author: Eldridge, Judge.

text:
    A01A1227.
    TAYLOR v. THE STATE.
    (548 SE2d 662)
   Eldridge, Judge.

Following a Cobb County bench trial, the superior court convicted defendant Royce Glen Taylor of possession of a firearm by a convicted felon. The defendant and his wife, co-defendant Elizabeth Rakestraw Taylor, were acquitted of theft by receiving stolen property (firearm). The defendant was sentenced to five years confinement to be served on probation. He now appeals, in two enumerations of error contending that the superior court: (1) erred in denying his motion to suppress at a pretrial suppression hearing, later renewed as an objection to the admissibility of evidence at trial, relying upon the “plain view” exception to the warrant requirement, in that the weapons in issue were seized without probable cause to arrest or search; and (2) erred in admitting a certified copy of an Alabama court document denominated, “Case Action Summary,” as proof of his status as a convicted felon. Finding no error in the admission of the complained-of evidence, we affirm.

1. Upon reviewing a trial court’s decision on a motion to suppress “the evidence is construed most favorably to uphold the court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). If there is any evidence to support the trial court’s findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous. Id.” Downey v. State, 241 Ga. App. 821, 823 (527 SE2d 909) (2000). However, where, as here, “the evidence is [undisputed] and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

The undisputed evidence shows that on November 17, 1996, Lieutenant David Roskind of the Acworth Police Department was on routine foot patrol of the Highway 41 Flea Market located in Cobb County wearing his full uniform. Lieutenant Roskind first saw the defendant and his wife standing behind display tables in the booth they had rented. Two men were standing immediately opposite the defendant at his table. One of the men was handling a handgun who, on seeing Lieutenant Roskind, returned the weapon to the defendant. The defendant, in turn, immediately placed the weapon on a smaller table to his rear. Lieutenant Roskind saw several other handguns lying on that table. When Lieutenant Roskind got to the defendant’s display table, the defendant covered the weapons with a towel. Noting that no license to sell firearms was publicly displayed, Lieutenant Roskind questioned the defendant and his wife. The defendant denied owning the weapons, asserting that his wife did. Defendant’s wife interjected her agreement, further admitting that the weapons were for sale and that she had no business license to sell them. Suspecting the defendant and his wife of misdemeanor failure to obtain a Department of Public Safety license to sell firearms, see OCGA §§ 43-16-2; 43-16-7; 43-16-12, Lieutenant Roskind seized a total of seventeen handguns and a combination of nine rifles and shotguns. Defendant and his wife were arrested at the flea market on July 26, 1997, for the offense of theft by receiving stolen property (firearm), the charge of which the superior court later acquitted them.

It is well settled that objects within the plain view of an officer legally in position to have such a view may be seized and introduced in evidence. Peek v. State, 239 Ga. 422, 426 (2) (238 SE2d 12) (1977); Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994).

In order to satisfy the plain view exception, the State must fulfill the following criteria: (1) that there must be a valid intrusion onto a person’s property before the evidence is observed and seized; (2) discovery of the evidence must be the result of its being in plain view and not the result of an investigatory search; and (3) it must be immediately apparent that the item seized is evidence or contraband. (Citations and punctuation omitted.) Id. at 83.

Sirmans v. State, 244 Ga. App. 252, 254 (2) (b) (534 SE2d 862) (2000).

Defendant’s arguments to the contrary notwithstanding, we conclude that the plain view exception here applied as the superior court found in refusing to suppress the evidence and admitting it at trial over objection. There is no dispute that Lieutenant Roskind was validly on the premises. Neither is it disputed that weapons were discovered in plain view rather than following an investigatory search. That Lieutenant Roskind observed the defendant showing a handgun to a member of the general public while in business at a flea market; that he did so also seeing other handguns on a table behind the defendant; that in the totality of the circumstances the weapons were offered for sale as a business rather than on a casual sale basis, see 1963-1965 Op. Atty. Gen. 74 (casual sale of firearms between individuals not regularly selling firearms as means of livelihood exempt from OCGA § 43-16-2 Department of Public Safety licensure requirement to sell weapons); and that he saw no business license displayed on the premises made it immediately apparent that probable cause showing the commission of a misdemeanor existed, i.e., selling weapons without a license. Inasmuch as the weapons in issue thus constituted evidence of that crime, they were subject to seizure and admissible in evidence under the plain view exception to the warrant requirement. Peek v. State, supra; Galbreath v. State, supra. The seizure of evidence in plain view is “no search at all, but the collection of evidence. [State v. Nichols, 160 Ga. App. 386 (287 SE2d 53) (1981).]” Sirmans v. State, supra. It follows that defendant’s claim that the instant seizures were unlawful as not supported by probable cause to search is without merit.

Defendant’s claim that the weapons seized were inadmissible for lack of probable cause to arrest is likewise without merit. Probable cause of the commission of a crime having been evident in the circumstances of this case, it was immediately apparent that the weapons in issue were subject to seizure as evidence of a crime, here establishing the applicability of the plain view exception. Consequently, the seizure of the weapons and their admission in evidence were proper as authorized upon the operation of the plain view exception alone. Peek v. State, supra; Galbreath v. State, supra. Accordingly, the superior court did not err in denying defendant’s motion to suppress and properly admitted the weapons in issue at trial upon the finding that the plain view doctrine was applicable. Vansant v. State, supra; Downey v. State, supra.

2. Neither did the superior court err in admitting the certified copy of the Alabama court’s case action summary as proof of defendant’s status as a convicted felon. While the defendant concedes the admissibility of such foreign document as duly certified under OCGA § 24-7-24 (b), he nonetheless argues that it was insufficient to prove a record of conviction in Georgia as it was not plainly titled a record of conviction. Declining to substitute form over substance, we disagree.

Decided May 8, 2001.

Donald R. Donovan, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

On its face, the case action summary document shows that the Alabama court adjudged defendant guilty of robbery after accepting his plea of guilty as providently entered and sentencing him to ten years confinement. Though not styled as a record of conviction, the substance of the case action summary reflects the entry of a final judgment of conviction upon the defendant’s guilty plea. “ ‘Conviction’ includes a final judgment of conviction entered upon a verdict or finding of guilty of a crime or upon a plea of guilty.” OCGA § 16-1-3 (4); see also Christenson a State, 261 Ga. 80, 91 (9) (402 SE2d 41) (1991); Gilbert v. State, 245 Ga. App. 544, 545 (538 SE2d 104) (2000). Under these circumstances, there was no error in admitting the Alabama court’s case action summary as proof of a prior felony conviction. Even if we deemed the foregoing error (and we have not), such error would be harmless, the record reflecting that the complained-of document was cumulative to certified indictment and sentencing documents otherwise admitted without objection. Tice v. Cole, 246 Ga. App. 135, 138 (1) (537 SE2d 713) (2000); Flowers v. State, 181 Ga. App. 572 (2) (353 SE2d 69) (1987).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       OCGA § 43-16-2 provides:
      [a]ny person, firm, retail dealer, wholesale dealer, pawnbroker, or corporation who shall sell, dispose of, or offer for sale ... any pistol, revolver, or short-barreled firearm of less than 15 inches in length, whether the same shall be his own property or whether he shall sell the same as an agent or employee of another, shall obtain from the. department a license permitting the sale of such pistols, revolvers and firearms. Nothing in this chapter shall. . . prohibit the casual sales of the articles referred to in this Code section between individuals or bona fide gun collectors.

       “Every recipient of a license to sell any firearms listed in Code Section 43-16-2 shall keep such license conspicuously displayed on his business premises.” OCGA § 43-16-7.

       “Any person, firm, or corporation who violates this chapter shall be guilty of a misdemeanor.” OCGA § 43-16-12.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A01A0054.
    HARDIN et al. v. PHILLIPS.
    (547 SE2d 565)
   Mikell, Judge.

This case is before us on interlocutory review of the trial court’s denial of appellants’ motion to dismiss or, in the alternative, for summary judgment. David J. Phillips contends that appellants Dewitt Moore, Andrea Hardin, and Jerry Williamson tortiously interfered with his contractual rights with Gordon College by denying him tenure. Because we find that the appellants are protected from liability by the immunity afforded by the Georgia Tort Claims Act (GTCA), we reverse.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.”

So viewed, the record shows that Phillips was a mathematics professor at Gordon College, which is a two-year unit of the University System of Georgia. Phillips’ immediate supervisor was appellant Moore, who is the chair of the natural sciences and nursing division. As a part of his responsibilities, Moore evaluates faculty for promotion, tenure, and salary increases and reports his recommendations to Hardin, the vice-president of academic affairs and the dean of the faculty. Hardin’s duties include developing college credit programs and courses of instruction and making tenure recommendations to the president of the college, Williamson. As president, Williamson is responsible for making annual recommendations to the Board of Regents of the University System of Georgia (the “Board”) pertaining to the election or reelection of the faculty and faculty salaries and promotions. With respect to decisions regarding tenure, both Williamson’s and Hardin’s responsibilities include complying with the Gordon College faculty handbook and the Board’s policy manual.

Hardin informed Phillips by letter dated February 11, 1999, that she would not recommend Phillips for tenure for the 1999-2000 school year. In her letter, Hardin explained that she arrived at her decision after considering the recommendations of the Committee on Promotion & Tenure and Phillips’ division head (Moore) and the needs of the college. Hardin did, however, recommend that Phillips receive a merit salary increase for the 1999-2000 school year.

