text:
    A01A1801.
    SPAN v. PHAR-MOR, INC. et al.
    (554 SE2d 309)
   Eldridge, Judge.

This appeal arises out of the state court’s grant of summary judgment to appellee-defendants Phar-Mor, Inc. and John Does One through Five (“Phar-Mor”) upon a personal injury action filed by Coca-Cola bulk merchandiser appellant-plaintiff Rufus Span. Therein Span averred that he suffered neck, shoulder, and back injuries upon manually moving by pallet jack two pallets of Coca-Cola in Phar-Mor’s stockroom. Span contends that summary judgment for Phar-Mor was error: (1) as granted contrary to the Supreme Court’s decision in Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997), on motion for summary judgment relieving nonmovant plaintiffs of the burden of producing evidence disproving their negligence until defendant’s negligence has been established or assumed, id. at 748 (2) (b); and (2) as granted upon assumption of the risk and causation theories. Finding no evidence of Phar-Mor’s negligence in the record, we affirm.

On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. In order “to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” (Emphasis supplied.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996). “The ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., [supra].

(Emphasis omitted.) Scarbrough v. Dover Elevator Co., 232 Ga. App. 149, 150 (500 SE2d 616) (1998).

Viewed in this light, the evidence shows that Span stacked two pallets of Coca-Cola onto a hand-operated, three-wheel pallet jack after Phar-Mor’s store manager told him to move as much of its Coca-Cola storeroom stock as he could into a staging area for later shelving — this in preparation for an upcoming Coca-Cola sale. The loaded hand jack stood approximately 15 feet high and weighed between 5,000 and 6,000 pounds. Thus loaded, Span pushed the pallet jack three to four feet on the concrete floor of the storeroom before one of its wheels appeared to get stuck on something. After pushing the pallet jack for two to three minutes and feeling his neck pop, Span freed his load and moved it to the staging area, an additional four feet away.

By his complaint, Span averred that the pallet jack he used had suddenly and unexpectedly sunk into the concrete floor causing his injuries. However, in deposition testimony supporting Phar-Mor’s motion for summary judgment, Span deposed that on looking to see what the wheel of the pallet jack he used had gotten caught on, he saw an “old drain plate” which “wasn’t flat like the other part of the floor was,” covering what he believed to be a drain hole. Phar-Mor further supported its motion for summary judgment by affidavits and photographs which indicated that only one floor plate of any kind had been installed in the concrete floor of its storeroom, a seven-inch by seven-inch brass plate at or slightly above floor level, the surface of which had been grooved in an apparent effort to prevent slipping; that neither the drain plate nor the surface area around it had been removed, modified, replaced, or otherwise affected for at least eight years prior to Span’s injury; and that apart from the incident in issue, Phar-Mor had no notice of any other problem regarding the drain plate.

Contradicting his deposition testimony, Span responded to Phar-Mor’s motion for summary judgment by his own affidavit stating that his pallet jack had gotten stuck in an “unguarded and uncovered hole” neither referenced nor depicted by Phar-Mor’s evidence on motion for summary judgment. In further response to Phar-Mor’s motion for summary judgment, Span provided the affidavit of Claudette DeLong, his office manager, attaching a document denominated, “Supervisor’s Report of On-the-Job Accident/Injury,” and purportedly completed “as a regular and routine business record.”

1. Contrary to his deposition testimony, Span stated by his affidavit in opposition to summary judgment that a wheel of his pallet jack had gotten stuck in another hole unrelated to the covered hole evidenced by Phar-Mor on motion for summary judgment. Span offers no explanation for his contradictory testimony. “To be reasonable, the explanation must show that ‘an honest mistake has been made in the first statement.’ [Cit.]” Merritt v. State Farm Fire &c. Co., 218 Ga. App. 652, 654 (463 SE2d 42) (1995). In Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the Supreme Court held that where the favorable portion of a party’s self-contradictory testimony is the only evidence of such party’s right of recovery, the opposing party is entitled to summary judgment in the absence of a reasonable explanation. Id. at 30.

Neither is Span’s Supervisor’s Report of On-the-Job Accident/ Injury admissible on motion for summary judgment as a record made in the regular course of business. OCGA § 24-3-14 (b) provides:

[a]ny writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of. . . such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.

To facilitate the introduction of business records in evidence, we have held that on motion for summary judgment an affidavit satisfying the requirements of OCGA § 24-3-14 meets the OCGA § 9-11-56 (e) requirement that such an affidavit “‘shall be made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.’ [Cit.]” Thomasson v. Trust Co. Bank, 149 Ga. App. 556, 558 (254 SE2d 881) (1979).

In her affidavit, DeLong stated that the Supervisor’s Report of On-the-Job Accident/Injury concerning Span’s injury was prepared in the regular course of business as a routine and customary business practice associated with an employee’s injury on the job. While the accident report attached to DeLong’s affidavit was dated approximately one week after Span’s injury, her affidavit failed to state that the accident report had been completed “at or near the time” of Span’s injury. Absent the preliminary proof required to qualify under OCGA § 24-3-14, DeLong’s affidavit and the accident report attached thereto were rendered inadmissible hearsay on motion for summary judgment or otherwise. OCGA § 9-11-56 (e); Thomasson v. Trust Co. Bank, supra. See also Matthews v. Wilson, 119 Ga. App. 708 (168 SE2d 864) (1969) (admissibility of evidence on motion for summary judgment governed by rules relating to form and admissibility of evidence generally as at trial). Even were the contrary true, the accident report as to Span’s injury is conclusory insofar as it indicates that the injury resulted from his efforts to free the pallet jack from a “sink in floor.” See Mica-Top Fixture Co. v. Frank G. Shattuck Co., 124 Ga. App. 100, 101 (1) (183 SE2d 15) (1971) (bare legal conclusions in affidavits on motion for summary judgment insufficient to show the lack of material issue of fact or to create the same). Otherwise the accident report is consistent with Span’s deposition testimony wherein he described the pallet jack as having gone into a floor plate which was not flush with the floor and wherein he identified Phar-Mor’s photograph of the single floor plate in the storeroom which depicted the floor plate as grooved.

Decided August 22, 2001.

Ashman, Lasky & Cooper, Charles R. Ashman, Brian E. Krapf, for appellant.

Lee C. Mundell, for appellees.

Routine issues of premises liability, including in particular a defendant’s negligence (the defendant’s actual or constructive knowledge of the hazard), are not ordinarily susceptible to summary judgment. Robinson v. Kroger Co., supra at 748. Accordingly, summary judgment should not be granted even under first-prong Robinson analysis except in circumstances where the evidence is plain, palpable, and undisputed. Scarbrough v. Dover Elevator Co., supra at 150; see also Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 680 (1) (498 SE2d 748) (1998). Phar-Mor having supported its motion for summary judgment by showing that it lacked actual or constructive knowledge of the floor plate as a real or potential hazard and Span having come forward with no admissible evidence to the contrary, Phar-Mor’s status as here not negligent is undisputed. The grant of summary judgment for Phar-Mor was therefore proper.

2. In light of our disposition of Division 1, we need not consider Span’s remaining claims of error.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       On August 21, 2000, plaintiff dismissed with prejudice his cause of action against defendant Kimco Savannah 185, Inc. d/b/a Savannah Center Shopping Centre.

       As a bulk merchandiser, Span serviced three retail stores, inclusive of Phar-Mor. His work required him to take bulk orders for Coca-Cola from the stores he was assigned, to arrange for its delivery, and then to move it into position for shelving as directed.

       Upon being asked whether he felt the pallet jack drop into a hole or get caught on something, Span responded, “I didn’t know what it was caught on.”

       The highest point of the floor plate above floor level was described as not more than one-eighth of an inch.

       The accident report described a wheel of Span’s pallet jack as going into a brass plate on the floor and becoming stuck. That the accident report also directed Span to install a piece of Masonite over the floor plate to level the floor is likewise not inconsistent with Span’s deposition testimony, as the record shows that the accident report was prepared upon Span’s representations to his supervisor rather than a visit to the scene of the accident by the supervisor.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A1869.
    BLACKFORD v. THE STATE.
    (554 SE2d 290)
   Johnson, Presiding Judge.

Gerald Edward Blackford, Jr. was indicted for malice murder in the death of Barbara Mixon. A jury found him guilty of the lesser included offense of voluntary manslaughter. Blackford appeals, alleging (1) the evidence was insufficient to support his conviction, (2) the trial court erred by failing to instruct the jury on the defense of accident, (3) the trial court erred by admitting his videotaped statement into evidence, and (4) his trial counsel rendered ineffective assistance by failing to present evidence of Blackford’s good character and by failing to call known exculpatory witnesses to testify on Blackford’s behalf. Because each of these enumerations of error lacks merit, we affirm Blackford’s conviction for voluntary manslaughter.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Blackford had been the victim’s boyfriend, on and off, for approximately four years. Nikki Rapp, the victim’s roommate, testified that when she left for work on the evening of June 27, 1998, Blackford was visiting the victim. When she returned at about 4:00 a.m., she discovered the victim lying facedown in her bathroom with her hands and ankles bound behind her with duct tape. The victim’s bra was ripped, her mouth was taped, and there was blood on a partially ripped t-shirt wrapped around her. A knife and evidence of drug use were found in the bathroom.

