text:
    A01A0418.
    SYLAR et al. v. HODGES.
    (550 SE2d 438)
   Johnson, Presiding Judge.

A contract clause provides that if one party must use an attorney to enforce the agreement, then the defaulting party shall pay attorney fees. Under this clause, must the party enforcing the contract show that the other party acted in bad faith in order to recover attorney fees? We hold that the enforcing party is not required to prove bad faith because the plain language of the attorney fees clause imposes no such requirement.

William Sylar, Melissa Sylar and Kevin Lewis entered into a contract to buy a tract of real property in Catoosa County from Elizabeth Hodges for $185,000. The Sylars and Lewis paid Hodges $18,500 in earnest money and agreed to pay the rest of the purchase price from the proceeds of the sales of two other pieces of property that they own. Their purchase of the house from Hodges was expressly contingent on their sale of these two other pieces of property. Under the contract, if they were unable to sell the properties after six months of diligent effort, either party could then void the contract, and Hodges would be required to return the earnest money to the Sylars and Lewis.

Within the six-month period, the Sylars and Lewis did not sell their two properties. They therefore asked Hodges to return the earnest money, but she refused. The Sylars and Lewis then sued Hodges for the money.

In their lawsuit, the Sylars and Lewis also sought attorney fees on two grounds. They first claimed that Hodges was liable for their attorney fees under OCGA § 13-6-11 because she had acted in bad faith by refusing to return the earnest money. They further claimed that even if Hodges did not act in bad faith, she still had to pay their attorney fees pursuant to a clause in the contract which states: “In the event this agreement is enforced by or through an attorney at law, the defaulting party shall be liable for the attorney fees and expenses of litigation of the non-defaulting party.”

The case proceeded to a bench trial. The trial judge ruled in favor of the Sylars and Lewis on their claim for the earnest money, ordering Hodges to return the $18,500 plus interest. But the judge ruled in favor of Hodges on the issue of attorney fees, finding that she had not acted in bad faith and thus is not responsible for the attorney fees incurred by the Sylars and Lewis.

The Sylars and Lewis appeal, challenging the trial court’s ruling on the issue of attorney fees. They do not contend that the trial court erred in denying them attorney fees under OCGA § 13-6-11, which requires a showing of bad faith. Instead, they argue that irrespective of bad faith, Hodges must pay their attorney fees pursuant to the contract’s attorney fees clause because they had to enforce their right to the return of the earnest money through an attorney. We agree with their argument and therefore reverse the trial court’s ruling on the issue of attorney fees under the contract clause.

Parties may establish contract terms on any subject matter in which they have an interest so long as their agreement is not prohibited by statute or public policy. There is no public policy against con-trading for the recovery of attorney fees. And we know of no statute prohibiting the recovery of attorney fees as set forth in the contract in this case. In fact, we have upheld contracts which similarly provide that a prevailing party shall recover attorney fees.

Decided June 8, 2001.

Renzo S. Wiggins, for appellants.

Frank B. Perry, for appellee.

Because there is no statute or public policy prohibiting the attorney fees agreement in this case, the dispositive issue is simply whether the Sylars and Lewis are entitled to such fees under their agreement, which requires no showing of bad faith, but only a showing that one party had to hire an attorney to force the defaulting party to comply with the contract. The undisputed facts are that Hodges defaulted on her obligation to return the earnest money after the Sylars and Lewis were unable to sell their two properties and that the Sylars and Lewis then hired an attorney to enforce their contract right to a refund of the money. Those facts, irrespective of whether Hodges had a good faith basis for initially refusing to return the earnest money, are sufficient to support an award of attorney fees under the parties’ agreement.

We therefore reverse the trial court’s ruling that Hodges is not required to pay the attorney fees incurred by the Sylars and Lewis. And we remand the case with direction that the trial court determine the amount of those fees and then enter an award in that amount in favor of the Sylars and Lewis.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

       OCGA § 13-6-11 provides: “The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

        Hope & Assoc. v. Marvin M. Black Co., 205 Ga. App. 561 (1) (422 SE2d 918) (1992).

       Id.

        Discovery Point Franchising v. Miller, 234 Ga. App. 68, 73-74 (5) (505 SE2d 822) (1998); Layfield v. Southeastern Constr. Coordinators, 229 Ga. App. 71, 72 (1) (492 SE2d 921) (1997); Hope & Assoc., supra.

       See Layfield, supra.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A0498.
    THRELKELD v. THE STATE.
    (550 SE2d 454)
   Blackburn, Chief Judge.

Following a guilty plea, Larry Wayne Threlkeld, proceeding pro se, appeals his conviction for public indecency, contending that he was (1) denied his right to effective assistance of counsel, (2) entitled to first offender treatment, and (3) not sentenced as a first offender because of his status as an attorney. For the reasons that follow, we affirm.

1. Threlkeld argues that he was denied effective assistance of counsel because his counsel below was not adequately prepared to handle a trial, and, therefore, he had no choice but to plead guilty. The State rightly contends that because Threlkeld did not raise this issue in the trial court, he has waived it on appeal.

An ineffectiveness claim must be asserted at the earliest practicable moment and before appeal when the opportunity to raise such claim is available. Simpson v. State. The failure to do so results in a waiver of that issue. Howard v. State.

The proper method for raising ineffective assistance of counsel in the entry of a guilty plea is “to move in the trial court to withdraw [the] guilty plea and, if that motion is denied, to appeal from the denial of his motion.” Aikens v. State. This is because “that issue can be developed only by a post-plea hearing in the trial court.” Id. Nonetheless, ineffective assistance of counsel “may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel.” (Emphasis supplied.) Holt v. State. In this regard, “[a] pro se petitioner is in a position similar to that of new counsel.” White v. Kelso.

Here, Threlkeld, an attorney, filed a pro se notice of appeal in the trial court six days after the trial court’s entry of judgment. Thus, Threlkeld had “new counsel” while the case was still before the trial court and could have motioned the court to allow him to withdraw his guilty plea. If the motion was denied, Threlkeld could have appealed the trial court’s denial. See Aikens, supra. Because Threlkeld did not raise the issue in the trial court, where it was first practicable to do so, he has waived this issue.

2. In two enumerations, Threlkeld argues that the trial court abused its discretion by not sentencing him as a first offender. Threlkeld contends that the court denied him first offender status because he is an attorney.

The First Offender Act provides that “in the case of a defendant who has not been previously convicted of a felony, the court may, without entering a judgment of guilt and with the consent of the defendant: (1) [d]efer further proceeding and place the defendant on probation as provided by law; or (2) [s]entence the defendant to a term of confinement as provided by law.” OCGA § 42-8-60 (a). Whether to sentence a defendant as a first offender lies entirely within the discretion of the trial court. Moore v. State.

Decided June 8, 2001.

Larry W. Threlkeld, pro se.

Barry E. Morgan, Solicitor-General, for appellee.

Threlkeld pled guilty to fondling the crotch area of a male juvenile client while the client was detained at a youth detention center. In considering Threlkeld’s request for first offender treatment, the trial court observed that Threlkeld was a 50-year-old attorney who had special access to the victim who was only 17 years old. The trial court noted that in addition to the attorney-client relationship, “[t]here was also the relationship that a young person has with an older mentor. . . . Threlkeld breached the important obligations of both relationships.” Therefore, the trial court exercised its discretion and denied defendant’s request for first offender treatment. The trial court imposed a 12-month sentence, with 30 days to be served in custody.

Refusal to consider first offender treatment as part of a sentencing formula or policy by automatic denial constitutes an abuse of discretion and constitutes reversible error. Jones v. State. Such is not the case here. The trial court, acknowledging that it was “an extraordinarily difficult case for sentencing purposes,” offered a well-reasoned ruling on why it was denying Threlkeld first offender status. Contrary to Threlkeld’s assertions, the ruling was based not only on his status as an attorney, but on the relative ages of those involved and the fact that the victim was not free to leave the room.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

       As of January 8, 2001, Threlkeld was disbarred. In the Matter of Threlkeld, 273 Ga. 331 (539 SE2d 823) (2001).

        Simpson v. State, 238 Ga. App. 109, 112 (2) (517 SE2d 830) (1999).

        Howard v. State, 233 Ga. App. 724, 729-730 (7) (505 SE2d 768) (1998).

        Aikens v. State, 241 Ga. App. 816, 817 (527 SE2d 916) (2000).

        Holt v. State, 205 Ga. App. 40, 42 (3) (421 SE2d 131) (1992).

        White v. Kelso, 261 Ga. 32, 33 (401 SE2d 733) (1991).

        Moore v. State, 236 Ga. App. 889, 890 (514 SE2d 73) (1999).

        Jones v. State, 208 Ga. App. 472, 473 (431 SE2d 136) (1993).


text:
    A01A0547.
    SOFRAN PEACHTREE CITY, LLC v. PEACHTREE CITY HOLDINGS, LLC.
    (550 SE2d 429)
   Blackburn, Chief Judge.

Sofran Peachtree City, LLC (Sofran), plaintiff below, appeals the trial court’s denial of its motion for summary judgment and the grant of summary judgment to defendant Peachtree City Holdings, LLC (PCH) as to PCH’s right to enforce a no-building restriction on certain real property. We affirm.

After being thwarted in its efforts to sell a certain piece of realty, Sofran sought declaratory relief and sued PCH. The litigation hinged on whether PCH had a right to enforce a “no-build” restriction against a 2.144-acre tract known as the “Sign Parcel.” Sofran, the owner of the Sign Parcel, wanted to sell it to a buyer who would develop it. The trial court refused to grant Sofran the desired declaratory relief and, instead, awarded summary judgment to PCH. The trial court determined that the 20-year “no-build” restriction is a covenant running with the land and that PCH has a right to enforce that restriction. In this appeal, Sofran challenges the denial of its motion for summary judgment and the grant of summary judgment to PCH. Having reviewed the controlling legal documents in the context of the applicable rules of contract construction, we affirm.

