text:
    A96A2075.
    BROWN v. THE STATE.
    (479 SE2d 454)
   Smith, Judge.

Tori Brown was charged with possessing a firearm as a first offender probationer, violation of the Georgia Controlled Substances Act (possession of less than an ounce of marijuana), misdemeanor obstruction of a law enforcement officer, and giving a false name to a law enforcement officer. During a bench trial, the first two charges against Brown were dismissed upon defense motion. Brown was found guilty of obstructing an officer and giving a false name to an officer. His motion for new trial was denied, and he appeals, raising the general grounds.

The record reveals that in the early morning hours of July 7, 1995, Officer Daniel Cunningham of the DeKalb County Police Department was training another officer in field operations when he observed a pickup truck without a tag. He stopped the truck, which held two passengers as well as the driver. Cunningham approached the driver, who gave his name as Marcus Bynum and handed Cunningham a citation issued in that name. Officer Cunningham did not believe the driver matched the description on the citation, and asked the driver for another way to identify him. The driver suggested they call his brother, who owned the truck, and provided the officer with his brother’s telephone number.

A police radio operator called the driver’s brother at the number provided. The brother informed the operator that the driver was his brother, Tori Brown, and gave a physical description that matched that of the driver. When this information was checked on the police computer, Cunningham learned that Brown’s license had been suspended and that he was wanted.

At that point, Cunningham again approached the truck and asked Brown to exit. As the other police officer attempted to pat him down, Brown fled on foot towards a wooded area. Cunningham testified that the officers did not attempt to follow the driver because they knew where he lived and intended to obtain warrants later. After Brown left, the two passengers confirmed that the driver was Brown. A semiautomatic pistol and three small bags of marijuana were found on the floorboard of the cab.

At trial, Cunningham identified Brown as the driver.

In support of his enumeration Brown raises three arguments.

1. Brown first contends that insufficient evidence was presented that he was the driver. Neither the passengers nor Brown’s brother testified at trial. He argues that Cunningham’s in-court testimony was insufficient, given that Brown was obviously the person on trial and Cunningham’s encounter with the driver was brief and took place in the dark approximately eight months before trial.

This enumeration is without merit. Although neither the passengers nor Brown’s brother testified, Cunningham testified that all three identified Brown as the driver. This was fact testimony and was not subject to a hearsay objection. Harper v. State, 213 Ga. App. 444, 449 (6) (445 SE2d 303) (1994). Even assuming, therefore, that Cunningham’s own in-court identification of Brown as the driver was insufficient in itself, Cunningham’s testimony that three other persons so identified Brown was sufficient to authorize the trial court as trier of fact to find that Brown was the driver beyond a reasonable doubt.

2. Brown also contends the State failed to prove an essential element of the obstruction charge. OCGA § 16-10-24 (a) provides that one who “knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Brown argues that although he fled, he did not “obstruct or hinder” the officers in their duties because Cunningham testified that the officers intended to obtain warrants later and his arrest was, in fact, effected subsequently.

Brown’s contention is incorrect. This Court has held that under some conditions flight while being detained by a law enforcement officer is evidence of obstruction. Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990) (defendant’s flight after being told by officer to remove hand from pocket and step forward sufficient to support conviction for obstructing officer). As pointed out in Tankersley v. State, 155 Ga. App. 917 (273 SE2d 862) (1980), delaying an officer’s lawful performance of his duties is included in the definition of hindering that performance. Id. at 919-920 (4) (A). The trial court as trier of fact was authorized to conclude from the evidence presented that at the time Brown was being patted down, he knew that the officers were attempting to perform their official duties and that he deliberately took action that delayed, hampered, and impeded the performance of those duties. See Sanders v. State, 204 Ga. App. 545, 547 (1) (b) (419 SE2d 759) (1992). The evidence was sufficient to authorize Brown’s conviction of obstructing an officer under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided December 16, 1996.

Ellen M. Wiener, for appellant.

J. Tom Morgan, District Attorney, Desiree S. Peagler, Robert W. Houman, Assistant District Attorneys, for appellee.

3. OCGA § 16-10-25 provides that “[a] person who gives a false name, address, or date of birth to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to his identity or birthdate is guilty of a misdemeanor.” Brown contends the evidence was also insufficient to support his conviction on this charge. He argues that the evidence did not show that he told Cunningham his name was Marcus Bynum but only that he handed the officer the citation. This contention is belied by the record. Cunningham was asked on direct examination whether the defendant “initially . . . gave you a false name of Marcus Bynum,” and he responded, “Marcus Bynum, that is correct.”

Moreover, even had Cunningham not so testified the evidence would have been sufficient in this regard. A reasonable inference from testimony that when stopped, the driver showed the police officer a previously issued citation is that it was shown in response to a request for identification. The evidence presented at trial was sufficient to authorize the trial court as trier of fact to find Brown guilty of giving a false name to a law enforcement officer under the standard set forth in Jackson v. Virginia, 443 U. S. 307.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A96A0992.
    ENGLAND v. BEERS CONSTRUCTION COMPANY. SOUTHERN REGIONAL MEDICAL CENTER, INC. v. ENGLAND.
    A96A0993.
    (479 SE2d 420)
   Johnson, Judge.

Danny Dwight England was severely injured while working on a construction site. Through his guardian, he filed a single lawsuit against both the prime contractor, Beers Construction Company, and the owner of the premises, Southern Regional Medical Center. In Case No. A96A0992, England appeals from the grant of summary judgment to Beers. In Case No. A96A0993, Southern Regional appeals from the denial of its summary judgment motion. We affirm both rulings.

In 1974, Southern Regional hired Beers to work on Southern Regional’s property. As part of that work, Beers installed a metal grate over an air shaft approximately 20 feet deep.

In 1992, Southern Regional again hired Beers, this time to work on its emergency room. This construction project involved work in an area adjacent to the air shaft. Beers subcontracted some of the work to Breman Steel, Inc., who in turn subcontracted with Park Place Steel, Inc., England’s employer. While performing his work on the project on the occasion of his injury, England was standing on a ladder placed on top of the grate covering the air shaft when the grate gave way, causing him to fall. England landed on his head at the bottom of the air shaft. He suffered severe brain injury and has existed in a persistent vegetative state since his fall. His family received workers’ compensation benefits from Park Place or its insurer. In this action, England alleges that Beers negligently installed the grate in 1974; that Southern Regional negligently accepted the grate from Beers in 1974; and that Southern Regional negligently maintained the grate from 1974 to 1992.

Case No. A96A0992

1. In the trial court, Beers successfully argued that it was entitled to tort immunity as England’s “statutory employer” under the Workers’ Compensation Act, OCGA § 34-9-1 et seq. This argument was based on two sections of the Act: OCGA § 34-9-11 (a), stating that the Act provides the exclusive remedy for injured employees; and OCGA § 34-9-8 (a), which states: “A principal, intermediate, or subcontractor shall be liable for compensation to any employee injured while in the employ of any of his subcontractors engaged upon the subject matter of the contract to the same extent as the immediate employer.” In Yoho v. Ringier of America, 263 Ga. 338, 341 (434 SE2d 57) (1993), our Supreme Court held: “Only an entity who is secondarily liable for workers’ compensation benefits under OCGA § 34-9-8 (a) is consequently entitled to tort immunity under OCGA § 34-9-11.”

England contends that, for several reasons, Beers was not secondarily liable for his workers’ compensation benefits, and that the trial court therefore erred in granting Beers “statutory employer” tort immunity.

(a) England first maintains that the “his subcontractors” language of OCGA § 34-9-8 (a) makes Beers potentially liable for workers’ compensation payments to employees of only those subcontractors with whom Beers was in contractual privity. Because Beers was only in contractual privity with Breman Steel, not his employer, Park Place, England maintains that Park Place was not Beers’ subcontractor under this statute.

In Landrum v. Cobb County Concrete Products, 191 Ga. App. 805 (383 SE2d 144) (1989), a contractor two levels “up the ladder,” not in contractual privity with the deceased worker’s immediate employer, was held to be the worker’s statutory employer. “[T]he statute [OCGA § 34-9-8] embraces all who are in the venture with the hope of making a profit out of the doing of the work as distinguished from one out of the use or disposition of the completed project.” (Citation and punctuation omitted, emphasis in original.) Yoho, supra at 342. Because Beers was “in the venture with the hope of making a profit out of the doing of the work,” § 34-9-8 imposed upon Beers secondary workers’ compensation liability for employees of its subcontractors and sub-subcontractors. Beers therefore received tort immunity as the “statutory employer” of all such employees, including England.

(b) England next claims that, even if Beers received immunity under the Act, Beers divested itself of this immunity by contracting away to Breman any potential workers’ compensation liability to Park Place employees. It is true that Beers’ contract with Breman required Breman to provide workers’ compensation insurance. This contract between private parties could not, however, negate Beers’ statutory obligations or rights as to third parties. “The fact that the statutory employer has a right to indemnification [of workers’ compensation liability], statutory or contractual, does not strip him of his tort immunity.” Wright Assoc. v. Rieder, 247 Ga. 496, 500 (1) (277 SE2d 41) (1981).

(c) England also claims that Beers’ contract with Southern Regional assigned all Beers’ subcontracting rights and obligations to Southern Regional; and that Beers therefore contracted away to Southern Regional both any potential workers’ compensation obligations to any subcontractors’ employees, and the accompanying tort immunity. Just as Beers could not contract away to Breman its statutory rights and obligations, however, it could not contract them away to Southern Regional. Rieder, supra at 499-500.

