text:
    A91A0052.
    GLASS v. THE STATE.
    (405 SE2d 522)
   Beasley, Judge.

Defendant appeals his convictions of two counts of armed robbery, OCGA § 16-8-41, and two counts of aggravated assault, OCGA § 16-5-21.

Defendant was indicted under two counts for robbing Pitts of his Georgia driver’s license by use of a pistol, an offensive weapon, and for shooting him with a pistol; under another two counts defendant was charged with robbing Lambert of his Georgia driver’s license by use of a pistol and with shooting at Lambert.

Construing the evidence in favor of the verdict, the following facts were adduced at trial. A car driven by Pitts, in which Lambert was a passenger, struck a truck driven by defendant. He immediately exited his vehicle, waving a pistol, demanded $1,500 and shot into the trunk of the Pitts vehicle. When the victims explained they did not have $1,500 but had insurance and would make sure he got the money, he demanded their driver’s licenses. Pitts relinquished a Georgia driver’s license but Lambert gave up only a Georgia identification card. Defendant marched them off at gunpoint after stating that “we’re going to deathland,” as related by Pitts. Lambert testified that defendant threatened them with “punish ground.” Defendant began striking Pitts and Lambert fled. Defendant fired at Lambert, missed him, and then shot Pitts once in the chest and once in the leg. Lambert had someone call the police and defendant left the scene before they arrived. He was apprehended several months later.

1. Defendant contends there was a fatal variance between the allegations of the indictment and the proof at trial as to the armed robbery of Lambert because he was robbed of his Georgia identification card and not his driver’s license. Roberson v. State, 187 Ga. App. 485, 487 (370 SE2d 661) (1988), and Nesmith v. State, 183 Ga. App. 529, 531 (359 SE2d 421) (1987), are cited for the proposition: “If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance.”

Under DePalma v. State, 225 Ga. 465, 469 (169 SE2d 801) (1969), and Dobbs v. State, 235 Ga. 800 (3) (221 SE2d 576) (1976), “[n]ot every variance in proof from that alleged in the indictment is fatal.” Givens v. State, 149 Ga. App. 83, 86 (253 SE2d 447) (1979). The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. DePalma, supra. Unless the variance subjects defendant to one of these dangers it is not fatal. See Dobbs, supra at 802, which noted that the fatal variance doctrine had previously been applied too restrictively.

The Supreme Court consistently and this court, in the main, have departed from overly technical application of the rule. The true inquiry is whether there has been such a variance as to “affect the substantial rights” of the accused. Partridge v. State, 187 Ga. App. 325, 327 (3) (370 SE2d 173) (1988); Shackelford v. State, 179 Ga. App. 595, 596 (347 SE2d 346) (1986). There was no fatal variance where the indictment described a shotgun as the weapon and the evidence revealed a pistol was used. Jackson v. State, 158 Ga. App. 702 (3) (282 SE2d 181) (1981); Brawner v. State, 81 Ga. App. 163, 166 (3) (58 SE2d 238) (1950). In armed robbery cases, a variation which concerns a description of or the amount of stolen property is not fatal. Maxey v. State, 159 Ga. App. 503, 504 (284 SE2d 23) (1981).

Decided April 9, 1991.

Donna L. Avans, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John G. Isom, Richard E. Hicks, Assistant District Attorneys, for appellee.

Glass sought the victim’s driver’s license and obtained his identification card. Defendant had notice of the charges against him and was not surprised nor prevented from preparing his defense. There was no danger that he would be placed in jeopardy twice for the same offense. Fatal variance is absent. The proof of defendant’s actions, that is, the manner of gaining the misdescribed document, did not vary from the charge.

2. Defendant contends that the aggravated assault of each victim merged with the armed robbery of each because a crime is included if it “is established by proof of the same or less than all the facts . . . required to establish the commission of the crime charged.” OCGA § 16-1-6 (1).

Aggravated assault is not a lesser included offense of armed robbery as a matter of law, State v. Hightower, 252 Ga. 220, 222 (312 SE2d 610) (1984), but may be included as matter of fact. Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639) (1986). As to the latter, defendant relies upon Ramsey v. State, 183 Ga. App. 344 (358 SE2d 902) (1987), where the aggravated assault was committed while the robbery was “still in progress.”

Glass’ robberies were completed, both victims having been deprived of their property, when they were marched off for another criminal purpose. Then the aggravated assault on each victim occurred. The offenses did not merge as a matter of fact. Smith v. State, 258 Ga. 181, 183 (4) (366 SE2d 763) (1988); Harvey v. State, 233 Ga. 41, 42 (1) (209 SE2d 587) (1974); Loumakis v. State, 179 Ga. App. 294, 297 (3) (346 SE2d 373); Lambert v. State, 157 Ga. App. 275 (277 SE2d 66) (1981). See Millines v. State, 188 Ga. App. 655, 656 (1) (373 SE2d 838) (1988).

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A91A0159.
    CLINE v. THE STATE.
    (405 SE2d 524)
   Birdsong, Presiding Judge.

Danny Cline has filed a notice of appeal from the order of the trial court denying his motion for new trial. He also appeals the judgment of conviction of fleeing and eluding, reckless driving, aggravated assault, criminal interference with government property, and being a recidivist. Further, he appeals his sentence. On appeal appellant’s sole enumeration of error is want of sufficiency of evidence. Appellant expressly argues that the record does not contain any evidence of intent necessary to support his conviction of aggravated assault. Held:

1. Appellant has not argued or submitted citations of authority in his appellate brief regarding the issue of the recidivist count recited in the notice of appeal; accordingly, that issue, if it was intended to be encompassed in appellant’s broad enumeration of errors, has been abandoned. Court of Appeals Rule 15 (c).

2. Simple assault is an essential element of aggravated assault under OCGA § 16-5-21 (a). However, aggravated assault committed by means of a deadly or offensive weapon (OCGA § 16-5-21 (a) (2)), unlike aggravated assault committed with the intent to murder, rape or rob, does not require a specific criminal intent (compare McWilliams v. State, 172 Ga. App. 55 (2) (322 SE2d 87)); rather it requires only a general criminal intent such as defined in OCGA § 16-2-1, which in the case of simple assault under OCGA § 16-5-20 (a) (1), is a general intent to injure (see Watkins v. State, 254 Ga. 267, 269 (2) (328 SE2d 537)). General intent to injure may be proven by circumstantial evidence and is a question of fact for the trier of fact to determine. See generally OCGA § 16-2-6; Daughtry v. State, 180 Ga. App. 711, 712 (1) (350 SE2d 53). Criminal intent rarely can be proved by direct evidence, but its existence may be inferred by the trier of fact “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, the triers of fact may infer, if they wish to do so, that a person of sound mind and discretion intends the natural and probable consequences of his knowing acts. See Parker v. State, 256 Ga. 363 (1) (349 SE2d 379). Whether any such inference is made is solely a matter within the factfinder’s discretion, and any such inference is rebuttable. See Parker, supra at 365 (1). Mere innocent contact, as a matter of law, does not include an intent to injure. Watkins, supra at 269. Whether contact is innocent usually presents a question of fact.

“A person commits the offense of aggravated assault when he assaults ... (2) With a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) OCGA § 16-5-21 (a). As aggravated assault includes the elements of a simple assault, it is essential that an aggravated assault by automobile, under OCGA § 16-5-21 (a) (2), be committed with a general intent to injure. Watkins, supra at 269. “Although an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner and means of the vehicle’s use. [Cit.] The question of whether an automobile, or other instrumentality, has been used so as to constitute a deadly or offensive weapon is properly for the jury’s determination.” Spaulding v. State, 185 Ga. App. 812, 813 (1) (366 SE2d 174); compare Payne v. State, 195 Ga. App. 523 (4) (394 SE2d 781); Blalock v. State, 165 Ga. App. 269 (299 SE2d 753); and Craft v. State, 158 Ga. App. 745 (2) (282 SE2d 203). “The fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.” Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683).

Police officers went to appellant’s home on business; appellant drove by, saw the police, and fled. The police followed in lawful pursuit. Appellant drove his vehicle in speeds reaching 105 miles per hour, and went through an intersection at 100 miles per hour. At one point appellant went through a four-way stop sign at a high rate of speed and shortly thereafter executed a power slide turn. Deputy Sheriff Hendrixson spotted appellant and attempted to intercept him. Hendrixson positioned his car in front of appellant’s and attempted a rolling roadblock by gradually slowing down and changing lanes whenever appellant changed lanes. The maneuver failed. Hendrixson then attempted a partial roadblock, which gave appellant the option to stop or to go safely around the patrol car. The partial roadblock was initiated “a good two hundred yards” in front of appellant’s approaching vehicle, and Hendrixson’s headlights and emergency lights were on. Appellant first reacted as if he would stop; appellant next reacted as if he were going to go around Hendrixson and, at this point, appellant’s headlights did not illuminate the patrol car; then Hendrixson saw appellant’s light beams “adjust” and illuminate the inside of the patrol car, and the patrol car was struck with Hendrix-son inside. Appellant continued driving north, and the police “gave chase.” The chase ended only after appellant wrecked his car. The collision resulted in major damage to the rear of the Cherokee County patrol car driven by Hendrixson. Two loaded pistols were found on the front seat of appellant’s car. At the time of the incident, appellant had a prior felony conviction for aggravated assault.

