author: Smith, Presiding Judge.

text:
    A01A2055.
    TUCKER v. THE STATE.
    (559 SE2d 171)
   Smith, Presiding Judge.

Bridgette Michelle Tucker was indicted on charges of murder, felony murder, and cruelty to children arising out of the death of her five-month-old son. Because the jury could not reach a unanimous verdict with respect to the murder charge, a mistrial was declared as to that charge. Tucker was acquitted of felony murder and convicted of cruelty to children. Her motion for new trial, as amended, was denied, and she appeals. Finding no reversible error, we affirm.

1. We first address Tucker’s contention that the trial court erroneously denied her motion for directed verdict on the cruelty to children charge. She contends that the State failed to present evidence that the victim experienced excessive physical or mental pain as required by OCGA § 16-5-70 (b).

Construed to uphold the jury’s verdict, evidence was presented that on the night of June 5, 1998, according to Tucker’s boyfriend, Terry White, Tucker shook the victim “a little bit” “[b]ecause he was crying.” WTiite testified that the following morning, after Tucker gave the victim a bottle, he would not stop crying, and Tucker shook him and told him to “[q]uit crying.” Tucker appeared to be angry and frustrated when she did so. In his statement to the police, White stated that Tucker shook the victim “really hard,” and he saw the victim’s head “snap.” According to White, the victim began moaning after Tucker shook him, Tucker placed him in his crib, and she and White went to sleep. Tucker told one witness that she heard the victim moaning that morning. And when White woke up later that day, he again heard the victim moaning. He attempted to change the victim’s diaper and discovered that his legs were stiff. Although the victim eventually “opened his legs” and White changed his diaper, the victim “wouldn’t quit moaning.” He acted as if he was gasping for air. White “tried to tickle him to get him to wake up and he wouldn’t.” Tucker and White took the victim to the hospital, and he died on June 7.

The medical examiner testified concerning multiple brain injuries the victim suffered, which included massive hemorrhaging and detached retinas, injuries consistent “with shaking forces or violent forces applied to the head and unassociated with other major findings.” Similarly, he stated that the injuries “were generalized injuries of a blunt nature that can also be described as a shaking nature of the head.” This witness concluded that all of the injuries occurred 12 to 24 hours before the victim’s death. Tucker admitted to the trial court, outside the presence of the jury, that she had shaken the victim, and Tucker’s mother acknowledged, in the jury’s presence, that she had heard Tucker make this admission. Given the evidence of the extent of the victim’s injuries, along with evidence that the victim was moaning after Tucker shook him, a rational trier of fact was authorized to conclude that the victim suffered extreme physical pain as required by OCGA § 16-5-70. See generally Sanders v. State, 245 Ga. App. 561, 562-563 (1) (538 SE2d 470) (2000). The trial court therefore did not err in denying Tucker’s motion for directed verdict.

2. Tucker contends that the trial court erroneously allowed the State to introduce evidence of similar transactions without proper notice to her. But the evidence about which Tucker complains consisted of testimony concerning prior difficulties between Tucker and the victim. Two witnesses testified that they saw Tucker “toss” the victim onto a couch from a distance of about two or three feet and call the victim a “brat.” Other witnesses testified that Tucker did not keep the victim clean and appropriately dressed, and one witness saw her “pop” the victim when he took his pacifier out of his mouth. The trial court instructed the jury that evidence of prior difficulties was admitted for the sole purpose of showing “the state of feeling between the defendant and the alleged victim and the bent of mind and course of conduct on the part of the defendant” and that the jury was not to consider the evidence for any other purpose. Evidence of prior difficulties between a defendant and a victim is admissible to “[show] motive, intent, or bent of mind toward the victim, thereby establishing a logical, probative connection between the crime charged and the prior difficulty.” (Citation and punctuation omitted.) Porter v. State, 243 Ga. App. 498, 501 (2) (532 SE2d 407) (2000). See also Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998). The evidence of prior difficulties was relevant in this case and properly admitted.

3. Tucker argues that the trial court erroneously refused to give an instruction on accident, which she contends was her sole defense. She correctly points out that a trial court is required to charge the jury on a defendant’s sole defense, even absent a written request, if some evidence supports the charge. Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). See also Harris v. State, 145 Ga. App. 675 (244 SE2d 620) (1978). It follows, however, that if no evidence is presented reasonably raising the defense, a charge on a defendant’s sole defense is not mandatory. Porter v. State, 272 Ga. 533, 534 (3) (531 SE2d 97) (2000); Fain v. State, 165 Ga. App. 188, 189 (3) (300 SE2d 197) (1983). Here, Tucker elected not to testify, and the only eyewitness to the incident testified that Tucker appeared to be angry and frustrated and shook the victim “really hard.” Furthermore, medical testimony showed that the victim’s injuries were caused by a violent shaking, and the medical examiner ruled out the possibility that the injuries were caused by a fall. Unlike Jones v. State, 161 Ga. App. 610 (288 SE2d 788) (1982) (physical precedent only), relied on by Tucker, in which we found the defense of accident to have been raised by the evidence, id. at 612 (4), this defense simply was not raised by the evidence presented here, and the trial court did not err by refusing to give the requested charge.

4. Tucker similarly argues that the trial court should have instructed the jury on involuntary misdemeanor manslaughter. Under OCGA § 16-5-3 (b), a person commits this offense when he or she causes the death of another human being without an intention to do so, “by the commission of a lawful act in an unlawful manner likely to cause death or great bodily [injury].” Tucker argued at the charge conference that the lawful act involved in the incident was an attempt to discipline the victim. But no evidence was presented showing that Tucker was simply disciplining the victim. Without more, we cannot agree that the violent shaking of a five-month-old baby constituted a lawful act of discipline, and no other evidence was presented showing Tucker’s action to be lawful. The evidence consequently did not warrant a charge on involuntary misdemeanor manslaughter. See Moses v. State, 264 Ga. 313, 315 (2) (444 SE2d 767) (1994).

5. During his videotaped statement, which was played to the jury, White used a doll to demonstrate the manner in which Tucker shook the victim. Before trial Tucker moved in limine to prevent the State from using the doll for demonstrative purposes, on the ground that use of the doll was inflammatory and prejudicial because it was not the weight of the victim and did not have “the same symmetry between the [victim’s] head and the [victim’s] body.” Tucker enumerates the denial of this motion as error.

In general, it is within the trial court’s discretion whether to allow courtroom demonstrations. The weight of this type of evidence is for the jury, and the weight to be afforded a demonstration varies according to the circumstances of similarity that the jury may find to exist between the demonstration and the occurrence under investigation. Powell v. State, 226 Ga. App. 861, 862 (1) (487 SE2d 424) (1997). Although the rag doll used by White to demonstrate the incident obviously was not the same size as the victim, this was a matter that affected the weight of the evidence, and use of the doll had some value in assisting the jury as it considered the severity of Tucker’s actions. We cannot conclude that the trial court abused its discretion in permitting the State to use the videotaped statement.

6. Tucker enumerates as error the trial court’s denial of her motion for mistrial made after two jurors disclosed, after trial began, that they knew some of the State’s witnesses. On the third morning of trial, a juror informed the bailiff that although he did not recognize the names of the witnessés when they were read aloud during voir dire, he recognized some of them the day before when they entered the courtroom. When questioned outside the presence of the remaining jurors, he testified that he “knew over half” the State’s witnesses, stating that he had been to one witness’s house one time, where he met the victim’s father, who also was a witness. He had “[n]ot really” met or spoken to the other witnesses; he just knew “them through mutual friends. . . . I’ve seen them around.” Although this juror indicated that he would not afford the testimony of these witnesses any more or less weight than that of the other witnesses and that he had no concern as to his ability to determine the credibility of their testimony, he was excused by the trial court.

Because this juror mentioned his knowledge of the witnesses in the presence of other jurors, the trial court questioned the remaining jurors to determine who may have heard the first juror state that he recognized some of the witnesses. Four jurors indicated that they had heard the first juror make this comment. When questioned individually, each stated that the first juror had simply stated that he knew the witnesses, that he had not expressed any opinion concerning the witnesses’ testimony, and that each could remain fair after hearing the first juror make this statement. One of these four jurors also stated that he recognized one of the State’s witnesses. He had talked with White “a couple of times” when they were in high school together. Although this juror stated that he “didn’t really know him too well,” and stated that his acquaintance with White would have no effect on his decision concerning White’s credibility, he also indicated that White was “a pretty good fellow.” This juror was also excused.

After these jurors were questioned individually, Tucker moved for a mistrial on the ground that the entire jury was tainted. The trial court denied the motion, concluding that after removal of the two jurors who recognized the State’s witnesses, “the jury remains fair and impartial and can deliberate fairly as to both parties.” After the jury returned to the courtroom, the trial judge asked for a show of hands of those jurors who felt they could not remain and be fair and impartial; no juror responded.

The decision whether to grant or deny a motion for mistrial rests within the trial court’s discretion and will not be disturbed absent

a manifest abuse of that discretion which threatens the defendant’s right to a fair trial. This is especially true when the grounds for the mistrial relate to jury prejudice, for the trial judge is in a peculiarly good position to observe the jurors, the witnesses and the attorneys in order to evaluate the extent of the prejudice.

(Citations and punctuation omitted.) Moss v. State, 200 Ga. App. 253, 254 (407 SE2d 477) (1991). Given the prompt action of the trial court upon learning that the first juror recognized the State’s witnesses, the testimony of the jurors who were individually questioned, as well as the response by the remainder of the jurors that they could remain fair and impartial, we find no abuse of the trial court’s discretion in denying Tucker’s motion for mistrial. See Speed v. State, 270 Ga. 688, 694 (26) (512 SE2d 896) (1999).

