author: Beasley, Chief Judge.

text:
    A96A0988.
    RIDER v. THE STATE.
    (475 SE2d 655)
   Beasley, Chief Judge.

Rider was convicted by a judge of two counts of possessing methamphetamine, a Schedule II controlled substance (OCGA §§ 16-13-26 (3) (B); 16-13-30 (a)), and one count of driving while methamphetamine was present in his urine (OCGA § 40-6-391 (a) (6)). He enumerates as error the denial of his motion to suppress evidence resulting from an illegal search. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

The day before the arrest, Agent Cochran of the Appalachian Drug Task Force had contact with a confidential informant who stated Rider had a drug problem. The informant expressed concern for Rider’s welfare, saying he was in need of assistance. He also said Rider would be using or carrying drugs “anytime” he was on Black Mountain Road, a rural unpaved road three or four miles long. The confidential informant had given Cochran information four previous times leading to two search warrants and five felony arrests. He had never given unreliable information. Although the informant did not state any specific day or time when Rider might be on the road, Cochran went to Black Mountain Road the next day specifically to look for Rider.

Cochran had long known Rider socially and was familiar with the pickup truck he drove. He saw Rider at the residence of Walker, whom Cochran had arrested four months earlier on drug charges. The informant had not told Cochran that Rider would be there. Rider stood outside the residence speaking with Walker for approximately 20 minutes and then left in his pickup truck. Cochran stopped Rider shortly thereafter and said he was suspected of possessing drugs. Rider stated he did not have any drugs and that Cochran could search him and his truck. Cochran did so and discovered methamphetamine in Rider’s wallet.

The court determined that Cochran had sufficient reasonable and articulable suspicion to stop Rider based on the informant’s information and on his observation of Rider at the residence of a suspected drug dealer on a road where Rider was expected to be. Rider agrees that the proper test was used in measuring the initial stop (Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968)) but contends it was erroneously applied. He does not dispute that he consented to the search but argues that his consent was ineffective because it was the product of an illegal detention. VonLinsowe v. State, 213 Ga. App. 619, 622 (2) (445 SE2d 371) (1994).

“ ‘Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)’ [Cit.]” State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991). Whether there are reasonable grounds sufficient to justify an investigatory stop is judged in the totality of the circumstances. Alabama v. White, 496 U. S. 325 (110 SC 2412, 110 LE2d 301) (1990); Britton v. State, 220 Ga. App. 120, 122 (469 SE2d 272) (1996).

Rider contends the informant’s tip furnished only general, unspecific information insufficient to give Cochran reasonable grounds to stop him, and that the tip was the sole basis for the stop. Cochran did not act solely on the tip. During cross-examination, Cochran responded in the negative to the question: “Was there any reason that you had to stop his vehicle other than the information that you had received from the informant the day before?” But this was after Cochran had testified that his knowledge of Walker’s background did factor into his decision to stop Rider. The court accepted this statement; the order denying the motion cites that knowledge as one factor justifying the stop. Given the context of each statement, the court did not clearly err in its finding. Burse, supra.

The informant related to Cochran a place (a named, short, rural road) and that the suspect would be carrying, or using, drugs in that place. The informant knew Rider well enough to know these things, and that he had a drug problem and was concerned about it. A clear inference from the tip was that Rider obtained drugs somewhere on Black Mountain Road. Before acting, Cochran verified Rider’s identity and the location given by the informant, and gained the additional information that Rider was talking to a person involved with drugs. See McFadden v. State, 218 Ga. App. 327, 328 (1) (461 SE2d 542) (1995).

As to the tip’s non-specific time element, the information was not stale; Cochran investigated the very next day. The informant’s expressed concern for Rider’s well-being and his action in calling the police allows an inference that Rider was then regularly engaged in drug activity. “Officers are not required to refrain from acting on a reliable informant’s tip merely because they are not told by the informant that a drug transaction is in progress at that very moment. [Cit.] There need be only a ‘fair probability’ that contraband will be found in a particular place. [Cit.]” Id. at 327-328 (1).

Decided August 12, 1996

Reconsideration denied August 27, 1996.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, for appellant.

Albert F. Taylor, Jr., District Attorney, Darrell E. Wilson, Mary E. Moore, Assistant District Attorneys, for appellee.

This is not a case in which an officer stopped a vehicle based solely upon an anonymous tip, see Moreland v. State, 204 Ga. App. 218 (418 SE2d 788) (1992), but rather one in which the tip came from a known, reliable informant. See Beck v. State, 216 Ga. App. 532, 535 (1) (455 SE2d 110) (1995); Burse, supra at 277-278. Cochran’s observations of Rider augmented the information.

Rider contends that even a tip from a reliable, confidential informant must provide some basis for predicting the specific future behavior of the suspect. This applies to an anonymous telephone tip, see McKinley v. State, 213 Ga. App. 738, 739-740 (445 SE2d 828) (1994), not to a tip from a known, reliable informant. In Watson v. State, 205 Ga. App. 313, 314 (422 SE2d 202) (1992), which Rider cites, the Court only noted that the predictive value of the confidential informant’s tip was a factor in finding articulable suspicion in the “totality of the circumstances.” The purpose of requiring that an anonymous tip give predictive information is to allow the police a means to test reliability before acting on the broader prediction that the suspect is engaged in criminal activity. McKinley, supra at 740. Imposing such a requirement is unnecessary where, as here, the informant’s reliability is otherwise established.

The information Cochran possessed from all sources established more than “a fair probability” that drugs would be found in Rider’s possession, and the stop was not arbitrary or harassing. The motion was properly denied.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

       The second possession charge was based upon the methamphetamine in his body, for which he received no sentence.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A96A1019.
    WYATT v. THE STATE.
    (475 SE2d 651)
   Judge Harold R. Banke.

An Emanuel County jury convicted Robert Lyndon Wyatt on charges of child molestation, aggravated child molestation, aggravated sodomy, and incest against his five-year-old daughter. He appeals from the trial court’s judgment, which included two concurrent life sentences.

1. The trial court did not err by prohibiting defense counsel from asking Sonya Wyatt, the defendant’s wife, about any plea offer she had received from the State. Ms. Wyatt was indicted along with her husband but refused all plea offers and sought to testify against him. Shortly before trial, the State dismissed the charges against Ms. Wyatt, stating that dismissing these charges would allow her to testify at trial. Although defense counsel argued to the trial judge that the State would not re-indict her if she testified favorably at her husband’s trial, both the assistant district attorney and Wyatt’s counsel agreed the State had made no deals with Ms. Wyatt at the time she gave her testimony in this case. Considering that both sides agreed no plea offers or agreements existed at the time of trial, the lower court did not err by preventing defense counsel from asking Ms. Wyatt about any plea arrangements or deals. Watkins v. State, 264 Ga. 657, 659-660 (1) (449 SE2d 834) (1994); see also Beam v. State, 265 Ga. 853, 855-856 (3) (463 SE2d 347) (1995).

Even though the trial court properly sustained the State’s objection to Wyatt’s question about plea arrangements, he was entitled to cross-examine Ms. Wyatt as to whether, even in the absence of a “deal,” she “entertained any belief of personal benefit from testifying favorably for the prosecution.” (Citations and punctuation omitted.) Watkins, 264 Ga. at 660. But it appears from the record that Wyatt’s counsel made no further effort to inquire into the witness’s reasons for testifying. Id.

Even if we were to take the court’s action in sustaining the objection to mean the court cut off all inquiry in this area, we would find no harmful error. The overwhelming evidence against Wyatt came from four adult witnesses who related his daughter’s statements regarding his molestation of her, a physician who testified regarding the child’s abnormally lax hymen, and a psychologist who testified the child scored high on tests showing her as a probable victim of sexual abuse. Ms. Wyatt denied knowing of any sexual abuse of her child and, over objection, identified pornographic magazines which she had found stored with belongings from her home. On cross-examination, she admitted she had actually never seen these magazines in her home. Under these circumstances, any error the trial court made in cutting off inquiry into her motives for testifying was harmless beyond a reasonable doubt. Byrd v. State, 262 Ga. 426, 428 (2) (420 SE2d 748) (1992).

2. The trial court erred, however, in failing to merge for conviction and sentencing Counts 1 and 2 of the indictment. OCGA § 16-1-7. Count 1 charged aggravated child molestation based upon an act of sodomy involving Wyatt’s sex organs and the child’s mouth. Count 2, aggravated sodomy, charged that Wyatt placed his sexual organs in his daughter’s mouth against her will. A thorough review of the record reveals no evidence that this type of oral sodomy act occurred more than once. Because this single act went to prove the aggravated sodomy charge, that proof “used up” the evidentiary basis for the charge of aggravated child molestation. See Head v. State, 202 Ga. App. 209, 210 (2) (413 SE2d 533) (1991). Thus, we must find the charge of aggravated child molestation merged into the charge of aggravated sodomy as a matter of fact, reverse Wyatt’s conviction and sentence on Count 1 of the indictment and remand to the trial court for resentencing. Horne v. State, 192 Ga. App. 528, 533 (6) (385 SE2d 704) (1989); LaPalme v. State, 169 Ga. App. 540 (1) (313 SE2d 729) (1984).

Decided August 7, 1996

Reconsideration denied August 27, 1996.

Edwin A. Smith, for appellant.

Richard A. Malone, District Attorney, Anne L. Durden, Assistant District Attorney, for appellee.

3. Wyatt’s similar argument concerning Counts 5 and 6 of the indictment also has merit. Count 6 charged Wyatt with aggravated sodomy based upon an act of oral sodomy involving Wyatt’s mouth against his daughter’s sex organs. Count 5 charged him with child molestation based on an act of “oral sex, to [the child].” The State proved only one such act, and it used those facts to prove the aggravated sodomy charge. We must, therefore, find the child molestation count merged into the aggravated sodomy count and reverse Wyatt’s conviction and sentence on Count 5 of the indictment and remand to the trial court for resentencing. Horne, supra.

Judgment affirmed in part, reversed in part and remanded to the trial court for resentencing.

