text:
    A91A0700.
    EMORY CLINIC et al. v. WYATT.
    (407 SE2d 135)
   Carley, Judge.

No expert affidavit was attached to the complaint whereby appellee-plaintiff initiated the instant medical malpractice action against appellant-defendants. However, appellee’s complaint did invoke the applicability of OCGA § 9-11-9.1 (b) by alleging that the statute of limitations would run within ten days and that, due to time constraints, the requisite expert affidavit could not be prepared. On the 45th day after filing her complaint, appellee moved for an extension of time to file an expert affidavit. Before the hearing on this motion, appellants moved to dismiss for appellee’s failure to comply with the pleading requirements of OCGA § 9-11-9.1. Some months later, the trial court conducted a hearing on both motions and granted appellee a seven-day extension of time and denied appellants’ motion to dismiss. The trial court certified its order for immediate review and appellants applied to this court for an interlocutory appeal. The instant appeal results from the grant of appellants’ application.

1. Appellants contend that appellee was not even entitled to the initial 45-day extension provided in OCGA § 9-11-9.1 (b). However, the allegations of appellee’s complaint complied with the applicable provisions of OCGA § 9-11-9.1 (b) and those allegations have not been shown to be untrue. Accordingly, a 45-day extension of time within which to file an expert affidavit was automatic. “In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.” (Emphasis supplied.) OCGA § 9-11-9.1 (b).

2. Although appellee moved for an extension of time within the initial 45-day period, appellants urge that appellee’s motion should have been denied because she failed to secure an actual ruling from the trial court within the initial 45-day period.

Nothing in OCGA § 9-11-9.1 (b) specifically provides that either the motion for an extension of time or the order thereon must necessarily be filed before the initial 45-day period has expired. “[B]y its terms[, OCGA § 9-11-9.1 (b)] does not distinguish between motions made within or made without the 45-day extension period. It merely provides that ‘on motion, after hearing and for good cause’ the filing period may be extended for whatever length of time the trial court determines justice requires.” Brake v. Mintz, 193 Ga. App. 662, 664 (388 SE2d 715) (1989).

If, however, there is any applicable time limit, it would be that which is established by the general provisions of OCGA § 9-11-6 (b). In the instant case, there was compliance with OCGA § 9-11-6 (b) (1), which provides, in relevant part, that, if a request for an extension of time “is made before the expiration of the period originally prescribed,” the trial court “may [grant the request] at any time. . . .” This statute clearly contemplates that the request for an extension of time can be made prior to the expiration of the originally prescribed time-period and that such a request can be granted subsequent thereto. Accordingly, assuming without deciding that the time limit established by OCGA § 9-11-6 (b) is applicable to a motion and order made pursuant to OCGA § 9-11-9.1 (b), the motion and order in the instant case were not untimely.

3. OCGA § 9-11-9.1 (b) provides that “[t]he trial court may, on motion, after hearing and for good cause extend such time [to file an expert affidavit] as it shall determine justice requires.” (Emphasis supplied.) Broad discretion is vested in the trial court to determine whether “good cause” exists and what constitutes “good cause.” Brake v. Mintz, supra at 665. Appellants urge that the trial court abused its broad discretion in the instant case.

The trial court granted appellee’s motion based upon the following: On the 42nd day of the initial 45-day period, appellee’s expert potential affiant, who resided out-of-state, received a copy of the affidavit for her review and execution. Upon seeing that the affidavit was captioned for submission in the instant case, the potential affiant informed appellee’s counsel that she had a conflict of interest and could not provide an affidavit for use in an action brought against appellants. Although declining to allow appellee to use the affidavit to satisfy the pleading requirements of OCGA § 9-11-9.1, the potential affiant nevertheless signed the affidavit to signify her agreement with its substance and returned it to appellee’s counsel. Appellee’s counsel had attempted to secure the affidavit of another expert before the expiration of the initial 45-day period, but he had not succeeded in doing so.

“ ‘We will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. [Cits.] . . . Where the trial court hears evidence, considers briefs and arguments and thereafter in the exercise of its discretion renders a judgment on a motion, in the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.’ [Cit.]” Archie v. Scott, 190 Ga. App. 145, 147 (3) (378 SE2d 182) (1989). Appellee’s counsel was clearly attempting to satisfy the pleading requirements of OCGA § 9-11-9.1, because he secured an expert affidavit which would have been submitted by the expiration of the initial 45-day period had it not been for the potential affiant’s conflict of interest. Apparently, no one was aware of the conflict of interest until the 42nd day when the potential affiant first saw the caption of the case in which her affidavit was to be submitted. In any event, it is clear that appellee’s counsel was not aware of the conflict of interest until the potential affiant informed him on the 42nd day. That appellee’s counsel did not present the affidavit for execution until the 42nd day does not demonstrate, as a matter of law, the absence "of “good cause.” Actual execution of an expert affidavit is quite often the culmination of a long process wherein counsel reviews all of the records and refines the wording of the affidavit. Although it may now be argued by some, with the benefit of hindsight, that appellee’s counsel should have accelerated this process so as to have gained a greater margin of safety with regard to meeting the approaching deadline, the trial court was authorized to reject such an argument and to find the existence of a “good cause” to extend the time for compliance with OCGA § 9-11-9.1.

“[W]e find no manifest abuse of the trial court’s discretion in determining that [appellee] . . . demonstrate [d] ‘good cause’ for the grant of [her motion] to extend the time for filing [her] expert’s affidavit.” Brake v. Mintz, supra at 665-666.

4. After finding that “good cause” existed to grant an extension of time to appellee, the trial court’s order further states that, “ [i]n oral argument. . ., [appellants] alleged that [appellee’s potential affiant] is not an expert competent to testify. . . .” The trial court then addressed the merits of appellants’ contention in this regard and concluded that appellee’s potential affiant was “qualified to testify as an expert in this case. [Cit.]” Appellants enumerate this ruling as error.

The actual competency of appellee’s potential affiant was and is a moot issue since she has not testified in this case due to her conflict of interest. The only relevancy of her affidavit was to demonstrate the diligence of appellee’s counsel in attempting to secure an expert affidavit so as to satisfy the pleading requirements of OCGA § 9-11-9.1. If the potential affiant had been clearly incompetent, this would have demonstrated a lack of diligence and would have compromised appellee’s assertion of “good cause.” However, appellee’s potential affiant was not clearly incompetent to testify and any further extensive inquiry into her actual competency would be totally irrelevant since her affidavit was not being submitted for the purpose of satisfying the pleading requirements of OCGA § 9-11-9.1. It is only the actual competency of the expert whose affidavit appellee does submit that is the relevant inquiry in the instant case, and that issue has not been addressed by the trial court. Although appellants raised this moot issue and secured a ruling on the merits from the trial court, we will not address the merits of that issue on appeal. Having determined that “good cause” existed for the grant of an extension of time, the trial court was not required to determine the actual competency of appellee’s potential affiant. Having affirmed the trial court’s determination that “good cause” existed for the grant of an extension of time, we are not required to determine the actual competency of appellee’s potential affiant.

Decided June 25, 1991.

Allen & Ballard, Hunter S. Allen, Jr., Dennis A. Elíseo, Amy L. Teets, for appellants.

Doffermyre, Shields & Canfield, Robert E. Shields, Leslie J. Bryan, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Pope, Judge. Beasley, Judge,

license: Public Domain

text:
    A90A0932.
    WILLIAMS v. THE STATE.
    (408 SE2d 512)
   Pope, Judge.

In the original appearance of this case we declined to address the issue of the alleged ineffectiveness of defendant’s trial counsel holding that issue had been waived pursuant to the holding in Ponder v. State, 194 Ga. App. 446, 450 (10) (390 SE2d 869) (1990). Williams v. State, 198 Ga. App. 214 (3) (400 SE2d 638) (1990). Subsequent to our decision in Williams the Supreme Court on certiorari reversed the judgment in Ponder with direction that we remand the case “to the trial court for the purpose of permitting [defendant] to file a motion for new trial [raising the issue of ineffective assistance of trial counsel].” Ponder v. State, 260 Ga. 840, 842 (2) (400 SE2d 922) (1991). On February 28, 1991, the Supreme Court granted the application for certiorari in Williams and remanded the case to this court with direction that we reconsider Division 3, in light of the reversal of the judgment in Ponder. “Accordingly, our original judgment is vacated and the judgment of the trial court is hereby affirmed with direction that, within 30 days of the date that this court’s remittitur is filed in the trial court, [defendant] shall be entitled to file a motion for new trial limited to the issue of the alleged ineffectiveness of his trial counsel. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was denied effective assistance of trial counsel, he will be entitled to a new trial. If [defendant] files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that [defendant] was not denied effective assistance of trial counsel, he will be entitled to file a notice of appeal within 30 days of the entry of such an adverse order.” Ponder v. State, 199 Ga. App. 630 (406 SE2d 143) (1991).

Decided June 25, 1991.

Steven W. Reighard, Kenneth Kondritzer, Maria T. Gonzalez, for appellant.

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

Judgment affirmed with direction.

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

Beasley, Judge,

concurring specially.

I reluctantly concur. See Kinney v. State, 199 Ga. App. 354, 355 (405 SE2d 98) (1991) dissent; OCGA § 5-5-41. Cf. Shavers v. State, 200 Ga. App. 76 (_SE2d_) (1991) special concurrence.


author: Beasley, Judge.

text:
    A91A0249.
    HOWARD v. THE STATE.
    (407 SE2d 769)
   Beasley, Judge.