Phillips appealed the denial of his application for tenure to the Board. The Board denied Phillips’ appeal on May 12, 1999. On November 22, 1999, Phillips filed a 12-count complaint against the appellants, alleging that while acting in their individual capacities and outside the scope of their employment, appellants conspired to torticrasly interfere with his contract and tortiously interfered with his contractual rights.

In his complaint, Phillips alleged that appellants committed the following acts: (1) altered, misrepresented, and falsified his 1998 evaluation scores and deprived him of a merit rate increase (Counts 2 and 3); (2) denied him tenure for the 1999-2000 school year (Counts 1, 4, and 5); (3) eliminated a project which deprived him of tenure (Count 6); (4) thwarted his efforts to seek review of the denial of tenure for the 1999-2000 school year (Counts 7 and 8); (5) changed the policies governing tenure, thus depriving him of tenure (Count 9); (6) made undisclosed changes to the school calendar (Counts 10 and 11); and (7) caused Gordon College to breach his 1999-2000 employment contract (Count 12). Appellants filed a motion to dismiss or, in the alternative, for summary judgment, on the grounds that Phillips’ complaint was barred under the doctrines of official and sovereign immunity provided them by the GTCA. The trial court denied appellants’ motion. It is from this order denying their motion that appellants appeal.

1. In 1992, the General Assembly enacted the GTCA, which is codified at OCGA § 50-21-20 et seq. The GTCA is the exclusive remedy for any tort committed by a state officer or employee. OCGA § 50-21-25 (a) provides: “A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor.” Appellants argue that they are entitled to the immunity afforded state employees by the GTCA because all actions taken with respect to Phillips’ denial of tenure were conducted within the scope of appellants’ authority. Further, appellants argue, this immunity is not abrogated by Phillips’ allegations that their actions were ill-intentioned or motivated by malice.

In order to decide whether the appellants are entitled to the immunity they claim, which is a question of law, we must determine three issues: (1) whether the GTCA applies to this action; (2) whether appellants are state employees; and if so, (3) whether their actions were committed within the scope of their employment. The GTCA applies to this case because Phillips’ cause of action arose in 1999, which is after the statute’s effective date. Furthermore, appellants are employed by Gordon College, which is a unit of the Board of Regents of the University System of Georgia, a state agency; thus, they are “state employees” as that term is defined in OCGA § 50-21-22 (7). As to the third issue, Phillips argues that because appellants’ actions were conducted with the intent to injure him, they necessarily fell outside of the scope of their employment; thus, appellants are subject to liability for those actions. We disagree.

Phillips urges the application of the standard set forth in the 1991 amendment to the Georgia Constitution of 1983 to this case. This standard, however, which makes state officials and employees liable for official functions performed with actual malice or intent to cause harm, does not apply to cases involving state employees that are protected by the GTCA. In fact, on its face, the amendment specifically excepts those cases governed by the GTCA. As stated earlier, the GTCA applies to this case.

“[B]oth the provisions of the [GTCA] and the case law interpreting it demonstrate that the Act provides immunity from liability for torts committed during a state employee’s performance of official duties without regard to intent or malice.” In Mattox v. Bailey, the plaintiff, an inmate, claimed that the defendant correctional officer, who slammed the plaintiff’s head into a door and beat him while escorting him across prison grounds, violated the GTCA. Because the alleged battery arose from the performance of Bailey’s official duties as a correctional officer, we held that the plaintiff’s claim was barred by the GTCA. In Wang v. Moore, which alleged interference with business/contractual relations, as is alleged here, we held that the conduct of firing the plaintiff, despite allegations that the defendants were motivated by malice, was within the scope of the defendants’ duties. Thus, the defendants were entitled to immunity under the GTCA. The same result is warranted here.

In this case, Moore was responsible for evaluating faculty members and making recommendations to Hardin. Hardin’s responsibilities included reviewing the faculty members’ performance and making tenure recommendations to Williamson. Williamson, as president of the college, was responsible for making recommendations on tenure and promotions to the Board annually and following the dictates of the Board. The actions taken by each appellant with respect to Phillips’ application for tenure sit squarely within the confines of their official duties as administrators at Gordon College. Thus, despite allegations that their actions were motivated by malice and ill-intent, appellants are entitled to immunity under the GTCA. Furthermore, the fact that Phillips’ lawsuit is styled against the appellants individually is inapposite. “Merely styling a suit against a public officer as one brought against him personally does not deprive him of any immunity to which he might otherwise be entitled for his official acts under the [GTCA].”

Decided February 21, 2001

Reconsideration denied May 9, 2001.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, Gray, Hedrick & Edenfield, Bruce M. Edenfield, Evan R. Mermelstein, for appellants.

2. Appellants’ contention in their second enumeration of error that Phillips’ complaint is also barred by an exception to the state’s waiver of sovereign immunity is correct. The GTCA specifically provides that the state shall have no liability for losses resulting from interference with contractual relations. Thus, the GTCA not only bars Phillips’ complaint against the individual state employees, as discussed in Division 1, but it also would have precluded a claim against the state.

Phillips’ argument that the exception does not include “interference with business relations” is meritless. We have held that the elements of interference with business relations and interference with contractual relations are the same.

Because we find that the appellants are entitled to immunity under the GTCA and that the GTCA bars Phillips’ complaint, we reverse the trial court’s denial of appellants’ motion for summary judgment.

Judgment reversed.

Blackburn, C. J., and Pope, P. J., concur.

Shuman & Associates, Robert W. Shuman, Thomas R. Morgan, Jr., for appellee.

       Since the trial court considered matters outside the pleadings, the motion to dismiss was converted to one for summary judgment. Firstline Corp. v. Valdosta-Lowndes County Indus. Auth., 236 Ga. App. 432, 434 (2) (511 SE2d 538) (1999).

       (Citation omitted.) J H. Harvey Co. v. Reddick, 240 Ga. App. 466, 467 (1) (522 SE2d 749) (1999).

       Williamson is also responsible for following the dictates of the Board regarding the school calendar, which Phillips alleged was changed to injure him.

       Phillips did not pursue the next avenue of appeal, i.e., a petition for a writ of certiorari to superior court.

       OCGA § 50-21-25 (a); see also Ga. Const, of 1983, Art. I, Sec. II, Par. IX (a).

       See City of Valdosta v. Bellow, 178 Ga. App. 423, 425 (343 SE2d 111) (1986).

       “It is the specific intent of the General Assembly that this article shall operate retroactively so as to apply to tort claims or causes of action which accrued on or after January 1, 1991.” OCGA § 50-21-27 (a).

        Wang v. Moore, 247 Ga. App. 666, 669, n. 5 (544 SE2d 486) (2001). We note that two of the appellants in this case, Hardin and Moore, were the appellees in Wang v. Moore.

       Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions.
      Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

       Id.

        Rayburn v. Farnesi, 70 FSupp.2d 1334, 1342 (III) (A) (N.D. Ga. 1999) (foster parents entitled to immunity under the GTCA where they are alleged to have physically abused children placed in their care).

       221 Ga. App. 546 (472 SE2d 130) (1996).

       Id. at 546 (1). We did note, however, that a liberal reading of the plaintiff’s complaint revealed a potentially valid 42 USC § 1983 action against the defendant. Id. at 547 (2).

       Supra at 669 (1).

       (Citations and punctuation omitted.) Coultas v. Dunbar, 220 Ga. App. 54, 58 (467 SE2d 373) (1996).

       OCGA § 50-21-24 (7).

        Witty v. McNeal Agency, 239 Ga. App. 554, 561 (4) (521 SE2d 619) (1999).


text:
    A01A0061.
    GREEN v. THE STATE.
    (547 SE2d 569)
   Mikell, Judge.

James Green was convicted of two counts of rape, two counts of aggravated sodomy, two counts of aggravated assault, two counts of burglary, one count of criminal attempt to commit armed robbery, and one count of possession of a firearm during the commission of a crime. He filed a motion for new trial, which the court denied. This appeal followed. We affirm Green’s conviction on all counts except one count of aggravated sodomy.

The charges for which Green was convicted involved two victims. Viewed in the light most favorable to the verdict, the evidence shows that between 1:00 a.m. and 2:00 a.m. on January 16, 1998, the first victim was awakened by a man, who was later identified as Green, holding a knife to her throat. According to the victim, the man told her, “[b]itch, if you move, I’ll kill you.” The victim later recognized the knife as one from her kitchen. The man ripped off the victim’s housecoat and forced her to perform oral sex on him. According to the victim, the man told her, “if you bite me, I’ll stick this knife straight through your brain.” The victim was subsequently forced to lick the man’s anus. Next, the man pushed the victim down on the bed and raped her. During the course of the rape, the man ejaculated. Afterward, the man grabbed the victim by the throat and forced her to take a shower. The victim testified that before leaving, the man told her to remember to lock her windows.

The victim called 911 immediately after her attacker left. The law enforcement officers who arrived on the scene observed evidence that the attacker had gained entry into the victim’s trailer home through a window. There was mud on the couch positioned below the window, and a lawn chair was found below the same window outside the home. The officers took the victim to the hospital where a rape kit was performed to preserve physical evidence.

