author: Barnes, Judge.

text:
    A01A1774. A01A1775.
    MINDIS ACQUISITION CORPORATION v. BDO SEIDMAN, LLP. BDO SEIDMAN, LLP v. MINDIS ACQUISITION CORPORATION et al.
    (559 SE2d 111)
   Barnes, Judge.

In Case No. A01A1774, Mindis Acquisition Corporation (“Mindis Acquisition”) appeals the grant of judgment notwithstanding the verdict (“j.n.o.v.”) to BDO Seidman, LLP (“BDO Seidman”), after a jury awarded $44 million to Mindis Acquisition on its claim against BDO Seidman for negligent representation. In Case No. A01A1775, BDO Seidman cross-appeals, contending the trial court erred by receiving evidence on and allowing the jury to consider an improper measure of damages and also contending the trial court erred by granting summary judgment to Jonathan Imerman and Thomas B. Hamil on BDO Seidman’s third-party claim against them for indemnification because they allegedly supplied incorrect information to BDO Seidman during an audit.

Imerman and Byron Kopman started a scrap metal recycling business called Mindis in 1987. Although they sold the company to Attwoods pic (“Attwoods”) for $18 million in 1989, they remained active in the operation of the company as officers and directors of Attwoods’s subsidiary, Mindis Consolidated Corporation (“Mindis”), a scrap metal recycling company. In 1993, Imerman, through his company Celtic Holdings, Kopman, through his company Robust Holdings, and Joseph Lewis, through his company Bellamy, Inc., organized Mindis Acquisition to purchase Mindis from Attwoods through a stock purchase. Bellamy, Inc. initially owned 50 percent of Mindis Acquisition and later acquired controlling interest in the company by investing an additional $10 million.

This litigation arose after Mindis Acquisition’s purchase from Attwoods of Mindis’s outstanding stock. BDO Seidman was the accounting firm hired by Attwoods to perform Mindis’s annual inventory audit in 1993. BDO Seidman’s final audit opinion estimated Mindis’s metal inventory to be worth approximately $86 million on July 31, 1993. While conducting the audit, BDO Seidman was aware that Mindis Acquisition was negotiating the purchase of Mindis and was careful to make sure that Imerman did not undervalue the inventory so Mindis Acquisition would get a better bargain. In fact, the record shows that Imerman and others had significant and continuing doubts about whether the value of Mindis’s scrap metal inventory could be determined accurately by anyone.

While the purchase and sale of Mindis’s stock were in final negotiations, Mindis’s Chief Financial Officer (“CFO”), Hamil, informed the BDO Seidman manager in charge of the Mindis audit that an outside shareholder of Mindis Acquisition had requested “comfort” in connection with the proposed acquisition. Specifically, Hamil said that Mindis Acquisition’s outside shareholder sought assurance that there would be no material adjustments to the July 1993 financial statements, and Hamil asked the BDO Seidman manager for something he could give the majority shareholder to comfort him so they could proceed with the transaction. Hamil recalled that the BDO Seidman manager asked for some time to determine what could be provided and then responded with the audit opinion. BDO Seidman faxed the audit opinion to Hamil who then passed it on to Jeffrey Voss, who represented Bellamy, Inc., Mindis Acquisition’s majority stockholder. Later that day, Voss authorized Kopman to execute the stock purchase agreement. After the purchase, an audit by another accounting firm revealed that Mindis’s scrap metal inventory was worth only $16 million, some $70 million less than the BDO Seidman audit had reported only three months earlier. A subsequent audit confirmed the accuracy of this figure.

Subsequently, Mindis Acquisition filed this lawsuit against BDO Seidman for negligent misrepresentation. BDO Seidman then asserted third-party claims for indemnification and contribution against the Mindis Chief Executive Officer (“CEO”), Imerman, and CFO, Hamil. Before trial, the parties filed cross-motions for summary judgment on numerous issues. The trial court determined that whether Mindis Acquisition justifiably relied on BDO Seidman’s opinion was a question for the jury, and this court denied BDO Seidman’s application for an interlocutory appeal. The trial court, however, granted summary judgment to Imerman and Hamil on BDO Seidman’s claims against them for indemnification.

The case was tried, and the jury returned a verdict of $44 million in favor of Mindis Acquisition. Subsequently, however, the trial court granted BDO Seidman’s motion for j.n.o.v.

Case No. A01A1774

Mindis Acquisition appeals the trial court’s grant of a j.n.o.v. to BDO Seidman. The negligent misrepresentation claim is based on our Supreme Court’s decisions in Badische Corp. v. Caylor, 257 Ga. 131, 132-133 (356 SE2d 198) (1987), and Robert & Co. Assoc. v. Rhodes-Haverty Partnership, 250 Ga. 680, 681-682 (300 SE2d 503) (1983).

In Badische Corp., the Supreme Court set out the following guidelines under which a professional could be liable to a third party:

This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach.

(Emphasis omitted.) Id. at 133. In this case, BDO Seidman knew that it was providing its audit opinion to provide assurance to the majority stockholder, and therefore, it provided the information specifically to induce the decision of a third party. It is undisputed that the information prepared by BDO Seidman was provided to a third party for the purpose of inducing that party to go forward with the transaction. Accordingly, Mindis Acquisition was within the limited class of persons BDO Seidman knew would rely on information it prepared.

At trial, BDO Seidman contended that Mindis Acquisition could not justifiably rely upon its opinion because two of Mindis Acquisition’s shareholders, Imerman and Kopman, had been owners and officers of Mindis before Attwoods bought the company and continued as officers of Mindis after the purchase, and, therefore, they knew what the company was really worth regardless of BDO Seidman’s evaluation. BDO Seidman contends that Imerman and Kopman had independent knowledge of the inventory value, knew the BDO Seidman inventories were inaccurate, and gave this information to Mindis Acquisition. Thus, BDO Seidman contended, Mindis Acquisition did not justifiably rely on BDO Seidman’s opinion.

Relying on this theory, BDO Seidman first moved for a directed verdict and, when the trial court deferred ruling, renewed the motion after the verdict awarding $44 million to Mindis Acquisition. The trial court then granted BDO Seidman’s motion.

The trial court found that

the evidence did not support a finding of justifiable reliance by the plaintiff. . . . The knowledge of Imerman and Kopman as officers [in] the company was attributable to [Mindis Acquisition], and, therefore, [Mindis Acquisition] was not justified as a matter of law in relying on [BDO Seidman’s] representation that the financial statements containing the $86 million inventory figure were fairly stated.

Mindis Acquisition appeals that judgment and also appeals the trial court’s denial of its motion seeking prejudgment interest under the Unliquidated Damages Interest Act, OCGA § 51-12-14.

1. When reviewing a trial court’s ruling on a motion for a directed verdict or a motion for j.n.o.v., an appellate court must consider the evidence and resolve any doubt or ambiguity in favor of the verdict. A directed verdict or j.n.o.v. “is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citations and punctuation omitted; emphasis in original.) Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (1) (392 SE2d 268) (1990).

Further, j.n.o.v.

may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. Where there is conflicting evidence, or there is insufficient evidence to make a “one-way” verdict proper, judgment n.o.v. should not be awarded. In considering the motion, the court must view the evidence in the light most favorable to the party who secured the jury verdict. And this approach governs the actions of appellate courts as well as trial courts.

(Citation and punctuation omitted.) Denson v. City of Atlanta, 202 Ga. App. 325, 326 (1) (414 SE2d 312) (1991). In ruling on such a motion the trial court is not authorized to weigh the evidence or decide issues of fact. Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

Additionally,

[a] judgment notwithstanding the verdict may not be granted because the strength or weight of the evidence is on one side. Moreover, even if the facts in a case are entirely uncontradicted and uncontroverted, where there is room for difference of opinion between reasonable men as to whether [an inference should be drawn], the right to draw the inference is peculiarly within the exclusive province of the jury.

(Citations and punctuation omitted.) Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647 (522 SE2d 467) (1999).

Although the evidence that Imerman strongly questioned the inventory value could support a verdict for BDO Seidman based on a lack of justifiable reliance, the existence of that evidence is not a sufficient basis for directing a verdict to BDO Seidman. A sufficient basis for granting the motion would exist only if no evidence of any kind supported Mindis Acquisition’s position. Moore v. American Suzuki Motor Corp., supra, 203 Ga. App. at 190 (1).

