author: Barnes, Judge.

text:
    A01A0217.
    CHANDLER v. THE STATE.
    (546 SE2d 296)
   Barnes, Judge.

Andrew Chandler appeals from his convictions of driving under the influence and no proof of insurance, contending insufficient evidence supports his convictions and that the trial court erred when it admitted hearsay evidence. Because the State failed to prove venue beyond a reasonable doubt, we must reverse.

Relying upon the Supreme Court of Georgia’s recent opinion in Jones v. State, 272 Ga. 900 (537 SE2d 80) (2000), Chandler asserts the State failed to prove venue beyond a reasonable doubt. In Jones, the Supreme Court clarified the “slight evidence exception” as follows:

The slight evidence exception has two parts and is written in the conjunctive; before slight evidence of venue will be deemed sufficient, venue must not have been challenged and there must be no conflicting evidence regarding venue. The first of these requirements will never be satisfied in a criminal trial, because venue is challenged whenever a criminal defendant pleads not guilty to an indictment’s charges. The act of pleading not guilty to an indictment is considered by law to be an irrefutable challenge to all the allegations set forth therein, including those allegations pertaining to venue. Hence, when a criminal defendant pleads not guilty, he or she has challenged venue, and the State will not be permitted to invoke the exception permitting it to establish venue with mere slight evidence. Quite to the contrary, whenever a criminal defendant pleads not guilty and is put on trial, the State is placed on notice that at trial, it will be required to establish venue beyond a reasonable doubt. Therefore, by its own definition, the slight evidence exception can never be invoked after a criminal defendant pleads not guilty and is placed on trial. . . . Henceforth, it will not be recognized in any appeal from a judgment of conviction entered after a bench or jury trial in any criminal matter.

(Footnotes omitted; emphasis in original and supplied.) Id. at 902-903.

In this case, the State concedes that it failed to prove venue beyond a reasonable doubt. It urges this court to affirm Chandler’s convictions based upon the slight evidence exception, even though the defendant pled not guilty and this case was tried.

According to the State, the first prong of the slight evidence exception was met because the defendant stipulated to the breath test results and admitted that he was driving. This argument overlooks the Supreme Court’s command that the slight evidence exception cannot be recognized “in any appeal from a judgment of conviction entered after a bench or jury trial in any criminal matter.” Jones, supra, 272 Ga. at 903. A stipulation of fact or an admission during trial cannot be used to invoke the exception “because venue is challenged whenever a . . . defendant pleads not guilty. . . .” (Emphasis in original.) Id. at 902.

Decided February 20, 2001.

Joe Morris III, for appellant.

Joseph J. Drolet, Solicitor, Craig E. Miller, Assistant Solicitor, for appellee.

Because the State failed to prove venue beyond a reasonable doubt and the slight evidence exception cannot be applied, we reverse Chandler’s convictions. Tunarka v. State, 247 Ga. App. 578 (545 SE2d 15) (2001). His remaining enumerations of error are rendered moot. Id.

Judgment reversed.

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


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A0261.
    TROTTER v. THE STATE.
    (546 SE2d 286)
   Johnson, Presiding Judge.

Garry Wayne Trotter was charged and convicted on two counts: Count 1 charged him with rape, and Count 2 charged him with sexual battery. Trotter contends the trial court erred in sentencing him on the rape conviction because the verdict of guilty on the sexual battery charge operates as an exoneration and acquittal on the rape charge. He further contends the trial court erred in allowing the state to present hearsay allegations of additional crimes. Because we find that under the facts of this case Trotter committed both rape and sexual battery, and because Trotter did not raise his hearsay objections at trial, we affirm Trotter’s convictions.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Trotter touched the victim’s breast with his hand. The victim told him to leave her alone. Trotter then touched the victim’s vagina with his hand. Once again, the victim told him to leave her alone and threatened to hit Trotter with a hairbrush. Trotter took the hairbrush from the victim, pinned her hands behind her back, and pushed her onto a sofa. Trotter then pulled the victim’s pants down below her knees, pulled his penis out of his pants, and placed it inside the victim’s vagina. The victim kept telling Trotter to stop and get off her, but he did not. The victim’s sister, who was outside the apartment, heard the victim’s cries for Trotter to get off of her. When she opened the apartment door, she saw Trotter on top of her sister.

Trotter contends that sexual battery is a lesser included offense of rape and that the verdict of guilty on the sexual battery charge operates as an exoneration and acquittal on the rape charge. We disagree. The offenses of sexual battery and rape in this case were two separate and distinct offenses.

Under OCGA § 16-1-6 (1), offenses merge as a matter of fact only if one of them is established by proof of the same or less than all the facts used to prove the other. A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate body parts of another person without the consent of that person. A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.

The evidence in the present case establishes that both of these offenses occurred. When Trotter touched the victim’s breast and vagina without her consent, the crime of sexual battery had been committed. He committed rape shortly thereafter when he pinned the victim’s hands behind her back, pushed her onto the sofa, pulled her pants down, and inserted his penis into her vagina without her consent. “The same conduct was not being punished twice, nor was one crime included in the other [ ] so as to bar the separate conviction and punishment for each act.” Since evidence of neither offense was necessary to prove the other, there was no merger. The trial court did not err in sentencing Trotter for both convictions.

2. Trotter contends the trial court erred in admitting testimony which was hearsay and impermissibly placed his character into evidence. However, Trotter did not raise these objections in the trial court. Thus, he has waived his right to challenge the testimony on these grounds.

The record shows that in both instances raised by Trotter, the state asked proper questions of two different witnesses. The witnesses’ responses, however, were lengthy. We need not decide whether the responses included hearsay or whether they impermissibly placed Trotter’s character into evidence because Trotter’s only objection to the testimony in both instances was that the witness was rambling and not responsive to the question. In both instances, the state rephrased the question and testimony continued.

“It is well settled that no issue is presented for appellate review regarding a question of evidence admissibility as to which the trial court was not called to rule upon at trial.” In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground. Accordingly, this issue has not been preserved for appellate review.

Decided February 20, 2001.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       See Solomon v. State, 195 Ga. App. 882, 883 (2) (395 SE2d 335) (1990).

       OCGA § 16-6-22.1 (b).

       OCGA § 16-6-1 (a) (1).

       (Citation omitted.) Gable v. State, 222 Ga. App. 768, 770 (3) (476 SE2d 66) (1996); Jimmerson v. State, 190 Ga. App. 759, 762 (4) (380 SE2d 65) (1989).

       See Thomas v. State, 224 Ga. App. 816, 818 (4) (482 SE2d 472) (1997); Cooper v. State, 188 Ga. App. 297-298 (1) (372 SE2d 679) (1988).

       (Citations and punctuation omitted.) Carradine v. State, 234 Ga. App. 330, 331 (506 SE2d 688) (1998).

       See Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991).


text:
    A00A2404.
    PAYNE v. THE STATE.
    (545 SE2d 336)
   Barnes, Judge.

A jury found Ronald Edward Payne guilty of possession of cocaine with the intent to distribute. He appeals, contesting the sufficiency of the evidence, the admission of certain evidence, and several of the jury charges. Having determined that no reversible error occurred, we affirm.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that on July 14, 1998, at approximately 7:30 p.m., an officer of the Hall County Red Dog Unit pulled over a four-door Cadillac after seeing the driver litter. In addition to the driver, the vehicle also contained a female, who was in the front passenger seat, and Payne, who was in the rear seat behind the front passenger seat. The officer testified that because there were several occupants inside the vehicle and the area was a “high drug, high crime area,” he called for assistance and backup officers arrived.

The driver consented to a search of the vehicle, and officers asked Payne and the other passenger to exit the vehicle. One of the backup officers, Officer Grindle, who was positioned by the rear passenger door and responsible for getting Payne out of the vehicle safely, stated at trial that “[Payne] opened his door up, and he sort of j slid out the door, and when he did, a baggy fell on the ground at his feet.” The officer testified that “[the bag] came from his person. . . It sort of slid out the same time he slid out of the vehicle.”

Officers Lane and Payne, two other backup officers, were also standing on the passenger side of the vehicle. Officer Lane testified that he was positioned at the back right side of the car, and when | Payne’s “door was opened, and as the defendant stood up, as he was placing his feet out and stood up, I observed a package fall from his person. I didn’t see as far as his hands. I just saw it at the waist area drop to the ground.”

Officer Payne testified that he was standing three feet from the side of the car and was watching the female passenger as she exited the car. He did not see anything fall out of the car beside her. As the defendant was exiting the vehicle, he heard something strike the ground, then turned to see a plastic bag on the ground “right outside the rear passenger door . . . maybe two and a half feet from the vehicle.” There was no other debris in that area.

The bag contained twenty-eight rocks of crack cocaine with a total net weight of five grams. Two officers testified that the quantity of cocaine indicated that it was not for personal use and would likely be sold. No smoking devices or other drug paraphernalia were found on Payne or in the car.

