author: Mikell, Judge.

text:
    A01A1145.
    IGIDI v. THE STATE.
    (554 SE2d 773)
   Mikell, Judge.

Josiah Eged Igidi was charged with two counts of armed robbery and two counts of possession of a firearm during the commission of a felony. A Gwinnett County jury convicted Igidi of one count of armed robbery and acquitted him of the remaining charges. On appeal, Igidi seeks the reversal of his conviction on several grounds. Specifically, he argues that the trial court erred by: (1) allowing the state to present evidence of a subsequent armed robbery offense as a continuing iffense or as a part of the res gestae; (2) failing to give limiting instructions to the jury prior to co-defendant Charles Allen’s testinony regarding the subsequent offense; (3) disallowing Igidi’s cross;xamination of Rudolph Anderson about Anderson’s involvement in a trior armed robbery incident; (4) denying Igidi’s request for a jury barge on robbery; and (5) denying Igidi’s motion for mistrial after íe court gave the jury a charge during its deliberation that had not sen included in the original charge. Igidi also contends that he was enied effective assistance of counsel. For the reasons stated below, /e affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence.” So viewed, the evidence shows that at approximately 10:30 p.m. on July 13, 1997, Ying Wai Fung, also known as “David,” and John Fleming were playing tennis at Lucky Shoals Park when they were approached by two men. Fleming testified that the first man had on a white mask and pointed a red light in his face, which he later realized was a gun. As far as he could tell, Fleming stated, the first man was the only one with a gun. The perpetrators asked for their keys and wallets. After obtaining these items, the perpetrators drove off in Fleming’s and Fung’s cars, a 1992 black Nissan Altima and a 1992 Acura Integra, respectively. Fleming and Fung went to the nearest gas station and called the police. Officer J. P. Surowiec responded to the call.

Fung corroborated Fleming’s testimony, except that he recalled specifically that both men were armed. Fung described the assailants to Officer Surowiec as two black males in their early twenties, 5'7" to 5'8" tall, around 150 pounds, wearing ski masks and dark clothes. Fung also told Officer Surowiec that one of the men had a gun with a laser sight. Like Fleming, Fung testified that he focused on the first gunman because he was pointing the laser sight at Fung’s eyes.

Co-defendant Allen testified that he, Anderson, and Igidi went to the park on July 13, 1997, to steal a car to commit armed robberies. He explained that Anderson dropped them off, then Allen and Igidi, who were both dressed in black, put on their masks and walked onto the tennis court. Allen testified that he wore a skeleton mask and carried a 9-millimeter gun with a laser scope, while Igidi wore a black ski mask and carried a .38 Smith & Wesson revolver. Allen and Igidi obtained the victims’ keys and stole their cars. They used Fleming’s car to rob a Krystal’s restaurant two days later and left it at Anderson’s apartment complex.

Allen testified that he was arrested while driving Fung’s car on August 26, 1997, and that he pled guilty to the armed robbery of the Krystal’s restaurant. On July 17, 1997, the Gwinnett County police found Fleming’s car parked at Hunters Landing Apartments, which is where co-defendant Anderson resided.

Anderson testified that at about 6:00 p.m. on July 13, 1997, he picked up Igidi and they returned to Anderson’s apartment. Amy Warwick, Anderson’s fiancée, was also at the apartment. Anderson recalled that he and Igidi picked up Allen later that evening.

Anderson testified that Allen mentioned something about getting cars to commit a robbery, but that he did not know what Allen and Igidi intended to do. Allen also asked Anderson if he could use Anderson’s 9-millimeter gun, which had a laser sight. Anderson admitted that he drove Allen and Igidi to Lucky Shoals Park. Though he did not see the masks that were used in the robbery, he recalled that Allen was carrying a bag that might have held them. Anderson recalled that Allen and Igidi returned to Anderson’s house the next morning and that Allen told him that they had committed a robbery. Anderson and Warwick drove Allen and Igidi home later that morning.

Warwick testified that she lived with Anderson at Hunters Landing Apartments. At approximately 6:00 p.m. on the evening of July 13, 1997, Igidi arrived at their apartment with Anderson. Warwick testified that Anderson and Igidi played videogames while trying to contact Allen. They left the apartment about 9:30 p.m. and returned with Allen. The three of them left again, and Anderson returned at about 1:30 a.m., while Allen and Igidi came in about ten minutes later.

Warwick recalled that Anderson showed her $100 in their bedroom and when she asked where he had gotten it, he told her that Allen and Igidi had committed a robbery. Around 6:00 or 7:00 a.m., Allen and Igidi knocked at their door and asked to be taken home. Warwick also testified that at some point in time, she had seen Anderson with the 9-millimeter gun and a black ski mask.

Igidi gave a statement to Detective M. L. Pusbach on September 2, 1997. Igidi stated that at sometime in early July, he, Allen, Anderson, and Warwick were at Anderson’s apartment. He overheard Allen and Anderson talk about committing a robbery at the park. Sometime after the conversation, Anderson took him home. Igidi also stated that he had seen Anderson with a gun that evening. Igidi told the officer that he did not do anything else that night.

1. On appeal, Igidi argues that the trial court erred by allowing the state to present evidence of a subsequent armed robbery offense as a continuing offense or as a part of the res gestae of the instant offense. Specifically, Igidi contends that the state failed to articulate the purpose for which the evidence was introduced. Consequently, Igidi maintains, the admission of the evidence constitutes reversible error. We disagree.

The evidence in question was Allen’s testimony that he and Igidi robbed the victims of their cars to commit a subsequent armed robbery. The state offered the evidence as part of a continuing enterprise. The trial court ruled the evidence admissible as part of the res gestae of the crime and because it evidenced motive.

“The state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial. This is true even if the defendant’s character is incidentally placed in issue.” Further, “[e]vidence of a continuous criminal enterprise is [also] admissible.” In this case, the evidence tended to show the motive for the first robbery, as well as Igidi’s exercise of dominion over the stolen automobile after the robbery in the park, which, alone, makes it admissible as a continuing criminal enterprise. Thus, we find no abuse of discretion in the trial court’s admission of this evidence as part of the res gestae.

2. Igidi next enumerates as error the trial court’s failure to give limiting instructions to the jury prior to Allen’s testimony about the Krystal’s restaurant robbery. Again, we find no error.

After specifically ruling that the evidence was admissible as part of the res gestae, but not as similar transaction evidence, the trial court agreed to give a limiting instruction contemporaneous with Allen’s testimony about the Krystal’s robbery. The court stated:

I will give a somewhat limiting instruction, since it is talking about a different alleged crime, and instruct the jury that any — just to remind the jury that the defendant is on trial only for the crimes that are alleged in the indictment, that he is not on trial for any other crimes allegedly committed in any other county and make sure they understand that.

When Allen testified, the trial judge did not give the contemporaneous limiting instruction, and Igidi did not object. At the conclusion of closing arguments, the trial court gave the following limiting instruction during its charge to the jury:

In this case, the state presented evidence of what they contend was another armed robbery committed — allegedly committed by this defendant. This evidence was admitted for the sole purpose of proving — if you, the jury, find that it did prove — a motive for committing the alleged armed robbery in this case. I just want to remind you that Mr. Igidi is on trial here today this week only for those crimes that have been alleged in this indictment that will be out with you. That is the only thing that he is on trial for. He is not on trial for any other alleged crimes committed at any other time or any other place.

The law is well settled that the trial court does not commit reversible error by failing to give a contemporaneous limiting instruction without a request that it do so. While in this case the request was made prior to trial, Igidi did not object at the pertinent time or otherwise alert the court to give thé instruction. In Kirkland v. State, the defendant argued that the trial court erred because it repeatedly failed to give sua sponte a contemporaneous limiting instruction regarding the allowable uses of similar transaction evidence. We held, “A defendant may not rely on a blanket request for ‘contemporaneous’ instructions early in the trial: a request for a contemporaneous limiting instruction must itself be made contemporaneously with the admission of the evidence.” Similarly, here, Igidi cannot rely on his earlier request for a contemporaneous limiting instruction. Rather, Igidi was required to request the limiting instruction at the time the evidence was offered. Because he failed to do so, there was no error.

3. In his third enumeration of error, Igidi argues that the trial court denied his right to a fair trial when it would not allow him to question Anderson about a previous armed robbery that Allen testified that he and Anderson committed. This argument also lacks merit.

