text:
    77424.
    A. L. WILLIAMS & ASSOCIATES, INC. et al. v. FAIRCLOTH.
    (391 SE2d 143)
    Decided January 25, 1990.

      Gary G. Grindler, John K. Larkins, Jr., Nicholas P. Chilivis, Stanton J. Shapiro, for appellants.

      Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellee.

      Forrest L. Champion, Jr., amicus curiae.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case, 190 Ga. App. 872 (380 SE2d 471) (1989), having been affirmed in part and reversed in part by the Supreme Court in A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767 (386 SE2d 151) (1989), our decisions in Divisions 1 and 2 are hereby vacated to the extent they are inconsistent with the judgment of the Supreme Court, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed in part and reversed in part.

Carley, C. J., and Sognier, J., concur.


source: Caselaw Access Project

author: Sognier, Judge.

license: Public Domain

text:
    A89A1691.
    TESTON v. THE STATE.
    (390 SE2d 437)
   Sognier, Judge.

Clinton Teston, Jr. appeals from his conviction for violation of OCGA § 16-8-15, conversion of payments for real property improvements.

1. Appellant first enumerates the general grounds. He was charged with misappropriating funds entrusted to him for construction of a house for “Debbie Harrell.” The jury would have been authorized to find that appellant, a residential builder, obtained a $38,000 construction loan from Broxton State Bank (the Bank) and began construction of a single family residence in Coffee County in 1987. Although Gene Merritt, a Bank vice president, testified that he understood the loan to be for the “Harrell” project, and the loan documents executed by appellant and the Bank included the handwritten notation “Harrell,” the loan documents provided that the purpose of the loan was “business — construction.” The documents also stated that the loan was secured by goods purchased with the loan proceeds, collateral securing appellant’s other loans, appellant’s deposits with the Bank, and a deed to secure debt dated 10-22-86 (although the deed to secure debt was not introduced). No evidence was presented to indicate that Debbie Harrell provided any security for the loan or paid any interest or other charges imposed by the Bank, and she did not testify at trial. Merritt testified that appellant drew the entire loan amount, and that the Bank foreclosed on the property at issue in the summer of 1987.

The evidence further disclosed that appellant purchased materials from Lott Builders Supply Company on account in May and June 1987. Gerald Hunter, Lott’s credit manager, testified that the materials were charged to appellant’s account for the “Debbie Harrell” house because Hunter thought the house appellant was building was to be sold to Harrell, but he later learned that appellant was building the house as a speculative construction project. When Teston failed to pay for approximately $7,000 worth of materials, a Lott representative swore out a warrant against appellant. Lott’s sales manager testified that after the Bank foreclosed on the property he examined the partially completed house and determined that the materials appellant purchased from Lott had been incorporated into the structure.

OCGA § 16-8-15 provides that “[a]ny . . . contractor . . . who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement while any amount for which he may be or become liable for such labor, services, or materials remains unpaid commits a felony .... A failure to pay for material or labor furnished for such property improvements shall be prima-facie evidence of intent to defraud.” (Emphasis supplied.) In Johnson v. State, 203 Ga. 147, 150, 151 (45 SE2d 616) (1947), the Supreme Court construed Ga. Code Ann. § 26-2812, a predecessor statute to Ga. Code Ann. § 26-1808.1 and OCGA § 16-8-15, as creating “a form of larceny after trust. It applies to transactions wherein payments are made for the purpose of improving real property. . . . The object of the act was to make penal the conversion of funds delivered for the purpose of applying to labor and material cost, with a provision that there would be a conversion when such funds were otherwise used while there remained any unpaid labor or material cost.” To convict a defendant under the statute, “it is necessary to prove the creation of the trust described in the indictment and a fraudulent breach of it in the manner alleged.” Davis v. State, 122 Ga. App. 311, 315-316 (176 SE2d 660) (1970).

We agree with appellant that the evidence was not sufficient to establish the essential element of misuse of “proceeds of any payment made to him on account of improving certain real property” — i.e., creation of a trust — beyond a reasonable doubt so as to satisfy the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The indictment charged appellant with misappropriation of “proceeds of payments made to him on account of improving certain real property, to wit: a house being built for Debbie Harrell in Coffee County.” However, the evidence did not establish that appellant was entrusted with funds for the specific purpose (the Harrell house construction) set forth in the indictment so as to enable a rational trier of fact to find appellant guilty beyond a reasonable doubt according to the standard set forth in Jackson, supra. There is no indication that Harrell made any payments to appellant for construction of a house, or even that Harrell had entered into a contract to purchase the house from appellant. Indeed, the evidence showed that the house was a speculative construction project. The funds drawn by appellant pursuant to his construction loan with the Bank were shown by the loan documents to be for “business — construction.” Nothing in those documents provided that the funds were to be used only for “a house being built for Debbie Harrell.” Further, the loan was secured by appellant’s assets, not by Harrell. While Gene Merritt referred to the “Harrell” project, he did not testify that appellant was required to use the loan proceeds solely for the house at issue. Moreover, Merritt stated that appellant had not defrauded the Bank in his use of those proceeds, and that appellant’s failure to repay the loan was attributable to bad business management and a downturn in the housing market. Compare Stowe v. State, 163 Ga. App. 535, 536 (1) (295 SE2d 209) (1982), wherein we found the evidence sufficient for conviction because the contractor, lender, and purchasers of the home had entered into a contract specifying that a construction account would be set up by the lender from which the contractor was to draw funds to be used solely to procure labor and materials for the construction of a house for the purchasers. We find that under the evidence presented the jury was not authorized to conclude that appellant was entrusted with money paid to him “on account of improving certain real property” — a house for Debbie Harrell — see Tant v. State, 81 Ga. App. 633-634 (59 SE2d 557) (1950), and thus the trial court erred by denying appellant’s motion for directed verdict of acquittal. See generally Brown v. State, 250 Ga. 862, 864-865 (1) (302 SE2d 347) (1983).

Decided January 25, 1990.

C. Jerome Adams, for appellant.

Harry D. Dixon, Jr., District Attorney, Albert H. Tester, Assis tant District Attorney, for appellee.

2. Because of our decision in Division 1, we need not consider appellant’s other enumeration of error.

Judgment reversed.

Banke, P. J., and Pope, J., concur.


author: Carley, Chief Judge.

text:
    A89A1906.
    SMITH v. THE STATE.
    (390 SE2d 304)
    Decided January 25, 1990.

      John S. Myers, for appellant.

      Harry D. Dixon, Jr., District Attorney, George E. Barnhill,

      Deborah M. Perils, Assistant District Attorneys, for appellee.
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of three counts of selling cocaine. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The sole enumeration of error advanced by appellant’s counsel relates to the trial court’s failure to compel the State to disclose the identity of a confidential informant. The record shows that the participation of the confidential informant was limited solely to supplying the name of appellant after the officers had independently arranged and accomplished the purchases. Compare Moore v. State, 187 Ga. App. 387 (370 SE2d 511) (1988). Thus, the officers’ positive identification of appellant as the seller of the cocaine was based entirely upon their personal observations and not upon any information supplied by the confidential informant. Although the confidential informant was a witness to the sales, he was not the only witness. See Ponder v. State, 191 Ga. App. 346, 347 (381 SE2d 534) (1989). Compare Jones v. State, 192 Ga. App. 186 (384 SE2d 273) (1989); Moore v. State, supra. Appellant presented an alibi defense and offered witnesses in support thereof. Compare Ponder u. State, supra at 347; Moore v. State, supra. Under these circumstances, we find no error in the failure of the trial court to compel the disclosure of the identity of the confidential informant. “[T]he informant was not the only witness available to amplify or contradict the testimony of the police officer [s] or [appellant].” Ponder v. State, supra at 347.

2. Acting pro se, appellant seeks to have appellate consideration given to an additional issue which he asserts that his counsel has “categorically refused” to raise. Appellant has no right to simultaneous representation by counsel and self-representation. Cargill v. State, 255 Ga. 616, 622 (3) (340 SE2d 891) (1986). Accordingly, we will not consider the issue that appellant has himself raised on appeal.

Judgments affirmed.

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


author: Banke, Presiding Judge.

text:
    A89A2209.
    MASSENGALE et al. v. MOORE.
    (390 SE2d 439)
    Decided January 25, 1990.

      Sherry L. Stenson, for appellants.
   Banke, Presiding Judge.

This is an appeal from an order dismissing for want of prosecution a personal injury action filed against the appellee by the appellants. The dismissal order states that the case was “called for the purpose of considering pending motion of defendant for enforcement of a settlement agreement or, in event that said motion had been denied, for trial on its merits.” The court determined that the case should be dismissed for want of prosecution for the stated reason that, after the defense had “announced its readiness and willingness to proceed,” appellant’s counsel, “without proper authority or permission of the court . . . voluntarily left the courtroom, thus indicating her intention not to prosecute her case, respond to defendant’s motion, or otherwise present any matter to the court.” Held:

1. The appellant has moved this court to supplement the record on appeal through the inclusion of a transcript of the proceedings in the trial court. However, the clerk of the lower court has certified to this court that no such transcript was ever filed in that court. The burden is on the complaining party to have the record completed in the trial court in accordance with the provisions of OCGA § 5-6-41 (f). See Campbell v. Crumpton, 173 Ga. App. 488 (326 SE2d 845) (1985); Gibbs v. Browning, 172 Ga. App. 76 (321 SE2d 813) (1984). The appellant’s motion is accordingly denied.

2. Under the unusual circumstances of this case, as revealed by the court’s order and by other portions of the record, we hold that dismissal of the appellant’s complaint was not authorized and that the appropriate course of action for the trial court to have taken in the face of appellant’s counsel’s refusal to proceed was simply to grant the relief sought by the appellee-defendant, which was the enforcement of the settlement agreement reached by the parties. We accordingly reverse the judgment of the trial court and remand the case with direction that judgment be entered in favor of the appellant in the amount of $9,000 which is the amount of the settlement the appellee was seeking to enforce.