The first victim was unable to get a sufficient look at her attacker to make an identification based on his appearance. During the subsequent investigation, she was shown a lineup that did not include Green. The victim identified a suspect by his voice, but she told the officers that she was not certain. It was later determined that the blood sample from that suspect did not match samples taken from the seminal fluid found on the victim. However, subsequent testing following his arrest for an attack on the second victim involved in this case revealed that the seminal fluid matched Green’s DNA.

The second victim was attacked on March 28, 1998. She recognized Green as her attacker, because they lived in the same trailer park, and she had seen him on the basketball court earlier that day. The second victim testified that Green lived three or four trailers down the street from hers, and that she had once allowed Green to play videogames in her home.

The second victim’s sister and her three children were staying with the victim on the night of the attack, and the sister testified that Green knocked on the door earlier that night to ask if the victim was home. The sister told him that he would have to come back later, because they were asleep.

The second victim slept on her couch on the night of the attack. She was awakened by Green coming through her front door waving a gun. The victim jumped up and tried to grab Green’s hands, but he forced her to lie facedown on the couch. The victim testified that Green cocked the gun, held it to her head, and told her, “I will not hesitate to kill you. . . . This is not the first trailer I done broke in [sic].” Green asked the victim if there was any money in the home. The victim could not locate her purse, so Green forced her to remove her clothing and bend over the couch while he held the gun to her back. Green removed his pants, placed his mouth on her vagina, and then “placed his penis inside her.”

After the rape, Green instructed the victim to search for her purse. She was unable to locate it, and Green told her to kneel on the floor. The victim testified that she thought Green would kill her, because he kept repeating that she had seen him. Fearing for her life, the victim grabbed for Green’s gun, and they began to “tussle.” During the struggle, the victim bit Green and screamed for help. The noise woke the victim’s sister, and she turned on the lights and grabbed the telephone, threatening to call the authorities. Green regained control of the gun, fired a shot into the ceiling, and ran out of the trailer. The victim’s sister called the police.

Officer John Bailey of the Columbus Police Department responded to the 911 call. He described the victim as “extremely upset.” After she calmed down, the victim told Officer Bailey that a man she knew as “Mike,” who lived in the trailer park, “had broken into her trailer and raped her at gunpoint.” She also provided a physical description of her attacker and told them that he drove a small blue car.

Officer Bailey and another officer walked around the trailer park and spoke with one of the residents, Willie Lee Higdon. Higdon told the officers that he did not know anyone named Mike in the area, but that Green, who fit the attacker’s description, rented a room in Higdon’s trailer, which was located next door to the first victim’s home. The officers also learned from Higdon that Green drove a blue car with a Tennessee license plate and that his girlfriend lived in Holly Hills apartments. The officers proceeded to the apartment complex, where they observed a car fitting Higdon’s description. After speaking with the property manager, the officers located Green’s girlfriend’s residence.

Officer Bailey and two other officers went to the apartment and found Green inside. Officer Bailey testified that they observed cuts and bruises on Green’s hands. Green consented to a search of his vehicle. The officers recovered a gun case containing several rounds of bullets and a holster.

Next, Green and his girlfriend, Charlotte Mitchell, signed forms consenting to the search of the apartment. The officers located a .38 caliber Rossi revolver on the couch. The weapon contained four live rounds and one spent cartridge. Detective Barry Davis testified that the bullet hole in the second victim’s ceiling appeared consistent with the use of a .38 caliber revolver. Green was taken into custody and subsequently indicted for the crimes of rape, aggravated sodomy, aggravated assault, sodomy, burglary, attempted armed robbery, and possession of a firearm during the commission of a crime.

At trial, a forensic scientist from the Georgia Bureau of Investigation testified that the semen sample collected from the first victim matched Green’s DNA. Although a rape kit was performed on the second victim, no seminal fluid was found; therefore, DNA testing was not available for that victim. However, both the second victim and her sister identified Green as the attacker.

The jury convicted Green of all charges except one count of sodomy, on which the state entered a nolle prosequi. The court sentenced. Green to two consecutive life sentences plus sixty years in prison.

1. In his first enumerated error, Green argues that there was insufficient evidence to support his convictions of the following charges: Count 2, aggravated sodomy; Count 3, aggravated sodomy; Count 6, rape; Count 8, attempted armed robbery; and Count 9, possession of a firearm during the commission of a crime. For reasons more fully explained below, we find sufficient evidence to support the convictions on all counts except one count of aggravated sodomy.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

(a) Count 2, aggravated sodomy. This count of the indictment relates to the attack on the first victim and alleges that Green forced her to lick his anus. Green argues that the evidence was insufficient, and that the actions described do not constitute aggravated sodomy. OCGA § 16-6-2. He argues that an act involving the anus of one person and the mouth of another is not aggravated sodomy. The state concedes that this count as drawn in the indictment does not constitute the crime of aggravated sodomy and cannot stand. We agree.

Sodomy requires contact between “the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a). In Moore v. State, 212 Ga. App. 497 (442 SE2d 311) (1994), we held that a sexual act involving the anus of a defendant and the mouth of a victim did not meet the statutory definition of sodomy. Therefore, Green’s conviction of the offense of aggravated sodomy under Count 2 of the indictment must be reversed and the sentence vacated.

(b) Count 3, aggravated sodomy. This count alleges that Green committed aggravated sodomy by forcibly placing his penis in the first victim’s anus. Green argues that there was insufficient evidence to support his conviction on this charge. We disagree.

As we noted above, OCGA § 16-6-2 (a) provides that a person is guilty of sodomy when he “performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” Sodomy committed with force and against the will of the other person constitutes the offense of aggravated sodomy under the statute.

The first victim testified that, while threatening her with a knife, Green forced her to perform oral sex on him and to lick his anus. She further testified: “He pushed me down on the bed and raped me.”

We conclude that the evidence was sufficient for the jury “to infer a ‘contact’ between [Green’s] sexual organ and the [first] victim’s . . . anal area[ ].” Griffis v. State, 222 Ga. App. 322, 323 (1) (474 SE2d 119) (1996). “Proof of penetration is not required for a conviction of sodomy. All that is required is some contact.” (Citations omitted.) Id. See also Morgan v. State, 226 Ga. App. 327, 329 (2) (486 SE2d 632) (1997); Smith v. State, 210 Ga. App. 634, 636 (2) (437 SE2d 333) (1993); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986). Whether there was contact between Green’s penis and the first victim’s anus was a question of fact for the jury. See Wimpey, supra. Because there is evidence to support the jury’s verdict as to this count, we will not disturb it.

(c) Count 6, rape. Next, Green contends that the evidence was insufficient to support his conviction for the rape of the second vietim. Specifically, Green argues that the second victim did not testify as to “which opening” Green penetrated with his. penis. This argument is wholly without merit.

OCGA § 16-6-1 (a) (1) provides that “[a] person commits the offense of rape when he has carnal knowledge of. . . [a] female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.”

At trial, the following testimony was elicited during the state’s direct examination of the second victim:

A: He — after I took my clothes off, he took down his clothes and he — he had the gun like this and he bent down and he licked my vagina and then he came back up and he put his penis inside of me.
Q: Okay. When you say he licked your vagina, he placed his mouth on your sexual organs?
A: Yes, he did.
Q: And after that, he placed his penis inside of you?
A: Uh-huh (positive response).
Q: Okay. Did you give him consent to do either of those things?
A: No, I did not.

In addition, the victim told the police shortly after the attack that Green had “raped” her. Clearly, there was sufficient evidence for the jury to conclude that Green’s sex organ penetrated the second victim’s sex organ. Richie v. State, 183 Ga. App. 248, 249-250 (1) (358 SE2d 648) (1987). See also Skillern u. State, 240 Ga. App. 34, 35 (1) (521 SE2d 844) (1999).

Green’s reliance on Newton v. State, 259 Ga. 853 (388 SE2d 698) (1990), is misplaced. In that case, the Supreme Court reversed a defendant’s rape conviction because the state failed to prove penetration of the victim’s sex organ by the defendant’s sex organ. However, the facts of Newton differ significantly from the case sub judice. In Newton, the victim was murdered; therefore, her testimony was not available. Furthermore, there was medical evidence that her vagina had been penetrated with a wedge-shaped object. In the present case, the victim testified that Green “put his penis inside [her]” after licking her vagina. We find this evidence to be more than adequate to support the jury’s finding that Green is guilty, beyond a reasonable doubt, of penetrating the second victim’s sex organ with his sex organ in violation of OCGA § 16-6-1. See Richie, supra.

(d) Count 8, criminal attempt to commit armed robbery. Count 8 of the indictment, which charges Green with criminal attempt to commit armed robbery, alleges that Green ordered the second victim to locate her sister’s wallet while he pointed a pistol at her. Again, Green argues insufficiency of the evidence. We find that the evidence was such that the jury could find the elements of this crime beyond a reasonable doubt.

OCGA § 16-4-1 provides that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” An armed robbery takes place when a person “with intent to commit theft. . . takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a).

