text:
    A00A0730.
    TELEDATA WORLD SERVICES, INC. v. TELE-MART, INC.
    (531 SE2d 372)
   Phipps, Judge.

Teledata World Services, Inc. brought this breach of contract action against Tele-Mart, Inc., seeking damages and other relief. Teledata appeals the trial court’s grant of Tele-Mart’s motion to dismiss for insufficiency of service of process.

Tele-Mart is a Nevada corporation authorized by the Secretary of State to transact business in Georgia. Teledata attempted to serve the complaint and summons first at the Atlanta address for TeleMart’s local registered agent for service of process and then at the New York City address of Tele-Mart’s secretary/treasurer. After these attempts at service proved unsuccessful, Teledata argues that it then perfected service under the Georgia Long Arm Statute by delivering the summons and complaint to an unnamed individual at Tele-Mart’s principal place of business in Staten Island, New York, and then forwarding process to the Staten Island address by registered mail accompanied by a return receipt. Held:

Georgia’s Long Arm Statute may be used to serve nonresident defendants. To be considered a “nonresident” under the Long Arm Statute, a corporation must be neither a Georgia corporation nor a foreign corporation authorized to do or transact business in Georgia. Because Tele-Mart is authorized to transact business in Georgia, the Long Arm Statute is not applicable here.

If a foreign corporation authorized to transact business in this state has no registered agent or the agent cannot with reasonable diligence be served, the Georgia Business Corporation Code (OCGA § 14-2-504 (b)) states that the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Alternatively, the Civil Practice Act (OCGA § 9-11-4 (d) (1)) allows service on the president or other officer or agent, or on the Secretary of State if personal service on a corporate officer or agent cannot be had.

Decided March 16, 2000.

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, for appellant.

Garland, Samuel & Loeh, Edward T. M. Garland, Robin N. Loeb, Sam L. Starks, for appellee.

Here, Teledata has not shown that the unnamed individual who was served at the Staten Island office was an authorized officer or agent of Tele-Mart. Therefore, the court was authorized to find that service was not perfected under the Civil Practice Act. And although Teledata argues that there is substantial evidence that the Staten Island office was Tele-Mart’s principal place of business, its references to the record do not support that argument. Moreover, the purported service by registered mail was not addressed to the corporate secretary, either at the Staten Island or New York City office. Thus the court was authorized to find that service was not perfected under the Georgia Business Corporation Code either. Therefore, we affirm the court’s grant of Tele-Mart’s motion to dismiss. Remaining issues are moot.

Judgment affirmed.

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

       See OCGA § 14-2-1501 (a).

       See OCGA § 9-10-90.

       Id.


source: Caselaw Access Project

author: Andrews, Presiding Judge. Ruffin, Judge,

license: Public Domain

text:
    A99A1695.
    BULLARD et al. v. THE STATE.
    (530 SE2d 265)
   Andrews, Presiding Judge.

Lester and Carol Bullard appeal from the judgment entered after a jury found them guilty of two counts of Medicaid fraud and one count of false writings. Because we conclude there was no reversible error, we affirm the judgment.

Lester and Carol Bullard, husband and wife, were accused of submitting fraudulent claims to the Georgia Department of Medical Assistance and accepting payments of approximately $340,763 to which they were not entitled. The indictments alleged that Lester Bullard, a physician, and his wife Carol, who also worked in his medical office, solicited children who were Medicaid recipients to come to their medical office for the checkups required to attend a camp program. The Bullards then used the children’s Medicaid numbers to bill the Georgia Department of Medical Assistance for psychotherapy services for the children, which were not provided. The Bullards were also accused of putting false documents in the files of these children and submitting these documents to the Georgia Bureau of Investigation and the Attorney General to try to justify the billings.

1. In their first enumeration, the Bullards claim that the trial court erred when it denied Carol Bullard’s motion for directed verdict on the two Medicaid fraud counts because there was no evidence that she participated in the Medicaid fraud. We disagree.

Contrary to the Bullards’ argument that Carol Bullard had no role in the recruitment of the Medicaid children to the office, there is a letter from Lester Bullard to Pam Dixon, who worked in their office as a phlebotomist technician, in which he writes of a meeting between her and Carol Bullard. At that meeting, Carol Bullard and Dixon agreed that Dixon’s daily assignment was to schedule 50 additional Medicaid children every week to come in for health checks. Lester Bullard wrote that he and Carol Bullard were requesting that Dixon keep written reports on the number of patients called and submit the written report to Carol Bullard each week.

Even if this reference to her involvement in getting as many Medicaid recipients as possible into the office was not sufficient to show Carol Bullard’s active participation in the Medicaid fraud scheme, there was additional testimony that Carol Bullard was present in the office and participated in the fraudulent scheme. She was in the office when the camp kids started coming in, and her role was to direct and organize the procedures for examining the children. The phlebotomist technician working in the office at the time testified that Carol Bullard told her she must stay and help with the examinations of the camp kids, who usually came in late in the day. Carol Bullard also would occasionally perform the physical examinations of the children.

The Bullards claim there was no evidence that Carol Bullard actively participated in the actual billing of the claims, because she did not take over the billing department until after the fraudulent claims were billed. That is not dispositive in light of the evidence discussed above. Moreover, the evidence is undisputed that Carol Bullard actively participated in creating forms to put in the files of the Medicaid recipients after the investigation began.

2. The Bullards also claim the trial court should have granted Carol Bullard’s motion for directed verdict because she is not a “provider” under OCGA § 49-4-146.1 (b) (2), which' states that it is unlawful “[f]or any provider knowingly and willfully to accept medical assistance payments to which he is not entitled or in an amount greater than that to which he is entitled, or knowingly and willfully to falsify any report or document required under this article.” “Provider” is defined as “an actual or prospective provider of medical assistance under this chapter.” OCGA § 49-4-146.1 (a) (7).

The State points out that Carol Bullard’s wide range of activities and supervisory role in the medical office made her a party to the crime, and we agree. Even assuming Carol Bullard cannot be considered a provider, OCGA § 16-2-20 (a) states, in pertinent part, that a person may be found guilty as a party to a crime if she intentionally aids or abets in the commission of the crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime. Thus,

[pjarticipants to a crime may be convicted although they are not the actual perpetrator of the crime. Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of the crime.

(Punctuation omitted.) Sands v. State, 262 Ga. 367, 368 (2) (418 SE2d 55) (1992). Here, the evidence as discussed above was sufficient for a jury to find that Carol Bullard was guilty as a party to the crime of Medicaid fraud beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Next, the Bullards contend the trial court erred in granting the State’s motion in limine and excluding the testimony of 22 witnesses on behalf of Lester Bullard and one witness and medical records on behalf of Carol Bullard.

(a) Lester Bullard’s witnesses. The evidence at the hearing was that Lester Bullard’s defense counsel faxed a list of 22 witnesses to the State on the Saturday before trial began on Tuesday. The State objected to these witnesses, stating that there was no justification for it and the State would be prejudiced because there was not enough time to interview them all before trial. Defense counsel stated that he had just found out about the witnesses “last week.” The trial court granted the State’s motion in limine, finding “objective bad faith” in serving the State with a list of twenty-two witnesses one working day before trial. The trial court also found that allowing these witnesses to testify would prejudice the State’s case.

OCGA § 17-16-6 provides that the court may, upon a showing of prejudice and bad faith, prohibit the defendant from calling the undisclosed witnesses.

In reviewing a trial court’s decision on a motion in limine, we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.

(Punctuation omitted.) Davis v. State, 226 Ga. App. 83, 84 (1) (485 SE2d 508) (1997).

Here, there was evidence that the court had put the case on call for trial at least two months earlier. Defense counsel did not have a sufficient explanation as to why he waited to disclose the witnesses until just before the start of trial. Further, the trial court correctly concluded that it would now be very difficult for the State to interview 22 witnesses during trial.

Moreover, as the State points out, there was no proffer at trial as to the testimony of the 22 witnesses for Lester Bullard. In appellants’ brief, the only citations to the record concerning what the testimony would have shown are to evidence introduced at the motion for new trial hearing. In order for this Court to determine whether the claimed error, if any, was harmful, there must be an offer of proof in the record concerning the testimony Bullard expected the witnesses to give. Hill v. State, 232 Ga. App. 561, 563 (502 SE2d 505) (1998).

(b) Carol Bullard’s witness and evidence. The prosecutor stated at the hearing on the State’s motion in limine, that she had been told less than 24 hours before trial that Carol Bullard planned to call her sister as a witness and also to introduce Carol Bullard’s medical records from several years earlier. Defense counsel told the trial court that Bullard’s sister would testify that her sister was a good student, was training to be a doctor, and then had an accident which left her in a coma. Because of this accident, Carol Bullard never completed her medical training. As the trial court correctly found, an accident which occurred in 1981 was not relevant to any issue in the case. Thus, Carol Bullard can show no harm because the witness was not allowed to testify. In order for an alleged error to be grounds for reversal of a conviction, the appellant must show not only error, but also ensuing harm. Goodwin v. State, 208 Ga. App. 707, 709 (431 SE2d 473) (1993). Moreover, trial counsel never gave the court a satisfactory explanation of why he did not list the sister as a possible witness until just before trial.

Therefore, because there was evidence to support the trial court’s findings of bad faith and prejudice to the State by disclosing 23 additional witnesses right before trial, the trial court’s factual findings were not clearly erroneous, and the trial court did not err in granting the State’s motion in limine.

4. In their next enumeration of error, the Bullards claim that trial counsel were ineffective because they did not comply with the discovery rules and identify the witnesses and evidence discussed above in time to introduce them at trial. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984); Gross v. State, 262 Ga. 232, 233 (1) (416 SE2d 284) (1992). The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. Id.