We cannot agree that the evidence in this case meets that test because the record on appeal also shows that the actual decision maker, Voss, acting for Lewis, and Bellamy, Inc., Mindis Acquisition’s majority owner, sought the information supplied by BDO Seidman before agreeing to go forward with the purchase. Voss testified that without the opinion he would not have signed the agreement. Consequently, some evidence exists from which the jury could conclude that Voss relied upon BDO Seidman’s audit opinion rather than the evaluations of the others, including Imerman.

Therefore, because this is not a plain and undisputable case, the question of whether Mindis Acquisition should have protected itself by the exercise of further diligence was for the jury to decide. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 6 (2) (497 SE2d 616) (1998). The jury considered all the evidence and found for Mindis Acquisition. Implicit in the verdict is the jury’s finding that Mindis Acquisition reasonably relied on BDO Seidman’s opinion on the value of the scrap metal inventory, even though questions were raised about BDO Seidman’s opinion on the value. As some evidence supports this result, the trial court erred by granting judgment to BDO Seidman.

Accordingly, the trial court’s grant of j.n.o.v. under OCGA § 9-11-50 (b) must be reversed and the case remanded to the trial court with direction to enter judgment for Mindis Acquisition in accordance with the jury’s verdict.

2. Because we have reversed the judgment in favor of BDO Seidman, we must vacate the trial court’s ruling on Mindis Acquisition’s motion for prejudgment interest and direct the trial court to consider on remand whether an award of prejudgment interest under OCGA § 51-12-14 is appropriate.

Case No. A01A1775

BDO Seidman contends in its cross-appeal that the trial court erred by granting summary judgment to Mindis CEO Imerman and Mindis CFO Hamil on its third-party indemnification claims against them and also erred by receiving evidence on and submitting the case to the jury using the wrong measure of damages.

3. We reject Imerman and Hamil’s argument that we lack jurisdiction to consider BDO Seidman’s cross-appeal of the trial court’s grant of summary judgment to them on BDO Seidman’s claim for indemnification. “Direct appeals from orders granting partial or complete summary judgment may be taken either within 30 days of rendition of the judgment or after the rendition of the final judgment in the case.” Studdard, v. Satcher, Chick &c., Inc., 217 Ga. App. 1, 2 (456 SE2d 71) (1995). Here, although years after the grant of summary judgment complained of, the appeal was taken within 30 days of the final judgment in the case, and thus the issue is properly before us.

The trial court, however, did not err by granting summary judgment to Imerman and Hamil on these claims. The trial court ruled that “[a]ssuming without deciding that the Mindis financial and inventory data was incorrect, BDO Seidman still produced no evidence or reasonable inferences from facts which indicate that either Imerman or Hamil knowingly compiled and disseminated false data to BDO Seidman.”

The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991):

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. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis in original.) Id. Although BDO Seidman continues to argue that the testimony that Imerman and Hamil questioned the value BDO Seidman gave to the scrap metal inventory raised the possibility that they gave incorrect information to BDO Seidman, it points to no specific evidence giving rise to a triable issue on this point. Moreover, this argument disregards BDO Seidman’s evidence that it did not credit Imerman and Hamil’s information for fear that Imerman and Hamil would attempt to undervalue the inventory.

4. BDO Seidman contends in its cross-appeal against Mindis Acquisition that the trial court erred by denying its motion in limine to exclude what BDO Seidman describes as evidence related to contract-based “benefit of bargain” damages; by giving charges related to those damages; and by refusing to give BDO Seidman’s charges on what it contends was the proper measure of damages. BDO Seidman asserts that Mindis Acquisition’s theory of damages was that it was entitled to receive the benefit of its bargain with Attwoods, but that Mindis Acquisition’s damages could be only its out-of-pocket losses as measured by the difference between the value of what it paid and the value of what it received. Under this theory, BDO Seidman contends the damages would be measured by the difference between the actual value of the scrap metal inventory and the amount Mindis Acquisition paid for Mindis.

Because all of BDO Seidman’s arguments ultimately depend on what is the proper measure of damages in a negligent misrepresentation case, we first address that issue. In Georgia the measure of damages in a negligent misrepresentation action is not the “out-of-pocket” theory based on § 552B of the Restatement (Second) of Torts.

In Robert & Co., supra, the Supreme Court of Georgia adopted § 552, Restatement, Torts 2d; however, this does not mean that it automatically adopted other subparts, the commentary, or explanations, which is a synthesis of what the reporter and commissioners believed to be the majority of states’ position on such area of the law. The Supreme Court did not adopt § 552B, nor has this Court. In Advanced Drainage Systems v. Lowman, 210 Ga. App. 731 (437 SE2d 604) (1993), this Court held that negligent misrepresentation was an exception to the Economic Loss Rule in tort cases.

U. S. Fidelity &c. Co. v. Paul Assoc., 230 Ga. App. 243, 251 (8) (496 SE2d 283) (1998).

In Robert & Co. v. Rhodes-Haverty Partnership, supra, 250 Ga. 680, our Supreme Court held that an essential element of this cause of action was the actual economic loss proximately resulting from reliance on the negligent misrepresentation. Hardaway Co. v. Parsons, Brinckerhoff &c., Inc., 267 Ga. 424, 426-427 (1) (479 SE2d 727) (1997).

A cause of action for negligent misrepresentation differs from the typical negligence cause of action because the damage resulting is economic, rather than physical harm or property damage. Robert & Co. v. Rhodes-Haverty Partnership, supra, 250 Ga. at 681. Therefore, we reject BDO Seidman’s argument that we should look only to negligence cases for the proper measure of damages. Indeed, we find greater similarities between causes of action for fraud and for negligent misrepresentation, and we earlier held that “[t]he same principles apply to both fraud and negligent misrepresentation cases.” Hightower v. Century 21 &c. Realty, 214 Ga. App. 522, 524 (2) (448 SE2d 271) (1994). Further, one commentator has stated that “the only real distinction between negligent misrepresentation and fraud is the absence of the element of knowledge of the falsity of the information disclosed.” Adams & Adams, Ga. Law of Torts (2000 ed.), § 32-1. Accordingly, we look to the measure of damages in fraud cases for the proper measure of damages in cases like this one. In this case, we find that the measure of damages is the difference between the actual value of the company and the misrepresented value of the company. See Bennett v. D. L. Claborn Buick, Inc., 202 Ga. App. 308 (414 SE2d 12) (1991).

Therefore, we find that the trial court did not err by instructing the jury that

For a negligent misrepresentation claim the plaintiff is to recover its actual damages. In this case the measure of Mindis Acquisition Corporation’s damages is the amount necessary to place Mindis Acquisition Corporation in the position it would have been in had the Mindis Metals inventory balance opined on and represented by BDO Seidman been correct.

Applying this charge to the evidence, the jury’s verdict would represent the difference between their assessment of the company’s value with its actual scrap metal inventory and the company’s value if the inventory had been as represented. Therefore, the trial court did not err by denying BDO Seidman’s motion in limine and admitting evidence relevant to this measure of damages. Further, because on appeal BDO Seidman has not attacked the sufficiency of the evidence to support the verdict, we must assume the amount the jury awarded was correct.

In any event, we find that BDO Seidman’s objection to the charge did not preserve the issue for appeal. In civil cases, exceptions or objections to charges must be made after the jury is charged and before the verdict; objections made at charging conferences before the charge is given do not preserve charging issues for appellate review. Bruno v. Evans, 200 Ga. App. 437, 441 (4) (408 SE2d 458) (1991); Sims v. Johnson, 185 Ga. App. 720 (365 SE2d 532) (1988). After the charge, BDO Seidman objected only to giving Mindis Acquisition’s charge no. 27. Such an objection is not sufficient to preserve the issue on appeal. Lissmore v. Kincade, 188 Ga. App. 548, 551 (373 SE2d 819) (1988). The objection must be stated distinctly so that a reasonable trial judge could understand the nature of the objection and rule intelligently on the specific point. Christiansen v. Robertson, 237 Ga. 711, 712 (229 SE2d 472) (1976).

[T]he objection must be unmistakable in its purport in directing the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the portion of the charge challenged or as to what the specific ground of challenge is. The grounds of error urged must fully apprise the court of the error committed and the correction needed to cure the error. We construe the statute [OCGA § 5-5-24 (a)] as placing the duty on counsel of exercising a high degree of clarity in objecting to charges.

(Citation and punctuation omitted.) Stone v. Burell, 161 Ga. App. 369 (2) (288 SE2d 636) (1982). Further, we reject BDO Seidman’s invitation to consider the charge under OCGA § 5-5-24 (c) which allows us to consider substantial errors in the charge that were harmful as a matter of law, regardless of whether an objection was made below. To preserve the effectiveness of subsections (a) and (b), OCGA § 5-5-24 (c) must be strictly construed and applied only to prevent a gross miscarriage of justice. Thus, subsection (c) should be very rarely applied. Widener v. Mitchell, 137 Ga. App. 730, 731-732 (4) (224 SE2d 868) (1976); Nathan v. Duncan, 113 Ga. App. 630, 638 (6) (149 SE2d 383) (1966). This is not one of those situations.

