text:
    A00A0982.
    EWELL v. THE STATE.
    (538 SE2d 523)
   Ruffin, Judge.

Richard Ewell was cited for violating a Cherokee County ordinance by failing to provide adequate soil erosion control on a construction project. The county subsequently issued a formal accusation charging him with violating the ordinance. Ewell filed a motion to dismiss, arguing that he did not violate the ordinance because the county did not provide written notice and an opportunity to cure the violation. Following an evidentiary hearing, the trial court denied the motion to dismiss, holding that the ordinance did not necessarily require such notice. We granted Ewell’s application for interlocutory review and reverse the trial court’s ruling.

1. Initially, we note that Ewell’s motion to dismiss did not attack the validity of the accusation, but essentially asserted that the county could not prove an element of the offense. Thus, Ewell treated the motion to dismiss as if it were a motion for summary judgment in a civil case. While recognizing that “[t]here is no authority for this procedure” in a criminal case, the Supreme Court noted in Schuman v. State that “[t]here is no statutory proscription” against it, either, and that the parties could agree to such a procedure. In State v. Brannan, the State failed to object when Brannan’s attorney argued at the motion to dismiss hearing that the stipulated facts did not constitute an offense, nor did it raise the issue on appeal. The Supreme Court thus held that “the parties consented to the trial court’s determination of whether the facts stipulated to . . . were sufficient to support the charges alleged in the indictment.”

In this case, it is undisputed that no written notice or opportunity to cure was ever given, and it is clear that the parties agreed to allow the court to resolve the issue of whether Ewell could be convicted of violating the ordinance in the absence of such notice and opportunity to cure. Accordingly, we conclude that the parties consented to the use of such a procedure.

2. The accusation charged Ewell with “failure to maintain soil erosion control... by failing to trap sediment in run-off water until the disturbed area is stabilized, in violation of County Ordinance § 95-3(b)-9,” the Cherokee County Soil Erosion & Sedimentation Control Ordinance. The ordinance provides that no person shall conduct a “land-disturbing activity” without obtaining a permit from the county engineer. The application for the permit must include a soil erosion and sedimentation plan which conforms to certain minimum requirements set forth in the ordinance. The requirement at issue in this case is set forth in section 3 (b) (9), which provides that “[t]o the extent necessary, sediment in run-off water must be trapped by the use of debris basins, sediment basins, silt traps, or similar measures until the disturbed area is stabilized.”

Section 5 of the ordinance, entitled “Inspection and Enforcement,” states that the county engineer will periodically inspect sites for which permits have been issued to determine if the approved plan is being followed and if the plan measures are effective in controlling erosion and sedimentation. The section then states that

[i]f, through inspection, it is deemed that a person engaged in land-disturbing activities as defined herein has failed to comply with the approved plan, with permit conditions, or with the provisions of this ordinance, a written notice to comply shall be served upon that person. The notice shall set forth the measures necessary to achieve compliance and shall state the time within which such measures must be completed. If the person engaged in the land-disturbing activity fails to comply within the time specified, he shall be deemed in violation of this ordinance.

Section 6 (b) of the ordinance provides that, if work on a project is being done in a “dangerous or unsafe manner,” a written order may be issued, requiring the person to stop work on the project immediately and stating the conditions upon which work may be resumed. This section states, however, that “[w]here an emergency exists, no written notice shall be required.” Section 6 (c), entitled “Bond Forfeiture,” essentially repeats the notice and opportunity to cure provisions set forth in section 5 and provides that, if a person fails to comply with the provisions of the notice, “he shall be deemed in violation of this ordinance and, in addition to other penalties, shall be deemed to have forfeited his performance bond.” Section 6 (d) provides that “[a]ny person violating the provisions of this ordinance, permitting conditions, or stop-work order” shall be subject to a monetary penalty, imprisonment, or both.

The evidence, as developed at the hearing and set forth in Ewell’s brief, shows that Ewell was a job superintendent for Benning Construction Company, the general contractor for a Publix shopping center being built in Cherokee County. Benning had received a land disturbance permit from Cherokee County for the construction. On May 6, 1999, there was a heavy rainstorm at the construction site. Johnny Cantrell, a county inspector, testified that he inspected the site that day and saw soil and water “leaving the site through their driveway [,] . . . bypassing the silt fence . . . and getting into a little creek running right beside their property.” Cantrell testified that he had previously orally suggested that Ewell put “berms” across the driveway to divert water into a catch basin, although he had not ordered Ewell to do so.

Because no one was on the job site, Cantrell called Ewell’s office and got his phone number. However, he did not call Ewell because “it was way past quitting time.” The next morning, Cantrell had Ewell cited for “failure to provide adequate soil erosion control.” Cantrell testified that he did not believe he was required to give written notice “in an emergency situation.”

As the trial court correctly stated at the hearing, “it is hard to understand [from reading the ordinance] how exactly this is supposed to operate in terms of enforcement.” However, a criminal statute “must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.” Section 5 of the ordinance clearly states that, if an inspection shows that a person has “failed to comply with the approved plan, with permit conditions, or with the provisions of this ordinance, a written notice to comply shall be served upon that person,” and the notice “shall set forth the measures necessary to achieve compliance and shall state the time within which such measures must be completed.” The section then states that, “[i]f the person . . . fails to comply within the time specified, he shall be deemed in violation of this ordinance.” The clear implication is that such person is not in violation of the ordinance, thus subjecting himself to fines and imprisonment, unless and until he has failed to comply with the terms set forth in the written notice. This implication is reinforced by section 6 (c), which essentially repeats the notice and opportunity to cure provisions set forth in section 5.

Decided August 21, 2000.

Siegel & Golder, Mark L. Golder, Lynn L. Carroll, for appellant.

G. Channing Ruskell, Solicitor, for appellee.

Nothing in the ordinance contains a general exception for “emergency situations.” The only reference to an emergency is in section 6 (b), which allows the county to issue a stop work order without written notice if an emergency exists. Because Ewell is not charged with violating a stop work order, this provision is not applicable in this case. Accordingly, because it is undisputed that Ewell was not given notice and an opportunity to cure, the county cannot prove a material element of the offense, and the trial court erred in denying the motion to dismiss.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       See Schuman v. State, 264 Ga. 526 (448 SE2d 694) (1994); Jackson v. State, 208 Ga. App. 391, 392 (1) (430 SE2d 781) (1993); State v. Givens, 211 Ga. App. 71, 72 (438 SE2d 387) (1993).

       Schuman, supra.

       267 Ga. 315, 317, n. 4 (477 SE2d 575) (1996).

       Id.

       Because the county did not file an appellate brief, we accept Ewell’s statement of facts as prima facie true. See Jones v. Cooke, 169 Ga. App. 516 (1) (313 SE2d 773) (1984).

       (Punctuation omitted.) Vines v. State, 269 Ga. 438-439 (499 SE2d 630) (1998).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A1015.
    SMITH v. THE STATE.
    (538 SE2d 517)
   Ruffin, Judge.

James Edward Smith, Jr. was convicted of being a habitual violator for operating a motor vehicle after receiving notice that his license had been suspended. He appeals the denial of his motion to suppress, arguing that the traffic stop was not supported by articulable suspicion. For reasons discussed below, we reverse.

Officer Perry Foutz of the Cobb County Police Department testified that he was on patrol shortly after midnight on November 11, 1998. He said that there had been “numerous burglaries and entering automobiles” in the apartment complexes along Powers Ferry Road, and that he had been told to “step up the zone patrols of the area.” As he was checking the buildings inside the Oaks Apartments complex, he saw a car “that was stopped, and kind of pulled off to the right, and it had its brake lights on.” He testified that the vehicle was not impeding traffic, but that he did not believe it was in a parking space. He said that “[m]ost of the other vehicles were parked in parking spaces. I don’t remember seeing any others pulled over in that fashion.”

When Foutz first saw the vehicle, it was approximately 100 yards away. The complex was dimly lit, and Foutz could not tell what kind of car it was. Foutz drove toward the car, but did not activate his blue lights. When he was about 25 yards away, the car “pulled off [and] then turned right onto Powers Ferry Road.” Foutz testified that he “probably” could not tell what kind of car it was from 25 yards away. When asked to describe how the car pulled away, Foutz said “[i]t was quickly, but, I mean, he didn’t, spin his tires. It was not a, you know, slowly moving out of the area. It was a quick exit of the complex.” Foutz testified that the speed limit in the complex was 10-15 mph, and that the car did not violate any traffic laws. Foutz followed the car and stopped it on the corner of Powers Ferry Road and Delk Road. According to Foutz, the driver, Smith, “told me that he was dropping his girlfriend off, which eventually turned out to be the case.”

When asked why he stopped Smith’s vehicle, Foutz responded, “Reasonable suspicion. The time of day. The pulling off when I got behind him. The frequency of burglaries and entering autos in the complexes up and down Powers Ferry Road in the previous days and weeks.” He testified that patrolling the apartment complexes was part of his routine job, but that “when you have a rash of entering autos and burglaries you step up the zone patrol for that area.” When asked about the rash of crimes, he could not provide any specific details, stating that “[a]ll I know is I was advised at squad meetings that we had had several in the complexes up and down Powers Ferry Road, and that we were to check those.” He did not know whether there had been any incidents at the Oaks Apartments, and had not been given a description of any burglars or vehicles involved.

