text:
    A00A1515.
    ROBINSON v. THE STATE.
    (541 SE2d 660)
   Blackburn, Presiding Judge.

Darryl Robinson appeals, following a jury trial, from his convictions of armed robbery, aggravated battery, and two counts of aggravated assault. Robinson contends that the evidence was insufficient to support the convictions. Robinson also contends that the trial court erred by: (1) finding that the State’s explanation for striking a juror was gender-neutral; (2) limiting the scope of his examination into the details of the victim’s prior convictions; (3) excluding Robinson’s statement to an investigator; (4) admitting prior consistent statements of the victim; (5) failing to exclude a hearsay statement of Robinson’s mother to an officer; (6) failing to charge the jury regarding the credibility and weight of the testimony of a witness who had not been sequestered; and (7) failing to merge the counts of aggravated assault and aggravated battery into the count of armed robbery. For the reasons which follow, we affirm.

1. Robinson argues that the evidence was insufficient to support his convictions for armed robbery, aggravated assault with intent to rob, and aggravated assault with a deadly weapon because his co-defendant, Charles Lee Morgan, Jr., was the one who wielded the gun during the robbery. Robinson also argues that the evidence was insufficient to support his conviction for aggravated battery because Morgan struck the victim and because the evidence regarding the number and severity of lacerations sustained by the victim was conflicting.

We have held:

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia.

(Punctuation omitted.) Hagood v. State. Furthermore, although Robinson points to the conflicting testimony of various witnesses,

[c]onflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Furthermore, the testimony of a single witness is generally sufficient to establish a fact.

(Citations and punctuation omitted.) Id.

So viewed, the evidence here shows that Antwan Brown had gone to a friend’s house for a haircut. When he pulled out his money to pay for the haircut, Robinson and Morgan, who were also at the house, saw that he was carrying a lot of cash. When Brown left the house, the co-defendant demanded his money at gunpoint. Although Brown attempted to return to the house, Robinson grabbed him and dragged him off the porch. As Morgan held the gun on Brown, Robinson searched through Brown’s pockets, also demanding Brown’s money. Then, Robinson held Brown while Morgan struck him in the head with the gun, which caused Brown to sustain three lacerations on his head. After taking Brown’s money, Robinson and Morgan started to leave. When Brown tried to stop them, Morgan fired a shot at Brown.

This evidence was sufficient to support the jury’s finding that Robinson was guilty, beyond a reasonable doubt of the offenses of armed robbery, aggravated battery, and two counts of aggravated assault. See Jackson, supra.

With regard to the armed robbery and assault convictions, “[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person ... by use of an offensive weapon.” OCGA § 16-8-41 (a). To be convicted of aggravated assault, the evidence must show that the defendant assaulted: “(1) With intent to murder, to rape, or to rob; [or] (2) [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a).

Even though Robinson did not actually use a weapon here, Morgan’s use of a weapon can be attributed to him because one who intentionally aids or abets the commission of a crime by another is a party to the crime and equally guilty with the principal. OCGA § 16-2-20 (b) (3). For example, in Pryor v. State, the defendant remained in the car while his co-defendants robbed the victim at gunpoint. We held that the evidence supported the defendant’s armed robbery conviction because he aided and abetted his co-defendants by driving with them to commit the robbery. Here, Robinson aided and abetted Morgan by grabbing the victim and dragging him off the porch, searching through the victim’s pockets while Morgan held the gun on the victim, demanding his money, and holding the victim while Morgan struck him in the head with the gun.

With regard to the aggravated battery conviction, “[a] person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). As explained above, Robinson’s argument that Morgan actually struck the victim is without merit because he held the victim while Morgan struck him.

Robinson’s argument that the evidence regarding the number and severity of lacerations sustained by the victim was conflicting is equally unavailing because “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Hagood, supra. Brown, the victim, testified that he sustained three lacerations as a result of being struck on the head with a gun by the co-defendant while Robinson held him. Brown also identified photographs of the lacerations. This evidence was sufficient to support the convictions.

2. Robinson argues that the trial court erred by determining that the State’s explanation for striking a female juror (juror 43) was gender-neutral. This finding by the trial court is entitled to great deference and will be affirmed unless clearly erroneous. Herrin v. State; Gamble v. State. We find no error.

The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. Batson v. Kentucky; J. E. B. v. Alabama. We review a claim that jury strikes were based on gender under the same standards applicable to race. Jackson v. State. The party challenging the strike must make a prima facie showing that the exercise of the peremptory strike was on the basis of gender. The burden then shifts to the party exercising the strike to articulate a gender-neutral explanation for striking the juror. “The explanation need not justify a challenge for cause, but it must be neutral, related to the case to be tried, and constitute a clear and reasonably specific legitimate reason.” Herrin, supra at 357. Then, the trial court must determine whether the party challenging the strike has carried the burden of proving purposefiil discrimination. Tedder v. State; Odom v. State.

During jury selection, Robinson challenged the State’s use of its peremptory challenges, including a challenge to an alternate juror, to strike eight women. The trial court asked the State to articulate its reasons for having struck each of the eight women. The State complied. With respect to juror 43, the State asserted that the juror could not be impartial because she had a personal experience of being unduly blamed for having broken up a fight. The State reasoned that this experience was too close to the defense theory that Robinson had tried to break up the fight between Brown and Morgan and Robinson was wrongly accused of the crimes. The State informed the court that it struck a male juror for the same reason. After hearing the explanations, the trial court found that the State’s reasons were gender-neutral. With respect to juror 43, the court noted that the State struck a similarly situated male.

Because the trial court ruled on the ultimate question of intentional discrimination, we focus our analysis there and find no clear error. See Odom, supra. The State’s explanation was directly related to the case because juror 43 had experienced a situation similar to that which Robinson was articulating as a defense. Further, the State’s reason was gender-neutral and, in fact, was also used to strike a male juror.

3. Robinson contends the trial court erred by restricting his ability to delve into the details of victim Brown’s prior convictions after Brown attempted to rehabilitate his character by explaining that he had pled guilty pursuant to North Carolina v. Alford, which allows him to plead guilty while maintaining his innocence. We have held:

It is the duty of the trial court to control the trial of the case and to insure a fair trial to both sides. Sometimes this requires interference by the court with the conduct of counsel or with a witness in the trial. The trial judge has broad discretion in handling these matters and we are loath to interfere with that discretion unless it is manifestly abused by clearly demonstrated prejudice or unfairness.

(Punctuation omitted.) Najmaister v. State. The trial court did not abuse its discretion by limiting Robinson’s examination of Brown.

A witness may be impeached by introducing a certified copy of a prior conviction. Kimbrough v. State. In rebuttal of the fact of the conviction, the witness has the opportunity to explain the circumstances of the plea or conviction. Stovall v. State; Johnson v. Ray; see Woods v. State; Vincent v. State. A defendant cannot bolster his impeachment of a witness with facts underlying the witness’s prior convictions if the witness has not attempted to rehabilitate his character. Woods, supra.

In the present case, Brown was impeached by certified copies of his convictions for aggravated child molestation and aggravated sodomy. After Brown attempted to rehabilitate his character by explaining that he had entered an Alford plea, counsel for Robinson asked that he be allowed to cross-examine Brown regarding what Brown was told about the charges he was facing, why he waived his right to a jury trial, and why he decided the plea was in his best interest. The trial court allowed the line of questioning, but would not permit defense counsel to ask Brown whether he pled guilty because his counsel told him that the children would be in court to testify.

The court allowed Robinson to call the assistant district attorney who prosecuted Brown to testify. The prosecutor testified that there were three victims, two girls (one age six) and a boy (age nine) and that all three would be witnesses at trial. After Robinson asked whether there were any other witnesses, the State objected that counsel was going into the facts of the case. Defense counsel, in the presence of the jury, responded that he was trying to establish that the State in Brown’s case “was ready to prosecute, . . . ready to tell the jury about it, and this man made a plea that was in his best interest. [Brown] didn’t want to face those people in the jury box.” The court cautioned defense counsel, “I think that’s already been established in your retort to the objection. Let’s be careful, Mr. Bazemore.” Robinson argues that the court’s warning restricted his probing the details of Brown’s conviction, thus preventing him from presenting his main defense, which was that the incident between co-defendant Morgan and Brown started because Brown attempted to molest Morgan’s sister.

We find that the trial court did not abuse its discretion because the presentation of a witness’s prior convictions is allowed for impeachment purposes and should not be viewed as an independent avenue for presenting a defense. Thus, Robinson was allowed to present evidence regarding Brown’s prior convictions in order to impeach Brown only after Brown had attempted to rehabilitate his character by testifying that he had entered an Alford plea. The trial court allowed Robinson to impeach this testimony adequately. Indeed, the jury heard the charges against Brown, the ages and names of the young victims, and that they would have testified against him had he not decided to plead guilty.

4. Robinson argues that the trial court erred by excluding statements he made to police because (1) the prosecutor argued that the statements were self-serving, but did not argue that the statements were hearsay and (2) the court excluded the statements without hearing a proffer of the statements and not all of the statements were self-serving. We find no error.

Robinson’s first argument overemphasizes form over substance. Although the basis of an objection to self-serving testimony is hearsay, “[i]t is well-settled that self-serving statements made by the accused, either before or after the commission of the alleged offense, are inadmissible hearsay.” Nunez v. State.