At issue are questions of law — whether certain recorded documents create an encumbrance or restriction upon Sofran’s property that is capable of being waived and whether PCH has standing to enforce that restriction. See Hardin v. Great Northern Nekoosa Corp. To resolve legal questions of this nature, the trial court employs the rules of contract construction and ascertains the intention of the parties, unless such ambiguity appears that cannot be negated by the court’s application of the statutory rules of construction. Duke v. KHD Deutz of America Corp.

PCH and Sofran are both developers of commercial real estate. In February 1995, PCH and Sofran entered into a preliminary agreement for PCH to sell two tracts of land to Sofran, a 14.7-acre piece and the “Sign Parcel.” Exhibit D of the preliminary agreement depicts a plot plan of the shopping center on which a label affixed to the Sign Parcel denotes it as “Property Having a 20 Year ‘No Building’ Restriction.” This raw land was part of a 70.2-acre commercial site in Peachtree City known as the Kedron Village Shopping Center. When the transaction between PCH and Sofran was consummated on December 1,1995, a number of documents were executed or finalized including, inter alia, a “Second Amendment to Agreement for the Sale and Purchase of Real Estate” (sale agreement), a deed to secure debt, a limited warranty deed, and a “Restriction, Operating Easement Agreement” (REA). In section 5 of the sale agreement, PCH and Sofran agreed that the Sign Parcel would be subject to “a restrictive covenant substantially as follows”:

For a period of the twenty (20) years from the date of Closing, no building or other improvements, other than a single pylon sign, with underground utilities and landscaping appurtenant thereto, shall be constructed or installed on the property located at the southeast corner of Peachtree Parkway and Georgia Route #74 and more particularly described in Exhibit D attached hereto and made a part hereof.

Section 6 of the sale agreement requires that the purchase money security deed be subject to the restrictive covenant in section 5.

The limited warranty deed governing the conveyance between PCH and Sofran was made expressly subject to, inter alia, “[t]he Reciprocal Easement and Operating Agreement between Grantor and Grantee of even date herewith.” As PCH and Sofran concede, the limited warranty deed should have referred to the REA which was filed and recorded the same day as the deed. This REA, an 18-page document executed at closing and filed and recorded shortly thereafter, expressly includes a 20-year no-build restriction on the Sign Parcel. Section 13 (b) (viii) of the REA provides: “[n]o building or structure except for the Pylon Sign (as defined in section 16 hereof), and improvements accessory thereto, shall be constructed or maintained on the Sign Parcel for a period of twenty (20) years from the date hereof.” Subsection (e) of section 13 of the REA sets forth only one contingency that would void subsection (b) (viii) and the other restrictions that preceded it. This subsection provides, “[n]otwithstanding anything contained herein to the contrary, at such time as Kroger shall no longer have a legal or equitable interest in the Shopping Center Property, the provisions of subsection (b) of this section 13 shall become null and void and of no further force and effect.” It is undisputed, however, that Kroger continues to retain an equitable interest in the shopping center property under a long-term lease.

About three months after the closing, PCH and Sofran agreed to modify the original REA by means of a document entitled the “First Amendment to Restriction, Operating and Easement Agreement.” Although altering, deleting, and substituting a few sections, the three-page amendment left most of the original REA unchanged. Section 16 of the amended REA provides, “Sofran hereby declares and establishes the perpetual right, privilege and easement for the benefit of the Shopping Center Property to construct, maintain, service and replace the Shopping Center Pylon Sign as shown on the Plot Plan (the ‘Pylon Sign’) on the Sign Parcel.” Section 16 of the amended REA continues:

Subject to the restrictions set forth in Section 13 (b) (viii) herein, [the 20-year no-build provision on the Sign Parcel], and further subject to the prior written approval of (i) Kroger so long as Kroger has a legal or equitable interest in the Shopping Center Property and (ii) PCH so long as the purchase money security deed held by PCH and secured by the Sign Parcel remains open of record, the Owner of the Sign Parcel shall have the right to relocate the Pylon Sign and the Sign Utilities on the Sign Parcel as necessary to accommodate the development of the Sign Parcel. The base of the Pylon Sign, as the same may be relocated as provided herein, shall not exceed 1,000 square feet.

After selling the two tracts to Sofran, PCH continued to own certain parcels adjacent to the shopping center as well as some nearby outparcels. When Sofran decided to market and sell the Sign Parcel, Sofran consulted with Kroger and the current owner of the shopping center. By letter of November 25, 1998, Kroger communicated its willingness to consider a waiver of the 20-year “no-build” restriction on the Sign Parcel. Kroger conditioned any waiver on the insertion of an amendment to the REA to “restrict the Sign Parcel as a ‘Contiguous Outlot’ under the REA.” Similarly, Principal Mutual Life Insurance Company (Principal Mutual), the current shopping center owner, indicated by letter dated December 26, 1996, its potential willingness to waive the 20-year “no-build” prohibition provided that the Sign Parcel be “deemed a Contiguous Outlot pursuant to the REA and subject to certain building, height and parking restrictions.” After obtaining the preliminary approvals from Kroger and Principal Mutual, Sofran began to market the Sign Parcel. When PCH threatened legal action to enforce the no-build restriction, Sofran informed PCH that Kroger and Principal Mutual had exclusive right to enforce the restriction. Nevertheless, Sofran halted its efforts to market the Sign Parcel and filed the underlying declaratory judgment action.

In its sole assertion of error, Sofran asserts that the trial court erred by concluding that under the contractual provisions of the REA, PCH has a right to enforce the no-build restriction on Sofran’s property. Sofran contends that the trial court erred in finding that: (1) the no-build restriction is a covenant running with the land, (2) the Sign Parcel property is not included in any references to “Parcels” in the REA, and (3) PCH has a right under the REA to enforce the no-build restriction. Sofran contends that in January 1997, when it repaid the purchase money loan to PCH and PCH then cancelled the security deed on the property that included the Sign Parcel, PCH forfeited all right to enforce the restriction. Sofran argues that because PCH no longer has any legal or equitable interest in the Sign Parcel, it does not have a right to restrict development on it. Sofran claims that only the owner of the shopping center and Kroger have a right to enforce the limitation at issue. We disagree.

When an agreement consists of multiple documents that are executed at the same time and during the course of a single transaction, those documents should be read together. Quintanilla v. Rathur. See OCGA § 24-6-3 (a). Thus, the documents here that were executed contemporaneously must be construed together. Hardin, supra at 597. Moreover, a contract must be interpreted to give the greatest effect possible to all provisions rather than to leave any part of the contract unreasonable or having no effect. Roland Well Drilling v. Murawski. And, one of the most fundamental principles of construction is that a court should, if possible, construe a contract so as not to render any of its provisions meaningless. Altama Delta Corp. v. Howell.

When these documents are so reviewed, they do not reveal any ambiguity. They indicate that PCH sold Sofran the property known as the Sign Parcel subject to the 20-year no-build restriction. That limitation appears in section 5 of the sale agreement, in section 13 (b) (viii) of the REA, and on the plot plan. When PCH conveyed the property to Sofran, it did so under the terms of a limited warranty deed made expressly subject to the terms of the REA. When construed together, these documents do not rebut the presumption that the no-build restriction was imposed for the benefit of the land retained by PCH after the sale. Wardlaw v. Southern R. Co. See Reeves v. Comfort.

When the language of an agreement is plain and unambiguous, the court must afford its literal meaning, despite a party’s contention that he understood the contract to mean something else. See Cotton States Mut. Ins. Co. v. Smelcer. Notwithstanding Sofran’s claim to the contrary, the no-build restriction did not disappear when the deed to secure debt was cancelled. The Sign Parcel remains subject to the restrictions in section 13 (b) (viii) since the REA as amended survived cancellation of the security deed and continues to restrict the use of the Sign Parcel. See Desai v. OK Oil.

The express terms of the REA belie Sofran’s contention that only Kroger and Principal Mutual can enforce the 20-year no-build restriction on the Sign Parcel. While it is true that section 13 of the REA remains in effect only as long as Kroger retains a legal or equitable interest in the shopping center property, it is equally true that Kroger continues to have the requisite interest. Even assuming, arguendo, that all of the use restrictions set forth in the “Declaration of Restrictions,” had been inserted therein at Kroger’s request or insistence, that fact does not alter the terms of the REA.

Subsection (b) of section 17 of the REA, which remains in effect, provides in part:

Subject to the provisions of Section 13 hereof, in the event of a breach, or attempted or threatened breach, by the Owner of any Parcel or lessee or sub-lessee within a Parcel, or any other party, of any of the terms, covenants and conditions hereof, both the Owner of the Shopping Center Property or PCH (but not the Owner of an Outlot), and any other lessee or sub-lessee to whom any such Owners shall hereafter grant such right, shall have the exclusive right and shall be entitled forthwith to full and adequate relief by injunction, specific performance, damages and all other available legal and equitable remedies from the consequences of such breach.

Thus, this subsection of the REA grants PCH an express right to seek an injunction, specific performance, damages, and “all other available legal and equitable remedies from the consequences of such breach” from the owner of any parcel or against “any other party” in the event of a breach or attempted breach of “any of the terms, covenants and conditions hereof.” Therefore, PCH could proceed against Sofran who, as “any other party,” was apparently attempting to breach the terms and conditions of the REA that encumbered the Sign Parcel. See Duke, supra at 453.

In a futile effort that would effectively rewrite the entire transaction, Sofran seeks to have the meaning of “Sign Parcel” defined to have the same meaning as the terms “Parcel” or “Parcels” as used throughout the REA. Sofran asserts that the “omission of the Sign Parcel from the list of items comprising the definition of ‘Parcel(s)’ was a scrivener’s error.” Sofran claims that “the correction of such scrivener’s error would allow enforcement of the document in its entirety.” The trial court, however, found Sofran’s so-called “scrivener’s error” argument to be unpersuasive, and so do we. As the trial court succinctly noted,

Decided June 8, 2001.