The medical examiner testified that in his opinion the duct tape was put around the victim’s face after she was already dead. He further testified that the victim died from manual strangulation. While he acknowledged that the victim’s fractured ribs could have been caused by a fall if she struck something when she fell, he testified that the bruising around the area of the fractures was much more consistent with a strong kick or a punch. He also noticed bruising on the back of her upper right arm, under the bra strap on the back of her right shoulder, and" on the back of her left shoulder. The victim also sustained a hematoma to the bony ridge around her eye that the medical examiner testified would have been caused by a blunt impact. The victim received all of these injuries before she died.

A police officer testified that he met with Blackford at his stepbrother’s house and Blackford agreed to ride to the police station and speak with the investigators. The detective who interviewed Black-ford at the police station testified that Blackford gave both a written statement and a videotaped statement. In the videotaped statement, Blackford initially denied any involvement in the victim’s murder. He stated that he was with the victim that night and that they had been having sex, drinking, and using cocaine. He further stated that he left the victim alive. However, as he was signing a written statement to that effect, Blackford began to confess to killing the victim.

Blackford informed the police that he went to use the bathroom before he left the victim’s house. The victim grabbed a knife from the back of the toilet and lunged at him. Blackford then grabbed the victim by her throat, they spun around, and they fell to the floor. He repeated over and over, “I should have let go, I just didn’t let go.” He later admitted that he had the chance to get away, but he just did not let go. Blackford admitted that he bound the victim with duct tape to make it look like someone else killed her.

Michael Sweatman, who is currently in jail on aggravated assault and burglary charges, testified that he shared a jail cell with Blackford. Sweatman testified that Blackford told him he had been hanging out, partying, and having sex with a girl he was dating. He said that afterward they started arguing and the victim came at him with a knife while he was using the bathroom. To subdue her, Black-ford grabbed her by the throat and choked her. When he realized the victim was dead, he decided to bind her with duct tape and make it look like a robbery.

OCGA § 16-5-2 (a) defines voluntary manslaughter as follows: “A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.” Blackford’s statement that he grabbed the victim by the throat and did not let go, coupled with the medical examiner’s testimony regarding the victim’s other injuries, Blackford’s actions after the strangulation, and his comments to a jail inmate that his girlfriend was “nagging and bitching and . . . getting on his nerves” authorized the jury to find Blackford guilty beyond a reasonable doubt of voluntary manslaughter.

As for Blackford’s claim that the jury should have found he acted in self-defense, the jury was properly charged that the use of excessive or unlawful force, while acting in self-defense, is not justifiable, and Blackford’s conduct would not be justified if the jury found the force used exceeded that which he reasonably believed was necessary to defend against the victim’s use of unlawful force. Whether Black-ford acted in the heat of passion or with justification depended largely on the credibility of the witnesses, which was for the jury to assess. The jury was entitled to believe those parts of Blackford’s statement which they chose to believe and to disregard those portions of the statement which they disbelieved.

2. Blackford next contends the trial court erred in failing to give the jury a requested instruction on the law of accident. To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence is sufficient to authorize the giving of a charge is a question of law.

Here, Blackford contends that the necessary evidence to support a charge on accident was proved by his testimony that he did not mean to kill the victim, but that her injuries were sustained as they struggled and fell during the victim’s knife attack. He also relies on the medical examiner’s testimony that the victim could have died “even if the grip was released fairly soon when something like this is done.” While this evidence may have supported a finding that the killing was not intentional, it did not support a theory of accident as defined in OCGA § 16-2-2.

A person may not be found guilty of a crime committed by accident “where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” Accident is an affirmative defense, and the defendant must establish that he acted without criminal intent and was not engaged in a criminal scheme and that his actions did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.

In the present case, Blackford admitted that when he saw the victim lunge at him with a knife, he grabbed her by the throat and he did not let go, even after they fell to the floor. He later acknowledged that he had a chance to get away from the knife-wielding victim, but did not. His stated intention was “to try and get her to pass out.” Based on this evidence, an instruction to the jury on the law of accident was not warranted. Although the victim may have been unintentionally injured, Blackford intentionally put his hands around the victim’s throat and placed the victim in reasonable apprehension of immediate bodily injury. This action constituted, at the very least, criminal negligence. Blackford’s testimony that he had not intended to kill the victim did not warrant a charge on accident.

3. The trial court did not err by admitting Blackford’s videotaped statement into evidence. We first note that prior to trial, the trial court suppressed the portion of Blackford’s statement made after he began confessing to the crime but before he received his Miranda warnings. This decision is not enumerated as error, and Blackford’s trial counsel testified that, for strategic reasons, he decided to allow the jury to view the entire videotaped statement, including the suppressed portion, so the jury could see Blackford’s anguish and remorse.

Blackford contends on appeal that both his inculpatory statement to the police before he received Miranda warnings and his recorded statement to the police after he received Miranda warnings are inadmissible. However, since Blackford’s counsel decided to allow the jury to view Blackford’s inculpatory statement before he received a Miranda warning, even though the trial court had previously suppressed this portion of the statement, Blackford has waived any argument that this portion of his recorded statement was inadmissible. Any error in the admission of this portion of the recorded statement was self-induced and provides no basis for reversal. On appeal, a party may not complain of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.*

As for Blackford’s recorded statement after Miranda warnings were given, the standard of review is threefold. First, if there is any evidence to support the trial court’s findings of a valid Miranda waiver, such findings will not be disturbed. Second, a trial court’s decisions regarding questions of fact and credibility must be accepted unless clearly erroneous. And, finally, the evidence is construed to uphold the trial court’s findings.

Viewed in this light, the record shows that Blackford voluntarily waived his rights and agreed to continue to talk to officers after he was given Miranda warnings. There is no official transcript, but we have carefully reviewed the videotape of Blackford’s interview in its entirety. The videotape shows that as Blackford was about to sign his written statement he, spontaneously and without further questioning, began to confess to killing the victim. When Blackford began to tell the officers that he taped the victim’s hands, mouth, and feet to mislead investigators, an officer read Blackford his Miranda rights. Blackford stated he did not need a lawyer and he would continue to talk to the officers. At no time did he say that he did not want to talk to the officers. While Blackford was obviously distressed, the videotape shows and the detectives testified that he was well aware of everything going on and that there was no question regarding his ability to understand his rights. The record further shows that Blackford was 37 years old, could read and write, and spoke English and German. Because the trial court’s conclusion that Blackford’s post-Miranda statement was freely and voluntarily given is supported by the evidence, we find no error in its admission.

Blackford argues that his post -Miranda confession constituted “fruit of the poisonous tree” since it was given immediately after his initial confession and since it was obtained after prolonged questioning. However, the record shows that no actual coercion attended his initial confession. In fact, the videotape shows nothing but a polite and civil dialogue between Blackford and the officers. Although the interview might have lasted six hours, there is no evidence from the videotape that Blackford was “grilled.”

A review of the totality of the circumstances surrounding Black-ford’s initial statement to the officers shows that Blackford voluntarily accompanied officers to the police station and was allowed to take breaks during the interview and to smoke outside. He had been told he was not under arrest and was free to go. As Blackford was about to sign his written statement he, spontaneously and without any questioning or comment by the officers, began to confess to the crime. Neither the videotape nor the record in this case shows any coercion on the part of the officers.

Moreover, even assuming Blackford’s initial confession had been tainted, the admissibility of any subsequent statement turns on whether the statement was knowingly and voluntarily made. As we have previously stated, we find that Blackford’s subsequent recorded statement was knowingly and voluntarily given. Accordingly, this enumeration of error lacks merit.

4. Blackford’s fourth and fifth enumerations of error concern . trial strategy or tactics. Specifically, Blackford contends his trial counsel rendered ineffective assistance of counsel by failing to call known witnesses to present evidence of his good character and to testify on his behalf. To prevail on a claim of ineffective assistance of counsel, Blackford bears the burden of proving (1) that his trial counsel’s performance was deficient, and (2) that but for this deficiency the outcome of the trial would have been different. In addition, a strong presumption exists that trial counsel performed within the wide range of reasonable professional assistance and that challenged actions might be considered sound trial strategy. The trial court’s determination that Blackford was afforded effective assistance of counsel will not be reversed on appeal unless it was clearly erroneous.

Decided August 22, 2001

Stepp & Randazzo, Glynn R. Stepp, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Dawn H. Taylor, Assistant District Attorneys, for appellee.