Beasley, C. J, and Blackburn, J., concur.


text:
    A96A1249.
    CLARK et al. v. MESSER INDUSTRIES, INC.
    (475 SE2d 653)
   Beasley, Chief Judge.

Messer Industries, Inc., sued Georgia International Express, Inc. (GIE), and GIE’s president Clark, for breach of contract and conversion. Clark and GIE appeal the trial court’s grant of Messer’s motion for summary judgment on the issue of liability.

GIE, a motor common carrier, approached Messer and asked whether it could transport any goods to Messer’s customer, The Home Advantage, Inc. As a result, Messer placed certain goods with GIE for shipment from Messer’s place of business in South Carolina to Home Advantage in Florida. GIE refused to deliver the goods to Home Advantage in accordance with the bill of lading, or to return the goods to Messer, because of unpaid shipping charges incurred by Home Advantage in prior unrelated transactions. GIE’s refusal was based on its assertion that title to the goods passed to Home Advantage upon delivery to GIE for shipment. Messer brought this action based on the assertion that it retained title to the goods during transport because it had paid the freight charges to GIE.

1. The court did not err in granting Messer’s motion for summary judgment on the issue of liability.

It is undisputed that Messer, Home Advantage, and GIE agreed that seller Messer was responsible for the payment of freight charges. Where this is so, the seller is in effect required to deliver the goods to the buyer. Under such circumstances, title passes to the buyer on tender at destination “[ujnless otherwise explicitly agreed.” OCGA § 11-2-401 (2) (b); see also OCGA § 11-2-509 (1) (b).

GIE maintains that title passed to Home Advantage at the place of shipment based on a pre-printed term on the reverse side of the customer shipping order which stated that the shipment was “F.O.B. shipping point.” “Unless otherwise agreed,” the term “F.O.B. the place of shipment” means that the seller must at that place ship the goods and bear the expense and risk of putting them into the possession of the carrier. OCGA § 11-2-319 (1) (a). It is uncontested that it was otherwise agreed between all parties that the seller bore the expense, not of putting the goods in the possession of the carrier, but rather of transporting the goods to the place of destination. Consequently, the terms of the delivery were in fact “F.O.B. the place of destination.” See OCGA § 11-2-319 (1) (b).

Defendants argue that Messer was not entitled to partial summary judgment because of evidence that Home Advantage has settled its dispute with GIE and paid the invoices for these goods. This raises issues concerning damages, which are not before us because this is an appeal from the grant of summary judgment on the issue of liability.

2. We find no merit in defendants’ argument that plaintiff’s state remedies have been preempted by the Carmack Amendment to the Interstate Commerce Act. 49 USC § 11706 (formerly 49 USC § 11707).

“It is well settled that the Carmack Amendment pre-empts state law remedies against common carriers for negligent loss or damage to goods shipped under a lawful bill of lading. [Cits.]” Joseph Land & Co. v. Christopher Edwards Cos., 211 Ga. App. 597, 598 (440 SE2d 234) (1993); see Hughes v. United Van Lines, 829 F2d 1407, 1412 (3) (7th Cir. 1987). However, the Carmack Amendment does not preempt other state remedies. Sokhos v. Mayflower Transit, 691 FSupp. 1578, 1581 (1) (D. Mass. 1988). Here, the shipper is not suing the carrier for lost or damaged goods but for a wrongful retention of the goods and for breach of a contract which the carrier allegedly entered into with the shipper without any intent to perform.

Decided August 12, 1996

Reconsideration denied August 27, 1996.

Robert H. McDonnell, for appellants.

Deming, Parker, Hoffman, Green & Campbell, William J. Schneider, John F. Connolly, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A96A1295, A96A1296.
    CARING HANDS, INC. et al. v. DEPARTMENT OF HUMAN RESOURCES; and vice versa.
    (475 SE2d 660)
   McMurray, Presiding Judge.

At the behest of plaintiff, the Georgia Department of Human Resources (“DHR”), on November 11, 1993, defendants Caring Hands, Inc., Wayne Putnam, and June Putnam were permanently enjoined from operating a personal care home for more than the six ambulatory elderly patients for which their facility in Ranger, Gordon County, was licensed by DHR. Defendants were further ordered to take immediate steps to relocate those patients then living at defendants’ home over and above this licensed capacity. The superior court subsequently held defendants in wilful contempt because they made no attempt to accomplish relocation of the personal care home’s unauthorized residents. On the previous appeal, this Court held that the superior court’s injunction was “a manifest abuse of discretion by that court because the order provides no detailed guidance to defendant [Caring Hands], its residents or their families as to how they are to effectuate the relocation^ and because the] order also fails to set out any reasonable timetable within which [the] relocation should be completed.” Caring Hands v. Dept. of Human Resources, 214 Ga. App. 853, 857 (1) (449 SE2d 354). Consequently, the case was remanded with direction that the parties submit plans for an orderly, efficient, and safe relocation of the residents. “Upon review of the two plans, the [superior] court [was directed to] issue another injunctive order, which shall be specific as to the court’s findings warranting the grant of injunctive relief, and shall be detailed as to the acts that each party shall perform in effectuating relocation.” Id. at 859 (1). The superior court’s finding that defendants were in contempt of its impermissibly vague mandatory injunction also was set aside, even though it was “clear from the record that the Putnams and defendant [Caring Hands] essentially made no attempt to accomplish relocation of the residents located at the unlicensed portion of defendants’] facility or otherwise comply with the [superior] court’s order.” Id. at 859 (2).

Upon remand, on December 16, 1994, the superior court entered a detailed and specific order for mandatory injunction, directing the steps to be taken so that defendants’ facility has no more than the six personal care patients authorized by the existing license as of March 3, 1995. This reissued injunction was affirmed on direct appeal in an unpublished decision. Caring Hands Personal Care Home v. Ga. Dept. of Human Resources, 218 Ga. App. XXX (1995). In December 1995, defendants were again held in contempt of the superior court’s injunction to relocate those residents for which the facility was not licensed. In Case No. A96A1295, defendants appeal from the renewed citation for contempt of the superior court’s relocation order. In Case No. A96A1296, the DHR cross-appeals. Held:

Case No. A96A1295

1. The propriety of injunctive relief is the law of the case because of this Court’s earlier rulings directing the superior court to enter a detailed order justifying the injunction and subsequent decision affirming the entry of that reissued injunction. “Thus, in this civil action, the [superior] court, as well as this Court, would certainly be bound by the [previous] ruling[s] in [Caring Hands v. Dept. of Human Resources, 214 Ga. App. 853, supra, and Caring Hands Personal Care Home v. Dept. of Human Resources, 218 Ga. App. XXX, supra], regardless of whether [those] ruling[s] may be erroneous. See Northwestern Mut. Life Ins. Co. v. Suttles, 201 Ga. 84, 97 (1) (38 SE2d 786) (1946); Southern Bell Tel. &c. Co. v. Glawson, 140 Ga. 507, 508 (1) (79 SE 136) (1913).” Roulain v. Martin, 266 Ga. 353 (1), 354 (466 SE2d 837). Consequently, defendants’ first, fourth, and fifth enumerations of error are rendered moot. OCGA § 5-6-48 (b) (3).

2. Defendants contend the trial court erred in “failing to determine that the actions taken by Wayne Putnam and June Putnam showed their respect for the Court rather than contempt,” and further erred in assessing a fine against defendant Caring Hands.

The entire argument in support of these enumerations consists of the following: “The citations of law and authority are related in Part I (STATEMENT OF FACTS AND COURSE OF PROCEEDINGS BELOW) and are adopted herein as though more fully set forth.”

Decided August 15, 1996

Reconsideration denied August 27, 1996

Edwin Marger, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Mary F. Russell, Velma C. Tilley, Assistant Attorneys General, for appellee.

“ ‘Argument’ is defined as ‘a reason given in proof or rebuttal,’ or ‘a coherent series of reasons offered.’ Webster’s New Collegiate Dictionary (1976). Clearly, the central element in those definitions is ‘reason.’ ” Haskins v. Jones, 142 Ga. App. 153 (1) (235 SE2d 630). “A mere statement of what occurred during the trial, and the contentions of the appellant, does not constitute an argument in support of such contentions. . . . The failure to support the enumerated errors by citation of authority or argument . . . constitutes an abandonment of such enumerated errors. . . . Rodriguez v. Newby, 131 Ga. App. 651 (5) and cits.” O’Kelley v. Hayes, 132 Ga. App. 134 (1) (b) (207 SE2d 641). In the case sub judice, defendants “have stated what they feel the result of the case should be but have not supplied the reason [why the superior court’s finding of contempt, which was supported by the record, should be set aside]. By the rules of this [C]ourt, those portions of their enumeration[s] of error which are unsupported by argument or citation of authority [with respect to the superior court’s finding of wilful contempt] must be deemed abandoned. [Court of Appeals Rule 27 (c) (2)].” (Emphasis in original.) Haskins v. Jones, 142 Ga. App. 153 (1), supra.

Case No. A96A1296

3. Our affirmance of the judgment in the main appeal, Case No. A96A1295, renders moot all issues raised in this cross-appeal. “Accordingly, the appeal in Case No. [A96A1296], [DHR’s] cross-appeal, ‘is hereby dismissed pursuant to OCGA § 5-6-48 (b) (3).’ Kubler v. Goerg, 197 Ga. App. 667, 671 (5) ([399] SE2d 229).” Kemira, Inc. v. Williams Investigative &c. Svcs., 215 Ga. App. 194, 200 (4) (450 SE2d 427).

Judgment affirmed in Case No. A96A1295. Appeal dismissed in Case No. A96A1296.

Johnson and Ruffin, JJ, concur.


text:
    A96A1317.
    In re ECHOLS.
    (475 SE2d 658)
   Beasley, Chief Judge.

In this case, attorney Echols contests the authority of the Juvenile Court of Henry County to require the placement of his name on a court-appointed list of attorneys who provide representation for indigent defendants in juvenile court.