1. Payne challenges the sufficiency of the evidence, pointing out inconsistencies in the evidence, including the testimony of the female passenger, who stated that Payne did not have the cocaine, but that the driver had the drugs earlier that day. She testified that when the police flashed their blue lights, the driver tossed the bag containing the drugs to the front passenger side and it landed “beside the door, the passenger side.” After she and Payne exited the car, she “heard something hit.” Payne exclaimed, “That ain’t mine,” urging the police to preserve the bag properly for fingerprinting. She testified that Payne had known nothing about the drugs and could not have seen the driver toss them.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997). This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Patterson, supra, 225 Ga. App. at 515. Conflicts in the evidence are for the jury to resolve. Id.

Payne’s contention that his conviction was based solely on circumstantial evidence is contrary to the record before us. The State presented both circumstantial and direct evidence, and the trial court charged the jury regarding its consideration of such evidence. See also Division 3 (b), infra. The jury’s verdict is supported by the evidence in that a rational trier of fact could have found Payne guilty beyond a reasonable doubt of possession of cocaine with intent to distribute. Jackson, supra.

2. Payne contends that the trial court erred in admitting during cross-examination his prior conviction based on a nolo contendere plea to the offense of giving false information to an officer. He argues that admitting this evidence violated OCGA § 24-9-20 (b), which provides that if a defendant in a criminal case testifies in his own behalf, he may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions is admissible unless and until the defendant first puts his character in issue. But even in situations where the defendant has not placed his character in issue within the meaning of OCGA § 24-9-20 (b), when a defendant testifies and falsely denies past criminal conduct or misdeeds, the State may introduce evidence that proves the falsity of his testimony, even when it reflects negatively on the defendant’s character. Jones v. State, 257 Ga. 753, 759 (1) (a) (363 SE2d 529) (1988).

Payne took the stand in his defense and, on direct examination, denied knowing about the drugs and described his previous employment as a corrections officer. He stated, “I have most respect for police officers. Used to be one, basically.” Payne’s prior conviction for giving false information to an officer was properly admitted as impeachment evidence to his testimony on direct examination that he respects police officers. See Lucas v. State, 234 Ga. App. 534, 538 (3) (507 SE2d 253) (1998) (defendant opened the door to evidence of prior DUI convictions by testifying that he “did not ‘care to break the law’ and did not want ‘to endanger’ anyone”); Butts v. State, 193 Ga. App. 824, 825 (2) (389 SE2d 395) (1989) (evidence of marijuana found in defendant’s car refitted and impeached his assertions that he was the type of person who obeyed the law). “Appellant, having chosen a certain trial strategy and having engaged in certain calculated trial tactics in support thereof during direct examination, cannot complain when the State exercises its statutory right to a thorough and sifting cross-examination.” Butts, supra, 193 Ga. App. at 826.

3. Payne challenges several jury charges by the trial court.

(a) First, Payne contends that the trial court erred by failing to give the jury charge that, “If a person is driving an automobile or has an automobile in his or her possession, all in that automobile is presumed to be the driver’s and in the driver’s possession.” Instead, the trial judge charged:

If you find that a person owns, leases or has control of a vehicle, you will be permitted, but not required, to infer that such person is in possession of that vehicle and all of the property located on or in it. However, this is a rebuttable inference and may be overcome by evidence in this case that others had access to the vehicle.

We find no merit in Payne’s argument that reversible error occurred because the trial court charged the jury in language of “rebuttable presumption” rather than “permissive inference.” The failure to give requested instructions in the exact language requested is not a ground for new trial where the charge given substantially covers the same principles. Burris v. State, 204 Ga. App. 806, 811 (3) (420 SE2d 582) (1992). “Whether the charge is fashioned in the language of ‘inferences’ or ‘presumptions,’ the technical import of the charge is the same. . . .” Byrd v. Hopper, 234 Ga. 248, 251 (215 SE2d 251) (1975); see also Pouncey v. Adams, 206 Ga. App. 126, 128-129 (2) (424 SE2d 376) (1992). We find that the given charge was appropriate, adjusted to the evidence, and would not have left the jury with an erroneous impression.

(b) Second, Payne contends that the trial court erred in its jury charge concerning circumstantial evidence by stating that in connection with a conviction upon circumstantial evidence alone, “the proven facts must not be consistent with the hypothesis of guilt.”

“A mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury, is not reversible error.” (Citation and punctuation omitted.) Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981).

“[W]here a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.”

Thurmond v. State, 161 Ga. App. 602, 605 (2) (288 SE2d 780) (1982).

The transcript reveals that the trial court had previously properly charged the jury: “To warrant a conviction on circumstantial evidence alone proven facts must not only be consistent with the theory of guilt, but exclude every other reasonable theory other than the guilt of the accused.”

After reviewing the charge as a whole, we are satisfied that the jury, who had already received the proper charge, could not have been misled or confused by the trial court’s slip of the tongue.

(c) Third, Payne contends that the trial court erred during its jury charge while instructing on the possible forms of the verdict in the event of (1) a finding of possession of cocaine with intent to distribute, (2) a finding of the lesser charge of possession of cocaine, or (3) a finding of not guilty. Payne points out that just before instructing the jury that it had the option of finding Payne not guilty, the trial judge charged “that it is unlawful for any person to possess or have under his control cocaine,” although the judge had already charged on the law regarding possession of cocaine. Payne urges that the statement constituted detrimental and improper emphasis.

Decided February 1, 2001

Reconsideration denied February 21, 2001

Whelchel & Dunlap, Thomas M. Cole, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

Mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights, and unless it becomes an argumentative or opinionative utterance that tends to prejudice the minds of the jury.

Fairbanks v. State, 244 Ga. App. 123, 127 (4) (534 SE2d 529) (2000). By repeating the charge at issue here, the trial court did not unfairly state the law in relation to Payne’s rights, nor did it state any of the charges in a way that would tend to prejudice the jury. When viewed in its entirety, the charge fairly instructed the jurors that they could find the appellant not guilty.

Judgment affirmed.

Blackburn, C. J., and Eldridge, J., concur.


author: Mikell, Judge.

text:
    A01A0031.
    CAMPBELL v. THE STATE.
    (545 SE2d 6)
   Mikell, Judge.

A jury found Robert Campbell not guilty under Count 1 of driving under the influence to the extent it was less safe for him to drive, guilty under Count 2 of driving a vehicle while his alcohol concentration was more than 0.10 grams (a “per se” violation), and guilty under Count 3 for failure to stop at a stop sign. Counts 2 and 3 were merged for sentencing. On appeal, Campbell challenges several jury instructions as well as the general grounds. For the reasons set forth below, we affirm.

1. We first address Campbell’s assertion that the evidence is insufficient to support his conviction of the per se violation. “On appeal the evidence is viewed in the light most favorable to the verdict, the appellant is no longer presumed innocent, and the appellate court determines evidence sufficiency and does not weigh evidence or determine witness credibility.” Viewed in this light, the evidence reveals that at 11:37 p.m. on August 1, 1998, Georgia State Patrol Trooper Richard Mark Garner was traveling westbound on Highway 278 in Polk County when he saw Campbell’s vehicle enter the highway after running a stop sign. The trooper testified that when he pulled Campbell over, he smelled a strong odor of alcohol emanating from Campbell’s vehicle. Consequently, the trooper administered to Campbell the horizontal gaze nystagmus, the one-leg stand, and the portable alco-sensor field sobriety tests. Believing Campbell was impaired, the trooper read him the implied consent notice mandated by OCGA § 40-5-67.1 (b) (2). Campbell submitted to an Intoxilyzer 5000 breath test. He gave two breath samples, the results of which were 0.107 and 0.109, respectively.

Campbell testified that on the night in question, he had consumed four twelve-ounce beers between 8:00 p.m. and 10:00 p.m. He denied that he was impaired or a less safe driver. A business partner of Campbell, who was one of his passengers, similarly testified that Campbell did not appear intoxicated or less safe to drive as a result of his alcohol consumption.

An expert witness for the defense, Dr. Woodford, testified that based on Campbell’s size and the amount of alcohol he had consumed prior to 10:00 p.m., his blood alcohol concentration should have been no greater than 0.04 at 11:30 p.m. The expert also testified that the intoximeter results at issue were inaccurate because the machine was based on an average blood-to-breath ratio of 2,100 to 1, and Campbell’s ratio was, in essence, only 1,533 to 1. The expert explained that testing 210 liters of Campbell’s breath would cause intoximeter results 27 percent higher than his actual blood alcohol content. In this case, accounting for the margin of error due to Campbell’s different blood-to-breath ratio, his blood alcohol content would have been approximately 0.078. Dr. Woodford then applied a margin of error of 0.02 and concluded that Campbell’s content could have been as low as 0.058.

During rebuttal, the state called its own expert witness, Georgia Bureau of Investigation forensic chemist James Panter, who testified that the Intoxilyzer 5000 margin of error, as calibrated by the GBI, is 0.005. Panter explained that the 0.02 margin of error about which the defense expert testified related to the statutorily permissible variability between two sequential breath samples taken from a defendant.