At the hearing on the motion for new trial, Blackford’s trial counsel testified that he was aware of the witnesses referred to in Black-ford’s brief and that either he or his investigator had spoken to most of them. However, trial counsel made a strategic decision not to call these witnesses because (1) he did not think evidence of good character would be helpful in a self-defense case, (2) he wanted to minimize the violence in Blackford’s relationship with the victim, and (3) he did not want to give the state an opportunity to introduce evidence of Blackford’s bad character. Trial counsel further testified that he wanted to keep closing argument, and he felt that closing argument was more important than introducing evidence by the known witnesses.

This Court has consistently held that strategic decisions at trial are the exclusive province of the lawyer, and decisions concerning whether to call character witnesses and whether to place the defendant’s character in issue are matters of trial strategy and do not equate with ineffective assistance of counsel. Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable. After hearing trial counsel’s testimony, the trial court denied Blackford’s motion for new trial, finding that he was afforded effective assistance of counsel. The record supports this finding.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, 231 Ga. App. 677, 678-679 (1) (499 SE2d 663) (1998).

       See Clark v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999).

       See Smith, supra; Brown v. State, 225 Ga. App. 218, 219 (483 SE2d 633) (1997).

       See Koritta v. State, 263 Ga. 703, 704 (438 SE2d 68) (1994).

        Turner v. State, 262 Ga. 359, 361 (2) (c) (418 SE2d 52) (1992).

       OCGA § 16-2-2.

        Davis v. State, 269 Ga. 276, 279 (3) (496 SE2d 699) (1998).

       See id.

        Brooks v. State, 262 Ga. 187, 188 (3) (415 SE2d 903) (1992).

        Singleton v. State, 240 Ga. App. 240-241 (4) (522 SE2d 734) (1999); Johnson v. State, 198 Ga. App. 316, 317 (5) (401 SE2d 331) (1991).

        Cunningham v. State, 244 Ga. App. 231, 234 (2) (535 SE2d 262) (2000).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Id.

       Id.

        See Reinhardt v. State, 263 Ga. 113, 115 (3) (b) (428 SE2d 333) (1993).

        Vaughan v. State, 210 Ga. App. 381, 384 (3) (b) (436 SE2d 19) (1993).

        Turner v. State, 245 Ga. App. 294, 295 (4) (536 SE2d 814) (2000).

        Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999).

        Turner, supra.

       See Mitchell v. State, 223 Ga. App. 319, 320 (5) (477 SE2d 612) (1996).

        Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999).


author: Phipps, Judge.

text:
    A01A2115.
    TILLMAN v. THE STATE.
    (554 SE2d 305)
   Phipps, Judge.

Following denial of his motion for new trial, Jason Tillman appeals his convictions of two counts of aggravated assault and two counts of trafficking in cocaine. He complains of the trial court’s denial of his motion to sever his trial from that of a co-indictee, its denial of his motion to suppress evidence, and certain of its jury instructions. We find no error and affirm.

A multi-count indictment was returned against Tillman, Kendall Caldwell, and Maurice Montgomery. All three were charged with trafficking in over 200 grams of cocaine found at Caldwell’s house in a jacket belonging to Montgomery. Tillman and Caldwell were also charged with trafficking in over. 400 grams of cocaine found in a hotel room rented by Tillman and with two counts of aggravated assault upon Montgomery.

Montgomery’s trial was severed from Tillman and Caldwell’s. Montgomery was convicted on the trafficking charge, and his conviction w^as affirmed on appeal. Tillman and Caldwell were tried jointly. Both were convicted of trafficking in the 200 grams of cocaine found in Montgomery’s jacket and in the 400 grams of cocaine found in the hotel room and of committing the aggravated assaults upon Montgomery. Caldwell’s convictions were affirmed on appeal.

The State’s evidence showed that Montgomery appeared at Caldwell’s house with the cocaine in his jacket. Tillman was also at the house. A fight erupted in which Tillman and Caldwell physically beat, pistol whipped, and shot Montgomery. Montgomery escaped to a nearby residence, and Tillman and Caldwell fled the scene. All were apprehended by police. During a custodial interrogation, Tillman gave statements to police which led them to obtain a warrant to search the hotel room where the remaining cocaine along with drug paraphernalia and guns were found.

At Tillman and Caldwell’s trial, Montgomery testified as a State’s witness under a grant of immunity. Montgomery claimed that when he went to Caldwell’s house, Tillman and Caldwell tried to kill him because they thought he had broken into the residence on an earlier occasion and stolen cocaine. Caldwell, on the other hand, testified that Montgomery came to his house to induce him to sell drugs. Caldwell acknowledged that he had previously sold drugs for Montgomery and that he owed him a large amount of money because some of the drugs had been stolen. Caldwell claimed that Montgomery came to his house on the day in question to get him to sell more drugs to repay the debt, but that he refused. Caldwell testified that Montgomery tried to shoot him, which led to Tillman’s intervention and the ensuing fight.

When Tillman and Caldwell were arrested, both were carrying card keys to the same hotel room. Prior to trial, Caldwell gave statements to police admitting that Tillman was storing cocaine for him in the room. At trial, however, Caldwell denied any connection to the cocaine. During his cross-examination of Caldwell, Tillman’s attorney sought to show that the cocaine belonged to Caldwell alone. Tillman did not testify.

1. Tillman charges the trial court with abusing its discretion in denying his motion for trial severance.

Whether a motion for severance should be granted rests in the sound discretion of the trial court.

The factors a trial court must consider in exercising its discretion in regard to a motion to sever are (1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, or whether the strength of the evidence against one defendant will engulf the other with a “spillover” effect, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. [Cits.]

“The mere fact that codefendants’ defenses are antagonistic is not sufficient in itself to warrant the grant of a separate trial absent a showing of harm. [Cit.]” “The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and denial of due process. [Cit.]”

Tillman argues that he was prejudiced by denial of his motion for trial severance in essentially three ways: (1) First, he claims that the trial court placed limitations on his cross-examination of a State’s witness who testified about an independent crime committed by Caldwell, and that such limitations would not have been imposed if Caldwell had not been a co-defendant. The record does not support this claim. It shows that, at Tillman’s urging, the State was allowed to admit evidence of a prior conviction against Caldwell involving cocaine. Tillman’s attorney sought to cross-examine the State’s witness concerning whether Caldwell had also been in possession of a stolen weapon. The record reflects that the trial court sustained the State’s objection to this question, on grounds that Caldwell had not been charged with possession of a stolen weapon and there was no evidence that Caldwell knew the weapon was stolen. It does not appear that this ruling would have been different if there had been a trial severance. (2) Tillman also argues that he was damaged by Caldwell’s testimony admitting his prior involvement with Montgomery in selling cocaine. We cannot agree. In his testimony, Caldwell implicated only himself and Montgomery in the drug sales. If anything, such testimony would have benefitted Tillman. (3) Finally, Tillman maintains that a severance should have been granted because his and Caldwell’s defenses to the drug trafficking charges relating to the cocaine at the hotel room were antagonistic. Tillman, however, has not shown how he was prejudiced thereby. We do not find that the trial court abused its discretion in denying Tillman’s motion for trial severance.

2. Tillman contends that the trial court erred in denying his motion to suppress the evidence recovered from the hotel room, because the warrant to search the room was obtained by use of involuntary incriminatory statements given by him to law enforcement officers.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial. OCGA § 24-3-50. ... To make a confession admissible, it must have been made voluntarily, i.e., “without being induced by another by the slightest hope of benefit or remotest fear of injury.” [Cits.] The “slightest hope of benefit” in OCGA § 24-3-50 means the hope of a lighter sentence. [Cit.]

Following Tillman’s arrest, two detectives from the Stone Mountain Police Department interrogated him and obtained statements concerning the events that had transpired at Caldwell’s house. After the interrogation had concluded, a sergeant with the Stone Mountain Police Department conducted another interview of Tillman and obtained statements concerning the cocaine in the hotel room.

Tillman claims that the detectives who conducted the initial interview obtained incriminatory statements from him by holding out hope that he would receive a lighter sentence if he confessed, by threatening to charge him with murder if Montgomery died and he did not confess, and by exploiting his fears of Caldwell. Because it does not appear that the police used statements made by Tillman to the detectives in obtaining the warrant to search the hotel room, Tillman’s challenge to the voluntariness of these statements provides no grounds for suppressing the evidence.

Decided August 22, 2001.

Jennifer Snyder-Surges, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee. _

Tillman claims that incriminatory statements he made to the sergeant concerning the cocaine in the hotel room were not voluntary, because they were induced by offers from the sergeant to assist him with a reduction in his bail bond. It has been held, however, that this is not the type of “hope of benefit” to which OCGA § 24-3-50 refers. The trial court’s determination that Tillman gave the statements to the sergeant freely and voluntarily is not clearly erroneous. Therefore, the court did not err in denying Tillman’s motion to suppress.