Scoggins & Goodman, Luke A. Kill, Meri K. Christensen, for appellant.

Alston & Bird, William H. Hughes, Jr., for appellee.

[t]his argument is wholly without merit as there is no evidence whatsoever to suggest that the parties to the contract meant or intended “sign parcel” to mean “parcel”; in fact, a reading of the Sale Agreement, the Second Amendment, the Deed, the REA, and the plot plans together points to the contrary, i.e., that “sign parcels” are not “parcels.”

Sofran’s argument is eviscerated by the fact that neither Kroger nor Principal Mutual would consider waiving the no-build prohibition governing the Sign Parcel unless that property was reclassified as a “contiguous outlot” which would then bring it within the meaning of “parcel” as used throughout the REA.

Finally, Sofran contends that the trial court overlooked the fundamental rule that “when construing the applicability of a restrictive covenant to a questioned parcel of land [,] a presumption will operate in favor of the free use of the land by its owner and any doubt will be resolved in favor of the owner.” C.H.E., Ltd. v. Kent. But, this presumption does not apply unless the restrictive covenant is ambiguous. Voyles v. Knight. Here, no such ambiguity has been shown. Having read and construed the documents together, we find that a 20-year no-build restriction continues to apply to the Sign Parcel and that PCH has a right to enforce it. See Muldawer v. Stribling. Therefore, PCH was entitled to judgment as a matter of law. See Desai, supra at 858.

Judgment affirmed.

Pope, P. J, and Mikell, J, concur.

        Hardin v. Great Northern Nekoosa Corp., 237 Ga. 594, 597 (229 SE2d 371) (1976).

        Duke v. KHD Deutz of America Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996).

        Quintanilla v. Rathur, 227 Ga. App. 788, 790 (1) (490 SE2d 471) (1997).

        Roland Well Drilling v. Murawski, 193 Ga. App. 38, 40 (386 SE2d 872) (1989).

        Altama Delta Corp. v. Howell, 225 Ga. App. 78, 79 (1) (483 SE2d 127) (1997).

       Although the plot plan was part of the preliminary agreement, and in large, bold print designates the Sign Parcel as “Property Having a 20 Year ‘No Building’ Restriction,” the plot plan does not appear to have been part of the closing documents. The copy of the site plan included for our review, although partly illegible, does not contain the same large, bold print.

       The closing statement indicates the recording of five documents: a limited warranty deed, security deed, right of first refusal, reciprocal easement agreement, and a drainage easement.

        Wardlaw v. Southern R. Co., 199 Ga. 97, 98 (2) (33 SE2d 304) (1945).

        Reeves v. Comfort, 172 Ga. 331, 333 (1) (157 SE 629) (1931).

        Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376, 377 (441 SE2d 788) (1994).

        Desai v. OK Oil, 233 Ga. App. 855, 858 (505 SE2d 271) (1998).

        C.H.E., Ltd. v. Kent, 262 Ga. 418, 419 (419 SE2d 915) (1992).

        Voyles v. Knight, 220 Ga. 305, 306 (2) (138 SE2d 565) (1964).

        Muldawer v. Stribling, 243 Ga. 673, 675, n. 3 (256 SE2d 357) (1979).


author: Johnson, Presiding Judge.

text:
    A01A1021.
    ALLSUP v. THE STATE.
    (550 SE2d 425)
   Johnson, Presiding Judge.

A jury convicted David Allsup of three counts of aggravated assault, two counts of kidnapping, and four counts of cruelty to children. He appeals, alleging the trial court erred in denying his motion for new trial based on the general grounds and based on the ineffectiveness of his trial counsel and erred in not appointing him new counsel for trial. Because each of these enumerations of error lacks merit, we affirm Allsup’s convictions.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Allsup’s girlfriend and her three children met Allsup as they were walking home from a store. Allsup began screaming and cursing at his girlfriend. He grabbed her by the hair and pulled her behind a church building so they could not be seen from the road. The children, unsure about what to do, followed their mother.

Allsup began kicking, slapping, punching and hitting his girlfriend. He also hit her numerous times with the metal end of a lighter. She tried to get away, but when she fell down, Allsup kicked her in the ribs and pulled her back up by her hair. Her head was bleeding, and her two older children were crying and screaming.

When Allsup finished striking his girlfriend, he began hitting her 12-year-old son. He pulled the boy by the hair and kicked, punched and hit him in the chest, stomach, back and head. Allsup hit the boy in the head numerous times. He also hit him with the metal end of a lighter. When the boy fell down, Allsup kicked him in the side and jerked him back up by his hair. The boy’s head and mouth were bleeding.

Allsup then grabbed his girlfriend’s ten-year-old daughter by the hair and dragged her behind the church. He slapped her across the face and hit her with the metal end of a cigarette lighter. His leg was over her arms so she could not move. Despite her cries to stop, Allsup hit her in the face and head, causing her lip to bleed.

When Allsup finished hitting the daughter, he resumed assaulting his girlfriend, then her son, then her daughter again. He pulled the boy by the hair a good distance the second time before he began striking him. Allsup said that if the 16-month-old baby had been older, she would have gotten the same thing.

When Allsup was finally finished, they all walked back toward the trailer where they were living. Upon seeing police, Allsup fled. He was apprehended approximately four weeks later in Tennessee. Allsup’s girlfriend and her children were taken to a safe house and then transported to a hospital. All three suffered physical injuries, including swelling, bruises and cuts.

1. Allsup claims that no evidence supports the verdicts of aggravated assault against the victims. OCGA § 16-5-21 (a) (2) provides, in part, that “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Allsup claims that a cigarette lighter is not likely to cause serious bodily injury if used offensively and that none of the victims sustained serious bodily injuries. According to him, the jury should have convicted him of the lesser included offense of battery. We disagree.

The victims testified that the girlfriend was hit more than 20 times with the cigarette lighter, that her head was bleeding as a result and that her hair was filled with blood. Because the girlfriend tried to cover her head with her hands, her hands had extensive swelling and bruising, and one of her fingers was broken. The victims further testified that Allsup hit the 12-year-old boy in the head with the cigarette lighter more than 20 times and that the boy’s head and mouth were bleeding. The victims also testified that Allsup hit the ten-year-old girl with the cigarette lighter. Officers and investigators testified that (1) all three victims suffered visible bruising to their faces, (2) the twelve-year-old boy had a cut on the top of his head, (3) there was concern about possible hearing loss in the twelve-year-old boy and (4) the ten-year-old girl had black eyes and bloody lips. Photographs also corroborated the extent of the victims’ injuries. One officer testified that his report listed the victims’ injuries only as superficial because the other boxes he could have checked involved death, knife wounds and broken bones.

This evidence was sufficient to support Allsup’s convictions for aggravated assault. It was within the jury’s province to find that the cigarette lighter constituted an offensive weapon likely to cause serious bodily injury and that the victims received serious bodily injuries. Moreover, Allsup’s argument ignores the fact that evidence of an actual serious bodily injury is not required to sustain a conviction under OCGA § 16-5-21 (a) (2). As for Allsup’s argument that OCGA § 16-5-21 is unconstitutionally vague, Allsup has waived this argument because he failed to raise it in the trial court.

2. Allsup claims that he was denied effective assistance of counsel because his trial attorney (1) failed to obtain evidence showing his girlfriend had previously made false accusations, and (2) failed to obtain a mental evaluation and medical records of Allsup. To establish ineffectiveness, Allsup must show that his trial counsel’s performance was deficient and that the deficiency caused sufficient prejudice to deprive him of a fair trial. The evidence must overcome the strong presumption that counsel’s performance fell within the wide range of reasonable professional assistance. We need not reach the deficiency issue absent a showing of prejudice.

Here, we note at the outset that Allsup has failed to provide a transcript of the hearing on his motion for new trial, so we are unable to address the alleged deficiencies because these matters do not appear in the trial transcript. The only evidence in the record before us shows that the public defender did not investigate alleged false allegations made by Allsup’s girlfriend because the evidence would not have been admissible at Allsup’s trial. The record also shows that Allsup failed to provide the public defender with “any ideas for any sort of a defense.” In the absence of a transcript on Allsup’s motion for new trial hearing, we must assume that he failed to meet his burden of proving these alleged ineffective acts and that the trial court correctly denied the motion for new trial on the basis of ineffective assistance of counsel.

Moreover, we find that the overwhelming evidence prevents All-sup from establishing a reasonable likelihood that the trial’s outcome would have been different had counsel obtained evidence of the victim’s alleged prior false allegations or medical records and a mental evaluation of Allsup.

3. Allsup contends the trial court erred in failing to appoint new counsel for trial. The record shows that a public defender was appointed to represent Allsup. One week prior to trial, a hearing was held to give Allsup an opportunity to voice his concerns about his appointed counsel. Specifically, Allsup argued that he wanted another attorney but he did not have any money. The trial court informed All-sup that the public defender was the only one in the circuit and that she was exceptional. The court then gave Allsup three choices: (1) to allow the public defender to represent him, (2) to hire his own attorney, or (3) to represent himself. Allsup decided to continue with the representation of the public defender. Allsup requested new counsel again during trial, but the trial court responded that Allsup could either represent himself or hire an attorney; the trial court instructed Allsup that the state would not provide another attorney for him.

Decided June 8, 2001.

Tolbert & Elrod, Scott R. Tolbert, Christopher D. Elrod, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

It is well established that

a criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.

Upon review of the record and transcripts in this case, we find that the trial court did not abuse its discretion in denying Allsup’s request for a different public defender.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       See Price v. State, 237 Ga. App. 54, 55 (1) (513 SE2d 40) (1999).