Allen testified that he pled guilty to the armed robbery charge and implicated Anderson, but Anderson was never charged. Igidi’s counsel argued that she should be allowed to cross-examine Anderson about this prior crime to show that Igidi did not commit the Krystal’s robbery. The trial court did not allow this line of questioning on the grounds that it was irrelevant. Nevertheless, outside of the jury’s presence, the court allowed Igidi to cross-examine Anderson about the robbery, and Anderson pled the Fifth Amendment.

“The trial court may restrict the scope of the cross-examination to matters relevant to the issues being tried, and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.”* We find that prohibiting Igidi from cross-examining Anderson about an entirely unrelated crime for which he was not charged was not an abuse of discretion. Moreover, the trial court could not compel Anderson to testify about the previous incident as such an order would have ignored his constitutionally protected right against self-incrimination. Finally, we note that in light of Allen’s testimony that he and Anderson committed the prior incident, with the same type of weapons used in the robbery involved in this case, had the jury desired to conclude that Anderson and Allen committed the Krystal’s robbery, instead of Allen and Igidi, it could have done so. “[I]t is not for the appellate courts to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence.”

4. In his fourth enumeration of error, Igidi argues that the trial court erred by failing to charge the jury on the lesser included offense of robbery. We disagree.

“A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense.” There is no such evidence in this case. No evidence was presented that the robbery was committed without the use of a gun. In fact, both victims testified that a gun was used. “[A]s a party to the crime, [Igidi] was guilty of the offense of armed robbery regardless of whether he personally threatened anyone with the gun.” Based on the evidence, the jury could either convict Igidi of armed robbery or acquit him if it believed that he was not present during the incident. Accordingly, the charge on the lesser included offense of robbery was not warranted.

5. Igidi moved for a mistrial after the trial court charged the jury on “parties to a crime,” in response to the following question during its deliberation: “Does armed robbery mean he has to have physical possession of a gun or weapon?” Igidi now argues that the trial court’s denial of his motion was erroneous. The denial of a motion for a mistrial will not be disturbed on appeal absent an abuse of discretion. Having found no such abuse, we find this enumeration merit-less.

“It is within the discretion of the trial court to give or not to give unrequested additional instructions when the jury requests a recharge on a particular point, and the discretion includes the giving of unrequested instructions not contained in the trial court’s original charge.” In determining whether that discretion was abused, we take “into account the sensitive nature of the judge’s responsibility at this stage of the trial and the duty of the trial judge to provide impartial and effective guidance on the law for the jury to follow in its deliberations.”

In Taylor v. State, in response to a question from the jury, the trial court recharged some of the original instructions and also added two additional charges, parties to a crime and prosecution of parties who did not directly commit the crime. Citing Bollenbach v. United States we stated, “when a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy.” Igidi, like the defendant in Taylor, argues that at the very least, he should have been given an opportunity to argue to the jury the issue of parties to a crime. We rejected this argument in Taylor and do so now. As in Taylor the recharge in this case was warranted by the evidence and legally accurate and was not confusing or misleading. Thus, the trial court did not abuse its discretion when it charged on parties to a crime or when it denied Igidi’s motion for a mistrial.

6. In his final enumeration of error, Igidi contends that he was denied his right to effective assistance of counsel because his trial counsel failed to: (1) call key alibi witnesses; (2) call Igidi to testify; and (3) object to the prosecutor’s misrepresentation of facts and improper reference to matters not in evidence. We disagree.

“[I]n order to prevail on a claim of ineffectiveness of trial counsel, a defendant must show that his attorney’s performance was deficient and that the deficiency prejudiced him such that a reasonable probability exists that, but for the attorney’s errors, there would have been a different outcome at trial.” Furthermore, “[a] court ... is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one [and its], finding of effectiveness must be upheld unless clearly erroneous.” We find that Igidi has not made either showing.

(a) Igidi argues that his counsel should have called his mother, who would have testified that she was with Igidi from the moment she picked him up from work at 6:45 p.m. on the evening of July 13, 1997. We find that counsel’s decision not to call Igidi’s mother to testify was not deficient.

The decision as to which defense witnesses will be called is a matter of trial strategy and tactics, and tactical errors do not constitute ineffective assistance of counsel. The fact that appellant and present counsel now disagree with the difficult decisions regarding trial tactics and strategy made by trial counsel does not require a finding that appellant received representation amounting to ineffective assistance of counsel.

In this case, Igidi’s trial counsel testified that she met with Igidi’s mother, who prepared a time line as to Igidi’s whereabouts on the evening of July 13, 1997, but counsel did not call her to testify because of the inconsistencies in the alibi. The inconsistency was caused by evidence that Igidi stated that he was at Anderson’s apartment with Anderson, his girlfriend, and Allen when he heard Allen talk about committing a robbery at the park. Further, Igidi’s description of what happened during the evening that he was at Anderson’s apartment was consistent with Anderson’s and Warwick’s testimony about the events that occurred the evening before the robbery. Therefore, Igidi has not shown that his trial counsel’s decision not to call his mother as an alibi witness was deficient.

(b) Igidi next contends that trial counsel was ineffective because she failed to allow him to testify. Again, we disagree.

Igidi testified that his counsel told him that he could not testify because she did not think he would hold up against cross-examination. Igidi’s counsel testified that she could not remember the conversation with Igidi, but stated: “I always put it up to my client whether they want to testify or not, but I certainly advise them as to the climate of what is going on at the trial and what the strategy is. But I would never tell a client: No, you cannot testify.” “The trial court as finder of fact may believe the attorney’s testimony. We find no abuse of discretion.”

(c) Lastly, Igidi contends that his trial counsel was ineffective because she failed to object during the following portion of the state’s closing argument: “The statement said Josiah Igidi said in the beginning of the [sic] July he went to Rudolph Anderson’s house, they watched movies and played video games. The next morning they took him back home.” While Igidi did not say that they took him back home the next morning in his statement, there was testimony from Anderson and Warwick that they took Igidi back home the next morning.

Decided September 18, 2001

Stuckey & Manheimer, Stephanie S. Benfield, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

“Attorneys are allowed considerable latitude in making closing argument,' and they may draw any inference from the evidence so long as that inference is both reasonable and legitimate.” Therefore, Igidi’s counsel’s failure to object to this statement does not render her representation of Igidi deficient. Moreover, the statement did not refer to matters not in evidence. However, if we assume that the failure to object constituted error, in light of the evidence in the case against Igidi, we find the error harmless as it is not reasonably probable that but for the attorney’s error, there would have been a different outcome at trial.

Judgment affirmed.

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

       Charles Allen and Rudolph Anderson were also charged with these offenses. Prior to trial, Allen pled guilty to all of the charges, and Anderson pled guilty to two counts of armed robbery.

       (Citations and punctuation omitted.) Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       The officer who received the call about the armed robbery at the restaurant testified that the robbery occurred at approximately 5:10 a.m. on July 14,1997.

       (Citations and punctuation omitted.) Burton v. State, 212 Ga. App. 100 (1) (441 SE2d 470) (1994).

       (Footnote omitted.) Carruthers v. State, 272 Ga. 306, 313 (6) (528 SE2d 217) (2000).

       See id. (evidence admitted as part of a continuing criminal enterprise that the defendant committed several other crimes in Florida after he murdered a victim in Georgia and drove that victim’s car to Florida); Griffith v. State, 264 Ga. 326, 327 (3) (444 SE2d 794) (1994) (evidence that the defendant and his companion approached a victim to commit a robbery was admitted as part of the res gestae even though the defendant was not indicted for that robbery).

        Altman v. State, 229 Ga. App. 769, 770 (3) (495 SE2d 106) (1997).

        State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998).

       247 Ga. App. 526 (543 SE2d 791) (2000).

       (Citation and emphasis omitted.) Id. at 530 (5) (a).

       (Citations and punctuation omitted.) Bowers v. State, 241 Ga. App. 122, 124 (4) (526 SE2d 163) (1999).

        Johnson v. State, 159 Ga. App. 819, 825 (6) (285 SE2d 252) (1981).

       (Footnote omitted.) Curry v. State, 243 Ga. App. 712, 714 (1) (534 SE2d 168) (2000).

       (Citation and punctuation omitted.) Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994).

        Hopkins v. State, 227 Ga. App. 567, 568 (1) (489 SE2d 368) (1997), overruled in part, Mullins v. State, 270 Ga. 450 (511 SE2d 165) (1999) (applying the “reasonable probability” test when reviewing instances of unchallenged argument constitutes error).

       See Spivey v. State, 243 Ga. App. 785, 786 (1) (534 SE2d 498) (2000).

        James v. State, 270 Ga. 675, 677 (4) (513 SE2d 207) (1999).

