); In the Interest of C. A. A., 187 Ga. App. 691 (371 SE2d 247) (1988); see also Llaguno v. State, 197 Ga. App. 789, 790-791 (1) (399 SE2d 564) (1990). If the evidence of the location of the contraband were the only evidence presented, then Leonard might be correct in his analysis. However, Leonard’s proximity to the drugs was not the only evidence to support a conviction based upon parties to a crime with joint constructive possession and equal access by both.

The owner/driver Milner testified that the drugs were not his; Milner’s witness testified that Brown and Leonard made admissions against their penal interest in his presence that indicated that they knew the drugs were present, that they jointly possessed the drugs, and that they were engaged in the criminal activity together. Leonard also submitted to a polygraph test, and the examiner testified that, in his opinion, such results indicated Leonard’s deception regarding his knowledge, ownership, and possession of the drugs. When the proximity of the drugs is coupled with such other facts and circumstances that sufficiently prove that Leonard was a party to the crime, such totality of the evidence of the circumstances sufficiently establishes joint constructive possession of the drugs. See Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996); see also Blaise v. State, 185 Ga. App. 653, 654 (365 SE2d 499) (1988); Garvey v. State, 176 Ga. App. 268, 274 (6) (335 SE2d 640) (1985); Brownlee v. State, 173 Ga. App. 138, 139 (1) (325 SE2d 815) (1984). This Court has held “[s]uch additional evidence may include: inculpatory statements, Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994); giving a false explanation to the police for presence on the scene, Thomas v. State, 207 Ga. App. 140, 145 (426 SE2d 923) (1993), Bean v. State, 204 Ga. App. 242, 243 (1) (418 SE2d 798) (1992); or possessing large sums of cash or paraphernalia consistent with the sale of contraband, Mitchell v. State, 222 Ga. App. 453 (474 SE2d 306) (1996), Whitfield v. State, 217 Ga. App. 402, 405 (457 SE2d 682) (1995) . And while mere presence is insufficient to convict an accused of being a party to a crime, the testimony of an accomplice tending to connect the accused to the crime will support a jury’s verdict if supported by slight evidence, which may be circumstantial. Earl v. State, 214 Ga. App. 891, 892 (1) (449 SE2d 361) (1994).” Ryans v. State, 226 Ga. App. 595, 596-597 (1) (487 SE2d 130) (1997); see also Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Decided October 10, 1997

W Lee Robinson, for appellant.

Charles H. Weston, District Attorney, Kirby H. Wincey, Jr., Assistant District Attorney, for appellee.

After the jury’s verdict of guilty, Leonard can no longer rely upon the presumption of innocence, and this Court cannot re-weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence is such as to enable any rational trier of fact to find Leonard guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Ryans v. State, supra at 597; Cody v. State, 222 Ga. App. 468, 470 (1) (474 SE2d 669) (1996); Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993); Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). “Moreover, £the test established [in Jackson v. Virginia, supra,] is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.’ Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).” Lester v. State, supra at 376.

Judgment affirmed.

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


author: Andrews, Chief Judge.

text:
    A97A0900.
    McCLURE v. MASON.
    (493 SE2d 16)
   Andrews, Chief Judge.

Elizabeth Mason, the widow of physician and developer Miles H. Mason, Jr., filed an application for year’s support pursuant to OCGA § 53-5-2. Dr. Mason had declared Chapter 11 bankruptcy in 1988, and her petition sought property subject to the claims of Dr. Mason’s bankruptcy creditors. Larry McClure, a creditor and former business partner of Dr. Mason, filed a caveat to Mrs. Mason’s petition. Following a bench trial, the probate court awarded Mrs. Mason cash, personal property and real property. McClure claims the probate court improperly awarded Mrs. Mason property vested in the bankruptcy estate. He also challenges the award as excessive and enumerates as error the trial court’s failure to assign a monetary value to the assets awarded.