Decided January 18, 2002

Alston & Bird, Oscar N. Persons, Theodore J. Sawicki, John H. Goselin II, Womble, Carlyle, Sandridge & Rice, Nisbet S. Kendrick III, Caroline B. Keller, for Mindis Acquisition Corporation et al.

Sutherland, Asbill & Brennan, Peter J. Anderson, Kristen J. Indermark, Rebecca L. Burnaugh, for BDO Seidman, LLP.

As we have found no error in the charge actually given on the measure of damages, the trial court did not err by refusing to give the charge requested by BDO Seidman on this subject.

Accordingly, we find the errors enumerated by BDO Seidman in Case No. A01A1775 are without merit.

Judgment reversed with direction in Case No. A01A1774. Judgment affirmed in Case No. A01A1775. Smith, P. J., and Phipps, J., concur.

       Although the trial court treated the motion as a renewed motion for a directed verdict, in accordance with OCGA § 9-11-50 (b) we are treating the tried court’s action as the grant of a j.n.o.v.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A01A1799.
    MANGOLD v. THE STATE.
    (559 SE2d 103)
   Pope, Presiding Judge.

Randall Mangold was tried for felony murder, involuntary manslaughter, aggravated assault, and pointing a gun at another. He was acquitted of felony murder, but convicted of involuntary manslaughter. Here, he appeals, raising four enumerations of error. For the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, it showed that on February 22, 1999, Mangold and the victim, Stephen Elwood, were both in the Navy and were stationed at Kings Bay, Georgia. On the evening of February 22, the men were planning to go out; before going to the bar, Elwood asked to see Mangold’s .45 revolver. Elwood looked at it, and Mangold indicated that the gun was not loaded.

The men then went to a nightclub, where they both drank alcohol heavily. They were joined at the club by Elwood’s girlfriend, Christie Cowart.

The three eventually left the bar, bought some food, and went to Mangold’s house. Mangold carried Elwood, who had been vomiting from excessive alcohol consumption, into the house, and at some point Cowart prepared food. Then they all sat in the living room; Elwood had his head on Cowart’s shoulder. Cowart encouraged Elwood to eat, but he refused. Mangold got up and said, “I’m going to make you eat.” Mangold then grabbed a gun that was lying on the sofa and put the gun between Elwood’s eyes. Mangold said: “get up and eat, Elwood, or I’ll blow your — head off.” The gun was touching Elwood’s forehead, and it dropped and hit him on the nose. Elwood then said, “Quit it, man. That hurts.” At this point, Mangold put the gun back up to Elwood’s head and shot. Cowart immediately called 911 and reported the shooting. Mangold then came in the room, telling Cowart that he “didn’t mean to do it” and to call 911.

After the shooting, the police took a statement from Mangold in which he stated: “Steve [Elwood] had not sobered up enough to eat, but I coaxed him. I picked up the gun and waved it at him, telling him that he should eat or I would shoot him. I was kidding with him and had no intentions of shooting him, but the gun went off.”

At trial, three witnesses testified to similar incidents involving Mangold’s behavior with guns. Todd Hennon testified that Mangold had numerous weapons at his residence and that sometimes Man-gold would get “drunk and start goofing around and then he’d pick up ... a gun.” Hennon further testified that there “were a couple of times he pointed one at me.” He also recalled that Mangold had jokingly threatened to shoot him.

The second witness to these similar incidents, Timothy Bean, testified that Mangold kept numerous guns in his residence and that there had been occasions when Mangold was drinking that he had pointed a gun at him and another friend, perhaps Elwood. Bean further testified that during these episodes, Mangold had also made threats.

The third witness, Roger Lackey, stated that he knew that Man-gold kept numerous weapons in his residence and that many of the guns were loaded. This witness recounted two separate episodes in which Mangold pointed guns at him after drinking alcohol. Lackey also recalled one occasion when Mangold had discharged a gun in his residence and, with Elwood present, shot a bullet hole in the bedroom wall. Finally, Lackey recalled a time when Mangold tossed a rifle at him and said, “shoot me or I’ll shoot you.”

The autopsy report indicated that there was a contact range gunshot wound to Elwood’s head. The entry wound was in the forehead.

Mangold did not testify at trial.

1. In his first enumeration of error, Mangold contends that the trial court erred in failing to charge the jury on the defense of accident because the charge was warranted by the evidence and constituted his sole defense. Mangold claims that his defense was that he was waving the gun at Elwood and that Elwood swatted at the gun, causing the gun to discharge. As pointed out by the State, Mangold’s defense was that the gun discharged by accident, not that he pointed the gun at Elwood accidentally. In fact, during closing argument Mangold’s attorney conceded that there was “no doubt the gun was pointed.” Mangold’s attorney then clearly stated: “[a] 11 the evidence shows it.” Mangold did not argue that he did not point the gun at Elwood.

In New v. State, 260 Ga. 441 (1) (396 SE2d 486) (1990), our Supreme Court determined that the defense of accident was inapplicable when the defendant had intentionally pointed a gun at the victim’s face. The court cited OCGA § 16-2-2, which outlines the defense of accident: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence” (Emphasis supplied.)

The New court continued:

Criminal negligence as used in the statutes of this State means not merely such negligence as might be the foundation of a damage suit, but reckless and wanton negligence of such a character as to show an utter disregard for the safety of others who might reasonably be expected to be injured thereby.

New v. State, 260 Ga. at 441 (1).

In rejecting the defendant’s accident defense, the New court stated: “[clocking and aiming a gun ... at someone’s face is an utter disregard for the safety of that person and constitutes criminal negligence.” New v. State, 260 Ga. at 442 (1). In fact, in Stiles v. State, 264 Ga. 446, 447-448 (2) (448 SE2d 172) (1994), our Supreme Court stated:

[w]here, as in the instant case, it is shown by the evidence, and admitted in the defendant’s statement, that the homicide occurred by the discharge of a gun held by the accused which placed another in reasonable apprehension of immediately receiving a violent injury, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve accident.

(Citations and punctuation omitted.) Id. See also Davis v. State, 269 Ga. 276, 279-280 (3) (496 SE2d 699) (1998). Accordingly, we find no error in the trial court’s refusal to charge accident.

2. In two enumerations, Mangold claims that the trial court erred in its charges regarding alcohol. Mangold first claims that the trial court erred in charging on the issue of alcoholism because this charge intimated that the court thought that Mangold was an alcoholic when the evidence did not establish this fact.

This argument lacks merit. The court tracked the language of the pattern charge that alcoholism is not a defense to a crime. Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (1991), Part 3, Z (3), p. 42. There was sufficient evidence in the record to justify this charge, and we find no error. Moreover, even assuming that the court improperly charged the jury in this regard, we find that this instruction was not prejudicial to Mangold. See Green v. State, 190 Ga. App. 130, 131 (2) (378 SE2d 178) (1989).

Likewise, Mangold claims that the court erred in its charge regarding voluntary intoxication. Specifically, Mangold claims that the court’s charge on voluntary intoxication was incomplete and that it incorrectly instructed the jury regarding specific intent. This argument also fails. The charge was a correct statement of the law and again tracked the language of the pattern charges. We find no error. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (1991), Part 3, Z (1), p. 41; see generally Pickstock v. State, 235 Ga. App. 451, 453 (3) (509 SE2d 717) (1998).

3. Mangold claims that his trial counsel was ineffective in failing to move for a directed verdict either at the conclusion of the State’s case or at the close of the trial. No motion for new trial was filed on Mangold’s behalf, so no claim of ineffective assistance of counsel was raised in the court below. Trial counsel filed the notice of appeal, and appellate counsel did not file an entry of appearance in the case until several months after the notice of appeal was filed. Thus, the record shows that the instant appeal is the “earliest practicable moment” that Mangold’s appellate counsel could raise an ineffective assistance claim against trial counsel. “Notwithstanding, if [Mangold’s] claims can be resolved as a matter of fact or law upon the existing record, we will not remand this case. [Cit.]” Massingill v. State, 240 Ga. App. 690 (2) (524 SE2d 746) (1999). “In cases such as this, when the issue can be decided from the record on appeal, a remand to the trial court for a ruling on this issue would be ‘wasteful of judicial and legal resources’ and ‘would serve no useful purpose.’ ” (Citations omitted.) Forsman v. State, 239 Ga. App. 612, 615 (8) (521 SE2d 410) (1999); see also Elrod v. State, 222 Ga. App. 704, 705 (475 SE2d 710) (1996).