The evidence here was sufficient to enable any rational trier of fact to find appellant harbored the requisite criminal intent to commit aggravated assault beyond a reasonable doubt. See Division 3, below.

3. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 9, 1991.

Philip C. Smith, for appellant.

Garry T. Moss, District Attorney, C. David Gafnea, Assistant District Attorney, for appellee.

Judgment affirmed.

Cooper and Andrews, JJ., concur. Pope, J., disqualified.


author: Carley, Judge.

text:
    A91A0218.
    BROOKS v. FRICKE.
    (405 SE2d 536)
   Carley, Judge.

Appellant-plaintiff was injured when the motorcycle that he was riding was struck by an automobile that was being operated by appel-lee-defendant. As the result of this collision, suit was filed and the case was brought to trial before a jury. At the close of appellant’s evidence, appellee moved for a directed verdict as to his liability. The trial court granted a directed verdict in favor of appellee and appellant appeals.

The collision occurred at an intersection which was controlled by a traffic signal. According to appellant, he had a green light at the time he entered the intersection. Thus, appellant met his initial burden of showing, at least circumstantially, that the proximate cause of the collision was appellee’s negligence in running a red light and the burden of showing the contrary was shifted to appellee. Washington v. Washington, 181 Ga. App. 848 (354 SE2d 25) (1987); Stephens v. McClain, 129 Ga. App. 634 (200 SE2d 511) (1973). “ ‘It is accepted generally as settled law that negligence, like any other fact, may be proved by circumstantial evidence as well as by direct testimony.’ ” Cagle v. Atchley, 127 Ga. App. 668, 675 (5) (194 SE2d 598) (1972). Since the motion for directed verdict was granted before appellee had testified as to his own version of how the collision had occurred, there was no evidence which would have authorized, much less demanded, a verdict in appellee’s favor and it follows that the trial court erred in granting appellee’s motion for a directed verdict.

Judgment reversed.

Banke, P. J., and Beasley, J., concur.

Decided April 9, 1991.

Jett & Liss, Joel I. Liss, for appellant.

Harper, Waldon & Craig, J. Blair Craig, Christopher M. Farmer, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0225.
    NORWOOD v. THE STATE.
    (405 SE2d 526)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of burglary. Judgment was entered on the verdict on June 4, 1990, and defendant was sentenced. On July 16, 1990, the Public Defender of Fulton County was appointed to represent defendant on appeal. However, the post-judgment time limit for filing a motion for new trial or an appeal had expired and the public defender filed a motion for out-of-time appeal. The trial court granted permission for an out-of-time appeal and, on July 19, 1990, an out-of-time appeal was filed on defendant’s behalf. Defendant now contends, for the first time on appeal and in his only enumeration of error, that his trial counsel was ineffective. Held:

“[I]t is well settled that this court will not consider issues and grounds for objection which were not raised and passed upon in the trial court. [Cits.]” Jefferson v. State, 157 Ga. App. 324, 325 (2), 326 (277 SE2d 317). However, in Smith v. State, 255 Ga. 654 (341 SE2d 5), the Supreme Court “ ‘ “established the practice of remanding to the trial court the claim of ineffective assistance, when such claim was raised only on appeal. The advantage of this procedure is that the claim can be promptly resolved by the judge who presided over the trial as opposed to having it resolved by a habeas court somewhere down the road.” Lloyd v. State, 258 Ga. 645 (fn. 1) (373 SE2d 1) (1988). See also Lloyd v. State, 257 Ga. 108 (355 SE2d 423) (1987).’ Hutton v. State, 192 Ga. App. 239, 241 (5) (384 SE2d 446) (1989). It is not true, however, that every case which asserts for the first time on appeal an issue as to the effectiveness of counsel must be remanded to the trial court. Rather, our Supreme Court, through a series of cases, has fashioned a procedure whereby the appellate court, in deciding whether it should remand the case, should look to whether the issue of ineffectiveness was raised ‘at the earliest practicable moment.’ Thompson v. State, 257 Ga. 386, 388 (2) (359 SE2d 664) (1987).” Weems v. State, 196 Ga. App. 429 (3) (395 SE2d 863).

Decided April 9, 1991.

Mary E. Erickson, Donna L. Avans, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Nancy A. Grace, Assistant District Attorneys, for appellee.

In the case sub judice, appellate counsel did not raise the issue of ineffective assistance of trial counsel before filing an out-of-time appeal. Consequently, we must determine whether defendant’s ineffective assistance claim was raised “at the earliest practicable moment” so as preserve the issue for appellate review.

In Bell v. State, 259 Ga. 272 (381 SE2d 514) (1989), the Supreme Court of Georgia “declined to address a claim of ineffective assistance of counsel because the defendant did not raise the issue in his original request for an out-of-time appeal or in the trial court after the request was granted.” Ponder v. State, 260 Ga. 841, 842 (1) (400 SE2d 922). The Supreme Court recently clarified this decision, holding “that the grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial [, and] that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evi-dentiary hearing. See Bell, supra.” Ponder v. State, 260 Ga. 841 (1) supra.

In the case sub judice, it appears that defendant waived his ineffective assistance of counsel claim by failing to raise the issue in a motion for new trial after the trial court granted permission for the out-of-time appeal. However, since defendant filed his out-of-time notice of appeal over seven months before the Supreme Court of Georgia “addressed expressly the issue of whether a motion for new trial could be filed following the grant of a motion for out-of-time appeal, it would be manifestly unfair to deny [defendant] an opportunity to follow the procedure ... set out [in Ponder v. State, 260 Ga. 841 (1), supra].” Ponder v. State, 260 Ga. 842 (2), supra.’“We therefore . . . remand to give defendant an opportunity to litigate this issue.” Meders v. State, 260 Ga. 49, 55 (10), 56 (389 SE2d 320). Defendant’s right to appeal an adverse determination, if any, within 30 days of any such adverse determination is preserved.

Case remanded with direction.

Sognier, C. J., and Andrews, J., concur.

       More specifically, defendant argues that his trial attorney did not object when the State impermissibly placed his character in issue; that his trial attorney failed to preserve objections to erroneous jury instructions; that his trial attorney failed to object when three State’s witnesses testified to matters outside their knowledge; that his trial counsel “forced [him] to testify without assistance of counsel” and that his trial counsel “failed to object to the [State’s attorney’s] improper comment about [defendant’s] ability to give a truthful answer.”


author: Beasley, Judge.

text:
    A91A0529.
    MATHIS v. THE STATE.
    (405 SE2d 528)
   Beasley, Judge.

Defendant was sentenced after he pleaded guilty to two counts of selling cocaine. He filed a motion for new trial on the “general grounds” and after it was overruled, appealed to this court. In the sole enumeration of error defendant contends that his guilty plea was not entered into knowingly and voluntarily because at the, time he was on pain medication which could have affected his mental capacity.

A motion for new trial is not the proper vehicle for withdrawing a guilty plea. Lamons v. State, 170 Ga. App. 745 (318 SE2d 509) (1984); Amos v. State, 161 Ga. App. 281 (2) (287 SE2d 743) (1982). However, the trial court permitted defendant to raise the issue of involuntariness on the motion for new trial hearing and treated it in effect as a motion to withdraw. See Stevens v. State, 169 Ga. App. 646 (314 SE2d 481) (1984).

Considering the merits, defendant introduced medical records which indicated that at 7:25 a.m. on the day defendant was to be tried he was given 5 milligrams of Percocet, a painkiller. His trial began at 9:30 and defendant participated with his counsel during jury selection. A plea bargain was offered to defendant to drop three counts of a five count indictment in exchange for his guilty plea to the other two. Defendant consulted with his counsel and his family for about 30 minutes before deciding to accept the plea arrangement.

The trial court interrogated defendant in conformity with the requirements of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), and USCR §§ 33.7; 33.8; and 33.9. See State v. Germany, 245 Ga. 326 (265 SE2d 13) (1980); Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971). See also Logan v. State, 256 Ga. 664 (352 SE2d 567) (1987). At the beginning, the court inquired if defendant was under the influence of “drugs or alcohol today?” and received the response: “No sir, prescription drugs is all.” The court asked if the drugs were “mind altering in anyway?” When defendant answered, “Sir?” and the question was repeated, his counsel responded “They are some pain pills for his back.” The court asked again if “these are pain pills for your back, some back condition?” Defendant answered: “Yes, sir.”

Defendant now contends that because dizziness, lightheadedness and sedation might be side effects of Percocet the State failed to prove his plea was entered into voluntarily. There was no evidence that defendant was incapacitated, handicapped, or even affected, by the prescription drug. The State has filed two affidavits dated after the hearing, one by a deputy sheriff and another by trial counsel for defendant, both of which stated that defendant showed no signs of being under the influence of any drug or alcohol during the plea negotiation stage. Although late, we can consider these affidavits under State v. Newsome, 259 Ga. 187 (378 SE2d 125) (1989). There is no basis for finding that defendant pleaded guilty while incompetent and thus, that he did so unknowingly and involuntarily.

Decided April 9, 1991.