(d) Finally, England argues that even if Beers is entitled to “statutory employer” immunity for any torts it might have committed during England’s 1992 employment, such immunity does not extend to Beers’ alleged negligence in the 1974 grate installation, an entirely separate project upon which England did not work.

The Workers’ Compensation Act, however, focuses not on the defendant’s conduct in causing the injury, but on the plaintiff’s circumstances in sustaining it. The tort immunity statute, OCGA § 34-9-11 (a), provides that recovery of workers’ compensation benefits “shall exclude all other rights and remedies of such employee, his personal representative, parents, dependents, or next of kin, at common law or otherwise, on account of such injury, loss of service, or death. . . .” While “such injury” has no grammatical antecedent, the definitions section of the Act provides that “injury” shall mean “injury . . . arising out of and in the course of the employment. . . .” OCGA § 34-9-1 (4). In construing this language, we are bound by OCGA § 34-9-23: “This chapter shall be liberally construed only for the purpose of bringing employers and employees within the provisions of this chapter and to provide protection for both. This chapter is intended to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees who are subject to this chapter concerning accidents and injuries arising out of and in the course of employment as defined by this chapter. The provisions of this chapter shall be construed and applied impartially to both employers and employees.”

Because England was performing his employer’s business and not his own when he was injured, his injury arose out of and in the course of his employment, which means that it falls within the scope of the Workers’ Compensation Act for purposes of benefits eligibility as well as tort immunity. See Hadsock v. J. H. Harvey Co., 212 Ga. App. 782, 784 (442 SE2d 892) (1994). The grant of summary judgment to Beers was therefore correct.

Case No. A96A0993

For the reasons set out below, we conclude that the trial court also correctly denied Southern Regional’s motion for summary judgment.

2. Southern Regional contends that, because it had surrendered control of the premises to Beers, it was relieved of a property owner’s usual duty to use ordinary care to keep the premises safe for invitees. See OCGA § 51-3-1. This proposition is based in OCGA §§ 51-2-4 and 51-2-5 (5), which provide that an employer — for instance, a property owner hiring a builder — is not responsible for torts of its independent contractor unless the employer retains control over the contractor’s work. In support of its argument, Southern Regional cites several cases applying this rule. See, e.g., Englehart v. OKI America, 209 Ga. App. 151, 151-153 (1) (433 SE2d 331) (1993).

Southern Regional’s reliance on this “control” line of cases is misplaced, because England is not suing Southern Regional for an alleged tort of its contractor, Beers. Rather, England sues for Southern Regional’s own alleged negligence in accepting and maintaining the grate. OCGA §§ 51-2-4 and 51-2-5 limit an employer’s vicarious liability only, and do not apply to a claim arising from the employer’s own conduct. “[T]he employer of an independent contractor owes the contractor’s employees the ubiquitous duty of not imperiling their lives by his own affirmative acts of negligence.” (Citations omitted.) United States v. Aretz, 248 Ga. 19, 24 (B) (1) (280 SE2d 345) (1981). Any control Beers may have exercised over the premises in 1992 therefore did not entitle Southern Regional to summary judgment on England’s claim that Southern Regional was itself negligent.

Decided December 2, 1996

Reconsideration denied December 17, 1996

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, Charles B. Tanksley, for England.

Alston & Bird, Gerald L. Mize, Jr., Biederman & Milling, R. Clay Milling II, for Beers Construction Company and Southern Regional Medical Center.

3. Southern Regional maintains that even if it owed a duty to England, any claim for breach of that duty is barred by the statute of repose, OCGA § 9-3-51. This statute bars most claims for deficient construction of improvements to real property brought more than eight years after substantial completion of the construction, against one “performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement.” However, even if Southern Regional could show that it “performed or furnished” one of these services in the 1974 construction — which it has not shown — the statute of repose would still have no application to England’s claim that Southern Regional negligently maintained the grate from 1974 to 1992. The statute of repose therefore does not require summary judgment for Southern Regional.

4. An owner of land is required to use ordinary care in inspecting the premises for defects that might be dangerous to invitees, see Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984), and is presumed to know of a defect in the premises if it was discoverable through a reasonable inspection. See Oliver v. Complements, Ltd., 190 Ga. App. 30, 31 (378 SE2d 154) (1989); see generally OCGA § 51-3-1. Because this case presents jury issues as to whether the defect in the grate could have been discovered in a reasonable inspection, and as to whether Southern Regional performed a reasonable inspection, the trial court was correct to deny summary judgment to Southern Regional. See Lawless v. Sasnett, 200 Ga. App. 398, 399 (408 SE2d 432) (1991).

Judgments affirmed.

Ruffin, J., concurs. McMurray, P. J., concurs in judgment only in Case No. A96A0992 and concurs fully in Case No. A96A0993.

       There are other situations, not relevant to the case before us, in which an employer may be liable for his contractor’s torts. See OCGA § 51-2-5 (1)-(4), (6). See also Peachtree-Cain Co. v. McBee, 254 Ga. 91, 91-94 (1), (2) (327 SE2d 188) (1985).


author: Ruffin, Judge.

text:
    A96A1083.
    HINTON v. STATE OF GEORGIA.
    (479 SE2d 424)
   Ruffin, Judge.

Marvin Hinton appeals from the trial court’s order forfeiting his pickup truck to the State. The State initially seized the truck after police found a bag containing 87 pieces of crack cocaine on the ground under the driver’s side of the pickup where Hinton was sitting. Hinton contends there was insufficient evidence to support the court’s judgment. He also asserts that the court erred in denying his motion to dismiss, which was based on an alleged deficiency in the State’s complaint and the failure of the court to hold a hearing within 60 days of service. For reasons which follow, we affirm.

1. The evidence was sufficient to support the judgment. On appeal, we view the evidence in a light most favorable to the court’s judgment. See Gearin v. State of Ga., 218 Ga. App. 390 (1) (461 SE2d 562) (1995). Furthermore, because the court in this case sat as the factfinder, we will not set aside its factual findings unless they are clearly erroneous. State of Ga. v. Banks, 215 Ga. App. 828 (2) (452 SE2d 533) (1994). A trial court’s factual findings are not clearly erroneous if there is any evidence to support them. Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996).

In this case, the trial court found that the State met its burden of proving a prima facie case for forfeiture. This burden required the State to establish, by a preponderance of the evidence, that the truck fell into one of six categories of property declared to be contraband under OCGA § 16-13-49 (d). Banks, supra at 832; Pitts v. State of Ga., 207 Ga. App. 606 (2) (428 SE2d 650) (1993). OCGA § 16-13-49 (d) (2) declares the pickup truck contraband if it was “directly or indirectly, used or intended for use in any manner to facilitate a violation of [Article 2, which regulates controlled substances]. . . .” The court found, among other things, that Hinton’s truck was used to facilitate a violation of OCGA § 16-13-30, which proscribes the possession and distribution of controlled substances.

The evidence showed that police were investigating drug selling activity at a DeKalb County residence. When police officers arrived at the residence to execute a search warrant, they found Hinton’s truck parked in the driveway. Hinton was sitting in the driver’s seat, the driver’s side door was open, and another man was standing outside the truck on the driver’s side. When several of the officers identified themselves as police, the man standing outside ran toward the front of the truck then lay on the ground five to six feet from the vehicle. At the same time, Hinton “appeared to be shuffling something” under the driver’s seat. An officer testified that after he secured the man who was standing outside the truck, he ordered Hinton to exit the truck and lie on the ground on the driver’s side of the truck. The officer later found a black pouch on the ground directly under the driver’s side of the pickup, less than one foot from the edge of the truck. The pouch contained 16 grams of cocaine packaged in 87 ziplocked baggies. Two officers testified that they had an unobstructed view of the man standing outside the truck and did not see the man bend down, drop anything, or throw anything under the truck.

Finally, the State introduced evidence that in 1991 Hinton pled guilty to a DeKalb County indictment charging him with possession of cocaine with intent to distribute.

Although the arresting officer in this case stated he did not actually see Hinton throw anything under the truck, the evidence authorized an inference that the black pouch containing the cocaine came from the truck. See Mitchell v. State, 222 Ga. App. 453 (2) (474 SE2d 306) (1996). From the officer’s testimony that Hinton “appeared to be shuffling something” under the driver’s seat, the trial court could have inferred that Hinton was putting the black pouch under the truck. Under these circumstances, we conclude that, although slight, there was some evidence to support the trial court’s finding that the cocaine came from Hinton’s truck and that the truck was contraband. Accordingly, the trial court’s finding was not clearly erroneous. See Shook, supra.

2. Hinton asserts that the trial court erred in denying his motion to dismiss, which was based on an alleged deficiency in the State’s complaint. Specifically, Hinton asserts that the complaint failed to set forth any facts showing an alleged violation, which he contends is required by OCGA § 16-13-49 (o) (1). That section, however, does not require the State to plead such facts.

OCGA § 16-13-49 (o) (1) provides in pertinent part that the State’s forfeiture complaint “shall . . . allege the essential elements of the violation which is claimed to exist. . . .” (Emphasis supplied.) In interpreting this requirement, we must “look diligently for the intention of the General Assembly. . . .” OCGA § 1-3-1 (a). The omission of the express requirement for the State to plead essential “facts” “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned.” (Citations and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995). If the General Assembly intended to require the State to plead essential facts, it simply could have stated, as it did in OCGA § 16-13-49 (o) (3) (F) regarding answers, that the State is required to set forth “[a]ll essential facts supporting each assertion[.]” In the absence of such an express requirement, we conclude that OCGA § 16-13-49 (o) (1) does not require the State to plead essential facts and, therefore, find no error in the trial court’s ruling.