The evidence supports a finding that Green took a substantial step toward the commission of armed robbery. The second victim testified that, while threatening her with a loaded gun and after telling her that “he wouldn’t hesitate to kill [her],” Green asked, “do you got [sic] any money in here?” Viewed in the light most favorable to the verdict, the evidence provides a sufficient basis for the jury’s determination that Green was guilty of criminal attempt to commit armed robbery.

(e) Count 9, possession of a firearm during the commission of a crime. This count of the indictment charges Green with possessing a firearm during the rape and burglary of the second victim; however, the indictment erroneously refers to January 16,1998, which was the date of the attack on the first victim. Green argues that there was no evidence that he was near the second victim on the date alleged, and, therefore, the conviction should be reversed. This argument has no merit.

“It is well settled in Georgia law that evidence of guilt is not restricted to the day mentioned in the indictment, but may extend to any day previous to the finding of the bill and within the statute of limitation for the prosecution of the offense.” (Citations and punctuation omitted.) Carpenter v. State, 167 Ga. App. 634, 642 (9) (307 SE2d 19) (1983). The evidence summarized above provides ample support for a finding that Green possessed a firearm during the rape and burglary of the second victim.

2. Next, Green complains that the court committed reversible error when, in its jury charge, it used the word “burglary” as the underlying offense for the charge of burglary instead of the word “rape” during its recitation of the indictment. Count 10 of the indictment charges Green with burglary by entering the home of the second victim with the intent to commit rape. However, while reading the indictment during the jury charge, the court stated:

In the name and behalf of the citizens of Georgia, in count ten, charge James L. Green with the offense of burglary in that said accused in the State of Georgia, County of Muscogee, on the 28th day of January, 1998 [,] did then and there unlawfully and without authority and with intent to commit a felony, to wit: burglary, therein did enter the dwelling house of another, to wit: [the second victim]. . . .

Green argues that the court committed harmful error, and that there was no evidence to support his conviction for burglary. We disagree.

In Martin v. State, 246 Ga. App. 708 (541 SE2d 692) (2000), we held that a similar misstatement by the court did not amount to reversible error. In that case, the trial court used the word “perjury” in place of the word “burglary” during its charge. We reasoned that “[assuming that the error was the judge’s and not the reporter’s, such a slip of the tongue is not reversible error if it clearly could not have misled or confused the jury.” Id. at 710 (2). Because the court correctly used the word “burglary” throughout the rest of the charge, and because the jury had the correct indictment in the jury room, we determined that the misstatement could not have misled or confused the jury.

Similarly, in the case sub judice, the court properly referred to rape as the underlying offense of burglary during the remainder of the jury charge. Furthermore, the jurors had the indictment in the jury room during their deliberations. Therefore, the court’s misstatement did not amount to reversible error. Additionally, we find that the evidence amply supported Green’s conviction for burglary.

3. Green assigns error to the courts refusal to excuse for cause a juror who was a rape victim. During voir dire, a female juror told the court that she had been raped six months earlier. The court addressed the matter outside the presence of the other prospective jurors and asked, “[Juror], you’ve told us what your problem was in private. Can you be fair and impartial?” The juror responded, “I believe I can.”

It is well settled that the decision of whether to strike a juror for cause lies within the sound discretion of the trial court. Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993), citing Wilcox v. State, 250 Ga. 745 (301 SE2d 251) (1983). See also Montijo v. State, 238 Ga. App. 696, 704 (6) (520 SE2d 24) (1999), citing Brown, v. State, 268 Ga. 354, 356 (3) (490 SE2d 75) (1997). Appellate courts will not disturb a trial court’s decision absent an abuse of discretion. Wellons dl State, 266 Ga. 77, 84 (6) (463 SE2d 868) (1995).

We cannot conclude that the court abused its discretion in refusing to strike for cause the juror at issue. The Supreme Court has held that

(b)efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

Garland, supra, citing Johnson v. State, 262 Ga. 652, 653 (2) (424 SE2d 271) (1993). In the case sub judice, the court specifically inquired as to whether the potential juror could be fair and impartial, and she responded that she could. “The trial court therefore did not abuse its discretion in finding the juror to be impartial and in refusing to strike her for cause.” Evans v. State, 210 Ga. App. 804, 805 (437 SE2d 495) (1993) (court did not err in refusing to strike for cause a potential juror who was a rape victim).

4. Next, Green argues that he was denied effective assistance of counsel. Green raised this argument in his motion for new trial; however, the court concluded that Green was afforded effective assistance of counsel. We affirm.

In order to establish ineffective assistance of counsel, Green must show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994). Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. Pace v. State, 239 Ga. App. 506, 510 (7) (521 SE2d 444) (1999).

Green first contends that his trial counsel’s performance was deficient, because he did not object to the state’s “golden rule” argument. During closing arguments, the prosecutor told the jury:

Imagine you are in your bed laying [sic] there and all of a sudden [,] here is someone with a knife to your throat, ripping your clothes off, having sex with you, making you place his penis in your mouth. And not only that, telling you to lick his behind. That is just despicable, but that’s what he did.

Green argues that the state impermissibly instructed the jurors to put themselves in the place of the victim, and that counsel’s failure to object amounted to deficient performance that prejudiced his defense. While counsel’s failure to object to the state’s argument might have been deficient performance, we cannot conclude that it prejudiced Green’s defense in light of the overwhelming evidence of his guilt.

We generally disapprove of “golden rule” arguments. Horne v. State, 192 Ga. App. 528, 529 (2) (385 SE2d 704) (1989). See also Burgess v. State, 264 Ga. 777, 785 (20) (450 SE2d 680) (1994). “[A]ny argument, regardless of nomenclature, which importunes the jury to place itself in the position of the victim for any purpose must be carefully scrutinized to ensure that no infringement of the accused’s fair trial rights has occurred.” Horne, supra. Therefore, in the case sub judice, it would have been appropriate for defense counsel to object to the state’s argument.

At the hearing on the motion for new trial, Green’s trial counsel testified that he could not recall why he did not object to the state’s improper closing argument. Therefore, we cannot determine that counsel’s failure to object was the result of trial strategy. Compare Richards v. State, 232 Ga. App. 584, 589 (5) (502 SE2d 519) (1998).

Even if counsel’s performance was deficient on this ground, “given the overwhelming evidence against [Green], we conclude that it is highly probable [the improper argument] did not contribute to the jury’s verdict of guilt.” See Burgess, supra. Accordingly, because it is unlikely that counsel’s deficient performance prejudiced Green’s defense, this claim of ineffective assistance of counsel must fail.

Next, Green argues ineffective assistance because his counsel did not file a motion to suppress evidence of a blood sample taken from Green. In his appellate brief, Green raises concerns regarding the lawfulness of the warrant for the blood sample and argues that his counsel should have moved to suppress that evidence.

Again, Green’s claim of ineffective assistance of counsel fails. The decision of whether to file a motion to suppress is a matter of professional judgment, and we will not judge counsel’s trial strategy in hindsight. Aleman v. State, 227 Ga. App. 607, 612 (3) (489 SE2d 867) (1997).

Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.

Id. “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468) (1999).

5. Green argues that the trial court committed reversible error by allowing a former detective to testify about the results of a blood test. As we noted above in the summary of the evidence, the first victim initially identified a suspect from a lineup that did not include Green. Sheree Tovey, a former police detective who investigated the attack on the first victim, testified that the blood sample taken from that suspect did not match the semen sample found on the victim. Green argues that this testimony was inadmissible hearsay, because Tovey did not actually test the blood and was simply repeating information she read in the lab report. OCGA § 24-3-1.

While the court may have abused its discretion by allowing Tovey to testify as to the results of the blood test, any error was harmless, given the overwhelming evidence of Green’s guilt. Cummings v. State, 242 Ga. App. 657, 658 (1) (530 SE2d 782) (2000). Significantly, a forensic scientist testified that Green’s DNA matched the semen sample taken from the victim. “Considering the overwhelming admissible evidence of [Green’s] guilt, the admission of [Tovey’s testimony], even if error, was harmless.” Blackmon v. State, 272 Ga. 858, 859 (2) (536 SE2d 148) (2000).

6. Finally, Green assigns error to the court’s jury charge regarding the crimes of possession of a firearm during the commission of a crime and attempted armed robbery.

He first argues that the court erred by charging the jury on the entire Code section regarding possession of a firearm during the commission of a crime. OCGA § 16-11-106 (b). According to Green, the court’s instruction with respect to this count exceeded the scope of the charges against him in the indictment. “As a general rule, it is not error to charge an entire Code section even though part of the section may be inapplicable.” Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999).

However, error arises if the indictment specifies the commission of a crime by only one of several methods possible under the statute and a reasonable probability exists that the jury convicted the defendant of committing the offense in a manner not charged in the indictment.

(Citations and punctuation omitted.) Chadwick v. State, 236 Ga. App. 199, 202 (2) (511 SE2d 286) (1999). In the case sub judice, the court read the indictment to the jury, and we do not find a reasonable probability that the jury convicted Green of the offense of possession of a firearm during the commission of a crime in a manner not charged in the indictment. Id.

Finally, Green argues that the court committed reversible error in its charge on criminal attempt to commit armed robbery, because it erroneously charged the jury as to the definition of robbery rather than armed robbery. We conclude that the mistaken charge was not reversible error. “An erroneous charge on a lesser crime to that set forth in the indictment or accusation does not rise to the level of reversible error, unless such charge was harmful to the accused as a matter of law.” Mills v. State, 244 Ga. App. 28, 29 (1) (535 SE2d 1) (2000). In this case, the court read the indictment to the jury, and the jury evaluated the evidence and determined that Green was guilty. We cannot conclude that one erroneous charge on a lesser crime was harmful to Green as a matter of law.

