text:
    A98A1573.
    GILL v. B & R INTERNATIONAL, INC.
    (507 SE2d 477)
   Johnson, Presiding Judge.

Gregg Gill sued his former employer B & R International, Inc., alleging that B & R breached an agreement to pay a debt and breached an agreement to provide him severance pay. Gill sought specific performance of the alleged contract, litigation expenses and reasonable attorney fees. The trial court granted B & R’s motion for summary judgment and dismissed Gill’s complaint with prejudice. From this judgment Gill appeals. We find no error and affirm.

1. The trial court did not err in granting summary judgment to B & R on Gill’s claim for breach of an agreement to pay a debt. Gill contends that B & R offered him and certain other employees an opportunity to either purchase B & R stock at a favorable price or to receive a lump sum payment of $100,000. Gill also contends that the lump sum payment was to be compensation from B & R for his continued employment with the company and for his contribution to corporate growth and success. According to Gill, the lump sum payment was conditioned upon the employee’s continued employment with B & R until B & R was sold or until the employee was terminated, so long as the termination was neither voluntary nor for cause.

Gill acknowledges that he was the only employee to accept the $100,000 lump sum payment offer from B & R; other employees elected to buy the stock. The offered stock was not owned by the corporation but by Robbie Reid, B & R’s president, CEO, and majority stockholder. In his affidavit, Gill states it was his “understanding” that the offer was made by Reid in his corporate capacity. However, Gill cannot recall whether B & R was going to issue additional stock or whether stock would be purchased directly from Reid. In his deposition, Gill admits that he does not know whether the $100,000 was to be paid by B & R or by Reid. B & R asserts that: (i) any offers were made by Reid in his personal capacity; (ii) although Reid initially suggested a lump sum payment alternative, this alternative was not offered again after each of the four employees stated an initial desire to purchase stock; and (iii) B & R did not accept any counteroffer from Gill binding it to pay him a $100,000 lump sum.

To establish his contentions, Gill substantially relies on an unsigned memorandum, dated February 22, 1993, and the response to that memorandum. The memorandum was written by Reid and addressed to Gill and three other employees; it is not written on corporate letterhead. The memorandum pertinently states: “Attached is a Shareholder’s Agreement for your review and comments. The amounts shown are the final amounts being offered for their respective values. I have reviewed this and feel this agreement to be not only equitable, but very simple. . . . My alternative offer is to give each of you a Promissory Note equal to the dollars I have earlier indicated that would become due and payable upon the sale of the company. If the company [is] never sold, or if you were terminated for cause or left at your own discretion, then there would be no value payment. This is strictly a value not tied to a percentage value by company. I would like to have your comments on the Shareholder’s Agreement before Wednesday . . . and whether or not you intend to bécome a shareholder on terms offered.” Gill stated in his response: “Given my current financial obligations, the appropriate option at this time is the $100,000 promissory note. If the stock option can remain open (Feb 22 memo), I would like to consider it at a future date.” Reid made this handwritten notation on Gill’s response: “I respect your decision — no problem — It is not fair to leave stock option open for you & not for others — We can discuss stock [at] a future date & a different price — Robbie.” It is clear from the record before us that no promissory note was ever executed or delivered to Gill by either Reid or B & R. Gill contends that genuine issues of material fact exist as to whether B & R was a party to the contract and whether there was a breach of an alleged agreement to pay the lump sum.

(a) Gill argues that ambiguity exists as to the identity of the parties, consideration and terms of the agreement. He cites the holding in Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 903 (3) (476 SE2d 622) (1996), where we stated that the construction of a contract is a question of law for the trial court when the contract language is clear and capable of only one reasonable interpretation, but that if any matter of fact is involved, the jury should find the fact. The holding in Nolley is based on a direct quote from Bress v. Keep-Safe Indus., 155 Ga. App. 544, 545 (271 SE2d 867) (1980). However, in U. S. Enterprises v. Mikado Custom Tailors, 250 Ga. 415, 416 (297 SE2d 290) (1982), the Supreme Court explained the correct interpretation to be given the legal principle set forth in Bress and related cases as follows: “No jury question is raised unless after application of the pertinent rules of construction the ambiguity remains. Only if after applying these rules of construction it is unclear which of two or more possible meanings represents the true intent of the parties should the issue be declared ambiguous and delivered to the jury.” (Citations omitted.)

In construing oral and written contracts, the court should apply the appropriate three-step process of contract construction discussed in Duffett v. E & W Prop., 208 Ga. App. 484, 486 (2) (430 SE2d 858) (1993). Jones v. Destiny Indus., 226 Ga. App. 6 (2) (485 SE2d 225) (1997). First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. Thus, where the terms of the contract are clear and unambiguous, the court looks only to the contract to find the parties’ intent. Second, if the potential for ambiguity appears, the existence or non-existence of an ambiguity is itself a question of law for the court, unless an ambiguity remains even after the court has applied the pertinent rules of contract construction. Finally, issues of contract construction will be submitted to the jury only when there appears to be an ambiguity in the contract which cannot be resolved by the court’s application of the statutory rules of construction. Duffett, supra; see U. S. Enterprises, supra.

In ruling on a motion for summary judgment, the opposing party must be given the benefit of all reasonable doubt, and the court must construe the evidence and all inferences and conclusions arising therefrom most favorably to the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988). However, “rulés of contract construction and interpretation are separate from those rules allocating burdens of proof at trial and on motion for summary judgment,” and thus are to be independently applied. Thomas v. American Global Ins. Co., 229 Ga. App. 107 (1) (493 SE2d 12) (1997); Richard Haney Ford v. Ford &c. Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282) (1997).