3. Hinton asserts the trial court erred in denying his motion to dismiss because the court failed to hold the evidentiary hearing within 60 days of the date he was served with the State’s complaint. We disagree.

OCGA § 16-13-49 (o) (5) provides that “[i]f an answer is filed, a hearing must be held within 60 days after service of the complaint unless continued for good cause. . . .” The record shows that Hinton was served with the complaint on September 12, 1995. Although the record does not contain any evidence of when the State requested a hearing, Hinton acknowledges that the State attempted to schedule the hearing 43 days after service. On October 25, 1995, the court signed an order which found good cause for continuance “[d]ue to the Court’s crowded docket. . . Accordingly, the court scheduled the hearing for December 14, 1995. We find that this is good cause for continuing the hearing.

Furthermore, Hinton’s reliance on Jackson v. State of Ga., 212 Ga. App. 340 (441 SE2d 811) (1994), is misplaced. In Jackson, the State did not schedule a hearing and filed a motion for continuance on the sixtieth day following service. On that same day, the trial court held a hearing on the State’s motion for continuance. The trial court granted the continuance because the claimant would not agree to have the forfeiture hearing that day. We held that the court erred in granting the continuance because the real basis for granting it “was the State’s failure to invoke a hearing within 60 days. Because of the State’s inaction, the claimants were given a choice of agreeing to a continuance or participating in a hearing of which they had no notice.” Id. at 341.

Unlike Jackson, the continuance in this case beyond the 60-day period was not due to the State’s inaction. As stated above, Hinton acknowledges that the State attempted to schedule the hearing 43 days after service. The record further shows that any further delay was caused by the court’s crowded calendar. Finally, although Hinton also contends that the continuance in this case was actually granted in response to a motion by the State, he cites no evidence supporting this contention.

Accordingly, the trial court did not err in granting the continuance.

Judgment affirmed.

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

Decided December 2, 1996

Reconsideration denied December 17, 1996

Stephen T. Maples, Frances C. Kuo, for appellant.

J. Tom Morgan, District Attorney, Carol M. Kayser, Assistant District Attorney, for appellee.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A1678.
    WOODS v. THE STATE.
    (479 SE2d 414)
   Blackburn, Judge.

Albert J. Woods appeals his conviction for possession of cocaine with intent to distribute, asserting that the trial court erred in deciding numerous issues including permitting a Georgia Bureau of Investigation (GBI) employee to remain on the jury panel, denying Woods’ Batson motion, admitting similar transaction evidence, instructing the jury on various legal principles, recharging the jury in response to questions raised during deliberations, and in sentencing Woods to life in prison.

Viewing the evidence in the light most favorable to the verdict, in the early morning hours of October 15, 1994, Sgt. Michael Atkinson and Sgt. Tom Fleischman were driving an unmarked car in an area of Acworth known for its drug activity when they first observed a white sport utility vehicle. Woods was a passenger in the vehicle which was driven by his co-defendant, Herbert Lee Perkinson. Twice the officers circled the block. Each time they passed Perkinson’s vehicle, they were signalled by its flashing lights. Sgt. Fleischman, who was in uniform, ducked down while Sgt. Atkinson drove up to the vehicle and spoke with Perkinson. When Perkinson asked the officer “how much do you want,” the officer replied “two.” Perkinson then stated that “his boy” would be back in a minute and instructed Sgt. Atkinson to drive around the block. When they returned, the two officers spotted a blue car parked by Perkinson’s vehicle and another person leaning into the passenger side of that vehicle. As the officers approached, the other blue car drove away. Both officers exited their automobile and identified themselves as policemen. Woods was observed reaching towards the car’s floorboard or console area and then throwing an object outside the car window. The object, a plastic baggie, contained approximately eight rocks of crack cocaine. At trial, Woods claimed that he was merely present when these events took place, that he did not actively participate in the transaction, and that he did not throw the cocaine out of the car window.

1. Woods contends that the trial court erred in failing to excuse for cause a juror who was employed by the GBI. This juror worked in the Georgia Crime Information Center, teaching others how to use the information system and access criminal histories. Assuming without deciding that Woods correctly preserved this enumeration for appellate review, there is no error.

Under Hutcheson v. State, 246 Ga. 13, 14 (1) (268 SE2d 643) (1980), prospective jurors who are employed as full-time police officers must be excused if challenged for cause. However, the excusal rule of Hutcheson has not been automatically applied to all individuals connected in some manner with law enforcement. See Denison v. State, 258 Ga. 690, 691 (4) (373 SE2d 503) (1988) (part-time police officers not automatically excluded); Wilson v. State, 250 Ga. 630, 635 (4) (300 SE2d 640) (1983) (no automatic exclusion for reserve police officers); Thompson v. State, 212 Ga. App. 175, 176 (1) (442 SE2d 771) (1994) (full-time corrections officers without arrest powers not automatically excluded); Smith v. State, 201 Ga. App. 82 (1) (410 SE2d 202) (1991) (automatic exclusion inapplicable to retired police officers); and Dixon v. State, 180 Ga. App. 222, 225 (5) (348 SE2d 742) (1986) (security guards not automatically excluded). See also Wellons v. State, 266 Ga. 77, 84 (463 SE2d 868) (1995) (State Crime Lab forensic expert who frequently testified on behalf of the State in criminal cases and who personally knew many witnesses not automatically excluded).

Stocks v. State, 182 Ga. App. 162 (355 SE2d 103) (1987) is similar to this case. In Stocks, the prospective juror was employed as a driver’s license examiner with the Georgia State Patrol. Id. In this capacity, he had no arresting authority and no police powers. Noting that “his sole function is administrative” and that he stated he could be fair and impartial towards the defendant, this Court affirmed the trial court’s decision to overrule the challenge for cause. Id. Citing Kent v. State, 179 Ga. App. 131 (345 SE2d 669) (1986), it was held that “such limited police powers do not necessitate the imputation of possible bias as in the instance of full-time police officers.” (Punctuation omitted.) Stocks, supra at 163.

In this case, the prospective juror was employed by the GBI as an instructor. As in Stocks, this prospective juror’s job' is administrative, not investigatory or prosecutorial. Also as in Stocks, this juror stated that he was not a sworn law enforcement officer, and that he was impartial about the case. The automatic exclusion rule of Hutcheson, supra, is therefore inapplicable to this case, and the trial court did not err in refusing to excuse this juror for cause.

2. Woods contends that the trial court erred in denying his Bat-son motion, which asserted that the State had exercised one peremptory challenge in a racially discriminatory manner. The prosecutor explained that the strike was based on (1) the juror’s young age which put him in a class with many who experiment with drug use, and (2) the juror’s status as a drafting student, a field where, in the prosecutor’s experience, students generally tend to be more tolerant of drug use. Woods claimed this explanation was pretextual. See Chunn v. State, 210 Ga. App. 209, 211 (435 SE2d 728) (1993) (explanations for a peremptory challenge must be adequately explained and “must be related to the case to be tried”). After the State offered its explanation, the trial court gave Woods the opportunity to view the jury panel and determine if the State accepted anyone who was a college student or in the same age bracket as the juror that was struck. After viewing the jury, Woods made no objection.

The trial court accepted the explanation and found no discriminatory intent on behalf of the State. In reviewing the trial court’s determination on a Batson motion, “[t]he trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous.” (Punctuation omitted.) Jackson v. State, 220 Ga. App. 98, 99 (469 SE2d 264) (1996).

In this case, it is not necessary to address whether Woods established a prima facie case of discrimination; we need only address the sufficiency of the State’s explanation for exercising the peremptory strike. “[T]he proponent of the strike is not required to enunciate an explanation that is persuasive, or even plausible. Rather, a neutral explanation means an explanation based on something other than the race of the juror. Unless a discriminatory intent is inherent in the proponent’s explanation, the reason offered will be deemed race neutral. Furthermore, although the proponent of the strike must provide a clear and reasonably specific explanation of his legitimate reasons for exercising the challenges, what is meant by a legitimate reason is not a reason that makes sense, but a reason that does not deny equal protection.” (Citations and punctuation omitted.) Cooper v. State, 220 Ga. App. 531, 532 (469 SE2d 790) (1996).

In this case, the State’s concerns about the juror’s age and field of study were related to the case to be tried, and such characteristics are not “peculiar to any race.” (Punctuation omitted.) Trice v. State, 266 Ga. 102, 103 (464 SE2d 205) (1995). Moreover, Woods “failed to establish that the reasons given by the State were merely pretexts for purposeful racial discrimination.” Henry v. State, 265 Ga. 732, 734 (462 SE2d 737) (1995). Therefore, the trial court’s decision to accept the State’s explanation as being race neutral is not clearly erroneous, and this enumeration is without merit.

3. Woods asserts that the trial court erred in permitting the State to introduce evidence of his prior guilty plea for the sale of crack cocaine, as there was insufficient similarity between the prior transaction and the conduct alleged in his indictment. In both cases, the crimes occurred at night in a residential area known for drug activity; Woods or his companion initiated a drug sale with a passing motorist; and Woods had multiple dosage units of crack cocaine in his possession. A similar transaction need not be identical in order to be admissible. Dobbs v. State, 204 Ga. App. 83, 85 (418 SE2d 443) (1992). “The ultimate issue in determining admissibility of similar transaction evidence is not mere similarity but relevance to the issues of the case on trial.” Obiozor v. State, 213 Ga. App. 523, 526 (445 SE2d 553) (1994). In the present matter, Woods acknowledged he was aware that a drug transaction was being consummated in his presence but denied that he actively participated in the sale. The trial court found that the similar transaction evidence indicated a common design and course of conduct from which the jury could infer Woods’ intent to distribute in the present matter. The trial court did not err in admitting this evidence. See Crutchfield v. State, 218 Ga. App. 360, 361 (461 SE2d 555) (1995) (prior conviction for sale of cocaine permitted as evidence of defendant’s intent to distribute cocaine).