Decided February 21, 2001 —

Reconsideration denied May 9, 2001 —

William J. Mason, for appellant.

James Green, pro se.

J. Gray Conger, District Attorney, Stacey S. Jackson, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Blackburn, C. J., and Pope, P. J., concur.

       We note that the indictment refers to January 28, 1998; however, the attack on the second victim was alleged to have taken place on March 28, 1998. Green has not raised this discrepancy on appeal. However, if he had, there would be no harmful error. As we held in Division 1 (e), evidence of guilt is not restricted to the date mentioned in the indictment.


author: Barnes, Judge.

text:
    A01A0766.
    THOMAS v. THE STATE.
    (548 SE2d 71)
   Barnes, Judge.

A jury convicted Willie Clark Thomas of armed robbery and kidnapping. He appeals, contending that insufficient evidence supports the convictions and that the trial court erred in denying his motion to suppress the victim’s pretrial identification of him. He further contends the trial court erred in denying his motion for mistrial made due to the State’s failure to disclose before trial that the victim saw Thomas make certain hand gestures at a preliminary hearing and in giving a particular charge to the jury. We affirm.

1. We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that the victim stopped for gas at a station on Stewart Avenue in Atlanta. In his truck were five other men who were all on their way to work. Thomas opened the truck door with a pistol in his hand and forced the victim to move over from behind the wheel, then drove the truck to a nearby driveway of an apparently abandoned house. Thomas ordered the men to get out of the truck and place their hands on the vehicle. He patted them all down, then took their wallets and some gold jewelry from the men. The victim testified he had been carrying about $300 and that he got a good look at the robber’s face. After the robbery, a white woman picked Thomas up in a cream-colored Cadillac.

The victim testified that he went on to work and reported the incident to his boss, who told him to “just let it go.” The victim, whose testimony was translated at trial, did not speak English and explained that he was scared and did not know what to do after the robbery. After work that day, he called a friend who spoke English and Spanish and who worked as a detention officer at the Roswell jail. He and the friend went to the police station to report the robbery and gave the investigating detective a description of the car along with the first four symbols on the tag, followed by either “M” or “N.” He examined mug shots that evening but could not identify anyone as the robber.

The investigating officer testified that he had seen a similar car in the Stewart Avenue area, with a black man and white woman inside. He obtained a photograph of the man and placed it in a photographic lineup, which the victim examined approximately five weeks after the robbery. The victim identified Thomas as the robber right away. The partial tag number provided by the victim matched the tag number on Thomas’s cream-colored Cadillac.

We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Thomas guilty beyond a reasonable doubt of armed robbery and kidnapping. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Thomas contends the trial court erred in allowing an in-court identification because it was tainted by an impermissibly suggestive pretrial identification procedure. “The dispositive question in resolving this issue is whether the procedure used resulted in a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Maloy v. State, 240 Ga. App. 3, 4 (3) (522 SE2d 490) (1999).

(a) In that regard, Thomas argues that the victim’s description of the perpetrator’s height and weight varied from Thomas’s height and weight and that too much time — five weeks — had passed between the robbery and the photo identification. Despite the variance in Thomas’s height and weight from the victim’s description, Thomas being three inches taller and seventy-five pounds heavier at trial than the victim’s description of the perpetrator, the victim testified that he remembered Thomas’s face well and was “absolutely sure” he was the robber. Thomas has gold teeth, as the victim described to the police, and admitted on the stand that he had gained weight in the previous year. Determining the witnesses’ credibility is the jury’s province, and under the evidence presented the jurors were authorized to believe the victim’s identification testimony. Grier v. State, 206 Ga. App. 93, 94 (1) (424 SE2d 358) (1992).

Further, Thomas has not alleged how the photo lineup was impermissibly suggestive or what improper procedures were used that might have tainted the result. On review, the record contains no evidence that the photographic display was assembled in an impermissibly suggestive manner, and the victim’s interpreter testified that the police officer made no indication as to whom to select.

(b) Thomas also argues that the in-court identification was impermissibly suggestive because the State showed the victim a single picture of Thomas just before trial. However, the initial photo lineup was not impermissibly suggestive, and the victim testified that he remembered Thomas’s face and was absolutely sure he was the robber. Under the totality of the circumstances, we are satisfied that the identification procedure was not so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. Accordingly, the trial court did not err in denying Thomas’s motion for mistrial. Hamilton v. State, 210 Ga. App. 19, 20-21 (1) (435 SE2d 61) (1993).

3. Thomas asserts the trial court erred in denying his motion for a mistrial due to what he characterizes as a discovery violation. The victim testified that, when he saw Thomas at a preliminary hearing, Thomas “would point to me and go like this, like it’s not me, I’m not the one (witness indicating).” Thomas contends that the State should have told him about these gestures at least ten days before trial; the State responded that it had given Thomas the name and numbers of both witness and translator and could not “give” Thomas a gesture.

OCGA § 17-16-7 provides that the prosecution shall produce for the defendant “any statement of any witness that is in the possession, custody, or control of the state or prosecution . . . that relates to the subject matter concerning the testimony of the witness that the party in possession, custody, or control of the statement intends to call as a witness at trial. . . .”

The State has no obligation to produce an oral statement that was not recorded or written. Cox v. State, 242 Ga. App. 334, 338 (7) (528 SE2d 871) (2000). Similarly, the State has no obligation to produce a gesture, assuming it were possible to do so. The trial court did not err in denying Thomas’s motion for mistrial.

4. Thomas contends the trial court erred in charging the jury as follows, omitting the bracketed word “generally”: “The testimony of a witness is [generally] sufficient to establish a fact if the jury believes the witness.” Thomas contends that the charge as given created an unconstitutional “mandatory irrebuttable presumption.” The language of the charge comes from OCGA § 24-4-8, which is titled, “Number of witnesses required generally; exceptions; effect of corroboration.” The full text of the statute provides:

Decided April 20, 2001

Reconsideration denied May 9, 2001.

Elaine T. McGruder, for appellant.

Willie C. Thomas, pro se.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

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

During the charge conference here, the trial court explained that it included the word “generally” in this charge when it was then going to follow with a charge to the contrary, such as, for example, following with: “However, since this is a child molesting case, the conviction cannot rest on the uncorroborated testimony of the victim. ... I don’t see any reason to tell them that it was generally acceptable because it is in this case. It is acceptable.”

After giving the charge at issue, the trial court then charged the jury on witness credibility and impeachment, directing it that “[i]t is for you alone to determine what testimony you will believe and what testimony you will not believe.” The court further charged that “[t]he jury being the exclusive judges of the credibility of the witnesses, it is for them to determine the credit that shall be given to any witness who testified.”

This charge does not create a presumption, irrebuttable or otherwise, and is not burden shifting. Because the testimony of the victim did not have to be corroborated, Gay v. State, 143 Ga. App. 857 (1) (240 SE2d 226) (1977), we conclude that the trial court did not err in giving this jury charge.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Phipps, Judge.

text:
    A01A0037.
    WILSON v. THE STATE.
    (549 SE2d 418)
   Phipps, Judge.

Convicted at a stipulated bench trial of possession of cocaine with intent to distribute and possession of more than one ounce of marijuana, Damon Wilson appeals the denial of his motion to suppress evidence of the drugs seized during a warrantless search of his car. He claims that the initial investigatory stop was illegal because it was based solely on a tip from an unreliable informant. We accept the trial court’s finding that the informant was reliable and find that the investigatory stop was legal. We therefore affirm.

The following evidence was introduced at the motion to suppress hearing. On April 26, 1999, DeKalb County Police Detective Franklin received a tip from a confidential informant that a white Jeep Cherokee, license tag number 324 JLC, could be found immediately in the area of Redan Road and Covington Highway and that the Jeep would be carrying a large quantity of illegal drugs. The informant told Franklin that the Jeep would be occupied by two black males. When he received the tip, Franklin notified uniformed officers Becker and Frank that he would be moving into the area.

Approximately five minutes after receiving the tip, Franklin arrived at the area in his unmarked vehicle. Shortly thereafter, he saw a white Jeep Cherokee turning onto Redan Road from Holcombe Road, coming from the direction of Covington Highway. From behind the Jeep, he saw that the license tag number matched the one given by the informant, that the driver was a black male and that the passenger, who was reclined in the seat, also appeared to be male. Franklin testified that the driver repeatedly looked into his side view and rearview mirrors and turned around in his seat to watch the vehicles following him. Having confirmed most of the information given by the informant, Franklin instructed Officer Becker to perform an investigative stop of the vehicle.

Becker located the Jeep Cherokee, drove behind it and activated his blue lights. When the Jeep stopped, Becker, speaking through his public address system, asked the driver, whom he later identified as Wilson, to get out and go to the rear of the vehicle. Wilson complied with that request as well as Becker’s request for his driver’s license. Becker asked Wilson if there were any guns in the vehicle, and Wilson said, “yes.” Wilson told Becker that the gun was located under the driver’s seat. After patting Wilson down, Becker went to the driver’s side of the vehicle, looked under the driver’s seat and saw a gun and a bag of marijuana. When Wilson acknowledged that the gun and marijuana belonged to him, Becker placed him under arrest.