In accordance with the Georgia Indigent Defense Act (OCGA § 17-12-30 et seq.) and the Guidelines of the Georgia Indigent Defense Council for the Operation of Local Indigent Defense Programs, the Judges of Superior and Juvenile Courts of the Flint Judicial Circuit elected to provide indigent defense services in those courts through a Panel Attorney Program. An order entered by these judges in 1992 sets forth rules and guidelines for the operation of the panel program. Under the 1992 order, the superior court in each county in the circuit designates one attorney to administer the program and appoint counsel for indigent defendants. In Henry County, the program is composed of attorneys who volunteer to be on the panel.

The Juvenile Court of Henry County also maintains its own list of attorneys who have voluntarily provided indigent defense services in juvenile court. In 1995, the judge of the Henry Juvenile Court determined that it was necessary to increase the number of attorneys on the court-appointed list because of a heavier caseload. The judge directed the clerk of the court to add Echols’ name to the list, but he refused to accept cases to which he was appointed.

As a result, the judge convened a hearing but later recused himself on motion by Echols. A juvenile court judge from another judicial circuit was appointed, held an evidentiary hearing, and entered an order concluding that the Henry Juvenile Court has the authority to require the placement of Echols’ name on the court-appointed list.

1. Echols’ primary argument is that the existence of the panel attorney program precludes the juvenile court from utilizing an alternative method for appointing attorneys to represent indigent defendants.

By participating in a program operated under the Indigent Defense Act and its guidelines, a county thereby receives state funding to assist the county in the provision of indigent defense services. McCorkle v. Bignault, 260 Ga. 758 (399 SE2d 916) (1991). The Act “is intended to apply only to programs receiving state appropriated funds as provided for in [the Act].” OCGA § 17-12-43. “Nothing in [the Act] shall preclude a superior court or county governing authority from establishing a local defense program . . . which utilizes local, private, or federal funds available to the county.” Id.

The Act, in OCGA § 17-12-38.1, does state that state funded local indigent defense programs and local indigent defense programs “shall provide legal representation for indigents in . . . all actions and proceedings within the juvenile courts of this state in which a person is entitled to legal representation under the Constitution of the United States or the Constitution and laws of the State of Georgia. . . .” (Emphasis supplied.) Nonetheless, in OCGA § 17-12-44, the Act “expressly recognizes the inherent power of the court to appoint counsel to represent indigent defendants and to order compensation and reimbursement from county funds in individual cases as the proper administration of justice may require.” McCorkle, supra at 760; Sacandy v. Walther, 262 Ga. 11, 12 (n. 4) (413 SE2d 727) (1992). Similarly, the 1992 order expressly states that the inherent power of the court to appoint counsel has not been abrogated. This power is possessed by the juvenile court as well as the superior court.

Therefore, the existence of the state-funded indigent defense program does not deprive the juvenile court of its authority to make its own appointments of attorneys who are compensated with county funds for representing indigent defendants in individual cases. As an administrative tool, the court may exercise this authority by maintaining a list of attorneys for such cases.

2. For various reasons, Echols asserts that the juvenile court abused its authority in ordering that his name be added to the list of court-appointed attorneys.

He argues that his equal protection rights have been violated because the court cited his youth as a reason for requiring him to involuntarily accept indigent cases. It appears that in making this statement, the court was merely attempting to exhort Echols to fulfill his responsibility to the public as a lawyer. The record in no way establishes that Echols is the victim of age discrimination.

Nor does the record support Echols’ assertion that the court abused its authority by not ordering that the names of other qualified attorneys in the county be placed on the list. The record shows that the court has attempted to obtain indigent defense services from a member of each law firm in the county, excusing attorneys who are either disqualified or unqualified. It does appear that there are some law firms in the county without any lawyers currently on the court-appointed list. However, it further appears that lawyers in such firms have been on the list in the past, and such firms either do not currently have any qualified lawyers or do have qualified lawyers who are willing to accept current appointments. On the other hand, it does not appear that either Echols or any other lawyer in his firm is willing to accept any current appointments; and Echols, who has never been on the court-appointed list, does not maintain that he is either disqualified or unqualified.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided August 12, 1996

Reconsideration denied August 27, 1996.

Blount, Cash, Amos & Godwin, Ernest D. Blount, for appellant.

Crumbley & Chafin, Wade M. Crumbley, for appellee.


text:
    A96A1342.
    WRIGHT v. THE STATE.
    (475 SE2d 670)
   McMurray, Presiding Judge.

Defendant Wright appeals his conviction of robbery by sudden snatching in violation of OCGA § 16-8-40 (a) (3). Held:

1. On March 24, 1995, a man wearing dark pants and a white t-shirt entered a doctor’s office waiting room. The man spoke to a receptionist, asked directions of an assistant and then as he ran out of the office snatched a purse from Audrey Rene Justice. Mrs. Justice’s brother and a phlebotomist employed in the office chased the purse snatcher. Several witnesses in the doctor’s office saw the man enter the office, commit the crime, and flee. After a short pursuit during which the pursuers lost sight of the purse snatcher, defendant was detained by police and brought to the doctor’s office in a patrol car approximately 15 minutes after the crime occurred. During a one man showup, defendant was identified by the victim and other witnesses as the purse snatcher.

Defendant’s motion in limine sought to exclude any testimony concerning or resulting from the one person showup. The denial of this motion is the basis of defendant’s first enumeration of error.

Applying the test utilized in State v. Frye, 205 Ga. App. 508, 509 (2) (422 SE2d 915) to determine whether identification evidence should be excluded and pretermitting the threshold inquiry as to whether the identification procedure was impermissibly suggestive, we address the issue of whether the procedure resulted in any substantial likelihood of irreparable misidentification. The victim and other witnesses were afforded an unobstructed view of defendant from a short distance when he entered and circled the physician’s waiting room. Defendant spoke to one of the witnesses, the doctor’s receptionist. Several of the other witnesses testified that they got a good look at him as he moved about the waiting room. Defendant was returned to the scene within such a short time after the crime that apparently no descriptions of the perpetrator were obtained from the witnesses prior to the showup. The witnesses who viewed the showup of defendant shortly after the crime were highly confident of their initial identification of defendant as the perpetrator. Under these circumstances, we conclude that there existed no substantial likelihood of misidentification. Montgomery v. State, 210 Ga. App. 147, 148 (3) (435 SE2d 510).

Furthermore, the in-court identifications of several witnesses were shown to be of “independent origin” so that this evidence would have been admissible even if there had been some taint arising from the pre-trial identification procedure. This was in addition to the testimony of three witnesses who did not participate in the showup, two of whom were positive of their in-court identification of defendant, and the third who stated that defendant looked a lot like the perpetrator but was not positive of his identification. Id. at 149 (3) (b).

Accordingly, the trial court did not err in denying the defendant’s motion in limine. The totality of the circumstances including the short length of time between the robbery and the identification, the fact that the waiting room was very small and well lighted, and the fact that the on-the-scene showup was immediately following the robbery and apprehension supports this result.

We also conclude that there was ample proof of defendant’s guilt of the crime of which he was charged, including the testimony of at least six witnesses who positively identified defendant as the perpetrator. The evidence was sufficient to satisfy the standard of review on appeal under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) in that a rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of robbery by sudden snatching.

2. The defendant contends the trial court erred in admitting a pair of shoes into evidence. A police detective testified that he remembered the shoes, which had red markings on them, as those which defendant was wearing at the time of his arrest. The officer also testified that prisoners were allowed to retain possession of their shoes and that when he picked up defendant’s clothing prior to trial he had instructed deputies to obtain defendant’s shoes from his cell. But the officer had no personal knowledge that the shoes offered in court had been in the possession of or belonged to defendant. In view of the instructions given by the officer, there is strong circumstantial evidence that the shoes then provided to the officer were defendant’s and thus admissible. Jones v. State, 190 Ga. App. 416, 417 (2) (379 SE2d 189).

Nonetheless, if the admission of the shoes into evidence was error, it was not harmful. In view of the large number of witnesses who identified defendant as the perpetrator with a high degree of confidence, it is highly unlikely that the absence of the shoes from the trial evidence would have resulted in a verdict of acquittal. Huckeba v. State, 217 Ga. App. 472, 476 (5), 477 (458 SE2d 131); Toledo v. State, 216 Ga. App. 480, 482 (5), 483 (455 SE2d 595).

Decided August 27, 1996.

W. Lee Robinson, for appellant.

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

3. The defendant also contends that the trial court erred in “failing to properly instruct the jury on the highly prejudiced nature of a one-on-one show-up.” However, defendant waived the issues which he would now argue when his trial counsel stated in response to a query by the trial court that he had no objection to the jury charge.

“The general rule in this State is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. Code Ann. § 70-207 (a) (now OCGA § 5-5-24 (a)). If, however, the trial court asks if there are (exceptions) to the charge, defense counsel must. . . state his objections or reserve the right to (except) on motion for new trial or on appeal. Jackson v. State, 246 Ga. 459 (271 SE2d 855). . . .’ Rivers v. State, 250 Ga. 303, 308 (7), 309 (298 SE2d 1). Or defendant may state his immediate objections, ‘and may also reserve the right to raise additional objections on motion for new trial or on appeal.’ McCoy v. State, 262 Ga. 699, 700 (2), 701 (425 SE2d 646). In the case sub judice, in reply to the trial court’s direct inquiry, defendant had no immediate objections to the [charge] and failed to reserve the right to raise objections to the [charge] in a subsequent motion for new trial or on appeal. Consequently, defendant has failed to preserve this enumeration for appellate review. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750). Compare Paradise v. State, 212 Ga. App. 166, 169, 170 (4) (a) (441 SE2d 497).” Lewis v. State, 215 Ga. App. 161, 163 (4), 164 (450 SE2d 448). Consequently, defendant’s enumeration of error on this issue is without merit.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: Blackburn, Judge.

text:
    A95A2655, A95A2656.
    THE STATE v. D’AURIA; and vice versa.
    (475 SE2d 678)
   Blackburn, Judge.