Judgment reversed and case remanded with direction.

Sognier and Pope, JJ., concur.

Allen C. Levi, for appellee.


text:
    A89A2249.
    LANDERS v. THE STATE.
    (390 SE2d 302)
   Carley, Chief Judge.

Appellant was indicted for four counts of aggravated child molestation and one count of cruelty to children. The victim was, in each instance, appellant’s daughter. After a jury trial, he was found guilty. Appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. On direct examination, the State’s expert witness testified to her opinion that the victim had been sexually abused. Appellant moved for a mistrial. The trial court denied the motion but gave the following curative instruction: “I’m going to ask that the record be stricken as to her opinion that the child had been sexually abused, and instruct the jury to disregard that. That will be a matter for you to decide based on any testimony that’s given. That’s an ultimate — an issue for the jury to decide, and her conclusion or opinion as to the fact that this child had been sexually abused will be disregarded.” The trial court’s denial of appellant’s motion for mistrial is enumerated as error.

“There is conflicting authority as to whether such expert testimony is admissible. Such cases as State v. Butler, 256 Ga. 448 (2) (349 SE2d 684) (1986); [cits.], hold that it is, while in Allison v. State, 256 Ga. 851 (6) (353 SE2d 805) (1987), the Supreme Court appeared to express the opinion that it is not. In either event, however, we conclude that the trial court did not abuse its discretion in denying the motion for mistrial in the present case. In Sabel v. State, 250 Ga. 640 (5), 644 (300 SE2d 663) (1983), overruled on other grounds in Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984), the Supreme Court enumerated certain circumstances to be considered in determining whether the possible prejudice resulting from improper testimony can be cured so as to avoid the necessity of granting a mistrial. These include ‘the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ Sabel v. State, supra at 644. In the present case, expert testimony was . . . properly before the jury to the effect that the victim in question exhibited behavioral characteristics typically exhibited by sexually abused children. In the context of this evidence and of the strong curative instructions given to the jury by the court, we hold that the trial court did not abuse its discretion in denying the motion for mistrial.” Wilson v. State, 188 Ga. App. 779, 781 (2) (374 SE2d 325) (1988).

Decided January 25, 1990.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, for appellee.

2. The State elicited testimony from another of appellant’s daughters and two of his stepdaughters “that he had also molested them [and friends of theirs]. All three of these witnesses were adults, but the acts of molestation to which they testified had all occurred when they [and their friends] were [under fourteen years old]. [T]heir testimony related to acts perpetrated by appellant some [11] to 22 years prior to the alleged acts of molestation for which he was being tried. Limiting instructions were given to the jury as to the purpose for which the ‘other crimes’ testimony was being admitted.” Cox v. State, 173 Ga. App. 422 (1) (326 SE2d 796) (1985). Appellant enumerates the introduction of this testimony as erroneous.

“Our Supreme Court has noted that ‘(t)he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses [Cits.]’ [Cit.]. . . . ‘The sexual molestation of young children, regardless of sex or type of act, is [of] sufficient similarity to make the evidence admissible.’ [Cit.] Appellant . . . contends that the previous acts of molestation . . . were so remote in time as to militate against the admission of testimony concerning their commission. ‘. . . We cannot say there was no logical connection between [the acts for which he was being tried and] the defendant’s molesting of his [older daughter and stepdaughters and their friends when they were under fourteen years old]. The . . . testimony [was] relevant to show defendant’s intent, bent of mind or general plan to gratify his lust, passion and sexual desires ([cit.]), an element in the crimes with which he was charged. [Cits.]’ [Cit.] The testimony was not erroneously admitted.” Cox v. State, supra at 422-23 (1).

3. Appellant urges that the trial court erroneously failed to provide him an opportunity to cross-examine a State witness. The record shows, however, that the trial court specifically afforded appellant the right to cross-examine the witness. Thus, this enumeration is without merit.

Judgment affirmed.

McMurray, P. J., concurs. Beasley, J., concurs in judgment only.


author: Deen, Presiding Judge.

text:
    A90A0135.
    McSMITH v. MARSHALL.
    (390 SE2d 126)
    Decided January 25, 1990.
    Derek McSmith, pro se.

    Carolyn Marshall, pro se.

   Deen, Presiding Judge.

This case involves an appeal from the decision of the State Court of Fulton County reviewing the decision of that county’s magistrate court concerning an altercation between appellant and appellee.

OCGA § 5-6-35 (a) (11) requires that such decisions of the State Court be brought to this court by application for a discretionary appeal rather than by direct appeal. Appellant has failed to follow these mandatory procedures. Therefore, this appeal must be dismissed.

Appeal dismissed.

Pope and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A1914.
    HOWARD v. THE STATE.
    (390 SE2d 415)
   McMurray, Presiding Judge.

Defendant Howard was indicted, tried and convicted of the offenses of child molestation, aggravated child molestation, and statutory rape. On September 28, 1988, defendant was sentenced. His motion for new trial was timely filed, and on April 20, 1989, the trial court’s order granting his motion for new trial was entered. On May 1, 1989, the first day of the May term of the Superior Court of DeKalb County (OCGA § 15-6-3 (37)), the State filed its motion for reconsideration requesting an order setting aside the grant of defendant’s motion for new trial. After a lengthy hearing, the State’s motion for reconsideration was granted on June 9, 1989, and defendant’s motion for new trial was denied. Defendant’s notice of appeal was filed on June 22, 1989. Subsequently, on August 14, 1989, the trial court entered an order which granted defendant’s motion for new trial as to the offense of statutory rape only, and ordered “that the Defendant be granted an order of nolle prosequi” on the statutory rape charge. Held:

1. Defendant, acting pro se in the case sub judice, contends that the trial court erred in vacating its grant of his motion for new trial. Indeed, it is clear under this Court’s recent decision in Pledger v. State, 193 Ga. App. 588 (388 SE2d 425) (1989), that the trial court’s power to reinstate the original judgment had expired at the end of the March term during which defendant’s motion for new trial had been granted. In the case sub judice, proceedings to revive the convictions were not begun during the term in which the order granting the new trial was entered. Compare Bowen v. State, 239 Ga. 517, 518 (2) (238 SE2d 62). Defendant is entitled to a new trial.

Decided January 9, 1990

Rehearing denied January 26, 1990

W. Edward Nethery, for appellant.

Edgar W. Howard, pro se.

Robert E. Wilson, District Attorney, Desiree L. Sutton, J. Thomas Morgan, Assistant District Attorneys, for appellee.

2. Review of the transcript in the light most favorable to the jury’s verdict reveals evidence sufficient to enable any rational trier of fact to find beyond a reasonable doubt that defendant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Daniels v. State, 192 Ga. App. 446 (1), 447 (385 SE2d 107).

3. Defendant’s remaining enumerations of error are either rendered moot by Division 1 of this opinion, deemed abandoned due to lack of argument or citation of authority in support thereof, or present nothing for appellate review since they attempt to raise issues which were not submitted to the trial court.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2333.
    FIRST UNION NATIONAL BANK v. CUMBERLAND CREEK COUNTRY CLUB.
    (390 SE2d 422)
   McMurray, Presiding Judge.

First Union National Bank (“First Union”) filed an action against Cumberland Creek Country Club (“Cumberland Creek”) and alleged that Cumberland Creek is in default in the repayment of a secured debt. First Union sought to recover on the debt and to foreclose Cumberland Creek’s right to redeem its interest in the collateral. Cumberland Creek answered and admitted that the debt was past due, but defended on the ground that it had cured the default by tendering “partial payment” to First Union. Cumberland Creek counterclaimed and alleged that it had suffered damages as the result of First Union’s failure to promptly surrender the title to collateral which had been pledged (hypothecated) in an unrelated loan transaction. The case was tried before the court without a jury and the trial court denied First Union’s “request for a writ of possession . . .” and entered judgment for Cumberland Creek on its “counterclaim in the amount of $1,460.00.” The trial court did not rule on First Union’s claim to recover on the debt. This appeal followed. Held:

Decided January 12, 1990

Rehearing denied January 26, 1990.

Jones, Morrison & Womack, Lewis N. Jones, for appellant.

Hoitink, Whitfield & Halpin, James R. Whitfield, for appellee.

“Where there is a case involving multiple parties or multiple claims, a decision adjudicating fewer than all the claims or the rights and liabilities of less than all the parties is not a final judgment. OCGA § 9-11-54 (Code Ann. § 81A-154). In such circumstances, there must be an express determination under OCGA § 9-11-54 (b) (Code Ann. § 81A-154) or there must be compliance with the requirements of OCGA § 5-6-34 (b) (Code Ann. § 6-701). Where neither of these code sections are followed . . . , the appeal is premature and must be dismissed. Myers v. Mobil America Corp., 132 Ga. App. 331 (208 SE2d 169); Johnson v. Martin, 132 Ga. App. 813 (209 SE2d 256); Hancock v. Oates, 244 Ga. 175, 177 (259 SE2d 437).” Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677). In the case sub judice, the trial court did not adjudicate First Union’s claim on the debt. It therefore follows that no final judgment was entered. Consequently, since there was no express determination under OCGA § 9-11-54 (b) and since there was no compliance with OCGA § 5-6-34 (b), this appeal must be dismissed. See OCGA § 5-6-34 (a) (1).

Appeal dismissed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A1681.
    LAMB v. UNITED STATES SALES CORPORATION.
    (390 SE2d 440)
   Carley, Chief Judge.