In analyzing a claim of ineffective assistance of counsel, we note at the outset that a trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990). Further, the Bullards must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. Snyder v. State, 201 Ga. App. 66, 69 (8) (410 SE2d 173) (1991).

With regard to the first prong, we conclude that trial counsel’s performance was not deficient. At the hearing on the motion for new trial, two of the witnesses who were not allowed to testify gave evidence. As the State points out, this evidence would not have helped Lester Bullard’s case. Rather, the testimony showed that Lester Bullard could not possibly have provided psychological counseling for all of the children he claimed to have seen. Moreover, Lester Bullard’s trial counsel testified at the hearing and said he was very “tentative” about calling these witnesses. He said he and Bullard did not always agree on trial strategy.

Carol Bullard’s sister testified and said that her sister was not that involved in running the office during the time in question. But, on cross-examination, she admitted that she lived out of state and could not say that she visited as often as even once a month.

But, even assuming that trial counsel’s performance was deficient in failing to comply with the discovery rules and identify the witnesses and medical evidence in time to use them at trial, there is nothing in the record to show that these witnesses ór this evidence would have changed the outcome. The evidence is undisputed and overwhelming that the Bullards actively and aggressively recruited children with Medicaid numbers and then billed these numbers for services that were not performed. Thus, there is no reasonable probability that the jury would have reached a different verdict absent the claimed error of counsel. Gross, supra.

5. Next, the Bullards claim the trial court erred in not striking the testimony or declaring a mistrial when the State introduced bad character evidence about Carol Bullard. The first instance complained of was an employee’s testimony that the Bullards put too much pressure on her and did not respect her as a person. This testimony concerned the instructions to the employees and the pressure exerted on the employees to make up charts in response to the GBI subpoena. Because this was directly related to one of the offenses charged in the indictment, the evidence was admissible. Frazier v. State, 257 Ga. 690, 698 (362 SE2d 351) (1987).

The other objected-to testimony is an employee’s statement that Carol Bullard would say things to hurt her feelings and another employee’s statement that she left her job because of a conflict with Carol Bullard over a salary increase. The testimony of two other employees was never objected to, and defense counsel even explored some of the remarks on cross-examination.

There was no error. Much of the testimony was relevant because it showed the extent of Carol Bullard’s involvement in the daily running of the medical office. In any event, none of the testimony rises to the level of general bad character evidence under OCGA § 24-9-20. See, e.g., Seals v. State, 176 Ga. App. 67, 68 (335 SE2d 306) (1985) (testimony by detective that photo of defendant was a “mug shot” did not put defendant’s character in issue); Lester v. State, 90 Ga. App. 43 (81 SE2d 894) (1954) (officer’s testimony that he was at defendant’s house because complaints were made against defendant did not put defendant’s character into issue).

6. The Bullards claim that the trial court erred in refusing to give two requested jury charges. The charges stated that an accessory after the fact cannot be found guilty of the original crime but instead commits the separate offense of obstruction of justice. The Bullards argue that Carol Bullard’s defense was that she participated in creating files only in order to cover up the Medicaid fraud but was not part of the fraud itself. Therefore, Carol Bullard was entitled to have the jury instructed on this theory of defense.

“An accessory after the fact is not a party to the crime under OCGA § 16-2-21, but the act constitutes the separate offense of obstruction of justice.” Martinez v. State, 222 Ga. App. 497, 499 (2) (474 SE2d 708) (1996). Because Carol Bullard was neither indicted nor charged with the offense of felony obstruction, but rather with the offense of making or using false writings, it would have been improper for the trial court to charge the jury on this offense. Id. The trial court does not err in refusing to give a charge if any portion is inapt, incorrect, confusing or not authorized by the evidence. Id. Moreover, a review of the jury charge as a whole shows that the trial court adequately instructed the jury on the presumption of innocence and the State’s burden of proof and their duty to acquit in the event they did not find Bullard guilty of each offense charged beyond a reasonable doubt. Stansell v. State, 270 Ga. 147, 151 (510 SE2d 292) (1998).

7. The Bullards also argue that the trial court erred in not instructing the jury that a false writing submitted to an agency must be material before it can be considered a crime. There is no merit to this enumeration. As the State points out, the Bullards were charged with making or using “any false writing or document, knowing the same to contain any false, fictitious, or fraudulent statement or entry. . . .” OCGA § 16-10-20. Because the specific act charged from that Code section does not contain the word “material,” there was no error in the charge.

8. Next, the Bullards contend that the charge failed to adequately explain the elements of the Medicaid fraud offenses and failed to define the terms “provider” or “entitled.” They do not point to any requests to charge on these elements, nor do they cite to any authority in support of their argument. Further, these are not terms of art that require explanation. Moore v. State, 234 Ga. App. 424, 427 (506 SE2d 925) (1998). “Terms of common usage and meaning need not be specifically defined in the charge to a jury.” (Punctuation omitted.) Id.

9. In their last enumeration of error, the Bullards argue that the indictment failed to allege that either Lester or Carol Bullard was a “provider” under OCGA § 49-4-146.1 (b) (2). They claim this rendered the indictment fatally defective.

That is not the law. The purpose of the indictment is to allow the defendant to intelligently prepare his defense and protect him from double jeopardy. State v. Eubanks, 239 Ga. 483, 484-485 (238 SE2d 38) (1977). A post-conviction review of an allegation of a defective indictment is one of harmless error. A defendant who was not misled to his prejudice by any alleged imperfection cannot obtain a reversal of his conviction on this ground. Id. Because the Bullards show no harm from the alleged defect, there was no error.

Judgment affirmed.

Ruffin and Ellington, JJ., concur specially.

Ruffin, Judge,

concurring specially.

I concur in the Court’s judgment, but I write separately with respect to Division 3 (a) concerning the State’s motion in limine to exclude 22 of Bullard’s witnesses.

Defense counsel faxed a list of 22 witnesses to the State on the Saturday before the trial began the following Tuesday. The trial court granted the State’s motion in limine to exclude the witnesses, ruling that the defense acted in “objective” bad faith and prejudiced the State with its eleventh-hour list. By flatly excluding all 22 witnesses, without exploring the possibility of less drastic alternatives, the trial court may have needlessly hampered Bullard’s ability to present a defense. Instead of granting the motion in limine wholesale, the trial court could have ascertained whether defense counsel could whittle down the witness list by eliminating any repetitive witnesses. As defense counsel has represented that the “vast majority” of the 22 witnesses were character witnesses, it is likely that many of them were redundant. The State could then have been permitted to interview the remaining witnesses, to the extent feasible, before and during the trial. A more flexible approach such as this could have expanded Bullard’s defense options without “ambushing” the State.

Decided March 1, 2000 —

Reconsideration denied March 17, 2000

Garland, Samuel & Loeb, Donald F. Samuel, for appellants.

J. Tom Morgan, District Attorney, Thurbert E. Baker, Attorney General, Nancy B. Allstrom, Assistant Attorney General, for appellee.

I agree, however, that Bullard has failed to show that he was harmed by any error on the part of the trial court because he failed to offer proof concerning the testimony he expected the witnesses to give.

I am authorized to state that Judge Ellington joins in this opinion.

       Appellants’ brief makes no argument about the relevancy or admissibility of the medical records; therefore, we will not address this issue.'


author: ANDREWS, Presiding Judge.

text:
    A99A2296.
    SCOTT v. THE STATE.
    (527 SE2d 210)
   ANDREWS, Presiding Judge.

Michael Bernard Scott appeals from his Gwinnett County conviction of forgery, contending that the trial court erred in limiting his cross-examination of co-defendant Angela Agnew.

Viewed in favor of the jury’s verdict, the evidence was that, on July 18, 1998, Agnew was driven by Scott to Galleria Mall. Also in the car was Webster, Scott’s girlfriend. All three lived in the same apartment complex, and Scott had asked Webster to go to eat and to a movie that afternoon. After arriving at the mall, Agnew alone went into Parisian where she attempted to purchase a dress with a check forged with the name of Tracey Armstrong. It was her intent to return the dress after several days and obtain cash. Agnew presented, as identification, a fake military Reserve identification card which was recognized as such by the clerk, who summoned security.

The store detective and Officer Pickens then approached Agnew, who acknowledged that the check and identification were false. Agnew then implicated Scott, saying he had given her the check and identification. She told the officers that Scott was waiting for her at the north entrance in a burgundy Mazda. Agnew was taken into custody and put in Pickens’ patrol car. As they were exiting the parking lot, although not near the north entrance to the mall, the officer spotted a burgundy Mazda and radioed other officers to intercept it. Sgt. Kirkland entered the parking lot and encountered Scott driving out. He turned on his blue lights and yelled and pointed at Scott to pull over. The car then jumped a curb but finally pulled over. Officer Pickens then asked Scott if he knew Agnew, and he said he had never seen her before.

At trial, Agnew stated for the first time that, prior to uttering the check at Parisian, she had already passed several other checks with the same intent. She stated that she obtained these checks from Scott and had been with him when he obtained the fraudulent checks from an unidentified man. When she was apprehended, she also had in her possession 11 other checks in the name of Tracey Armstrong.

During direct examination of Agnew, she stated that she had pled guilty to this “charge,” i.e., the Parisian incident. She then testified, in response to a specific question from the prosecutor, that there were no “other pending charges” regarding “this case and these forgeries.” On cross-examination, defense counsel attempted to inquire about her “legal status” in Muscogee County, where Agnew was alleged to be on probation under a first offender plea and there was an outstanding bench warrant for her. Defense counsel wanted to further examine this situation to explore her motive in bringing Scott into the prosecution and testifying against him. While the State correctly points out that a first offender sentence may not be used to impeach the first offender on general credibility grounds, that is not what Scott was attempting to do.