Bennett, Wisenbaker, Bennett & Williams, Michael S. Bennett, for appellant.

H. Lamar Cole, District Attorney, Bradffeld M. Shealy, Assistant District Attorney, for appellee.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A90A2380.
    AUSTIN v. THE STATE.
    (405 SE2d 499)
   Birdsong, Presiding Judge.

George Gene Austin appeals his conviction of armed robbery and three counts of kidnapping.

On June 20, 1989, three persons robbed the Harris Audio facility of recording and audio equipment valued at approximately $250,000. Two robbers entered the building about 5:30 p.m. and held the store manager and secretary on the floor at gunpoint, after binding their mouths with silver duct tape and their wrists with handcuffs. They heard the robbers use a “walkie talkie” to let another person know the situation was “secured.” A customer arrived while the robbers prepared to remove goods to a van outside. He saw a third robber wearing a “Spiderman” mask; this robber seemed very tall, about 6T0" or 6'11". The customer was bound and held on the floor with the other victims.

One of the robbers, Jim Gray, expected to get $12,000 from the sale of the stolen equipment, but was delayed in getting his money. Gray told a friend to whom he owed money that he would pay the friend when these goods were sold; the friend contacted the FBI. Gray admitted participation in the robbery and focused attention on appellant as the ringleader.

Appellant had recently moved from California and built a recording studio at his home in Stone Mountain; he had visited Harris Audio several times and toured the facilities at an open house. Gray directed investigators to a storage rental facility where he and appellant had taken some of the stolen goods. Employees at the storage facility identified photos of appellant as the person who, calling himself “Rich Reed,” rented storage space in the late afternoon of June 20, 1989; they also identified him at trial. Equipment stolen from Harris Audio was found in the rented storage space. A search of appellant’s house and recording studio garnered equipment stolen from Harris Audio; many guns, silver duct tape and several pairs of handcuffs identified at trial as the same type as those used in the robbery; several “C.B.” radios; and a “Spiderman” mask.

Appellant testified he bought the equipment found in his studio from Gray. The mask was not his but was left at his house by Gray; appellant put it in his safe where the police found it. He testified he had the handcuffs because he was “seeing someone [who] was into bondage.” He went with “Reed” to rent storage space where they stored items they each had bought from Gray. A witness testified she was with appellant at his studio on June 20, 1989, from 6:00 to 6:30 p.m. Appellant said he is 6 4 , not 6 10 or 6 11 .

Appellant enumerates six errors below. Held:

1. Appellant contends the trial court erred in allowing investigators to testify that they found several stolen items which had nothing to do with this armed robbery, particularly since the assertion that such items were stolen was hearsay. We find no error. This evidence was admitted freely on several occasions without any objection by appellant. See Hughley v. State, 144 Ga. App. 771 (242 SE2d 367). Counsel eventually did object to one item of this evidence on grounds of hearsay, but where evidence is admitted elsewhere without objection the objection when subsequently made is properly overruled. Chambers v. State, 183 Ga. App. 874, 875 (360 SE2d 438).

2. It was not error to allow Gray to testify despite the State’s failure to name him on a list of witnesses demanded by appellant. The purpose of OCGA § 17-7-110 is to ensure that an accused is not confronted at trial with testimony against him when he has not had an opportunity to interview the witness prior to trial. Logan v. State, 170 Ga. App. 809, 810 (318 SE2d 516). The trial court offered appellant the opportunity to interview Gray prior to trial, and by declining the opportunity to interview the witness, appellant waived the right to object to the testimony of the witness. Gilbert v. State, 159 Ga. App. 326, 330 (283 SE2d 361); compare Brown v. State, 242 Ga. 536, 537 (250 SE2d 438), distinguished by its facts.

3. Appellant contends the State misled the jury by failing to “re- H veal the deal” of leniency made with Gray. We find no error. TheU prosecution denied any such deal was made and the record does notffl disclose otherwise. This record contains no transcript of any pretrial H proceedings which might prove there was a “deal” of leniency whichH the jury should have been allowed to consider in evaluating Gray’s testimony. Without a record which would prove the asserted fact, we cannot consider it (Russell v. State, 155 Ga. App. 555, 556 (271 SE2d 689)); appellant does not prove error by mere assertions in his brief. Smith v. State, 160 Ga. App. 26 (285 SE2d 749).

Decided February 25, 1991

Rehearings dismissed March 25, 1991 and April 10, 1991

Debra B. Randall, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Carl P. Greenberg, Assistant District Attorneys, for appellee.

4. These convictions were not based on uncorroborated testimony of the accomplice contrary to OCGA § 24-4-8. There was substantial independent evidence of appellant’s guilt. Claybrooks v. State, 189 Ga. App. 431 (375 SE2d 880).

5. It was not error to admit evidence of the property seized. The search warrant was validly based on information obtained from Gray in the presence of the affiant. See McNeal v. State, 133 Ga. App. 225, 227 (211 SE2d 173). Gray’s confession, particularly as it was corroborated by the verity of some of the information he gave, made his information connecting appellant to the crime sufficiently reliable to support the search warrant without corroboration. Compare Evans v. State, 161 Ga. App. 468, 470 (288 SE2d 726). See State v. Stephens, 252 Ga. 181 (311 SE2d 823); Duckworth v. State, 246 Ga. 631, 633 (272 SE2d 332). The search was not overbroad by extending into appellant’s bedroom drawers and closets, inasmuch as the recording studio was, according to the evidence provided, an integral part of appellant’s residence.

6. The evidence is sufficient to persuade the rational factfinder of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). The judgment is not contrary to the evidence or the law.

Judgment affirmed.

Banke, P. J., and Cooper, J., concur.


text:
    A91A0309.
    ADAMS v. THE STATE.
    (405 SE2d 537)
   McMurray, Presiding Judge.

Defendant Adams appeals his conviction of the offenses of voluntary manslaughter, aggravated assault upon a peace officer, robbery by force, and possession of a firearm by a convicted felon. Held:

1. Defendant was sentenced on November 10, 1983, and a timely motion for new trial was filed by defendant’s trial counsel. Defendant’s trial counsel also filed a motion to remold sentence on December 28, 1983, filed a motion for judgment notwithstanding the verdict, and accomplished the return of defendant to the county jail for a period of time to permit consultation concerning the pending motion for new trial. Nonetheless, no hearing was held on the motion for new trial until July 3, 1990. The order filed July 5, 1990, denying defendant’s motion for new trial, and also denying his motion for judgment notwithstanding the verdict and motion to remold the sentence, recited that defendant was represented by his trial counsel.

An order appointing defendant’s appellate counsel was filed July 11, 1990. Thereafter, orders were entered providing appellate counsel additional time to file a notice of appeal and finally, authorizing an out-of-time appeal.

On appeal, most of defendant’s six enumerations of error seek to reach a single incident at trial. Trial counsel took steps to assure that the record preserved the fact that the State used all of its peremptory challenges to strike blacks, but offered no objection or motion in this regard. Even though the trial of the case sub judice predated Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), defendant contends that the law as it then existed should have precipitated a challenge to the prosecution’s use of peremptory strikes in a racially discriminatory manner. Thus, defendant raises a claim of ineffective assistance of counsel.

“ ‘In the present case, appellate counsel did not represent [defendant] at trial or at the motion for new trial. Therefore, the requirement of Thompson [v. State, 257 Ga. 386 (359 SE2d 664)] that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. . . . (T)he requirement of Dawson v. State, [258 Ga. 380 (369 SE2d 897) (1988)], that an evi-dentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. Although [defendant] should have by now filed a request for an evidentiary hearing, he is not barred from proceeding with his claim on this account. Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing at this point.’ Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). Accordingly, this case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of [trial counsel]. ‘If the trial court finds [defendant] was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to [defendant], [defendant’s] right to appeal that order within thirty days is preserved. (Cit.)’ Brooks v. State, 187 Ga. App. 92, 94 (2) (369 SE2d 349) (1988).” Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797).

Decided April 10, 1991.

O. L. Collins, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

2. Defendant also enumerates as error the conduct of the hearing on his motions, including his motion for new trial without the presence of any counsel to represent defendant. While the trial court’s order, denying defendant’s motions for new trial, to remold sentence, and for judgment notwithstanding the verdict, recited that defendant was represented by his trial counsel, the transcript of the hearing fails to show that an attorney representing defendant was present at the hearing on these motions.

Defendant’s right to counsel attaches once judicial proceedings have been initiated against him and the accused is entitled to the representation of an attorney at all critical stages thereafter through an initial appeal. State v. Simmons, 260 Ga. 92, 93 (390 SE2d 43); Thornton v. Ault, 233 Ga. 172, 173 (210 SE2d 683). “A critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” Ballard v. Smith, 225 Ga. 416, 418 (2) (169 SE2d 329).

Although defendant’s motion for judgment notwithstanding the verdict was not appropriate to a criminal case (State v. Bilal, 192 Ga. App. 185, 186 (384 SE2d 253)), the hearing on the remaining motions for new trial and to remold the sentence were critical stages in the prosecution of defendant at which he was entitled to be represented by counsel. Since counsel was not present at the hearing on these motions and there was no waiver of defendant’s right to counsel, the trial court’s order insofar as it denied defendant’s motion for new trial and motion to remold sentence is vacated, and upon remand the trial court shall reconsider these motions. Defendant’s right to appeal an adverse determination, as well as the resubmission of all other issues raised in this initial appeal, within 30 days of any such adverse determination is preserved.