       (Citations and punctuation omitted.) Ross v. State, 231 Ga. App. 506, 508 (2) (499 SE2d 351) (1998), overruled in part, Vogleson v. State, 250 Ga. App. 555 (552 SE2d 513) (2001) (disapproved Ross to the extent that it suggests that it is not reversible error to preclude cross-examination of an accomplice regarding the deal he has reached with the state).

       (Citation and punctuation omitted.) Taylor v. State, 169 Ga. App. 842, 844 (2) (315 SE2d 661) (1984).

       Id.

       Id. at 843-844 (2).

       326 U. S. 607, 612-613 (66 SC 402, 405, 90 LE 350) (1946).

       (Punctuation omitted.) Taylor, supra at 844 (2).

       Id.

       Id.

       Id.

       (Citations omitted.) Butler v. State, 273 Ga. 380, 384 (10) (541 SE2d 653) (2001).

       (Citations and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) (523 SE2d 632) (1999).

       (Citation omitted.) Hall v. State, 243 Ga. App. 804, 806 (534 SE2d 196) (2000).

       (Footnotes omitted.) Lunsford v. State, 237 Ga. App. 696, 697 (1) (515 SE2d 198) (1999).

       (Footnote omitted.) Kelly v. State, 242 Ga. App. 30, 34 (5) (528 SE2d 812) (2000).

        Cartaya v. State, 176 Ga. App. 404, 405 (336 SE2d 324) (1985).


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A1502.
    LEIMBACH v. THE STATE.
    (554 SE2d 771)
   Pope, Presiding Judge.

David Walter Leimbach appeals following the denial of his motion for discharge and acquittal on the ground that he was not tried within the requisite time following the filing of his demand for a speedy trial under OCGA § 17-7-170 (b).

Leimbach was indicted on April 7, 2000, on charges of mutiny in a penal institution, aiding and abetting mutiny, and riot in a penal institution. He was arraigned on June 13, 2000, during the next term of court. During that same term, on June 28, 2000, Leimbach filed his statutory demand for speedy trial.* Leimbach’s case was not called for trial during the next two succeeding terms of court. And on November 17, 2000, Leimbach filed his motion for discharge.

The trial judge held an immediate hearing on the motion. The state argued that it was never served with the speedy trial demand. The certificate of service on the demand indicated that it had been served by mail. Leimbach’s counsel testified that it is his practice to personally file criminal pleadings and then give a copy to his paralegal for mailing. He had no specific recollection, however, of the demand in this case. The paralegal testified that it was her practice under such circumstances to serve the file-stamped copies by mail to the district attorney’s office, although she did not specifically recall mailing the demand in Leimbach’s case.

A secretary for the district attorney’s office testified that it is the practice of that office to date-stamp every envelope that comes in and then to put the envelope into the appropriate attorney’s mailbox. The district attorney assigned to Leimbach’s case testified that although it is his practice to check his mailbox regularly, he never received a copy of the speedy trial demand in the case. He stated that if he had received such notice, he would have moved the case up on his priority list to ensure that it was tried within the statutory time limits.

The trial court denied Leimbach’s motion on the grounds that Leimbach had failed to prove that jurors were available at the time he filed his demand or that he had achieved proper service upon the state as required by the statute. OCGA § 17-7-170. In reviewing this ruling, we must accept these findings unless they are clearly erroneous. Johnson v. State, 203 Ga. App. 896, 897 (3) (418 SE2d 155) (1992).

This court has held that in order to obtain the dismissal of a criminal case for failure to comply with a speedy trial demand, a defendant must strictly comply with the filing and service requirements of OCGA § 17-7-170:

The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been a strict compliance with the statute. . . . And, because of the severity of this sanction, the one who calls for it must file with the court a clear demand to be tried within the next succeeding term of court, and must alert the prosecutor by service of a copy of the demand, as the statute requires.

(Citations omitted.) Carter v. State, 226 Ga. App. 198-199 (486 SE2d 79) (1997). See also Maddox v. State, 218 Ga. App. 320, 321-322 (1) (461 SE2d 286) (1995); Johnson v. State, 203 Ga. App. at 897.

And although the certificate of service on Leimbach’s demand indicated that the state was served by mail, Leimbach’s counsel’s paralegal had no specific recollection of mailing that demand. Further, the district attorney's office had no record of receiving the demand, and the prosecutor assigned to the case testified that he did not receive it. This evidence was sufficient to rebut the prima facie evidence of the certificate of service. Hanson v. State, 196 Ga. App. 589-590 (1) (396 SE2d 510) (1990). Accordingly, the trial court did not err in denying Leimbach’s motion.

Decided September 18, 2001.

Justin J. Wyatt, for appellant.

Patrick H. Head, District Attorney, Rose L. Wing, Dana J. Norman, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

       See OCGA §§ 15-6-3 (11) and 15-6-19 setting the terms of court for Cobb County.


author: Miller, Judge.

text:
    A01A1390.
    AMAECHI v. AMERICAN HONDA FINANCE CORPORATION.
    (554 SE2d 536)
   Miller, Judge.

Elise Amaechi, acting pro se, appeals a judgment on the pleadings against her. On appeal she contends that service of process was insufficient and that the trial court erred by failing to issue findings of fact and conclusions of law in connection with its rulings. We discern no error and affirm.

On August 24, 1999, American Honda Finance Corporation (AHFC) filed an action to foreclose on a 1988 Honda Civic for which Amaechi had failed to make payments, Amaechi did not raise any issue regarding service in her answer and did not file a motion to dismiss based on insufficiency of service until two months later. AHFC moved for a judgment on the pleadings, which the court granted.

Following the judgment, Amaechi filed with her notice of appeal a motion for findings of fact and conclusions of law with regard to the court’s ruling on her motion to dismiss for insufficient service.

1. “Under OCGA § 9-11-12 (b) the defenses of insufficient service, lack of personal jurisdiction and improper venue must be raised before or at the time of pleading. Failure to raise these defenses either in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of these defenses.” Since Amaechi did not raise her defense of insufficient service until two months after filing her answer, she waived this defense.

2. Amaechi further contends that the trial court erred by failing to issue findings of fact and conclusions of law with respect to her challenge to service of process. However, this enumeration of error is rendered moot by our holding in Division 1 that Amaechi waived any issue with respect to service of process due to her untimeliness in raising the issue.

Decided August 27, 2001

Reconsideration denied September 19, 2001

Elise Amaechi, pro se.

Levine & Block, Stephen H. Block, for appellee.

Even if the issue were properly before us, we see no requirement for the court to make findings of fact and conclusions of law in this case. Moreover, findings of fact and conclusions of law shall be made by the court “upon request of any party made prior to [the court’s] ruling,” which was not done here.

Judgment affirmed.

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

       (Citations and punctuation omitted.) Yeremian v. Ellis, 239 Ga. App. 805, 807 (1) (b) (521 SE2d 596) (1999).

       See id.

       See Seabolt v. Edghill, 192 Ga. App. 715, 716 (1) (386 SE2d 376) (1989).

       OCGA § 9-11-52 (a).


text:
    A01A1091.
    HUDSON v. THE STATE.
    (554 SE2d 781)
   Miller, Judge.

A jury found Bromekis Hudson guilty of child molestation. On appeal, Hudson claims the trial court erred in denying his several motions for a mistrial because the State improperly placed his character into issue. He also claims the evidence was insufficient to support his conviction. We disagree and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict.* We do not weigh the evidence or determine witness credibility. So viewed, the evidence shows that Hudson worked as a short order cook at a restaurant in Thomson. The owners lived behind the restaurant. At about 7:30 p.m. on March 4, 1998, the owners’ eleven-year-old daughter, L. L., walked from her home to the restaurant, where Hudson was working with four other employees. About an hour later, L. L.’s mother called the restaurant looking for her daughter, but there was no answer. She walked to the restaurant. She entered through the back door and found an employee, Justavian McCord, washing a deep fryer in the kitchen sink, although that was normally Hudson’s job. She went to the front of the store, by the cash register, and found that the ringer on the phone had been turned off. She then saw Hudson and McCord hurrying out of the men’s room. Inside the men’s bathroom, she found her daughter standing in a closed toilet stall.

The mother asked L. L. why she was in the men’s bathroom, and L. L. replied that she was changing toilet tissue. L. L.’s mother was suspicious that something inappropriate had taken place between L. L. and Hudson, but L. L. repeated her explanation until her mother spanked her and informed her that she was going to take L. L. to the emergency room to see if Hudson had touched her. L. L. then told her mother that Hudson had taken her pants down. The mother took L. L. to the hospital where a medical exam indicated that L. L. had suffered no physical trauma and there was no indication of rape.