1. McClure’s first enumeration requires us to clarify the nature of the probate court’s award. McClure argues that title to several of the assets awarded to Mrs. Mason was vested in an ongoing Chapter 11 reorganization; therefore, these assets were property of the bankruptcy estate. See generally In re Hoffman, 51 BR 42 (W.D. Ark. 1985), cited by both parties. Because these assets did not belong to Dr. Mason, McClure reasons, the probate court had no power to award the assets as year’s support. See In re Estate of Adamson, 215 Ga. App. 613, 614 (1) (451 SE2d 501) (1994). We agree with McClure that the probate court could only award Mrs. Mason property belonging to her husband’s estate and had no jurisdiction to determine whether the property was vested in her, Dr. Mason’s estate or in the bankruptcy estate. Id.; Johnson v. Johnson, 199 Ga. App. 549, 550 (1) (405 SE2d 544) (1991). But those limitations did not prevent the court from including the properties in its award. “It is true as a matter of law that a year’s support for a widow can be set apart to her only from the estate of her deceased husband; and if property included therein does not as a matter of fact constitute a part of his estate, the judgment of the [probate court] simply will not attach to such property, but will be void as applied thereto.” (Citations and punctuation omitted.) Auto Alignment Svcs. v. Bray, 214 Ga. App. 53, 54 (446 SE2d 753) (1994). As in Johnson, supra at 550, “[e]ven if no legal title remained in [Dr. Mason] at [his] death, if [his] estate retained an equitable interest ... a year’s support may include an award of such interest.” Therefore, we interpret the probate court’s order to award Mrs. Mason whatever interest her husband’s estate held in the enumerated assets. Enforcing the award will require that a determination of that interest and title be made by a court with jurisdiction of that issue.

2. McClure claims the award is excessive. Pursuant to OCGA § 53-5-2 (b), the probate court was required to set aside “a sufficiency from the estate for [Mrs. Mason’s] support and maintenance for the space of 12 months from the date of death of [Dr. Mason], to be determined using the criteria established in [OCGA § 53-5-2 (c)] and keeping in view also the solvency of the estate.” Subsection (c) directed the court to award “an amount sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the testator or intestate, taking into consideration ... (1) [t]he support available to [Mrs. Mason], including but not limited to the principal of any separate estate and [her] income and earning capacity . . . and (2) [s]uch other relevant criteria as the court deems equitable and proper.”

Decided October 14, 1997.

L. Matt Wilson, J. Phillip London, Jr., David H. J. Martyn, for appellant.

Hicks, Maloof & Campbell, John M. Levengood, David N. Stern, for appellee.

The parties presented the court with differing assessments of the value of Mrs. Mason’s separate estate, the value of the property she was awarded as year’s support, her needs, and her standard of living prior to her husband’s death. Given this conflicting evidence, the probate court did not abuse its discretion in making this award. See Johnson, supra at 551; Baker v. Baker, 194 Ga. App. 477, 478 (1) (390 SE2d 892) (1990).

3. Finally, the probate court did not abuse its discretion by failing to assign a monetary value to the personal and real property awarded. OCGA § 53-5-2 (b) required the court to make its award “either in property or money.” Nothing in the statute requires the court in its written order to assign a monetary value to any property awarded. See Daniel v. First Nat. Bank of Claxton, 50 Ga. App. 632, 633 (2) (179 SE 152) (1935).

Judgment affirmed.

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


text:
    A97A1166.
    JURISCO, INC. v. BANK SOUTH, N.A. et al.
    (492 SE2d 765)
   Andrews, Chief Judge.

Jurisco, Inc. appeals from a court order directing the clerk of court to pay out $100,000 deposited with the court by Bank South in an interpleader action on proceeds due under a letter of credit. Jurisco claims the money should not have been paid pursuant to the letter of credit because American Bonding Company’s (ABC’s) attempt to draw on the entire letter of credit constitutes fraud and also because the deputy receiver who presented the letter of credit for payment was not an “authorized officer of the American Bonding Company,” as required by the terms of the letter of credit. We disagree and affirm the judgment of the trial court.