With regard to Robinson’s second argument, the State filed a motion in limine to exclude the statements. The trial court did not grant the State’s motion, but instead took it under advisement. When the State renewed its motion at a sidebar during Robinson’s cross-examination of the police officer, the court responded: “Until he says something that supposedly [Robinson] has said, I’ll have to determine if it’s self-serving. I don’t think he’s asked so far anything that’s exculpatory.” Thus, contrary to Robinson’s assertion, the trial court did not make a wholesale ruling excluding Robinson’s statements without first determining whether they were actually self-serving.

5. Robinson contends that the trial court erred by admitting, over his hearsay objection, the testimony of three witnesses regarding statements Brown made to the police shortly after the incident. We find that to the extent the statements were inadmissible, their admission did not constitute reversible error.

“Prior consistent statements are admissible as substantive evidence when the veracity of the witness’s trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination.” Powell v. State; Woodard v. State. In this regard, “a witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination.” Id. at 320. “The erroneous admission of the witness’s hearsay statements is only reversible if it appears likely that the hearsay contributed to the guilty verdict.” Id. at 324 (4).

Three witnesses testified that Brown told the police that Robinson attacked and robbed him while he was at a house getting his hair cut. Although Brown was present at trial and, presumably, was available for cross-examination, we find no affirmative charges of recent fabrication, improper influence, or improper motive raised during cross-examination. Nonetheless, no reversible error occurred because it does not appear likely that the hearsay contributed to the guilty verdict. See Woodard, supra.

6. Robinson raises as error the trial court’s denial of his motion to have a portion of Robinson’s videotaped interview with a police detective redacted before being shown to the jury. Robinson contends that the videotape contains hearsay testimony of his mother that she did not want Robinson to take all of the blame because he did not have a gun. Robinson did not cite to any particular tape or where on the tape the statement might be found. Our independent review of the tapes did not reveal such a statement by the detective. Even assuming there was such a statement and error in the admission of the unredacted tape, we find it highly improbable that the alleged statement contributed to the verdict in light of the eyewitness testimony linking Robinson to the crime. Any alleged error was harmless. Austin v. State.

7. Robinson contends that the trial court erred by failing to charge the jury on the weight and credibility of the testimony of a witness who has not been sequestered, remaining in the courtroom during opening statements and during the presentation of the evidence. Robinson, however, has not cited to the record to support his allegation that Jackson was in the courtroom, and our review of the record finds no indication that Jackson was in the courtroom or that Robinson objected to his presence in the courtroom. “On appeal, [Robinson] has the burden ‘to affirmatively show asserted error by the record. Having failed to demonstrate support in the record for this enumeration, we find no error.’ ” Sirmans v. State.

Moreover, even assuming Jackson was present in the courtroom, the trial court did not err because Robinson did not request such a charge.

When the rule of sequestration is violated, the violation goes to the credibility rather than the admissibility of the witness’ testimony. A party’s remedy for a violation of the rule is to request the trial court to charge the jury that the violation should be considered in determining the weight and credit to be given the testimony of the witness.

(Citations omitted.) Johnson v. State.

8. Robinson argues that the trial court erred by failing to merge the aggravated assault counts with the aggravated battery count into the count of armed robbery. We disagree.

OCGA § 16-1-7 (a) limits the number of convictions and punishment imposed for the same criminal conduct:

When the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.

Id.

The offenses herein do not merge as a matter of law. See Rooks v. State (aggravated assault and armed robbery do not merge as a matter of law); Keaton v. State (aggravated battery and armed robbery do not merge as a matter of law); Malone v. State (aggravated battery and aggravated assault do not merge as a matter of law). Thus, we must consider whether the offenses merge as a matter of fact. Reeves v. State “ ‘The key question in determining whether a merger has occurred is whether the different offenses are proven with the same facts. . . . However, if the same facts are used to prove the different offenses, the different crimes merge.’” Id. See Clay v. State (no merger when victim testified to sequential crimes).

Decided October 31, 2000

Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Margaret E. Heap, Assistant District Attorney, for appellee.

In the present case, Robinson was convicted of aggravated assault with a deadly weapon, OCGA § 16-5-21 (a). The evidence supporting the conviction was the testimony that Robinson and Morgan fired the gun at Brown when he started to follow them after the robbery was completed. Robinson was convicted of aggravated battery, OCGA § 16-5-24. The evidence supporting this conviction was the testimony that Robinson beat Brown about the head causing severe lacerations which required medical attention. Robinson was also convicted of armed robbery, OCGA § 16-8-41 (a). The evidence supporting this conviction was that Robinson held Brown, demanded money, and searched Brown’s pockets while Morgan pointed a gun at Brown. Because the underlying facts used to prove each offense are different, the offenses do not merge as a matter of fact. The trial court did not err.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

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

        Hagood v. State, 228 Ga. App. 693, 694 (2) (492 SE2d 606) (1997).

        Pryor v. State, 179 Ga. App. 293 (346 SE2d 104) (1986).

        Herrin v. State, 221 Ga. App. 356 (471 SE2d 297) (1996).

        Gamble v. State, 257 Ga. 325, 326-327 (5) (357 SE2d 792) (1987).

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

         J.E.B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994).

        Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).

        Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995).

        Odom v. State, 241 Ga. App. 361-362 (2) (526 SE2d 646) (1999).

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

        Najmaister v. State, 196 Ga. App. 345, 347 (2) (396 SE2d 71) (1990).

        Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985).

        Stovall v. State, 169 Ga. App. 691, 692 (2) (314 SE2d 707) (1984).

        Johnson v. Ray, 206 Ga. App. 262, 263-264 (4) (424 SE2d 892) (1992).

        Woods v. State, 269 Ga. 60, 63 (4) (495 SE2d 282) (1998).

        Vincent v. State, 264 Ga. 234 (442 SE2d 748) (1994).

        Nunez v. State, 237 Ga. App. 808, 811 (4) (516 SE2d 357) (1999).

       Robinson challenges the admission of statements by witnesses Angela Hunter, Kenny Williams, and Detective Andre Jackson in separate enumerations of error.

        Powell a State, 271 Ga. 575, 576 (2) (522 SE2d 656) (1999).

        Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998).

        Austin v. State, 238 Ga. App. 440 (518 SE2d 918) (1999).

        Sirmans v. State, 244 Ga. App. 252, 256 (4) (534 SE2d 862) (2000).

        Johnson v. State, 258 Ga. 856, 857-858 (376 SE2d 356) (1989).

       Robinson was convicted of aggravated assault with intent to rob (Count 2 of the indictment) and aggravated assault with a deadly weapon (Count 3 of the indictment). The trial court merged Count 2 into Count 3 for sentencing.

        Rooks v. State, 238 Ga. App. 177, 179-180 (2) (518 SE2d 179) (1999).

        Keaton v. State, 193 Ga. App. 603 (388 SE2d 737) (1989).

        Malone v. State, 226 Ga. App. 185 (486 SE2d 57) (1997).

        Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).

        Clay v. State, 209 Ga. App. 266, 269 (3) (433 SE2d 377) (1993).


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A00A1668.
    In the Interest of C. C. E., a child.
    (540 SE2d 704)
   Blackburn, Presiding Judge.

Following termination of his parental rights, the father appeals, contending that the trial court violated his due process rights by denying his motion to participate in the termination hearing via telephone from Virginia, where he was incarcerated. For the reasons discussed below, we affirm.

Due process in this case requires that, prior to the termination of his parental rights, the father receive notice and an opportunity to be heard. See, e.g., Nix v. Long Mountain Resources. There can be no question that the father received notification of the termination hearing because he filed his motion to participate via telephone on June 25, 1999, in which he explicitly referenced the hearing to be held several weeks later. The father also received an adequate opportunity to be heard through his counsel, who represented him during the hearing. “Due to [his] own inability to conform to the law, [he] was unable to avail [himself] of the opportunity to appear in person; however, it is undisputed that [he] was represented in all the parental termination proceedings by counsel who appeared in [his] stead.” In the Interest of M. G. F. “[W]e know of no constitutional entitlement mandating the [father’s] right to appear personally [at the termination hearing].” Id. at 818.

Decided October 31, 2000.

James E. Wilbanks, for appellant.

Robert D. Jenkins, Sr., for appellee.

Moreover, we note that, in cases such as this, the aggrieved parent is not without means to present testimony to the trial court. For example, the father could have provided deposition or affidavit testimony if he desired to do so. Irrespective, the father cannot complain about his absence at the termination hearing here because that absence was the direct result of his criminal conduct in another state.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

        Nix v. Long Mountain Resources, 262 Ga. 506, 509 (422 SE2d 195) (1992).

        In the Interest of M. G. F., 222 Ga. App. 816, 817 (476 SE2d 100) (1996).


author: Smith, Presiding Judge.

text:
    A00A1511.
    PRINS v. THE STATE.
    (539 SE2d 236)
   Smith, Presiding Judge.

David Devilliers Prins was convicted by a jury on one count of armed robbery and one count of terroristic threats. His motion for new trial was denied, and he appeals. We find no error, and we affirm.

1. Prins challenges the sufficiency of the evidence to support his conviction for armed robbery, contending the State failed to show he used an offensive weapon.