7. Relying on Harris v. State, 273 Ga. 608 (543 SE2d 716) (2001), Tucker argues that the trial court gave an erroneous instruction on intent. The court instructed the jury that it could infer, if it wished, “that the acts of a person of sound mind and discretion are the product of that person’s will and that a person of sound mind and discretion intends the natural and probable consequences of those acts.” The trial court further charged the jury that whether to make such inferences was solely within its discretion.

Decided January 24, 2002

Harris is distinguished from this case. In Harris, the trial court gave substantially the same charge as given here, coupled with the charge that “if a person of sound mind and discretion intentionally and without justification uses a deadly weapon in the manner in which the weapon is ordinarily used and thereby causes the death of a human being, you may infer the intent to kill.” Id. at 609 (2). The trial court did not, however, instruct the jury that it could use its discretion to determine whether to make this inference. Id. at 610 (2). The Supreme Court held “that the giving of a ‘use of a deadly weapon’ charge” was error, whether or not the charge was accompanied by an instruction that the jury had discretion to make the inference. Id. But here, the trial court did instruct the jury that the determination of whether to make the authorized inference was within its discretion. And more importantly, this case did not involve use of a deadly weapon. Consequently, a “deadly weapon” charge was neither authorized nor given in this case, and we find no error with the trial court’s general instruction on intent.

8. Tucker argues that the trial court erred in refusing to grant a mistrial after White gave a nonresponsive answer on direct examination, testifying that he wanted to “get the truth out that [the victim] was shaken, that [the victim] was murdered.” The trial court sustained Tucker’s objection to the testimony and instructed the jury that White’s opinion concerning the death of the alleged victim was stricken and that the jury must disregard the testimony. The court received no response from the jury when it asked for a show of hands of jurors who did not understand or could not follow this instruction. Tucker then moved for a mistrial and argued that the curative instruction was not sufficient to remove the taint of White’s testimony.

This testimony was harmless. As for White’s statement that the victim “was murdered,” Tucker was not convicted of any homicide. And with regard to his testimony that the victim “was shaken,” this was cumulative of other evidence properly admitted without objection at trial and cannot be considered harmful. See, e.g., Whatley v. State, 270 Ga. 296, 299 (7) (509 SE2d 45) (1998); Choat v. State, 246 Ga. App. 475, 478-479 (3) (540 SE2d 289) (2000). The trial court therefore did not abuse its discretion in denying Tucker’s motion for new trial on this ground.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

Sexton & Morris, Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

       In Jones, a child molestation case, the defendant gave a statement that while cleaning the victim after she had diarrhea, his finger accidentally “ “went into her vagina.’ ” Id. at 612 (4).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A2113.
    EVANS et al. v. MARSHALL.
    (559 SE2d 165)
    Decided January 24, 2002.

      Ronald S. Iddins, for appellants.

      Richard E. Flowers, for appellee.
   Mikell, Judge.

On June 24, 1996, Fred D. Marshall, Jr. d/b/a Parade of Homes sued his tenants, Joseph C. Evans and Erin K. Evans, to recover an unspecified sum for damages to the leased premises. The Evanses filed a timely answer. On January 18, 2001, Marshall filed an amendment to the complaint, seeking additional damages unknown to him at the time of the filing of the original suit. The Evanses did not respond to the amended complaint. On February 28, 2001, Marshall moved for the entry of default and a hearing on the issue of damages. On the same day, the trial court granted the motion, entered a default, and scheduled the matter for a trial on damages. That trial was held the next day, and it resulted in a judgment in the amount of $6,074.43. We granted the Evanses’ application for discretionary appeal.

The trial court erred in ruling that the Evanses were in default for failure to file responsive pleadings. A defendant is not required to answer an amended complaint unless ordered to do so by the trial court. OCGA § 9-11-15 (a); Random Access v. Atlanta Datacom, 232 Ga. App. 269, 270 (501 SE2d 610) (1998); Chan v. W-East Trading Corp., 199 Ga. App. 76, 79 (5) (403 SE2d 840) (1991). The Evanses were not in default, and the trial court erred by holding a trial on the issue of damages. The default order dated February 28, 2001, and the final judgment must be reversed.

Judgment reversed.

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


text:
    A01A2288. A01A2289.
    HARRELL v. THE STATE. WILLIAMSON v. THE STATE.
    (559 SE2d 155)
   Smith, Presiding Judge.

In separate cases, Billy J. Harrell and Ken Williamson entered pleas of guilty to charges of statutory rape. Each was sentenced to a prison term followed by probation. Although their cases are unrelated, they have been consolidated for review because the central issue is identical, although the facts in each case differ slightly. Harrell objected at his sentencing to the imposition of certain conditions of probation applicable to sex offenders. Both Harrell and Williamson filed motions for new trial, seeking modification of these conditions. Both motions for new trial were denied, and both Harrell and Williamson appeal. Each asserts that the trial court erred in denying his motion for new trial because several of the special conditions of probation are unlawful. We agree with their contentions with regard to some of the special conditions but disagree as to others. We therefore affirm in part and vacate in part and remand for resentencing.

The special conditions imposed in both cases are essentially identical. Among them are the following:

2. Probationer shall not be alone with any child under 18 years of age unless an adult is present who has knowledge of the probationer’s history or criminal sexual behavior and/or abusive behavior and has been approved as a chaperon by the probation officer and treatment provider.
3. Probationer shall not reside in a home with persons under 18 years of age, unite with a family unit with children under 18, nor work or volunteer for any business, organization or activity that provides care or services to children under 18 years of age without the consent of the court.
4. Probationer shall not linger, loiter or spend time at locations where children under 18 are present or are likely to be present.
8. Probationer shall submit to a search of his/her person, property, residence, or vehicle at any time of the day or night, with or without consent or a search warrant whenever requested to do so by a probation officer or any other peace officer and specifically consents to the use of any contraband seized as evidence in a probation revocation proceeding.
15. Probationer shall submit to a polygraph examination at any time whenever directed to do so by a probation officer and bear the expense of same.

1. A trial court has broad discretion in sentencing to impose conditions reasonably related to the nature and circumstances of the offense and the rehabilitative goals of probation. Ellis v. State, 221 Ga. App. 103 (1) (470 SE2d 495) (1996). In Ellis, we held that given that Ellis was convicted of child molestation, it was reasonable to impose probation conditions prohibiting him from being present at certain locations where children were present and from associating with groups dealing with children. But such conditions must be stated with “reasonable specificity” to afford the probationer notice of the groups and places he must avoid. And the conditions must not be so broadly worded as to encompass groups and places not rationally related to the purpose of the sentencing objective. Id. at 104 (1). In Ellis, we held that two conditions similar to but far more specific than special conditions 3 and 4 were “susceptible of being read and applied in ways which are not reasonably related to the sentencing objectives,” id., and were therefore improper.

Harrell and Williamson were not convicted of child molestation but of statutory rape. Nevertheless, because of the nature of the offense, the sentencing objective in these cases is the same as that in Ellis. Since special conditions 3 and 4 in these two cases are far more broadly worded and less specific, it follows that they do not provide Harrell and Williamson with the required notice of the groups and locations they must avoid, and they are too broadly worded to be related rationally to the purpose of the sentencing objectives. These special conditions of probation must be vacated, and the case must be remanded to the trial court for resentencing.

The same is not true of special condition 2. As pointed out by appellants, while certain questions may arise as to its interpretation, that condition is sufficiently specific and narrow to be reasonably related to the sentencing objective.

2. Appellants maintain that special conditions 8 and 15 are improper under the Georgia Constitution, as well as the Fourth Amendment to the U. S. Constitution, which has been held to apply to probationers. Allen v. State, 258 Ga. 424, 425 (2) (369 SE2d 909) (1988). The Supreme Court of Georgia held in Allen, however, that Fourth Amendment rights may be waived and that Allen had waived them when he agreed to the special conditions as part of a negotiated plea bargain. Id. at 424, 425 (3). In Fox v. State, 272 Ga. 163 (527 SE2d 847) (2000), our Supreme Court held that a waiver of Fourth Amendment rights was invalid because it was not obtained as part of the plea bargaining process. The probationer in Fox was required under the terms of his probation to submit to a search “any time of the day or night, with or without a search warrant whenever requested to do so by a probation supervisor or any law enforcement officer.” Id. The Supreme Court held that the purported waiver of Fourth Amendment rights was invalid because the probationer was not told of the condition until after the trial court pronounced sentence, when he was taken to a probation office and told of the conditions outside the presence of counsel. Because Fox did not agree to these terms, but did not know whether he had a right to object to the waiver, his waiver was invalid.

Regardless of whether Harrell and Williamson waived their Fourth Amendment rights, however, we conclude that we need not vacate these special conditions.

These cases differ from Fox in an important procedural respect. In Fox, the appeal was from the denial of a motion to suppress evidence obtained in a search conducted pursuant to a special condition of probation. And it is clear from Fox that regardless of whether Fourth Amendment rights have been validly waived, if the search of a probationer is reasonable ünder the circumstances, it is not prohibited even if warrantless. This is so because the supervision necessary to operate a probation system presents special needs that “may justify departures from the usual warrant and probable-cause requirements.” (Punctuation and footnote omitted.) Id. at 165 (2).

If a warrantless search has occurred pursuant to a special condition of probation, a reviewing court is able to analyze the facts and circumstances to determine whether the search in question was based upon reasonable grounds, balancing the government’s need to search against the invasion caused by the warrantless search. The court concluded that in Fox, the search was not reasonable. We cannot do so here because no such search has taken place. And we will not presume that any search that may take place in the future under the authority of a probation officer will be unreasonable, even if it is warrantless. Because these special conditions are not unlawful per se, the trial court need not modify them.