Here, after reviewing the existing record, we find that Mangold’s claim that his counsel was ineffective fails.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Mangold] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

Decided January 18, 2002.

Clyde M. Urquhart, Bruce S. Harvey, David S. West, David W. Martin, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Backey v. State, 234 Ga. App. 265, 266 (3) (506 SE2d 435) (1998). First, there has been no showing that counsel’s failure to move for a directed verdict was deficient. Moreover, Mangold has failed to show how this alleged deficiency harmed him. There was repeated testimony that Mangold pointed the gun at Elwood and that the gun discharged. Given this evidence, Mangold has failed to show how the outcome of the trial would have been different absent his attorney’s alleged errors. See Woods v. State, 271 Ga. 452, 454 (2) (c) (519 SE2d 918) (1999). The evidence adduced at trial was sufficient to overcome a motion for directed verdict and was sufficient for a rational trier of fact to find Mangold guilty of involuntary manslaughter beyond a reasonable doubt under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


text:
    A01A1824.
    PITTS v. THE STATE.
    (559 SE2d 106)
   Pope, Presiding Judge.

James William Pitts, Jr. appeals his conviction and sentence on two counts of vehicular homicide, three counts of reckless driving, and one count each of driving under the influence, attempting to elude an officer, speeding, driving with a suspended license, and driving with an expired license tag. He contends the evidence was not sufficient to support the verdict.

Construing the evidence in favor of the verdict shows that Georgia State Patrol Officer Warren clocked Pitts with a radar gun driving 76 mph, which exceeded the posted speed limit, through an intersection on Georgia Highway 120 in Paulding County. Warren pursued Pitts and activated his blue lights and wig-wag headlights in an effort to initiate a traffic stop. When he did, the videocamera in his patrol car also turned on, and the entire sequence was recorded and later played for the jury at trial.

Warren first turned around at the intersection and then had to catch up to Pitts. He was “closing in” on Pitts just prior to another intersection at Bobo Road, a two-lane road. Pitts turned right onto Bobo Road. After Warren made the turn in pursuit, he caught up to Pitts and turned on his siren. Pitts did not stop, but instead accelerated to pass another car even though there was a double yellow line. Pitts briefly tapped his brakes then accelerated as he ran through a four-way-stop intersection even though another car was stopped there. Pitts then turned right at another intersection onto Tabor Road. At the first sharp curve in that road, Pitts drove almost completely in the wrong lane.

In the following straight section of the road, with which Warren was well familiar, Warren decided to use the Pursuit Intervention Technique (PIT) in an attempt to stop Pitts before he reached upcoming intersections. Warren had been trained to make the PIT maneuver, he chose to use it to protect the public on the roadway, and he performed the maneuver in accordance with his training. He pulled alongside of Pitts intending to tap Pitts’ truck on the right rear quarter causing it to spin out of control. At that moment, Pitts’ truck actually moved toward Warren’s patrol car thereby inadvertently initiating the PIT maneuver. Pitts’ truck flipped and wrecked, and Warren stopped and returned to the site. The entire chase took only one minute and forty-nine seconds.

Tragically, unbeknownst to Warren until that time, Pitts’ eight-week-old daughter was a passenger in the truck. She was seriously injured in the accident and later died.

Analysis of Pitts’ urine indicated the presence of both methamphetamine and marijuana. Evidence was also presented that Pitts’ driver’s license was suspended and that his license tag had expired.

1. Pitts contends that the evidence was insufficient to support a conviction of vehicular homicide because it showed that Warren caused the child’s death by executing the PIT maneuver.

In order to be convicted of vehicular homicide under OCGA § 40-6-393, the conduct of the defendant must have caused the death. See Williams v. State, 165 Ga. App. 831, 832 (302 SE2d 736) (1983). See also Hill v. State, 250 Ga. App. 9, 12-13 (2) (550 SE2d 422) (2001). This requires showing that “the defendant’s conduct was the ‘legal’ or ‘proximate’ cause, as well as the cause in fact, of the death.” Miller v. State, 236 Ga. App. 825, 828 (2) (513 SE2d 27) (1999).

An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

Decided January 18, 2002.

Teddy L. Henley, for appellant.

(Punctuation omitted.) Johnson v. State, 170 Ga. App. 433, 434 (1) (317 SE2d 213) (1984). It is not sufficient to show that the defendant only contributed to the cause of the injury. See, e.g., Edmonds v. State, 98 Ga. App. 827 (1) (107 SE2d 286) (1959).

The trial court clearly charged the jury that in order to convict, they had to find that Pitts’ actions were the “direct and proximate cause of the death . . .” and that they were obligated to acquit Pitts if they found that Warren’s actions and not Pitts’ caused the victim’s death. The jury resolved this factual question against Pitts. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Pitts’ actions of eluding an officer at high speed in a reckless manner with a baby in his truck played a substantial part in bringing about the child’s death and that the death was a reasonably probable consequence of Pitts’ actions.

2. Pitts also asserts that he was innocent because he was speeding to get medical attention for his child and that he did not see Warren trying to pull him over. But Pitts gave conflicting testimony about where he was going, why he was in a hurry, and why he was driving fast and recklessly. The jury also saw the tape of the chase, which reveals how much opportunity Pitts had to see Warren behind him and to stop. The jury determines credibility and resolves conflicts in the evidence; this Court does not weigh the evidence but only determines its legal sufficiency. Battles v. State, 205 Ga. App. 510, 511-512 (422 SE2d 672) (1992). We find no error.

3. Pitts asserts that because tests of his blood did not reveal the presence of any controlled substance, he cannot be convicted of driving under the influence of drugs under OCGA § 40-6-391 (a) (6). However, that Code section prohibits driving with any amount of marijuana or controlled substance in the blood or urine, and Pitts had both marijuana and methamphetamine, a controlled substance, in his urine.

The evidence was sufficient to support all the charges for which Pitts was convicted.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.

James R. Osborne, District Attorney, Laura L. Herrin, Assistant District Attorney, for appellee.


author: Johnson, Presiding Judge.

text:
    A01A2259.
    JONES v. THE STATE.
    (559 SE2d 119)
   Johnson, Presiding Judge.

A jury found Marlon Jones guilty of possession of marijuana with intent to distribute. Jones challenges the sufficiency of the evidence supporting his conviction and the trial court’s admission of evidence of a similar transaction. Because the challenges are without merit, we affirm Jones’ conviction.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Jones was arrested at his home during the execution of a search warrant. Peggy Sherman, Gary Davis, Edgar Merriweather and Jones were in the house at the time the search warrant was executed. During the search, officers found a Mountain Dew box containing four plastic sandwich bags of marijuana, each weighing about one-quarter pound, in a kitchen cabinet. Marijuana residue was found in a one-gallon plastic bag in the bathroom of the house and in a one-gallon plastic bag next to the television in the front room. In addition, a black book bag located in the hallway outside the bathroom contained two separate one-gallon plastic bags of marijuana, each containing about one-half pound, as well as a single, one-ounce sandwich bag of marijuana. A digital scale was found in a box of children’s toys in the kitchen, and plastic sandwich bags were found on a chair near the kitchen cabinet containing the marijuana and in Jones’ bedroom. Marijuana and a large sum of cash were also found on Merriweather’s person.

Testimony at trial also established that the one-gallon bags containing marijuana and marijuana residue were all similar to each other and to the one-gallon bags used by Jones in his prior possession of marijuana with intent to distribute case, in which Merriweather was also a co-defendant.

Merriweather was tried as a co-defendant and entered a guilty plea. He admitted the drugs found in the home that night were his and testified that Jones did not know about the drugs. According to Merriweather, he used a key previously given to him by Sherman and placed drugs in the kitchen cabinet earlier that day. Moreover, Merriweather’s fingerprints were found on the one-gallon bag in the bathroom, and Jones’ prints were not found on any exhibit. Merriweather also testified, however, that when he put the marijuana in the house, it was in one-gallon bags. When found, half the marijuana had been broken into quarter-pound bags, and Merriweather testified that he was on the phone and waiting for a ride from the time he returned to the house at 12:00 a.m. until the drug raid at 1:30 a.m.

Sherman testified that she did not see any marijuana in the kitchen, by the television, in the hall or on the floor of the bathroom when she and Davis went to bed at 8:00 p.m.