Judgment vacated and case remanded with direction.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0728.
    POWELL v. THE STATE.
    (405 SE2d 540)
    Decided April 10, 1991.

      William M. Shingler, for appellant.

      Charles M. Ferguson, District Attorney, J. Robert Smith, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant Powell appeals his conviction of three counts of aggravated assault, first degree arson, and possession of a firearm by a convicted felon. The sole enumeration of error contends the trial court erred in denying defendant’s motion for a continuance based upon defendant wearing his prison uniform. Held:

While it is well established in Georgia that a criminal defendant has a right to appear at trial in civilian clothes rather than prison clothing, this right may be waived where there is a failure to assert it | properly. In the case sub judice, there is ample evidence that defend- | ant was aware of this right, but nonetheless, chose to appear before I the jury in his prison uniform prior to invoking any ruling asserting I this right. This amounted to a waiver of this procedural rule and the I trial court did not err in denying defendant’s motion for continuance | whereby he belatedly sought to assert same. Krist v. State, 133 Ga. App. 197 (1) (210 SE2d 381).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0854.
    WILLIAMS v. THE STATE.
    (405 SE2d 539)
   McMurray, Presiding Judge.

Defendant Williams appeals his conviction of a violation of the Georgia Controlled Substances Act (possession of cocaine with intent to distribute). Held:

1. Defendant’s second enumeration of error contends that the evidence was not sufficient to support a conviction for possession of cocaine with intent to distribute. The argument in support of this enumeration is limited to the issue of whether defendant had an intent to distribute the cocaine found in his possession when he was detained at a roadblock. “To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession. Wright v. State, 154 Ga. App. 400, 401 (268 SE2d 378) (1980), cert denied 449 U. S. 900 (1980).” Sams v. State, 197 Ga. App. 201 (1), 202 (397 SE2d 751). In the case sub judice, the evidence shows that the cocaine was divided between more than 30 small glass-ine or clear plastic packages. This manner of packaging being commonly associated with the sale or distribution of such contraband would authorize any rational trier of fact to infer that the defendant possessed cocaine with intent to distribute. Bowers v. State, 195 Ga. App. 522 (1) (394 SE2d 141). The evidence was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 10, 1991.

Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, D. Victor Reynolds, Richard E. Hicks, Assistant District Attorneys, for appel-lee.

2. Defendant failed to preserve the issues raised in his remaining enumerations of error by timely objections in the trial court. Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757). We also note that defendant waived the right to enumerate the jury charge as error when upon inquiry by the trial court he neither objected to the charge as given nor reserved the right to later object. Davidson v. State, 183 Ga. App. 557 (1) (359 SE2d 372); Thomas v. State, 180 Ga. App. 575, 576 (3) (349 SE2d 807).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0124.
    ROGERS v. THE STATE.
    (405 SE2d 541)
   Sognier, Chief Judge.

Yul Bernard Rogers was indicted for the offense of aggravated assault and after a bench trial was found guilty but mentally ill. He appeals.

Appellant contends the trial court erred by finding that appellant failed to prove by a preponderance of the evidence that he was insane at the time the offense was committed. The transcript does not support appellant’s contention that he was unable to distinguish right from wrong so as to assert the defense of OCGA § 16-3-2, as the expert witnesses called by both the State and appellant testified that appellant’s schizophrenia did not prevent him from understanding the difference between right and wrong at the time of the assault. Although evidence was adduced that appellant may have had the delusional compulsion that his neighbors (including the victim) were hunting him, “[t]o support a finding that a defendant is not guilty of a criminal act under OCGA § 16-3-3 [the delusional compulsion defense statute], it must appear: (1) that the defendant was laboring under a delusion; (2) that the criminal act was connected with the delusion under which the defendant was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act. [Cit.]” Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986). The evidence adduced at trial established that appellant was alone at his mother’s home when the victim came there to speak with the mother. Appellant invited the victim inside on the pretext that his mother was at home and would appear shortly. After engaging in 15 minutes of small talk with appellant, the victim announced she was leaving and would return later. As she walked to the door appellant grabbed her hair from behind and stabbed her in the head with a butcher knife as she fell backwards to the floor. The victim managed to break the blade of the knife and struggled with appellant for 20 minutes, during which appellant made repeated comments to the effect that he wanted to have sex with the victim. The victim managed to stop the assault by persuading appellant that if he would accompany her to her home, she “could really take care of him” there. Appellant agreed and released the victim who, arriving at her home before appellant, retrieved a gun and threatened appellant with the weapon, prompting his retreat.

Decided April 11, 1991.

Wm. Edward Nethery, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, James W. Richter, Assistant District Attorneys, for appellee.

The evidence at trial established that even if appellant had a delusion that he was being hunted by the victim and his neighbors, that delusion would not have justified the sexual nature of appellant’s assault on the victim, as we agree with the State that “[a] person who fears he is being hunted does not demand that the hunter have sex with him.” Applying the standard for appellate review of the sufficiency of the evidence with regard to the factfinder’s finding of sanity in a criminal case as set forth in Brown v. State, 250 Ga. 66, 71-72 (2) (c) (295 SE2d 727) (1982), we find that after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that appellant failed to prove by a preponderance of the evidence that he was insane at the time of the crime. Accordingly, we find no error in the trial court’s judgment of guilty but mentally ill.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0224.
    GRISSETT v. THE STATE.
    (405 SE2d 542)
   Birdsong, Presiding Judge.

Appellant, Timothy K. Grissett, was convicted of aggravated assault by shooting William Todd Chapman in the abdomen with a deadly weapon, to-wit a pistol; he appeals the order of the trial court denying his motion for new trial. At trial appellant admitted the shooting but claimed self-defense. Held:

1. Appellant asserts the trial court erred in instructing the jury on “flight.” On appeal mere error will not justify reversal of a judgment of conviction; in order for reversal of judgment of conviction to be warranted, the error must constitute reversible error. See McBrayer v. State, 259 Ga. 513, 514 (2) (383 SE2d 879); Blanton v. State, 191 Ga. App. 454 (2) (382 SE2d 133). As this case was tried before January 10, 1991, the giving of a flight instruction did not constitute reversible error. Renner v. State, 260 Ga. 515, 518 (3), n. 2 (397 SE2d 683).

Moreover, immediately following the court’s instructions, appellant voluntarily took exception to the charge on impeachment of a witness by prior contradictory statement, but did not take exception to the flight charge though the judge thereafter inquired whether appellant had anything else to be raised; even after the jury requested the instruction on flight be repeated, appellant still posed no objection or exception to the flight charge. Having elected to take immediate exception to a portion of the charges at trial, rather than reserving a right to except or object to all charges until motion for new trial or on appeal, appellant waived his right to assert a charging error on appeal to the remaining portion of the charges to which he did not so object or except. Whatley v. State, 196 Ga. App. 73, 76 (2) (395 SE2d 582).

2. Appellant asserts the evidence was insufficient to sustain the conviction. At trial appellant admitted shooting the victim but claimed self-defense; after the shooting, appellant threw the gun away; and, he made a voluntary, oral, pretrial statement to the police claiming he was just riding around getting drunk and denying any knowledge of a weapon or of a shooting incident. A witness testified appellant could have left the scene after he was kicked and before shooting the victim. Evidence was introduced that appellant fled after the shooting.

On appeal the evidence is viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 11, 1991.

Worthington & Flournoy, Samuel W. Worthington III, for appellant.

Douglas C. Pullen, District Attorney, J. Curtiss Bernard, Assistant District Attorney, for appellee.

3. Appellant asserts the trial court erred in restricting direct examination of appellant by sustaining an objection to the question, “[w]ould you have shot [the victim] if he had gone on like you asked him and got back in his car?” Appellant asserts the evidence to be elicited by this question was relevant and material as to his state of mind. The record reflects appellant in fact answered the question, and though the objection was sustained, no motion was made to strike the response and no instruction was requested or given that the jury disregard the response. Further, the question as posed required appellant to speculate as to his course of conduct in a hypothetical situation and to express an opinion thereto; and, following the sustaining of the objection, appellant’s counsel made no timely attempt to rephrase the question. Also, an eyewitness did testify during redirect examination by the State that he believed appellant would not have shot if the victim and his friend had left. Evidence admissibility is a matter which rests largely within the discretion of the trial court, and we are satisfied the trial court did not abuse its discretion in sustaining the objection to the question posed. Assuming arguendo error had occurred, it is highly probable it did not contribute to the finding of guilt in this case, and therefore was harmless within the meaning of Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0256.
    CRANE v. THE STATE.
    (405 SE2d 550)
   Birdsong, Presiding Judge.

Billy Gene Crane appeals his conviction for three counts of child molestation, one count of aggravated molestation, and one count of incest. He enumerates three errors below. Held:

1. The trial court did not err in permitting the State’s prosecuting witness, a detective, to remain in the courtroom during trial, upon the State’s showing that her presence was necessary to assist the State in prosecuting its case. Herreras v. State, 190 Ga. App. 359 (379 SE2d 12).