This action arose as the result of a Producer Agreement between Jurisco and ABC under which ABC authorized Jurisco to receive and accept proposals for the issuance of bonds. ABC requested the letter of credit from Bank South because Jurisco was responsible under the agreement for paying all bond claims submitted of $50,000 or less.

On April 19, 1995, Bank South wrote to ABC, which was in receivership at the time, and informed it that the letter of credit was due to expire on May 25 and would not be renewed. At that time, ABC claimed Jurisco owed approximately $53,000 plus interest on the account balance for premiums collected which had not been forwarded to ABC.

Accordingly, on May 9, 1995, ABC sent a demand to Bank South for payment on the letter of credit. Bank South determined the documents accompanying the demand were in compliance with the letter of credit and it should be paid.

On May 18, 1995, Jurisco filed suit against Bank South, seeking a temporary restraining order preventing it from paying ABC. Jurisco attached to its complaint a copy of an order from the Georgia Commission of Insurance suspending ABC’s Certificate of Authority and ordering it to cease and desist from writing insurance in Georgia. Also attached to the complaint was an order from the Department of Insurance of Arizona suspending ABC’s authority to transact new and renewal insurance business, other than surety, in Arizona.

The court held a hearing which Bank South did not attend, and granted Jurisco an order preventing Bank South from paying the letter of credit. ABC, after learning of the restraining order, filed a motion to intervene and a motion to dissolve the restraining order. On May 24, 1995, the court granted ABC’s motion to intervene and ordered Bank South to pay the $100,000 letter of credit into the registry of the court. On June 26,1995, ABC filed a Claim, Response and Answer of Intervenor, claiming the funds in the registry.

ABC then filed a motion for summary judgment, claiming it had complied with the terms of the letter of credit and was entitled to the $100,000. On July 15, 1996, the court denied the motion and ruled the parties should go to arbitration on the underlying contract issues. In this order, the court dismissed Bank South as a defendant and designated the intervenor, ABC, as defendant in the case. ABC filed a Motion for Reconsideration, arguing that any contract disputes under the Producer Agreement were not properly before the court and should not have been considered in a summary judgment motion based solely on whether the criteria for payment of the letter of credit were met. ABC contended Jurisco had an adequate remedy at law and should pursue its breach of contract or fraud claims in a different action.

After hearing argument on the Motion for Reconsideration, the court found, pursuant to the “independence principle” which governs payment on letters of credit, that ABC had complied with the requirements for payment and ordered the Clerk to pay the $100,000 to ABC.

On November 12, 1996, after ABC received the funds, Jurisco filed an Emergency Motion and Brief for Protection pursuant to OCGA § 9-11-62. The court issued an Amended Order on Motion for Reconsideration denying Jurisco’s request for protection under OCGA § 9-11-62. Jurisco now appeals both this order and the order directing payment of the funds to ABC.

The letter of credit in question provided that payment would be available to ABC “against your draft at sight drawn on Bank South, N.A. . . . and accompanied by the following documents:

“(1) The original of this letter of Credit and all amendments thereto, if any, must be presented at the time of any drawing hereunder for our endorsement.

“(2) A signed written statement from an authorized officer of the American Bonding Company that:

“(a) ‘Jurisco, Inc: is in specific default of its agency’s agreement with American Bonding Company dated June 16, 1993, to cause American Bonding Company a loss or incurred expense’; OR

“(b) ‘Jurisco, Inc. has failed to remit, in accordance with its agency’s agreement with American Bonding Company dated June 16, 1993, account current balances due American Bonding Company’; OR

“(c) ‘Jurisco, Inc. for failure to [sic] reimburse company for any claim as agreed to under said contract or provided under Section 2 of the profit sharing agreement.’

