author: Eldridge, Judge. Barnes, Judge,

text:
    A00A0306.
    BROWN v. THE STATE.
    (537 SE2d 421)
   Eldridge, Judge.

Fred Brown appeals from a DeKalb County jury’s verdict finding him guilty of possession of cocaine with intent to distribute. We affirm his conviction.

Viewing the facts in a light most favorable to the verdict, the charge arose when a concerned citizen telephoned the Atlanta Police Department to report that a male wearing jeans, a black leather jacket, and a purple hat was standing beside a white car at the corner of Meadowlake Drive and Walton Lane in the Eastlake Meadows Housing Development, selling drugs from the car. Officer W. C. Jones arrived at that location to find defendant Brown dressed in jeans, a black leather jacket, and a purple hat. Brown was standing “right next to a white automobile.” Brown was the only person standing near the car. Brown was the only person dressed in jeans, a black leather jacket, and purple hat. When he saw the officer, Brown started to walk away. The officer stopped him; the car was investigated. There was a broken backseat window where Brown had been standing. A plastic bag containing 58 hits of crack cocaine, packaged in individual ziplock baggies, was in plain view and accessible on the backseat of the car. The car belonged to Brown.

1. Brown contends that the trial court erred in permitting the officer to testify as to the content of the concerned citizen’s tip, because such was “double hearsay.” We disagree. The content of the citizen’s tip was substantively admissible as original evidence to explain the officer’s conduct in going to Eastlake Meadows and in briefly detaining Brown, specifically for further investigation.

2. We find no merit to Brown’s three claims of error with regard to the admission of a similar transaction guilty plea to possession of cocaine.

(a) Brown contends that “there was no evidence presented that demonstrates that Appellant committed the independent offense,” per Williams v. State. At trial, however, there was no dispute whatsoever that Brown committed the similar transaction offense to which he pled guilty: “[Defense counsel:] He admitted his guilt to that, one hit, where it was in his possession. He admitted it was in his possession.” To the extent that Brown now tries to raise on appeal an identity issue under Williams v. State, it is waived.

(b) Brown claims insufficient similarity between the instant offense and the prior act. However, the facts of the prior offense were sufficiently similar to the instant offense so that proof of the one tends to prove the other. The prior act involved the same type of drug, crack cocaine; the prior offense occurred at precisely the same locale, standing outside at 315 Meadowlake Drive in Eastlake Meadows Housing Development; and the prior offense involved a lesser included offense to the one now charged, possession of cocaine/possession of cocaine with the intent to distribute. The trial court’s finding of similarity was not clearly erroneous.

(c) The State called Atlanta Police Detective A. Lee to present a factual basis for Brown’s 1990 guilty plea to possession of cocaine. Lee was one of the officers who arrested Brown for the prior offense. He had no independent recollection of the event. The State put forth the facts contained in the police report of the prior incident under the business records exception to the hearsay rule. Defense counsel conceded the prosecutor’s position that case law would permit admission of the facts contained in a police report under such exception:

[Defense counsel:] I think she’s [prosecutor] right. Here’s another one just like it, another case. But she [prosecutor] has to follow the rules. . . . And if there is an officer — if there is anyone that works in that section or who is familiar with the operations of that section, then that’s necessary to lay the foundation.

Thereafter, the prosecutor laid a proper foundation for the admission of the report through the testimony of Detective Lee. Lee identified the police report, testified that he is familiar with the method of keeping such reports, testified that such reports are made in the regular course of business, and testified that such police reports were made at the time of the event or shortly thereafter.

On appeal, Brown contends that the foundation was insufficient because Lee did not write the report and had no personal knowledge of the incident. However, Lee “d[id] not have to have personal knowledge of the correctness of the records or have made the entry himself” in order to lay the foundation for the admission of the report under the business records exception to the hearsay rule.

At trial, Brown objected to the introduction of the police report on the basis of foundation. He did not object to the specific contents of the report as inadmissible. Our review shows the content of the police report to be factual:

On the 15th of August, Officer Little, Lee and myself were driving through Eastlake Meadows when Mr. Smith [co-defendant] flagged us down. I then exited the vehicle and walked toward Mr. Smith. Mr. Smith asked me how many did I want, and I told him five sacks. Mr. Smith then told me to drive around the horseshoe and take the man — and talk to the man in the red shirt and red hat. . . . When I approached Mr. Brown, he had a plastic hag in his hands with several hits of suspected crack inside. Mr. Brown was in the process of selling drugs to another suspect standing next to him. Mr. Brown asked me how many did I want. I told him one. Mr. Brown handed me one hit of suspected crack cocaine and in return I gave him $10 cash. We then advised Mr. Brown that we were the police and that he was under arrest. Mr. Brown then threw down the plastic hag.

(Emphasis supplied.) This first person recitation of the facts by the officer who witnessed and conducted the transactions referred to in the police report contained no opinions or conclusions about what the officer saw. Brown pled guilty to the offense. At trial, Brown did not dispute the facts as stated in the police report. Under these circumstances, the police report was admissible under the business records exception to the hearsay rule. The trial court did not err in admitting the similar transaction evidence.

3. Next, Brown claims ineffective assistance of trial counsel, because his defense attorney failed to call two witnesses: (a) Brown’s girlfriend, Janice Whitmore; and (b) Vanessa Clifton, who claimed to be the “concerned citizen” who called the police.

The two-prong test for determining the validity of a claim of ineffective assistance of counsel provided in Strickland v. Washington asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense, that is, whether there is a reasonable possibility that the outcome of the proceedings would have been different but for counsel’s deficiency. A trial court’s finding on motion for new trial that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.

(a) At the motion for new trial, Brown’s trial attorney testified that he was very familiar with Brown’s girlfriend, Whitmore: “I have known her a long time, and she can get a little hostile, and I didn’t want to put her in front of the jury.”

(b) Trial counsel testified that he interviewed Clifton. Trial counsel prepared a videotape of Clifton and decided not to call her at trial because:

anytime I asked her a question, she would look up in outer space. She has some kind of mental problem or I don’t know emotional problem or what. I thought the jury would think all of the movements, no eye contact, etcetera [sic], would mean she was lying.

The decision of which defense witnesses to call is a matter of trial strategy for the attorney and does not constitute ineffective assistance of counsel. Accordingly, the trial court’s finding that Brown received effective assistance of counsel at trial was not clearly erroneous.

4. Finally, we reject Brown’s contention that “this case is controlled by the equal access rule.”

The “equal access” rule applies only where the sole evidence of possession of contraband found in a vehicle is the defendant’s ownership of the vehicle. Here, Brown’s possession of the cocaine was not based solely upon the fact that he owned the car in which it was found. Rather, Brown was the only person standing beside the car; the cocaine was in plain view and visible in the backseat of the car; Brown was the only person with immediate access to the drugs plainly visible and accessible through the broken backseat window; Brown was the only person who fit the description of the reported drug seller; and Brown attempted to leave the car when the police arrived. In this case, there was circumstantial evidence to support the jury’s determination that went beyond the inference of constructive possession which arises from ownership, alone. “Under these circumstances, the evidence was sufficient to connect the defendant to the possession of the cocaine though the evidence would have authorized the jury to find that others had equal access to it.”

Further, “whether the equal access evidence is sufficient to rebut the inference of possession is a question for the jury.” The trial court charged the jury on equal access, the jury rejected such defense, and its verdict is supported by the evidence in that a rational trier of fact could have found Brown guilty beyond a reasonable doubt of possession of cocaine with intent to distribute.

Judgment affirmed.

Johnson, C. J., Pope, P. J, Blackburn, P. J., and Mikell, J., concur. Barnes and Phipps, JJ, dissent.

Barnes, Judge,

dissenting.

Because Brown’s conviction is based on inadmissible and wholly nonprobative hearsay, I must respectfully dissent.

The majority’s analysis of the technical deficiencies of Brown’s objections below overlooks one crucial fact: on appeal Brown has challenged the sufficiency of the evidence to sustain his conviction. Therefore, we must consider whether his conviction is based on admissible evidence, because hearsay, as we all well know, is “wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.” Hig gins v. Trentham, 186 Ga. 264 (1) (197 SE 862) (1938). Thus, the majority’s analysis about Brown’s trial counsel’s objections below is a diversion from the real issue in the case: Is Brown’s conviction supported by admissible evidence or nonprobative hearsay?

The essential testimony supporting Brown’s conviction is hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). Here, the description of the person who was dealing drugs was presented through the testimony of Officer Jones but was based on the anonymous tip relayed to him by his dispatcher. This was the only information to which the prosecution could point that connected Brown to the actual selling of drugs, and it is this description on which the whole case is based.