L. L. testified at trial that, in a stall in the men’s bathroom, Hudson had pulled her pants down and told her to turn around and bend down, and that he touched her vagina with his penis. McCord then came in the bathroom to warn Hudson that L. L.’s mother was in the restaurant. Before Hudson left, he told L. L. to stand on top of the toilet, although L. L. did not do so because she knew her mother would find her anyway.

1. Hudson claims that the evidence presented at trial was insufficient to support his conviction for child molestation. He points to the evidence showing that (1) L. L. experienced no physical trauma; (2) L. L. only told her mother that Hudson had touched her vagina after her mother spanked her; and (3) L. L. told a restaurant employee that nothing had happened between her and Hudson. We note that although L. L. admitted that she spoke to the employee, she testified that she never recanted her claim that Hudson had touched her.

Georgia law does not require that L. L.’s testimony be corroborated. After her initial denials, L. L.’s version of what occurred between her and Hudson in the men’s bathroom, as told to her mother, the examining physician, and the jury, was consistent with a finding of guilt. If believed by the jury, L. L.’s testimony alone was sufficient for a rational trier of fact to find Hudson guilty beyond a reasonable doubt of child molestation.

2. Hudson claims the trial court erred in denying his motions for a mistrial because his character was improperly placed in evidence. When the prosecutor asked L. L.’s mother about what had happened in the restaurant bathroom, her reply included the following unresponsive statements: “That’s always been my main objective, to keep [my children] away from drugs. And I knew that [Hudson] had been in some trouble for drugs.” “When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial.” Whether the mother’s statements regarding Hudson’s drug use were so prejudicial as to warrant a mistrial was within the discretion of the trial court. In reviewing a trial court’s decision whether to grant a mistrial based on the introduction of improper character evidence, “an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.” Here the mother’s statement was unsolicited, and the trial court immediately instructed the jury to disregard the testimony. Under these circumstances the trial court did not abuse its discretion in denying Hudson’s request for a mistrial.

Decided September 19, 2001.

M. V. Booker, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.

Defense counsel also made a motion for mistrial after the prosecutor asked the victim a series of questions with regard to previous kissing between L. L. and Hudson. Hudson claims this is similar-transaction evidence and that the trial court failed to hold the hearing required by Uniform Superior Court Rule 31.3. However, evidence of prior kissing between L. L. and Hudson is not similar transaction evidence subject to the requirements of Rule 31.3, but is simply evidence of a relationship between L. L. and Hudson that is admissible to show Hudson’s motive, intent, and bent of mind in committing the charged act against L. L. The trial court did not err in denying Hudson’s motions for a mistrial.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       Id.

        Atkins v. State, 243 Ga. App. 489, 490 (1) (c) (533 SE2d 152) (2000).

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

       (Citation omitted.) White v. State, 268 Ga. 28, 32 (4) (486 SE2d 338) (1997).

       Id.

       (Footnote omitted.) Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

       See Griffin v. State, 240 Ga. App. 494, 496 (2) (523 SE2d 910) (1999).

       See Myrick v. State, 242 Ga. App. 892, 893 (1) (531 SE2d 766) (2000).


text:
    A01A0996.
    SMITH v. GEORGIA ASSET PROPERTIES, LLC et al.
    (554 SE2d 561)
   Mikell, Judge.

Leonard E. Smith, pro se, appeals the trial court’s final order declaring that his case against Georgia Asset Properties, LLC (“GAP”) is closed and that his second complaint purporting to initiate an action against GAP and National Tax Funding, L.P. is a nullity. We affirm.

Smith and two other plaintiffs filed a complaint against GAP and Associate Financial Services of America, Inc. on July 29, 1998. After GAP filed an answer, Smith voluntarily dismissed the action on or about December 17, 1998. On February 15, 1999, Smith filed a pleading entitled “Second Complaint for Declaratory Judgment and Complaint for Illegal Interference with Plaintiffs’ Possessory [sic] and Other Valuable Real Property Rights” against GAP and National Tax Funding. The new complaint had the same file number as the original action, and there is no evidence in the record that Smith paid a second filing fee.

Smith filed a motion for default judgment against GAP, which he subsequently withdrew. On July 10, 2000, he filed a pleading entitled ‘Withdrawal of Their Motion for Default Judgment and Plaintiffs’ Amended Complaint and Plaintiffs’ Motion to Compel”; however, the pleading failed to specify what action should be compelled. On July 25, 2000, GAP filed a motion for ah order closing the case. The trial court held a hearing on the motions on July 31, 2000, and entered a final order in which it concluded thát the case against GAP had been closed since the voluntary dismissal on December 17, 1998, and that the second complaint did not commence a new action and was therefore a nullity.

1. In his first error asserted on appeal, Smith argues that the trial court erred in granting GAP’s motion for an order closing the case. Because the trial court’s order was based on findings of fact concerning whether the second complaint was a new action or an amendment to the original complaint, those findings will not be set aside unless clearly erroneous. See BMH Real Estate Partnership v. Montgomery, 246 Ga. App. 301, 302 (1) (540 SE2d 256) (2000). As the clearly erroneous test is, in effect, the same as the any evidence rule, we will not disturb the court’s findings if there is any evidence to support them. Blanton v. Duru, 247 Ga. App. 175 (543 SE2d 448) (2000). Furthermore, even if we view GAP’s pleading as a motion to dismiss and apply a de novo standard of review as Smith urges us to do, we reach the same result. See Cook v. Regional Communications, 244 Ga. App. 869, 870 (539 SE2d 171) (2000).

After reviewing the records of the court clerk and hearing testimony and argument from the parties, the court concluded that there was no evidence to support Smith’s argument that the second complaint was in fact a new action. Because the pleading was filed in an action that had been dismissed, the court found that it was a nullity.

We cannot conclude that the court’s findings were clearly erroneous, nor does our review of the record indicate that a different result was required. The new complaint had the same file number as the original action, and there is no evidence in the record that Smith paid a second filing fee or initiated a separate action. Because the underlying case had been dismissed, Smith would have had to file a new action against GAP to revive his claims and could not simply file an amended complaint in a case that had been dismissed. See generally OCGA § 9-11-41 (a); Uniform Superior Court Rules 36.9; 36.10; 39.2.

Smith states in his appellate brief that he did pay a second filing fee but lost the receipt; however, this contention carries no weight. “Statements of fact in the briefs of the parties unsupported by evidence in the record cannot be considered on appeal.” McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995).

Furthermore, the record does not contain a transcript of the hearing. Therefore, we must assume that the evidence and arguments presented at that hearing, as well as the record before us, provided a sufficient basis for the court’s ruling. Barton v. Barton, 216 Ga. App. 292, 293 (3) (454 SE2d 155) (1995); Sargent v. Dept. of Human Resources, 202 Ga. App. 874, 875 (415 SE2d 918) (1992). “Where no transcript of evidence is filed [,] all grounds requiring a consideration of evidence must be affirmed.” (Punctuation omitted.) Garrett v. McDowell, 242 Ga. App. 78, 79 (1) (527 SE2d 918) (2000), citing Prada v. Administrator, Small Business Admin., 208 Ga. App. 710 (432 SE2d 274) (1993). Accordingly, we affirm the trial court’s final order declaring that Smith’s case against GAP was closed.

2. Next, Smith argues that the trial court erred by failing to rule on his motion for reconsideration of the final order. However, this error is not supported by citation of authority or argument and is deemed abandoned. Court of Appeals Rule 27 (c) (2); Sulejman v. Marinello, 217 Ga. App. 319, 320 (1) (457 SE2d 251) (1995) (“Appellate judges should not be expected to take pilgrimages into records in search of error without the compass of citation and argument.”). See also Dixon v. MARTA 242 Ga. App. 262, 266 (529 SE2d 398) (2000).

Furthermore, Smith filed a notice of appeal on September 27, 2000, which acts as a supersedeas and deprives the trial court of the power to rule on the motion for reconsideration. See DeClue v. City of Clayton, 246 Ga. App. 487, 493 (5) (540 SE2d 675) (2000). Thus, the trial court did not err.

Judgment affirmed.

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

Decided August 29, 2001

Reconsideration denied September 20, 2001

Leonard E. Smith, pro se.

Proctor & Chambers, Bradley A. Hutchins, Freed & Berman, Benjamin I. Fink, Aaron B. Chausmer, Kenneth A. Hindman, for appellees.


author: Ruffin, Judge.

text:
    A01A0900.
    BAKER v. THE STATE.
    (554 SE2d 797)
   Ruffin, Judge.