Foutz testified that he did not see Smith commit any traffic violations before the stop. He also provided the following testimony:

Q. Prior to stopping [Smith], did you have any specific reason, any specific reason that he had violated the law prior to you pulling him over?
A. It raised a suspicion that when I come up behind him he pulled off. Based on the time of day and the previous incidents in the area.
Q. My question is, did you have any specific reason?
A. No, I didn’t see him running out of an apartment, or anything like that.
Q. And did you have any specific reason, and I mean specific reason that he was about to violate the law when he pulled out of the complex?
A. No, I did not.

The trial court denied Smith’s motion to suppress, holding that

in light of the lateness of the hour, the reports of criminal activity in the area, the nonapparent reason for the stopped vehicle, and the abrupt departure of the vehicle as the patrol car approached, Officer Fout[z] had a reasonable articulable suspicion that Defendant was engaged in or about to engage in a criminal act.

In reviewing the grant or denial of a motion to suppress, the factual findings of the trial court will not be disturbed unless they are clearly erroneous. However, the application of the law to the facts is subject to de novo review.

An investigative stop of a vehicle “must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The officer must have “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” While the officer’s suspicion “need not meet the standard of probable cause, [it] must be more than mere caprice or a hunch or an inclination.” An “unparticularized suspicion or hunch” is insufficient to justify an investigative stop of a vehicle.

The simple fact that Smith was parked in an apartment parking lot late at night and then left the complex in the manner in which he did is clearly not sufficient to create a “particularized and objective” basis for suspecting involvement in criminal activity. This situation is similar to Attaway v. State, in which the police received reports that a car was circling around a subdivision several times late at night. An officer followed the car for a while and then stopped it as it was on a road leading out of the subdivision. We held that the stop was not supported by articulable suspicion, noting that

[n]o evidence was introduced that such activity violated any local ordinance or other applicable law, or that there was any other basis for the stop. While the police officer testified that there had been past incidents of vandalism in the area, the police received no information that Attaway had committed any such acts. Although . . . the police might have been justified in closely observing Attaway’s actions, his behavior did not provide a particularized and objective basis for suspecting him of criminal activity sufficient to justify an investigatory stop.

In State v. Winnie, an officer saw a truck pull into the parking lot of a closed business at 4:00 in the morning. When the officer pulled in to investigate, the truck started to pull away, and the officer stopped it. We held that, although the officer might have suspected a potential burglary when the truck pulled into the closed business, the basis for such a suspicion disappeared when the truck began to leave. We upheld the trial court’s determination that there was no evidence of flight, noting that the officer did not testify that the driver appeared to see the police vehicle.

The State contends that Smith’s “sudden” departure from the complex constituted “unprovoked flight,” thus justifying an investigative stop. It relies primarily upon the U. S. Supreme Court’s recent decision in Illinois v. Wardlaw, In that case, a four-car police caravan was converging on an area known for heavy drug activity, and the officers “anticipated encountering a large number of people in the area, including drug customers and individuals serving as lookouts.” An officer in the last car saw the defendant standing next to a building holding an opaque bag. The defendant looked in the direction of the officers and then began to flee. The officers followed him as he ran through a gangway and an alley, and eventually cornered him on the street, where they discovered a gun in the bag he was carrying.

The Supreme Court stated that “[a]n individual’s presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime.” However, the Court noted that

it was not merely [the defendant’s] presence in an area of heavy narcotics trafficking that aroused the officers’ suspicion but his unprovoked flight upon noticing the police. Our cases also have recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. Headlong flight — wherever it occurs — is the consummate act of evasion: it is not necessarily indicative of wrongdoing, but it [may be] suggestive of such. . . . Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.

The Court concluded that the police were justified in suspecting that the defendant was involved in criminal activity.

The State also relies on two Georgia cases holding that a defendant’s flight justified a police stop. In Harris v. State, police officers were patrolling a “known drug area.” The defendant and several other individuals saw the patrol car and then began running. One of the officers testified that, in his experience, when the police patrol “high drug areas,” individuals with drugs on their persons usually run upon the arrival of the police. We held that “[the defendant’s] flight after observing the police car gave the officers sufficient articulable suspicion to conduct a Terry ‘stop and frisk.’ ”

In State v. Savage, a police officer was on foot patrol around 2:00 a.m. in a “known drug area.” The officer saw a truck drive through the area several times in a 15-minute period, and then pull over to the curb and stop. A pedestrian approached the vehicle, spoke with the driver (the defendant), and “made a gesture which alerted defendant to the officer’s presence.” The defendant then “drove away after being alerted to the presence of” the officer, and was stopped by another officer. We reversed the grant of the defendant’s motion to suppress, stating that the

defendant’s actions of bringing to a halt what had been transpiring between him and the person with whom he was engaged, and distancing himself from that person and from the police when alerted to the latter’s presence, was an objective manifestation of guilt. There is no significant distinction between the facts in the case sub judice and those in other cases wherein we have held that flight upon the approach of patrolling police officers in high crime areas provided articulable suspicion for a Terry stop.

The present case is distinguishable from each of the above cases in several respects. First, although Foutz had been told that there had been “several” burglaries and automobile break-ins at nearby apartment complexes, the evidence does not show that the Oaks Apartments was a “high crime area” in the sense contemplated by Wardlaw and the Georgia cases — i.e., an area where the police could anticipate finding ongoing criminal activity. As Foutz testified, patrolling the apartments along Powers Ferry Road was part of his routine duties, although such patrols had been “stepped up” due to recent incidents. There is no evidence that Foutz had any particular reason to suspect ongoing criminal activity at the apartment complex on the night in question.

Moreover, unlike in the above cases, there was no evidence that Smith even noticed Foutz’s patrol car before leaving the complex. Foutz testified that the parking lot was dimly lit, and he could not identify Smith’s car at a distance of 25 yards. Foutz did not activate his blue lights, and did not claim that Smith pulled away because he saw the patrol car. Although Foutz characterized Smith’s departure as “a quick exit of the complex,” he testified that the speed limit in the complex was 10-15 mph and that Smith did not violate any traffic laws. Thus, Smith’s departure was not the kind of “headlong flight” from a “high crime area” after noticing the police that occurred in Wardlaw and the other cases.

If Foutz had had a more particularized reason to be suspicious of Smith’s car before it pulled away, Smith’s departure might have been a relevant factor in causing Foutz to suspect involvement in criminal activity. However, it is not illegal, nor even particularly suspicious, for a vehicle to be stopped briefly in the parking lot of a large apartment complex around midnight. Such conduct is at least as consistent with what was in fact transpiring — i.e., Smith dropping off his girlfriend — as with anything sinister. Foutz did not claim that the vehicle had been parked for an inordinately long time, and in fact only observed the vehicle for about 15 seconds. He saw nothing during those 15 seconds to indicate any kind of ongoing criminal activity, and admitted that he had no “specific reason” to think that Smith had broken or was about to break the law. Given the lack of any particular reason to be suspicious of the parked car in the first place, the fact that it pulled away was insufficient for the officer to conclude that the driver was in headlong flight, particularly in the absence of any evidence that the driver even noticed the patrol car.

Decided August 21, 2000.

Steven A. Cook, for appellant.

Patrick H. Head, District Attorney, Laura J. Murphree, Maria B. Golick, Dana J. Norman, Assistant District Attorneys, for appellee.

In short, the evidence shows that Officer Foutz did not have a “particularized and objective” reason for believing that Smith was involved in criminal activity. Rather, Foutz’s decision to stop the vehicle was based simply on an “unparticularized suspicion or hunch,” which is not sufficient to justify an investigative stop. Accordingly, the trial court erred in denying Smith’s motion to suppress.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       See Lambropoulous v. State, 234 Ga. App. 625 (507 SE2d 225) (1998).

       See State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

       (Punctuation omitted.) Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998).

       (Punctuation omitted.) Id. at 260.

       (Punctuation omitted.) Jorgensen v. State, 207 Ga. App. 545, 546 (428 SE2d 440) (1993).

       (Punctuation omitted.) Id. See also Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 20 LE2d 889) (1968).

       236 Ga. App. 307 (511 SE2d 635) (1999).

       (Citation and punctuation omitted.) Id. at 309.

       Supra.

       Id. at 230-231

       528 U. S. 119 (120 SC 673, 145 LE2d 570) (2000).

       Id., 120 SC at 676.

       Id.

       (Citations omitted.) Id.

       205 Ga. App. 813, 814 (1) (423 SE2d 723) (1992).

       Id.

       211 Ga. App. 512 (439 SE2d 738) (1993).

       Id.

       Id.

       Id. at 513.

       See Jorgensen, supra.


author: Andrews, Presiding Judge.

text:
    A00A1060.
    GRIFFETH v. GRIFFIN et al.
    (538 SE2d 521)
   Andrews, Presiding Judge.