Edgar Howard a/k/a James W. Taylor appeals his convictions of child molestation, OCGA § 16-6-4 (a), and aggravated child molestation, OCGA § 16-6-4 (c).

When appellant married Barbara Clark in June 1986, he moved into her apartment with her, her daughter Nekita and her son Raymond. Early one morning in April 1988, Barbara walked into her bedroom and found appellant lying on the bed fondling Nekita, then age 12. Barbara testified that, “[h]e had his hand busy between her legs.” She left the room unnoticed and did not alert appellant that she had seen him masturbating her daughter, because she was afraid that appellant, who was an aficionado of guns and other lethal weapons, might kill her and Nekita.

Two days later, she confronted Nekita while they were alone and told her what she had seen. Nekita confirmed the occurrence, told her mother that it happened on numerous prior occasions, and stated that she was contemplating suicide because she could not live with it anymore. Her mother told her to go to school the next day and not to come home afterward. On the following day, Barbara took an overdose of sleeping pills in order to call attention to what was transpiring in her house.

After her mother took the overdose, Nekita told James Chatmon, Barbara’s brother, that she had been molested by appellant. Chatmon telephoned the police and talked to an officer, who met Chatmon and Nekita at the hospital where Barbara was hospitalized. Nekita gave an oral statement to the officer and appellant was arrested. Barbara consented to a search of her apartment, which yielded assorted guns, weapons, and ammunition.

Nekita testified that beginning in 1987, when she was 11 years old, appellant began touching her in ways she did not like. At that time, appellant was generally sleeping in the living room rather than with Barbara in the bedroom, because “[h]e said he wanted to protect us.” He would instruct Nekita to disrobe, and he would touch her in her vaginal area, usually with his finger although he had also placed his tongue in her vagina. She did not tell anyone because she was afraid of him. When he fondled her he would say “that it was only masturbation; it wasn’t a sin.”

Appellant held family meetings about masturbation by the children so that they would be “sexually satisfied at home.” Appellant told Nekita that he did not want her to be with any other men and that, sexually, she belonged to him. There was medical testimony that the victim’s hymen was not intact and that this was consistent with the victim’s vagina having been digitally penetrated.

1. Appellant contends that under Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989), the trial court erred in granting a motion in limine by which the state sought to prohibit appellant from introducing evidence of false allegations of sexual misconduct made by the victim against two men.

Appellant was allowed to introduce the testimony of one of the men concerning an alleged false accusation of sexual conduct made by the victim against him. The testimony introduced relative to the victim’s allegations of molestation by the other man authorized the court in ruling that a “reasonable probability” that these allegations were false was not proven.

2. The complaint that the evidence was insufficient requires a review of the evidence in the light most favorable to the verdict. It was sufficient to have authorized any rational trier of fact in finding the essential elements of the crimes beyond a reasonable doubt. Adams v. State, 255 Ga. 356 (338 SE2d 860) (1986), citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also Baker v. State, 245 Ga. 657, 666 (5) (266 SE2d 477) (1980).

3. Appellant claims that the trial court admitted perjured and fabricated testimony of the victim, thereby violating OCGA § 24-9-85 (b).

No reference is made to the whereabouts of this testimony or evidence of its fabrication in the over 1,000 pages of evidence in the transcript. “The burden is on the party alleging error to show it affirmatively by the record. [Cits.]” Moye v. State, 127 Ga. App. 338, 341 (193 SE2d 562) (1972); Rambo v. Fulton Financial Corp., 145 Ga. App. 791 (245 SE2d 12) (1978). See Dugger v. Danello, 175 Ga. App. 618, 620 (2) (334 SE2d 3) (1985). Nevertheless, appellant’s contention that fabrication is established by inconsistencies in her testimony is rejected; it is for the jury to resolve the conflicts. Burrell v. State, 258 Ga. 841 (1) (376 SE2d 184) (1989).

Appellant also contends that to the extent the victim’s testimony conflicted with the testimony of other witnesses, it should have been disallowed under OCGA § 24-9-85 (a). This enumerated error is likewise not supported by specific references to the transcript.

In any event, inconsistencies in the testimony of witnesses do not in and of themselves authorize a conclusion that some of the testimony was perjured. Burrell, supra. “It is uniquely within the province of the jury to weigh conflicting testimony under proper instructions from the Court. [Cit.] ” (Footnote omitted.) Burrell, 258 Ga. at 842, supra; OCGA § 24-9-85 (a).

The trial court charged the jury on the provisions of OCGA § 24-9-85 (a) and (b) and that the jury could consider prior inconsistent statements of witnesses not only for impeachment but also as substantive evidence.

4. For various reasons, appellant enumerates as error the admission of the victim’s out-of-court statements as unreliable.

Out-of-court statements made by the victim to her mother, uncle, and the officer were admitted in evidence. The Child Hearsay Statute, OCGA § 24-3-16, allows the admission of such evidence “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” See Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); In the Interest of K. T, B., 192 Ga. App. 132 (384 SE2d 231) (1989). The evidence in this case authorized a finding that the circumstances surrounding statements provided sufficient indicia of reliability. See Windom v. State, 187 Ga. App. 18 (2) (369 SE2d 311) (1988). In addition, the victim did testify and was thus subject to a thorough cross-examination. See Reynolds v. State, 257 Ga. 725 (3) (363 SE2d 249) (1988).

5. Appellant contends that there was a merger of the offense of child molestation and the offense of aggravated child molestation.

“A person commits the offense of child molestation when he does any immoral or indecent act to or in the presence of or with any child under the age of 14 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). “A person commits the offense of aggravated child molestation when he commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

Appellant was indicted for child molestation based on his having placed his finger in the child’s vagina and for aggravated child molestation based on his having placed his mouth on the child’s vagina. An act of sodomy against a child is aggravated sodomy. Huggins v. State, 192 Ga. App. 820 (1) (386 SE2d 703) (1989). Child molestation and aggravated sodomy are legally distinct, and when, as here, the indictment for each offense is based on separate and distinct acts, the offenses do not merge. Id. at 821 (2). Both convictions stand. See generally OCGA §§ 16-1-6; 16-1-7; Pryor v. State, 238 Ga. 698 (1) (234 SE2d 918) (1977).

6. Double jeopardy is claimed because this was defendant’s second trial. See Howard v. State, 194 Ga. App. 331 (390 SE2d 415) (1990).

Retrial of a defendant is not barred if post-conviction “proceedings resulted in the invalidation, setting aside, reversal, or vacating of the conviction, unless the accused was thereby adjudged not guilty or unless there was a finding that the evidence did not authorize the verdict.” OCGA § 16-1-8 (d) (2). Where the defendant secures a new trial based on the commission of reversible error at a prior trial, the plea of double jeopardy is waived. Staggers v. State, 225 Ga. 581 (1) (170 SE2d 430) (1969). The retrial was not unlawful.

7. Appellant asserts that the trial court erred in not granting his demand for trial in January 1990 pursuant to OCGA § 17-7-170.

In the prior appeal, the remittitur of this Court was not filed in the trial court until March 28, 1990. Appellant was tried during the next succeeding term, rendering it timely. See Dennis v. Grimes, 216 Ga. 671 (2) (118 SE2d 923) (1961). Moreover, appellant’s “demand” is an uncaptioned letter dated January 17, 1990, which requests the trial court to set a date for a new trial “without further ado.” It does not constitute a demand for speedy trial sufficient to invoke the extreme sanction of the statute. State v. Adamczyk, 162 Ga. App. 288 (290 SE2d 149) (1982).

8. The enumeration of error in denying appellant’s request for an appeal bond is without merit. “No appeal bond shall be granted to any person who has been convicted of . . . aggravated child molestation . . . and who has been sentenced to serve a period of incarceration of seven years or more.” OCGA § 17-6-1 (g); see Browning v. State, 254 Ga. 478 (330 SE2d 879) (1985).

9. No error was committed by the superior court’s assigning a state court judge to preside over appellant’s second trial. A state court judge is competent to preside over proceedings in superior court when properly designated. Fielding v. Fielding, 236 Ga. 114 (223 SE2d 85) (1976).

10. It is urged that the prosecutor elicited false and prejudicial testimony to the effect that appellant had four felony charges against him pending in another state. The transcript shows only that a police officer testified appellant had one count of a class IV felony pending elsewhere. No reversible error appears.

11. Additional alleged errors are not reviewable because they are founded on particular portions of the evidence but are not supported by references to the transcript. Various allegations of prosecutorial misconduct and complaints of errors committed by the trial court outside the evidentiary phase of the trial are similarly not supported by references to the record or are affirmatively disputed by the record. Most of these enumerated errors are not supported by argument and citation of authority, and are thus deemed abandoned. Rowell v. State, 176 Ga. App. 309 (1) (335 SE2d 689) (1985). In sum, there has been no showing of reversible error and none appears.

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Divisions 1, 2, 3, 4, 5, 6, 7, 8, 9, and 10 and in the judgment.

Decided June 11, 1991

Rehearing denied June 26, 1991

Edgar W. Howard, pro se.

Robert E. Wilson, District Attorney, J. Thomas Morgan III, Desiree L. Sutton, Assistant District Attorneys, for appellee.

       Appellant alleges that: the prosecutor expressed his personal opinion as to appellant’s guilt, made continuous improper objections, made false statements to the jury which required the grant of a mistrial.

       Appellant alleges that: the prosecutor falsified arrest records, doctored photographs, tampered with witnesses, and coached witnesses.

       Appellant alleges that the trial court erred: in presiding over the initial phases of this proceeding after he had recused himself, in not allowing a new indictment, in not taking action when material used by appellant in preparing his defense was seized, in not investigating charges in expert medical testimony, and in not entering perjury charges against state’s witnesses.