Because the anonymous tip rested solely on the credibility of the unknown tipster, it was hearsay. The other evidence allegedly supporting Brown’s conviction was the similar transaction testimony that was introduced by one officer reading another officer’s statement that was included in a City of Atlanta Bureau of Police Services Offense Report. This statement was also hearsay, and the fact that it was contained in a police report does not make it any less so.

1. The majority says the anonymous tip is not hearsay because the information provided was admissible under OCGA § 24-3-2 to explain the officer’s conduct and thus is sufficient to sustain Brown’s conviction. This position fails for two reasons: (a) OCGA § 24-3-2 is inapplicable here because there was no need to explain the officer’s conduct, and (b) even if admissible for that purpose, the evidence cannot be considered to prove Brown’s guilt.

(a) In Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982), our Supreme Court held:

To prevent an overly broad interpretation of [OCGA § 24-3-2], we adopt the following: When, in a legal investigation, the conduct and motives of the actor are matters concerning which the truth must be found (i.e., are relevant to the issues on trial), then information, conversations, letters and replies, and similar evidence known to the actor are admissible to explain the actor’s conduct. Green, Ga. Law of Evidence, § 300 (1957); Brewer v. Henson, 96 Ga. App. 501, 502 (100 SE2d 661) (1957). But where the conduct and motives of the actor are not matters concerning which the truth must be found (i.e., are irrelevant to the issues on trial) then the information, etc., on which he or she acted shall not be admissible under [OCGA § 24-3-2].

Id. at 867. Then, in Teague v. State, 252 Ga. 534 (314 SE2d 910) (1984), the Supreme Court again visited the problem of the trial courts’ and this court’s overly broad use of OCGA § 24-3-2. Explaining the need for the Momon rule, the court stated:

The necessity for this interpretation will be seen, we believe, from the fact that almost all conduct of almost all people can be “explained” almost always by something which they may have heard or read. Following the literal language of the Code section to its logical conclusion would, therefore, authorize the conviction of a citizen solely upon the testimony of an investigating officer, who, “to explain conduct” in initiating and continuing his investigation, might recount to the jury everything which he had heard or read about the case. That is trial by dossier, for every element of an investigation can serve, in some manner, to “explain conduct” of the investigator.

Id. at 535 (1). The court went further to state that:

only in rare instances will the “conduct” of an investigating officer need to be “explained,” as in practically every case, the motive, intent, or state of mind of such an officer will not be “matters concerning which the truth must be found.” At heart, a criminal prosecution is designed to find the truth of what a defendant did, and, on occasion, of why he did it. It is most unusual that a prosecution will properly concern itself with why an investigating officer did something. If the hearsay rule is to remain a part of our law, then OCGA § 24-3-2 (Code Ann. § 38-302) must be contained within its proper limit. Otherwise, the repetition of the rote words “to explain conduct” can become imprimatur for the admission of rumor, gossip, and speculation.

(Emphasis in original omitted and supplied.) Id. at 536 (1). The court concluded with this warning: “Prosecutors and trial judges would be well advised to walk wide of error in the proffer and admission of evidence under the provisions of OCGA § 24-3-2 (Code Ann. § 38-302).” Id. at 537 (3). Today, we abandon the rules announced in Momon and Teague.

Moreover, merely intoning that the evidence was relevant to explain the officer’s conduct does not make this evidence admissible. “[T]he admissibility of evidence under OCGA § 24-3-2 is not a determination based only on its relevancy to explain conduct. There is a further requirement: The conduct to be explained must itself be a relevant issue in the case.” (Emphasis in original.) Noles v. State, 172 Ga. App. 228, 229 (5) (322 SE2d 910) (1984).

Recently, our Supreme Court again revisited this issue and held that an officer’s conduct in investigating a case was not relevant at trial and that testimony explaining the investigation was inadmissible. Weems v. State, 269 Ga. 577, 578-579 (2) (501 SE2d 806) (1998). Significantly, our Supreme Court rejected the possibility “that the jury may find police behavior so inexplicable as to cast doubt on the prosecution,” as a reason warranting admission under OCGA § 24-3-2. Id. at 579 (2). Ross v. State, 210 Ga. App. 455 (436 SE2d 496) (1993), relied upon by the majority, was cited by the Supreme Court as an example of such cases in rejecting this theory.

The officer’s conduct was not relevant to any issue in this case, and the prosecution made no effort to establish that it was. Therefore, the trial court erred by even allowing the information from the anonymous tipster to be repeated to the jury.

Even if we were to assume that the officer’s conduct needed explaining, he explained his conduct when he replied affirmatively to the prosecutor’s question whether he was responding to a call at Eastlake Meadows Housing Project regarding drug activity. The anonymous tipster’s description of the alleged suspect was not a necessary part of this explanation.

(b) If the majority is correct in holding that the officer’s testimony about what the dispatcher told him the anonymous tipster told her was admissible, the majority is still incorrect when it uses this evidence to support Brown’s conviction. “(S)uch testimony is admissible under the code section only as original evidence 'to explain conduct’ of the investigating officer, not as original evidence of the defendant’s guilt.” Anderson v. State, 247 Ga. 397, 398 (1) (276 SE2d 603) (1981), quoting Harrell v. State, 241 Ga. 181, 185 (243 SE2d 890) (1978). Thus, the officer’s testimony about the description of the man allegedly selling drugs was “not admissible as substantive proof of the matters asserted therein.” Goodman v. State, 167 Ga. App. 378, 379 (1) (306 SE2d 417) (1983). Therefore, this testimony cannot be used to support Brown’s conviction.

2. Although I agree that some police reports are business records and some material contained in such police reports is admissible, not all information in otherwise admissible police reports is admissible. Further, I am not satisfied that all police reports, even if maintained in the regular course of police business, are admissible. See Stewart v. State, 246 Ga. 70, 74 (3) (268 SE2d 906) (1980) (records collected in anticipation of investigation or litigation, not made in the regular course of business, are inadmissible).

In this instance, the particular report is a City of Atlanta Bureau of Police Services Offense Report. The Offense Report contains such headings as “Arrested Person/Suspect Information. Can a suspect be identified? Can a suspect be named? M.O. Data. Is there a significant recurring M.O.? Is there a special reason why this crime should receive a follow-up continuing investigation other than the existence of solvability factors above?” This is not a report or record whose purpose is to record factual entries. I am not satisfied that a report like this, that is plainly intended to be used in the investigation and prosecution of crimes, should be treated as a business record for purposes of admissibility.

Nevertheless, we need not resolve that issue to dispose of this case. The statement of the police officer read by another officer to prove the similarity of Brown’s prior conviction is inadmissible hearsay as defined in OCGA § 24-3-1. The majority holds that this is not so because the narrative statement was part of the Offense Report.

If the majority is correct on this point, a major alteration in the administration of our system of criminal prosecutions may result. Because almost all prosecutions are based on incidents in which witness statements are taken and those, along with police officers’ statements, are made part of some police agency’s reporting system, it is reasonable to expect that in the future it might become the rare case in which the witnesses actually come to court and testify.

The majority’s holding that the narrative statement is admissible proceeds from the erroneous concept that witness statements that would otherwise be inadmissible are made admissible merely because they are attached to or included in a business record. This is not the law.

A police report may be admissible as a business entry under [OCGA § 24-3-14] where a proper foundation is laid, but when it includes hearsay statements, opinion evidence, and conclusions, it is not generally admissible. See Wesley v. State, 225 Ga. 22 (2) (165 SE2d 719) [(1969)]; Calhoun v. Chappell, 117 Ga. App. 865 (2a) (162 SE2d 300) [(1968)].

Pickett v. State, 123 Ga. App. 1, 2 (2) (179 SE2d 303) (1970). Police reports that contain conclusions, opinion, estimates, and impressions of third parties who are not before the court are not admissible under the business records exception to the hearsay rule. Malcolm v. State, 263 Ga. 369, 370-371 (3) (434 SE2d 479) (1993). Accord Moody v. State, 244 Ga. 247, 249 (4) (260 SE2d 11) (1979) (statements of third parties not before the court are not admissible even though submitted as part of business records).

3. Under the circumstances, I find that the evidence is insufficient to support Brown’s conviction under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The police dispatch evidence was improperly admitted to explain why the officer immediately stopped and detained Brown and, even if admissible, cannot be used to support the conclusion that Brown actually sold or possessed drugs. Goodman v. State, supra, 167 Ga. App. at 379 (1). Because the similar transaction evidence was inadmissible hearsay, it cannot be used to support Brown’s conviction even without an objection on this basis below. Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 171 (2) (390 SE2d 257) (1990). See Handley v. Limbaugh, 224 Ga. 408, 413 (4) (a) (162 SE2d 400) (1968).

Thus, the only competent evidence remaining to support Brown’s conviction shows that he was standing next to his car in which crack cocaine was lying in plain view on the backseat. Relying upon the equal access rule, Brown asserts this evidence cannot support his conviction for possession of cocaine with the intent to distribute.

