author: Sognier, Chief Judge.

text:
    A92A0233, A92A0415.
    THE STATE v. LUSTER; and vice versa.
    (419 SE2d 32)
   Sognier, Chief Judge.

Darla Michelle Luster was charged in a two count indictment with violating the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. Count One charged Luster with possessing cocaine between January 1, 1991 and March 3, 1991. Count Two charged that between January 1, 1991 and March 3, 1991, Luster “did unlawfully deliver and distribute . . . cocaine ... to Tiffany Luster,” Luster’s daughter, who was born on March 3, 1991. The trial court granted Luster’s motion to dismiss Count Two of the indictment, and in Case No. A92A0233 the State appeals from the dismissal of that count. In Case No. A92A0415, Luster appeals from the trial court’s denial of her motion for discharge and acquittal on Count One of the indictment. The two appeals have been consolidated for review.

The record reveals that on the dates alleged in the indictment, Luster was pregnant. On March 4, 1991, one day after Tiffany’s birth, a sample of Tiffany’s urine was taken and tested. The sample proved positive for cocaine metabolites and, based on those test results, Luster was charged both with possession of cocaine, OCGA § 16-13-30 (a), which is punishable by imprisonment for not less than two nor more than 15 years, and with delivering and distributing cocaine to Tiffany, OCGA § 16-13-30 (b), which is punishable by imprisonment for not less than five nor more than 30 years.

T. The trial court granted Luster’s motion to dismiss Count Two of the indictment on the basis that OCGA § 16-13-30 (b) was not intended to encompass the transmission of cocaine metabolites to a fetus that occurs when a pregnant woman ingests cocaine. The State contends the trial court erred by granting Luster’s motion because, contrary to the trial court’s finding, Luster’s conduct was within the contemplation of OCGA § 16-13-30 (b), which provides that “it is unlawful for any person to . . . deliver [or] distribute . . . any controlled substance.” We do not agree, and we affirm the trial court’s. order dismissing Count Two of the indictment.

(a) It is well established that “criminal statutes must be strictly construed against the state and liberally in favor of human liberty. [Cit.]” Knight v. State, 243 Ga. 770, 775 (2) (257 SE2d 182) (1979). Thus, “no [person] shall be held criminally responsible for conduct which he [or she] could not reasonably understand to be proscribed,” United States v. Harriss, 347 U. S. 612, 617 (74 SC 808, 98 LE 989) (1954), and one of the purposes of the Criminal Code of Georgia is “ [t]o give fair warning of the nature of the conduct forbidden and the sentence authorized upon conviction.” OCGA § 16-1-2 (2). We look, therefore, to the language of the statute under which Luster was charged to determine whether she reasonably should have known that she could be prosecuted for delivering or distributing cocaine to her fetus if she ingested the controlled substance while pregnant.

(i) OCGA § 16-13-21 (7) provides that “ ‘[d]eliver’ or ‘delivery’ means the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.” OCGA § 16-13-21 (11) provides that “ ‘[distribute’ means to deliver a controlled substance, other than by administering or dispensing it.” Since only licensed practitioners or others not involved here may “administer” or “dispense” controlled drugs, see OCGA § 16-13-21 (23), the terms “deliver” and “distribute” as used in the statute are identical for all practical purposes.

OCGA § 16-13-21 (20) defines “ ‘[p]erson’ ” as “an individual, corporation, government, or governmental subdivision or agency, business trust, estate, trust, partnership, or association, or any other legal entity.” Under Georgia law, the word “person” in a criminal statute may not be construed to include a fetus unless the legislature has expressly included it, since at common law a fetus was not considered a person. Billingsley v. State, 183 Ga. App. 850, 851 (1) (360 SE2d 451) (1987). Our legislature has indicated by specific language when it intends to include unborn children within the contemplation of a criminal statute. See, e.g., OCGA § 16-5-80 (feticide). Although it is true, as asserted by the State, that Tiffany eventually became a “living, breathing person” when she was born, at the time any transfer of cocaine metabolites could have taken place from Luster upon which an indictment could be based, Tiffany was not a “person” within the meaning of the statute. After she became a person for legal purposes, it was physically impossible for the transfer to have taken place.

(ii) “[I]t is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning. [Cits.]” Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (327 SE2d 736) (1985). Since the statutory definitions are not sufficiently enlightening, we must assign to the terms “deliver” and “distribute” their ordinary meanings. The only applicable definitions supplied by Webster’s New International Dictionary (2nd ed.) for “deliver” are “[t]o give or transfer; to yield possession or control of; to part with (to); to make or hand over; to make delivery of.” The same dictionary’s only applicable definition of “distribute” is “to deal out.” The “ordinary, logical, and common” meanings of these terms enpompass only transfers that take place between one person and another person, outside the bodies of the persons involved. This interpretation is in accord with prior judicial construction, as reported cases of criminal prosecutions pursuant to OCGA § 16-13-30 (b) for “delivering” or “distributing” controlled substances have all involved the transfer of controlled substances to another person. E.g., Jordan v. State, 177 Ga. App. 637 (1) (340 SE2d 269) (1986) (participant in sale of cocaine to undercover agent properly convicted of delivering); Manning v. State, 170 Ga. App. 721-722 (1) (318 SE2d 191) (1984) (conviction of student at high school for distributing marijuana authorized when evidence showed he solicited another student to sell drug to other students).

It is well established that statutes should be read according to the natural and most obvious import of the language, without resorting to subtle and forced constructions, for the purpose of either limiting or extending their operation, see Earth Mgmt. v. Heard County, 248 Ga. 442, 444 (283 SE2d 455) (1981), and this principle is particularly compelling when interpreting criminal statutes. See generally P. L. A. v. State, 172 Ga. App. 820, 821 (1) (324 SE2d 781) (1984). We conclude, therefore, that because the common, ordinary meaning of the plain and unambiguous language of the statute shows it does not apply to the facts sub judice, Luster could not reasonably have known that she would be prosecuted for “delivering” or “distributing” cocaine to her unborn child if she ingested cocaine while pregnant, and thus she did not receive the “fair warning” mandated by OCGA § 16-1-2 (2). “ ‘The unambiguous words of a criminal statute are not to be altered by judicial construction so as to punish one not otherwise within its reach.’ ” Waldroup v. State, 198 Ga. 144, 145 (30 SE2d 896) (1944). Accordingly, the trial court correctly refused to place upon the statute the strained construction urged by the State that would impermissibly have expanded its reach.

(b) Even assuming, arguendo, however, that OCGA § 16-13-30 (b) is ambiguous and susceptible of interpretation, the cardinal rule of statutory construction is that “the courts shall look diligently for the intention of the General Assembly.” OCGA § 1-3-1 (a). See Proo v. State, 192 Ga. App. 169-170 (384 SE2d 197) (1989). In our attempt to discern whether the legislature intended the inclusion of transmission of a controlled substance to a fetus by a pregnant woman in the terms used in OCGA § 16-13-30 (b), we are aided by the knowledge that in 1990 the legislature defeated two bills which would have amended the Georgia Controlled Substances Act to create a new crime of distributing a controlled substance to an unborn child, and that in 1991 H.B. 276 was passed, emphasizing the importance of providing drug treatment on a priority basis for pregnant women. See Ga. L. 1991, p. 977; OCGA §§ 26-5-5 (10); 26-5-20. The 1991 legislation followed recommendations of the Council on Maternal and Infant Health (a body created by statute to advise the General Assembly and other state agencies on issues pertaining to maternal and infant health, see Ga. L. 1972, p. 635; Ga. L. 1974, p. 269) and the General Assembly’s Joint Conference on Children of Cocaine and Substance Abuse (convened on November 1, 1990) that the State de-emphasize and declare a moratorium on legislation seeking to prosecute drug dependent pregnant women and instead approach addiction as a disease and develop and fund appropriate and adequate treatment facilities and services for that population. See Public Policy Recommendations for Georgia: Perinatal Substance Abuse, A Report of A Meeting of the Council on Maternal and Infant Health, July 17, 1990; Georgia General Assembly’s Joint Conference on Children of Cocaine and Substance Abuse, Summary of Delegate Recommendations.

“ ‘It is a well-established rule of construction that the meaning of one statute may be arrived at by a consideration of a subsequent act of the legislature on the same subject.’ ” Price v. State, 76 Ga. App. 105, 110 (3) (45 SE2d 96) (1947). By attempting initially to pass legislation creating the new crime of distributing controlled substances to unborn children, the legislature signaled unequivocally that it had not intended to include such activity in the “delivery” and “distribution” already prohibited under OCGA § 16-13-30 (b). Further, by enacting legislation treating addiction during pregnancy as a health problem, the legislature indicated its view that addiction during pregnancy is a disease and signaled its preference for treatment over prosecution, which preference is overwhelmingly in accord with the opinions of local and national medical experts. Accordingly, given this evidence that the legislature did not intend to include transmission of controlled substances to fetuses in the conduct prohibited by OCGA § 16-13-30 (b), even assuming the statute is ambiguous we find no error in the trial court’s dismissal of Count Two of the indictment.

2. In Case No. A92A0415, Luster appeals from the trial court’s denial of her motion for discharge and acquittal made on the ground that the State had failed to try her within the time prescribed by statute after she filed a demand for trial. OCGA § 17-7-170 (a) provides in pertinent part that “[a]ny person against whom a true bill of indictment ... is filed with the clerk for an offense not affecting his life may enter a demand for trial at the court term at which the indictment ... is filed or at the next succeeding regular court term thereafter.” Subsection (b) provides in pertinent part that “[i]f the person is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged.in the indictment or accusation.” No question exists that Luster was not tried within the prescribed time and that juries were impaneled and qualified to try her. Nonetheless, we find the trial court properly denied Luster’s motion, and we affirm.