After receiving what he contends was notification that he had won a sweepstakes being conducted by appellee-defendant, appellant-plaintiff attempted to collect a monetary prize. Appellee refused to make payment, responding that it had merely notified appellant that he was eligible to enter the sweepstakes and not that he had actually won a prize. Appellant then filed suit against appellee, alleging claims for breach of contract, fraud and violation of the Fair Business Practices Act (FBPA), OCGA § 10-1-390 et seq. Appellee answered and subsequently moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

1. The notification that was sent to appellant was clearly an initial solicitation of his entry into the sweepstakes and not the definite offer to him of the right to claim a sweepstakes prize. The notification indicated that appellant had “been designated to receive” a specified monetary award “when you are the grand prize winner. Please check your mail closely in the next few days for details. ... No purchase necessary. Total dollar amount will be given away subject to returning the prize winning entry.” (Emphasis supplied.) “[T]he word when is frequently used as equivalent to the word if.” (Emphasis in original.) Atlantic Coast Line R. Co. v. Jones, 132 Ga. 189, 195 (4) (63 SE 834) (1909). “The word ‘subject’ means, ‘being under the contingency of; dependent upon or exposed to (some contingent action).’ [Cit.]” Blue Ridge Apt. Co. v. Telfair Stockton & Co., 205 Ga. 552, 558 (54 SE2d 608) (1949). Thus, by its terms, the notification indicated that, in the event appellant entered the sweepstakes and won the grand prize, then he would be entitled to claim the specified monetary award. No genuine issue of material fact remains as to appellant’s claim for breach of contract.

Decided January 26, 1990.

S. Robert Hahn, Jr., for appellant.

Kidd & Vaughan, Gwenn D. Holland, for appellee.

2. Likewise, no genuine issue of material fact remains as to appellant’s fraud and FBPA claims. There was no actionable misrepresentation or deceptive act on the part of appellee. “Although [appellant] may have misunderstood the [notification], we find no merit in the claim that [it] was misleading or deceptive.” Blum v. GMAC, 185 Ga. App. 714, 717 (2) (365 SE2d 474) (1988). Moreover, the undisputed evidence of record shows that there was no reliance by appellant upon the notification that he received. See generally Zeeman v. Black, 156 Ga. App. 82, 87 (273 SE2d 910) (1980).

3. Based upon a review of the entire record and the briefs filed in this court, we are “compelled to regard this appeal as frivolous. Accordingly, pursuant to Court of Appeals Rule 26 (b), we assess against the appellant a penalty of $200 for filing a frivolous appeal.” Davis v. Beard, 184 Ga. App. 88, 89 (360 SE2d 642) (1987). See also King v. Gilman Paper Co., 184 Ga, App, 228 (361 SE2d 390) (1987). We direct that the penalty so imposed be included in the remittitur transmitted to the trial court.

Judgment affirmed with direction.

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


text:
    A89A2198.
    YOUNG v. THE STATE.
    (390 SE2d 305)
   Sognier, Judge.

Richard Junior Young was convicted on three counts of molesting his ten-year-old stepdaughter. He appeals from the denial of his motion for new trial.

1. Appellant contends he should have been granted a new trial pursuant to OCGA § 5-5-23 because of the existence of newly discovered evidence concerning the trial testimony of his daughter, Deanna Young, and physical and psychological tests performed on the victim.

To obtain a new trial on this basis, a movant must satisfy the court “(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness is attached to the motion or its absence accounted for; and (6) that the new evidence does not operate solely to impeach the credibility of a witness. All six requirements must be satisfied before a new trial will be granted.” Humphrey v. State, 252 Ga. 525, 528 (314 SE2d 436) (1984).

(a) Deanna Young, appellant’s twenty-two-year-old daughter, testified at trial that appellant molested her once when she was ten and attempted to molest her when she was thirteen or fourteen, and that when she told her mother about the incidents, her parents argued and appellant then attempted suicide by taking an overdose of pills. In support of his new trial motion, appellant filed an affidavit given by Ms. Young in which she averred that these incidents of molestation did not occur, but that she gave her trial testimony Under pressure from her stepmother, the victim’s mother, and that the prosecutor had told her appellant would not be incarcerated if convicted. At the hearing on appellant’s motion, Ms. Young first stated that the molestation incidents she described at trial did not occur, but upon cross-examination she testified that at the time of the trial she thought she was telling the truth but now was unsure because she had been under so much pressure during that time. Ms. Young did reaffirm her testimony regarding her disclosure to her mother and appellant’s subsequent suicide attempt, and acknowledged that the prosecutor had told her prior to the trial that appellant would receive a prison term if convicted.

This evidence fails to satisfy at least two of the six requirements for grant of a new trial under OCGA § 5-5-23. Ms. Young’s affidavit and testimony clearly were offered to impeach her trial testimony, which is not a permissible basis for authorizing a new trial. Hutto v. State, 158 Ga. App. 3 (279 SE2d 278) (1981). Further, as appellant testified at trial and admitted to one of the charged incidents of molestation, the question of whether he molested his own daughter several years earlier is not so material that it would likely produce a different verdict. See Bailey v. State, 150 Ga. App. 211, 212 (2) (257 SE2d 334) (1979). Moreover, after careful consideration of the evidence the trial court found that Ms. Young’s trial testimony was credible but that her testimony at the hearing was not credible, in that it was confusing, equivocal, and apparently influenced by her distress over appellant’s lengthy sentence. “On the hearing of a motion for a new trial based on newly discovered evidence the trial judge becomes the trier of the facts. . . . ‘ “A reviewing court will not in such a case control his discretion as to the . . . credibility of the witnesses . . . .” [Cits.]’ [Cit.]” Herrin v. State, 71 Ga. App. 384, 387 (31 SE2d 124) (1944).

(b) Appellant’s contention that he was entitled to a new trial because of newly discovered evidence that reports of physical and psychological examinations of the victim were available is similarly without merit. Appellant did not introduce the medical report at the hearing or present any evidence as to the findings made in the report. With regard to the alleged psychological report, appellant’s counsel stated only that he understood that the victim had been admitted to a mental health facility prior to trial. No evidence was presented to show that a report was made or what information it contained. The prosecutor stated that he had informed trial counsel of the medical report prior to trial, but that he had no knowledge of the existence of a psychological report and was not aware that such an examination had been conducted. Because appellant has not shown what these purported reports contain, let alone established that they were so material as to make a different verdict probable, we find no abuse of the trial court’s discretion in the denial of appellant’s motion. See Lord v. State, 156 Ga. App. 492-493 (1) (274 SE2d 641) (1980).

2. Appellant next enumerates as error the denial of his new trial motion made on the ground that the State wrongfully withheld “potentially exculpatory evidence” required to be produced in response to his notice to produce made in accordance with Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). Specifically, he contends that the State failed to produce the reports of the victim’s medical and psychological examinations.

We find no error. As discussed in Division 1, supra, the State had no knowledge of the existence of a psychological report. Even assuming such a report existed — a fact not established by the record — the State is not required to conduct an investigation for the defense or search for evidence not in the State’s possession. Rini v. State, 236 Ga. 715, 718 (4) (225 SE2d 234) (1976). As to the medical report, even assuming, without deciding, that appellant made a specific Brady request, see Timberlake v. State, 246 Ga. 488, 493-494 (2) (271 SE2d 792) (1980), and that the prosecution failed to comply by producing the report, the record is totally devoid of any evidence that the medical report was material within the meaning of Brady. See Timberlake, supra; see also Baltimore v. State 165 Ga. App. 741, 742 (1) (302 SE2d 427) (1983). Accordingly, we find no error in the denial of appellant’s motion on this ground.

3. Appellant also sought a new trial on the ground that he received ineffective assistance of counsel at trial. Specifically, he contends that trial counsel (1) failed to investigate sufficiently prior to trial; (2) failed to pursue other methods for obtaining the medical reports after they were not produced by the State; (3) made no objections during trial; and (4) “failed to utilize any favorable evidence.”

When a criminal defendant alleges ineffective assistance of counsel, he bears the burden “to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.]” Williams v. State, 258 Ga. 281, 286 (7) (368 SE2d 742) (1988). The evidence presented at the hearing in support of this argument consisted of the testimony of Robert Young, appellant’s brother, who stated that to his knowledge trial counsel did not interview other family members or prospective witnesses, did not contact the man who allegedly had been the target of a prior false molestation claim made by the victim, and did not call as a trial witness a fourteen-year-old niece of appellant who purportedly had knowledge material to the victim’s character. However, as Robert Young acknowledged he was not an attorney or investigator and did not follow trial counsel around during trial preparation, and trial counsel did not testify at the hearing, there is no competent evidence to establish that counsel’s trial preparation fell below the requisite standard or that there were witnesses whose testimony likely would have changed the outcome of the trial. See id. at 288. Appellant’s argument concerning the medical reports is without merit because, as we determined in Division 2, supra, there is nothing in the record that material medical or psychological evidence existed. Further, appellant has identified no trial evidence or conduct to which he contends counsel should have objected and no admissible “favorable evidence” that likely would have produced a different result. Viewing “the totality of the representation provided by counsel,” Oliver v. State, 170 Ga. App. 767, 768 (1) (318 SE2d 207) (1984), we concur in the trial court’s conclusion that counsel was not ineffective.

4. Appellant asserts that he was denied a fair trial, but has provided neither citations of authority nor references to instances prior to or during trial where his rights under the federal and state constitutions were abridged, and in our review of the record and transcripts we found no constitutional errors.

Decided January 26, 1990.

Lavigno, Dawkins & Serio, William W. Lavigno III, for appellant.

John M. Ott, District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2050.
    MILLER v. THE STATE.
    (390 SE2d 291)
   Sognier, Judge.

Robert Franklin Miller appeals from his conviction of aggravated child molestation for an incident involving his stepdaughter.