The credibility of the defense expert’s attack upon the reliability of Campbell’s breath test results was an issue for the jury to resolve. Contrary to Campbell’s assertions, Panter’s testimony, together with the breath test results, was sufficient direct evidence to authorize a rational trier of fact to find beyond a reasonable doubt that Campbell had violated OCGA § 40-6-391 (a) (5). Accordingly, this enumeration is without merit.

2. Campbell next asserts that the trial court improperly commented on the evidence when it charged the jury: “Any statement during [the] course of this trial which would suggest that Dr. Wood-ford’s testing procedures or methods have been approved by the appellate courts of this state shall be disregarded by you.”

Considered in context, the charge was in the nature of a curative instruction necessitated by Campbell’s inappropriate attempt to bolster the credibility of his expert witness.

Normally, a party may not bolster the veracity of its own witness until the witness has been impeached by the adverse party. . . . [E]vidence which goes to a witness’s credibility is not relevant unless produced to attack the credibility of a witness, or to rehabilitate credibility when it has been attacked.

Here, when establishing the qualifications of his expert witness, defense counsel asked him whether he had “been qualified with this testing method with other courts in Georgia, like the Georgia Supreme Court and the Court of Appeals.” Dr. Woodford replied:

They both recognized this, my testing, using this exact method, Supreme Court of Georgia in Lattarulo [v. State], which is my case, and another case, Clay v. State In both of those cases, I did the exact testing, the same kind of testing that I did on the defendant in this case, using the same equipment.

Counsel handed the witness a copy of each case for identification purposes, then asked:

Q: And did you, in fact, present this same testimony in those cases relating to the accuracy and reliability of the intoximeter and the 2100 — the same ratio?
A: The same ratio, and I used the same equipment, same method and everything.

The district attorney objected, and defense counsel ceased this line of questioning. On redirect examination, defense counsel again sought to question his expert regarding the appellate courts’ alleged “approval” of the expert’s testimony in Lattarulo v. State and Clay v. State. The trial court called a bench conference and refused to permit counsel to suggest to the jury that the appellate courts had accepted his expert’s theories. The trial court correctly noted that the cases merely stand for the proposition that testimony challenging the reliability or accuracy of intoximeter test results is admissible in evidence.

The trial court has the right and the obligation to ask questions, restrict examination, and otherwise control the course of the proceedings in order to insure the truth is given to the jury in orderly fashion. In the absence of abuse, we will not interfere with the exercise of that discretion. The trial court is more than a mere referee or arbiter but is vested with the power to insure justice.

In the case sub judice, the court properly exercised its discretion to correct the misapprehension created by defense counsel’s questioning of his expert witness and the bolstering of the witness’s credibility.

Finally, we take into account all of the judge’s instructions in determining whether the trial court improperly expressed an opinion. Here, the trial judge charged the jury that

by no ruling or comment which the Court has made during the progress of this trial has the Court intended to express any opinion upon the facts of this case, upon the credibility of the witnesses, upon the evidence, or upon the guilt or innocence of the defendant, as these are all matters solely for the jury.

Accordingly, we conclude that the trial court’s comment did not violate OCGA § 17-8-57, and this enumeration lacks merit.

3. Campbell next enumerates as error the trial court’s refusal to give his request to charge no. 13:

In evaluating the evidence of Defendant’s blood alcohol level, you may consider evidence of the possibility of error or circumstances that might have caused the Intoximeter 5000 machine to malfunction. This evidence will determine the weight, if any, that you would give to breathalyzer results (if admitted into evidence).

Campbell contends that absent this charge, he was deprived of his defense that the results of his breath test were incorrect. We disagree. As previously stated, Campbell’s expert witness testified at length regarding the circumstances that might have led to an erroneous test result. Moreover, the case upon which Campbell relies, Lattarulo v. State, while permitting the introduction of such evidence, does not mandate the requested charge. In addition, the trial court properly instructed the jury that “all evidence presented during the course of this trial shall be given such weight and credit as you think it is properly entitled to receive.” The judge gave the pattern charge on expert testimony.

It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal.

As we held when we rejected a similar argument in Parrish v. State, the “jury could not have failed to understand that it could accept the testimony of appellant’s expert and reject the State’s evidence.” Accordingly, the trial court did not err in refusing to give the requested charge.

4. Campbell also complains that the trial judge created an irrebuttable evidentiary presumption when he charged the jury that “[b]reath alcohol measuring equipment approved by the state crime laboratory is considered accurate if it’s properly used.” We rejected a similar argument in Johnson v. State:

Decided January 16, 2001

Reconsideration denied February 21,2001

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, James S. Astin, for appellant.

The General Assembly determined that chemical analysis of blood, urine, breath or other bodily substance, when “performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation . . .” shall be admissible as evidence of the amount of alcohol or drug in a person’s system. OCGA § 40-6-392 (a) (1) (A). The scientific objectivity and reliability of intoximeter tests to determine blood alcohol concentration [were] approved in Lattarulo v. State Consequently, we do not agree with defendant that the instruction under review misstates the law. On the contrary, it is a correct statement of the law.

As in Johnson, we hold in this case that the trial court did not err in giving the charge at issue.

5. Nor do we agree with Campbell’s argument, based on Rindone v. State, that the trial court was required to instruct the jury “that it could give the breath test results the weight that it deemed fit, including no weight at all” after charging the jury that “the relationship between alcohol in the blood and in the breath is a ratio of 1 to 2,100.” Rindone merely approved the charge; it did not mandate it. Moreover, although Campbell raised this issue at the charge conference, he failed to submit a written request to charge on this principle. Accordingly, this enumeration provides no basis for reversal of Campbell’s conviction.

Judgment affirmed.

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

James R. Osborne, District Attorney, F. Andrew Lane, Jr., Assistant District Attorney, for appellee.

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-391 (a) (5).

       OCGA § 40-6-72.

        Brown v. State, 239 Ga. App. 520 (521 SE2d 454) (1999).

       A videotape of the event was viewed by the jury but has not been included in the record on appeal.

       OCGA § 40-6-392 (a) (1) (B) requires taking two sequential breath samples from an accused and provides that in order for either or both of the samples to be admissible in evidence, “the readings shall not differ from each other by an alcohol concentration of greater than 0.020 grams. . . .”

        Brannan v. State, 195 Ga. App. 709, 710 (3) (394 SE2d 562) (1990); see also Scheipers v. State, 234 Ga. App. 112, 113 (505 SE2d 835) (1998).

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

       (Citations omitted.) Blige v. State, 264 Ga. 166 (2) (441 SE2d 752) (1994).

       261 Ga. 124 (401 SE2d 516) (1991).

       193 Ga. App. 377 (387 SE2d 644) (1989).

       (Citation omitted.) Turner v. Wilmouth, 161 Ga. App. 2, 4 (4) (288 SE2d 839) (1982).

        Ellis v. State, 216 Ga. App. 232 (453 SE2d 810) (1995).

       261 Ga. at 126 (3).

       See Suggested Pattern Jury Instructions, Vol. II: Crim. Cases (2nd ed. 1991), p. 12.

       (Citation and punctuation omitted.) Walls v. State, 233 Ga. App. 601, 604 (2) (504 SE2d 471) (1998).

       216 Ga. App. 832 (456 SE2d 283) (1995).

       Id. at 834 (3).

       231 Ga. App. 215 (498 SE2d 778) (1998); see also Henson v. State, 168 Ga. App. 210, 213 (4) (308 SE2d 555) (1983).

       261 Ga. at 126 (3).

       231 Ga. App. at 216.

       210 Ga. App. 639 (437 SE2d 338) (1993).

       OCGA § 40-1-1 (1).

       210 Ga. App. at 642 (7).

        Grady v. State, 212 Ga. App. 118, 120 (3) (441 SE2d 253) (1994).


text:
    A01A0361.
    BRISON v. THE STATE.
    (545 SE2d 345)
   Mikell, Judge.

Troy Brison, proceeding pro se, was convicted of shoplifting and simple battery based on evidence which showed that he took a sweater from the J.C. Penney store at Cumberland Mall and then kicked the loss prevention officer who had followed him into the parking lot. Finding no error, we affirm.

1. At the outset we note that Brison’s brief does not comply with the rules of this Court in several respects. It contains no enumeration of errors as required by Court of Appeals Rule 27 (a) (2). See also OCGA § 5-6-40. Instead, the brief lists several arguments in the section captioned “Statement of Facts.” Further, the argument section of the brief merely restates various alleged errors and makes conclusory allegations which do not cogently follow the alleged errors set forth. “Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court.” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996). Despite Brison’s violation of this Court’s rules, we will defer to his status as a pro se appellant and address the arguments presented, to the extent that we are able to discern them. See Jones v. State of Ga., 241 Ga. App. 768, 769 (1) (527 SE2d 611) (2000); James v. State, 214 Ga. App. 763 (449 SE2d 126) (1994).