Construed to uphold the verdict, evidence was presented that Prins entered a bank, walked toward a teller window, and handed the teller a bag along with a note. The note recited as follows: “I have a gun Put 100 50 20 in bag I will kill you I have nothing to lose.” The victim testified, and photographs obtained through use of the bank’s surveillance camera showed Prins to be wearing a zipped, hooded jacket. The victim testified that she never actually saw a weapon and that Prins did not place his hands inside his jacket or inside the bag in a manner indicating that he had a weapon. But she also testified that she could not see his right hand at the time of the robbery. She stated that she could not see what he was doing with his right hand — that he held it “to his side underneath the counter.”

The victim testified that when she first read the note, she became flushed, her eyes began watering, and she “looked at him like are you serious?” According to the victim, Prins nodded and said ‘Yeah.” The victim followed Prins’s instructions, placing over $2,000 inside the bag. Prins “snatched it,” and left the bank. She testified that she was afraid Prins was going to kill her, because of the note he had given her. According to one of the investigating police officers, based on photographs taken by use of the bank’s surveillance camera, he could not see what Prins was doing with his right hand, as it was hidden behind the counter. Prins testified, admitting he robbed the bank and gave a note to the victim telling her he had a gun. He denied actually having a gun on his person or inside his vehicle, however.

Prins contends the evidence was insufficient to convict him of armed robbery because no direct evidence was presented showing that he actually used or possessed a weapon during the robbery. We do not agree. Under OCGA § 16-8-41 (a),

[a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.

Under this statute, the presence of a weapon is necessary to a conviction for armed robbery. But the presence of such a weapon

may be established by circumstantial evidence, and a conviction for armed robbery may be sustained even though the weapon itself was neither seen nor accurately described by the victim. Some physical manifestation of a weapon is required, however, or some evidence from which the presence of a weapon may he inferred.

(Citation and punctuation omitted; emphasis supplied.) Hughes v. State, 185 Ga. App. 40, 41 (363 SE2d 336) (1987). Furthermore, “[t]he question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon.” (Citation and punctuation omitted.) Johnson v. State, 195 Ga. App. 56, 57 (1) (a) (392 SE2d 280) (1990).

While Prins may not have physically displayed a weapon in view of the victim, his note to the victim clearly and boldly recited that he had a gun and would kill her. Furthermore, some evidence was presented that one of his hands was not visible to the victim during the robbery. And we have stated that “[threatening to shoot a victim while keeping a hand concealed shows the weapon element of armed robbery. [Cits.]” Maddox v. State, 238 Ga. App. 598 (1) (521 SE2d 581) (1999). Given the photographs presented at trial, language in the note that Prins had a gun, and the victim’s testimony concerning her fear, in addition to the fact that both of Prins’s hands were not visible to the victim, we conclude that sufficient circumstantial evidence was presented authorizing the jury to conclude that the victim reasonably believed Prins had a gun. See Keller v. State, 231 Ga. App. 546-547 (1) (499 SE2d 713) (1998). See also McCluskey v. State, 211 Ga. App. 205, 206-208 (2) (438 SE2d 679) (1993); Nicholson v. State, 200 Ga. App. 413, 414 (1) (408 SE2d 487) (1991).

This case is distinguished from Bradford v. State, 223 Ga. App. 424 (477 SE2d 859) (1996) (physical precedent only), cited by Prins. In Bradford, a carjacking conviction was reversed, but no evidence was presented that defendant concealed his hand or acted as if he were holding an offensive object. The victim in that case testified she did not know where one of the appellant’s hands was located and only “possibly” thought he had a gun. Id. at 426. And as noted in the special concurrence in Bradford, positive evidence was presented that the appellant did not use a gun; he was apprehended in the act of committing the crime, and the police officer who searched him found no gun. Id. at 427-428. In light of that evidence, “the jury could not find that defendant was in possession of a firearm when he attempted to hijack the victim’s car.” (Emphasis supplied.) Id. at 428. In contrast, here, some evidence was presented from which the jury could infer the presence of a gun.

2. Prins contends reversal is required because the trial court deviated from the pattern jury charge with respect to its instruction on armed robbery. We find no merit in this contention. The trial court charged the jury as follows:

A person commits armed robbery when, with the intent to commit a theft, that person takes property of another from the person or the immediate presence of another by the use of an offensive weapon. The armed robbery statute has been interpreted to include concealed offensive weapons, provided that there is either a physical manifestation of the weapon or some evidence from which the presence of a weapon may be inferred. The question is whether the defendant’s acts created a reasonable apprehension on the part of the victim that an offensive weapon was being used, regardless of whether the victim actually saw the weapon.

Prins correctly argues that this charge did not completely track the language of the pattern jury instruction or OCGA § 16-8-41 (a), particularly because the charge failed to state that armed robbery could be accomplished through use of “any replica, article, or device having the appearance of [an offensive] weapon.” OCGA § 16-8-41 (a). Also, the court omitted the pattern charge defining “offensive weapon” as

any object, device, or instrument which, when used offensively against a person, is likely to (or gives the appearance of being likely to) or actually does result in death or serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), p. 116. The trial court then charged the jury with respect to robbery by intimidation.

We find no error in the trial court’s charge. After the jury began deliberations, in response to a request by the jurors that they be provided copies of the charges or statutes addressing armed robbery, terroristic threats, and robbery by intimidation, the trial court recharged the jury and included the statutory language concerning use of a device having the appearance of an offensive weapon initially omitted from the charge. And the additional language recited by the court concerning the reasonable apprehension on the part of the victim was a correct statement of the law. See, e.g., Turner v. State, 237 Ga. App. 642, 643 (1) (516 SE2d 343) (1999). The charge as given by the trial court clearly explained the difference between armed robbery and robbery by intimidation; contrary to Prins’s argument, the trial court did so without blurring “the distinction between reasonable apprehension for armed robbery and apprehension of danger for robbery by intimidation.” Nor do we agree with Prins that the charge “directed the jury’s attention away from the presence of a gun as required by the statute to the presence of the victim’s reasonable apprehension.” When considering the charge as a whole, as we must, we conclude that the trial court fully and accurately charged the jury with respect to the crimes with which Prins was charged.

3. Prins also contends that the trial court’s instructions on armed robbery and robbery by intimidation were sequential in nature and therefore were erroneously given. But the trial court’s instruction on robbery by intimidation substantially tracked the language of the pattern jury instruction as follows:

[I]f you find in this case all of the elements of armed robbery but you don’t find that there was an offensive weapon used but that the taking was accomplished by the accused putting the alleged victim under such fear as would create in the mind of the victim an apprehension of danger to life or limb, and if you do so find beyond a reasonable doubt, then you would be authorized to find the defendant guilty of robbery by intimidation. A person commits robbery by intimidation when, with intent to commit a theft, that person takes property of another from the person or from the immediate presence of another by putting the victim under such fear as would create in the mind of the victim an apprehension of danger to life or limb.

See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), pp. 116-117. The court later charged the jury that if it did not find Prins to be guilty beyond a reasonable doubt of armed robbery but did find him to be guilty of robbery by intimidation beyond a reasonable doubt, it would be authorized to render a verdict of guilty of robbery by intimidation.

Contrary to Prins’s contention, this instruction did not require the jury to reach a unanimous agreement with respect to the greater offense of armed robbery before reaching the lesser offense of robbery by intimidation, a procedure prohibited by Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996). See also Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998). Instead, the charge “properly informed the jury that it should first consider the offense as charged, and if it had a reasonable doubt as to the offense charged, then it could consider the lesser offense.” (Citation and punctuation omitted.) Welch v. State, 217 Ga. App. 412, 414 (3) (457 SE2d 829) (1995).

4. Prins argues that the trial court erroneously denied his motion for directed verdict on the terroristic threats charge, based on a fatal variance between the indictment and the facts proved at trial.

As Prins correctly points out, the indictment charged him with making terroristic threats by orally threatening to commit a crime of violence, murder, against the victim. But contrary to Prins’s argument, some evidence was presented from which the jury could have concluded that the victim was threatened both orally and in writing. As discussed above, evidence was presented that after the victim read the note she became visibly upset and looked at Prins as if to ask if he were serious. And according to the victim, Prins said ‘Yeah.”

Decided September 14, 2000

Reconsideration denied November 1,2000

John W. Kraus, Carl P. Greenberg, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

5. Prins argues he was denied effective assistance of counsel, in that trial counsel failed to interview and present the testimony of exculpatory witnesses whose names were provided by the State. But Prins has failed to make a proffer of any uncalled witnesses’ testimony and therefore has failed to show, as required by Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), that the outcome of his trial might have been different, but for trial counsel’s deficiency. See Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

Likewise, we cannot agree with Prins that trial counsel’s failure to present photographic and “videographic” evidence provided by the State constituted ineffective assistance of counsel. He argues that such evidence would have rebutted the State’s theory that because the victim had seen only one of Prins’s hands, he may have had a gun in the other hand. But without this evidence, we are unable to determine how, if at all, other photographs and any videotape might have affected the outcome of the case. See Goodwin, supra. Prins’s argument on this ground fails as well.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The note also indicated that the victim was not to give Prins bills bound in dye packs designed to mark stolen money.

       See generally Williams v. State, 267 Ga. 771, 773 (2) (a) (482 SE2d 288) (1997).

