text:
    A91A0580.
    ANDREWS v. THE STATE.
    (406 SE2d 801)
   Carley, Judge.

Appellant was tried before a jury and found guilty of aggravated child molestation and statutory rape. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant enumerates the general grounds.

The evidence, construed most favorably for the State and most strongly against appellant, authorized a finding that appellant engaged in a single act of sexual intercourse with the five-year-old victim and that, as the result, the victim was physically injured by contracting a venereal disease from appellant. This evidence was sufficient to authorize a rational trior of fact to find proof of appellant’s guilt of aggravated child molestation or statutory rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

This evidence did not, however, authorize a conviction and sentence for both aggravated child molestation and statutory rape. The evidence is undisputed that only a single act of sexual intercourse occurred and where, as here, both convictions are in fact based upon the same, single act, only one conviction is authorized. McCollum v. State, 177 Ga. App. 40 (1) (338 SE2d 460) (1985). “ ‘ “(A) crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law. . . .” [Cit.] OCGA § 16-1-6 defines an included crime as one “established by proof of the same or less than all the facts . . . required to establish the commission of the greater crime charged.’” [Cit.]” Horne v. State, 192 Ga. App. 528, 533 (6) (385 SE2d 704) (1989). In the instant case, the crime of statutory rape was included, as a matter of fact, in the crime of aggravated child molestation. “Under the indictment in this case, the offense of [aggravated] child molestation involved several acts, one of which was [an act that had resulted in physical injury to the victim], and had as one element proof of the age of the victim. The [statutory rape] count of the indictment alleged [the performance of an act of sexual intercourse with a female under the age of fourteen]. Since the evidence established only one act of [sexual intercourse], the proof of which was necessary to prove the [aggravated] child molestation count as alleged, the [statutory rape] count was ‘established by proof of . . . less than all the facts . . . required to establish the commission of [aggravated child molestation].’ [Cit.] It follows that the offense of [statutory rape] as alleged was included as a matter of fact in the offense of [aggravated] child molestation as alleged. Therefore, the [statutory rape] count merged into the [aggravated] child molestation count. [Cit.]” Horne v. State, supra at 533 (6). See also Kelly v. State, 188 Ga. App. 362 (3) (373 SE2d 63) (1988). Compare Pressley v. State, 197 Ga. App. 270 (1) (398 SE2d 268) (1990).

2. Appellant had requested that the jury be charged “that any physician or other person who makes a diagnosis of or treats a case of venereal disease . . . shall make report of such case to the health authorities. . . . The [failure to do so] constitutes a misdemeanor criminal offense.” The refusal to give this requested charge is enumerated as error.

This charge had no relevancy to any issue in the instant case. The fact that there was no official report that appellant had been diagnosed or treated for venereal disease during the relevant time period does not prove that appellant did not have a venereal disease during that time period. The lack of any such official report would show only that appellant had not been diagnosed or treated for venereal disease during the relevant time period or that, if he had been, whoever had diagnosed or treated him was guilty of a misdemeanor criminal offense. “ ‘[A] requested charge must be legal, apt, and precisely adjusted to some principle involved in the case and be authorized by the evidence.’ [Cits.]” Jones v. State, 196 Ga. App. 877, 878 (2) (397 SE2d 303) (1990). Whether or not appellant had a venereal disease during the relevant time period was a material issue, but whether there were no official records in that regard would have no bearing on that material issue. The trial court did not err in refusing to give the requested charge.

3. In imposing recidivist sentencing upon appellant for aggravated child molestation, the trial court relied upon OCGA § 17-10-7 (b). This was erroneous. The State showed only appellant’s prior commission of two felonies. Sentencing under OCGA § 17-10-7 (b) requires a showing of prior commission of three felonies. Accordingly, appellant should have been sentenced pursuant to OCGA § 17-10-7 (a).

4. Appellant’s conviction and sentence for statutory rape are reversed with direction that they be stricken. Appellant’s conviction for aggravated child molestation is affirmed and his sentence for aggravated child molestation is reversed with direction that the trial court resentence appellant pursuant to OCGA § 17-10-7 (a).

Decided June 11, 1991.

Alexander & Vann, John T. Holt, for appellant.

H. Lamar Cole, District Attorney, James E. Hardy, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed with direction in part.

Banke, P. J., concurs. Beasley, J., concurs in Divisions 2, 3 and 4 and in the judgment.


source: Caselaw Access Project

author: Banke, Presiding Judge.

license: Public Domain

text:
    A91A0674.
    MOUA et al. v. THE STATE.
    (406 SE2d 557)
   Banke, Presiding Judge.

The appellants, Va Moua and Xia Fang Moua, were jointly tried on charges of rape, sexual exploitation of a child, and kidnapping with bodily injury. They were found guilty as charged on the rape and sexual exploitation counts but on the kidnapping count were found guilty of the lesser offense of false imprisonment. They bring this appeal from the denial of their motion for new trial. Held:

1. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellants guilty beyond a reasonable doubt of each of the offenses of which they were convicted. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). With respect to the rape charges, “ ‘[t]he victim’s testimony that the accused had raped her, coupled with medical evidence and testimony concerning the victim’s actions and demeanor following the rape[s], was sufficient evidence to authorize the conviction[s]. [Cit.]’ [Cit.]” Gray v. State, 153 Ga. App. 183 (265 SE2d 81) (1980). The false imprisonment convictions were supported by the victim’s testimony to the effect that the appellants had held her captive over a period of several hours, between separate episodes of rape. See generally OCGA § 16-5-41. The convictions of sexual exploitation of children were supported by evidence that the appellants had taken turns photographing each other as they engaged in sexual intercourse with the victim, who was under 18 years of age at the time. See OCGA § 16-12-100 (b) (1). We reject the appellants’ apparent contention that in order to obtain a conviction on the latter charge, it was necessary for the state either to produce the photographs in question or otherwise to prove that the camera had been working properly.

Decided June 11, 1991.

Glenn Zell, for appellants.

2. The appellants contend that the trial court erred in allowing the state to present medical opinion testimony on the ultimate issue of whether the victim had consented to the acts of sexual intercourse. The witness in question was a physician who had examined the victim after the incident. He testified that during the course of this examination, he observed lacerations or tears in the victim’s perineum which, in his opinion, were consistent with an act of non-consensual sexual intercourse but not consistent with an act of consensual sexual intercourse. “Assuming that such testimony was tantamount to an opinion that the victim did not consent, it was not error to allow such testimony. The doctor was qualified as an expert, and expert opinion testimony on issues to be decidéd by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which the jurors would not ordinarily be able to draw for themselves, i.e., the conclusion is beyond the ken of the average layman. [Cit.] Clearly the significance of tears in the [perineum] would be beyond the ken of the average layman. Accordingly, it was not error to allow such testimony.” Russell v. State, 181 Ga. App. 624, 626 (353 SE2d 820) (1987). Accord State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986).

3. The appellants contend that in charging the jury on the element of false imprisonment, the trial judge erred in failing to include instructions on their “sole defense” of consent. This contention is without merit. The trial court had previously given a full and correct charge on consent in connection with the charge on rape, and “[u]nder these circumstances, [an additional] charge on consent [as it related to the offense of false imprisonment] would have done nothing more than point out what was already clear from the charges given the jury, i.e., that if the jury believed that there was a reasonable doubt as to whether the [appellants had kept] the victim [in the motel room] against her will, they should not find [them] guilty of [false imprisonment].” Sims v. State, 148 Ga. App. 359, 360 (3) (251 SE2d 380) (1978).

4. The appellants contend that the false imprisonment convictions and the rape convictions should have been merged because they were based on the same conduct. However, a rational trier of fact could reasonably have concluded from the evidence that the confinement and detention of the victim far exceeded that which was immediately associated with the acts of sexual intercourse. Accordingly, this enumeration of error is without merit. Accord Turner v. State, 194 Ga. App. 878, 880 (3) (392 SE2d 256) (1990).

Judgment affirmed.

Carley and Beasley, JJ., concur.

Robert E. Wilson, District Attorney, Desiree L. Sutton, Anne G. Maseth, Nelly F. Withers, Assistant District Attorneys, for appellee.


author: Andrews, Judge.

text:
    A90A1804.
    WORLEY v. WHIDDON.
    (407 SE2d 495)
    Decided July 12, 1991.

      Davis, Gregory & Christy, Hardy Gregory, Jr., Gary C. Christy, for appellant.

      Gary C. McCorvey, for appellee.
   Andrews, Judge.

On certiorari our decision in Worley v. Whiddon, 197 Ga. App. 358 (398 SE2d 401) (1990), was reversed in Worley v. Whiddon, 261 Ga. 218 (403 SE2d 799) (1991). Accordingly, our decision is vacated and the judgment of the Supreme Court is made the judgment of this Court.

■Judgment reversed and case remanded.

Pope and Beasley, JJ., concur.


text:
    A91A0062.
    WILLIAMS v. CLARK-ATLANTA UNIVERSITY, INC. et al. BELL v. CLARK-ATLANTA UNIVERSITY, INC. et al.
    A91A0069.
    (406 SE2d 559)
   Banke, Presiding Judge.

While students at Atlanta University, the appellants, Kevin Williams and Barbara Bell, were employed as “senior residential coordinators” in the university dormitories. During their employment, an article purporting to have been written by a “concerned student” was published in the student government newspaper accusing them of such things as dereliction of duty and falsifying time sheets. In early December of 1988, the appellants sued Atlanta University (which had by then merged with Clark University), along with various individual defendants, seeking to recover actual and punitive damages for libel, invasion of privacy, and intentional infliction of emotional distress based on the publication of this article. Later that month, the appellee-defendants asserted counterclaims against the appellants for abusive litigation pursuant to Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986).