“ ‘This letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended, or amplified by reference to any document(s), instruments), contract(s), or agreement(s) referred to herein or in which this letter of Credit is referred to or to which the letter of Credit relates, and any such reference shall not be deeded [sic] to incorporate herein by reference any document(s), instrument(s), contracts) or agreements).’ ”

1. First, Jurisco argues that Michael FitzGibbons, the receiver for ABC, was not “an authorized officer of the American Bonding Company,” as required under the letter of credit. Jurisco claims the parties did not intend to allow the situation to arise where a receiver would be able to demand payment on a letter of credit. But, this does not affect the bank’s obligation to pay. “Unless certain narrow exceptions apply, issuer must disregard what it cannot glean from carefully examining the face of required documents as presented. Beyond that examination, issuer has no duty to look deeper for forgeries, falsifications, inaccuracies, or other defects in the documents. Nor is issuer bound to look beyond the four corners of presented documents for facts that might cure discrepancies, omissions, or inconsistencies in the papers.” (Footnotes omitted.) James J. White & Robert S. Summers, Uniform Commercial Code, § 26-5 at 139 (4th ed. 1995).

There is an issue, however, as to whether a successor by operation of law, such as a receiver or a trustee, may demand payment on a letter of credit. There is no Georgia case law on this subject and other states are divided on the issue. But, it is important to note that this issue wifi be resolved under Revised Article V, Section 5-113. The Revised Code resolves this conflict in the laws by allowing a successor by operation of law to demand payment on a letter of credit. White & Summers, supra, § 26-12 at 199.

In looking to other states’ case law, some courts have held that a party who succeeds by operation of law may demand payment, while another line holds that “strict compliance” requires the opposite result. White & Summers, supra, § 26-12 at 198-199. See, e.g., Eakin v. Continental Ill. Nat. Bank, 875 F2d 114 (7th Cir. 1989); In re Swift Aire Lines, 30 BR 490 (1983); Pastor v. Nat. Republic Bank, 390 NE2d 894 (1979).

Georgia has not adopted the standard of “strict compliance” with regard to complying with the terms of the letter of credit. In First Nat. Bank v. Wynne, 149 Ga. App. 811 (256 SE2d 383) (1979), this Court held “that if from all the documents presented to the issuer by the beneficiary there is substantial compliance with the terms of the letter of credit and there is no possibility that the documents submitted could mislead the issuer to its detriment, there has been compliance with the letter of credit. (Citations omitted, emphasis supplied.) Wynne, supra at 817. Accordingly, under Georgia law, it seems indicated that “substantial” rather than “strict compliance” is the applicable standard. Compare Vass v. Gainesville Bank &c., 224 Ga. App. 259, 261 (480 SE2d 294) (1997), stating that since the documents submitted to the bank failed to strictly comply with the letters of credit, the bank had no duty to honor the demand and citing to Wynne, supra.

However, this is not crucial to our determination, as some cases reason that the liquidator is a representative of the beneficiary and even under strict compliance the issuer would not be misled, by the presentation. White & Summers, supra, § 26-12 at 198. Therefore, for these reasons and in light of the fact that under Revised Article V a successor by operation of law will be able to draw on the letter of credit, we find that the beneficiary was entitled to make a demand for payment on the letter of credit.

2. The trial court correctly determined that the “independence principle,” codified at OCGA § 11-5-114, required the Bank to pay on the letter of credit. OCGA § 11-5-114 provides in pertinent part: “(1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary.” In other words, the independence principle “states that the bank’s obligation to the beneficiary is independent of the beneficiary’s performance on the underlying contract. Put another way, the issuer must pay on a proper demand from the beneficiary even though the beneficiary may have breached the underlying contract with the applicant.” White & Summers, supra, § 26-2 at 113. See also Dibrell Bros. Intl. v. Banca Nazionale Del Lavoro, 38 F3d 1571, 1579 (11th Cir. 1994).

Jurisco states that the independence principle does not apply when there is fraud involved. OCGA § 11-5-114 (2). But, Jurisco has not put forward any evidence sufficient to show fraud either in the submission of the letter of credit or in the underlying transaction.

Jurisco argues that because ABC stated in its Claim Response and Answer that it requested relief in the amount of $100,000 or, in the alternative, the $53,287 it claims was owed by Jurisco, it could not demand payment of the full letter of credit because the full amount was not owed. Jurisco contends that this demand for the full amount constituted fraud by ABC.