The equal access rule is as follows: If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the jury.

(Citation and punctuation omitted.) Mackey v. State, 234 Ga. App. 554, 555 (507 SE2d 482) (1998). In this case, the equal access rule demands an acquittal because Brown presented evidence that his car had been inoperable for over a year, that its rear window was broken, and that three other men were selling drugs out of it shortly before his arrest. The majority’s assertion that Brown was the only person standing near the car is not factually correct. Likewise, the State presented no evidence that Brown was standing by the car’s window.

Because I cannot say that the remaining evidence is sufficient to sustain Brown’s conviction, I would reverse. Although the jury returned a verdict of “guilty,” they did so only after the trial court gave them an Allen charge. It cannot be said that the evidence was overwhelming.

Decided July 14, 2000

Lynn M. Friedewald, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jennifer M. Daniels, Assistant District Attorneys, for appellee.

Therefore, I respectfully dissent. I am authorized to state that Judge Phipps joins in this dissent.

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

       OCGA § 24-3-2. See Ross v. State, 210 Ga. App. 455, 456 (436 SE2d 496) (1993); Scruggs v. State, 227 Ga. App. 35, 36 (2) (488 SE2d 110) (1997).

       261 Ga. 640, 641 (409 SE2d 649) (1991).

        Kight v. State, 242 Ga. App. 13, 18 (528 SE2d 542) (2000); Kincer v. State, 208 Ga. App. 360 (1) (430 SE2d 597) (1993).

        Tate v. State, 230 Ga. App. 186, 188 (2) (495 SE2d 658) (1998); Cantrell v. State, 210 Ga. App. 218, 220-221 (435 SE2d 737) (1993); Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992).

       Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible in evidence in proof of the act, transaction, occurrence, or event, if the trial judge shall find that it was made in the regular course of any business and that it was the regular course of such business to make the memorandum or record at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter.
      OCGA § 24-3-14 (b).

       The facts contained in a police report are admissible under the business records exception to the hearsay rule. Gann v. State, 190 Ga. App. 82, 83 (1) (378 SE2d 369) (1989); Reed v.

        Heffernan, 171 Ga. App. 83, 84 (1) (318 SE2d 700) (1984); Johnson v. State, 168 Ga. App. 271, 272 (1) (308 SE2d 681) (1983); Pickett v. State, 123 Ga. App. 1, 2 (2) (179 SE2d 303) (1970).

        Hertz Corp. v. McCray, 198 Ga. App. 484, 485 (2) (402 SE2d 298) (1991); see McBride v. State, 213 Ga. App. 857, 859 (6) (446 SE2d 193) (1994).

       The officer who wrote the report had relocated to Sacramento, California.

        Hertz Corp. v. McCray, supra at 485 (2); Davis v. State, 194 Ga. App. 902, 904 (2) (392 SE2d 327) (1990); Whittington v. State, 155 Ga. App. 667 (2) (272 SE2d 532) (1980).

       Admissible under OCGA § 24-3-2.

       See Malcolm v. State, 263 Ga. 369, 370 (3) (434 SE2d 479) (1993).

        Wilson v. Reed, 246 Ga. 743 (1) (272 SE2d 699) (1980); Sheffield v. State, 237 Ga. App. 701, 702 (2) (516 SE2d 563) (1999); Parrott v. State, 206 Ga. App. 829, 835 (5) (427 SE2d 276) (1992); Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992); Johnson v. State, 204 Ga. App. 453 (419 SE2d 741) (1992); Banks v. State, 201 Ga. App. 266, 268 (410 SE2d 818) (1991).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Scapin v. State, 204 Ga. App. 725 (420 SE2d 385) (1992).

        Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999).

        Graham v. State, 242 Ga. App. 361, 362 (529 SE2d 641) (2000); Coleman v. State, 229 Ga. App. 642, 643-644 (494 SE2d 549) (1997).

       See id.; Graham v. State, supra.

        Carlisle v. State, 242 Ga. App. 253, 255 (1) (529 SE2d 385) (2000).

        Visser v. State, 237 Ga. App. 798, 800 (516 SE2d 840) (1999); Knox v. State, 216 Ga. App. 90, 92 (3) (453 SE2d 120) (1995); Newman v. State, 216 Ga. App. 73, 74-75 (3) (453 SE2d 117) (1995); see also Carlisle v. State, supra.

        Jackson v. Virginia, supra.

       Although the dispatcher apparently termed it a complaint by a concerned citizen, this was, in fact and law, an anonymous tip because the identity of the tipster was unknown. See Florida v. J. L., 529 U. S. 266 (120 SC 1375, 146 LE2d 254) (2000). Moreover, even this information was hearsay because the dispatcher did not testify.

       See Allen v. United States, 164 U. S. 492, 501-502 (9) (17 SC 154, 41 LE 528) (1896).


source: Caselaw Access Project

author: Smith, Presiding Judge. Blackburn, Presiding Judge, Eldridge, Judge,

license: Public Domain

text:
    A00A0417.
    THE STATE v. BOWEN.
    (537 SE2d 417)
   Smith, Presiding Judge.

Reed Stephens Bowen was arrested for boating under the influence (“BUI”). See OCGA § 52-7-12 (a) (4). Department of Natural Resources rangers gave Bowen his implied consent notice and then a breath test. Bowen moved to suppress the results of the test. The trial court found that the Georgia Bureau of Investigation (“GBI”) had not published its procedures for granting permits for the administration of breath, blood, and urine tests under the BUI provisions of the Georgia Boat Safety Act. See OCGA § 52-7-12. Holding this failure to publish to be a violation of the Administrative Procedure Act (the “APA”), OCGA §§ 50-13-1 through 50-13-44, the trial court granted Bowen’s motion to suppress. On appeal, the State argues that the GBI’s procedures for awarding permits to breath, urine, or blood test operators are not subject to APA requirements. We disagree and affirm.

The trial court’s findings as to disputed facts in a ruling on a motion to suppress will be upheld absent clear error; however, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. [Cits.]” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). The facts here are not in dispute.

The State’s sole contention is that, pursuant to OCGA § 35-3-155, the GBI is not bound by provisions of the APA requiring it to publish its procedures for licensing individuals to administer breath tests under the BUI law. See OCGA § 50-13-3 (b). The State relies on an exemption from the APA for certain technical matters:

Unless otherwise specifically provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the [Division of Forensic Sciences of the Georgia Bureau of Investigation] shall not be subject to the . . . Administrative Procedure Act.

(Punctuation omitted.) OCGA § 35-3-155. The State argues that the GBI’s procedures for awarding permits to breath test operators are among the types of procedures, guidelines, or methods encompassed by the exemption.

The State recently made this same argument successfully to another panel of this court. In State v. Corriher, 243 Ga. App. 648 (533 SE2d 800) (2000), this court agreed with the State, holding that the procedure by which an officer obtains a certificate to operate an Intoximeter 5000 is such a “technical” procedure and is encompassed within the exemption provided by OCGA § 35-3-155.

We cannot agree with this conclusion. It is well established that in the interpretation of statutes, the primary rule is to discern the intention of the General Assembly. OCGA § 1-3-1. And the language used by the General Assembly in enacting OCGA § 52-7-12 weighs heavily against such a conclusion. OCGA § 52-7-12 (c) (1) creates the standard for blood, urine, and breath tests that are expressly admissible in a BUI case:

Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

The GBI’s authorization to establish the permitting requirements for test operators is contained in the second sentence of the statute and is completely distinct from its authorization to develop the methodology for performing the applicable chemical analyses. This does not lend itself to a finding that the GBI’s standards for issuing permits to qualified individuals are part of a technical or scientific method for collecting, preserving, or testing evidence.

We are also influenced by the GBI’s treatment of similar permitting requirements under the DUI law. OCGA § 40-6-392 (a) (1) (A). The GBI has published detailed regulations for issuing operator permits for breath, blood, and urine analyses in DUI cases. Ga. Admin. Code Rules 92-3-.01 through 92-3-.05. Its rule regarding the methods for conducting the actual tests is separate. See Ga. Admin. Code Rule 92-3-.06.

The State’s reliance on Helmeci v. State, 230 Ga. App. 866 (498 SE2d 326) (1998) is misplaced. In Helmed, we rejected the defendant’s argument that because the GBI had not published regulations governing the equipment and procedures for conducting urinalysis, his urine tests were inadmissible. The methodology for conducting urinalysis is squarely within the type of technical procedure covered by OCGA § 35-3-155 and is distinct from the rules for issuing a permit to conduct such a test.