Because both counts of the indictment charged Luster with crimes arising from the same conduct, and the crimes were known to the prosecutor at the time, of commencing the prosecution and were within the jurisdiction of the same court, see OCGA § 16-1-7 (b), if the State had proceeded with the prosecution of Count One of the indictment while appealing the trial court’s ruling as to Count Two, eventual prosecution of Count Two (should the State have been successful on appeal) would have been barred. State v. Brittain, 147 Ga. App. 626 (249 SE2d 679) (1978). Accord State v. Stowe, 167 Ga. App. 65, 66-67 (2) (306 SE2d 663) (1983); State v. Martin, 173 Ga. App. 370 (326 SE2d 558) (1985). Thus, were we to accept Luster’s contention that OCGA §' 17-7-170 mandated trial of Count One under these circumstances, the result would be to render meaningless the State’s right pursuant to OCGA § 5-7-1 (1) to appeal from the dismissal of Count Two since the State would be barred by OCGA § 16-1-7 (b) from ever proceeding against Luster on that appealed count. Brittain, supra. We do not construe statutes to render any provision meaningless, see generally In re Irvin, 171 Ga. App. 794, 796 (321 SE2d 119) (1984), rev’d in part on other grounds, 254 Ga. 251 (328 SE2d 215) (1985), and thus we reject Luster’s argument that a speedy trial demand under OCGA § 17-7-170 nullifies the State’s right under OCGA § 5-7-1 (1) to appeal from an order dismissing “any count” of an indictment.

We hold, therefore, that despite the fact that Luster’s motion to dismiss was made as to Count Two, the grant of her motion coupled with the State’s appeal thereof caused the motion to be viewed as an affirmative action on Luster’s part resulting in waiver of the demand for trial and tolling the running of the period in OCGA § 17-7-170 (b) during which Luster was required to be brought to trial on Count One. See generally State v. Waters, 170 Ga. App. 505, 508-509 (3) (317 SE2d 614) (1984). Accordingly, the trial court did not err by denying Luster’s motion for discharge and acquittal on Count One.

Decided April 23, 1992

Reconsideration denied May 5, 1992

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Bruce D. Hornbuckle, Assistant District Attorneys, for appellant.

Charles M. Taylor II, for appellee.

Gerald R. Weber, Laughlin McDonald, Neil Bradley, Kathleen L. Wilde, amici curiae.

Judgments affirmed,

Cooper, J., concurs. McMurray, P. J., concurs in Case No. A92A0415 and concurs in the judgment only in Case No. A92A0233.

       Cocaine introduced into the human body results in cocaine metabolites being formed in the body fluids.

       This court has had the benefit of briefs of, inter alia, amici curiae American Medical Association, Medical Association of Georgia, American Association of Addiction Medicine, the American Public Health Association, American Nurses Association, Coalition on Alcohol and Drug Dependent Women, National Council on Alcoholism and Drug Dependence, Women’s Policy Group, the National Black Women’s Health Project, as well as the American Civil Liberties Union, the Legal Action Center, State Representative Ralph David Abernathy III (sponsor of H.B. 276 and chairman of the Joint Conference on Children of Cocaine and Substance Abuse) and State Representative Mable Thomas, all of which support the affirmance of the trial court’s ruling. See also Note, Pregnancy Police: The Health Policy and Legal Implications of Punishing Pregnant Women for Harm to their Fetuses, 16 N.Y.U. Rev. of Law & Social Change 277 (1987-88).


source: Caselaw Access Project

license: Public Domain

text:
    A92A0254.
    HEFLIN v. THE STATE.
    (418 SE2d 770)
   Sognier, Chief Judge.

Charlie Paul Heflin was charged with two counts of aggravated assault arising from an altercation with the owners of a towing business. He was convicted on one count, and he appeals from the judgment entered thereon.

1. Appellant first enumerates as error the admission, over objection, of a state trooper’s testimony concerning appellant’s demeanor at the hospital to which he was taken after the altercation. The charged crimes occurred when appellant went to the business premises of a towing service to retrieve his car after it was towed by police. The proprietor, James Orr, and his son, Kenneth Orr, testified that after appellant refused to pay the towing charge and the men exchanged harsh words, appellant became belligerent and attacked the Orrs with a box cutting instrument, compelling them to hit appellant on the head with a flashlight and to shoot him several times in his extremities to stop his assault. The state trooper who arrested appellant at the scene testified that he later visited appellant at the hospital, where he observed that appellant was “not cooperating” with hospital personnel.

While conduct and circumstances, as well as statements, may be part of the res gestae, Black v. State, 154 Ga. App. 441-442 (268 SE2d 724) (1980), to be admissible such conduct must either “accompan[y the criminal] act, or [be] so nearly connected therewith in time as to be free from all suspicion of device or afterthought.” OCGA § 24-3-3. The time lapse between the occurrence and the conduct, the circumstances under which the conduct occurred, and the character of the conduct should be considered by a court in determining whether such conduct falls within the res gestae. Nasworthy v. State, 169 Ga. App. 603, 604 (314 SE2d 446) (1984). ‘[A]cts are pertinent as a part of the res gestae if they are done pending the hostile enterprise, and if they bear upon it, are performed whilst it is in continuous progress to its catastrophe, and are of a nature to promote or obstruct, advance or retard it, or to evince essential motive or purpose in reference to it. . . .’ (Cits.)” (Emphasis omitted.) Sypho v. State, 175 Ga. App. 833, 835 (3) (334 SE2d 878) (1985).

The evidence at issue here encompassed appellant’s behavior during the receipt of medical treatment at some unspecified time after the commission of the charged crimes and did not involve any statements appellant made concerning the assault or any continuation of his actions at the scene of the crime. Given these circumstances, we do not consider appellant’s conduct at the hospital to constitute part of the criminal act or to evince the motive or purpose thereof. See Fountain v. State, 136 Ga. App. 229-231 (2) (220 SE2d 705) (1975) (evidence concerning victim’s conduct later in the evening after assault by defendant not part of the res gestae). Accordingly, we agree with appellant that this testimony should not have been admitted as part of the res gestae.

Nonetheless, admission of inadmissible evidence is harmless if the evidence could not have influenced the jury’s verdict. Hester v. State, 187 Ga. App. 873, 874-875 (371 SE2d 684) (1988). Given the extensive testimony from the Orrs and the arresting officer concerning appellant’s belligerent, confrontational behavior, we do not believe that the testimony that appellant was uncooperative with hospital personnel was likely to have influenced the jury’s verdict, and thus find the admission of the challenged testimony to be harmless. See generally id. at 875; Mosley v. State, 149 Ga. App. 601, 602-603 (255 SE2d 79) (1979).

2. Appellant’s other enumeration of error concerns the trial court’s recharge to the jury. During the initial instructions, the court charged the jury on the elements of simple and aggravated assault and gave them a definition of self-defense. After deliberating for some period of time, the jury asked for further instructions on the difference between aggravated assault and simple assault. In response, the court first reread the applicable portions of the original charge and then stated further that the primary difference between the two crimes was the presence of an offensive weapon. After appellant objected to the latter instruction as simplistic, the court recalled the jury to clarify the charge. Appellant then restated his exception to the recharge and subsequently reserved his right to except to the charge. He now contends on appeal that the court erred by failing to include appellant’s defense of self-defense in the recharge.

Decided April 15, 1992

Reconsideration denied May 5, 1992.

Glover & Davis, R. Keith Prater, for appellant.

William G. Hamrick, Jr., District Attorney, David P. Oliver, Lisa R. Roberts, Assistant District Attorneys, for appellee.

It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry, e.g., Asbury v. State, 175 Ga. App. 335, 337 (2) (333 SE2d 194) (1985), and as a general rule is not required to repeat all the law favorable to the accused. Fussell v. State, 187 Ga. App. 134 (1) (369 SE2d 511) (1988). Here, the court did give a complete definition of appellant’s affirmative defense in the initial charge and also corrected any error in the assault definitions given during the recharge. Even applying the principle that when the jury requests further instructions on a point favorable to the government, the court also should repeat instructions favorable to the accused if there is a risk of an erroneous impression, see Walker v. State, 198 Ga. App. 422, 423-424 (2) (401 SE2d 613) (1991), we find no error because there is no indication the recharge was likely to have left the jury with an erroneous impression. Moreover, the court also reminded the jurors to recall and apply the entire charge. See id. at 424. Under these circumstances, we find no abuse of the trial court’s discretion.

Judgment affirmed.

McMurray, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A92A0328.
    ELDER v. MERRITT.
    (418 SE2d 774)
   Johnson, Judge.

Appellant, Charles Elder (Elder), filed an application for a processioning proceeding in the probate court, pursuant to OCGA § 44-4-1 et seq., to determine the boundary line of his property which abutted that of appellee, Quincey Merritt (Merritt). Merritt filed a protest to the return of the processioners, which marked the boundary in a manner which would exclude property upon which he had erected a fence and kept livestock over the years. The matter was transferred to the superior court, where evidence was presented to a jury. Following the close of Elder’s case, Merritt made a motion for a directed verdict against the return of the processioners, and for a directed verdict establishing the fence line as the true boundary. The court granted the motion rejecting the return of the processioners, but denied the motion with regard to the establishment of an alternative boundary. Elder appeals the entry of the directed verdict.

