text:
    A02A1448.
    ARSENAULT v. THE STATE.
    (571 SE2d 456)
   Miller, Judge.

David Arsenault was convicted of failing to maintain his lane and of obstructing an officer. He appeals, claiming primarily that the evidence was insufficient to sustain the convictions. Since the record shows evidence of both crimes, we affirm.

An officer witnessed Arsenault driving his vehicle approximately 55 mph in a 40-mph zone. Arsenault also weaved in and out of his lane, twice crossing the center lane line. Suspecting DUI, the officer pulled Arsenault over, who then exited his vehicle and approached the officer’s patrol car. Over his PA system, the officer directed Arsen-ault to return to his vehicle and to pull into a nearby parking lot. After complying, Arsenault again exited his vehicle, claiming his grandson was sleeping and he did not want to wake him. The officer, who had been trained to have drivers remain in their vehicles for safety reasons, directed Arsenault to get back in the vehicle and to remain there. Arsenault reentered his car but refused to close the door, leading to the officer politely closing the door himself.

As the officer stood near the door speaking with Arsenault, Arsenault flung his door open and jumped out, “squaring up” to the officer. Feeling threatened, the officer again demanded that Arsen-ault sit in the vehicle. When Arsenault refused to comply, the officer grabbed his arm and tried to escort him back into the vehicle, which Arsenault resisted. Arsenault pulled away and bumped the officer, resulting in Arsenault’s arrest for obstruction of an officer.

Arsenault was charged with misdemeanor obstruction of an officer, driving too fast for conditions, and improper lane usage. A jury acquitted him of the “driving too fast” count but found him guilty of the remaining counts. Arsenault appeals, claiming that. (1) the evidence was insufficient to sustain the convictions, (2) the State did not prove lack of justification, and (3) the court erred in failing to recharge the jury more thoroughly in response to a question during deliberations.

1. Construed in favor of the verdicts, the evidence sufficed to sustain the convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(a) Obstruction conviction. OCGA § 16-10-24 (a) provides that “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Refusing to obey lawful commands of an officer who is seeking to protect his safety will sustain a conviction under this statute. Imperial v. State, 218 Ga. App. 440, 441 (461 SE2d 596) (1995). Officers are authorized, for their own safety, to request that an individual remain in the car until their investigation is complete. Tuggle v. State, 236 Ga. App. 847, 849, n. 1 (512 SE2d 650) (1999); see Carter v. State, 229 Ga. App. 417, 419 (494 SE2d 108) (1997) . Failure to comply with such directives is a violation of OCGA § 16-10-24 (a). See Tuggle, supra, 236 Ga. App. at 848, 849 (2); see also Johnson v. State, 234 Ga. App. 218, 219-220 (3) (507 SE2d 13) (1998) (failure to exit vehicle on officer’s command will also sustain obstruction conviction). Arsenault’s citation to Moccia v. State, 174 Ga. App. 764 (331 SE2d 99) (1985), as contrary authority is unpersuasive, as Moccia preceded the enactment of the current version of OCGA § 16-10-24, which no longer contains the element of violence. Carter v. State, 222 Ga. App. 397, 398 (1) (474 SE2d 228) (1996); see Larkin v. State, 230 Ga. App. 129, 130 (1) (495 SE2d 605) (1998).

Here Arsenault repeatedly disobeyed the officer’s lawful directive to remain in the car for the officer’s safety. The final time, he aggressively jumped out of the car and confronted the officer. Refusing outright to reenter the car, he resisted the officer’s attempts to-physically place him in the car. This evidence sufficed to sustain the misdemeanor obstruction conviction.

(b) Improper Lane Usage Conviction. The evidence sufficed to sustain Arsenault’s conviction for improper lane usage. The officer’s testimony that Arsenault weaved across the road and twice crossed over the center lane line showed a violation of OCGA § 40-6-48 (1). See Moore v. State, 234 Ga. App. 332, 334 (3) (d) (506 SE2d 685) (1998); see generally Ramos v. State, 252 Ga. App. 106-107 (1) (555 SE2d 779) (2001).

2. Arsenault argues that the State failed to carry its burden to disprove his defense of justification. See Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310) (1995) (“where a defendant raises an affirmative defense of justification and testifies to the same, the burden is on the State to disprove the defense beyond a reasonable doubt”) (citation and punctuation omitted). He claims that his actions in exiting the vehicle were justified by his desire not to wake his sleeping grandchild.

The grounds for justification outlined in OCGA § 16-3-20 do not include a desire not to wake a sleeping child as justification for disobeying lawful orders of an officer. Even if such were included, the jury was properly instructed on the State’s burden of disproving justification and was authorized under the circumstances to disbelieve Arsenault and reject his defense. See Green v. State, 244 Ga. App. 697, 698 (1) (536 SE2d 565) (2000).

Decided September 18, 2002.

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Allison E. Bailey, Assistant District Attorney, for appellee.

3. During deliberations, the jury asked the court to reinstruct them on the definition of obstruction. The court recharged the jury, using the statutory definition of obstruction found in OCGA § 16-10-24 (a). Arsenault complains that the court erred in not giving a fuller instruction as was included in the original instructions given to the jury.

“While the court has a duty to recharge any part of the charge at the request of the jury, the extent and character of any supplementary instructions are within the discretion of the court.” (Citations omitted.) Jackson v. State, 263 Ga. 468, 469 (1) (435 SE2d 442) (1993). “Absent an abuse of that discretion, such decisions will not be disturbed on appeal.” (Citation and punctuation omitted.) Long v. State, 189 Ga. App. 131, 132 (2) (375 SE2d 274) (1988).

In this regard, “it is not error for the judge to confine his instruction to the specific point suggested by the jury’s inquiry. It is within the court’s discretion to recharge the jury in full or only upon the point or points requested.” (Citations and punctuation omitted.) Brown v. State, 258 Ga. 152, 154 (4) (366 SE2d 668) (1988). Where there is no indication that the recharge left the jury with an erroneous impression of the law, the trial court does not abuse its discretion in failing to give a fuller recharge. Garcia v. State, 208 Ga. App. 808, 809 (2) (432 SE2d 122) (1993). Thus, under such circumstances, rereading statutory definitions alone is not error. See Carter v. State, 238 Ga. App. 632, 636 (3) (519 SE2d 717) (1999); cf. Long, supra, 189 Ga. App. at 132 (2).

Here the court did not abuse its discretion in limiting its rein-struction to the statutory definition of obstruction. The court even asked the jury if that was “okay” before sending the jury back for deliberations. There is no indication that the jury was confused or left with an erroneous impression of the law.

Judgment affirmed.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A02A1506.
    JONCAMLAE v. THE STATE. ZUNIGA v. THE STATE.
    A02A1507.
    (571 SE2d 461)
   Eldridge, Judge.

A Clayton County jury found both Seashelia Joncamlae and Israel Jesus Zuniga guilty of two counts of aggravated assault, which charges arose from an incident at the Escorpión restaurant in Forest Park on Jonesboro Road in which Joncamlae and Zuniga followed two men from the interior of the restaurant into the parking lot and, there, beat the victims. The jury also found Zuniga guilty of robbery for thereafter taking the victims’ 1991 Pontiac Firebird; Joncamlae was acquitted of that offense. Joncamlae and Zuniga appeal separately. In the interest of judicial economy, we have consolidated their appeals.

Viewed to support the verdict, the record shows that both victims of the assaults, A. B. and R. E., testified at trial as to the appellants’ involvement in the incident. A. B. positively identified Joncamlae and Zuniga as having followed them from the restaurant, through the parking lot, and to their car — a 1991 Pontiac Firebird. He testified that the appellants ordered R. E. and him out of the vehicle. When A. B. exited the car, Zuniga attacked him, striking him in the eye and knocking him to the ground. He further testified that when R. E. exited the Pontiac, he saw Joncamlae hit him. A. B. testified that Zuniga then “told me he was going to take my car. . . . He took it and perhaps he went to take it to another parking area or to another apartment complex.” After removing the vehicle from the scene, Zuniga returned immediately and reengaged A. B.

Victim R. E. testified that two men followed him from the restaurant and ordered A. B. and him out of the Pontiac. He identified Zuniga as the man who attacked A. B. He testified that both men hit him. R. E. could not make a positive in-court identification of Jon-camlae, claiming that he looked similar, “but I cannot be 100 percent sure,” and that Joncamlae “was a little heavier then than now.” However, when shown a pre-trial photographic lineup, R. E. had been able to identify Joncamlae as one of the perpetrators.

The police arrived, and the crowd that had apparently gathered to participate in the fight suddenly dispersed. The police located Zuniga in a nearby ditch, striking A. B. with his fists. The Pontiac’s ignition cylinder, with the key still in it, was found on the ground beside the ditch. Pursuant to eyewitnesses’ information, the police located Joncamlae inside the Escorpión; his face was bruised and scratched in a manner consistent with a recent fistfight. Upon questioning, he gave the police a false name, “Gerardo Paredes.” The next day, the Pontiac Firebird was located in a supermarket parking lot a block from the Escorpión. Held:

, 1. Both Zuniga and Joncamlae challenge the sufficiency of the evidence supporting their convictions.

When evaluating the sufficiency of evidence, the proper standard for review is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This Court does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence. . . . [R]esolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.