The State encourages us in this case to interpret the technical exemption from the APA broadly enough to include these permitting requirements, as was done in Corriher. But we have previously acknowledged that the legislative intent of the APA was to provide “uniformity in administrative procedures,” and we have held that “exclusions from the APA should be as few as possible and should not occur except for cause.” (Punctuation omitted.) Dept. of Ed. v. Kitchens, 193 Ga. App. 229, 230 (2) (387 SE2d 579) (1989). Mindful that we have not chosen to interpret broadly exclusions from the APA, we decline to give OCGA § 35-3-155 the interpretation urged by the State and adopted in Corriher. We agree with the trial court, and we hold that the GBI’s rules for issuing permits under OCGA § 52-7-12 are subject to APA publication requirements and are not exempted by OCGA § 35-3-155, thereby overruling State v. Corriher, supra.

The State does not contend that the GBI complied with the APA in promulgating its procedures for issuing permits to conduct breath tests, nor does the State contend the test results might be admissible other than under OCGA § 52-7-12 (c). It follows that the ranger who administered Bowen’s breath test did not have a valid permit to do so under the BUI law and that the State cannot depend on OCGA § 52-7-12 (c) to establish the admissibility of the test results.

Judgment affirmed.

Johnson, C. J., Pope, P. J., Miller, Ellington, Phipps and Mikell, JJ., concur. Blackburn, P. J., and Ruffin, J., concur specially. Andrews, P. J., Eldridge and Barnes, JJ., dissent.

Blackburn, Presiding Judge,

concurring specially.

I concur fully in the analysis and judgment in this case. I write separately to make the point that this Court depends upon the parties involved to provide support in the record and in the law for their respective positions on appeal. The majority properly affirms the trial court’s grant of Bowen’s motion to suppress certain test results, based upon the Georgia Bureau of Investigation’s failure to publish its procedures for granting permits for the administration of breath, blood, and urine tests, holding that such failure was a violation of the Administrative Procedure Act, as outlined in the majority opinion.

The majority also seeks to overrule this Court’s opinion in State v. Corriher, 243 Ga. App. 648 (533 SE2d 800) (2000), which case had not been decided by this Court at the time of the trial court’s ruling in Bowen. Corriher reached the opposite result on the same issue, without benefit of input from Corriher.

Here, Bowen argues that the GBI’s treatment of similar permitting requirements under the DUI law, which continue to be published, logically supports his contention that such permitting requirements under BUI law should also be published, given the similarity of the charges and procedures involved. See OCGA § 40-6-392 (a). I point out that the GBI’s own actions in continuing to publish the permitting requirements under DUI law, while contending it has no duty to publish such requirements under BUI law is self-defeating. OCGA § 35-3-155 provides a general exception to the application of the APA. Its language gives no basis for concluding that it was intended to be applied differently to two such similar circumstances. It logically applies either to both or to neither. This argument provides a strong basis for determining the proper interpretation of OCGA § 35-3-155.

We note that the State’s position was unopposed in Corriher, and thus this argument was not presented to this Court in that case. While reasonable minds can disagree as to the interpretation of the subject statutes, Bowen’s argument is the most compelling. Thus, I agree with the majority’s determination that Corriher should be overruled.

I am authorized to state that Judge Ruffin joins in this special concurrence.

Eldridge, Judge,

dissenting.

The majority parses OCGA § 52-7-12 (c) (1) and determines that although the APA does not apply to the first sentence, it applies to the second. I cannot agree.

OCGA § 52-7-12 (c) (1), regarding chemical testing to determine whether one is “boating” under the influence, mirrors OCGA § 40-6-392 (a) (1) (A) regarding the same chemical testing to determine whether one is “driving” under the influence. The language of both statutes was adopted, respectively, in 1992 and 1988. In 1997, however, the legislature “consolidated] and revise [d] the laws of this state relating to the Division of Forensic Sciences of the Georgia Bureau of Investigation and forensic testing of evidence.” In so doing, the legislature passed OCGA § 35-3-150 et seq. which outlined the duties of the GBI Forensic Division and permitted the division to adopt its own standards for chemical testing:

The Division of Forensic Sciences of the Georgia Bureau of Investigation: (1) Shall provide a state-wide system of laboratories dedicated to conducting forensic analysis of evidence submitted to the laboratory by law enforcement agencies, prosecuting attorneys, coroners, and medical examiners; (2) Shall provide forensic services to the criminal justice system for the examination and analysis of evidence [;] (3) Shall establish standards for the identification, collection, transportation, and analysis of forensic evidence; (4) Shall facilitate independent testing or analysis of evidence within the possession, custody, or control of the division as provided in paragraph (3) of subsection (a) of Code Section 17-16-4, relating to discovery in criminal cases.

The legislature went further and permitted the Forensic Division to develop its own written guidelines for the administration of chemical testing:

The division shall: (1) Establish written standards and procedures for the administration of forensic testing. The division shall retain a copy of any procedure adopted pursuant to this paragraph which is modified for a period of five years from the date of its being superseded by the modification; (2) Adopt rules and regulations as required by law; and (3) In cooperation with the Georgia Peace Officer Standards and Training Council, provide for the training and certification of operators of such breath test equipment. A copy of such operator’s certificate shall be prima-facie evidence in any civil, criminal, or administrative proceeding that such operator was qualified to operate such equipment.

After outlining the responsibilities of the Forensic Division and permitting the division to promulgate its own methods for the administration of tests, including certifying those who administer them, the legislature specifically exempted the methods promulgated by the Forensic Division from the APA:

Unless otherwise specifically provided by law, technical, scientific, and similar processes, procedures, guidelines, standards, and methods for the collection, preservation, or testing of evidence adopted by the division shall not be subject to the provisions of Chapter 13 of Title 50, the “Georgia Administrative Procedure Act.”

Now, the majority holds that the legislature meant to exclude from the APA the methods the Forensic Division developed for the test, themselves, but to have the APA apply to the methods the division developed to certify the administrators of the tests. I cannot agree. Methods for administration are methods for administration. Administration is impossible without an administrator; the “methods developed for the administration” of chemical tests naturally include the administrators of those chemical tests. That is why the legislature permitted the division to certify its own test administrators and why a Forensic Division operator’s certificate is prima facie proof that the operator is qualified. I find that the majority’s distinction between test versus administrator has no rational basis under the statute, under the case law, under the legislative intent — which was to streamline the admissibility of chemical tests in criminal trials — or under plain old common sense. The officer in this case was certified by the Forensic Division for operation of the Intoxilyzer 5000. His certificate was tendered. The Forensic Division’s methods for certifying the officer are not applicable to the APA, regardless of whether the crime is prosecuted under OCGA § 52-7-12 or OCGA § 40-6-392. Granting Bowen’s motion to suppress was error as a matter of law. Accordingly, I dissent.

I am authorized to state that Presiding Judge Andrews and Judge Barnes join in this dissent.

Decided July 14, 2000

Jerry Rylee, Solicitor, Larry A. Baldwin II, Assistant Solicitor, for appellant.

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellee.

       Ga. L. 1992, p. 2079.

       Ga. L. 1988, p. 1896.

       (Emphasis supplied.) Ga. L. 1997, pp. 1421-1422. Thus, the majority’s review of the language of the older statute for “legislative intent” makes little sense. The legislature spoke quite clearly in adopting OCGA § 35-3-150 et seq. regarding the responsibilities of the GBI Forensic Division.

       OCGA § 35-3-151.

       (Emphasis supplied.) OCGA § 35-3-154.

       (Emphasis supplied.) OCGA § 35-3-155.

       See Love v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999) (“the Georgia General Assembly passed the Forensic Sciences Act, which made the APA inapplicable to the methods of evidence-testing adopted by the GBI’s Division of Forensic Sciences”); Price v. State, 269 Ga. 222, 225 (4) (498 SE2d 262) (1998); Hammontree v. State, 236 Ga. App. 342, 343-344 (2) (512 SE2d 57) (1999).


text:
    A00A0517, A00A0518.
    CHRISTENSEN v. THE STATE (two cases).
    (537 SE2d 446)
   Eldridge, Judge.

We have consolidated two appeals from appellant Mark Christensen. One challenges his criminal conviction for aggravated battery, and the second challenges the trial court’s denial of his motion to recuse.

Case No. A00A0517

A Muscogee County jury found Christensen guilty of aggravated battery arising from an incident that occurred during a pick-up soccer game involving Christensen and other professional players. During heated play, Christensen punched another player in the eye. The victim’s eye socket was fractured, and he received multiple stitches; pictures introduced at trial showed that his eye was severely blackened. Christensen appeals his conviction, raising nine enumerations of error. Upon review, we find Christensen’s contentions meritless and affirm.

1. Christensen first claims that the trial court erred by failing to charge the jury on (a) simple battery, and (b) “opprobrious words” as a defense thereto. We disagree.