Pretermitting the issue of whether ABC was entitled to demand the full amount under the letter of credit, Jurisco’s complaint does not allege fraud and the allegations in its brief are not sufficient to show fraud. Also, there is no evidence that ABC ever misrepresented to Bank South or Jurisco the amount actually owed.

Moreover, the fraud required to enjoin payment on a letter of Credit must be “fraud so serious as to make it obviously pointless and unjust to permit the beneficiary to obtain the money. . . . Where the beneficiary’s conduct has so vitiated the entire transaction that the legitimate purposes of the independence of the issuer’s obligation would no longer be served. . . .” (Citations and punctuation omitted.) Ground Air Transfer v. Westates Airlines, 899 F2d 1269, 1272-1273 (1st Cir. 1990), cited by White & Summers, supra, § 26-10 at 181-182; Philipp Bros., Inc. v. Oil Country Specialists, 709 SW2d 262, 265 (Tex. App. 1986); N.Y. Life Ins. Co. v. Hartford Nat. Bank &c. Co., 378 A2d 562, 567 (1977); Intraworld Indus. v. Girard Trust Bank, 336 A2d 316 (1975).

Decided October 14, 1997.

Kilpatrick Stockton, Matthew H. Patton, for appellant.

Alston & Bird, Steven M. Collins, Siegel & Golder, Mark L. Golder, Lynn L. Carroll, for appellees.

Accordingly, the fraud exception to the “independence principle” does not apply in this case as the record shows nothing fraudulent in ABC’s demand for payment. Thus, pursuant to the “independence principle,” any issue as to whether ABC was entitled to the full amount of the letter of credit is not before us. The sole issue before the trial court and thus the sole issue on appeal, is whether the documents presented by ABC to Bank South satisfied the prerequisites for payment on the letter of credit. We hold that they did and, therefore, the trial court did not err in ordering the money paid to ABC.

3. In light of our holding in Division 1 above, we need not address Jurisco’s second enumeration of error. Likewise, ABC’s motion to dismiss this appeal is denied as moot.

Judgment affirmed.

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

       Although the Georgia Legislature has recently adopted Revised Article III, it has not adopted Revised Article V as yet. Douglas D. Selph, Understanding and Using Letters of Credit, Ga. Bar Journal, August 1997, Vol. 3, No. 1, pp. 24, 25.

       This issue is settled by Revised Article V which adopts the strict compliance standard. White & Summers, supra, § 26-7 at 159. However, as White & Summers explains, “[d]espite the fact that the revision adopts the strict compliance standard, the comments explicitly embrace the holding in New Braunfels-, ‘strict compliance means something less than absolute, perfect compliance.’ ” Id.; New Braunfels Nat. Bank v. Odiorne, 780 SW2d 313 (Tex. App. 1989).

       The letter of credit itself does not require documentation of the exact amount of money owed. As set out above, it requires only a signed written statement that Jurisco is in default under its agency agreement with ABC, has failed to remit current account balances due, or has failed to reimburse ABC for a claim.

       On April 15, 1996, ABC submitted FitzGibbon’s affidavit stating that, as of that date, Jurisco owed ABC $116,649.52.


author: Birdsong, Presiding Judge.

text:
    A97A1201.
    BILLUPS v. THE STATE.
    (493 SE2d 8)
   Birdsong, Presiding Judge.

Robert Billups appeals from the denial of his plea of former jeopardy in this prosecution for aggravated assault.

On June 6, 1996 Billups fired a rifle at a house at 110 Minor Street in Clarke County, Georgia, where certain persons were sitting on the porch. He was charged with reckless conduct. The arresting officer also swore out warrants for aggravated assault based on the same shooting. In June 1996 the prosecutor filed an accusation in state court against Billups for reckless conduct. In October 1996 Billups was indicted on four counts of aggravated assault arising out of the same shooting. On December 12,1996 Billups pled guilty in state court to reckless conduct. He moved to dismiss the aggravated assault indictments as double jeopardy.