3. (a) Tillman complains of the trial court’s charge to the jury, in accordance with OCGA § 16-2-21, that a party to a crime who did not directly commit the crime may be convicted even though the person claimed to have directly committed the crime had not been convicted. This charge was authorized by evidence introduced during Tillman’s cross-examination of Caldwell indicating that part of the cocaine in the hotel room may have belonged to Montgomery. And even if there were no evidence to support the charge, we fail to see how Tillman was harmed by it.

(b) Tillman complains of the trial court’s refusal to give his request to instruct the jury, in accordance with a jury charge approved in Williams v. State,* that the law does not require a person exercising the right of self-defense to wait until an actual assault has occurred. We find no error because this concept was fairly embodied in the trial court’s charge to the jury on the principles of self-defense set forth in OCGA § 16-3-21 (a) and on application of the reasonable person standard to the defense of self-defense.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Montgomery v. State, 249 Ga. App. 777 (549 SE2d 463) (2001).

        Caldwell v. State, 249 Ga. App. 885 (549 SE2d 449) (2001).

        Morris v. State, 204 Ga. App. 437 (1) (419 SE2d 733) (1992).

        Stephens v. State, 245 Ga. App. 823, 827 (8) (538 SE2d 882) (2000).

        Holmes v. State, 272 Ga. 517, 518 (2) (529 SE2d 879) (2000).

        Stephens, supra.

       Compare Morris, supra.

        State v. Ray, 272 Ga. 450 (2) (531 SE2d 705) (2000).

       See Pounds v. State, 189 Ga. App. 809, 810 (1) (377 SE2d 722) (1989).

       See, e.g., Leigh v. State, 223 Ga. App. 726, 727 (1) (478 SE2d 905) (1996).

       120 Ga. 870, 873 (3) (48 SE 368) (1904).

        Williams v. State, 245 Ga. App. 670-671 (1) (538 SE2d 544) (2000).


author: Pope, Presiding Judge.

text:
    A01A1001.
    THORPE v. THE STATE.
    (553 SE2d 171)
   Pope, Presiding Judge.

Roberto Thorpe entered a guilty plea in federal court to possession of cocaine with intent to distribute. The court accepted the plea but postponed sentencing. Lamar County then indicted Thorpe for trafficking in cocaine arising out of the same set of facts, and, as a result, federal authorities dismissed their case against him. Thorpe then filed a plea in bar in the state action, arguing that OCGA § 16-1-8 mandates that that action is barred because his guilty plea was accepted by the federal court. The trial court denied the plea in bar, and Thorpe appeals.

On February 23, 2000, Officer Rosborough of the Lamar County Sheriff’s Department stopped Thorpe for failure to maintain his lane on Interstate 75. Officer Rosborough conducted a pat-down search for his own safety and found a hard object in Thorpe’s pants. Thorpe then fled, and Rosborough pursued and apprehended him. A kilogram package of cocaine was found nearby. On March 6, 2000, in the United States District Court for the Middle District of Georgia, Macon Division, Thorpe admitted these facts and his guilt and entered a guilty plea to a violation of 21 USC § 841 (a) (1) and (b) (1) (B) (ii), possession with intent to distribute cocaine. At the end of the plea hearing, the court stated, “All right. The plea can be entered. Sentencing will be in June.”

On May 10, 2000, Thorpe was charged in Lamar County with a violation of OCGA § 16-13-31, trafficking in cocaine, arising out of the same conduct described above. On July 5, 2000, the federal indictment was dismissed for the stated reason that “[t]he case has been referred to the State of Georgia for prosecution.” Thorpe then filed his plea in bar. The trial court denied the plea on the ground that Thorpe had not been sentenced in federal court and, relying on Dorsey v. State, 237 Ga. 876 (230 SE2d 307) (1976), that Thorpe committed separate crimes “against two sovereigns.”

Under the “dual sovereignty” doctrine successive federal and state prosecutions for the same conduct do not violate the Fifth Amendment prohibition against double jeopardy, Abbate v. United States, 359 U. S. 187, 194-195 (79 SC 666, 3 LE2d 729) (1959); Satterfield v. State, 256 Ga. 593, 595 (2) (351 SE2d 625) (1987), but they may be barred by state statutory double jeopardy law such as OCGA § 16-1-8. That Code section and OCGA §§ 16-1-6 and 16-1-7 extend the proscription against double jeopardy beyond the minimum constitutional requirements. State v. Estevez, 232 Ga. 316, 317 (1) (206 SE2d 475) (1974).

Decided July 27, 2001

Reconsideration denied August 23, 2001

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, for appellant.

Richard G. Milam, District Attorney, for appellee.

Thorpe contends that his state court prosecution is barred by OCGA § 16-1-8 (a) (2), which provides that “[a] prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution . . . [w]as terminated improperly . . . after a plea of guilty was accepted by the court.”

But this subsection does not apply because the wording of OCGA § 16-1-8 shows that only subsection (c) applies to successive federal and state prosecutions. See, e.g., Moser v. State, 246 Ga. App. 268, 269 (2) (538 SE2d 904) (2000). Only that subsection specifically refers to prosecution in state court of a crime that was formerly prosecuted in a federal district court. See Dorsey v. State, 237 Ga. at 877-878 (subsection (c) was a new feature of Georgia law that applies to successive federal and state prosecutions). Cf. State v. Burroughs, 244 Ga. 288, 289 (1) (260 SE2d 5) (1979) (the provisions of OCGA §§ 16-1-6 through 16-1-8 affect only successive prosecutions for state crimes, not municipal ordinances).

OCGA § 16-1-8 (c) bars prosecution of a crime in state court arising out of the same conduct prosecuted in federal court only if the federal prosecution resulted in either a conviction or an acquittal. Here, the federal prosecution resulted in neither. A “conviction” arising from a guilty plea requires entry of a final judgment. OCGA § 16-1-3 (4); Blackstock v. State, 270 Ga. 117, 119 (4), n. 5 (506 SE2d 130) (1998). Thorpe’s federal prosecution was dismissed before entry of a final judgment. Therefore, the trial court correctly held that Thorpe’s state court prosecution was not barred by OCGA § 16-1-8.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

       Vacated on other grounds, Burroughs v. Georgia, 448 U. S. 903 (100 SC 3044, 65 LE2d 1134) (1980). See State v. Burroughs, 246 Ga. 393 (271 SE2d 629) (1980).


author: Blackburn, Chief Judge.

text:
    A01A1046.
    GLENN v. THE STATE.
    (553 SE2d 323)
   Blackburn, Chief Judge.

Following a jury trial, James Glenn appeals his conviction for possession of cocaine with intent to distribute, contending that the trial court erred by denying his motion for directed verdict and that the evidence was insufficient to support the jury verdict. For the reasons set forth below, we affirm.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. 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.

(Citation and punctuation omitted.) Yarbrough v. Stated.

Viewing the evidence in this light, the record reveals that in the afternoon of April 15, 1999, Lynn Archer visited the apartment where his daughter, Tammy Kivett, resided. Archer knocked on the door and heard an unknown person say that “they was in the tub.” Archer left at that time but returned to the apartment at 8:30 p.m. He entered the apartment and found Glenn and Lynn C. Washington inside. Archer told Glenn and Washington that they had no business being in the apartment. Archer then left and called his daughter to inform her that Glenn and Washington were in the apartment.

Not knowing either individual in her apartment, Tammy Kivett called the police, and two deputies arrived at the apartment after midnight. With Ms. Kivett’s permission to enter the apartment, the deputies walked toward the doorway. Before the deputies had a chance to knock, however, Glenn opened the door. Glenn let the deputies enter the apartment, wherein they also found Washington and Shari Denise Floyd.

The layout of the apartment was described as an “open floor plan.” The apartment doorway opened up into the living room area, which was open and adjoined the dining room. From the living room, one could also look through an archway into the kitchen. Washington was in the kitchen area, and Floyd was sitting on or by the couch in the living room.

On the dining room table, in plain view, one deputy observed what appeared to be a crack cocaine smoking device with a rubber base that had residue on it. Upon further investigation, more than 12 grams of cocaine as well as several items of drug paraphernalia were found scattered throughout the apartment as follows: cocaine rocks, a smoking device, scorched spoons, and a razor blade on the bottom of the kitchen sink; scorched spoons on the kitchen counter; a crack cocaine smoking device on the dining room table, in plain view; a light bulb that had been converted into a smoking device inside a “pumpkin” container in the bedroom closet; razor blades with residue on a shelf in the bedroom; razor blades with suspected cocaine residue, a copper-style scouring pad, and a plastic bag either in a drawer or on top of a small table located in the dining room area; a bag containing cocaine in the back of the toilet in the bathroom; and a syringe filled with liquid cocaine in a box behind the living room couch. In the bedroom, the investigators also found a black bag containing clothing. Glenn identified the bag as belonging to him.