We find the evidence as outlined above sufficient for a rational trier of fact to have found both appellants guilty beyond a reasonable doubt of the offenses for which they were convicted. In terms of the related, individual arguments made by the appellants, we find as follows:

(a) Zuniga contends that his conviction for aggravated assault with intent to rob R. E. cannot stand because the subject of the robbery, the Pontiac, belonged to A. B. However, “[r]obbery is a crime against possession, and is not affected by concepts of ownership.” Here, both victims were ordered out of the car and attacked in order to facilitate the taking of the vehicle. That qualifies both A. B. and R. E. as the victims of robbery.

(b) Zuniga also contends that his convictions for aggravated assault with intent to rob under Counts 2 and 3 of the indictment merged as a matter of fact with his conviction for robbery under Count 1. We must agree.

A defendant may be prosecuted for two crimes based on the same conduct, but he may not be convicted of more than one crime if one crime is included in the other. Aggravated assault is not included in robbery as a matter of law, but it may be included as a matter of fact. The key question, then,, is whether the different offenses are proven with the same set of facts.

In this case, the State chose to indict Zuniga for two counts of aggravated assault with intent to rob, OCGA § 16-5-21 (a) (1), and for robbery by use of force, OCGA § 16-8-40 (a) (1). As conceded by the State, the evidence of the force exerted by Zuniga so as to support the robbery by force conviction is the same evidence used to support the two aggravated assault with intent to rob convictions, and thus, they merge as a matter of fact. That Zuniga returned after taking the car and continued to fight cannot save the convictions for the indicted offenses. The aggravated assaults with intent to rob were complete, as was the robbery, itself, when Zuniga left in the Pontiac. The second round of fisticuffs with the victims upon Zuniga’s return may-have been a separate assault, but such was not supported by any evidence of an intent to rob. Accordingly, we vacate Zuniga’s convictions for aggravated assault with intent to rob under Counts 2 and 3 of the indictment.

(c) As best we can decipher from Joncamlae’s rambling challenge to the sufficiency of the evidence supporting his convictions for aggravated assault, he claims that the State failed to prove identity and intent. We reject these contentions. Joncamlae was positively identified by one of the victims as the man who participated in the robbery of the Pontiac by accompanying and aiding Zuniga in his assault on the victims, which assaults facilitated the taking of the vehicle. That is sufficient to support the jury’s verdict. Further, it matters not that Joncamlae was acquitted of the actual robbery. He did not take the Pontiac; Zuniga did. Accordingly, “[t]hese verdicts are not necessarily inconsistent. Even if they were, the inconsistent verdict rule has long been abolished in criminal cases.”

2. Both Zuniga and Joncamlae claim they received ineffective assistance of counsel at trial.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

Further, Strickland does not require that we inquire first into the alleged deficiency in counsel’s performance, or even address it at all, if we find that no prejudice has been shown.

(a) Zuniga claims error in his trial counsel’s failure to object when the prosecutor, attempting to establish motive, asked whether people from Mexico (Zuniga’s and Joncamlae’s ethnic heritage) have adverse relations with people from Honduras (the victims’ ethnic heritage). Zuniga contends that such question put his character into evidence and prejudiced him before the jury.

On review, the question about which Zuniga complains does not, standing alone, put his character into evidence. And Zuniga answered the question in the negative, claiming that “all Hispanics try to get together.” Accordingly, there was no basis for an objection by Zuniga’s trial attorney.

Moreover, Zuniga has failed to establish the prejudice prong of the Strickland standard with regard to his trial attorney’s representation. At the hearing on the motion for new trial, it was established that Zuniga’s character went before the jury via his sua sponte, unanticipated comment that “I know we don’t like black people because it’s most of the people that is robbing around Mexicans, but not Hondurans or people like that.” The prosecutor’s inquiry in no way called for that addendum, which was unresponsive to the question and most likely offensive to the four African-American jurors on the panel. Zuniga’s defense attorney asserted at the motion for new trial hearing that he believed nothing could be done with regard to Zuniga’s inopportune comment because “you can’t un-ring that bell.”' We do not disagree with this assessment. The decision not to draw further attention to the matter appears an imminently reasonable trial strategy from our perspective. Indeed, before this Court, Zuniga’s appellate counsel has failed to put forward any viable suggestion that would even begin to repair the self-inflicted damage so as to demonstrate an avenue trial counsel could have taken, but did not. Accordingly, Zuniga has failed to establish either that counsel’s assistance was deficient or that counsel’s assistance prejudiced his defense.

(b) Joncamlae also claims he . received ineffective assistance of counsel. He was represented at motion for new trial by the same attorney who represented him at trial, and an appellate attorney was appointed after such motion was denied. Consequently, the instant claim of ineffective assistance of trial counsel, raised for the first time on appeal, is being asserted at the earliest practicable moment. However, whether it is necessary to remand this case for a hearing on such issue requires a further inquiry: Can Joncamlae’s claim of ineffective assistance be resolved, as a matter of law, on the face of the record?

Joncamlae’s complaint is centered on his trial attorney’s failure to object/move for a continuance when information was elicited that, the day before trial, the district attorney’s office had shown photographs of the appellants to both of the victims. In a separate enumeration of error, Joncamlae also styles the district attorney’s actions as a discovery violation for failure to provide this information pursuant to OCGA § 17-16-4 (a) (3).

A review of the record with regard to these complaints shows that there were a number of people involved in the altercation with the victims outside the Escorpión restaurant. The victims’ identification of Joncamlae as the specific perpetrator of the indicted acts was by no means strong. R. E. could not positively identify Joncamlae and relied upon the photograph the district attorney’s office had shown him the day before: “If he’s the same man that’s in the picture, he’s the same man. ... In the picture, that’s the man that hit me.”

Decided September 18, 2002.

Yvonne Hawks, Lloyd J. Matthews, for appellant (case no. A02A1506).

Patricia F. Angelí, for appellant (case no. A02A1507).

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

The other victim, A. B., testified that the only time he had seen Joncamlae since the altercation was in the photograph shown to him by the district attorney’s office the day before trial. Thus, from the record, it appears that the photographs played a role in the identification of Joncamlae. The State’s apparent failure to provide the photographs to Joncamlae or, apparently, to inform him that such photographs were shown to the victims just prior to trial prevented him from challenging the admissibility of the victims’ in-court identifications based on the photographs. And the import of Joncamlae’s trial counsel’s failure to object to such evidence — both substantively and as a violation of discovery — cannot be resolved as a matter of law from the face of the record. Accordingly, we remand this case for an evidentiary hearing on Joncamlae’s claim of ineffective assistance of counsel, with a right of appeal as to the results of such hearing.

Judgment affirmed and case remanded for further proceedings not inconsistent with this opinion in Case No. A02A1506. Judgment affirmed as to Count 1 and vacated as to Counts 2 and 3 in Case No. A02A1507.

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

       Both appellants were acquitted by the jury of a third count of aggravated assault against an alleged third victim.

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

       (Citations and punctuation omitted.) Dean v. State, 273 Ga. 806-807 (1) (546 SE2d 499) (2001).

        Jackson v. Virginia, supra.

       (Citations and punctuation omitted.) Kelly v. State, 234 Ga. App. 893, 894 (2) (508 SE2d 228) (1998).

       OCGA §§ 16-1-6; 16-1-7.

        Hambrick v. State, 256 Ga. 148, 150 (344 SE2d 639) (1986). See also Johnson v. State, 247 Ga. App. 157, 162 (10) (543 SE2d 439) (2000).

       For reasons unexplained, the State concedes that the aggravated assault with intent to rob under Count 2 merges with the Count 1 robbery by force conviction, but the State does not mention the aggravated assault with intent to rob under Count 3. For precisely the same reason, Count 3 also merges as a matter of fact with Count 1.' The named victim in each count was different, but the intent was the same. And, as it relates to Zuniga, the force exerted against each victim was the same force used by Zuniga to obtain the Pontiac. We do not find a merger of offenses with regard to Joncamlae, since he was acquitted of the offense of robbery by force. Thus, his forcible assault of the victims in conjunction with Zuniga in order to aid in Zuniga’s taking of the Pontiac may stand each as a separate offense.

       As Counts 2 and 3 merge with Count 1 as a matter of fact per OCGA §§ 16-1-6 and 16-1-7, it is unnecessary to remand this case for resentencing under Counts 2 and 3, as urged by the State.

       OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish

       (Citation omitted.) Walker v. State, 271 Ga. 328, 329 (1) (519 SE2d 670) (1999).

       (Citations and punctuation omitted.) Cromartie v. State, 241 Ga. App. 718-719 (1) (527 SE2d 228) (1999).

        Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

       By brief, it is suggested that trial counsel should have made a “motion to strike” Zuniga’s negative statement from the record. Zuniga fails to state a ground upon which such motion might be granted, given that “oops-I-put-my-own-character-into-evidence” is legally unavailing as a basis for such motion. Further, it is more than highly doubtful that a motion to strike (if granted) would in fact remove the negative taint engendered by Zuniga’s offensive comment, while the making of such motion would more than likely serve to highlight it.

        Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986).

       See Hunt v. State, 247 Ga. App. 464, 469 (6) (542 SE2d 591) (2000).


author: Ruffin, Presiding Judge.

text:
    A02A1523.
    PERSON v. THE STATE.
    (571 SE2d 472)
   Ruffin, Presiding Judge.

Jeffery Person pled guilty to aggravated assault and family violence battery. Person subsequently moved to withdraw his plea, and the trial court denied the motion. Person appeals, and for reasons that follow, we affirm.