The arrest report contains written reports of statements of witnesses which show there was at least one “victim” of the shooting. One “complainant” was appellant’s girl friend’s mother, who was sitting with her grandchild on the porch of the house and saw appellant “shooting towards [the house].” Another “victim who lives at 110 Minor [Street] saw [appellant] shooting towards her house.” A witness who earlier heard appellant say he was “going to go kill someone” reported seeing a rifle stock sticking out of appellant’s jacket, and hearing shots. The report also, contains a statement of a witness who heard three or four shots and saw that appellant “appeared to be shooting at the people on the front porch at 110 Minor Street.”

At the double jeopardy plea hearing in superior court, the assistant solicitor testified she read the arrest report before taking appellant’s plea to reckless conduct but she did not “see all the elements of [aggravated assault].” She admitted she contacted the District Attorney’s office to determine whether appellant had been convicted of any felonies; she “saw an arrest record [which] did not indicate any convictions . . . [and the DA’s employee mentioned] that there were other charges pending.” The DA’s office told her that a 1995 case which was on the arrest record was still pending; “if they told me anything about this case . . . [i]t did not connect in my mind with the information I had. . . . [I]t’s possible they told me that there were [pending aggravated assault charges]. . . .”

Defense counsel begged to be allowed to read into the record the arrest report which the prosecutor admitted she had read and which contains evidence of aggravated assault elements. Although defense counsel was trying to show that the prosecutor knew of the aggravated assault elements in the report, and not that anything in the report was true, the trial court ruled the report was hearsay, and further refused to allow the arresting officer to testify to what was in the report on grounds that under Cates v. State, 206 Ga. App. 694 (426 SE2d 576) the officer’s knowledge could not be imputed to the prosecutor. Defense counsel argued, “The State cannot turn its back on the most blatant of evidence in its own file and . . . assert that it had no duty ... to understand what it was looking at.”

The trial court held this aggravated assault prosecution is not barred under OCGA § 16-1-7 (b) because the assistant solicitor did not know of “charges pending” in superior court and because the defendant could have apprised her of the existence of other “crimes arising from the same conduct” (see Baker v. State, 257 Ga. 567, 569 (361 SE2d 808)); and that reckless conduct is not an included offense of aggravated assault under OCGA § 16-1-7 (a) (1). Held:

1. (a) The statutory bar to multiple prosecutions for the same conduct (OCGA § 16-1-7 (b)) requires a single prosecution if the prosecutor knows of several “crimes” arising from the same conduct. The trial court incorrectly interpreted this provision to mean the prosecutor must have knowledge of charges pending.

(b) The trial court erred in refusing to impute to prosecutors a knowledge of the law. The prosecutor read the arrest report containing evidence that appellant shot “at” and “toward” certain people after saying he was going to “kill someone.” The report clearly contains evidence of aggravated assault. Multiple prosecutions for crimes arising from the same conduct have been allowed on grounds the prosecutor did not know all the facts, but they have never been justified on grounds the prosecutor did not know the law. The rule that everyone is presumed to know the law is “a violent presumption as to both lawyers and judges.” Felton v. State, 93 Ga. App. 48, 49, 50 (90 SE2d 607). The prosecutor actually knew all the facts she read in the incident report; those facts contain elements of aggravated assault. As a matter of law, this expert on the law of crimes actually knew that the crime of aggravated assault was among the “several crimes arising from the same conduct” OCGA § 16-1-7 (b).

(c) The trial court also erred in ruling that single prosecutions are required only if a prosecutor knows of other “charges pending” as to the same conduct. The distinction between knowledge of “several crimes” arising from the same conduct (OCGA § 16-1-7 (b)) and knowledge of “pending charges” is vast. In a mobile society with multiple jurisdictions, it is unreasonable to expect prosecutors to know of all other “pending charges” relating to crimes they prosecute, but it is both reasonable and necessary to expect prosecutors to know what crimes arise from certain conduct, so long as they know all the facts of that conduct.