Glenn was arrested for burglary and possession of cocaine with the intent to distribute. At the time of his arrest, Glenn told the police officers that he had been in the apartment with the permission of Tammy Kivett’s brother, Dale Archer. Although acquitted on the charge of burglary, the jury found Glenn guilty of possession of cocaine with the intent to distribute.

1. Glenn argues that there was no circumstantial evidence tying him to contraband other than his “mere presence at the crime scene, his spatial proximity to the drugs, and his mere association with other persons similarly located.”

Possession may be joint or exclusive, and actual or constructive. Such evidence would authorize a finding that [Glenn, Washington, and Floyd] had equal access to the cocaine and were in joint constructive possession of the drug. By showing circumstantially that the [other defendants] had equal access to the cocaine, the evidence established that [Glenn, Washington, and Floyd] were parties to the crime, and thus, guilty of joint constructive possession of the cocaine. Such evidence is sufficient to meet the standard of proof required by Jackson v. Virginia, supra.

(Citations and punctuation omitted.) Reed v. State See also Lowe v. State.

The evidence here demonstrated a connection between Glenn and the contraband that went beyond mere spatial proximity. Glenn had been in the apartment since at least 8:30 p.m. and was there when the police arrived after midnight. No evidence was presented that Glenn left the apartment or the apartment area at any time between 8:30 p.m. and midnight. Therefore, a jury could infer that he had been in the apartment where the cocaine and paraphernalia were found for at least three and one-half hours before his arrest. Furthermore, Glenn stated that he was in the apartment with the permission of Tammy Kivett’s brother. There was no evidence of the presence of Ms. Kivett nor her brother at any time during Glenn’s stay. As Glenn opened the door upon the officer’s arrival, a jury could reasonably infer that Glenn not only had free access to the entire apartment, but indeed had control over the premises.

Moreover, the evidence connected Glenn to the specific rooms where the cocaine was found. Upon opening the door, Glenn was in an area near the couch, where the syringe of liquid cocaine was found, and where he could clearly view the cocaine smoking device in the center of the dining room table. In addition, Glenn’s bag of clothing was found in the bedroom, where some of the drug paraphernalia and suspected residue were found. There was also evidence to indicate that Glenn may have been “in the tub” earlier in the day, in the bathroom where the largest chunk of cocaine was found. Finally, the living room and dining room areas were within sight of and access to the kitchen area, where additional cocaine particles were found. Viewed in the light most favorable to the verdict, the jury could properly infer that Glenn was in joint constructive possession of the cocaine.

2. Glenn also argues that the evidence was insufficient to show an intent to distribute. Although mere possession of cocaine cannot serve as the basis for a conviction for intent to distribute, the intent can be established with expert testimony that the amount of cocaine found was greater than would normally be had for individual use. See Bacon v. State; Bean v. State Furthermore, a large amount of cocaine can be considered, in and of itself, evidence of intent to distribute. Bacon v. State, supra at 328.

Decided August 1, 2001

Reconsideration denied August 23, 2001.

Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

At trial, a Georgia Peace Officer Standards & Training-certified narcotics investigator with six years experience in law enforcement testified that the cocaine found on the premises had an approximate street value of $2,500, which was “not usually a user amount of cocaine.” In fact, with a $20 rock or two constituting a user amount, the investigator agreed that the cocaine found constituted a “sizeable number of individual user amounts of crack cocaine.” Sufficient evidence was presented for the jury to find Glenn guilty of possession of cocaine with the intent to distribute, beyond a reasonable doubt.

Accordingly, we affirm the judgment and the denial of a directed verdict.

Judgment affirmed.

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

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

        Yarbrough v. State, 241 Ga. App. 777, 780-781 (4) (527 SE2d 628) (2000).

       At the time, however, Tammy Kivett had been temporarily living at another location with her husband, Virgil Kivett.

       Co-defendant Lynn C. Washington appeals her conviction separately and is not a party to this appeal.

       Co-defendants Shari Denise Floyd, Lisa Ann Brady, and Mark Q. Carter are not parties to this appeal.

        Reed v. State, 244 Ga. App. 146-147 (534 SE2d 871) (2000).

        Lowe v. State, 223 Ga. App. 172, 173 (477 SE2d 341) (1996).

       There was evidence that minutes before the police arrived, Washington was standing on the apartment balcony having an argument with others who were in the driveway.

       Although Glenn argues that the particles found in the kitchen sink were never tested, the particles were included as a part of the State’s Exhibit 6 at trial. It is undisputed that portions of Exhibit 6 tested positive for cocaine. Furthermore, Glenn stipulated to the admission of Exhibit 6 in its entirety, as well as the lab findings that Exhibit 6 tested positive for cocaine.

        Bacon v. State, 225 Ga. App. 326, 327 (483 SE2d 894) (1997).

        Bean v. State, 204 Ga. App. 242, 243 (2) (418 SE2d 798) (1992).


author: Andrews, Presiding Judge.

text:
    A01A1100.
    CARLTON v. THE STATE.
    (554 SE2d 318)
   Andrews, Presiding Judge.

Cecil Carlton appeals from the judgment entered after a trial court found him guilty of possession of cocaine with intent to distribute. Carlton argues the trial court erred in denying his motion to suppress, claiming there were irregularities in the application for the warrant as well as insufficient probable cause for the issuance of the warrant. We conclude there was no reversible error and affirm.

At the motion to suppress hearing, Officer Kirkland testified that he applied for a search warrant on Carlton’s residence on the morning of September 30, 1999, based primarily on information provided by a confidential informant. The confidential informant told the officer that Carlton was distributing narcotics from his residence. The informant met with the officer within 72 hours preceding the issuance of the warrant. At this meeting the informant told the officer he had been inside Carlton’s residence and observed the sale of narcotics within the same 72-hour period.

The confidential informant had previously furnished the officer with reliable information. The officer testified he had known the informant for eight years and, during that time, the informant had given the officer information leading to several drug-related convictions and convictions in a murder case. In addition, the informant had never supplied the officer with unreliable information.

The officer began an independent inquiry into the allegations made by the confidential informant. For instance, the officer contacted the city water department and discovered service at the address named by the informant was listed in Carlton’s name. The officer also checked with fellow police officers who stated the address given by the informant was in fact Carlton’s residence. Once the location of Carlton’s residence was established, the officer conducted visual surveillance of the area. The officer witnessed heavy foot traffic to and from the residence. The officer stated heavy foot traffic was an indication of street-level sales of narcotics.

Next, the officer obtained a search warrant for Carlton’s residence based on the information received from the informant and the officer’s independent investigation of the residence. During the search, officers found cocaine and charged Carlton with possession of cocaine with intent to distribute.

1. Carlton claims the trial court erred in denying his motion to suppress, arguing that technical irregularities in the search warrant and affidavit render the warrant invalid. Specifically, he contends that the magistrate issued the search warrant before the officer swore to the Affidavit and application.

The record shows that the search warrant was issued on September 30, 1999, at 9:26 a.m. and that the affidavit was signed by the officer at 9:27 a.m. Carlton argued below and now on appeal that this violates the requirement that probable cause be shown to the magistrate before he issues the warrant. The trial court rejected this argument, finding that probable cause existed for the warrant and minor discrepancies as to the times stated on the documents were not materially significant and were all part of an ongoing process.

In reviewing the decision of the trial court on a motion to suppress, this Court must accept the trial court’s decisions on the credibility of witnesses and questions of fact unless clearly erroneous. Roberson v. State, 246 Ga. App. 534, 535 (540 SE2d 688) (2000).

OCGA § 17-5-31 states: “No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” Here, the officer’s testimony shows the affidavit and warrant were all before the magistrate at the same time on the same date. The officer testified that he went to the magistrate on the morning of September 30, presented him with the information set out above, received the search warrant and executed it. Therefore, the trial court could correctly find that any errors as to the time the affidavit and warrant were signed “were clearly typographical and were not so material as to destroy the integrity of the affidavit or the validity of the warrant.” Cunrod v. State, 241 Ga. App. 743, 744 (526 SE2d 900) (2000); see also Merritt v. State, 121 Ga. App. 832, 833 (175 SE2d 890) (1970) (holding a warrant which failed to include the time of issuance did not render the warrant invalid).

Moreover, the cases relied on by Carlton, Page v. State, 136 Ga. App. 807 (222 SE2d 661) (1975) (physical precedent only), and Reid v. State, 129 Ga. App. 660 (200 SE2d 456) (1973), are not on point. In both these cases, the magistrate testified that he made no determination of the existence of probable cause. Page, supra at 807; Reid, supra at 660. That is not the case here. Accordingly, we conclude there was no error in the trial court’s decision on this issue.

2. Next, Carlton argues there was no probable cause to issue the search warrant because the officer’s affidavit failed to disclose to the magistrate that the confidential informant was paid for his information and he had a criminal record.