Decided January 24, 2002.

Gilbert J. Murrah, for appellants.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed in part, vacated in part and remanded.

Barnes and Phipps, JJ, concur.

       In Harrell’s case, the phrase “or any other peace officer” was marked out.

       In Ellis, one condition required that “ ‘Probationer shall not linger, loiter, or spend time at locations where children under 18 are present or are likely to be present. Such locations include but are not limited to schools, parks, playgrounds, sporting events, school bus stops, public swimming pools, and arcades.’ ” Id. at 103-104 (1). Another stated: “ ‘Probationer shall not work or volunteer for any business, organization, or activity that provides care to or services for children under the age of 18. Such businesses, organizations, and activities include but are not limited to schools (including driving a school bus), coaching sports/athletic teams, Girl or Boy Scouts, day care centers, Girls or Boys clubs, or churches.’ ” Id.

       Harrell and Williamson raise the question of whether the condition is violated if they are present in a group including two children and twenty adults, none of whom are aware of their history.

       Williamson’s plea was negotiated; Harrell’s was not.


author: Ruffin, Judge.

text:
    A01A1871.
    CONNELL v. HEAD.
    (559 SE2d 73)
   Ruffin, Judge.

While Evelyn Connell was driving a school bus for the City of Cartersville, she collided with a car driven by Laura Head, a school cafeteria employee. Head sued Connell, who moved for summary judgment, arguing that the negligence claim was barred by the exclusive remedy provision of the Workers’ Compensation Act. The trial court denied Connell’s motion, and we granted her application for interlocutory appeal. For reasons that follow, we reverse.

Summary judgment is appropriate when there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. In reviewing a trial court’s ruling on a motion for summary judgment, we apply a de novo standard of review, and we view the evidence in a light most favorable to the nonmovant.

So viewed, the record reveals that both Head and Connell worked for the Cartersville School System. On April 13, 1999, Head, who worked in the cafeteria, signed out at approximately 1:35 p.m. and left the building. She walked to her car, which was parked in the school parking lot, and began driving out of the parking lot. A few minutes later, however, Head was hit by a school bus driven by Connell. Evidently, Connell turned left in front of Head, causing the collision. The accident took place on School Drive, which is owned by the City of Cartersville and controlled by the City of Cartersville School System.

Head sued Connell, asserting that Connell was negligent in failing to yield the right of way and seeking damages for injuries she sustained in the collision. Connell moved for summary judgment, arguing that such tort claim was barred by the exclusive remedy provision in the Workers’ Compensation Act. The trial court disagreed, finding that the drive on which the collision occurred

is a road used by the public lying between two separate schools. . . . [Although] [t]he road is subject to restricted use during school hours [,] [t]he actual location of where the collision . . . occurred is still open to public use, even during school hours. At the time of the collision . . . [Head] had signed out from work, got [ten] in her car, left the parking lot, got [ten] onto School Drive . . . and was leaving the employee’s] premises.

Thus, the trial court concluded that the accident did not arise out of and in the course of Head’s employment, and it denied Connell’s motion.

Pursuant to OCGA § 34-9-11 (a), “[t]he Georgia Workers’ Compensation Act is the exclusive remedy for injuries sustained by an employee during the course of employment from the negligence of a co-worker.” If, however, the injury was not caused by an accident arising out of and in the course of employment, then the Workers’ Compensation Act provides no remedy and the exclusivity provision does not apply.

As a general rule, accidents that occur while employees are traveling to and from work do not arise out of and in the course of employment. However,

[t]here are several exceptions to this rule, including where the employer furnishes transportation; or where the employee is doing some act permitted or required by the employer and beneficial to the employer while en route to and from work; or where the employee is going to and from parking facilities provided by the employer; or in instances where an employee is on call and furnishes or is reimbursed for his transportation costs.

Head argues that the collision occurred after she left work and, thus, the Workers’ Compensation Act does not apply. She further maintains that no exception would bring this accident within the ambit of the Act. We disagree.

The exception that involves an employee going to and from parking facilities recognizes that workers must have “a reasonable time for ingress to and egress from the place of work, while on the employer’s premises.” Under this ingress and egress rule, “[w]here the employee is still on her employer’s premises in the act of egressing those premises, . . . then the Workers’ Compensation Act does apply.” Moreover, “[f]or purposes of the ingress and egress rule, an employer’s premises is [the] real property owned, maintained, or controlled by the employer.”

Decided January 10, 2002

Reconsideration denied January 25, 2002

Magruder & Sumner, J. Clinton Sumner, Jr., Susan D. Taylor, for appellant.

P. Cole Law, for appellee.

Here, it is undisputed that the drive on which the collision occurred was owned by the City of Cartersville and controlled by the Cartersville School System. It also is undisputed that Connell was engaged in school business when the collision occurred. Although Head had already signed out for the day, she had not yet left school property. Under these circumstances, the accident is deemed to have arisen out of and in the course of Head’s employment. Contrary to the trial court’s conclusion, the mere fact that the accident occurred on a street to which the general public had access does not demand a different result. It follows that the trial court erred in denying Connell’s motion for summary judgment.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       See Wang v. Moore, 247 Ga. App. 666-667 (544 SE2d 486) (2001).

       See id. at 667.

        Cotton v. Bowen, 241 Ga. App. 543, 545 (2) (524 SE2d 737) (1999).

       See Betts v. MedCross Imaging Center, 246 Ga. App. 873, 874 (1) (542 SE2d 611) (2000).

       See Harrison v. Winn Dixie Stores, 247 Ga. App. 6, 7 (542 SE2d 142) (2000).

       Id.

        Peoples v. Emory Univ., 206 Ga. App. 213 (424 SE2d 874) (1992).

        Rockwell v. Lockheed Martin Corp., 248 Ga. App. 73 (545 SE2d 121) (2001).

        Peoples, supra at 214.

       See id.

       See id. (“The fact that the site of the injury was a street does not preclude it [from] being a portion of the [employer’s] premises.”).


author: Eldridge, Judge.

text:
    A02A0531.
    THE STATE v. CANNON.
    (559 SE2d 76)
   Eldridge, Judge.

The State appeals from the Superior Court of Richmond County’s grant of Anthony Richard Cannon’s motion to suppress, which motion was granted on the basis that a pat-down performed on Cannon’s person exceeded the bounds of a permissible Terry search when the sheriff’s deputy shook Cannon’s pant leg in order to dislodge an unidentified “bulge” therein. The State argues that probable cause existed to search Cannon at the time the deputy shook the pant leg. We agree and reverse.

In addressing this appeal, we bear in mind that a trial court’s application of the law to undisputed facts is subject to de novo appellate review. Defendant presented no evidence at the motion to suppress, and the facts here are essentially undisputed; thus, the application of the law thereto will be reviewed de novo. In that regard, the record shows that, at approximately 2:30 a.m. on January 14, 2001, Bernard Peterson was driving a gold Acura 3.5 at an excessive rate of speed in the area of High and Carpenter Streets in Augusta. Appellee Cannon was riding in the front passenger seat, and two other male passengers were in the rear seat. Deputy W. Neal of the Richmond County Sheriff’s Department was on routine patrol in the area and observed the speeding Acura. Neal moved in behind the Acura in his marked police vehicle. At that point, the Acura began weaving on the roadway, and the occupants “were moving around like they were hiding items in the car.” Neal called for backup and pulled the Acura over for speeding and failure to maintain a lane.

Upon approaching, Neal and the backup deputies smelled a strong odor of marijuana coming from the vehicle; “[everybody out there smelled the marijuana.” Deputy Neal asked if marijuana had been smoked, and “[t]hey said, yeah, they had been smoking earlier.” Thereafter, Peterson gave Neal permission to search the car. Peterson, appellee Cannon, and the two passengers in the backseat were removed from the vehicle. Deputy Neal recognized Cannon from prior drug arrests.

All of the occupants of the car were frisked for officer safety. Deputy P. Kervin conducted the pat-down of Cannon. During the pat-down, Cannon was very nervous and refused to remain still; each time the deputy attempted to frisk Cannon’s upper thigh area, Cannon resisted and asserted several times, “Don’t touch me. Don’t touch me. I got crabs”; Cannon would then move his body and hands in an attempt to prevent a pat-down of the area. Eventually, the deputy completed the pat-down and felt a small bulge in Cannon’s groin area. Deputy Kervin shook Cannon’s pant leg. A small plastic bag containing Ecstasy fell from the pant leg onto the ground. Cannon fled. Following a foot chase, he was apprehended and arrested for possession of contraband. Held:

The traffic violations of speeding and failure to maintain a lane provided probable cause to stop the Acura. Also, for officer safety, there was a sufficient basis to perform a Terry pat-down of the car’s occupants in that it was 2:30 a.m.; there was an admission that drugs were being used; there were four men in the car; and at least one of the four men — Cannon — was known to be involved in the drug trade. “It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.”

Finally, the deputies had sufficient probable cause to perform a warrantless search of Cannon. “The odor of marijuana is one factor that may be considered in determining whether, under the totality of the circumstances, an officer had probable cause to institute a search.” Indeed, “[p]robable cause need not be defined in relation to any one particular element, but may exist because of the totality of [the] circumstances surrounding a transaction.”

The test of probable cause requires merely a probability — less than a certainty but more than a mere suspicion or possibility. . . . Although . . . evidence alone may not have been sufficient to convict . . . the same strictness of proof required for a finding of guilt is not necessary for probable cause.