2. At trial, the loss prevention officer testified that he observed the theft on a surveillance camera and, pursuant to store policy, waited until Brison exited the store before attempting to apprehend him. Brison contended that the state possessed a videotape of the officer’s observations, and he sought to compel discovery to review it. He also moved to suppress the evidence. The trial court held a pretrial hearing and determined that the state had no videotape of the incident. The court also informed Brison that in the event the state secured such a tape during trial, the state would not be permitted to introduce it into evidence. Accordingly, as the court in essence granted the relief Brison requested, he has no cause to complain on | appeal. Oliver v. State, 265 Ga. 653, 654 (2) (461 SE2d 222) (1995).

Moreover, we will not consider Brison’s argument, made for the I first time on appeal, that the trial court erred in refusing to compel j the state to disclose the nonexistent videotape because it was allegedly exculpatory. “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Punctuation omitted.) Kight v. State, 242 Ga. App. 13, 18 (3) (528 SE2d 542) (2000).

3. Brison next contends that the trial court denied him a fair trial by forcing him to proceed to trial unprepared. However, not only did Brison fail to move for a continuance, he filed a demand for a disposition of his accusation pursuant to OCGA § 42-6-5. Indeed, Brison never contended he was unprepared for trial until after the state cross-examined him. “A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal.” (Citations and punctuation omitted.) Mercier v. State, 203 Ga. App. 494, 495 (3) (417 SE2d 430) (1992).

4. Brison enumerates as error the trial court’s refusal to charge the jury on lesser included offenses. However, the record shows that Brison’s requested charge merely recited OCGA § 16-1-7 and did not specify the offenses he wished the court to charge. It is well settled that unless requests to charge are correct, even perfect, a refusal to give them is not reversible error. “They must be legal, apt, [and] precisely calibrated to a relevant principle involved in the case. . . .” Rogers v. State, 234 Ga. App. 507, 509 (2) (507 SE2d 25) (1998). “A request to charge must be perfect in form; and it is not perfect when an inference is required to make it correct, and there is no error in refusing such a request.” Evans v. Caldwell, 52 Ga. App. 475, 486 (184 SE 440) (1936). As the requested charge was not adjusted to the facts of the case and required the court to infer the offenses Brison wished the court to charge, the trial court did not err in refusing to give the requested charge. Id.

5. Brison next asserts that his sentence is unconstitutional. This contention is meritless. Brison was sentenced to the maximum of twelve months for each offense, for a total of twenty-four consecutive months, including six on probation. The sentence imposed was authorized by OCGA § 17-10-3 (a), applicable to misdemeanor convictions. In addition, Brison was fined $250, which was the minimum required by OCGA § 16-8-14 (b) (1) (A), as this was his second shoplifting conviction.

6. Brison enumerates as error the trial court’s recharge to the jury on simple battery. However, the evidence shows that Brison stated that he had no objection after the charge was given. Therefore, he has waived this claim of error on appeal. Harris v. State, 272 Ga. 455, 456 (2) (532 SE2d 76) (2000).

Decided February 2, 2001

Reconsideration denied February 21, 2001

Troy Brison, pro se.

Barry E. Morgan, Solicitor, Todd H. Ashley, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       In a supplemental brief, Brison attempts to enlarge this enumeration of error to assert that a fatal variance existed between the accusation and the evidence. This he cannot do. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997).


author: Blackburn, Chief Judge.

text:
    A00A1827.
    McCLELLAND v. COURSON'S 441 SOUTH STATION INC. et al.
    (546 SE2d 300)
   Blackburn, Chief Judge.

Glenda McClelland appeals the trial court’s grant of summary judgment to Courson’s 441 South Station, Inc. (Courson’s) and Lee M. Courson in this malicious prosecution action. For the reasons set forth below, we reverse.

When ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

(Citations omitted.) Hess v. Textron Automotive Exteriors.

Viewing the record in this light, the evidence shows the following. Courson’s is a gas station in Douglas. On or about June 26, 1997, Courson’s cashed a Georgia Department of Revenue check, payable to Rachelle Newton, for $470. On March 19,1998, NationsBank notified Courson’s that the $470 check was forged. NationsBank provided Courson’s with a “form” affidavit, signed by Newton, which listed McClelland as the person that forged Newton’s name. The affidavit offered no explanation as to why or how Newton knew it was McClelland who had forged her name.

Lee Courson, the secretary/bookkeeper at Courson’s, deposed that she did not question any of the employees of the gas station to find out whether they remembered the transaction because of the high rate of turnover at the gas station and the amount of time that had elapsed. Courson also did not attempt to contact Newton. Courson states that after talking to local law enforcement officers, she submitted the check and affidavit to the local magistrate judge, who issued a warrant for McClelland’s arrest on May 1, 1998. The warrant contained an affidavit, signed by Courson, stating that McClelland forged Newton’s name on the check.

Newton deposed that when she did not receive her $470 tax refund, she contacted the Georgia Department of Revenue and they informed her that the check had already been cashed. After seeing a copy of the cashed check, Newton realized that someone had forged her name. The Department of Revenue sent Newton a “form” affidavit to sign in order to receive a replacement check. Newton deposed that she named McClelland, one of her neighbors, as the forger because she assumed that the check had been accidentally delivered to McClelland’s mailbox and she knew McClelland had been arrested for shoplifting. On June 5, 1998, the district attorney dismissed the case against McClelland “[flor want of sufficient evidence to prosecute.”

McClelland filed a complaint against Courson’s, Lee Courson, and Newton, alleging malicious prosecution and slander. Courson’s and Lee Courson filed a motion for summary judgment on the malicious prosecution claim, which the trial court granted. The slander claim is still pending before the trial court and is not before us.

Initially, we note that malicious prosecution claims are ordinarily disfavored under Georgia law because “were it otherwise, ill consequences would ensue to the public, for no one would willingly undertake to vindicate a breach of the public law and to discharge his duty to society, with the prospect of an annoying suit staring him in the face.” (Punctuation omitted.) McGonagil v. Treadwell, A claim for malicious prosecution involves “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted.” OCGA § 51-7-40; Tate v. Holloway.

“Malice consists in personal spite or in a general disregard of the right consideration of mankind, directed by chance against the individual injured.” OCGA § 51-7-2. Malice may be inferred if a “defendant’s acts were wanton or were done with a reckless disregard for or a conscious indifference to the rights of the plaintiff.” Bowen v. Waters.

“Malice sufficient to sustain a recovery may be inferred from the want of probable cause.” Fleming v. U-Haul Co. ‘The defendant is not necessarily required to verify his information, where it appears to be reliable; but where a reasonable man would investigate further before beginning the prosecution, he may be liable for failure to do so.’ ” Melton v. LaCalamito.

Decided February 21, 2001

Betty Walker-Lanier, for appellant.

James D. Hudson, for appellees.

Conceding that Lee Courson did not act with personal spite, McClelland argues that Courson acted maliciously because she relied upon the bare allegations in Newton’s affidavit and did not conduct any independent investigation of the incident. We agree.

Lee Courson relied on the bare allegations in Newton’s “form” affidavit without taking any steps to verify the information in it. Courson presented no evidence that she attempted to contact Newton to find out why she had named McClelland as the forger. Courson’s excuse for not questioning her employees — the high rate of turnover and the amount of time elapsed — is self-serving. Courson’s claim that she consulted with law enforcement officers before going to the magistrate is unavailing. Courson’s failure to investigate the underlying facts raises a jury question as to the reasonableness of her conduct, and any discussion with a law enforcement officer does not change that fact.

We cannot conclude, as a matter of law, that the affidavit appeared reliable such that no further investigation was warranted. See Melton, supra. Thus, a jury issue exists, and summary judgment was not appropriate.

Judgment reversed.

Eldridge and Barnes, JJ, concur.

        Hess v. Textron Automotive Exteriors, 245 Ga. App. 264, 265 (1) (536 SE2d 291) (2000).

       Newton is not a party to this appeal.

        McGonagil v. Treadwell, 216 Ga. App. 850, 853 (1) (456 SE2d 260) (1995).

        Tate v. Holloway, 231 Ga. App. 831, 833 (499 SE2d 72) (1998).

        Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984).

        Fleming v. U-Haul Co., 246 Ga. App. 681, 684 (3) (541 SE2d 75) (2000).

        Melton v. LaCalamito, 158 Ga. App. 820, 824 (2) (b) (282 SE2d 393) (1981).


author: Andrews, Presiding Judge.

text:
    A00A1891.
    WHITFIELD et al. v. DEPARTMENT OF TRANSPORTATION.
    (546 SE2d 308)
   Andrews, Presiding Judge.