       Language in Prins’s note that he had a gun, as well as evidence concerning the position of his hands and the victim’s testimony that she believed Prins would kill her, supported the armed robbery charge. Prins’s note also said he would kill her and had nothing to lose, and then he verbally confirmed these statements. These additional facts supported the conviction on the terroristic threats charge.


author: Phipps, Judge.

text:
    A00A1597.
    THE STATE v. FOREHAND.
    (542 SE2d 110)
   Phipps, Judge.

After an altercation with a deputy sheriff, Dwayne Forehand was indicted for felony and misdemeanor obstruction of a law enforcement officer and simple battery. The court granted Forehand’s motion to suppress a videotape which captured part of the altercation. And, after granting Forehand’s motion to suppress evidence of the traffic stop which initiated the encounter, the trial court dismissed the indictment. The State appeals the grant of both motions and the dismissal of the indictment. We reverse the suppression of the videotape because we find that the stop was not invalid and that the probative value of the videotape is not substantially outweighed by a danger of unfair prejudice to Forehand. We reverse the suppression of evidence of the stop and the dismissal of the indictment because we find that the stop was not invalidated by lack of formal enactment of a curfew or by selective enforcement of the curfew.

On April 15, 1999, a tornado struck the town of Vienna, in Dooly County, causing extensive damage. David Musselwhite, the Chief of Police, testified at a suppression hearing that in the days following the tornado the Vienna City Council enacted a resolution which gave the local police the authority to take action to protect the public safety. According to Musselwhite, the City Council placed him in charge of directing emergency affairs for the town and adopted a resolution with his suggestion of a curfew from 7:00 p.m. to 7:00 a.m. for Vienna. To Musselwhite’s knowledge, the curfew was not reduced to writing.

Musselwhite requested additional emergency relief personnel from law enforcement agencies of other jurisdictions. Jones County Deputy Sheriff Ed Bailey was among those who went to assist in Vienna. Musselwhite informed Bailey of the curfew and told him to enforce it.

On April 18, Forehand was driving in Vienna at approximately 10:00 p.m. Bailey stopped him with the intention of telling him that he could not be on the streets at that time because of the curfew. According to Bailey, the following occurred. Forehand quickly exited his vehicle and approached Bailey in an aggressive manner. Irately, he asked Bailey, “Who are you?”, and “Do you know who I am? You had no right to stop me.” Then he yelled that he was the probate judge of Dooly County. Bailey put his hands up, and Forehand knocked them away. Bailey told Forehand that he was under arrest for “striking” and attempted to grab Forehand’s arm to handcuff him. Forehand repeatedly pushed him away, and a physical altercation ensued during which Bailey and Forehand pushed, shoved and scuffled with each other and Forehand swung and hit Bailey in the back of his head.

A backup officer arrived at the scene just before the physical altercation between Bailey and Forehand. A videocamera on that officer’s car captured a portion of the events.

The trial court suppressed the videotape and commented that it did not capture the entirety of the events between Bailey and Forehand. The court explained that “to admit it to a jury would be terribly, terribly misleading because it lacks completeness.” The court suppressed the stop, finding that no law had been enacted declaring a curfew and that no valid basis existed for the stop of Forehand. The court emphasized that there was no written evidence of the curfew and that exceptions from it apparently had been made for persons who needed to travel to and from work at a chicken factory outside the city limits.

1.

“While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.”

The State has inherent police power which “ ‘extends to the protection of the lives, health and property of the citizen, and to the preservation of good order and public morals.’ ” That power “ ‘is not subject to any definite limitations, but is coextensive with the necessities of the case and the safeguard of public interest.’ [Cits.]” The enactment of temporary curfews in emergency situations has been upheld as a legitimate use of police power although such measures curtail the movement of persons who otherwise would enjoy freedom from restriction. Here, there appears to be no dispute that a state of emergency existed in the City of Vienna and that directions to enforce a curfew formed the basis for Bailey’s stop of Forehand. In a state of emergency, the State may exercise its inherent police powers to enforce a temporary curfew even if no curfew ordinance has been formally enacted.

We view this case as factually distinguishable from cases which have held that where an ordinance is relied on, such as in the case of a stop for violation of local law, the ordinance must be pleaded and proved in the trial court, and absent a properly admitted copy of the ordinance, neither the trial court nor this court may take judicial notice of its existence. The police power to take emergency actions in the public interest is inherent and does not derive from statute. Thus, it cannot be said that a legitimate exercise of police power necessarily depends upon the existence of a formal enactment.

We find that even without a formal enactment of a curfew ordinance Bailey was acting legitimately when he stopped Forehand. The issue is whether his motives and actions at the time and under all the circumstances were reasonable and not arbitrary or harassing.

The generally articulated standard of reasonableness for a traffic stop is whether the law enforcement officer witnessed an “objective manifestation that the person stopped [was], or [was] about to be, engaged in criminal activity.” In this instance, the concern is whether there was an objective manifestation that Forehand was violating or was about to violate the emergency curfew designed to protect the public interest.

Clearly, there was such a manifestation. According to the Vienna police chief, the 7:00 p.m. to 7:00 a.m. curfew had been in effect for several days and had been highly publicized in the area. Bailey saw Forehand driving on the streets of Vienna at night several hours after the nightly curfew began. There is no evidence that Bailey’s actions in stopping Forehand were arbitrary or harassing. He had been authorized and instructed by the police chief to enforce the curfew. Contrary to the trial court’s determination, we find that Bailey acted legitimately when he stopped Forehand.

We find no evidence that the curfew was selectively enforced, which would have rendered the stop constitutionally invalid. The record discloses that Bailey initially was told that no one was allowed to be out during the curfew, that the police patrol was concentrated in residential areas, and that Bailey was instructed later to allow persons to travel to and from work at a chicken plant outside of town. The record does not disclose that others required to work in the wake of the storm were not allowed to travel for that purpose.

For these reasons, we find that the trial court erred in suppressing evidence of the stop and concomitantly dismissing the indictment.

2. The State contends that the trial court incorrectly suppressed the videotape on the ground that it did not capture the entire encounter between Bailey and Forehand. Forehand has filed a motion to dismiss the State’s appeal of this issue. He contends that the State is statutorily precluded from appealing this issue and that, therefore, this court is without jurisdiction to consider it.

Forehand correctly argues that the authority of the State to appeal an adverse ruling in a criminal case is limited to the six (formerly five) instances enumerated in OCGA § 5-7-1 and that while the State may appeal “[f]rom an order, decision, or judgment suppressing or excluding evidence illegally seized . . . ,” it may not appeal the exclusion of evidence which is based only upon some general rule of evidence.

However, in State v. Pastorini, this court held that the State may appeal an order which suppresses evidence based upon both general rules of evidence and a determination that the evidence was illegally obtained. We find Pastorini to be controlling here. Forehand moved to suppress the videotape on the grounds that the stop was unlawful, pretextual and lacking in reasonable, articulable suspicion and probable cause and that the videotape did not reflect an accurate and total depiction of the incident. The order granting the motion to suppress the videotape did not state a basis for granting it. But the order did specifically state that “there [were] no grounds for a stop, and that there was no probable cause to initiate a traffic stop of [Forehand].” Although the court commented at the conclusion of the suppression hearing that it was suppressing the videotape because it did not completely depict the encounter and would be misleading to a jury, because the court also suppressed the stop, it is apparent that the videotape also would have been suppressed as fruit of the poisonous tree. Thus, we find that the State was authorized to appeal the suppression of the videotape pursuant to OCGA § 5-7-1 (a) (4), and we deny Forehand’s motion to dismiss this portion of the appeal.

In Division l,.we found that Bailey was authorized to stop Forehand. Accordingly, the videotape could not be suppressed on the basis of an invalid stop. Next, we consider whether the videotape was properly suppressed on the ground that it did not depict the entire incident and would be misleading to a jury.

The rule in Georgia is well established that

relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. . . . [S]uch considerations are appropriately committed to the trial court’s sound exercise of discretion.

However, “the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.”

Decided October 13, 2000

Reconsideration denied November 1, 2000

Kenneth B. Hodges III, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellant.

Dodd & Dennis, Saleem D. Dennis, for appellee.

Kermit N. McManus, District Attorney, Garland, Samuel & Loeb, Donald F. Samuel, Jon W. Burton, amici curiae.

The trial court did not address the issue of whether the probative value of the videotape was substantially outweighed by a danger of unfair prejudice to Forehand. We find that the videotape has substantial probative value toward establishing the facts and nature of the physical altercation between Forehand and Bailey. On the other hand, we do not find that there is a substantial danger that Forehand would be unfairly prejudiced if the videotape is shown to a jury. There is no contention that the videotape shown to the trial court is not a videotape of the altercation. There is a contention that it does not totally and completely depict the altercation. To the extent the videotape does not capture the entire course of events between Forehand and Bailey and does not capture the audio portion of the encounter, other forms of evidence such as oral testimony may be presented. Moreover, the jury is authorized to consider any incompleteness of the videotape in determining the amount of weight and credibility to accord it. For these reasons and those presented in Division 1, we find that the videotape should not have been suppressed.

Judgment reversed.

Johnson, C. J, and Smith, P. J, concur.

       (Citations omitted.) State v. Stearns, 240 Ga. App. 806, 807 (524 SE2d 554) (1999).