Here, prior to Deputy Kervin’s shaking of Cannon’s pant leg, the strong and immediate smell of marijuana, taken together with (a) the admission that the occupants of the car had been smoking marijuana, (b) the furtive movements of the occupants of the Acura when the marked police vehicle moved in behind it, which movements appeared to be an attempt to hide something, (c) knowledge of Cannon’s prior drug activities, (d) Cannon’s extreme nervousness, and (e) his repeated attempts to prevent a lawful pat-down of his person in precisely the area where a suspicious, unidentified “bulge” was ultimately discovered, provided sufficient circumstances in which a prudent man would be warranted in believing that Cannon was hiding contraband in his pants. “Taken together, the circumstances establish probable cause to search [Cannon], and the trial court [erred] in [granting] his motion to suppress.”

Decided January 11, 2002

Reconsideration denied January 25, 2002

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

Jack E. Boone, Jr., Danny L. Durham, for appellee.

Judgment reversed.

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

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

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Tukes v. State, 236 Ga. App. 77 (1) (511 SE2d 534) (1999).

        Garmon v. State, 271 Ga. 673, 678 (3) (524 SE2d 211) (1999); Satterfield v. State, 251 Ga. App. 141, 144 (553 SE2d 820) (2001).

       (Punctuation omitted.) Stewart v. State, 227 Ga. App. 659, 660-661 (2) (490 SE2d 194) (1997).

        Patman v. State, 244 Ga. App. 833, 835 (537 SE2d 118) (2000), citing Albert v. State, 236 Ga. App. 146, 149 (2) (511 SE2d 244) (1999) (odor of marijuana combined with defendant’s red, glassy eyes, slurred speech, and failed HGN test gave rise to probable cause to arrest defendant); Williams v. State, 187 Ga. App. 409, 412 (2) (370 SE2d 497) (1988) (smell of marijuana along with person’s furtive conduct and inconsistent responses gave rise to probable cause to search); Griffin v. State, 180 Ga. App. 189, 190 (348 SE2d 577) (1986) (odor of marijuana combined with officer watching the defendant roll cigarette from bag of leafy green substance and then toss cigarette upon officer’s approach established probable cause).

       (Punctuation omitted.) Albert v. State, supra.

        Firsanov v. State, 270 Ga. 873, 875 (3) (513 SE2d 184) (1999).

       See Garmon v. State, supra at 678 (3); Sosebee v. State, 227 Ga. App. 21, 23 (488 SE2d 102) (1997); Leonard v. State, 213 Ga. App. 503, 505 (445 SE2d 330) (1994).

        Patman v. State, supra at 836; see also State v. Folk, 238 Ga. App. 206 (521 SE2d 194) (1999).


author: Miller, Judge.

text:
    A01A1685.
    LAKESIDE INVESTMENTS GROUP, INC. v. ALLEN.
    (559 SE2d 491)
   Miller, Judge.

Representing landowners seeking to sell their property, Briggs Allen told Lakeside Investments Group, Inc. that the piece of property was zoned entirely for office and industrial use (O & I), when in fact only the front portion was so zoned. Lakeside purchased the property for office use and did not learn the true zoning status of the property until it applied for a building permit. Lakeside sued Allen for fraud, and the trial court granted Allen summary judgment on the ground that zoning status is a matter of law and therefore representations concerning such cannot serve as a basis for fraud. We agree with the trial court and affirm.

On appeal of a grant of summary judgment, we review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the movant was entitled to judgment as a matter of law. We construe the evidence in favor of the nonmovant.

So construed, the evidence shows that in late 1997 Lakeside’s representative Walter Duncan saw Allen’s “For Sale” sign on the property, which advertised the property as zoned O & I. Duncan contacted Allen, who represented the landowners and who told Duncan that the entire three acres were zoned O & I and gave him a flyer confirming such. In truth, only the front portion was so zoned with the back portion zoned residential, a fact with which Allen was very familiar.

In March 1998 Lakeside entered into a contract with the landowners to purchase the property. Allen was also a party to the contract, signing as the broker representing the landowners. The contract had a merger provision that made nonbinding any representations not included in the written agreement and further had a disclaimer provision in which Lakeside acknowledged that it was not relying on any representations of Allen concerning the purchase and ownership of the property. Title was to be conveyed subject to zoning ordinances affecting the property. The contract contained a handwritten stipulation that it was contingent upon Lakeside obtaining within 30 days any zoning approvals from the county needed for the intended office use of the property.

Duncan visited the Gwinnett County zoning office, where the county employees told him that the entire property was zoned O & I and gave him a copy of some documents that did not directly address the zoning status of the property. Duncan did not review the official zoning map nor the resolution approving the commercial rezoning of the property. Convinced that he had exhausted all possible avenues of research and confidently relying on the statements made to him by employees of the comity zoning office, Duncan felt satisfied regarding the zoning status of the property, and so Lakeside purchased it in May 1998.

Within weeks, Duncan returned to the county offices to obtain a building permit, when he was informed for the first time that only a portion of the property was zoned O & I. At that time he reviewed the official county zoning map and the county resolution rezoning only the front portion of the property to O & I. He contacted the original landowners and sought to rescind the sales transaction, but they refused. He then successfully sought rezoning from the county to have the entire property zoned O & I, and Lakeside has since built one office building on the property with plans to build four more.

Lakeside sued Allen for fraud and sought damages caused by the delay and expense in obtaining the rezoning of the entire property to O & I. Allen moved for summary judgment on the grounds that the contract’s merger clause precluded reliance on the alleged misrepresentation and that zoning status was a matter of law that could not serve as a basis for fraud. The court granted the motion, agreeing with Allen’s rationale and finding particularly persuasive the argument that zoning status is a matter of law. Lakeside appeals, enumerating that the court erred in holding that misrepresentation and concealment in zoning status can never constitute fraud.

We evaluate whether some evidence supports the five elements of fraud: (1) false representation by defendant; (2) scienter; (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. The absence of a single element will sustain summary judgment. We hold that the element of justifiable reliance is missing for two independent reasons.

1. First, a misrepresentation as to a matter of law “is a statement of opinion only and can not afford a basis for a charge of fraud or deceit in the making of the contract.” This is because all persons are presumed to know the law and therefore cannot be deceived by erroneous statements of law. Since zoning is a legislative function of the county, “whether land has been zoned, and if so, the uses which may be made of the land under the applicable law or ordinance [are] a matter of law” and therefore cannot serve as a basis for a fraud action. As explained in Gignilliat v. Borg, Lakeside’s citation to Flannagan v. Clark for a contrary proposition is erroneous.

Moreover the sales contract here is expressly subject to zoning ordinances affecting the property. This provision alone put Lakeside “on notice of whatever ordinances Gwinnett County may have adopted applicable to the particular land. The ordinances were equally accessible to the seller and the purchased ] for determining what their effect on use of the land might be.” Simply put, a buyer cannot show justifiable reliance where the alleged misrepresentation concerns a matter of public record that is readily ascertainable upon inquiry. Here the resolution rezoning the property and the official zoning map were matters of public record available for Lakeside’s review. Lakeside’s decision instead to rely on the oral statements of the county employees is not grounds for holding Allen liable.

Lakeside seeks to distinguish its case on the ground that the underlying fraud is fraudulent concealment, not direct misrepresentation. The record belies this assertion, for Duncan testified that Allen directly told him that Allen had the whole property zoned O & I. As argued by Lakeside in its appellate brief, the flyer Allen then gave Duncan confirmed “that the property was three acres in size and it was entirely zoned O & I.”

Moreover, even if this case were one of only fraudulent concealment, that is a distinction without a difference. Zoning status is still a matter of law, whether the defendant directly misrepresents it or conceals it. In either case, the plaintiff is still presumed to know what the zoning regulations do or do not permit. Zoning status, whether concealed or misrepresented, is discoverable by a diligent review of the county zoning ordinance and records and therefore cannot serve as a basis for a fraud action.

2. Second, even if Lakeside could have justifiably relied on Allen’s misrepresentations concerning zoning status, the undisputed evidence reflects that Lakeside did not. Not only does the contract preclude such reliance, but Duncan testified that he relied on his own investigation at the Gwinnett zoning office.

(a) A party claiming he was fraudulently induced to enter a contract has two possible remedies: (i) promptly rescind the contract after discovering the fraud and sue in tort for recovery of the contract’s consideration (as well as other resulting damages); or (ii) affirm the contract and sue for damages resulting from the fraud. If the party chooses the latter option and affirms the contract, however, he is bound by its terms, including the provisions of a merger clause. Indeed, “[t]he presence of a merger clause is determinative if the defrauded party has not rescinded but has elected to affirm the contract.” Thus, real estate purchasers may not sue a seller’s agent for oral misrepresentations concerning the property where the real estate contract contains a merger clause and rescission is not sought.

Here Allen represented the sellers and was himself a party to the written contract in which all parties agreed that (i) no representations not contained in the contract were binding and (ii) Lakeside was not relying on any representations of Allen concerning the purchase or ownership of the property. The contract does not address the specific zoning status of the property, but makes the sale subject to the zoning ordinances affecting the property. Thus, under the contract Lakeside cannot now claim reliance on Allen’s pre-contract representations concerning zoning and sue for fraud. As Lakeside does not seek rescission of the contract, it is bound by the contract’s terms.

Decided January 25, 2002

Cert. applied for.

Davidson & Fuller, Stephen P. Fuller, for appellant.

Thompson, O’Brien, Kemp & Nasuti, John P. O’Brien, Paul B. Frickey, Ronald F. Negin, for appellee.

Citing Crews v. Cisco Bros. Ford-Mercury, Lakeside attempts to excuse its conduct by arguing that it sought rescission and was refused and that its obligations to a third-party lender preclude its tendering back the property. This, however, does not explain why in its complaint Lakeside seeks only damages and not rescission. As explained in Rampey v. Jay Pontiac GMC Truck, reliance on Crews is misplaced where rescission is not sought in the complaint. Moreover, Lakeside undisputably affirmed the contract when, after learning of the fraud, it had the property rezoned and built an office building thereon with plans to build more. Even though the buyer may have early on unsuccessfully attempted to rescind the contract, improving the property thereafter shows an intent to treat the property as the buyer’s own and thereby affirms the contract.