The sole issue before us in this appeal is whether the superior court erred in approving and adopting a special master’s order denying as untimely defendant William Griffeth, Jr.’s demand for a jury trial. Because Griffeth demanded the jury trial after the start of the hearing in front of the special master, we conclude that the demand was untimely and affirm.

This case arose when the five plaintiffs filed a petition to quiet title and for declaratory judgment against Griffeth and all the world. The case came on for a hearing before a special master on August 16, 1999, approximately 18 months after the petition was filed. After the special master called the case, defendant Griffeth’s counsel requested a “pre-trial conference” during which he asked that the record be kept open so his client could hire a surveyor to do a survey of the property in question. The special master denied the request, and Griffeth’s counsel then demanded a jury trial.

Plaintiffs’ counsel responded to the demand by stating that his clients were from out of state and it had been agreed that a jury demand would not be made at the last moment and that a special master would hear the case. The special master rejected Griffeth’s demand, determining that they had already commenced the proceedings when the demand was made and, therefore, it was untimely.

Decided August 21, 2000.

James C. Hill, for appellant.

Lee R. Taylor, for appellees.

After hearing the evidence, the special master found for the plaintiffs, and these findings were adopted and made a final order of the superior court. This appeal followed.

In his only enumeration of error, Griffeth argues that the demand for jury trial was made before the special master heard the case and, therefore, it was timely. Griffeth relies on Thornton v. Reb Properties, 237 Ga. 59 (226 SE2d 741) (1976), in which the appellants filed a demand for jury trial after the special master had heard the case and the superior court had entered a final judgment. The court held that if no demand for a jury trial is filed before the case is heard by the special master, the demand is untimely. Id. at 59-60.

Here, citing to Thornton, supra, Griffeth argues that because the special master had not “heard” the case when he made his demand for a jury trial, the demand was timely. We disagree.

OCGA § 23-3-66 provides that “the special master shall have complete jurisdiction within the scope of the pleadings to ascertain and determine the validity, nature, or extent of petitioner’s title and all other interests in the land, or any part thereof. ...” It also provides that any party to the proceeding may demand a trial by jury. OCGA § 23-3-66. The purpose behind the special master statute was to create “an efficient, speedy and effective means of adjudicating disputed title claims. . . .” Heath v. Stinson, 238 Ga. 364, 365 (233 SE2d 178) (1977). In this case, the parties agreed to have the case heard by a special master; the parties appeared, and the special master called the case, listened to argument on a motion and ruled on the motion before Griffeth made his demand.

The demand was untimely. To hold otherwise would not be in the interest of judicial economy and would be contrary to the underlying policy behind the statute — that of providing an efficient, speedy and effective means to settle these disputes.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A1303.
    SELLERS v. THE STATE.
    (538 SE2d 511)
   Ruffin, Judge.

Audrey Sellers was convicted of voluntary manslaughter in connection with the stabbing death of Johnny Mitchell. She appeals, contending that the evidence was insufficient to support the verdict and that the trial court erred in charging the jury. For reasons discussed below, we affirm.

1. Viewed in the light most favorable to the verdict, the evidence was as follows. On November 27,1994, Sellers was visiting a rooming house in Fulton County, at which Mitchell and several others resided. One of the residents, Cindy Williams, testified that Sellers, who had moved out of the rooming house a few weeks earlier, was drunk when she arrived. At one point, Sellers and Mitchell began arguing while in the kitchen. According to Williams, Mitchell told Sellers she would have to leave, and Sellers “got up and was dancing around [Mitchell] and just hollering you can’t kick me out of here, just, you know, a laugh, and swatting at his head with her hand.” Williams said that Mitchell then “went towards [Sellers] and started choking her.” Some other individuals pulled Mitchell away and held him on the floor, and Sellers walked up and kicked him in the groin. The fight then broke up, and Mitchell returned to his room.

Later, Williams heard Sellers and Mitchell arguing again. Williams and her husband, Cas, went to the kitchen and saw Mitchell choking Sellers. Cas and Kenny Mitchell pulled Johnny Mitchell away from Sellers, and Johnny Mitchell then left the kitchen. After several minutes, Sellers said, “I’m going to kill him,” and went to the kitchen sink and grabbed a butcher knife. As Sellers started to walk out of the kitchen, Williams “jumped in front of her,” went into the hallway where Mitchell was standing, pushed him away, and then ran upstairs to her room.

Kenny Mitchell testified that, after Sellers picked up the knife, he grabbed her by her wrists and asked her what she was going to do. Sellers said, “I’m going to kill him,” and broke away from Kenny’s grip. “At that point,” said Kenny, “everything just happened really fast.” Sellers went around Kenny into the hallway, and by the time Kenny turned around Sellers had stabbed Johnny Mitchell. Kenny testified that he saw Sellers drop the knife. Kenny and Cindy Williams, who had come back downstairs, testified that Sellers stood over Mitchell’s body telling him to get up.

Cas Williams testified that he had been in the hallway with Mitchell for several minutes before Sellers grabbed the knife and said that she was going to “kill him.” He testified that Sellers walked toward Mitchell, and that Cindy Williams tried to push Mitchell out of the way. Cas tried unsuccessfully to grab Sellers’ arm and saw her stab Mitchell.

Sellers testified that, while Mitchell was choking her the second time, he threatened to kill her for kicking him in the groin. She testified that, after Mitchell was pulled away from her, she heard him say that he was “going to get his gun and blow my brains out.” She said that “I heard [Mitchell] coming, and I seen the knife, and I grabbed the knife, and Kenny grabbed me. I thought he grabbed the knife because I turned to run and I ran into [Mitchell].” She claimed that she was trying to run out of the house when she ran into Mitchell. She said that he “staggered back and bumped his head on the wall and kind of slid down,” and that she thought she must have “pushed him too hard.” She claimed that she did not realize she was still holding the knife because she thought Kenny had taken it from her. She denied saying that she was going to kill Mitchell, claiming that she actually said “he’s killing me.”

Sellers argues on appeal that the evidence was insufficient because it “authorized a finding that [she] was acting to defend herself and in so doing accidentally stabbed Mr. Mitchell.” However, the question is not whether the evidence would authorize the jury to acquit Sellers, but whether there was sufficient evidence to support a guilty verdict. There was testimony from several witnesses that the confrontation between Sellers and Mitchell had ended several minutes before the stabbing, that Sellers picked up a knife and stated that she was going to kill Mitchell, and that she then walked up to Mitchell and deliberately stabbed him. This evidence was sufficient for the jury to find that Sellers was guilty of voluntary manslaughter.

2. Sellers requested that the trial court instruct the jury on the defenses of accident and self-defense. The court did so, and also gave the following instruction:

Now, ladies and gentlemen, the defense of accident and the defense of justification for self-defense are inconsistent defenses because, accident, as I have charged you, is without intent, it is without the intent to do the act which takes place, so if you find that there is no intent, and you find that the elements of accident are present, then you would be authorized to consider that as a defense to all of the different counts in this indictment. If you find that there is intent present, then you would reject the defense of accident, and you would consider in determining as a defense to the three counts of the indictment the defense of self-defense or justification.

On appeal, Sellers contends that the trial court erred in instructing the jury that the defenses of accident and self-defense are inconsistent.

Sellers relies largely on the Supreme Court’s decision in Turner v. State. In that case, the Supreme Court held that “[generally, either accident or self defense will be involved in a case, but not both.” However, the Court noted that there will occasionally be a case where “a party who is armed with a weapon contends that while he was defending himself from another party, his weapon accidentally discharged and killed that other party.” In such a case, the Court stated that a charge on accident would be warranted in addition to a charge on self-defense. The Court stated that

[t]here is no hard and fast rule, in a homicide case, that the law of accident and of self defense are always “mutually exclusive.” Whether both are involved is initially a question of law for the trial court. Where the court finds evidence of the involvement of both, and there has been a timely request for instruction as to both, the court should charge the jury as to both. The defendant should not be forced to elect between the two.

Sellers argues that, given the holding in Turner, the trial court’s instruction that the two defenses were inconsistent was error. The issue in this case, however, is different from that in Turner. In Turner, the issue was whether the defendant should be forced to choose which defense the jury would be instructed on or whether he was entitled to an instruction on both defenses. In this case, by contrast, the trial court instructed the jury on both defenses — the question is whether it was error to state that the two defenses were inconsistent.

The simple fact that the evidence would support a charge on two different defenses does not mean that the defenses are not mutually exclusive. In Koritta v. State, the Supreme Court noted that “ ‘mutually exclusive’ or ‘inconsistent’ defenses are presented to the jury when there is evidence to support both.” The Court held that, because the evidence in that case would “support a finding that the shooting was either accidental or justified,” it was for the jury to “determine the truth from among the conflicting available inferences.” Thus, the Court recognized that, even though two defenses may be mutually exclusive, the evidence might support a charge on both, requiring the jury to determine which, if either, of the defenses is applicable.

Decided August 21, 2000.

Elaine T. McGruder, for appellant.