Decided April 24, 1992

Reconsideration denied May 5, 1992.

Robert B. Sumner, Cork & Cork, Robert L. Cork, for appellant.

This case was transferred to this court from the Supreme Court. This court, rather than the Supreme Court, has jurisdiction because processioning actions are statutory in nature and not intended to establish title. “The only object of such proceeding is to mark anew existing land lines.” Elkins v. Merritt, 146 Ga. 647, 648 (92 SE 51) (1917). See Page v. Guin, 187 Ga. App. 143 (4) (369 SE2d 517) (1988).

All three of the appointed processioners testified at trial. It is clear from a review of the transcript that the processioners admitted that they had not considered possession or use of the property in preparing their return. The trial court correctly relied upon Osborne v. Thompson, 154 Ga. App. 215 (267 SE2d 852) (1980). “Where the processioners ignore a claim of actual possession based on § 85-1603 and concern themselves instead only with the original line, the jury’s verdict upholding the processioners’ return must be set aside.” Id. at 215, citing Bowen v. Jackson, 101 Ga. 817 (1) (29 SE 40) (1897). In Osborne, a directed verdict in favor of the appellant was denied. This court reversed, holding that: “Because the evidence shows without dispute that the processioners did not even consider the appellant’s claim that she had cultivated the land on her side of the fence for more than seven years under a claim of right, their return was invalid as a matter of law.” Id. at 216. Based upon these decisions, we conclude that the entry of a directed verdict against the return of the processioners was proper.

“The issue on the trial of a protest to processioning is not confined to approving or disapproving the line established by the processioners but, if the evidence warrants, a verdict may be entered in favor of the line established by the protestants.” Page, supra at 146. No cross appeal having been taken to the trial court’s denial of the motion for a directed verdict regarding the establishment of the alternative boundary, we do not reach that issue.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.

Starling & Starling, Donald A. Starling, for appellee.


author: Carley, Presiding Judge.

text:
    A90A1373.
    DUNCAN WHOLESALE, INC. v. PALMER et al.
    (419 SE2d 539)
    Decided May 5, 1992.

      Greene & Greene, Barry B. Greene, for appellant.

      Akin & Akin, W. Morgan Akin, for appellees.
   Carley, Presiding Judge.

In Duncan Wholesale v. Palmer, 198 Ga. App. 255 (401 SE2d 291) (1990), we reversed the trial court’s grant of appellee-defendants’ motion to dismiss appellant-plaintiff’s in rem action to foreclose a materialman’s lien. On certiorari, however, the Supreme Court reversed. Palmer v. Duncan, 262 Ga. 28 (413 SE2d 437) (1992). Accordingly, our original judgment is vacated and the judgment of the Supreme Court is hereby made the judgment of this court. The judgment of the trial court is affirmed.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Beasley, Cooper, Andrews and Johnson, JJ., concur.


author: Cooper, Judge.

text:
    A91A0353.
    FOUNTAIN et al. v. ATLANTA CASUALTY COMPANY.
    (419 SE2d 67)
   Cooper, Judge.

This court entered a judgment in the above-styled case at 200 Ga. App. 643 (409 SE2d 239) (1991) reversing the trial court’s grant of summary judgment to appellee. The Georgia Supreme Court reversed our holding in Atlanta Casualty Co. v. Fountain, 262 Ga. 16 (413 SE2d 450) (1992). We had held that appellee’s declaratory judgment action should have been dismissed for failure to state a claim upon which relief could be granted. We also deemed it unnecessary to address several of appellant’s enumerations of error. In accordance with the Supreme Court’s decision, our judgment is hereby vacated, the judgment of the Supreme Court is made the judgment of this court, and we now address the remaining issues raised in appellants’ appeal.

1. Appellants first argue that the trial court erred in granting appellee’s motion for summary judgment and in finding that the named driver exclusion endorsement precluded coverage. The named driver exclusion endorsement, which was part of the policy at issue, provided as follows: “In consideration of the premium charged, it is hereby agreed that all coverages except personal injury protection are not afforded by this policy while any vehicle is being used, driven, operated, or manipulated by, or under the care, custody or control of Cynthia R. Fountain. The provisions of this endorsement supercede and exclude from the policy any contrary provisions. The undersigned, being the named insured in the policy, hereby consents and agrees to the exclusion set forth .above and also rejects in writing all uninsured motorist coverage if the vehicle is being operated by the excluded driver in the policy.”

Appellants contend that the use of the words “any vehicle” and “the vehicle” in the endorsement are ambiguous and therefore the ambiguity should be construed in favor of the insured. Appellants argue that the definition of the term “motor vehicle” as used in the PIP coverage of the policy does not include the all-terrain vehicle involved in the accident, and therefore the term “vehicle” as used in the endorsement would not work to exclude an accident involving an all-terrain vehicle. After reviewing the policy and the endorsement, we agree with the trial court that no ambiguity exists. The term “motor vehicle,” which does not include all-terrain vehicles, was limited to the policy provisions providing PIP coverage, and, in any event, the named driver exclusion endorsement uses the broader term “vehicle.” OCGA § 40-1-1 (3) defines “all-terrain vehicle” as “any motorized vehicle designed for off-road use. . . .” (Emphasis supplied.) We find that the language used in the endorsement encompassed the all-terrain vehicle involved in this accident. Appellants exercised their right to reject uninsured motorist coverage for the named driver, see Bass v. State Farm &c. Ins. Co., 128 Ga. App. 285, 290 (196 SE2d 485) (1973), vacated on other grounds, 130 Ga. App. 393 (203 SE2d 379) (1973), in exchange for a reduced premium. See also OCGA § 33-7-11 (a) (3). This intention is evidenced by the clear language of the endorsement. See Robertson v. N. N. Investors Life Ins. Co. 192 Ga. App. 122 (1) (385 SE2d 681) (1989). The trial court was correct in determining that the endorsement excluded uninsured motorist coverage.

2. Appellants next contend, in a rephrasing of their first enumeration, that the trial court erred in concluding that the named driver was not an insured under the uninsured motorist coverage of the policy. As we stated in Division 1, and as stated by the trial court, the named insured under the policy, as well as the named driver herself, rejected uninsured motorist coverage for the named driver with respect to a vehicle that was being driven or operated by the named driver. The named driver was not an insured, and the trial court did not err.

3. In their third enumeration, appellants state that the trial court erred in finding that the named driver exclusion was not violative of public policy. The trial court’s conclusion is directly supported by Miley v. Fireman’s Fund Ins. Co., 176 Ga. App. 527, 529 (336 SE2d 583) (1985), in which we held that a named driver exclusion which was supported by consideration was enforceable. The case cited by appellants for their position is factually inapposite and not controlling.

Decided May 5, 1992.

Thomas J. Cullen, for appellants.

Bentley, Karesh, Seacrest, Labovitz & Campbell, Gary L. Seacrest, Jean F. Johnson, Dan J. Colley, for appellee.

4. In response to appellee’s declaratory judgment action, appellants filed a counterclaim seeking attorney fees and costs of litigation for filing a frivolous action. In view of the Georgia Supreme Court’s decision upholding the declaratory judgment action filed by appellee, the trial court was correct in finding that appellants’ counterclaim had no merit. Therefore, appellants’ fourth enumeration likewise is without merit.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A92A0121.
    CANDLER v. DAVIS & UPCHURCH.
    (419 SE2d 69)
   Johnson, Judge.

Asa W. Candler III (Candler) was a general partner of Glenridge Square Limited Partnership (Glenridge Square). Davis & Upchurch, a firm of certified public accountants, filed a complaint alleging that Candler failed to pay for accounting services for which he personally contracted on behalf of Glenridge Square. Davis & Upchurch also sought attorney fees, alleging that Candler entered into the contract in bad faith and was stubbornly litigious. A jury found in favor of Davis & Upchurch and awarded damages plus attorney fees. The court denied Candler’s motion for judgment notwithstanding the verdict and his motion for a new trial. Candler appeals.

1. Candler’s first enumeration of error actually asserts six separate errors in the trial court’s charge to the jury. None of these assertions is meritorious.

At the outset, we note that only Candler’s requests to charge are included in the record on appeal; none of Davis & Upchurch’s requests to charge is included in the record. Candler first complains that the court erred in failing to give his second requested charge, which applies to instances when the intentions of the parties to a contract differ. Candler next argues that the court erred in failing to give his ninth requested charge, which states the elements for a claim on an account. “ ‘There is no duty to charge on possible issues in a case which are not supported by the evidence. (Cits.)’ [Cit.]” Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 883 (7) (311 SE2d 193) (1983). In the instant case, there was no evidence presented to the jury to support Candler’s second and ninth requested charges and therefore the court did not err in refusing to give those charges.

Candler also asserts in his first enumeration that the trial court erred in charging the jury on parol evidence, on quantum meruit and in giving Davis & Upchurch’s request to charge number eleven. None of these alleged errors is supported in Candler’s brief by citation of authority or argument. Accordingly, these enumerated errors are deemed to have been abandoned. See Court of Appeals Rule 15 (c) (2).

Candler further argues that the court erred in charging that there is a rebuttable presumption that professionals render their services in an ordinarily skillful manner. This argument is unsupported by citation of authority and Candler has not shown that the charge was inaccurate, incomplete, inapplicable or harmful. We therefore find no error.