Pursuant to the Confrontation Clause of the Sixth Amendment, a defendant in a criminal trial is guaranteed the right to cross-examine a witness against him concerning criminal charges brought by the State which are pending against the witness. Hines v. State, 249 Ga. 257, 259-260 (290 SE2d 911) (1982). By means of such cross-examination, the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State. Id. Whether the witness is testifying pursuant to a deal with the State relating to the pending charges is not crucial to the right to conduct such cross-examination. Id. Rather, the defendant is entitled to show by cross-examination that the witness may be shading his testimony in an effort to curry favor from the State. Id. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” (Citations and punctuation omitted.) Id. at 260. Although the extent of cross-examination on a relevant issue is within the sound discretion of the trial court, it is an abuse of discretion and clear error for the trial court to bar all inquiry by defense counsel on an issue on which the defendant was entitled to reasonable cross-examination.

Decided December 6, 1999

Reconsideration denied March 17, 2000

Barry M. Hazen, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

Nealy v. State, 239 Ga. App. 651, 656-657 (10) (522 SE2d 34) (1999).

While any petition seeking revocation of her probation would not have been admissible, Turtle v. State, 271 Ga. 440, 444 (4) (520 SE2d 211) (1999), counsel should have been allowed to cross-examine Agnew concerning this on the same premise that allows cross-examination regarding pending charges. Id.; Nealy, supra.

Here, the sole evidence implicating Scott came from Agnew. She had neglected to tell the police or prosecutor, until trial, about the other checks she had already passed, and it is not inconceivable that her failure to do so had to do with a pending probation revocation on her first offender case. Webster’s testimony about the events leading up to the trip to the mall differed in many pertinent details from Agnew’s, and there was a substantial issue as to Agnew’s credibility. Therefore, the error here cannot be said to be harmless. Compare Nealy, supra, with Whitlock v. State, 239 Ga. App. 763, 765 (2) (521 SE2d 901) (1999).

Judgment reversed.

Ruffin and Ellington, JJ., concur.

        Matthews v. State, 268 Ga. 798, 801-803 (4) (493 SE2d 136) (1997); Hall v. State, 235 Ga. App. 44, 47 (6) (508 SE2d 703) (1998).


author: Johnson, Chief Judge.

text:
    A98A2296.
    In the Interest of M. C. J. et al., children.
    (531 SE2d 404)
   Johnson, Chief Judge.

In September 1997, the mother of then two-year-old M. C. J. and five-month-old R. A. J. petitioned the juvenile court to terminate the parental rights of the children’s father, who is serving a fifty-year sentence for four counts of aggravated assault. The juvenile court granted the petition and terminated his parental rights. The father appealed, asserting in one of his enumerations that the juvenile court lacked jurisdiction over the case. The guardian ad litem, who had recommended that the father’s rights not be terminated, filed a brief asserting the same arguments as the father.

We agreed with the father and reversed the decision of the juvenile court, holding that the juvenile court lacked jurisdiction to decide the case because it was brought by one parent and was presumptively a custody dispute, jurisdiction over which lies in the superior court. In the Interest of M. C. J., 236 Ga. App. 225 (1) (511 SE2d 533) (1999); see In the Interest of W. W. W., 213 Ga. App. 732 (445 SE2d 832) (1994) (a deprivation case filed between parents is prima facie a custody case and must be brought initially in superior court). The Supreme Court of Georgia granted certiorari to consider the correctness of this court’s holdings in In the Interest of M. C. J. and In the Interest of W. W. W.

In In re M. C. J., 271 Ga. 546, 549 (523 SE2d 6) (1999), the Supreme Court of Georgia reversed our decision and overruled In the Interest of W. W. W., supra; In the Interest of M. A., 218 Ga. App. 433, 434 (461 SE2d 600) (1995) (holding that all deprivation actions between parents are prima facie custody matters which must be brought in superior court); and all other cases relying on In the Interest of W. W. W. and In the Interest of M. A. for the propositions stated above. The Supreme Court held that all juvenile actions brought by one parent against another are not prima facie custody cases and all such actions need not be filed in superior court. In re M. C. J., supra. The Supreme Court explained that the only “custody cases” juvenile courts should not entertain are deprivation proceedings brought by a noncustodial parent to obtain custody from a custodial parent. Id. at 548.

In reversing our decision as to jurisdiction, the Supreme Court remanded the case so that we may consider the remaining substantive issues in the case. The remaining issues are: whether the children are deprived when they are well cared for by the mother and her family; whether termination is in the best interests of the children; and whether the trial court erred in basing its decision on the opinion of a psychologist who did not examine the children.

The parents of M. C. J. and R. A. J. met in 1994 but never married. M. C. J. was born in June 1995, and R. A. J. was born in February 1997. Both children have lived with the mother and her parents in the grandparents’ home since birth. The father saw M. C. J. several times per week during the first two months of the child’s life but did not help care for the child much during the visits. The father would become “extremely aggravated” when M. C. J. needed changing or was hungry and would pass the child to the mother if the infant was not calm within a few minutes. He cared for the child by himself on one occasion. From February 1996 until the father’s incarceration in July 1996, the father saw M. C. J. about five times. The father has never had any contact with the couple’s second child, R. A. J., who was born during his incarceration.

The father never attempted to legitimate the children. He has paid about $1,300 in child support since the children were bom. He has paid no child support while in prison, despite having a jail account with funds available. While in prison, he admitted to the mother that he had regularly used cocaine.

In the winter of 1995, while the mother was pregnant with M. C. J., the father backed her against a wall and pounded the wall around her face with his fists as she cried and as his mother tried to stop him. In May 1995, the father became angry with the mother while she was driving and punched her car windshield, shattering the glass. She was eight months pregnant at the time.

In late 1995, the father hit the mother in the face. As she tried to hide her face from him, he yanked her hair repeatedly. In June 1996, while the mother was pregnant with their second child, the father slapped her. One-year-old M. C. J. was in the bathroom with them during the incident.

Between the time the mother became pregnant with M. C. J. in 1994 and the time of M. C. J.’s birth in 1995, the father was convicted of seven crimes, including two counts of driving under the influence of alcohol, possession of alcohol by a minor, hunting out of season, hunting from a motor vehicle, hunting from a public road, and hunting deer at night.

The children’s maternal grandfather assisted the father in various ways, such as helping him get his driver’s license reinstated, but the father lost the license again after getting another DUI conviction. The grandfather also helped him get a job and co-signed on a car loan so he would have transportation to and from work. However, the father defaulted on the note, and when the grandfather paid the arrearage, the father repaid him with a bad check. The father also made unauthorized charges on the grandfather’s charge account.

In early 1996, the father was charged with DUI, possession of alcohol by a minor, driving on the wrong side of the road, driving with an open container of alcohol, and speeding. A few months later, the father was charged with murder and five counts of aggravated assault. The circumstances surrounding this incident are not clear from the record before us, although the incident involved a fatal shooting after a party. The father was acquitted of murder and one of the aggravated assault charges but was convicted of four counts of aggravated assault. He was sentenced to 50 years, with the first 40 to be served in confinement and the remainder to be served on probation. After the father was sentenced on the aggravated assault convictions, the state decided not to prosecute the traffic charges brought earlier in the year.

While in prison, the father has been disciplined for fighting and possessing razor blades, a knife, a lighter, and cigarettes. He testified that he completed his GED requirements while in prison and is on a waiting list to undergo treatment for alcohol abuse. He will be eligible for parole in 2010.

1. The father contends the juvenile court erred in finding the children deprived within the meaning of OCGA § 15-11-2 (8) when the evidence shows they are well cared for by their mother and other relatives. This argument is without merit.

The statute provides that the court determines parental misconduct or inability based upon, among other things, the lack of proper parental care or control by the parent in question. OCGA § 15-11-81 (b) (4) (A) (ii). That someone else is providing good care in the absence of the parent in question does not preclude a finding of deprivation. See generally Jones v. Dept. of Human Resources, 155 Ga. App. 371 (2) (271 SE2d 27) (1980) (court’s finding that child is deprived authorized even though caseworker’s intense supervision of mother and child prevented harm to child). In fact, the court may evaluate the issue of deprivation by considering the conditions in which the children would be raised if placed with the parent in question. In the Interest of J. L. M., 204 Ga. App. 46, 48 (1) (418 SE2d 415) (1992) (deprivation finding authorized where father incarcerated, despite temporary guardians’ provision of good care).

The question is whether the child is presently without the proper parental care and control of the offending parent. See In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992). And while imprisonment alone cannot lead to termination, the trial court can consider an incarcerated parent’s criminal history in determining whether a child is presently without the proper parental care and control of the offending parent. In the Interest of F. C., 239 Ga. App. 545, 546 (521 SE2d 470) (1999). Based on his previous history and present incarceration, there is no dispute that, at the present time, the father is unable to furnish proper parental care for and control of the children. The trial court did not err in finding the children deprived.

2. The father contends that the trial court was not acting in the children’s best interests by terminating his parental rights inasmuch as the termination leaves them illegitimate with no potential source of income from him or his family. We disagree.