(b) Furthermore, Lakeside’s representative Duncan testified without equivocation that he relied on the results of his investigation at the Gwinnett zoning office in determining the zoning status of the property. As he later conducted his own independent investigation and relied on the statements of the county employees regarding zoning, as a matter of law he did not rely on Allen’s earlier statements and therefore cannot show fraud.

The trial court correctly granted summary judgment to Allen.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Gignilliat v. Borg, 131 Ga. App. 182, 183 (1), (3) (205 SE2d 479) (1974).

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

       Id.

        Smalls v. Blueprint Dev., 230 Ga. App. 556, 559 (1) (497 SE2d 54) (1998).

       Id.

        Gignilliat, supra, 131 Ga. App. at 183 (3).

       Id. at 186 (4).

       Id. at 183 (1), (3); accord Davis v. Northside Realty Assoc., 165 Ga. App. 96-97 (1) (299 SE2d 186) (1983).

       Supra, 131 Ga. App. at 185-186 (3).

       207 Ga. 345 (61 SE2d 485) (1950).

        Gignilliat, supra, 131 Ga. App. at 183 (2).

        Walden v. Smith, 249 Ga. App. 32, 35 (1) (546 SE2d 808) (2001); see Hill v. Century 21 &c. Realty, 187 Ga. App. 754, 756 (2) (371 SE2d 217) (1988).

        Gignilliat, supra, 131 Ga. App. at 183 (2).

       See id.; cf. Smalls, supra, 230 Ga. App. at 557 (1) (passive concealment exception to the general rule of caveat emptor concerns only concealed defects that purchasers in the exercise of due diligence could not detect).

        G. Mansour, Inc. v. Mansour’s, Inc., 233 Ga. App. 7, 9 (1) (503 SE2d 304) (1998).

       Id.

       (Citations and punctuation omitted.) Id.

        Pennington v. Braxley, 224 Ga. App. 344, 345-346 (1) (480 SE2d 357) (1997); Hightower v. Century 21 &c. Realty, 214 Ga. App. 522, 523-524 (1) (448 SE2d 271) (1994).

       201 Ga. App. 589, 590-591 (1) (411 SE2d 518) (1991).

       211 Ga. App. 632 (440 SE2d 52) (1993) (physical precedent only).

       Id. at 633; accord Markowitz v. Wieland, 243 Ga. App. 151, 153 (1) (532 SE2d 705) (2000); see Owens v. Union City Chrysler-Plymouth, 210 Ga. App. 378, 380 (436 SE2d 94) (1993).

        Paden v. Murray, 240 Ga. App. 487, 489 (1) (523 SE2d 75) (1999); accord Aliabadi v. McCar Dev. Corp., 249 Ga. App. 309, 313-314 (2) (547 SE2d 607) (2001).

       See Davis, supra, 165 Ga. App. at 97 (2).


author: MlKELL, Judge.

text:
    A01A1688.
    WILLIAMS v. THE STATE.
    (559 SE2d 512)
   MlKELL, Judge.

A jury convicted Scott Williams of rape, incest, and two counts of child molestation based on evidence of acts committed against his eleven-year-old daughter. On appeal from the denial of his motion for new trial, he asserts that the trial court erred by (1) denying his ineffective assistance of counsel claim, (2) admitting certain of the victim’s out-of-court statements under the Child Hearsay Statute, OCGA § 24-3-16, and (3) refusing to grant a mistrial after the victim’s mother referred to Williams’s prior incarceration. Williams additionally contends that the evidence is insufficient to support his convictions. Finding no reversible error, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and Williams no longer enjoys the presumption of innocence. So viewed, the evidence shows that the victim did not begin visiting with her father until she was 11 years old. During one visit, the victim testified, her father picked her up at her mother’s store, took her out to eat, and bought her an outfit. Then Williams took his child to the dollar store, where he purchased what the victim described as something like jelly in a plastic jar. The substance was later identified as K-Y jelly.

Williams brought the victim to the home of a girlfriend, Bessie Spence, who was not home. Williams asked the child to watch a pornographic movie. Then he brought her into a bedroom, instructed her to undress, removed his own clothing, laid her on the bed, and molested and raped her. Williams ejaculated on the victim’s hip and told her to take a bath “so no one would find out it was there.” Afterward, Williams took the child to a baseball game, where he worked as an umpire. The victim testified that she did not report the incident to anyone at the game because she was afraid of Williams. She also testified that Williams raped her again a short time later.

About two weeks after the second incident, the victim got into an argument with her mother, who threatened to call Williams to discipline the victim. Fearing another sexual assault, the victim became hysterical and reported Williams’s actions to her aunt. The aunt told the victim’s mother, and the women took the child to the hospital. There, the victim described the incidents in detail to Dr. Adena Greenberg, who examined the child. Dr. Greenberg testified that she found no bruises or tears on the victim’s body, but she explained that more than 80 percent of sexually abused children display no signs of physical abuse. Accordingly, Dr. Greenberg testified that the absence of physical abuse was not inconsistent with the victim’s description of the incidents. Later, the victim gave a videotaped statement to the police. The videotape was played for the jury. Williams testified and denied the allegations.

Williams contends that alleged discrepancies in the child’s statements to other witnesses coupled with the absence of signs of physical abuse create an insufficiency in the weight of the evidence to sustain his conviction. We disagree. Expert testimony established that most children who are sexually abused show no signs of physical assault. In any event, weighing evidence is exclusively a jury function; an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that Williams was guilty of the offenses of rape, incest, and two counts of child molestation.

1. In his first enumeration of error, Williams contends that the trial court erred in denying his motion for new trial on the grounds of ineffective assistance of counsel.

Generally, the burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. . . . The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with the client.

In the case at bar, trial counsel’s testimony during the hearing on the motion for new trial amply supports the trial court’s determination that her decisions, made after consulting with Williams, were strategic.

(a) Williams asserts that his trial counsel was ineffective for failing to call five defense witnesses. We disagree. Williams’s trial counsel testified as follows: she interviewed all the potential witnesses and subpoenaed four of them. Those four witnesses attended the trial. Counsel declined to subpoena the fifth potential witness out of concerns for her credibility. For the same reason, she declined to call another witness to the stand. Counsel determined that the opportunity to open and conclude closing argument outweighed the limited usefulness of the anticipated testimony of another witness. In any event, counsel explained, she was able to elicit the same evidence through cross-examination of the state’s witnesses. Each decision was made after full discussion with Williams. Deciding “which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel.” “Declining to present evidence (other than the defendant’s own testimony) so as to preserve the final word in closing argument is a well-recognized trial tactic.” The trial court’s determination that trial counsel made a strategic decision not to call these witnesses is not clearly erroneous.

(b) Williams next contends that his trial counsel was ineffective for failing to make a pretrial motion in limine to exclude references to the defendant having served time in jail on other offenses. This claim does not appear in the record, nor was it raised during the hearing on the motion for new trial. Therefore, the issue is waived.

2. In his second enumeration of error, Williams argues that the trial court committed reversible error when it admitted certain testimony under the Child Hearsay Statute, OCGA § 24-3-16. That Code section allows statements “made by a child under the age of 14 years describing any act of sexual contact or physical abuse” to be admitted into evidence through the testimony of the person to whom the statement was made.

The testimony to which Williams objected was elicited from the victim’s mother, who relayed the victim’s stated reasons for writing a letter recanting her accusations against Williams. The victim testified that a girlfriend of Williams persuaded her to write the letter, which the girlfriend composed, because the girlfriend was pregnant and wanted Williams released from jail. Subsequently, the victim’s mother testified that the victim told her that the girlfriend had her write the letter so that Williams would be released from jail and the girlfriend, her baby, Williams, and the victim could live together as a family.

Decided January 25, 2002.

Paola F. Torselli, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

The victim’s out-of-court statements admitted through her mother’s testimony did not describe sexual contact or physical abuse. Thus, the trial court erred in overruling Williams’s hearsay objection. Under these circumstances, however, the improperly admitted testimony was merely cumulative of other evidence, and its admission was harmless error.

3. In his third enumeration of error, Williams argues that the trial court should have granted his motion for a mistrial after the victim’s mother made reference to his criminal record. We disagree.

In a response to a question concerning the frequency of her contact with Williams, the victim’s mother replied: “He was in and out of jail so much —.” The prosecutor interrupted the witness, and defense counsel moved for a mistrial. The trial court denied Williams’s motion for mistrial but gave curative instructions to the jury. Defense counsel did not renew the motion for mistrial following the curative instructions and thereby waived appellate review of the denial of the motion for mistrial. In any event, the victim had earlier testified, without objection, that she first began seeing Williams “when he got out of jail.”

Judgment affirmed.

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

        Alford v. State, 243 Ga. App. 212 (534 SE2d 81) (2000).

       The victim lived with her mother, her aunt, and her two grandmothers.

        Swift v. State, 229 Ga. App. 772, 773 (1) (495 SE2d 109) (1997).

       (Citations and punctuation omitted.) Bevil v. State, 220 Ga. App. 1, 4-5 (7) (c) (467 SE2d 586) (1996).

        Bradford, v. State, 221 Ga. App. 232, 235 (3) (a) (471 SE2d 248) (1996).