2. Candler contends that the trial court erred in granting Davis & Upchurch’s motion in limine to exclude evidence that he personally did not enter into the contract.. Candler argues that he entered into the contract on behalf of one of his corporations. This contention is without merit.

“ ‘It is axiomatic that a contract should be construed by the court where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1. It is the responsibility of the court to determine whether an ambiguity exists. (Cit.) If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties. (Cits.)’ [Cit.]” Avanti Group (U.S.A.), Ltd. v. Robert Half of Atlanta, 198 Ga. App. 366, 368 (401 SE2d 576) (1991). The trial court ruled that the undisputed language of the agreement clearly showed that the parties intended the contract to be between the accountants and Candler personally. The court noted that the agreement was sent to Candler personally, not in his capacity as president of a corporation, and that Candler signed the agreement as an individual, without, any reference to a corporation. “ ‘The trial court’s findings will not be set aside unless they are clearly erroneous. . . . (Cit.)’ ” Price v. Age, Ltd., 194 Ga. App. 141, 142 (1) (390 SE2d 242) (1990). We therefore find that the trial court properly rejected Candler’s interpretation of the contract.

Accordingly, based on the court’s proper ruling that the plain language of the contract established as a matter of law that the contract was between the accountants and Candler personally, any evidence to the contrary would have been completely irrelevant and was appropriately excluded. “Questions of relevancy are within the domain of the trial court. Absent a showing that the trial court abused its discretion in refusing to admit evidence on the grounds of its irrelevancy, the court’s ruling will not be disturbed on appeal. [Cit.]” Allstate Ins. Co. v. McGee, 157 Ga. App. 53, 55 (7) (276 SE2d 108) (1981).

3. Candler’s next enumeration is that the trial court erred in admitting similar transaction evidence. We disagree.

“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the .action involves such character and renders necessary or proper the investigation of such conduct.” OCGA § 24-2-2. “ ‘ “Similar acts are admissible in evidence, if committed or proposed at or about the same time, and when the same motive may reasonably be supposed to exist, with a view to establish the intent of the defendant in respect to matters charged against him in the petition. (Cits.) This is so in transactions of similar nature or like character in which the defendant had engaged previously to the one in question. (Cit.) . . . Intent, good faith, motive, and other such matters relating to the state of a person’s mind are usually not easily susceptible of direct proof. But frequently the state of mind accompanying the doing of an act is illustrated by other acts of a similar nature, done or proposed by the defendant in such a way as to indicate a general practice or course of conduct, or as to display motive, knowledge, intent, good faith, bad faith, and a variety of other such things. . . (Cits.)’ ” Pope v. Propst, 179 Ga. App. 211, 214 (2) (345 SE2d 880) (1986).

In the case sub judice, the trial court allowed testimony that the charges of other accountants and attorneys who worked for Candler on the Glenridge Square project were approximately twice as much as their original estimates and that Candler had failed to pay. Davis & Upchurch claimed that their charges were also double the amount originally estimated due to delays caused by Candler. Moreover, Davis & Upchurch sought attorney fees based on Candler’s alleged bad faith in entering into the agreement. In light of the similarity of the transactions involved and the issue of bad faith, we cannot say that the trial court abused its discretion in finding that the evidence of similar transactions by Candler was relevant and should be heard by the jury. “ ‘If the evidence offered by a party is of doubtful relevancy, it should nevertheless be admitted and its weight left to the jury. . . . (Cit.)’ [Cit.]” Wages v. Sibran, Inc., 171 Ga. App. 14, 15 (1) (318 SE2d 679) (1984). Accordingly, we find no error.

4. Candler complains in his final enumeration of error that the trial court erred in allowing evidence of attorney fees, in denying his motion for a directed verdict on the issue of attorney fees, in charging the jury on attorney fees, in excluding evidence of negotiations and in excluding defendant’s exhibit twelve. These complaints are without merit.

Decided May 5, 1992.

Raiford, Dixon & Thackston, Tyler C. Dixon, for appellant.

Smith, Gambrell & Russell, Terry R. Weiss, Robert W. Beynart, for appellee.

(a) At trial, Candler objected to the admission of evidence of attorney fees as irrelevant. “ ‘[Ajdmission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ ” Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990). Here, the trial court did not abuse its discretion. Davis & Upchurch were seeking attorney fees for Candler’s alleged bad faith. Evidence as to that issue was clearly relevant.

(b) “ ‘The standard of review of the- trial court’s denial of a motion for directed verdict in a civil case is the “any evidence” standard. (Cit.)’ [Cit.]” CSX Transp. v. Barnett, 199 Ga. App. 611, 613 (2) (405 SE2d 506) (1991). In the case at bar, there was substantial evidence from which the jury could conclude that Davis & Upchurch were entitled to attorney fees. Thus, the court did not err in denying Candler’s motion for a directed verdict as to attorney fees.

(c) “ ‘(W)here there is any evidence, however slight, upon a particular point, it is not error for the court to charge the law in relation to that issue. (Cit.)’ [Cit.]” Day v. State, 197 Ga. App. 875, 876 (2) (399 SE2d 741) (1990). In this case, there was evidence as to the issue of attorney fees and the court’s charge was a correct statement of the law. The court’s charge on attorney fees, therefore, was not error.

(d) Candler’s remaining complaints, as to the exclusion of evidence of negotiations and of defendant’s exhibit twelve, are without merit.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0436.
    NOLAN v. THE STATE.
    (419 SE2d 72)
   Johnson, Judge.

Marvin Wesley Nolan III (Nolan) appeals from his conviction of two counts of forgery in the first degree and the denial of his motion for a new trial.

1. Nolan claims that there was insufficient evidence at trial to support the jury’s verdict. We disagree.

The State introduced into evidence two stolen checks made payable to Nolan and endorsed in his name. Undisputed testimony showed that the checks were forged and cashed at a bank. The bank manager identified Nolan from a photographic lineup as the person who endorsed and cashed the checks. An expert in the examination of questioned documents testified that, based on handwriting comparisons, Nolan had in all probability endorsed the two checks. Reviewing all of the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Nolan guilty beyond a reasonable doubt of two counts of forgery in the first degree. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Nolan also contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Nolan claims that at the time of trial he did not know the identity and whereabouts of the owner of a motor vehicle whose license tag number was written on the back of one of the forged checks. This argument is without merit.

“It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of .a witness. All six requirements must be complied with to secure a new trial. Furthermore, motions for new trial upon the ground of newly discovered evidence are addressed to the sound discretion of the trial judge, and a refusal to grant the motion will not be reversed unless his discretion is abused.” (Punctuation and citations omitted.) Croy v. State, 195 Ga. App. 500, 501 (393 SE2d 756) (1991).

Nolan has made no showing that he did not know of the motor vehicle tag number written on the back of the check prior to trial. On the contrary, the record indicates that Nolan had actually seen the check prior to trial. Further, Nolan has failed to show that it was not owing to the want of due diligence that he did not follow up on this information to determine the identity and whereabouts of the owner of the vehicle prior to trial. As Nolan has failed to comply with all six of the requirements needed to secure a new trial, we find that the trial court did not abuse its discretion in denying his motion.

3. Nolan argues that he was denied effective assistance of counsel at trial. Nolan asserts that his counsel did not fully develop the defense of mistaken identity, that he failed to cross-examine the State’s witness as to her photographic identification of Nolan as the perpetrator and that he failed to question the State’s handwriting expert as to the certainty of his conclusions. This enumeration of error is without merit.

To establish ineffective assistance of counsel, the defendant must show that trial counsel’s performance was deficient and that this deficiency prejudiced the defense. Timberlake v. State, 200 Ga. App. 64, 68 (5) (406 SE2d 537) (1991). “Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by (former) counsel does not require a finding that defendant’s original representation was inadequate.” (Citations and punctuation omitted.) Brenneman v. State, 200 Ga. App. 111, 114 (2) (407 SE2d 93) (1991). In the instant case, contrary to Nolan’s assertions, Nolan’s trial attorney did present evidence to support a defense of mistaken identity, did cross-examine the State’s witness as to her photographic identification of Nolan and did question the State’s expert witness as to the certainty of his conclusions. The fact that Nolan and his present counsel now claim that they might have conducted these matters in a different manner does not require a finding that Nolan’s trial counsel was ineffective. In fact, a review of the record on appeal indicates that the performance of Nolan’s trial counsel clearly falls within the range of “reasonably effective assistance.” Brenneman v. State, supra.

Moreover, no hearing was held on Nolan’s motion for a new trial; thus, the record is devoid of any testimony from Nolan’s trial attorney explaining his performance. “Trial strategy and tactics do not equate with ineffective assistance of counsel. . . . The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. Defendant did not subpoena his trial counsel to appear at the hearing on his motion for new trial. Thus, defendant made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy. . . . The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. The trial court’s finding in the instant case is not clearly erroneous.” (Citation and punctuation omitted.) Foreman v. State, 200 Ga. App. 400, 401 (3) (408 SE2d 178) (1991).

Decided May 5, 1992.

Robert L. Barr, Jr., for appellant.

W. Fletcher Sams, District Attorney, William T. McBroom III, Assistant District Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0592.
    SMITH v. THE STATE.
    (419 SE2d 74)
   Johnson, Judge.