The prosecution arose out of an incident in which Person brutally attacked his former girlfriend and threatened to kill her with a gun. Person was initially indicted for battery and false imprisonment in September 2000. On June 21, 2001, the State filed a notice of aggravation stating its intent to seek recidivist punishment due to a prior felony conviction. On September 12, 2001, the grand jury returned a second indictment charging Person with the two offenses listed under the first indictment and several additional crimes, including two counts of aggravated assault and one count each of kidnapping with bodily injury, kidnapping, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. Person pled not guilty to the charges. The State did not file a separate notice of aggravation under the second indictment, but moved the trial court to adopt the notice it filed under the first indictment. The trial court granted the State’s motion.

Person’s case was called for trial on December 3, 2001. Before the trial commenced, Person’s appointed counsel informed the court that, against his advice, Person had rejected several plea offers. Counsel further stated that he had informed Person that he could receive a potential life sentence if convicted on all counts. The trial judge then informed Person that, in light of the notice of aggravation, he could be sentenced “to life on count one [kidnapping with bodily injury] and [possibly] 86 years consecutive to that” for the remaining counts. Person stated that he nevertheless wanted to proceed with a jury trial because he felt he was innocent.

After the State presented the testimony of its first witness, the victim, Person agreed to a negotiated plea bargain. Before accepting the plea, the trial court inquired about the factual basis for the plea and questioned both Person and his appointed counsel to ensure that Person understood the nature of the charges against him, the rights he was waiving by pleading guilty, and that he was entering the plea knowingly and voluntarily. The trial court then accepted Person’s plea of guilty to one count each of aggravated assault and family violence battery and sentenced him to seven years incarceration.

Person subsequently moved to withdraw his plea, arguing that he did not enter it knowingly and voluntarily and that it was the product of ineffective assistance of counsel. Following a hearing, the trial court denied Person’s motion. On appeal, Person asserts that the court’s ruling was erroneous. We review Person’s assertions regarding the court’s ruling under an abuse of discretion standard.

1. Person first asserts that he was entitled to withdraw his plea because the trial court misled him to believe that he would be subject to recidivist punishment if found guilty of all the charges. According to Person, he was not subject to recidivist punishment because the State provided insufficient notice of its intent to rely on his former conviction as evidence in aggravation of punishment. We disagree.

Before the State may rely on evidence in aggravation of punishment, it must provide a defendant with clear notice of its intent. In this case, the State clearly notified Person that it intended, if permitted by the court, to adopt the previously filed notice of aggravation. The State served its motion on Person, and the trial court granted the motion. Thus, we do not see how Person can claim ignorance of the State’s intent. “In evaluating the sufficiency of the state’s notice, this Court places substance over form.” Accordingly, Person’s claim that he was not notified is without merit, and the trial court did not manifestly abuse its discretion in denying his motion on this ground.

2. Person also asserts that he unknowingly entered his plea because the trial court misled him to believe that he could have been sentenced, as a recidivist, to life for kidnapping with bodily injury and possibly 86 years consecutive to that for the remaining counts. He contends that any convictions under the remaining counts would have merged, as a matter of law, into the kidnapping with bodily injury conviction, and the trial court neglected to inform him of that fact.

Pretérmitting whether a trial court has a duty to inform a criminal defendant of a possibility of merger before accepting a guilty plea, Person has not established that such possibility existed in this case. He has not cited any authority for this argument or shown why the evidence would have demanded a merger of some or all of the remaining counts into the kidnapping with bodily injury conviction. Furthermore, even if Person was facing a maximum sentence of life in prison, and not life plus 86 years, the transcript shows that his trial counsel informed him of that fact. In any event, after the court pronounced his sentence, Person was precluded from withdrawing his guilty plea unless such action was “necessary to correct a manifest injustice.” Under the circumstances presented here, “we cannot say that a manifest injustice exists . . . warranting withdrawal of [Person’s] plea” and, accordingly, find no abuse of discretion.

3. Person next contends that he was misled because the trial court failed to inform him that the State had the burden of proving the existence of his prior conviction before it could be used as evidence in aggravation of sentencing. We are unaware of any authority, however, requiring the trial court to provide this information or characterizing the failure to provide it as a manifest injustice. Furthermore, we have reviewed the transcript of the plea hearing and find that the trial court fully informed Person of his rights and conducted the inquiry required under Boykin v. Alabama. Among the points made clear to Person by the trial court was that, if he elected to proceed with a trial, the State would bear the burden of proof. Again, we find no manifest injustice which necessitated withdrawal of Person’s plea and no abuse of discretion.

4. Finally, Person asserts that the trial court erred in denying his motion because he would not have entered the plea but for his counsel’s ineffectiveness. “To prevail on his ineffective assistance of counsel claim, [Person] must show that his lawyer’s performance was deficient and that, but for [his] errors, there is a reasonable probability he would have insisted on going to trial.”

Person presents two purported deficiencies in support of his claim of ineffective assistance. First, Person claims that his decision to plead guilty was based on counsel’s deficient advice that he could receive a maximum possible sentence of life plus 86 years if convicted on all counts. Presumably, Person relies on the same argument addressed in Division 2 that the actual maximum sentence was limited to life in prison for a conviction on kidnapping with bodily injury because the other offenses would have merged as a matter of law. However, Person has cited no evidence showing that trial counsel erroneously informed him of the maximum sentence, and, as stated in Division 2, the plea hearing transcript reveals that counsel informed him that he was facing a maximum sentence of life in prison. Thus, Person has not shown that counsel’s performance was deficient in this regard.

Person also asserts that trial counsel was ineffective for failing to subpoena certain witnesses who could corroborate his claim that he and the victim continued living together after he brutally attacked her. Sidestepping our concerns about the probative value of such testimony, it does not appear that the witnesses testified at the hearing on Person’s motion to withdraw his plea. It is, therefore, impossible for Person to show how he was actually prejudiced by counsel’s failure to interview or subpoena the witnesses. Moreover, trial counsel testified at the hearing that Person never identified any fact witnesses but only character witnesses. Thus, the record does not support Person’s ineffective assistance claim.

Decided September 18, 2002

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Kathryn O. Pulliam, Assistant ■ District Attorney, for appellee.

Judgment affirmed.

Barnes, J, and Pope, Senior Appellate Judge, concur.

       Specifically, the court sentenced Person to serve seven years for aggravated assault, and twelve months, concurrently, for family violence battery.

       See Jones v. State, 253 Ga. App. 848, 849 (2) (560 SE2d 695) (2002).

       See OCGA § 17-10-2 (a); Cabell v. State, 250 Ga. App. 530, 531 (551 SE2d 386) (2001).

       Cabell, supra.

       See id.; Jones, supra. Compare Beecher v. State, 240 Ga. App. 457, 460 (5) (523 SE2d 54) (1999) (holding that a notice of aggravation provided before a first trial on offenses, standing alone, is insufficient to notify the defendant of the State’s intent to present evidence of aggravation at a second trial for the same offenses).

       See Boone v. State, 250 Ga. App. 133, 137-138 (7) (549 SE2d 713) (2001) (convictions for multiple counts of armed robbery, aggravated assault, and kidnapping did not merge as a matter of fact or law where each count was supported by different facts).

       (Punctuation omitted.) Pike v. State, 245 Ga. App. 518, 520-521 (1) (538 SE2d 172) (2000).

       Id.

       See Jones, supra.

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

       See Pike, supra; Jones, supra.

        Ellis v. State, 272 Ga. 763, 764 (1) (534 SE2d 414) (2000).

       See id.

       See Eller v. State, 253 Ga. App. 573, 574 (1) (560 SE2d 60) (2002).


author: Johnson, Presiding Judge.

text:
    A02A1740.
    SMITH v. THE STATE.
    (571 SE2d 446)
   Johnson, Presiding Judge.

This is an appeal from an order dismissing a motion to vacate the denial of a motion in arrest of judgment. The appeal is without merit, and we therefore affirm the order of the trial court.

On December 28, 1997, Donna Marie Smith was driving her car when she hit a deer. An off-duty police officer came upon the accident and called for assistance. A Cobb County police officer responded to the call and arrived to investigate the accident. When Smith told the officer that she did not have her driver’s license with her, he asked for her birth date. She gave him a date, but the officer discovered that it was not her birth date, and he eventually determined that her driver’s license was suspended.

The officer told Smith that he was going to take her into custody. Smith yelled that she was not going to jail and rolled up the window of her car, trapping the officer’s hand in the window. Smith put the car’s gearshift into drive and refused to release the officer’s arm. The officer broke the window with his flashlight, reached into the car, shifted it into park and turned off the ignition. Smith refused to get out of the car, so the officer pulled her out of it. She struggled and threatened the officer as he handcuffed her and placed her into the back of his patrol car.

Smith was tried for and convicted of felony obstruction of an officer, giving a false birth date and driving with a suspended license. On October 15, 1998, the trial court entered its judgment of conviction and sentenced Smith to five years probation for the felony obstruction and imposed a twelve-month sentence for the misdemeanor offensés. On November 16, 1998, Smith filed a motion in arrest of judgment.

On March 30,1999, the court found that Smith had not complied with the terms of her probated sentence, revoked her probation and sentenced Smith to serve twenty-four months in confinement followed by three years on probation. On May 17, 1999, Smith filed an untimely application for discretionary review of the probation revocation and resentencing order. But on June 4, 1999, this court dismissed that untimely application for lack of jurisdiction.

Then, on November 16, 1999, Smith filed a notice of appeal, asserting that her motion in arrest of judgment had been overruled in a letter from the trial court. On February 28, 2001, this court dismissed that appeal because the letter was not a final appealable order.