The Georgia Department of Transportation (DOT) condemned land for a road right-of-way pursuant to OCGA § 32-3-1 et seq. and paid $197,825 into the registry of the trial court as compensation to condemnees, Stanley A. Whitfield, Whitfield Oil Company, Bonnie Green, and Fina Oil & Chemical Company. Whitfield and Whitfield Oil Company appeal from the trial court’s judgment distributing $145,825 to them, $50,000 to Green, and $2,000 to Fina Oil as just and adequate compensation for the condemnees’ respective interests and consequential damages. For the reasons which follow, we affirm the trial court’s judgment accepting $197,825 as total just and adequate compensation and affirm the amounts distributed from that total to Whitfield, Whitfield Oil, and Green. As to Fina Oil, the evidence supports a distribution in an amount no greater than $1,489.65.

1. In various enumerations of error, Whitfield and Whitfield Oil claim that the declaration of taking filed with the condemnation petition was insufficient, that they were entitled to a jury trial on the issue of compensation, that proper procedures were not followed in adding a condemnee and compensation after the declaration of taking was filed, and that orders were entered related to additional compensation paid by the DOT without proper notice. These claims are without merit or waived.

First, Whitfield and Whitfield Oil concede they failed to timely appeal for a jury trial on the issue of compensation pursuant to OCGA § 32-3-14, nor did they timely allege under OCGA § 32-3-11 that the declaration of taking was defective. Lil Champ Food Stores v. Dept. of Transp., 230 Ga. App. 715, 716 (498 SE2d 94) (1998); Parker v. Dept. of Transp., 184 Ga. App. 882 (363 SE2d 156) (1987). Moreover, they were not entitled to join in timely appeals for a jury trial by Green or Fina Oil since these condemnees ultimately chose not to contest the amount of compensation paid by the DOT and did not pursue those appeals. Brown v. Dept. of Transp., 191 Ga. App. 321, 322 (381 SE2d 532) (1989). Finally, the record clearly shows that Whitfield and Whitfield Oil waived all these claims by conceding in the trial court that the original compensation paid by the DOT with the declaration of taking in the amount of $145,825, plus additional compensation paid by the DOT in the amount of $52,000, was just and adequate compensation for the interests of all the condemnees and that the only issue remaining was the distribution of this compensation among the condemnees.

2. Whitfield and Whitfield Oil claim they were entitled not only to the $145,825 distributed to them, but to the entire compensation fund, and that the trial court erred in distributing $50,000 of the fund to Green and $2,000 of the fund to Fina Oil.

In support of her claim for business losses, Green presented evidence that she operated a gas station store on premises leased from Whitfield Oil and that condemnation of a portion of the premises forced removal of the gas tanks and resulted in the total destruction of the business at that location. There was evidence that the business was located at a heavily traveled crossroads at which traffic converged from two populated areas. Green testified that she was unable to relocate and continue the business because she could not find substantially comparable property in the area. She concluded that she suffered a business loss of about $85,000 based on the difference between the value of the business before and after the condemnation.

This evidence was sufficient to establish that the business was destroyed by the condemnation, that the property on which the business was located was unique and the business could not be successfully relocated in the area, and that Green suffered damages measured by the loss of the value of the business. MARTA v. Martin, 193 Ga. App. 566, 567-568 (388 SE2d 346) (1989); Dept. of Transp. v. Kendricks, 148 Ga. App. 242, 244-247 (250 SE2d 854) (1978). Contrary to the contention of Whitfield and Whitfield Oil, it was not necessary for Green to prove damages by showing lost profits. Dept. of Transp. v. Hillside Motors, 192 Ga. App. 637, 641-642 (385 SE2d 746) (1989); Old South Bottle Shop v. Dept. of Transp., 175 Ga. App. 295 (333 SE2d 127) (1985). The evidence was sufficient to support the trial court’s distribution of $50,000 to Green for business loss.

Fina Oil did not appear at the evidentiary hearing held to determine distribution of the compensation and presented no evidence in support of its claim for damages in the amount of $2,507.01 for personalty destroyed by the condemnation. However, the trial court took notice in its judgment that Whitfield and Whitfield Oil admitted in judicio that Fina Oil was entitled to $1,489.65 on its claim. In support of his claim to damages for the destroyed personalty, Whitfield appeared at the hearing and testified that he purchased Fina’s interest in the personalty.

In the absence of any evidence presented by Fina Oil in support of its claim for damages, the admission by Whitfield and Whitfield Oil that Fina Oil was entitled to $1,489.65 was the only support for the trial court’s distribution of a portion of the compensation to Fina Oil. Richmond County v. Sibert, 218 Ga. 209, 212 (126 SE2d 761) (1962). Accordingly, the trial court erred by distributing $2,000 to Fina Oil when the evidence supported a distribution of only $1,489.65. Dept. of Transp. v. Olshan, 237 Ga. 213, 217 (227 SE2d 349) (1976). On the evidence presented, Whitfield was entitled to distribution of the remaining $510.35,.

Decided February 21, 2001

Coppedge & Leman, Warren N. Coppedge, Jr., for appellants.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Ronald R. Womack, John T. Siess, Anne W. Sapp, for appellee.

Judgment affirmed in part and reversed in part.

Ruffin and Ellington, JJ., concur.

       Our prior decision in this case in Dept. of Transp. v. Whitfield, 233 Ga. App. 747 (505 SE2d 247) (1998), affirming the trial court’s authority to grant a motion for a more definite statement as to aspects of the declaration of taking, does not provide authority for a claim by Whitfield or Whitfield Oil that the taking was defective under OCGA § 32-3-11. That claim was waived by the failure to raise it within the 30-day period mandated by OCGA § 32-3-11. Compare Dorsey v. Dept. of Transp., 248 Ga. 34 (279 SE2d 707) (1981), where a timely claim was made under OCGA § 32-3-11, with Parker, 184 Ga. App. 882.


text:
    A00A2052.
    HAPPOLDT v. MONROE COUNTY.
    (546 SE2d 297)
   Andrews, Presiding Judge.

James M. Happoldt, Jr. accepted the superior court’s award of $18,585 as compensation for real property owned by him and taken in a condemnation action brought by Monroe County pursuant to OCGA § 32-3-1 et seq. Happoldt appeals from the court’s order in the condemnation action finding he was indebted to the County and distributing a portion of the compensation fund to the County to satisfy the debt. We find the superior court had no authority under the condemnation procedures to rule on the County’s motion seeking to establish that the condemnee, Happoldt, was personally indebted to the County and further seeking distribution of a portion of the compensation fund to the County to satisfy the claimed debt. Accordingly, we reverse.

After the County paid $18,585 into the registry of the superior court as compensation for the property taken, the County filed a motion in the condemnation action claiming it was entitled to a portion of that money. The motion alleged that Happoldt, who was incarcerated for criminal offenses committed in Monroe County, owned the real property at issue when he was charged with the offenses and that he defrauded the County in the criminal case by claiming indigence and obtaining a court-appointed defense attorney at County expense.

After holding an evidentiary hearing, the court granted the motion concluding that Happoldt owed the County $2,038.75 for the court-appointed attorney, $1,500 as attorney fees incurred by the County on the motion, and $10,000 in punitive damages for fraud. Accordingly, the court ordered that $13,538.75 of the compensation awarded in the condemnation action be distributed to the County.

The procedures set forth in OCGA § 32-3-1 et seq. authorize State agencies, counties, or municipalities to bring proceedings in rem in the superior court to condemn land for public transportation purposes upon the payment of just and adequate compensation to those having a compensable interest in the condemned land. The parties having agreed that the compensation fund paid into the registry of the court in the amount of $18,585 is just and adequate compensation for the condemned land, the issue is whether the court properly distributed a portion of the fund to the County.

OCGA § 32-3-17 provides a means by which persons, in addition to those named as condemnees in the condemnation petition, can intervene as a party in the action and assert claims against the compensation fund. Bates & Assoc. v. Dept. of Transp., 186 Ga. App. 828, 829 (368 SE2d 544) (1988); Sims v. Foss, 201 Ga. App. 345, 347 (411 SE2d 59) (1991); Dept. of Transp. v. Olshan, 237 Ga. 213, 216 (227 SE2d 349) (1976). OCGA § 32-3-12 further provides that, upon application of the parties claiming an interest in the compensation fund, the court shall order the money or any part thereof to be paid to the parties found to be entitled thereto. Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 725 (409 SE2d 281) (1991), overruled on other grounds, White v. Fulton County, 264 Ga. 393, 394 (444 SE2d 734) (1994); Alexander v. Rozetta, 110 Ga. App. 660 (139 SE2d 451) (1964); Olshan, 237 Ga. at 216. In order to become entitled to all or a portion of the fund compensating for the condemned land, a claiming party must establish a compensable property interest in the condemned land such as a claim based on a warranty deed, security deed, leasehold, filed lis pendens notice, or other statutory lien. Olshan, 237 Ga. at 216; State Hwy. Dept. v. Hendrix, 215 Ga. 821, 823 (113 SE2d 761) (1960); S & S Food Sucs. v. Dept. of Transp., 222 Ga. App. 579, 581 (475 SE2d 197) (1996); Robinson v. Dept. of Transp., 185 Ga. App. 597, 600 (364 SE2d 884) (1988).