(a) While the trial court did not charge on misdemeanor simple battery under OCGA § 16-5-23 (a) (1), the court charged on misdemeanor battery under OCGA § 16-5-23.1 (a) and (b). This is because the State proved that the victim sustained a substantially blackened eye. There was no evidence to the contrary. A charge on simple battery would be applicable if the State does not prove that the harm is visible per OCGA § 16-5-23.1 (b) or if there is some question in that regard which might create a jury issue. In this case, however, there was no evidence to support a simple battery charge under OCGA § 16-5-23 because it went undisputed that the injury to the victim consisted of “visible bodily harm” and that the victim’s eye was substantially blackened as a result of Christensen’s punch.

Further, harm as well as error must be shown to warrant reversal. “Battery” is a more aggravated offense than “simple battery” because, while both offenses are misdemeanors and share the same elements, “battery” requires proof of the additional element of “substantial physical harm or visible bodily harm.” The offense of “aggravated battery” is a felony which requires additional proof of (i) malice, and (ii) bodily harm which disfigures or renders a member of the victim’s body useless.

In this case, the trial court gave the jury the option to find Christensen guilty of the lesser included offense of misdemeanor battery or of felony aggravated battery as indicted. By its verdict, the jury found the additional aggravating circumstances necessary to convict on the greater felony offense. Since the jury rejected misdemeanor battery and found the additional aggravating elements to warrant felony conviction, we reject the idea that the jury might have reached a different result had they also been charged on the even less culpable misdemeanor of simple battery. Accordingly, “any error in this instruction on the lesser included offense was rendered harmless by the jury’s verdicts finding defendant guilty of the greater offense of [aggravated battery] in each alleged instance.”

(b) Opprobrious or “abusive language” can be a justification for simple battery. However, Christensen was not charged with simple battery, and simple battery was not a lesser included offense in this case. Accordingly, “abusive language” is not an applicable defense. “By its clear terms, the defense is limited to the offense of simple battery; it does not apply to the offense of battery.”

Further, Christensen specifically testified that he hit the victim, not because of any abusive language used, but because he thought the victim was going to hit him:

[Christensen:] I was afraid he was going to hit me with his right hand when he dropped his shoulder to step back and if you swing from the right hand side, that’s the side that you would block the punch if he was throwing right handed. . . .
[Defense counsel:] Okay. And the reason you did that, you were afraid he was about to hit you?
[Christensen:] Yes, sir.

Christensen took the stand and testified as to his intent in committing the act. Without any claim whatsoever by Christensen that he committed the offense because of abusive language, he was not entitled to a jury charge on abusive language as a justification for his committing the offense.

Finally, the jury rejected the misdemeanor offense of battery and found the additional elements necessary to convict on felony aggravated battery. “Abusive language” is not a defense to felony aggravated battery. Since, as a matter of law, an “abusive language” defense under OCGA § 16-5-25 would not apply to the offense for which Christensen was convicted, the failure to give such instruction is rendered harmless.

2. There was no error in the trial court’s charge to the jury on the offense of aggravated battery. The court charged on the language of the statute, the elements of the offense, and that the State must prove each element beyond a reasonable doubt.

Also, we find no conflict between the trial court’s charge that the victim’s loss of the use of his eye need not be permanent and the allegation in the indictment that Christensen rendered the victim’s eye “useless.” The court’s charge was a correct statement of the law. “The fortuitous fact that complete and permanent blindness did not result hardly suffices to create a fatal variance between allegata and probata.”

3. Christensen next asserts that the trial court erred in denying his motion for directed verdict. A motion for directed verdict is authorized only when there is no evidence to support a conviction. In this case, the testimony of the victim and several eyewitnesses regarding Christensen’s unprovoked attack on the victim, as well as pictures of the severity of the injury to the victim’s eye and expert testimony with regard thereto, was sufficient evidence to sustain the conviction. The expert medical testimony offered in rebuttal to the State’s evidence provides no basis to reverse. Such is addressed to the credibility of the witnesses, and an appellate court does not weigh the evidence or determine the credibility of witnesses. In this case, the refusal to direct a verdict of acquittal based on sufficiency grounds was proper.

4. The trial court admitted evidence of a similar transaction incident wherein Christensen punched a man in the face as a result of “road rage.” On appeal, Christensen does not contest his identity as the perpetrator of the prior act. Nor does he contest the similarity of the independent offense. His contention is that the trial court should not have permitted the investigating officer to testify as to a statement made by the victim of the prior act.

The trial court found that the victim’s statement was made 18 minutes after the incident, while the victim was still on the side of the road holding his bleeding face. The court determined that such statement was part of the res gestae of the prior offense, and the court permitted the officer to testify as to his investigation into the facts of incident, including the victim’s res gestae statement. “A trial court’s determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous.” Under the facts of this case and Christensen’s error as enumerated, we do not find the trial court’s admission of the evidence to be clearly erroneous.

5. Christensen contends that the trial court erred in refusing to permit him to recall in surrebuttal two defense witnesses to rebut the testimony of Christensen’s ex-wife, Linda. However, we find no error.

Linda Christensen was called by the State and testified that Christensen beat her about the head and face with his fists after he came home one evening upset because he had been ejected from a soccer game. Pictures of the injuries sustained by Linda Christensen were introduced. Thereafter, the defense wished to call two surrebuttal witnesses — not to refute the fact that Christensen had beaten his ex-wife — but to testify that Christensen had never been ejected from a soccer game. We find that this evidence would have only tangentially rebutted the substance of Linda Christensen’s testimony. Moreover, both witnesses had testified previously that Christensen had never been ejected from a soccer game. The trial court did not abuse its discretion in refusing to permit the witnesses to testify.

6. At the onset of the trial court’s charge to the jury, the judge instructed the jury regarding the indictment as a legal document. The court’s instructions included an explanation of the evidentiary significance of the indictment as “not evidence of his [Christensen’s] guilt nor is it evidence of his innocence by his plea of not guilty.”

We disapprove of this portion of the trial court’s instruction since a defendant need not supply “evidence of his innocence.” A criminal defendant is presumed innocent until proven guilty, and the trial court’s instruction as to “evidence of innocence” can serve only to confuse, even if such explanation was made solely in relation to the evidentiary value of an indictment.

However, jury instructions are not to be read in isolation. In this case, the trial court properly instructed the jury on Christensen’s presumption of innocence and the State’s burden to prove his guilt beyond a reasonable doubt. While the trial court’s preliminary charge in relation to the indictment was confusing, it was not reversible error in light of the jury charge as a whole.

7. We find no error in the trial court’s instruction to the jury that “[t]he outcome of this case has absolutely nothing to do with the civil case that the victim has filed against the defendant and the CYSA [Cobb Youth Soccer Association].” From the context in which this charge was given, it is clear that the court was instructing the jury that the outcome of this case, i.e., Christensen’s guilt or innocence, should be decided based on the evidence and the charge of the court, without regard to the outcome’s effect on the civil case. This was a correct statement of the law, and the trial court did not limit the legitimate purpose for which evidence of the civil case was introduced, i.e., as a challenge to the credibility of the victim.

8. Christensen contends that the trial court’s recharge on aggravated battery gave “undue weight” to that offense. We do not agree. Generally, “the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or give additional instructions.” In this case, the jury requested a recharge on aggravated battery. The record shows the jury wanted clarification as to the elemental differences between battery and aggravated battery: “[Foreperson:] We were just trying to determine the difference between the two charges. What makes battery aggravated and what doesn’t.” The trial court then recharged on both battery and aggravated battery substantially as the court had originally charged. We find no abuse of discretion in the recharge.

9. The trial court did not err by refusing to give a jury charge on the law relating to “retreat.” While Christensen claimed self-defense in that he thought the victim was going to hit him, there was no contention by the State that Christensen should have run away or otherwise “retreated” from the confrontation. Accordingly, the issue of “retreat” was not raised by the evidence or placed in issue.

Case No. A00A0518

On April 9, 1999, Christensen believed that the trial judge had a bias against him in the judicial proceedings. On April 12, 1999, his counsel had an affidavit and motion to recuse prepared and read into the record prior to trial. However, a motion to recuse was not filed. On May 26, 1999, the trial court entered an order that prior to filing the trial transcript, the trial court would review the transcript for errors.

After trial and sentencing, Christensen filed a motion to recuse on July 14, 1999, based upon conduct of the trial court during trial and the order regarding the transcript inspection, which was denied as untimely by the trial court on July 23, 1999. On June 25,1999, the trial court vacated its order as it pertained to inspecting the transcript prior to filing. On July 14, 1999, the defendant also filed an extraordinary motion for new trial based upon newly discovered evidence dealing with the trial court’s order that the trial court review the transcript of the trial for errors prior to filing. On July 23, 1999, this extraordinary motion was also denied as not setting forth legal grounds for recusal.