In the meantime, on February 13, 2001, the trial court held a hearing on the still-pending motion in arrest of judgment and that same day entered an order denying the motion. Eleven months later, on January 9, 2002, Smith moved to vacate and set aside the order denying her motion in arrest of judgment. The trial court dismissed that motion to vacate.

Smith then applied for discretionary review of the trial court’s dismissal order. On March 28, 2002, this court ruled that the order Smith seeks to appeal from is not subject to the discretionary appeal procedure, but is directly appealable under OCGA § 5-6-34 (a) (1). And because Smith’s discretionary application was timely filed, this court allowed the appeal pursuant to OCGA § 5-6-35 (j). Having reviewed the entire record, we conclude that the trial court did not err in dismissing Smith’s motion to vacate and set aside the order denying her motion in arrest of judgment.

During the term of court in which it is rendered, a judgment of criminal conviction is still in the breast of the trial court and may be vacated for good cause shown. But after the original term has passed, a motion to vacate and set aside the judgment of conviction is not an appropriate remedy in a criminal case; otherwise there would be no end to the case.

Here, the trial court entered its judgment of conviction in October 1998 and denied the motion in arrest of judgment in February 2001. Smith then did not file her current motion to vacate and set aside for almost a year, well beyond the respective terms of court in which the judgment of conviction and the denial of the motion in arrest of judgment were entered. Accordingly, the judgment of conviction is no longer in the breast of the trial court, and Smith’s belated attempt to have it vacated and set aside is not an appropriate remedy. The trial court therefore did not err in dismissing the motion to vacate and set aside the order denying the motion in arrest of judgment.

Decided September 18, 2002.

Donna M. Smith, pro se.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

Moreover, even if the trial court, had not properly dismissed the motion to vacate, Smith is unable to show any error in the denial of her motion in arrest of judgment. A motion in arrest of judgment can only be granted where there is a nonamendable defect on the face of the record, which consists of only the indictment, plea, verdict and judgment. Smith has made no showing of any nonamendable defect on the face of the record. On the contrary, our review of the record reveals no nonamendable defects. The trial court thus did not err in denying Smith’s motion in arrest of judgment.

Finally, we note that most of Smith’s arguments concern alleged errors at trial or in the revocation of her probation. These sort of substantive arguments could have been properly raised only in timely appeals from the conviction and probation revocation. But because, as noted above, Smith did not timely file a notice of appeal from her 1998 conviction or timely apply for discretionary review of her probation revocation, these arguments are not properly before us.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Dorrough v. State, 226 Ga. App. 362, 363 (1) (486 SE2d 644) (1997).

       Id.

       See OCGA § 15-6-3 (11).

        Welborn v. State, 232 Ga. App. 837-838 (1) (503 SE2d 85) (1998).

       See OCGA § 5-6-38 (a); Davis v. State, 233 Ga. App. 825, 826-827 (505 SE2d 801) (1998).


author: Andrews, Presiding Judge.

text:
    A02A1044.
    KNIGHT v. THE STATE. MCGUFFIN v. THE STATE.
    A02A1045.
    (571 SE2d 397)
   Andrews, Presiding Judge.

In Case No. A02A1044, Daniel Allan Knight, convicted of two counts of violating the Georgia Controlled Substances Act, selling methamphetamine on November 6 and 7, 2000, appeals, contending that the trial court erred in admitting Knight’s custodial statements “which were the fruit of an illegal arrest.” In Case No. A02A1045, Jackson Lee McGuffin, convicted of the sale of methamphetamine on November 6, 2000, appeals, alleging numerous errors, including the legal insufficiency of the evidence. The cases are consolidated for purposes of this appeal.

1. We consider first the legal sufficiency of the evidence as to both Knight and McGuffin. This issue was specifically raised by McGuffin in his fourth enumeration of error.

On appeal from a criminal conviction, “the evidence must be viewed in the light most favorable to support the verdict, and [defendants] no longer enjoy [ ] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). So viewed, the evidence was that Thompson, a State agent for Coweta County, was referred to Clayton County officers regarding a source for methamphetamine in Clayton County. Around 9:00 p.m. on November 6, 2000, Thompson met officers in Clayton County where he and his vehicle were searched. No drugs or money was found. Thompson was then given $350 in currency which had been photocopied to use to buy a quarter-ounce of methamphetamine at 1276 Avery Drive. Thompson had previously called co-defendant McGuffin regarding the purchase, but McGuffin was unavailable and Thompson spoke to co-defendant Henry, McGuffin’s girlfriend. McGuffin later called back, and arrangements were made for pur-chase of a quarter-ounce.

After he was searched by officers, Thompson was followed and observed by them as he entered the residence where McGuffin and Henry lived. McGuffin told Thompson the “stuff” was not there yet, and Thompson waited a couple of hours until Knight arrived with a bag of methamphetamine. Knight and McGuffin then took a quarter-ounce from that bag, placed it into another bag, and weighed it. Thompson received the quarter-ounce and gave McGuffin the $350. Thompson later turned the methamphetamine over to officers.

Based on this purchase at the residence, officers then obtained a search warrant for the residence. The next day, officers had Thompson call to arrange a larger purchase. Thompson spoke to Henry and told her he wanted an ounce this time. Henry said McGuffin was not there, but she could make a call and might be able to get the methamphetamine herself. Thompson called back later, and Henry told him she had the amount he wanted and the price was $850.

Around 7:30 p.m., Thompson was again searched, given the $850 in copied currency, and followed to the residence by officers. This time, Thompson dealt directly with Henry, receiving the methamphetamine and paying her the $850. During this transaction, Thompson heard someone moving in the back of the house.

Shortly after Thompson left the house, Knight, McGuffin, and Henry drove away in McGuffin’s truck and were stopped by officers a short distance from the house. The search warrant for the residence was executed after they left. After the defendants were stopped, officers found spoons and syringes in the truck, covered with white powder. After all three defendants had been taken back to the residence and given their Miranda warnings, McGuffin said the spoons and syringes were used to hold methamphetamine and he had personally cleaned them.

When Knight was searched, the $850 in copied bills was found in his front pockets. The $350 from the November 6 purchase was not recovered.

As to McGuffin (Count 1, November 6 sale) and Knight (Counts 1 and 2, both sales), the evidence was legally sufficient. Gadson v. State, 252 Ga. App. 347, 348 (1) (556 SE2d 449) (2001); see Jackson v. Virginia, supra.

Case No. A02A1044

2. In his sole enumeration of error, Knight contests the admission of his statements to police as the fruits of an illegal arrest.

Prior to trial, Knight filed neither a motion to suppress the methamphetamine purchased by Thompson nor a motion in limine regarding the alleged lack of probable cause for his arrest and the resulting inadmissibility of his statements to officers. The only point at which the matter was addressed was during the second day of trial when the trial court inquired of the State regarding the need for a hearing pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), to determine the voluntariness of several statements by the defendants.

During this hearing, counsel for Knight argued that Knight’s statement that he had brought the methamphetamine to the residence was “tainted by the illegal arrest.” When the officer testified in front of the jury following the trial court’s ruling that the statements were voluntary under Jackson v. Denno, supra, however, no objection was made to the confession by Knight. Therefore, any objection to this confession was waived. Carradine v. State, 234 Ga. App. 330, 331 (506 SE2d 688) (1998); Reid v. State, 129 Ga. App. 660, 663 (2) (200 SE2d 456) (1973).

Decided August 29, 2002

Reconsideration dismissed September 19, 2002

Lloyd J. Matthews, for appellant (case no. A02A1044).

Michael B. King, for appellant (case no. A02A1045).

Case No. A02A1045

3. In his first enumeration, McGuffin contends that the trial court erred in sentencing him as a recidivist because one of his three prior felonies was for possession of a firearm by a convicted felon and could not properly be used for recidivism purposes.

The authority relied upon by McGuffin, however, stands for the proposition that “the General Assembly did not intend that the allegation and evidence of a prior felony conviction, necessary for conviction under OCGA § 16-11-131 [possession of a firearm by a convicted felon], could also be used to punish a defendant as a repeat offender under OCGA § 17-10-7 (a). . . ,” in the prosecution for possession of a firearm by a convicted felon. King v. State, 169 Ga. App. 444, 445 (313 SE2d 144) (1984).

That is not what happened to McGuffin. He, as was Nelson in Nelson v. State, 210 Ga. App. 249, 251 (4) (435 SE2d 750) (1993), was charged with a subsequent offense in which the prior possession of a firearm conviction was used as one of the required felonies for recidivist punishment. There was no error.

4. McGuffin’s second enumeration, contending that his custodial statements were improperly admitted because his arrest was without probable cause, is controlled by the waiver analysis contained in Division 2, supra.

5. Finally, McGuffin contends he was deprived of a fair trial when the trial court allowed into evidence the tape recordings made by Thompson and the officers of his conversations with McGuffin and Henry. McGuffin’s sole contention in this regard is that the State did not lay a proper foundation for the tape recordings.

The State laid a proper foundation, showing that the officer operating the recorder knew how to do so; that the tape recorder was working properly; that Thompson recognized McGuffin’s and Henry’s voices; that Thompson reviewed the tape before testifying; and that the tape had not been changed, altered, or deleted. Gambrel v. State, 260 Ga. 197, 200 (2) (391 SE2d 406) (1990); Chambers v. State, 224 Ga. App. 245 (2) (480 SE2d 288) (1997).

Judgments affirmed.

Phipps and Mikell, JJ, concur.

Robert E. Keller, District Attorney, Jane E. Grabowski, Assistant District Attorney, for appellee.