The claims against the individual defendants were dismissed for lack of personal jurisdiction, and subsequently, on November 17, 1989, the trial court granted a motion by the university to dismiss the complaints for failure to state a claim. The appellants thereafter moved to dismiss the Yost counterclaims for “failure to state an actionable claim and/or abuse of said counterclaim,” while the appellees moved for an award of attorney fees and costs pursuant to OCGA §§ 9-15-14 and 51-7-80. On May 29, 1990, the trial court denied the appellants’ motions to dismiss the counterclaims; and on June 1,1990, it entered an order granting the appellees’ motion for attorney fees and costs. The appellants have filed a direct appeal to this court from the latter order. Held:

Decided June 12, 1991.

Kevin Williams, pro se.

Barbara Bell, pro se.

Michael A. Baskin, for appellees.

It does not appear from the record before us that the appellees’ abusive litigation counterclaims have been disposed of. Since litigation expenses and attorney fees cannot be awarded pursuant either to OCGA § 9-15-14 or to OCGA § 51-7-83 until the claimant has prevailed on his underlying abusive litigation claim, it would therefore appear that the appellees’ motions for such awards were premature and should not have been entertained by the trial court. By the same token, however, the trial court’s order granting these motions would appear to have been interlocutory and thus not subject to direct appeal. Furthermore, since the abusive litigation counterclaims in this case were filed prior to the effective date of OCGA § 51-7-80 et seq., the appellees’ motions for attorney fees and costs were governed exclusively by OCGA § 9-15-14, with the result that the present appeals were, in any event, required by OCGA § 5-6-35 (a) (10) to be brought by application, regardless of whether they were interlocutory. See OCGA § 51-7-85. Because no application for appeal was filed in either case, the present appeals are accordingly dismissed for lack of jurisdiction.

Appeals dismissed.

Carley and Beasley, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A89A2145.
    RADFORD v. MAYOR & ALDERMEN OF SAVANNAH.
    (407 SE2d 495)
   McMurray, Presiding Judge.

The Supreme Court of Georgia in Mayor &c. of Savannah v. Radford, 261 Ga. 129 (401 SE2d 709), having reversed this Court’s prior judgment in this case, the judgment of this Court in Radford v. Mayor &c. of Savannah, 194 Ga. App. 839 (392 SE2d 23) is reversed and the judgment of the trial court is hereby affirmed.

Decided June 17, 1991.

Ashman & Zipperer, Alex L. Zipperer, Ralph R. Lorberbaum, for appellant.

Friedman, Haslam, Weiner & Ginsberg, Patrick T. O’Connor, Wiseman, Blackburn & Futrell, James B. Blackburn, for appellee.

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A0739.
    PUCKETT v. GWINNETT COUNTY.
    (406 SE2d 561)
   McMurray, Presiding Judge.

Appellant Wiley C. Puckett filed suit against appellee Gwinnett County on September 19, 1988, seeking compensation for the taking and diminution in value of certain real property he owned. Summary judgment was granted on June 9, 1990, to Gwinnett County on the ground that Puckett’s claims were barred by the applicable statute of limitation and he appeals. Held:

From the evidence presented, the trial court found that in 1970 Gwinnett County instituted a road improvement project to straighten Killian Hill Road, which was completed in 1974. This project caused Killian Hill Road to be partially located on Puckett’s land, but he made no objection to the realignment. Puckett claimed that according to the custom in the early 1970s, he was offered no compensation for the property and it was accepted as a donation. In 1974 Puckett’s construction company paved the new road, and over the years he sold tracts of land from the property by deeds referring to the newly aligned road as the boundary line.

Puckett asserted in his lawsuit that various county officials told him from 1970 through 1987 that he would receive monetary compensation for the taking of the land, but that no specific dollar amount was discussed. All discussions after 1987 on which Puckett relied were statements to the effect that the situation would be “looked into,” or that the county would “get around to taking care of it one of these days.” He further alleged that he first learned that the county did not intend to compensate him and filed the instant suit when he mentioned to the special master at a condemnation hearing on a separate parcel of land that he had never been paid for the property taken by the Killian Hill Road project, and was told this matter should be addressed in a separate legal action. The trial court concluded that Puckett’s knowledge of the road construction on his property, in particular his conduct on behalf of his construction company in contracting with the county to pave the graded roadbed on his property, prevented him from arguing that the 12-month statute of limitation imposed by OCGA § 36-11-1 did not apply.

Decided June 17, 1991.

Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, for appellant.

Richard A. Carothers, Caryl B. Sumner, for appellee.

Appellant contends that a genuine issue of material fact remains as to whether Gwinnett County’s taking or appropriation of his property constituted a continuing trespass so as to render inapplicable the statute of limitation. We do not agree. It has long been the law in this state that pursuant to OCGA § 36-11-1 “[a]ll claims against counties must be presented by written demand . . . within twelve months after such claims accrue or become payable, or the same are barred, unless held by minors or persons laboring under disabilities.” Powell v. County of Muscogee, 71 Ga. 587 (1883). See Doyal v. Dept. of Transp., 142 Ga. App. 79 (234 SE2d 858). Conversations with individual commissioners or verbal proposals to compromise do not circumvent the limitation. Powell, supra at 588. This bar is likewise applicable in suits seeking to recover against a county for depreciation in market value of the property taken due to the alleged creation and maintenance of a continuing nuisance. Bibb County v. Green, 42 Ga. App. 552, 553 (2) (156 SE 745). See also Reid v. Gwinnett County, 242 Ga. 88 (249 SE2d 559). “The facts reflect that a written claim was not submitted within the 12 months required by statute. There being no genuine issue of material fact, under the facts and law, the trial court did not err in granting summary judgment to [Gwinnett] County based upon the failure of the [appellant] to comply with the notice requirements of the statute. [Cit.]” Doyal v. Dept. of Transp., 142 Ga. App. 79, supra at 80.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0792.
    WATTS v. THE STATE.
    (406 SE2d 562)
   McMurray, Presiding Judge.

An indictment charged defendant Tommy Watts with three counts of aggravated assault, carrying a deadly weapon at a public gathering, carrying a pistol without a license and carrying a concealed weapon. Defendant entered a guilty plea with regard to each of the weapons charges. Following a jury trial, at which defendant was represented by employed counsel, a guilty verdict was returned upon each of the aggravated assault charges. Sentence was imposed on November 28, 1990, and defendant appeals. The notice of appeal, signed by defendant’s new counsel, was dated December 18, 1990. A certificate of service, attached thereto and signed by defendant’s new counsel, was also dated December 18, 1990. However, this notice of appeal was not filed in the trial court until December 26, 1990. Neither defendant’s trial counsel nor his new counsel filed a motion for a new trial. Held:

1. Defendant asserts he was denied effective assistance of counsel in the trial court. Because this assertion was not raised by defendant’s new counsel in the trial court (via motion for a new trial) it will not be considered on appeal. Simpson v. State, 250 Ga. 365, 367 (2) (297 SE2d 298); White v. State, 192 Ga. App. 703 (386 SE2d 56); Huff v. State, 191 Ga. App. 476, 477 (2) (382 SE2d 183). “In appropriate cases claims for ineffective assistance of counsel are remanded to the trial court for an evidentiary hearing. [Cit.] However, in determining whether the claim should be remanded we must first decide whether the claim was raised ‘at the earliest practicable moment.’ [Cit.] Here the record [in the case sub judice] shows that appellate counsel represented appellant at least [10] days before the expiration of 30 days from the entry of judgment on the verdict. ... At no time before initial appeal rights expired . . . did appellate counsel raise the effectiveness issue in the trial court. Under these circumstances we find the ineffectiveness of counsel claim was not raised ‘at the earliest practicable moment’; therefore the issue has been waived. [Cits.]” Hulett v. State, 198 Ga. App. 89 (2), 90 (400 SE2d 366).

2. Defendant contends the trial court erred in failing to dismiss a prospective juror for cause in view of her statement that “she would believe any police officer . . . over anyone else. . . .” We disagree. The juror answered affirmatively when asked if “she would fairly consider all the evidence and render an impartial verdict based upon the evidence and the court’s charge regardless of who the witnesses were. . . .”

“The trial court has wide discretion in deciding whether a juror should be excused for cause. Taylor v. State, 243 Ga. 222 (253 SE2d 191) (1979). The fact that a juror has formed an opinion about the credibility of a witness does not mandate that he be excused for cause. [Cit.] Where an otherwise qualified juror indicates that he can and will fairly evaluate the evidence, the party who wishes to eliminate him must do so by means of the peremptory strike. There was no abuse of discretion in the trial court’s failure to strike this prospective juror for cause.” Foster v. State, 248 Ga. 409, 411 (283 SE2d 873). See Strong v. State, 161 Ga. App. 606, 607 (4) (288 SE2d 921).

Decided June 17, 1991.

Neil A. Smith, for appellant.

3. The trial court did not err in failing to excuse for cause a juror who was exposed to pre-trial newspaper publicity about the case. Asked if she could put the newspaper accounts out of her mind and judge the case based solely on the evidence and the trial court’s instructions, the juror responded in the affirmative. See McKenzie v. State, 248 Ga. 294, 296 (4) (282 SE2d 95). See Denney v. State, 170 Ga. App. 692, 693 (2) (318 SE2d 85).

4. A juror is not subject to being dismissed for cause simply because he or she rendered financial assistance to the victim. Thacker v. State, 226 Ga. 170, 177 (7) (173 SE2d 186).

5. Whether or not venue should be changed is a question which is addressed to the sound discretion of the trial court. Reaves v. State, 242 Ga. 542, 547 (4) (250 SE2d 376). “[T]he test for determining whether adverse pre-trial publicity has so affected the community that the defendant cannot receive a fair trial is whether the prospective jurors summoned to try the case can lay aside their impressions and opinions and render a verdict based on the evidence presented at trial. Looking to the [evidence presented upon the motion for change of venue and the colloquy elicited upon voir dire], we cannot say that an unbiased and impartial jury was not selected to try the case. We conclude that the trial court did not abuse its discretion in overruling the motion for change of venue.” Johnson v. State, 242 Ga. 649, 654 (7), 655 (250 SE2d 394).