4. Woods contends that the evidence outlined above was insufficient to support his conviction. Sufficient evidence exists to support the jury’s determination that Woods was in possession of cocaine because an officer testified that it was Woods who threw the cocaine outside the car window. Sufficient evidence also supports the jury’s determination that Woods had the intent to distribute cocaine. “While mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Punctuation omitted.) Looney v. State, 221 Ga. App. 224, 225 (471 SE2d 243) (1996). Also, as indicated above, the similar transaction evidence further supports a finding that Woods had the intent to distribute. See Crutchfield, supra. Accordingly, we find that a rational trier of fact could have found beyond a reasonable doubt that Woods was guilty of the crime for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Woods argues that the trial court improperly charged the jury in a manner that eradicated his defense of “mere presence.” Pursuant to a pattern charge, the jury was instructed that if they found “the defendant had no knowledge that a crime was being committed and that the defendant did not knowingly and intentionally commit, participate or help in the commission of the alleged offense, then it would be your duty to acquit the defendant.” Woods asserts that this charge is contrary to the mere presence defense because, in order to acquit, it requires the jury to find not only that a defendant did not participate in the alleged crime but also that he had no knowledge of the same.

Reviewing the charge as a whole, the jury received a specific instruction on the defense of mere presence. It was also charged on the concepts of grave suspicion, mere association, and parties to a crime, as well as the State’s burden of proving that Woods knowingly participated in the crime. Viewing the charge as a whole, the jury was properly instructed on Woods’ mere presence defense. See Marshall v. State, 197 Ga. App. 762, 763 (399 SE2d 555) (1990) (when reviewing for error, an appellate court should not examine isolated portions of a charge but consider the charge in its entirety).

6. Woods contends that the trial court erred in giving the pattern charge on similar transaction evidence. However, because this specific charge was requested by Woods, he cannot now complain that it was given in error. Simmons v. State, 266 Ga. 223, 229 (466 SE2d 205) (1996).

7. Woods asserts that the trial court erred in charging on the four-year statute of limitation. While Woods admits that the charge correctly states the law, he contends that the charge did not adequately distinguish between the case on trial and the prior similar transaction such that the jury could convict him based upon evidence of his conduct. This enumeration is without merit. The jury was clearly informed that it could only convict Woods for the offense alleged in his indictment. Moreover, the jury was instructed as to the limited purpose for which the similar transaction evidence was admitted. Therefore, we find no evidence that the jury may have been misled by the charge as Woods contends. See Dooley v. State, 221 Ga. App. 245, 246 (470 SE2d 803) (1996) (“[a]s the charges given were correct statements of the law, and we do not believe that the charge as a whole would mislead a jury of average intelligence, we find no error”).

8. Woods asserts that the trial court improperly charged the jury that “the phrase reasonable doubt applies to the degree of proof necessary to produce a mental and moral conclusion.” Particularly, Woods argues that similar language describing reasonable doubt in terms of “moral and reasonable certainty” has been previously criticized. We find no merit in this argument. Assuming without deciding that the two phrases are so similar as to be treated the same, the Supreme Court recently held that use of the phrase “moral and reasonable certainty” does not constitute reversible error when it appears in the context of a charge which “repeatedly and accurately” conveyed to the jury the concept of reasonable doubt. Baldwin v. State, 264 Ga. 664, 665 (449 SE2d 853) (1994). In the present matter, the jury received, almost verbatim, the pattern charge on reasonable doubt, a lengthy charge which we find “repeatedly and accurately” conveyed to the jury the concept of reasonable doubt. Therefore, this enumeration is without merit. See also Dooley, supra.

9. Woods contends that the trial court did not properly respond to the jury’s questions. The record reveals that during its deliberation, the jury asked the court to explain the difference between mere knowledge of and active participation in a crime, and whether helping someone else get rid of evidence demonstrated active participation in a crime. After the foreperson told the court that a thorough recharge would be helpful, the trial court recharged the jury, giving substantially every instruction contained within the original charge. After the recharge, Woods responded to the court’s inquiry that he had no objection to the recharge. Woods now contends that this recharge was error, asserting that the trial court should have limited its recharge to specific principles including party to a crime, mere presence and intent to distribute. By failing to object or reserve his right to later make exceptions in response to the trial court’s inquiry regarding the recharge, Woods waived his right to seek appellate review of the recharge. Lewis v. State, 215 Ga. App. 161, 164 (450 SE2d 448) (1994).

Even if the error had been properly preserved, it is without merit. “It is well established that when the jury, after having received complete instructions on the law applicable to the case, returns to the courtroom and requests additional instruction on a particular point, the trial court may, in its discretion, either recharge the jury in full or confine the instruction to the particular point suggested by the jury’s inquiry.” (Punctuation omitted.) Williams v. State, 210 Ga. App. 357, 358 (436 SE2d 228) (1993). We find no abuse of discretion in the trial court’s decision to recharge the jury with substantially the entire original charge.

10. Woods was sentenced to life in prison pursuant to former OCGA § 16-13-30 (d). He asserts that this was error as he was not adequately notified of the State’s intent to seek a life sentence. Woods’ reliance on Stephens v. State, 219 Ga. App. 881 (467 SE2d 201) (1996) is misplaced. Unlike the defendant in Stephens, the record reveals the State provided Woods with pretrial notice that it would use evidence of certain prior convictions in aggravation of Woods’ sentence. See OCGA § 17-10-2 (a). Woods admits receiving a certified copy of at least one of those convictions prior to trial. Also, unlike the defendant in Stephens, Woods was afforded the opportunity to investigate and rebut the validity of these prior convictions. Accordingly, the trial court did not err in imposing a life sentence.

Judgment affirmed.

Senior Appellate Judge Harold R. Banke concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I concur in Division 1 of the majority opinion but point out that this case, like some of those cited as well as others which the appellate courts have decided, falls in the category of those which must be decided on a case-by-case basis. Full-time police officers, on the other hand, are automatically disqualified if challenged for principal cause. Hutcheson v. State, 246 Ga. 13, 14 (1) (268 SE2d 643) (1980), so held, stating that the reason is that “[i]t is inherent in the nature of police duties and the closeness with which such officers are identified with criminal procedures that questions regarding possible bias, fairness, prejudice or impermissible influence upon jury deliberations inevitably arise” despite subjective, sincere declarations of impartiality by the prospective juror. Impartiality is the key qualification for factfinders, and it must be assured. Like the two city police officers in Hutcheson, the state patrolman in Harris v. State, 255 Ga. 464 (2) (339 SE2d 712) (1986), was also subject to automatic excusal when challenged for principal cause.

Moving from this general category, the Supreme Court more recently considered a secretary in the appellate section of the district attorney’s office, in Beam v. State, 260 Ga. 784, 785 (2) (400 SE2d 327) (1991). The majority held that she was disqualified because of her employment, for principal cause.

In comparing the employee in this case and the secretary, both worked full-time for governmental criminal justice agencies which investigate or prosecute crime, neither appeared as witnesses in criminal cases, and both declared an unbiased attitude towards the case and the jury’s task. The difference is that the secretary was an employee of the same district attorney who prosecuted Beam.

Although a GBI forensic chemist who worked in the state crime laboratory testified in this case, the connection between the laboratory and the crime information center is more remote and of a different type than that between the secretary and her employer. In addition, no connection was shown between the introduction of defendant’s prior offense and the work of the crime information center. And the relationship between this case and the crime information center employee who went out and taught how to use the system and criminal histories is more remote than the relationship between the prosecution of Beam and the secretary whose employer was conducting the prosecution. The distinctions foreclose the disqualification of the GCIC employee for principal cause. See Beam, supra at 786, fn. 4.

Decided November 27, 1996

Reconsideration denied December 17, 1996

Derek H. Jones, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Assistant District Attorney, for appellee.

The GCIC employee fits more appropriately in the category exemplified by the cases cited by the majority as well as Jordan v. State, 247 Ga. 328, 338 (6) (276 SE2d 224) (1981) (former police officers working for a state correctional facility); and Todd v. State, 261 Ga. 766, 771 (5) (410 SE2d 725) (1991) (Department of Public Safety driver’s license examiner). Like these other criminal justice system personnel, the GCIC employee could only be challenged for favor, and none was shown.

I concur fully in the remainder of the opinion.

       The record reflects that there were four blacks on the jury panel. In addition to the juror who was struck, two were accepted by the State and one was not reached. “The initial question [in evaluating a challenge under Batson] is whether appellant established a prima facie case of discrimination to trigger the prosecutor’s duty to give racially neutral reasons for the exercise of his challenged peremptory strikes. However, once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” (Punctuation omitted.) Lewis v. State, 262 Ga. 679, 680 (424 SE2d 626) (1993).

       Effective July 1, 1996, OCGA § 16-13-30 (d) was amended to provide that a second conviction for those drug offenses listed in OCGA § 16-13-30 (b) no longer requires a mandatory sentence of life imprisonment.


author: McMurray, Presiding Judge.

text:
    A96A1635.
    DINGLER v. MORAN.
    (479 SE2d 469)
   McMurray, Presiding Judge.