Under the facts of the case, the trial court’s instruction that the two defenses were inconsistent was not erroneous. Sellers’ accident defense was not based on a claim that she accidentally stabbed Mitchell while struggling with him in self-defense. Rather, it was based on her claim that she did not realize she was holding a knife, and that Mitchell accidentally impaled himself on the blade when she bumped into him while trying to run out of the room. She did not claim that she intended to use any force whatsoever on Mitchell in self-defense. Thus, if the jury accepted Sellers’ accident defense, it could not have also determined that she stabbed him in self-defense.

In any event, any error in instructing the jury that the two defenses were inconsistent was harmless, since the jury necessarily rejected both defenses in convicting Sellers of voluntary manslaughter. Sellers does not deny that the trial court properly charged the jury as to what constituted accident and self-defense. The court properly charged the jury that it was the State’s burden to prove beyond a reasonable doubt that the defendant possessed the requisite criminal intent and did not act in self-defense. By convicting Sellers of voluntary manslaughter, the jury necessarily rejected the defenses of accident and self-defense.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Bettieanne C. Hart, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Paula K. Smith, Senior Assistant Attorney General, Wylencia H. Monroe, Assistant Attorney General, for appellee.

       Kenny Mitchell, who is no relation to Johnny Mitchell, is referred to as “Kenny Mitchell” or “Kenny” in this opinion. Any reference to “Mitchell” refers to Johnny Mitchell.

       See Inglett v. State, 239 Ga. App. 524, 527 (6) (521 SE2d 241) (1999) (“verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”).

        See Evans v. State, 225 Ga. App. 589-590 (1) (484 SE2d 320) (1997); Pryor v. State, 198 Ga. App. 588 (1) (402 SE2d 338) (1991).

       262 Ga. 359 (418 SE2d 52) (1992).

       Id. at 360 (2) (b).

       Id.

       (Footnote omitted.) Id. at 361 (2) (c).

       263 Ga. 703, 705, n. 2 (438 SE2d 68) (1994).

       (Emphasis supplied.) Id. at 705.

       See Johnson v. State, 236 Ga. App. 61, 64 (2) (510 SE2d 918) (1999); McDade v. State, 270 Ga. 654, 657 (5) (513 SE2d 733) (1999); Bennett v. State, 265 Ga. 38, 39 (1) (453 SE2d 458) (1995). Sellers states in her brief that the instruction “implicated appellant’s credibility and cast upon the jury a negative impression of appellant which caused them to entirely discount her defense.” Nothing in the charge, however, implicated Sellers’ credibility or suggested that either of the asserted defenses was meritless. The charge simply informed the jury that it could accept either of the defenses, but not both.


text:
    A00A1418.
    HTL Sp. Z O.O. v. NISSHO CORPORATION.
    (538 SE2d 525)
   Andrews, Presiding Judge.

HTL Sp. Z O.O. (HTL) sued Nissho Corporation (Nissho) and Gainor Medical U.S.A., Inc. (Gainor) in Henry County for breach of a distribution contract. The trial court granted Nissho’s motion to dismiss in which Nissho claimed that, as a nonresident corporation, it was not subject to personal jurisdiction in Georgia under Georgia’s long-arm statute. We reverse the trial court because the record shows that Nissho transacted business in Georgia related to the suit at issue and had sufficient minimum contacts with the State to justify the exercise of personal jurisdiction under the long-arm statute, OCGA § 9-10-91 (1).

Nissho, a nonresident corporation located in Japan, entered into a distribution contract with HTL, a limited liability company located in Poland, and with Gainor, a corporation located in McDonough, Georgia. Under the contract HTL agreed to manufacture large quantities of a medical device it invented used to draw human blood for testing, and Nissho and Gainor agreed to purchase certain minimum quantities of the device from HTL for resale and were granted exclusive rights to sell the device worldwide. The contract provided that Georgia law would govern any disputes. The suit by HTL brought in Henry County Superior Court alleged that Nissho and Gainor breached the contract by failing to purchase the agreed minimum amounts of the device and by failing to use sufficient efforts to sell the device.

In support of its motion to dismiss, Nissho provided an affidavit from a Nissho representative stating that it did not sell any of the devices in Georgia or elsewhere, that none of its agents or employees went to Georgia for the purpose of negotiating or executing the contract, and that Nissho has no offices, property, or employees in Georgia. According to the Nissho representative, Nissho served only as a financing source for Gainor and issued letters of credit to ensure payment for the devices shipped by HTL to Gainor. In opposition to the motion, HTL produced an affidavit and supporting evidence showing that Nissho sent a representative to Georgia to discuss resolution of the contract dispute, that Nissho communicated with Gainor in Georgia about the contract, and that pursuant to the contract Nissho purchased large quantities of the device from HTL and then, based on purchase orders from Gainor, resold the devices to Gainor in Georgia for a profit.

Nissho had the burden of proving that there was a lack of personal jurisdiction, and any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction. ETS Payphone v. TK Indus., 236 Ga. App. 713-714 (513 SE2d 257) (1999); SES Indus. v. Intertrade Packaging Machinery Corp., 236 Ga. App. 418 (512 SE2d 316) (1999). In determining whether the facts establish that a nonresident corporate defendant is subject to personal jurisdiction under the Georgia long-arm statute on the basis of transacting business in the State, “the constitutional touchstone remains whether the defendant purposefully established ‘minimum contacts’ in the forum State.” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 474 (105 SC 2174, 85 LE2d 528) (1985). The Georgia long-arm statute confers personal jurisdiction over nonresidents to the maximum extent permitted by due process. First United Bank of Miss. v. First Nat. Bank of Atlanta, 255 Ga. 505, 508 (340 SE2d 597) (1986). Under this test,

[d]ue process requires that [the defendant] have “fair warning that a particular activity may subject them to the jurisdiction of a foreign sovereign.” Burger King, [supra]. In evaluating whether a defendant could reasonably expect to be haled into court in a particular forum, courts examine defendant’s contacts with the state, focusing on whether (1) defendant has done some act to avail himself of the law of the forum state; (2) the claim is related to those acts; and (3) the exercise of jurisdiction is reasonable, that is, it does not violate notions of fair play and substantial justice. [Cits.] These three elements do not constitute a due process formula, but are helpful analytical tools which ensure that a defendant is not forced to litigate in a jurisdiction solely as a result of “random,” “fortuitous” or “attenuated” contacts. Burger King, supra at 475.

Decided August 21, 2000

Alston & Bird, Richard R. Hays, Charles E. Young, Jr., Smith, Welch & Brittain, A. J. Welch, Jr., E. Gilmore Maxwell, for appellant.

Crumbley & Crumbley, R. Alex Crumbley, King & Spalding, Michael R. Smith, Dan S. McDevitt, for appellee.

Beasley v. Beasley, 260 Ga. 419, 421 (396 SE2d 222) (1990).

Applying these principles, we have concluded that, standing alone, a nonresident’s telephone or mail contact in Georgia, or even a nonresident’s visits to Georgia, is generally insufficient to show the minimum contacts with the State necessary to establish personal jurisdiction. Wise v. State Bd. &c. of Architects, 247 Ga. 206, 209-210 (274 SE2d 544) (1981); Mayacamas Corp. v. Gulfstream Aerospace Corp., 190 Ga. App. 892, 893 (380 SE2d 303) (1989). Likewise, a contractual provision choosing to apply Georgia law to resolve disputes under a contract is not sufficient, standing alone, to subject a party to the contract to personal jurisdiction under the Georgia long-arm statute. Apparel Resources Intl. v. Amersig Southeast, 215 Ga. App. 483, 485 (451 SE2d 113) (1994). In the present case, however, when the disputed facts are construed in favor of HTL, there was additional evidence that, based on purchase orders from Gainor, Nissho resold large quantities of the HTL-manufactured device to Gainor in Georgia. This was purposeful activity by Nissho in Georgia related either directly or indirectly to the subject of the suit. Davis Metals v. Allen, 230 Ga. 623, 625-626 (198 SE2d 285) (1973); Booksing v. Holley, 210 Ga. App. 869, 871 (437 SE2d 857) (1993). The evidence was sufficient to show “minimum contacts” by Nissho with Georgia so that the exercise of personal jurisdiction under OCGA § 9-10-91 (1) on the basis of transacting business within the State comports with due process and does not offend traditional notions of fair play and substantial justice. Id.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       Although the parties also agreed under the contract that any legal proceedings would be brought in the U. S. District Court in Atlanta, it is undisputed that HTL cannot sue Nissho in the U. S. District Court because, as foreign corporations, HTL and Nissho are not “diverse” for purposes of federal diversity jurisdiction. 28 USC § 1332 (a) (2); Cabalceta v. Standard Fruit Co., 883 F2d 1553, 1557 (11th Cir. 1989). Moreover, the consent of the parties cannot expand the subject matter jurisdiction of the federal courts. American Fire &c. Co. v. Finn, 341 U. S. 6, 18, n. 17 (71 SC 534, 95 LE 702) (1951).


text:
    A00A1670.
    LUMPKIN v. THE STATE.
    (538 SE2d 514)
   Ruffin, Judge.

A jury found Christopher Lumpkin guilty of trafficking in cocaine. Lumpkin appeals, arguing that the trial court erred by failing to charge the jury on the lesser included offense of possession of cocaine with intent to distribute. We agree and reverse.