1. Appellant challenges the trial court’s conclusion that appellant’s wife voluntarily consented to the search of their home and thus the evidence found during that search (pornographic magazines and videotapes) was admissible. At the hearing held pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), Detectives Randy Shirley and Mike Crozier testified that appellant was arrested as he and his wife, Shirley Miller, were driving to pick up their three children from school. The detectives asked Mrs. Miller to follow them in the couple’s car, but because she had no driver’s license, Detective Shirley drove her to the Stephens County jail in her car. He stated that during the drive he explained to her that her children were in the custody of the Department of Family & Children’s Services. At the jail, the detectives requested Mrs. Miller’s permission to search the family residence. Detective Shirley testified that he reviewed the consent form with her in detail, that she was “very cooperative” during this discussion and the subsequent search, and that she readily agreed to the search. He stated that he may have indicated to her that they would obtain a warrant if she did not consent, but neither detective recalled telling her that the matter would be easier for her husband if she complied. Mrs. Miller confirmed the sequence of events, but testified that she signed the consent form only because she wanted to help her husband and see her children. She acknowledged having read and understood the consent form, but stated that she thought she had no choice, as the detectives told her that “it would be easier and save time if [she] would just co-operate” or they would obtain a warrant.

When a motion is made to suppress the fruits of a consensual search, “the burden is upon the state to ‘demonstrate that the consent was voluntarily given, and not the result of duress or coercion, express or implied. Voluntariness is a question of fact to be determined from all the circumstances.’ [Cits.]” Code v. State, 234 Ga. 90, 93 (214 SE2d 873) (1975). We conclude that the evidence supports the trial judge’s finding that Mrs. Miller’s consent was freely and voluntarily given. A law enforcement officer’s statement that a search warrant will be sought if consent is not given is permissible provided the officer has probable cause to obtain a warrant, id. at 95, and here the detectives did have probable cause because the victim had told them about the existence of the materials seized during the subsequent search. Flournoy v. State, 131 Ga. App. 171, 172 (4) (205 SE2d 473) (1974), cited by appellant, is not applicable because in the instant case Mrs. Miller was not in custody and was neither under arrest, threatened with arrest, nor charged with a crime. Although Mrs. Miller undoubtedly was concerned about her husband and children, that circumstance, without more, does not compel a finding of coercion, as there was no evidence she was told she could not see her children until she consented or that her husband would be dealt with less severely if she cooperated. See Code, supra at 94-95. Accordingly, we find no error in the trial court’s denial of the motion to suppress and subsequent admission into evidence of the materials obtained during the search.

2. Appellant’s contention that the trial court erred by allowing a witness to testify as to statements made to the witness by the victim regarding acts of sexual abuse committed by appellant without a prior determination of the victim’s competency is controlled adversely to him by OCGA § 24-3-16 and Newberry v. State, 184 Ga. App. 356, 358 (4) (361 SE2d 499) (1987). To the extent that appellant’s argument on this enumeration in his brief can be construed to raise a constitutional challenge to the applicable law, we cannot address this issue because enumerations may not be enlarged by arguments in appellate briefs to cover issues not contained in the original enumeration. Newberry, supra at 357 (1).

3. Appellant’s final enumeration of error concerns the admission into evidence of statements he made to the detectives concerning the possibility of pleading guilty to avoid putting his family through the trauma of a trial. At the hearing conducted pursuant to Jackson v. Denno, supra, appellant stated that he raised the prospect of a guilty plea only because the detectives told him that both he and his family would be better off if he pleaded guilty, and that his wife and others had acknowledged his guilt. Detective Shirley testified that neither he nor Detective Crozier promised appellant that “it would go easier on him and his family” if he entered a guilty plea, and that after they told him they could make no promises about the sentence he would receive or the date his stepdaughter would be returned to the family, appellant requested counsel and the interview was terminated.

Decided January 17, 1990

Rehearing denied January 29, 1990

Adams, Clifton & Sanders, Michael R. Sleister, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

OCGA § 24-3-50 prohibits the introduction into evidence of any incriminating statement made by the accused to law enforcement officials if the statement was “induced by another by the slightest hope of benefit.” See Johnson v. State, 238 Ga. 27-28 (1) (230 SE2d 849) (1976). Here, the detective denied having made the comment claimed by appellant. “The trial court’s findings regarding factual determinations and credibility when considering the admissibility of a [statement] will be upheld on appeal unless clearly erroneous. [Cit.] The trial court being authorized to accept the [detective’s] word over appellant’s, [cit.], we find no error in the admission of the statement.” Bryant v. State, 193 Ga. App. 840, 841 (_SE2d_) (1989).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2278.
    GEORGIA MESSENGER SERVICE, INC. v. GEORGIA PUBLIC SERVICE COMMISSION et al.
    (390 SE2d 283)
   Sognier, Judge.

Georgia Messenger Service, Inc. appeals from the trial court’s affirmance of the grant by the Georgia Public Service Commission (PSC) of an amendment to the certificate of public convenience and necessity of Quicksilver Express Courier of Georgia, Inc. (Quicksilver).

The record reveals that appellee Quicksilver sought to amend its Class “B” certificate and that appellant, along with five other messenger services operating in the Atlanta area, protested part two of Quicksilver’s application, in which Quicksilver sought to expand its courier service to one Atlanta law firm. An administrative hearing was held, and the hearing officer found that no basis existed for denying the application. Appellant appealed that decision to the full commission, which affirmed the decision of the hearing officer. Appellant then filed a petition for judicial review in the Superior Court of Fulton County which, after a hearing, entered an order affirming the PSC’s grant of the amended certificate.

The standard of review of contested cases under the Georgia Administrative Procedure Act, OCGA § 50-13-1 et seq., is set forth in OCGA § 50-13-19 (h), which provides in pertinent part that the reviewing court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. . . . [but may] reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: . . . [a]ffected by . . . error of law; . . . [or c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

1. In appellant’s first six enumerations it contends the PSC and the superior court erred by affirming the grant because the hearing officer applied an incorrect legal standard to the evidence presented.

(a) Appellant first argues, relying solely on foreign authority, that because the amendment was sought on the basis of a need expressed by a single shipper (the law firm), i.e., a “private” need, it did not meet the requirement in OCGA § 46-7-7 (a) (2) that it “serve a useful public purpose and be responsive to a public demand or need.” (Emphasis supplied.) However, the shipper in this case is a member of the public and, as explained by the hearing officer in his order, “it has long been the Commission’s practice to issue plantsite or single shipper authority under Class ‘B’ Certificates.” Appellant’s arguments appear to be based primarily on a theory that the PSC must protect it from competition in its service area. The foreign cases cited by appellant hold that where service is being provided in a certain area, new applications do not indicate a “public” need and may not be approved. Such is not the case in Georgia. Rather, the PSC is, in fact, prohibited by OCGA § 46-7-7 (d) from considering the “diversion of revenue or traffic from an existing motor carrier to be grounds for denial of an application,” and thus we find no error in the superior court’s affirmance of the PSC’s conclusion that “the use of the term ‘public’ in OCGA § 46-7-7 is intended to distinguish . . . private carriage operations which require no certificate of public convenience and necessity.”

(b) Appellant also argues that the hearing officer’s comments cited in Division 1 (a) are evidence that he applied the wrong standard. However, the hearing officer’s order recites that “[t]he evidence established that the proposed service will serve a useful public purpose and be responsive to a public demand or need,” thereby indicating that the hearing officer considered the evidence under the proper standard. Moreover, appellant admits that the superior court applied the correct standard, and the superior court specifically found that “[a]fter review of the record . . . there is some evidence to support a finding of ‘public need.’ ” Accordingly, as we find that the correct standard was applied, and some evidence exists to support the superior court’s decision below, we find no merit in appellant’s first six enumerations. See RTC Transp. v. Ga. Public Svc. Comm., 165 Ga. App. 539, 540-541 (2) (301 SE2d 896) (1983).

Decided January 16, 1990

Rehearing denied January 29, 1990

EUenberg & Bryan, Richard D. Ellenberg, Leslie J. Bryan, for appellant.

Michael J. Bowers, Attorney General, Victoria H. Tobin, Assistant Attorney General, Mitchell & Jones, Bruce E. Mitchell, for appellees.

2. Appellant contends the superior court erred by affirming the decision of the PSC because the hearing officer failed to make a finding that Quicksilver was financially able to perform the service it sought to add, as required by OCGA § 46-7-7 (a) (1) (A), and the evidence presented by Quicksilver was insufficient to demonstrate its financial fitness. We do not agree.

At the time it applied for the amendment to its certificate, Quicksilver was the holder of a valid certificate, for the issuance of which a showing of financial responsibility was a necessary precondition. The record indicates that at appellant’s request the hearing officer took official notice of the financial statement already on file with the commission, and thus we cannot agree with appellant that Quicksilver presented no evidence of financial responsibility. Although it is true that the hearing officer made no specific finding of financial responsibility, neither did appellant or the other protestants offer any evidence indicating that Quicksilver was not financially able to provide the service for which it sought authority. The superior court stated that “the financial reports [officially noticed] under the context of this whole thing are sufficient, at least to allow the [PSC] to have some basis for making this finding . . . [and it] does provide some evidence.” We find no error in this analysis. In reviewing this matter the superior court pointed out some evidence in the record which supported the PSC’s determination that Quicksilver had the requisite financial ability, and thus we find appellant’s enumerations in this regard meritless as well. See generally Horizon Indus. v. Carter, 188 Ga. App. 194, 196 (372 SE2d 301) (1988).

3. Appellant’s final contention is that the hearing officer failed to find that the amendment sought operated to discriminate against similarly situated businesses. However, as discussed above in Division 1 (a) of this opinion, the PSC is prohibited from considering the economic impact on other carriers in determining whether applications should be approved or denied. Accordingly, the “discrimination” alleged by appellant could not have been considered by the PSC. See OCGA § 46-7-7 (d). Thus, we find no error in the superior court’s order on this basis.