        Veit v. State, 182 Ga. App. 753, 756 (2) (357 SE2d 113) (1987).

       Id.

       See Smith v. Avino, 91 F3d 105, 109 (11th Cir. 1996) and cases cited therein.

       See, e.g., In the Interest of J. T., 239 Ga. App. 756, 757-758 (521 SE2d 862) (1999) and cases cited therein.

       See State v. Armstrong, 223 Ga. App. 350, 352 (2) (477 SE2d 635) (1996).

       (Citations and punctuation omitted.) Id. at 351.

       See State v. Manos, 237 Ga. App. 699, 700 (516 SE2d 548) (1999).

       See Ritter v. State, 269 Ga. 884, 885-886 (2) (506 SE2d 857) (1998).

       (Emphasis supplied.) OCGA § 5-7-1 (a) (4).

        Berky v. State, 266 Ga. 28, 29 (463 SE2d 891) (1995); State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994).

       226 Ga. App. 260 (486 SE2d 399) (1997).

       (Citations and punctuation omitted.) DeCastro v. State, 221 Ga. App. 83, 84 (470 SE2d 748) (1996).

       (Citations and punctuation omitted.) Martin v. State, 235 Ga. App. 844, 845 (3) (510 SE2d 602) (1998).

       Forehand asserts that the copy of the videotape submitted to this court is a poor copy of the videotape shown in the trial court and does not present the beginnings of the physical altercation as clearly as that tape. The parties are not confined to showing the copy of the tape that was submitted to this court if there is a clearer copy available.

       See Harmon v. State, 224 Ga. App. 890, 894 (4) (482 SE2d 730) (1997) (videotape properly admitted despite lack of sound and zooming problems where there was no contention that it inaccurately portrayed subject events).

       See Anderson v. State, 237 Ga. App. 595, 596-597 (3) (516 SE2d 315) (1999) (“ ‘The weight and credibility of witnesses are questions for the triers of fact; that some evidence offered by a witness seems contradictory to his own or to some other’s, or incomplete or uncertain, does not automatically discredit the evidence given by that witness, or others, for it is the function of the triers of fact to determine to what evidence it gives credence. . . .’ [Cit.]”) (emphasis supplied).


text:
    A00A1729.
    JONES v. THE STATE.
    (539 SE2d 602)
   Smith, Presiding Judge.

Carlton Jones was charged with three counts of armed robbery and two counts of possession of a firearm by a convicted felon. The State dead-docketed the firearms charges. A jury found Jones guilty of two counts of armed robbery and acquitted him of the third charge. Jones’s motion for new trial was denied, and he appeals, alleging error in the trial court’s ruling that he failed to establish a prima facie case of discrimination in selecting the jury under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986); in the State’s failure to prove venue; and in the trial court’s jury instruction. Finding no error, we affirm.

1. Batson sets forth a three-step process for evaluating such challenges. First, the defendant must make a prima facie showing that the prosecutor has exercised the State’s peremptory challenges improperly on the basis of race. Second, if such a showing is made, the burden shifts to the State to provide racially neutral explanations for the strikes challenged. Only then does the trial court determine whether the defendant “has established purposeful discrimination.” Id. at 97-98.

In this case, the trial court determined that no prima facie case had been shown by Jones. Jones argues that this ruling is erroneous because the State used “a statistically significant proportion of [its] strikes to exclude African-American males from the jury.” In support, he points to the fact that four African-American men were in the 36-person venire, or 11.1 percent. The State used two of its six strikes, or 33.3 percent, on two of the four African-American men from the panel. Jones points to the 22.2 percent differential between the two figures as establishing a prima facie case. He states that this differential is substantially larger than the 15 percent differential found insufficient to prove a prima facie case in Horton v. State, 234 Ga. App. 478, 481 (1) (507 SE2d 221) (1998). But a prima facie case of purposeful discrimination is made by showing that

the totality of the relevant facts gives rise to an inference of discriminatory purpose. Even though circumstantial evidence of invidious intent may include proof of disproportionate impact, numbers alone may not establish a disproportionate exercise of strikes sufficient to raise a prima facie inference that the strikes were exercised with discriminatory intent.

(Citations and punctuation omitted.) Livingston v. State, 271 Ga. 714, 718 (524 SE2d 222) (1999). Here, as in Livingston, the jury contained a larger proportion of African-Americans than did the venire. Id.

Also, the issue of whether Jones presented a prima facie case of discriminatory intent is moot because the State presented its reasons for the challenged strikes before the trial court ruled that Jones had not made a prima facie case. Here, as in Livingston, the State offered race-neutral reasons for its challenged strikes.

One juror was struck because one of the prosecutors had participated in the prosecution of a murder case in which the victim was the juror’s brother. This juror also had an uncle who was prosecuted for attempted murder. Both of these facts present race-neutral reasons for striking the juror. Cooper v. State, 220 Ga. App. 531, 532 (469 SE2d 790) (1996) (juror’s “prior involvement with the criminal justice system, whether positive or negative, could affect” impartiality); Jenkins v. State, 269 Ga. 282, 290 (11) (498 SE2d 502) (1998) (criminal history of family member sufficiently race-neutral reason). A second juror was struck because he appeared angry and was unresponsive to the State’s questioning. These factors have also been held to constitute race-neutral reasons for striking a juror. See Jones v. State, 226 Ga. App. 428, 429-430 (1) (487 SE2d 62) (1997) (apparent hostility or inattentiveness sufficiently race-neutral).

We cannot agree with Jones that the trial court did not go on to the third step and make a determination as to whether Jones had carried his burden of showing purposeful discrimination. The trial court found that “the State has adequately articulated reasons that are race neutral for striking those two jurors.” This statement was, in fact, just such a determination. The trial court did not err.

2. Jones contends that although the State showed the crime took place within the city of Atlanta, this was insufficient proof of venue in Fulton County. We do not agree.

Because it is presumed that the officer acted within his territorial jurisdiction, Jones concedes that the State showed that the crimes occurred in the city of Atlanta. Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998). He argues, however, that this did not suffice because not all of Atlanta is in Fulton County, neither victim testified that the armed robbery occurred in Fulton County, and the officer’s testimony to that effect was “hearsay.”

The investigating officer, employed by the Atlanta Police Department, testified that he responded to the initial call, that he interviewed both victims at the scene, and that they described the armed robbery at that location. The officer testified this occurred in Fulton County. Contrary to Jones’s argument, although the officer did not witness the crime, his testimony was not hearsay. The victims testified that the crime took place at a certain location. The officer simply testified that the location identified by the victims is in Fulton County. This established venue by direct testimony.

Decided September 22, 2000

Reconsideration denied November 1,2000

Steven E. Phillips, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anna E. Green, Assistant District Attorneys, for appellee.

3. Jones maintains the trial court’s jury charge erroneously usurped the jurors’ right to determine for themselves the credibility of witnesses, violating his due process rights under the United States and Georgia Constitutions and OCGA § 24-9-25. The charge at issue instructed the jury:

If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony unless it is corroborated by other credible testimony and the credit to be given to the balance of the testimony of the witness would be for you, the jury, to determine.

The problem Jones alludes to was highlighted in James v. State, 180 Ga. App. 7 (348 SE2d 502) (1986). The jury alone has the right to determine for itself the credibility of any witness, even if it finds the witness has been “successfully impeached.” Id. at 9-10 (4). Even when isolated, however, the instruction here is not error because, unlike James, the judge did not instruct the jury that it must disregard the testimony of any witness. The word “may” is permissive, rather than mandatory. See In the Interest of K. M. L., 237 Ga. App. 662, 663-664 (2) (516 SE2d 363) (1999).

In addition, the charge “must be read in conjunction with the entire jury instruction and provides no cause for reversal if the court’s instruction in its entirety makes it plain that the jury is the sole judge of witness credibility. Such was the case here.” Berry v. State, 267 Ga. 476, 480 (4) (c) (480 SE2d 32) (1997). Here, the court’s charge repeatedly stated clearly that matters of the credibility of witnesses were to be decided by the jury alone. When the charge is considered as a whole, we find no error requiring reversal. James, supra.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Andrews, Presiding Judge.

text:
    A00A1296.
    HAMEEN et al. v. THE STATE.
    (541 SE2d 668)
   Andrews, Presiding Judge.

Yusef Beail Harneen, Abdul Rahman Harneen, and Randolph Scales, Jr. appeal from the judgments entered on their convictions after a bench trial preceded by denial of their motion to suppress. They contend, and we agree, that the initial stop of their vehicle was unconstitutional.

1. Considering the evidence from both the motion to suppress hearing and the bench trial, Holmes v. State, 222 Ga. App. 642, 643 (476 SE2d 37) (1996), the facts were that, on April 16, 1999, Columbia County Deputy Sheriffs Redman and Rankin were on routine patrol westbound on Interstate 20 outside Augusta. A black 1992 Mazda 626 bearing a South Carolina tag was proceeding in the same direction. Deputy Redman noticed that the window tint of the car was “very dark.” That was the only potential traffic violation noted by him, and the deputies proceeded to follow the car as it exited the interstate. Redman activated his blue lights and pulled the car over, intending to test the windows’ tint.

We need not consider events after this point as our inquiry is solely whether, under these circumstances, Deputy Redman had a reasonable suspicion to believe a traffic offense had occurred under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968); Thomason v. State, 268 Ga. 298 (486 SE2d 861) (1997).