Decided April 11, 1991.

Freddie D. Harrell, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

2. Appellant contends the trial court erred in failing to allow the defense a thorough cross-examination of the State’s witness, appellant’s eldest daughter, as to her sexual conduct. We find no merit in this complaint. The witness, age 19 at the time of trial, testified to incidents wherein her father molested her since she was eight years old, and she testified to having found her father with her two younger sisters naked in bed and having reported these incidents to her mother. Defense counsel attempted to cross-examine her concerning her sexual conduct with her boyfriend, with whom she was living at the time of trial. The trial court initially allowed defense counsel to elicit from the witness the fact that she was living with her boyfriend at the time of trial, but then refused to allow the question, “[H]ow long have you been having sex with [your boyfriend]?” The trial court unsuccessfully attempted to elicit from counsel any relevance this questioning might have had to the acts charged against the appellant. We find, as did the trial court, that this witness’ sexual conduct, particularly subsequent to the acts of her father to which she testified, was highly prejudicial and did not logically tend to prove or disprove any material fact at issue in the case. See Pittman v. State, 178 Ga. App. 693 (344 SE2d 511); see also OCGA § 24-2-3; Estes v. State, 165 Ga. App. 453 (301 SE2d 504).

3. Appellant’s contention as to the trial court’s failure to admit certain evidence is without merit, since the record shows this evidence was admitted.

Judgment affirmed.

Pope and Cooper■, JJ., concur.


author: Andrews, Judge.

text:
    A91A0432.
    JOHNSON v. JOHNSON.
    (405 SE2d 544)
   Andrews, Judge.

Dale Johnson, Jr., brings this appeal from the denial of his caveat to the application for a year’s support filed by Dale Johnson, Sr., as the surviving spouse of the caveator’s mother, Helen Johnson.

1. In his first enumeration of error Johnson, Jr., who was over 18 years of age when Helen Johnson died, claims the Cobb County Probate Court erred by awarding Johnson, Sr., a year’s support interest in real property which was titled in Johnson, Jr.’s name at the time of the decedent’s death.

Under OCGA § 53-5-2, a year’s support can only be set aside from property interests which were a part of the decedent’s estate at the time of her death. Kenner v. Kenner, 214 Ga. 381, 382 (104 SE2d 896) (1958). A judgment of the probate court is void as to any property set aside which was not a part of the decedent’s estate at her death. Brown v. Granite Holding Corp., 221 Ga. 560, 565 (146 SE2d 289) (1965).

The property at issue, which has been the residence of Johnson, Sr., since 1957 when he and Helen Johnson purchased it, has been titled in the name of Johnson, Jr., since it was deeded to him in 1983 by Helen Johnson. Though conceding that the property remained titled in Johnson, Jr.’s name at the time of the decedent’s death, Johnson, Sr., claims that the property was held by Johnson, Jr., in trust for the benefit of the decedent and Johnson, Sr. The probate court has no jurisdiction to try conflicting claims of title to real property on an application for a year’s support. Ga. Const. 1983, Art. VI, Sec. III, Par. I; OCGA § 15-9-30 et seq.; Dix v. Dix, 132 Ga. 630 (64 SE 790) (1909); Morris v. Morris, 123 Ga. App. 116-117 (179 SE2d 536) (1970). Nor in this case did the court attempt to do so since, with respect to the contested property, the court’s order simply states that Johnson, Sr. “is hereby awarded as a twelve months support the decedent’s interest in the real property shown in his petition. . . .” Even if no legal title remained in the decedent at her death, if her estate retained an equitable interest as beneficiary of the alleged trust, a year’s support may include an award of such interest. Knowles v. Knowles, 125 Ga. App. 642, 647 (188 SE2d 800) (1972). The court’s order sets aside no more than any interest the decedent held in the real property at her death, without attempting to determine title to the property. See Pioneer Investments v. Adrine, 97 Ga. App. 520, 524 (103 SE2d 686) (1958). There is no merit in this enumeration of error.

2. In his second and third claims of error, Johnson, Jr., argues that under the criteria of OCGA § 53-5-2, Johnson, Sr., failed to introduce sufficient evidence to sustain the year’s support award, therefore the court erred by denying his motion to dismiss the application.

As the surviving spouse of the deceased, Johnson, Sr., was entitled as a matter of law to a year’s support. OCGA § 53-5-2 (b); Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188) (1987); Byrd v. McKinnon, 189 Ga. App. 768, 769 (377 SE2d 686) (1989). The amount of the award is a separate question to be determined under the criteria of OCGA § 53-5-2 (c), which provides that the amount should be “sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the [decedent],” considering support available from the applicant’s separate estate, earning capacity, any other sources apart from a year’s support, and “[s]uch other relevant criteria as the court deems equitable and proper.” Baker v. Baker, 194 Ga. App. 477, 478 (390 SE2d 892) (1990).

Decided April 11, 1991.

Kearns & Reeves, Charles F. Reeves, for appellant.

Carl P. Fredericks, for appellee.

The court’s award of a year’s support from the decedent’s estate consisted of various jewelry and personal items valued at $1,500; furnishings valued at $1,500 located in the property used as applicant’s residence, and the decedent’s interest in the real property at issue, which the evidence showed was valued between $50,000 to $65,000.

The record discloses that Johnson, Sr., was the surviving spouse of the decedent and filed a timely application for a year’s support. The court considered evidence presented by Johnson, Sr., of his financial circumstances, including his sole source of income from social security, his earning capacity and medical needs at 80 years of age, and the circumstances surrounding his continued use of the real property as his residence. Other than introducing a copy of the deed conveying him title to the real property, Johnson, Jr., presented no evidence in support of his caveat.

We find the evidence was sufficient to support the court’s determination of a year’s support under the criteria of OCGA § 53-5-2 (b) and (c). Accordingly, the court did not abuse its discretion by denying Johnson, Jr.’s motion to dismiss and awarding a year’s support to Johnson, Sr.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A0144.
    STAPLES v. THE STATE.
    (405 SE2d 551)
   Andrews, Judge.

Staples was indicted for two counts of aggravated assault and found guilty on the second count at trial. Although he did not demur to the indictment, after the verdict was returned Staples filed a motion to arrest judgment on the basis that the indictment was imperfect and incomplete. From the trial court’s denial of that motion, he now appeals.

In attacking an indictment after the verdict, every presumption and inference is in favor of the verdict. King v. State, 103 Ga. App. 272 (119 SE2d 77) (1961). By failing to file a demurrer before trial, Staples waived his right to a perfect indictment. State v. Eubanks, 239 Ga. 483 (238 SE2d 38) (1977); Hubbard v. State, 129 Ga. App. 793 (201 SE2d 337) (1973). Therefore, a motion to arrest judgment should be granted only if the indictment is absolutely void. See Moore v. State, 94 Ga. App. 210 (94 SE2d 80) (1956).

Here, the allegedly deficient count for aggravated assault charged Staples “with having committed the offense of Aggravated Assault for that the said accused person in the County aforesaid, on the 26th day of August, 1989 unlawfully with a deadly weapon, to-wit: a .35 Caliber rifle, the same being a deadly weapon when used in the manner in which it was used to shoot the said victim, contrary to the laws of said State, the good order, peace and dignity thereof, . . .”

Staples contends that the indictment is fatally defective because the second count omitted the victim’s name and failed to set forth all the elements of the crime. Although the count is not a model of clarity, it is sufficient to withstand the motion to arrest judgment.

The two requirements of an indictment are that it definitively inform the accused of the charges against him, so that he may present his defense and avoid surprises at trial, and that it protect the accused against another prosecution for the same offense. Berger v. United States, 295 U. S. 78, 82 (55 SC 629, 79 LE 1314) (1934); Ingram v. State, 137 Ga. App. 412, 415 (224 SE2d 527) (1976); Williams v. State, 165 Ga. App. 69 (299 SE2d 402) (1983). Both requirements were met here. Although the victim is not named in this count, her identity is clear from the prior count. See Weddington v. State, 191 Ga. App. 738, 739 (382 SE2d 661) (1989). Although the second count is worded awkwardly, it plainly charges Staples with aggravated assault for shooting the victim with a deadly weapon. See Miller v. State, 182 Ga. App. 700, 701 (356 SE2d 900) (1987).

The test of the sufficiency of an indictment is whether the accused could admit all of the accusations and still be innocent of having committed the offense charged; if so, the indictment is defective. Mahomet v. State, 151 Ga. App. 462 (260 SE2d 363) (1979); Brooks v. State, 141 Ga. App. 725 (234 SE2d 541) (1977). Here, Staples cannot admit to an aggravated assault using a .35 caliber rifle to shoot a victim and still be innocent of the offense charged.

Decided April 12, 1991.

Michael S. Waldrop, for appellant.

Robert F. Mumford, District Attorney, Nancy F. Nash, Assistant District Attorney, for appellee.