10. Defendant contends that the trial court erred in denying his motion to recuse the trial judge. We do not agree.

Upon filing a motion to recuse under Uniform Superior Court Rule 25.3, the trial judge has the immediate duty to determine (1) if the motion has been timely filed; (2) the legal sufficiency of the affidavit; and (3) if the motion to recuse states a legal ground for recusal, i.e., assuming the facts alleged are true “whether recusal would be warranted.” USCR 25.1 requires that the motion to recuse be made within five days after first learning of the basis for recusal, and not later than ten days prior to trial or hearing, or “unless good cause be shown for failure to meet such time requirements.”

(a) In regard to the motion to recuse of July 14, 1999, the trial court determined that it was untimely, which is the first duty of such judge when a motion to recuse is filed. The bases for recusal were matters that were known on April 12, 1999, occurred during trial, or arose out of the entry of the order of May 26, 1999. The trial court properly ruled that the motion was untimely, because the most recent in time grounds was the order of May 26, 1999, which was entered approximately 48 days prior to filing the motion to recuse. Unless the affidavit sets forth facts, reasons, and circumstances for the delayed filing of the motion that constitute good cause shown, such exception in the rule does not arise and would not be considered by the trial court in determining timeliness; the movant must invoke specifically such “good cause shown” exception.

(b) The trial court properly determined that the motion did not state legally sufficient grounds for recusal in that the defendant did not show extrajudicial bias or abuse of discretion of the trial judge in ordering that the transcript be prepared and reviewed by the trial court prior to filing; the objected-to portion of the order was vacated prior to the completion of the transcript so that it caused no delay in the appeal process.

(c) USCR 25.6 provides that, when the motion for recusal is transferred to another judge to pass upon the motion, such other judge will hear the matter based upon affidavit only at a hearing, “but may, in the exercise of discretion, convene an evidentiary hearing.”

Thus, Christensen is not entitled to have an evidentiary hearing unless his motion is found to be (1) timely; (2) the affidavit legally sufficient; and (3) the grounds legally sufficient; then the judge, hearing the recusal motion on the evidence, must exercise sound discretion to grant such evidentiary hearing. USCR 25.

11. Christensen contends that the trial court erred in denying his extraordinary motion for new trial based upon newly discovered evidence. We do not agree.

An extraordinary motion for new trial based upon newly discovered evidence is an improper vehicle to raise a motion to recuse; a motion to recuse can only be raised pursuant to USCR 25, which incorporates by rule approved by the Supreme Court the procedures to be followed in all cases of recusal. To allow an extraordinary motion for new trial based on newly discovered evidence to be a vehicle to raise the issue of recusal would allow by indirection what is prohibited by direction, i.e., untimely motions to recuse, and would render the USCR 25 procedure meaningless; therefore, such motion cannot be used in such fashion. Further, the holding in Division 1 governs this Division as well.

Judgment affirmed. Johnson,

C. J., Pope, P. J., Blackburn, P. J., and Phipps, J., concur. Barnes and Mikell, JJ, dissent.

Barnes, Judge,

dissenting.

Although I concur in Divisions 2, 3, 4, 5, 7, 8, 9, 10, and 11 of Judge Eldridge’s excellent opinion, I must respectfully dissent from Divisions 1 and 6 because I believe that errors in the trial court’s charge require us to reverse the conviction.

For a complete understanding of the issues in this case, the facts must be stated in greater detail than they are set out in the majority opinion. This case arose from an incident during a soccer game in which the defendant threw one punch after being called a motherf — r. Although initially sentenced to twenty years confinement with ten years to serve and ten years on probation, the trial court later reduced the sentence to seven years with two years to be served in confinement and the balance on probation. In the same order, the trial court gave Christensen credit for time served, allowed him to serve the balance of the two years under supervised probation, and ordered his immediate release from confinement. One of the terms of Christensen’s probation required him to have treated the tuberculosis he contracted.

The charge against Christensen arose from an incident at a pickup soccer game in a gymnasium. Based on the testimony, several skilled players were involved in a highly competitive game with extensive physical contact. Christensen and the victim became particularly physical, with extensive pushing and shoving and taunting between them. Finally, a direct confrontation ensued, and Christensen struck the victim in the face one time with his fist. According to one witness, Christensen struck the victim after the victim called him a motherf — r. After the victim fell to the floor, Christensen stood over him yelling for him to get up. Christensen testified that he hit the victim because he believed that the victim was about to hit him.

When those assisting the victim were unable to stop the bleeding, the victim was taken to the hospital where it was discovered that he had suffered an injury to the bone under his eye. The victim required stitches to his eyelid and the next day had double vision. The victim testified that he had double vision after his initial surgery and that the condition lasted for five or six months.

At trial, the evidence conflicted on the degree to which the injuries were permanent. The victim’s treating physician testified that the victim had a cut that ran through his eyelid, some swelling around the eye, and complained about intermittent double vision and pain when he looked up. Further examination showed that the victim had a fracture on the floor of his eye socket. The treating physician also testified that after treatment, the victim did not look like anything was wrong with him. After he was discharged from treatment, the victim never contacted this doctor again.

Christensen called expert witnesses who testified that the victim’s medical records did not support his claim of double vision. After his injury, the victim’s eye sight was 20/20; he has no vision restrictions on his driver’s license. In the fall after this incident, he played on a championship soccer team. Another physician, who examined the victim shortly before the trial, testified that he could not find in the treating physician’s comments that the victim claimed he had double vision while looking to his left. According to this physician, the victim’s medical records showed that the victim had complained of double vision with extreme upward and downward gaze shortly after the operation but later complained of double vision only on the upward gaze.

1. Christensen contends that the trial court erred by refusing to charge the jury on simple battery as a lesser included offense and refusing to charge on opprobrious words as a defense to simple battery. Although the trial court agreed initially that it would give a charge on simple battery, it ultimately decided to charge only battery with physical harm as a lesser included offense. Further, the trial court refused to give a charge on opprobrious words as a defense to simple battery.

A jury charge is authorized if there is some evidence from which a legitimate process of reasoning can be carried on in respect to the charge. T.G. & Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (2) (334 SE2d 910) (1985). This is true even if the great preponderance of the evidence is to the contrary. Lyles v. State, 130 Ga. 294, 295 (8) (60 SE 578) (1908).

Further,

even if a lesser offense is not included in a charged offense as a general matter because the two offenses have different elements, the lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well.

Messick v. State, 209 Ga. App. 459, 460 (1) (433 SE2d 595) (1993).

On appeal, the prosecution contends that a charge on simple battery was not warranted because the evidence established that Christensen was guilty of aggravated battery, and the majority has now, in effect, adopted this argument. This is an incorrect statement of the law.

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser 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.

(Citation and punctuation omitted; emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). A defendant is entitled to have the jury consider every lesser included offense raised by the evidence. Dickson v. State, 167 Ga. App. 685, 686 (2) (307 SE2d 267) (1983).

In Georgia,

a lesser offense may be included in the greater offense as a matter of fact or as a matter of law. A lesser crime is included in a charged crime so that the accused may be convicted of the lesser crime when: (1) it is established by proof of the same or less than all the facts required to establish the commission of the crime charged; or (2) it differs from the crime charged only in the respect that a less serious injury or risk of injury or a lesser kind of culpability suffices to establish its commission. OCGA § 16-1-6.

(Citation and punctuation omitted; emphasis in original.) Messick v. State, supra, 209 Ga. App. at 460 (1).

Applying these tests, I find that simple battery is a lesser included offense of aggravated battery under either test. Therefore, the only issue is whether simple battery was raised by the evidence.

Under our law, “A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” (Emphasis supplied.) OCGA § 16-5-23 (a).

In a similar manner, under our law, “A person commits the offense of battery when he or she intentionally causes substantial physical harm or visible bodily harm to another.” (Emphasis supplied.) OCGA § 16-5-23.1. Similarly,

A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by depriving him or her of a member of his or her body, by rendering a member of his or her body useless, or by seriously disfiguring his or her body or a member thereof.

(Emphasis supplied.) OCGA § 16-5-24 (a).

In this case, evidence is in the record from which the jury could decide that Christensen did not maliciously cause the injury to the victim. See McClain v. State, 232 Ga. App. 282, 283 (1) (502 SE2d 266) (1998) (“maliciously” means “intentionally and without justification or serious provocation”). Thus, based on Christensen’s testimony that he struck the victim, after the victim had used the offensive language, because he believed the victim was about to hit him, evidence exists from which the jury could conclude that Christensen’s conduct was not malicious.