OCGA § 40-8-73.1 (b) provides, in material part, that

after January 1, 1990, it shall be unlawful for any resident person to operate a motor vehicle in this state: ... (2) Which has material and glazing applied or affixed to the rear windshield or the side or door windows, which material and glazing when so applied or affixed reduce light transmission through the windshield or window to less than 32 percent or increase light reflectance to more than 20 percent.

(Emphasis supplied.)

Subsection (c) (7) of that statute provides that, in addition to seven other exclusions, the provisions of subsection (b) “shall not apply to: . . . Any motor vehicle not registered in this state.”

Therefore, it cannot be disputed that, under this statute, there was no probable cause for these officers to believe that the driver was violating it and no basis for the stop on this ground. Neither the fact that Redman was unaware that the statute did not apply to out-of-state residents nor that he believed some federal statute, which he was unable to specify, controlled is of any avail in this analysis. All citizens, including law enforcement officers, are presumed to know the law, and their ignorance of it is no excuse. OCGA § 1-3-6; Grisson v. State, 237 Ga. App. 559, 561 (1) (515 SE2d 857) (1999).

Decided November 1, 2000.

Paul W. David, Charles H. S. Lyons III, for appellants.

Daniel J. Craig, District Attorney, Michael S. Carlson, Charles R. Sheppard, Assistant District Attorneys, for appellee.

During the bench trial, however, the State attempted to present additional facts which would have justified the stop as an investigative one regarding transportation of drugs. Redman testified that persons using drugs attempt to hide this by using illegally tinted windows. Under Terry, supra, however, an investigative stop must be supported by “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” (Citation and punctuation omitted; emphasis supplied.) Shorter v. State, 239 Ga. App. 625, 626 (1) (521 SE2d 684) (1999). The inference that all persons driving cars with illegally tinted windows are drug users or dealers is not such a rational inference. See Montero v. State, 245 Ga. App. 181, 183 (537 SE2d 429) (2000); Shorter, supra; Jackson v. State, 236 Ga. App. 492, 494 (1) (512 SE2d 24) (1999).

The motion to suppress should have been granted.

2. Our decision in Division 1 renders moot the remaining enumerations of error.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       Yusef Harneen, charged with possession of marijuana with intent to distribute, was found guilty of felony possession of marijuana; Abdul Harneen was found not guilty of window tint violation; and Abdul Harneen and Scales were found guilty of misdemeanor possession of marijuana.

       Although the State argued at the motion to suppress hearing that sometimes tags will be illegally switched to hide illicit activities, there was no evidence presented to this effect. Nor will this Court, as requested by the State on appeal, take judicial notice of this fact.


text:
    A00A1575.
    A00A1576.
    MOORE et al. v. ECI MANAGEMENT et al. MOORE et al. v. SEARS, ROEBUCK & COMPANY et al.
    (542 SE2d 115)
   Blackburn, Presiding Judge.

On September 13, 1996, Clifford Moore was killed by electrocution while installing a stackable washer/dryer unit in an apartment complex. Following Clifford’s death, his parents, Janie and Herbert Moore (the Moores), filed premises liability claims against Concept 21 Apartments, the complex where the accident occurred, and ECI Management, the manager and owner of the complex, for the wrongful death of their son. The Moores also sued Sears, Roebuck & Company, the seller of the washer/dryer, and Whirlpool Corporation, the manufacturer of the washer/dryer, for selling and manufacturing a defective product. All of the defendants moved for summary judgment, which the trial court granted. In appeals which have been consolidated herein for review, the Moores contend that issues of fact remain which preclude summary judgment.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that, around June 1994, Clifford began working for Adams Transfer & Storage, a company employed by Sears to deliver and install appliances sold by it. After a brief training period, Clifford delivered and installed appliances for Adams Transfer each week, and he installed approximately 75 stack-able washer/dryer units prior to his death. On September 13, 1996, Clifford was dispatched to Concept 21 Apartments to install four washer/dryer units. That day, Clifford installed three identical units in three identical apartments before the accident occurred. With regard to the unit in question, the record shows that Clifford failed to turn the electricity off before the installation, and he improperly wired the power cord for the unit to the terminal block located on the back of the washer/dryer. As a result of the reversed connections, once the power cord was plugged in, the frame of the washer/dryer became electrically charged. Clifford then created an electrical circuit between the washer/dryer unit and the panel board on the wall when his body touched both surfaces. Electricity flowed through Clifford Moore’s body, thereby killing him.

Case No. A00A1575

The Moores contend that ECI and Concept 21 Apartments should be held liable for the wrongful death of their son on the basis of premises liability. Citing Occupational Safety & Health Administration regulations and the National Electric Code, the Moores contend that the alcove in which the washer/dryer unit was installed created a dangerous working environment which caused their son’s death, arguing that: (1) the area was inadequately illuminated and provided inadequate work space and (2) there was inadequate clearance space around the electrical panel board.

The general rationale for the imposition of premises liability has been set forth as follows:

One who owns or occupies land and[,] “by express or implied invitation, induces or leads others to come upon his premise for any lawful purpose! ] ... is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. While not an insurer of the invitee’s safety, the owner/occupier is required to exercise ordinary care to protect the invitee from unreasonable risks of harm of which the owner/occupier has superior knowledge. The owner/occupier owes persons invited to enter the premises a duty of ordinary care to have the premises in a reasonably safe condition and not to expose the invitees to unreasonable risk or to lead them into a dangerous trap. The owner/occupier is not required to warrant the safety of all persons from all things, but to exercise the diligence toward making the premises safe that a good business person is accustomed to use in such matters.

(Citations omitted.) Robinson v. Kroger Co.

The general rule, however, is that a landowner is not liable for injuries to an invitee arising from a patent defect on the premises preexisting the arrival of the invitee and of which the invitee knew or had the means of knowing equal to the landowner. The true ground of liability is the landowner’s superior knowledge of the perilous condition and the danger therefrom to persons coming upon the property. It is when the perilous condition is known to the owner and not known to the person injured that a recovery is permitted.

(Punctuation omitted.) Horney v. Panter.

In this case, even if we assume that the alcove exhibited the problems claimed by the Moores, neither Concept 21 Apartments nor ECI had superior knowledge of these defects. It is undisputed that, prior to installing the fatal washer/dryer unit, Clifford installed three others in identical alcoves. Therefore, Clifford was well acquainted with the alcove in which the washer/dryer was installed and had, at least, equal knowledge of any defects therein. See Wood v. Winn-Dixie Stores.

In the instant case, there was no breach of the duty to keep the premises safe for invitees because there is no assertion of the existence of any defects or conditions which were in the nature of hidden dangers, traps, and the like, such that they would not be known to appellant and would not be observed by him in the exercise of ordinary care. [Concept 21 Apartments and ECI] met [their] burden on summary judgment of showing that [they] had no superior knowledge of any defect of which [they] should have warned, or [were] under the duty to warn, [Clifford] as a part of [their] ordinary diligence. Here, [Clifford] was aware that... a danger of electrical shock was present.

(Citations, punctuation and emphasis omitted.) Panter, supra.

Moreover, from the facts of this case, it does not appear that the working space was the cause of this accident. The undisputed fact is that Clifford miswired the power cord to the unit. Therefore, the proximate cause of this accident was the miswiring, not the work space.

Case No. A00A1576

The Moores also filed suit against Sears and Whirlpool for selling and manufacturing a defective product. Specifically, the Moores contend that: (1) Whirlpool manufactured and designed a defective washer/dryer unit, thereby subjecting it to strict liability under OCGA § 51-1-11; (2) Sears failed to provide sufficient warnings regarding the dangerous nature of the washer/dryer unit; and (3) Sears did not properly train Clifford to install the washer/dryer unit.

1. With regard to the strict liability claim against Whirlpool, the Moores contend that: (1) Whirlpool should have required an alternatively designed power cord, and (2) the power cord should have been attached to the washer/dryer unit by the manufacturer.

OCGA § 51-1-11 (b) (1) provides:

The manufacturer of any personal property sold as new property directly or through a dealer or any other person shall be liable in tort, irrespective of privity, to any natural person who may use, consume, or reasonably be affected by the property and who suffers injury to his person or property because the property when sold by the manufacturer was not merchantable and reasonably suited to the use intended, and its condition when sold is the proximate cause of the injury sustained.

As an initial matter, we must point out that, while Whirlpool manufactured the washer/dryer unit in question, it did not manufacture the power cord. The power cord was manufactured by Triangle Wire & Cable, Inc., against which the Moores have brought no claim. Therefore, to the extent that the Moores claim that the power cord was defective, their suit would lie against Triangle Wire, not Whirlpool.

The Moores contend that Whirlpool defectively designed the washer/dryer unit by failing to place a rejection feature in the terminal block to prevent miswiring. The efficacy of a product liability claim is determined by employing the risk-utility analysis set forth in Banks v. ICI Americas.