A jury found Manuel Max Baker guilty of two counts of leaving the scene of an accident. Baker appeals, asserting that the trial court erred in denying his double jeopardy plea in bar and his motion for mistrial based on a comment by the solicitor-general during closing argument. For reasons that follow, we affirm.

1. Baker’s convictions stem from an automobile accident he had with Yolanda Stringfellow on October 8, 1999. The accident report reveals that the collision occurred on Interstate 285 in DeKalb County at approximately 4:30 p.m. and that a vehicle with an unknown driver, later identified as Baker, left the scene of the accident (“accident number one”). Approximately 20 minutes later, Baker was involved in a second accident with a car driven by Christina Black (“accident number two”). Baker did not leave the scene of accident number two and was issued citations for driving under the influence, failure to maintain lane, and driving with an expired license.

Upon investigating accident number one, the investigating officer discovered that the vehicle involved in that accident was the same one involved in accident number two. On November 29, 1999, the officer issued Baker a citation for leaving the scene of accident number one. A few months later, on February 22, 2000, Baker, represented by counsel, negotiated a plea with the State regarding the charges arising out of accident number two.

Baker argues that the State’s prosecution of him for leaving the scene of accident number one is barred by double jeopardy because the prosecutor knew about those charges when she negotiated the plea on charges stemming from accident number two and because all the charges arose from the same conduct. Baker’s argument is based on OCGA § 16-1-7 (b) which provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.”

Baker’s argument fails for two reasons. First, the test for determining what is known by the prosecutor is whether the prosecutor had actual knowledge of the other offenses which arose from the same conduct. Thus, OCGA § 16-1-7 (b) does not bar prosecution of other offenses unless the defendant affirmatively shows that the other crimes were “actually known to the prosecutor handling the proceedings.” At the plea in bar hearing in this case, the assistant solicitor-general who prosecuted the accident number two offenses stated in her place that she was unaware of accident number one when she negotiated the plea on accident number two.

Second, the several crimes did not arise from the same conduct. The offenses stem from different automobile accidents, which occurred at different times, in different locations. Under these circumstances, the trial court correctly denied Baker’s double jeopardy plea in bar.

2. Baker, who presented no evidence and did not testify, asserts that the trial court erred in failing to grant a mistrial when the solicitor commented on his “failure to testify in her closing argument to the jury.” The comment concerned the testimony of the police officer who responded to accident number two, Officer Cox. During his testimony, Cox described the van Baker was driving, but never mentioned any damage to the van, and on cross-examination, Baker did not ask about any such damage. Baker later moved for a directed verdict, arguing that because there was no evidence that his van was damaged, the jury could not find that he was involved in accident number one. The court denied the motion, and during closing argument the prosecutor stated:

[Defense counsel] will argue, I believe, that there was no damage to Mr. Baker’s car as testified to by Officer Cox. . . . [H]e didn’t ask Officer Cox about any damage to the white van at the time he met that vehicle. So you can’t infer there was no damage. He didn’t ask the question. There is no evidence saying there wasn’t. He may ask you to infer it. [Defense counsel] could have asked that question but he didn’t.

Baker objected to the argument on the ground that it implied he had “the burden of proving his innocence,” and the court overruled his objection.

We note initially that it is questionable whether Baker preserved the asserted error for appeal. As stated above, Baker’s objection was grounded on the argument that the prosecutor implied that he had “the burden of proving his innocence,” and not, as asserted on appeal, that the prosecutor commented on his election not to testify. Although it appears from the transcript that the prosecutor construed the objection as focusing on Baker’s “right to remain silent,” and asserted that her argument did not impermissibly comment on this right, our review of the transcript does not reveal any argument by Baker on the enumerated ground.

Furthermore, even if Baker had raised the argument below, we disagree that a new trial is required on the ground that the trial court abused its discretion in failing to overrule the objection. Reversal is not warranted absent “a finding that (1) the prosecutor’s manifest intention was to comment upon the accused’s failure to testify or (2) the comment was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.”*

In this case, there is no evidence that the prosecutor’s manifest intention was to comment on Baker’s failure to testify. Instead, it appears that the prosecutor merely expected Baker to raise the same argument before the jury that he argued in his motion for directed verdict — that there was no evidence of damage to his vehicle. Anticipating this argument, the prosecutor pointed out that Baker did not present any evidence or elicit any testimony refuting the State’s case. We similarly find that the prosecutor’s argument “was not one that must necessarily and naturally be construed as a comment on the failure of [Baker] to testify.” Considering the context of the comments, the prosecutor was permitted “to argue that the defense did not present evidence to refute the state’s case.” The jury could certainly have construed the argument in this manner, and under these circumstances, the trial court did not abuse its discretion in overruling Baker’s objection.

Decided September 20, 2001.

Jeffrey R. Sliz, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Kimberly Sanders-Bjurmark, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Baker was charged with two counts of leaving the scene of an accident based on the accident with Stringfellow. In the first count, the State alleged that Baker violated OCGA § 40-6-270, “by failing to stop at an accident.” In the second count, the State alleged that Baker violated § 40-6-270 “by failing to immediately return to an accident.”

       Both Baker and the State refer the Court to exhibits attached to their briefs as evidence of the plea agreement. These exhibits, however, are not part of the record and will, accordingly, not be considered on appeal. See Court of Appeals Rule 23 (f); Jones v. State,
        224 Ga. App. 340, 341 (2) (480 SE2d 618) (1997). Nonetheless, the parties do not dispute the existence of the plea agreement, and the hearing transcript on Baker’s plea in bar supports such finding.

        Turner v. State, 238 Ga. App. 438-439 (518 SE2d 923) (1999).

         (Emphasis in original.) Id. at 439. See also Honea v. State, 238 Ga. App. 135, 136 (517 SE2d 841) (1999).

       The record also shows that, because Baker neglected to tell his own counsel about accident number one, counsel was also unaware of the charges arising out of that accident.

       See State v. Steien, 214 Ga. App. 345, 346 (447 SE2d 701) (1994).

       See id.; Turner, supra; Honea, supra.

       In his argument on this enumeration of error, Baker refers to a comment purportedly made by the solicitor that he claims was “within the province of the jury.” However, Baker failed to support this assertion with any reference to the record, citation of authority, or argument. Accordingly, any claims relating to the purported statement are deemed abandoned. See Court of Appeals Rule 27 (c).

       Although the State argues that Baker waived the asserted error because he merely-objected and did not move for mistrial, a timely objection is sufficient to preserve an issue for appellate review. See Bolden v. State, 272 Ga. 1 (525 SE2d 690) (2000).

       See Bowen v. State, 203 Ga. App. 371, 374 (5) (417 SE2d 18) (1992) (stating that trial court’s refusal to grant a mistrial is reviewed for abuse of discretion).

       (Punctuation omitted.) Lowe v. State, 253 Ga. 308, 309-310 (1) (319 SE2d 834) (1984).

       See id.

       Id. at 310 (1).

       Id. See also Turner v. State, 199 Ga. App. 836, 838 (4) (406 SE2d 512) (1991).

       See Lowe, supra.


author: Johnson, Presiding Judge.

text:
    A01A1063.
    PIERCE v. THE STATE.
    (554 SE2d 787)
   Johnson, Presiding Judge.

Gary Pierce was convicted of contributing to the delinquency of a minor and enticing a child for indecent purposes. He appeals, challenging the sufficiency of the evidence, evidentiary rulings by the court and the jury charge. The challenges are without merit, and we therefore affirm Pierce’s convictions.

A 13-year-old girl in Warner Robins, Georgia, was using an Internet chat room for teenagers when she received a private message from someone named Gary who said he lived in Tennessee. Gary told the girl that he was a 17-year-old high school football player, and she informed him that she was 13. After that initial conversation, the girl and Gary regularly chatted online in another chat room.

Some of their online conversations were sexually explicit, including discussions of sexual intercourse, oral sex and anal sex. The two engaged in “cyber sex,” during which Gary asked the girl to do various things. Gary also asked the girl to send him explicit pictures of herself, once asking for a picture from a photocopy machine of her sitting with her legs open on the machine. Gary gave the girl his log-on name and password for an Internet pornography site called the Sex Museum. The two of them would log on to the site and watch a pornographic movie while talking about the movie in a chat room.

After many Internet conversations, Gary and the girl made plans for him to attend a party at her house around the time of her fourteenth birthday. Gary came to Warner Robins and checked into a hotel. The girl called him at the hotel and told him that the party had started. He then drove to a school near the girl’s house, parked his car and walked to her house. When the girl’s mother saw him standing outside the house, she went to speak with him because she did not recognize him and he appeared to be older than the children at the party. He told her that he was 17 and shrugged his shoulders when she said that he was too old to be at the party. The mother ultimately asked him to leave the party, so he left.