Clarence Thomas was attempting to restrain his brother, Leonard Thomas, who was charging at appellant Danny Smith in retaliation for a remark made several weeks earlier which tended to impugn his character. Smith, who thought Leonard might be armed with a gun, fired one round of birdshot from a 20 gauge shotgun at him. Pellets hit both brothers. Smith was indicted on two counts of aggravated assault. Smith’s sole defense at trial was justification. A jury found Smith not guilty of aggravated assault on Leonard Thomas, the intended victim, but guilty of aggravated assault on Clarence Thomas. Smith appeals his conviction.

1. Smith contends that since intent was not shown with respect to the assault upon Clarence Thomas, the evidence was insufficient to support the verdict. Smith argues that since the jury found that the assault on Leonard Thomas was lawful, it necessarily follows that he did not possess the requisite intent to commit an aggravated assault on the bystander.

The theory of transferred intent in criminal law has a long history from Reg. v. Sauders, 2 Plowd. 473, 75 Eng. Reprint 706 (1576), (18 ALR 923) in which it was pointed out that if a man maliciously shoots an arrow at another with intent to kill him and a person to whom he bore no malice is killed by it, this would be murder for the person who shot the arrow with intent to kill, and is the same offense as to such person as if he had killed the person he aimed at. More recently, this court has held: “When an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. ‘In legal contemplation, the intent follows the act through to its legitimate results.’ [Cit.]” Fussell v. State, 187 Ga. App. 134, 136 (4) (369 SE2d 511) (1988).

Can the principle of transferred intent be applied in a case, however, in which the jury finds that the firing of the shot was justified and therefore lawful? “If, in consequence of an assault upon himself which he did not provoke, the accused shot at his assailant, but missed him and the shot killed a bystander, no guilt would attach to him if the assault upon him was such as would have justified him in killing his assailant.” Butler v. State, 92 Ga. 601, 603 (4) (19 SE 51) (1893). This principle has been followed in Turner v. State, 209 Ga. 532 (3) (74 SE2d 459) (1953) and Olds v. State, 84 Ga. App. 397 (5) (66 SE2d 396) (1951).

Decided May 5, 1992.

Jay P. Wells, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

In our case, the jury did find the defendant’s actions to be justified. There was no evidence in the record from which one could divine any intent to injure Clarence. Intent being a requisite element of the aggravated assault charge, and no lesser offense (such as reckless conduct) having been charged, we find that there was insufficient evidence upon which to base a conviction as to that offense. Consequently, defendant’s conviction must be reversed.

2. Smith also contends that the trial court erred in allowing the State to introduce evidence of criminal charges brought against him in Florida but would not allow him to introduce evidence of his acquittal. In light of our holding in Division 1 above, we need not reach this issue.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0646.
    In the Interest of C. G. A. et al., children.
    (418 SE2d 779)
   Johnson, Judge.

This appeal is by a father from an order of the juvenile court terminating his parental rights. The case was decided below by a superior court judge sitting as the juvenile court of Charlton County. The children’s natural mother, whose parental rights were terminated in the same order, does not join this appeal. We affirm.

1. The father contends that the juvenile court erred in terminating his parental rights based on his failure to pay support. This enumeration is without merit.

OCGA § 15-11-81 (b) (4) (C) (ii) provides that the juvenile court, when deciding whether to terminate parental rights, shall consider “whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to filing of the petition for termination of parental rights ... to provide for the care and support of the child as required by law or judicial decree.” All parents are required by law to support their minor children. OCGA § 19-7-2. The father admitted that he failed to pay child support for over a year; he did not offer any justifiable cause or other satisfactory explanation for his failure to provide financial support for his children. The juvenile court was well within its discretion to give great weight to the father’s failure to provide support in its decision to terminate his parental rights.

2. The father asserts that the juvenile court erred in terminating his parental rights on the basis that his parental misconduct or his inability to support them resulted in deprivation.

The record establishes facts sufficient for the trial court to find by clear and convincing evidence that the subject children are “deprived” as defined in OCGA § 15-11-2. The parents caused and sustained the deprivation of the children. The father is an admitted unrehabilitated alcohol abuser who lives in a two-bedroom trailer with his girl friend and her two children by a former relationship. He admits that he had not paid child support for his children, who were in the Department’s custody, since November of 1988. The children’s natural mother abandoned the children more than two years prior to the termination hearing and her whereabouts are unknown.

There was ample testimony that the deprivation of the children would be likely to continue if parental rights were not terminated. The father had not responded to the alcohol treatment which was provided to him. He was shown to be likely to have a “continuous problem with alcohol.” Furthermore, no progress had been observed in the father’s parenting skills, and the evidence showed that improvement in his parenting skills is unlikely.

“The determination of deprivation and the decision to terminate parental rights based thereon is an exercise of discretion by the trial court and if based upon evidence, will not be controlled by [a reviewing] court. [Cits.]” Roberts v. State of Ga., 141 Ga. App. 268, 270 (233 SE2d 224) (1977).

3. The father contends that the juvenile court erred in terminating his parental rights because the Department failed to comply with a prior order of the court which he contends required the Department to monitor the father’s parenting skills.

The order referred to was entered May 28, 1991. It was not made a part of the record for our review. Nevertheless, there is evidence of its terms in the transcript. The father claims that the Department did not comply with the order, which required them to monitor the father’s parenting skills, income, and marital status for the children’s possible re-placement-with him. However, there was evidence which established that the Department did comply with the order. The Department tried to contact the father several times by telephone to inform him of panel reviews, but they were unable to monitor his lifestyle because he had moved his trailer home and could not be located. His failure to cooperate was the cause of any deficiency which might have been shown in the Department’s monitoring effort. Furthermore, this matter was brought to the trial court’s attention. The trial court apparently concluded that its order had not been violated or that if it had been it was not relevant to its decision on the merits.

Decided May 5, 1992.

McGee & McGee, J. B. McGee, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, for appellee.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0632.
    BROWN et al. v. THE STATE.
    (418 SE2d 776)
   Johnson, Judge.

Appellants Danny Jearles Brown and Theresa Lynn Brown were tried by a jury and convicted of burglary. They filed a motion for new trial which was denied by the trial court. Appellants appeal their convictions and the denial of their motion for new trial. We affirm.

1. Appellants contend that the trial court erred in denying their motion for new trial as there was insufficient evidence to support the verdict of the jury.

Appellants’ co-defendant, David Byers, testified that he and Danny Brown drove to the ConAgra Plant in a pick-up truck, knocked a hole in the building wall, entered, and stole various items as well as money. Byers’ testimony was corroborated by the testimony of several police officers, who testified that they recovered the stolen items from Byers’ home and the appellants’ home. Additional testimony was given by two ConAgra employees who testified that they observed a pick-up truck occupied by two white males near the back loading dock of the building sometime in the early hours of the morning of April 21, 1991, the day of the burglary.

Byers also testified that Theresa Brown acted as a lookout for them while they were committing the burglary. She had been positioned across the railroad tracks from ConAgra at the Shaw Industrial Plant. He further testified that Theresa Brown came over to the ConAgra Plant while they were in the process of committing the burglary and advised them that she had been asked to leave the Shaw premises by a security guard. Byers’ testimony was corroborated by another witness who testified that Theresa showed her the spot where she had been posted as a lookout.

A person cannot be convicted of a felony solely upon the uncorroborated testimony of an accomplice. Shumake v. State, 159 Ga. App. 141 (282 SE2d 756) (1981). However, where there is corroborating testimony as in the instant case, the corroborating evidence need only be slight to be sufficient. Shumake, supra. The sufficiency of corroborating evidence should be “ ‘peculiarly a matter for the jury to determine.’ ” Harris v. State, 165 Ga. App. 186, 187 (299 SE2d 393) (1983).

Considering the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the appellants guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellants contend that the trial court erred in failing to grant a mistrial after the investigating officer testified that the appellants refused to give a statement to the authorities after they were arrested.

The officer, after being asked to describe the investigation of the burglary, responded: “We attempted to get statements. After placing all three subjects under arrest, we attempted to get statements; attempted to locate the fifth party, which we knew the first name was only ‘Ricky.’ They would not give us a statement. I attempted to — we attempted to get statements from all three and all declined to comment on the case.” At which point, the appellants’ attorney moved for a mistrial.

In the presence of the jury, the trial court admonished the officer for his improper testimony, and the district attorney for allowing the officer to testify regarding the appellants’ refusal to give a statement. The court then instructed the jury that no inference should be drawn from the comment and instructed the jury of the appellants’ rights as enumerated in Miranda v. Arizona, 384 U. S. 436, (86 SC 1602, 16 LE2d 694) (1966). Furthermore, the court indicated that a mistrial would be declared, unless the jurors believed they could disregard the officer’s improper testimony and, again, instructed the jury on the appellants’ right to remain silent. The jurors indicated that they did not feel that they would draw an inference of guilt from the officer’s testimony and the trial resumed.

“ ‘Evidence as to silence on the part of the defendant at the time of his arrest should be excluded when objected to, for he is then entitled to remain silent, and the prosecution may not use against him the fact that he stood mute or claimed his privilege. [Cit.].’ ” Newton v. State, 154 Ga. App. 98, 99-100 (267 SE2d 641) (1980). Howevér, where the trial court immediately gives curative instructions to the jury regarding the improper testimony from a witness, such improper testimony does not constitute prejudicial error. Id. at 100.

Decided April 24, 1992

Reconsideration denied May 6, 1992.

J. Tracy Ward, for appellants.

Jack 0. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellee.

The trial judge properly rebuked the district attorney “Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender.” OCGA § 17-8-75.