The instant count adequately charges a violation of the law and sufficiently apprised Staples of the offense charged. Watson v. State, 190 Ga. App. 671 (379 SE2d 811) (1989). Since there was no fatal defect in the indictment, the denial of Staple’s motion to arrest judgment was proper.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

       Although each count must be complete within itself and contain every allegation essential to constitute the crime, this rule applies to the offense rather than the form. Holtzendorf v. State, 146 Ga. App. 823 (247 SE2d 599) (1978). Therefore, one count may incorporate by reference portions of another, Durden v. State, 152 Ga. 441 (110 SE 283) (1921), and the indictment is read as a whole. See Manley v. State, 187 Ga. App. 773 (371 SE2d 438) (1988); compare Lee v. State, 81 Ga. App. 829 (60 SE2d 177) (1950).
      Here the first count of the indictment was also for the offense of aggravated assault and charged that Staples “unlawfully did assault the person of [name of victim] with the intent to murder the said [name of victim]. . . .”

       See Manley, supra, note 1, for the slightly different test of whether the accused can admit all the accusations and be innocent of any crime.


text:
    A91A0282.
    POWELL v. THOMAS.
    (405 SE2d 553)
   Birdsong, Presiding Judge.

Estella Thomas filed suit against the estate of Mary Washington for breach of contract to make a will and for payment of the value of personal services. In a pre-trial order, Ms. Thomas set forth the specific personal services performed by her for Mary Washington, and amended her complaint to set forth the value of the personal services.

The evidence, construed in favor of the verdict on appeal, shows that Thomas worked for Washington for seven years, four months and one day; that she cooked, cleaned, gardened, served meals, administered personal and business affairs for Washington, chauffeured her and provided companionship; and that the two were constantly together. Several witnesses testified they had observed Thomas attend and perform labor for Washington for years and that Washington regarded Thomas as a daughter and expressed the intention or desire to leave Thomas her property when she died. On her hospital admission papers shortly before she died, Washington listed Thomas as her daughter. Thomas was not paid for these services. She was not related to Washington. Washington’s step-children inherited the estate.

The jury found no contract existed for Washington to make out her will in favor of Thomas, but awarded Thomas $19,000 for the value of her services during seven years, four months and one day. The estate appeals. Held:

Thomas’ complaint and the pre-trial order set forth the specific services supplied by Thomas and the value of those services. The pleadings were sufficient to state a claim according to OCGA § 9-11-8. See OCGA § 9-11-16. See also King v. Thompkins, 186 Ga. App. 12, 13 (366 SE2d 340); Koppers Co. v. Parks, 120 Ga. App. 551 (171 SE2d 639). Appellant was not entitled to a dismissal for failure to state a claim.

Decided April 12, 1991.

William C. Randall, for appellant.

Mills, Freeman, Vaughn & Sosebee, W. Franklin Freeman, Jr., for appellee.

The award in quantum meruit is authorized by the evidence and the pleadings. The evidence showed Thomas did not expect to work for free for seven years, four months and one day, and that Washington expected her to be compensated. The evidence authorized an inference that it was contemplated the services would be compensated (see Babb v. Potts, 183 Ga. App. 785, 786 (360 SE2d 44)), even more so because she was a “stranger,” since it would not ordinarily be inferred that one not a relative would have provided such services for free. See Westbrook v. Saylors, 56 Ga. App. 587, 590 (193 SE 371). The verdict was amply supported.

Accordingly, appellant was not entitled to a directed verdict or judgment n.o.v. See OCGA § 9-11-50.

Judgment affirmed.

Pope and Cooper, JJ., concur.


author: Banke, Presiding Judge.

text:
    A90A0184.
    DEPARTMENT OF MEDICAL ASSISTANCE OF GEORGIA et al. v. BEVERLY ENTERPRISES, INC.
    (406 SE2d 141)
    Decided April 15, 1991.

      Michael J. Bowers, Attorney General, H. Perry Michael, Executive Assistant Attorney General, Stephanie B. Manis, Deputy Attorney General, William C. Joy, Kathryn L. Allen, Senior Assistant

      Attorneys General, for appellants.
   Banke, Presiding Judge.

The decision previously rendered by this court in the above-styled case, reported at 195 Ga. App. 753 (395 SE2d 15) (1990), having been reversed by the Supreme Court in Department of Med. Assistance &c. v. Beverly Enterprises, 261 Ga. 59 (401 SE2d 499) (1991), that decision is hereby vacated; and, in accordance with the decision of the Supreme Court, the judgment of the trial court is hereby reversed.

Judgment reversed.

Sognier, C. J., and Birdsong, P. J., concur. Cooper, J., disqualified.

Troutman, Sanders, Lockerman & Ashmore, Herbert D. Shell-house, for appellee.


text:
    A91A0326.
    LASTOHKEIN v. THE STATE.
    (405 SE2d 554)
   Banke, Presiding Judge.

The appellant was convicted of trafficking in cocaine. He contends on appeal that the trial court erred in denying his motion to suppress the contraband on which the prosecution was based and in failing to give him a reduced or suspended sentence pursuant to OCGA § 16-13-31 (e) (2), based on his testimony showing that he had provided “substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals.”

The appellant was stopped by a Georgia State trooper for “following too close” while traveling north on 1-75 in Gordon County. As he was examining the appellant’s driver’s license and vehicle registration, the trooper asked him about the nature and purpose of his travel. The trooper testified that the appellant responded that he had been visiting a cousin in Atlanta and that this response aroused his (the trooper’s) suspicions because it seemed inconsistent with the presence of certain items located in plain view inside the appellant’s vehicle, such as a map and a clothing store bag, which suggested that he had recently been in Miami. Accordingly, after running a records check on the appellant, issuing him a warning ticket, and returning his license and vehicle registration to him, the trooper asked him if he would consent to a search of his vehicle. This occurred approximately 13 to 14 minutes into the stop. The appellant responded in the affirmative, executed a written consent document, and complied with a request by the trooper to open the trunk of his vehicle. The cocaine was seized during the ensuing search of a travel bag inside the trunk. Held:

1. The appellant does not challenge the legality of the initial stop but contends that he was thereafter “detained for matters unrelated to the traffic stop, and without articulable suspicion.” We find this contention to be without merit. Generally speaking, “roadside questioning at a routine stop does not constitute a custodial situation.” Lebrun v. State, 255 Ga. 406, 407 (339 SE2d 227) (1986). The appellant offered no testimony in the case, and there is nothing in the trooper’s account of the events which transpired following the stop which would require a finding that the consent was coerced. Accord Pupo v. State, 187 Ga. App. 765, 766 (3) (371 SE2d 219) (1988); Ra- ney v. State, 186 Ga. App. 758, 760 (368 SE2d 528) (1988). Compare Radowick v. State, 145 Ga. App. 231 (244 SE2d 346) (1978).

Decided April 15, 1991.

Bailey & Bearden, J. Lane Bearden, for appellant.

Darrell E. Wilson, District Attorney, for appellee.

2. The appellant’s testimony at the sentencing hearing did not require a finding that he had provided “substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals,” so as to qualify for a reduced or suspended sentence pursuant to OCGA § 16-13-31 (e) (2). Furthermore, the statute does not by its terms require the judge to impose a reduced or suspended sentence in the event a defendant has rendered such assistance but instead merely authorizes him to do so. See generally Brugman v. State, 255 Ga. 407, 414 (339 SE2d 244) (1986).

Judgment affirmed.

Carley and Beasley, JJ., concur.


author: Cooper, Judge.

text:
    A89A1627.
    McDANIEL et al. v. HENDRIX et al.
    (406 SE2d 142)
    Decided April 16, 1991.

      Bedford, Kirschner & Venker, Andrew R. Kirschner, Thomas J. Venker, E. Graydon Shuford & Associates, E. Graydon Shuford, for appellants.

      Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elisco, Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, for appellees.
   Cooper, Judge.

This court having entered on February 28, 1990, a judgment in the above-styled case, 195 Ga. App. 252 (393 SE2d 4) (1990), affirming the judgment of the trial court; and the judgment of this court having been reversed by the Supreme Court in McDaniel v. Hendrix, 260 Ga. 857 (401 SE2d 260) (1991), the judgment heretofore rendered by this court is vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Banke, P. J., Birdsong, P. J., Carley, Pope, Beasley and Andrews, JJ., concur.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0244.
    CABRAL v. THE STATE.
    (405 SE2d 556)
   Carley, Judge.

Appellant was tried before a jury and found guilty of failing to stop at or to return to the scene of a vehicular collision in violation of OCGA § 40-6-270. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Two eyewitnesses to the incident , had identified appellant based upon a pre-trial photographic display. At trial, these eyewitnesses testified, without objection, to their pre-trial identification of appellant. The only objection to any pre-trial identification evidence that was ever raised was when the State tendered the actual photographic display for admission into evidence. At that point, appellant’s counsel objected that the photographic display was “unfairly prejudicial in that [it] doesn’t fairly and accurately depict. I mean there’s one person with short hair and the rest of them have long hair.”

Assuming without deciding that this objection was sufficient to raise the issue of the purported impermissible suggestiveness of the photographic display, the trial court’s failure to have sustained that objection clearly would not constitute reversible error. Since the eyewitnesses gave oral testimony as to their pre-trial identification of appellant without objection, the admission of demonstrative evidence in the form of the actual photographic display upon which their pre-trial identification had been based, even if erroneous, would not mandate the reversal of appellant’s conviction. See Knox v. State, 156 Ga. App. 777, 778 (4) (275 SE2d 371) (1980).