In determining whether an affidavit provides sufficient probable cause for issuance of a search warrant, a magistrate must simply make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed. On appeal, we give substantial deference to the magistrate’s decision to issue the warrant, and we construe the evidence in favor of the court’s decision that probable cause existed.

(Citation and punctuation omitted.) Jones v. State of Ga., 249 Ga. App. 64, 66 (547 SE2d 725) (2001).

The affidavit in this case presented sufficient information to allow the magistrate a substantial basis for a finding of probable cause. The information in the affidavit was given by an experienced narcotics officer through his investigation. In addition, information in the affidavit was supplied by a confidential informant who had proved reliable in past cases. The officer stated that a reliable informant had personally observed Carlton sell cocaine within the past 72 hours. The fact that the affidavit failed to disclose the confidential informant’s criminal record or that he was being compensated for the information he supplied “was offset by the other indicia of the informant’s reliability.” Roberson, supra at 537. The trial court did not err in denying Carlton’s motion to suppress.

Decided August 23, 2001

Gilbert J. Murrah, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Miller, JJ., concur.


text:
    A01A1653.
    McFADDEN v. THE STATE.
    (554 SE2d 323)
   Phipps, Judge.

Cheryl Vandetta McFadden appeals her conviction of possession of cocaine with intent to distribute, arguing that the trial court erroneously admitted her confession. We find no error and affirm.

Taken in the light most favorable to the conviction, the record shows that Detective Paul Woods and other officers with the Whitfield County Sheriff’s Department found evidence of drugs at the residence of Vicki Wasserman. Wasserman agreed to cooperate with the officers and paged her supplier by telephone. Later that day, McFadden drove into Wasserman’s driveway. McFadden consented to a search of her vehicle, where officers found crack cocaine. Officers also found a pager on McFadden’s person that displayed Wasserman’s home telephone number.

Woods interviewed McFadden at jail the next day. She signed a form waiving her Miranda rights and gave a written statement. In the statement, McFadden said, among other things, that she had been selling crack cocaine for about four months and had gone to Wasserman’s residence to sell cocaine. She also said that she had “not been promised or threatened in any way for the above statement.”

The trial court held a Jackson-Denno hearing to determine the admissibility of the statement. McFadden testified that, before she gave the statement, Woods told her, “[I]f you . . . cooperate with us, . . . I promise I won’t charge you for these drugs.” Woods, on the other hand, testified that he made no promises to McFadden in exchange for her confession, but did tell her he would notify the district attorney’s office if she chose to cooperate. The trial court found that McFadden gave the confession “freely and voluntarily without any hope of benefit or fear of injury.” McFadden argues this ruling was error because the detective’s words gave her the hope of a benefit.

Decided August 23, 2001.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Under OCGA § 24-3-50, a confession is admissible only if it was “made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” A police officer’s statement to the defendant “that he would let the district attorney know about the defendant’s cooperation, and that this might result in a reduced sentence” does not impermissibly hold out hope of benefit. We will uphold a trial court’s factual and credibility determinations at a Jackson-Denno hearing unless they are clearly erroneous. Here, we cannot say that the trial court’s decision to credit Woods’s version of events over that of McFadden was clearly erroneous. Accordingly, we find no error in the admission of the confession.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       (Emphasis in original.) Lyles v. State, 221 Ga. App. 560, 561 (1) (472 SE2d 132) (1996).

        Holloway v. State, 245 Ga. App. 510, 515 (3) (537 SE2d 708) (2000).


text:
    A01A1863.
    BROWN v. THE STATE.
    (554 SE2d 321)
   Phipps, Judge.

Lorenzo Brown was convicted of armed robbery and sentenced as a recidivist to 20 years imprisonment without possibility of parole. Following denial of his motion for new trial, he appeals his conviction. Brown claims that he was entitled to a new trial because the trial court erred in its jury charge on armed robbery and in its comments on the fairness of the photographic lineup, and because his trial counsel was ineffective. We find no harmful error and affirm.

State’s evidence showed that Cathy Fugatt was employed in a clerical position at the Columbus Police Department and as a cashier at a gas station in Columbus. A man appeared at the gas station while Fugatt was working there, brandished a knife, held it to her throat, and took money from the cash register. Six days later, Fugatt observed Brown seated in a patrol car outside the police station. Although she did not get a good look at Brown, she thought he appeared familiar. When Brown was taken inside the station house, Fugatt got a better view of him and recognized him as the person who had robbed her. She informed a police sergeant, who instructed a detective to compile a photographic lineup and show it to her. Upon viewing the photographic array, Fugatt positively identified Brown as the robber.

1. Brown complains of the trial court’s denial of his motion for new trial based on an erroneous jury charge on the offense of armed robbery.

“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.” In this case, the trial court in defining armed robbery gave the following unintelligible instruction: “A person commits armed robbery when, with the intent to commit theft of the person of another from the immediate presence of another by use of an offensive weapon, or by any replica, article, or device having the appearance of such a weapon.” In other parts of the charge, however, the court correctly instructed the jury on the State’s obligation to prove beyond a reasonable doubt that Brown unlawfully with the intent to commit theft had taken currency from the immediate presence of Fugatt by use of a knife, as alleged in the indictment.

Brown complains of the earlier instruction because it did not accurately inform the jury of the elements of the offense charged. It is clear, however, that the trial court’s misstatement to the jury resulted from a slip of the tongue. The general rule is that “a mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury is not reversible error.” In this case, Brown did not dispute the fact that an armed robbery had been committed; his defense was that he was not the perpetrator. Under these circumstances, and viewing the trial court’s instruction as a whole, “it is difficult to believe . . . that this verbal slip — so slight that neither the defense nor the prosecution caught it at the time — contributed to the conviction [ ]. [Cit.]”

2. Brown contends that he is entitled to a new trial because the trial court, in posing questions to the police sergeant who ordered the photographic lineup and the detective who compiled it, made impermissible expressions of opinion as to what had been proved.

Decided August 23, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, E. Wayne Jernigan, Jr., Assistant District Attorney, for appellee.

“It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” If a judge does express or intimate his opinion on a disputed issue of material fact, it is cause for a new trial. The trial judge may, however, propound a question or series of questions to any witness for the purpose of developing the truth of the case.

In this case, the trial judge propounded questions to the sergeant and detective designed to elicit testimony establishing that the photographic lineup shown to Fugatt was composed of photographs of men with similar appearances and, therefore, was nonsuggestive. We agree with Brown that through comments made during questioning, the judge did intimate an opinion that the lineup was nonsuggestive. We do not, however, find this to be cause for a new trial, because Brown never claimed that the lineup was suggestive. His claim was that the identification procedure was suggestive because Fugatt was shown the lineup after she had identified him in the station house. Under these circumstances, the judge’s comments concerning the composition of the lineup do not mandate a new trial.

3. Brown charges his trial counsel with ineffective assistance for failing to object to the judge’s comments as to the lineup. For reasons given in Division 2, we find no reasonable probability that the outcome of the trial would have been different had an objection been made.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       OCGA § 16-8-41 (a).

       (Citations and punctuation omitted.) Graham v. State, 171 Ga. App. 242, 252 (9) (319 SE2d 484) (1984).

        Banks v. State, 191 Ga. App. 344, 345 (3) (381 SE2d 548) (1989).

       OCGA § 17-8-57.

       See Chapman v. State, 217 Ga. App. 264 (1) (457 SE2d 206) (1995); Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988).

        Eubanks v. State, 240 Ga. 544, 547 (2) (242 SE2d 41) (1978); see Shields v. State, 272 Ga. 32, 34 (5) (526 SE2d 845) (2000).

       See, e.g., Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997).


author: Miller, Judge.

text:
    A01A0829.
    FLOYD v. THE STATE.
    (553 SE2d 658)
   Miller, Judge.

Kenneth Floyd appeals from his convictions on one count of forgery in the first degree and one count of forgery in the second degree. We find that the evidence was insufficient to sustain a verdict on first degree forgery and reverse that conviction. We find that the evidence was sufficient to sustain the conviction on second degree forgery and affirm that conviction.

Viewed in the light , most favorable to the verdict, the record reveals that on April 23, 1999, two men drove a white car with a black top into a drive-through lane at a First South Bank in Newnan. Although all of the drive-through lanes were open, the men drove into the third drive-through lane, which was farthest from the teller window, which made it difficult for the teller to see the men in the car. The teller believed that the men were acting suspiciously, as every time she tried to speak to them they looked away and concealed themselves from the teller.

The driver sent a check through the suction tube to the window teller that was made payable to Keith Peters and drawn on the account of The Bonnett Group, Inc. The check was signed in the name of Clint Williams. The bank teller suspected that the check was a forgery, as she had been warned previously by the bank manager about fraudulent checks that had been submitted to the bank in the recent past and made out in the name of Keith Peters. The teller informed the bank manager of the suspected forgery, and as the teller continued the transaction with the men cashing the check, bank personnel called the police.