In determining whether termination is in the best interest of a child, the trial court is to consider the physical, mental, emotional, and moral needs of the child. In the Interest of C. D. A., 238 Ga. App. 400, 404 (3) (519 SE2d 31) (1999). Financial support from the father would certainly benefit the children. However, the children here have not received significant financial support from the father or his family. Nor have they received mental, emotional, or moral support from their father. The older child, who was two years old at the time of the hearing, has had very little contact with his father since infancy. During one of the visits the father assaulted the mother in the child’s presence, and during other visits he became frustrated with the child’s behavior and handed him over to the mother. The younger child, who was about one year old at the time of the hearing, has had no contact with her father at all.

When presented at the hearing with a hypothetical question which included the father’s history, a clinical psychologist testified that based on the father’s age (22) and long history of alcohol and drug abuse, aggression and violence, some of which has been directed at the mother, and his lack of responsibility, the deprivation was likely to continue. The expert testified that, based on the hypothetical given, he would expect that upon release from the structured prison environment the person would be at times violent, including toward the children; irresponsible; to have continued minimal contact with the children; and to abuse alcohol and drugs. In his opinion, the likelihood of the person described being rehabilitated is “dismal.”

As for whether continued deprivation is likely to harm the children, the expert testified that he believed the children would be harmed by a continued relationship with the father whether he remains in prison or not. The children are not bonding with the father while he is in prison. As a result of the lack of bonding necessary for a healthy relationship, the father will be a stranger to them and negatively affect their senses of stability, well-being, and right or wrong. Having a parent in prison is confusing to children, and children sometimes blame themselves for their parent’s situation. The expert added that children are harmed by having a parent that is a poor role model.

The expert testified that, in his opinion, the children will suffer even more harm upon the father’s release from prison. Given his volatile temper, tendency toward violence, impulsiveness, and alcohol and drug abuse, visitation would have a negative impact on the children’s well-being.

The same factors supporting a finding of parental inability or misconduct may also show that termination is in the child’s best interest. In the Interest of F. C., supra at 545. Also, the court may consider uncertainties as to when the father would be able to care for the children. In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Although the father now voices concern about the children having no legal father as a result of the termination, he never took any steps toward legitimating them. The trial court has broad discretion regarding the best interest of the child. In the Interest of M. L. P., 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652) (1999). The trial court did not abuse its discretion in this case.

3. The father contends the juvenile court erred by basing its decision, in part, upon the opinion of an expert witness. He complains that the clinical psychologist who testified on the mother’s behalf lacked personal knowledge of the parties, that his opinion was based on the opinion of the mother’s attorney rather than on facts in evidence, and that his opinion went to the ultimate issue in the case. This enumeration presents no grounds for reversal.

It was not necessary for the witness to know the parties personally. An expert witness may testify about opinions based on his personal knowledge or upon facts admitted into evidence at trial and presented in the form of hypothetical questions. Peters v. State, 268 Ga. 414, 415 (1) (490 SE2d 94) (1997). Therefore, that he did not know the parties is not critical if the facts were admitted into evidence and presented as hypothetical questions.

At the hearing, the father accepted the witness as an expert. The mother’s attorney announced that he would ask the expert hypothetical questions based on evidence admitted or which would be admitted at the hearing. See Vaughn v. State, 249 Ga. 803, 804-805 (294 SE2d 504) (1982). The father’s attorney did not object. The mother’s attorney then proceeded to ask the questions, including therein the following factual predicates: a 22-year-old father is serving a 40-year prison sentence for aggravated assault; he has DUI convictions, several hunting violations, an open container law violation, and the numerous other offenses discussed above; he was disciplined in prison for fighting and possessing contraband; he had difficulty keeping jobs before going to prison; he made unauthorized charges on another person’s credit card; he defaulted on a car loan and wrote a bad check; he shattered a car window with his fist while the pregnant mother of his child was driving; he punched a wall around the mother’s face; he slapped the mother and pulled her hair; he failed to take care of the children by himself except on one occasion; he abused alcohol and drugs; and he paid $1,300 in child support during the children’s lives, but took back some of it to pay fines, bail, and debts. The hypothetical questions also included other similar facts which are too numerous to list here.

The father does not specify which of the facts, which go on for several pages of the hearing transcript, are not supported by the evidence. This is not the kind of argument required to preserve an enumeration for appellate review, since it invites the court to review the entire record to determine which of the many predicate facts included in the lengthy hypothetical questions are not supported by the evidence. See Green v. State, 208 Ga. App. 1, 2 (2) (429 SE2d 694) (1993). Indeed, our review of the record in connection with our consideration of Divisions 1 and 2 reveals that the questions were consistent with the evidence introduced at the hearing. Moreover, the fact that an expert’s opinion may be based in part on facts not in evidence goes to its weight, not its admissibility. Parrish v. State, 237 Ga. App. 274, 278 (2) (v) (514 SE2d 458) (1999). This argument presents no grounds for reversal.

Decided March 17, 2000.

Charles E. Day, Ann N. Garner, for appellant.

McNally, Edwards, Bailey & Lander, Kenneth J. Lander, for appellee.

Nor is reversal required based on the father’s argument that the expert improperly testified as to the ultimate issue in the case. As this issue is raised for the first time on appeal and no objection was made on this ground in the trial court, we need not consider it here. See Inta-Roto, Inc. v. Guest, 160 Ga. App. 75, 76-77 (1) (286 SE2d 61) (1981); see generally Minor v. State, 264 Ga. 195, 196 (1) (442 SE2d 754) (1994).

Judgment affirmed.

Smith and Barnes, JJ., concur.


author: Miller, Judge.

text:
    A99A1819.
    BROWN v. THE STATE.
    (531 SE2d 409)
   Miller, Judge.

Based on his confrontations with three separate victims in the Carver Homes area within a five-week period, a jury found Randy Brown guilty of aggravated assault with a deadly weapon, two counts of aggravated assault with the intent to rape, two counts of burglary, criminal attempt to commit burglary, and peeping Tom. From the denial of his motion for a new trial, Brown appeals, urging seven enumerations of error. We affirm.

1. Brown challenges the sufficiency of the evidence on each conviction. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and Brown no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(a) With respect to Victim-1, Brown was found guilty of aggravated assault (Count 1), aggravated assault with the intent to rape (Count 2), and burglary, with rape as the intended felony (Count 3). Construed to uphold the jury’s verdicts, the evidence shows that on June 6, 1995, at approximately 3:45 a.m., Brown entered Victim-l’s home located across the street from Carver Homes. Brown crawled onto Victim-l’s back as she slept in her bed, pressed a knife to her neck, and then began fondling her genital area. She partially rolled over to identify her assailant. Because the streetlights directly outside the bedroom window provided light in the room, she was able to see Brown. Wearing only boxer shorts and holding her down, Brown kissed her neck and demanded that she open her legs. Brown tossed the knife onto a nearby chair.

Terrified she would be raped or otherwise hurt, Victim-1 tried to remain calm to devise an escape. She offered Brown her money and valuables, but he declined. Talking to Brown, she ascertained that he lived in the area and that he stuttered. She lured Brown out of the bed and into the living room under the guise of searching for a condom.

Despite his warning her to not turn on any lights, she turned on the hall light and saw Brown’s face. Brown shoved her, then turned off the light. She suggested turning on a closet light to aid in walking through the rooms. When Brown entered the walk-in closet, she fled through the front door. She later returned to her home to find her back door open and a window, which was operational and locked the night before, jammed open so that it no longer operated.

Without any hesitation, Victim-1 identified Brown in a photographic lineup and again at trial. Brown testified at trial that he has stuttered all of his life and that he lived in Carver Homes. With respect to the first victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of each offense alleged in Counts 1, 2, and 3 of the indictment.

(b) Regarding Victim-2, Brown was found guilty of aggravated assault with intent to rape (Count 4) and burglary with rape as the intended felony (Count 5). Construed to uphold the jury’s verdicts, the evidence shows that on June 29, 1995, at approximately 4:10 a.m., Brown entered Victim-2’s home located in Carver Homes. Victim-2 awakened in her bed to find Brown fondling her genital area. In the illumination of the hall light, bathroom light, and streetlights, she stared at Brown’s face and “evil smile.” Brown left the bedroom, then returned and punched her. Brown left the home.

Victim-2 later found the front door, locked the previous night, open. She also discovered an open window, which had been closed the night before, and a screen missing from that window. The screen was later found near the home of Brown’s grandmother. Without any hesitation, Victim-2 identified Brown from a photographic lineup and again at trial.

(i) Brown contends that the State failed to prove aggravated assault because he had no deadly weapon. This contention is without merit. The jury found Brown guilty of an assault aggravated by his intent to rape, which is entirely distinct from the crime of aggravated assault with a deadly weapon.

(ii) Brown contends that the evidence was insufficient to authorize the jury to find intent to rape, which was necessary for Counts and 5. Victim-2 testified that she woke up to find Brown fondling her genital area. Generally, specific intent must be proved by circumstantial evidence, and the question of whether a burglary defendant intended to commit a given felony when he entered a dwelling is for the jury’s determination. The evidence authorized the jury to find intent to commit rape.

(iii) Brown contends that because there was no evidence of broken or damaged windows or doors, he could not have “burglarized” Victim-2’s home. But a forced entry is not required; it is sufficient if the defendant enters a building “without authority.” The evidence supported a finding that Brown entered Victim-2’s home without authority.

With respect to the second victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of aggravated assault with the intent to rape (Count 4) and burglary (Count 5).