The relevant facts, taken in the light most favorable to the jury verdict, are as follows. While on routine patrol, Police Officers William Gibson and Robert Frey approached a group of four or five people, including Lumpkin, in a parking lot. Frey saw Lumpkin turn and walk toward a pile of lumber with a clear plastic bag in his hand. Lumpkin placed the bag on the pile. Frey then searched the pile and found a ziplock bag containing four smaller bags, three of which contained a “chunky, off-white brownish substance” and one of which contained “a whiter powder.” Frey field-tested the substances to determine whether they were cocaine, and then gave them to a police investigator who sent them to the State Crime Lab for analysis. There, chemist Sandra Butrum analyzed the substances and determined that they contained cocaine and that their total weight was 28.0 grams. Lumpkin was indicted for trafficking in cocaine. The indictment alleged that Lumpkin did “knowingly possess and have under his control 28 grams of cocaine.”

Lumpkin submitted to the trial court written requests to charge, including a charge on the offense of possession of cocaine with intent to distribute. The State objected to that charge, and the trial court refused to give it. On appeal, Lumpkin argues that the charge should have been given because possession with intent to distribute cocaine is a lesser included offense of trafficking in cocaine and there was evidence that Lumpkin committed the lesser included offense.

“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” Under OCGA § 16-13-31 (a) (1), a person who knowingly possesses twenty-eight grams or more of cocaine or any mixture with a purity of ten percent or more of cocaine commits the offense of trafficking in cocaine. Under OCGA § 16-13-30 (a), a person who knowingly possesses any amount of cocaine or any mixture with a purity of ten percent or more of cocaine commits the offense of possession of cocaine. We have held that where an indictment alleges that the defendant committed the offense of trafficking in cocaine by possessing more than 28 grams of cocaine, simple possession is a “lesser offense included as a matter of fact in the greater indicted offense of trafficking by possessing more than 28 grams of cocaine.” Thus, the trial court erred by failing to charge the jury on simple possession.

Charging errors are presumed to be harmful. Reversal is not required, however, if “it is highly probable that the failure to give [a charge on a lesser included offense] did not contribute to the verdict.” On the facts of this case, we cannot say that the failure to give the simple possession charge was harmless error.

The State’s forensic expert, Butrum, testified that the amount of cocaine in the ziplock bag was 28.0 grams, which is exactly the statutory minimum amount for the offense of trafficking. Thus, if the jury did not believe that Butrum’s testimony showed beyond a reasonable doubt that the amount of cocaine was 28.0 grams, it could have found Lumpkin guilty of the lesser possession charge. On cross-examination, Lumpkin’s attorney sought to cast doubt upon the validity of Butrum’s measurement. In addition, Frey testified as follows on cross-examination:

Q: [W]hat did you do with [the substance]?
A: Well, I field tested it.
Q: And you didn’t charge my client with trafficking in cocaine, did you?
A: I charged him at that time with possession.
Q: Okay, and you all have scales, I’m sure, don’t you?
A: Well, they’re not — not certified and don’t meet all the — you know, the requirements for testing and stuff that the crime lab has, and . . . we’d just wait for the weight to get back.
Q: Okay, but you have scales?
A: Yes sir.
Q: And you would’ve — if it had weighed over twenty-eight grams, you would’ve charged trafficking, would you not?
A: If it was close.
Q: You would have charged it.
A: Yes sir, yes sir.

From this testimony, the jury could have inferred that Frey weighed the cocaine and found it to be less than 28 grams. Accordingly, there was evidence — however slight — that Lumpkin was guilty of simple possession rather than trafficking.

Decided August 21, 2000.

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, Leon Jourolmon, Assistant District Attorney, for appellee.

“[S]ince this court does not weigh the credibility of witnesses, we cannot conclude that the failure to allow the jury to consider a lesser included offense was harmless error,” particularly since the amount of cocaine alleged in the indictment was precisely the threshold for trafficking and the accuracy of the weight measurement was critical. We therefore reverse.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       Butrum testified that there were two different substances and that one substance was fifty-four percent cocaine and the other was thirty-four percent cocaine.

       The State argues that Lumpkin may not complain of the trial court’s failure to give one of his requested charges because the record does not contain a copy of Lumpkin’s requests to charge. See Carter v. State, 263 Ga. 401, 403 (4) (435 SE2d 42) (1993) (where record did not contain copy of requested charge, court could not determine legal accuracy of charge). But the record shows that Lumpkin’s requested charges were pattern charges, and their content is not in dispute. Moreover, the prosecutor objected to the simple possession charge not because it was legally inaccurate, but on the ground that it did not apply to the case.

        Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994).

       See Howard v. State, 220 Ga. App. 579, 583 (2) (469 SE2d 746) (1996).

         Id.; see also Adorno v. State, 236 Ga. App. 588, 592 (4) (512 SE2d 703) (1999); Cook v. State, 226 Ga. App. 113, 115 (2) (485 SE2d 595) (1997).

       See Adorno, supra.

        Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988).

        Edwards, supra.

        Pearson v. State, 216 Ga. App. 333, 334 (454 SE2d 205) (1995).

       In light of this decision, we need not consider Lumpkin’s other enumeration of error.


author: Ellington, Judge.

text:
    A00A1075.
    CALDWELL v. THE STATE.
    (538 SE2d 531)
   Ellington, Judge.

A jury found Walter Caldwell guilty of false imprisonment, OCGA § 16-5-41, and aggravated assault, OCGA § 16-5-21. Caldwell appeals from the order denying his motion for new trial, challenging the admission of certain evidence, the prosecutor’s closing argument, a jury charge, and the effectiveness of his trial counsel. Finding no reversible error, we affirm.

The evidence shows that Caldwell and the victim lived together in a romantic relationship for about six years. The victim testified that on July 5, 1997, she and Caldwell had been drinking beer and brandy. Around 11:00 that evening, Caldwell began beating the victim with a pole and choking her. Caldwell attacked the victim because she refused his request for oral sex. Caldwell accused her of engaging in sexual acts with her children. When the victim denied such conduct, Caldwell hit her. Caldwell told her to follow him into the bathroom. The victim testified that when she complied, Caldwell struck her eye with a drinking glass and threatened to kill her. She testified that Caldwell then ran water in the bathtub, forced her to remove her clothing, and directed her to get into the bathtub. The victim said that Caldwell accused her of having sex with his brother and his nephew. When she denied the accusations, Caldwell stabbed her left arm and hands with a pair of scissors and scraped her skin off with a razor. Caldwell confined the victim in the bathroom throughout the night and continued to beat her and torment her with questions about her sexual past. The victim’s son testified that he woke up that morning to his mother’s screams and ran to a neighbor’s home to call the police.

When the police arrived at Caldwell’s home, Caldwell greeted them with a drinking glass in his hand. He smelled of an alcoholic beverage. He invited the police inside and told them that he was glad that they there because he had been trying to convince the victim to call the police because she was trying to hurt herself. Caldwell led the police to the bathroom, where they found the victim, badly beaten and covered with blood. The bathroom was also spattered with blood.

Caldwell, who took the stand in his own defense, denied requesting oral sex from the victim and denied confining her to the bathroom and assaulting her in any way. He testified that her wounds were self-inflicted and that she no longer wanted to live because she believed that he did not love her anymore.

1. Caldwell contends that the trial court erred in admitting similar transaction evidence. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

The State presented the testimony of Caldwell’s daughter, who was 16 years old at the time of the trial. She testified that her mother and Caldwell had divorced when she was very young and that when she visited her father, she generally slept in his bedroom. She stated that on one of those occasions, when she was about 13 years old, Caldwell woke her up and demanded oral sex. She testified that when she refused, Caldwell kicked her, causing her to fall off the bed. Caldwell contends that the trial court erred in admitting the evidence because its probative value was substantially outweighed by the danger of unfair prejudice. He urges that the trial court erred in allowing the evidence without requiring the State to refrain from informing the jury that the alleged victim was his daughter.

At the pre-trial hearing, pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), the State argued that both cases involved a domestic situation in which Caldwell demanded sexual favors then assaulted the victims when they refused. The trial court tentatively concluded that the three Williams factors were met and ruled that the evidence would be permitted, subject to the daughter’s testifying in a proffer before the trial court. During trial, the court heard the daughter’s testimony outside the presence of the jury and affirmed its earlier determination that the evidence was admissible. During the prosecutor’s opening statement, during the daughter’s testimony, and again in its jury charge, the trial court instructed the jurors that they were “strictly limited in [their] consideration of the evidence” to the identity and state of mind of the defendant.

Here, because the evidence focused on Caldwell’s state of mind when denied a sexual favor, it would tend to prove whether he or the victim had inflicted the victim’s wounds.

In cases of domestic violence, prior incidents of abuse against family members or sexual partners are more generally permitted because there is a logical connection between violent acts against two different persons with whom the accused had a similar emotional or intimate attachment. A prior act can show the accused’s attitude or mindset (i.e., his bent of mind) as to how children or sexual partners should be treated or “disciplined.” A prior act can also show his actual course of conduct in reacting to disappointment or anger in such a relationship, evidencing a pattern.