6. The victim was the first witness to take the witness stand. After she testified, the trial court permitted the victim to remain in the courtroom. We find no error. See OCGA § 24-9-61.1.

7. Defendant contends the trial court erred in permitting a non-expert witness to opine that the victim’s wounds were consistent with wounds which would have been inflicted by a .30 caliber bullet. The contention is without merit. Although defense counsel previously grumbled that such testimony could only be offered by an expert, he failed to interpose an objection when the witness offered his opinion. “In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which defendant might have had. Objections made during the preliminary examination of the witness could not be considered as objections to the testimony subsequently given. [Cits.]” Smith v. State, 116 Ga. App. 45, 47 (2), 48 (156 SE2d 380).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Michael H. Crawford, District Attorney, for appellee.


text:
    A91A1027.
    MILLER v. THE STATE.
    (406 SE2d 565)
   McMurray, Presiding Judge.

Defendant Miller appeals his conviction of the offense of reckless conduct. Held:

Defendant contends that the evidence was not sufficient to authorize his conviction. The evidence at trial, stated in the light most favorable to the State, shows that shortly after the alleged victim, Hunter, left defendant’s pawn shop he was accosted by defendant. Hunter, who was walking, was overtaken by defendant in an automobile. Defendant pulled his vehicle over to the side of the road, got out, and started asking Hunter about what he had taken from the store. Hunter replied that he had taken nothing. Hunter invited defendant to search him after he noticed that there was a handgun on the floorboard of defendant’s car. Hunter testified that he was scared because of the presence of the gun, but there is no evidence that defendant threatened Hunter with the gun or even remained within reach of the gun during most of the incident. After finding that Hunter had nothing on his person that had been taken from the pawn shop, defendant got back in his car and, as he was leaving, he drove over Hunter’s foot.

A person is guilty of reckless conduct when he “causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. ...” OCGA § 16-5-60 (b). Applied to the facts of the case sub judice, we find no violation of this statute even though defendant’s conduct may well have constituted a violation of other criminal statutes. See Briard v. State, 188 Ga. App. 490, 493 (5) (373 SE2d 239) and Gay v. State, 179 Ga. App. 430, 431 (2), 432 (346 SE2d 877).

Particularly in view of Hunter’s consent, defendant’s search of Hunter was not an act or omission which caused bodily harm to or endangered the bodily safety of another person. See Gay v. State, 179 Ga. App. 430, supra. The running over of Hunter’s foot was either an accident caused by simple negligence or a deliberate attack with the automobile which constituted the felony of aggravated assault. There was no evidence of such gross negligence as would bring the incident within the scope of OCGA § 16-5-60 (b). See Briard v. State, 188 Ga. App. 490, supra. The evidence does not authorize a rational trier of fact to find defendant guilty beyond a reasonable doubt of the offense of reckless conduct. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided June 17, 1991.

L. Scott McLarty, for appellant.

Ken Stula, Solicitor, Kenneth W. Mauldin, Assistant Solicitor, for appellee.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


author: Beasley, Judge.

text:
    A91A0160.
    NIX v. CREWS et al.
    (406 SE2d 566)
   Beasley, Judge.

Plaintiff Greenie Nix appeals the grant of summary judgment in favor of defendants Burton Crews, his law firm partners, and their firm (collectively Crews). Nix had sued Crews for legal malpractice arising from the following alleged facts. Nix had borrowed $11,000 from Fulton Federal Savings & Loan, the loan being secured by a deed to certain property. During the course of her dealings with Fulton Federal she made payments in excess of the money actually owed, due to Fulton Federal’s demands based on faulty records. As a result she employed Crews to sue for recovery of over $5,000 in over-payments and for other relief. Crews failed to carry out the necessary pre-trial preparation, including discovery, and when the case was called for trial Crews settled all of Nix’ claims for $1,000. This was contrary to his client’s express instructions that she wanted a jury trial and in violation of the attorney-client agreement that no settlement should be entered into without written consent.

From the record it appears that Nix discharged Crews and engaged new counsel the next day. Afterwards, Fulton Federal moved to enforce settlement which was heard ten days after the scheduled trial date. Neither Nix nor her newly employed attorney appeared for the hearing. The trial court granted Fulton Federal’s motion without elaboration.

1. Crews contends that, even if he were negligent in any way, his negligence was not the proximate cause of injury to Nix because the failure to contest the motion to enforce settlement resulted in the settlement being established as a matter of law. Crews urges that if Nix had opposed the motion the court may have ruled the settlement was unenforceable and thus Nix would have suffered no injury, exonerating Crews.

A legally attributable causal connection between conduct and re-suiting damages is one of the three essential elements (besides at least nominal damages, see Jankowski v. Taylor, Bishop & Lee, 246 Ga. 804, 806 (1) (273 SE2d 16) (1980)) for establishing professional malpractice. Rogers v. Norvell, 174 Ga. App. 453, 457 (2) (330 SE2d 392) (1985) (originally physical precedent but subsequently approved in Guillebeau v. Jenkins, 182 Ga. App. 225, 229 (1) (355 SE2d 453) (1987); Parten v. Swan, 183 Ga. App. 364, 365 (358 SE2d 906) (1987); Whitehead v. Cuffie, 185 Ga. App. 351, 352 (2) (364 SE2d 87) (1987)). See Republic Mtg. Corp. v. Beasley, 117 Ga. App. 303, 307 (3) (160 SE2d 429) (1968). However, on motion for summary judgment the proof must be construed most favorably to the party opposing the motion, who is to be given the benefit of all reasonable doubts and all reasonable inferences. Malcom v. Malcolm, 112 Ga. App. 151, 154 (1) (144 SE2d 188) (1965). The defendant-movant must produce evidence which conclusively shows there is no genuine issue of material fact as to at least one of the elements of each theory of recovery fairly drawn from the pleadings and evidence. This is true regardless of which party would have the trial burden, and even if movant is thereby required to show the existence or non-existence of facts. Parson v. Central of Ga. R. Co., 129 Ga. App. 218, 219 (1) (199 SE2d 396) (1973).

The record is bare of facts which would show that Nix could have prevailed if she had appeared and defended against Fulton Federal’s motion to enforce settlement. Normally, a settlement entered into by an attorney with apparent authority is binding on the client. OCGA § 15-19-5; Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 675 (2) (308 SE2d 544) (1983). See Vandiver v. McFarland, 179 Ga. App. 411, 412 (346 SE2d 854) (1986). We cannot assume that Nix had grounds to circumvent that general proposition. See Brumbelow, supra; Wilson v. Anderson, 194 Ga. App. 167 (390 SE2d 86) (1990). Because the burden was on Crews to affirmatively establish that his negligence was not the proximate cause of Nix’s injuries, he had to show as a matter of law that Nix could have abrogated the settlement if she had appeared. He failed to do so, and thus this ground furnishes no basis for sustaining defendant’s motion.

2. The second question is whether Nix could have recovered on the merits of her claim against Fulton Federal. “[A] claim for legal malpractice is sui generis insofar as the plaintiff’s proof of damages effectively requires proof that he would have prevailed in the original litigation.” McDow v. Dixon, 138 Ga. App. 338 (226 SE2d 145) (1976). See Ware v. Durham, 246 Ga. 84 (268 SE2d 668) (1980). Again, the burden rests on Crews to demonstrate as a matter of law that Nix could not have recovered any amount in excess of the $1,000 that was accepted in settlement.

This fails despite his argument that Nix made voluntary payments which are unrecoverable under OCGA § 13-1-13. Construing that section, our Supreme Court held in Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 406 (349 SE2d 368) (1986): “In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.” The circumstances under which Nix made the payments and eventually paid off the note do not fill the hole with respect to the jury question which the Supreme Court recognized in Folsom had been filled. See Landers v. Heritage Bank, 188 Ga. App. 785, 787 (374 SE2d 353) (1988); Graham v. Hogan, 185 Ga. App. 842 (1) (366 SE2d 219) (1988).

Decided June 18, 1991.

Alan I. Begner, Russell G. Burnett, for appellant.

Freeman & Hawkins, Jack N. Sibley, Carey E. Fox, for appellees.

Since genuine issues of material fact remain for a jury, summary judgment was not authorized.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Carley, Judge.

text:
    A91A0341.
    BOOTH v. GWINNETT FEDERAL SAVINGS & LOAN ASSOCIATION.
    (406 SE2d 568)
   Carley, Judge.

Appellant-defendant executed a promissory note in favor of appellee-plaintiff. When appellant subsequently failed to make three consecutive monthly payments, appellee accelerated the unpaid balance of the indebtedness. When appellant thereafter failed to pay the accelerated balance, appellee brought the instant suit. Appellant answered and, among his other defenses, asserted that appellee’s acceleration of the indebtedness was in breach of a quasi new agreement as to the terms upon which he was obligated to make payments on the note. After discovery, appellee moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

Appellant urges that a genuine issue of material fact remains as to whether there was a quasi new agreement whereby appellee had agreed to accept late and irregular payments on the note rather than to insist upon timely and exact payments as specified under the terms of the note. OCGA § 13-4-4 provides that “[w]here parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.” However, this is not a case wherein the acceleration of the unpaid balance due on a note was based upon the mere untimely payment of a monthly installment. Compare Curl v. Fed. S & L Assn. &c., 241 Ga. 29 (244 SE2d 812) (1978). Appellee accelerated the unpaid balance due on the note based upon appellant’s total failure to make any payments whatsoever for three consecutive months. While there may be evidence that, in the past, appellee had accepted untimely payments and applicable late charges from appellant, there is no evidence that appellee had previously waived its right to any payment whatsoever on the note for a three-month period. Under OCGA § 13-4-4, a “party must be given a reasonable opportunity to cure any deviations from the exact terms before foreclosure can be commenced due to defaults which were tolerated under the quasi new agreement.” (Emphasis supplied.) Curl v. Fed. S & L Assn. &c., supra at 30. There is no evidence that appellee tolerated a previous three-month failure to make any payments on the note such that appellant would be entitled to receive notice before appellee could effect a valid acceleration based upon his instant three-month failure to make any payments whatsoever on the note. It follows that the trial court correctly granted summary judgment in favor of appellee. Lewis v. C & S Nat. Bank, 174 Ga. App. 847, 848 (2) (332 SE2d 11) (1985); Newby v. Bank of Pinehurst, 159 Ga. App. 890 (285 SE2d 605) (1981).