Because the trial judge gave curative instructions to the jury, and openly reprimanded the prosecution for allowing the officer to testify that the appellants’ refused to give statements at the time of their arrest, we find no abuse of discretion by the trial judge in denying appellants’ motion for a mistrial. The trial court’s judgment, therefore, shall not be disturbed.

Judgment affirmed.

Carley, P. J., and Pope. J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0024.
    MORGAN v. THE STATE.
    (419 SE2d 313)
   Birdsong, Presiding Judge.

Marvin Morgan appeals his judgment of conviction for possession of cocaine with intent to distribute and sentence. He enumerates three errors. Held:

1. Appellant asserts the trial court erred by allowing the jury to consider the writing on State’s Exhibit No. 2 (an envelope in which a paper sack containing suspected cocaine was transmitted to the state crime lab), and by erroneously instructing the jury as to their consideration of said writing.

(a) Appellant asserts on appeal that it was error to allow the jury to see the accused’s name written on the outside of State’s Exhibit No. 2 on a line captioned, “Owner,” thereby allowing the jury to consider hearsay evidence, which also bolstered the uncorroborated and contested evidence of Officer Watson, that it was the defendant who in fact was in possession of the drugs found in a paper sack inside a barbecue grill. See, e.g., Walker v. State, 215 Ga. 128, 130 (3) (109 SE2d 748) (evidence tags); Morris v. State, 161 Ga. App. 141, 142 (1) (288 SE2d 102) (evidence tags).

In the case at bar, the issue of chain of custody was vigorously contested by the defense. The mere fact the printed name, “Marvin Morgan,” appears on the transmittal envelope is in and of itself relevant to the issue of chain of custody, without regard to the proof of the matter therein contained that the said “Marvin Morgan” listed as “owner” on the envelope was in fact the “owner” of the contents of the transmittal envelope. As the mere fact that the printed name, “Marvin Morgan” has been affixed to the envelope has independent relevancy as to the issue of chain of custody, it is not hearsay. “Naturally, if the out of court declaration is admitted to prove the fact that the declaration was made and not to prove the truth of the declaration, it would not be hearsay.” Agnor’s Ga. Evidence (2d ed.), Hearsay, § 11-1. “As a fundamental rule, the definition of hearsay does not include out-of-court statements which are not offered as proof of the facts asserted in such statement, but are offered merely as proof that such a statement was made. . . . The only problem is in determining whether the making of such an out-of-court statement is relevant to any issue in the case and whether its probative value can be disentangled from overriding possibilities or dangers of prejudice.” Green, Ga. Law of Evidence (3d ed.), Hearsay, § 218.

Additionally, informational notations on the envelope were placed there during the course of a legal investigation and are relevant to explain the conduct and intent of the officers in transmitting this particular envelope of evidence using a chain of custody procedure to the crime lab for scientific examination. OCGA § 24-3-2. The officer’s procedural conduct and intent in processing this envelope became matters of which the truth was required to be found after appellant elected at trial to challenge the adequacy of the chain of custody of the cocaine following its seizure. Compare Ivester v. State, 252 Ga. 333, 334 (2) (313 SE2d 674).

“It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298).

(b) During the testimony of the State’s drug identification expert, a hearsay objection was posed when the expert was asked who was identified to her as the possible suspect regarding the substance to which she had assigned case no. 91-10302. The trial court ruled in the presence of the jury that: “I will allow the question for the purpose of showing a chain of custody. However, the jury will have to decide who possessed . . . this contraband. For the purpose of showing the chain of custody I will allow the question, which means to the jury that she will identify names connected with that to show that it was the same material that has been testified to earlier.” (Emphasis supplied.) Thereafter, the witness stated that the suspect was identified to the crime lab as “Marvin Morgan” and the arresting officer was identified as “M. A. Watson.” The trial court’s ruling made in the jury’s presence constituted a form of limiting instruction and clearly pertained to the matters written on the envelope.

After the State had rested, the trial court denied appellant’s motion for directed verdict as to the possession with intent to distribute count. In his motion, appellant asserted the State had failed to connect the seized drugs to appellant, and challenged, albeit somewhat unartfully, the sufficiency of chain of custody. Thereafter, appellant belatedly raised the issue of written hearsay being on the manila envelope containing the evidence. The trial court responded outside the presence of the jury as follows: “The reason why I allowed it to go in is because it is part of the chain of custody. You can make the argument on chain of custody . . . I will direct the jury that those are identification numbers and the names are only for the purpose of establishing chain of custody and not for hearsay, they are not to show the proof of what is written on it.” (Emphasis supplied.) Appellant then made a motion to strike that portion of State’s Exhibit No. 2 that constituted the manila envelope “on the grounds that . . . that is hearsay and it bolsters the testimony of the witness.” The trial court denied the motion to strike stating, “I will explain to the jury why, and I think I already have, but I will repeat it again.” (Emphasis supplied.) However, subsequently, the trial court in its formal instructions to the jury gave a somewhat confusing instruction regarding the writing on the envelope. This charge did not repeat clearly the contents of the original limiting instruction, or repeat the exact language which the court had indicated it would use in its charge to the court.

Standing alone, the final charge to the jury would not constitute an adequate limiting instruction. But, “ ‘ “[i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” ’ ” Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). And this includes an examination of a charge in relation not only to the remainder of the final charges and any re-charges to the jury, but in light of all prior limiting, curative, and cautionary instructions given to the jury during the course of the trial. When the charge is so viewed, we find that no fair risk exists that the jury was lead to believe that it could consider the information contained on the envelope for any purpose other than showing a chain of custody. Accordingly, we find the trial court did not commit prejudicial error in instructing the jury on their consideration of the writing on State’s Exhibit No. 2, as specifically enumerated by appellant.

(c) Moreover, the record reveals that after the State made a tender of State’s Exhibit No. 2, appellant requested and received permission to cross-examine the crime lab drug identification expert. The following colloquy occurred before the exhibit was admitted in evidence and prior to the exhibit being tendered to the jury. “Q. And . . . one paper bag seems to be a manila [envelope] with writing all over it and one that looks like just sort of a half torn grocery sack, would you agree with me there? A. Yes. . . . Q. And that manila envelope was inside the big paper sack? A. Yes. . . . Q. Go ahead. A. And when I receive the evidence, one day and usually two days at the most, later I will open the outer paper bag, I will look at that sheet and compare the suspects named to all the defendants, unless they are contained inside that paper bag, and I will match the envelope with the information on the sheet, and that’s how I write the case number on that envelope. The envelope will always have the suspect’s name and the arresting officer’s name. I compared the information of the sheet to assure that there is a corresponding envelope in my bag, and then I write down the case number and the date that it was received and my initials on that envelope. . . . Q. And do you have any personal knowledge yourself as opposed to things that were written on pieces of paper that these are the drugs, that these drugs were in the possession of a person named Marvin Morgan. A. Other than the paper work, no.” (Emphasis supplied.) Thereafter, appellant’s counsel specifically stated on the record that there was “no objection” to State’s Exhibit No. 2. The exhibit was tacitly admitted at this point, and the State rested after asking the expert several questions not pertaining to document admissibility. The trial court thereafter entertained and impliedly overruled appellant’s delayed objection to State’s Exhibit No. 2 and expressly denied appellant’s expanded follow-up motion to strike the admission of the exhibit.

The record thus reveals that appellant, through his own conduct and procedure, made the jury aware of the existence of writings, including writings on the manila envelope (State’s Exhibit No. 2) which included thereon the name of appellant, the name of the arresting officer, and, as added thereto by the expert, the case number, date the envelope was received at the crime lab, and expert’s initials. Thus, appellant’s own conduct and trial procedure contributed to the jury’s knowledge of the existence of written information on the outside of the manila envelope in State’s Exhibit No. 2. One cannot complain on appeal of a result that he procured or which his own conduct or procedure aided in causing. Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889); Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251).

2. Appellant asserts the trial court erred in denying appellant’s motion for a directed verdict of acquittal as to the charge of possession of cocaine with intent to distribute. “[T]he proper test when[, as in this case,] sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the ‘reasonable doubt’ test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Wilburn v. State, supra at (1); accord Daras v. State, 201 Ga. App. 512 (1) (411 SE2d 367).

Appellant argues, inter alia, that the showing of chain of custody was insufficient; that is, the State “failed to show that the item appellant possessed was the same item that was tested at the crime lab.” Although the State has the burden of establishing chain of custody as to fungible goods subjected to scientific testing, “it need only show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.” Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296). After examining the trial transcript in toto, we are satisfied that the State has carried its burden in this case. The record raising, at most, “ ‘bare speculation of tampering or substitution, the trial court correctly admitted the cocaine into evidence.’ ” Id.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which he was convicted. Jackson v. Virginia, supra.

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in Division 1 (a) but for different reasons.

First, when the State moved the admission of the bag with the writing on it and its contents, defendant questioned the witness about it and then stated that he had no objection to its admission into evidence. A short time later the State rested its case and defendant moved for a directed verdict, which the court granted as to count 1. It was only then that defendant raised an objection to the writing on the outside of the bag, on the ground that it was hearsay. Since it was not hearsay, the objection was too late as a matter of law. Viener v. State, 150 Ga. App. 175, 177 (2) (257 SE2d 22) (1979). Consequently, defendant can hardly complain that when he objected and the court gratuitously offered to instruct the jury to limit its consideration of the writing to the question of chain of custody (i. e., as a unique mark to distinguish the bag from all others), the court erred by not excising the writing altogether.

Decided May 6, 1992.

John 0. Ellis, Jr., for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, J. George Guise, Assistant District Attorneys, for appellee.