(Footnotes omitted.) Smith v. State, 232 Ga. App. 290, 295 (1) (501 SE2d 523) (1998). The nature of the two offenses and the circumstances surrounding their commission were sufficiently similar that the relevance of the similar transaction to show Caldwell’s state of mind outweighed any prejudice. See also Malcolm v. State, 263 Ga. 369, 370 (2) (434 SE2d 479) (1993). We find no abuse of discretion.

2. During closing argument, the prosecutor stated: “I ask that you do not victimize [the victim] and [Caldwell’s daughter] again. They have been through enough. Let them have their day in court, let them see justice done. Convict Walter Caldwell for what he did to these women. Thank you.” Caldwell contends that these statements were improper and that the statements denied him a fair trial.

Caldwell concedes that there was no objection to the prosecutor’s argument. His failure to object waived his right to challenge any impropriety of the argument on appeal. Mullins v. State, 270 Ga. 450-451 (2) (511 SE2d 165); Harley v. State, 263 Ga. 875, 878 (5) (440 SE2d 178) (1994). Further, his argument that the trial court erred by failing to declare a mistrial sua sponte or to admonish the prosecutor is also unavailing. Mullins v. State, 270 Ga. at 451 (2); Lenear v. State, 239 Ga. 617, 621 (16) (238 SE2d 407) (1977).

3. Caldwell contends that the trial court erred in submitting partial written jury instructions to the jury before it started deliberations. The record shows that a juror asked, “Will we have copies of the medical police reports and a definition for aggravated assault, battery, et cetera?” Subsequently, the trial court provided the jury with 12 copies of the portion of the charge regarding aggravated assault, lesser included offenses, and battery.

When the jury requests a recharge on a portion of the charge, it is within the trial court’s discretion whether to do so orally or in writing. Jordan v. State, 207 Ga. App. 710, 712-713 (2) (429 SE2d 97) (1993); see also Elrod v. State, 222 Ga. App. 704, 708 (4) (475 SE2d 710) (1996) (trial court did not abuse its discretion where it gave partial written instructions to the jury after deliberations began). Caldwell has failed to show that the trial court abused its discretion by providing the jury, before deliberations began, with partial written jury instructions in response to its question.

4. Caldwell contends that the trial court erred by permitting a witness to offer her expert opinion on what he claims was the ultimate issue in the case and a matter within the ken of the ordinary juror.

The State presented the testimony of one of the responding officers, who had also been a paramedic from 1989 to 1996 and who had received training on trauma, suicidal behavior, and determining whether injuries were self-inflicted. She testified that when she arrived at Caldwell’s home, she found “multiple lacerations, some deep puncture wounds, and some contusion throughout [the victim’s] body.” She stated that,

the victim had two lacerations on the left cheek, she had a penetrating wound to the right and left palm of her hands. She also had lacerations to her left forearm, multiple lacerations on her left forearm, she had contusion swelling noted to her right arm and left shoulder, she had other lacerations noted on her right forearm.

Photographs of some of the wounds were also admitted into evidence. After the trial court admitted the officer as an expert, the officer opined that the victim’s injuries were characteristic of “defensive” wounds.

[E]xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which the jurors would not ordinarily be able to draw for themselves; i.e., the conclusion is beyond the ken of the average layman.

(Punctuation omitted.) State v. Butler, 256 Ga. 448, 450 (2) (349 SE2d 684) (1986). In this case, it was permissible for the officer to testily about her observations of the victim’s wounds, to make an inference based on her training and on her observations of the wounds, and to opine that the victim’s wounds were consistent with “defensive” ones, a conclusion that is beyond the ken of the average layman. See generally Coleman v. State, 257 Ga. 313, 314 (1) (357 SE2d 566) (1987). We find no abuse of discretion in admitting the testimony.

5. Finally, Caldwell contends that he was denied effective assistance of trial counsel. To establish ineffectiveness, an appellant must show that (1) counsel’s performance was deficient, and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Etheridge v. State, 228 Ga. App. 788, 789 (2) (492 SE2d 755) (1997). We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). Further, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. Kelly v. State, 238 Ga. App. 691, 694 (2) (520 SE2d 32) (1999). To rebut this presumption, appellant must show that counsel’s representation fell below an objective standard of reasonableness. Id. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard. Id.

(a) Caldwell complains that trial counsel was ineffective by failing (1) to urge the court to “sanitize” the similar transaction evidence by requiring the State to refrain from advising the jury that the victim of the similar transaction was his daughter, or alternatively, (2) to enter into a stipulation with the State on the similar transaction evidence. Our ruling in Division 1 renders this argument moot.

(b) Caldwell contends that trial counsel was ineffective by failing to object to the prosecutor’s closing argument or, alternatively, by failing to request a curative instruction, that the prosecutor be admonished, or a mistrial declared. See Division 2, supra.

At the similar transaction hearing, Caldwell’s trial counsel repeatedly objected to the admission of the similar transaction, arguing “having a child come before a jury and testify that her father allegedly abused her ... is highly prejudicial.” His trial counsel again objected to the admission of the similar transaction at trial, pointing out that the victim in the similar transaction is “[Caldwell’s] daughter and . . . this evidence will unduly prejudice the jury and will deny [him] a fair trial.” The record further reflects that trial counsel also requested a continuing objection “any time [the State] referred to it.” At the hearing on the motion for new trial, trial counsel pointed out that she had objected vigorously throughout the trial and had asked the trial court for a standing objection regarding the similar transaction. She also said that “in closing argument it’s always a tactical decision as to whether or not you are going to stand up and object, because quite often the jurors become quite upset with you for having interrupted or continuously interrupted the trial.”

Decided August 22, 2000

Howard J. Weintraub, for appellant.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

“Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result.” (Citation and punctuation omitted.) Etheridge v. State, 210 Ga. App. 96, 98 (1) (435 SE2d 292) (1993). But even if counsel’s performance fell outside the wide range of reasonable professional assistance, given the trial court’s repeated limiting instructions regarding the similar transaction and the evidence of Caldwell’s guilt, we conclude that Caldwell has failed to show that any deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. See, e.g., Milner v. State, 271 Ga. 578, 579 (2), (3) (522 SE2d 654) (1999).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Phipps, Judge.

text:
    A00A1475.
    MAUPIN v. VINCENT.
    (538 SE2d 529)
   Phipps, Judge.

The issues in this case are whether the trial court’s dismissal with prejudice of Walter Maupin’s counterclaim due to his failure to attend a pre-trial conference and the subsequent judgment in favor of Robert Vincent on his complaint were proper under Uniform State Court Rule 7.1 or Rule 14 or OCGA § 9-11-41 (b). We conclude that the trial court’s actions were an abuse of discretion and therefore reverse.

On October 1, 1998, Vincent filed a complaint against Maupin. Maupin filed an answer and asserted a counterclaim. The Fayette County State Court ordered all parties to appear at a pre-trial conference on September 9, 1999. Maupin failed to appear at the pre-trial conference, and as a result, the trial court dismissed his counterclaim with prejudice and entered judgment in favor of Vincent on his complaint in the amount of $12,065.33, plus post-judgment interest.

1. Did the trial court err in dismissing Maupin’s countérclaim with prejudice because of his failure to appear at a pre-trial conference? The trial court has authority to dismiss a counterclaim for failure to appear at a pre-trial hearing. “An order of dismissal for failure to appear is discretionary with the trial court and is not subject to review by this court in the absence of an abuse of . . . discretion.” But, dismissal for failure to prosecute does not operate as an adjudication on the merits. Moreover, Uniform State Court Rule 7.1 explicitly states that failure to appear at the pre-trial conference without legal excuse “shall authorize the court to remove the action from any trial calendar ... or impose any other appropriate sanction, except dismissal of the action with prejudice.” Uniform State Court Rule 14 states “[o]n its own motion or upon motion of the opposite party, the court may dismiss without prejudice any civil action, or where appropriate, any pleading filed on behalf of any party upon the failure to properly respond to the call of the action for trial or other proceeding.” Thus, we find that the trial court abused its discretion by dismissing Maupin’s counterclaim with prejudice.

Decided August 22, 2000.

Mozley, Finlay son & Loggins, Eric D. Griffin, Jr., for appellant.

Smith, Currie & Hancock, Stephen G. Joy, for appellee.

2. Maupin claims that the trial court abused its discretion by entering judgment in favor of Vincent on his complaint when Maupin failed to appear at the pre-trial conference. In Ambler v. Archer f the Supreme Court of Georgia addressed the question of appropriate sanctions for failure to appear at a pre-trial hearing. Less drastic sanctions, such as contempt and an award of attorney fees, are preferred over striking an answer because they allow the presentation of the merits of the case. We conclude that the “withdrawal from the defendant of the right to introduce any evidence in his own behalf bearing upon the issues of fact in the case [was unduly harsh and an abuse of discretion].”

Judgment reversed.

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

       OCGA § 9-11-41 (b), (c); see Peachtree Winfrey Assoc. v. Gwinnett County Bd. of Tax Assessors, 197 Ga. App. 226 (398 SE2d 253) (1990).