Becker then asked Officer Frank to conduct an open air search of the vehicle. After Wilson’s passenger exited, Frank walked his dog (trained in the detection of narcotics) around the outside of the vehicle. The dog “alerted” on the front driver’s side and the front passenger’s side of the vehicle and again in the backseat when he entered the vehicle. The officers found two bags of cocaine on the front passenger floorboard and a large amount of marijuana under the backseat.

The trial court found the source of the confidential information reliable and denied Wilson’s motion to suppress, holding that “[t]he reliable confidential information received by the police coupled with Wilson’s suspicious method of driving” was sufficient to authorize the investigative stop. The trial court also found that when Wilson admitted he had a weapon in the car, near where the passenger was seated, Becker had the right to retrieve the weapon for his own safety. While retrieving the gun from under the seat where Wilson told him it was located, Becker saw the marijuana under the seat, thereby justifying Wilson’s arrest and the subsequent open air search of the vehicle.

When reviewing a trial court’s ruling on a motion to suppress, we defer to the trial court’s findings of fact unless they are clearly erroneous and construe the evidence in favor of the trial court’s decision.

Wilson challenges the legality of the investigatory stop of his vehicle.

“Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. (Cit.)” [Cit.]

Wilson claims that the trial court improperly found that the informant was reliable. He also contends that the informant’s tip was insufficient to authorize the stop of his vehicle.

During the suppression hearing, Franklin testified on direct examination that the informant had given him information about possible illegal activity on two prior occasions and that both cases had resulted in arrests and the seizure of vehicles, cocaine and a large amount of U. S. currency. On cross-examination, however, he distinguished what he referred to as a “confidential source” from a “confidential informant.” He testified that he felt it necessary to investigate and attempt to verify information received from a confidential source. He defined a confidential informant as a source of information whose reliability had been established over a period of time. He deemed information from a confidential informant to be reliable without direct investigation. Franklin testified that the information in this case came from a confidential source.

Construing the evidence most favorably to uphold the trial court’s findings, as we must, we cannot say that its determination that the informant was reliable was clearly erroneous.

Wilson argues that, regardless of the informant’s reliability, the information given must provide some basis for predicting the future behavior of the suspect. This rule applies to an anonymous telephone tip, but not to a tip from a known, reliable informant. “The purpose of requiring that an anonymous tip give predictive information is to allow the police a means to test reliability before acting on the broader prediction that the suspect is engaged in criminal activity. Imposing such a requirement is unnecessary where . . . the informant’s reliability is otherwise established.”

Wilson claims that the trial court improperly coupled his “suspicious method of driving” with the informant’s tip in finding a legal basis for the investigatory stop. We agree that Wilson’s method of driving did not support the trial court’s decision to deny his motion to suppress, but nevertheless we find that the officers had a legal basis for the stop. Based on the detailed information given by the reliable informant and Franklin’s subsequent verification of most of that information, the officers had a founded suspicion that Wilson’s vehicle was carrying drugs. Thus, the brief, investigatory stop was justified.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

Decided May 9, 2001

Larry D. Wolfe, for appellant.

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

        State v. Becker, 240 Ga. App. 267 (523 SE2d 98) (1999).

        State v. McFarland, 201 Ga. App. 495, 496 (411 SE2d 314) (1991).

         See Johnson v. State, 230 Ga. App. 535, 536 (1) (496 SE2d 785) (1998) (informant found reliable because he had provided information that led to three prior arrests and/or seizures of drugs); Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996) (confidential informant who had given information four previous times leading to two search warrants and five arrests was reliable); Anthony v. State, 197 Ga. App. 297, 298 (1) (398 SE2d 580) (1990) (informant deemed reliable because his information had resulted in three or four prior arrests).

        VonLinsowe v. State, 213 Ga. App. 619, 620-621 (1) (445 SE2d 371) (1994).

        Rider, 222 Ga. App. at 604.

       (Citation omitted.) Id.

       See Samuel v. State, 198 Ga. App. 558, 559-560 (1) (402 SE2d 325) (1991); West v. State, 194 Ga. App. 620, 621 (391 SE2d 673) (1990).


text:
    A01A0156.
    YOUNT v. THE STATE.
    (548 SE2d 674)
   Mikell, Judge.

Arthur White Yount was convicted after a jury trial for driving under the influence of alcohol to the extent that it was less safe to drive and driving under the influence with an unlawful alcohol concentration. Yount enumerates three errors on appeal: (1) the exclusion of his expert witness’ testimony; (2) the denial of his motion for mistrial based on the fact that jurors were sleeping during the trial; and (3) the admission of the Intoxilyzer 5000 inspection certificates in the absence of the proper foundation. We affirm.

On appeal, “this court views the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence.” Further, “[w]here the evidence is uncontroverted and there is no issue as to witness credibility, ... we review de novo the trial court’s application of the law to the undisputed facts.”

The uncontroverted evidence presented at trial shows that at approximately 1:11 a.m. on April 26, 1997, Yount stopped at a roadblock on East Paces Ferry Road in Atlanta. Officer Michael Pulliam, who was working the roadblock, testified that when he asked Yount for his driver’s license and proof of insurance, “[Yount] was slow and listless like he was being impaired in some manner.” Pulliam also smelled alcohol coming from Yount’s window and noticed that Yount’s eyes were glassy, his speech was slurred, and his skin was flushed. Consequently, Pulliam told Yount to pull over to the side of the road.

Pulliam asked Yount to participate in field sobriety tests, and Yount agreed to do so. Pulliam administered the horizontal gaze nystagmus, walk and turn, and leg-raise tests. On the horizontal gaze nystagmus test, Yount exhibited six out of six clues, which indicated the possibility of impairment. On the walk and turn test, Yount exhibited six out of a possible eight clues of impairment. Finally, Yount exhibited four out of four clues of impairment on the leg-raise test. Yount also had a positive alco-sensor reading.

As a result of Yount’s performance on the sobriety tests and Pulliam’s observations, Pulliam determined that Yount was a less safe driver and arrested him for driving under the influence of alcohol. Pulliam read the implied consent warning to Yount, who then agreed to take a breath test. Officer A. M. Corroto of the City of Atlanta Police Department administered Yount’s breath test. Officer Corroto testified that the Intoxilyzer 5000 was in good working order and that he followed the correct procedures as he administered the breath test. Yount had an alcohol concentration of 0.164 grams on the first breath sample and 0.165 grams on the second breath sample.

1. In Yount’s first enumeration of error, he argues that his convictions should be reversed because the trial judge excluded the testimony of his expert witness, Kenneth Habben. We disagree.

Yount’s counsel offered Habben as an expert on infrared breath-testing machines, on the use of the machines to estimate breath alcohol, and in the fields of chemistry and toxicology. Habben testified that he had a bachelor’s degree in chemistry and had retired as the chief toxicologist from the South Carolina State Law Enforcement Division approximately 18 months earlier. As the chief toxicologist, Habben was the head of the section that checked blood and urine samples for alcohol and drugs. Further, Habben was familiar with infrared breath-testing methods.

During his voir dire, Habben testified that South Carolina uses infrared breath-testing devices that are different from those used in Georgia, though he thought the machines were basically the same. Also, he was not certified to perform breath tests in Georgia or South Carolina, but did provide training to breath-testing specialists. Habben could not recall if he had ever tested a subject on the model of Intoxilyzer used in Georgia and testified that he had never repaired an Intoxilyzer 5000. When asked if he was familiar with the workings of the various breath-testing devices, he replied: “Overall, I know how the general device works, specific mechanisms, etc. But no, I have no knowledge, just the overall ability to give a result and what interference they may detect and may not detect.” The trial judge refused to qualify Habben as an expert on the Intoxilyzer 5000, stating: “He’s not certified. His testimony was that he doesn’t know a thing about the internal workings of that particular machine and equipment and he’s not qualified as an expert.”

“It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert.” Thus, the trial court’s decision as to a witness’ qualifications to testify as an expert will be reversed only if that discretion is abused. In light of Habben’s testimony, we cannot conclude that the court erred in not qualifying Habben as an expert on infrared breath-testing machines.

Habben was also prepared to testify about how alcohol is absorbed and eliminated by the human body and the application of these principles to the testimony of Brian Young, who was with Yount on the evening before his arrest. The trial court excluded Habben’s testimony on this issue on the grounds that it was irrelevant. This exclusion, however, was erroneous.

Young testified that between 7:30 p.m. and 12:30 a.m., Yount had six drinks. Afterward, he and Yount went to a disco club. After dancing, Yount was very sweaty. Habben’s proffered testimony was that the reading on the Intoxilyzer 5000 was elevated because of Yount’s activities earlier that evening and that the Widmark Formula would possibly yield a different alcohol concentration.