       See Johnson v. State, 246 Ga. App. 109, 111 (2) (539 SE2d 605) (2000); Wheeler v. State, 232 Ga. App. 749 (503 SE2d 628) (1998).

       See Price, supra.

        Reynolds v. State, 234 Ga. App. 884, 885 (1) (b) (508 SE2d 674) (1998).

        Boxer X v. State, 237 Ga. App. 526, 529-530 (5) (515 SE2d 668) (1999).

        Price, supra at 56 (5).

       Id.

        Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

       See Sanders v. State, 245 Ga. App. 701, 703 (4) (538 SE2d 772) (2000).

        Roberts v. State, 244 Ga. App. 330, 332 (2) (c) (534 SE2d 526) (2000).

       See Price, supra.

       (Citations omitted.) Mitchell v. State, 242 Ga. App. 177, 183 (6) (529 SE2d 169) (2000); Parham v. State, 218 Ga. App. 42, 44 (4) (460 SE2d 78) (1995).


author: Andrews, Presiding Judge.

text:
    A01A0566.
    JACOBS et al. v. THOMSON OAK FLOORING.
    (550 SE2d 465)
   Andrews, Presiding Judge.

Herbert Jacobs, Jr. appeals from the trial court’s grant of summary judgment to Thomson Oak Flooring (Thomson) on his claims for the wrongful death of his wife. For reasons which follow, we affirm.

This case arose when Greg Lee loaned one of his company’s logging trucks, loaded with a “skidder,” to John Howard, one of his employees. Howard asked to borrow the truck because he wanted to clean up some of his property over the weekend. Lee told Howard to return the truck to the work site by Sunday. Howard did not return the truck on Sunday but instead was returning it early Monday morning when the accident with Stephanie Jacobs occurred. The wheels and tires of the skidder that was being hauled on the truck extended out and into the lane in which Stephanie Jacobs was driving. Her car collided with the skidder, and she was killed and her two children were injured.

Jacobs first filed suit against Lee and Howard. He later amended his complaint to add claims against Thomson. Thomson filed a motion for summary judgment which was granted by the trial court. This appeal followed.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

1. Jacobs claims the trial court erred in granting Thomson’s motion for summary judgment because there was evidence that Thomson was responsible for the negligent acts of Lee and Howard under the theory of respondeat superior. We disagree.

OCGA § 51-2-4 provides “[a]n employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”

An employer-employee relationship exists when the employment agreement gives, or the employer assumes, the right to control the time and manner of executing the work. In an employer-independent contractor relationship, the employer has the right merely to require results in conformity with the employment agreement, and the independent contractor retains the right to perform the work by his own means, method and manner.

(Citation omitted.) McDaniel v. Peterborough Cablevision, 206 Ga. App. 437, 438 (425 SE2d 424) (1992).

If one is employed generally to perform certain services it may be inferable that the employer retained the right to control the manner, method and means for performance of the contract. However, where there is a specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the right of control was not retained and an independent contractor relation existed.

N. S. Co. v. Cincinnati Ins. Co., 203 Ga. App. 347, 348 (416 SE2d 859) (1992).

Here, the record shows that Lee cut timber for International Paper and for Thomson. He was paid by the ton for the wood he cut, and he negotiated the price before he began cutting. He owned the truck and skidder that were involved in the accident. Charles Kimbrel, president of Thomson, stated that Lee was one of several independent contractors that Thomson used to cut and haul timber. Under the oral agreement with Lee, Thomson designated what tracts of timber to cut and where to haul it. Thomson paid Lee on a per tonnage basis for the timber. Thomson did not withhold any taxes or contribute to Lee’s Social Security taxes and provided no benefits for Lee of any kind. In addition, Thomson had no authority to hire or fire any of Lee’s employees, nor did it have the authority to direct the manner of their work. A representative of Thomson would periodically visit the timber cutting site to determine that the cutting was being done properly and within the boundaries of the tract.

Jacobs argues that because Thomson retained the right to terminate Lee at any time, dictated when and how much wood Lee harvested, and the price he would be paid, there was evidence that Lee was an employee. First, this ignores the fact that Lee also worked for International Paper and, therefore, Thomson did not have the “ability to stop Lee’s cash flow,” as Jacobs contends. Second, this argument misrepresents the evidence. Contrary to Jacobs’s statement that “Defendant Thomson does not negotiate compensation with its loggers,” Kimbrel stated in his affidavit that Thomson negotiated the price with Lee on a case-by-case basis. Although McNure, a Thomson employee, testified that there were certain guidelines as to what the company was willing to pay the loggers, this does not contradict Kimbrel’s statement that he negotiated prices with Lee.,

In addition, Jacobs argues that the loggers were paid every week. This is correct; however, the checks that were issued were for the number of tons actually cut during that week. McNure also testified that he checked on the job site about once a week to make sure the timber was being cut according to specifications.

This case is factually similar to Yow v. Fed. Paper Bd. Co., 216 Ga. App. 652 (455 SE2d 372) (1995) and Slater v. Canal Wood Corp. &c., 178 Ga. App. 877 (345 SE2d 71) (1986). A reading of these two cases shows that this Court found an independent contractor relationship even though the degree of control exercised by the defendants in those cases was in excess of the control exercised by Thomson in this case. In Yow and Slater, this Court rejected the argument that because defendants retained the right to inspect the tract where the cutting was being done, required the cutter-hauler to carry certain types of insurance and to comply with applicable laws, reserved the right to make recommendations about the work, and required the work to be done according to industry standards, there was no independent contractor relationship. The court concluded that this evidence was not sufficient to show that defendants controlled the time, manner, and method of performance under the agreement. Yow, supra at 655; Slater, supra at 881-882.

Likewise, Jacobs’s reliance on Davis v. Beasley Timber Co., 241 Ga. App. 706 (527 SE2d 221) (2000), is misplaced. In Davis, the plaintiff claimed there was evidence that the negligent truck driver was an employee of the timber company where the company owned the truck he was driving, told him when to report for work to pick up a load of timber, gave him a handbook on company policy, and explained the company’s “Do’s and Don’ts.” Id. at 708. None of the above facts are present in this case.

2. Even if we were to conclude that Lee was an employee, which we do not, Howard was not acting within the scope of his employment when the accident occurred.

To hold a master liable for a tort committed by his servant, it must appear that at the time of the injury the servant was engaged in the master’s business and not upon some private and personal matter of his own; that is, the injury must have been inflicted in the course of the servant’s employment. The test is not that the act of the servant was done during the existence of the employment, but whether the servant was at that time serving the master.

(Citations, punctuation and emphasis omitted.) Yow, supra at 655-656 (3).

Here, the evidence was that the truck and skidder which caused the accident were normally left on the job site over the weekend. But, on this particular weekend, Lee gave Howard permission to take the truck for his personal use. Howard was supposed to return the truck on Sunday but did not return it until Monday morning. Accordingly, because Howard was transporting the skidder for his own purposes, he was not acting within the scope of his employment when the accident occurred, and Thomson cannot be liable for any of Howard’s negligent acts. Yow, supra; Braddy v. Collins Plumbing &c., 204 Ga. App. 862, 864 (420 SE2d 806) (1992).

3. Jacobs alleges the trial court erred in granting summary judgment on the issues of inherently dangerous activity and breach of a statutorily imposed duty because these issues were not addressed in Thomson’s motion for summary judgment. Although this statement is true, it is misleading. Thomson’s reply brief in support of its motion for summary judgment addresses both the inherently dangerous and statutory violation theories in detail, and the trial court’s order acknowledges that the reply brief was before it for consideration.

Also, because Jacobs has not filed a transcript of the hearing on the summary judgment motion, we must assume that the trial court properly considered the issues presented. Wolfork v. Tackett, 241 Ga. App. 633, 635 (526 SE2d 436) (1999) (Blackburn, P. J., concurring specially). The trial court’s order expressly refers to the hearing on oral argument. The burden is on Jacobs to show error by the record, and “when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed. For this additional reason, the grant of summary judgment by the trial court must be sustained.” (Citation omitted.) Gill v. B & R Intl., 234 Ga. App. 528, 531-532 (1) (c) (507 SE2d 477) (1998).

4. Next, Jacobs claims that there are issues of fact as to whether Thomson is liable for violating OCGA § 51-2-5 (2), which provides that an employer is liable for the negligence of an independent contractor “[i]f, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed.” Jacobs argues there is evidence that hauling the logging equipment which caused the accident is an inherently dangerous activity. He cites to no case law on point in support of this claim, and we find none.

“In order for OCGA § 51-2-5 (2) to apply, the work must be in its nature dangerous to others however carefully performed.” (Emphasis omitted.) Rice v. Delta Air Lines, 217 Ga. App. 452, 454 (2) (b) (458 SE2d 359) (1995). Where the work is not inherently dangerous except as a result of the negligence of the contractor, the employer is not liable. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748, 749 (282 SE2d 205) (1981).

Thomson points out that the hauling of overwide loads is permitted so long as certain safety precautions are taken. The only evidence in the record is that the accident occurred because of Howard’s negligence in not having escort vehicles, driving before it was fully light, and not driving on approved roads.

Jacobs submitted the affidavit of the owner of a firm which specializes in the investigation of accidents. But, the affidavit was not legally sufficient to withstand a motion for summary judgment. See Horney v. Panter, 204 Ga. App. 474, 478 (420 SE2d 8) (1992) (affidavit insufficient because a party resisting summary judgment must come forward with evidence sufficient to create an issue of fact and also must present some credible warrant for its admissibility). Here, the affiant stated that it was his opinion that moving overwide loads was inherently dangerous to others, no matter how carefully performed. As the trial court pointed out in its order, the expert gave no examples, cited to no statistics, and failed to state whether there were any known incidents of accidents occurring despite full compliance with safety regulations.