(c) With regard to Victim-3, Brown was found guilty of criminal attempt to commit burglary (Count 6) and peeping Tom (Count 7). Construed to uphold the jury’s verdicts, the evidence regarding the third victim shows that on July 8, 1995, at approximately 5:50 a.m., Brown was crouching at the window ledge of Victim-3’s bedroom, attempting to pick the lock. Returning from taking a shower, Victim-3 noticed a shadow and snatched back the curtain, discovering Brown with something in his hand. Brown jumped away, stared at Victim-3 momentarily, then walked to another side of the building. She continued to watch Brown through another window, until Brown again ran from her view. With many streetlights providing light, she was able to get a good look at Brown. She later noticed that although she had closed and locked the bedroom window before going to bed, the window was open approximately three inches. Without any hesitation, Victim-3 identified Brown from a photographic lineup and again at trial.

(i) Brown contends that because no one testified that the lock on the bedroom window was broken or damaged, it is not logical for the jury to find that he forced the window open. As addressed in Division 1 (b) (iii) above, this contention is without merit.

(ii) Brown contends that the State failed to prove that he took a substantial step to enter Victim-3’s home when the only evidence was that he was crouched at the window ledge with something in his hand. But proof of only one substantial step toward the commission of a crime is sufficient. Here Brown came to Victim-3’s bedroom window at 5:50 a.m. He crouched at the window, worked to pick the lock, opened the window approximately three inches, and then fled when he realized that he had been discovered. The fact that further steps must be taken before the crime can be completed does not preclude a finding that steps already undertaken were substantial. The evidence authorized the jury’s verdict that Brown took a substantial step toward entering Victim-3’s home without authority.

(iii) Complaining that the State failed to prove an essential element (intent to commit rape), Brown argues that crouching at a bedroom window ledge fails to show an intent to rape. He also urges that the criminal attempt to commit burglary, with rape as the intended felony, is inconsistent with the “peeping Tom” charge.

The question of intent is one for the jury, based on its consideration of the words, conduct, demeanor, motive, and all other relevant circumstances. Brown’s intent to commit rape was demonstrated by his spying through a bedroom window at a woman who had just finished showering, his attempt to open that window, and his flight when discovered. The two recent burglaries nearby in which Brown sexually assaulted the female residents also are proof of his intent to rape in this instance.*

Because Brown failed to argue the issue in his brief, his conclusory contention that the charge of criminal attempt to commit burglary is inconsistent with the “peeping Tom” charge is deemed abandoned. Moreover, the inconsistent verdict rule has been abolished in criminal cases.

With respect to the third victim, we conclude that the evidence was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that Brown was guilty of criminal attempt to commit burglary with intent to rape (Count 6) and peeping Tom (Count 7).

2. Brown urges that the trial court erroneously admitted hearsay statements of several witnesses.

(a) Brown’s sister, who testified that she approached Victim-1 regarding the charges against Brown, denied making any comments concerning Brown’s prowling. On rebuttal, the State reexamined Victim-1, who testified that she overheard Brown’s sister stating, “I done told him about prowling.” Victim-l’s testimony is admissible under the prior inconsistent statement exception to the hearsay rule, and no limiting instruction was necessary.

(b) During the pretrial hearing, the trial court granted Brown’s motion in limine to exclude hearsay statements that Debria Swanson claimed to be Brown’s girlfriend. During trial, however, one of the arresting officers testified that Swanson stated during Brown’s interview at the police precinct that she was Brown’s girlfriend. Brown objected, and the trial court sustained Brown’s objection. Brown then unsuccessfully moved for a mistrial, claiming without explanation that the statement placed Brown’s character in issue by attaching him to Swanson. Brown contends that the trial court erred in denying his motion for mistrial.

The decision whether to grant a motion for mistrial based on improper character evidence is within the sound discretion of the trial judge, and an appellate court will not disturb that decision unless abuse of discretion is shown. In reviewing the trial court’s decision, an appellate court may consider the facts and circumstances, including the nature of the statement, the other evidence in the case, and the court’s and counsel’s actions in dealing with the impropriety.

Brown’s counsel failed to explain how a relationship between Swanson and Brown placed his character in issue. Nor did any evidence support such an inference. Counsel argued below only that the relationship was irrelevant. But during trial Brown testified that he requested his family to visit the victims regarding his charges. His sister testified that Swanson accompanied her when she visited Victim-1 concerning Brown’s charges. Brown testified that he knew Swanson and that Swanson had visited his sister at his home. This properly admitted evidence connected Brown to Swanson and rendered harmless any prejudicial effect from the officer’s cumulative testimony. We conclude the trial court did not abuse its discretion in denying Brown’s motion for mistrial.

3. Brown contends that the trial court erroneously refused to instruct the jury on lesser included offenses. The court explained that since Brown’s defense was alibi, there was no need to charge on the lesser included offenses.

(a) Arguing that there was no evidence of an intent to commit a felony, Brown complains that the trial court erroneously denied his written requests to charge the jury on criminal trespass on Counts 5 (burglary) and 6 (attempted burglary). As explained above, the State’s evidence was sufficient to establish all of the elements of the crimes in Counts 5 and 6. Defending that he did not commit the offenses, Brown presented evidence of alibi and misidentification.

Edwards v. State set forth the complete rule on giving a defendant’s requested charge on a lesser included offense: “where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.” Here the evidence showed the completed felony of peeping Tom before Brown attempted to break into the apartment. Because neither the State’s evidence nor Brown’s alibi evidence reasonably raised the inference of any intent other than that set out in the indictment (to commit a rape), the requested charge was not supported by evidence. Accordingly, the trial court did not err in refusing to give the requested charge.

(b) Brown complains that the trial court erroneously denied his request to charge the jury on simple battery for Count 4 (aggravated assault with intent to' rape). Brown, however, made no written request for this charge. “A trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.”

4. Brown claims that the trial court erred in denying his motion to suppress his statements to police officers at the arrest scene and at the precinct. Without pointing to any particular statement and showing how the statement was incriminating, Brown asserts that his statements were not knowing and intelligent and further that his statements should have been suppressed because he had not been properly Mirandized.

(a) Police officers arrested Brown at his home and escorted him to the backseat of a police car, where the detective advised Brown of his Miranda rights through the car’s cage. The detective testified without contradiction at Brown’s Jackson v. Denno hearing that Brown verbally responded that he understood his Miranda rights. At trial, Brown confirmed that the detective advised him of his Miranda rights, and there is no evidence that Brown invoked his right to counsel. Evidence supported the trial court’s finding that police had properly informed Brown of his Miranda rights and that he knowingly and intelligently waived them.

(b) The police officers transported Brown to the police precinct to charge, book, and interview him. After reminding Brown that he had already been told his Miranda rights, the detective advised Brown of the formal charges and that the three victims had positively identified him. Brown winked, then verbally responded that he understood the Miranda warnings, that he was not a thief, and that he had not molested any women. When the detective asked Brown whether the three victims of this case, as well as the two victims who identified him on his two prior rape convictions, were all lying, Brown smiled, shrugged, and suggested a conspiracy. Brown complains that he was not given his Miranda rights again, but repeating Miranda warnings prior to the precinct interrogation was unnecessary.

5. Brown contends that the trial court erred in denying his motion to suppress pretrial photographic lineup identification. He complains that the photographic array was unduly suggestive because his picture was lighter in color and his head pointed upwards.

At the pretrial hearing, the detective testified that in constructing the photographic lineup, he selected mug shots of five males of the same race, similar ages, noses, head shapes, hair lengths, and complexions. He randomly added Brown’s mug shot, which was taken about a year before the photographic lineup, to the array of other mug shots. Brown correctly points out that his photograph is lighter than the other pictures, but the detective testified that he advised the victims that hair color could be different, that haircuts could be different, and that the exposure of the film, the lighting position, and shadows could make complexions different. Brown also correctly points out that his head is pointed upward, but at least one other male’s head points upward as well.

The record shows that each victim had ample opportunity to observe Brown. The detective showed the photographic lineup to each victim outside the company of the other two victims, and the police officers made no indication as to whom to select. Each of the victims, without hesitation, identified Brown as the perpetrator.

It is error to allow testimony concerning a pretrial identification of the defendant only

if the identification procedure was impermissibly suggestive and, under the totality of the circumstances, the suggestiveness gave rise to a substantial likelihood of misidentification. A court need not consider whether there was a substantial likelihood of misidentification if it determines that the identification procedure was not impermissibly suggestive. An identification procedure is impermissibly suggestive when it leads the witness to an all but inevitable identification of the defendant as the perpetrator or [when it] is the equivalent of the authorities telling the witness, This is our suspect.

The photographic lineup depicts six males of the same race, similar complexion, age, and hair lengths. The record contains no evidence that the photographic lineup was assembled or presented in an impermissibly suggestive manner. Considering the totality of the circumstances, we discern no error.

6. Brown contends that the prosecutor improperly injected into closing argument facts not in evidence. In support of his claim of alibi, Brown testified that two other females claimed to have been attacked during the time he was incarcerated. Both women reported that the assailant looked remarkably like Brown.

During closing, the prosecutor attempted to discredit the two women’s testimony and invited the jurors to consider “the odds” that of all the women in Carver Homes, the assailant would select two of Brown’s acquaintances. Brown specifically complains of the prosecutor’s argument that:

There are 3,600 residents in Carver Homes alone, and that’s not including Bowen Circle across the street where two of our victims lived. Just Carver Homes has 3,600 residents. Now, let me be very conservative with the number of women that probably live in Carver Homes. Let’s say there’s [sic] 600.

Brown urges that such statistics indicating the number of women who reside in Carver Homes were never introduced at trial. After the trial court overruled Brown’s objection, the prosecutor continued: “let’s say that there are 600 women or 500 or 400 women, and there’s probably going to be more women than men, because a lot of these women are single mothers.”