Decided June 18, 1991.

Lamberth, Bonapfel, Cifelli, Wilson & Stokes, Gary D. Stokes, Stuart F. Clayton, Jr., for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, for appellee.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0844.
    HAZELTON v. THE STATE.
    (406 SE2d 569)
   McMurray, Presiding Judge.

Via two separate accusations, defendant was charged with violating OCGA § 16-11-39 (4) in that on April 15, 1990, he telephoned Donald Hayes “repeatedly, for the purpose of annoying and harassing, Donald Hayes” and, on July 19, 1990, he telephoned Deborah Nunnally, “repeatedly, for the purpose of annoying, harassing and molesting Deborah Nunnally.” Defendant was tried by the court sitting without a jury.

The evidence adduced at trial demonstrated the following: Because the victims had been receiving a large number of harassing telephone calls, the telephone company placed a tracing device on the telephone of each victim. The tracing device noted the date and time of incoming calls. Additionally, the device recorded the telephone number of the telephone from which the incoming calls were made.

Neither victim was able to identify the caller. The tracing device demonstrated, however, that the victims were called from a telephone in defendant’s apartment.

Defendant shared the apartment with a roommate. Defendant and the roommate shared the single telephone in the apartment. They each testified that they did not make the telephone calls to the victims. Defendant’s employment records demonstrated that he was at work when one of the telephone calls was made to the first victim.

At the conclusion of the trial, the trial court determined that the State failed to prove that defendant himself made the telephone calls to the victims. Nevertheless, the trial court found defendant guilty with respect to the second victim. It reasoned: “Given the sheer volume of the telephone calls that were made, the Court finds that Mr. Hazelton had a duty, if you will, a responsibility to use his telephone responsibly. I believe his responsibility from a criminal point of view is imposed by this Code Section not to allow indiscriminate use of the telephone.

“Now the Court is particularly impressed by the fact that Mr. Hazelton was arrested in April and by his own testimony knew that the charges had been placed against him at that time and knew what he was charged with. He knew that it was alleged that the phone calls came from his telephone; but notwithstanding that, he failed to take adequate steps to prevent the phone from being used for that purpose in [July], The testimony as far as tracing is concerned shows that it was used a number of times at a minimum in . . . July, July 19 and 20 of 1990. . . . He had a roommate that he had some real questions about in April.. . . [I]f we assume, and I think we’ve got to under the facts of this case, if we assume that the phone calls in April were made from his apartment, then I think there was a responsibility on [defendant’s] part once he was made aware of this to take particular steps to make sure the phone was not used. . . .

“While the evidence does not remove every possible doubt in this case, the Court does find beyond a reasonable doubt that [defendant] did knowingly permit the telephone under his control to be used for the purposes prohibited, at least insofar as the calls made to Deborah Nunnally are concerned. The Court finds him guilty as to [the second accusation].”

Following the imposition of a probated sentence and a $500 fine, defendant appealed. Held:

OCGA § 16-11-39 reads, in pertinent part: “A person who commits any of the following acts commits a misdemeanor: ... (4) Telephones another repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing or molesting another or his family; uses over the telephone language threatening bodily harm; telephones and intentionally fails to hang up or disengage the connection; or knowingly permits any telephone under his control to be used for any purpose prohibited by this subsection.”

A reading of subsection 4 of OCGA § 16-11-39 demonstrates that a person may commit the offense of “harassing phone calls” in separate and alternative ways. The offender commits the offense when he repeatedly telephones another with an intent to harass. He commits the offense when he uses the telephone to threaten bodily harm. He commits the offense when he fails to hang up or disengage the phone. Finally, the offender commits the offense when he knowingly permits another to use a telephone under his control in any of the foregoing ways.

In the case sub judice, the prosecution charged defendant with committing the offense of harassing phone calls by repeatedly telephoning the victims himself. The trial court determined that the prosecution failed to prove beyond a reasonable doubt that defendant himself telephoned the victims. Nevertheless, defendant was convicted of the offense of harassing phone calls on the theory that he knowingly permitted a telephone under his control to be used for the purpose of harassing Deborah Nunnally.

Defendant’s conviction cannot withstand judicial scrutiny because the prosecution charged defendant with committing the harassing phone calls offense in one of four particular ways and defendant was convicted of committing the harassing phone calls offense in an entirely different way. Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206). The long and short of the matter is that defendant was convicted on a charge that was not brought against him. Robinson v. State, 152 Ga. App. 296 (262 SE2d 577); Walker v. State, 146 Ga. App. 237 (1), supra. His conviction must be reversed.

“We fully understand the problem posed to the prosecution. However, whenever exigencies of proof exist as to whether an offense was committed in one of [several] methods proscribed by a statute, the prosecution may charge the accused in separate counts of a single indictment [or accusation] and let the jury select which method the evidence supports. Hamby v. State, 76 Ga. App. 549 (1) (46 SE2d 615). See also Flournoy v. State, 106 Ga. App. 756, 757 (128 SE2d 528).” Walker v. State, 146 Ga. App. 237 (1), 243, supra.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.

Decided June 18, 1991.

Willie J. Woodruff, Jr., for appellant.

James E. Cornwell, Jr., Solicitor, for appellee.


author: Sognier, Chief Judge.

text:
    A91A0214.
    TIMBERLAKE v. THE STATE. BROOME v. THE STATE.
    A91A0215.
    (406 SE2d 537)
   Sognier, Chief Judge.

Edward Lee Timberlake and William P. Broome were each charged with three counts of violating the Georgia Controlled Substances Act. Broome was also charged with possessing a firearm during the commission of a crime and trafficking in cocaine. They were tried jointly and convicted by a jury on all counts, and each appeals from the judgment and sentence entered on the jury’s verdicts.

Construed to support the verdicts, the evidence adduced at trial showed that Eddie Madeira, who was married to the former office manager of appellant Broome’s mortgage business, was cooperating with the Rockdale County Police Department and the metropolitan Atlanta DEA State and Local Task Force in order to assist his son, who had been charged with a drug offense. As a result of information given him by Madeira, Task Force Group Supervisor Raleigh Lopez assigned several agents to observe a meeting between Madeira and Broome at a local restaurant. After that meeting, numerous conversations (which were monitored) took place between Broome and Lopez during which Lopez posed as Madeira’s cousin from Puerto Rico who had $250,000 and wished to buy cocaine. Eventually, a deal was made for the sale of half a kilogram of cocaine, and Broome arranged for appellant Timberlake, who was in possession of the cocaine, to wait at a gas station nearby while Broome met with Lopez in a restaurant parking lot in Conyers to consummate the sale. A videotape was made of that meeting and was admitted into evidence and shown to the jury.

The tape and other evidence showed that because Lopez would not agree to advance the purchase price before seeing the cocaine, Broome agreed to furnish a small sample in order to get the money. Broome then left the parking lot, drove to the gas station where Timberlake awaited, and returned with a plastic bag containing a sample of a white powdery substance, later identified as a little over a half ounce of 80 percent cocaine. Lopez testified that after Broome gave him the sample, he was sitting in his car in the restaurant parking lot along with Special Agent Tony Pettigrew of the DEA when he observed Timberlake drive up in his own car and park nearby. Lopez then told Broome he was satisfied with the sample and wanted to see the rest of the cocaine, and they walked to Timberlake’s vehicle. Timberlake’s passenger window was open, and Lopez leaned in, showed a bag containing $25,000 in cash, and asked for the cocaine, whereupon Timberlake lifted a towel, revealing a package of white powder. In response to Lopez’s question regarding its quality, Timberlake indicated the cocaine was “between 80 to 90 percent” pure, and broke the plastic bag to show Lopez the powdery consistency of the cocaine.

When Lopez indicated he would be interested in buying another two kilograms, Timberlake replied that he had two more at his home, but Lopez would have to go through Broome. At that point, Lopez gave the prearranged signal for the arrest. The package under the towel was seized by Agent Pettigrew, and it was later identified as containing 448 grams (15.7 ounces) of 79 percent cocaine. An inventory search after Timberlake’s car was impounded revealed a leatherette case containing triple beam scales and a box of plastic ziplock bags in the hatchback, and a plastic bag containing a white powdery substance, later identified as a little over an ounce of 80 percent cocaine in the glove compartment. A .38 caliber handgun was found in the glove compartment of Broome’s car.