       A citizen who agrees to make controlled buys of illegal drugs and is compensated by law enforcement agencies.


author: Mikell, Judge.

text:
    A02A1095.
    BOLDEN v. THE STATE.
    (571 SE2d 393)
   Mikell, Judge.

This is a direct appeal of the trial court’s interlocutory order denying Stanley C. Bolden’s motion for discharge and acquittal based on the alleged violation of his constitutional right to a speedy trial. For the reasons that follow, we affirm.

Bolden was arrested on March 14, 1997, for driving under the influence of alcohol to the extent it was less safe for him to do so, a violation of OCGA § 40-6-391 (a). He was tried and convicted on August 20, 1997. This Court affirmed Bolden’s conviction. However, the Supreme Court reversed, holding that the solicitor improperly bolstered the arresting officer’s credibility during closing argument by describing the officer as a credible witness. Accordingly, we vacated our judgment.

This Court issued the remittitur on April 5, 2000. Upon receipt of the remittitur, the trial court dismissed the charges on April 13, 2000. The following day, the state moved for reconsideration of the dismissal pursuant to OCGA § 5-5-49, which provides that if the appellate court’s decision did not finally dispose of the case, the lower court must, upon the return of the remittitur, docket the case for trial. The trial court set the motion for a hearing on May 4, 2000. Defense counsel filed a notice of conflict, so the matter was reset for May 8. After hearing argument, the court granted the state’s motion.

The case was placed on the jury trial calendar for June 19, 2000. However, defense counsel submitted a notice of leave of absence as well as a conflict notice. To accommodate defense counsel’s schedule, the case was continued until July 11, 2000. In the interim, Bolden filed a motion for discharge and acquittal as well as a plea of former jeopardy, arguing prosecutorial misconduct barred his retrial. In addition., defense counsel filed another conflict notice, requiring the court to continue the case until August 8, 2000.

Jurors were summoned for that day. At the beginning of the case, the following exchange occurred:

THE COURT: We’re holding a bunch of people that’s kind of upset over there. In the event that I rule against you, are we going to go forward with a trial this morning?
MR. HEAD: No, sir. It will be a direct appeal.

The jurors were sent home. After hearing arguments, the trial court denied Bolden’s plea of former jeopardy. Bolden appealed. In an unpublished opinion, this Court affirmed the trial court’s order.

The remittitur was issued on October 26, 2001. The case was scheduled for trial on November 28, 2001. On that date, the state announced ready. Bolden, however, filed a motion for discharge and acquittal, arguing that the state had violated his constitutional right to a speedy trial. The court could not hear arguments that day because it was in the midst of a jury trial. However, the court offered to reschedule for the following afternoon. Citing a conflict and Bolden’s need to return to work, defense counsel declined. The case was reset for January 14, 2002. After hearing argument, the trial court denied the motion. This appeal followed.

1. Barker v. Wingo requires a court to balance four factors in determining whether a defendant’s constitutional right to a speedy trial has been denied: (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. The test recognizes that the burden of protecting the right to a speedy trial does not rest solely with an accused. On appeal, the denial of a defendant’s constitutional speedy trial claim is reviewed for abuse of discretion.

We first examine the length of the delay. Unless the delay is “presumptively prejudicial,” we need not analyze the defendant’s speedy trial claim under the remaining three Barker factors. “[A]s the term is used in this threshold context, ‘presumptive prejudice’ does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry.” As a delay approaches one year, it is considered presumptively prejudicial.

In the case at bar, Bolden argues that the delay is measured from the time of the first trial, August 20, 1997, until the scheduling of his second trial on January 14, 2002. That is incorrect. As we held in Chambers v. State, “the defendant’s own actions in seeking multiple reviews prolonged resolution while at the same time affording him another opportunity for trial. [Therefore, t]he span must be computed from the most recent remittitur to the trial court.” The remittitur following Bolden IV was issued on October 26, 2001. The case was set for trial 32 days later, on November 28, 2001. Bolden, however, did not desire a trial. Instead, he filed the motion that is the subject of the present appeal. The trial court offered to hear argument the following day, but defense counsel cited a conflict. At the next call of the case on January 14, 2002, Bolden still did not desire a trial, preferring instead to argue the motion and file a direct appeal.

Although our appellate courts have not drawn a bright line beyond which pretrial delay will trigger inquiry into the remaining Barker factors, we hold that the delay in the present case of two and one-half months between the issuance of the remittitur and the second trial date cannot be said to be “presumptively prejudicial” within the meaning of Doggett v. United States. After all, “the accused cannot complain that the government has denied him a ‘speedy’ trial if it has, in fact, prosecuted his case with customary promptness.” Here, it is the defendant, not the state, who has successfully delayed retrial. Therefore, we need not reach the remaining Barker factors. Bolden’s constitutional speedy trial rights have not been violated, and the trial court did not abuse its discretion in denying his motion for discharge and acquittal.

2. Bolden next contends that in the event he is retried, the state should be estopped from introducing evidence of his breath test results. However, this assertion has not been preserved for appellate review. Although Bolden alluded to this issue in the trial court, he did not move to exclude the results of his breath test nor seek any ruling thereon.

Therefore, there is no ruling by the trial court with regard to this issue. Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

Decided August 23, 2002

Reconsideration denied September 19, 2002

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Joseph J. Drolet, Solicitor-General, Michael Y. Doko, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

       In Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002), the Supreme Court held that a trial court’s order denying a plea in bar based on the alleged violation of the constitutional right to a speedy trial is directly appealable.

        Bolden v. State, 237 Ga. App. 195 (514 SE2d 32) (1999) (“Bolden I").

        Bolden v. State, 272 Ga. 1, 2 (525 SE2d 690) (2000) (“Bolden II").

        Bolden v. State, 242 Ga. App. 552 (530 SE2d 254) (2000) (“Bolden III").

       See Rawdin v. Conner, 211 Ga. 52 (84 SE2d 50) (1954) (if the judgment of reversal contains no express direction to the lower court, the case stands reversed, and a new trial is required).

        Bolden v. State, 249 Ga. App. XXVI (2001) (“Bolden IV").

       407 U. S. 514, 530 (92 SC 2182, 33 LE2d 101) (1972).

        Jackson v. State, 272 Ga. 782, 783 (534 SE2d 796) (2000).

        Jernigan v. State, 239 Ga. App. 65 (517 SE2d 370) (1999).

        Chambers v. State, 213 Ga. App. 414, 415 (1) (a) (444 SE2d 820) (1994).

        Doggett v. United States, 505 U. S. 647, 652, n. 1 (112 SC 2686, 120 LE2d 520) (1992).

       Id.; accord Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994).

       Supra at 415 (1) (a).

       Supra; cf. Nairon v. State, 215 Ga. App. 76 (1) (a) (449 SE2d 634) (1994) (delay of nearly nine months held sufficient to trigger inquiry into remaining Barker factors).

       (Punctuation omitted.) Boseman, supra, citing Doggett, supra, 505 U. S. at 652.

       (Citations and punctuation omitted.) Colley v. State, 225 Ga. App. 198, 201 (3) (483 SE2d 355) (1997).


author: Miller, Judge.

text:
    A02A0876.
    RENDER v. THE STATE.
    (571 SE2d 493)
   Miller, Judge.

Following a jury trial, Tyrone Render was convicted of aggravated assault. On appeal he contends that the trial court erred in failing to (1) grant his motion for a directed verdict of acquittal, (2) give a sufficiently clear jury charge on self-defense, (3) give a requested jury charge on carrying a concealed weapon, (4) define, in its jury charges, the “unlawful act other than a felony” that would establish involuntary manslaughter, (5) properly recharge the jury on involuntary manslaughter, and (6) charge the jury on involuntary manslaughter in the commission of a lawful act in an unlawful manner. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that the victim came to visit Render at his apartment. Render and the victim shot a game of craps, in which the victim ended up losing $40 to Render. Instead of paying Render, however, the victim took his money, left the apartment, and went to his car in order to leave.

Render then retrieved a handgun from his apartment, went to the victim’s car, and demanded the $40 from the victim. The victim could see the gun, as it was exposed from Render’s waistband, and the victim asked Render if he was going to shoot him. Render shot the victim just as the victim got out of his car. Render then fled from the scene, and the victim died.

At trial, Render moved for a directed verdict, which was denied, and the court gave jury instructions on self-defense and accident. The court also gave the involuntary manslaughter charge requested by Render and went on to define the offenses of reckless conduct and simple assault in its jury charges. However, the court refused to give an instruction on carrying a concealed weapon, as the trial court did not believe that the evidence at trial warranted such a charge, and further refused to give a charge on involuntary manslaughter by the commission of a lawful act in an unlawful manner.

When the jury during its deliberations asked the court for a definition of involuntary manslaughter, the court reread its original involuntary manslaughter charge to the jury. The jury found Render guilty of aggravated assault, and Render now appeals.

1. Render contends that the trial court erred in failing to grant his motion for a directed verdict of acquittal, arguing that the evidence at trial was insufficient to sustain the conviction for aggravated assault. We disagree.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001). We view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A person can be guilty of aggravated assault “when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .” OCGA § 16-5-21 (a) (2). Assault can occur where a person “[a]ttempts to commit a violent injury to the person of another; or [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (1), (2).