Decided June 11, 2001

Franklin, Taulbee, Rushing, Snipes & Marsh, James B. Franklin, Daniel B. Snipes, for appellants.

Alembik, Fine & Callner, Mark E. Bergeson, for appellee.

Moreover, even if Jacobs could somehow show the activity in question was inherently dangerous, this argument would have no merit for the reasons set forth in Division 2, supra.

5. Jacobs also contends that Thomson is liable because the wrongful act was in violation of a duty imposed by statute. He claims that Howard violated nine different statutes and regulations when he hauled the skidder on the day in question, most addressing the movement of overwide equipment.

“Pursuant to OCGA § 51-2-5 (4), an employer is liable for the negligence of an independent contractor who is performing the employer’s nondelegable statutory duty.” (Citations omitted.) Perry v. Soil Remediation, 221 Ga. App. 386, 388 (2) (471 SE2d 320) (1996). Here, as set out in Division 2, supra, Howard was not performing any duty for Thomson at the time of the accident. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

       Those claims remain pending and are not part of this appeal.


text:
    A01A0581.
    OWENS v. THE STATE.
    (550 SE2d 464)
   Blackburn, Chief Judge.

Following a jury trial, Billy Lee Owens appeals his conviction for theft by receiving stolen property, contending that the trial court erred by not granting a mistrial after a witness testified that he was on parole at the time he committed the offense. For the reasons that follow, we affirm.

Motions for mistrial are largely in the discretion of the trial judge, especially where the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.

Holcomb v. State. See Mantooth v. State. In reviewing the denial of a mistrial, we look at the relevant circumstances, including “the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.” Sabel v. State, overruled on other grounds, Massey v. Meadows.

During direct investigation by the State, Detective Atkins, the investigating officer, testified: “[Owens] basically told me that he needed to get this thing straightened out, that he was going to call his parole officer and advise his parole officer.” Owens objected and moved for a mistrial outside the presence of the jury. The trial court instructed Atkins not to mention the parole officer again and offered to give a curative instruction. Owens declined the offer and explained that he would later testify that he was on parole as a result of traffic offenses. Owens did so testify later in the trial.

Owens’ failure to renew his motion after declining a curative instruction waives this issue on appeal. See Watkins v. State. Moreover, in light of the circumstances, including the evidence of guilt, the fact that Atkins made only a passing reference to a parole officer, and the fact that Owens declined a curative instruction and chose instead to testify about why he had a parole officer, we do not find that the trial court abused its discretion by not declaring a mistrial.

Indeed, our Supreme Court has held that a passing reference to a defendant’s record does not place his character in evidence. Johnson v. State, citing Ogles v. State; see Woodard v. State (holding that a police officer’s testimony that he pulled the defendant’s criminal file did not place the defendant’s character into evidence).

Owens argues that the Supreme Court’s decision in King v. State warrants a reversal. We disagree. In King, an experienced police officer, who was present in court when the trial court ruled on King’s motion in limine that he was not to testify that King had been in jail, immediately thereafter testified that King had just been released from jail. We find that King is distinguishable because, in this case, Atkins was not first instructed by the court to refrain from mentioning the fact that Owens had a parole officer. Also, Owens later explained to the jury that he was on parole because of traffic violations.

Decided June 11, 2001.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Holcomb v. State, 130 Ga. App. 154, 155 (1) (202 SE2d 529) (1973).

        Mantooth v. State, 197 Ga. App. 797, 800 (5) (399 SE2d 505) (1990).

        Sabel v. State, 250 Ga. 640, 644 (5) (300 SE2d 663) (1983).

        Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984).

        Watkins v. State, 241 Ga. App. 251, 253 (526 SE2d 155) (1999).

        Johnson v. State, 256 Ga. 604, 605 (351 SE2d 623) (1987).

        Ogles v. State, 238 Ga. 716-717 (235 SE2d 384) (1977).

        Woodard v. State, 234 Ga. 901, 902 (2) (218 SE2d 629) (1975).

        King v. State, 261 Ga. 534, 535 (407 SE2d 733) (1991).


author: Phipps, Judge.

text:
    A01A1436.
    CHIASSON v. THE STATE.
    (549 SE2d 503)
   Phipps, Judge.

At a jury trial, Harold Chiasson was convicted of operating an unregistered vehicle, driving a motor vehicle without a valid driver’s license, and operating a motor vehicle without proof of insurance. He seeks a reversal of his convictions and sentences on grounds that the traffic stop and his pretrial detention were illegal, he is not a resident of the State of Georgia, and he did not own the vehicle he was operating. Finding no ground for reversal, we affirm.

On December 11, 1997, Officer Harper of the Douglas County Sheriff’s Department stopped a 1987 van driven by Chiasson. Harper testified that he initiated the stop because the van was an older vehicle bearing a dealer’s drive-out tag which, based on its weathered look, appeared to have been on the vehicle beyond the 30-day period authorized by Georgia law. When Harper approached the van and asked Chiasson for his driver’s license and insurance card, Chiasson refused to produce such documentation. Harper arrested Chiasson after a records check reflected that the vehicle was unregistered and that Chiasson had no driver’s license. An inventory search of the van following impoundment did not yield a driver’s license, car registration, or proof of insurance.

Three days after his arrest, Chiasson was released from jail upon posting an appearance bond. A bench warrant was later issued because of Chiasson’s failure to appear at arraignment. After Chiasson’s arrest on the warrant, this case came on for trial. At trial, Chiasson’s wife testified that the van was owned by a relative who lived in Louisiana.

1. Chiasson first challenges the legality of his traffic stop.

Investigative stops of vehicles are analogous to Terry stops and, therefore, must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Operation of any vehicle required to be registered in the State of Georgia without a valid numbered license plate is a misdemeanor, except that, during the 30-day period within which vehicle registration is required, the purchaser of a new or used vehicle may operate the vehicle with a temporary plate issued by the dealer. At the time of the traffic stop in this case, Georgia law did not require the temporary plate to show its expiration date (such a requirement was added by OCGA § 40-2-8 (b) (2) (B) (i), effective July 1, 2000). Where, as here, a vehicle was being operated with a dealer’s drive-out tag that appeared faded or weathered, there is no question that a stop of the vehicle to investigate compliance with state registration law was authorized.

2. Chiasson claims that after his initial arrest on the traffic charges, he was held in custody for longer than 48 hours without a commitment hearing, in violation of OCGA § 17-4-62. However, the failure to hold a timely commitment hearing does not affect the validity of later-obtained convictions.

3. Chiasson challenges his conviction of operating an unregistered vehicle in that there was no proof he owned the vehicle. This challenge is without merit. The evidence clearly established that Chiasson was operating the vehicle, and OCGA § 40-2-8 (a) proscribes operation of an unregistered vehicle on any highway or street regardless of whether the operator is the owner.

4. Chiasson contends that the trial court erred in refusing to charge the jury, in accordance with OCGA § 17-9-2, that “[t]he jury shall be the judges of the law and the facts in the trial of all criminal cases.”

Decided May 23, 2001

Reconsideration denied June 12, 2001

Harold J. Chiasson, Jr., pro se.

“ ‘It is the province of the court to construe the law applicable in the trial of a criminal case, and of the jury to apply the law so construed to the facts in evidence. While the impaneled jurors are made absolutely and exclusively judges of the facts in the case, they are, in this sense only, judges of the law.’ ” Here, the court charged on the applicable law and instructed the jurors to apply it to the facts as found by them. We find no error in this charge.

5. Chiasson claims that, after his failure to appear at arraignment, he was arrested under a bench warrant that was defective because (1) he was not given proper notice of arraignment, and (2) information concerning the underlying offenses was not included in the warrant as required by OCGA § 17-4-41 (a).

Even if defects in the bench warrant would affect the validity of Chiasson’s convictions, there were no defects. Requirements for bench warrants are set forth in OCGA § 17-7-90 rather than OCGA § 17-4-41. Notice of arraignment was mailed to Chiasson’s last known address as required by OCGA § 17-7-90 and returned undelivered. The bench warrant in this case complied with OCGA § 17-7-90.

6. Chiasson complains of the trial court’s failure to give requested jury instructions on the statutes he was charged with violating and on application of these statutes to vehicles operated by nonowners as well as to vehicles owned by nonresidents. We find no error, as the trial court gave a full and fair jury charge on these subjects.

7. In Chiasson’s final claim of error, he argues that under OCGA § 40-5-1 (15), he cannot be considered a resident of Georgia.

OCGA § 40-5-1 (15) defines the term “resident” as used in Chapter 5 of Code Title 40. Chapter 5 sets forth driver’s license requirements. OCGA § 40-5-20 prohibits both residents and nonresidents from driving any motor vehicle upon a highway in this state without a valid driver’s license. Chiasson’s conviction of driving a motor vehicle without a valid license was not dependent upon his being a Georgia resident. For this reason, among others, this claim of error presents no ground for reversal.

Judgment affirmed. Smith,

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

David McDade, District Attorney, Christian Pecone, Assistant District Attorney, for appellee.

       OCGA § 40-2-8.

       OCGA § 40-5-20.

       OCGA § 40-6-10.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        State v. Wright, 221 Ga. App. 202, 204 (3) (470 SE2d 916) (1996).

       See OCGA §§ 40-2-8 (b) (2) (A), (B) (i); 40-2-20 (c).

       See Burtts v. State, 211 Ga. App. 840 (440 SE2d 727) (1994) (approving investigatory stops of any vehicles displaying dealer’s drive-out tags); Berry v. State, 248 Ga. App. 874 (547 SE2d 664) (2001) (wherein a five-judge special concurrence would overrule Burtts but permit investigatory stops of vehicles with temporary tags not validly and properly displayed or appearing old, tom, or faded); United States v. Wilson, 205 F3d 720, 723 (4th Cir. 2000) (utilizing same approach as that suggested by special concurrence in Berry v. State, supra).