Baker v. State, supra, adopted a strict reading of OCGA § 16-1-7 (b). The statute does not require a single prosecution only if the prosecutor knows of “pending charges.” The prosecutor who prosecuted Baker on traffic charges did not know the fact that Baker was an habitual violator. The court made it clear that the question was whether the assistant solicitor who prosecuted Baker for driving with no taillights “had actual knowledge of the [habitual violator] offense” Id. at 568.

Baker relies heavily on McCannon v. State, 252 Ga. 515, 519 (315 SE2d 413) where the indictment for aggravated assault and the accusations for possession of marijuana arose from the same conduct. The court held that one prosecution was required because “both crimes were known to the [prosecutor].” (Emphasis supplied.) Id. at 518. McCannon finely distinguishes a hypothetical case where a single prosecution would not be required: where a defendant commits both rape and murder during the same conduct but there are separate witnesses to each crime and the prosecutor, without knowing of the rape, prosecutes the defendant for murder, a later prosecution for rape is not barred by OCGA § 16-1-7 (b) or by OCGA § 16-1-8 (b) (1), because “the [prosecutor] did not know of the rape at the time of commencing the murder prosecution.” (Emphasis supplied.) Id. The prosecutor’s knowledge of all the facts determines whether a single prosecution is required.

Cates, supra, refers to the prosecutor’s lack of knowledge of “other charges” and “charges pending.” But in fact, what allowed a second prosecution was the prosecutor’s lack of knowledge of the facts of Cates’ conduct and his resulting inability to assess the “several crimes” involved. The arresting officer knew that Cates’ failure to stop at an accident with injuries involved aggravated assaults, but the prosecutor did not know those facts.

Cates cites Dickinson v. State, 191 Ga. App. 467, 468 (382 SE2d 187), where Dickinson was indicted for charges arising out of an altercation after he pled guilty to disorderly conduct. We held the question is whether “crimes” arising out of the same conduct are actually known to the prosecutor handling the proceedings; that record showed the prosecutor had no knowledge “of the facts”

In Anderson v. State, 200 Ga. App. 530 (408 SE2d 829) the defendant’s vehicle was pursued by city police until the city officer’s car wrecked. The city prosecuted the defendant for attempting to elude, not knowing that he also committed several other traffic offenses with which he was charged by county police, and for which a second prosecution was therefore not barred.

Similar facts control Zater v. State, 197 Ga. App. 648 (399 SE2d 222): the city prosecutor who dismissed a speeding charge filed by city police had no knowledge of the fact that Zater was DUI when arrested by a sheriff’s officer during the same conduct.

In Hayles v. State, 188 Ga. App. 281 (372 SE2d 668) the defendant was charged with two traffic offenses and with driving while being an habitual violator. Before pleading guilty to the traffic offenses, the defendant knew the HV charge was bound over to superior court and he signed a waiver of a committal hearing on that charge. We said the defendant’s burden was to show “that the proper prosecuting attorney had actual knowledge of all the charges” (emphasis supplied), but we cited Baker, and in Baker what the prosecutor did not know was the fact that Baker was an habitual violator, so that the prosecutor could not assess the “several crimes” arising from Baker’s conduct.

In Farmer v. State, 184 Ga. App. 851 (363 SE2d 62) the defendant was charged with two traffic offenses (including DUI) and for operating a vehicle while being an habitual violator, and the HV charge was bound over to superior court. We said nothing in the record showed the prosecutor knew of the HV “charge,” but the issue was whether all the crimes were known to the prosecutor actually handling the first prosecution.

The prosecutor in this case read the arrest report and she actually knew all the facts and evidence of appellant’s conduct. As an expert in the law she cannot be heard to say she did not know of the “several crimes” arising from that conduct. This prosecution is therefore barred by OCGA §§ 16-1-7 (b) and 16-1-8 (b) (1).