       Appellant does argue that the trial court erred in denying his Brady motion. The prosecution states that pursuant to this motion, the trial court was informed that the prosecution had no information favorable to the defense, and an in-camera inspection was conducted by the trial court prior to trial. Appellant also argues that the prosecution did not comply with his demand for a list of witnesses under OCGA § 17-7-110. The prosecution responds that it informed appellant in a timely manner that it would use only those witnesses appearing on the list of witnesses submitted in the earlier trial, and calling an unlisted rebuttal witness does not violate OCGA § 17-7-110. Fornoy v. State, 255 Ga. 316 (2) (338 SE2d 252) (1986).


text:
    A91A0123.
    RHODES v. THE STATE.
    (407 SE2d 442)
   Beasley, Judge.

Defendant appeals his conviction for selling cocaine, OCGA § 16-13-30 (b), the nolle prosequi of a charge of possessing methamphetamine with intent to distribute, OCGA § 16-13-30 (b), and the denial of his motion for new trial. He enumerates seven errors.

On February 15, 1989, appellant was arrested when a co-defendant, Hayes, sold cocaine to an undercover narcotics officer. The appellant had driven Hayes to the site of the sale, was present during the transaction, and was observed by officers writing in a notebook. The notebook contained information about the manufacture of methamphetamine.

On February 23, appellant and the co-defendant were indicted for trafficking in cocaine, possession of methamphetamine with intent to distribute, and use of a communication facility in the commission of a felony. On March 20, a superseding indictment was returned which charged the defendants with sale of cocaine rather than trafficking, the crime lab having reported that the cocaine weighed 27.9 grams, less than the trafficking requirement of 28 grams. OCGA § 16-13-31 (a). At the calendar call on Friday, April 21, appellant stated he was not ready for trial because he had not been informed of the superseding indictment seven days before trial and because he had prepared only a technical defense based on the insufficiency of 27.9 grams for a trafficking offense. The court reset the case for Monday, April 24.

When the case was called on April 24, appellant requested a continuance, reclaiming insufficient time for preparation. The motion was denied. Appellant was convicted of the sale of cocaine and was acquitted of the use of a communication facility during the commission of a felony. OCGA § 16-13-32.3. The amphetamine count was not submitted to the jury. Appellant received a maximum sentence of 30 years, 20 years in confinement and the remainder on probation.

1. The first error asserted is the denial of a continuance. Appellant argues that he should be granted a new trial since, because of the State’s substitution of indictments, he did not receive the seven days’ notice of trial he is entitled to under USCR 32.1 or the time to sufficiently prepare a defense mandated by the due process guarantees of the United States and Georgia constitutions.

“All applications for continuance are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice require.” OCGA § 17-8-22. “A motion for a continuance predicated on the basis that counsel has not had sufficient time to prepare for trial addresses itself to the sound discretion of the trial judge,” Cantrell v. State, 154 Ga. App. 725 (2) (270 SE2d 12) (1980), “and the refusal to grant a continuance will not be disturbed unless there is a clear abuse of discretion.” Young v. State, 237 Ga. 852, 855 (230 SE2d 287) (1976).

In the exercise of discretion, the trial judge “has to consider the facts and circumstances of each case to determine what the ends of justice require,” since “[a] statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is a mere conclusion.” Foster v. State, 213 Ga. 601, 603 (1) (100 SE2d 426) (1957). The trial court considered the circumstances of this case, concluding that a charge of selling cocaine would be a lesser included offense of the trafficking charge and that an attorney, in preparing a defense to trafficking, would anticipate the necessity to defend the lesser included offense of sale,

The applicant for a continuance must show due diligence. OCGA § 17-8-20. The trial court’s denial of the motion for a continuance was not a manifest abuse of discretion. Mack v. State of Ga., 125 Ga. App. 639, 640 (2) (188 SE2d 828) (1972); Young, supra.

2. The second assigned error is the denial of Rhodes’ motion for severance.

OCGA § 17-8-4 provides that defendants indicted for a non-capital felony “may be tried jointly or separately in the discretion of the trial court.” “As a general matter, courts should grant severance ‘whenever it appears “necessary to achieve a fair determination of the guilt or innocence of a defendant.” ’ ” Glover v. State, 188 Ga. App. 330, 331 (373 SE2d 39) (1988). It sets out four factors and the further requirement that movant must show harm or prejudice from the failure to sever. Appellant’s burden is to show “that any of the named criteria are applicable so as to prejudice his defense.” Causey v. State, 192 Ga. App. 294, 297 (4) (384 SE2d 674) (1989).

Appellant argues that there was no direct evidence that he participated in the transaction but that his co-defendant’s participation was clear, circumstances that place appellant in the position of having to point out to the jury, in an attempt to prove his own innocence, facts which would implicate his co-defendant. Appellant states in his brief that “[s]uch a tactic might well have worked to his detriment, if the jury felt that his association with [co-defendant] under these circumstances implicated [appellant].”

Nothing appears in the record to demonstrate that this argument was urged at trial. It has been held that this court will not consider “issues and grounds for objection which were not raised and passed upon in the trial court,” Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317) (1981); Kress v. State, 195 Ga. App. 519 (2) (394 SE2d 139) (1990). Even considering the argument, it does not render the trial court’s refusal to sever an abuse of its discretion. Causey, supra.

3. Appellant asserts error on the trial court’s admission, after a Jackson v. Denno hearing, of certain statements he made in response to interrogation.

The evidence showed that the appellant was notified of his Miranda rights immediately upon arrest. The sheriff then drove appellant to the jail. The next day appellant was questioned by a detective who did not again advise or remind the appellant of his Miranda rights. He had been present when the warnings were given and Rhodes indicated he understood his rights. Appellant contends that he was entitled to be reminded or readvised of his rights prior to questioning, and that his statements should have been suppressed since they were not knowingly made.

The statements made by appellant are: (1) When asked why he was studying methamphetamine, he replied, “it was interesting.” (2) When asked where he got the contraband, he stated that he had found a vial later determined to contain cocaine residue and mannitol “in a garbage dump.”

Where an interrogation is continuous, or where there is a relatively short time span between the warnings and statements, reminding an accused of his Miranda rights is not required. See Akers v. State, 179 Ga. App. 529, 530 (346 SE2d 861) (1986); Watson v. State, 227 Ga. 698, 700 (1) (182 SE2d 446) (1971); McKenzie v. State, 187 Ga. App. 840 (371 SE2d 869) (1988).

Appellant relies upon Bragg v. State, 162 Ga. App. 264, 266 (1) (291 SE2d 112) (1982), where this court said that “[a]fter an individual in custody on criminal charges has been given the complete Miranda warnings, it is not necessary that subsequent incidents of questioning the arrested person be preceded by repetition of the complete warning if that full warning is reinforced prior to subsequent interrogation by reminding the individual in custody that he was previously advised of his rights.” See Anglin v. State, 244 Ga. 1, 3 (2) (257 SE2d 513) (1979) (overruled on other grounds Welch v. State, 254 Ga. 603, 606 (331 SE2d 573) (1985)); Moten v. State, 231 Ga. 642, 643 (203 SE2d 527) (1974).

In Hubbard v. State, 187 Ga. App. 542, 543 (4) (371 SE2d 116) (1988), a new trial was ordered because the prior warning was not reinforced at the time the incriminating statement was made.

In Gregg v. State, 233 Ga. 117, 125 (4) (210 SE2d 659) (1974), the Supreme Court held that Miranda warnings had not become “stale” after a period of 14 hours. In Watson, supra, the Supreme Court found that a second statement made seven hours after the first statement constituted continued interrogation. The totality of the circumstances support the determination that the statements were voluntarily made.

Even if error, the admission of the statements was harmless. “ ‘A constitutional error is harmless, if there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” [Cit.] The test is not “whether there was sufficient evidence on which the petitioner could have been convicted without the evidence complained of,” id., but whether the evidence complained of may have influenced the factfinder’s deliberations. [Cits.]’ ” Vaughn v. State, 248 Ga. 127, 131 (281 SE2d 594) (1981). Ellis v. State, 256 Ga. 751, 755 (353 SE2d 19) (1987). Given the limited nature of these statements, there is no reasonable possibility that their admission might have contributed to the conviction.

4. Rhodes enumerates error in the denial of his motion for mistrial and in failing to take any curative action after he claimed that jurors had the opportunity to see him in handcuffs while being brought to court by a sheriff’s deputy.

Defendant has a right to appear for trial free from all shackles and bonds, and in an atmosphere free of partiality. McKenzey v. State, 138 Ga. App. 88 (225 SE2d 512) (1976) (then physical precedent). “However, the mere fact that a handcuffed defendant is seen by jurors or prospective jurors is not a ground for the automatic grant of a challenge to the array of jurors or of a mistrial. [Cits.]” Carter v. State, 155 Ga. App. 840, 841 (273 SE2d 417) (1980). There are circumstances which will justify the jury’s seeing the defendant handcuffed, such as being brought from jail to the courtroom. Gates v. State, 244 Ga. 587, 593 (2) (261 SE2d 349) (1979).

No evidence was ever presented that established that Rhodes had in fact been seen by jurors while handcuffed. He refers to the “opportunity” jurors had to view him, saying they had been able to view him but never claiming they actually did. The trial court inquired into the circumstances involved in the alleged “viewing,” and after listening to all parties and a police officer who had brought Rhodes to court, denied the motion for mistrial. Beyond this, the court was never asked to question the jurors, although counsel for both defendants mentioned to the court that it might be necessary to voir dire the jury. This necessity was not repeated or asserted, and no request was made for curative instructions.