The police arrived on the scene just as a white car with a black top matching the description given by. bank personnel was leaving the bank. As the police surrounded the car, they saw the passenger hold up a newspaper and begin stuffing some sort of paperwork between the door and the door panel on the passenger side of the car with his right hand. The police pulled the car over and, after concluding that the two men in the car were the suspects from the bank forgery, arrested them for forgery. Kenneth Floyd was the driver, and Douglas Gregory Mooney was the passenger. A search of the car revealed several checks stuffed into the space between the passenger door and the door panel, one of which was a check drawn on the account of The Bonnett Group, Inc., similar to the one that had just been cashed at First South Bank moments earlier.

The accusation against Floyd upon which he was convicted of first degree forgery stated that he made the fraudulent check that was passed at First South Bank. The accusation against Floyd for second degree forgery stated that he knowingly possessed the check that was stuffed between the passenger door and door panel of his car. Both accusations listed The Bonnell Group, Inc., as opposed to The Bonnett Group, Inc., as the victim of the forgeries.

Handwriting analysis by the police department failed to show that it was Floyd who signed the check passed at First South Bank. The State further provided no expert witness to show any comparison between the handwriting on the check and Floyd’s handwriting. Following the denial of his motion for a directed verdict on both counts of forgery, Floyd was convicted on both counts.

1. A directed verdict is proper “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count or offense. . . ,”

[T]he evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) 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, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. ... As long as there is some competent evidence ... to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

Floyd contends that based on the manner in which the State chose to proceed, there was insufficient evidence to convict him of first degree forgery. We agree and reverse the conviction.

A person commits the offense of forgery in the first degree when with intent to defraud he knowingly makes, alters, or possesses any writing in a fictitious name or in such manner that the writing as made or altered purports to have been made by another person, at another time, with different provisions, or by authority of one who did not give such authority and utters or delivers such writing.

Although there are several ways to prove forgery in the first degree, the accusation states that Floyd:

did . . . unlawfully with intent to defraud, knowingly make a certain writing, [a check] drawn on the account of THE BONNELL GROUP, INC. [sic] at First South Bank; in such a manner that the writing as made purports to have been made by Clint Williams, but the signature thereon is not Clint Williams’s signature and not signed with Clint Williams’s and The Bonnell Group, Inc.’s [sic] authority, and said accused did utter said writing to First South Bank, contrary to the laws of said State, the good order, peace and dignity thereof.

The accusation does not state the alternative means of altering or possessing a writing and uttering or delivering same as additional bases for a conviction of forgery in the first degree.

If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. . . . [N]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.

“To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance under the standards enunciated in De Palma v. State.”

The State presented no evidence that Floyd signed the check that was passed at First South Bank. There was no handwriting expert at trial to connect Floyd’s handwriting to the signature on the check. In addition, handwriting analysis conducted by the police failed to show any connection between the forged check and Floyd.

It is of no consequence that the state’s evidence may have showed and may have authorized a finding that, in violation of [OCGA § 16-9-1 (a)], appellant knowingly possessed the check containing the forged endorsement of [Clint Williams]. . . . The indictment alleged that appellant had violated [OCGA § 16-9-1 (a)] by forging the endorsement of [Clint Williams].

As such, we must reverse Floyd’s conviction for first degree forgery.

However, we find that the evidence was sufficient to sustain a guilty verdict for second degree forgery. The elements for proving second degree forgery are the same as those for first degree forgery, except that there is no requirement that the accused utter or deliver the writing. Floyd contends that there was insufficient evidence to show that he knowingly possessed the forged check that was found stuffed between the door and the door frame on the passenger’s side of the car, since he did not stuff the check into the door frame and the passenger held up a newspaper to obscure his view. We disagree.

“[F]orgery and each individual factual element thereof are capable of proof by direct and/or circumstantial evidence. To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of defendant’s guilt.” Viewed in the light most favorable to the verdict, the evidence at trial revealed that the check found in the passenger door was drawn on the account of The Bonnett Group, Inc., just like the one that had just been submitted to First South Bank moments earlier. Floyd was the driver of the car in which the second Bonnett Group, Inc. check was found, and it was the driver who had previously submitted the other forged Bonnett Group, Inc. check to the bank while attempting to conceal his identity from the teller. We conclude that based on the evidence, the jury rationally could have excluded every reasonable hypothesis other than defendant’s guilt and found Floyd guilty of second degree forgery beyond a reasonable doubt.

2. Floyd also contends that a fatal variance existed between the accusation and the State’s proof at trial, since the accusation listed The Bonnell Group, Inc., as opposed to The Bonnett Group, Inc., as the victim of the forgeries for which he was convicted. Since Floyd did not raise this challenge in a timely manner and the variance was only a typographical error, we affirm.

Decided August 8, 2001

Reconsideration denied August 24, 2001.

Fanning & Hudson, Steven E. Fanning, for appellant.

Peter J. Skandalakis, District Attorney, Raymond C. Mayer, Assistant District Attorney, for appellee.

A challenge to the form of an indictment, such as an improper identification of the victim, must be made prior to trial. If the challenge is not made in a timely manner, it is waived for appeal. Floyd did not raise any issue regarding the misnomer in the accusation until his motion for a directed verdict at trial, and he has therefore waived this issue on appeal.

Even if the issue had not been waived, we find no fatal variance here. This court will not find a fatal variance based on something that “was obviously a clerical error in an otherwise good indictment.” The accusation was easily amendable, provided sufficient information to inform Floyd of the crime with which he was charged, the date of the alleged offense, the amount of the check in question, and enough information to ensure that Floyd could not be prosecuted again for the same offense.

Judgment affirmed in part and reversed in part.

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

       (Punctuation omitted.) OCGA § 17-9-1 (a).

       (Citations and punctuation omitted.) Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

       OCGA § 16-9-1 (a).

       Since both sm indictment and accusation serve the same purpose, our analysis with respect to the accusation in this case is the same as it would be in the case of an indictment.

       (Citation and punctuation omitted.) Cantrell v. State, 162 Ga. App. 42, 43 (1) (290 SE2d 140) (1982).

       (Citations and punctuation omitted.) Id.; De Palma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969).

       (Citations and punctuation omitted.) Cantrell, 162 Ga. App. at 43 (1).

       See OCGA § 16-9-2 (a); McGowan v. State, 173 Ga. App. 438, 440 (5) (326 SE2d 805) (1985).

       (Citations and punctuation omitted.) Johnson v. State, 211 Ga. App. 151, 152 (438 SE2d 657) (1993).

       See id. at 151-152 (evidence supported second degree forgery conviction where defendant denied knowledge of checks found in glove compartment that were similar to a check he had earlier attempted to cash).

       In light of our reversal of Floyd’s conviction for first degree forgery, we need address this issue only with respect to the accusation for second degree forgery.

       See Dennard v. State, 243 Ga. App. 868, 876-877 (2) (534 SE2d 182) (2000).

       OCGA § 17-7-113.

        Arena v. State, 194 Ga. App. 883, 887 (4) (392 SE2d 264) (1990).

       Id.

       Id.

       See, e.g., McBride v. State, 202 Ga. App. 556, 557 (415 SE2d 13) (1992).


text:
    A01A0884.
    GOODMAN v. THE STATE.
    (553 SE2d 179)
   Miller, Judge.

Gene Nelson Goodman was convicted of three counts of selling cocaine. Acting pro se, he appeals, asserting several enumerations of error. As these enumerations are without merit, we affirm.

1. In his first enumeration, Goodman argues that the trial judge departed from his judicial role by allowing “a jury to convene under the direction of [the State],” and by allowing him to be tried and sentenced even though he was not present during the proceedings. On Monday, August 28, 2000, the day scheduled for trial, Goodman appeared pro se and announced that he was not ready. The court discussed various issues with Goodman and informed him that trial would begin, even in his absence, three days later on Thursday, August 31, to which Goodman responded, “I’m going to be present, Your Honor.” Without excuse Goodman did not appear, and the court conducted the trial in his absence.

Although the accused has a right to be present at every stage of the proceedings, this right is waived when he is free on bail and voluntarily absents himself from the trial, as Goodman did in this case. And “[v]oluntary absence of the accused waives his right to be present when sentence is imposed.”

2. Goodman argues that he was denied the right to have witnesses present and to confront the State’s witnesses. By not appearing for trial, Goodman waived any right to confrontation or to present his own witnesses.

3. Goodman contends that there was a “racketeering enterprise” between the State, the clerk of court, and the trial judge. He argues that the clerk charged him for subpoenas and that the trial judge failed to rule on his motions.

(a) Goodman complained that he was being charged $1 for subpoenas by the clerk. The trial court told Goodman that he could receive the subpoenas free of charge and requested the clerk to comply with this accommodation. The day of trial, the court questioned the deputy clerk who Goodman claimed denied him free subpoenas. The clerk testified that Goodman had not requested a subpoena from her and that if he had, she would have provided it free of charge. Goodman’s argument is without merit.