The State filed an accusation against Dr. Ralph D’Auria charging him with sexual battery arising out of an incident he had with one of his patients. He was tried by a jury in the State Court of DeKalb County and found guilty as charged. The trial court ordered a new trial, however, on the basis that the State failed to notify the court and the defendant of criminal charges pending against one of its similar transaction witnesses, causing the court to unnecessarily limit D’Auria’s ability to effectively cross-examine the witness. The State did not appeal the trial court’s grant of D’Auria’s motion for a new trial. Prior to the new trial, the trial court granted D’Auria’s plea in bar — double jeopardy based upon prosecutorial misconduct motion, but denied D’Auria’s plea in bar — statute of limitation motion and D’Auria’s demurrer based on the unconstitutionality of the statute motion.

In Case No. A95A2655, the State appeals the trial court’s order granting D’Auria’s plea in bar — double jeopardy based upon prosecutorial misconduct motion in which the trial court found that the State’s behavior constituted prosecutorial misconduct warranting the double jeopardy bar. In Case No. A95A2656, D’Auria cross-appeals the trial court’s denial of his plea in bar — statute of limitation motion and his demurrer based on the unconstitutionality of the statute motion.

Case No. A95A2655

The State contends that the trial court applied the wrong standard in determining that the double jeopardy bar applied. Specifically, the State contends that pretermitting the issue of whether its behavior constituted prosecutorial misconduct, the double jeopardy bar does not apply because its behavior was not aimed at subverting the protections afforded by the Double Jeopardy Clause.

“The general rule is that retrial of the defendant is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency. [Cits.]” Williams v. State, 258 Ga. 305, 311 (369 SE2d 232) (1988). “[A]ctions of the prosecutor constituting even intentional prosecutorial misconduct do not raise the bar of double jeopardy, notwithstanding the fact that the defendant was thereby deprived of due process of law, unless the prosecutor’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. [Cits.]” Id. at 312. Although intent is a question of fact for the trial court to resolve, in order for the double jeopardy bar to apply, the facts must warrant the conclusion that the State intended to secure an opportunity to retry the case. See State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41) (1987). The appellate standard of review of a grant of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion that the double jeopardy bar applied. See Beck v. State, 261 Ga. 826, 827 (412 SE2d 530) (1992).

The trial court granted D’Auria’s plea in bar solely on the basis that the State engaged in intentional prosecutorial misconduct without addressing whether or not the State had intended to cause a retrial and to subvert the defendant’s protections under the Double Jeopardy Clause. As a result, this case must be remanded for a determination by the trial court consistent with this opinion.

Decided August 28, 1996.

Ralph T. Bowden, Jr., Solicitor, Debra M. Sullivan, Walter C. Howard, Assistant Solicitors, for appellant.

Glass, McCullough, Sherrill & Harrold, Robert E. Wilson, Bryan A. Downs, Deborah L. Britt, for appellee.

Case No. A95A2656

As one of his enumerations of error, D’Auria contends that the trial court erred in denying his demurrer alleging that OCGA § 16-6-22.1 is unconstitutionally vague. This Court is without jurisdiction to decide this issue. “Where the constitutionality of a statute is drawn into question, exclusive jurisdiction is in the Supreme Court and this court will transfer such matters for consideration by that Court. 1983 Const., Art. VI, Sec. VI, Par. II (1).” Pruitt v. State, 203 Ga. App. 125, 127 (416 SE2d 524) (1992).

Because of our lack of jurisdiction as to this issue, we previously attempted to avoid bifurcation of these cases by transferring them both to the Supreme Court. The Supreme Court, however, returned both cases on the basis that the constitutional challenge did not become ripe unless and until the State prevailed in Case No. A95A2655. Because Case No. A95A2655 was remanded, Case No. A95A2656 is not ripe for review and is hereby dismissed without prejudice to defendant’s right to appeal upon the State’s prevailing in Case No. A95A2655 pursuant to the order of the Supreme Court.

Case No. A95A2655 is remanded. Case No. A95A2656 is dismissed.

McMurray, P. J., and Andrews, J., concur.


author: Smith, Judge.

text:
    A96A1140.
    MORRIS v. MORRIS.
    (475 SE2d 676)
   Smith, Judge.

In July 1993 Frieda Morris filed a complaint for domestication of a foreign judgment and modification of child support against her former husband, James Morris. On August 28, 1995, she dismissed the action without prejudice. Mr. Morris subsequently filed a motion for award of attorney fees and litigation expenses pursuant to OCGA §§ 19-6-19 (d) and 9-15-14 (b). Without entering findings illustrating conduct authorizing an award, the trial court granted the motion. Ms. Morris appeals, contending that attorney fees were erroneously granted under both statutes.

1. The trial court erred in awarding attorney fees under OCGA § 19-6-19 (d). That section provides for the award of attorney fees to the prevailing party in child support modification actions. Only a trier of fact may determine who is the prevailing party: “Although OCGA § 19-6-19 (d) gives the court discretion whether to award attorney fees to a prevailing party, it does not authorize the court to designate who is the prevailing party. That determination is made by the trier of fact.” Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673) (1989). Accord Keeler v. Keeler, 263 Ga. 151, 152 (1) (430 SE2d 5) (1993).

Here, no trier of fact ever had the opportunity to determine whether any party prevailed. Ms. Morris’s first (and only) voluntary dismissal of the action did not make Mr. Morris a prevailing party. A voluntary dismissal does not operate as an adjudication on the merits unless it is the third such dismissal. OCGA § 9-11-41 (b) and (c); Gillis v. Goodgame, 199 Ga. App. 413, 414 (2) (404 SE2d 815) (1991), rev’d on other grounds, 262 Ga. 117 (414 SE2d 197) (1992). See generally Page v. Holiday Inns, 245 Ga. 12, 13 (262 SE2d 783) (1980).

Also, Mr. Morris did not acquire prevailing party status simply because he benefitted from the dismissal. To allow a voluntary dismissal to control the identity of the prevailing party would conflict with the holdings in Shapiro and Keeler that the finder of fact must make that determination. Indeed, OCGA § 19-6-19 (d) does not “address the issue of which party is benefitted the most in the long run” Keeler, supra at 152 (1), but is directed solely to the factfinder’s decision that one party has prevailed. Id. No trier of fact — judge or jury — ever decided that Mr. Morris was the prevailing party. Consequently, inasmuch as the award was based on OCGA § 19-6-19 (d), it must be reversed.

2. In addition to awarding attorney fees pursuant to OCGA § 19-6-19 (d), the trial court’s order also recited that attorney fees were awarded under OCGA § 9-15-14 (b). Although Mr. Morris contends that the award was based primarily on Ms. Morris’s abuse of the discovery process, the trial court’s order does not contain findings of conduct that authorize an award; it therefore must be vacated. Keeler, supra, 263 Ga. at 152 (2); Porter v. Felker, 261 Ga. 421, 422 (3) (405 SE2d 31) (1991). This case is remanded with direction that the trial court vacate its order, reconsider the award of attorney fees under OCGA § 9-15-14 (b), enter appropriate findings of fact, and enter a new judgment, from which the losing party may appeal. Keeler; Porter, supra. See also Hardwick-Morrison Co. v. Mayland, 206 Ga. App. 426, 427 (425 SE2d 416) (1992).

3. Ms. Morris contends that the trial court abused its discretion in awarding attorney fees under OCGA § 9-15-14 and that the trial court erroneously awarded the full amount of attorney fees and expenses of litigation to Mr. Morris. In light of our holding in Division 2 remanding this case and directing the trial court to enter written findings of conduct authorizing an award of attorney fees, these contentions are not ripe for our review.

Decided August 28, 1996.

Beltran & Bills, Frank J. Beltran, Simone R. Siex, Ralph Perales, Charlotte K. Perrell, for appellant.

Rubin, Winter, Rapoport & Hall, Michelle B. Rapoport, for appellee.

Judgment reversed and case remanded with direction.

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


text:
    A96A1328.
    SHEPPARD v. STATE FARM FIRE & CASUALTY COMPANY.
    (475 SE2d 675)
   Smith, Judge.

Connie Sheppard was injured in an automobile collision while operating a vehicle insured by State Farm, and she elected to receive medical expense benefits under that policy. Sheppard and her husband then brought a claim against the tortfeasor and obtained a recovery under an agreement settling those claims. Pursuant to the terms of its policy, State Farm sought reimbursement from Sheppard of the amounts paid to her as medical expenses. Sheppard refused to reimburse State Farm, and State Farm then instituted this action against her. The parties filed cross-motions for partial summary judgment, taking opposite positions with regard to whether the State Farm policy provision requiring reimbursement was enforceable. The trial court granted State Farm’s motion, and this appeal ensued.

The sole issue on appeal is whether language in the medical payments provision of the State Farm policy creates an invalid assignment of a personal injury cause of action. We find that it does not, and we affirm the trial court’s grant of summary judgment to the insurer.

OCGA § 44-12-24 provides, in pertinent part, that “[a] right of action for personal torts . . . may not be assigned.” In several cases, this Court has held that policy language authorizing an insurer to recover benefits paid to an insured by bringing an action against the third party tortfeasor amounts to such an invalid assignment of a cause of action for personal injury. See Southern Gen. Ins. Co. v. Ezekiel, 213 Ga. App. 665 (445 SE2d 807) (1994); Government Employees Ins. Co. v. Hirsh, 211 Ga. App. 374 (439 SE2d 59) (1993); Wrightsman v. Hardware Dealers Mut. Fire Ins. Co., 113 Ga. App. 306 (147 SE2d 860) (1966). Other policies, however, contain language that does not authorize the insurer to bring an action directly against the tortfeasor, but merely requires an insured receiving medical payment benefits to reimburse the insurer for such payments out of any recovery the insured may obtain from the tortfeasor. In such cases, this Court has held the policy provision valid and enforceable. See Shook v. Pilot Life Ins. Co., 188 Ga. App. 714 (373 SE2d 813) (1988); Integon Gen. Ins. Corp. v. Thompson, 220 Ga. App. 631, 632 (1) (469 SE2d 346) (1996).