The police detective assigned to Carver Homes testified that Carver Homes had approximately 3,600 residents. “The prosecution is permitted to draw deductions from the evidence and these deductions may be illogical, unreasonable or even absurd so long as there is evidence from which such deductions can be made.” The challenged statement was an inference from evidence presented during the trial, and there was no error.

7. Brown contends that the trial court erred by not merging Count 1 (aggravated assault with a deadly weapon upon Victim-1) and Count 2 (aggravated assault with the intent to rape upon Victim-1). We disagree. There was evidence of assault as Brown threatened Victim-1 gratuitously with the knife and evidence of a subsequent assault as Brown shoved Victim-1 with intent to rape. Therefore, it was not error to sentence Brown separately on the jury’s findings of guilt for both offenses.

Decided March 17, 2000.

Michael S. Katz, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.

8. Relying on Phelps v. State, Brown complains that the jury instructions did not define the crime of rape as the intended felony in Counts 3 and 5. This complaint is simply inaccurate. The trial court defined the charge of rape and further instructed that, in order to convict Brown of burglary, the jury must find beyond a reasonable doubt that he specifically intended to commit the crime of rape.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Patterson, supra, 225 Ga. App. 515.

       Id.

       Compare OCGA § 16-5-21 (a) (1) with (2).

        Kelley v. State, 201 Ga. App. 343, 344 (2) (411 SE2d 276) (1991).

        Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990).

       OCGA § 16-7-1 (a); Bridges v. State, 123 Ga. App. 157, 160 (6) (179 SE2d 685) (1970). Accord Toney v. State, 225 Ga. App. 228 (483 SE2d 627) (1997).

       OCGA § 16-4-1; Smith v. State, 189 Ga. App. 27, 29 (1) (375 SE2d 69) (1988).

       Id. at 30 (1).

       OCGA § 16-2-6.

        Muckle v. State, 202 Ga. App. 733 (2) (415 SE2d 299) (1992). See also Atkins v. State, 236 Ga. 624, 625 (225 SE2d 7) (1976).

       Court of Appeals Rule 27 (c) (2).

       See Longenbach v. State, 202 Ga. App. 863, 864 (3) (415 SE2d 546) (1992).

       See Poole v. State, 130 Ga. App. 603, 604 (2) (203 SE2d 886) (1974).

       OCGA § 16-11-61 (b); Chance v. State, 154 Ga. App. 543 (1) (268 SE2d 737) (1980).

        Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982) (a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is not hearsay but is admissible as substantive evidence and is not limited to impeachment purposes); see OCGA § 24-9-83.

        Isaac v. State, 269 Ga. 875, 877 (3) (505 SE2d 480) (1998).

        Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997).

       See Wright v. State, 253 Ga. 1, 5 (3) (316 SE2d 445) (1984) (statement did not warrant mistrial because unobjected-to testimony had already been given by other witness); Ranalli v. State, 197 Ga. App. 360, 364-365 (4) (398 SE2d 420) (1990) (prejudicial impact of improper statement was lessened by properly admitted evidence and by defendant’s admission).

       See Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982) (unless it is apparent that a mistrial is essential to preserve the right to fair trial, the exercise of the judge’s discretion will not be interfered with).

       264 Ga. 131 (442 SE2d 444) (1994).

       (Citation omitted; emphasis in original.) Id. at 133. See State v. Alvarado, 260 Ga. 563, 564 (397 SE2d 550) (1990) (“a written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense”).

       See McLeroy v. State, 184 Ga. App. 62, 63 (360 SE2d 631) (1987). See also Brewer v. State, 219 Ga. App. 16, 19 (5) (463 SE2d 906) (1995) (“defendant’s evidence of alibi does not reasonably raise the inference that he unlawfully entered the home with a less culpable mental state of mind than the felonious intent of a burglar as charged in the indictment”) (citations omitted); Johnson v. State, 164 Ga. App. 429, 430 (1) (296 SE2d 775) (1982) (alibi defense presented no evidence mitigating the criminal intent element of burglary to that of criminal trespass).

        McLeroy, supra, 184 Ga. App. at 63.

       (Citation and punctuation omitted.) Livery v. State, 233 Ga. App. 882, 886 (4) (506 SE2d 165) (1998).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Sutton v. State, 264 Ga. 222, 223 (2) (443 SE2d 481) (1994) (the Georgia Bureau of Investigation agent’s failure to repeat Miranda warnings to defendant prior to the later interrogation, which resulted in incriminating statements, did not render the statements inadmissible since the agent reminded the defendant that he previously had been advised of his rights).

       (Citations and punctuation omitted.) Miller v. State, 270 Ga. 741, 743 (2) (512 SE2d 272) (1999).

       (Citation and punctuation omitted.) Clark v. State, 146 Ga. App. 697 (3) (247 SE2d 221) (1978).

       See Taylor v. State, 202 Ga. App. 671, 672 (415 SE2d 483) (1992); Sylvester v. State, 168 Ga. App. 718 (2) (310 SE2d 284) (1983); Coaxum v. State, 146 Ga. App. 370, 371 (3) (246 SE2d 403) (1978).

       192 Ga. App. 193, 195 (1) (384 SE2d 260) (1989).


text:
    A99A1828.
    GILLISPIE v. AAA PAWNBROKERS, INC.
    (531 SE2d 754)
   Miller, Judge.

Levita Gillispie sued AAA Pawnbrokers for the wrongful repossession of her automobile. After a bench trial, the court awarded judgment in favor of AAA. Acting pro se, Gillispie appeals that judgment, raising several enumerations of error concerning evidence and witness testimony. But Gillispie did not include a transcript of the trial in the appellate record so we can determine if the court committed error, nor did she submit any authorized substitute for the transcript. Gillispie moved to have the court reporter provide her a copy of the transcript, but the trial court denied the motion because she failed to appear at the hearing on her motion and did not pay her portion of the cost of preparing the transcript.

The appellant has the burden to show the alleged error by the record, and “where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.”* Because Gillispie failed to submit the trial transcript, we are unable to consider the merits of her claim and must affirm.

Decided March 17, 2000.

Levita R. Gillispie, pro se.

Frank G. Smith, Arthur H. Marateck, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       (Citations omitted.) Regency Exec. Plaza Unit Owners Assn. v. Wilmock, Inc., 237 Ga. App. 193, 194 (514 SE2d 446) (1999).


text:
    A99A2306.
    GREEN v. THE STATE.
    (532 SE2d 111)
   Miller, Judge.

Harold Lamar Green, also known as “Junior,” was tried before a jury and found guilty of three counts of aggravated sodomy and three counts of aggravated child molestation for sexual acts directed at his minor half-brother, J. A. G. The evidence authorizing these convictions showed that defendant was eighteen at the time of trial, stood 6'3", and weighed 248 pounds, while the victim was age eight. From October 1997 to January 1998, defendant lived with his father and shared a bedroom with J. A. G. In a videotaped interview, J. A. G. claimed that defendant committed oral and anal sodomy on J. A. G. and made J. A. G. orally sodomize defendant. Physical examination confirmed that J. A. G.’s anus was red and raw. At first, J. A. G. did not tell his father what was happening because defendant “threatened to hit [him,]” and J. A. G. was afraid “because he [(defendant)] hits hard and [J. A. G.] didn’t want [to be] hit.” After J. A. G. and another young boy were discovered acting out sexually, J. A. G. told his mother, his father, and Dalton Police Officers Marvin Thompson and Charlie Mariney what defendant had done to him.

At sentencing, the charges for aggravated child molestation were merged with the respective counts for aggravated sodomy. Defendant’s motion for new trial was denied, and this appeal followed. Defendant enumerates the State’s attorney’s closing argument, the extent of cross-examination, the admission of extrinsic acts evidence, and the denial of his motion for new trial on the special grounds of ineffective assistance of counsel and newly discovered evidence. We affirm.

1. We first consider Green’s second enumeration of error, complaining of the denial of his motion for new trial on the ground of newly discovered evidence. Motions for new trial on this ground are addressed to the sound discretion of the trial judge, whose decision will not be reversed on appeal unless that discretion has been abused.

It is incumbent on a party who asks for a new trial on the ground of newly discovered evidence to satisfy the court: (1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

In support of his motion, defendant introduced medical evidence that, after trial, he was tested and diagnosed positive for Herpes Simplex I (cold sores) and Herpes Simplex II (genital herpes). According to Stephen Foster, M.D., Herpes Simplex II is passed by sexual contact, and even though it can remain asymptomatic in the sensory nerves, there is constant shedding of the virus so that the disease can be transmitted at any time. Symptoms are lesions or blisters and associated burning or tingling. Moreover, the blisters can be internal, in the urethra. The herpes virus has a recurring cycle of replication, with a tendency of increased incidents at six, twelve, and eighteen weeks. Anal sex transmits the virus more readily than vaginal intercourse, with transmission through pharyngeal or oral contact being more difficult. Any single episode of asymptomatic penile rectal intercourse could transmit the virus in up to eight percent of cases. Repeated acts of anal intercourse would increase the likelihood of transmitting the virus, as would the circumstance that the recipient’s anus was red with some excoriation.

Defendant first complained of burning and itching in December 1997. If, as defendant testified, his last below-the-waist sexual contact was with his girlfriend in November 1997 and he showed no outward symptoms of herpes such as blisters or lesions during the period the alleged molestations occurred (although he experienced burning and a stinging, itching feeling), then, in Dr. Foster’s expert medical opinion, it was “essentially impossible” for defendant to acquire HSV II since that time. According to the affidavit of Dr. White, the pediatrician who examined J. A. G. in March 1998 for physical signs of child molestation, the boy did not then have any indications of HSV II, genital herpes.