Jones argues that the evidence was insufficient to support his conviction. He correctly points out that when a defendant is tried on circumstantial evidence, the evidence must exclude every reasonable hypothesis except that of guilt of the accused. However, to support the jury’s verdict, “ [circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” Moreover, the question of whether the circumstances in a case are sufficient to exclude every reasonable hypothesis favorable to the accused is generally for the jury to decide. And, only where the conclusions based on the evidence are insufficient as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

[T]his of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors. After having heard the witnesses and having observed them testify, they are more capable of judging the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.

In the present case, it is apparent that the jury concluded that Merriweather’s testimony was not believable or did not present a reasonable hypothesis which the state would have been required to exclude. The jury was not required to believe Merriweather’s testimony that the marijuana was his. It is not our job as an appellate court to speculate what evidence the jury chose to believe. The fact is, there was sufficient evidence from which a reasonable jury could find that Jones was guilty beyond a reasonable doubt of possessing marijuana with intent to distribute. Accordingly, this enumeration is without merit.

Decided January 18, 2002

Gregory A. Voyles, for appellant.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellee.

2. Jones contends the trial court erred in admitting his prior conviction for possession of marijuana with intent to distribute. According to Jones, the prior conviction was not similar to his current charge for possession of marijuana with intent to distribute because the prior offense occurred in a different county in Georgia and resulted from an arrest on the interstate. We find this argument unavailing.

On appeal, we uphold a trial court’s decision to admit evidence unless that decision is clearly erroneous. Here, the trial court found that evidence of Jones’ prior possession of marijuana with intent to distribute conviction was admissible as it related to Jones’ course of conduct, bent of mind and intent. Thus, the trial court admitted the evidence of the similar transaction for proper purposes.

As for the degree of similarity between the two offenses, we note that the similar transaction need not be identical to the charged offense to be admissible. On appeal, we focus on the similarities between the offenses rather than the differences. Here, Jones was discovered with Merriweather in both offenses, the amount of marijuana in both offenses was sufficient to constitute the offense of possession with intent to distribute and the packaging of the marijuana in both offenses was similar and unusual. Where the main issue is whether Jones knew about the marijuana in his house, evidence that he had previously pled guilty to possessing marijuana with intent to distribute was clearly relevant in establishing his bent of mind. Accordingly, the trial court did not err in admitting evidence of the similar transaction for this purpose.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 24-4-6; Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994).

        Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).

        Gresham v. State, 246 Ga. App. 705, 707 (2) (541 SE2d 679) (2000).

        Webb v. State, 249 Ga. App. 214, 216 (1) (547 SE2d 767) (2001).

       (Footnote omitted.) Gresham, supra at 707-708 (2).

       See Crenshaw v. State, 248 Ga. App. 505, 507 (1) (546 SE2d 890) (2001); Tran v. State, 246 Ga. App. 153, 159 (6) (539 SE2d 862) (2000).

        Gresham, supra at 708 (2).

        Jackson v. State, 251 Ga. App. 781, 782 (1) (555 SE2d 136) (2001).

       See id.

        Crenshaw, supra at 508-509 (3).

       See id. at 509.


text:
    A01A2311.
    NORRED v. THE STATE.
    (559 SE2d 125)
    Decided January 18, 2002.

      Daniel, Hadden & Alford, Ajalon E. Daniel III, Peter T. Alford, for appellant.

      Peter J. Skandalakis, District Attorney, Lynda S. Caldwell, Assistant District Attorney, for appellee.
   Pope, Presiding Judge.

Tony Lamar Norred appeals from the denial of his motion to suppress a statement he made at the time of his arrest for driving under the influence. We affirm.

In reviewing the denial of Norred’s motion to suppress, we must construe the evidence in the light most favorable to uphold the trial court’s findings and judgments. Bragg v. State, 249 Ga. App. 430 (1) (548 SE2d 121) (2001). Viewed in that light, the evidence shows that a City of LaGrange police officer placed Norred under arrest for DUI after administering a breath test and a horizontal gaze nystagmus test. The officer then read Norred the implied consent warning. The warning ended with the question, ‘Will you submit to the State-administered test of your blood and urine under the implied consent law?” In response, Norred stated, “You got me for DUI. I’m not going to take the blood and urine tests.”

1. Norred contends that this statement should have been suppressed because the officer failed to give him a Miranda warning at the time of his arrest. But Miranda warnings are not constitutionally necessary before an officer may request a blood or urine test under the implied consent laws. State v. Coe, 243 Ga. App. 232, 234 (2) (533 SE2d 104) (2000); State v. Moses, 237 Ga. App. 764 (516 SE2d 807) (1999). And to the extent that Norred’s statement went beyond a mere response to the officer’s question regarding his consent to further testing, such statement was voluntary and not in response to custodial interrogation. Thus, the protections of Miranda were not implicated. See Johns v. State, 274 Ga. 23, 24 (2) (549 SE2d 68) (2001).

2. In light of our holding in Division 1, we find no merit to Nor-red’s argument that the trial court erred in failing to give his proposed jury charge with regard to the Miranda warning.

Judgment affirmed.

Blackburn, C. J., and Mikell, J., concur.


author: Ellington, Judge.

text:
    A01A2367.
    SANDERS v. THE STATE.
    (559 SE2d 122)
   Ellington, Judge.

A Cobb County jury convicted Richard Eugene Sanders of aggravated assault, OCGA § 16-5-21, and two counts of possession of a firearm by a convicted felon, OCGA § 16-11-131. Following the denial of his motion for new trial, Sanders appeals, contending he was denied effective assistance of counsel. Finding no error, we affirm.

In order to establish ineffectiveness of trial counsel under Strickland, v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Sanders] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

(Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations and punctuation omitted.) Clark v. State, 239 Ga. App. 245, 248 (5) (520 SE2d 245) (1999).

Based on the police investigation in this case, the State expected to present evidence of the following events. At the time of the shooting, Sanders was living apart from his wife. On September 14, 1999, Sanders picked up his two minor children from his wife’s residence for a day of visitation and returned them to the residence that evening. Sanders and his wife stood outside for several minutes arguing. The victim, the wife’s “boyfriend” who had been living in the residence for about a month, became concerned about the “altercation” and pulled Sanders’ wife into the residence. Sanders pulled a handgun and shot the victim.

In consultation with his counsel before trial, Sanders denied any involvement in the shooting and said his mother and grandmother would serve as alibi witnesses. Sanders’ wife exercised the marital privilege and refused to testify. At trial, the victim surprised the prosecutor by initially refusing to identify Sanders as the person who shot him. The victim testified that, on the evening of the shooting, he had walked or rushed toward Sanders and that Sanders had backed away several steps until he (Sanders) tripped and fell back, causing the gun to go off. The victim further testified that he had displayed a handgun to Sanders in a threatening way during many previous encounters.

Sanders now contends his trial counsel’s performance in preparing for trial was deficient in the following particulars: Sanders’ trial counsel failed to interview the victim; failed to interview either of the investigating officers; failed to resolve discrepancies in the police report as to the victim’s race and age; failed to visit the crime scene; had little communication before trial with Sanders’ wife; failed to canvass the neighborhood to determine if there were additional witnesses; attempted to interpose the defenses of self-defense and justification without doing adequate investigation; and failed to present evidence that Sanders’ wife was the shooter.

At the motion for new trial, Sanders’ trial counsel testified that he prepared extensively for trial, including interviewing Sanders and the alibi witnesses Sanders identified. He interviewed Sanders’ wife to the limited extent she would cooperate, reviewed her pretrial statements, and investigated whether she had a criminal record. He interviewed Sanders’ stepdaughter who witnessed some of the events. Although he did not interview the investigating officers, he reviewed their reports. He planned to use discrepancies in the police reports to attack the officers’ credibility. He did not visit the crime scene, but he had access to the photographs taken by investigators. He did not interview the victim because the victim, a long-haul trucker, was seldom in town. However, he reviewed the victim’s pretrial statements. Sanders failed to show his trial counsel did not adequately investigate the case and prepare for trial. Capers v. State, 220 Ga. App. 869, 873 (1) (h) (470 SE2d 887) (1996).

In addition, while counsel might have learned of the victim’s accident scenario if he had interviewed him before trial, Sanders had insisted that he was not present at the time of the shooting and opted to present an alibi defense. See Callaway, v. State, 247 Ga. App. 310, 320 (6) (a) (542 SE2d 596) (2000) (“A client cannot simply withhold relevant information within his knowledge, of which his attorney would have no reason to be aware, and then claim that the attorney was ineffective for failing to discover such information on his own.”). Finally, counsel’s decisions with regard to the choice of defenses and theories to be advanced at trial, even if unwise, are deemed matters of tactic and strategy; as a matter of law, strategic decisions do not amount to ineffective assistance of counsel. Swint v. State, 250 Ga. App. 573-574 (552 SE2d 504) (2001). The trial court’s determination that trial counsel’s performance was constitutionally adequate was not clearly erroneous. Bogan v. State, 249 Ga. App. 242, 244 (2) (547 SE2d 326) (2001).