       (Citation and punctuation omitted.) All South Mini Storage #2 v. Woodcon Constr. Svcs., 205 Ga. App. 393 (422 SE2d 282) (1992).

       OCGA § 9-11-41 (b).

       230 Ga. 281, 288 (1) (196 SE2d 858) (1973).

       Id. at 289; Littrell v. Ghrist, 212 Ga. App. 465, 466 (442 SE2d 306) (1994).

       (Punctuation omitted.) Ambler, supra at 289 (1).


author: Barnes, Judge.

text:
    A00A1703.
    BUFFINGTON v. THE STATE.
    (538 SE2d 528)
   Barnes, Judge.

A jury found Quincy Buffington guilty of possessing marijuana with the intent to distribute it. On appeal, Buffington contends (1) the trial court erred when it allowed a police officer to interpret a ledger found on Buffington at the time of his arrest, and (2) insufficient evidence supports his conviction. We disagree and affirm.

Viewed in the light most favorable to the verdict, the record shows that Officer Robertson arranged to observe a confidential informant purchase a half-pound of marijuana from Gary Williams, appellant’s co-defendant. When Williams arrived at the designated location, a bystander warned him that it was a setup. Officer Robertson left his hidden position, ran to the car driven by Williams, and told him to stop. When Robertson tried to put the car in park, Williams drove away and crashed into a fence. Robertson testified that while he was trying to stop Williams, he saw a large bag of marijuana lying on the bench seat between Williams and his passenger, Buffington. After Williams crashed into the fence, the marijuana bag was lying on the floorboard of the driver’s side of the car. The car was owned by Buffington’s uncle.

Another police officer testified that he searched appellant Buffington and found approximately $1,400 in cash and a handwritten ledger. The ledger contained names and initials with numerical amounts, in pounds and ounces, listed beside them. It also stated “got 10 lbs” and the numbers beside five names and initials totaled ten. One set of initials on the ledger was “GW.” The ledger also contains figures showing that a 1 was equivalent to 900.

This officer testified that based on his narcotics investigation training and experience in the field, including his past experience with drug ledgers, he could decipher the ledger for the jury. In his opinion, the ledger showed that the pounds and ounces referenced on the ledger referred to marijuana because the average street value of marijuana was $900 per pound. He further testified that in his opinion, the number 3 next to the initials “GW” showed that appellant sold three pounds of marijuana to Gary Williams. Finally, he testified that a half-pound of marijuana would not normally be used for personal consumption, but would instead be broken down into “ounces, dime bags, nickel bags, [and] joints” before sale. A dime bag, costing $10, is an amount typically purchased for personal consumption.

Decided August 22, 2000.

Summer & Summer, Daniel A. Summer, Elizabeth B. Reisman, for appellant.

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

1. In his first enumeration of error, Buffington contends the trial court erred by allowing the police officer to testify “as to what he thought items contained in the ledger meant instead of allowing the document itself serve as the best evidence of its contents.” According to Buffington, the officer’s testimony was conjecture and speculation because he had ho personal knowledge of the meaning of the ledger entries. We disagree. The trial court properly allowed the officer to provide the jury with opinion evidence about the meaning of the ledger based on his experience and training. Kimbrough v. State, 215 Ga. App. 303, 304 (1) (450 SE2d 457) (1994).

2. We further find the evidence sufficient to support Buffington’s possession with intent to distribute under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       These figures were:
      2700 3
      3600 4
      900 1
      900 1
      900 1


text:
    A00A1781.
    JOHNSON v. NELSON-RIVES REALTY, INC.
    (538 SE2d 536)
   Phipps, Judge.

Landlord Nelson-Rives Realty, Inc. brought this action to dispossess its tenant Johnson because of his failure to pay rent. Nelson-Rives also sought judgment for past due rent in the amount of $1,900 and future rent accruing at the rate of $15 per day. Johnson answered denying that he owed any rent, and he filed a counterclaim seeking to recover $4,000 expended by him as a result of Nelson-Rives’s failure to repair the property. Following trial, the court entered judgment granting Nelson-Rives a writ of possession and dismissing Johnson’s counterclaim with prejudice.

Johnson has filed a pro se appeal. His appellate brief consists of the following statements: “My landlord failed to repair the property. And I did some of the repair on the property so this has lowered the rent claimed. Work cost $3000.00.” Johnson’s brief contains no citations to the record, as there is no transcript of the trial. We must therefore assume that the judgment is correct and affirm. Because no reasonable grounds for a reversal have been presented, and because it appears that this appeal was taken solely for the purposes of delaying Nelson-Rives’s recovery of the property and allowing Johnson to remain in possession without paying rent, we grant Nelson-Rives’s motion for imposition of a $1,000 penalty for frivolous appeal. Such penalty shall constitute a money judgment in favor of Nelson-Rives against Johnson.

Decided August 22, 2000.

Hoke Johnson, pro se.

Joanna M. Campbell, William S. Dominy, for appellee.

Judgment affirmed.

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

        Reid v. Royal Creek Apts. L.P., 239 Ga. App. 536, 537 (521 SE2d 210) (1999).

       See JarAllah v. American Culinary Federation, 242 Ga. App. 595, 596 (3) (529 SE2d 919) (2000); OCGA § 5-6-6; Court of Appeals Rule 15 (b).

       Court of Appeals Rule 15 (c).


text:
    A00A2126.
    McCRIMMON v. THE STATE.
    (538 SE2d 537)
   Phipps, Judge.

Timothy MeCrimmon appeals his conviction of sale of cocaine, challenging the sufficiency of the evidence to support the verdict. Finding the evidence sufficient, we affirm.

The State’s evidence showed the following. On March 2, 1999, Chatham County narcotics agent Tothe was engaged in undercover, street-level drug buys in Savannah. He was carrying marked bills and riding in a vehicle operated by Agent Tremelling and equipped with an audio-video camera.

Tothe’s and Tremelling’s testimony and audio-video tapes of the transaction showed the following. Tothe observed MeCrimmon and another male standing near an apartment complex in an area known for drug activity. After Tothe attracted McCrimmon’s attention, MeCrimmon approached the vehicle, and Tothe asked to purchase $20 worth of crack cocaine. After some discussion, MeCrimmon retrieved a piece of crack cocaine approximately one inch long, broke it into three pieces, and handed one of the pieces to Tothe. In turn, Tothe gave a marked $20 bill to MeCrimmon.

The arrest team then appeared on the scene, whereupon MeCrimmon exclaimed “man you got me on a sale case” and began running toward the apartment complex. Agent Desautels, a member of the arrest team, pursued McCrimmon into the courtyard of the apartments and arrested him. Desautels testified that he observed McCrimmon throwing something into an area where he later recovered the buy money identified by Tothe. But he did not find any cocaine in McCrimmon’s possession, nor was he able to locate any cocaine in the apartment courtyard because of the grass cover. After McCrimmon was arrested, the buy money was placed back in circulation to be used in another undercover operation.

Decided August 22, 2000.

Caleb B. Banks, for appellant.

Spencer Lawton, Jr., District Attorney, Lori T. Loncon, Assistant District Attorney, for appellee.

McCrimmon contends that there is inadequate proof of guilt beyond a reasonable doubt because no cocaine was found in his possession or presence, and the evidence does not exclude the possibility that the buy money recovered from the scene was used in an earlier drug deal or that the unidentified male present at the scene committed the crime.

There is no merit whatsoever in these contentions. McCrimmon was positively identified as the seller of the cocaine. The State presented a rational explanation for the officer’s failure to recover the cocaine which had been observed in McCrimmon’s possession. The jury was fully authorized to find that the buy money recovered from the scene was that used in this drug transaction.

It was for the jury to determine the weight of the evidence and the credibility of the State’s witnesses. [Cit.] On appeal, this Court views the evidence in the light most favorable to the verdict and determines if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. [Cit.]

Under these standards, the evidence was clearly sufficient to support McCrimmon’s conviction of sale of cocaine.

Judgment affirmed.

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

        Nealy v. State, 239 Ga. App. 651, 656 (9) (522 SE2d 34) (1999).


author: Miller, Judge.

text:
    A00A1122.
    MOORE v. THE STATE.
    (537 SE2d 764)
   Miller, Judge.

In Indictment No. 97-00648, Markett Jerod Moore, Corey Lewis Coleman, and Jabaar Myles were jointly charged with burglary, kidnapping with bodily injury, and armed robbery. Indictment No. 97-00852 charged the same three with an additional count of burglary, two counts of kidnapping with bodily injury, and two counts of armed robbery. The trial court granted the State’s motion to consolidate the offenses charged in the separate indictments for trial, and Moore and Coleman were jointly tried before a jury. Myles pled guilty to all charges (except that kidnapping with bodily injury was reduced to simple kidnapping) and testified for the State. Moore was found guilty on all counts. His motion for new trial as amended was denied, and this appeal followed. In six enumerations of error, Moore challenges (1) the introduction of hearsay, (2) and (3) the denial of his motions for directed verdicts, (4) the joinder of the offenses for trial, (5) undue emphasis in the charge on parties to a crime, and (6) the failure of the court to charge that kidnapping with injury is a specific intent crime. We affirm.