In this case, the policy provision provides as follows: “When we pay medical expenses under this coverage, we are entitled to be paid out of any subsequent recovery for bodily injury from a liable party or such party’s insurer the lesser of: a. what we have paid; or b. the amount by which the sum of the total recovery for bodily injury from all liable parties and what we have paid under this coverage exceeds the total amount of reasonable and necessary medical expenses the injured person incurred. The injured person shall: a. furnish us the information and assistance we need to seek a recovery; b. not make claim to that portion of the recovery that we are entitled to be paid; and c. answer truthfully all questions that we may ask. We will not seek reimbursement from payments received from a liable party or such party’s insurer by a person who has complied with all of these requirements.”

Sheppard contends that two phrases in this language render the provision in issue invalid as a prohibited assignment. We do not agree with Sheppard’s first argument that the requirement that the insured “not make claim to that portion of the recovery that we are entitled to be paid” prohibits her from making a claim against the tortfeasor for those medical expenses that have been paid by State Farm, in effect “assigning” her right to recover from the tortfeasor for those expenses to State Farm.

This strained construction distorts the obvious meaning of the language. When the provision is read in context, it is clear that the language in issue is but one of three requirements that must be met by the insured in dealing with State Farm. It defies logic to construe the middle requirement out of context and argue that it addresses a requirement to be met by the insured in seeking a recovery against the tortfeasor. Clearly, the provision contemplates that the insured has a right to bring an action against the tortfeasor to recover damages for personal injury, and that recovery of medical expenses will be a portion of that recovery. State Farm requires only that the insured reimburse it from such a recovery for those medical expenses for which it paid benefits.

Decided August 28, 1996

Robert M. Beauchamp, for appellant.

Martin, Snow, Grant & Napier, Cubbedge Snow III, for appellee.

Similarly, we do not agree with Sheppard’s argument that the language requiring the insured to furnish State Farm with the information and assistance it needs “to seek a recovery” suggests that State Farm contends it is entitled to bring a lawsuit against the tortfeasor on her behalf. Nothing in the provision so suggests. This provision is not materially different from that found in Shook, supra, to be an enforceable reimbursement provision preventing an insured from recovering twice for the same injury. The trial court did not err in granting partial summary judgment to State Farm.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


text:
    A96A1747.
    In the Interest of B. P. et al., children.
    (475 SE2d 673)
   Judge Harold R. Banke.

In this appeal from a juvenile court order terminating the parental rights to three minor children, the appellant mother enumerates a single error. Only the mother pursued this appeal.

The record and evidence presented at the parental rights termination hearing revealed the following. The Georgia Department of Family & Children Services (“DFCS”) took custody of the children in 1993. At that time, the children were aged three, two, and one. The mother, a crack addict, failed to provide care and treatment for D. P, who has sickle cell anemia, and repeatedly disappeared, leaving the children with relatives who were unable to care for them.

After the children were adjudicated deprived in May 1993, DFCS developed a reunification plan which required the mother to: (1) attend and complete a drug/alcohol treatment program; (2) regularly attend Alcoholics or Narcotics Anonymous for six months; (3) have at least two clear drug screens in six months; and (4) attend counseling if recommended by the alcohol/drug treatment program. The plan also required her to take a parenting class, have a psychological evaluation, cooperate with DFCS, and obtain a home for her children and maintain it in a safe and sanitary condition.

Two citizen review panels found that the mother failed to achieve any of these goals. Both panels recommended the termination of the mother’s parental rights if she failed to meet the plan’s goals within a certain time. The record clearly substantiates their conclusion that she achieved none of these goals, despite the extra time allowed her. For example, in the two and one-half years between the deprivation hearing and the termination hearing, the mother met with the children only four times. Two of these visits occurred by happenstance during the citizen panel review meetings. Her final visit was in December 1993. The mother sent no gifts or cards to the children. Her youngest daughter does not know who she is. In addition, she failed to attend a parenting class or to complete a drug treatment program. Held:

Based on the above-stated facts, a rational trier of fact could find clear and convincing evidence of parental misconduct and inability. In the Interest of E. B., 215 Ga. App. 326 (450 SE2d 341) (1994); OCGA § 15-11-81 (a). The mother failed to provide proper medical care, repeatedly left the children with relatives unable to care for them and disappeared. OCGA § 15-11-81 (b) (4) (A) (i) and (ii). The court was entitled to consider the parent’s past conduct in determining whether the deprivation was likely to continue. OCGA § 15-11-81 (b) (4) (A) (iii); In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). The mother was given repeated opportunities to change, but the changes never materialized. She has yet to complete a drug rehabilitation program. A rational trier of fact could have found by clear and convincing evidence that the mother failed to demonstrate the “significant progress in overcoming her substance abuse problems” among other things, which would warrant a contrary finding as to the likelihood the deprivation would continue. In the Interest of J. M. C., 201 Ga. App. at 174-175. The evidence also clearly and convincingly supports the court’s finding that had such deprivation continued, the children would have suffered serious harm. OCGA § 15-11-81 (b) (4) (A) (iv).

We observe that the mother asserted all her arguments in a single enumeration of error. “When, as here, (an) appellant asserts more than one error within a single enumeration, this court in its discretion may elect to review none, or one or more, of the errors asserted within the single enumeration. [Cits.]” Toledo v. State, 216 Ga. App. 480, 482 (4) (455 SE2d 595) (1995). Moreover, the mother failed to provide any supporting authority for the argument on the second error raised in her enumeration. See Court of Appeals Rule 27 (c) (2). Accordingly, we decline to address her contention that the juvenile court improperly terminated her parental rights without exploring whether parental resources were available to serve as placements for the children.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided August 28, 1996.

William M. Warner, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Robert G. Nardone, Dorothy V. Murphy, for appellee.


text:
    A96A1015.
    MERRITT v. THE STATE.
    (475 SE2d 684)
   Smith, Judge.

Dave Merritt was found guilty by a jury of the offenses of trafficking in cocaine and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered thereon following the denial of his motion for a new trial.

Before trial, counsel was appointed to represent Merritt. Appointed counsel filed a motion to suppress evidence. A hearing was held on the day of trial, and the court denied the motion. After that motion was denied and the State’s motion for joinder of several offenses was granted, defense counsel moved to withdraw as counsel at Merritt’s request, informing the court that Merritt was dissatisfied with his performance as counsel. Merritt requested that new counsel be appointed to represent him, but the court informed Merritt that no new counsel would be appointed and the trial would proceed. After an extensive colloquy with Merritt, the court presented Merritt with two alternatives: representation by already appointed counsel or representing himself. Merritt decided that he wished to represent himself, and the trial court then ruled that he would be permitted to do so. The court requested, however, that Merritt’s appointed counsel remain in the courtroom to assist him.

In his sole enumeration of error, Merritt complains of this ruling, contending the trial court erred in failing either to appoint new counsel or to allow him to proceed with his trial without the presence of his already appointed counsel. We do not agree.

Merritt argues that he has an unequivocal right under both the state and federal constitutions to represent himself and waive his right to counsel. Ga. Const, of 1983, Art. I, Sec. I, Par. XII; Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). This is true. It is also true that an unequivocal assertion of the right to represent oneself, when made prior to trial, also requires that the trial court hold a hearing to ensure that the right to counsel is knowingly and voluntarily waived and that the defendant understands the perils of self-representation. Id. at 836. Merritt, however, made no unequivocal demand for self-representation. In fact, he repeatedly and vociferously demanded that new counsel be appointed to represent him.

Merritt does not allege that reasonably effective assistance was not provided by appointed counsel, and the record persuades us to the contrary. Where no showing of ineffectiveness is made, a trial court’s refusal to appoint new counsel is not error. Bailey v. State, 240 Ga. 112 (239 SE2d 521) (1977). The court determined that appointed counsel provided effective assistance. The trial court’s failure to appoint new counsel was therefore not error.

Similarly, the trial court’s direction that appointed counsel stand by to assist Merritt was not error. The role of standby counsel was addressed by the United States Supreme Court in McKaskle v. Wiggins, 465 U. S. 168 (104 SC 944, 79 LE2d 122) (1984). In Wiggins, the court held that a trial court may appoint standby counsel for an accused wishing to represent himself at trial, even over the defendant’s objection, provided that standby counsel’s role is appropriately limited. Appropriate limitation is that which ensures that standby counsel is not excessively intrusive and preserves for the pro se defendant “a fair chance to present his case in his own way.” Id. at 177. Such limitation must also ensure that the jury perceives that the defendant is representing himself. Id. at 178.

Here, as in Wiggins, standby counsel’s role was appropriately limited, and the defendant’s rights were respected. First, when the trial court informed Merritt that his former counsel would remain to assist him, Merritt raised no objection to counsel’s remaining in that capacity. Second, the court ensured that Merritt was able to conduct the trial in his own way by instructing him to apportion the responsibilities of counsel as he saw fit. It is apparent from the record that Merritt did so. Although Merritt and appointed counsel shared some duties, they did so because Merritt chose that course of action. Standby counsel informed the court that he was deferring to Merritt in all respects. Third, the court carefully informed the jury that Merritt was representing himself and that counsel was there to assist him.

Contrary to Merritt’s assertion, the trial court did make a finding on the record that Merritt was competent to represent himself. Further, no merit appears in Merritt’s argument that appointed counsel acted as co-counsel with equal authority, which was held improper in Potts v. State, 259 Ga. 812 (388 SE2d 678) (1990). This is borne out by the record. Although appointed counsel questioned prospective jurors during voir dire, Merritt himself made an opening statement to the jury, cross-examined witnesses, and gave the closing argument. The court and standby counsel recognized the problem posed by the prohibition in Potts, and the record contains a careful description of counsel’s duties and status. As acknowledged on the record, it is undisputed that Merritt himself was “lead counsel” who could “take whatever advice he wishe[d] from” counsel. We find no error.

Decided August 29, 1996.