        Sewell v. State, 229 Ga. App. 685, 689 (1) (c) (494 SE2d 512) (1997), citing Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530) (1995); Boone v. State, 224 Ga. App. 563 (1) (481 SE2d 569) (1997); Keanum v. State, 212 Ga. App. 662, 664 (3) (442 SE2d 790) (1994); Avans v. State, 207 Ga. App. 329, 330 (2) (427 SE2d 826) (1993).

        Braswell v. State, 245 Ga. App. 602, 606 (7) (538 SE2d 492) (2000); Keanum v. State, supra at 663 (1).

        Riddle v. State, 208 Ga. App. 8, 11 (2) (430 SE2d 153) (1993).

        Letlow v. State, 222 Ga. App. 339, 345 (4) (474 SE2d 211) (1996). See generally Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999) (“The erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict”) (citations omitted).

        Anderson v. State, 236 Ga. App. 679, 685 (7) (513 SE2d 235) (1999). Accord Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998); White v. State, 211 Ga. App. 694, 697 (4) (440 SE2d 68) (1994); Tuggle v. State, 211 Ga. App. 854, 856 (2) (b) (440 SE2d 740) (1994).


author: Blackburn, Chief Judge.

text:
    A01A1705.
    MASON v. THE STATE.
    (559 SE2d 511)
    Decided January 25, 2002.

      Theresa A. Hood, Patricia F. Angelí, for appellant.
   Blackburn, Chief Judge.

Following a jury trial, Russell Mason appeals his conviction for violation of the Georgia Controlled Substances Act, contending that the evidence was insufficient to support the verdict. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, the evidence is construed in the light most favorable to the verdict of guilt, and the presumption of innocence no longer applies. An appellate court does not weigh the evidence or judge the credibility of the witnesses, but only determines whether the adjudication of guilt is supported by sufficient competent evidence.

Bohannon v. State. Viewed in the light most favorable to support the verdict, the jury was authorized to find that on May 17, 2000, uniformed officers Travis Fox and Kristopher Hutchens were on general patrol in a marked vehicle in an area of Clayton County known for high drug use. The officers saw Mason sitting on a wall; he was holding a small object in his hands. Officer Hutchens stopped the car approximately ten to fifteen feet from Mason, and both officers exited the vehicle. When Mason heard the car doors close, he looked over, saw the officers, and ran from them. Both officers ordered him to stop, but he continued to run. As the officers rounded the comer of a building, they both saw Mason toss an object, which appeared to be a small blue baggie, into the weeds. Officer Fox, only a few feet behind Mason, again ordered him to stop, and Mason, after going a few feet farther, stopped, turned, and approached Officer Hutchens. Officer Fox, who had visually tracked the object which Mason had thrown, went to the spot where the object had landed and found, on top of the kudzu, a small blue baggie containing three rocks of crack cocaine. We find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Mason was guilty of the offense with which he was charged. Jackson v. Virginia.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Robert E. Keller, District Attorney, Adrian Britt, Assistant District Attorney, for appellee.

        Bohannon v. State, 208 Ga. App. 576 (1) (431 SE2d 149) (1993).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


text:
    A01A1872. A01A1873.
    WILLIAMS v. THE STATE. JAMES v. THE STATE.
    (559 SE2d 516)
   Blackburn, Chief Judge.

James Gregory Williams was convicted by a jury of the crime of armed robbery. His co-defendant, Earl A. James, was convicted by the jury of the crimes of armed robbery and aggravated battery. Following the denial of their motions for new trial, each defendant filed a notice of appeal. Williams contends that the court erred: in denying James’s motion to sever; in denying his motion for change of venue; in admitting into evidence his in-custody statement; and in allowing him to be identified at trial. James maintains that the trial court erred in failing to grant his motion for new trial because of a Batson violation. Both Williams and James claim that the trial court erred: in denying their motions for new trial because the evidence was insufficient to convict them; in admitting a handgun into evidence; and in denying a motion for mistrial on the basis of juror misbehavior. Because they were tried together, we have consolidated their appeals for review. For the reasons set forth below, we affirm.

1. Both Williams and James assert that the trial court erred in denying their motions for new trial based on the insufficiency of the evidence.

The standard of review for the sufficiency of evidence, in reviewing either a motion for a directed verdict or a motion for new trial, is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. We view the evidence in the light most favorable to the verdict, and [defendants] no longer enjoy[ ] the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations omitted.) Willingham v. State.

Viewed in the light most favorable to support the verdict, the jury was authorized to find that, on the morning of August 22, 1999, Williams and James entered the Macon Olive Garden restaurant through the back door; James wore a dreadlock wig, a grayish shirt, and blue pants while Williams was attired in blue jeans, a white Tommy Hilfiger t-shirt, and a ski mask. Williams appeared to know his way around the restaurant. Williams and James herded the employees into an area near the manager’s office, forced the manager to put the restaurant’s receipts and Olive Garden gift certificates into a black briefcase, which also contained some of the manager’s personal belongings, and then left by way of the rear door. As soon as they left, one of the employees told the others that the robber with the ski mask was Williams, who had worked for several months at the Olive Garden.

While Williams and James were carrying out the robbery, another Olive Garden employee, who had been outside and had seen them enter the restaurant with a gun, ran across the parking lot to a nearby Macon police station and told police officers in the parking lot that the Olive Garden was being robbed. Several policemen, who rushed to the restaurant both on foot and in squad cars, saw Williams and James as they came out of the back door of the restaurant and gave chase. The defendants ran into the Riverbend apartment complex, and as they did so, one of them threw a gun into the bushes. When Williams and James split up, Officer Kinnery chased Williams into a wooded area, caught him, and wrestled him to the ground; when he pulled him to his feet, he found a ski mask on the ground where Williams had been lying.

Two other officers chased James. Officer Mathis spotted James, who was carrying a black briefcase and a wig, emerge from the breezeway between two of the apartment buildings and ordered him to freeze. James ran, and Officer Mathis pursued. Running into the parking lot, James got into a blue Chevrolet Celebrity. When Officer Mathis pulled his car in front of James’s car and again ordered him to freeze, James threw the black briefcase, which was found to contain the restaurant receipts and the Olive Garden gift certificates, and the dreadlock wig from the car and then rammed Officer Mathis’s car; the resulting collision caused the door of Officer Mathis’s vehicle to strike him, causing the loss of an eye. Stunned and unaware of the extent of his injuries, Officer Mathis fired his gun at James as he drove away.

Several officers heard the shots fired by Officer Mathis, and as James exited the apartment complex in the blue Celebrity, some of the officers fired at James’s vehicle, hitting one or more of the tires. A chase ensued with James, whose car had at least two flat tires, reaching 70 to 80 mph. Finally, James collided with one of the police cars when he attempted to turn around at a gas station. Police found the grayish shirt and a ski mask in the car, as well as cocaine and a large sum of money on James’s person. Meanwhile, back in the parking lot of the apartment complex, one of the officers found the gun which James had thrown into the bushes.

Based on our review of the entire record before us, we find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that both Williams and James were guilty of the offenses with which they were charged.

2. Williams contends that the trial court erred in denying James’s motion to sever. There is no merit to this contention.

It is well established that appellate courts may not consider objections to evidence not raised at trial. If several parties are entitled to make an objection, and it is made by any number less than all, it does not inure to the advantage of the party or parties not joining in it. Thus, where a defendant does not expressly adopt the objection of a co-defendant, he thereby waives that objection and may not utilize it to gain review.

(Citations and punctuation omitted.) Barnes v. State, In this case, Williams waived any objection by failing to adopt James’s objection. Id.

Even if the issue had been preserved for appeal, the enumeration would be without merit. In ruling on a motion to sever,

a trial court must consider whether a joint trial will create confusion regarding evidence or law; whether there is danger that evidence implicating one defendant will be considered against co-defendants, despite limiting instructions; and whether the co-defendants will press defenses that are antagonistic to one another. To show abuse of discretion a defendant must do more than raise the possibility that a separate trial would give him a better chance of acquittal. He must make a clear showing of prejudice that resulted in denial of due process.

(Citation omitted.) Mathis v. State.

The issues and defenses in this case were simple and straightforward. “Neither the number of defendants nor their trial tactics created any confusion as to either the evidence or the applicable law. There were only two defendants on trial and the primary issue was the identity of the robbers.” Mathis, supra. Williams did not testify, and James maintained in his testimony that he did not know Williams and that he had not taken part in the robbery; thus, no issue exists as to conflicting co-defendant testimony. Id. Finally, Williams’s and James’s defenses were not antagonistic; the only defense either seemed to put forth was that he was not involved in the armed robbery. Redding v. State. The trial court did not abuse its discretion when it denied the motion to sever.

3. Williams also asserts that the trial court erred in denying his motion for change of venue. We find no error.

“The trial court has the discretion to grant a change of venue and its determination will not be disturbed absent an abuse of that discretion. [Cit.]” Happoldt v. State. Williams, as the movant, has the burden of showing either that Bibb County was an inherently prejudicial venue or that the jury selection process revealed the existence of actual prejudice which kept him from receiving a fair trial. Roundtree v. State.

We consider first the question of actual prejudice since the trial judge delayed ruling on Williams’s motion to change venue until after voir dire of the jury. The record shows that less than half of the prospective jurors were aware of the publicity surrounding this case and that their exposure to media coverage had occurred months ago at the time of the crime; when each of these prospective jurors was asked, by counsel for both defendants during voir dire and by the trial court at the conclusion of voir dire, if he or she either had formed an opinion as to the defendants’ guilt or felt unable to be impartial, not one indicated that either was the case. Roundtree, supra. Beyond this, neither Williams nor James exercised any strikes to excuse any juror because of concerns about prejudicial publicity. McWhorter v. State. Thus, there is no evidence of actual prejudice.