Here, the evidence reveals that Render retrieved a gun from his house in order to persuade the victim to give him some money. The jury could infer that the victim was in reasonable apprehension of immediately receiving a violent injury, as even Render admitted that the victim expressed concern that Render was going to shoot him. After the shooting, Render fled from the scene. The jury was free to believe or disbelieve Render’s story that the shooting happened by accident during a struggle with the victim. The evidence was sufficient to sustain the conviction. See, e.g., Grissett v. State, 199 Ga. App. 547-548 (2) (405 SE2d 542) (1991).

2. Render argues that the trial court erred by failing to make clear in its jury charges that if Render used reasonable force in'self-defense, then he did not engage in any criminal activity. We find this claim to be without merit.

Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence. There is no error where it is unlikely that the instructions considered as a whole would mislead a jury of ordinary intelligence.

(Citations and punctuation omitted.) Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

The verdict in this case was amply supported by the evidence, and a review of the jury charge as a whole reveals that it was highly unlikely that any juror of ordinary intelligence would be misled into believing that Render could still be guilty of some criminal conduct if the jury found that he acted in self-defense. Render’s argument to the contrary is without merit.

3. Render argues that the trial court erred by failing to give his requested jury charge on carrying a concealed weapon. We disagree.

A trial court does not err by failing to give a jury charge where the requested charge is not adjusted to the evidence presented at trial. See Williams v. State, 221 Ga. App. 296, 297-298 (1), (2) (471 SE2d 258) (1996). There was no evidence that Render concealed the gun that he was carrying at his waist. Cf. McCroy v. State, 155 Ga. App. 777, 779 (2) (272 SE2d 747) (1980) (gun was not concealed where it was sticking out from defendant’s pocket). Indeed, the evidence revealed that the victim saw the gun and even asked Render if he was going to shoot him. Even Render stated in his version of events that the victim reached for his gun. The trial court did not err by refusing to give Render’s requested charge on carrying a concealed weapon.

4. In his fourth and fifth enumerations of error, Render contends that the trial court erred by failing to define “unlawful act other than a felony” in its charge on involuntary manslaughter, and by reading this same charge to the jury when the jury asked for the definition of involuntary manslaughter during deliberations. However, any alleged error with respect to this charge and the rereading of it was of Render’s own making, as it was the very charge he requested. See Butler v. State, 196 Ga. App. 706, 709 (3) (396 SE2d 916) (1990).

Decided September 19, 2002.

James J. Lacy, for appellant.

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

5. Render urges that the trial court erred by refusing to give his requested charge on involuntary manslaughter by the commission of a lawful act in an unlawful manner. However, as the Supreme Court of Georgia held in Clark v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999):

This Court has rejected the argument that a defendant asserting self-defense who kills another with a firearm is entitled to a charge on unlawful manner involuntary manslaughter on the theory that he was engaged in the lawful act of self-defense but with unlawful excessive force. This is because the use of a gun negates any argument that the death occurred during the commission of a lawful act in an unlawful manner because if it is self-defense it is no crime at all, and if it is not self-defense it is reckless conduct, which is a crime rather than a lawful act.

(Citation and punctuation omitted.) We discern no error here.

Judgment affirmed.

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


author: Smith, Presiding Judge.

text:
    A02A1238.
    GASTON v. THE STATE.
    (571 SE2d 477)
   Smith, Presiding Judge.

Timothy Lee Gaston was indicted by a Chatham County grand jury for trafficking in cocaine and several traffic offenses, including no driver’s license and no tag light. He was tried before a jury, which found him guilty of all charges, and his motion for new trial, as amended, was denied. Gaston appeals, raising 17 enumerations of error, including challenges to the denial of his motion to suppress, the trial court’s jury charge, the introduction of similar transaction evidence, the improper admission of evidence, ineffective assistance of counsel, and the general grounds. We find no merit in any of Gas-ton’s contentions, and we affirm the judgment.

Construed to support the jury’s verdict, the evidence presented at trial showed that in the early morning hours of May 12,1999, Corporal Sean Wilson of the Savannah Police Department was training Officer Daniel Rhimes, a new police officer, to observe infractions and stop suspicious persons. The two officers were in their police car in an office parking lot in Savannah. As they left the parking lot and entered a main street, Rhimes noticed a car with a missing tag light. The officer turned on his emergency lights, and the car pulled over. The driver, later identified as Gaston and who was alone in the car, emerged and came toward the police car “at a pretty high pace.” This concerned the officers for safety reasons, and Gaston was instructed three times to return to his vehicle before he complied.

The officers then approached the car, and Gaston produced a state identification card and an insurance card, but not a driver’s license. Gaston told the officers he believed his license might be in the car’s trunk, and the officers permitted him to open the trunk and look, unsuccessfully, for the license. Because the name on the insurance card was not Gaston’s, the officers asked for the registration.

While Gaston was looking in the glove box for the registration and his license, Wilson shone his flashlight on Gaston and observed that Gaston was “trembling tremendously,” which made Wilson suspicious. Gaston was placed in the back of the patrol car while the officers checked his driver’s license status. While Rhimes was checking on Gaston’s driver’s license, Wilson returned to Gaston’s car, shone his light inside, and saw a paper bag on the floorboard under the driver’s seat. Wilson returned to the patrol car and asked Gaston whether he had any drugs, alcohol, or weapons in the car. Although Gaston denied having any, he refused to allow the officers to search the car, saying “I can’t let you do that.” He stated that he could not let them search because it was his aunt’s car. He also informed the officers that he usually drove the car and he did not want the car searched.

By this time, Rhimes had learned that Gaston’s driver’s license had been expired since October 1995. Wilson returned to the car on the passenger side, shone his light inside, and observed a Nike shoe box on the floorboard in front of the passenger seat. Holes were cut into the sides of the box, and because of the flashlight Wilson could see inside the box. He crossed to the driver’s side, where the window was open, and shone the light into the box’s holes. Wilson then could see clear cellophane bags which, because of his past experience, he believed contained crack cocaine. Wilson opened the Nike box and found a smaller, blue box containing a substance later identified as 249.3 grams of powder cocaine with a purity of 60 percent. The larger box also contained a substance later identified as 494.8 grams of crack cocaine with a purity of 62 percent. Gaston was arrested, and a wrecker was called to tow the car, which was impounded.

Agent Harry Glenn, an officer with the Chatham Narcotics Team (CNT), testified that he was called to the scene and shown the Nike box, with the bags of cocaine “readily visible.” After identifying the cocaine, this officer opened the box and saw the blue box containing powder cocaine, and the crack cocaine in cellophane bags. At trial, he identified the crack cocaine as being in the form of “cookies” that are delivered by mid-level dealers to street dealers, who then break the “cookies” down further and repackage the fragments in small baggies for sale. In his opinion, derived from experience, the cocaine found was not packaged for street sale but for distribution to street dealers. The street price of cocaine as estimated by CNT is $100 per gram. The street value of the drugs found in the car Gaston was driving was therefore approximately $77,500. The State also presented evidence of a similar transaction in which Gaston was arrested in 1994 for selling drugs.

Gaston took the stand in his own defense. He testified that he never saw the Nike box and did not know the drugs were in the car. He suggested that the box was under the passenger seat instead of in front of it. In rebuttal, however, Wilson testified that he checked and that not enough clearance existed under the seat for the box to fit. Gaston also testified that he had been arrested “numerous times” under the wrong name, “Gadson.” He testified he actually did have a valid driver’s license, which had recently been reinstated, but that the State had issued it under the wrong name to Timothy Gadson. He acknowledged, however, that he never presented the officers with this recently acquired license.

1. Gaston contends the evidence was insufficient to support his conviction for trafficking, arguing that he testified that he was “totally unaware that drugs were in the automobile.” But although Gaston testified he knew nothing about the drugs and never saw the Nike box, which was in plain view, the jury was not required to believe him. “The credibility of the witnesses and the weight to be given the evidence are the sole province of the jury.” (Punctuation and footnote omitted.) Brown v. State, 254 Ga. App. 345, 346 (1) (562 SE2d 513) (2002). The jury therefore was authorized to reject Gas-ton’s testimony in favor of the evidence presented by the State. The evidence presented was more than sufficient to find Gaston guilty of the charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Gaston maintains the trial court erred in denying his motion to suppress evidence because the search of the car violated his rights under the U. S. and the Georgia Constitutions. It is well established that a trial court’s order on a motion to suppress will not be disturbed if any evidence exists to support it. Staley v. State, 224 Ga. App. 806 (1) (482 SE2d 459) (1997). Here, the trial court ruled that the search was a valid inventory search pursuant to an impoundment when Gaston was arrested.

Gaston argues that the impoundment was unreasonable because the officers could have called his aunt to retrieve the car, rather than having it towed. He testified at trial that he asked them at the scene to do so. We do not agree. Police officers are not required to ask whether an arrestee desires to have someone come and get the car, nor are they required to accede to an arrestee’s request that they do so. State v. King, 237 Ga. App. 729, 730 (1) (516 SE2d 580) (1999); Williams v. State, 204 Ga. App. 372, 374 (419 SE2d 351) (1992). The determinative inquiry is whether impoundment was reasonable, not whether it was absolutely necessary. King, supra at 729-730. “A police seizure and inventory is not dependent for its validity upon the absolute necessity for the police to take charge of property to preserve it. They are permitted to take charge of property under broader circumstances than that.” (Citation and punctuation omitted.) Williams, supra. Here, the trial court was authorized to find that impoundment was reasonable because it was after 2:00 a.m. and the car was in the roadway.