1. Both appellants enumerate error in the prosecutor’s questioning of Broome on cross-examination. The exchange in issue was as follows: Q. “Isn’t it true Mr. Timberlake asked you to lie to help him in this case?” A. “No, sir.” Q. “And you never told your wife that?” Both appellants argue that because the prosecutor knew Broome’s wife had clearly invoked her privilege not to testify, see OCGA § 24-9-23, it was error to question Broome in a manner from which the jury could infer that his wife’s testimony would indicate he was lying. The record reveals, however, that when defense counsel objected, a conference was held with the trial judge and defense counsel to discuss the matter outside the presence of the jury, during which the district attorney stated that he was “just going to withdraw the question.” No objection was then made by either defense counsel, neither counsel moved for a mistrial, and the prosecutor moved on to another line of questioning. It is well established that if appellants deemed the remedy inadequate, it was encumbent upon them to seek curative instructions or move for a mistrial, which they did not do. See generally Barksdale v. State, 161 Ga. App. 155, 158 (4) (291 SE2d 18) (1982). “ ‘Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. (Cit.)’ [Cit.]” Hight v. State, 195 Ga. App. 727, 730 (6) (394 SE2d 636) (1990).

2. Timberlake contends his cross-examination was improperly limited when he was prevented from questioning Lopez about the DEA’s use of condemned funds in general. We do not agree. Lopez had testified that one reason not all his conversations with Broome had been recorded was that all six of his office’s tape recorders were in use at the time. Timberlake sought to discredit Lopez’s testimony by questioning him regarding forfeited funds in general, purportedly to show that the agency possessed sufficient funds to enable it to have purchased sufficient recording equipment to record all the conversations in issue. The State objected on relevancy grounds, and the trial court sustained the objection.

Questions of the relevancy of evidence are within the trial court’s discretion. See Queen v. State, 182 Ga. App. 794, 796 (2) (357 SE2d 150) (1987). “ ‘The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.’ [Cit.]” Ballentine v. State, 194 Ga. App. 560, 561 (2) (390 SE2d 887) (1990). “ ‘Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.’ [Cit.]” Robinson v. State, 182 Ga. App. 423, 428 (20) (356 SE2d 55) (1987). Although the line of questioning excluded might have established that sufficient funds existed to buy additional tape recorders, it could not have established that the funds would have been allocated in the manner suggested by appellant or, more importantly, that the conversations Lopez testified he had with Broome did not occur. Indeed, Broome admitted the conversations occurred but testified that he had lied to Lopez during those conversations. Since it was the existence and the content of those conversations which was in issue, the trial court did not abuse its discretion in excluding this line of cross-examination. See Ballentine, supra.

3. Broome testified that he was 44 years old, had “never liked people who messed with drugs and [had] never done drugs,” and was “not a drug dealer of any kind.” He testified that, through his mortgage business, he had assisted Madeira in obtaining a loan on his house, and at that time, because his business was slow, had borrowed $4,000 or $4,500 of the loan proceeds from Madeira to catch up on some business bills. Several weeks before the arrest, Broome had encountered Madeira by chance, at which time Madeira had mentioned his own financial problems and the fact that he needed the money owed him, which was due. Broome testified he also knew that Madeira had recently had a heart attack and had no group insurance to cover the hospital bill. During the course of the next several weeks, according to Broome’s testimony, Madeira repeatedly called Broome, mentioning that he and his wife would lose their home if they did not come up with some cash.

Madeira also informed Broome that his cousin from Puerto Rico was visiting, had $250,000, and wanted to buy some cocaine. Madeira suggested that if Broome knew anyone from whom his “cousin” (in reality Lopez, who was posing as Madeira’s cousin) could buy drugs, both Madeira and Broome could solve their mutual financial problems by earning money putting Madeira’s “cousin” in touch with a drug dealer. Broome explained that Madeira may have known that Broome was acquainted with drug dealers because Madeira and his wife had been invited to several Christmas parties at Broome’s home at which those people were also in attendance. Broome testified that he “had people come to me before and asked me [where to buy drugs] and I always turned them down.” However, this time, after initially putting Madeira off several times, he finally agreed because he “thought the world of’ Madeira’s wife because of her loyalty to Broome during her employment, and had been motivated to become involved in this scheme to sell cocaine by his desire to prevent Madeira’s wife and her mother (who lived with the Madeiras) from losing their home because of Madeira’s precarious financial situation. He testified he acceeded to Madeira’s requests only after Madeira called him several times to say his “cousin” was about to leave town with his money, putting pressure on Broome to come up with a cocaine supplier.

Broome asserted he did not know the source of the cocaine because he arranged through his friend “Minnie” from Alabama to have someone named “Tony” place it in Timberlake’s car and tell Timber-lake it was jewelry that Broome was going to sell so that Broome could repay a debt he owed Timberlake. Broome claimed he did not know either Minnie’s or Tony’s last name. He did not deny the conversations with Lopez, or that he had participated in the deal, but testified that many of the things he had told Lopez in those conversations were lies.

Lopez testified, however, that it was “[absolutely not” possible that Madeira had entrapped Broome because, during taped telephone conversations, Broome had himself revealed a history of drug dealing, including mentioning to Lopez that he had been “doing this over a number of years, and had over three sources of cocaine. And he was talking kilos not grams. When you are talking to people who are capable of distributing, buying, selling kilograms, you know that they did not start in business yesterday. They have been around for a while.”

Broome contends the trial court erred by denying his motions for a directed verdict of acquittal on the issue of entrapment made after the State rested and after the close of the evidence, because the State did not call Madeira to testify, and thus failed to rebut appellant’s prima facie showing that he was entrapped by Madeira, who was acting as the State’s agent. We do not agree.

Although we have held in a number of cases that the State’s failure to produce the confidential informant to rebut a defendant’s prima facie showing of entrapment required a directed verdict of acquittal, see, e.g., Robinson v. State, 145 Ga. App. 17 (243 SE2d 257) (1978); Harpe v. State, 134 Ga. App. 493, 495-497 (2) (214 SE2d 738) (1975), the Supreme Court has held there is no “per se rule that a defendant is entitled to a directed verdict where the informant is not called to rebut the defendant’s testimony of entrapment. A distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in [OCGA § 17-9-1], would demand a finding of entrapment and, therefore, a directed verdict of acquittal.” (Footnote omitted.) State v. Royal, 247 Ga. 309, 310 (275 SE2d 646) (1981). Here, as in Royal, while there was in the accused’s testimony some evidence of entrapment, this evidence was rebutted by other testimony. Thus, as in Royal, the evidence did not demand a finding of entrapment, but rather presented a question of fact for determination by the jury. The trial court properly charged the jury on entrapment, and the jury decided the issue adversely to Broome. The trial court did not err by denying Broome’s motions for a directed verdict on this issue. Id. at 309-312 (1).

4. The verdict form set forth each co-defendant and each charge separately, and the trial court gave explicit instruction to the jury explaining the separate and differing charges against Broome and Timberlake, charging the jury that “you must deal with each count separately. You can find any way you want to. You do not have to find the same [as to both defendants] on any count.” Given these thorough precautions, we find no merit in Broome’s contention that the charge was insufficient to inform the jury it could split the verdict on any count.

5. Broome alleges the trial court erred by finding that he had effective assistance of counsel at trial. His contention in this regard is based largely on an incident during the trial involving a statement overheard by Broome’s sister, made by a person Broome’s sister believed was a juror, concerning the fact that she (the juror) had already made up her mind about the case because of Timberlake’s family’s history of criminal activity. The sister notified trial counsel of the conversation, and Broome alleges his trial counsel was ineffective in failing to have the possible misconduct noted on the record. Citing Jowers v. State, 260 Ga. 459, 461-462 (2) (396 SE2d 891) (1990), Broome alleges that trial counsel should have investigated the juror’s conduct further.

“Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), establishes the benchmarks for determining whether trial counsel’s representation of a defendant in a criminal case was so deficient as to result in the denial of the defendant’s right to assistance of counsel under the Sixth Amendment.” Jowers, supra. Under Strick land’s two part test, a showing must be made that counsel was deficient, and that the deficient performance prejudiced the defense. In Jowers, the Supreme Court reversed a murder conviction where trial counsel “did not ‘adequately investigate the case,’ . . . did not ‘make the adversarial testing process work,’ and ... his omissions in this regard cannot be considered ‘sound trial strategy.’ ” Id. at 462. However, in Jowers, key elements of the defendant’s defense were supported by the State’s scientific reports, which trial counsel failed to present to the jury, and thus the required showing of both elements in the Strickland test was made. In the case sub judice, the trial counsel testified at the hearing on Broome’s motion for a new trial, explaining that he had consulted both his client and Timberlake’s counsel, and a decision had been arrived at not to do anything further about the information provided by Broome’s sister, but rather to notify the court of the possible problem, which was done. Thus, unlike the situation in Jowers, the issue allegedly not investigated was not a substantive part of Broome’s defense, but was merely an isolated decision concerning trial strategy. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990). Given trial counsel’s experience and his conduct in general in defending Broome, we find that the trial court’s conclusion that Broome had been afforded effective assistance of counsel was not clearly erroneous.

6. Because trial counsel elected not to pursue the incident, and on motion for a new trial Broome’s sister did not testify to what she had heard and present counsel did not investigate further or identify the juror, no creditable evidence of juror misconduct was shown, and consequently we cannot say the trial court erred by failing to investigate the incident further. Compare Lockridge v. State, 260 Ga. 528 (397 SE2d 695) (1990).

7. Broome contends the trial court erred by failing to merge Count Three (possession and delivery of cocaine) with Count One (trafficking in cocaine) and by sentencing him on both counts. We do not agree. Count Three related to the “sample” half ounce, while Count One referred to the larger quantity in Timberlake’s car. Broome testified he had obtained the sample from “Minnie,” and kept it in his pocket, while the larger package and the drugs in the glove compartment had been placed in Timberlake’s car by “Tony.” Although the State’s evidence showed that Broome actually took the “sample” from the back of Timberlake’s car, the two quantities were packaged separately and had slightly different purities. From this evidence, a jury could have concluded that the two quantities were intended to be utilized in different transactions. Accordingly, because different facts were involved in the transfer of the two quantities, the two counts do not meet the requirements for merger set forth in OCGA § 16-1-7.