Plaintiff Moran filed this tort action against defendant Dingler, his wife’s grandfather. The complaint alleges that defendant was negligent in that he removed a protective guard from a circular table saw before allowing plaintiff to use the saw. Plaintiff maintains that injuries to his hand resulted from his attempt to use the saw in the absence of the protective guard which is placed over the saw blade to prevent injuries and which had been supplied with the saw when purchased by defendant.

In his deposition, plaintiff testified that some time prior to his injury defendant had given him permission to use anything in his workshop, but that there had been no conversation with defendant on the date of his injury concerning his use of the saw on that date. Indeed, defendant had not been home that day. Plaintiff had not previously worked with such a saw but had seen defendant use it, understood that the purpose of the saw was to cut things, and knew that his hand would be injured if it came into contact with the blade of the operating saw. Prior to his injury plaintiff recognized that the saw was on and the blade was turning. When plaintiff attempted to make his first cut the board jumped pulling his hand into the blade of the saw.

There is no suggestion that the saw was defective in the operational sense, and plaintiff argues that the movement of the board causing his injury must have occurred when the saw blade “caught a knot” in the board he was attempting to cut. It must also be noted in connection with the absence of the blade guard that it was necessary to remove this device in order to perform certain tasks with the saw.

Defendant moved for summary judgment relying upon the “open and obvious rule” or “patent danger rule” that a product is not defective if the absence of a safety device is open and obvious, and there is no duty to warn of an obvious danger. See Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169 (393 SE2d 64). Plaintiff argued that defendant’s conduct in permitting plaintiff to use the saw absent any information that defendant knew how to safely operate the saw was negligence, that plaintiff did not assume the risk in using the saw, and that a jury question remained as to whether the absence of the blade guard was a latent defect in the saw. After the superior court denied defendant’s motion for summary judgment, we granted permission for an interlocutory appeal. Held:

We should first explain that defendant’s reliance upon a line of product liability cases is appropriate since the relevant duties of a lender, such as defendant, share a common origin with those of a manufacturer. Restatement of the Law, Torts 2d, § 388 (along with the substantially similar section of the same number in the first edition) has been adopted as the law of Georgia. Carter v. E. I. DuPont de Nemours & Co., 217 Ga. App. 139, 140 (456 SE2d 661); Beam v. Omark Indus., 143 Ga. App. 142, 146-147 (237 SE2d 607), and is made applicable to manufacturers by Restatement of the Law, Torts 2d, § 394, and to lenders by Restatement of the Law, Torts 2d, § 405.

Restatement of the Law, Torts 2d, § 388 states: “One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier “(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and (b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and (c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

The “open and obvious rule” interacts with “(b).” Where an objective view of the chattel reveals an obvious or patent peril the supplier is provided a reason to believe that those for whose use the chattel is supplied will realize its dangerous condition. This is sufficient to bar any recovery based on an injury caused by the obvious peril. Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169, 173, supra. Under the evidence in the case sub judice, we do not reach any further questions as to whether a lender’s knowledge of the ignorance or incapacity of the person to whom the chattel is supplied will alter this conclusion. While plaintiff provided evidence of his inexperience concerning the saw, there is no indication that defendant may have been aware of this.

Decided December 17, 1996.

Tisinger, Tisinger, Vance & Greer, John A. Harris, for appellant.

Glover & Davis, J. Littleton Glover, Jr., Mark E. Dacy, for appellee.

As a party who will not bear the burden of proof at trial, defendant did not need to conclusively prove the opposite of each element of plaintiff’s case but could discharge his burden by showing that there was an absence of evidence to support plaintiff’s case. Where defendant discharges this burden, plaintiff cannot rest on his pleadings but must point to specific evidence giving rise to triable issues. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Finally, we conclude as a matter of law that the injuries in this case resulted from an obvious or patent peril. When viewed under the required objective standard, it is apparent that the turning saw blade was exposed and accessible so that “any user’s hand might, through any of a myriad of negligent or accidental [saw operation] scenarios, come into contact with and be injured severely by the dangerous, exposed [saw blade]. The presence of this open and obvious danger was adequate to warn the user that use of the [saw] with an exposed [blade], regardless of the care taken in such use, could (and in fact did) result in serious injury to the user’s [hand].” Ream Tool Co. v. Newton, 209 Ga. App. 226, 228 (4), 229-230 (433 SE2d 67).

It follows that the plaintiff is barred from any recovery. Thus, the superior court erred in denying defendant’s motion for summary judgment.

Judgment reversed.

Ruffin, J., concurs. Johnson, J., concurs in the judgment only.


author: Birdsong, Presiding Judge.

text:
    A96A1642.
    GLOVER et al. v. MARTIN.
    (479 SE2d 467)
   Birdsong, Presiding Judge.

This is an appeal of a grant of summary judgment awarding attorney fees to the attorney for the executrix of an estate. The attorney, Lester, was retained for the estate by the executrix named in the decedent’s last will and testament, appellee Alice Martin. The probate court overruled a caveat made by appellant Glover and others, but on appeal in superior court, a jury ruled against probate of the will. Attorney Lester then filed a petition in probate court to be compensated for services rendered to the estate. The probate court granted the attorney compensation for services to the estate in the total amount of $3,372. Appellant Glover appealed this award in superior court, and that court granted summary judgment to the attorney.

Appellant Glover contends the superior court erred in applying OCGA § 53-7-10 to the case instead of OCGA § 53-3-23.

OCGA § 53-7-10 provides: “An administrator or executor is authorized to provide competent legal counsel for the estate, according to the needs of the estate he represents. Either the administrator or executor or the attorney employed may, by petition to the judge of the probate court duly served on the other, obtain a judgment fixing the attorney’s fees and expenses.” (Emphasis supplied.)

Appellant contends this case is controlled by OCGA § 53-3-23, which provides: “[EJxecutors in purported wills of decedents shall be entitled to recover expenses [and] reasonable attorney’s fees [incurred in] offering wills for probate . . . even if the will is subsequently determined not to be the valid will of the testator. However, such person shall not be entitled to recover from the estate the expenses and attorney’s fees . . . unless the person proceeds in good faith.” (Emphasis supplied.) Appellant thus contends OCGA § 53-3-23 does not give the right to the attorney to file an application for attorney fees. She further contends OCGA § 53-7-10, on which the superior court granted judgment to the attorney, is inapplicable because his petition was not “served on” “[e]ither the administrator or executor,” as the case may be. The attorney rejoins that he served appellant with his petition for fees, that no one objected thereto, and that this was sufficient. Appellant contends that under our recent holding in Holland v. Farmer, 217 Ga. App. 546 (458 SE2d 175), the question of the attorney’s good faith should be decided by a jury. Held-.

The superior court did not err in sustaining the probate court’s award of attorney fees under OCGA § 53-7-10. No material issue of “service” of his petition arises to prevent application of OCGA § 53-7-10. OCGA § 53-7-10 provides that the executor, administrator or the attorney may make such application. The issue of good faith under OCGA § 53-3-23 does not arise because the superior court held there is no evidence in the record indicating Lester acted in bad faith in representing the estate at the request of the executrix, even though the will she propounded was not probated. Further, the superior court found that even if there were evidence the executrix exercised undue influence or otherwise acted in bad faith, there is “nothing in the record to indicate that [attorney] Lester had either actual or constructive notice of any such undue influence. In the absence of any evidence of such notice, any bad faith on the part of the executor will not be imputed to the attorney.” We agree with this reasoning, for reasons similarly put forth in our recent case of Holland. If attorneys were deprived of their statutory right to attorney fees in providing services to an executrix on a presumption of bad faith merely because the will propounded was ultimately not allowed to be probated, this would surely discourage any attorney from assisting in the probate of any will. There is no presumption of bad faith, on the part of the propounder or her attorney, merely because a will is defeated. To hold that the defeat of a will raises an inference of bad faith on the part of the executor or the attorney “would prevent the fair determination of validity of competing wills” or caveats. Id. at 547. The superior court found there was no evidence of bad faith on the part of this attorney, and on appeal appellant offers this Court no evidence of such bad faith. Accordingly, the superior court did not err in granting summary judgment and refusing to submit the “issue of good faith” to a jury.

Decided December 17, 1996.

Watkins & Watkins, John D. Watkins, for appellants.

Lester, Lester & Flynt, James L. Lester, for appellee.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A96A1679.
    PERKINS v. THE STATE.
    (479 SE2d 471)
   Smith, Judge.

Robert Earl Perkins was charged with attempted child molestation. He was found guilty by a jury, and he appeals.

1. Perkins raises the general grounds. Construed to support the jury’s verdict, the evidence at trial showed that Perkins’s twelve-year-old niece by marriage was babysitting at her home with a six-year-old child of whom Perkins and his wife had custody. Perkins came to the home of the victim to pick up the six-year-old. In saying good-bye, he approached his niece in the hallway, kissed her on the mouth and tried to place his tongue in her mouth while rubbing her buttocks. The victim pushed him away and returned to the living room. Perkins asked her if she intended to tell her mother, and because she was frightened, the victim replied that she would not. When Perkins left, however, she immediately called her mother, who was at work, and asked her to come home. The victim’s mother, who is Perkins’s wife’s sister, testified that her daughter was upset and crying. The victim’s family immediately reported the incident to the sheriff’s office.