2. The trial court did not err in allowing, as evidence of a similar offense, testimony concerning appellant’s prior high-speed vehicular flight from a police officer in violation of OCGA § 40-6-395. This prior offense involving appellant’s vehicular flight was sufficiently similar to his alleged flight from the instant vehicular collision so as to be admissible on the issue of his identity and bent of mind. See generally Millwood v. State, 164 Ga. App. 699 (1) (296 SE2d 239) (1982).

The remaining enumerations of error which address the testimony of the officer who arrested appellant for the prior similar offense have been considered and found to be without merit. Contrary to appellant’s contentions, no question that was asked of the arresting officer was leading or elicited testimony which was otherwise inadmissible.

3. At the pre-trial hearing on the admissibility of the prior similar offense, appellant moved that his prior conviction for violating OCGA § 40-6-395 be declared “null and void.” However, the trial court sought to obviate the necessity for a formal ruling on the validity of appellant’s prior conviction by holding that, during the guilt-or-innocence phase of the trial, the State would be limited to eliciting only evidence showing that appellant had committed acts in violation of OCGA § 40-6-395 and would not be allowed to introduce a certified copy of appellant’s subsequent actual conviction for that prior offense. Appellant’s counsel acquiesced in this ruling, stating that “as long as the jury doesn’t find out about it then I certainly would have no argument.” Thereafter, no certified copy of appellant’s prior conviction was introduced in the guilt-or-innocence phase but was admitted, without objection, only in the sentencing phase.

Accordingly, we find without merit an enumeration of error which urges that the failure of the trial court to declare the prior conviction to be “null and void” mandates a reversal of appellant’s conviction in the instant case. Appellant’s prior conviction was never admitted for the jury’s consideration and obviously played no part in his instant conviction. The admission of the prior conviction during the sentencing phase is not argued as a basis for reversing appellant’s sentence and that issue will not, therefore, be addressed. Compare Harrison v. State, 136 Ga. App. 71, 72 (2) (220 SE2d 77) (1975).

4. In related enumerations of error, appellant raises the general grounds. However, a review of the record demonstrates that the evidence was sufficient to authorize a rational trior of fact to have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

Defendant challenges the admission of a photo spread used to obtain identification of the perpetrator on two grounds, raised below. One is that no nonjury hearing was conducted to test the non-suggestiveness of the procedure whereby witnesses picked out the photo of defendant. No request for a hearing was made, nor did defendant object to the lack of one. The trial court cannot be faulted for ruling erroneously when it is not called upon to rule at all. Nor was the court obligated to conduct such a hearing absent a request.

The second ground is that the spread was unduly suggestive because defendant’s photo in the group of six depicts a short-haired non-Hispanic with eyes closed partially, whereas the other five photos depict longer-haired Hispanics with eyes open and peering straight ahead.

The majority cites Knox v. State, 156 Ga. App. 777, 778 (4) (275 SE2d 371) (1980), as dispositive of the issue. It does not address the point. Knox held that testimony that certain monies were found obviated the challenge to the admission of the money itself. Knox, in turn, cites Carnes v. State, 115 Ga. App. 387 (154 SE2d 781) (1967), as authority. In Division 7 of Carnes, photos of a truck and oral testimony regarding the photos were both ruled admissible because the proper foundation was laid, in that it was shown that the photos were properly identified as accurate representations of the truck involved. These two cases merely hold, in effect, that visual and oral descriptions of physical objects may both be admitted in evidence. Theoretically both forms of evidence complement each other, but if there is any discrepancy, the jury can detect it and decide which is most accurate.

Decided April 17, 1991.

G. Wayne Lancaster, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

That is not the problem here. Defendant did not challenge the admission of the photographs because they pictured physical objects connected to the crime but rather because they constituted a spread of photos which was inherently defective as a test of identification in that it was unduly suggestive of defendant as the perpetrator of the crime. The use of the spread in the investigation for eyewitnesses to identify the perpetrator is the ground asserted. A non-neutral composition, which itself pointed to defendant, would also influence the jury to accept the identification of defendant as the offender.

Thus the issue is whether the spread was suggestive. A careful examination and consideration of it leads to the conclusion that it was not. It cannot be concluded that one of the photos, that being defendant’s, differed from the other five so as to lead to its choice.

I concur in the remaining divisions.


text:
    A91A0269.
    ANDERSON v. THE STATE.
    (405 SE2d 558)
   Birdsong, Presiding Judge.

Appellant was convicted of operating a motor vehicle after being declared a habitual violator and appeals, enumerating as error the insufficiency of the evidence, the introduction of evidence regarding his parole status and the sentence imposed. Held:

1. The State presented evidence showing appellant met with a substitute parole officer. The parole officer and appellant talked for ten to 15 minutes, and appellant left; the parole officer decided to follow because he suspected appellant might be driving a car, which he was prohibited from doing as a habitual violator. The parole officer’s view of appellant was sometimes obstructed for short intervals, but he observed appellant get into a foreign compact car and drive away.

Kenneth Johnson testified appellant lived with him, and he often drove appellant to work and to meetings with his parole officer, because appellant had no driver’s license. Johnson could not remember specific dates or times, or how many times he drove appellant, but he did recall parking in the gravel parking lot next to the parole officer while he was driving a friend’s silver Datsun. During the time appellant resided with Johnson, he did not have a car and Johnson never saw him drive one. Appellant testified that on the date in question he remembered the parole officer calling and telling him to report to his office, and that Johnson drove him there in a silver Datsun. He stated that when he left the meeting he crossed the street and walked down a dirt pathway to where the car was parked in the gravel parking lot, and that he entered the car on the passenger side and waited several minutes for Johnson to return and drive him home.

Appellant contends that because the parole officer did not observe him the entire time, he could have mistaken the identity of the person he saw driving. “We reject [appellant’s] argument that the evidence was insufficient to support the conviction. The direct testimony of the [parole] officer was sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). ‘The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict. (Cit.) Based on the evidence presented at trial, we are satisfied that any rational trier of fact could have found the [appellant] guilty beyond a reasonable doubt.’ [Cit.]” Williams v. State, 197 Ga. App. 368, 369 (1) (398 SE2d 427).

2. Appellant asserts the trial court erred in denying his motion for mistrial as his character was placed in evidence by testimony that appellant was on parole.

Testimony was received, without objection or timely motion for mistrial, that the chief parole officer met with defendant at the parole office after being asked to speak to him “by his parole officer.” After several other questions were posed and answered, appellant requested an out-of-court hearing during which he made a motion for mistrial, because by stating appellant was on parole, the parole officer implied appellant had a criminal record which put his character in issue.

“A motion for mistrial not made at the time the testimony objected to is given is not timely and will be considered as waived because of the delay in making it.” Thaxton v. State, 260 Ga. 141, 143 (5) (390 SE2d 841); compare Dye v. State, 177 Ga. App. 824, 825 (341 SE2d 314).

3. Appellant complains that the trial court erroneously sentenced him as a recidivist under OCGA § 17-10-7 (b), as he must have been indicted for recidivism in order to have recidivist punishment imposed. During the sentencing phase of the trial, the State introduced four previous felony convictions of appellant in aggravation of punishment. Appellant was served notice that evidence in aggravation would be used and was provided a list of the prior convictions through his counsel the day before the trial began. Under OCGA § 17-10-2 (a), “such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible.” Appellant was sentenced pursuant to OCGA § 17-10-7 (b), which provides that any person who has been convicted of three felonies, other than a capital felony, must upon conviction of a fourth or subsequent offense serve the maximum sentence.

Decided April 17, 1991.

Robert H. Suttles, for appellant.

Robert E. Keller, District Attorney, Lisa C. Curia, Assistant District Attorney, for appellee.

The Supreme Court established in State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526), “that the only purpose for inclusion of prior offenses in an indictment ‘is to give to the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.’ The trial court in sentencing cannot consider prior offenses unless the same was made known to defendant prior to trial (id. pp. 854-855); notice to defendant of intent to prosecute as a recidivist performs the function of any such notice in an indictment. The language of the specific recidivist statute in Hendrixson, supra, is ‘merely a direction as to the imposition of punishment under specified aggravated circumstances’ and does not require an allegation of a prior offense in the indictment. Id. p. 854. The same is true of the general recidivist statute at OCGA § 17-10-7. In fact, section (d) of the statute provides: ‘This Code section is supplemental to other provisions relating to recidivist offenders.’ ” Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487). Thus, “it is not required that the prior convictions be included in the indictment but only that the accused received notice of the [S]tate’s intention to seek recidivist punishment and of the identity of the prior convictions. [Cits.]” Favors v. State, 182 Ga. App. 179 (1) (355 SE2d 109). Since appellant received such notice, the sentence imposed was lawful and proper. Compare State v. Freeman, 198 Ga. App. 553, 556 (3) (402 SE2d 529) (1991).

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0318.
    SMITH v. HAYWOOD OIL COMPANY, INC.
    (405 SE2d 560)
    Decided April 17, 1991.

      Campbell, Martin & Manley, David B. Manley III, Karen L. Tasner, for appellant.

      Crowe & Mann, Wayne C. Crowe, M. Douglas Mann, for appel-lee.
   Banke, Presiding Judge.