Decided June 5, 1991

Rehearing denied June 19, 1991

McGuire, Cook & Martin, John J. Martin, Jr., for appellant (case no. A91A0214).

Ronald C. Conner, for appellant (case no. A91A0215).

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

8. Broome maintains the trial court erred by denying his motion for a continuance to enable him to engage new counsel, made on the morning his trial began. “ ‘A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. OCGA § 17-8-22.’ [Cit.]” Gignilliat v. State, 196 Ga. App. 773 (2) (397 SE2d 52) (1990). Broome’s motion was based on his desire to retain other counsel because of his appointed trial counsel’s decision not to call character witnesses. We find no abuse of the trial court’s discretion in denying the motion in light of the fact that it was made on the day of trial, particularly given the fact that calling character witnesses may have prejudiced Broome’s defense by making possible introduction by the State of his prior felony convictions. See generally Davis v. State, 190 Ga. App. 178-179 (378 SE2d 519) (1989).

9. Broome raised no objection at trial to the trial court’s charge on impeachment being given immediately following the charge on defendant’s testimony, and consequently has not preserved his right to enumerate it as error. See McCounly v. State, 191 Ga. App. 266, 268 (4) (381 SE2d 552) (1989). Although this court will consider and review charges regardless of whether objection was made where there has been a substantial error which was harmful as a matter of law, see id.; OCGA § 5-5-24 (c), the error complained of here is not such a charge. The charge on impeachment actually followed several charges regarding witnesses’ credibility, and no significance may be inferred from the order of the charges. Accordingly, we find no error. McCounly, supra.

Judgments affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0284, A91A0285.
    COLLINS v. THE STATE (two cases).
    (406 SE2d 520)
   Sognier, Chief Judge.

Jim L. Collins was convicted of aggravated assault. We have consolidated his appeals from the denial of his motion for a new trial and the denial of his motion for bond pending appeal.

1. Appellant contends in his sole enumeration regarding his motion for a new trial that the trial court erred by denying the motion because appellant was wrongly deprived of his right to be present when the verdict was returned. The record reflects that while the jury was deliberating, Assistant District Attorney Rebecca Keel informed appellant and his two attorneys, Morgan Scott and James Finley, that she had been told the trial judge was sending the jury to lunch and that the trial judge had excused appellant and the attorneys for lunch for one and one half hours. Without checking to verify whether the information Keel had received was correct, appellant and Scott then left the courtroom. However, Keel had misunderstood the trial judge, who had not excused the parties. (We note that nothing in the record gives the slightest indication that Keel deliberately misinformed appellant and his attorneys; indeed, the record reflects that Keel also left the courtroom to go to lunch.) The jury returned a verdict during the period appellant, Scott, and Keel were absent. After waiting “over an hour” and with court personnel sent out but unable to find appellant, the trial court accepted the verdict in the presence of Finley, appellant’s other attorney, and another assistant district attorney. Although the parties stipulate that Finley had also been told by Keel about the one and one half hour “recess” for lunch, the record fails to reflect that Finley informed the trial court about the misunderstanding or otherwise requested the trial court to wait until the hour and a half “lunch recess” had expired. Nor did Finley object to the trial court’s action in proceeding to accept the verdict while appellant was absent as a result of the misunderstanding. Rather, Finley requested the trial court to poll the jury, which was done, after which the trial court discharged them. Appellant and Scott returned as the jury was departing, within the hour and a half “lunch recess.” We note that the transcript reflects that no objection was made when appellant and his attorney Scott returned to the courtroom; and that even when the trial judge brought up the matter of the absence of Scott and Keel from the courtroom, chastising both attorneys, Scott merely responded that his action was based on information received from Keel, stating no objection to what had transpired. (

We find no reversible error. “Confrontation rights are personal to the accused and are waived when the accused is free on bail and voluntarily absents himself from the trial. [Cits.] . . . [T]he voluntary absence of the accused waives his right to be present when sentence is imposed. [Cits.]” Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975). Because the trial court had not excused appellant, and appellant’s co-counsel, although aware of the misunderstanding about the “lunch recess,” did not inform the trial court of the reason for appellant’s absence, the trial court “could assume that the defendant had voluntarily absented himself from the [return of the verdict], thereby waiving his confrontation rights.” Smith v. State, 139 Ga. App. 515, 516 (228 SE2d 705) (1976). Given that the trial judge, not the assistant district attorney, had the authority to excuse appellant from the courtroom, see generally Simpkins v. State, 149 Ga. App. 763, 769 (256 SE2d 63) (1979), and that no effort whatsoever was expended by appellant or his counsel to verify that they had been excused from the courtroom while the jury was deliberating, we do not agree with appellant that his reliance on Keel’s second-hand information rendered his absence from the courtroom anything but voluntary.

Decided June 4, 1991

Rehearing denied June 19, 1991

Maloy & Jenkins, W. Bruce Maloy, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Assistant District Attorneys, for appellee.

2. We are unable to address appellant’s enumeration in which he contends the evidence was insufficient to support the trial court’s finding that his motion for bond pending appeal was for the purpose of delay only due to the absence of a transcript of the evidence presented on the motion. “ ‘(A)bsent a transcript, we must assume the ruling of the trial court is supported by the evidence.’ [Cit.]” Gibson v. State, 187 Ga. App. 769, 771 (6) (371 SE2d 413) (1988).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0574.
    KOLKER v. THE STATE.
    (406 SE2d 514)
   Sognier, Chief Judge.

After the trial court denied his motion to declare a prior DUI judgment null and void, John E. Kolker reserved his right to appeal from the denial of that motion, and pleaded guilty to a pending charge of DUI. He now appeals, contending the trial court erroneously based his sentence as a third time violator in part on the prior Chamblee judgment, which he contends was void. We do not agree.

The record reveals the prior judgment in question was rendered in the Recorder’s Court of Chamblee in 1985 when appellant entered a plea of nolo contendere to a charge of DUI. Appellant argues that because it is undisputed that the Recorder’s Court of Chamblee did not obtain a written waiver of jury trial from appellant, as required by OCGA § 40-13-23 (a), that court was without jurisdiction to dispose of the charge, and the judgment entered thereon is consequently null and void. Appellant’s argument has recently been decided adversely to him, however, by the Supreme Court. In Nicholson v. State, 261 Ga. 197 (403 SE2d 42) (1991), the Supreme Court held that the language of OCGA § 40-13-21 (b) conferring jurisdiction upon the probate courts of this state to hear state law traffic violation cases “provided the defendant waives a jury trial” is not an essential element of subject matter jurisdiction, but only of jurisdiction over the person, and therefore, when no objection is raised to trial without a jury, the right to a trial by jury is simply waived. See also Walker v. State, 199 Ga. App. 701 (_SE2d_) (1991).

Decided May 31, 1991

Rehearing denied June 19, 1991

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Gerald N. Blaney, Jr., Solicitor, Jessica R. Towne, David M. Fuller, Assistant Solicitors, for appellee.

Although the Nicholson opinion deals directly only with probate courts, OCGA § 40-13-21 (b) also confers upon all police courts, including recorder’s courts (see OCGA § 40-13-20), the same jurisdiction as probate courts to try and dispose of misdemeanor traffic offenses arising under state law when the offense is committed within the territorial limits of cities, “if the defendant waives a jury trial.” Given that OCGA § 40-13-21 (b) governs jurisdiction of both probate courts and recorder’s courts to try the same offenses “provided” — i.e., “if” — the defendant waives a jury trial, and that OCGA § 40-13-23, which requires written waiver of jury trials, applies to all “court[s] defined in this article,” we see no reason to limit Nicholson to probate courts, and find that the rationale in Nicholson is applicable to all courts granted jurisdiction in OCGA § 40-13-21 (b) to try misdemeanor traffic offenses arising under state law when the defendant waives a jury trial. In the case sub judice, since no evidence appears indicating appellant’s objection to proceeding without a jury in the prior offense, appellant waived his right to a jury trial on that charge, and hence the trial court did not err by considering the valid prior judgment in sentencing appellant.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0180.
    OFFUTT v. EARP.
    (406 SE2d 571)
   Banke, Presiding Judge.

Acting pursuant to OCGA § 40-5-57, the Georgia Department of Public Safety revoked the appellant’s Georgia driver’s license based on a physical disability, specifically lack of sufficient visual acuity. That decision was upheld by the appellee Commissioner, whereupon the appellant petitioned the Superior Court of Fulton County for a de novo hearing pursuant to OCGA § 40-5-66. In addition, he sought injunctive relief pursuant to the Rehabilitation Act of 1973, 29 USCA § 701 et seq., and damages pursuant to 42 USC § 1983, based on alleged violations of his constitutional rights resulting from defects in the department’s administrative procedures. On November 30, 1989, a consent order was entered by the superior court remanding the case to the department for individualized road testing of the appellant pursuant to the Rehabilitation Act. This order directed the administrative hearing officer to render a new decision based on the results of the road test and any other new evidence which might be presented, and it further specified as follows: “This court shall retain jurisdiction of this case in the event either party is dissatisfied with the outcome of the administrative proceedings. Plaintiff [appellant] shall dismiss this action within thirty days of the administrative decision, in the event he does not seek further judicial review.” (Emphasis supplied.)

Based on the results of the road test, the department reinstated the appellant’s driver’s license. The appellant took no further action in the case until four months later, when he filed a motion in the superior court for an award of attorney fees and costs. By order dated June 29, 1990, the court denied this motion on the ground that it no longer had jurisdiction over the action. This appeal followed. Held:

1. The appellee has moved to dismiss this appeal based on the appellant’s failure to follow the application procedures set forth in OCGA § 5-6-35. In his response to this motion, the appellant asserts that this appeal does not concern the portion of his complaint seeking judicial review of the administrative proceedings but only his claim for monetary damages and attorney fees. On that basis, the motion to dismiss is denied.