Decided January 18, 2002.

Michael R. Schumacher, for appellant.

Patrick H. Head, District Attorney, Irvan A. Pearlberg, Amelia G. Pray, Assistant District Attorneys, for appellee.

Furthermore, Sanders failed to carry his burden of showing prejudice from counsel’s alleged deficiencies. “With respect to adequate investigation, [Sanders] introduced no evidence at the hearing as to what further investigation by counsel would have revealed,” and, indeed, concedes that he has been unable to identify any helpful evidence which could have been revealed by additional investigation. Sewell v. State, 229 Ga. App. 685, 689 (1) (d) (494 SE2d 512) (1997). “Absent a proffer, defendant cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” (Citation and punctuation omitted.) Id. Therefore, the trial court’s determination that trial counsel’s alleged deficiencies did not prejudice his defense was not clearly erroneous. Eackles v. State, 270 Ga. 558, 561 (2) (d) (512 SE2d 635) (1999).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


author: Miller, Judge.

text:
    A01A1968.
    WATKINS v. THE STATE.
    (559 SE2d 133)
   Miller, Judge.

Following a jury trial, James Watkins was convicted of possession of cocaine with intent to distribute. On appeal he asserts several enumerations of error, including insufficiency of the evidence to sustain his conviction, the trial court allowing the State to recall a witness, and the judge’s failure to recuse himself due to alleged bias. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that an undercover police officer was monitoring suspected drug activity at a gas station in an area known for its high amount of drug activity. The officer observed two men approach two others standing at the corner of the station. The men who approached spoke with the other two men for a few moments and then quickly walked away. The two men who had been standing at the comer then looked around the gas station and crossed the street, moving toward the undercover officer’s car. As they approached the car, they pulled sweater hoods over their heads. The undercover officer rolled down his window and told the men that he was waiting for someone, and the two men walked away.

Suspecting possible drug activity, the undercover officer contacted a uniformed officer, gave a description of the two men who approached his car, and told the officer to do a “stop and talk” on the two men. The uniformed officer arrived within a few seconds and drove up behind two men who matched the description given by the undercover officer. As he drove closer, the officer saw something white fly to the right of the two men. He stopped the two men and discovered that the thrown object was a plastic bag containing thirty-four hits of crack cocaine. Although it had been raining that day and the ground was wet, the plastic bag containing the crack was dry as if it had just been thrown on the ground. The officer arrested the two men, Watkins and Alfred Gossett, and at the time of the arrest found that Watkins was carrying $272 in cash, mostly in small bills.

Gossett pled guilty, and Watkins went to trial. The State indicated that Gossett was prepared to testify regarding Watkins’s plans to sell the cocaine. However, when the State failed to subpoena him, Gossett did not appear at trial. Outside of the presence of the jury, the judge chastised the State for failing to subpoena their key witness and also criticized the State for failing to discuss the money that was found on Watkins or the circumstances surrounding his arrest during the original testimony of the arresting officer. The State acknowledged its mistake in failing to subpoena Gossett and farther acknowledged its oversight in failing to ask the arresting officer about the money that Watkins was carrying at the time of his arrest. The judge then counseled the State to find the arresting officer. The judge stated that in the interest of fairness and justice, he would allow the State to recall the arresting officer to correct its oversight, and that if defense counsel overlooked something, he would do the same for him. The judge further stated that he has more often accorded such leeway to defense attorneys than the State. Defense counsel objected, claiming that the court “tipped off” the State regarding its need to recall the arresting officer.

After the jury returned, the State indicated that Gossett was not there to testify, and the judge said that the prosecutor apparently did not know where Gossett was. Defense counsel did not object to the judge’s statement.

The arresting officer testified as to his experience in dealing with drug crimes and that the denominations of money found on Watkins were consistent with drug sales. He also testified as to the amounts of crack cocaine that, in his experience, would indicate quantities for personal use or for distribution and that the amount at issue here would more likely be for distribution. Defense counsel objected, stating that no foundation had been laid for the officer to express such an opinion, but did not object on the basis that the officer was testifying as to an ultimate issue to be decided by the jury.

After the State rested, defense counsel moved for a directed verdict. He did not object to the trial judge ruling on this motion or question the judge’s objectivity, but in fact requested that the judge rule on it. The judge denied the motion.

The judge gave pattern jury instructions on direct and circumstantial evidence, including an instruction that exhibits constituted direct evidence. To clarify the distinction between direct and circumstantial evidence, the judge described direct evidence of a person being at the beach as someone testifying that they saw the person at the beach versus someone testifying that they saw the person’s footprints in the sand. The judge also charged the jury on parties to a crime. Defense counsel claimed that he was not informed that the judge would give a charge on parties to a crime, but the judge stated on the record that he had informed defense counsel at the charge conference that the charge would be given. The charge conference was not recorded.

During deliberations, the jury submitted written questions to the judge, and he recharged the jury several times on actual, constructive, sole, and joint possession, on the State’s burden of proof, and on parties to a crime. The judge also allowed the jury to consider Gossett’s guilty plea during deliberations, as it went out with the jury without any objection from defense counsel. The jury returned a guilty verdict against Watkins for possession of cocaine with intent to distribute.

1. Watkins contends that the trial judge erred by assisting the State when he informed the State that it needed to recall the arresting officer. However, the trial judge may interfere with the conduct of counsel in an effort to require counsel to present properly to the jury admissible evidence on the relevant legal issues. That is precisely what the judge was doing here. His helpful comments to the State, outside the presence of the jury, did not indicate any lack of fairness.

Moreover, a judge has broad discretion to allow the recall of a witness, even one that has been excused. The arresting officer here had not yet been excused and had just testified. We find no abuse of discretion in the court allowing the recall of this witness.

2. Watkins claims that the trial judge erred by failing to recuse himself due to alleged bias prior to ruling on Watkins’s motion for directed verdict. He argues that the judge was biased because he informed the State that it needed to recall the arresting officer. However, Watkins never moved to recuse the judge, nor did he object to the judge ruling on his motion for directed verdict. He has therefore failed to preserve this issue for appellate review.

3. Notwithstanding his argument that the trial judge should have recused himself prior to ruling on his motion for directed verdict, Watkins contends that the trial court erred by denying his motion for directed verdict. We disagree.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

Based on the evidence that the police observed Watkins and Gos-sett behaving consistent with drug sale activity, that the cocaine was thrown after the police approached Watkins and Gossett, and that Watkins was the one with the money, the jury could have concluded that Watkins possessed the cocaine along with Gossett and knew about the cocaine. While it is true that mere possession of cocaine will not support a conviction for possession with intent to distribute, additional evidence such as possession of certain amounts of money and expert testimony that the amount of cocaine possessed was consistent with amounts for sale rather than personal use may support proof of intent to distribute. Here, the arresting officer testified that based on his experience with drug enforcement, the amount of money found on Watkins was consistent with drug sales and that the amount of cocaine involved was more likely to be used for distribution rather than personal use. The evidence was sufficient for the jury to exclude reasonable hypotheses of innocence and to find Watkins guilty of possession of cocaine with intent to distribute.

4. Watkins further argues that the trial court erred by allowing the jury to consider Gossett’s guilty plea during its deliberations. However, Watkins did not object when the guilty plea was sent back with the jury and has therefore failed to preserve this issue for appellate review.

5. Watkins also asserts that the arresting officer inappropriately testified as to the ultimate issue to be decided by the jury. More specifically, he argues that the officer should not have been allowed to testify that the amount of crack at issue in this case was more likely to be used for distribution than personal use. However, Watkins did not object to the officer’s testimony on this basis at the trial court level and has therefore waived this issue on appeal.

6. Watkins urges that the trial court erred by giving an instruction that direct evidence included trial exhibits. He argues that because the cocaine seized in this case was the only exhibit, the instruction may have misled the jury into believing that the cocaine was to be considered as direct evidence of his guilt. We disagree.

The charge on direct evidence was not erroneous. In addition, it was given in the context of an instruction on circumstantial evidence. “Viewing the jury instructions as a whole, we do not believe that the jury could have construed the charge to mean that all exhibits were to be considered direct evidence pointing immediately to the question of guilt.”