As to the alternative ground of an inherently prejudiced venue, “[a] finding that pretrial publicity has so infected a community as to render it an inherently prejudiced venue is authorized only in extremely rare situations. [Cit.]” Roundtree, supra at 505 (2). Here, Williams made no showing that the media coverage either contained information that was factually incorrect or was inflammatory or reflective of an atmosphere of hostility. Happoldt, supra at 128. This failure to demonstrate an inherently prejudicial venue, coupled with the voir dire which revealed to the trial court that a majority of the jurors had heard nothing of the case in the media and that none of the prospective jurors felt incapable of being impartial and deciding the case on the evidence, confirms us in our conclusion that the trial court did not abuse its discretion in finding that Bibb County was not an inherently prejudicial venue and in denying the motion for a change of venue.

4. Williams next enumerates as error the trial court’s admission into evidence of his in-custody statement. In that statement, Williams admitted that he had taken part in the robbery at the Olive Garden and that he had worn a mask because he had worked there in the past, but he insisted that he had not had a gun and had not hurt the two police officers.

(a) Williams first argues that the State failed to show that his statement was voluntary. He maintains that, contrary to the testimony of the police officer, he told the officers that he wanted a lawyer but that the police officers, upset because of the injuries sustained by a fellow officer, ignored his request and coerced him into talking.

The trial court conducted a Jackson-Denno hearing before allowing Williams’s in-custody statement into evidence and found that he was given his Miranda rights, had knowingly, intelligently, and voluntarily waived those rights, and had freely and voluntarily given the statement. Unless clearly erroneous, determinations as to facts and credibility made at a Jackson-Denno hearing by the trial court must be accepted by appellate courts. Cameron v. State. Our review of the transcript of the Jackson-Denno hearing reveals that, in light of the totality of the circumstances, the trial court’s findings were not clearly erroneous.

(b) ' Officer Marberry was the only witness to testify during the Jackson-Denno hearing because Officer Mayfield, who also was present at the time Williams made his statement, was recovering from surgery at the time of the trial and was confined to his home. Williams argues that he was entitled to have all witnesses present during his alleged statement testify at the Jackson-Denno hearing in order for him to have an examination of the totality of the circumstances. “[TJhere is no absolute requirement that all law enforcement officers present when in-custody statements are made must be called by the state during a Jackson-Denno hearing. [Cit.]” Steele v. State. The trial court was convinced of the veracity of Officer Marberry’s testimony, and in the absence of any showing that Officer Mayfield’s testimony would have contradicted that of Officer Marberry, we are not persuaded that Officer Mayfield’s absence at the Jackson-Denno hearing denied Williams a full investigation of all circumstances surrounding his statement. Cook v. State.

(c) Finally under this enumeration, Williams objects to Officer Marberry’s reading his redacted statement into the record because, he .claims, Officer Mayfield, rather than Officer Marberry, prepared the statement, and Officer Marberry had no firsthand knowledge of its contents. OCGA § 24-9-69 provides: “A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” The trial judge conducted a brief hearing on whether Officer Marberry could read the statement into the record pursuant to OCGA § 24-9-69. “In order to swear positively from the paper, it is essential that the witness should at sometime have had personal knowledge of the correctness of the memorandum. It is not necessary that the witness have present recollection of the contents of the document.” (Citations and punctuation omitted.) Mincey v. State. Officer Marberry testified that the report prepared by Officer Mayfield was an account of the interview that Officers Marberry and Mayfield jointly had with Williams; that Officer Mayfield had made a copy of the report available to him after it was prepared; and that he had checked the report for accuracy and had found it to be a true and accurate account of the interview. The report was prepared just one week after the interview. Officer Marberry also stated that he was willing to swear positively from the report that it was a true and accurate account of the conversation he and Officer Mayfield had had with Williams. We find that the trial court did not err in permitting Officer Marberry to read Williams’s statement into evidence.

5. Williams and James both complain that the trial court erred in admitting a handgun into evidence. They point out that no fingerprints could be taken from the gun because of the way it was handled and no ballistics test was done because the gun was not fired; for these reasons, they assert, there is no physical evidence that links the firearm either to them or to the weapon allegedly used in the robbery. There is no merit to this argument.

“A weapon is generally admissible if it is similar to the one used in the crime even though it is not conclusively shown to be the same one.” Davis v. State. The handgun introduced into evidence was a chrome Lorcin nine-millimeter semi-automatic. The testimony showed that one of the defendants threw the handgun into the bushes and that an officer found the gun in the same bushes. The police established a chain of custody for the weapon. Several victims testified that the gun resembled the one that was used in the robbery, and one victim, whose hobby is guns, specifically told the police that the gun he saw was a “cheap chrome Lorcin nine millimeter.” The jury in this case was authorized to determine whether the gun admitted into evidence was the gun used in the Olive Garden robbery, and any discrepancies between eyewitness descriptions of the weapon went to the weight and credibility of the evidence rather than to its admissibility. Id.

6. Both Williams and James also argue that the trial court erred in denying a motion for mistrial on the basis of juror misbehavior. There is no merit to this enumeration of error. The record shows that James, during Williams’s closing argument, complained to the court that two jurors were conversing and requested that the court inquire as to whether the jurors were discussing the case. The court conducted this inquiry; the jurors said that they had not been discussing the case and that they were capable of listening to evidence, argument, and the charge of the court and rendering a fair and impartial verdict. At the conclusion of this inquiry, James stated that he still did not believe the jurors could be impartial and moved for a mistrial, but the court denied the motion. James then moved the court to replace the jurors with the alternates. The court gave curative instructions but reserved ruling on the motion to replace the jurors until after closing arguments were completed. At the close of argument, James again asked that the jurors be replaced with the alternates. The court, after seeing that neither the State nor Williams had any objection to the substitution of the alternates, granted James’s motion and replaced the two jurors with the alternates.

Here, the trial court inquired into the alleged juror misconduct, determined that the jurors were capable of making a fair and impartial assessment of the evidence, but, out of an abundance of caution, granted the defendant’s motion to replace the jurors with the alternates. Under these circumstances, the trial court did not abuse its discretion.

7. Williams contends that the trial court erred in allowing him to be identified at trial. Specifically, Williams argues that his identification at trial by one of the victims was caused by police suggestiveness in that the police “paraded” him in front of the media as he was taken into custody and then took statements from witnesses after they had seen him being taken into custody on television. We find no error.

The issue of suggestive pretrial identification was addressed by the United States Supreme Court in Neil v. Biggers. “However, the principle expressed in Neil v. Biggers deals with the suggestiveness of an identification procedure used by police, and applies only to state action. [Cits.]” Semple v. State. In this case, there is no evidence that the police or any other state actors were involved with either televising Williams’s arrest or otherwise suggesting an identification to the witnesses. Id. Beyond that, issues of witness credibility are for the trier of fact, and matters such as the basis for a witness’s identification of Williams and the witness’s ability to observe him at the crime scene were subjects for cross-examination and did not require that the identification testimony be excluded. Id.

8. Finally, James complains that the court erred in failing to grant his motion for new trial because of a violation under Batson v. Kentucky. Here, too, there was no error.

The record shows that the State struck seven blacks and three whites from the panel. Eleven black jurors were accepted by the State, and some of these jurors were impaneled. The defense struck four blacks. One other black juror was accepted by the State in the alternate pool, but this juror was struck by defendant James. Defense counsel objected to the racial composition of the panel. The trial court apparently assumed the existence of a prima facie case of purposeful discrimination and required the State to articulate its reasons for the strikes.

Once a prima facie case of discrimination is made, the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of its strikes. An explanation is not race-neutral if it is based on a characteristic that is peculiar to any race or on a stereotypical belief. At this point, the proponent of the strike need not proffer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially race-neutral. The trial court must then determine, considering the totality of the circumstances, whether the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes. The opponent of the strikes may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck or that the proponent’s race-neutral reason for a strike is “so implausible or fantastic that it renders the explanation pretextual.” A trial court’s findings on whether the opponent of the strike has met his burden of persuasion is entitled to great deference and will be affirmed unless clearly erroneous.

(Footnotes omitted.) Barnes v. State.

(a) James first objects to the striking of Juror No. 5. The State explained its striking of this juror as follows:

Number 5 is Sharon D. Childs. Now, this is, this is where I had a problem. I had the original clerk’s list, which is a 13 page document, and I could not find the name of Sharon D. Childs on this list. That’s why I asked the question I did about people who may’ve had their name changed. However, there is a Sharon Denise Rawls who had some sort of a simple battery case against her at some point and, out of an abundance of caution about the fear that Sharon D. Childs may have at one time been Sharon Denise Rawls, I exercised a strike. I don’t know any more information beyond that to give the Court, but I looked and looked and looked on this to be sure that I couldn’t find Sharon D. Childs. I could find no other similar name, so I had to conclude that Sharon D. Childs must have been Sharon D. Rawls.

The trial court found both that the State’s explanation for the strike was race-neutral and that James failed to carry his burden of showing that the reason was a pretext for purposeful discrimination. We agree. James cites Ridley v. State and Trammel v. State as support for his argument. Those cases are not on point as they deal with situations in which a juror shared the same name with a defendant the State had prosecuted, not with situations in which a juror is suspected of being the same person who was a defendant in another case even though the names are not the same.

(b) James also objects to the striking of Juror No. 11. The State explained the strike as follows:

The next one was Juror Number 11, Mr. Battle. Mr. Battle was the juror that, when I asked the question of those who had been to court before, began relating a long story about not only a case that he’d been a juror on somewhere else but relating all the details in that case, and I finally kind of had to stop him to — I frankly did not — I was not impressed by Mr. Battle’s long rambling answer, and for that reason I decided to strike him.