Thereafter, Gary and the girl continued communicating on the Internet and later made plans for him to visit her again in Warner Robins. Gary told the girl that he wanted her to spend the night and have sex with him in the hotel. He checked into the same hotel where he had stayed before, and the girl told her mother that she was going to spend the night at a friend’s house. Instead, she called Gary at the hotel, he picked her up in his white rental car and he drove her to the Comfort Inn. At the hotel, the girl and Gary did not engage in sex, but spent time talking and watching a movie on television. The girl then asked him to take her home, and he drove her to her house.

In the meantime, the girl’s mother had discovered that her daughter was not at her friend’s house. When the girl arrived home, the mother confronted her. Eventually, the girl told her mother about the online chats and hotel meeting with Gary from Tennessee. The mother contacted the hotel, which verified that a man named Gary from Tennessee had been registered at the hotel, but had left.

The mother next called the police. A police sergeant interviewed the daughter and then contacted the Comfort Inn in Warner Robins. The sergeant confirmed that 37-year-old Gary Pierce from Knoxville, Tennessee, had stayed at the hotel on both occasions described by the girl. The hotel had a copy of Pierce’s most recent registration form, which indicated that he was driving a white car and which included a copy of his driver’s license with a picture. And from the girl’s computer, the sergeant retrieved conversations between the girl and Pierce which were sexual in nature and which planned their hotel meeting.

The police found and arrested Pierce in Tennessee. He was charged with contributing to the delinquency of a minor for having sexually explicit conversations and viewing pornographic images with the girl, and he was also charged with enticing a child for indecent purposes by taking the girl to the Comfort Inn for the purpose of molesting her. Pierce was tried before a jury, which found him guilty of both charges. The trial court entered judgments of conviction, from which Pierce appeals.

1. In four separate enumerations of error, Pierce challenges the sufficiency of the evidence, primarily claiming that there is insufficient evidence because no witness identified him in court as the person who committed the crimes. We note that Pierce does not claim that he is not, in fact, the perpetrator. And he did not make such a claim at trial, where his defense, as asserted by his attorney in her arguments to the jury, was that his acts of communicating on the Internet and meeting in the hotel with the girl were inappropriate, but not criminal. As the attorney argued during her closing argument: “Should my client have come to Warner Robins? He probably thinks now no. Should he have been talking to somebody whose handle is pretty hot and tempting 13, whatever that means? He would probably tell you now no. But he’s charged with something entirely different.”

Regardless of his defense at trial, Pierce is correct in noting that no witness directly identified him in court as the perpetrator. But in-court identification was not the only way for the state to prove that he is the person who committed the crimes charged. Concordance of name is some evidence of identity. Here, Pierce had the same name as the person who committed the crimes charged. And like the perpetrator, he too is from Tennessee. Moreover, the police sergeant testified that he recovered conversations between the girl and Pierce from the girl’s computer. The police also identified him as the Gary Pierce who stayed at the Comfort Inn in Warner Robins on the dates specified by the girl. And Pierce’s Comfort Inn registration with his driver’s license, a state’s exhibit which was admitted into evidence without objection, contains his photograph. The jurors were authorized to compare that photograph to Pierce in court to determine if he is the man pictured.

We review the evidence in the light most favorable to the verdict to determine if a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Having reviewed all the evidence in that light, we are satisfied that the jury had sufficient evidence from which to find beyond a reasonable doubt that Pierce was the perpetrator, and that he committed the offenses of contributing to the delinquency of a minor and enticing a child for indecent purposes. Pierce’s four enumerations challenging the sufficiency of the evidence are thus without merit.

2. Pierce contends that the court erred in allowing the police sergeant to testify about sexually explicit Internet conversations between the girl and Pierce. The sergeant had retrieved the conversations from the girl’s computer and printed out a 500-page transcript of them. Pierce argues that the state did not adequately establish that he was the person conversing via the Internet with the girl, so the sergeant’s testimony based on those transcribed conversations was improper.

This argument was not made in the trial court and thus was not preserved for appellate review. Prior to trial, Pierce challenged the admission of the 500-page transcript of the conversations, but not on the basis that he was not the person named Gary who was chatting with the girl. On the contrary, Pierce’s attorney plainly conceded to the court that the conversations were between the girl and Pierce. She told the court, “Only a small portion of that [the transcribed conversations] involves any real chatting back and forth between Mr. Pierce and the alleged victim.”

And in telling the court that she had not seen the entire transcript of conversations, Pierce’s attorney again indicated that the conversations were in fact between the girl and Pierce. She stated, “[T]he only thing that I knew about earlier was about four or five pages where arrangements were being made for him to come to Warner Robins and make contact with her. And I believe at that time, he was residing outside the state of Georgia when that particular chat took place.”

Instead of challenging the conversations on the basis that Pierce was not a participant in them, Pierce argued to the trial court that the police sergeant who had retrieved them from the girl’s computer did not have sufficient computer expertise to guarantee that the conversations between the girl and Pierce were fully and accurately retrieved. Pierce’s lawyer explained her position: “My concern is that the little girl gets up there and says we had this, this, and this conversation. My client takes the stand and says, well, but we had this other conversation before, and they come in and say, oh, no, they didn’t because we have the 500 official pages and it’s not there, and then you get into a real issue.”

The trial court did not rule on this pretrial objection to the transcript by Pierce. The case proceeded to trial, and the state moved to introduce a portion of the transcribed conversations prior to the sergeant’s testimony that Pierce now challenges. The court asked if Pierce objected, and his attorney simply stated that she wanted to reserve the prior objection. The sergeant then testified without any further objection.

Based on the record before us, it is apparent that Pierce never objected to the sergeant’s testimony, but objected only to the transcript offered by the state. And as to that transcript of conversations recovered from the girl’s computer, Pierce never argued, as he does now, that he was not the person conversing with the girl. Instead, his sole argument was that the sergeant did not have sufficient computer expertise to properly recover the conversations. Because Pierce is now attempting to raise an argument that was not made in the trial court, there is nothing for us to review.

3. Pierce complains that his registration from the Comfort Inn was inadmissible hearsay. Pierce not only failed to raise this complaint at trial, but he expressly told the trial court that he did not object to the document’s admission into evidence. Moreover, it is apparent from the testimony of the hotel clerk who registered Pierce that the registration document was made in the regular course of the hotel’s business. The document therefore was admissible as a business record.

4. Contrary to Pierce’s contention, the trial court properly refused to allow Pierce to question the victim about whether she had engaged in sexually explicit conversations with other people on the Internet. The child-victim’s past sexual conduct is irrelevant, and evidence of it is inadmissible, unless it supports an inference that the accused could have reasonably believed that the victim consented to his conduct which is complained of in the prosecution. Even if the child in this case had sexual conversations with others, such evidence would not support an inference that Pierce therefore could have reasonably believed that she consented to his crimes of enticing her for indecent purposes and contributing to her delinquency. The trial court thus did not err in refusing to allow Pierce to question the victim about such purported conversations.

Decided September 20, 2001

Peter D. Johnson, for appellant.

5. Pierce complains that the trial court should have instructed the jury on the lesser included offense of using telephone communications for obscene purposes. He has not specified which of the offenses he was charged with would encompass that crime as a lesser included offense,, and he has not indicated whether he believes it is a lesser offense as a matter of fact or law. We will not speculate or make arguments on Pierce’s behalf; to do so would improperly change this court’s role from disinterested decision-maker to appellate advocate. His deficient argument fails to provide us any grounds for finding reversible error.

6. Pierce argues that the court erred in its jury charge defining the crime of contributing to the delinquency of a minor because it did not include a separate instruction explaining that an essential element of the crime is that Pierce had knowledge of the victim’s age. The argument is without merit.

The court fully charged the jury on the statutory definition of the offense, including the requirement that the person knowingly encouraged or aided a minor in committing a delinquent act. Furthermore, the court read to the jury the indictment which alleges that Pierce contributed to the delinquency of a minor in that he did knowingly encourage or aid a minor under the age of 17 years in committing a delinquent act. And then the court instructed the jury that the state must prove every essential element of the crimes charged beyond a reasonable doubt.

It is fundamental that we must consider the jury instructions as a whole to determine if there was error. Having considered the entire jury charge, we find no reversible error in the court’s full and accurate instruction on the definition of contributing to the delinquency of a minor, including the requirement that Pierce acted knowingly in encouraging or aiding the minor.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Kelly R. Burke, District Attorney, Amy L. Smith, Assistant District Attorney, for appellee.