A videotape of the interview with the victim conducted by the Sheriff’s Department investigator was played for the jury. The State also introduced evidence of two similar transactions, each of which involved an incident of sexual contact between Perkins and one of his nieces. In one instance, Perkins’s niece, who was twenty-three at the time of trial, testified that Perkins had fondled her breasts and buttocks when she was about nine years old. At the time, Perkins told her she should not tell anyone because it would affect his marriage. In the other instance, another adult niece, the victim’s older sister, testified that when she was about six or seven years old, Perkins took her into a bedroom, exposed his penis, and placed her hand and then her mouth around it. He then told her it would be wrong if she told anyone.

Perkins testified and admitted that he kissed the victim on the mouth. He denied, however, that he attempted to place his tongue in her mouth. He testified that he touched the victim on her back, but claimed he touched her above her shoulder blades. He later contradicted this testimony, however, insisting that he touched her below her shoulder blades. He denied that the victim pushed him away, testifying instead that he turned away himself and left after kissing her. He testified regarding the incidents with his older nieces that they “never happened.”

Perkins contends that his actions do not show either an indecent act or a substantial step toward any act of child molestation. He maintains that he simply left after kissing his niece good-bye. We do not agree.

An attempt to commit a crime involves three elements: the intent to commit the crime, performance of a substantial step towards its commission, and failure to complete the crime. Wittschen v. State, 259 Ga. 448 (1) (383 SE2d 885) (1989). We find all three elements present in this case.

The evidence was in conflict. The jury was not required to believe Perkins’s testimony, which conflicted with that of the victim. The jury could have believed instead the victim’s testimony that Perkins tried to push his tongue into her mouth and fondled her buttocks, that she pushed him away, and that Perkins was concerned about whether she would tell her mother. Given this testimony, as well as the victim’s demeanor when she reported the incident to her mother and the similar transaction evidence, the jury could have determined that Perkins would have placed his tongue in the victim’s mouth and committed other indecent acts with the victim in order to satisfy his own sexual desires. OCGA § 16-6-4 (a).

The jury could also have concluded from the evidence that Perkins left only when the victim pushed him away, having taken a substantial step toward any further molestation by kissing her, attempting to place his tongue in her mouth (although not actually doing so), and fondling her buttocks. Under OCGA § 16-4-1, this constituted a criminal attempt to commit child molestation. The evidence was therefore sufficient to authorize the jury to find Perkins guilty of attempted child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Perkins also contends the trial court erred in refusing to charge the jury on abandonment of the effort to commit a criminal act. We find no error.

OCGA § 16-4-5 (a) provides that “[wjhen a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” Here, the evidence did not show that Perkins abandoned his effort under either version of the incident.

Taking the victim’s version as true, Perkins left only after the victim pushed him away; his concern was only that she might tell her mother. He left after he had completed the attempt by making a substantial step toward committing child molestation. Because the evidence showed the completed crime of attempted child molestation, it was not error to refuse to charge on abandonment. Freese v. State, 196 Ga. App. 761, 764-765 (4) (396 SE2d 922) (1990).

Perkins’s version of the incident is also inconsistent with abandonment, because he testified that he never intended to molest the victim and never took a substantial step toward committing the crime. He merely kissed his niece good-bye. It is not error to refuse to give a requested charge that is not adjusted to the evidence presented. Lawson v. State, 214 Ga. App. 464, 465-466 (2) (448 SE2d 14) (1994). The trial court did not err in refusing to give this requested charge.

3. Perkins maintains the trial court erred in admitting the similar transactions evidence because the two prior incidents were not similar to the incident in issue and because they occurred between fifteen and twenty years ago.

Perkins argues that the similar transactions were insufficiently similar because the type of sexual contact in those incidents was different: one incident involved fondling of both breasts and buttocks; the other involved hand and mouth contact with Perkins’s penis. No requirement exists, however, that similar transactions be absolutely identical to the charged crime. The rule allowing similar transaction evidence to be admitted is most liberally applied when the charged crimes are sexual offenses. This Court has held that the sexual molestation of young children or teenagers, regardless of the gender of the victim or the type of act, is sufficiently similar to be admissible as a similar transaction in such cases. Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993).

Decided December 17, 1996.

Robert D. Pope, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Although lapse of time between the prior molestations and the charged crime is a factor to be weighed, it is not wholly determinative of admissibility. Bryson v. State, 210 Ga. App. 642, 643 (2) (437 SE2d 352) (1993). The similar transactions here occurred less than 31 years prior to the charged crime, and their admission is therefore not barred by the holding in Gilstrap v. State, 261 Ga. 798, 799 (410 SE2d 423) (1991). Here, as in Bryson, the time lapse may be explained by the fact that Perkins displayed a pattern of molesting his nieces.. Although the victims are all Perkins’s nieces, because they are of different ages the crimes occurred over a considerable period of time. We conclude, therefore, that the trial court’s admission of the similar transaction was not error.

Judgment affirmed.

Andrews, J, and Senior Appellate Judge Harold R. Banke concur.


author: Birdsong, Presiding Judge. Beasley, Chief Judge, Blackburn, Judge,

text:
    A96A1845, A96A2337.
    THE STATE v. HOLLER; and vice versa.
    (479 SE2d 780)
   Birdsong, Presiding Judge.

The State appeals the order of the state court granting appellee Roger W. Holler’s (a/k/a Roger W. Holler, Jr.) combined motion to suppress and motion in limine. It is enumerated the trial court erred by finding the officer lacked an articulable suspicion for the traffic stop and by excluding testimony as to the numerical results of the alcosensor test for purposes of establishing probable cause to arrest.

The arresting officer is a certified police officer with five years’ experience and assigned to the DUI Suppression Unit. Between the hours of 5:00 and 6:00 p.m., he was traveling in the left southbound lane of Riverdale Road when he observed appellee’s vehicle make an abrupt U-turn heading back northbound. In the officer’s opinion, the U-turn was not made safely and endangered the safety of northbound drivers, as traffic was heavy, and the U-turn was made in a “real abrupt manner.” However, the road is flat with no hills or curves, there are 300 to 400 yards of visibility northbound at that point, and no signs are posted prohibiting U-turns. There were no noticeable equipment defects on appellee’s car, no tag deficiency, and he made no apparent driving lane violations. There were two cars, both traveling in the southbound lanes, between the vehicles of the arresting officer and the appellee when the U-turn was made. The officer could not see whether appellee had his turn signals on when he made the U-turn. Other northbound cars were approaching (from an unspecified distance), coming through the intersection of Riverdale Road and Garden Walk. About 36 to 40 feet from appellee, one car with its blinker light on was stopped in a merging northbound lane awaiting clearance to enter a main northbound lane at the time appellee executed the U-turn. The officer observed that this car was delayed by appellee’s turn. But no vehicle headed northbound, including the one in the merging lane, had to make any diversionary moves or had to “ram” on their brakes to avoid appellee’s vehicle. After appellee made the turn, the officer activated his emergency equipment, made a U-turn himself and thereafter pulled appellee’s vehicle over in the Winn-Dixie parking lot. Traffic was heavy at the time of the incident. In order for the officer to complete his U-turn, he had to wait for “some” cars approaching in the northbound lane to pass by and to halt other northbound cars. The officer could not recall from memory what the roadway lane configuration was at the location of the incident.

After the stop was accomplished, the officer observed that appellee’s eyes were bloodshot and that he had a strong odor of alcoholic beverage on his breath and person. Appellee admitted to having drunk some rum and Coke but could not remember the amount consumed. He also told the officer that he knew he had made an improper U-turn and that his wife had told him not to make the turn. Appellee agreed to take field sobriety evaluations. The arresting officer testified that appellee incorrectly performed the finger-to-nose test, and appellee exhibited lack of smooth eye pursuit and nystagmus onset at an angle of 45 degrees when taking the horizontal gaze nystagmus evaluation (HGN). (Note: The State subsequently stipulated it would not go forward with any HGN evidence.) The arresting officer also testified that appellee tested “positive” for the presence of ethyl alcohol on the alco-sensor; however, an objection was sustained when the officer was asked to disclose appellee’s alco-sensor test scores. The arresting officer testified that, based on the results of the field sobriety evaluations, appellee’s unsafe driving, his observations of appellee, the odor of alcohol on appellee’s breath combined with his admission to having had an alcoholic beverage to drink, and the numerical reading obtained on the alco-sensor test, he had formed the opinion that appellee was a less safe driver due to his consumption of alcohol. Thereafter, appellee was placed under arrest and cited both for DUI and improper U-turn.

Appellee’s wife testified she was riding with her husband who was driving a rental car. They were looking for and found a grocery store located on the left side of the street, but drove by its entrance. As it looked like there was nothing in the road ahead and no lights were visible on either side of the road or in the approaching roadway intersection, they “decided ... to turn around and go back.” Riverdale Road has two driving lanes in each direction and a middle turning lane. No signs were posted which prohibited U-turns. The wife was watching for oncoming traffic “to make sure it wasn’t dangerous” to turn. Before the turn was executed, she saw the lights of two approaching cars, but they were at such a distance that the headlights looked like “little pin lights” coming the other way. There were no cars with their headlights on close behind the rental car. The U-turn was executed from the middle turning lane. The police unit’s lights came on immediately after the turn was made; there was no intervening traffic moving northbound which had to pass before the arresting officer could execute his own U-turn. When the U-turn was made, appellee’s wife had no concern about her safety or the safety of other vehicles. No cars were impacted by the U-turn; there were no oncoming cars in the vicinity when the U-turn was made. The U-turn was not made when cars were “pulling out” from stores; and appellee did not make a quick U-turn in front of oncoming traffic that night.