The mere possibility that jurors might have had an opportunity to observe appellant in handcuffs does not mandate a mistrial. See Keith v. State, 186 Ga. App. 273, 274 (1) (367 SE2d 255) (1988). The burden rests on the one asserting error to show it affirmatively by the record. Shorter v. State, 193 Ga. App. 217, 218 (3) (387 SE2d 427) (1989). The factual determination is upheld because it is, at the least, not clearly erroneous. Clark v. State, 189 Ga. App. 68 (2) (374 SE2d 783) (1988).

5. The next question is whether it was error to allow the State to introduce evidence that Rhodes was on probation.

At the time of his arrest, appellant was receiving a notebook which contained such matters as: chemical descriptions of ethers used in the manufacture of methamphetamine; price quotations from chemical companies for bulk quantities of ether; chemical descriptions of and formulas for methamphetamines and amphetamines; handwritten formulas of compounds related to methamphetamine, ephedrine, “speed” and pseudoephedrine; the word “mannitol” written on a piece of paper; and other references to controlled substances. Last was a travel permit issued to Rhodes by the United States District Probation Office.

Appellant claims that the introduction of the travel permit, which showed he was a convict, constituted an inadmissible introduction of his bad character into evidence. OCGA § 24-2-2. He argues that the notebook contained information which would accurately identify him without the travel permit, such as notepaper with Oklahoma addresses thereon and papers relating to cattle breeding.

The State points out that the travel permit was needed to establish appellant’s connection with the notebook because appellant had denied ownership of a briefcase found in his truck which contained material similar to that found in the notebook, and that the only item in the notebook containing Rhodes’ name was the travel permit.

“Material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. [Cit.]” Dampier v. State, 245 Ga. 427, 433 (265 SE2d 565) (1980). But “there [must be] some logical connection between the two, from which it can be said that proof of the one tends to establish the other. [An exception to exclusion is where the evidence] . . . may bear upon the question of the identity of the accused, or articles connected with the offense. . . .” Cawthon v. State, 119 Ga. 395, 408 (46 SE 897) (1903).

In Bethea v. State, 172 Ga. App. 598 (324 SE2d 202) (1984), the appellant enumerated as error the admission into evidence of a document which revealed that appellant was on parole at the time of a burglary. It was admissible because it was a necessary link between appellant and the means of transportation he was said to have used to reach the burglarized store. Lumpkin v. State, 182 Ga. App. 505 (356 SE2d 238) (1987), held admissible a parole grid sheet found in the appellant’s wallet, which was found in the victim’s truck, because it connected appellant to the scene of the crime and identified him as one who had been involved in the crime, even though the wallet also contained appellant’s birth certificate.

Given that the travel permit was the only document containing appellant’s name, that other evidence to prove ownership would be at best speculative and circumstantial, and that appellant denied ownership of a briefcase containing similar material, introduction of the travel permit was properly allowed.

6. Appellant contends the court erred by refusing to direct a verdict of acquittal as to the charge of possession of methamphetamine with intent to distribute.

At the beginning of trial, the State chose not to proceed on this count and no evidence of possession of methamphetamine was presented. Appellant moved for a directed verdict of acquittal “or in the alternative, for the entry of a nol-pros [sic]” on this count at the close of the case. The court refused to direct a verdict of acquittal or enter a nolle prosequi, instead masking it before it went to the jury.

An order of nolle prosequi was entered after the trial.

OCGA § 17-9-1 (a) provides that “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or ‘not guilty’ as to the entire offense or to some particular count or offense, the court may direct the verdict of acquittal to which the defendant is entitled under the evidence and may allow the trial to proceed only as to the counts or offenses remaining, if any.”

“[W]hen there is no conflict in the evidence and it clearly demands a verdict of acquittal as a matter of law there is a duty upon the trial judge to grant a motion for a directed verdict of acquittal and his failure to do so will constitute reversible error on appeal.” Merino v. State, 230 Ga. 604, 605 (198 SE2d 311) (1973).

An entry of nolle prosequi is not equivalent to a verdict of acquittal. McGahee v. State, 133 Ga. App. 964, 966 (213 SE2d 91) (1975): “A nolle prosequi is a cessation of prosecution for the nonce, but it may spring into life again and be continued again with all the furvor and energy at the command of the prosecuting officers. A new indictment may be returned or a new accusation may be filed, and the earlier nolle prosequi can in no sense be pleaded as autrefois acquit or former jeopardy, or res judicata. [Cit.]”

There was no evidence to support the methamphetamine count, mandating a directed verdict. However, by expressing equal satisfaction with either remedy, appellant left an option which was satisfied by the entry of the nolle prosequi. One cannot complain of a ruling which his own conduct procured, McDaniel v. State, 248 Ga. 494, 495 (2) (283 SE2d 862) (1981), and the issue is now moot. Richardson v. State, 87 Ga. App. 397 (1) (74 SE2d 15) (1953).

Decided June 26, 1991.

Edwards & McLeod, Jennifer McLeod, for appellant.

Frank C. Winn, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

7. Appellant contends that he was sentenced as a recidivist by the State’s oral request under OCGA § 17-10-7 (a), and that this was error because the appellant had not been indicted as a recidivist. He cites Brown v. State, 144 Ga. App. 509, 510 (241 SE2d 621) (1978), for the proposition that “[i]t is well settled that ‘one must be indicted as a recidivist in order to impose recidivist punishment.’ [Cits.]”

However, as noted in Brown, former convictions may be introduced at the presentence hearing in “aggravation of punishment,” and a trial court has discretion in imposing sentence within the scope of the punishment prescribed. The court observed that it did not regard the trial judge’s statement as an unqualified application of recidivist punishment since the transcript did not show that punishment was so applied but instead showed it was based on defendant’s record.

Rhodes did have notice of aggravating circumstances, and the court never stated it was imposing recidivist punishment. Because it is error to disclose to the jury prior convictions before a determination of guilt, “the only purpose for their inclusion in the indictment is to give to the accused unmistakable advance warning that the prior convictions will be used against him at sentencing.” State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) (1984). “[I]t is not required that the prior convictions be included in the indictment but only that the accused receive notice of the state’s intention to seek recidivist punishment and of the identity of the prior convictions.” Favors v. State, 182 Ga. App. 179 (355 SE2d 109) (1987). This applies to OCGA § 17-10-7; Anderson v. State, 176 Ga. App. 255, 256 (335 SE2d 487) (1985).

The sentence, to which no objection was interposed, is within the statutory limit, OCGA § 16-13-30 (d), and within the trial court’s discretion, so it will not be disturbed. Monroe v. State, 250 Ga. 30, 36 (7) (295 SE2d 512) (1982).

Judgment affirmed.

Banke, P. J., concurs. Carley, J., concurs in Divisions 1, 3, 4, 5, 6, 7, and in the judgment.


text:
    A91A0629.
    HENDERSON et al. v. THE STATE.
    (407 SE2d 448)
   Beasley, Judge.

Henderson and Yarbrough, who both appeal, were jointly tried and convicted of having committed aggravated assault on Sandra Edmonds. OCGA § 16-5-21 (a) (2).

Between 3:00 and 4:00 p.m. on the day in question, Ronnie West, Edmonds’ brother, drove her to an apartment area so they could buy crack cocaine. They stopped the car where several people were loitering. Yarbrough approached the driver’s side and sold some crack cocaine to West. West and Edmonds returned a second time at approximately 8:00 p.m. and bought more cocaine from Yarbrough, but some of it was fake.

West and Edmonds returned again at about 1:00 a.m. By that time, Edmonds had run out of cash and wanted to use a fox coat for the purchase. West asked Yarbrough to take the coat in exchange for cocaine. Yarbrough in turn asked Henderson, who was standing at the side of the car. Henderson refused and stated he needed money. In the meantime, Yarbrough let Edmonds inspect the cocaine then in his possession. She exchanged the fake cocaine she had purchased earlier for the cocaine she had just been given by Yarbrough. As she and her brother were driving away, Yarbrough realized what had happened and yelled, “Stop the car.” Henderson walked toward the car as it was being driven away, reached in his pants, and started firing a gun in its direction. Edmonds was hit in the back and sustained serious injuries.

Yarbrough’s Appeal

1. Yarbrough’s first enumeration is that the court erred in denying a directed verdict because the evidence is insufficient to support his conviction as a party to the crime. He argues that even if he was the person identified, which he denied, the statement “stop that car” is too ambiguous to constitute proof beyond a reasonable doubt that the person was directing Henderson to shoot at it.

The evidence authorized the jury to find that Henderson and Yarbrough worked in concert in the repeated sales of cocaine to the victim and her brother.

The jury could have found that he was “concerned in the commission of [the] crime,” and thus a party under OCGA § 16-2-20, by reason of the fact that, by way of his verbal command to his companion, Yarbrough intentionally aided or abetted in the commission of the aggravated assault, OCGA § 16-2-20 (b) (3), or that he intentionally advised, encouraged, hired, counseled, or procured Henderson to commit that crime. OCGA § 16-2-20 (b) (4). He took affirmative action. See Parker v. State, 190 Ga. App. 126 (378 SE2d 503) (1989), and cits. It is not, as appellant argues, “just as likely” that Yarbrough’s directive was aimed at the driver of the car, as Yarbrough argued to the jury. Cf. Parker v. State, 155 Ga. App. 617 (271 SE2d 871) (1980).