        Dollar v. State, 161 Ga. App. 428, 430 (4) (288 SE2d 689) (1982).

         Harris v. State, 190 Ga. 258, 263 (6) (9 SE2d 183) (1940).

       See Division 2, supra.


author: Miller, Judge.

text:
    A01A0300.
    CHEMIELOWIEC v. THE STATE.
    (550 SE2d 120)
   Miller, Judge.

A jury found Gary Chemielowiec guilty but mentally ill of kidnapping, aggravated assault, false imprisonment, and possession of a firearm during the commission of a crime. On appeal Chemielowiec challenges the sufficiency of the evidence to sustain his kidnapping conviction and the introduction of an audiotape and witness testimony of a similar transaction. We affirm.

1. On appeal we view the evidence in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence without weighing the evidence or judging the credibility of witnesses.

Viewed to support the verdict, the evidence showed that an argument arose between Chemielowiec and his wife, who moved to another bedroom to avoid further argument. When she later walked out of the bedroom toward the living room, Chemielowiec (holding a gun) approached her and asked, “[d]o you think you’re really bad now?” Chemielowiec then hit her with his fist, forced her into a bedroom, and told her to stay there. Soon after, he fired a 12-gauge shotgun onto the floor about six inches from her feet. After about three hours, Chemielowiec, now armed with three guns, brought her out of the bedroom to a window to allow her to talk to her daughter.

Under OCGA § 16-5-40 (a), a person commits the offense of kidnapping “when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” “Any unlawful asportation, however slight, is sufficient to support a kidnapping conviction.” Thus, evidence that Chemielowiec forced the victim to move from one room to another against her will was sufficient to sustain the kidnapping conviction. Chemielowiec’s reliance on Briard v. State is misplaced as the victims in that case were in no way forced, ordered, or directed to move from one place to another, unlike the victim here.

2. Chemielowiec argues that the court erred in admitting an audiotape and witness testimony of an alleged similar transaction where the State failed to give him proper notice. He complains that notice was not given until two days into trial and that this complicated his ability to prepare his defense. The State argues that notice prior to trial was impossible because the whereabouts of the evidence were unknown to the State until the time of trial.

In an interview with the victim on Saturday, September 11, 1999, the State learned of a possible similar transaction that was recorded on audiotape and requested that the victim provide the tape so that it could be determined whether the incident was, in fact, a similar transaction. On Tuesday, September 14, the State received the tape, notified the defense within an hour, allowed the defense to listen to the tape, and filed a notice of newly discovered similar transaction evidence. Jury selection also began on September 14. On Thursday, September 16, during a hearing on the admissibility of this evidence, the court found that the tape may be admissible and directed that the defense be provided with the original tape. The court withheld ruling on whether the court would allow it in light of the timeliness issue. On the following Monday, the court allowed the evidence and provided limiting instructions to the jury.

Uniform Superior Court Rule 31.1 provides that notice of the State’s intention to present similar transaction evidence shall be given at least ten days before trial and authorizes the trial judge to shorten the time required for giving such notice. This court has previously held that where the State promptly notifies the defense of newly discovered evidence and the defense is allowed sufficient time to investigate the evidence and interview witnesses so as not to be unfairly disadvantaged, the trial court is authorized to shorten the time required for giving notice. Here, the State could not provide notice ten days before trial, for it was unaware of the evidence at that time. Upon discovery of the tape, the State promptly notified the defense and amended its notice of similar transactions. Moreover, the defense was allowed to review the tape from Thursday to the following Monday. Under these circumstances, the trial court did not abuse its discretion in shortening the time required for giving notice of this newly discovered evidence.

Judgment affirmed.

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

Decided June 12, 2001.

Marcia L. Young, for appellant.

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

        Evans v. State, 240 Ga. App. 215 (1) (522 SE2d 506) (1999).

       (Citations and punctuation omitted.) Parson v. State, 245 Ga. App. 902, 904 (539 SE2d 234) (2000); Estes v. State, 234 Ga. App. 150 (505 SE2d 840) (1998).

       See Parson, supra, 245 Ga. App. at 904; Hardy v. State, 240 Ga. App. 115, 121-122 (8) (522 SE2d 704) (1999); Cosby v. State, 234 Ga. App. 723, 724 (2) (507 SE2d 551) (1998).

       188 Ga. App. 490, 491 (1) (373 SE2d 239) (1988).

        Robinson v. State, 257 Ga. 194, 195 (1) (357 SE2d 74) (1987).

       See id.; Darden v. State, 271 Ga. 449, 450-451 (2) (519 SE2d 921) (1999).

         See Thaxton v. State, 260 Ga. 141, 144 (6) (390 SE2d 841) (1990).


text:
    A01A0315.
    PERRY v. CLAY.
    (550 SE2d 125)
   Miller, Judge.

Robert Clay sued Cedric Perry on a negligence theory for injuries he sustained when the truck Perry was driving ran over Clay’s foot and ankle. The jury returned a damage award in favor of Clay. On appeal Perry contends that the trial court erred in several of its charges to the jury and in allowing two exhibits to go out with the jury. We affirm.

1. Perry contends the court erred in charging the jury on the doctrine of sudden emergency. Specifically, he argues that the doctrine is not applicable because Clay was negligent in failing to exercise caution for his own safety. This ground for objection is without merit because the question of whether Clay was negligent was for the jury to determine.

Perry presents a second ground for this objection that differs from the ground given at trial, and it is therefore deemed waived.

2. Perry also enumerates as error the trial court’s giving of plaintiff’s request to charge nos. 4, 9, 10, and 11. He argues that giving these charges had the cumulative effect of charging the jury that Perry was the guarantor of Clay’s safety. One of these charges discusses what is to be taken into account in determining whether a driver exercised due diligence. A second charge explains that drivers must be on the lookout for pedestrians. The remaining two charges explain the duty of both pedestrians and drivers and that both must be on the lookout for each other. We see no undue repetition in the charges and no inference that Perry was the guarantor of Clay’s safety.

Decided June 12, 2001.

Russell, Stell, Smith & McLocklin, John E. Stell, Jr., for appellant.

Hyatt & Hyatt, John M. Hyatt, Hoyt L. Bradford, for appellee.

3. Perry contends that the court erred in allowing two demonstrative exhibits which illustrated Clay’s injuries to go out with the jury because they served as a “continuing witness.” Pretermitting the waiver effect of Perry failing to include these exhibits in the appellate record, we hold that the “continuing witness” objection “does not apply to items of evidence such as drawings or other documents which are ‘demonstrative evidence that serve only to illustrate testimony given by the witnesses.’ ” Clay’s physician stated that the illustrations were an accurate depiction of both Clay’s injuries and the surgery he performed on Clay’s ankle. Therefore, Perry’s objection was without merit.

4. Clay’s motion for imposition of a frivolous appeal penalty against Perry is denied.

Judgment affirmed.

Eldridge, J., concurs. Andrews, P. J., concurs in judgment only.

       See Holt v. Scott, 226 Ga. App. 812, 815 (2) (487 SE2d 657) (1997); Beringause v. Fogleman Truck Lines, 200 Ga. App. 822-823 (1) (409 SE2d 524) (1991); see also Ga. Ports Auth. v. Hutchinson, 209 Ga. App. 726, 729 (8) (434 SE2d 791) (1993).

       See Luxenberg v. Griffith, 237 Ga. App. 201, 202-203 (1) (514 SE2d 63) (1999) (this court cannot consider an objection or basis for appeal different from that presented to and ruled upon by the trial court).

       Cf. Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 289 (6) (431 SE2d 115) (1993).

        Morrissette v. State, 229 Ga. App. 420, 425-426 (494 SE2d 8) (1997) (on motion for reconsideration) (burden on appellant to complete record).

       (Citations omitted; emphasis in original.) MARTA v. Green Intl., 235 Ga. App. 419, 424-425 (3) (a) (509 SE2d 674) (1998).

       Perry also argues that there were statements on the illustrations which also acted as a “continuing witness.” As these exhibits were not included in the record, nothing in the record substantiates Perry’s argument.


text:
    A01A0396.
    COX v. THE STATE.
    (550 SE2d 127)
   Miller, Judge.

After a bench trial, James M. Cox was convicted of driving with a suspended license in violation of OCGA § 40-5-121 (a). Raising four related enumerations of error challenging his stop and arrest, Cox appeals his conviction.

The evidence showed that a police officer patrolling on foot in a shopping center observed Cox, with an elderly female passenger, drive up to a bank. The pair entered the bank, and the elderly female attempted to withdraw a large amount of money. The bank manager became suspicious and, as the couple left, asked the officer to question the woman. Just before the two entered their vehicle, the officer approached and began to question the woman. Cox continually interrupted and answered questions for her. The officer then asked Cox for identification, and Cox provided his driver’s license, which the officer determined was suspended. Cox was immediately arrested.

Decided June 12, 2001.

Shirley Reed, for appellant.

Joseph J. Drolet, Solicitor-General, Meka B. Ward, Assistant Solicitor-General, for appellee.

Cox argues that the officer did not have reasonable suspicion to stop him and further did not have probable cause to arrest him. It is well established that an officer may approach citizens to make inquiries and ask for identification. This is not a stop but a first level police-citizen encounter that does not require reasonable suspicion. Here, the officer’s initial approach and request for identification did not require reasonable suspicion, and once the officer, after observing Cox operate a vehicle, determined that Cox’s license was suspended, probable cause for arrest was established.

Thus, the court did not err in finding probable cause for the arrest or in denying Cox’s motions for new trial and to dismiss.

Judgment affirmed.

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

        Ransom v. State, 239 Ga. App. 501, 503 (1) (a) (521 SE2d 430) (1999); State v. Day, 237 Ga. App. 771, 772 (1) (516 SE2d 822) (1999).