The trial court held there was no articulable suspicion for the traffic stop based upon its tacit conclusion that there had been no violation of OCGA § 40-6-121 (3). The trial court found that, although the arresting officer thought the U-turn was made under unsafe conditions, there was no evidence presented as to “why [the officer] thought it was unsafe.” The trial court also made the following supporting findings of fact: no other vehicles had to brake, had to swerve, or “had to do anything to avoid [appellee’s] car when he made the U-turn.” Held:

Case No. A96A1845

1. At trial the State in essence argued that, although numerical test results are not admissible at trial, an exception should be granted for the admission of this evidence at a suppression hearing for purposes of establishing probable cause for a DUI arrest. As a general rule, the numerical results of an alco-sensor test are not admissible in evidence, as the results of an alco-sensor test are not used as evidence of the amount of alcohol or drug in a person’s blood. See Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475); Porche v. State, 217 Ga. App. 325 (1) (457 SE2d 578); Turrentine v. State, 176 Ga. App. 145, 146 (1) (335 SE2d 630); see also Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (3) (471 SE2d 240). Even the characterization of the results of an alco-sensor test as “high” has been held to constitute inadmissible evidence of the degree of a suspect’s intoxication. Sturdy v. State, 192 Ga. App. 71 (383 SE2d 632). However, evidence can be admitted, as was allowed in this case, as to whether a suspect tested positive or negative, or passed or failed, an alco-sensor test; this is consistent with the use of an alco-sensor “as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” Turrentine, supra at 146 (1); see Sturdy v. State, supra. Evidence also is admissible whether a suspect refuses to submit to an alco-sensor test. Keenan, supra at 572 (2).

A trial court is vested with wide discretion in determining the admissibility of evidence. Spencer v. State, 260 Ga. 640, 646 (8) (398 SE2d 179). Admission of evidence is a matter resting largely within the discretion of the trial court; an appellate court will not interfere with a trial court’s ruling as to evidence admissibility absent an abuse of discretion. Gully v. Glover, 190 Ga. App. 238, 241 (4) (378 SE2d 411); Santone v. State, 187 Ga. App. 789, 793 (371 SE2d 428). The State has failed to show an abuse of discretion by the trial court in following the general rule and declining to allow evidence as to the numerical score appellee received on an alco-sensor test to be admitted in evidence at a suppression hearing. See Porche, supra; cf. Mendoza v. State, 196 Ga. App. 627, 629 (3) (396 SE2d 576). Accordingly, we will not interfere with that ruling. Gully, supra; Santone, supra. Further, as an alco-sensor test is not used as evidence as to the amount of alcohol or drugs in a person’s blood, we decline this opportunity to create a blanket exception which would serve as precedent for making alco-sensor numerical test results admissible (for the limited purpose of establishing probable cause to arrest) at all future suppression hearings. The State’s assertion of error as to this matter is without merit.

2. The State enumerates that the trial court erred in granting appellee’s combined motion to suppress or in limine when it ruled that the arresting officer lacked articulable suspicion to stop appellee’s car. The burden of proof of establishing that appellee was not subjected to an illegal seizure of his person rests upon the State. State v. Goodman, 220 Ga. App. 169, 170 (1) (469 SE2d 327); see State v. Johnston, 160 Ga. App. 71, 74 (286 SE2d 47), aff’d on other grounds, 249 Ga. 413 (291 SE2d 543).

(a) “Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a ‘seizure’ of ‘persons’ within the meaning of [the Fourth Amendment]. [Cits.] An automobile stop is thus subject to the constitutional imperative that it not be ‘unreasonable’ under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. [Cits.]” Whren v. United States, 517 U. S._ (116 SC 1769, 135 LE2d 89, 95). Such a stop does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Id. Such a stop could be effected even as a mere subjective pretext for engaging in other law enforcement objectives, as long as probable cause exists to believe that a traffic violation has occurred. See Whren.

The record reveals that the trial court made no express ruling whether the stop of appellee’s vehicle based upon a traffic violation was a pretextual stop to investigate appellee for possible DUI. Even if the stop of appellee’s car was pretextual, it would not render the resulting seizure “-unreasonable” under the Fourth Amendment prohibition if probable cause did exist for the arresting officer to believe that a traffic violation had occurred. Further, appellee’s vehicle could be stopped and appellee placed temporarily in an investigative detention status pending a further limited investigation inquiry provided the officer had an articulable suspicion to justify such a stop. See generally Mallarino v. State, 190 Ga. App. 398, 401 (2) (379 SE2d 210). Thus, the issue before us is whether the trial court correctly concluded that there existed no articulable suspicion for the vehicle stop (which per force constituted a finding that neither was the stop based on probable cause).

(b) The record reveals that the sole basis for the initial stop of appellee’s vehicle was the arresting officer’s belief that appellee had made an illegal U-turn. However, the findings of fact and law by the trial court, after its examination of the conflicting evidence given at the suppression hearing, tacitly included a determination that the State failed to carry its burden of showing the officer had probable cause to believe that appellee had committed a violation of OCGA § 40-6-121 when making the U-turn.

“When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge ‘hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.’ [Cit.] Second, the trial court’s decision with regard to ‘questions of fact and credibility . . . must be accepted unless clearly erroneous.’ [Cit.] . . . Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. [Cit.] On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant and their application to this trial court’s order would demand that the court’s order be affirmed.” (Emphasis and footnote omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646). The findings of fact by the trial court are not clearly erroneous and are supported by some evidence of record; the trial court did not err in concluding that the traffic stop was not supported by a reasonable (articulable) suspicion. Compare State v. Goodman, supra; State v. Jones, 214 Ga. App. 593 (448 SE2d 496).

Case No. A96A2337

In view of our holding in Case No. A96A1845, the appeal in Case No. A96A2337 is moot. See Atlanta Gas Light Co. v. Ga. Textile &c. Assn., 266 Ga. 738 (1) (470 SE2d 230).

Judgment affirmed in Case No. A96A1845. Appeal dismissed in Case No. A96A2337.

Beasley, C. J., and Blackburn, J., concur specially.

Beasley, Chief Judge,

concurring specially.

I concur in Division 1. As to Division 2, the trial court must be upheld because it made a fact determination which is supported by defendant’s evidence, although it is contrary to the State’s evidence. Its resolution of the conflict is not clearly erroneous, so we are bound to accept it. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

The trial court apparently did not accept the officer’s version of the circumstances existing at the time the defendant made the U-turn. The court measured the officer’s stop of defendant against the traffic law which prohibits a driver from turning a vehicle “so as to proceed in the opposite direction: . . . [w]here such turn cannot be made in safety and without interfering with other traffic.” OCGA § 40-6-121 (3). The court rejected the officer’s testimony about the conditions then present and his judgment that the conditions were unsafe for a U-turn or interfered with other traffic. The trial court also rejected, or regarded as inconsequential, the officer’s testimony that defendant stated when stopped that he had made an improper turn and had been advised by his wife not to make it. The court gave credence instead to defendant’s version, which was based on his wife’s testimony.

Decided December 17, 1996.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellant.

William C. Head, for appellee.

This we must accept, as the factfinder determines credibility. Tate, supra. It matters not whether the stop was pretextual or for the reason articulated by the officer. Even if for the latter, it was unsupported by indicia or symptoms of unsafety or traffic interference, when viewed in the context of the facts found by the trial court. The case does not reach the question of pretext, so I do not join in the discussion of the meaning of Whren v. United States, 517 U. S._ (116 SC 1769, 135 LE2d 89) (1996).

Based on the facts, the trial court concluded that the officer “lacked articulable suspicion to stop Defendant.” This was the application of the correct standard, as an investigating traffic stop must be based on information (including personal observation), supporting a “reasonable suspicion that [the person stopped] was engaged in criminal activity” Alabama v. White, 496 U. S. 325, 331 (110 SC 2412, 110 LE2d 301) (1990).

Blackburn, Judge,

concurring specially.

I concur fully with the majority opinion with the exception of the dicta concerning the authority of police officers to make pretextual stops.


author: Judge Harold R. Banke.

text:
    A96A1852.
    KENDRICK v. THE STATE.
    (479 SE2d 464)
   Judge Harold R. Banke.

Willie L. Kendrick, III was convicted of one count of selling cocaine. The trial court directed a verdict of acquittal on a second count, possession with intent to distribute. Following the denial of his motion for new trial, Kendrick enumerates nine errors.

The State’s evidence showed that a confidential informant told Metro Narcotics Task Force Agents Linda Moten and Keith Taylor that she could purchase an “eight ball” of crack cocaine from a man known to her as “Pumpkin.” Later that day, Agent Moten accompanied the informant to a previously specified address to meet “Pumpkin.” Kendrick answered the door and the informant told him she wanted to purchase an “eight ball” of crack cocaine. After Agent Moten, the informant, and Kendrick negotiated a price of $250 for 4.5 grams of cocaine, Kendrick left to get the cocaine going across the street to his residence. When Kendrick returned, he and co-defendant Sandra Allen went into a bedroom while the informant and Agent Moten waited in the kitchen. Allen came out of the bedroom with a quantity of cocaine and a set of scales. Allen weighed the cocaine and gave it to Agent Moten who handed her $260. When Allen returned to the bedroom to get change from Kendrick, Agent Moten, who was wearing a concealed microphone, gave a code word for other agents to enter the house. The officers found only Kendrick in the bedroom along with approximately $1,000, including the $260 used in the transaction. On the ground outside the bedroom window, officers recovered a bag containing approximately 21 grams of cocaine. The jury listened to the audiotape of the entire transaction, and Moten identified Kendrick’s voice on the tape.