2. Even without regard to the imputed legal knowledge of prosecutor of the “several crimes” arising from certain conduct, the superior court erred in deciding “what the assistant solicitor knew” while refusing to call up the transcript of the reckless conduct plea hearing, particularly after defense counsel noted that the state court judge raised “the issue of a pending aggravated assault concerning Mr. Billups [and] this same incident.” The reckless conduct plea hearing transcript, in fact, contains evidence from which it may be concluded the prosecutor actually knew about “the aggravated assault charge” arising from the same conduct as the reckless conduct charge.

We called up the transcript of that earlier prosecution. See OCGA § 5-6-41 (d) and (f). It shows the assistant solicitor advised the state court that appellant was “an inmate”; the judge recited the reckless conduct charge and then referred to “new charges [that are] apparently holding [appellant],” and the prosecutor said “I understand he’s not able to make bond on his new charges.” As appellant was entitled to bail as a matter of law on the misdemeanor reckless conduct charge (OCGA § 17-6-1 (b) (1)), those statements necessarily refer to the new charges of aggravated assault to which appellant pled not guilty three days earlier.

Moreover, the state court judge said: “Do you have a history on him? . . . I’m concerned by what I see here with so many gun — gun violations — weapons violations. [PROSECUTOR]: I have checked with the District Attorney’s office even today and they have some felony cases pending. . . . THE COURT: Is the . . . aggravated assault charge, a felony, . . . still outstanding, too? [PROSECUTOR]: Yes. I checked with the D.A.’s office. It’s still outstanding, the trial.” There is no mention here of a 1995 aggravated assault charge which could not, in any case, be the “new charges.”

3. The trial court erred in holding reckless conduct is not a lesser included offense of aggravated assault. We have held that as a matter of law, reckless conduct is a lesser included offense to aggravated assault. Bowers v. State, 177 Ga. App. 36 (338 SE2d 457). Reckless conduct may not be included if undisputed evidence shows the defendant committed aggravated assault or nothing (Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591)), or there may be separate acts which were either reckless conduct or aggravated assault. Marion v. State, 224 Ga. App. 413 (2) (480 SE2d 869). In this case the charges differ only in that a “less serious risk of injury” and a lesser culpability sufficed to convict for reckless conduct, and the second prosecution is barred under OCGA §§ 16-1-7 (a) (2) and 16-1-8 (b) (1).

Decided October 14, 1997.

Janet S. Willy, James C. Bonner, Jr., for appellant.

4. As the offenses are included, appellant could not be convicted in one trial of both reckless conduct and aggravated assault. Therefore he cannot be prosecuted in successive trials (State v. O’Neal, 156 Ga. App. 384 (274 SE2d 575)) and no failure of his “duty” to inform the prosecutor that his conduct contained elements of the crime of aggravated assault would deprive him of the protection of OCGA § 16-1-7 (b). Where, as in this case, the prosecutor knows all the facts of a defendant’s conduct, the defendant can have a duty to advise the prosecutor of all “crimes” or “charges pending” related to that conduct only if we attribute to criminal defendants a degree of legal knowledge superior to that of the prosecutor. A defendant may know what he has done but may not know what crimes those acts constitute. See State v. Evans, 265 Ga. 332 (454 SE2d 468). As to the matter of “pending charges,” OCGA § 16-1-7 (b) does not require a prosecutor to know of “pending charges” and defendant can therefore have no duty to tell him of “charges pending.”

If the second prosecution in Baker had been unconstitutional, Baker’s failure to tell the prosecutor that he was an habitual violator could not have saved the prosecution. The real turning point in Baker was not the fact that Baker did not reveal his status as an habitual violator; it was the fact that the habitual violator prosecution was not a re-trial of his traffic offenses and therefore did not violate his constitutional rights against being tried twice for the same acts. The state and federal constitutions do not easily allow waiver of former jeopardy rights. See McClure v. State, 179 Ga. App. 245 (345 SE2d 922).

For all these reasons, this aggravated assault prosecution “is jeopardy in the classic sense.” Kinney v. State, 223 Ga. App. 418, 419, 420 (477 SE2d 843).

Judgment reversed.

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

Harry N. Gordon, District Attorney, James D. Love, Assistant District Attorney, William W. Tanner, for appellee.