        Perry v. State, 222 Ga. App. 445, 446 (474 SE2d 199) (1996).

       OCGA § 24-4-40 (a).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jones v. State, 234 Ga. App. 571, 572 (1) (507 SE2d 804) (1998).

        Perry, supra.

       OCGA § 16-12-1 (b) (person contributes to the delinquency of a minor when he knowingly and wilfully encourages, causes or aids a minor in committing a delinquent act).

       OCGA § 16-6-5 (a) (person entices a child for indecent purposes when he takes a child under 16 to a place for the purpose of child molestation or indecent acts).

       See Kinney v. State, 234 Ga. App. 733, 736 (4) (506 SE2d 441) (1998).

       See OCGA § 24-3-14.

         OCGA § 24-2-3; Martin v. State, 219 Ga. App. 277, 281 (3) (464 SE2d 872) (1995).

       See Jenkins v. State, 246 Ga. App. 38, 39 (2) (539 SE2d 542) (2000); Marks v. State, 192 Ga. App. 64-65 (2) (383 SE2d 626) (1989).

       OCGA § 46-5-21.

       See Lewis v. State, 249 Ga. App. 812, 816 (5) (b) (549 SE2d 732) (2001).

       OCGA § 16-12-1 (b) (1).

        Moore v. State, 246 Ga. App. 163, 168 (8) (a) (539 SE2d 851) (2000).

       See generally Tate v. State, 198 Ga. App. 276, 278-279 (4) (401 SE2d 549) (1991) (in case of aggravated assault on a police officer, no error in jury charge on requirement that defendant had knowledge that victim was a police officer).


author: Blackburn, Chief Judge.

text:
    A01A1084.
    REED v. THE STATE.
    (554 SE2d 792)
   Blackburn, Chief Judge.

Following his guilty plea and conviction for aggravated child molestation and cruelty to children, Jeffrey Ray Reed appeals, contending that his guilty plea was not knowingly and voluntarily entered because he was misinformed about his right to ask the Sentence Review Panel to review his sentence. For the reasons set forth below, we affirm.

Before accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant intelligently and understandingly waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea. When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling a silent or incomplete record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.

(Punctuation omitted.) Stephens v. State.

At Reed’s plea hearing on October 6, 1998, Reed indicated that he was aware of the nature of the charges against him, that he understood all of his constitutional rights, that the trial court could sentence him to the maximum amount of time for each offense, and that his sentences could run consecutively or concurrently. Reed’s sentencing hearing was not held until December 9, 1998, a full two months later. At this time, neither Reed nor his attorney made any objections regarding his ability to seek sentence review. The trial court then sentenced Reed as follows: Count 1: aggravated child molestation — 30 years; Count 2: cruelty to children — 20 years concurrent to Count 1; Count 3: cruelty to children — 20 years to be served consecutive to Counts 1 and 2; and Count 4: cruelty to children — 20 years to be served on probation consecutive to Counts 1, 2, and 3.

The record also shows that, prior to entering his guilty plea, Reed and his counsel signed a form entitled “AFFIDAVIT — PLEA OF GUILTY.” In general, this form certified that Reed understood the charge against him, that he understood the rights he was waiving by entering a guilty plea, that he was fully aware of the minimum and maximum sentences he could receive, and that he was entering his guilty plea knowingly and voluntarily. In addition to the other queries, the final question on this form asks: “Do you understand that if the sentence is 5 years or more you have the right to have your sentence(s) reviewed by the Sentence Review Panel; provided you ask for the review within 30 days?” Reed answered this question affirmatively.

On appeal, Reed argues that this final question is substantively improper and that, as such, he was misinformed regarding his right to have his sentence reviewed and he could not have knowingly entered his plea of guilty. We cannot agree.

Reed is correct that the form’s question is incorrect. OCGA § 17-10-6 (a) provides:

In any case, except cases in which the death penalty is imposed or cases involving a serious violent felony as defined in subsection (a) of Code Section 17-10-6.1, in which a sentence of 12 or more years, or several consecutive sentences which total 12 or more years, has been fixed and imposed by a judge, without a jury, the defendant shall have the right to have the sentence or sentences reviewed by a panel of three superior court judges to determine whether the sentence or sentences so imposed are excessively harsh.

Reed is incorrect, however, that this error in the guilty plea affidavit automatically makes his guilty plea invalid. Eligibility or ineligibility to have a sentence reviewed by the Sentence Review Panel pursuant to OCGA § 17-10-6 is not a direct consequence of a guilty plea. Rather, such review, like eligibility or ineligibility for parole, is

a matter of legislative grace or a consequence of the withholding of legislative grace. Thus, OCGA § [17-10-6] would have only a collateral effect on [Reed’s] sentence for [aggravated child molestation and cruelty to children], in no way lengthening the sentence itself, but [simply providing a statutory method of sentence review for certain sentences in excess of 12 years]. There is no constitutional requirement that a defendant be advised of such collateral consequences in order for his guilty plea to be valid. If a defendant’s actual knowledge of such collateral consequences is not a prerequisite to his entry of a knowing and voluntary guilty plea, his lack of knowledge of those collateral consequences cannot affect the voluntariness of the plea.

Decided September 20, 2001.

Robert L. Stultz, for appellant.

Herbert E. Franklin, Jr., District Attorney, Douglas R. Woodruff, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Williams v. Duffy.

Here, the record is clear that Reed was well aware of the minimum and maximum sentence he could receive for each crime to which he pled guilty. And, each sentence handed down was within the statutory sentencing guidelines about which he had been informed. Therefore, the record supports a finding that Reed’s plea was both knowing and voluntary.

Reed also argues that his guilty plea should be considered invalid because, after sentencing, the trial court incorrectly informed him that he could seek sentence review of his conviction for aggravated child molestation. Even if this error occurred, however, it could not have had an impact on Reed’s decision to enter his plea, because it did not happen until after his sentence had been passed down.

Judgment affirmed.

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

        Stephens v. State, 235 Ga. App. 756, 757-758 (510 SE2d 575) (1998).

        Williams v. Duffy, 270 Ga. 580, 581 (1) (513 SE2d 212) (1999).


author: Smith, Presiding Judge.

text:
    A01A1140.
    BAZANSILVA v. THE STATE.
    (554 SE2d 794)
   Smith, Presiding Judge.

Jose David Bazansilva was indicted by a Clayton County grand jury on one count of criminal attempt to traffic in methamphetamine. Co-defendant Yolanda Tapia was charged with trafficking in methamphetamine. Tapia testified against Bazansilva, identifying him as a participant in a plan to smuggle methamphetamine through the Atlanta airport. The jury convicted Bazansilva, his amended motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Bazansilva raises the general grounds, contending that the State did not present evidence corroborating Tapia’s testimony against him.

A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However, it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.

(Footnotes omitted.) Barnett v. State, 244 Ga. App. 585, 587 (2) (536 SE2d 263) (2000). Here, Tapia was arrested in the Atlanta airport while traveling under an assumed name with a large amount of methamphetamine strapped to her waist. After her arrest, she agreed to participate in a “controlled delivery” by completing the planned delivery in the airport terminal under the supervision of the police. Tapia called a telephone number she had been given, and the call was taped by the police. The tape recording was played for the jury, and a written English translation was provided for the jury. A Spanish-speaking officer translated the telephone call for the other officers. Tapia was given instructions on where to go to meet the person who would receive the drugs. While the telephone call was taking place, an officer entered the room and announced that there were three Hispanic men in the baggage claim area who had no luggage and “may be the men you’re looking for.” Another officer observed the three men talking, saw one pick up a pager as though he received a call, then move to a pay phone and make a call. This man then returned to the other two, spoke briefly, and they separated to stand in different areas of the terminal.

When Tapia and the officers entered the baggage claim area, Bazansilva left the other two men, who walked away together and were not apprehended. Bazansilva turned around, made “very obvious eye contact” with Tapia, motioned with his hand and said something that the testifying officer could not hear. The officer demonstrated the hand signal for the jury. A second officer also observed the hand signal and saw Bazansilva speak to Tapia, although she could not hear what was said. Bazansilva walked the entire length of the baggage claim area with Tapia walking behind him; after they left the terminal, Bazansilva was arrested.

After the Spanish-speaking officer read him his rights in Spanish, Bazansilva agreed to try to help arrest the two individuals who “got away.” He made a telephone call to those two individuals. An officer testified that Bazansilva told them that one of the other men was named Agripino and was the one who had the $2,500 to pay Tapia for the delivery. Bazansilva also gave the officer a description of the vehicle in which the three men had arrived.