Defendant then added to his objection the ground that it bolstered the testimony of the witness. The testimony, some of it elicited by defendant, established the source, purpose, and meaning of the writing. There was no contrary evidence as to this; defendant merely made an issue of the chain of custody based on this evidence. Thus, the fact that defendant’s name as “owner” was not blacked out was not harmful because it was clearly identified as being a marking merely made by the officer as his own designation. The fact that he made this designation was not contested, so its observation by the jury in the jury room in addition to the jury’s hearing of it in the courtroom could not have constituted prejudice. See Brown v. State, 195 Ga. App. 389, 390 (393 SE2d 514) (1990). It merely showed that what was said to have been written on the bag was in fact written on the bag.

I concur in the remainder of the opinion.


author: Beasley, Judge.

text:
    A92A0041, A92A0042.
    McBRIDE v. ZANT et al.
    (418 SE2d 781)
   Beasley, Judge.

Case No. A92A0041 relates to an action, the nature of which is labeled “tort-negligence,” which McBride, a state prisoner, brought for actual, nominal, and punitive damages against Zant and officials of the Ware Correctional Institute. The grounds are that during his brief stay in administrative segregation they had denied him the right to send personal correspondence; returned personal correspondence to the sender without notifying him and/or giving the sender an opportunity to object; and placed him on mail restriction in violation of Department of Corrections Rules 125-3-3-.01 et seq. and “the constitution.”

Case No. A92A0042 addresses an action for similar damages which McBride filed against Zant and officials of the Georgia Diagnostic & Classification Center, on grounds that during his brief stay as an inmate there he had been harassed and retaliated against for petitioning the administration for redress of grievances. He alleged that after he received a disciplinary report, a prison official had threatened to send him to isolation, refused to allow him to exit the kitchen, and denied him store privileges after removal of restriction; he was harassed and retaliated against (in unspecified ways) as a result of making a confidential grievance statement and requesting protective custody; and his legal books and materials were illegally seized and confiscated.

In both actions, McBride stated that he presented the facts relating to each complaint in each institution’s prisoner grievance procedure, pursuant to Board of Corrections Rule 125-2-4-.23, and in each instance he did not receive a response from the warden. The superior court dismissed both actions for failing to set out a cause of action.

1. The threshold jurisdictional question is whether either or both of the appeals must be dismissed under OCGA § 5-6-35 (a) (1) , which requires an application for discretionary appeal from decisions of the superior courts reviewing decisions of state and local administrative agencies. Heiny v. Dept. of Public Safety, 169 Ga. App. 37 (311 SE2d 848) (1983). The answer is no. Appellant has filed separate tort actions seeking damages for official actions which were or could have been the subject of administrative grievances. He is not seeking a review by the superior court of a decision of an administrative agency within the contemplation of OCGA § 5-6-35 (a) (1).

2. Mail regulations in penal institutions are divided into two categories: “legal mail,” which is mail to or from attorneys, public officials, or courts, and “nonlegal mail,” which is personal correspondence. 22 AmJur Trials, Prisoners’ Rights Litigation, § 31, p. 58 (1975). The federal constitutional protection afforded prisoners’ “nonlegal mail” is defined in Procunier v. Martinez, 416 U. S. 396 (94 SC 1800, 40 LE2d 224) (1974). In Procunier v. Navarette, 434 U. S. 555 (98 SC 855, 55 LE2d 24) (1978), another case brought under 42 USC § 1983, it was held that officials who had interfered with a prisoner’s outgoing mail in violation of his constitutional rights were entitled to qualified immunity from liability under which they could not be held liable for damages where the claim for relief is, as here, based only on negligence. Consequently, the trial court did not err in dismissing the complaint in Case No. A92A0041.

3. Prisoners may have actionable claims against prison officials for the tortious infliction of injury, as under the Federal Tort Claims Act, 28 USC § 2671 et seq., or under 42 USC § 1983. As to the latter, see Hudson v. McMillian, _ U. S. _ (112 SC 995, 117 LE2d 156) (1992). However, courts will not interfere with internal prison discipline except under unusual circumstances. See 60 AmJur2d, Penal & Correctional Institutions, § 121, p. 1208 (1987). The harassment actions alleged by appellant in his complaint in Case No. A92A0042 involve internal prison discipline and not the tortious infliction of compensable injury.

Decided May 6, 1992.

Stephen McBride, pro se.

Michael J. Bowers, Attorney General, for appellees.

The allegations concerning the seizure and confiscation of legal books and material while appellant was being held temporarily at the Center for permanent assignment does not, without more, state a claim after the fact for monetary damages. Consequently, we find no error in the trial court’s dismissal of the complaint in Case No. A92A0042 either.

Judgments affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0053.
    STARKS v. THE STATE.
    (419 SE2d 75)
   Beasley, Judge.

Starks was indicted for possession with intent to distribute 2.5 ounces of marijuana in violation of the Georgia Controlled Substances Act, OCGA § 16-13-30 (j) (1). The marijuana was found in a gym bag in the rear compartment of Starks’ car after a police stop of the vehicle. Following the denial of his motion to suppress evidence of the contraband and subsequent denial of reconsideration of the ruling, Starks entered a negotiated plea of guilty under the First Offender Act, OCGA § 42-8-60 et seq., to felony possession of marijuana, OCGA § 16-13-30 (j) (1).

It does not appear that the prosecution expressly agreed to a reservation by defendant of the right to appeal the suppression ruling, which should be part of a negotiated plea if that is the intention. However, considering the colloquy between defense and the court in this case and the fact that the State has not objected on appeal, defendant adequately reserved the right to appeal the denial of suppression. See Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991).

In denying suppression, the court entered a lengthy order detailing its findings of fact and concluding as matters of law that probable cause existed to stop Starks’ vehicle and that seizure of the marijuana was valid as it was in plain view.

Starks challenges the lawfulness of the stop and, independently, the lawfulness of the search. He contests the finding that there was probable cause to stop him for a traffic violation and counters that the stop, made by members of a drug squad, was pretextual. He further urges that even if the stop was lawful, the contraband was not in plain view and the scope of the search was excessive.

1. The court found the following with regard to the stop. The drug squad officer who initially observed Starks’ vehicle saw Starks “operating at a high rate of speed in an unsafe manner” and passing vehicles through use of the turn lane. The officer radioed for another unit to stop Starks because the officer was in an unmarked car lacking blue lights and a siren. The officer relayed that Starks had passed in a turn lane designated as a no passing zone. He did not make any suggestion that the driver had drugs. The officer had no such information nor that Starks had ever been involved in drug activity.

Two other drug unit officers responded to the call. One testified that the radio broadcast mentioned Starks was traveling at a high rate of speed and passing other cars by use of the turning lane. His partner testified that the radio caller stated that Starks’ vehicle used the center turn lane to pass two vehicles. Their police report stated that “an undercover unit observed a black 1988 Ford Escort, use the center turn lane to pass two vehicles.” Defendant admitted pulling into the turn lane and then moving back into the regular flow of traffic.

The evidence supports the court’s findings that probable cause existed to make a valid traffic stop and that there was no evidence that the stop was a pretext to investigate for drugs. Cf. United States v. Smith, 799 F2d 704 (11th Cir. 1986); Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987).

2. The evidence also supports the court’s detailed findings as to seizure of the contraband in plain view: While one officer was obtaining license and insurance information from Starks, his partner went to the passenger side of the car for “safety precautions” and visually checked the vehicle to see if anybody was lying in the back seat. He saw an open gym bag containing a plastic bag with what appeared to be marijuana and communicated this to the other officer. He placed Starks up against the car, then opened the car door, secured the bag, and placed Starks under arrest. Starks’ testimony that the marijuana was not in plain view as the bag was on the floor and the car’s windows were tinted was refuted by both arresting officers’ testimony that the gym bag was on the back seat and by Starks’ apparent confusion as to the location of the bag. No evidence corroborated Starks’ testimony that his car windows were of such dark tint at the time of the stop that it was impossible to see through them. Starks introduced color photographs of his vehicle, but there was evidence that the photographs were taken sometime after Starks’ arrest and that time the window tinting had been altered following the stop. None of the three police officers nor the police report described the car as having tinted windows. There was no evidence that the officers had any difficulty observing the marijuana in the automobile even if the windows had some tint.

Decided May 6, 1992.

Howard, Bowen & Heard, James W. Howard, for appellant.

Robert E. Wilson, District Attorney, Richard R. Read, Barbara B. Conroy, Assistant District Attorneys, for appellee.

The appellate court is “bound to accept the trial court’s decision on questions of fact and credibility at a suppression hearing unless clearly erroneous.” Williams v. State, 256 Ga. 609, 610 (1) (351 SE2d 454) (1987). The evidentiary record supports the trial court’s findings of fact, and the application of the plain view doctrine was appropriate, State v. Hodges, 184 Ga. App. 21, 34-25 (360 SE2d 903) (1987). The trial court’s denial of suppression is affirmed.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0173.
    ATWELL v. THE STATE.
    (419 SE2d 77)
   Beasley, Judge.

Appellant was indicted on one count of child molestation, OCGA § 16-6-4 (a), one count of aggravated child molestation, OCGA § 16-6-4 (c), and one count of aggravated sodomy. OCGA § 16-6-2 (a). He was convicted of aggravated child molestation.