By claiming a right to a portion of the compensation fund pursuant to OCGA §§ 32-3-17 and 32-3-12, the County sought not to establish a compensable property interest in the condemned land, but to prove and collect a personal debt allegedly owed to it by the condemnee, Happoldt. In delegating power to condemn land for public purposes, the legislature set forth specific statutory condemnation procedures which must be strictly construed, and no such power may be exercised thereunder except where it is affirmatively granted. Dept. of Transp. v. City of Atlanta, 255 Ga. 124, 131-132 (337 SE2d 327) (1985). Since the condemnation procedures provided no basis for the County to attempt to prove and collect the debt allegedly owed by Happoldt, the court was without authority to rule that Happoldt owed the debt or to order that the debt be satisfied by distributing a portion of the compensation fund to the County.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

Decided February 21, 2001.

James M. Happoldt, Jr., pro se.

W. Franklin Freeman, Jr., for appellee.


text:
    A00A2153.
    WALKER v. WALKER.
    (546 SE2d 315)
   Andrews, Presiding Judge.

Seeking a change of custody with respect to his two minor children, William D. Walker filed a pro se petition for the trial court to grant him physical custody of the children, terminate the physical custody rights previously awarded to the children’s mother, Sara N. Walker, in a prior divorce decree, and award him appropriate child support. Based on a showing that the children, both of whom had reached the age of 14 years, had exercised their rights to select their father as the parent with whom they desired to live, the trial court entered a judgment which gave physical custody of the children to the father and joint legal custody to the mother and father, granted specific visitation rights to the mother, and ordered that the mother pay specified child support. The judgment also included a restraining order restricting contact between the father and mother.

We granted Mr. Walker’s pro se application for discretionary review of the trial court’s judgment. For the reasons which follow, we affirm parts of the judgment, reverse others, and remand the case to the trial court for further consideration.

1. Mr. Walker claims that the children’s election to live with him required the trial court to award him not only physical custody of the children but also sole legal custody.

A child 14 years of age or older may select the parent with whom he or she desires to live, and this selection is controlling absent a finding by the trial court that the selected parent is unfit to have custody. OCGA §§ 19-9-1 (a) (3); 19-9-3 (a) (4); Harbin v. Harbin, 238 Ga. 109 (230 SE2d 889) (1976). Although this selection establishes which parent has physical custody, the trial court retains the authority, upon consideration of the best interest of the child, to designate that the parent with physical custody shall share joint legal custody with the noncustodial parent. OCGA §§ 19-9-1; 19-9-3 (a) (5), (d); 19-9-6; In the Interest of A. R. B., 209 Ga. App. 324, 326-327 (433 SE2d 411) (1993); Steed v. Deal, 225 Ga. App. 35 (482 SE2d 527) (1997); Baldwin v. Baldwin, 265 Ga. 465 (458 SE2d 126) (1995).

Based on the evidence presented — and the fact that Mr. Walker did not contest the award of joint legal custody — the trial court properly exercised its authority in consideration of the best interests of the children to award joint legal custody to both parents.

2. As part of the judgment, the trial court included a restraining order which stated in part that “neither party shall come about the other party’s place of. . . residence or abode without the express permission of the other party . . . [and] [n] either party shall call the other party’s residence. . . .” We agree with Mr. Walker’s claim that these broadly restrictive aspects of the order are incompatible with the trial court’s order that the parties communicate and consult with one another in the exercise of joint legal custody of the children. They are also incompatible with visitation rights awarded to the mother which contemplate that she will pick up and return the children at the father’s residence, speak by telephone with the children at the father’s residence, and telephone the father’s residence to make arrangements for visitation. Accordingly, we reverse the above provisions of the restraining order and remand this case to the trial court for reconsideration of the restraining order in light of this opinion.

3. Contrary to Mr. Walker’s contentions, we find that the trial court’s judgment was sufficient to comply with the guidelines set forth in OCGA § 19-6-15 for computing the amount of child support.

In setting the amount of child support to be paid by the mother to the father as the custodial parent, the trial court stated the mother’s gross income, the applicable percentage of that income which would have been required under the guidelines, and set forth findings of special circumstances that justified the court’s award of child support below the minimum percentage in the guidelines. OCGA § 19-6-15 (b). As special circumstances justifying the reduced support, the court cited substantial assets listed on the father’s financial affidavit, the mother’s payment of health insurance for the children, and the court’s conclusion that the father was capable of earning in excess of $50,000 per year. OCGA § 19-6-15 (c). We conclude the evidence supports the presence of these special circumstances and that they provide sufficient justification for the court’s reduction of the mother’s child support obligation. Ehlers v. Ehlers, 264 Ga. 668 (449 SE2d 840) (1994).

Because the record essentially showed that the father had no gross income, the support award did not include a written finding of j the father’s gross income as contemplated by OCGA § 19-6-15. Rather, the trial court concluded that the father was capable of earning in excess of $50,000 per year. Under these circumstances, the lack of a written finding as to the father’s gross income was not a violation of OCGA § 19-6-15. “In certain circumstances, our case law has permitted earning capacity rather than gross income to be used to determine the amounts of. . . child support... to award in domestic cases.” Duncan v. Duncan, 262 Ga. 872, 873 (426 SE2d 857) (1993). Evidence showing that the father had a mechanical engineering degree from the University of Alabama and had recently earned sums in excess of $50,000 per year was sufficient to support the trial court’s findings as to earning capacity in lieu of a finding of gross income under OCGA § 19-6-15. Id.

4. As Mr. Walker points out, however, there is apparent confusion in the trial court’s order as to the amount of child support awarded. The record shows that, at the conclusion of the trial, the trial court orally ordered that the mother pay child support in the amount of $100 per week ($50 for each child). This would average out to an award of about $433 per month based on an average of 4.33 weeks per month over the course of a 52-week year with 12 months. In its written order, howeVer, the trial court ordered the mother to pay $400 per month in installments of $100 per week. Accordingly, on remand the trial court shall amend its judgment to clarify whether it intended to award child support in the amount of $400 per month or $100 per week.

5. Mr. Walker contends the trial court erred by failing to grant his recusal motion. The record does not reflect a ruling by the trial court on the recusal motion. Nevertheless, Mr. Walker waived the recusal issue for purposes of appellate review by going forward with the change of custody hearing without invoking a ruling on the motion. Sorrells v. Emory Hosp., 194 Ga. App. 558, 559 (391 SE2d 10) (1990). In any event, the motion was subject to denial by the trial judge because it was not timely filed within five days of the time Mr. Walker learned of the alleged basis for recusal and showed no good cause for the delay. Christensen v. State, 245 Ga. App. 165, 171 (537 SE2d 446) (2000); Wellons v. State, 266 Ga. 77, 88-89 (463 SE2d 868) (1995). Moreover, the affidavits supporting the recusal motion contain either bare conclusions or opinions not sufficient to support the motion or refer to alleged comments by the trial judge at a prior hearing which, although indicative of some irritation by the trial judge with Mr. Walker’s conduct, did not indicate the type of personal bias necessitating recusal. Stephens v. Ivey, 212 Ga. App. 407-408 (442 SE2d 248) (1994); Dept. of Transp. v. City of Atlanta, 260 Ga. 699, 705 (398 SE2d 567) (1990).

6. There was no error in the trial court’s failure to consider alleged past due child support, an issue not raised by the change of custody petition.

7. Contrary to Mr. Walker’s contention, the trial court did not award year 1999 tax exemptions for the children to the mother. The trial court’s sole ruling as to tax exemptions was that Mr. Walker was entitled to claim both children as tax exemptions on his year 2000 tax return.

8. We agree with Mr. Walker’s claim that the trial court was without authority to award attorney fees to the mother in this case. Attorney fees are not awardable in an action seeking change of custody by the noncustodial parent, even where child support is also sought. In the Interest of S. K. R., 229 Ga. App. 652 (494 SE2d 558) (1997). The portion of the judgment ordering Mr. Walker to pay attorney fees of $500 is reversed.

Decided February 21, 2001

William D. Walker, pro se.

June S. Gamble, for appellee.

9. Mr. Walker has failed to allege or demonstrate any harm caused by the trial court’s denial of his motion to compel discovery. Accordingly, this enumeration of error is without merit. Brown v. Brewer, 237 Ga. App. 145, 148 (513 SE2d 10) (1999).

10. The claim that the trial court erred by failing to include, upon request, findings of fact and conclusions of law in the judgment is also without merit. The custody and visitation issues raised in the petition in this case were uncontested; therefore, no findings of fact and conclusions of law were necessary. OCGA § 9-11-52 (b). As to the child support issue, the trial court’s order was sufficient to comply with the requirements of OCGA § 9-11-52.

11. On remand, the trial court shall add to its judgment the garnishment language contained in OCGA § 19-6-30 pertaining to child support orders.

Judgment affirmed in part and reversed in part and case remanded with direction.

Ruffin and Ellington, JJ, concur.


text:
    A00A2352.
    CODY v. COLDWELL BANKER REAL ESTATE CORPORATION.
    (546 SE2d 299)
   Andrews, Presiding Judge.