In Banks, the Supreme Court rejected the proposition that a product is not defective where it is “reasonably suited for its intended purpose and where the presence or absence of a design feature (does) not prevent the product from functioning properly in its intended use.” (Punctuation omitted.) Banks, supra at 733 (1), overruling Mann v. Coast Catamaran Corp. The court instead adopted a “risk-utility” analysis to be used in evaluating design defect cases, “whereby the risks inherent in a product design are weighed against the utility or benefit derived from the product.” Banks, supra at 734 (1). The court identified several factors relevant to such an analysis, including “the usefulness of the product; the gravity and severity of the danger posed by the design; the likelihood of that danger; the avoidability of the danger, i.e., the user’s knowledge of the product, publicity surrounding the danger, or the efficacy of warnings, as well as common knowledge and the expectation of danger; the user’s ability to avoid danger; the state of the art at the time the product is manufactured; the ability to eliminate danger without impairing the usefulness of the product or making it too expensive; . . . the feasibility of spreading the loss in the setting of the product’s price or by purchasing insurance [;] the feasibility of an alternative design; the availability of an effective substitute for the product which meets the same need but is safer; the financial cost of the improved design; and the adverse effects from the alternative.”

Bodymasters Sports Indus. v. Wimberly.

(With regard to these factors, there can be no question regarding the utility of a washer/dryer or the inherent and obvious danger it poses of electrical shock, like all electronic appliances. Likewise, there is no doubt that Clifford, an experienced installer, should have been well aware of the danger of electrocution, about which the installation instructions accompanying the unit warned. There is evidence that Clifford had been trained to attach the power cord properly in an open space prior to plugging in the power cord, and, if these instructions had been followed, the danger posed to him could have easily been avoided.

Furthermore, contrary to the Moores’ vociferous arguments otherwise, the evidence shows that the washer/dryer unit was state of the art at the time that it was sold. The Moores contend that the unit should have been sold either with the power cord pre-attached or with a rejection feature on the terminal block which would prevent miswiring. The Moores’ own expert, however, testified that it was an industry custom to leave the power cord unattached because some buildings require three-prong power cords and some require four-prong. This expert further stated that no manufacturers use a rejection feature on their appliances, and he was unaware of any studies regarding the feasibility of this proposed design feature. Based on this evidence, the trial court did not err in granting summary judgment.

And, again, we must point out that the direct cause of the accident in this case was the miswiring of the power cord.

2. In the alternative, the Moores contend that Whirlpool and Sears were negligent in their design and sale of the washer/dryer unit, arguing, among other things, that there was a failure to adequately warn about the danger of electrocution.

Georgia law has long recognized (a distinction) between negligence and strict liability theories of liability. Banks v. ICI Americas, [supra at 735, n. 3] and cits. These are separate and distinct claims arising from different duties owed by the manufacturer to consumers. The distinction between these causes of action reflects the different duties that devolve upon manufacturers. While a manufacturer has a duty to exercise reasonable care in manufacturing its products so as to make products that are reasonably safe for intended or foreseeable uses, the manufacturer of a product which, to its actual or constructive knowledge, involves danger to users, has a duty to give warning of such danger. Breach of these different duties hence gives rise to separate and distinct claims. (Citations and punctuation omitted.) Chrysler Corp. v. Batten. Zeigler v. Clowhite Co. Thus, a duty to warn can arise even if a product is not defective.

(Punctuation omitted.) Battersby v. Boyer. An open and obvious danger no longer alone bars design defect claims in Georgia, but may bar “failure to warn” claims. See Ogletree v. Navistar Intl. Transp. Corp.

A product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handlingt,] the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use[J he may be required to give adequate warning of the danger [,] and a product sold without such warning is in a defective condition. However, there is no duty resting upon a manufacturer or seller to warn of a product-connected danger which is obvious or generally known. The same rule applies where it appears that the person using the product should know of the danger, or should in using the product discover the danger. Whether a duty to warn exists thus depends upon [the] foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible of summary adjudication and should be resolved by a trial in the ordinary manner.

Decided November 1, 2000

John M. Clark, Eric E. Wyatt, for appellants.

Carter & Ansley, Keith L. Lindsay, for appellees (case no. A00A1575).

Nall & Miller, Michael D. Hostetter, George R. Neuhauser, for appellees (case no. A00A1576).

(Citations and punctuation omitted.) Yaeger v. Stith Equip. Co. See also Zeigler v. Clowhite Co., supra.

The danger of electrocution from miswiring an electrical appliance should be both open and obvious to an experienced installer. Therefore, at the outset, the trial court did not err in granting summary judgment on the Moores’ duty to warn claim. Moreover, even if the danger was not open and obvious, the Moores’ own expert reviewed the warnings accompanying the washer/dryer unit and found them to be adequate.

3. Finally, the Moores argue that Clifford’s miswiring of the washer/dryer unit resulted from inadequate training from Sears. This contention lacks merit for several reasons. First, the evidence shows that Clifford, in fact, knew how to properly install the washer/ dryer unit in question. He had installed three directly before installing the unit which caused his death. Second, there is no evidence supporting a finding that Sears was responsible for the ongoing training of installers employed by Adams Transfer. Although Sears did conduct a training class two weeks before Clifford was hired, it was not invited back to Adams Transfer to conduct any more classes. Nor is there any evidence of a requirement to do so. As such, there is no evidence to support the Moores’ contention that Sears was obligated to train Clifford, and the defendants’ motion for summary judgment with regard to this claim was properly granted.

Judgments affirmed.

Eldridge and Barnes, JJ, concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Robinson v. Kroger Co., 268 Ga. 735, 740 (1) (493 SE2d 403) (1997).

        Horney v. Panter, 204 Ga. App. 474, 477 (3) (420 SE2d 8) (1992).

        Wood v. Winn-Dixie Stores, 244 Ga. App. 187 (534 SE2d 556) (2000).

        Banks v. ICI Americas, 264 Ga. 732 (450 SE2d 671) (1994).

        Mann v. Coast Catamaran Corp., 254 Ga. 201 (326 SE2d 436) (1985).

        Bodymasters Sports Indus. v. Wimberly, 232 Ga. App. 170, 172 (501 SE2d 556) (1998).

        Chrysler Corp. v. Batten, 264 Ga. 723, 724 (1) (450 SE2d 208) (1994).

        Zeigler v. Clowhite Co., 234 Ga. App. 627, 629 (2) (507 SE2d 182) (1998).

        Battersby v. Boyer, 241 Ga. App. 115, 117 (3) (526 SE2d 159) (1999).

        Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443, 446 (500 SE2d 570) (1998).

        Yaeger v. Stith Equip. Co., 177 Ga. App. 835, 836 (341 SE2d 492) (1986).


text:
    A00A1928.
    BERRY et al. v. HAMILTON et al.
    (541 SE2d 428)
   Andrews, Presiding Judge.

Lezlie Berry, the administrator of Wanda Martin’s estate, and Martin’s husband, Irvin Royer, and two children (Berry) appeal from the trial court’s grant of summary judgment to defendant Robert Hamilton and John Doe drivers one and two on Berry’s complaint for Martin’s wrongful death. Because Berry has produced no evidence sufficient to raise a question of fact as to whether Hamilton or the John Doe drivers were the proximate cause of Martin’s death or that Hamilton or either of the John Doe drivers was negligent, we affirm.

This case arose when Martin was riding her motorcycle on Interstate 285 at around 2:00 a.m. At some point, Martin fell off her motorcycle and was killed, either by the fall or after being struck by a passing car or cars. At 2:23 a.m., someone called 911 on a mobile phone and told the operator that there was a motorcycle on the side of the roadway with lights flashing but she did not see a rider. Sometime after this call, Hamilton was driving past the accident scene when he felt his right wheel go up and over something, but did not see what he hit. Hamilton drove to the next exit and called 911. The police dispatcher told him there had been a wreck and he should go back to the scene of the accident. After officers arrived at the scene, they saw two other cars drive over Martin’s body before they could stop traffic.

Berry, the administrator of Martin’s estate, and Martin’s husband, Royer, sued both Hamilton and the two John Doe drivers for wrongful death. The court granted summary judgment to all defendants, and this appeal followed.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risk of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty.

(Punctuation omitted.) Tuggle v. Helms, 231 Ga. App. 899, 901 (499 SE2d 365) (1998). The mere fact that an accident happened and a plaintiff was injured affords no basis for recovery unless the plaintiff carries her burden of proof and shows that the accident was caused by specific acts of negligence of the defendant. Cromer v. Hodges, 216 Ga. App. 548 (455 SE2d 94) (1995).

In this case, there is no evidence that either Hamilton or either of the John Doe drivers proximately caused Martin’s death or that Hamilton or either of the John Doe drivers was negligent. No eyewitness to Martin’s fall from her motorcycle came forward. In addition, it is unclear how long Martin remained in the roadway after she fell off the motorcycle and before Hamilton ran over her. The investigating officer stated that when he arrived on the scene, the motorcycle was in the far right-hand lane and Martin’s body was on the line between the far left-hand lane and the lane next to it. The officer said that it had been raining earlier and was still raining when officers first arrived at the scene and Martin was wearing a black leather jacket, blue jeans, black socks and black boots. The officer testified that he knew of three vehicles that struck Martin and could not say if other vehicles struck her before officers arrived. He also stated that it was apparent from the accident scene that Martin’s body had traveled some 160 feet down the roadway at some point after falling from the motorcycle. The officer did testify that the motorcycle was not severely damaged, but also stated that he had no way of knowing whether Martin was alive when she was struck by any of the three known vehicles.