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A2326.
    GREEN v. THE STATE.
    (390 SE2d 285)
   Banke, Presiding Judge.

On May 31, 1989, while on patrol in an area of Albany regarded by them as a “heavy drug activity area,” two plain-clothes police officers observed the appellant engaged in conduct which they associated with drug dealing. Upon seeing the officers, the appellant turned to walk away from them, making an apparent dropping gesture with his hand as he did so. The officers thereupon confronted him and during routine questioning learned that he was on probation. They then caused him to be transported to the police station, where, pursuant to the terms and conditions of his probation, he was directed to produce a urine specimen for chemical analysis. Based on the results of the tests performed on the specimen, which revealed the presence of cocaine metabolites in the appellant’s system, the state both filed a petition to revoke his probation and procured an indictment charging him with possession of cocaine. The present appeal is from the appellant’s conviction and sentence on the cocaine possession charge.

The appellant has disclosed in his brief filed in support of this appeal that he “stipulated” during the probation revocation proceedings “to the violation of May 31, 1989,” following which he was “sentenced” to serve 90 days in jail for violating his probation. However, it does not appear that any such stipulation was made or brought to the attention of the jury during the trial of the present case. Consequently, the appellant’s conviction on the cocaine possession charge rests solely on the urinalysis results revealing the presence of cocaine metabolites in his system. Held:

1. “ ‘The presence of cocaine in a defendant’s bodily fluids is considered to be direct positive evidence of possession of cocaine (Cit.)’ [Cits.] Accordingly, there was sufficient evidence produced at trial to authorize any rational trior of fact to find appellant guilty beyond a reasonable doubt of possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Stevens v. State, 165 Ga. App. 814, 815 (1) (302 SE2d 724) (1983).” Buffington v. State, 190 Ga. App. 365 (1) (378 SE2d 884) (1989).

2. The appellant contends that his Fourth Amendment rights were violated by the invocation of the mandatory conditions of his probation to obtain a urine sample for use as evidence against him in an independent criminal prosecution. We disagree.

The appellant was prohibited under the terms of his probation from utilizing any controlled substance except pursuant to a physician’s prescription; and he was required to produce “from time to time upon oral or written request by any probation supervisor, or by any city, county or state law enforcement officer, ... a breath, spittle, urine, and/or blood specimen for analysis for the possible presence of” such substances. In Smith v. State, 250 Ga. 438, 439 (298 SE2d 482) (1983), the Georgia Supreme Court held that “[t]he requirement that a probationer, upon request, produce body fluid for analysis is reasonable as an aid in determining compliance with the prohibition upon the use of controlled substances.” Cf. Griffin v. Wisconsin, 483 U. S. 868 (107 SC 3164, 97 LE2d 709) (1987), and Luke u. State, 178 Ga. App. 614 (2) (344 SE2d 452) (1986) (upholding the validity of an analogous requirement authorizing warrantless searches of the probationers’ homes). While conceding that a probationer may lawfully be required to produce bodily fluid specimens for chemical analysis upon the request of a probation officer engaged in the routine performance of his duties, the appellant contends that where, as in the present case, other law enforcement officials are permitted to make such requests, the potential for police harassment becomes so great as to invalidate the condition. However, the Georgia Supreme Court rejected such an argument in Smith, supra, holding that where “the request for urinalysis . . . arose out of [the defendant’s] probationary status, and was made by a local law enforcement officer, in the county where he had been convicted, with the express intention of monitoring his compliance with the terms of his probation,” no ground for reversal existed. Id. 250 Ga. at 440.

Although the request for urinalysis at issue in the present case was not made as a routine incident of the probation supervision process, as was the case in Smith, supra, it is apparent without dispute from the record that it was prompted by a good-faith suspicion, arising from routine police investigative work, that the appellant was dealing in drugs, rather than by a desire to harass him. We are unwilling to hold that the request was violative of the appellant’s Fourth Amendment rights under these circumstances merely because the test results were subsequently used as evidence against him in ah independent criminal prosecution as well as for probation revocation purposes. Accordingly, we hold that the appellant’s motion to suppress the test results was properly denied.

3. The appellant contends that his production of the urine specimen was also violative of his Fifth Amendment right against self-incrimination because the request for it was not preceded by the Miranda warnings and because refusal to comply would itself have been punishable as a violation of his probation. However, it is well settled that the production of bodily fluid samples is not communicative or testimonial in nature and thus does not implicate a defendant’s privilege against self-incrimination. See Schmerber v. California, 384 U. S. 757 (86 SC 1826, 16 LE2d 908) (1966) (holding that a DUI suspect’s privilege against self-incrimination was not violated by the extraction of a blood sample without his consent); South Dakota v. Neville, 459 U. S. 553 (103 SC 916, 74 LE2d 748) (1983) (holding that a DUI defendant’s due process rights were not violated by the introduction of evidence that he had refused to take a blood-alcohol test, although police had failed to warn him that such a refusal could be used against him in this manner). Cf. United States v. Euge, 444 U. S. 707 (100 SC 874, 63 LE2d 141) (1980) (rejecting a Fifth Amendment challenge to the compulsion of a handwriting exemplar); United States v. Dionisio, 410 U. S. 1 (93 SC 764, 35 LE2d 67) (1973) (rejecting a Fifth Amendment challenge to the compulsion of a voice exemplar). Based on these authorities, we hold that the production of the urine specimen at issue in this case did not result in any violation of the appellant’s Fifth Amendment rights.

4. The appellant contends that the trial court erred in “disregarding” his request for funds to obtain an expert “qualified to testify as to the fallible operation of the machines utilized to examine the urine specimen provided by [him] and to conduct an independent evaluation of the substance.” However, though the appellant filed an application seeking to obtain such funds, the record does not reflect that he made any attempt to elicit a ruling on the application. Accordingly, this enumeration of error presents nothing for review. See Thompson v. State, 168 Ga. App. 734, 736 (3) (310 SE2d 725) (1983).

5. The appellant contends that the trial court erred in overruling his motion to quash the indictment. This motion was based on allegations that the urine specimen had “presumably been destroyed without prior notice to [him],” that he had thereby been denied “an opportunity to verify the weight of the contraband purportedly possessed,” and that he had similarly been denied “an opportunity to conduct an independent analysis of the substance alleged to be cocaine.” The appellant did not seek a ruling on the motion until immediately prior to the commencement of the trial, at which time the trial court denied it as untimely because it had not been filed prior to the arraignment. Pretermitting whether the motion was timely, we hold that it was substantively defective in that it failed to assert any defect appearing on the face of the indictment. See generally Millhollan v. State, 221 Ga. 165 (1) (143 SE2d 730) (1965); Felker v. State, 172 Ga. App. 492, 494 (2) (323 SE2d 817) (1984). In addition, we note that the appellant made no showing that he had ever sought access to the urine specimen to conduct an independent analysis, compare Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), or that the specimen had in fact been destroyed without notice to him.

6. The appellant contends that the trial court erred in refusing to grant a mistrial on the basis of the state’s failure to comply fully with his pre-trial request, filed pursuant to OCGA § 17-7-211, for copies of all reports concerning scientific tests relied upon by the state. Although the appellant had been provided with a copy of the report prepared by the State Crime Lab regarding its analysis of the urine specimen, he had not received a copy of an additional report which had evidently been prepared with respect to a preliminary test performed on the specimen at the police station. The motion for mistrial was made in response to testimony concerning those test results. There was, however, no prior objection to the testimony in question, nor was any motion made to strike it. The remedy for a violation of OCGA § 17-7-211 is the exclusion of the evidence rather than the grant of a mistrial. Pontoon v. State, 177 Ga. App. 868, 870 (341 SE2d 505) (1986). Thus, in the absence of any objection to or motion to strike the testimony, the refusal to grant a mistrial was proper. In any event, the admission of this testimony was clearly harmless, since it was merely cumulative of the testimony offered by the State Crime Laboratory chemist who had analyzed the specimen and since there had been no suggestion, much less any showing, that the report in question contained any information which would have been favorable to the appellant’s case.

7. The appellant contends that the trial court erred in sentencing him in the absence of his attorney. The record reflects that the sentencing hearing was scheduled for 9:00 a.m. on the day following the return of the verdict in the case, that defense counsel was not present in court at that time, that the trial court commenced the hearing without him at 9:07 a.m., and that, after receiving information from the state’s attorney that the appellant was “the subject of a federal investigation” which was expected to result in the return of indictments against him for trafficking in cocaine and selling cocaine, the appellant was sentenced to serve five years in confinement, to be followed by 10 years on probation. Defense counsel subsequently arrived on the scene and argued for a reduction in this sentence, but the trial court declined the request, citing the information which had been provided to him by the state’s attorney concerning the federal investigation.

The appellant’s Sixth Amendment right to counsel was clearly violated by this procedure. “[T]he [United States] Supreme Court has made it abundantly clear that even though a defendant has no substantive right to a particular sentence within the range authorized by statute, the total denial of counsel at a critical stage such as sentencing is presumptively prejudicial and is not to be deemed harmless error. [Cits.]” Golden v. Newsome, 755 F2d 1478, 1483 (11th Cir. 1985) (holding that a defendant had not waived his right to counsel at sentencing merely because he had waived his own right to be present by escaping from custody). “Whenever the sentencing proceeding is more than ministerial . . . the presence of counsel is essential to guide the sentencing court in the exercise of its power and discretion and to protect the rights and interests of the defendant; the absence of counsel is therefore legally presumed to be prejudicial if the sentencing court had the legal authority to impose a more lenient sentence than it actually did.” Id. at fn. 9. The appellant’s sentence is accordingly vacated, and the case is remanded for resentencing. The conviction is, however, otherwise affirmed.

Decided January 16, 1990

Rehearing denied January 29, 1990

John M. Beauchamp & Associates, Kermit S. Dorough, Jr., for appellant.