1. The second and third enumerations urge the general grounds. Viewed in the light most favorable to the jury’s verdicts, the evidence revealed the following:

On April 30, Robert Carver, a retired geologist with the University of Georgia, was staying at a Ramada Inn in Glynn County while attending a seminar on Jekyll Island. At 10:00 p.m., someone knocked at his door. When Carver opened the door, he was accosted by three young men, “two of them with guns.” One thrust a gun into the door, pointing it at Carver, who immediately retreated and withdrew his billfold. Carver was ordered to turn around, and when he did someone took his billfold. Carver was then ordered to lie down on the bed and put a pillow over his head. One gunman put a gun against Carver’s temple, cocked it, and took Carver’s wristwatch from his arm. When Carver tried to lift the pillow from his face, he was struck from behind with a metal object that cut his scalp and caused Carver to pass out. When he awoke, Carver determined that $35 was missing from his billfold.

Fifty-seven-year-old Richard Hull and his wife Elizabeth were in Glynn County on a business trip and stayed at Embassy Suites Hotel. At approximately 10:35 p.m. on April 30, Hull held the door to his room open for his wife to enter when two young men with guns burst into the room. At gunpoint, Hull moved to the sitting area and got down on the floor. The first gunman took Ms. Hull through a door to the bathroom in the back of the suite. The second gunman demanded Hull’s wallet and removed $50/ The first gunman returned, placed his foot on Hull’s head and twice demanded to know: “Are you ready to see your wife die?” The first gunman then demanded Hull’s watch and wedding ring. After the second gunman left the suite, taking Hull’s laptop computer with him, Hull heard the first gunman say: “I’m still here. Get that head back down.” Then Hull was struck in the back of the head, causing bleeding.

While waiting for her husband to open the door to their suite, Elizabeth Hull noticed three young men on the same floor, on the other side of the atrium, and thought they looked too young to have rented a room of their own. Ms. Hull put down her purse in the dressing area, but before her husband could close the door, two youths came in with guns drawn and demanding money. The first gunman placed the weapon to Ms. Hull’s head and made her kneel on the floor. After kicking Ms. Hull three times, the first gunman told her: “you’re going to f-k me.” Still kneeling, Ms. Hull told him “No,” and the first gunman started to strangle her until she lost consciousness. When she awoke, her head was near the second sink. That is, “[she] was over closer to the other door.” The first gunman pulled her up by her dress and ripped all the buttons off. As he raped Ms. Hull, the gunman told her he had AIDS. He then sprayed her with shaving cream and anally sodomized her. The gunmen then took Ms. Hull’s rings and jewelry.

Myles was 15 on April 30, when Moore and Coleman drove with Myles to Brunswick from Hazlehurst. Myles heard Coleman and Moore discuss how they could rob somebody, and how Moore said “he was going to do it, too.” Coleman had a nine millimeter gun while Moore had what appeared to be a .25. They drove to the Ramada Inn, and all three approached a room rented by an older man, where Coleman knocked on the door. When Carver tried to close the door, Moore and Coleman forced their way in. Coleman told Carver to get on the bed and put a pillow over his head, while Moore ran about looking for money. Myles saw Moore take money out of Carver’s wallet, while Coleman took his wristwatch. As they left, Myles saw Coleman hit Carver “with the gun several times.”

Dissatisfied with the small amount of money taken from Carver, Coleman drove them to the Embassy Suites. All three walked the various floors of the hotel. When Coleman spied the Hulls opening their door, he ran into the room followed by Moore. Their weapons were visible. His gun on Richard Hull, Moore took Hull’s watch and some rings, while Coleman went to the back. Myles saw Coleman sexually assaulting Ms. Hull. Back in the car, Myles observed jewelry, wedding bands, rings, and the laptop computer Moore brought with him.

Although fingerprint evidence linked Coleman and Myles to the Embassy Suites attack, there were no useable prints traceable to Moore. In a custodial statement, Moore admitted being with Coleman and Myles on the night in question and driving with them to the hotels, but denied any active involvement. He further acknowledged that he knew his companions were “creeping,” that is “ ‘going in on somebody in a room.’ ” Specifically, he blamed Myles for taking the jewelry and computer during the incident at the Embassy Suites. But when Moore was first questioned on May 2, the investigating officer noticed Moore wore a Timex Indiglo watch with a brown leather band such as Mr. Hull had described. This was seized and identified by Mr. Hull at trial as that stolen from him.

(a) Moore argues the evidence is legally insufficient because the testimony of his accomplice Myles was not corroborated, as required in felony cases by OCGA § 24-4-8.

While such corroborating evidence must do more than merely cast on the defendant a grave suspicion of [guilt], it may consist entirely of circumstantial evidence, or evidence of an accused’s conduct before and after the crime that [implies] he participated therein. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.

No victim could identify Moore at trial or otherwise directly connect him to the crimes, and so their corroboration of accomplice Myles in numerous details still amounts to no corroboration of Myles’s identification of Moore as an active participant. Yet, “the accused’s own statement can serve to corroborate his accomplice’s inculpatory testimony.” In our view, Moore’s statement that he willingly accompanied his friends despite knowing they were “creeping,” and knew jewelry and a laptop computer were taken from the Embassy Suites incident is sufficient evidence corroborating Myles’s testimony inculpating Moore. Moreover, Moore’s recent unexplained possession of Robert Hull’s stolen watch is itself sufficient independent corroboration of the accomplice.

(b) The evidence was sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that Moore is guilty, beyond a reasonable doubt, as a party to the crimes of burglary, armed robbery, and kidnapping with bodily injury as alleged in the indictments. The trial court correctly denied Moore’s motions for directed verdicts of acquittal.

2. The first enumeration contends the trial court erred in admitting hearsay when Nurse Harper was permitted to relate Ms. Hull’s recorded statement that three young men burst into her hotel room, whereas Ms. Hull mentioned only two in her testimony. But since this is cumulative of Myles’s testimony that all three entered the Hull suite, any error was harmless.

3. The fourth enumeration contends the trial court erred in granting the State’s motion to consolidate for trial the offenses charged in Indictment No. 97-00648 with those charged in Indictment No. 97-00852.

To avoid multiple or successive prosecutions, a prosecutor is required to try in a single prosecution all the crimes arising out of the same conduct within the jurisdiction of a single court, except the court, in the interest of justice, may order that one or more of such charges be tried separately. Severance (or joinder) in the interest of justice is discretionary. Where, as here, the evidence shows a continuous scheme or ongoing spree such that evidence of one incident would be admissible in the trial of the similar crimes committed the same night in the other incident, the trial court did not abuse its discretion in granting the State’s motion to consolidate the indictments for trial.

4. In a general charge covering thirty-three pages of transcript, five references (including a recharge) to criminal liability as a party to the eight incidents of the three types of crimes alleged is neither unduly repetitive or emphatic nor unfairly prejudicial.

Decided July 26, 2000

Reconsideration denied August 23, 2000

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

Stephen D. Kelley, District Attorney, C. Keith Higgins, Assistant District Attorney, for appellee.

5. Since one can be liable as a party to the crime of kidnapping with bodily injury committed during the course of a conspiracy without actually participating in the act, the trial court did not err in failing to charge that kidnapping is a specific intent crime. The specific intent of the actor Coleman is transferred to all his co-conspirators.

Judgment affirmed.

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

       See Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984).

       The testimony of a single witness is generally sufficient to establish a fact. However, in . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness. . . .

       (Punctuation and footnotes omitted.) Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996).

        Childers v. State, 52 Ga. 106, 110-111 (1874).

       (Citation omitted.) Floyd v. State, 272 Ga. 65, 66 (1) (525 SE2d 683) (2000).

        Wisenbaker v. State, 259 Ga. 416, 417 (383 SE2d 132) (1989).

        Inman v. State, 182 Ga. App. 209 (355 SE2d 119) (1987) (whole court).

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

        Brown v. State, 224 Ga. App. 241, 242 (1) (480 SE2d 276) (1997).

        Davis v. State, 244 Ga. App. 345, 346 (1) (535 SE2d 528) (2000).

        Brown v. State, supra, 224 Ga. App. at 242 (1). Accord Kimble v. State, 236 Ga. App. 391, 396 (2) (512 SE2d 306) (1999).

        Assad v. State, 195 Ga. App. 692, 693 (2) (394 SE2d 617) (1990) (admission of hearsay which is cumulative of direct testimony of a witness amounts to harmless error).

       OCGA § 16-1-7 (b).

       OCGA § 16-1-7 (c).

        Jarrell v. State, 234 Ga. 410, 413 (1) (216 SE2d 258) (1975).

        Catchings v. State, 256 Ga. 241, 243 (4) (347 SE2d 572) (1986). Accord Jones v. State, 226 Ga. App. 428, 430-431 (2) (487 SE2d 62) (1997).

        Scott v. State, 229 Ga. 541, 547 (5) (192 SE2d 367) (1972).

       See, e.g., Thomas v. State, 242 Ga. 712, 716-717 (10) (251 SE2d 294) (1978).