Though the “admissibility of evidence is a matter which rests largely within the sound discretion of the trial court,” we note that “Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value.” The trial court should have allowed Habben’s testimony as to the absorption and elimination of alcohol in the body. This error, however, does not warrant reversal in light of the overwhelming evidence of Yount’s guilt in this case. “A party seeking reversal must show not only error but injury arising from the error alleged.” Pulliam’s observations of Yount, coupled with Yount’s performance on the field sobriety evaluations, were sufficient to authorize a finding of guilt beyond a reasonable doubt that Yount was a “less safe” driver. Thus, at most, the exclusion of the evidence was harmless error, especially since the trial court ultimately dismissed the unlawful concentration count.

2. In his second enumeration of error, Yount argues that he did not receive a fair trial because the trial court did not take corrective measures after learning that jurors were sleeping at various points during the trial. We disagree.

Decided May 9, 2001.

William C. Head, for appellant.

Joseph J. Drolet, Solicitor-General, Kenya M. Kuykendoll, Assistant Solicitor-General, for appellee.

Should a juror fall asleep during the course of a trial it is the duty of the trial judge to awaken him. Should counsel or the parties in a trial observe a sleeping juror it is their duty to bring it to the attention of the court. What a litigant may not do is observe a juror sleeping, fail to bring this to the judge’s attention at a time when corrective action may be had, take a chance on a favorable verdict, and then when the verdict is unfavorable have a mistrial or new trial because of the otiose juror.

Yount moved for a mistrial at the close of the state’s case, after the defense rested, and during the charge to the jury because some of the jurors were asleep. In each instance, however, he failed to bring the sleeping jurors to the trial court’s attention when he observed them. Despite his failure to object contemporaneously, however, the court recharged the jury after Yount’s third motion for a mistrial.

“The granting of a motion for a mistrial is within the discretion of the trial court, and the trial court’s ruling will not be disturbed when the trial court has taken remedial measures sufficient to ensure a fair trial.” We find that the trial court did not abuse its discretion in this case. Further, though not required to do so due to the untimeliness of Yount’s objections, the trial court’s decision to recharge the jury was more than sufficient to ensure a fair trial.

3. Finally, Yount argues that his breath test results should have been excluded because the test cards were not attached to the original inspection certificates. OCGA § 40-6-392 (f) sets forth the requirements for the inspection certificate of an approved breath-testing instrument. The inspection certificates admitted as evidence in this case satisfy the requirements of the statute. There is no requirement that the state attach the test cards to the inspection certificate. Accordingly, this enumeration is without merit.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       OCGA § 40-6-391 (a) (1), (5). The trial court merged and dismissed the unlawful concentration count and imposed sentence only on the “less safe” count.

       (Punctuation omitted.) Dumas v. State, 239 Ga. App. 210-211 (1) (521 SE2d 108) (1999).

        State v. Becker, 240 Ga. App. 267-268 (523 SE2d 98) (1999).

       (Citation and punctuation omitted.) Smith v. State, 141 Ga. App. 720, 722 (6) (234 SE2d 385) (1977).

        Kuptz v. State, 179 Ga. App. 150, 151 (8) (345 SE2d 670) (1986).

       Young later testified that Yount had five to seven drinks.

       (Citation omitted.) Kellogg v. State, 233 Ga. App. 817, 819 (505 SE2d 794) (1998).

        Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998).

       (Citation omitted.) Shipman v. State, 221 Ga. App. 160,161 (2) (471 SE2d 225) (1996).

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

       (Citations omitted.) Foster v. State, 255 Ga. 425-426 (2) (339 SE2d 256) (1986).

       (Punctuation and footnote omitted.) Carruthers v. State, 272 Ga. 306, 314 (7) (528 SE2d 217) (2000).

        Gidey v. State, 228 Ga. App. 250, 251 (1) (491 SE2d 406) (1997).


author: Barnes, Judge. Smith, Presiding Judge,

text:
    A01A0238.
    MOON v. TERRELL COUNTY et al.
    (548 SE2d 680)
   Barnes, Judge.

Terence Moon sued Terrell County and four of its county commissioners, Wilbur Gamble, Lucius Holloway, Larry Atherton, and Warren Anthony, alleging that the defendants violated several provisions of the Open Meetings Act, OCGA § 50-14-1 et seq., regarding a special meeting that was called to determine whether he would continue to be employed as the Deputy Warden of the Terrell County Corrections Institute (TCCI). Moon sought to have the court void the board’s action terminating his employment and also sought attorney fees and expenses. After a bench trial, the trial court granted judgment to the defendants, holding that they did not violate the Open Meetings Act.

Moon enumerates four errors on appeal, alleging among other things that the trial court erred in holding that closing the session was permissible and that the minutes adequately reflected the names of the commissioners who voted to close the meeting. Because we conclude that the board failed to follow the procedures of the Open Meetings Act, we reverse.

Moon began working for Terrell County at TCCI as its business manager in 1991 and, after attending special training, became a corrections officer and eventually the deputy warden. The state contracts with the county to house state prisoners in TCCI, and while the state cannot direct the county to fire an employee, it can direct the county not to allow an employee to have any contact with the state inmates. If an employee cannot contact state inmates, that employee cannot function as a deputy warden. The state requires a deputy warden, a warden, and a business manager at each county facility that houses state inmates.

On December 9, 1997, the state coordinator for the Georgia Department of Corrections, County Facilities Division (DOC), faxed a memo to TCCI’s acting warden, advising him that (1) Moon had failed to appear twice for polygraph examinations that were scheduled in response to an investigation regarding a former inmate’s allegations of criminal misconduct by Moon, and therefore (2) could no longer have contact with state prisoners. That same day, the acting warden notified Moon by memo that, because the DOC had directed that Moon could no longer supervise state inmates in any manner, Moon was suspended until further notice. Also on December 9, 1997, the chairman of the Terrell County Board of Commissioners called a special board meeting for December 10,1997, to consider Moon’s continuing employment with the county.

At 4:50 p.m. on December 10, 1997, four of the five board members met, with Moon and the acting warden in attendance. After the chairman called the meeting, the board went into a closed session, then opened the session briefly and concluded the meeting. The minutes of the board meeting reflected that the purpose of the meeting was to discuss a personnel issue with Moon and that at the end of the meeting, the board approved a motion to accept Moon’s resignation if submitted within 24 hours. The minutes were subsequently amended to show that the board approved a motion to accept Moon’s resignation within 24 hours in lieu of terminating him.

On December 12, 1997, the board chairman sent a letter to Moon, stating as follows:

As of 5:00 PM, December 11, 1997, your employment with Terrell County Correctional Institute is terminated. Terrell County was notified on December 9, 1997, by Georgia Department of Corrections that you could no longer have any contact with any state inmates and could no longer serve in the capacity of Deputy Warden. Upon this notification the Terrell County Board of Commissioners have [sic] no choice but to terminate your employment.

1. Moon argues that the trial court erred in concluding that the board was authorized to hold a closed session under OCGA § 50-14-3 (6), which provides that meetings do not fall within the statute when they involve “discussing or deliberating upon the . . . dismissal. . . of a public officer or employee but not when receiving evidence or hearing argument on charges filed to determine disciplinary action or dismissal of a public officer or employee.” The DOC letter notifying the TCCI that Moon could no longer supervise state prisoners constituted evidence, Moon argues, which the board improperly received at a closed session.

The defendants respond that they did not receive evidence as contemplated within the statute, because the closed session was not a hearing to determine facts. The board chairman testified that he called the meeting because the DOC told him that if Moon remained as deputy warden, the state would remove its prisoners from the county facility and terminate its state funding.

“[T]he Open Meetings Act seeks to eliminate closed meetings which engender in the people a distrust of its officials who are clothed with the power to act in their name.” (Citations and punctuation omitted.) Atlanta Journal &c. v. Babush, 257 Ga. 790, 792 (3) (364 SE2d 560) (1988) (discussing OCGA § 50-14-4 (6), the predecessor to OCGA § 50-14-3 (6), which did not require that personnel-related meetings at which evidence is received must be open). Any exception to the requirement that meetings shall be open must be strictly construed. Steele v. Honea, 261 Ga. 644, 645 (1) (b) (409 SE2d 652) (1991).

The board argues that Moon waived the requirements of the Open Meetings Act. After calling the meeting to order, the chairman asked Moon if he would prefer to remain in open session or go into a closed session. Moon chose a closed session. The statute, however, directs that “[t]he public at all times shall be afforded access to meetings declared open to the public.” OCGA § 50-14-1 (c). Because the public has the right to access, one citizen cannot elect to close a meeting that should be open.

In this case, the record establishes that the board acted pursuant to the letter from the DOC, which was clearly considered because it was the stated basis for Moon’s termination. The trial court erred in concluding that the board’s actions did not violate OCGA § 50-14-3 (6). Because the board violated the Open Meetings Act in conducting the closed sessions, the actions taken during that meeting are void. OCGA § 50-14-1 (b).

2. Moon contends the trial court erred in finding that the board complied with the requirements of OCGA § 50-14-4, which mandates that the minutes reflect the names of those commissioners who voted to close it. Terrell County responds that the Open Meetings Act provides in another section that “[i]n the case of a roll-call vote the name of each person voting for or against a proposal shall be recorded and in all other cases it shall be presumed that the action taken was approved by each person in attendance unless the minutes reflect the name of the persons voting against the proposal or abstaining.” OCGA § 50-14-1 (e) (2). Because the board does not have a roll call, it argues, we can presume that every commissioner present voted for the motion to close the meeting.