Bazansilva disputes several aspects of the police testimony. He points out that the officer who testified that Bazansilva mentioned the $2,500 for Tapia does not speak Spanish. He also argues strenuously that his behavior was consistent with that of an innocent dupe rather than a participant in the scheme. But the jury rejected Bazansilva’s arguments.

An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicting testimony is a matter of credibility for the jury to resolve. As long as some competent evidence exists, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict.

(Citations and punctuation omitted.) Wheeler v. State, 236 Ga. App. 197, 198 (1) (511 SE2d 564) (1999). This evidence satisfies the slight evidence requirement necessary to corroborate the testimony of the accomplice Tapia.

2. Bazansilva also contends the trial court erred in denying his motion to suppress the statements he made to police after his arrest. Even though he does not dispute that he received his Miranda warnings in Spanish from the Spanish-speaking officer, he argues that he did not “knowingly and intelligently” waive his rights because he was not informed of the charges against him at the time of his arrest.

The standard for determining the admissibility of confessions is the preponderance of the evidence. To determine whether the state has proven that a confession was made voluntarily, the trial court must consider the totality of the circumstances. Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal.

Decided September 20, 2001.

Elaine T. McGruder, for appellant.

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

(Citation and punctuation omitted.) Martin v. State, 271 Ga. 301, 304 (2) (518 SE2d 898) (1999). The accused’s knowledge of “the substance of the charge” against him is one of the nine factors used in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976), to consider the admissibility of & juvenile confession or incriminating statement. While the trial court is still required to consider the “totality of the circumstances” in ruling on the admissibility of an adult confession, the nine factors are not mandatory when the accused is not a juvenile. See Franklin v. State, 249 Ga. App. 834, 835 (549 SE2d 794) (2001). Moreover, even if this factor were considered here, it refers only to “ ‘knowledge of the accused as to . . . the substance of the charge,’ ” Riley, supra at 128, not a requirement that the arresting officer so inform the accused. Here, the testimony regarding Bazansilva’s statements after his arrest indicates that he knew that he was under arrest for a drug-related offense. The trial court found that “the defendant’s constitutional rights were given to him, that he understood those rights, that he freely and voluntarily made the statements that the officer has testified to and they will be admitted on the trial of the case,” and we find that decision was not clearly erroneous.

Judgment affirmed.

Barnes and Phipps, JJ., concur.


text:
    A01A1198.
    CARMICHAEL v. THE STATE.
    (554 SE2d 802)
   Miller, Judge.

A jury found Vincent Carmichael guilty of burglary. On appeal he claims that the trial court erred in admitting similar transaction evidence and in admitting testimony regarding prior incidents of vandalism and theft at the site of the burglary. He further claims the evidence was insufficient to support his conviction. We find no error and therefore affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that after several instances of vandalism, missing food, and burglaries at St. Thomas Moore Catholic Church and Catholic School in Decatur, the police stationed an officer and video surveillance equipment in the cafeteria. At approximately 2:00 a.m. on April 16, 1999, Officer Strawn heard a noise at the front doors and saw a man force his way into the cafeteria and then make his way toward the kitchen. It was dark except for outside lights shining through the windows, but the officer noticed that the man was tall and slender, with protruding ears, and was wearing a mechanic’s uniform consisting of a dark jacket, pants, and boots. The officer was within 15 fee of the man, but she could not see his face. The man heard the office and fled. After the man left the building, Strawn immediately issuei a police lookout for the intruder.

Shortly after Strawn issued the lookout, a postal worker drov his truck through the gate at the secured lot of the post office loeatei a block from the school. The lot is surrounded by a fence topped h barbed wire. A man wearing a dark uniform ran past the truck anc through the open gate toward the back of the enclosure. The poste worker, who was unnerved by the event, flagged down Officer Tibbs who was responding to Strawn’s lookout, and told Tibbs about thi man. Officer Stephens received a radio call from Tibbs concerning the incident at the post office.

Stephens went to the back of the Gateway apartment complex behind the post office, where he found Carmichael, who was out of breath. Carmichael’s hand was bleeding, and his pants were ripped. He was wearing clothing matching that of the suspect identified by the lookout, except for a jacket. Another officer found a dark blue uniform jacket nearby. Strawn went to where the police were holding Carmichael, and she identified him as the man she saw inside the school. Strawn testified she was “very certain” Carmichael was the intruder at the school based on “[h]is height, his build, and his ears protruding from his head, and also the clothing that he was wearing.” The jury was shown the videotape of the man entering the school taken with a surveillance camera using an infrared lens.

1. Carmichael claims the evidence was insufficient to support the verdict. We disagree. He was apprehended within minutes of the crime, out of breath, cut, and bleeding, which are consistent with having run from the police and having climbed a barbed wire fence. He was wearing clothing that matched the clothing that Officer Strawn saw on the intruder, and Strawn identified Carmichael as the man she had seen inside the school. The jury was shown the videotape of the intruder. Taken as a whole, we find the evidence was sufficient for a rational trier of fact to find Carmichael guilty of burglary beyond a reasonable doubt.

2. Carmichael also contends that the trial court erred in admitting evidence of two prior burglaries. A trial court’s decision to admit similar transaction evidence lies within its sound discretion and, absent an abuse thereof, will not be disturbed on appeal. In order for similar transaction evidence of an independent crime to be admissible, the State must show that the defendant was the perpetrator of the independent crime, and there must be a sufficient similarity between the independent crime and the offense charged so that the 'proof of the former tends to prove the latter. The State must also show that the evidence is not admitted to raise an improper inference is to the defendant’s character.

In the prior burglaries Carmichael had broken into two commercial establishments in the wee hours of the morning and when 'caught pled guilty to burglary. Carmichael argues that the State failed to show there was a sufficient similarity between the prior burglaries and the indicted offense. He notes that the burglaries '¡occurred four years earlier; they did not occur in the City of Decatur, but another portion of DeKalb County; the prior burglaries were of 'furniture stores; and they did not involve entry through a door.

“The issue of admissibility of extrinsic transactions has never . been one of mere similarity. It is, rather, relevance to the issues in the trial of the case.” The trial court allowed the prior transactions because they tended to show “intent, motive, or bent of mind or course of conduct.” Bent of mind was at issue in the case because the State was required to show that Carmichael, who evidence shows forced his way into the building but then immediately ran out, entered the school with the intention of committing a felony or theft within. “The admission of other criminal acts by the defendant does not turn on the basis of the number of similarities between the criminal acts alone, particularly where, as here, evidence of independent crimes is introduced to show bent of mind.” There are elements of similarity in the prior offenses and the crime in question: in both prior events Carmichael forced entry into nonresidential property within DeKalb County in the very early morning hours. In the two prior events, he intended to steal.

Decided September 20, 2001.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Jennifer M. Daniels, Assistant District Attorneys, for appellee.

Carmichael relies on Weems v. State, in which we found that evidence of the defendant’s burglary of a single-family residence three years prior to the indicted offense of burglary of an apartment was not sufficiently similar to be admissible. However, the trial court here found more elements of similarity between the crimes charged and the previous transactions than was apparent in the burglary improperly admitted in Weems. We find that the trial court did not abuse its discretion in allowing similar transaction evidence of Carmichael’s two prior burglary convictions.

3. Carmichael further argues that the trial court erred in admitting Strawn’s testimony that numerous burglaries had occurred at the school, prompting the police to set up a surveillance operation. Carmichael contends the testimony was prejudicial hearsay and irrelevant. In a pre-trial ruling, the trial court indicated it would allow testimony regarding the previous incidents to show why Officer Strawn was stationed at the school. Carmichael’s trial counsel appeared to agree to such testimony.

It is always the responsibility of defense counsel to object to any testimony that he believes is improper at that time, and the better practice is to renew that objection at the conclusion of the trial to preserve the issue on appeal. No objection was made when Strawn testified about the prior incidents at the school. A party is required to object to evidence at the time it is offered, and Carmichael has waived this issue on appeal.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

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

       See Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

        Stephens v. State, 261 Ga. 467, 469 (6) (405 SE2d 483) (1991).

       See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       (Citation and punctuation omitted.) Jones v. State, 226 Ga. App. 721, 723 (1) (487 SE2d 618) (1997).

       See OCGA § 16-7-1 (a).

       (Citations omitted.) Collins v. State, 242 Ga. App. 450, 453 (2) (529 SE2d 412) (2000).

       204 Ga. App. 352 (419 SE2d 346) (1992).

       “The Court: I think the officer can testify why [she] was there. [Defense Counsel]: That’s fine.”

        Bridgers v. State, 183 Ga. App. 98, 99 (1) (357 SE2d 894) (1987).