        State v. Kaylor, 234 Ga. App. 495, 496-497 (507 SE2d 233) (1998).

        Davis v. State, 237 Ga. App. 890, 891 (517 SE2d 115) (1999).

       See McCullough v. State, 211 Ga. App. 16, 18 (438 SE2d 369) (1993); cf. Lovell v. State, 178 Ga. App. 366, 367 (1) (343 SE2d 414) (1986).


text:
    A01A0600.
    EVANS v. THE STATE.
    (550 SE2d 118)
   Miller, Judge.

Following a bench trial, Yateshia Evans was found guilty of misdemeanor obstruction. On appeal she challenges the sufficiency of the evidence. In this case of first impression, we must decide whether informing a third party of the presence of police and warning him not to go into a home where officers are conducting a search and a “reversal” are sufficient to sustain a conviction for obstruction of a law enforcement officer. We hold that under the circumstances of this case, it is sufficient and affirm.

1. On appeal the evidence must be viewed in the light most favorable to the verdict, the appellant no longer enjoys the presumption of innocence, and we determine the sufficiency of the evidence and neither weigh the evidence nor judge the credibility of the witnesses.

Viewed to support the verdict, the evidence showed that officers were executing a search warrant at a home and running a reversal out of the same home. Officers had set up perimeter security and were waiting for people to approach the house. Evans, while standing on the porch of her house across the street, warned an individual who approached not to go into the house where the officers were located. After police told her to go back inside her home, she warned another person, “Hey don’t go in there. The police is inside [sic].” The person then stopped immediately and “left in a hurried manner.” An officer testified that Evans was loud enough that the officers at the home across the street could hear her.

The trial court found that after being instructed by an officer not to call out the warning, her subsequent calling out to the second person who then fled “was an affirmative act that jeopardized both the officers’ safety and the safety of others who were ... in the area, and also obstructed the officers from carrying out the lawful pursuit of their duty.” Evans argues that the evidence is insufficient to sustain her conviction.

Under OCGA § 16-10-24 (a), a person “who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” This court has previously held that certain verbal exchanges between a defendant and officers can authorize a conviction for misdemeanor obstruction. And in Woodward v. Gray, this court commented in dicta that “[w] aiming the subject of an investigation or inciting others to interfere and to hinder an investigation can constitute verbal obstruction.”

Here Evans’s comments potentially jeopardized the safety of the officers in pursuit of their duties. Further, her comments could also be heard at the home where the reversal was being conducted so as to incite the suspects being held inside. Thus, the evidence sufficed to sustain the conviction within the meaning of Jackson v. Virginia.

Decided June 12, 2001.

Gerard B. Kleinrock, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Rupal D. Vaishnav, Michael R. Baer, Assistant Solicitors-General, for appellee.

2. Evans also argues that there is a fatal variance between the accusation and the proof at trial. Specifically, she claims that she was charged with obstruction by interfering with the execution of a warrant but was convicted of obstruction by interfering with the officers’ reversal. This argument is without merit as the execution of the search warrant and the reversal occurred simultaneously. Thus, even assuming there was such proof at trial, there was no variance between that proof and the accusation.

Judgment affirmed.

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

       The Supreme Court of Georgia transferred this case to the Court of Appeals, finding that Evans waived a constitutional challenge by raising it first in a motion for new trial. For this same reason we will not address the first enumeration challenging the constitutionality of OCGA § 16-10-24 (a) as applied to Evans. See Kolokouris v. State, 271 Ga. 597-598 (1) (523 SE2d 311) (1999); Rogers v. Barnett, 237 Ga. App. 301, 302-303 (3) (514 SE2d 443) (1999).

       A “reversal” is where officers pose as narcotics sellers to sell drugs to those who come onto the premises.

        Fowler v. State, 246 Ga. App. 639, 640 (541 SE2d 447) (2000).

       See Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992); Hudson v. State, 135 Ga. App. 739-740 (218 SE2d 905) (1975).

       241 Ga. App. 847, 849-850 (a) (527 SE2d 595) (2000).

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


text:
    A01A1069.
    VIRGINIA HIGHLAND CIVIC ASSOCIATION, INC. v. PACES PROPERTIES, INC. et al.
    (550 SE2d 128)
   Phipps, Judge.

Virginia Highland Civic Association, Inc. (VHCA) sued Paces Properties, Inc. (Paces) and Ponce Partners, LLC (Ponce), for declaratory judgment and injunctive relief. Through a bid submitted by Paces, Ponce purchased acreage from the Georgia Department of Transportation (DOT) previously intended for use as a right-of-way for a project known as the “Presidential Parkway.” VHCA claims that under an agreement in settlement of litigation which arose from the project, Ponce must obtain its approval for development of the property. VHCA bases this argument on the fact that the agreement became the subject of a Georgia Senate resolution and City of Atlanta ordinance. The superior court disagreed with VHCA’s argument and denied the relief sought. We affirm.

The Presidential Parkway project was a matter of great controversy in the City of Atlanta. In condemnation litigation arising from the project, the controversy was settled by agreement of the City of Atlanta, DOT, and CAUTION, Inc. (acting on behalf of itself and its constituent neighborhood organizations, which included VHCA). The settlement agreement, entered in 1992, set forth a plan for disposition of DOT-owned rights-of-way not needed for the construction project. It was agreed that various of the rights-of-way, including one consisting of approximately 4.4 acres on the north side of Ponce de Leon Avenue in the vicinity of Barnett Street (the Ponce/Bamett right-of-way), would be “disposed of by sale” and “used in a manner agreed to by the City and the [VHCA].”

Later in 1992, the City of Atlanta enacted an ordinance approving the settlement agreement and authorizing the mayor to execute it and the city attorney to implement it. The settlement agreement was attached as an exhibit to the ordinance. The ordinance was not codified.

In 1997, the Georgia Senate passed a resolution authorizing DOT to dispose of certain of the unused rights-of-way, including the Ponce/Barnett right-of-way, in accordance with a land use plan to be developed and agreed upon by the City, DOT, and CAUTION. Provisions of the settlement agreement, including those related to the Ponce/Barnett right-of-way, were recited in whereas clauses of the resolution.

In 1998, the City, DOT, and CAUTION entered a consent agreement adopting a land use plan governing the DOT’s disposition of its excess rights-of-way. The consent agreement’s right-of-way disposition plan imposed no restrictions on the use of rights-of-way to be sold to third parties.

DOT later offered a portion of the Ponce/Bamett right-of-way for sale. Paces obtained a bid proposal package which provided information concerning the zoning of the property and certain minor restrictions on use. Paces submitted a $1,201,000 bid, which the DOT accepted. Paces verified the zoning status of the property and conducted a title search which did not reveal any encumbrances on the property other than those previously disclosed by DOT. After Paces’ bid was accepted, Ponce purchased the property and recorded a quitclaim deed from DOT.

VHCA later brought this action, complaining that Ponce intends to construct a condominium building on the property; that the development plans have not been approved by VHCA; and that such plans will result in destruction of approximately 39 “mature, large, magnificent” hardwood trees on the property.

The superior court denied all relief sought by VHCA in its complaint. Among other things, the court determined that Ponce is not bound by the use restrictions contained in the settlement agreement because it is a bona fide purchaser for value without notice of the agreement.

To qualify as a bona fide purchaser for value without notice, a party must have neither actual nor constructive notice of the matter at issue. A purchaser of land is charged with constructive notice of the contents of a recorded instrument within its chain of title. Conversely, a purchaser is not charged with constructive notice of interests or encumbrances which have been recorded outside the chain of title. “[A] purchaser who takes a quitclaim deed without notice and for value is entitled to the protection which the law affords a bona fide purchaser for value and without notice.”

Although the use restrictions in the settlement agreement are functionally equivalent to those found in restrictive covenants contained in or incorporated into deeds, VHCA acknowledges that it did not record the settlement agreement within the property’s chain of title. And it is undisputed that neither Ponce nor Paces obtained actual notice of the agreement until after Ponce purchased the property.

Perhaps for these reasons, VHCA in this appeal eschews reliance on the settlement agreement as such. Instead, VHCA argues that the City of Atlanta ordinance and Senate resolution secure its approval rights under the settlement agreement and that Ponce took the property subject to those rights because it is charged with notice of the law.

We agree that Ponce is charged with notice of obligations which the law imposed on it and the DOT. But we conclude that the laws relied on by VHCA did not impose any obligations on either Ponce or the DOT which have been breached in this case. Through the ordinance, the Atlanta City Council merely approved the settlement agreement and authorized its execution and implementation by the named city officials. While the ordinance recognized the provisions of the settlement agreement, it did not purport to give them the force of law. Although the Senate resolution did require DOT to dispose of the Ponce/Barnett right-of-way in accordance with a land use plan developed after passage of the resolution, the land use plan as adopted does not restrict Ponce’s use of the property. Ponce is not charged with notice of encumbrances upon its property contained in an agreement settling litigation to which it was not a party, merely because an uncodified municipal ordinance and state legislative resolution made reference to the agreement. To hold otherwise would place a burden on title examiners to alert themselves to information which there is no systematic way to discover.

Decided June 12, 2001

Meadows, Ichter & Trigg, Michael J. Bowers, Thomas J. R. Archer, Christopher S. Anulewicz, for appellant.

Wilson, Brock & Irby, Richard W. Wilson, Jr., Larry M. Dingle, Marianne C. Boston, James S. Teague, Jr., for appellees.

The court did not err in denying VHCA’s requests for declaratory and injunctive relief.

Judgment affirmed.

Blackburn, C. J, and Smith, P. J, concur. Barnes, J., not participating.

       Ga. L. 1997, pp. 1010,1015-1016.

       Id. atpp. 1011-1013.

       See Anderson v. Streck, 190 Ga. App. 224, 225-226 (378 SE2d 526) (1989).