The appellee, Haywood Oil Company, brought suit against the appellant, A. J. Smith, to recover on a contract of guaranty. This appeal is from the grant of the appellee’s motion for summary judgment.

The obligation to which the guaranty applied was an open account indebtedness owed by VianSa Industries, Inc., of which the appellant is president. The appellee previously had filed suit against that company and obtained a judgment for the balance owing on the account, plus interest and court costs. Held:

1. The appellant contends that a material question of fact exists as to whether he signed the guaranty in his individual or his representative capacity. The document was signed by the appellant, under seal, without any corporate designation; and, while it was transmitted to the appellee with a cover letter signed by him as president, that letter states: “Attached is the personal guaranty signed and sealed to secure the credit line of $15,000 with your company.” It is evident beyond dispute from these documents that the appellant was obligating himself personally on the obligation, notwithstanding his testimony to the contrary. See Volume Tire Co. v. O’Conner, 190 Ga. App. 242 (1) (378 SE2d 415) (1989); Evans v. Smithdeal, 143 Ga. App. 287 (1) (238 SE2d 278) (1977). Indeed, it would have been nonsensical for the corporation to have guaranteed its own debt.

2. The appellant contends that the language of the cover letter limits his liability to $15,000. The guaranty contract itself, however, applies to all obligations incurred by the corporation by virtue of the credit extended by the appellee. Construing the contract in such a manner as to give meaning to all its terms, we hold that the trial court properly concluded that the appellant’s obligation as guarantor extended to the full amount of the account indebtedness. See generally OCGA § 13-2-2 (4).

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0434.
    STEVENS v. THE STATE.
    (405 SE2d 713)
   Birdsong, Presiding Judge.

Rufus Stevens appeals his judgment of conviction of two counts of sale of cocaine in violation of the Georgia Controlled Substances Act and the sentence. He enumerates five errors. Held:

1. Appellant’s assertion that the trial court erred when it failed to disclose the identity of the confidential informant in response to a timely motion to disclose is without merit.

In the case at bar, the evidence at the motion to disclose hearing shows, regarding the two alleged drug sales, that the confidential informant was not located where he could witness one of these sales; and, that the confidential informant was not observed actually witnessing the other sale, although perhaps he could have done so from his vantage point approximately a car length away. Further, appellant testified at trial that prior to being held in jail pending trial on an unrelated DUI charge the only two times he saw the undercover agent, the agent was in the presence of a man named Dean Holmes and no drug sales occurred. Dean Holmes testified as a defense witness. After initially testifying that no drug sales occurred between appellant and the undercover agent during the three occasions when he was present, Holmes subsequently recalled appellant had sold drugs to the undercover agent on one occasion.

This case is factually distinguishable from Moore v. State, 187 Ga. App. 387, 391 (370 SE2d 511), where the evidence established the informant actually witnessed the contested drug sale and was at the time of trial “ ‘the only witness in a position to amplify or contradict the testimony’ of the appellant and the police officer.” An absolute privilege against disclosure in every case involving an informer is impermissible. See generally Thornton v. State, 238 Ga. 160, 163 (2) (231 SE2d 729). However, after examining the record in its entirety and applying the balancing test of Roviaro v. United States, 353 U. S. 53 (77 SC 623, 1 LE2d 639), we find that the trial court did not err.

2. Appellant asserts that he was provided ineffective assistance of counsel prior to and during trial of this case in violation of the Georgia Constitution and the Sixth and Fourteenth Amendments of the United States Constitution.

When appellant’s case was assigned for trial on April 9, 1990, appellant sent word to the court that he did not have an attorney. The court, having appointed counsel for appellant who had claimed entitlement thereto as an indigent, elected to hold a hearing into the assertion. At the hearing appellant in essence argued he had been denied adequate representation by counsel, as the latter had not conferred with him about the case prior to trial and had neither obtained from him nor considered information which appellant believed necessary to the presentation of his defense. See generally Hawes v. State, 240 Ga. 327, 328 (1) (240 SE2d 833).

“ ‘Effective assistance does not mean that a defendant is entitled to have the best counsel appointed, or any particular counsel, but it does mean that he must have such assistance as will assure him due process of law.’ ” Hawes, supra at 330. “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.” Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674). At the hearing, the trial court initially relieved appointed counsel, but following receipt of additional information regarding counsel’s consultations with appellant, reappointed counsel to represent him. The trial court’s tacit findings regarding consultation between appellant and his appointed counsel were not clearly erroneous and we have no basis for overturning these findings on appeal. Moreover, appellant failed to make a showing of inadequate representation as required by the first prong of the two-prong rule of Strickland v. Washington, supra, particularly in view of the strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. The trial court did not err in failing to relieve counsel of his representation of appellant at the hearing.

Appellant next asserts the trial court, however, compelled him to proceed to trial without benefit of counsel and to represent himself. The trial court in its order denying appellant’s motion for new trial pertinently found that appellant “after explanation of the consequences to him of self-representation, elected to proceed pro se. The court appointed stand-by counsel to assist [appellant] whenever he desired. . . .The court again finds that trial counsel was not ineffective and that the decision of [appellant] to proceed pro se was his choice, freely and knowingly made.”

Appellant never expressly stated: “I waive my right to counsel and desire to represent myself at trial.” However, the hearing transcript reflects the following: “THE COURT: You’re entitled to be represented by counsel, of course. [DEFENDANT]: Yes, sir. THE COURT: But you’re not entitled to be represented by counsel of your choosing unless you pay for it. And you’re an indigent . . . and the court has so determined. . . . The court feels that [counsel] has adequately prepared your case. . . . Now, I’m going to revoke the court’s previous order where I relieved [counsel] and I’m going to reinstate him as your attorney. You can use him if you want to or you can not use him. You can represent yourself. But I’m not going to appoint another attorney for you. So you either use [reinstated counsel] or you represent yourself. The court doesn’t ever recommend anyone represent themselves because ... in the first place you’re not skilled in the law and it’s a very difficult thing for you to do to separate your emotions for the rest of it. . . . You can’t do the job that counsel can do for you. But its your privilege under the Constitution of the United States to represent yourself or to have court-appointed counsel who is competent and who will reasonably effectively carry out his duties. . . . The court has no reason whatever to disqualify [appointed counsel]. So I’m leaving him as counsel, use him or not use him, whichever you prefer. ... I will try you next week or the week after. . . . And if you want me to send the notices to [appointed counsel], I’ll do so. If you want me to send to you as pro se, I’ll send them to you. Whatever you — [DEFENDANT]: I would appreciate it if you send them to me. . . . THE COURT: All right, sir. We’ll send notices the court leaves [appointed counsel] in the case. We’ll send the notices to both [appointed counsel] and to [appellant] for the trial date.” (Emphasis supplied.) At trial, 17 days later, appellant announced he was ready to proceed subject to the availability of his two witnesses who were present and ultimately testified as defense witnesses. Appointed counsel was present and announced on the record, without contradiction or objection from appellant, that the public defender investigator had been working with appellant on obtaining his witnesses; that appointed counsel “went over and talked to [defendant], he told me that he didn’t want to talk to me, we had made available the services of the public defender office.” Thereupon, the trial court stated, “well, the court again would remind [defendant] that they’re available to him to give him legal advice as he requested or such other advice as he may seek from you, but he is responsible for the trial of the case himself.”

During his testimony, appellant declined the assistance of appointed counsel to question him and was allowed the latitude by the trial court of presenting his testimony in narrative statement form.

Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) is the seminal case in this state regarding whether an accused has adequately waived his right to counsel and elected to exercise his constitutional right to represent himself. Clarke, supra at 196, cites the waiver standard set by Johnson v. Zerbst, 304 U. S. 458 (58 SC 1019, 82 LE 1461) and applied in Taylor v. Ricketts, 239 Ga. 501 (238 SE2d 52). Failure to make affirmative findings in the exact language of Clarke is not per se error; each case must be decided on its own peculiar facts and circumstances (Wilson v. State, 196 Ga. App. 787 (2) (397 SE2d 59); accord Harris v. State, 196 Ga. App. 796 (1) (397 SE2d 68)), “including the background, experience, and conduct of the accused” (emphasis supplied) Clarke, supra at 196. The record when examined in toto reveals that appellant requested to have his appointed counsel relieved and when this failed, by a combination of words and conduct, elected voluntarily, knowingly, and intelligently to represent himself after adequately being advised, by the trial court during the hearing on his request, of his right to appointed counsel and of the perils of self-representation. Appellant’s conduct throughout trial was consistent with this election, and we will not reverse the trial court’s finding that the election was freely and knowingly made. Compare Tucker v. State, 173 Ga. App. 742 (327 SE2d 852).

Decided April 17, 1991.

Merritt & Rose, C. Nathaniel Merritt, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Clarke, supra at 196, also suggests that it would be appropriate for the trial court’s determination, regarding whether an intelligent and competent waiver of counsel has been made, to appear upon the record. In this case, the trial court’s determination is found, within the record, in its order denying the motion for new trial, as amended, and this is sufficient.

3. Appellant’s remaining enumerations of error and assertions are without merit. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in this light reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Pope and Cooper, JJ., concur.