Channon R. Cody appeals from the trial court’s order granting Coldwell Banker Real Estate Corporation’s motion to dismiss her appeal pursuant to OCGA § 5-6-48 (c) for an unreasonable delay in the filing of the transcript.

The trial court simply granted the motion without elaboration and failed to make the necessary findings as to whether the delay was unreasonable, inexcusable, and caused by Cody. Dalton v. Vo, 224 Ga. App. 382 (480 SE2d 377) (1997). In making these necessary findings, a trial court exercises a legal discretion which we review only for abuse. Wood v. Notte, 238 Ga. App. 748, 749 (519 SE2d 923) (1999). Because the trial court did not make the necessary findings, we are unable to determine whether the trial court properly exercised its discretion in dismissing the appeal. Dalton, 224 Ga. App. at 383; Wood, 238 Ga. App. at 749.

Decided February 21, 2001.

Arthur F. Millard, for appellant.

Weissman, Nowack, Curry & Wilco, Charles B. Waters, Jr., Alicia E. Coleman, King, Taylor & Stovall, James F. Stovall III, for appel-

Accordingly, we vacate the trial court’s order dismissing the appeal and remand the case to the trial court with instructions to make the necessary findings.

Judgment vacated and case remanded.

Ruffin and Ellington, JJ, concur.


text:
    A01A0090.
    DAUGHERTY v. THE STATE.
    (546 SE2d 310)
   Mikell, Judge.

Lenard Rodney Daugherty was convicted of driving under the influence of alcohol by a Bibb County jury. On appeal, Daugherty contends that the trial court erred by admitting into evidence statements that he made at the scene and by denying his motion for directed verdict. We affirm.

“Where 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 on August 28,1999, at approximately 1:30 a.m., Deputies David Vaughn and William Ferrell of the Bibb County Sheriff’s Department noticed a vehicle speeding through an intersection. Deputy Ferrell testified that when they finally caught up with the vehicle, he noticed that the driver was driving very erratically. After the driver crossed the centerline and drove in the opposite lane, Deputy Ferrell turned on his blue lights to stop him.

Deputy Vaughn approached the driver, the vehicle’s sole occupant, and requested his license and insurance card. Deputy Vaughn testified that the car had a strong smell of alcohol and that Daugherty admitted that he had been “drinking a lot.” Deputy Vaughn, who was a trainee at the time, communicated this information to Deputy Ferrell. Deputy Ferrell then took control of the investigation.

Deputy Ferrell approached Daugherty’s vehicle from the driver’s side and instructed him to exit the vehicle. Daugherty complied. When Deputy Ferrell asked Daugherty if a mechanical problem caused his erratic driving, Daugherty was nonresponsive. Deputy Ferrell then asked Daugherty where he was coming from, and Daugherty replied, “Whiskey Road,” which Deputy Ferrell knew was a bar. During the time Deputy Ferrell questioned- Daugherty, he smelled alcohol coming from Daugherty’s person. Deputy Ferrell then decided to give Daugherty three field sobriety tests: the one-leg stand test, the walk and turn test, and the horizontal gaze nystagmus test.

Daugherty could not complete the one-leg stand test, which requires that he balance on one leg and count to fifteen. When asked to do the walk and turn test, Daugherty said that he did not want to participate after taking one or two steps. Deputy Ferrell testified that Daugherty’s performance on the horizontal gaze nystagmus test indicated some level of intoxication. After administering the sobriety tests, Deputy Ferrell decided that Daugherty was probably under the influence and placed him under arrest for driving under the influence of alcohol.

1. In his first enumeration of error, Daugherty argues that with the exception of his statement that he had too much to drink, the other statements he made to the deputies at the scene were not produced to his counsel pursuant to his OCGA § 17-16-22 demand; thus, the statements should have been excluded from evidence.

OCGA § 17-16-22 (a) provides: “At least ten days prior to the trial of the case, the defendant shall be entitled to have a copy of any statement given by the defendant while in police custody.” This requirement also applies to oral statements. In this case, however, Daugherty was not in police custody when he made the statements he sought to exclude. “Roadside questioning during an accident scene investigation or after a routine traffic stop does not constitute a custodial situation.” Since Daugherty had not been formally arrested when he made the statements, he was not in police custody; therefore, the state was not required to furnish the statements. Accordingly, the trial court did not err in admitting the statements.

Decided February 21, 2001.

Virgil L. Brown & Associates, Eric D. Hearn, for appellant.

Otis L. Scarbary, Solicitor, Cynthia T. Adams, Assistant Solicitor, for appellee.

2. In his remaining enumeration of error, Daugherty argues that his motion for directed verdict should have been granted because he was not identified as the driver during the trial. This argument lacks merit.

On appeal from a denial of a motion for directed verdict, the applicable standard of review is that of Jackson v. Virginia, whether a rational trier of fact could have found guilt beyond a reasonable doubt. Deputy Vaughn testified that he was able to identify Daugherty by the picture on his driver’s license. Furthermore, it is undisputed that Daugherty was the only person in his vehicle. Construed in favor of the verdict, a rational trier of fact could have found evidence that Daugherty was the driver of the vehicle and was guilty beyond a reasonable doubt.

Judgment affirmed.

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

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

       Daugherty was also cited for failure to maintain a lane upon Lamar Road. Since the citation listed the wrong street as the place of the offense, however, the trial court entered a directed verdict for Daugherty on that offense.

       We note that the purpose of the criminal discovery statutes is to avoid surprise. Mowery v. State, 234 Ga. App. 801, 802 (2) (507 SE2d 821) (1998). Though the transcript of the motion to suppress hearing is not a part of the record, there are scant references to Deputy Ferrell’s testimony at the hearing about the statements Daugherty sought to exclude at trial. Thus, it certainly appears that Daugherty could not have been surprised by the statements at trial.

       OCGA § 17-16-22 (b).

       (Citations and punctuation omitted.) Knox v. State, 216 Ga. App. 90, 91 (2) (453 SE2d 120) (1995).

       See id.; Webb v. State, 179 Ga. App. 101 (345 SE2d 648) (1986).

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

       See Miller v. State, 270 Ga. 741 (1) (512 SE2d 272) (1999).

       See generally Dixon v. State, 196 Ga. App. 15, 19 (10) (c) (395 SE2d 577) (1990) (contention that directed verdict was warranted because the defendant was never identified as the culprit was without merit where the defendant was identified as the driver of the automobile that the police stopped).


text:
    A01A0372.
    DEEP SOUTH CONSTRUCTION, INC. v. SLACK.
    (546 SE2d 302)
   Mikell, Judge.

Deep South Construction, Inc. (“Deep South”) appeals the trial court’s dismissal of its complaint, pursuant to OCGA § 9-11-37 (d), as a sanction for wilful failure to respond to discovery in a timely manner. For reasons explained below, we affirm.

The record shows that Deep South filed suit against Robert C. Slack on April 8, 1999, alleging breach of contract. According to the complaint, Deep South contracted with Slack to perform earthmoving and construction services on Slack’s property. Deep South alleges that it performed the services in accordance with the contract, but Slack failed to pay. By agreement of counsel, Slack’s attorney acknowledged service of the complaint on August 16, 1999. On that day, Slack also filed his answer and counterclaim and served his first request for production of documents on Deep South. Specifically, Slack requested that Deep South produce “[a]ny and all documents which support the Plaintiff’s claim that it performed work on the Defendant’s property in accordance with the contract between the Plaintiff and Defendant.” He requested documentation including letters, bills, invoices, and correspondence involving the parties.

Counsel for Deep South requested an extension of time to respond to the request for production on September 13, 1999, and counsel for Slack agreed. On September 23, 1999, counsel for Deep South sent a letter which stated:

I realize that I also have a response to a request for production of documents due to you today [;] however, I have been unable to obtain the necessary documents from my client as of this date. As soon as my client delivers the documents to me, I will file a response and provide you with copies of the documents or schedule a time for you to review the documents.

Having received no further response, counsel for Slack sent letters on October 25, November 17, and December 17, 1999, asking that Deep South produce the requested documents. Slack’s counsel ultimately threatened to file a motion to compel discovery if the requested documents were not received by January 7, 2000. Deep South responded to Slack’s discovery request on January 7, approximately five months after the response was due. However, despite alleging nonpayment for work performed as the basis of its complaint, Deep South failed to provide any invoices or documentation to support the allegation, as requested in paragraphs three and four of Slack’s request for production. Deep South provided copies of other lawsuits involving the subcontractors who worked on the same construction project and the following response: In a letter accompanying the response, counsel for Deep South stated that additional documentation had been requested from his client, but that it had not been located at that time.

Other documents including invoices, checks and payroll records exist regarding the work on this project. The clerical person who handled bookkeeping for the corporation left the corporation unexpectedly and as of this date, these documents have not been located. Plaintiff believes that Defendant received invoices or pay requests setting forth the charges on this project. Therefore Defendant should have copies of a portion of these documents. Plaintiff will continue to search for these documents and will supplement these answers as necessary if other documents are located.