The evidence was sufficient to survive a motion for directed verdict, and to authorize a rational trier of fact to find Yarbrough guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant also enumerates as error the trial court’s failure to instruct the jury, without request, that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

A trial judge, even in the absence of a request, must charge the jury on the law set forth in this Code section in those cases, which are wholly dependent on circumstantial evidence, Jones v. State, 193 Ga. App. 837 (389 SE2d 402) (1989), although it has been held that even in a case wholly dependent on circumstantial evidence, the trial court’s failure to give such a charge in the absence of a request is not reversible error, if from the proven facts only one reasonable hypothesis exists. Stoker v. State, 177 Ga. App. 94 (1) (338 SE2d 525) (1985), and cits.

Appellant argues that the ambiguity of the statement “stop that car” renders this a case wholly dependent on circumstantial evidence. To the contrary, there was direct evidence that Yarbrough uttered the statement “stop that car,” and there was direct eyewitness identification of Yarbrough. The trial court did not err in failing to volunteer the jury charge.

Henderson’s Appeal

3. Henderson enumerates error in the trial court’s refusal to suppress the identification testimony of the victim. He argues that the victim’s pre-trial photographic identification of him was impermissibly suggestive, thereby giving rise to a substantial likelihood of in-court misidentification. Towns v. State, 136 Ga. App. 467 (1) (221 SE2d 631) (1975). He also contends that the photo spread was shown to the victim under circumstances which made her identification unreliable as a matter of law.

The police interviewed Ronnie West shortly after the shooting, and he gave a detailed description of the man who had shot his sister. The police then went to the hospital and obtained a description of the suspects from the victim. Afterward, the police went to the area of the shooting, interviewed a number of people, and arrested Yarbrough and Henderson, who fit the descriptions given them.

Two days later the police returned to the hospital and showed the victim two photographic arrays, one with Yarbrough in it and one with Henderson in it. She was on medication and intravenous feeding, was in pain, and had been using crack cocaine. Although the victim was unable to identify Yarbrough, she identified Henderson as being the individual who shot her. The police officer testified that the photographs used in the display were selected based on the similarity of the features of the men photographed. When the victim went to the preliminary hearing, Henderson and other prisoners were sitting in the jury box. When asked whether she could identify the individual who had shot her, she unhesitatingly pointed at Henderson, and she similarly identified him at trial.

After reviewing the portions of the transcript cited by Henderson, as well as the original photo array entered as six exhibits, we hold that the trial court was authorized to conclude that the array was not impermissibly suggestive, and the manner of their presentation did not render the procedure an invalid one. See generally Daniel, Ga. Crim. Trial Prac. (1990 ed.), § 6-6.

The trial court did not err in denying Henderson’s pretrial motion to suppress the victim’s identification testimony.

4. Henderson also complains of the trial court’s refusal to allow him to present expert testimony as to the effect of crack cocaine on the perceptive and recall faculties of an individual later giving eyewitness identification testimony.

The witness was a substance abuse counselor who treated recovering alcoholics and drug addicts. She was employed at one of the state recovery centers, was working towards certification as an addiction counselor, and had been involved with “hundreds” of alcohol and cocaine addicts. Henderson offered her testimony as to complaints made by crack addicts in regard to lack of memory and hallucinations, although she had not interviewed Edmonds or her brother or reviewed their drug-use histories, medical or otherwise. The trial court ruled that she was not qualified as an expert.

The law generally disallows expert testimony regarding inaccuracies in eyewitness identification. See Norris v. State, 258 Ga. 889 (1) (376 SE2d 653) (1989), and cits. In this case, the trial court ruled that the witness was not even an expert on that subject. “Whether or not a witness is allowed to testify as an expert is a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed. [Cit.]” Hogan v. Olivera, 141 Ga. App. 399, 401 (1c) (233 SE2d 428) (1977). We find no abuse of discretion.

5. Henderson enumerates as error the trial court’s denial of his motion for new trial. Since this enumeration of error is not supported by argument or citation of authority, it is deemed abandoned. Rowell v. State, 176 Ga. App. 309 (1) (335 SE2d 689) (1985).

Decided June 26, 1991.

Dwight L. Thomas, Henry C. Johnson, Jr., for appellants.

Lewis R. Slaton, District Attorney, Rebecca A. Keel, Joseph J. Drolet, Kenneth D. Feldman, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A91A0262.
    JEWELL v. STATE OF GEORGIA.
    (407 SE2d 763)
   Banke, Presiding Judge.

The state filed this action pursuant to OCGA § 16-13-49 (e), seeking to condemn $4,310 in United States currency which had been seized from the appellant’s person, as well as an A-K 47 automatic rifle and a Browning 9mm pistol which had been seized from his residence. Following a non-jury trial, the court below concluded that the $4,310 was subject to forfeiture because it was intended to be used to purchase a controlled substance and that the weapons were subject to forfeiture because they “had been used and were intended for use to facilitate the unlawful manufacture, distribution, dispensing, or possession of a controlled substance or marijuana.” The appellant brings this appeal from the denial of his motion for new trial.

A warrant for the search of the appellant’s residence was obtained by special agent Del Thomasson of the Georgia Bureau of Investigation on January 17, 1990, based on information that the appellant was selling controlled substances from the residence. Agent Thomasson’s affidavit specified that on the previous day, January 16, 1990, a confidential informant had advised that the appellant would be receiving a large quantity of prescription pills that same afternoon from an individual named Steve Farrow. At the hearing on the condemnation petition, it was shown that Farrow and another individual by the name of Clay Moreland had been stopped by the Georgia State Patrol on January 16, 1990, while en route to the appellant’s residence, and that 1,300 pills representing 37 different prescription drugs had been seized from the vehicle they were occupying. It was further shown that Moreland was present at the appellant’s residence at the time the search warrant was executed and that a Valium pill was found in his possession at that time.

The weapons sought to be condemned by the state were discovered, fully loaded, in the appellant’s bedroom. In addition, small quantities of marijuana were seized from inside a bag of feed grain in the kitchen and from a “rolling tray” in the living room. Also seized were several items characterized by the state’s witnesses as drug paraphernalia, a “High Times” magazine article containing photographs of 40 different varieties of marijuana which were described therein as the “Fortune 500 of dope,” and an item of correspondence directed to the appellant requesting him to provide a price quote for “pot” or to send “Vi oz. itself.” The appellant was not at the residence when the search was conducted but was detained at an intersection approximately a mile-and-a-half away. The $4,310 in currency which the state sought to condemn was seized from his person at that time. Held:

1. The appellant contends that the trial court erred in failing to make findings of fact and conclusions of law as required by OCGA § 9-11-52. This enumeration of error is without merit for two reasons. In the first place, the appellant did not object to the sufficiency of the court’s judgment on this ground. “When findings or conclusions are not made prior to judgment to the extent necessary for review, failure of the losing party to move therefor after judgment shall constitute a waiver of any ground of appeal which requires consideration thereof.” OCGA § 9-11-52 (c). Secondly, a review of the trial court’s order reveals that such findings and conclusions are in fact contained therein.

2. The appellant contends that the trial court erred in refusing to dismiss the action based on the failure of the district attorney to prove that he had filed the condemnation petition within 30 days after receiving notice of the seizures, as required by OCGA § 16-13-49 (e). This enumeration of error is also without merit. The condemnation petition, which was filed on Monday, February 26, 1990, contains the verified averment of the district attorney that he had received notice of the seizures on January 26, 1990. The appellant’s counsel accepted this date for purposes of his motion to dismiss, stating: “I believe the evidence is that the state was notified on January the 26th and that the condemnation action was filed on February the 26th.” Thus, the appellant has waived any contention that the district attorney received constructive notice of the seizures at an earlier date.

Because February 26, 1990, fell on a Monday, the passage of 31 days between the date of the notice and the date of the filing of the petition did not render the filing untimely. OCGA § 1-3-1 (d) (3) specifies that “[e]xcept as otherwise provided by time period computations specifically applying to other laws, when [a period of days] is prescribed for the exercise of any privilege or the discharge of any duty ... if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.”

We reject the appellant’s contention that this rule was inapplicable to the present case because condemnations are special statutory proceedings which are not governed by the Civil Practice Act. Although Rule 6 (a) of the Civil Practice Act, OCGA § 9-11-6 (a), specifies that the computational rules contained in OCGA § 1-3-1 (d) (3) shall be applicable to cases governed by the CPA, the latter Code section clearly has force and effect in its own right. Furthermore, we note that to the extent the appellant’s argument in this regard is premised on the assumption that the present proceeding was not governed by the Civil Practice Act, it conflicts with his argument, discussed in Division 1, supra, that the trial court was required to make findings of fact and conclusions of law pursuant to OCGA § 9-11-52.

Decided May 28, 1991

Rehearing denied June 27, 1991.

Bruce & Hentz, Wm. Davis Hentz, for appellant.

Ralph Van Pelt, District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

3. In a supplemental brief filed well after the deadline for filing his original brief and enumeration of errors, the appellant asserts, for the first time in this appeal, that the trial court further erred in denying his motion to dismiss because the state failed to prove that the money and weapons in question had any connection to criminal activity involving controlled substances. Issues not argued and supported with citation of authority in the original brief cannot be “resurrected from abandonment” by a supplemental brief. See Georgia Bldg. Svcs. v. Perry, 193 Ga. App. 288 (6), 298-299 (387 SE2d 898) (1989); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (3) (328 SE2d 564) (1985). See also Cohran v. Carlin, 254 Ga. 580, 584 (1b) (331 SE2d 523) (1985). Accordingly, this issue is deemed waived.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0448.
    WILLIAMS v. DIENES APPARATUS, INC. FALCO MANUFACTURING, INC. v. DIENES APPARATUS, INC.
    A91A1217.
    (407 SE2d 408)
   Beasley, Judge.