At his deposition, Hamilton testified that it was raining that night and he was traveling under the speed limit because of the rain. His unrefuted testimony is that because of the rain and Martin’s dark clothing, he never saw her in the roadway. In addition, because there was a fatality involved, Hamilton agreed to a blood test which was negative for alcohol and drugs. The only testimony in the record about the John Doe drivers was that two cars were seen running over the body after officers arrived and there was no evidence that they were violating any traffic laws or failing to use due care.

The medical examiner testified that Martin “could have died as a result of striking the roadway, she could have died as a result of being struck by multiple vehicles. Any of those things could have caused her injuries.” The doctor stated she had multiple injuries which were life threatening and it was impossible to know in which order she received the injuries. When asked if Martin could have survived the fall off the motorcycle, the doctor replied that anything was possible. For instance, if her speed was five mph, she could have survived; if her speed was sixty mph, in all likelihood, she would not survive.

Decided November 1, 2000.

James Brantley, for appellants.

Harper, Waldon & Craig, Thomas D. Harper, Downey & Cleveland, Joseph C. Parker, for appellees.

Berry argues on appeal that there was circumstantial evidence that the court ignored in granting defendants’ motion for summary judgment. She claims that the officer’s testimony that the motorcycle was only minimally damaged and the medical examiner’s testimony that Martin could have survived a fall from her motorcycle are enough to raise a reasonable inference that Martin was alive when Hamilton or the John Doe drivers struck her. We disagree.

“When a party is relying on inferences to prove a point, not only must those inferences tend in some proximate degree to establish the conclusion sought, but must also render less probable all inconsistent conclusions.” Page v. Atlanta Center, 219 Ga. App. 422, 424 (465 SE2d 456) (1995). The circumstantial evidence must be sufficient to establish a reasonable inference that Hamilton or the John Doe drivers caused Martin’s death. If it raises only a mere conjecture as to how she died, there can be no recovery. Id.

There is no evidence that Hamilton or the John Doe drivers were negligent. Indeed, the undisputed evidence is that Hamilton was driving within the speed limit and because of the rain and Martin’s dark clothing, he was unable to see her lying in the roadway.

There is also no evidence that Hamilton or the John Doe drivers were the proximate cause of Martin’s death. The doctor testified that if Martin was traveling 60 mph, she probably did not survive the fall from the motorcycle. Even if Berry could raise a reasonable inference that Martin survived the fall, there is no evidence that Martin was still alive when Hamilton or the John Doe drivers drove over her. See Cromer, supra; Tuggle, supra. Therefore, the trial court did not err in granting defendants’ motion for summary judgment.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Barnes, Judge.

text:
    A00A2073.
    AUSTIN v. THE STATE.
    (540 SE2d 710)
   Barnes, Judge.

Hughdonn Austin appeals his conviction of cruelty to a child, alleging that the admission of evidence regarding a similar transaction of which he had been previously acquitted constitutes reversible error. He also argues that the trial court erred in failing, sua sponte, to give a charge on accident. Finding no error, we affirm.

Construed to support the verdict, the evidence showed that Austin’s son came to day care on March 3, 1999, with a three-inch burn on his arm and a large bruise or mark on his forehead. His teacher testified that the child, who was four, said his father had hit him with a belt, and that he got burned when he was hit with a hot comb. The day care manager testified that the child said he got the mark on his forehead because his daddy hit him with a broom, but that his cousin had burned his arm. Two days earlier, a teacher’s assistant had brought the child to her because he had welts on his face that looked like fingerprints, which he also said were caused by his cousin. Because this was the second incident of marks on the child, the manager contacted the Department of Family & Children Services to investigate.

The DFACS investigator testified that when she first met the child, he was very verbal and made good eye contact. When she asked him about the “boo boo” on his forehead, he got very nervous and climbed in and out of his chair. At first, he said he fell outside, but then when asked where he had fallen, he said his dad had hit him. When first asked about the burn, he said his cousin burned him at his grandmother’s with something that you use on your hair that is hot, but later in the conversation said his cousin did not burn him, his father did. Then he said his teacher had made the marks on his face earlier that week, but when the teacher came into the interview, he said, no, his father did it. He then said he told his mother about it and whispered to the interviewer, “My mom said nobody hit me and nobody burned me,” and told him to say his cousin did it.

The DFACS investigator further testified that, when the mother came in for an interview, she initially said she did not know how the child had been injured. When the investigator told the mother that the child said his father had hit him, the mother began crying and said that was exactly what happened regarding the forehead injury.

A Clayton County detective testified that he interviewed the child, who said his father had hit him in the head with a broomstick and burned his arm with a curling iron. He interviewed the mother, who said the child told her the same thing. She admitted she told her son not to say anything to anyone, because she did not want the child taken away. Finally, the detective interviewed the defendant, who admitted “tapping” his son in the head with a broomstick and spanking him with a belt. While he was spanking him, the child wrenched free and fell to the floor, banging his head on the carpet. The detective testified that the father told him he did not have a short temper, “but for some reason, his son brings the worse [sic] out of him, and this is why he retaliated the way he did.”

The mother testified that she said what she did to the detective only because she “felt like he was telling me, if you don’t say that Hughdonn Austin did this, we will put you in jail also.” She thought she had noticed the bump and “likely” asked him who did it, but did not think he ever told her that it was his father. Austin testified that he only tapped the child on the head with the broom handle to get his attention, but not hard enough to make him cry out. The child still would not clean up his room, so Austin “whipped him with my belt and I grabbed him by the hand and was spanking him and he broke loose from me and his head hit the rug and probably caused that rug burn on his head.” He first saw the child’s burned arm while he was whipping him, but did not ask about it because he was “temporarily frustrated because [the child] wasn’t cleaning his room.” Austin did not treat the burn or tell the child’s mother or grandmother about it.

1. Austin argues that the trial court erred by admitting testimony of an alleged similar transaction. Eight weeks earlier, the State tried Austin on similar charges that he had committed cruelty to the same child by striking him with a belt and leaving marks, and the jury acquitted him. On cross-examination in this trial, Austin’s counsel asked the Fayette County DFACS investigator why she transferred the case to Clayton County. The investigator responded:

The child was located upon the injury in Fayette County, so I would be the person from that county to go out and make initial contact. When I ascertained that the child jurisdictionally lived in another county, I called that county. They already had an open case on the family and they came and got the child. They confirmed that he did live in their county.

(Emphasis supplied.)

Defense counsel did not object to the testimony or ask for curative instructions. Later in the trial, when asked about a previous statement, the mother responded, “You’re asking me about my statement on the first trial. I —” The State stopped the witness and asked that she be declared hostile; the defense sought curative instructions, which the trial court gave as follows:

Members of the jury, before we go forward, I need to instruct you on one matter. This witness in her earlier testimony made reference to a first trial. There has been an earlier trial involving some of these parties. That is not at issue here in this case. You do not know the issues that were involved in that trial, who all the parties were, or what the outcome was, and all the witnesses have been instructed not to mention that. So please disregard that, any reference to an earlier trial, because it’s completely irrelevant to this case.

Austin now argues that the reference to “an open case” along with the mother’s reference to the first trial constituted double jeopardy, a constitutional error that is reversible despite the lack of objection.

In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted.) Putnam v. State, 231 Ga. App. 190, 193 (3) (498 SE2d 340) (1998).

Our Supreme Court has found reversible error when the State introduced as a similar transaction evidence that a defendant had participated in an earlier armed robbery, for which a jury found him not guilty. Moore v. State, 254 Ga. 674 (333 SE2d 605) (1985). The court in Moore declined to adopt a per se rule prohibiting any evidentiary use of independent offenses where an acquittal was obtained, but instead held that “the application of collateral estoppel requires an examination of what facts were in issue and necessarily resolved in the defendant’s favor at the first trial.” Id. at 676.

In this case, the trial court determined that evidence regarding the earlier trial was not permissible. However, the DFACS investigator’s mention of “an open case on the family” was not a criminal case against the defendant, but a DFACS case involving the family. This reference does not constitute an exceptional circumstance warranting reversal. Likewise, the mother’s mention of a “first trial,” in light of the trial court’s curative instructions, also does not constitute an exceptional circumstance warranting reversal.

2. Austin argues that the trial court erred in not charging the jury, sua sponte, on accident. He testified that the injury to the victim’s forehead was caused when the child slipped out of his grasp while being spanked with a belt and fell on the rug. However, Austin was indicted for cruelty to children by maliciously causing the victim cruel physical and mental pain by hitting him with a broom and burning him with a curling iron. Austin’s defense to those specific charges was that he caused the victim no pain when he “tapped” him on the head with a broom. He did not claim he accidentally hit the child on the head with a broom; instead, he claimed that an injury occurred in a different, accidental manner. Austin, however, was not charged with committing any particular injury. Thus, he presented two defenses to the charge: (1) the child’s injury was not caused by the broom, and (2) the child’s injury was caused by an accident. As Austin’s sole defense was not accident, any possible error from the trial court’s failure to charge, sua sponte, on accident was harmless. Phillips v. State, 247 Ga. 13 (273 SE2d 606) (1981). Moreover, Austin waived any issue concerning the trial court’s charge to the jury by stating that he had no exceptions when asked by the trial court.

Decided November 1, 2000.

Gloria J. Hawkins, for appellant.

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

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.