The fact that the impoundment was reasonable, however, does not end our inquiry. Notwithstanding the trial court’s finding, it is plain from the record that the search did not take place after the car was impounded. The drugs were found even before Gaston was arrested. But it is also clear that the Nike box was in plain view. Under the plain view doctrine, officers who observe contraband in plain view are entitled to seize it, provided they are at a place where they are entitled to be and they have not violated Gaston’s Fourth Amendment rights in the process of establishing their vantage point. Gardner v. State, 255 Ga. App. 489, 493 (1) (566 SE2d 329) (2002).

Here, because Gaston was trembling and obviously extremely nervous, and because he was reluctant to return to his car, the officers had a legitimate reason to look into his car, and they did so from a place where they were entitled to be. Because the drugs were visible to Wilson through the holes in the Nike box, and because a trained narcotics officer also identified the box as a type he had seen used to carry drugs, the officers were entitled to seize it. “Any incriminating evidence they have the fortune to see in plain view may be seized and later admitted as evidence. [Cit.]” Galloway v. State, 178 Ga. App. 31, 34 (342 SE2d 473) (1986). “And it holds true whether the object seized is spied with the aid of a flashlight or the naked eye. [Cits.]” Id. at 35.

Therefore, even though we disagree with the trial court’s stated rationale for denying the motion to suppress, we hold that the ruling is right for a different reason. “Although the reasons for a trial court’s ruling may be wrong, we may still affirm the court’s ruling if it is right for any other reason. So even if a trial judge incorrectly denies a motion to suppress on one basis, we may affirm the denial on another basis.” (Citation, punctuation and footnote omitted.) Rogers v. State, 253 Ga. App. 863, 865 (2) (560 SE2d 742) (2002).

3. Gaston maintains it was error to permit the State to question the CNT officer about Gaston’s invocation of his Fifth Amendment rights. We do not agree.

During cross-examination of Agent Glenn, defense counsel asked whether the agent had spoken with Gaston the night he was arrested. Glenn responded that he read Gaston his Miranda rights and that Gaston invoked his rights and refused to talk. On redirect examination, realizing that the door had been opened by the defense, the State then asked Glenn if he had attempted to speak with Gaston and the defense objected, claiming the defense had asked Glenn whether Gaston had been “debriefed,” not whether he had been interrogated. The trial court overruled the objection, ruling that the door had been opened by the defense, and the question was again asked and answered. In cross-examining Gaston, the State asked him whether he had told the police the drugs were not his, and Gaston replied simply that he told the officers he did not want them to search the car, and he “didn’t know nothing about no drugs.”

Gaston argues that the trial judge committed reversible error notwithstanding that the door had been opened by the defense, because this was an improper comment on Gaston’s silence. He argues that the trial court should not have allowed the State to pose the question to the CNT agent or, at a minimum, should have charged the jury that a defendant is not required to make a statement to the police. “It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes.” (Citations and punctuation omitted.) Gordon v. State, 250 Ga. App. 80, 82 (550 SE2d 131) (2001). The prejudicial effect of such comments is greater than its minimal probative value. Id.

But the questioning of the CNT agent was not a comment on Gaston’s silence; it simply showed that the officers did not attempt to get a statement from Gaston. Moreover, even if error occurred, it was induced by the defense, which opened the door by asking the agent: “Did you talk to Mr. Gaston that night about the violation?” “A self-induced error is too close to premeditated error, hence beyond further appellate scrutiny.” (Citations and punctuation omitted.) Gordon v. State, 252 Ga. App. 133, 135 (2) (555 SE2d 793) (2001). See also Williams v. State, 225 Ga. App. 319, 322 (4) (483 SE2d 874) (1997).

4. In two enumerations of error, Gaston asserts that the trial court erred in allowing evidence of a similar transaction. He asserts that the prior crime was not similar and that it wrongfully injected his character in issue. These assertions are without merit.

Independent crimes are admissible to show motive, intent, plan, identity, bent of mind or course of conduct. In order for any independent acts to be admissible, it must be shown that the defendant was the perpetrator of the independent crime and that there is sufficient similarity of the former independent crime that it tends to prove the latter crime.

(Punctuation and footnote omitted.) Nation v. State, 252 Ga. App. 620, 622 (1) (556 SE2d 196) (2001). A similar crime need not be identical in every detail. The controlling question is relevance to the issues at trial. Id. And in determining the admissibility of similar transactions, the courts should focus on their similarity, rather than their differences, particularly when the evidence is introduced for the purpose of showing intent, rather than identity or criminal signature. White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997).

Here, the similar transaction was introduced to show Gaston’s intent, along with his state of mind and motivation. The two crimes involved selling the same controlled substance in the same jurisdiction, and the similar transaction demonstrated Gaston’s involvement with and ability to identify crack cocaine, which was relevant to the credibility of his defense that he did not see the drugs in the car. In this case, Gaston denied committing the crime for which he was on trial, and a past conviction involving the sale of cocaine would be very helpful to the jury. The State’s need ouiweighed the prejudice to Gaston, and the trial court’s finding that the earlier crime was sufficiently similar was not clearly erroneous. See Evans v. State, 235 Ga. App. 577, 581 (3) (510 SE2d 313) (1998); Cantrell v. State, 210 Ga. App. 218, 221 (2) (435 SE2d 737) (1993).

5. Gaston also asserts that the State wrongfully injected his character into issue when Glenn testified that he had seen the Nike box before in drug sale cases and when the prosecutor asked Gaston about his prior arrests.

(a) The CNT agent testified that he had

run across specifically this color Nike box and this style of Nike box at least two or three times before as being a vessel that they deliver drugs in. I don’t know if the certain shoe box is the fad at the time, and everybody just decided to utilize that box or what, but I have definitely seen this box used before.

Gaston argues that this evidence was introduced to leave the impression with the jury that Gaston had been involved in other offenses in which the box had been used. He asserts that this was therefore similar transaction evidence, introduced without notifying Gaston or holding a hearing, as required under Uniform Superior Court Rule 31.3. This assertion is belied by the record. Glenn testified only that during his more than ten years as a police officer he had seen this type of box used two or three times before to carry drugs. He did not imply that on those two or three occasions he had seen Gaston carrying the drugs in this type of box. Moreover, Gaston did not object to this testimony, and he has waived any objection to it.

(b) The State did not place Gaston’s character in issue by questioning him about previous arrests. Gaston volunteered on direct examination that he had been arrested numerous times under the wrong name. On cross-examination, the State simply followed up on this direct testimony by further eliciting the same testimony that Gaston had numerous prior arrests. When a defendant testifies and admits prior criminal conduct, he has raised an issue that may be fully explored by the State in its cross-examination. Jones v. State, 257 Ga. 753, 759 (1) (b) (363 SE2d 529) (1988).

6. Three enumerations involve the trial court’s charge to the jury. Gaston contends the trial court erred in giving charges on parties to a crime and collusion between parties, and in failing to give a charge on bare suspicion. These contentions have no merit.

(a) Gaston argues that a charge on parties to a crime was not warranted because absolutely no evidence was presented that any other specifically named persons were involved in a joint crime. But Gaston argued at the charge conference that his aunt had “equal access” to the car Gaston had borrowed, and he requested charges on mere presence, actual and constructive possession, and equal access. His defense was that other persons owned the cocaine and placed it in the car. The evidence as a whole, including Gaston’s defense strategy, strongly suggested that other persons were involved. The trial court therefore correctly charged the jury on equal access and actual and constructive possession, as well as parties to a crime.

(b) The trial court gave the State’s requested charge that “where transactions involving relatives are under review, slight circumstances are often sufficient to induce a belief that there was collusion between the parties.” This instruction was a correct statement of the law. See Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991). Gaston maintains that this charge was not tailored to the evidence, because no evidence was presented showing that Gaston’s aunt was involved with the drugs found in the car. But Gaston himself made repeated references to his aunt. She owned the car and had equal access to it. He testified that the Nike box must have been under the seat and that he had just borrowed the car to go to work, implying that the drugs must have belonged to his aunt. “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge.” (Footnote omitted.) Blackford v. State, 251 Ga. App. 324, 326 (2) (554 SE2d 290) (2001). As some evidence was presented to support it, this charge was sufficiently tailored to the evidence.

Gaston also argues that this charge misled the jury into believing that the State’s burden of proof was only “slight evidence.” We do not agree. The trial court also charged the jury on the presumption of innocence, reasonable doubt, mere presence, and spatial proximity. The jury instructions cannot be viewed in isolation. Considering the charge as a whole, we find no reasonable likelihood that the jury would have applied the challenged charge in a manner that violates the constitution. Bridges v. State, 268 Ga. 700, 703 (492 SE2d 877) (1997).

(c) The trial court gave complete and accurate instructions on reasonable doubt, the presumption of innocence, and mere presence. Since these charges cover the principles of law embodied in Gaston’s requested charge on bare suspicion, we find no error in the trial court’s refusal to give the requested charge. Morrison v. State, 220 Ga. App. 151, 155 (3) (b) (469 SE2d 686) (1996).

7. Citing Edwards v. State, 219 Ga. App. 239, 246-247 (8) (464 SE2d 851) (1995), Gaston contends it was error to allow Glenn to testify about the street value of the drugs found in the car, as it was prejudicial and not relevant to the facts of the case. But in Edwards we found no error in the introduction of evidence of the street value of seized drugs. And here, as in Edwards, no objection was made to the testimony at trial. Moreover, the testimony was relevant to the issues at trial for two reasons. It could have explained the extreme nervousness Gaston displayed when he was stopped. And, as in Edwards, it permitted the jury to evaluate the plausibility of Gas-ton’s claim that someone he did not know would place drugs in the car he was driving in plain view without Gaston’s knowledge, when those drugs had a street value of approximately $77,500.