Richard O. Allen, for appellant.

Lewis R. Slaton, District Attorney, Juliette O. W. Scales, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A96A1126.
    HOBDY v. THE STATE.
    (475 SE2d 686)
   Judge Harold R. Banke.

Willie Thomas Hobdy entered a guilty plea to possession of more than one ounce of marijuana, reserving for appeal the denial of his motion to suppress. At the outset, we note that although a conditional guilty plea of this nature is no longer permitted, in this case, the trial court accepted the plea prior to our decision in Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994).

The evidence at the suppression hearing was as follows. While conducting traffic enforcement on 1-75, Henry County Police Officer Robbie Bishop noticed a vehicle which appeared to be speeding. Bishop followed the vehicle for about a half-mile calculating its speed as 77 mph in a 65 mph zone. Although Bishop had already decided to stop the vehicle for speeding, he also noticed an improper lane change. According to Bishop, both the driver and Hobdy, his passenger, appeared extremely nervous, avoided eye contact with him and gave inconsistent stories. Bishop sought and received written consent from the driver who owned the car authorizing a vehicle search. Although Bishop testified that Hobdy provided his verbal consent to the vehicle search, Hobdy denied doing so. Hobdy testified that he felt free to leave but not free to object to the search. A search of Hobdy’s gym bag revealed several packages of marijuana. The trial court determined that the officer had probable cause for the stop based on the speeding violation and concluded that the officer obtained valid consent from the driver and Hobdy. Held:

On appeal, Hobdy contends that his motion to suppress should have been granted because the stop was pretextual and the consent was coerced. A trial court’s order on a motion to suppress will not be disturbed if there is any evidence to support it, and the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). The hearing testimony does not support Hobdy’s assertion of a pretextual stop predicated on an impermissible drug courier profile because there is no evidence in the record indicating that the drug courier profile was used in making the traffic stop. The trial court’s determination that the car was stopped for speeding was not clearly erroneous. Anderson v. State, 207 Ga. App. 590, 591 (1) (428 SE2d 803) (1993).

Decided August 29, 1996.

Edea M. Caldwell, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

The officer’s testimony that Hobdy consented to the search was directly contradicted by Hobdy’s testimony. It is well settled that unless clearly erroneous, the ruling of the trial court on questions of credibility will not be disturbed on appellate review. Hamil v. State, 198 Ga. App. 869, 870 (1) (403 SE2d 828) (1991). We find no error.

Hobdy now seeks for the first time to raise several new issues regarding the search of the vehicle. He contends that his consent was not freely and voluntarily given but was coerced because he was told the vehicle would be impounded. He also argues that the search exceeded the scope of his consent. However, the motion to suppress did not allege these grounds. Nor are these issues supported by Hobdy’s testimony in which he claimed that he did not consent and was not asked to consent. Where an entirely different basis for appeal is argued in the brief than was raised at trial, we will not consider it because issues not properly raised and ruled on below cannot be raised for the first time on appeal. Ellison v. State, 216 Ga. App. 639, 641 (3) (455 SE2d 361) (1995).

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


author: Eldridge, Judge.

text:
    A96A1468.
    GRAY v. THE STATE.
    (476 SE2d 12)
   Eldridge, Judge.

At the trial the evidence showed that at approximately 11:20 p.m. on May 19, 1994, appellant, while driving a Porsche north on Riverside Drive in north Fulton County, missed an almost 90-degree curve to the right, crossed both lanes of traffic, hit the guardrail head on, passed under the rail, and plunged some 110 feet down an embankment into some woods. The Porsche left approximately 60 feet of parallel straight skid marks, which indicated that the car slid past the curve without any turning and straight into the guardrail at a right angle.

Appellant ended up in the front yard of Mr. and Mrs. D. B. Plymale. When they heard the crash, they immediately called 911 because, from long experience, they knew someone had wrecked on the severe curve above their house. They went outside and found appellant coming from the woods. While visibly shaken, appellant answered their questions coherently, rationally, and intelligibly. From observing appellant, Mr. Plymale formed the opinion that appellant had been drinking because of appellant’s slurred speech, unsteadiness on his feet, and appearance.

Officer R. S. Jamison, Fulton County Police Department, arrived on the scene within minutes after the call, checked the evidence on the roadway, and came down the driveway where he found appellant. Appellant had a minor laceration on his forehead, denied further injury except for a sprain to his right elbow, and refused medical attention. Jamison made a preliminary accident investigation to determine what had happened. Appellant admitted to having been driving but did not state when or how much he had drunk. Appellant stated that the accident occurred when he lost control of the car while attempting to avoid colliding with a car fish-tailing in front of him.

Jamison found no evidence of swerving or other evasive action by appellant and formed the opinion that appellant had been driving too fast to negotiate the bad curve. Appellant produced only a Kentucky driver’s license and no proof of insurance. He had been a resident of Georgia for about two months.

Observing a fairly strong odor of alcohol, very slurred speech, unsteady gait and balance, and glassy, watery bloodshot eyes, Officer Jamison asked appellant if he would voluntarily submit to the standardized field sobriety tests. From his training and certification, Jamison properly instructed, demonstrated, described, and conducted appellant through the alphabet recitation, one-leg stand, heel and toe, and horizontal gaze nystagmus tests. Appellant scored the maximum that would indicate alcohol impairment.

While Jamison conducted these tests, Corporal R. D. Nable of the DUI Task Force arrived and observed the tests being conducted. As a result of appellant’s poor performance on the tests, he was asked to voluntarily submit to the administering of an alco-sensor test by Nable who had been trained and certified in conducting such tests. He testified that the alco-sensor design had been approved for use in screening for alcohol consumption by the Division of Forensic Sciences (“DFS”) for the GBI and that his training to use the device had also been approved by DFS.

In describing the alco-sensor Jamison stated that it had “a little digital readout,” but he did not indicate any reading or state that appellant failed the test; he did indicate that the test result indicated positive for alcohol consumption. Nable described the machine as having a readout that is “numerical,” but he did not state any reading or indicate that appellant failed the test; he stated that the test showed positive for alcohol consumption.

Both officers stated that based upon their training, experience, and observation of appellant that his conduct, appearance, and speech as well as the test results indicated that appellant had consumed sufficient alcohol to render him less safe to operate a motor vehicle. Appellant was then arrested. At no time prior to appellant’s arrest was he advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), because he was not in custody.

1. Appellant’s first enumeration of error contends that the trial court erred in admitting evidence of the alco-sensor test where the proper foundation had not been laid and where the trial court denied appellant’s motion for mistrial or curative instructions. Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630) (1985), held that OCGA § 40-6-392 did not apply to the alco-sensor test, because such tests are not admissible as “ ‘evidence of the amount of alcohol or drug in a person’s blood ... as determined by a chemical analysis of the person’s . . . breath. . . (Emphasis omitted.) Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol. See Channell v. State, 172 Ga. App. 156 (322 SE2d 356) (1984); State v. Golden, 171 Ga. App. 27 (318 SE2d 693) (1984). While the Court approved the method of laying the foundation for testimony regarding the alco-sensor in that case, the Court did not hold that such foundation was the only permissible method to prove “that the device is of a design approved by the DFS.” Turrentine v. State, 176 Ga. App. 145, 146, supra.

Where the arresting officer testifies that the subject “failed” the alco-sensor test, this indicates a conclusion of law and fact that the blood alcohol level meets the statutory minimum for conviction. Thus, under Channell v. State, 172 Ga. App. 156, supra, the Court reversed where the arresting officer gave testimony without a foundation that the defendant “failed” the alco-sensor test. Since the test was being used to indicate the blood alcohol level instead of merely being used as a screening test, then the test had to satisfy the foundational requirements of OCGA § 40-6-392 (a) (1), which it failed to do from the evidence introduced at trial. The Court held, “[b]ecause the required foundation was not laid in the case before us, we hold that the trial court erred in admitting the officer’s testimony that the appellant ‘failed’ the roadside sobriety test which he had administered to her.” Channell v. State, 172 Ga. App. 156, 157, supra.

In Turrentine v. State, 176 Ga. App. 145, supra, the Court held that the alco-sensor did not come within the ambit of OCGA § 40-6-392, because the test did not measure the amount of alcohol or drugs in the blood but was merely a screening device to show the presence of alcohol in the body. However, to allow the officer administering the test to testify that the defendant “failed” the test, the foundation had to be laid in some fashion that the DFS standards had been satisfied for such admissibility of testimony. Accord Ronskowsky v. State, 190 Ga. App.-147, 148 (2) (378 SE2d 185) (1989).

“This court has recognized that an alco-sensor test is not evidence of the amount of alcohol in a person’s blood, but is rather a screening device to determine whether there is probable cause that a defendant is driving under the influence of alcohol. [Cits.] Although Ronskowsky v. State, [supra], affirmed the admission of the results of an alco-sensor test where the State introduced a document certifying the device had been approved by the GBI’s Division of Forensic Services, this does not mean its measurement of the amount of alcohol percentage was permitted. Ronskowsky was based on Turrentine, supra, which distinguished between the alco-sensor results, which are used to alert the officer to the presence of alcohol, and the intoximeter test, which is used to gauge the amount of alcohol. The officer in this case was permitted to testify that the test showed the presence of alcohol.” (Emphasis omitted.) Mendoza v. State, 196 Ga. App. 627, 629 (3) (396 SE2d 576) (1990). The facts set forth in this opinion do not indicate that a foundation was required to be laid for such restricted testimony regarding the test results; the better practice should be that if the officer has been trained in the standardized field sobriety tests and in the operation of field alcohol screening tests such as the alco-sensor, then the officer is competent to testify that the device has been approved by the DFS to lay the foundation for his testimony that there was a positive result for the presence of alcohol in the body, since probable cause for arrest has a less restrictive evidentiary standard for admissibility, hearsay, and secondary evidence. See Smith v. Stynchcombe, 234 Ga. 780 (218 SE2d 63) (1975); Callahan v. State, 179 Ga. App. 556, 561 (3) (347 SE2d 269) (1986); see also as to foundation, Keenan v. State, 263 Ga. 569, 571-572 (2) (436 SE2d 475) (1993); Porche v. State, 217 Ga. App. 325 (457 SE2d 578) (1995).