As discussed in Division 1, we must strictly construe the exceptions to the Open Meetings Act. Steele v. Honea, supra, 261 Ga. at 645. Further, “a specific statute governs over a more general statute where they are in conflict.” Ga. Mental Health Institute v. Brady, 263 Ga. 591, 592 (2) (436 SE2d 219) (1993). The minutes do not reflect “the names of the members present and the names of those voting for closure” as required by OCGA § 50-14-4 (a), but only indicate the names of the commissioners moving and seconding the motion to go into closed session. We conclude that the trial court erred in holding that the minutes complied with the statutory requirements of OCGA § 50-14-4 (a).

Decided May 9, 2001.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, for appellant.

Collier & Gamble, Edward R. Collier, for appellees.

3. In light of our holdings in Divisions 1 and 2, the remainder of Moon’s arguments are moot.

Judgment reversed.

Phipps, J., concurs. Smith, P. J., concurs fully and specially.

Smith, Presiding Judge,

concurring specially.

I fully concur with all that is said in the majority opinion. I write separately to note an issue that may arise from a strict or literal construction of OCGA § 50-14-3 (6). Under that subsection, a meeting is exempted from the provisions of the Open Meetings Act if discussions or deliberations occur concerning disciplinary action of a public officer or employee. If evidence is received, however, the meeting is not exempted.

Here, the board of commissioners acted on the basis of the letter from the Georgia Department of Corrections, County Facilities Division (DOC), which was considered during the closed portion of the meeting. Clearly, the letter was evidence, and strictly construing the Open Meetings Act, as we are required to do, we must conclude that an open meeting was necessary under OCGA § 50-14-3 (6). But a different result may have been warranted if the board members had simply discussed reasons for Moon’s dismissal. Those reasons might have included, for example, a conversation between one of the board members and a DOC representative, without use of or reference to the letter from the DOC. Under a literal interpretation of the statute, a closed meeting in those circumstances may have been authorized. I question whether such a meeting, where simple hearsay may have served as a basis for dismissal, would have afforded Moon or any aggrieved member of the public the safeguards afforded by the Open Meetings Act.

       Moon contends he did not refuse to take a polygraph, but rather that he could not attend the first scheduled polygraph due to a death in his family and that he asked for an explanation of the accusations against him before taking the second one.

       As Presiding Judge Smith’s special concurrence correctly points out, there is a paradox involved here in that the statute would have allowed the meeting to be closed had there been no evidence introduced.


text:
    A01A0697.
    THOMAS v. THE STATE.
    (549 SE2d 408)
   Mikell, Judge.

After a jury trial, Robert Anthony Thomas was convicted of theft by taking. On appeal, Thomas challenges the sufficiency of the evidence and the denial of his motion for a directed verdict. Thomas also argues that the trial court erred by using two panels for jury selection, admitting improper character evidence, accepting a verdict that was not unanimous, and considering uncounseled guilty pleas in the sentencing phase of the trial. Finally, Thomas contends that his trial counsel was ineffective. For the reasons stated below, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that utilized under Jackson v. Virginia when the sufficiency of the evidence is challenged.

Construed in the light most favorable to the verdict, the evidence shows that on July 24, 1998, Thomas had permission to use Michelle Smith’s car until 3:00 p.m., when he was supposed to pick her up from work. Thomas drove Smith to work that morning, but did not pick her up or return her car. The car was located several days later.

Smith testified that she did not give Thomas permission to keep her car for several days. Smith’s son testified that when he last saw the car on the day it was stolen, Thomas was driving it away. Thomas was convicted and sentenced to serve ten years, six in confinement and the remainder on probation.

1. Thomas challenges the sufficiency of the evidence and contends that his motion for directed verdict should have been granted. We disagree. “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” Although Smith gave Thomas permission to drive her car during the day, she did not give him permission to keep it. Smith’s son testified that the last time he saw the car before it was stolen, Smith was driving it. The evidence was sufficient to authorize the jury’s finding of Thomas’ guilt beyond a reasonable doubt.

2. Thomas argues that the trial court erred by using two jury panels for jury selection. Again, we disagree. OCGA § 15-12-160 provides that the court must impanel 30 jurors from which counsel may strike jurors when a person stands indicted for a felony. If after striking from the panel there are less than 12 jurors to try the case, the statute authorizes the judge to summon as many competent jurors as is necessary to provide a full panel. The record shows that 30 jurors were impaneled in this case, and that from that 30, 11 were chosen for this trial. Subsequently, defense counsel was allowed to voir dire a second panel to complete the jury. Accordingly, the trial court did not err in using two panels to complete the jury.

3. Thomas also argues that the trial court improperly admitted evidence of his character, which error he preserved for appeal through a motion in limine. The record shows, however, that Thomas did not preserve this error for appeal in his motion in limine or at any other time. The evidence in question involved the circumstances of Thomas’ arrest.

During the pre-trial hearing on his motion in limine, Thomas referred the court to paragraph 12 of his written motion in limine as the subject for the hearing. Paragraph 12, however, sought the exclusion of statements made by the victim. It did not seek to exclude the circumstances of Thomas’ arrest.

Subsequent to the court’s ruling on Thomas’ motion in limine, the state inquired about the admissibility of the circumstances of Thomas’ arrest. Even then, Thomas did not object on the grounds that evidence of the circumstances of his arrest would impermissibly place his character in issue. Instead, Thomas argued that by mentioning the arrest, the state was attempting to inject evidence of another crime into the case. “To the extent that [Thomas] objected on grounds other than character, his objections do not preserve the character issue for appellate review.”

Thomas’ next opportunity to preserve this alleged error occurred during the testimony of the arresting officer. Detective David Wood testified that Thomas was arrested on September 11, 1998, in connection with another charge, and during Thomas’ booking, the warrant for his arrest on the theft by taking was discovered. Thomas did not object to this testimony. “It is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” Accordingly, this error is waived.

4. Thomas contends that his conviction must be reversed because the verdict was not unanimous. The record shows that when one of the jurors was asked if she heard the verdict read, whether it was her verdict then, and whether it was her verdict now, she did not give an audible response. However, the record does not show that the juror disavowed the verdict. As the party asserting the error, the burden is on Thomas to show error affirmatively by the record. As to this error, he does not. Furthermore, defense counsel was present at the polling of the jury, but did not object to the lack of a verbal response from the juror. Consequently, there is no reversible error.

5. Thomas asserts that the trial court erred in considering guilty pleas in prior cases because he did not have counsel when he entered the pleas. We disagree. In this case, the trial court considered Thomas’ prior guilty pleas on one felony and three misdemeanor charges. Thomas was represented by counsel on the felony charge and on one of the misdemeanor charges, but waived his right to counsel on the other charges. However, none of the pleas resulted in imprisonment. Thus, the state met its burden by proving the existence of the pleas. Thomas, however, did not show any infringement of his rights. Instead, he argues only that the pleas were uncounseled. Under Nash v. State, the court did not err in considering the pleas.

When introducing evidence of prior convictions based on guilty pleas, the . . . [s]tate must initially prove only the existence of the prior guilty plea and that defendant was represented by counsel in all felony cases and all misdemeanor cases resulting in imprisonment. The burden then shifts to the defendant to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity when the plea was taken.

Decided May 9, 2001.

Gerald L. Olding, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

6. Finally, Thomas states that he has filed documents arguing that his counsel erred in not allowing him to testify and asking for other counsel on appeal. However, Thomas does not identify these documents. Furthermore, the record shows that appellate counsel was also trial counsel, and that the issue of ineffectiveness is raised for the first time in this appeal. Under these circumstances, the issue of effectiveness of trial counsel is not properly before this Court for consideration.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       Thomas was also charged with shoplifting, but the charges were severed, and Thomas subsequently pled guilty to the shoplifting charge.

       (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

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

       OCGA § 16-8-2.

        Jackson v. Virginia, supra; Moore v. State, 242 Ga. App. 208, 211 (1) (529 SE2d 210) (2000) (conviction for theft by taking affirmed where defendant drove the victim’s automobile at night, but had permission to use it only earlier that day).

       OCGA § 15-12-160.

       Thomas later stated that the basis of his motion in limine was the October 8, 1998 preliminary hearing. The transcript of that hearing, if any, is not included in the record on appeal.

       (Citation omitted.) Rupert v. State, 239 Ga. App. 128, 131 (1) (a) (520 SE2d 695) (1999).

       (Citation and punctuation omitted.) Anthony v. State, 236 Ga. App. 257, 259 (2) (511 SE2d 612) (1999).

        Turner v. State, 269 Ga. 392, 393-394 (497 SE2d 560) (1998).

       See Thomas v. State, 268 Ga. 135, 141 (18) (485 SE2d 783) (1997) (there was no reversible error where one of the jurors was omitted when the jury was polled, but defense counsel failed to object).

       We note that Thomas does not challenge the voluntariness of the prior guilty pleas.

       (Citations omitted.) White v. State, 245 Ga. App. 725, 727 (4) (538 SE2d 797) (2000).

       271 Ga. 281 (519 SE2d 893) (1999).

       Thomas filed a motion for new trial, but the claim of ineffective assistance of counsel was not included therein.

        Garey v. State, 273 Ga. 133, 136-137 (2) (539 SE2d 123) (2000).