       See OCGA § 44-2-6; Roth v. Connor, 235 Ga. App. 866, 871 (3) (510 SE2d 550) (1998); compare Dept. ofTransp. v. Brooks, 254 Ga. 303, 317-318 (10) (328 SE2d 705) (1985) (involving actual notice of matters outside chain of title).

       See Middle Ga. Realty v. IDS Homes, 231 Ga. 57, 58-59 (1) (200 SE2d 141) (1973).

        Archer v. Kelley, 194 Ga. 117, 122 (1) (21 SE2d 51) (1942).

        City Council of St. Mary’s v. Crump, 251 Ga. 594, 595 (2) (308 SE2d 180) (1983); see Walston & Assoc. v. City of Atlanta, 224 Ga. App. 482, 483 (1) (480 SE2d 917) (1997).


text:
    A01A0721.
    MOORE v. THE STATE.
    (550 SE2d 667)
   Phipps, Judge.

A jury found Timothy Moore guilty of armed robbery and aggravated assault. He challenges the sufficiency of the evidence to support his convictions and complains that the trial court erred by (1) failing to establish that his waiver of counsel was knowing and intelligent, (2) failing to merge his convictions, and (3) considering evidence of prior convictions in aggravation of sentencing. We agree that Moore’s convictions should have merged, but we reject his other claims of error.

Taken in the light most favorable to the verdict, the evidence showed that, on the morning of May 25,1996, two men entered a convenience store in Brunswick. One man bought a drink, then the other man went behind the counter and placed a knife at the clerk’s neck, cutting him. The man with the knife grabbed money from the cash register, and both men left the store. The incident was recorded on the store’s videocamera, and the videotape was played for the jury.

Although the clerk testified that he did not get a good look at the robber’s face, he was able to tell the police that the robber was wearing tan shorts, a brown striped shirt, and a baseball cap. The police quickly combed the area and stopped Dion Saddler, who admitted being in the store at the time of the robbery but denied being the robber. The police took Saddler back to the store, where the clerk confirmed that Saddler had been present but had not wielded the knife. The police then took Saddler to the station, where he identified Moore as the robber from a set of photographs.

Within approximately one hour of the robbery, the police saw Moore leaving a house near the convenience store. Moore was wearing maroon shorts, but the officers saw a pair of tan shorts underneath them. Inside the house, they found a striped shirt and a cap, which both the clerk and Saddler identified as the robber’s clothing. The police took Moore to the store, where the clerk said he was “pretty sure” Moore was the robber but “couldn’t swear to it.”

Saddler testified that he and Moore had met earlier that morning and had gone to the store together. He testified that, to his surprise, Moore suddenly pulled out a knife and robbed the clerk.

Both Saddler and Moore were charged with armed robbery and aggravated assault, but Saddler was given immunity in exchange for testifying against Moore.

1. Contrary to Moore’s assertion, the evidence was sufficient to support his armed robbery conviction. Moore argues that the quality of the store videotape was poor, but the State also presented the testimony of the store clerk and Saddler identifying Moore as the robber and identifying clothing found on and near Moore as that worn by the robber. The credibility of those witnesses and the accuracy of their identifications were matters for the jury.

We need not address Moore’s challenge to the sufficiency of the evidence to support his aggravated assault conviction because, as explained in Division 3, that conviction must be vacated for other reasons.

2. Shortly before trial, Moore’s appointed counsel told the court that Moore wanted to represent himself. The following exchange occurred:

THE COURT: Are you familiar with the procedures and principles of law, Mr. Moore?
MR. MOORE: No, sir, but I —.
THE COURT: Do you know how to select a jury?
MR. MOORE: No, sir, I don’t, but —.
THE COURT: Do you know the proper questions to ask the jurors and witnesses in the case?
MR. MOORE: No, sir, I don’t.
THE COURT: Have you had any legal training whatsoever?
MR. MOORE: No, sir, I haven’t.
THE COURT: Why do you wish to represent yourself?
MR. MOORE: Because I don’t feel like I’ve been properly represented. I’ve been in jail for 16 months for a crime I didn’t commit, only on hearsay. All the evidence in this case showed that I didn’t do the crime —.
THE COURT: Well, that’s not an argument, that’s not a proper argument to me at this point. The grand jury has seen fit to indict you and that is sufficient to get you before this court for a jury trial. I will permit you to represent yourself within the parameters of the law, but I instruct you that you are committing a very dangerous act and you are putting your freedom and your well-being in extreme jeopardy. And I’m going to insist that [appointed counsel] continue to represent you during this proceeding, but you will have a right to make decisions and to question witnesses before the jury that’s selected in this case; however, you will be bound by the same rules of law and the same rules of procedure that a lawyer is bound by. And simply because you’re representing yourself does not mean you will be able to do what you want to do. You understand that?
MR. MOORE: I understand that.
THE COURT: All right. Bring in the jury.

“Moore contends that the trial court failed to determine on the record whether he made a valid waiver of his right to counsel. Before allowing a defendant to proceed pro se, the trial court must discharge its “serious and weighty responsibility” of determining whether the defendant has knowingly and intelligently waived his right to counsel. To be valid, a waiver must be made “with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.” Our Supreme Court has held that “the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.”

We agree with Moore that the trial court’s inquiry into his desire to proceed pro se was cursory and that the record does not reflect that Moore’s decision was made with a full apprehension of his circumstances. However, we also agree with the State that any error on the part of the trial court was harmless beyond a reasonable doubt.

First, Moore was not entirely without benefit of counsel. Moore’s lawyer represented him at pre-trial proceedings and filed pre-trial motions on his behalf. At the court’s direction, counsel sat next to Moore and consulted with him throughout the trial. The court gave counsel an opportunity to cross-examine each of the State’s witnesses, although counsel declined and allowed Moore to conduct the examinations. Finally, when Moore testified in his own behalf, counsel led him through his direct testimony.

Second, the transcript shows that Moore understood the evidence against him and presented an able, though unsuccessful, defense of misidentification. He thoroughly cross-examined the State’s witnesses and pointed out weaknesses in their testimony. For example, during his lengthy questioning of Saddler, Moore elicited the information that Saddler had received immunity from prosecution in exchange for his testimony, had been under the influence of powerful drugs before the robbery, and had served time in prison for a previous armed robbery. Similarly, Moore’s cross-examination of the store clerk highlighted the fact that he did not get a good look at the robber.

Finally, we are unaware of any defenses or trial strategies that Moore overlooked or any evidence he failed to present. Although it is the State’s burden to establish that the lack of counsel was harmless error, we note that Moore has not alleged any harm. The evidence against Moore was strong and relatively straightforward. Under these circumstances, it is unlikely that Moore’s conviction was attributable to his decision to represent himself.

3. We agree, as does the State, with Moore’s contention that his aggravated assault conviction should have merged with his armed robbery conviction. As we held in King v. State, “[t]he only violence employed against the victim in this case was that which was used to effectuate the theft. Because the violence preceded the theft and was the means by which [Moore] secured the victim’s compliance with his demand, the aggravated assault conviction merged with the armed robbery conviction. [Cits.]” Accordingly, Moore’s aggravated assault conviction is vacated.

Decided June 13, 2001

James J. Lacy, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

4. Before trial, the State gave Moore notice that it intended to seek sentencing under Georgia’s recidivist statute, OCGA § 17-10-7. At sentencing, the State offered into evidence certified copies of previous guilty pleas by Moore to four drug crimes and an auto theft. The trial court then sentenced Moore to life imprisonment without parole on the armed robbery charge.

Moore argues that the enhanced sentence is invalid because the trial court never admitted into evidence the certified copies of his convictions. However, we rejected this very argument in Parker v. State. In that case, although the defendant’s prior convictions were not formally admitted into evidence, “[the defendant] did not object, they are a part of the record on appeal, and they were apparently treated as evidence at the sentencing hearing.” We therefore ruled that the trial court did not err in considering the prior convictions.

Moore also suggests that the guilty pleas could not be considered because they were not voluntary. Under Nash v. State, after the State proves the existence of a prior guilty plea and that the defendant was represented by counsel, the burden shifts to the defendant to produce evidence that the plea was invalid. Here, the State presented certified copies of the pleas signed by both Moore and his counsel, and Moore never disputed their validity. Accordingly, he has waived any such challenge.

Judgment affirmed in part and vacated in part.

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

       See Hudson v. State, 242 Ga. App. 218 (1) (529 SE2d 218) (2000).

        See Arrington v. State, 244 Ga. App. 529, 531 (536 SE2d 212) (2000); Morton v. State, 241 Ga. App. 330, 331 (526 SE2d 862) (1999).

        Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981).

       (Citation and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (1) (414 SE2d 502) (1991).

        Clarke, supra at 197.

       For example, during sentencing, Moore told the court that he thought he was not subject to the recidivist statute because his prior convictions were for nonviolent crimes.

       See Rutledge v. State, 224 Ga. App. 666, 670-671 (3) (482 SE2d 403) (1997) (no harm in allowing defendant to proceed pro se where, among other things, “court-appointed counsel provided assistance to him during trial”).

        State v. Hightower, 236 Ga. 58, 60 (222 SE2d 333) (1976).

        See Reviere v. State, 231 Ga. App. 329, 331 (1) (498 SE2d 332) (1998); Lazenby v. State, 181 Ga. App. 854, 855 (1) (354 SE2d 196) (1987).

       241 Ga. App. 894 (528 SE2d 535) (2000).

       Id. at 895 (1).

       220 Ga. App. 303, 312 (13) (469 SE2d 410) (1996).

       Id.

       271 Ga. 281, 284 (519 SE2d 893) (1999).

       To the contrary, Moore admitted to the court that “I have priors.”

       See Anthony v. State, 236 Ga. App. 257, 260 (4) (511 SE2d 612) (1999).