Britt R. Priddy, District Attorney, Henry 0. Jones III, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Sognier and Pope, JJ., concur.


author: Pope, Judge.

text:
    A89A2107.
    GILBERT v. THE STATE.
    (390 SE2d 621)
   Pope, Judge.

Defendant was convicted of armed robbery and giving a false name to an officer. Beth Layne Rauls was working as a clerk at a convenience store. Around 9:00 p.m. on August 13, 1988, defendant returned to the store, which he frequented and had visited earlier in the day to play video games with an off-duty employee of the store, Wendi Susi and a friend of hers. Rauls testified that defendant pulled a gun on her, reached over the counter, opened the cash register and took all the bills out of the register and fled.

Defendant was arrested two days after the robbery and gave police a written confession in which he admitted using a blank pistol to rob Rauls of $106.

1. Defendant argues that the trial court erred in striking testimony of Wendi Susi that someone told her in a telephone conversation that the victim Rauls and defendant had faked the robbery. The defense theory was that defendant, Rauls and Susi conspired to have Rauls give defendant the money so that he could buy cocaine for the three of them. Both Rauls and Susi denied any such conspiracy. During cross-examination of Susi, defense counsel elicited testimony from Susi that someone on the phone told her about the faked robbery. Initially, the court overruled the State’s objection that this was hearsay. However, when the State established on redirect that Susi had no idea who told her the information, the trial court struck the testimony. There was no error in this ruling. Clearly, the testimony was hearsay and is not admissible under any of the exceptions to the hearsay rule.

Decided January 29, 1990.

John D. McCord III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

2. The trial court permitted the State to use defendant’s prior conviction for the offense of giving a false name to a police officer to impeach his testimony that he did not know for sure at the time of his arrest for the armed robbery that doing so was a crime. This did not improperly place defendant’s character in issue. Jones v. State, 257 Ga. 753, 759 (363 SE2d 529) (1988). Although defendant argues on appeal that the manner in which the prior conviction was established was improper, no objection to the procedure was made at trial. Therefore, we have nothing to review. Fancher v. State, 190 Ga. App. 438 (1) (378 SE2d 923) (1989).

3. The trial court charged that the date in the indictment was not material and that it was sufficient if the jury found that the offense was committed within the preceding seven years. The State concedes that this was error regarding the misdemeanor offense of giving a false name to a police officer, for which the statute of limitation is two years. However, our review of the record shows that the error does not require reversal. In his testimony, defendant admitted all the elements of the offense, including the date alleged in the indictment. It is highly improbable that the trial court’s erroneous charge harmed defendant. Minter v. State, 258 Ga. 629 (2) (373 SE2d 359) (1989).

4. There is no merit to defendant’s argument that the trial court’s statement in its charge that “[t]he defendant contends that he is not guilty of any offense,” was improper commentary on the evidence in light of his admissions on the stand regarding the false name charge. The statement obviously was in reference to defendant’s plea of not guilty which defendant had not withdrawn. See Bryant v. State, 163 Ga. App. 872 (296 SE2d 168) (1982).

Judgment affirmed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A2230.
    CLARK v. THE STATE.
    (390 SE2d 126)
   Sognier, Judge.

Kevin Lee Clark was convicted by a Glynn County jury of robbery by force, aggravated battery, and rape. He appeals, enumerating the general grounds.

At trial, the victim, a twenty-three-year-old woman, testified that she was employed as a clerk at a convenience store in Glynn County on the night of March 29, 1987, and that a man she identified as appellant entered the store with two women and asked to use the rest room. Appellant left the store, returned a few minutes later and yelled at the two women, and all three then went outside. The victim stated that she went to the freezer compartment in the back of the store, and when she saw a hat out of the corner of her eye and started to turn around, appellant hit her, knocking her to the floor. He straddled her and choked her until she lost consciousness. When she awoke a few moments later, appellant was unbuttoning her pants. He then struck her repeatedly until she again passed out. She recalled that he left the store, but remembered nothing else until she was being photographed at the hospital. The victim also testified her jaw was broken and had to be wired shut for eight weeks, and that several money orders were stolen from the store that night. She could not recall being raped, but did state that the next day her pubic area was sore.

Seven men testified that they patronized the convenience store or were in the store parking lot between 8:30 and 10:30 on the night of March 29, 1987. Reginald Habersham and Johnny Overcash, who testified they were familiar with appellant, stated they saw him and two women enter and leave the convenience store. Habersham, Overcash, and John Wiggins all tried to enter the store several minutes later but were met at the door by a man they identified as appellant, who informed them the store was temporarily closed. Kevin Buie stated he saw a man lock the door of the store and disappear inside, then run out of the store about ten minutes later with something stashed in his pants. Thomas Knight and Wayne Jordan entered the store after the attack and found the victim bloodied with her shirt torn off and her pants pulled below her knees.

Shortly after the incident, the victim and the witnesses who had been at the store were shown a photographic lineup in which appellant’s picture was third. Habersham, Overcash, and the victim selected photo no. 3 as that of the man they had seen, while Buie, Wiggins, and Jordan picked photos 3 and 6, stating they were unsure of the skin tone of the man they observed at the store because it was dark outside at the time. Testimony by the emergency room nurses and oral surgeon who treated the victim established that when she arrived at the hospital around 11:00 p.m., she had severe facial contusions, multiple fractures of the jaw, and the distinct imprint of a shoe on her thigh. The crime lab technician who tested the vaginal smear taken from the victim that night found spermatozoa present. Additional testimony was adduced that money orders with serial numbers matching those of the money orders stolen from the store were found in the closet of an apartment appellant shared with his mother.

Decided January 29, 1990.

John W. Davis, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

We hold this evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the charged crimes. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., and Pope, J., concur.


text:
    A89A1597.
    THE STATE v. TINSLEY.
    (390 SE2d 289)
   Pope, Judge.

Defendant Van Dorn Tinsley was indicted for the offenses of possession of cocaine with intent to distribute, failure to stop at a stop sign, and driving while his license was suspended or revoked. The trial court granted defendant’s motion to suppress evidence and the State appeals. Held:

1. Although the evidence presented at the motion to suppress hearing was somewhat conflicting, it is not disputed that Officer Tony Oxford of the Macon Police Department initially stopped the defendant on the date of the incident in question for speeding and that defendant informed Oxford he did not have a driver’s license. However, because defendant’s residence was nearby, Oxford allowed the defendant to park the car he was driving and walk home. Oxford also advised the defendant to refrain from driving until he obtained a driver’s license. Approximately two or three hours later Oxford saw the defendant run a stop sign in the same vehicle in which he had been stopped earlier. Oxford stopped the defendant and again asked him if he had a license. The defendant again responded that he did not. Oxford testified he then placed defendant under arrest for driving without a license and proceeded to search the vehicle prior to its being impounded. Because defendant had locked the car and stated he did not have the keys, another officer was sent to get a device to open the car. Before this device could be used, however, the keys were spotted on the floor of the backseat of Oxford’s squad car where the defendant had been placed. Oxford testified approximately ten minutes elapsed between the time defendant was arrested and the search of the car commenced. The search of the car revealed, inter alia, ten small ziplock bags each of which contained a substance subsequently identified as rock cocaine.

The State argues that the trial court erred in granting the motion to suppress because the search of the vehicle here was valid as a contemporaneous search incident to the lawful custodial arrest of the defendant. We agree. In New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981) the United States Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” Id. at 460. “In [State v. Hopkins, 163 Ga. App. 141 (293 SE2d 529) (1982), this court] found that the teaching of Belton was ‘that a search of the passenger compartment of an automobile recently occupied by an arrestee is a valid search incident to an arrest, even if the arrestee had no “immediate control” of the area at the time the search was conducted. The decisive factor is whether the arrestee was, at the time of his arrest, a “recent occupant” of the automobile, not whether the automobile and its contents were in his immediate control at the time of the search . . . Accordingly, it cannot be urged that the Supreme Court in Belton authorized a search of the passenger compartment of a vehicle which is no longer physically occupied by an arrestee only in a situation where the arrestee still retains possible access to the car and its contents.’ State v. Hopkins, supra, 143, 144.” State v. Watkins, 182 Ga. App. 431, 432-33 (356 SE2d 82) (1987). Here defendant’s “arrest certainly was lawful, and the fact that [there was an approximate ten minute delay between the time defendant was arrested and the search was commenced (which was due to the fact that defendant locked the door and claimed he did not have the keys)] did not render the search noncontemporaneous to the arrest.” Oswell v. State, 181 Ga. App. 35 (351 SE2d 221) (1986). See also Maddox v. State, 188 Ga. App. 883 (1) (374 SE2d 810) (1988). Cf. State v. King, 191 Ga. App. 706 (382 SE2d 613) (1989) and Whisnant v. State, 185 Ga. App. 51 (2) (363 SE2d 341) (1987) (in which the searches were not contemporaneous with the arrest of the occupant of the vehicle searched).