Before Kendrick’s trial, Allen, his girl friend, pleaded guilty to the sale and possession of cocaine. Allen testified that Kendrick had nothing to do with the transaction and that another person, Charlie Richardson, brought her the cocaine that was sold to Agent Moten. Held:

1. Kendrick contends that he was denied effective assistance of counsel, asserting that his trial counsel failed to investigate and prepare for trial and neglected to file a motion to reveal the identity of the confidential Informant. A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Warren v. State, 197 Ga. App. 23, 24 (1) (397 SE2d 484) (1990).

Counsel testified that she met with Kendrick, investigated the facts, and prepared for trial. Under these facts, we cannot say that the trial court’s finding was clearly erroneous. See id. Nor was trial counsel ineffective for deciding not to file a motion to reveal the identity of the confidential informant. Because Kendrick told counsel that he knew who the confidential informant was, there was no prejudice. Decisions relating to trial strategy and tactics do not equate with ineffective assistance of counsel. Nolan v. State, 204 Ga. App. 170, 172 (3) (419 SE2d 72) (1992).

2. The trial court properly admitted Kendrick’s two prior drug convictions as similar transaction evidence. Evidence of prior crimes is admissible where the trial court determines that the State satisfactorily makes the three affirmative showings required by Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Kendrick’s prior drug convictions were offered for an appropriate purpose to show course of conduct and bent of mind, were substantially similar, and it was not disputed that Kendrick committed the prior independent offenses. See id.

3. Kendrick claims that the trial court erred in finding that a remark he made while in custody was freely and voluntarily given. After he refused to sign a waiver of rights form, Kendrick nonchalantly commented that he did not want to cooperate because he would “do my little time and when I get out, I’ll be back doing it again.” A party seeking reversal must show not only error but also harm arising from the alleged error. Durham v. State, 129 Ga. App. 5, 6 (3) (198 SE2d 387) (1973). Because the statement at issue was never admitted into evidence, even assuming Kendrick could show error, he cannot show the requisite harm. See id.

4. The State’s witness did not improperly inject hearsay testimony concerning identity. After Agent Taylor testified that agents received information about a person nicknamed “Pumpkin” selling cocaine from a residence located at a specific address, the court sustained a defense objection and required that the State lay a proper basis before identifying any particular person with the nickname. Taylor then explained that Lt. Russell Traino of his unit knew “Pumpkin” by his real name, Willie Kendrick. Taylor’s testimony was not hearsay but original evidence explaining the circumstances that led to an undercover drug operation involving Kendrick. OCGA § 24-3-2; see Frazier v. State, 195 Ga. App. 599, 600 (4) (394 SE2d 396) (1990).

5. Kendrick contends that the State improperly injected punishment into its closing. Defense counsel, both in the opening statement and closing argument, pointed out that Kendrick had pleaded guilty in two prior cases and argued that the reason he was being tried was that he was charged with something he did not do. In rebuttal, the State countered that Kendrick may have decided not to plead guilty because he knew he could receive a harsher sentence having had two prior convictions.

The test for reversible error is whether the argument, even if improper, in reasonable probability changed the result of the trial. Bright v. State, 265 Ga. 265, 285 (19) (a) (455 SE2d 37) (1995). Because of the overwhelming evidence of guilt, we conclude that even assuming the argument was objectionable, there is no reversible error. Id.

6. In two enumerations of error, Kendrick contends that the trial court improperly denied his right to comment on the State’s failure to produce the confidential informant as a witness. See Wilson v. Zant, 249 Ga. 373, 384 (4) (290 SE2d 442) (1982). He claims that the unknown confidential informant would have provided exculpatory testimony if the State had called her as a witness or revealed her identity. Contrary to Kendrick’s argument, as discussed in Division 1, the State did not attempt to conceal the informant’s identity; Kendrick told his attorney he knew her identity. It is undisputed that neither the State nor Kendrick subpoenaed her as a witness.

Decided December 17, 1996.

David J. Grindle, for appellant.

J. Gray Conger, District Attorney, Paul J. Coburn, William D.

The evidence belies Kendrick’s uncompelling argument that the informant’s in-court testimony would have been exculpatory. As the record shows, the informant provided abundant inculpatory evidence prior to the “eight ball” cocaine purchase involving Kendrick here. She told police that she knew “Pumpkin” to be a drug dealer, and she gave incriminating details about his drug dealing to the agents. The subsequent events of the drug operation and the audiotape corroborated her reliability as an informant. Kendrick cannot show how he was prejudiced by the denial of the opportunity of his counsel to comment on the State’s failure to call the informant as a witness. Compare Morgan v. State, 267 Ga. 203, 206 (3) (476 SE2d 747) (1996) (prohibition on defense counsel’s ability to comment on State’s failure to call two EMS technicians on State’s witness list whose testimony could have been exculpatory was harmful). Considering the facts in this case, even assuming arguendo that the trial court’s ruling was somehow error, Kendrick failed to show the requisite harm. See Durham, 129 Ga. App. at 6.

7. Kendrick challenges the sufficiency of the evidence. Construing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found all the essential elements of the offense of sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

8. The trial court properly allowed the State to present Kendrick’s prior convictions during the sentencing phase. In the instant case, Kendrick was indicted as a recidivist. The State’s written notice of its intent to present evidence of his prior convictions as similar transactions coupled with oral notice that it intended to introduce the prior convictions as evidence in aggravation fulfilled the notification requirement under OCGA § 17-10-2 (a). Moss v. State, 206 Ga. App. 310, 312 (5) (425 SE2d 386) (1992); compare Armstrong v. State, 264 Ga. 237, 238 (2) (442 SE2d 759) (1994).

Judgment affirmed.

McMurray, P. J, and Ruffin, J., concur.

Kelly, Jr., Assistant District Attorneys, for appellee.

       Kendrick attempts to create an issue as to the identity of the confidential informant. But the evidence shows that she had various aliases and was known generally as both Mary Mott and Mae Francis.


text:
    A96A1889.
    THOGERSON v. THE STATE.
    (479 SE2d 463)
   Smith, Judge.

Larry Alan Thogerson was indicted by a Cobb County grand jury on one count of criminal attempt to commit the crime of theft by taking. OCGA §§ 16-8-2; 16-4-1. A jury found him guilty, his motion for new trial was denied, and he appeals.

Construed to support the verdict, the evidence showed that Thogerson presented a forged cash refund voucher in the amount of $829.50 to a department store. The refund voucher had a nonexistent employee identification number, a nonexistent “house number,” and a countersignature from an employee at a store in Memphis, Tennessee; the voucher purported to be given for merchandise never sold at the store from which it was ostensibly purchased. A department store security manager questioned Thogerson regarding the purchase, and he claimed to have obtained the refund voucher about a month before, although the voucher itself showed that it had been generated on the previous day.

In his sole enumeration of error, Thogerson contends the trial court should have applied the provisions of the Uniform Commercial Code to the refund voucher, because the prosecutor described the refund voucher as a “negotiable instrument.” Thogerson asserts that the voucher must be treated as a negotiable instrument under former OCGA § 11-3-104 (1), and that former OCGA § 11-3-207 (1) (b) provides that negotiation is effective even if obtained by fraud. It follows, Thogerson argues, that a directed verdict of acquittal should have been granted because the State failed to prove that Thogerson was not a “holder in due course,” who, under former OCGA § 11-3-306, took the instrument free of the store’s claims.

Decided December 17, 1996.

Robert S. Devins, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Thomas A. Cole, Nancy I. Jordan, Assistant District Attorneys, for appellee.

This contention is without merit. The definitions contained in former Article 3 of the UCC, including the definition of “holder in due course” and “instrument,” are expressly limited in their application to “this article.” Former OCGA § 11-3-102 (1), (2). Moreover, the definitions applicable to this article taken from other portions of the UCC are specifically enumerated. Former OCGA § 11-3-102 (3). Even the general definitions applicable to the UCC as a whole are limited to use “in this title.” OCGA § 11-1-201. For this reason, as we observed in Calhoon v. Mr. Locksmith Co., 200 Ga. App. 618 (409 SE2d 226) (1991), definitions contained in the UCC are inapplicable to a criminal prosecution. Id. at 620 (1). “This is a criminal case, not . . . governed by the Uniform Commercial Code.” Givens v. State, 216 Ga. App. 176, 177 (454 SE2d 141) (1995). Thogerson cannot require the State to prove as additional elements of a crime requirements engrafted from another, unrelated body of law.

Judgment affirmed.

Andrews, J., and Senior Appellate Judge Harold R. Banke concur.

       Assuming without deciding that an attorney’s question to a witness can be considered a “statement,” the prosecutor’s characterization of the refund voucher as a negotiable instrument is not dispositive. The construction of a contract is a question of law for the court, OCGA § 13-2-1, and a mere statement of opinion as to the legal effect of a document is not a binding admission. Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990).

       Article 3 of the UCC was substantially revised in 1996. Ga. L. 1996, p. 1306, § 3. The events underlying this appeal took place in 1993.

       We question whether this refund voucher meets the legal requirements for a negotiable instrument, because it does not “contain the time honored ‘words of negotiability,’ such as pay to the order of or pay to bearer.” Hall v. Westmoreland, Hall & Bryan, 123 Ga. App. 809, 811 (182 SE2d 539) (1971). See former OCGA § 11-3-104 (1) (d). But we do not reach this issue.