The inference defendant would have us draw is a negative one: because the victim J. A. G. did not have any indications of HSV II, defendant was not the perpetrator. Given the low risk of asymptomatic transmission, we agree with the trial court that this evidence is not so material that it probably would have produced a different verdict.3 While proof that either the victim or the aggressor in a sexual assault had (or did not have) a sexually transmitted disease certainly can be relevant, this newly discovered evidence does not show the falseness, impossibility, or even improbability of the victim’s direct testimony at trial that defendant committed the acts for which he was convicted. We cannot say the trial court manifestly abused its discretion in overruling defendant’s motion for new trial on the ground of newly discovered evidence.

2. The first enumeration complains of closing argument. The State’s attorney argued:

[J. A. G. is] waiting for justice. The State’s waiting for justice. [J. A. G.] doesn’t have any rights other than the twelve of you sitting here. It doesn’t matter what your decision is today. It’s never going to make it any better for [J. A. G.] It’s always going to have happened to him. But the wrong decision could make it worse.

Whereupon defendant interposed the following objection: “Your Honor, I’m going to object. That’s improper argument. The argument as to the effect of the jury on a person is as improper as it would be to argue about the trauma to the defendant who is accused.” The trial court overruled the objection without any cautionary instructions, and closing argument continued.

Although defendant maintains on appeal that the State’s closing argument implied that a not guilty verdict “could make it worse” for the victim, we conclude that the State’s express disclaimer that it “doesn’t matter what your decision is today” negates any inference that the jury should return a guilty verdict solely because the victim would suffer from a not guilty verdict. The trial court did not err in overruling the stated objection.

3. The trial court did not err in admitting into evidence proof that, two years before, defendant had been discovered kissing then-six-year-old J. A. G. or in admitting proof of defendant’s statement that he used petroleum jelly to “get into tight places.” Evidence of homosexuality or pederasty and indications of such sexual preferences are admissible in a trial for aggravated sodomy. While evidence of homosexuality unrelated to the offenses charged is inadmissible, both the prior act and statement in question have a logical connection to the offenses charged in that they illustrate defendant’s preference for a particular victim or type of victim, plus reveal defendant’s bent of mind or his modus operandi. As to J. A. G.’s speculation on the videotape that defendant might have committed sodomy on other persons, there was no contemporaneous objection, and so this contention presents nothing for decision on appeal.* The third and fourth enumerations are without merit.

4. The fifth enumeration contends that the trial court erred in allowing the State’s attorney to continually force defendant to declare that the State’s witnesses were lying. Several times during cross-examination of defendant, the Státe’s attorney elicited without objection defendant’s insistence that the other witnesses were lying.

To ask the defendant if he himself is lying serves the important function of testing his veracity and credibility and so is well within the appropriate scope of cross-examination. In Cargill v. State, the Supreme Court of Georgia held that it is improper for the State’s attorney to ask one witness if another witness is lying, because witnesses are to testify based on their personal knowledge of the relevant facts and are not to determine the veracity of other witnesses. But since then, without expressly overruling Cargill, the Supreme Court has twice held that it is permissible cross-examination to ask the defendant if other witnesses are lying. We are bound by the latest decisions of the Supreme Court on this question and so hold that the trial court in this case did not err in permitting the State’s attorney to cross-examine the defendant by asking whether the other witnesses were lying.

Decided March 17, 2000.

5. The final enumeration is the denial of defendant’s motion for new trial on the special ground of ineffective assistance of counsel.

(a) The failure (or refusal) of trial counsel to make meritless objections is not any evidence that counsel’s performance fell below the acceptable constitutional standard of reasonably effective assistance that members of the bar in good standing are presumed to render. Thus, trial counsel’s failure in this instance to object to legitimate cross-examination or to renew objections to admissible evidence of extrinsic acts fails to prove the assistance rendered was ineffective.

(b) At the conclusion of his videotaped interview, in response to the question whether he knows of any other child whom defendant sodomized, J. A. G. speculates, “Probably some other friends. I don’t know. Probably. I’m just saying probably.” At the pretrial hearing on the admissibility of this tape, the State’s attorney conceded that this statement should not be put before the jury and promised to “mute the tape toward that portion. . . .” But defendant’s trial counsel testified he “expressly told them we did not want it muted; we did not want it eliminated.” In counsel’s professional judgment, the statement supported the argument that the child was fantasizing. It is sufficient to note that trial counsel’s strategic choices made after thorough investigation are virtually unchallengeable. The evidence in this case supports the trial court’s determination that trial counsel’s deliberate decision to allow the jury to hear J. A. G.’s last statement fell within the broad range of acceptable trial strategy.

(c) Remaining contentions regarding ineffective assistance have been considered and are without merit.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Richard K. Murray, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

        Seritt v. State, 237 Ga. App. 665, 666 (2) (516 SE2d 366) (1999).

       (Punctuation omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980), applying Berry v. State, 10 Ga. 511, 527 (14) (1851).

       Compare Reece v. State, 192 Ga. App. 14, 16 (383 SE2d 572) (1989) (in prosecution for rape, statutory rape, and child molestation, proof that the victim sustained a sexually transmitted disease authorized proof that the accused and his wife did not to rebut the inference that defendant was the perpetrator).

       See Johnson v. State, 236 Ga. App. 764, 765 (1) (513 SE2d 291) (1999) (victim’s post-trial recantation only impeaching and not material); Ortiz v. State, 222 Ga. App. 432, 433 (1) (474 SE2d 300) (1996) (rape victim’s post-trial affidavit stating no vaginal penetration not so material as to show probability of a different verdict).

        Chambers v. State, 205 Ga. App. 78, 79 (4) (421 SE2d 326) (1992) (in prosecution for incest and child molestation, trial court erroneously excluded evidence that victim tested positive for sexually transmitted disease); White v. State, 201 Ga. App. 53 (1) (410 SE2d 441) (1991) (in rape prosecution, trial court erroneously excluded medical evidence that victim exhibited infectious discharge within hours of the alleged rape); Reece v. State, supra, 192 Ga. App. at 16 (trial court erroneously excluded proof that defendant’s pregnant wife did not have the sexually transmitted disease the victim sustained).

       See Williams v. State, 197 Ga. App. 274 (398 SE2d 381) (1990). Compare Fugitt v. State, 251 Ga. 451, 452 (1) (307 SE2d 471) (1983).

       See Moon v. State, 258 Ga. 748, 760 (35) (375 SE2d 442) (1988) (observation that murder defendant showed victim no mercy within the wide latitude accorded prosecutors in closing argument).

       Jones v. State, 172 Ga. App. 347, 348 (2) (323 SE2d 174) (1984).

        Rini v. State, 235 Ga. 60, 65 (2) (218 SE2d 811) (1975).

        Salters v. State, 238 Ga. App. 45, 46 (2) (517 SE2d 593) (1999). Accord Rini v. State, 236 Ga. 715, 717 (2) (225 SE2d 234) (1976).

        Earnest v. State, 262 Ga. 494, 495 (1) (422 SE2d 188) (1992).

        Ross v. State, 192 Ga. App. 65, 67 (3) (383 SE2d 627) (1989).

       255 Ga. 616, 631 (17) (a) (340 SE2d 891) (1986).

        Whatley v. State, 270 Ga. 296, 301 (13) (509 SE2d 45) (1998); Dorsey v. State, 259 Ga. 809 (3) (387 SE2d 889) (1990).

        Hall v. Hopper, 234 Ga. 625, 631 (3) (216 SE2d 839) (1975).

        Hayes v. State, 262 Ga. 881, 884 (3) (c) (426 SE2d 886) (1993); Mann v. State, 240 Ga. App. 809, 811 (2) (524 SE2d 763) (1999); Mency v. State, 228 Ga. App. 640, 645 (2) (b) (492 SE2d 692) (1997).

        Ferrell v. State, 261 Ga. 115, 120 (3) (401 SE2d 741) (1991); Skillern v. State, 240 Ga. App. 34, 36-37 (3) (521 SE2d 844) (1999).


author: Ellington, Judge.

text:
    A99A2336.
    VEAL v. THE STATE.
    (531 SE2d 422)
   Ellington, Judge.

In the first half of a bifurcated trial, Eric Veal was convicted by a jury of three counts of aggravated assault, OCGA § 16-5-21, possession of a firearm during the commission of a crime, OCGA § 16-11-106, and theft by receiving stolen property, OCGA § 16-8-7. Veal then entered guilty pleas to the remaining counts: possession of a firearm by a convicted felon, OCGA § 16-11-131, and violating the Georgia Street Gang Terrorism & Prevention Act, OCGA § 16-15-4 (a). Following the denial of his motion for new trial, Veal appeals, and for the reasons which follow we affirm.

1. Veal contends the evidence was not sufficient to convict him of aggravated assault and theft by receiving stolen property.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citation and punctuation omitted.) Heath v. State, 240 Ga. App. 492 (1) (522 SE2d 761) (1999). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to support the verdict, the evidence showed Veal was among a large number of young people at Jack Todd’s nightclub, Chocolate City, on July 11, 1998. A disturbance broke out inside the club when some of the customers began making gestures signifying an affiliation with a certain street gang, referred to as “throwing up gang signs.” Veal slammed a bottle down and yelled, “all the FOLKS boys go outside.” Several of the customers rushed outside, and gunfire erupted in the parking lot. Veal was slightly injured on the face and arm. A witness heard Veal “talking about killing somebody that shot in [his] face” and “talking about he was going to kill anybody or anything; he was ready to shoot somebody.” One of the assault victims, Carolyn Jones, who lived in a trailer on the adjacent property, was awakened by the gunfire and rushed out of the trailer to check on the safety of certain people she believed to be at the club. Jones’ son and nephew, the other two assault victims, lay sleeping in the trailer. Jones saw Veal shooting in her direction. Several bullets from Veal’s semiautomatic Intratec 9 millimeter gun (“Tec-9”) pierced Jones’ trailer. Several shell casings which were found around Jones’ trailer were positively identified as having come from a Keltec 9 millimeter gun found in Veal’s possession when he was arrested. In a videotaped statement which was shown to the jury at trial and in his live testimony at trial, Veal denied possessing or firing a gun in the parking lot that night.