2. As noted previously, the remand order specified that the court would retain jurisdiction only “in the event either party is dissatisfied with the outcome of the administrative proceedings” and further specified that in the event the appellant did not “seek further judicial review,” he would dismiss the action within 30 days of the new administrative decision. Nothing whatever was said about the claim for monetary damages and attorney fees; and in the absence of any such provision, we find no basis upon which the consent order could, on its face, be interpreted as having reserved jurisdiction over this claim. However, the attorney who had represented the appellant during this stage of the proceedings submitted an affidavit in support of the motion for attorney fees stating: “When this case was called for hearing, the parties agreed that any issue of damages would remain within the court’s jurisdiction.” In its subsequent order dismissing the case, the superior court made no contrary finding to the effect that the consent order had encompassed a settlement of the damage claim but reasoned as follows: “When this court or an appellate court remands a case to a lower court, it gives up the case and thereby jurisdiction. [Cit.] The parties cannot confer jurisdiction by agreement or consent. [Cit.] Thus, that portion of the [consent] order in which the court retained jurisdiction is void.”

Decided June 19, 1991.

Ralph S. Goldberg, Georgia K. Lord, for appellant.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Senior Assistant Attorney General, Neal B. Childers, Assistant Attorney General, for appellee.

In the present case, the appellant’s claim for monetary damages and attorney fees was never pending before the Department of Public Safety, nor could it have been. Rather, it was filed in the superior court as an original action. Under these circumstances, the remand of the administrative case to the department for reconsideration clearly would not have prevented the superior court from retaining jurisdiction over the damage claim. Compare McDevitt & Street Co. v. Trammell, 193 Ga. App. 646 (389 SE2d 3) (1989). While it would appear from the language of the consent order that the parties and the court contemplated that the appellant would dismiss the entire action, including the damage claim, in the event the agency’s administrative decision was favorable to him on remand, we are reluctant to hold as a matter of law that this was the effect of the order in view of the affidavit submitted by appellant’s counsel. The dismissal order is accordingly vacated, and the case is hereby remanded to the superior court for a determination as to whether and to what extent its consent order was intended to encompass a settlement of the appellant’s claim for damages and attorney fees.

Judgment vacated and case remanded with direction.

Carley and Beasley, JJ., concur.


author: Carley, Judge. Beasley, Judge,

text:
    A91A0596.
    SHAVERS v. THE STATE.
    (406 SE2d 803)
   Carley, Judge.

Appellant was tried before a jury on charges of kidnapping, armed robbery and murder. He was found guilty of kidnapping and armed robbery, but not guilty of murder. Pursuant to the trial court’s grant of a motion for an out-of-time appeal, appellant appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Asserting a violation of his constitutional right to a speedy trial, appellant filed a motion to dismiss. The denial of this motion is enumerated as error.

In denying the motion, the trial court found that the delay had been “largely caused by [the] trial strategy” which appellant’s own counsel had elected to pursue. Moreover, the record demonstrates that appellant had at no time asserted his right to a speedy trial by filing a demand invoking his rights under either OCGA § 17-7-170 or the Federal or State Constitutions. Instead, he filed only the motion to dismiss wherein he asserted a pre-existing violation of his constitutional right to a speedy trial. An accused is estopped to urge that his otherwise previously unasserted right to a speedy trial has been violated by a delay which was the result of his own counsel’s trial tactics. Such circumstances evince the accused’s manipulative “desire to avoid trial altogether or at least gain advantage from the delay. [Cit.]” Heinen v. State, 186 Ga. App. 373, 375 (c) (367 SE2d 275) (1988).

Insofar as prejudice is concerned, the only contention is that the delay impaired appellant’s defense by preventing him from securing all of his co-arrestees as witnesses in his behalf. However, appellant was unable to demonstrate that any of his co-arrestees had ever been interviewed and was prepared to testify in his defense. “ ‘There must be more than a mere claim of prejudice; it must be shown, and this [appellant] did not do.’ [Cit.]” Heinen v. State, supra at 375-376 (d). Moreover, the State’s case was predicated upon appellant’s own in-custody statement wherein he, in effect, admitted his guilt as to the kidnapping and armed robbery charges, but denied his guilt as to the murder charge. Under these circumstances, the only possible benefit which could have been derived from the production of any of the coarrestees as a defense witness would be to corroborate appellant’s denial of his guilt for murder. Since the jury acquitted appellant on the murder charge, there clearly was no impairment of appellant’s defense by virtue of his failure to have produced his co-arrestees as witnesses on his behalf.

“Considering all, the trial court did not abuse its discretion in denying [appellant’s] motion to dismiss for lack of a speedy trial. . . . [Cit.]” Heinen v. State, supra at 376.

2. Appellant urges that the trial court erred in denying his motion for a mistrial after the State impermissibly introduced his character into evidence.

This enumeration is predicated upon the reading into evidence of portions of appellant’s in-custody statement which allegedly referred to his participation in crimes other than those for which he was being tried. However, even if appellant’s in-custody statement did contain references to his participation in other crimes, the entirety of his statement was admissible and there was no error in denying the motion for mistrial. Burke v. State, 248 Ga. 124, 125 (3) (281 SE2d 607) (1981).

3. The trial court did not err when, in instructing the jury, it referred to appellant as “the prisoner at the bar.” Allen v. State, 18 Ga. App. 1, 4 (1, 3) (88 SE 100) (1916).

4. The trial court charged that appellant’s “plea of not guilty is no evidence of his innocence.” Appellant urges that this charge was unconstitutionally burden-shifting.

The contested charge did not purport to shift any burden to appellant, but merely stated a correct evidentiary principle. Hairston v. State, 142 Ga. App. 235 (235 SE2d 657) (1977). The converse of this evidentiary principle was also given when the jury was instructed that “an indictment does not constitute evidence nor does the fact that a Grand Jury has returned an indictment against a defendant constitute any evidence or inference of guilt.” Having correctly instructed the jury as to what was not to be considered as evidence of appellant’s guilt or innocence, the trial court then gave full and fair charges on appellant’s presumption of innocence, on the State’s burden of overcoming this presumption by proof of appellant’s guilt beyond a reasonable doubt, and on the jury’s duty to acquit appellant so long as a reasonable doubt of his guilt remained. No unconstitutionally burden-shifting charge was given and this enumeration is without merit.

5. Counsel who was appointed to pursue this out-of-time appeal has raised the issue of the effectiveness of appellant’s trial counsel. Appellant’s trial counsel was obviously effective insofar as the jury returned a verdict of not guilty on the murder charge. Nevertheless, the issue of the effectiveness of appellant’s trial counsel remains with respect to the kidnapping and armed robbery charges.

In Ponder v. State, 260 Ga. 840, 841 (1) (400 SE2d 922) (1991), the Supreme Court held “that the grant of an out-of-time appeal constitututes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing. [Cit.]”

The application of this holding in the instant case would result in a waiver of the issue of the effectiveness of appellant’s trial counsel since, subsequent to the grant of the out-of-time appeal, appellant’s appellate counsel did not file a motion for new trial and raise that issue for resolution in the trial court. However, at the time the instant out-of-time appeal was granted, the Supreme Court’s decision in Ponder had yet to be rendered. Since the Supreme Court “had not at that time addressed expressly the issue of whether a motion for new trial could be filed following the grant of a motion for out-of-time appeal, it would be manifestly unfair to deny appellant an opportunity to follow the procedure ... set out above. Giving [appellant] access to the procedure . . . established [in Ponder] necessarily requires remand of this case to the trial court for the purpose of permitting him to file a motion for new trial. Because all other issues in this case have been dealt with on appeal, that motion will be limited to the issue of ineffective assistance of counsel.” Ponder v. State, supra at 842 (2).

Accordingly, the judgments of the trial court are hereby affirmed with direction that, within 30 days of the date that this court’s remittitur is filed in the trial court, appellant shall be entitled to file a motion for new trial limited to the issue of the alleged ineffectiveness of his trial counsel. If appellant files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that appellant was denied effective assistance of trial counsel, he will be entitled to a new trial. If appellant files a timely motion for new trial as to that limited issue and the trial court finds, after an evidentiary hearing, that appellant was not denied effective assistance of trial counsel, he will be entitled to file a notice of appeal within 30 days of the entry of such an adverse order.

Judgments affirmed with direction.

Banke, P. J., concurs in Divisions 1, 2, 3, 4, and in the judgment. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur because defendant had no opportunity, with counsel, to file an extraordinary motion for new trial on the right to counsel ground after the grant of the out-of-time appeal. He filed his motion for an out-of-time appeal pro se, complaining that his trial attorney had failed to pursue his appeal. The court expressly granted the right to “make direct appeal” and appointed current counsel to “represent [defendant] in his appeal.”

This limitation as a matter of fact rendered absent any opportunity for an extraordinary motion for new trial, even though as a matter of law, one otherwise could have been filed. OCGA § 5-5-41 (a) & (b). Compare the dissent in Kinney v. State, 199 Ga. App. 354 (405 SE2d 98) (1991).

Decided June 19, 1991.

Charles C. Grile., for appellant.

Spencer Lawton, Jr., District Attorney, David T. Lock, Assistant District Attorney, for appellee.


text:
    A91A0722.
    DANIEL v. THE STATE.
    (406 SE2d 806)
   Sognier, Chief Judge.

Daniel Anthony Daniel was indicted on 18 counts of sexual abuse involving his ten year old stepdaughter and eight and eleven year old stepsons. He was convicted by a Jackson County jury of four counts of aggravated sodomy, four counts of aggravated child molestation, two counts of child molestation, one count of attempted rape, and one count of attempted aggravated sodomy. He appeals from the denial of his motion for new trial.