Christensen’s testimony about his reason for hitting the victim also necessitates a charge on the lesser included offense of simple battery (OCGA § 16-5-23) even though the trial court gave a charge on battery (OCGA § 16-5-23.1). For Christensen to be convicted of either of these offenses it is not sufficient that physical harm, substantial or visible bodily harm, or bodily harm result. Christensen must have intentionally or maliciously caused the resulting harm. Therefore, the issue for the jury was not just whether the victim’s injury met the requisite degree of harm to constitute simple battery, battery, or aggravated battery, but whether Christensen acted with the required intent to inflict the injury. The issue for the jury also should have been whether Christensen intentionally caused the victim substantial physical injury or visible bodily harm (see OCGA § 16-5-23.1) or whether he intentionally caused him physical harm. OCGA § 16-5-23 (a). The majority overlooks this distinction.

Although the majority apparently feels comfortable allowing the trial judge to eliminate this issue, “[t]he intention with which an act is done is peculiarly for the jury. [Cit.]” (Punctuation omitted.) Eber hart v. State, 241 Ga. App. 164, 165 (1) (526 SE2d 361) (1999). Neither the majority nor the trial court has the authority to resolve this factual issue.

A person will not be presumed to act with criminal intention but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

OCGA § 16-2-6.

Further, because of the conflicting medical testimony regarding the seriousness and permanence of the victim’s injury, a jury question also was presented on whether the victim suffered the type of injury that would warrant a conviction of aggravated battery, battery, or simple battery. Richards v. State, 222 Ga. App. 853, 854 (1) (b) (476 SE2d 598) (1996). Therefore, I believe that our law requires a charge on the lesser included offense of simple battery. Edwards v. State, supra, 264 Ga. at 133.

Although the majority would dismiss this error because the jury found Christensen guilty of the most serious offense, I do not believe we can merely assume that the jury would have reached the result it did if a proper charge was given. This is particularly true since a charge on simple battery as a lesser included offense necessarily implicated a charge on the defense of opprobrious words.

A person charged with the offense of simple assault or simple battery may introduce in evidence any opprobrious or abusive language used by the person against whom force was threatened or used; and the trier of facts may, in its discretion, find that the words used were justification for simple assault or simple battery.

OCGA § 16-5-25. Whether the words allegedly used by the victim justified Christensen’s conduct is a jury question. Collum v. State, 65 Ga. App. 740, 742 (16 SE2d 483) (1941). Therefore, the trial court also erred by refusing to give this charge, and a new trial is required. It is mere speculation for us to conclude that the jury would have convicted Christensen of aggravated battery if a charge on this defense had been given.

2. Christensen also alleges that the trial court erred by instructing the jury as follows:

Now ladies and gentlemen, it is true that an indictment by a grand jury is not evidence of guilt nor is the plea of not guilty by the defendant evidence of innocence. What an indictment is, however, is a legal document that is used in the United States of America and in most jurisdictions and in other states in this country to say that there is probable cause for an individual to be tried for the offense for which the grand jury indicted this individual. In the United States of America, we do not simply jerk someone off the street and say you are accused of a crime and then come into some court somewhere and try them. The case goes before a grand jury and a grand jury hears testimony and they decide if there is enough evidence to accuse the defendant of aggravated battery. While it is not evidence of his guilt nor is it evidence of his innocence by his plea of not guilty. It is an official document and it has a place in the legal system. As I am required to do by the law, I shall at this time read you the indictment in this case.

The trial court then read the indictment to the jury. Later, the court made the following comments:

Now ladies and gentlemen, every Tuesday the grand jury meets and these indictments have to be returned in open court. That means one of us superior court judges, usually it’s around lunch time, comes in and has the deputy open the courtroom, the bailiff from the grand jury turns these indictments over to the court. The court then turns them over to the clerk or the deputy clerk and the deputy clerk takes them to the superior court clerk’s office on the second floor and they are filed and a number placed on them. This true bill was returned and signed by the foreperson, James N. King, on or about January 18, 1999, and it was filed and the [sic] stamped signature of M. Linda Pearce, Clerk of the Superior Court. It was in the December term of 1998, a term is two months, December and January. As I say, it is not evidence or proof of what it says nor is the plea of not guilty. But it is a legal document by which this case is brought before you for your consideration and determination.

Christensen made a timely objection to this charge asserting that the charge gave undue weight to the indictment. I agree.

This charge is not included in the Suggested Pattern Jury Instructions prepared by the Council of Superior Court Judges of Georgia. It is not apparent what the trial court intended by giving this elaborate charge on the indictment. Nor is it apparent what was intended by informing the jury that the indictment was a legal, official document. It is apparent, however, that this charge was wrong.

Decided July 14, 2000

Frank K. Martin, John T. Martin, for appellant.

J. Gray Conger, District Attorney, George E. Lipscomb II, Assistant District Attorney, for appellee.

The charge correctly instructed the jury that the indictment was not evidence and, at the same time, informed the jury that the indictment was an official, legal document. This charge was confusing and also, in effect, told the jury that they should consider that an indictment was rendered in reaching their decision. Also, by suggesting that some weight should be given to the indictment, the charge conflicted with the pattern jury instruction that an indictment “should not [be] considered] ... as evidence or implication of guilt.” Suggested Pattern Jury Instructions, Vol. II: Crim. Cases, 2nd ed., Part 2 (C). Under the circumstances, the instruction was unnecessary, confusing, and wrong. As charging errors are presumed harmful unless the record shows the error was harmless, and in my view the record does not support such a conclusion, I believe that Christensen’s conviction should be reversed. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Barton v. State, 79 Ga. App. 380, 387-388 (2) (53 SE2d 707) (1949).

Accordingly, I must respectfully dissent from Divisions 1 and 6 of the majority opinion and the judgment. I am authorized to state that Judge Mikell joins in this dissent.

       A person commits the offense of battery when he or she intentionally causes . . . visible bodily harm to another. As used in this Code section, the term “visible bodily harm” means bodily harm capable of being perceived by a person other than the victim and may include, but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.
      OCGA § 16-5-23.1 (a), (b).

        Ross v. State, 214 Ga. App. 385 (448 SE2d 52) (1994).

       OCGA § 16-5-23.1 (a).

        Paradise v. State, 212 Ga. App. 166, 170 (4) (b) (441 SE2d 497) (1994).

       Compare OCGA §§ 16-5-23; 16-5-23.1.

       OCGA § 16-5-24 (a).

        Paradise v. State, supra at 170 (4) (b).

       A person charged with the offense of simple assault or simple battery may introduce in evidence any opprobrious or abusive language used by the person against whom force was threatened or used; and the trier of facts may, in its discretion, find that the words used were justification for simple assault or simple battery.
      OCGA § 16-5-25.

        Danzis v. State, 198 Ga. App. 136, 137 (3) (400 SE2d 671) (1990).

       Justification goes to negate criminal intent. See Green v. State, 240 Ga. App. 774, 776 (525 SE2d 154) (1999).

        Childers v. State, 228 Ga. App. 214, 215 (1) (491 SE2d 456) (1997).

        Taylor v. State, 178 Ga. App. 817, 818 (2) (344 SE2d 748) (1986); Blackwood v. State, 224 Ga. App. 486, 489 (2) (b) (480 SE2d 914) (1997).

        Webb v. State, 228 Ga. App. 624, 625-626 (492 SE2d 312) (1997).

       (Citation and punctuation omitted.) Id. at 626. Further, whether a victim’s injury meets the evidentiary criteria to elevate a battery to aggravated battery is a question for the jury. Thus, we decline Christensen’s additional invitation to define the types of injuries that can meet such standard.

        Yawn v. State, 237 Ga. App. 206, 207 (515 SE2d 182) (1999).

        Jones v. State, 242 Ga. App. 357, 359 (2) (529 SE2d 644) (2000).

       (Citations and punctuation omitted.) Brinson v. State, 208 Ga. App. 556, 557 (1) (430 SE2d 875) (1993).

       Since the evidence was properly admitted under a res gestae exception to the hearsay rule, we will not address Christensen’s contention that the State failed to prove the evidence was admissible under a necessity theory. “Georgia law has never required proof of unavailability of the declarant to admit res gestae. [Cit.]” (Punctuation omitted.) Stovall v. State, 216 Ga. App. 138 (1) (453 SE2d 110) (1995).

        Rayburn v. State, 194 Ga. App. 676, 677-678 (4) (391 SE2d 780) (1990).

        Huzzie v. State, 236 Ga. App. 192, 197 (6) (512 SE2d 5) (1999).

        Lawson v. State, 224 Ga. App. 645, 649 (4) (481 SE2d 856) (1997).

       Compare Jackson v. State, 237 Ga. App. 746, 747 (516 SE2d 792) (1999).

        Wainwright v. State, 197 Ga. App. 43, 44-45 (2) (397 SE2d 456) (1990).

        State v. Fleming, 245 Ga. 700 (267 SE2d 207) (1980).

        Birt v. State, 256 Ga. 483, 484 (1) (350 SE2d 241) (1986).