Falco Manufacturing, lessee of certain machinery and a building from Williams, sued Williams and sought damages for furnishing faulty equipment, lost profits, and cancellation of the lease. Williams in turn brought a third-party complaint against Dienes Apparatus from whom he purchased the machinery which was leased to Falco. He prayed for indemnification and reimbursement for the total value of the lease, $175,000, on the ground that Dienes furnished him with equipment which was not fit for the use intended. By amendment Williams sought to recover the value of the machinery purchased less salvage value. Dienes counterclaimed against Williams for the balance owing on the purchase of the machinery.

The claims arose out of the following facts. Three individuals started Falco with the idea of manufacturing and producing bonded monocord thread from yarn. They attémpted to interest Williams in investing in their company. He declined but agreed to lease them a building for use in the manufacturing process and machinery necessary to produce the thread. The individuals negotiated with Dienes and selected certain needed machinery. Williams paid for it and leased it to Falco. The process included as an attachment to the machinery a “black box” in which Falco had a proprietary interest. Falco did not supply the “black box.” From the beginning there were problems with the functioning of the machines in conjunction with the “black box” and no satisfactory, lasting production was ever obtained. Falco blamed Dienes and Dienes blamed Falco for the malfunctions.

The lease agreement between Falco and Williams was for a monthly rental of $3,500 for 50 months. Falco made only two payments. Dienes sold Williams the machinery for $78,922. When Falco closed down, Williams still owed Dienes $7,472.50.

At the trial after the close of plaintiff Falco and third-party plaintiff Williams’ evidence, Dienes moved for directed verdict based on a failure to prove damages. The trial court granted that motion. It then granted Williams’ directed verdict motion on the ground there was no basis for cancellation of the lease between Williams and Falco. The court also granted a directed verdict in favor of Dienes on its counterclaim.

Case No. A91A1217

1. The appeal of Falco complains that it was error a) to direct a verdict in favor of Williams on the issue of termination of the lease and b) to direct a verdict against it and in favor of Dienes for $7,472.50, the balance owed on the purchase price of the equipment.

(a) Falco’s founder picked out the equipment which was leased from Williams. Williams also leased Falco a building and other equipment, besides that procured from Dienes, about which no question was raised. Falco made no effort to establish how the alleged failure of the Dienes equipment affected the total value of the lease. Insofar as Falco sought to rescind the lease, the parties operated under the lease for about three years of the four-year two-months lease and Falco never sought to restore or tender the benefits received under the contract. OCGA § 13-4-62. See Jones v. Gaskins, 248 Ga. 510, 512 (1) (284 SE2d 398) (1981); Henderson Elevator Co. v. N. Ga. Milling Co., 126 Ga. 279, 282 (3) (55 SE 50) (1905); Milam v. Gray, 80 Ga. App. 356 (3) (56 SE2d 168) (1949). During that time Falco made only two payments on the lease. “[T]he right of a party to rescind a contract depends upon that party’s not having breached the contract himself.” Martin v. Rollins, 138 Ga. App. 649, 651 (226 SE2d 771) (1976) aff’d 238 Ga. 119 (231 SE2d 751) (1977). Lastly, Falco has failed to show any mistake which would relieve it from its contractual obligation. See Hyman v. Horwitz, 148 Ga. App. 647, 649 (252 SE2d 74) (1979). There was no cause for cancelling, in its entirety, the lease between Williams and Falco under OCGA § 23-2-24. A directed verdict was authorized by OCGA § 9-11-50 (a).

(b) There was no judgment against Falco for the balance owed by Williams on the purchase price of the equipment obtained from Dienes. Falco’s second enumeration is moot.

Case No. A91A0448

2. Williams contends that the trial court erred: a) by directing a verdict against him on his third-party complaint against Dienes and b) by directing a verdict in favor of Dienes on its counterclaim against him.

(a) As to whether there was sufficient evidence of damages on which Williams could predicate recovery from Dienes, the answer is no. There was evidence as to the machines not functioning or not performing the tasks which Falco sought to accomplish. There was also evidence as to their purchase price.

However, there are only two places pointed out in the transcript where there was evidence the machines were worthless. Neither indicates that fact. Williams was asked: “And did you try to sell the Dienes machinery?” He responded: “No, sir. I didn’t — hadn’t had nobody to have no interest in it.” The owner of Dienes was cross-examined: “Q. Does the machinery have any value the way it sits now? A. I wasn’t looking at it with that in mind. It would take a close examination to put any appropriate value on it. Q. Would you think that it would have any salvage value? A. I would certainly want to examine it.” He then explained that due to its condition “You’d have to examine very carefully to put a reasonable value on it.”

The burden was on Williams to produce evidence which would “furnish the jury data sufficient to enable them to estimate with reasonable certainty the amount of the damages. [Cit.] It cannot be left to speculation, conjecture and guesswork.” Bennett v. Assoc. Food Stores, 118 Ga. App. 711, 716 (165 SE2d 581) (1968). “The measure of damages for breach of warranty is the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted.” OCGA § 11-2-714 (2).

Decided May 28, 1991

Rehearing denied June 27, 1991.

Jerry N. Neal, for appellant (case no. A91A0448).

Charles D. Strickland, for appellant (case no. A91A1217).

Andrew J. Hill, Jr., Heard, Leverett & Phelps, E. Freeman Leverett, for appellee.

The purchase price may establish one of the two figures needed. However, Williams failed with regard to the second by not showing the value of the equipment delivered in a defective condition. Chrysler Corp. v. Marinari, 177 Ga. App. 304, 306 (2) (339 SE2d 343) (1985). There is no evidence which would sustain a finding of value at the time of acceptance. See Mumford v. Phillips, 195 Ga. App. 782, 783 (1) (395 SE2d 45) (1990); Fiat Auto U. S. A. v. Hollums, 185 Ga. App. 113, 115 (4) (363 SE2d 312) (1987). Where there is insufficient evidence to enable the jury to calculate damages with reasonable certainty, a directed verdict against the complainant is authorized. Bennett, supra; First Nat. Bank v. Damil, 171 Ga. App. 237, 239 (319 SE2d 54) (1984).

(b) The evidence offered regarding Dienes’ counterclaim as to the unpaid balance was that Williams owed Dienes $7,472.50, which was undisputed. Thus, the direction of a verdict on Dienes’ counterclaim was authorized. OCGA § 9-11-50; Burney v. Butler, 243 Ga. 620 (1) (255 SE2d 686) (1979).

Judgments affirmed.

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


author: Andrews, Judge.

text:
    A91A0682.
    POSTELL v. THE STATE.
    (407 SE2d 412)
   Andrews, Judge.

Postell appeals his convictions for rape and robbery by intimidation. The victim testified that Postell had sexual intercourse with her by force and against her will, and, by means of coercion and intimidation, took jewelry from her person. OCGA §§ 16-6-1; 16-8-40. Postell did not testify and presented no evidence.

1. In his first enumeration, Postell claims the trial court erroneously failed to give his requested jury charge defining the nature of direct and circumstantial evidence, and instructing the jury that, to warrant a conviction on circumstantial evidence alone, the facts must not only be consistent with the state’s theory of guilt, but must ex-elude every other reasonable theory save that of the defendant’s guilt. See OCGA § 24-4-6. The evidence against Postell was direct and circumstantial. The victim gave direct evidence that Postell, who she had been dating for a short time, raped and robbed her. Additionally, the state introduced evidence of a circumstantial nature. The testimony of the victim’s pastoral counselor was offered to show that she had certain personality and character traits which made her particularly vulnerable to the rape and robbery. The jury heard witnesses whose testimony was allowed to show that the victim’s description of the rape and robbery to them was consistent with the testimony given by the victim. Testimony from another witness and the victim was offered to show the victim’s religious affiliation and beliefs to demonstrate the victim did not consent to sexual intercourse with the defendant because of a strongly held religious belief that such conduct was wrong outside of marriage. Evidence showed the victim was married, but at the time of the incident was separated from her husband.

The evidence included testimony from the victim that, during their relationship, she told the defendant she would not have sexual relations with him because her church taught that it was wrong outside of marriage. However, on cross-examination, the victim testified that a few days before the rape and at the defendant’s request, she willingly performed oral sex with the defendant. She admitted that this conduct violated her church’s teachings.

Whether or not the victim consented was a material issue in the case. The only direct evidence in the case was the testimony of the victim. The jury was authorized to conclude that the victim’s testimony was at least partially impeached when, after testifying on direct examination that she would not have consensual sexual relations with the defendant because of her religious beliefs, she later contradicted that testimony on cross-examination by admitting she willingly had sexual relations with the defendant prior to the charged rape. OCGA § 24-9-82. “If a witness is impeached or discredited in some legal manner, a jury or a trial judge in a non-jury case may disbelieve him altogether.” Mustang Transp. v. W. W. Lowe & Sons, 123 Ga. App. 350, 352-353 (181 SE2d 85) (1971); OCGA § 24-9-80.

The trial judge instructed the jury as to impeachment, but failed to give any charge on the law of circumstantial evidence. When a jury question exists as to whether the only witness giving direct evidence of the crime has been impeached, it is reversible error for the trial court to fail to charge on the law of circumstantial evidence, even in the absence of a request. Stanley v. State, 239 Ga. 260, 261-262 (236 SE2d 611) (1977); Green v. State, 167 Ga. App. 548, 549 (306 SE2d 354) (1983); Gibson v. State, 150 Ga. App. 718, 719 (258 SE2d 537) (1979); Julian v. State, 134 Ga. App. 592, 599 (215 SE2d 496) (1975). “These cases express a policy to avoid permitting the jury to determine a defendant’s guilt or innocence entirely from circumstantial evidence without any instruction on the law of circumstantial evidence.” Green, supra at 549.