Defendant, relying on Mobley v. State, 130 Ga. App. 80 (1) (202 SE2d 465) (1973), overruled on other grounds sub nom. Patterson v. State, 238 Ga. 204 (232 SE2d 233) (1977), and Rowland v. State, 117 Ga. App. 577 (161 SE2d 422) (1968), argues that a search of a vehicle may not be upheld on the basis that it was incident to a lawful arrest when the arrest was for a “mere” trafile violation. This court, however, applying the rule enunciated in Belton, has on several occasions upheld a search as incident to a lawful custodial arrest when the offense giving rise to the arrest was a traffic violation. See, e.g., Oswell v. State, supra, (in which defendant was arrested for driving with a suspended license and without insurance); Dixon v. State, 180 Ga. App. 222 (4) (348 SE2d 742) (1986) (in which defendant was arrested for speeding and driving without a license or proof of insurance); Hall v. State, 161 Ga. App. 521 (2) (289 SE2d 313) (1982) (in which defendant was arrested for driving without a license). Moreover, the court in Mobley simply held that a search following a traffic offense may not be conducted on the pretext of discovering the fruits or instrumentalities of the crime for which the defendant was arrested, since in the case of traffic violations there are no fruits or instrumentalities to be discovered. In Division 2, the court in Mobley recognized that a search of the person detained for a traffic violation as well as the area within such person’s immediate presence may be conducted for other purposes, such as protecting the officer from attack. OCGA § 17-5-1 (a) (1). See also Kilgore v. State, 158 Ga. App. 55 (1) (279 SE2d 239) (1981). Moreover, “[t]o the extent that cases such as Mobley and Rowland state a rule of federal constitutional law, the accuracy of the rule stated therein is highly questionable since New York v. Belton, [supra].” United States v. Wilson, 853 F2d 869, 872, n. 3 (11th Cir. 1988). See also United States v. Robinson, 414 U. S. 218 (94 SC 467, 38 LE2d 427) (1973).

Decided January 16, 1990

Rehearing denied January 30, 1990

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellant.

Anderson, Walker & Reichert, Loretta L. Pinkston, for appellee.

Based on the foregoing, we hold that under the circumstances of this case there was a valid search of the vehicle which defendant was driving at the time of his arrest. Consequently, the trial court erred in granting defendant’s motion to suppress.

2. Because we have determined that the search was conducted as incident to the lawful custodial arrest of defendant, it is unnecessary for us to consider whether the search could also be upheld as a valid inventory search prior to the impoundment of the vehicle. See Davis v. State, 165 Ga. App. 231 (299 SE2d 113) (1983); State v. Hopkins, supra at (1); State v. Holden, 162 Ga. App. 33 (290 SE2d 130) (1982).

Judgment reversed.

Banke, P. J., and Sognier, J., concur.


text:
    A89A1643.
    THOMAS v. HARRISON POULTRY COMPANY et al.
    (390 SE2d 308)
   McMurray, Presiding Judge.

Christine Thomas (“claimant”) was injured while working for Harrison Poultry Company (“the employer”). On November 4,1987, a hearing was conducted before an administrative law judge of the State Board of Workers’ Compensation and, in an order dated November 30, 1987, it was determined that claimant was entitled to continued payment of weekly income benefits due to disability caused by on-the-job injuries. However, the administrative law judge denied claimant’s request for payment of certain medical expenses, finding that the unpaid medical bills were the result of treatment provided by a physician who was not an “authorized treating physician.” The full board affirmed this award on March 10, 1988. An appeal was not made to the superior court.

On May 4, 1988, the claimant requested the State Board of Workers’ Compensation to approve a change of physicians from the employer’s approved physician to a physician who was not approved by the employer. The claimant argued that the employer’s authorized treating physician “was no longer willing to treat her. . . .” This request was denied. However, “[u]pon de novo review of all evidence submitted,” the full board granted claimant’s request to change physicians. The employer appealed and the superior court reversed the full board’s decision, finding “no showing from competent evidence that any current medical difficulties are attributable to the work related injury.” The claimant then filed an application for discretionary appeal to this court and we granted an appeal to determine whether the superior court applied the appropriate standard of appellate review. Held:

In reviewing an award of the full board of the State Board of Workers’ Compensation, “ ‘[t]he rule is that the decision of the trier of fact will not be set aside on appeal if there is any evidence to support the finding.’ (Emphasis in original.) Russell v. Ga. Regional Hosp., 152 Ga. App. 895 (264 SE2d 497) (1980). The Full Board’s ‘findings of fact are not to be set aside because the reviewing court disagrees with the conclusions drawn therefrom. When using the “any evidence” criteria, the facts are to be construed in a light most favorable to the party prevailing before the board. Reviewing courts do not consider the weight of evidence. . . .’ St. Paul Ins. Co. v. Henley, 141 Ga. App. 581, 582 (234 SE2d 159) (1977).” Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631 (331 SE2d 23).

The record in the case sub judice shows that the full board allowed claimant to change physicians, relying primarily on evidence submitted at the November 4, 1987, hearing wherein it was determined that claimant was entitled to continued workers’ compensation benefits due to on-the-job injuries. It is not disputed that evidence offered at this hearing authorized a finding that claimant’s medical difficulties were caused by work related injuries. Further, the record shows that on November 30, 1987, the approved treating physician released claimant to “seek [a] doctor of her choice if she so desires.” This evidence authorized the full board’s decision to allow claimant to change from the approved treating physician to a physician of claimant’s choice. Consequently, the superior court erred in reversing the full board’s award. See Cobb Gen. Hosp. v. Burrell, 174 Ga. App. 631, 632, supra.

Decided January 30, 1990.

Jones & Jones, Francis G. Jones III, for appellant.

Frederick A. Bading, for appellees.

Judgment reversed.

Carley, C. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A89A1898.
    CLAY v. THE STATE.
    (391 SE2d 143)
    Decided January 30, 1990.

      Short & Fowler, Thomas S. Bishop, for appellant.

      H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.
   Beasley, Judge.

Defendant, convicted of violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (b), appeals from a judgment entered May 9, 1989. His notice of appeal was filed on the 31st day thereafter, June 9, 1989. No motion for an out-of-time appeal was filed.

The out-of-time appeal must be dismissed for failure to follow OCGA § 5-6-38 (a). Paytee v. State, 190 Ga. App. 291 (380 SE2d 92) (1989); see Jones v. Perkins, 192 Ga. App. 343 (384 SE2d 927) (1989).

Appeal dismissed.

Carley, C. J., and McMurray, P. J., concur.


text:
    A89A2010.
    HUMAN v. STATE OF GEORGIA.
    (390 SE2d 446)
    Decided January 30, 1990.

      Weaver & Weaver, George W. Weaver, Brenda S. Weaver, for appellant.

      Darrell E. Wilson, District Attorney, Lisa VF. Pettit, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

The State of Georgia brought this action to condemn property used in violation of OCGA § 16-12-22. On February 14, 1989, the trial court entered a “final order” forfeiting the property pursuant to OCGA § 16-12-32. On February 27, 1989, appellant filed a motion to set aside the judgment attacking the “final order.” Following a hearing, the motion to set aside the judgment was denied on April 6, 1989. This is a direct appeal from the order denying the motion to set aside judgment. Held:

Appeals from an order denying a motion to set aside a judgment must be taken by application in the nature of a petition. OCGA § 5-6-35 (a) (8). Accordingly, this direct appeal must be dismissed. See State Farm &c. Ins. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39).

Appeal dismissed.

Carley, C. J., and Beasley, J., concur.


text:
    A89A2254.
    TAYLOR v. SPENCE.
    (390 SE2d 309)
   Banke, Presiding Judge.

This is an appeal from a summary judgment for the defendant in a legal malpractice action. The plaintiff retained the defendant to handle the closing of a loan which she had agreed to make to a friend, Coleene Anne Nagem. The loan was to be secured by Ms. Nagem’s residence. The defendant testified in his deposition that the plaintiff wanted Ms. Nagem to execute a quitclaim deed to her home in addition to a promissory note and security deed so that she (the plaintiff) could avoid the “hassle” of instituting a foreclosure proceeding in the event the loan went into default. The defendant stated that the plaintiff insisted upon receiving the quitclaim deed notwithstanding his advice that it “would not be effective to circumvent a foreclosure” and his recommendation that it not “be a part of th[e] transaction.” Ms. Nagem corroborated the defendant’s testimony in this regard, and the plaintiff has not disputed it. After obtaining the quitclaim deed, the plaintiff filed it for recording before the first monthly payment was due on the loan and thereafter sought to dispossess Ms. Nagem from the property. Ms. Nagem then filed a successful lawsuit to have the deed set aside.

Decided January 30, 1990.

Charlotte F. Taylor, pro se.

John W. Denney, for appellee.

The defendant testified that he had exercised that degree of care and skill exercised by lawyers generally under similar conditions and like circumstances and denied having made any misrepresentations to the plaintiff. Although the plaintiff, acting pro se, deposed the attorney who had represented her in Ms. Nagem’s action to set aside the quitclaim deed, she elicited no contrary expert testimony from him or from any other attorney to the effect that the defendant had failed to exercise due care. Held:

The sworn testimony of the defendant in a legal malpractice action to the effect that his representation of the plaintiff complied with the applicable standards of professional conduct, if not controverted by expert testimony to the contrary, will authorize the grant of summary judgment in his favor. See Thomas v. Carlisle, 179 Ga. App. 315, 316 (346 SE2d 79) (1986); Yates v. Carlisle, 171 Ga. App. 206 (319 SE2d 71) (1984); Graves v. Jones, 184 Ga. App. 128, 129 (361 SE2d 19) (1987). It follows that the trial court did not err in granting the defendant’s motion for summary judgment in this case.

Judgment affirmed.

Sognier, and Pope, JJ., concur.


text:
    A89A2335.
    JONES v. THE STATE.
    (390 SE2d 623)
   Banke, Presiding Judge.

The appellant was convicted of rape and aggravated sodomy. He brings this appeal from the denial of his motion for new trial. Held:

1. The appellant’s initial enumeration of error concerns the admissibility of certain evidence offered by the state during a Jackson v. Denno hearing which was being conducted to determine the admissibility of a document purporting to be his written confession. The appellant contended during the hearing that he had merely signed a blank sheet of paper which had been filled in later. To rebut this testimony, the state introduced a guilty plea previously entered by the appellant to a charge of distributing obscene materials, to which were attached as exhibits two “mash” notes written by him. This evidence was offered for the purpose of providing samples of the appellant’s handwriting. The appellant contends that the evidence improperly placed his character in issue. See generally OCGA § 24-9-20 (b). However, because it was not presented to the jury and because “the trial court, sitting as trier of fact, is presumed to ignore illegal evidence and consider only legal evidence in rendering its decision. . . ,” Wright v. State, 186 Ga. App. 231 (1), 232 (366 SE2d 834) (1988), we hold that its admission establishes no ground for a new trial.