The trial court again found, and we agree, both that the State’s explanation for the strike was race-neutral and that James failed to carry his burden of showing that the reason was a pretext for purposeful discrimination. Juror No. ll’s long, rambling account of his involvement in another trial was not responsive to the simple inquiry as to whether any of the jurors in the panel had been in court before. This Court has held that a prospective juror’s lack of responsiveness is a race-neutral exercise of a peremptory challenge. Thompson v. State.

(c) James’s final challenge is to the striking of Juror No. 43. The State gave the following reason for the strike.

He said he worked at Church’s Fried Chicken and was single, was very young, and maybe I’m old-fashioned, but anyone who can work at Church’s Fried Chicken and afford that much gold jewelry in his ears and around his neck, I submit, is not a good State’s juror.

With respect to this juror, too, the trial court found both that the State’s explanation for the strike was race-neutral and that James failed to carry his burden of showing that the reason was a pretext for purposeful discrimination. We do not find this finding clearly erroneous.

James argues that a juror’s wearing a lot of jewelry is not a proper basis for a strike, while the State reminds us that “[t]he nature of a prospective juror’s employment ‘is not a characteristic that is peculiar to any race.’” Trice v. State. We believe, however, that neither line of argument addresses the prosecutor’s concerns about this prospective juror. The transcript reveals that the prosecutor’s concern was not with the juror’s jewelry or his place of employment but rather, we think, with the apparent lack of responsibility and maturity of a young man who, though earning minimum wage, nonetheless spends a significant amount of his income on gold jewelry. That concern with youthful irresponsibility in a prospective juror is a legitimate, neutral, and nonracial reason for striking the juror; certainly, James falls far short of meeting his burden of showing that the State’s reason was mere pretext for purposeful discrimination.

Decided January 25, 2002.

Wm. Lee Robinson, for appellant (case no. A01A1872).

Reza Sedghi, for appellant (case no. A01A1873).

Howard Z. Simms, District Attorney, Graham A. Thorpe, Myra H. Kline, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Willingham v. State, 242 Ga. App. 472-473 (530 SE2d 224) (2000).

        Barnes v. State, 168 Ga. App. 925, 926 (2) (310 SE2d 777) (1983).

        Mathis v. State, 238 Ga. App. 218, 221 (4) (517 SE2d 578) (1999).

        Redding v. State, 239 Ga. App. 718, 722 (521 SE2d 840) (1999).

        Happoldt v. State, 267 Ga. 126, 128 (2) (475 SE2d 627) (1996).

        Roundtree v. State, 270 Ga. 504, 505 (511 SE2d 190) (1999).

        McWhorter v. State, 271 Ga. 461, 462 (519 SE2d 903) (1999).

         Cameron v. State, 187 Ga. App. 562 (370 SE2d 812) (1988).

        Steele v. State, 166 Ga. App. 24, 26 (3) (303 SE2d 462) (1983).

        Cook v. State, 249 Ga. 709, 711 (292 SE2d 844) (1982).

        Mincey v. State, 257 Ga. 500, 505 (6) (360 SE2d 578) (1987).

        Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800) (2000).

        Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

        Semple v. State, 271 Ga. 416, 417-418 (2) (519 SE2d 912) (1999).

        Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

        Ridley v. State, 235 Ga. App. 591 (510 SE2d 113) (1998).

        Trammel v. State, 265 Ga. 156 (454 SE2d 501) (1995).

        Thompson v. State, 194 Ga. App. 163 (390 SE2d 253) (1990).

       This Court also has recognized that
      unconventional methods of self-adomment in attire, hair style, hair color, shaving the head, jewelry, tattoos, or scarification, may indicate youthful rebellion against authority and convention, or anti-social attitudes, or identification that would extend across gender and racial lines. Such may constitute a race/gender-neutral reason to strike. However, if such matters were shown to be unique to a racial or gender identification, then it could constitute an impermissible explanation. However, such exclusive identification with race or gender would be part of the movant’s ultimate burden of persuasion.
      (Emphasis in original.) Knuckles v. State, 236 Ga. App. 449, 452-453 (1) (b) (512 SE2d 333) (1999).

        Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995).


text:
    A01A2012.
    TAYLOR v. THE STATE.
    (559 SE2d 499)
   Blackburn, Chief Judge.

Appellant John Willard Taylor was convicted by a jury of robbery. He appeals, arguing both that one of the State’s witnesses improperly commented on his exercise of his right to remain silent and also that his trial counsel’s failure to object to the witness’s improper comment rendered his assistance ineffective. For the reasons set forth below, we affirm.

1. The statement about which Taylor complains, italicized below, was made in the following context:

Q: And did he make any statements while he was being transported to jail?
A: Yes. About halfway down to the jail, my sergeant was riding with me, due to his vehicle having difficulties, but we were riding and just kind of chatting back and forth. Nobody had never said anything to Mr. Taylor and then a few minutes later —.
Q: Nobody said anything to Mr. Taylor about what?
A: About where the robbery occurred, how it occurred, or anything of that nature, at that time.
Q: Uh-huh (affirmative).
A: I had read him, right before we left, I did Mirandize Mr. Taylor and asked him if he would care to speak with me about, you know, a robbery that took place in the area; I explained to him that he did not have to, due to an attorney.
Q: Okay.
A: And he said no, that he didn’t want to talk to me, he wanted to talk to his attorney.
Q: Okay.
A: So, at that time, we went ahead and we started going down to the jail. We didn’t speak with him anymore about the incident. And he says, ‘You can take me back to the fruit stand. I was never there. You won’t find my feet print there.”
Q: So, he told you to take him back to the fruit stand?
A: Correct.

(Emphasis supplied.)

Taylor’s challenge of the police officer’s comment has not been preserved for appeal because he failed to object to this testimony at trial. Allen v. State. Assuming error, however, for purposes of addressing his claim that his trial counsel rendered ineffective assistance by failing to object to this testimony, we nonetheless find that the officer’s comment does not constitute reversible error.

Improper reference to a defendant’s silence does not automatically require reversal; the error may be found to be harmless beyond a reasonable doubt. The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.

(Citation and punctuation omitted.) Id. at 515-516 (5).

Several considerations support our conclusion that there was no reversible error. First of all, the case against Taylor was a strong one. The jury was authorized to find that on the evening of October 3, 1998, Pies Garner, the victim, was sitting in front of his fruit stand when he was approached by Taylor, who took a seat beside Garner in an old chair whose green paint was flecking off and began a conversation. Taylor, who had long hair and tattoos on his arms and chest, was shirtless and wearing blue jeans and black shoes. Kelly Landis, who drove past the fruit stand, testified that she saw a shirtless man with tattoos on his arms and chest sitting and talking with Gamer, whom she knew well and whose stand she passed every afternoon.

After more than a half-hour of conversation, Taylor indicated that he would buy a cantaloupe if he had the money. When Garner stood to get him a melon, Taylor jumped up, struck Garner on the shoulder, grasped him around the ribs, and yanked Garner’s wallet from his pants pocket, ripping the pocket in doing so. The wallet, which contained $443, fell to the ground as Taylor released Garner, and all but $20 spilled out. Taylor picked up the wallet and ran, leaving the rest of the money in the dirt. Garner, lying on his side at the edge of the road, saw Taylor leave the road and enter the woods; the next day he found his wallet at the point at which Taylor had gone into the woods.

Garner went to the house of his daughter, who lived a short distance away, and called the police. He described Taylor to an officer, who relayed the description on his radio, and a short time thereafter Taylor was apprehended about a quarter-mile from Garner’s stand. He was shirtless and wearing blue jeans and black shoes, with tattoos on his arms and chest, and flecks of green paint on his bare back. When word came that a suspect matching the description had been apprehended, Garner and Landis were taken to make an identification; both immediately identified Taylor.

This evidence, viewed in a light to uphold the verdict of guilt, was more than sufficient to satisfy the standard required by Jackson v. Virginia.

Beyond this, when testimony concerning a defendant’s remaining silent is made during a witness’s narrative of a course of events and is not intended to be, nor has the effect of being, probative on the guilt or innocence of the defendant, it is not prejudicial. Taylor v. State. “In fact, ‘to reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the. eyes of the jury.’ [Cit.]” Id. In this case, it is clear that the comment to which Taylor objects was inadvertent, part of a narrative of events, and not an intentional reference by the prosecution to silence on Taylor’s part where an innocent man would protest his innocence. Ford v. State. On the contrary, the purpose behind the testimony was to show that Taylor had knowledge that the robbery had been committed at Garner’s fruit stand even though none of the officers had revealed where the robbery had taken place.

Decided January 25, 2002.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

Finally, “the prosecutor did not follow up on that portion of the [officer’s] statement referencing appellant’s pretrial silence and made no attempt to capitalize on this issue during trial.” Allen, supra at 516 (5). Far from dwelling on the reference to Taylor’s silence, the prosecutor passed over the reference in his eagerness to pursue the officer’s narrative. In light of these factors, we find that even if error is assumed, the error would have been harmless beyond a reasonable doubt.

2. Taylor next argues that his trial counsel’s assistance was ineffective because of counsel’s failure to object to the officer’s comment on the exercise of his right to remain silent. To prevail on his claim of ineffective assistance of counsel, Taylor must show both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington. “Based on our holding that any error in the admission of the [officer’s] testimony was harmless, trial counsel’s failure to object to this testimony constitutes neither deficient performance nor prejudice to appellant.” Allen, supra at 516 (6) (a).

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Allen v. State, 272 Ga. 513, 515 (5) (530 SE2d 186) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Taylor v. State, 272 Ga. 559, 561 (2) (d) (532 SE2d 395) (2000).

        Ford v. State, 219 Ga. App. 562, 564 (466 SE2d 11) (1995).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).