(b) Goodman cannot complain of the failure of the court to rule on his various motions when he did not raise these issues prior to trial and did not appear at trial.

4. Goodman complains that the trial court refused to order the sheriff to return $80 he claims was taken from his prison account. Even assuming that such request was within the trial court’s authority, there is no appealable ruling on this issue.

5. Goodman enumerates that the trial judge should be impeached for his conduct but presents no reasoned argument in support of his claim. Therefore, this enumeration is deemed abandoned. Nor would this be a proper enumeration of error.

Decided July 31, 2001

Reconsideration denied August 24, 2001

Gene N. Goodman, pro se.

Richard E. Currie, District Attorney, Paul M. Kemp, Assistant District Attorney, for appellee.

6. In three enumerations Goodman argues that his arrest was illegal in that the warrant listed the date of the crime as May 20, 1998, while the warrant application listed the date as June 24, 1998. Pretermitting whether such renders the arrest illegal, an indictment supersedes an arrest warrant. Thus, where the defendant has been indicted and convicted, an illegal arrest based on a defective warrant is not alone a ground for reversal.

7. We will not address Goodman’s third, eighth, or eleventh enumerations as they are repetitive of argument presented in other enumerations.

Judgment affirmed.

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

        Estep v. State, 238 Ga. App. 170, 172 (1) (518 SE2d 176) (1999).

       (Citations and punctuation omitted.) Id.

       Id.

       See Dowis v. State, 232 Ga. App. 111, 114 (2) (e) (501 SE2d 275) (1998).

       See Court of Appeals Rule 27 (c) (2); Green v. State, 208 Ga. App. 1, 2-3 (2) (429 SE2d 694) (1993).

        See Brown v. State, 214 Ga. App. 676, 679 (3) (448 SE2d 723) (1994).

        Roberts v. State, 186 Ga. App. 824, 825 (4) (368 SE2d 522) (1988).


text:
    A01A0944.
    MORENO v. THE STATE.
    (553 SE2d 387)
   Miller, Judge.

Following a jury trial, Hector Moreno was convicted of three counts of raping his former girlfriend. On appeal, he contends that the trial court improperly admitted portions of the victim’s videotaped interview and portions of his videotaped custodial interview by the police. We discern no error and affirm.

The evidence at trial revealed that the day after his girlfriend broke up with him, Moreno saw her walking to work in Marietta and offered her a ride. She accepted the ride, but instead of driving her to work, Moreno drove the victim to a motel in Macon, where the victim testified that he raped her three times. Medical testimony also revealed evidence of forcible intercourse.

1. In Georgia a trial judge has broad discretion to determine what evidence will be admitted for review by a jury, and such evidentiary decisions will not be disturbed on appeal absent an abuse of discretion. Moreno argues that the trial judge abused his discretion by allowing the jury to hear translated testimony during deliberations that was different from the translated trial testimony. Since the translations were not materially different, we find no abuse of discretion here.

The victim’s videotaped interview was admitted at trial. In the video the victim, in Spanish, described her relationship with Moreno following their encounter in the Macon motel. An in-court interpreter provided a simultaneous translation while the videotape was played. In the first translation, the interpreter testified that the victim stated that “after what happened,” she and Moreno continued as boyfriend and girlfriend for about 15 days. When the jury asked to see the videotape again during its deliberations, the court interpreter changed “after what happened” to “after that.” Moreno’s attorney objected to the accuracy of the second translation. Out of the jury’s presence the court interpreter determined that the correct translation was “after what he did to me,” the victim and Moreno continued as boyfriend and girlfriend for about 15 days.

Since the translations heard by the jury were substantially the same, and the correct translation appears more incriminating, the trial court did not abuse its discretion in admitting the second translation during jury deliberation. We are aware of the potential injustices to nonEnglish-speaking defendants that could result from mistranslations given at trial. However, in this particular case the evidence was sufficient to support the verdict even without the portion of the testimony that was mistranslated.

2. Moreno also contends that the trial court erred in admitting a videotape in which the police read him his Miranda rights in Spanish. Moreno urges that because the officer who translated the rights on the video was not available for cross-examination at the JacksonDenno hearing or at trial, the videotape was inadmissible. Although the arresting officer was also on the videotape and verified the contents of the videotape at the hearing and trial, and although translations at the hearing and trial were provided by the in-court interpreter, Moreno argues that the translating officer was needed to show the voluntariness of Moreno’s statements and the veracity of the officer’s translations. We disagree.

“The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by the trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous.” Once the evidence is admitted, the jury weighs the evidence.

Decided August 6, 2001

Reconsideration denied August 24, 2001

William A. Matos, for appellant.

The trial judge’s determination that Moreno’s statement was voluntary is supported by the evidence, and we will not disturb that determination on appeal. The record indicates that the arresting officer, who spoke English, had a Spanish-speaking officer translate Moreno’s Miranda rights into Spanish and read them to Moreno. The arresting officer had the translating officer read Moreno’s Miranda rights to him a second time to make absolutely sure that Moreno understood them. Each statement or question made by the arresting officer was translated by the second officer into Spanish, and Moreno’s Spanish responses were then translated for the English-speaking officer. At no time did Moreno indicate that he wanted the questioning to stop or that he wanted an attorney. Although the translating officer was not available at the Jackson-Denno hearing, a court interpreter was present who translated the content of each Spanish statement made during the videotaped custodial interview.

Only one witness is needed to verify the accuracy of a videotape in order to warrant its admission. The arresting officer was present during the entire video interview and testified as to the accuracy of the video. The fact that the interviewing officer did not speak Spanish is irrelevant, because a court translator was present at the Jackson-Denno hearing and at trial to ensure that the content of the translations was accurate. This court has held in a similar case that a defendant was not deprived of his Sixth Amendment right to cross-examine a Spanish-speaking police dispatcher who interviewed the victims, but was not called as a witness, when Spanish translators for the victims were provided at trial. Accordingly, we find no error in the trial judge’s admission of the videotape or its consideration by the jury without the testimony of the translating officer.

Judgment affirmed.

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

Howard Z. Simms, District Attorney, Barbara A. Becraft, Myra H. Kline, Assistant District Attorneys, for appellee.

        Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998); Bradford v. State, 221 Ga. App. 232, 234 (2) (471 SE2d 248) (1996).

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

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Citations and punctuation omitted.) Tucker v. State, 231 Ga. App. 210, 212 (1) (a) (498 SE2d 774) (1998).

        Haynes v. State, 244 Ga. App. 79, 81 (534 SE2d 807) (2000).

        Harper v. State, 213 Ga. App. 444, 447-448 (4) (445 SE2d 303) (1994).

       See Johnson v. State, 232 Ga. App. 717, 719 (1) (503 SE2d 603) (1998).


text:
    A01A1131.
    ISHOLA v. THE STATE.
    (553 SE2d 346)
   Miller, Judge.

A jury found Olantunji Ishola guilty of driving with an alcohol concentration greater than 0.10 grams. On appeal Ishola argues that the results of his Intoxilyzer 5000 test should have been excluded. We disagree and affirm.

Ishola argues that the officer who tested him discarded an invalid breath test and did not wait the required 20 minutes for observation before giving a subsequent test, rendering the results invalid and the test inadmissible. In support of this argument, Ishola points to the testimony of a chemist familiar with the Intoxilyzer 5000 who testified that the breath test was improperly administered because Ishola was not seated and constantly observed for 20 minutes to see whether he burped, belched, or regurgitated thereby contaminating the breath test.

The jury was not required to believe the chemist’s testimony regarding a 20-minute sit-down requirement. Even if a 20-minute observation period is a requirement, the State showed that such requirement was satisfied. The officer testified that the 20-minute requirement was met in that he stopped Ishola at 3:10 a.m. and the breath test was administered at 3:36 a.m. Although the officer testified that there were probably one and a half minutes where he was securing Ishola’s vehicle and did not observe Ishola, “[t]he failure to continuously watch [Ishola] for 20 consecutive minutes prior to the breath test does not require exclusion of the test results.”

Therefore, the trial court did not err in admitting the breath test results.

Judgment affirmed.

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

Decided August 1, 2001

Reconsideration denied August 24, 2001.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Carole C. Korn, Jeffrey P. Kwiatkowski, Jonathan D. Aurelia, Assistant Solicitors-General, for appellee.

       OCGA § 40-6-391 (a) (5).

       It was for the jury to assess the credibility of the witnesses. Butler v. State, 273 Ga. 380, 382 (1) (541 SE2d 653) (2001).

       See Klink v. State, 272 Ga. 605, 607 (2) (533 SE2d 92) (2000) (State complied with 20-minute requirement where defendant was in custody for over 20 minutes).

       (Punctuation and footnote omitted.) Bagwell v. State, 248 Ga. App. 806, 808 (1) (547 SE2d 377) (2001).