8. The remainder of Gaston’s enumerations allege various particulars in which his trial counsel rendered ineffective assistance. The standard for proving ineffective assistance of counsel requires a showing both that counsel’s performance was deficient and that this deficiency prejudiced the defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). A strong presumption exists that counsel’s conduct fell within the broad range of professional conduct. Harris v. State, 268 Ga. 412 (490 SE2d 96) (1997). A trial court’s ruling on this issue must be upheld unless clearly erroneous. Id. at 412-413. Many of the specific instances cited by Gaston as showing that counsel failed to act to prevent the admission of evidence or to counteract the prosecution’s mistakes involve the same issues enumerated by Gaston as errors on appeal. Given our determination that these instances involving the admission of evidence or alleged prosecutorial mistakes were not error, it follows that trial counsel was not ineffective in failing to prevent or counteract them. We have reviewed Gaston’s allegations regarding the alleged ineffective assistance of his trial counsel, and we find them without merit under the Strickland standard. The trial court did not err in finding that Gas-ton received effective assistance from trial counsel.

Decided September 19, 2002

Mark J. Nathan, for appellant.

Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Ellington, JJ., concur.


text:
    A02A1277.
    In the Interest of R. W., a child.
    (571 SE2d 485)
   Miller, Judge.

R. W. appeals the order of the juvenile court finding that he committed delinquent acts which would constitute the crime of theft by receiving stolen property if he were an adult. We affirm for the reasons set forth below.

In considering an appeal from an adjudication of delinquency, we view the evidence in the light most favorable to the prosecution to determine if a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. In the Interest of D. S., 239 Ga. App. 608 (521 SE2d 661) (1999). The evidence is considered under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with all reasonable inferences construed in favor of the juvenile court’s findings. In the Interest of J. D., 243 Ga. App. 644 (534 SE2d 112) (2000).

So viewed, the record shows that 81-year-old Annette Gray lived in a four-unit apartment building in Chatham County. Sixteen-year-old R. W. lived with his mother in a downstairs apartment in the same building. On October 26, 2001, Gray came home and was preparing to climb the stairs to her apartment when a male emerged from an adjacent storage closet, pushed Gray down to the floor, and grabbed her purse. Gray was unable to see the male’s face, which was hidden behind “something white,” although she described him as tall and thin.

A few days after the incident, R. W.’s mother found a black purse under some clothes in a laundry basket in R. W.’s bedroom. Inside the purse was a checkbook with Gray’s name on it. R. W.’s mother called the police. A detective interviewed R. W. and his mother at their apartment. R. W. told the detective he knew that the purse was in his room and that he knew it was stolen, but that “Alfred,” not he, had stolen it. In later interviews with police, R. W. again admitted that he knew the purse was stolen and that it was in his room, but he now identified his friend Jerrell as the perpetrator. At trial, R. W. testified that Jerrell admitted to stealing the purse. R. W. also testified that he knew the purse was stolen and that it was in his room, but he denied ever touching it.

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

OCGA § 16-8-7 (a).

Considering the foregoing, we find that a rational trier of fact could conclude that R. W. had knowingly come into possession of the stolen purse, and that R. W. committed an act which, if he were an adult, would constitute the crime of theft by receiving.

In his sole enumeration of error, R. W. contends that the juvenile court erred in finding, beyond a reasonable doubt, that R. W. possessed the purse and that, as a result, its declaration that R. W. was delinquent was also erroneous. He argues that it cannot be presumed that the contraband found in a minor’s room was possessed by the minor, and that any such presumption, if it did exist, could be rebutted by a showing of equal access by others, especially access by the principal thief.

To make an affirmative showing of equal access, it is not enough to show that others might have had equal access but it must affirmatively appear that others did have equal access. It is not necessary that the state remove every possibility of the defendant’s innocence, but only that the evidence be sufficient to convince the rational trier of fact of the defendant’s guilt beyond a reasonable doubt.

(Citations omitted.) Valenzuela v. State, 157 Ga. App. 247, 250 (2) (277 SE2d 56) (1981).

We are unpersuaded by R. W.’s contentions. First, the purse was hidden in R. W.’s bedroom, a place wheré a 16-year-old minor would have some degree of control and privacy, even if not to the same extent as an adult might. Second, no evidence showed that his friend Jerrell lived in R. W.’s household. Jerrell may have had some access to R. W.’s room, but the trial court was under no obligation to find that it was equal access. In contrast to cases such as Gee v. State, 121 Ga. App. 41, 42 (172 SE2d 480) (1970), where the accused contended they had no knowledge of the contraband they were accused of possessing, R. W. freely admitted the he knew the stolen purse was hidden in his bedroom. Furthermore, R. W. argues that Jerrell stole the purse as if it were an established fact, but this was not the case. R. W. testified that Jerrell admitted that he stole the purse, but the juvenile court could have disbelieved R. W.’s testimony, particularly since it contradicted his initial statements to police. “Decisions as to the credibility of witnesses are in the province of the trial court. . . .” (Citation and punctuation omitted.) In the Interest of J. L., 229 Ga. App. 447, 449 (1) (494 SE2d 274) (1997). The juvenile court may have also believed that both Jerrell and R. W. were involved in the theft, or believed that Jerrell was the sole original thief but that R. W. became involved after the fact, all of which could be supported by the evidence and all of which would have justified the adjudication of delinquency.

Decided September 19, 2002.

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Jeffrey S. Hendrix, Patricia P. Stone, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


text:
    A02A1315.
    HOLLOMAN v. THE STATE.
    (571 SE2d 486)
   Miller, Judge.

James Herbert Holloman was charged with two DUI counts — a “less safe” charge and a per se charge. Before trial, the State nolle prossed the per se charge, although it is unclear from the record whether the State redacted the per se charge from the accusation given to the jury for deliberations. Holloman was convicted on the “less safe” DUI charge and appeals, arguing that the court erred by refusing to answer a question posed by the jury that may have pertained to a per se charge. We discern no error and affirm.

In February 2001 at a roadblock, Holloman performed poorly on field sobriety tests and tested at 0.09 grams for alcohol concentration level. He was charged with one count of driving under the influence to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)) and with one per se count of driving with an alcohol concentration of 0.10 grams or more (OCGA § 40-6-391 (a) (5)). On July 1, 2001, the statutory alcohol concentration level for a per se violation under OCGA § 40-6-391 (a) (5) changed from 0.10 to 0.08 grams. Ga. L. 2001, pp. 208, 214, 229, §§ 1-5, 4-1. Before trial, the State nolle prossed the per se charge.

At trial the court charged the jury on the presumptions and inferences pertaining to a “less safe” charge. The court sent the accusation out with the jury, although it is unclear whether the accusation was redacted to remove the per se charge that had been nolle prossed. During deliberations the jury sent a question to the court that asked, “[A]t the time of the arrest was the limit .1 or .08?” The court determined that the question was asking what the per se limit under OCGA § 40-6-391 (a) (5) was at the time of the arrest, which was irrelevant to the jury’s deliberations since the per se charge had been dropped. The court concluded that it would confuse the jury to respond directly to the question and that therefore it would simply recharge the jury on .the entire law applicable to the “less safe” charge.

The court called the jury in and, repeating the jury’s question, stated:

In response to that question I think what I’m going to do is I’m going to recharge you on the law on DUIs. The law as I read to you is the law that you are to apply in this case. Any other laws that you may think you know or you may think you have heard of before, do not apply that. Apply the law that I am charging you now. This is the applicable law that was in effect at the time of the arrest and that you should apply.

The court then recharged the jury on the presumptions and inferences pertaining to the “less safe” charge. Following the recharge, the court asked whether the jury had any other questions concerning the applicable law, to which the jury foreman responded, “No.” Ten more minutes of deliberations resulted in a guilty verdict.

Holloman argues on appeal that the court erred “in failing to address the question asked by the jury while deliberating the outcome of the case.” He contends that by failing to give the jury an explanation for its refusal to answer their question, the court confused the jury.

This argument fails for at least two reasons. First, the court did respond to the inquiry, specifically citing the question and telling the jury that the only law applicable to the case was the law being charged again and not any other laws that the jury may have heard of before. Second, the court was quite correct in refusing to identify what the per se limit was at the time of the arrest, as Holloman was not charged with a per se violation. The court may properly refuse to instruct the jury on matters not relevant to the issues on trial. Shoup v. Elliott, 192 Ga. 858, 859, hn. 5 (16 SE2d 857) (1941). Indeed, the court should enlighten rather than confuse the jury in responding to questions. Wall v. Hall, 244 Ga. App. 61, 63 (1) (a) (534 SE2d 828) (2000). Thus, refusing to answer jury questions requesting irrelevant information is entirely proper. Cohen v. State, 257 Ga. 544, 546-547 (3) (361 SE2d 373) (1987). Instead, “[t]he court may respond to a jury’s question by repeating charges which are legally sufficient and not misleading.” (Footnote omitted.) McElroy v. State, 244 Ga. App. 500, 502 (1) (a) (536 SE2d 188) (2000). Although we would have preferred that the court had told the jury that the per se charge (which may not have been redacted from the accusation) was nolle prossed and no longer before the jury, we hold that the court here did not abuse its discretion by responding as it did and repeating the instructions pertinent to the “less safe” charge. See id. at 501 (1) (a) (“As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.”) (citation, punctuation and footnote omitted).

Decided September 19, 2002.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

Keith C. Martin, Solicitor-General, Evelyn Proctor, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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