However, “where the circumstantial evidence alone would not warrant a conviction, but would, in fact, mandate a reversal on the general grounds” it is not reversible error to fail to give the requested charge. (Emphasis in original.) Robinson v. State, 199 Ga. App. 368, 369 (405 SE2d 101) (1991) (physical precedent only). Here, as in Robinson, the circumstantial evidence was, at most, corroborative of the victim’s testimony, and, standing alone, was insufficient to authorize a conviction. There was no error in failing to give the requested instructions. Robinson, supra; Mayfield v. State, 153 Ga. App. 459, 460-461 (265 SE2d 366) (1980).

2. Secondly, Postell claims the trial court erroneously charged on the burden of proof. The court charged: “However, the State is not required to prove the guilt of the accused beyond a reasonable doubt, or to a mathematical certainty.” This charge is no doubt error, and error of constitutional magnitude, since it affects the requirement of the due process clause that a criminal defendant be proved guilty of the crime charged beyond a reasonable doubt. In re Winship, 397 U. S. 358 (90 SC 1068, 25 LE2d 368) (1970); see OCGA § 16-1-5. However, on three occasions prior to giving this erroneous charge, and on six occasions subsequent thereto, the court instructed the jury that the state must prove the defendant guilty beyond a reasonable doubt. The error was obviously a slip of the tongue. “The general rule is that ‘[a] mere verbal inaccuracy in a charge which results from a palpable “slip of the tongue,” and clearly could not have misled or confused the jury’ is not reversible error.” Gober v. State, 247 Ga. 652, 655 (278 SE2d 386) (1981). See Whitt v. State, 257 Ga. 8, 9 (354 SE2d 116) (1987) (erroneous charge on state’s burden of proof was slip of tongue, and not reversible error since charge as a whole properly informed jury of state’s burden). Viewing the charge as a whole, we find, beyond a reasonable doubt, that the erroneous charge did not mislead or confuse the jury on the burden of proof, or in any way contribute to the verdict. The error was harmless.

3. In his third enumeration, Postell argues that the trial court erred by allowing four state’s witnesses to repeat what they had been told by the victim about the rape. Their testimony was consistent with that given by the victim. He contends this was hearsay, and impermissibly bolstered the testimony of the victim.

“[Wjhere the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible.” Edwards v. State, 255 Ga. 149, 151 (335 SE2d 869) (1985) (explaining the holding in Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985)). The victim was extensively cross-examined by the defense on matters related to her credibility on the issue of consent. Additionally, the victim’s mental stability and credibility was challenged when, on cross-examination by the defense, her pastoral counselor testified that, prior to the rape, she had been hospitalized under psychiatric care. Accordingly, the prior consistent out-of-court statements made by the victim to the four witnesses were admissible as substantive evidence, and were not subject to hearsay or impermissible bolstering objections. Richardson v. State, 256 Ga. 746, 747-748 (353 SE2d 342) (1987); Lumpkin v. State, 255 Ga. 363, 365 (338 SE2d 431) (1986); Treadaway v. State, 191 Ga. App. 111-112 (381 SE2d 43) (1989).

Since all four witnesses testified for the state prior to the victim’s testimony, Postell contends it was error to admit the out-of-court statements prior to any challenge to the victim’s veracity. We agree this testimony should not have been admitted before the victim’s credibility was challenged, but any error was rendered harmless when the victim was later subject to a full cross-examination. Moreover, the evidence was cumulative of the victim’s in-court testimony. Hicks v. State, 196 Ga. App. 311, 312 (396 SE2d 60) (1990).

4. Postell asserts the trial court erred by excluding evidence that the victim claimed to have been previously raped by another man. He makes three arguments with respect to this claim of error: (a) that this was evidence of a prior false allegation of sexual misconduct made by the victim against a man other than the defendant, and was therefore not excluded by the rape shield statute (OCGA § 24-2-3); (b) that this was evidence of the victim’s past sexual conduct admissible as an exception to the rape shield statute (OCGA § 24-2-3 (b) and (c) ); (c) that as evidence of a previous rape, it was unrelated to the victim’s own past sexual conduct, and therefore was not excluded by the rape shield statute.

(a) Evidence that a rape victim made previous false allegations of sexual misconduct against a man other than the defendant is not excluded by the rape shield statute, which only excludes evidence regarding the victim’s past sexual behavior. Smith v. State, 259 Ga. 135 (377 SE2d 158) (1989). Before evidence of prior false allegations can be admitted, the trial court must make a “ ‘threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists.’ This rule helps protect the prosecutrix from unfounded allegations that she has made similar allegations in the past. . . .” (Citations omitted.) Id. at 137-138.

A hearing was held, outside the presence of the jury, in which the defense proffered the testimony of the victim, who stated that she had been previously raped by another man two months prior to the present incident, and had disclosed this to a fellow worker and the defendant. After the present incident, she also reported the previous rape to a rape crisis center employee, a pastoral counselor, and the district attorney. She testified that she had not revealed the name of the man to any of the people to whom she reported the rape, and chose not to prosecute him because he stopped the attack when she started screaming, and later apologized for his actions. During the hearing, the defense asked the victim the name of the man she contended had previously raped her. The district attorney objected on the grounds that the name of the man would not establish the truth or falsity of the allegation. The trial court ruled that the victim did not have to provide the man’s name. Postell claims this was error because it deprived him of the opportunity to discover information which may have helped establish the victim had made a prior false allegation of rape. Postell had the burden of coming forward with evidence at the hearing to establish a reasonable probability that the victim had made a prior false accusation of rape. The only witness presented by the defense was the victim, who testified that she had been previously raped. Given that Postell presented no evidence the allegation was false, the man’s identity had no relevance in establishing a reasonable probability that the allegation was false. Postell claims he should have been allowed to discover the man’s identity so he could be located, brought into court, and questioned about the truth or falsity of the allegations. The purpose of the hearing is to allow the defendant to present evidence of prior false accusations, not to provide an opportunity for discovery and investigation which the defense hopes might lead to such evidence. There was no evidence to support a reasonable probability of falsity, and we find no error in the trial court’s refusal to require that the man be identified, or in refusing to allow evidence of the previous rape.

(b) The defendant further contends that evidence the victim had been previously raped was improperly excluded by the trial court because the victim had told him about the previous rape. He argues, therefore, he could have reasonably believed she would consent to the conduct alleged in the present case. As an exception to the rape shield statute, OCGA § 24-2-3 (b) and (c) allows introduction of the rape victim’s past sexual behavior if the court finds the past sexual behavior directly involved the participation of the defendant, and such evidence supports an inference that the defendant could have reasonably believed the victim consented to the conduct presently at issue. The court must conduct an in-camera hearing to determine if the defendant’s proof is admissible under these standards, or if such evidence is so highly material that it substantially supports a conclusion that the defendant reasonably believed the victim consented to the conduct complained of, and that justice mandates the admission of such evidence. Id.

The only such evidence proffered by the defendant at the hearing was that, prior to the incident at issue, the victim told the defendant she had been previously raped, and that she may have contracted an infection as a result. There was no evidence that the defendant was made aware of the details of the previous rape. We find no abuse of discretion in the court’s conclusion that the evidence was insufficient to qualify for the exception to the rape shield statute set out in OCGA § 24-2-3 (b) and (c).

(c) The defendant’s claim that the trial court improperly prevented him from introducing evidence of the prior rape under the holding in Raines v. State, 191 Ga. App. 743 (382 SE2d 738) (1989) is without merit. In Raines we held the rape shield statute did not exclude the victim’s testimony that she had been previously raped, which was introduced to explain her state of mind and conduct in failing to physically resist the defendant. The rape shield statute “precludes the introduction of evidence of the victim’s past sexual behavior, [but] [o]bviously, a prior rape committed against the victim has nothing whatsoever to do with her past sexual behavior.” (Emphasis in original.) Id. at 745. The record shows Postell sought introduction of the prior rape, not for the purpose we approved in Raines, but to support his argument that it was not rape, but consensual sexual behavior, therefore it would be reasonable to infer that the victim consented to the present conduct. This is precisely the kind of evidence the rape shield statute was designed to exclude, and the trial court properly excluded it. If Postell sought introduction of this evidence simply to show the victim had been previously raped, we fail to see how this could have benefited his defense, so even as proper evidence, unrelated to the victim’s prior sexual conduct, its exclusion was harmless.

5. In his fifth enumeration of error, Postell claims it was error to allow the state to introduce evidence of the victim’s religious beliefs pertaining to sexual intercourse outside of marriage. The state introduced testimony from a member of the victim’s church, who stated the church teaches that sexual intercourse outside of marriage is wrong, and that this teaching, along with an emphasis on remaining chaste, is taught at almost all of the church meetings. He testified that the victim regularly attended the meetings. The victim testified that although she had been separated from her husband for over two years, they were still married. She stated she attended church meetings three times a week, and was taught that sexual intercourse outside of marriage was a wrong for which one could be expelled from the church. She told the defendant that, because of her religious beliefs, she could not have sexual intercourse with him unless they were married.