1. Appellant first challenges the sufficiency of the evidence. Construed to uphold the verdict, the evidence adduced at trial established that the molestation occurred at night while the children’s mother was working and appellant was home alone with the children. All three children described numerous incidents of sexual abuse, including attempted rape of the girl and oral and anal sodomy of the boys. They also testified appellant forced them to sodomize each other and to masturbate him, and that he forced the older boy to have sexual intercourse with his sister. The children explained that appellant, who often whipped them with a belt, forced them to perform these acts by threatening to whip them if they did not comply. The abuse was reported to the Department of Family & Children’s Services (DFCS) after the stepdaughter reported it to her school principal. The DFCS caseworker who initially interviewed the children testified concerning the graphic descriptions of molestation they had reported to her, and the victim assistance counselor who worked with the children stated that the children exhibited characteristics of the child abuse syndrome and that they related specific instances of molestation to her. Appellant denied molesting the children, and stated that he did not know why they would lie.

Appellant contends the children’s testimony was not credible. The question of witness credibility, however, is for the jury. Stroud v. State, 193 Ga. App. 82 (1) (387 SE2d 37) (1989). On appeal, this court determines the sufficiency of the evidence, but does not weigh the evidence or determine witness credibility. Norman v. State, 197 Ga. App. 333 (1) (398 SE2d 395) (1990). We find the evidence was sufficient to authorize a rational trier of fact to find proof of the charged crimes beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Stander v. State, 193 Ga. App. 212 (1) (387 SE2d 422) (1989).

Decided June 19, 1991.

Jerry C. Gray, for appellant.

Timothy G. Madison, District Attorney, Jeffrey G. Morrow, Assistant District Attorney, for appellee.

2. Appellant maintains the trial court erred by sentencing him to 20 years for attempted rape because the maximum sentence permitted was ten years. OCGA §§ 16-6-1 (b); 16-4-6 (a), (b). The State concedes this error, but urges that it was harmless since appellant’s total sentence was so long that the mistake in his attempted rape sentence will have no effect on the amount of time he spends in prison. We do not agree with this rationale, as we are bound to reverse a sentence not authorized by law. Smith v. State, 193 Ga. App. 365 (387 SE2d 648) (1989). Accordingly, we reverse this portion of appellant’s sentence and remand for resentencing on the attempted rape count. See id.

Judgment affirmed; sentence reversed and case remanded in part.

McMurray, P. J., and Andrews, J., concur.


text:
    A91A0925.
    KING v. THE STATE.
    (406 SE2d 573)
   McMurray, Presiding Judge.

In the early morning hours on May 5,1990, Atlanta police officers were flagged down by a concerned citizen who wished to remain anonymous. The citizen informed the officers that a black male was carrying drugs under a black hat. The male’s name was given as Cecil King and he was said to be wearing a red sweat suit. The officers approached a young man who fit the description given by the citizen. The young man threw his hat to the ground. The officers retrieved the hat and discovered cocaine hidden in it. Defendant was arrested and charged with possession of cocaine with intent to distribute.

After a jury trial, defendant was convicted of violating the Georgia Controlled Substances Act (possession of cocaine with intent to distribute). This appeal followed the denial of defendant’s motion for a new trial. Held:

Decided June 19, 1991.

G. Scott Sampson, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William C. Akins, Assistant District Attorneys, for appellee.

1. In his first enumeration of error, defendant contends the trial court erred in denying his request to make a record when he challenged a venireperson for cause. This contention is without merit. The circumstances surrounding defendant’s challenge are apparent inasmuch as colloquy concerning the challenge was recorded. Inasmuch as we are able to discern what transpired below, it cannot be said that the trial court erred in failing to order the recordation of voir dire. Besides, a review of the record reveals no legal ground to excuse the venireperson for cause. She indicated that she could be fair and objective and would base her decision on the evidence and the court’s instructions. Thus, defendant cannot demonstrate that he was harmed by the trial court’s refusal to order the recordation of voir dire. See Meier v. State, 190 Ga. App. 625 (1) (379 SE2d 588).

2. The trial court did not err in refusing to permit defense counsel to cross-examine one of the police officers concerning procedures for obtaining a search warrant. No search warrant was obtained in this case and defense counsel conceded that a search warrant was not required. Thus, procedures for obtaining a search warrant were irrelevant and it cannot be said the trial court abused its discretion in curtailing defense counsel’s cross-examination concerning such procedures. Hudson v. State, 137 Ga. App. 439 (1) (224 SE2d 48).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0974.
    COLUMBUS v. THE STATE.
    (406 SE2d 576)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of driving under the influence of alcohol and acquitted of reckless driving. He appeals. Held:

1. The evidence was more than sufficient to enable any rational trier of fact to find defendant guilty of driving under the influence of alcohol beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Questions regarding the arresting officer’s credibility and the credibility of witnesses who testified on defendant’s behalf were properly left to the jury.

Decided June 19, 1991.

Jeffrey R. Sliz, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

2. In light of the fact that defendant was acquitted of reckless driving, he cannot complain that the trial court erred in failing to direct a verdict of acquittal with regard to the reckless driving charge. “Harm as well as error must be shown affirmatively by the record to authorize a reversal. Chenault v. State, 234 Ga. 216 (215 SE2d 223) (1975). [Defendant’s] contention that the submission of the issue of [reckless driving] to the jury caused it to reach a compromise verdict on the . [driving under the influence of alcohol] charge is mere speculation and conjecture unsupported by the record.” Hazelrig v. State, 171 Ga. App. 942, 943 (1) (321 SE2d 437).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0989.
    WEAVER v. THE STATE.
    (406 SE2d 574)
   McMurray, Presiding Judge.

Defendant Weaver appeals his conviction of two counts of aggravated assault. Held:

1. The record on appeal discloses no objection below preserving the issues now raised by defendant’s first, fourth and eighth enumerations of error. We may not decide issues raised for the first time on appeal. Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757); Floyd v. State, 188 Ga. App. 24 (1) (372 SE2d 287).

2. Next, defendant asserts error in the denial of his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69). The trial court accepted the prosecutor’s explanation that both of the prospective jurors in question were stricken because they knew defendant. The trial court’s conclusion that the prosecutor had provided a racially neutral explanation for challenging the prospective black jurors cannot be found to be clearly erroneous. We find no error in the denial of defendant’s Batson motion. Burgess v. State, 194 Ga. App. 179 (390 SE2d 92); Kincey v. State, 191 Ga. App. 300 (1) (381 SE2d 439).

3. In his third enumeration of error, defendant contends that the evidence was insufficient to authorize the verdict. However, the State’s evidence shows that defendant repeatedly fired a gun at an automobile occupied by the two victims. The evidence adduced at trial was sufficient to authorize the conviction of defendant under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Williams v. State, 198 Ga. App. 214 (1) (400 SE2d 638).

Decided June 19, 1991.

Hurl R. Taylor, Jr., for appellant.

Robert F. Mumford, District Attorney, William F. Todd, Jr., Assistant District Attorney, for appellee.

4. Defendant’s sixth and seventh enumerations of error relate to his motion for supersedeas bond. Considering these enumerations in reverse order, we note that there was no failure by the trial court to enter findings of fact on the motion. The trial court found that defendant fired a gun at passengers in a moving car and threatened a witness with death if she told anyone. Based on these findings, the trial court concluded that defendant posed a substantial risk of danger to the community and denied his motion for supersedeas bond. The trial court’s findings being supported by the evidence we find no error in the denial of defendant’s motion for supersedeas bond. Birge v. State, 238 Ga. 88 (230 SE2d 895).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1070.
    WHITFIELD v. THE STATE.
    (406 SE2d 575)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of armed robbery. Following a jury trial, defendant was convicted of robbery. Defendant’s motion for a new trial was denied and he appeals. Held:

In his sole enumeration of error, defendánt contends the trial court should have granted a motion for mistrial when the prosecution introduced evidence that money taken in the robbery was used to purchase illegal drugs.

One of defendant’s accomplices was asked by the prosecution what he did with his share of the robbery proceeds. The accomplice replied that he used his share of the proceeds to purchase alcohol and cocaine. The accomplice was then asked if defendant and another accomplice also used the proceeds to purchase cocaine. He replied affirmatively. Thereupon, defense counsel interposed an objection and asked that the accomplice’s testimony be stricken because defendant’s character was placed in issue. At that point, the trial court cautioned the jury: “[T]he defendant is on trial in this case only for the charges that are alleged. I am going to allow the testimony . . . because I think it is part of the entire transaction. It is part of everything that happened; it happened in one continuous incident. And it may go to explain the circumstances surrounding the incident for which we are having the trial today. I will tell you and caution you that you should take that information that this witness has said only as it may tend to provide information about the incident in question, which is the armed robbery charge, and you should not use it for any other reason. He is not on trial for any possession of any kind of illegal drugs or anything like that. So the information is only being used for that purpose, to illustrate and to help explain the testimony in the case. I would ask that you receive the testimony only for that purpose and not for any other purpose. And it is not going into anything like character. It is not putting his character in issue in this case, and you should not accept it as such.”

Decided June 19, 1991.

John H. Tarpley, for appellant.

Robert E. Wilson, District Attorney, Barbara B. Conroy, Thomas S. Clegg, Assistant District Attorneys, for appellee.

At the conclusion of the trial court’s cautionary remarks, defense counsel moved for a mistrial. The motion was overruled.

The accomplice’s testimony was relevant to show motive; it was not inadmissible simply because it incidentally placed defendant’s character in issue. See McGinnis v. State, 258 Ga. 673, 674 (2) (372 SE2d 804). In view of the trial court’s cautionary instruction, it cannot be said the trial court abused its discretion in refusing to grant defendant’s mistrial motion. See Stanley v. State, 250 Ga. 3, 4 (2) (245 SE2d 315).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.