No foundation was required in Hunter v. State, 143 Ga. App. 541, 543 (5) (239 SE2d 212) (1977) because this involved a screening test to determine the presence of alcohol for purposes of determining probable cause to arrest for DUI. The Court held, “[t]he trial court did not err in allowing testimony on the breathalizer into evidence. At trial, the state emphasized that the test was not designed to measure the amount of alcohol in the blood but that it was used to confirm the officer’s belief that alcohol was present in the driver’s body systems. The state never attempted to rely on the breathalizer test as a measure of the defendant’s degree of intoxication. Therefore, the test was not governed by the limitations in [OCGA § 40-6-392].” Id.

We find that a proper foundation for the testimony of the officer regarding the alco-sensor test had been laid by the testimony of the officer administering the test that from his training and experience he knew that the DFS of the GBI had approved the design of the alcosensor for use in detecting the presence or absence of alcohol or drugs in the body system of a person. Therefore, the trial court did not err in admitting the testimony, denying the motion for mistrial and denying curative instructions.

Neither Officer Jamison nor Corporal Nable testified as to a numerical quantity of alcohol in appellant’s blood or that he had failed the test which would imply the blood alcohol level. Instead they testified only that appellant showed positive for the presence of alcohol in his body. Thus, there existed no prejudice within the meaning of Whiteley v. State, 188 Ga. App. 129 (372 SE2d 296) (1988); Turrentine v. State, 176 Ga. App. 145, supra. The trial court did not err.

2. The trial court’s refusal to allow the defense expert to remain in the courtroom to assist defense counsel during the State’s case and to later testify was assigned as error. The court explored with defense counsel the various reasons urged for the need for the assistance of the expert and what he would testify regarding; since the expert had been retained only 24 hours prior to trial and there were no eyewitnesses and all the investigation facts were contained in the police reports, the court in the exercise of its sound discretion excluded the defense expert from the courtroom during the presentation of the State’s witnesses over objection of the defense.

OCGA § 24-9-61 codified in part the common law rule as to sequestration of witnesses, codifying the rule only as to the witnesses of a party and not as to all witnesses. See Grig. Code 1863, § 3787. This codification created the right in one party to require all the other party’s witnesses be separated and not to communicate until the conclusion of such party’s case in chief. In contrast the common law rule provided that all witnesses for either party be separated and prohibited from communication regarding their testimony.

“The probative purpose here is to prevent one prospective witness from falsely modifying his testimony to meet that of another witness whom he has heard testify. For opposing witnesses, this measure is purely preventive, i.e., it prevents them from contriving a contradiction of the testimony heard. But for witnesses on the same side, it has additionally a most important advantage, i.e., it reveals discrepancies of detail, where witnesses have agreed on a false story but have failed to prepare on all its details.” Wigmore, A Student’s Textbook of Evidence, Foundation Press (Brooklyn 1935), § 286, p. 287; see also 75 AmJur2d, Trials, §§ 240, 241; accord Lackey v. State, 246 Ga. 331, 334-335 (5) (271 SE2d 478) (1980); Poultryland v. Anderson, 200 Ga. 549, 561-562 (2) (37 SE2d 785) (1946); Gen. Oglethorpe Hotel Co. v. Lanier, 99 Ga. App. 401, 402 (2) (108 SE2d 769) (1959).

As a matter of right a party can invoke the “rule” only as to the witnesses of the opposite party. Poultryland v. Anderson, 200 Ga. 549, supra. However, the court in the exercise of its sound discretion as an inherent power to administer justice may apply the rule to all witnesses of all parties from either direct or indirect communication to preserve the integrity of the testimony. O’Kelley v. State, 175 Ga. App. 503, 504-505 (1) (333 SE2d 838) (1985); see also Groover v. Simmons, 161 Ga. 93 (129 SE 778) (1925); Kelly v. State, 118 Ga. 329, 330 (2) (45 SE 413) (1903).

Rooks v. State, 65 Ga. 330, 331 (1880) held, “[t]he law is that ‘in all cases either party has the right to have the witnesses of the other party examined out of the hearing of each other.’ Whilst this is the rule of law upon this subject, yet it is the practice of the courts, whenever requested to have all the witnesses, both for the state and the accused, called in and sworn, and then instructed to retire beyond the limits of the court-room, and there remain without communication with any one as to what may have been sworn in the case, until they are called to the stand themselves to testify.” See also Pearley v. State, 235 Ga. 276 (219 SE2d 404) (1975).

In the broad discretion of the trial court, the court has the power, notwithstanding the statute, to permit or deny a witness to remain in the courtroom to assist counsel; a party may request but cannot demand that the court exercise its discretionary powers in regard to allowing a witness to remain in the courtroom. Id.; Jarrell v. State, 234 Ga. 410, 420-421 (6) (216 SE2d 258) (1975); City Bank of Macon v. Kent, 57 Ga. 283, 291-292 (1) (1876). Even when an expert witness would be assisted by hearing the testimony of preceding witnesses instead of answering a hypothetical question and could assist counsel in conducting the cross-examination, the grant or denial of such exemption lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of discretion. See Atlantic & Birmingham R. Co. v. Johnson, 127 Ga. 392, 399 (4) (56 SE 482) (1907); Chambers v. State, 216 Ga. App. 361, 364 (4) (454 SE2d 567) (1995); Bartell v. State, 181 Ga. App. 148 (351 SE2d 495) (1986); Blackburn v. State, 180 Ga. App. 436 (3) (349 SE2d 286) (1986).

Counsel for appellant reads too much into the dicta of Greenway v. State, 207 Ga. App. 511, 514 (428 SE2d 415) (1993), “[njonetheless, any resulting error was harmless,” referring to the denial by the trial court of the motion to permit the defense expert to remain in the courtroom during the State’s case and to testify for the defense. The trial court gave the defense a choice, either to remain in the courtroom to assist defense counsel in conducting the cross-examination and not testify or to not remain and to testify for the defense; defense counsel chose to have the expert witness testify. Absent a manifest abuse of discretion any error by the trial court would be harmless error. Pearley v. State, 235 Ga. 276, 277, supra; see also Groover v. Simmons, 161 Ga. 93, supra; Kelly v. State, 118 Ga. 329, 330 (2), supra. The only manifest abuse of discretion under these circumstances would be to refuse to apply the “rule” upon request, Poultry-land, v. Anderson, 200 Ga. 549, supra, or to exclude a witness who violated the “rule” from testifying. Pearley v. State, 235 Ga. 276, 277, supra; May v. State, 90 Ga. 793, 800 (2) (17 SE 108) (1893); Rooks v. State, 65 Ga. 330, supra. Therefore, the harmless error referred to in the opinion was the trial court’s threat to exclude the witness which did not occur, because the witness did testify.

For the foregoing reasons, the trial court did not abuse its discretion by excluding the defense expert from the courtroom during the presentation of the State’s case.

3. Appellant’s third enumeration of error is that the trial court erred in failing to direct a verdict on the DUI charge where the verdict was not supported by sufficient credible evidence.

As set forth in the statement of the case, there exists sufficient credible evidence not only to require the denial of the motion for directed verdict but also to support the jury verdict. See Mendoza v. State, 196 Ga. App. 627, supra; Merrell v. State, 192 Ga. App. 100, 101 (1) (383 SE2d 905) (1989). In an “appeal of a criminal conviction, the evidence is to be viewed ‘in the light most favorable to the prosecution’ (i.e., in the light most favorable to the jury’s determination that the defendant is guilty), not in the light most favorable to the defendant.” Adams v. State, 255 Ga. 356, 357 (338 SE2d 860) (1986). The evidence was such that a “rational trier of fact could have found proof of guilt beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Appellant’s fourth enumeration of error contends that the trial court erred in ruling that appellant was not “in custody” within the meaning of Miranda and in failing to exclude any resulting evidence.

The investigating officer did not stop or detain appellant who had wrecked his car, had refused medical attention, and who had not requested to call anyone so that he could leave the crash scene. The officers were conducting an accident investigation within the ambit of Terry v. Ohio, 392 U. S. 1, 16 (88 SC 1868, 20 LE2d 889) (1968). The officers had the right to detain appellant had he requested to leave while they completed their accident investigation. Appellant was not “in custody” within the meaning of Miranda v. Arizona, 384 U. S. 436, 476, supra; see also Keenan v. State, 263 Ga. 569, supra; Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988); Montgomery v. State, 174 Ga. App. 95, 96 (1) (329 SE2d 166) (1985); compare Hughes v. State, 259 Ga. 227, 228 (2) (a) (378 SE2d 853) (1989). Therefore, the Miranda warnings were not mandated; see Keenan v. State, 263 Ga. 569, supra. The trial court did not err in its ruling.

Decided August 29, 1996.

William C. Head, for appellant.

Paul L. Howard, Jr., Solicitor, Rhonda L. Brodsky, Deborah W. Espy, Allison L. Byrd, Assistant Solicitors, for appellee.

5. The trial court did not err in denying a curative instruction when in final argument the prosecution asked the jurors to put themselves as passengers in the Porsche while appellant drove with impaired coordination, reflexes, perception approaching a dangerous curve knowing that he had been drinking, had slurred speech and bloodshot glassy eyes that jerked with lateral tracking, and had failed the standardized field sobriety tests as well as being positive on the alco-sensor test. There had been no passengers in fact. This argument merely asked the jurors to view the facts while appellant was operating his vehicle. At no time did the prosecutor invoke the “golden rule” argument regarding placing the jurors in the position of the victim. See White v. State, 208 Ga. App. 885, 889-890 (6) (432 SE2d 562) (1993); Horne v. State, 192 Ga. App. 528 (385 SE2d 704) (1989); Wolke v. State, 181 Ga. App. 635 (353 SE2d 827) (1987).