After Deep South had failed to provide the requested documentation over one month later, Slack filed a motion to dismiss on February 29, 2000. Deep South responded to the motion and filed a supplemental response to the request for production; however, it did not provide the requested invoices and documentation establishing that the work had, in fact, been performed. Approximately one month later, Slack filed a Uniform Superior Court Rule 6.4 (B) certificate stating that counsel had made a good faith effort to resolve the pending discovery dispute. The trial court granted Slack’s motion to dismiss, concluding that the documents submitted by Deep South were not responsive and that Deep South’s failure to respond to the discovery requests in a timely manner was wilful. OCGA § 9-11-37 (d).

1. Deep South contends that the court erred in granting the motion to dismiss because Slack failed to comply with the requirements of USCR 6.4 (B). This argument has no merit.

“Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent the showing of a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed.” (Citations omitted.) Rivers v. Almand, 241 Ga. App. 565, 566 (1) (527 SE2d 572) (1999).

USCR 6.4 (B) provides:

Prior to filing any motion seeking resolution of a discovery dispute, counsel for the moving party shall confer with counsel for the opposing party in a good faith effort to resolve the matters involved. At the time of filing the motion, counsel shall also file a statement certifying that such conference has occurred and that the effort to resolve by agreement the issues raised failed. . . .

Deep South argues that Slack did not make a good faith effort to resolve the discovery dispute prior to filing the motion to dismiss. Contrary to Deep South’s argument, however, we conclude that Slack complied with USCR 6.4 (B) by agreeing to extend the deadline for Deep South’s response and by writing three letters reiterating the request for production of documents. We have held that “[t]here is no requirement in this rule that counsel for the movant make more than one attempt to resolve the discovery matter.” Mansell 400 Assoc. v. Entex Information Sucs., 239 Ga. App. 477, 481 (5) (519 SE2d 46) (1999). Thus, Slack’s numerous attempts satisfy the requirements of the rule.

Accordingly, we conclude that the court did not abuse its discretion when it found that Slack satisfied USCR 6.4 (B) and, therefore, granted the motion to dismiss as a sanction for Deep South’s failure to produce the requested documents.

2. Next, Deep South argues that the dismissal was entered in error because Slack should have obtained an order compelling discovery before filing the motion to dismiss. Again, we disagree.

OCGA § 9-11-37 (d) (1) provides:

If a party or an officer, director, or managing agent of a party . . . fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b) (2) (A) and (b) (2) (C) of this Code section.

Subparagraph (b) (2) (C) authorizes the sanction of “[a]n order . . . dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” An order compelling discovery is not a condition precedent for the imposition of sanctions under this Code section. Rivers, supra, 241 Ga. App. at 566 (1). See also Barrego v. OHM Remediation Svcs. Corp., 245 Ga. App. 389, 390 (2) (537 SE2d 774) (2000).

Deep South relies on Strejc v. MARTA, 197 Ga. App. 88 (397 SE2d 501) (1990), for its contention that its partial response to the discovery renders the court’s dismissal an inappropriate sanction; however, that case is factually distinguishable from the case at bar. Strejc involved partial and evasive answers to interrogatories. By contrast, the case sub judice concerns Deep South’s total failure to produce the invoices and documents on which its claim is based.

Because the filing of a motion to compel is not a condition precedent for seeking sanctions under OCGA § 9-11-37 (d) (1), the court did not abuse its discretion when it granted Slack’s motion to dismiss based on Deep South’s failure to produce the requested documents. See Rogers v. Sharpe, 206 Ga. App. 353, 354 (2) (425 SE2d 391) (1992).

3. Finally, Deep South contends that the trial court erred in concluding that it totally failed to respond to discovery. Deep South argues that it responded to the request for production by requesting an extension and eventually filing a partial response.

Decided February 21, 2001.

Thompson & Sweeney, Virgil L. Thompson, Jr., for appellant.

McLarty, Robinson & Van Voorhies, John E. Robinson, for appellee.

“A trial court’s finding that a party has wilfully failed to comply with its discovery obligations will not be reversed if there is any evidence to support it.” (Citation and punctuation omitted.) Resource Network Intl. v. Ritz-Carlton Hotel Co., 232 Ga. App. 242, 244 (501 SE2d 573) (1998). A harsh sanction such as dismissal for failure to participate in discovery requires a “conscious or intentional failure to act, as distinguished from an accidental or involuntary noncompliance.” Id. at 242. See also Kemira, Inc. v. Amory, 210 Ga. App. 48, 51 (1) (435 SE2d 236) (1993). Significantly, we have held that there is no requirement that the trial court find actual “wilfulness,” because “[a] conscious or intentional failure to act is in fact wilful.” (Punctuation omitted.) Bells Ferry Landing v. Wirtz, 188 Ga. App. 344, 345 (373 SE2d 50) (1988).

We find that there was evidence to support the trial court’s finding of wilful failure to respond to discovery. Deep South filed suit alleging that Slack failed to pay for services it rendered; however, it consciously failed to produce the requested documentation that would evidence performance of the services, even after Slack’s counsel requested the documents on at least three occasions after granting an extension of the initial response period. “Plaintiffs who file lawsuits and put defendants to the expense and trouble to answer! ] should at least prosecute their actions efficiently and diligently; the [Civil Practice Act] authorizes dismissal in a case like this.” Bells Ferry Landing, supra at 345.

Judgment affirmed.

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

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

       The supplemental response is not included in the record; however, in its appellate brief, Deep South states that it provided “the name and address of a separate corporation which might have other relevant documentation.”


author: Eldridge, Judge.

text:
    A01A0582.
    TWEEDELL v. THE STATE.
    (546 SE2d 306)
   Eldridge, Judge.

A Cobb County jury convicted Michael Anthony Tweedell of three counts of armed robbery. He was sentenced to 20 years to serve. The defendant appeals from the superior court’s denial of his motion for new trial, as amended, contending that the evidence was insufficient to support his conviction. Finding this claim to be without merit, we affirm. Held'.

When reviewed in the light most favorable to the verdict, Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998), the record shows that a white male entered a Cobb County health food store on a July 1992 afternoon. The perpetrator approached two cashiers at the cash register, opened his shirt revealing a handgun in the waistband of his pants, and demanded the money in the register. He also told one of the cashiers to hand over her jewelry. Seeing that the cashiers were having difficulty in opening the cash drawer, the perpetrator directed that they ring up a snack package of banana chips in the apparent belief that this would open the register. In doing so, he handled a chips bag with his hand. On being given the money, approximately $150, the perpetrator vacated the premises, tbe armed robbery taking place in not more than ten minutes.

Told by the cashiers that the perpetrator had touched the package of chips, a detective at the crime scene secured the same in an evidence bag. Subsequently, a crime scene technician lifted a fingerprint from the bag and placed it on a latent fingerprint card. In 1998, not having been able to previously identify the fingerprint, the police screened the latent print using the Automated Fingerprint Identification System, a system which had recently been procured. Computer analysis identified a known print of the defendant as the closest of ten matches to the latent print.

At trial, the State’s fingerprint analyst testified that his visual comparison of the fingerprints confirmed that the latent print belonged to the defendant. Although conceding their inability to positively identify the defendant as the perpetrator in or out of court, each cashier gave testimony describing him as a white male, standing about five and a half feet tall, weighing approximately 150 pounds, and having unkempt, long, brown hair. They also testified that they had never seen the perpetrator before the armed robbery, one cashier having been employed by the store for two years, the other for three months.

The defendant does not challenge the conclusions drawn by the State’s fingerprint expert upon testimony and evidence in the record as matters for the jury’s determination. J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 635 (1) (512 SE2d 34) (1999). Rather, the defendant points to the testimony of his own fingerprint expert indieating that he could have left a fingerprint at the crime scene at any time and the fact that he had not been positively identified, arguing that the State’s case was predicated upon no more than weak circumstantial evidence.

Decided February 21, 2001.

Howard & Delaney, Stephen A. Delaney, for appellant.

Patrick H. Head, District Attorney, Laura J. Murphree, Dana J. Norman, Assistant District Attorneys, for appellee.

On appeal, the evidence must be viewed to uphold the verdict; the appellant is no longer presumed innocent; and the evidence is reviewed for sufficiency alone, the court neither weighing the evidence nor determining witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737) (1990). Further, to support the verdict, “Circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. [Cits.]” Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987).

Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused [ ] is primarily a question for determination by the jury. This 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. Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

(Citations omitted.) Brown v. State, 245 Ga. App. 706, 709 (1) (538 SE2d 788) (2000).

We decline to disturb the jury’s verdict in this case. The circumstantial evidence was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of armed robbery as alleged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

       The superior court merged Count 1 with Count 3 for sentencing as charging takings of currency and property from a single victim and sentenced the defendant to two consecutive ten-year sentences as to Counts 1 and 2.