(a) Veal contends the evidence was insufficient to support the aggravated assault convictions under either type of aggravated assault: an attempt to harm the victims (OCGA §§ 16-5-20 (a) (1); 16-5-21), or an act placing the victims in reasonable apprehension of immediately receiving a violent injury (OCGA §§ 16-5-20 (a) (2); 16-5-21). Construing the evidence most strongly for the State, Veal intentionally fired at Jones’ trailer, doing so without concern for the safety of its inhabitants and with the intent to kill a person or persons he believed to be in or near the trailer. His intent to harm his desired victims is transferred to the actual victims. Happoldt v. State, 267 Ga. 126, 127-128 (1) (475 SE2d 627) (1996). “Where the ‘assault’ at issue consists of an attempt to commit a violent injury to the person of another, awareness on the part of the victim is not an essential element of the crime.” (Citations omitted.) Tiller v. State, 267 Ga. 888, 890 (3) (485 SE2d 720) (1997), overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593, n. 3 (502 SE2d 726) (1998). In Tiller, the Supreme Court of Georgia held that evidence the defendant fired a gun into an occupied building with the intent to harm someone he mistakenly believed to be inside was sufficient to support aggravated assault convictions as to other unknown inhabitants even in the absence of injury and in the absence of evidence the victims were in reasonable apprehension of being injured. Id. at 891 (4). In this case, the evidence authorized a rational trier of fact to find proof beyond a reasonable doubt of Veal’s guilt of aggravated assault “by attempting to commit a violent injury to the occupants of the [trailer] who, as it turned out” were Jones, her son and her nephew. (Citations omitted.) Id.

(b) We further conclude the evidence was sufficient to support the verdict as to the theft by receiving charge. John Brooks testified that a Keltec 9 millimeter gun was stolen from him in Milledgeville during February 1998. The same gun, identified by serial number, was in Veal’s possession when he was arrested. Veal offered no explanation for how the stolen weapon was acquired. The evidence was sufficient to convince a rational trier of fact of Veal’s guilt of the offense beyond a reasonable doubt. Adams v. State, 210 Ga. App. 151, 153 (2) (435 SE2d 514) (1993).

2. Veal contends the trial court erred in refusing to charge the jury on reckless conduct as a lesser included charge to aggravated assault. Because Veal took the stand and denied firing or even having a gun, contradicting witnesses who testified that he fired at the victims, “[t]he evidence presented only two possibilities: either [Veal] was unarmed and never fired a shot or he committed aggravated assault by . . . intentionally firing the gun toward the victims.” Hy v. State, 232 Ga. App. 247, 249 (1) (501 SE2d 583) (1998). Therefore, there was no factual foundation for the reckless conduct instruction, and the trial court properly rejected that request to charge. Martin v. State, 268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

3. Veal contends the trial court erred, in light of the bifurcation of the trial, in failing to impose limits on references to gang activities. Veal also contends his trial attorney provided ineffective assistance by failing to demand a mistrial when the trial court refused to specify limiting instructions for the bifurcated charges. Veal was charged with violating OCGA § 16-15-4 (a), “conduct[ing] or participating] in [a] criminal street gang through a pattern of criminal gang activity.” OCGA § 16-15-3 (2) defines a “ [p] attern of criminal gang activity” as committing at least two offenses from a list deemed by the General Assembly to constitute criminal gang activity within a specified time period. The trial court found that the State’s intended gang activity pattern evidence (specifically, Veal’s convictions for an aggravated assault four years before the July 11, 1998 nightclub shooting and another aggravated assault one year before the nightclub shooting) would put Veal’s character in issue. The trial court bifurcated the trial so that evidence of crimes occurring before July 11, 1998, would not be presented until after the jury returned a verdict on the charges arising from the July 11, 1998 melee.

Veal identified no references during the trial on the July 11, 1998 charges to his one- and four-year-old aggravated assault convictions. Having examined the record, we conclude that each of the references to gangs and gang activity made by the State or in response to questioning by the State referred only to the July 11, 1998 nightclub shooting.

Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. . . . The fact that such part of the res gestae incidentally placed [Veal’s] character in issue does not render it inadmissible. A trial judge’s determination that evidence offered as part of the res gestae is sufficiently informative and reliable as to warrant being considered will not be disturbed on appeal unless that determination is clearly erroneous.

(Citation and punctuation omitted.) Roberts v. State, 221 Ga. App. 196, 197-198 (2) (471 SE2d 27) (1996). In this case, testimony from witnesses that a dispute in the nightclub involving gang signs preceded the parking lot shooting was admissible as part of the crime and as res gestae, even though the evidence incidentally put Veal’s character in issue. Obviously, the trial court’s failure to exclude admissible evidence was not error. And “counsel’s failure to file a motion in limine to exclude admissible evidence or to object to such evidence at trial does not demonstrate deficient performance by counsel.” Hudson v. State, 234 Ga. App. 895, 901-902 (3) (b) (iii) (508 SE2d 682) (1998).

Furthermore, even if Veal’s counsel’s failure to request limitations on references to Veal’s previous gang activities constituted deficient performance, or the trial court’s failure to formally impose such limitations was error, Veal has shown no prejudice from the absence of such limitations because no inadmissible evidence was introduced. Harm as well as error must be shown before a conviction will be reversed based on an evidentiary ruling. Shelnutt v. State, 234 Ga. App. 655, 656 (1) (506 SE2d 643) (1998). Similarly, a conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct prejudiced the defendant. Ney v. State, 227 Ga. App. 496, 499 (4) (489 SE2d 509) (1997).

4. Veal contends the trial court erred in admitting a staged photograph showing the trajectory of the bullet in the bedroom where two assault victims were sleeping. “Where posed photographs shot at a later time are used and there is testimony as to immaterial variations between the picture and the scene, the judge’s decision to admit the pictorial representation will not ordinarily be reversed.” Eiland v. State, 130 Ga. App. 428, 429 (1) (203 SE2d 619) (1973). In the challenged photograph, the two boys are seen lying on the bed in daylight and with their eyes open. A red cord is stretched to show the alleged path of a bullet recovered from the headboard. Veal argues the photograph was inflammatory because it had the boys, who did not testify, “looking at the jury members from the photograph” with expressions “clearly portray [ing] fear, surprise and reasonable apprehension that obviously was not present while the children continued to sleep through the event.” An objective examination of the photograph does not bear out Veal’s dramatic description; the photograph was no more than a demonstrative aid which served its purpose of showing how close the bullet came to striking the victims. The trial court did not abuse its discretion in admitting the photograph for that limited purpose with appropriate cautionary instructions. Deal v. State, 233 Ga. App. 79, 83 (9) (503 SE2d 288) (1998).

5. Veal contends his trial attorney provided ineffective assistance in two other enumerations. Under the standard established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), one asserting his trial counsel’s performance was so deficient as to deny him effective assistance of counsel under the Sixth Amendment

must make two affirmative showings: that counsel’s representation fell below an objective standard of reasonableness (i.e., that counsel performed deficiently); and that such deficiency prejudiced the defense. Concerning the prejudice component, the Court (in Strickland) held that the defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 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).

(a) Veal contends his trial attorney provided ineffective assistance in failing to call Chief Wayne Amerson as a material witness. First, Veal’s trial counsel did not testify at the hearing on his ineffective assistance claim; therefore, we assume counsel’s actions were strategic. Secondly, the testimony Veal’s new counsel elicited from Amerson at the hearing merely showed that Amerson would have testified that he never saw Veal wearing a blue or black bulletproof vest on the night of the shooting. But the identification testimony was not limited to descriptions of his clothing — Veal was specifically identified at trial by witnesses who knew him. The trial court’s determination that Veal failed to establish his counsel had provided ineffective assistance was not clearly erroneous.

(b) Veal contends his trial attorney provided ineffective assistance in failing to hear or remember certain testimony during trial due to poor health. But the only evidence that his trial counsel suffered any “debilitating disease,” allegedly multiple sclerosis, was Veal’s testimony that his counsel seemed confused and fatigued as the trial progressed. Cf. Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997); Waddell v. State, 190 Ga. App. 499-500 (1) (379 SE2d 592) (1989). But the trial judge, who had the opportunity to observe trial counsel during the trial, concluded that there was no merit to Veal’s contention that his counsel was too confused and fatigued to represent him competently. The trial excerpts Veal identified as demonstrating his counsel’s inability to hear and understand show at most ordinary human imperfections. “The Sixth Amendment does not require perfect representation, only assistance sufficient to assure the accused due process of law.” Levin v. State, 222 Ga. App. 123, 128 (8) (473 SE2d 582) (1996). Again, the trial court’s determination that Veal’s ineffective assistance claim had no merit was not clearly erroneous. Nealy v. State, 239 Ga. App. 651, 653-654 (3) (522 SE2d 34) (1999).

Decided March 17, 2000

William D. Phillips, for appellant.

Fredric D. Bright, District Attorney, Shelley S. Tice, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.