“The Rape Shield Statute limits inquiries or suggestive innuendoes concerning the sexual background of the rape victim absent compliance with its terms.” Gibbs v. State, 196 Ga. App. 140, 141 (395 SE2d 387) (1990). “[E]vidence of past sexual behavior includes, but is not limited to, evidence of the complaining witness’s marital history, mode of dress, general reputation for promiscuity, nonchastity or sexual mores contrary to the community standards.” OCGA § 24-2-3 (a); Parks v. State, 147 Ga. App. 617 (249 SE2d 672) (1978). The rape shield statute prohibits introduction of such evidence either as direct evidence or on cross-examination. Thus, by timely objection, the defendant may also prevent the state from introducing evidence of the victim’s reputation for chastity. Johnson v. State, 146 Ga. App. 277, 280-281 (246 SE2d 363) (1978).

The state argued that testimony regarding the victim’s religious beliefs was admissible to show her state of mind on the issue of consent. In Villafranco v. State, 252 Ga. 188, 193-194 (313 SE2d 469) (1984), the court concluded that the victim’s statement, made shortly before the rape, that she wanted “to go to the party to get some nookey” was not inadmissible as evidence of past sexual conduct under the rape shield statute, but was admissible as evidence of the victim’s existing motive and state of mind. In the present case, evidence that the victim told Postell she could not have sexual intercourse with him because her church taught it was wrong was admissible to show her state of mind on the issue of consent. By contrast, additional testimony from a member of the church and the victim explaining the church’s teachings on chaste behavior, the victim’s regular attendance at church, and the possibility of being excluded from the church for unchaste behavior, had no purpose other than to infer that the victim had conducted herself in a chaste manner in accordance with those beliefs. Compare Lockhart v. State, 172 Ga. App. 170, 171-172 (322 SE2d 503) (1984) (evidence excluded by rape shield statute where only possible relevance was to create innuendo of prior sexual behavior). This is evidence relating to the victim’s chaste behavior excluded by the rape shield statute. Johnson, supra at 281.

Nevertheless, having allowed the prosecution to introduce this testimony, we find no evidence that the defendant was thereafter improperly prevented from confronting or impeaching the victim on this issue. Jones v. State, 190 Ga. App. 416, 417 (379 SE2d 189) (1989) (evidence of victim’s prior sexual activity admissible for impeachment where victim testifies at trial that she was a virgin prior to encounter with defendant). In fact, on cross-examination by the defense, the victim testified that on an occasion prior to the rape, she willingly performed oral sex at the defendant’s request, and admitted that this was contrary to the teachings of her church. Moreover, the defendant’s objection to this evidence on the ground that it was irrelevant and prejudicial, lacked the specificity necessary to establish error. Thomason v. Harper, 162 Ga. App. 441, 450 (289 SE2d 773) (1982). In the absence of a proper objection, the defendant waived the right to assign error to its admissibility. Johnson, supra at 281. Accordingly, we find no merit in this enumeration.

6. Postell claims the trial court erred by failing to grant his motion for a mistrial on the grounds that the prosecution improperly commented on his failure to testify, and injected the prosecutor’s own personal belief as to the guilt of the defendant.

During the prosecutor’s closing argument, the following transpired in the presence of the jury: The prosecutor stated, “And so . . . you have heard all of the state’s witnesses that have testified, and you haven’t heard anybody rebut that. The defense did not offer any witnesses. . . .” Defense counsel objected to this statement as a comment on the defendant’s failure to testify, then added that, “[The prosecutor] knows that the defendant has no burden of proof and that he comes into this courtroom with the presumption of innocence.” The prosecutor immediately responded to the objection by stating, “That only lasts up until I prove beyond a reasonable doubt that he is guilty, and I have done that.” The trial court intervened stating, “Well, that is up to the jury to decide.” Defense counsel continued, “Yes sir. We ask that be stricken from the record, and it be totally disregarded.” The trial judge then indicated he would charge the jury later about the defendant not having to testify. The prosecutor continued his argument: “[A]s I was saying, the defendant has not put anyone on the stand to rebut any of the testimony that has been offered.” Defense counsel made the same objection, and moved for a mistrial. In explanation, the prosecutor stated that he was attempting to comment on the fact that the state’s evidence was unrebutted. The trial court denied the motion for mistrial.

Defense counsel’s first objection was directed to the initial comment by the prosecutor that “[t]he defense did not offer any witnesses,” and requested that the court instruct the jury to disregard the comment. The trial court took no action on the objection or the request. The second objection was made in response to the prosecutor’s comment that, “the defendant has not put anyone on the stand to rebut any of the testimony that has been offered.” The trial court denied the motion for mistrial made in connection with this objection. Accordingly, the error alleged as to both of these comments was properly preserved for review. See Hall v. State, 180 Ga. App. 881, 882-883 (350 SE2d 801) (1986).

Although it is improper for a prosecutor to comment on a defendant’s failure to testify, it is not error for the prosecutor to argue that the defense has failed to present any evidence to rebut the state’s proof. Martin v. State, 193 Ga. App. 581, 585 (388 SE2d 420) (1989). To find that a prosecutor’s comment was directed at the defendant’s failure to testify, and constituted reversible error, the reviewing court must determine that “the prosecutor’s manifest intention was to comment upon the accused’s failure to testify, or that the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982) (internal quotations and citations omitted). The prosecutor’s use of the terms the “defense” or the “defendant” in reference to a failure to present evidence is not the controlling factor in making this determination. Martin, supra at 586. Rather, the prosecutor’s comments must be viewed in the context in which they were made. Hall v. State, 176 Ga. App. 428, 432 (336 SE2d 291) (1985). Based on the portions of the closing argument included in the record, including the prosecutor’s explanation of his comments, we conclude there was no manifest intention to comment on Postell’s failure to testify. It is apparent that the prosecutor intended to direct the jury’s attention to the lack of evidence rebutting the state’s case. Nor do we find that a jury would naturally and necessarily construe these statements as a comment on the defendant’s failure to testify. See Lowe v. State, 253 Ga. 308, 309-310 (319 SE2d 834) (1984); Martin, supra; Kerr v. State, 193 Ga. App. 165, 166 (387 SE2d 355) (1989); Hall, supra.

Decided May 29, 1991

Rehearing denied June 27, 1991

Perry, Walters & Lippitt, Nancy G. Grigg, Jesse W. Walters, for appellant.

Postell also argues that the prosecutor’s statement, “That only lasts up until I prove beyond a reasonable doubt that he is guilty, and I have done that,” was a statement of his personal belief in the guilt of the defendant. This comment was made by the prosecutor during colloquy with the court in response to a pending objection by the defense. Though stated in personal terms, when taken in the context in which it was made, it appears to be a statement of the prosecutor’s argument that the state’s evidence was sufficient to carry the burden of proof, rather than a comment on his personal belief in the defendant’s guilt. A prosecutor may not urge his personal belief as to the defendant’s guilt, but he may properly argue such guilt as a conclusion from the proven facts. Manning v. State, 123 Ga. App. 844, 846 (182 SE2d 690) (1971). In any event, we find no specific objection was made to this statement at trial, therefore it can provide no basis for reversal on appeal. Morton v. State, 168 Ga. App. 18, 19 (308 SE2d 41) (1983).

Judgment affirmed.

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

Britt R. Priddy, District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A0813.
    WIMBY v. THE STATE.
    (407 SE2d 773)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of rape (Count 1), in that, on November 15, 1988, he had “carnal knowledge of the person of [the victim], a female, forcibly and against her will” and aggravated assault (Count 2), in that, on the same day, he assaulted “the person of [the same victim as in Count 1] by striking and beating [her] with an object or instrument which is unknown to the Grand Jurors, said object being an instrument which, when used offensively against a person is likely to result in and did result in serious bodily injury. . . .” Following a jury trial, defendant was convicted on each count of the indictment. He was sentenced to life in prison (on Count 1) and a consecutive term of 20 years (on Count 2). This appeal followed the denial of defendant’s motion for a new trial. Held:

1. In his first enumeration of error, defendant contends the trial court erred in charging the jury that “A person commits aggravated assault when he assaults another person 1, with the intent to murder, rape or rob; or 2, with a deadly weapon or with any object, device or instrument which when used offensively against the person is likely or actually does result in serious bodily injury.” In this regard, defendant takes the position that the trial court authorized the jury to convict defendant if they found he assaulted the victim with the intent to rape even though the indictment charged defendant with aggravated assault with a deadly weapon.

We find no harmful error. As in Ross v. State, 192 Ga. App. 65, 66 (2) (383 SE2d 627), the trial court in the case sub judice read the indictment to the jury and gave instructions concerning each of the crimes charged; it further instructed that the jury must find defendant guilty of the crimes charged beyond a reasonable doubt. We cannot see how the jury may have been misled into convicting defendant of a crime not alleged in the indictment. Our conclusion in this regard is buttressed by the fact that the indictment was given to the jury during its deliberations.

2. Defendant’s contention that the aggravated assault conviction merged with the rape conviction is without merit. The evidence used to support the aggravated assault conviction was not used to prove the force element of the rape. On the contrary, the evidence used to support the aggravated assault conviction was entirely different from the evidence used to support the rape conviction.

An eyewitness testified that defendant had intercourse with the victim several times; that the victim was unconscious during the entire time; and that between acts of intercourse, defendant beat the victim on the face with an unknown object. Thus, evidence of aggravated assault was not used to show that the victim’s will was overcome by defendant. The crimes were separate; they did not merge.

Decided June 17, 1991

Rehearing denied June 27, 1991.

Mark V. Cloud, Kenneth D. Kondritzer, for appellant.

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

3. The trial court did not err in charging the jury on reasonable doubt. Cage v. Louisiana, 498 U. S. _ (111 SC 328, 112 LE2d 339), cited by defendant is not apposite.

Judgment affirmed.

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