       See Quarterman v. Quarterman, 268 Ga. 807, 808-809 (4) (493 SE2d 146) (1997); Wellons v. State, 266 Ga. 77, 88-89 (19) (463 SE2d 868) (1995); Baptiste v. State, 229 Ga. App. 691, 698 (2) (494 SE2d 530) (1997).

       See id.; Threatt v. State, 211 Ga. App. 630 (2) (440 SE2d 61) (1994); Foody v. State, 200 Ga. App. 230 (407 SE2d 469) (1991).

        State v. Fleming, supra at 702 (1); see also Wellons v. State, supra at 88 (18); Birt v. State, supra at 486 (4); King v. State, 246 Ga. 386, 390 (7) (271 SE2d 630) (1980); Baptiste v. State, supra at 694 (1).

       See Pace v. State, 271 Ga. 829, 833 (6) (524 SE2d 490) (1999); OCGA § 9-11-43 (b); Johnson v. Aetna Finance, 139 Ga. App. 452, 453-454 (2) (228 SE2d 299) (1976); Price v. Star Svc. &c. Corp., 119 Ga. App. 171, 178-179 (3) (166 SE2d 593) (1969).

       See in general State v. Fleming, supra at 702-703; Stevens v. Wakefield, 160 Ga. App. 353, 356 (2) (287 SE2d 49) (1981), rev’d on other grounds, Wakefield v. Stevens, 249 Ga. 254 (290 SE2d 58) (1982); Howard v. Dept. of Human Resources, 157 Ga. App. 306, 308 (1) (277 SE2d 301) (1981).

       See Threatt v. State, supra at 630 (2).


author: Pope, Presiding Judge. Smith, Presiding Judge,

text:
    A00A0677.
    ADKINSON v. THE STATE.
    (537 SE2d 474)
   Pope, Presiding Judge.

This is the second appearance of this case in this court. Adkinson was convicted of simple battery, possession of devices to commit crime, and five counts of violating the Georgia Controlled Substances Act. His wife, Kimberly, was convicted of aggravated assault, aggravated battery, possession of a firearm during the commission of a crime, possession of devices to commit crime, and five counts of violating the Georgia Controlled Substances Act. Adkinson v. State, 236 Ga. App. 270 (511 SE2d 527) (1999) (Adkinson I). The charges arose out of an altercation between the spouses, in which Adkinson shoved his wife, who was holding their child, and Kimberly shot Adkinson in the back. Officers discovered various drug paraphernalia, $3,000, marijuana, and amphetamines in a car belonging to Kimberly.

In Adkinson I, we reversed Adkinson’s conviction for possession of marijuana with intent to distribute, affirmed his conviction for possession of amphetamines with intent to distribute, and remanded the case to the trial court for consideration of Adkinson’s contention that his trial counsel was ineffective. The trial court found that Adkinson’s counsel’s decision to stipulate Kimberly’s in-custody statement into evidence did not constitute ineffective assistance. We agree.

1. Prior to trial, at a time when it was unclear whether Kimberly would testify, Adkinson’s counsel was presented with the opportunity to stipulate Kimberly’s statement into evidence. For the reasons shown below, he believed it would be helpful to his case. Adkinson’s counsel, together with Kimberly’s counsel, agreed to the stipulation. But the statement also inculpates Adkinson in the sale of drugs, which Adkinson denied. At the beginning of the lengthy statement, Kimberly said, that on the day of the incident, she and her husband “got up as usual. . . . Then, you know, the pager is going off, and he’s trying to make drug deals.” The statement also included references to Adkinson’s possession of a pager and a money pouch containing a large amount of cash.

2. It is true that the statement could not have been admitted without counsel’s stipulation. See Livingston v. State, 268 Ga. 205, 210-212 (2)-(4) (486 SE2d 845) (1997); OCGA § 24-3-52. But absent a demonstration of ineffectiveness, decisions by counsel as to what agreements to conclude regarding the admission of evidence are generally given effect. See New York v. Hill, 528 U. S. 110 (120 SC 659, 145 LE2d 560) (2000), citing United States v. McGill, 11 F3d 223, 226-227 (1st Cir. 1993). Thus, the only question is whether the trial court’s finding that counsel was effective was clearly erroneous. Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

3. To prevail on a claim of ineffective assistance of counsel, Adkinson must show both that counsel performed deficiently and that it is reasonably probable that this deficiency affected the outcome of the trial. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). Adkinson bore the burden of proving ineffectiveness. Garrett v. State, 196 Ga. App. at 874 (1). He was required to “overcome the strong presumption that his attorney’s performance fell within a wide range of reasonable professional conduct and that the attorney’s decisions were made in the exercise of reasonable professional judgment.” Berry v. State, 267 Ga. 476, 479 (4) (480 SE2d 32) (1997). Also, strategic and tactical choices are the exclusive province of the lawyer and when made after thorough investigation are virtually unchallengeable. Esquivel v. State, 236 Ga. App. 325, 326 (512 SE2d 61) (1999). See also Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998) (“[t]rial strategy and tactics do not equate with ineffective assistance of counsel”). In assessing effectiveness, we are reminded that “an attorney’s judgment need not necessarily be right, so long as it is reasonable.” McGill, 11 F3d at 227, citing Strickland v. Washington, 466 U. S. at 687-691. See also Ross v. State, 231 Ga. App. 793, 799 (7) (499 SE2d 642) (1998).

Here, Adkinson “was anxious to testify” for the State against his wife, and he voluntarily incriminated himself in so doing. Adkinson’s counsel had read and studied Kimberly’s statement, and he wanted to use it against her. Because he did not know whether Kimberly would testify, he seized the opportunity to put Kimberly’s statement into evidence. He testified that he believed Kimberly’s statement would prove favorable to Adkinson because it was self-contradictory and, in his opinion, “so incredible, so outlandish, that I thought it would help my client if I allowed the statement in.” For instance, in the statement Kimberly insisted that Adkinson was still attacking her and facing her when she shot him, notwithstanding evidence that showed Adkinson was shot in the back. Counsel gave his reasoning at the hearing,

I looked at the statement, and I analyzed it, and I felt that there were several things in the statement that would be helpful to him and make it look like she was not telling the truth and make it look like the drugs were hers. ... So if you take the whole thing in totality, the statement made her look so bad in my view that I let it in in hopes that the jury would see that and then believe him instead of her.

He chose not to have the statement redacted because he felt that the jury would see that Kimberly was just trying to place all guilt on her husband. He believed that the statement as a whole “would help instead of hurt.” He thought that there was “an excellent chance that the jury would believe that they were her . drugs and her drug paraphernalia and not Mr. Adkinson’s.”

During his testimony, Adkinson denied dealing and said that he got his own drugs from Kimberly and her father.

“The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case.” Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997). The trial judge believed that counsel’s decision constituted reasonable trial strategy. The trial court’s decision was supported by counsel’s testimony and was not clearly erroneous.

Judgment affirmed.

Andrews, R J., Blackburn, P. J., Ruffin, Miller and Ellington, JJ, concur. Smith, P. J., dissents.

Smith, Presiding Judge,

dissenting.

I must respectfully dissent.

Decided July 14, 2000.

Ann C. Stahl, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Regardless of any favorable effect of the rest of the statement, I cannot dismiss counsel’s stipulation as simply “strategy.” Trial counsel testified that he was “unsure” at the time he stipulated the statement’s admission whether Kimberly Adkinson was going to take the stand. He also testified that he knew he could have requested that the statement be redacted to eliminate the reference to Adkinson’s drug dealing, but he did not. And he testified that he was aware that OCGA § 24-3-52 provides that the statement of a joint offender made after the enterprise has ended is admissible only against the declarant.

Yet, even when it became known to trial counsel that Kimberly was not going to testify, leaving the statement as the sole evidence presented implicating Adkinson in drug dealing, he did not request a limiting instruction based upon OCGA § 24-3-52. In fact, he testified he was not sure he even thought about the fact that admitting the statement violated Adkinson’s Sixth Amendment Confrontation Right.

A strong presumption exists that trial counsel’s performance was within the range of reasonable professional assistance. Davis v. State, 238 Ga. App. 84, 89 (7) (517 SE2d 808) (1999). But I am persuaded that Adkinson met his burden of showing ineffective assistance. Trial counsel may have had strong reasons for agreeing to the stipulation initially. But in my view, when it became apparent that Kimberly would not testify and that her statement could not be used to incriminate Adkinson, counsel at least should have asked for a limiting instruction based upon OCGA § 24-3-52.

Because the statement was the only evidence supporting the State’s charge that Adkinson was in possession of amphetamines with intent to distribute, I agree with Adkinson that a reasonable probability exists that the outcome of the trial would have been different but for counsel’s deficiency. I would grant him a new trial.