Appellant’s counsel made an objection to this argument which was sustained by the trial court but did not request any specific curative instruction be given nor did he move for a mistrial to preserve the alleged error. Therefore, appellant waived any alleged error by failure to perfect the record so that the trial court had an opportunity to correct an error first brought to the trial court’s attention.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1653.
    JACKSON v. THE STATE.
    (475 SE2d 680)
   Eldridge, Judge.

Appellant Willie “Frog” Jackson challenges the sufficiency of the evidence to sustain his Barrow County conviction for the offense of possession of a firearm by a convicted felon. The evidence before this Court demonstrates that at the time of the offense, the appellant, a convicted felon, was the manager of a small bar in Bethlehem, Georgia. A woman the appellant knew came into the bar, along with her brother and her current boyfriend. The group had been at the bar for approximately an hour when a verbal altercation broke out between the woman and the appellant which resulted in the appellant telling the group to leave the bar; they complied. However, the appellant followed the group out into the parking lot. The verbal altercation turned physical with the appellant suffering a black eye; no weapons were involved.

Thereafter, although the fight was over, the appellant went back inside the club and got a double-barrel shotgun that appellant kept loaded behind the bar. An employee who had remained inside the bar begged the appellant to “let it go.” The appellant replied that he had “told them time and time again not to come up here, so [he will] just do what [he has] to do.” Appellant went back outside with the shotgun and pointed it at the group who had, by this time, gotten into their car and made it to the end of the driveway of the club. As appellant pulled the trigger, the employee, who had followed behind him, hit the shotgun and caused it to discharge into the air. The woman and her companions drove to a local resident’s home and called the police.

At trial, appellant claimed justification on the basis that his bar had been plagued with drug dealers. Appellant testified that the woman and her companions were drug dealers who attacked him outside the bar when appellant asked them to leave. Appellant testified that the double-barrel shotgun belonged to his brother who had left it in the bar only the week before, and that although he had never called the police prior to this incident, appellant felt there was no other method to rid himself of drug dealers but to get the shotgun. With regard to the fight, appellant testified that although the drug dealers “had done to me what they was going to do to me before I went into the club,” appellant went back into the club and returned with the double-barrel shotgun; that no one chased him into the bar; and that the alleged drug dealers were leaving the premises when he got the shotgun and fired it. Although appellant testified that at one point during the altercation he was “afraid for [his] life,” appellant emphasized that he obtained the shotgun, not to protect himself, but to make the alleged drug dealers leave. Appellant’s position was repeated by his attorney during closing argument: “[H]e’s not saying, T took this gun out in self-defense.’ He testified he didn’t see anybody with a weapon. His sole purpose in going out there with a gun was to run these people off that he didn’t feel like he could get rid of any other way.”

In his challenge to the sufficiency of the evidence, appellant concedes that the evidence presented at trial was uncontroverted that appellant, a convicted felon, was in possession of a firearm, but claims that the State failed in its burden to disprove his affirmative defense of justification. The trial court charged the jury on justification under OCGA § 16-3-20 pursuant to the appellant’s request. No objection was made to the charge; the charge is not challenged herein; and the jury was permitted to consider whether the appellant’s frustration with drug dealers justified his possession of a firearm, despite the fact that he is a convicted felon. The jury rejected appellant’s justification argument and decided the issue against appellant. See Pardue v. State, 214 Ga. App. 690 (448 SE2d 768) (1994). Viewed in a light most favorable to upholding the jury’s verdict, the evidence presented at trial was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offense of possession of a firearm by a convicted felon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 29, 1996.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A96A1736.
    LUMSDEN v. THE STATE.
    (475 SE2d 681)
   Judge Harold R. Banke.

Robert Wayne Lumsden was convicted of kidnapping with bodily injury, attempted rapé, and sexual battery. He enumerates four errors, challenging the admission of certain evidence at trial and the sufficiency of the evidence.

The evidence, viewed in the light most favorable to the verdict, shows that at approximately 7:30 a.m. on the day the crimes occurred, the victim was running her usual course from her home to a fitness center and back, in training for the Savannah marathon. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). She noticed a man walking nearby. When she returned on the same route some 35 minutes later, she noticed walking toward her an identically dressed man, whom she subsequently identified as Lumsden. The man increased his speed to a run and tackled her, knocking her down. He reached up under her sports bra and placed a hand on her breast, and then grabbed her ankles and dragged her 20 to 30 feet down a hill at the road’s edge. While the victim fiercely struggled, Lumsden flipped her onto her stomach and sat on the small of her back. When she continued to scream, he told her to shut up, that he had a knife and was going to kill her. As her screaming proceeded, he covered her mouth and nose with his hand. When Lumsden tried to gag her with a bandanna, the victim flipped over on her side, struck him several times, freed herself, and ran. The attack left the victim with a dislocated rib, gashes on her knee and arm which required over 28 stitches, and many scrapes and bruises. Using the victim’s description, police expeditiously apprehended Lumsden running on a nearby road. Held:

1. The trial court did not clearly err in finding that the State’s proffered similar transaction evidence was sufficiently similar to allow its admission. Kemp v. State, 218 Ga. App. 842, 843 (3) (463 SE2d 385) (1995). The proffered evidence was that four years before while consuming alcohol Lumsden had raped or attempted to rape a former girl friend by suddenly grabbing her ankles, pulling her to the ground, striking her, and attempting to rape her from the rear. Notwithstanding Lumsden’s argument to the contrary, this transaction was sufficiently similar to satisfy the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The facts common to both the offense at issue and the similar transaction, including the consumption of alcohol, the preference for an isolated location outdoors, the suddenness and violence of the attacks, the choice of unsuspecting females as victims, the technique of grabbing their feet or ankles and positioning them face down, and the verbal threats showed bent of mind and a common scheme or modus operandi. Everhart v. State, 209 Ga. App. 82 (1) (432 SE2d 670) (1993). The two transactions need not be identical in every respect. Id. Moreover, the rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses. Wells v. State, 208 Ga. App. 298, 303 (2) (430 SE2d 611) (1993). Thus, we cannot say that the trial court committed reversible error in implicitly finding that these facts provided a logical connection between the crimes which tended to prove the offense charged rather than merely showing Lumsden’s bad character. Johnson v. State, 242 Ga. 649, 652-653 (3) (250 SE2d 394) (1978).

2. Nor did the trial court err in denying Lumsden’s motion for mistrial after the similar transaction witness’ rambling and occasionally contradictory testimony was more equivocal than that proffered, which primarily reflected statements the witness made previously to police officers. At trial, Lumsden’s former girl friend testified that after they had broken up, but were drinking together on the trunk of her car, Lumsden suddenly attacked her by grabbing her feet. She landed on the ground where he removed her jeans and slapped her. At some point, he positioned her face down on the car seat and stood behind her, a truck interrupted, and she escaped. Her testimony about whether and where he penetrated her was inconsistent. We cannot say the trial court abused its discretion in determining that the divergence between this testimony and the proffered evidence did not warrant a mistrial. Gearin v. State, 208 Ga. App. 878, 881 (2) (432 SE2d 818) (1993). The witness’s credibility was for the jury to determine. Cole v. State, 211 Ga. App. 236, 237 (438 SE2d 694) (1993).

3. The trial court did not commit reversible error by admitting hairs found on a stump the victim testified to grabbing. The officer who collected the hairs testified that he believed they were the victim’s hairs. The State connected this evidence with the crime through testimony that the hair was found at the crime scene where the victim had grabbed the stump to stop Lumsden from dragging her further across the ground by her ankles. The existence of evidence connecting the hair and the crime scene distinguishes Cunningham v. State, 248 Ga. 835, 837 (4) (286 SE2d 427) (1982), on which Lumsden relies. The fact that the State did not perform laboratory tests to establish the donor’s identity goes to the weight of the evidence, not its relevance. See Moclaire v. State, 215 Ga. App. 360, 365 (7) (451 SE2d 68) (1994); see, e.g., Ingram v. State, 204 Ga. 164, 170 (48 SE2d 891) (1948).

4. Viewed in the light most favorable to the verdict, a rational trier of fact could find all the essential elements of the crimes of kidnapping with bodily injury, attempted rape, and sexual battery. Jackson v. Virginia, 443 U. S. at 319-320. The State proved the kidnapping charge with evidence that Lumsden dragged the victim from the street against her will and pinned her on her stomach. OCGA § 16-5-40 (kidnapping requires proof of the unauthorized abduction and holding of another against his will). Evidence that Lumsden dragged the victim over 20 feet down the embankment satisfied the asportation requirement. Lockett v. State, 217 Ga. App. 328, 329 (457 SE2d 579) (1995) (the slightest movement of the victim establishes asportation).

The State also presented sufficient evidence of attempted rape with proof that Lumsden (1) intended to have forcible and non-consensual carnal knowledge of the victim; and (2) took a substantial step toward committing rape; but (3) failed to consummate the rape. OCGA §§ 16-4-1, 16-6-1; McGinnis v. State, 183 Ga. App. 17, 18 (358 SE2d 269) (1987). The evidence of intent to rape included Lumsden’s unrelenting efforts to drag the victim to an isolated location and silence her so he could proceed, his threat to kill her, the facts that he touched her breast at the top of the embankment and straddled her at the bottom, and the similar transaction witness’ testimony. The State satisfied the substantial step requirement with proof that Lumsden tackled the victim, dragged her off the road and out of sight, and attempted to overpower her and stifle her screams with his hand and the bandanna. Only the victim’s fierce resistance prevented the consummation of the crime. This evidence is legally sufficient to uphold the verdict of attempted rape. See Helton v. State, 166 Ga. App. 662, 663 (1) (305 SE2d 592) (1983) (evidence that defendant grabbed victim and informed her she could not leave until she kissed him and did “other stuff” sufficient). The State proved sexual battery with evidence that Lumsden placed his hands under the victim’s sports bra and touched her breast without her consent. OCGA § 16-6-22.1.

Decided August 29, 1996.

Edea M. Caldwell, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J, and Andrews, J., concur.