1. Appellant contends that the trial court erred in allowing the victim to testify with her back turned toward him.

The six-year-old victim was called as a witness but would not respond to questioning. After the remaining state’s witnesses had testified, the prosecuting attorney informed the court that the victim had told him she was afraid of appellant. He asked if the court would allow her to testify facing the jury with her back to appellant. The court permitted it, but also permitted defense counsel to position himself on the side of the jury box so that he had a front view of the victim as she was testifying. Appellant was required to remain in his seat, so that the victim was visible to him and he could hear her testimony, but he could not look her in the eye.

Appellant argues that this violated his constitutional right to confront witnesses against him under the Sixth Amendment of the United States Constitution, as applicable to the states through the Fourteenth Amendment, and under Art. I, Sec. I, Par. IX of the Georgia Constitution of 1983.

A procedure such as that employed in this case to secure the testimony of victims in child sex-abuse cases does not violate the defendant’s federal confrontation rights. Ortiz v. State, 188 Ga. App. 532, 533 (2) (374 SE2d 92) (1988). As recognized in Lingerfelt v. State, 235 Ga. 139, 140 (218 SE2d 752) (1975), a case in which the federal right was construed: “Confrontation in a criminal trial really means the right to ask questions and secure answers from the witness confronted.” Nor are the state constitutional rights to confrontation (and due process) infringed because, as quoted approvingly from Wigmore in Denson v. State, 150 Ga. 618, 622 (4) (104 SE 780) (1920), a case in which these state constitutional rights were construed: “ ‘[T]he main and essential purpose of confrontation is to secure the opportunity of cross-examination.’ ” Defendant had the opportunity to, and did, thoroughly cross-examine the witness.

2. Appellant contends that the trial court erred in allowing the prosecuting attorney to cross-examine him in such a manner as to improperly inject his character in issue in violation of OCGA § 24-9-20 (b).

During his cross-examination of the victim, defense counsel elicited testimony from her that when she was two years old her family’s house caught on fire because her father had been sniffing gas, and she and her mother then left him. Appellant later testified on direct examination that he had accidentally caused the fire after liquid gas which he had spilled on himself was ignited by the pilot light of a water heater, and his wife had left him because of his disfigurement as a result of the fire. In cross-examining appellant, the prosecuting attorney began asking him about the victim’s testimony in regard to his sniffing gas. The defense objected, but the objection was overruled. Appellant then denied that he had sniffed gas or that his wife had left him as a result of his sniffing gas.

Appellant opened the door to such evidence through defense counsel’s cross-examination of the victim and the testimony given by appellant on direct. Compare Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988); Arnold v. State, 193 Ga. App. 206, 207 (2) (387 SE2d 417) (1989).

3. Appellant contends that the trial court erred in charging the jury in the wording of the statute, OCGA § 16-6-4 (a), with respect to child molestation, since Count 1 of the indictment charged he unlawfully performed an immoral act upon the victim “by placing his penis between the said child’s legs, with the intent to satisfy the sexual desires of said accused.”

Since appellant was not convicted of child molestation under count 1, his complaint is moot. In any event, after charging the jury concerning the definition of child molestation, the trial court later charged the jury that it would be authorized to find appellant guilty as to a particular count or counts of the indictment only if it was found beyond a reasonable doubt that he committed the offenses alleged in a particular count or counts of the indictment in the manner set forth in the particular count or counts. Also, as noted in Division 4, infra, the court further clarified this point.

Decided May 6, 1992.

Moore & Davidson, W. Keith Davidson, for appellant.

Thomas C. Lawler III, District Attorney, Terry L. Lloyd, Debra K. Turner, Assistant District Attorneys, Michael J. Bowers, Attor ney General, for appellee.

It is reversible error to instruct the jury that an offense may be committed in more than one manner when only one manner is alleged in the indictment, except where, as here, remedial instructions are given to limit the jury’s consideration to the manner alleged. See Mathews v. State, 176 Ga. App. 394, 395 (4) (336 SE2d 259) (1985).

4. Appellant contends that the trial court erred in failing to give clarifying instructions to the jury concerning the requirement that it find appellant’s guilt beyond a reasonable doubt.

Count 2 of the indictment charged appellant with aggravated child molestation by unlawfully performing an immoral act which did involve an act of sodomy upon the victim “by placing his penis into the said child’s mouth, with the intent to satisfy the sexual desires of said accused.”

The jury asked during deliberations for more instruction because of confusion resulting from the fact that Count 1 charged child molestation by placing the penis between the child’s legs and Count 2 charged aggravated child molestation by placing the penis in her mouth. The court stated that it would recharge the jury that it would have to find that the offense committed did occur as alleged in the indictment. Defendant agreed to this recharge and suggested that the court also recharge the requirement that the jury’s finding that the facts as alleged in the particular count of the indictment must be found beyond a reasonable doubt before a conviction is authorized.

The court did not recharge the requirement that the jury find guilt beyond a reasonable doubt but it did give clarifying instructions concerning the point of confusion. It did not commit reversible error in refusing to charge on other points. Brannon v. State, 163 Ga. App. 340, 341 (2) (295 SE2d 110) (1982), relied on by appellant, is inapposite, in that the recharge taken alone would not have left an erroneous impression in the minds of the jury as to the necessity of finding appellant guilty beyond a reasonable doubt. No erroneous impression was left in this case.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0238.
    HALL v. THE STATE.
    (419 SE2d 539)
    Decided May 6, 1992.
    Catherine Hall, pro se.

      Keith C. Martin, Solicitor, for appellee.
   Beasley, Judge.

Accusations were filed against appellant for obstructing an officer and fleeing the police in violation of local ordinances. The Municipal Court of Forest Park bound over those charges, as well as a charge that appellant had driven with a suspended license, to the State Court of Clayton County. Based on her entry of guilty pleas, appellant was convicted of the obstruction and fleeing offenses in state court, which imposed fines for each conviction and sentenced appellant to time served. No conviction was entered for the charge that appellant drove with a suspended license.

Appellant enumerates as error the admission of certain testimony and various actions by her court-appointed attorney, the prosecutor, the trial judge, and the court reporter. She also contends that the evidence is insufficient to support the convictions. Her brief is addressed solely to the sufficiency of the evidence. She also denies that she pled guilty to the obstruction and fleeing charges. Her plea contains the notation “— with an explanation.”

The errors enumerated, which would be waived by entry of a valid guilty plea anyway, are not reviewable in the absence of a transcript of the proceedings below. An indigent defendant must request that a hearing on a misdemeanor charge be reported and transcribed, unless the trial court on its own motion orders that this be done. See OCGA § 5-6-41 (b). Parker v. State, 154 Ga. App. 668 (1) (269 SE2d 518) (1980). The proceedings were not reported, and there is no suggestion of a request for reporting. Nor were either of the alternative procedures provided for in subsections (g) and (i) of the Code section followed. The appeal presents no issue for our consideration. Id. at 669 (2).

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A92A0271.
    WARREN v. THE STATE.
    (418 SE2d 783)
   McMurray, Presiding Judge.

On June 6, 1989, defendant Warren entered his plea of guilty on two counts of violation of the Georgia Controlled Substances Act and one count of criminal use of an article with an altered identification mark. Defendant was initially placed on probation under the First Offender Act. Subsequently, defendant violated the terms of his probation and an adjudication of guilt was entered as to all three offenses. Defendant was sentenced to serve 12 months on Count 1, 10 years on Count 2, and one year on Count 3. This time to be over and above the time served on first offender probation. Defendant filed his timely application for review of the sentence on Count 2 to the Sentence Review Panel composed of three superior court judges, resulting in a reduction of sentence on Count 2, to five years, serve two years and the balance to be probated.

Pending resentencing, the State filed a motion to impose lawful sentence which contended that the sentence reduction entered by the Sentence Review Panel was void. The trial court determined that while the reduction of defendant’s sentence to five years was within the authority of the Sentence Review Panel, that it lacks authority to probate a portion of that five-year sentence. The sole enumeration of error contends that the trial court erred in changing the sentence imposed and order of the Sentence Review Panel. Held:

In Davenport v. State, 155 Ga. App. 388 (271 SE2d 34), this Court approved an extension by the Sentence Review Panel of the probation contained in the original sentence imposed by the trial court, and held that a conversion of a part of the prison sentence to probation was an appropriate means of reducing the sentence. In Davenport the terms and conditions of probation had been prescribed by the trial court pursuant to OCGA § 17-10-1 (a) and the extension of probation by the panel was made subject to those same conditions of probation.

The panel again attempted to reduce a prison sentence by partial conversion of the prison sentence to probation in the case sub judice. However, in the case sub judice, the trial court did not exercise its authority to probate a portion of defendant’s sentence, consequently, the trial court’s sentence does not specify any terms and conditions of probation which may be adopted by the panel. Since the imposition of the terms and conditions of probation is a matter for the trial judge pursuant to OCGA § 17-10-1 (a), where no such conditions have been provided by the trial court, the case is not one in which the panel may appropriately reduce a prison sentence by partial conversion of the prison sentence to probation. Therefore, Davenport must be distinguished on the facts and the sentence of five years to serve is affirmed. Nonetheless, under the particular facts and circumstances of the case sub judicé and since the sentence imposed by the trial court is inconsistent with the order of the Sentence Review Panel, defendant may seek review of this sentence within 30 days after the remittitur of this court is received in the trial court without regard to the provisions of OCGA § 17-10-6 (d) limiting him to one application for review of a sentence.

Decided May 6, 1992.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, for appellee.

Judgment affirmed.

Sognier, C. J., and Cooper, J., concur.