7. Watkins contends that the judge improperly injected his opinion about Watkins’s guilt by recharging the jury on knowledge, parties to a crime, and actual, sole, and joint possession, when he also recharged them on constructive possession. More specifically, he urges that because the jury initially requested a recharge only on constructive possession, the repeated recharging on these other issues placed more emphasis on Watkins’s guilt. We disagree.

The record reveals that in direct response to several questions from the jury, the judge recharged the jury and also reminded the jurors to keep in mind the other charges that had previously been given, including those on the State’s burden of proof and the presumption of innocence. Prior to recharging the jury in response to their specific requests, the judge gave proper charges on reasonable doubt, the presumption of innocence, equal opportunity to possess, and mere presence. The judge also instructed the jurors that nothing he did during the trial was intended to indicate any opinion he had about the case. Looking to the charge as a whole, we conclude that the trial judge did not express an opinion about Watkins’s guilt or innocence.

Decided January 22, 2002

Benjamin A. Davis, Jr., for appellant.

J. Tom Morgan, District Attorney, Jennifer M. Daniels, Barbara B. Conroy, Assistant District Attorneys, for appellee.

8. Watkins farther argues that the trial judge did not inform him of what jury charges would be given at trial. However, the record reveals that the trial judge reminded defense counsel that he had informed him of what charges would be given at the charge conference. The charge conference was not recorded, and Watkins has therefore failed to affirmatively show any error from the record.

9. Watkins urges that the trial judge erred by commenting in front of the jury that the State did not know the whereabouts of Gos-sett, one of their key witnesses. Watkins failed to object to this comment from the judge and has therefore presented nothing for this court to review.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Dyke v. State, 232 Ga. 817, 825 (III) (209 SE2d 166) (1974).

       See Johnson v. State, 126 Ga. App. 93, 96 (3) (189 SE2d 900) (1972).

        Lynn v. State, 251 Ga. App. 155, 157 (2) (a) (553 SE2d 836) (2001).

       See id.

       See Johnson v. State, 250 Ga. App. 245, 246-247 (1) (550 SE2d 113) (2001).

        Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001).

        Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

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

       See Price v. State, 240 Ga. App. 37, 39 (1) (522 SE2d 543) (1999); Smith v. State, 235 Ga. App. 223, 225-226 (510 SE2d 295) (1998).

       See Burse v. State, 232 Ga. App. 729, 730 (1) (503 SE2d 638) (1998).

       See Bostick v. Ricketts, 236 Ga. 304, 305-306 (1) (223 SE2d 686) (1976); Flowers v. State, 159 Ga. App. 516, 517 (284 SE2d 32) (1981).

        Huntley v. State, 271 Ga. 227, 230 (5) (518 SE2d 890) (1999).

        Hampton v. State, 272 Ga. 284, 287-288 (8) (527 SE2d 872) (2000).

      . (Citation omitted.) Id.

       See, e.g., Reid v. State, 232 Ga. App. 313, 314-315 (1) (501 SE2d 842) (1998).

        Stephenson v. State, 218 Ga. App. 613, 615 (2) (462 SE2d 767) (1995).

        Sconyers v. Williams, 198 Ga. App. 673, 674 (2) (402 SE2d 775) (1991).


text:
    A01A2157.
    ARNOLD v. THE STATE.
    (559 SE2d 131)
   Miller, Judge.

Jessie Arnold was convicted of aggravated assault, rape, and several other offenses. On appeal he contends that (1) his trial counsel was ineffective, (2) the trial court erred by failing to provide him a lawyer outside of the Houston County Public Defender’s office, and (3) the trial court erred by failing to disqualify the Houston County District Attorney’s office from prosecuting this case. We discern no error and affirm.

For the first two months of this case, Arnold was represented by Gerald Henderson of the Houston County Public Defender’s office. Arnold was not satisfied with the representation and filed a complaint against Henderson with the State Bar. Arnold also filed a complaint against Henderson’s supervisor, although the supervisor had never represented Arnold. Arnold then moved for the court to allow him to proceed pro se in this case.

The trial judge strongly advised Arnold that he should not represent himself and warned him at length about the possible ramifications of proceeding pro se. Henderson also advised Arnold that he should not represent himself. The judge further warned Arnold that if he chose to proceed pro se, he may not be able to get an attorney later on if he changed his mind about representing himself. Arnold maintained that he knew what he was doing and insisted on representing himself. The judge then issued an order allowing Henderson to withdraw from the case so that Arnold could proceed pro se.

Arnold represented himself for the next five months, but two weeks before trial the court appointed new counsel from the Houston County Public Defender’s office. The new counsel turned out to be Henderson’s supervisor, the one against whom Arnold had previously filed the State Bar complaint. Arnold’s new counsel informed the court about the State Bar complaint and explained that she had discussed the issue with Arnold and had no problem representing him. Arnold also informed the court that he had no problem being represented by this new attorney.

Two days before Arnold’s trial, Henderson left the Houston County Public Defender’s office and went to work for the Houston County District Attorney’s office. Henderson did not discuss his prior representation of Arnold with anyone at the district attorney’s office. He worked in the juvenile division of the district attorney’s office and had no further involvement in Arnold’s case.

Following Arnold’s convictions, a third attorney for Arnold filed a motion for new trial in which he argued the same grounds that he asserts on appeal. The trial court denied the motion.

1. Arnold argues that his trial counsel was ineffective because she had only two weeks to prepare for trial. However, since Arnold’s own actions, and not those of his attorney, led to any alleged ineffective assistance here, we find this contention to be without merit.

To prove ineffective assistance, Arnold was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Evidence supported the trial court’s finding that Arnold did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

Despite warnings from his original counsel and the trial judge, Arnold insisted on representing himself. He was also warned that he might not be able to obtain new counsel prior to trial. Had Arnold not insisted on representing himself and then reversing course ten days prior to trial, his trial counsel would have had more time to prepare. Any alleged ineffective assistance in this case was not the fault of the attorney, but Arnold, and his contention of ineffective assistance is therefore without merit.

2. Arnold further contends that the trial court erred by appointing new counsel against whom Arnold had previously filed a State Bar complaint. We disagree.

“A party cannot submit to a ruling or acquiesce to it... , then complain about the ruling on appeal.” Arnold filed the State Bar complaint against his new counsel and then consented to her representing him. Any alleged error in the trial court’s appointment of this counsel was induced by Arnold’s own actions, and he will not be heard to complain of such error here.

3. Arnold further contends that the trial court erred by failing to disqualify the Houston County District Attorney’s office from prosecuting this case in light of Henderson’s move to that office two days before Arnold’s trial. We disagree.

A conflict of interest that would warrant the disqualification of the prosecutor’s office may arise where the prosecutor has previously represented the defendant with respect to the charged offense. However, unlike in the private sector where no partner or associate of a firm may represent a client with whom any of the other attorneys have a conflict of interest, an entire government office is not necessarily disqualified from a case due to the conflict of an individual attorney. Vicarious disqualification of a government department is neither necessary nor wise, and we instead look to the individual attorney to screen for any direct or indirect participation in the case. Since the evidence in this case reveals that Henderson did not participate in this case in any way following his departure from the public defender’s office, the trial court did not err by allowing the Houston County District Attorney’s office to prosecute the case.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

Decided January 22, 2002.

Grantham & Peterson, William M. Peterson, for appellant.

Kelly R. Burke, District Attorney, for appellee.

        Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

       See, e.g., Gordon v. State, 252 Ga. App. 133, 135-137 (2) (555 SE2d 793) (2001) (refusing to find ineffective assistance based on defendant’s own induced error); Wilson v. State, 196 Ga. App. 787, 788 (3) (397 SE2d 59) (1990).

       (Citation omitted.) Boone v. State, 229 Ga. App. 379, 381 (4) (494 SE2d 100) (1997).

       See Hathaway v. State, 241 Ga. App. 790 (1) (527 SE2d 894) (2000) (“One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.”) (punctuation and footnote omitted).

        Billings v. State, 212 Ga. App. 125, 128-129 (4) (441 SE2d 262) (1994).

       Id. at 129 (4).

       Id. at 128-129 (4).

       Id. at 129 (4).

       Id.


text:
    A01A2300.
    PETERSON v. THE STATE.
    (559 SE2d 126)
   Miller, Judge.