2. The appellant contends that the trial court erred in allowing three witnesses (consisting of the victim’s boyfriend, a police officer, and the physician who had examined the victim following the incident) to reveal the content of certain out-of-court statements made to them by the victim. As the victim testified at trial and was subject to cross-examination, none of the testimony in question was subject to a hearsay objection. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). Accordingly, the appellant’s objections to the testimony were properly overruled.

3. The appellant contends that the trial court erred in refusing to instruct the jury that they could find him guilty of simple battery as a lesser offense included in the crime of aggravated sodomy. The appellant admitted that he had engaged in the act of sodomy with the victim but maintained that he had done so with her consent. If so, then no battery was committed. If not, then the admitted act of sodomy was aggravated. See generally OCGA § 16-6-2 (a). It follows that no charge on simple battery was required. See Daniel v. State, 150 Ga. App. 798 (3) (258 SE2d 604) (1979).

4. Contrary to the appellant’s assertion, a victim’s failure to forcibly resist a sexual assault does not constitute consent to the encounter. Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976). Accordingly, the evidence in this case presented no basis for a charge that “a female can consent to sex by actions while she is failing to consent by words.”

5. The appellant contends that the trial court erred in allowing the physician who had examined the victim following the incident to testify as an expert. “Whether a person possesses the ‘ “qualification as an expert witness rests entirely in the sound discretion of the judge. . . . The decision of the judge will not usually be overturned” unless the witness actually lacks appropriate credentials or the judge has applied the wrong criteria.’ [Cit.]” Hunter v. State, 192 Ga. App. 675, 676 (385 SE2d 764) (1989). The physician testified that she had been in the Emory OB/GYN residence program for two years, that she had examined approximately 200 sexual assault victims during that time, and that she had participated in seminars concerning the treatment of rape victims. Accordingly, the trial court did not abuse its discretion in allowing her to testify as an expert.

6. The appellant contends that the trial court erred in admitting as evidence the underwear which the victim had been wearing at the time of the alleged incident. Pretermitting whether this evidence was relevant to any issue in the case, we hold that in the context of the other evidence in the case its admission was harmless, i.e., that it is “highly probable” the evidence did not contribute to the verdict. See generally Minter v. State, 258 Ga. 629 (2) (373 SE2d 359) (1988).

Decided January 30, 1990.

William T. Hankins III, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, R. Stephen Roberts, Assistant District Attorneys, for appellee.

7. The appellant’s remaining enumeration of error is directed to the court’s charge concerning the right of each citizen to the protection of the law and the duty of the jurors to enforce the law. The court concluded this portion of the charge by stating: “Jurors perform their duty to society just as truly in the vindication and acquittal of one who is innocent as in the conviction of one who is guilty.” We find no error. See Lyles v. State, 130 Ga. 294 (5) (60 SE 578) (1908). Cf. Scott v. State, 168 Ga. App. 631 (309 SE2d 904) (1983).

Judgment affirmed.

Sognier and Pope, JJ., concur.


text:
    A90A0040.
    RICHARDSON v. THE STATE.
    (390 SE2d 442)
   Sognier, Judge.

Jerry John Richardson’s conviction of incest and two counts of sodomy involving his stepdaughter was affirmed by the Supreme Court in Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987). Because Richardson’s newly retained appellate counsel raised for the first time in that appeal the contention that Richardson had been denied effective assistance of counsel, the Supreme Court remanded the case to the trial court for, inter alia, “a hearing and appropriate findings with respect to the claim of ineffective assistance of trial counsel.” Id. at 748 (8). After a hearing and consideration of portions of the trial transcript, the trial court denied Richardson’s claim of ineffective assistance of counsel, and Richardson filed this appeal from that ruling in the Supreme Court. The Supreme Court, finding no basis for jurisdiction, transferred the appeal to this court.

“ The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.’ [Cit.] In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) ‘that counsel’s performance was deficient,’ i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this .‘deficient performance prejudiced the defense,’ i.e., that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cit.] ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Cit.] The complaining defendant must make both showings.” Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567) (1985).

1. With the foregoing standard in mind, we address appellant’s first five enumerations, in which he sets forth the particular conduct he contends constituted trial counsel’s ineffective assistance.

(a) The indictment described the victim as appellant’s “daughter,” whereas the victim was actually his stepdaughter. Although this was a variance, it was harmless, in that the incest statute prohibits sexual intercourse between father and stepdaughter as well as between father and daughter. OCGA § 16-6-22 (a) (1). Appellant asserts that trial counsel believed this defect in the indictment provided absolute grounds for dismissal, causing him to fail to prepare for trial. Counsel testified, to the contrary, that he “thought [the indictment] was defective. But, that was — nothing to do with the defense in the case.” “ ‘The weight of the evidence and the credibility of the witnesses are questions for the factfinder. (Cits.)’ [Cit.]” Jackson v. State, 188 Ga. App. 834, 838 (3) (374 SE2d 777) (1988). Thus, appellant’s allegation was not supported by the evidence.

■ (b) As evidence of lack of trial preparation, appellant contends his trial counsel consulted with him for a total of only two and one-half hours before trial, which was inadequate. However, trial counsel testified at the hearing that he spent at least forty hours meeting with appellant in “individual communication.” This conflict in the testimony properly could have been resolved by the trial court in counsel’s favor.

(c) Appellant’s assertion that lack of preparation was demonstrated by his trial counsel’s failure to interview appellant’s sons, and his further argument that there were valid defenses which were not presented because the sons were not called as witnesses, are both belied by the oldest son’s testimony that he was interviewed by trial counsel in the presence of appellant but informed counsel that he “didn’t know anything about it.” Moreover, counsel testified that because of conversations between appellant and his then wife before the indictment or arrest, to which the older boy was privy, he “felt [the boy] would not have made a good witness for [appellant].” It thus appears that failure to call appellant’s sons was a deliberate trial strategy. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. . . .’ [Cit.]” Taylor v. State, 190 Ga. App. 681, 682 (1) (379 SE2d 814) (1989).

(d) Appellant claims that counsel did not interview character witnesses in advance of trial, but concedes that counsel had discussed with him the need for character witnesses at trial. Appellant was free on bond before trial and could himself have interviewed these witnesses, but did not do so. Further, counsel testified that he had been in touch with two of the people suggested by appellant as character witnesses and they were unwilling to testify in his behalf. We find no ineffectiveness in this regard.

(e) It is true, as argued by appellant, that his trial counsel did not interview before trial two important State witnesses, i.e., the victim (appellant’s stepdaughter) and John Hutto, a DFCS worker whose testimony was extremely damaging to appellant. Counsel testified, however, that he sought diligently to interview appellant’s stepdaughter, but was prevented from doing so by her mother, appellant’s former wife. Counsel also testified that he had encountered Hutto as a witness in several prior trials and knew from previous attempts that Hutto would not permit a pretrial interview. As counsel offered reasonable explanations for his failure to interview these witnesses, it affords no basis for a claim of ineffectiveness.

(f) Appellant argues that counsel’s ineffectiveness was displayed at trial when he allowed Hutto to testify, without objection, to hearsay statements of the victim. However, counsel’s failure to object was harmless, because in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) , decided five months before appellant’s trial, the Supreme Court held that such prior consistent statements of the victim, as well as prior inconsistent statements, are admissible as substantive evidence, and any objection raised by counsel to Hutto’s testimony on that basis would properly have been overruled.

(g) Appellant was similarly not harmed by counsel’s failure to raise the issue of the constitutionality of Georgia’s sodomy law, which at the time of trial had been declared unconstitutional by the United States Court of Appeals for the Eleventh Circuit, in view of the decision since rendered by the United States Supreme Court on this issue in Bowers v. Hardwick, 478 U. S. 186 (106 SC 2841, 92 LE2d 140) (1986) . See Ford, supra at 85-86 (8) (a).

(h) Counsel called no witnesses in mitigation at the sentencing phase of the trial. However, appellant’s mother, father, and brother did testify as to his character during the guilt/innocence phase of the trial. Counsel testified that in his opinion the character witnesses suggested by appellant would not have given testimony which was favorable. Counsel also testified that the primary purpose of referring appellant to a clinical psychologist for evaluation was to determine whether appellant had some sort of aberration which might afford him an affirmative defense, and that because the report indicated that the psychologist had found that appellant was “within normal parameters,” counsel chose not to offer the testimony of the psychologist at trial. This was apparently a strategy decision based on counsel’s belief that the evaluation would not be important in mitigation, and as such does not indicate ineffectiveness. Taylor, supra at 682 (1).

Decided January 30, 1990.

Smith, White, Sharma & Halpern, Marilynn B. Kelm, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

“In determining the effectiveness of counsel, this court looks to the totality of the representation provided by counsel. [Cits.] A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, ‘ “but counsel. . . likely to render and rendering reasonably effective assistance.” (Cits.)’ [Cit.]” Oliver v. State, 170 Ga. App. 767, 768 (1) (318 SE2d 207) (1984). Under the totality of the circumstances presented here, although another attorney might have tried the case differently, we do not agree with appellant’s contention that his trial counsel was so ill prepared that he failed to understand his client’s factual claims or the legal significance thereof, or the basic procedural requirements applicable in court. Accordingly, we find no error in the trial court’s conclusion that counsel was not ineffective.

2. Because we hold in Division 1 that trial counsel was not ineffective, we need not address appellant’s contention that his trial counsel’s deficient performance prejudiced the outcome of the trial. Ford, supra at 85 (8).

Judgment affirmed.

Carley, C. J., and McMurray, P. J., concur.