Following a jury trial, Walter Peterson was convicted of statutory rape, aggravated sexual battery, and child molestation. On appeal he contends that (1) the evidence was insufficient to sustain the convictions, (2) the trial court erred by admitting evidence of prior sexual contact between him and the victim, (3) the trial court erred by failing to give a curative instruction following objectionable testimony from one of the State’s expert witnesses, (4) the trial court erred by allowing the jury to take a videotaped interview of the victim into the jury room during deliberations, (5) his trial counsel was ineffective, and (6) the trial court erred by failing to grant his motion for a new trial. We discern no reversible error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that on May 24, 1996, the victim, a 12-year-old child, was at home alone with her mother’s boyfriend, Peterson. During the evening, Peterson unbuttoned the victim’s pants and felt on her body. He then dragged her across a couch and to a chair, removed her pants, and started kissing and feeling on her body and chest. Peterson then carried the victim to her room, removed his pants in another room, and came back to the victim’s room, where he then inserted his finger into her vagina and anus. Over the victim’s objections, Peterson attempted to have anal intercourse with the victim and then placed his penis into the victim’s vagina.

The victim told several others about the incident with Peterson, including her mother, father, two friends, a friend’s grandmother, the police, counselors, a doctor, and a psychotherapist. The doctor’s examination of the victim a few days after the incident revealed that the victim had been sexually active. The psychotherapist with whom the victim spoke conducted a videotaped interview with the victim, which was played for the jury. The victim also testified about the incident with Peterson as well as 17 to 20 prior incidents of sexual contact between them.

Prior to trial Peterson’s attorney identified an expert witness who was expected to testify regarding the interview procedures used by the psychotherapist who interviewed the victim. The State identified an additional witness as well, but neither the State nor the defense identified these witnesses in a timely manner, and the trial court therefore decided to exclude both witnesses from testifying. Although the defense expert was excluded, Peterson’s counsel cross-examined the psychotherapist at length regarding her interview techniques.

At trial a social worker who counseled the victim testified that the victim had been brought to her “because [the victim] had been sexually abused” and later testified as to what she knew about “victims of child abuse. . . .” Peterson’s counsel’s objections to both statements were sustained, but counsel did not request a curative instruction with respect to the statements until after the witness had already been excused and the jury had been removed for a break.

At the end of the trial, and over objection from Peterson’s counsel, the court allowed the jury to take the victim’s videotaped interview into the jury room with them during deliberations. The jury returned a verdict of guilty against Peterson on all of the charges against him.

Peterson obtained new counsel and moved for a new trial. In his motion for new trial, Peterson claimed that his trial counsel was ineffective and also asserted the other grounds that he urges in this appeal. Peterson testified at the new trial hearing that his trial counsel failed to call certain defense witnesses who could have helped his case. He also claimed that his counsel was ineffective for failing to identify the potential defense expert witness in a timely manner. Peterson’s trial counsel did not recall having any discussion with Peterson about calling the defense witnesses who Peterson claimed would have been helpful to him, and Peterson admitted that he never objected to the fact that his trial counsel did not call these witnesses. The trial court denied the motion for new trial.

1. Peterson contends that the evidence was insufficient to sustain his convictions. More specifically, he argues that the primary evidence against him was the testimony of the victim, supported only by other witnesses who assumed that what, the victim told them was true, and that this was insufficient to sustain his convictions. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

“A person commits the offense of statutory rape when he or she engages in sexual intercourse with any person under the age of 16 years and not his or her spouse. . . .” In addition, one commits aggravated sexual battery “when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” Finally, “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” -

The victim testified about the sexual nature of the incident with Peterson that occurred when she was 12 years old. Contrary to Peterson’s claim that this was the only evidence from which one could conclude that the victim had been abused, the victim’s story was corroborated by medical evidence that the victim had been sexually active, testimony from her parents, police, and friends, and evidence from a clinical social worker who testified as to the symptoms the victim displayed that suggested that she had been abused. In addition, a finger qualifies as a “foreign object” that, when inserted in the sexual organ or anus of another without consent, as was done here, would justify a conviction for aggravated sexual battery. Ample evidence sustained the convictions.

2. Peterson argues that the testimony regarding prior incidents of sexual contact between Peterson and the victim should have been excluded because the trial court did not explicitly state that the probative value of these prior incidents outweighed their prejudicial impact. We disagree.

In cases involving sexual abuse, similar transaction evidence can be admissible to show similarity, lustful intent, and bent of mind of the accused and to corroborate the victim’s testimony. The ruling of the trial court regarding the admissibility of these transactions will not be disturbed absent an abuse of discretion. “Moreover, the exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” An extensive hearing was held in accordance with Uniform Superior Court Rule 31.3 (B) regarding the admission of these similar transactions, and the trial judge specifically instructed the jury as to the limited purpose for which these similar transactions could be considered. Inherent in the trial court’s ruling is the notion that the relevance of these prior incidents outweighed their prejudicial nature. We find no abuse of discretion here.

3. Peterson further argues that the trial court erred by failing to give a curative instruction following the objectionable testimony given by one of the State’s expert witnesses. However, “[i]t is well-settled that a sustained objection to an improper answer cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions.” Since Peterson did not request a curative instruction in a timely manner, he has not presented any basis for a finding of reversible error here.

4. Peterson urges that the trial court erred by allowing the jury to take the victim’s videotaped interview into the jury room during deliberations. He does not argue that the jury was not entitled to review the video in open court, but only that they should not have been allowed to take the videotape into the jury room during deliberations. We hold that to the extent that the trial court may have erred by allowing the jury to take the tape into the jury room, such error was harmless because, as shown in Division 1, the evidence was otherwise overwhelming to sustain the convictions even without the videotaped interview.

5. Peterson claims that his trial counsel was ineffective because (a) he failed to identify a potential defense expert in a timely manner, and (b) he failed to call additional witnesses who could have been useful in Peterson’s defense. We disagree.

To prove ineffective assistance, Peterson was required to show that counsel’s performance was deficient and that this deficient performance prejudiced his defense. The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Evidence supported the trial court’s finding that Peterson did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

(a) Peterson’s counsel testified that the excluded defense expert was expected to testify regarding interview techniques that could show suggestiveness on the part of the psychotherapist who interviewed the victim. Although the expert was excluded, Peterson’s counsel conducted a thorough cross-examination of the psychotherapist regarding her interview techniques, which elicited the very same information that Peterson expected to introduce through his expert. Moreover, the jury was allowed to view the videotape of the victim’s interview and evaluate for themselves any hints of suggestiveness or bias. Even if counsel's deficient performance led to the exclusion of the expert, we hold that the evidence supports a finding that Peterson failed to meet his burden of showing that this alleged deficient performance affected the outcome at trial.

Decided January 22, 2002.

Carla J. Friend, for appellant.

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

(b) Although Peterson consulted with his trial attorney about various witnesses, Peterson admitted that he did not object to his trial counsel’s failure to call certain defense witnesses who Peterson believed would have helped his case. His trial'counsel did not even recall having any specific conversations about calling these witnesses. Strategic decisions regarding what witnesses to call after consultation with the client are virtually unchallengeable and do not amount to ineffective assistance. Moreover, the record does not reveal that Peterson even communicated the alleged importance of calling these witnesses to his attorney. We hold that the trial court did not clearly err in concluding that Peterson failed to meet his burden of showing ineffective assistance here.

6. Based on our holdings in Divisions 1 through 5, we find Peterson’s contention that the trial court erred by denying his motion for new trial to be without merit.

Judgment affirmed.

Andrews, P. J., and Eldridge, J, concur.

        Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

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

       OCGA § 16-6-3 (a).

       OCGA § 16-6-22.2 (b).

       OCGA § 16-6-4 (a).

        Burke v. State, 208 Ga. App. 446, 447 (1) (430 SE2d 816) (1993).

        Eggleston v. State, 247 Ga. App. 540, 541 (1) (544 SE2d 722) (2001).

       Id.

       (Citations and punctuation omitted.) Boynton v. State, 197 Ga. App. 149, 150 (1) (397 SE2d 615) (1990).

       (Citations and punctuation omitted; emphasis supplied.) James v. State, 196 Ga. App. 569, 571 (396 SE2d 306) (1990).

       See, e.g., Davis v. State, 246 Ga. App. 877, 878 (1) (542 SE2d 626) (2000).

        Owens v. State, 248 Ga. 629, 631 (284 SE2d 408) (1981).

       See id. at 631-632; see also Fields v. State, 266 Ga. 241, 243 (2) (466 SE2d 202) (1996).

        Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993).

       See Welch v. State, 243 Ga. App. 798, 799-800 (2) (534 SE2d 471) (2000) (ineffective assistance claim denied where evidence did not reveal outcome of trial would have been different but for counsel’s alleged ineffective assistance).

        Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000).