(b) Examining the record, we find that the trial court, utilizing pertinent rules of contract construction, could conclude that no enforceable contract existed to pay Gill a lump sum for either of the following reasons: The trial court could have found there was no meeting of the minds or assent as to the identity of the parties to the contract. The court could have legitimately concluded that while it was Gill’s intent to enter into a contract with B & R, it was Reid’s intent only to enter into a contract in his personal capacity. “To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1. Each of these essential terms must be certain. Laverson v. Macon Bibb County Hosp. Auth., 226 Ga. App. 761, 762 (487 SE2d 621) (1997). The requirement of certainty extends not only to the subject matter and purpose of the contract, but also to the parties, consideration, and even the time and place of performance where time and place are essential. Id.

The trial court also could have concluded there was no mutual assent by the parties because Gill responded with a counteroffer to Reid’s offer of stock or lump sum payment. That is, the trial court could have found that Gill counteroffered that he be allowed to immediately accept lump sum payment and also that the stock option remain open indefinitely so that he could elect whether to purchase it at the offered price at some future date, which counteroffer Reid unequivocally rejected. A subsequent communication by one party to the alleged contract that varies even one term of the original contract is a counteroffer; a counteroffer rejects an offer and terminates the offeree’s power of acceptance. Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (411 SE2d 527) (1991).

Either of these interpretations of the alleged contract by the trial court would cause Gill’s claim to fail. Thus, the trial court did not err as contended. A grant of summary judgment must be affirmed if it is right for any reason. See Hanna v. McWilliams, 213 Ga. App. 648, 651 (3) (446 SE2d 741) (1994).

(c) The trial court’s order expressly refers to a motion hearing and states that the court “considered the full record and all submissions and arguments of counsel,” in determining that B & R was entitled to summary judgment. However, no hearing transcript has been included in the record on appeal and Gill has posed no objection to this Court regarding its omission. Without access to the hearing transcript, we cannot determine whether evidentiary submissions, stipulations, or statements in place by counsel were tendered at the hearing. Without this knowledge, we cannot adequately address any of the issues which Gill asserts on appeal. The burden is on an appellant to show error by the record, and when a portion of the record which is necessary for our determination of one or more appellate issues is not before the court, the trial court’s express or implicit ruling as to those issues must be affirmed. Atlanta Cas. Ins. Co. v. Crews, 197 Ga. App. 48, 51 (3) (397 SE2d 466) (1990). For this additional reason, the grant of summary judgment by the trial court must be sustained.

Decided September 25, 1998.

Goodman & Associates, James E. Goodman, Norman L. Smith, for appellant.

2. The trial court did not err in granting summary judgment to B & R as to Gill’s severance pay claim.

In his affidavit, Gill made the following statements surrounding B & R’s alleged promise to provide him severance pay: In April 1996, Reid terminated Gill’s employment because the company had been sold to Poe & Brown, Inc. and that company decided not to hire Gill. At that meeting, Reid acknowledged that Gill was owed a “lump sum” of money and further stated that Gill would receive severance payments of $3,500 twice a month for four months. Reid also said that payments would be made only if Gill did not solicit any B & R accounts after his termination. B & R made one payment and then stopped payments on the ground that Gill had solicited B & R accounts.

In his deposition testimony, Gill unequivocally responded “[n]o” when asked, “[n]ow, in connection with your receipt of severance, did you agree to do anything in exchange for the severance.” Thus, a contradiction exists as to Gill’s affidavit statement that the severance pay was given on condition that he not solicit B & R customers.

A promise unsupported by adequate consideration is unenforceable. OCGA § 13-3-40. Gill has given two directly contradictory statements bearing on the question whether he bargained for and gave any consideration in exchange for the payment of severance benefits. In Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), it was held that in summary judgment cases, a party’s self-contradictory testimony is to be construed against him unless he offers a reasonable explanation for the contradiction. After applying the rule announced in Prophecy and construing the remaining evidence in the light most favorable to Gill, we conclude the trial court did not err in granting B & R’s motion for summary judgment as to the severance pay claim. The alleged severance pay agreement was, at most, gratuitous. A grant of summary judgment must be affirmed if it is right for any reason. See Hanna, supra.

Judgment affirmed.

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

Porter & Barrett, J. Alexander Porter, Davis & Dosier, Simuel F. Dosier, Jr., for appellee.


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1574.
    PAYNE v. THOMPSON et al.
    (507 SE2d 257)
   Beasley, Judge.

Both Officer Thompson’s police car and the vehicle driven by the man he was pursuing struck the car Ruth Emily Payne was driving. Alleging negligence, Payne sued these two men plus the officer’s employer for damages.

This case first appeared before this Court as an interlocutory appeal, in which we affirmed the denial of summary judgment to defendants. Following trial, the jury returned a defendants’ verdict. Payne’s motion for new trial was denied. Her sole enumeration of error on appeal is that the court erroneously charged the jury on certain principles of negligence and liability.

In her notice of appeal Payne specifically excluded the transcript of the evidence and included only the transcript of the court’s charge to the jury.

The void created by the omission is problematic. As stated in Layne v. Rosenfeld, “even though there may be error in the charge, we cannot determine whether this error is harmful in the absence of a transcript of the evidence. If the evidence should have demanded the verdict found by the jury, the instructions, even if error, would have been harmless and not cause for new trial, and since the burden and duty of affirmatively showing injury as well as error rests upon the appellant, and such injury does not affirmatively appear in the absence of the transcript of the evidence, we must . . . affirm the judgment of the trial judge in overruling the motion for new trial.”

Similarly, Johnson v. Bruno’s, Inc. explained that “it is well recognized that charging errors can, under certain circumstances, be rendered harmless and not result in reversible error. Without access to a trial transcript, we would be unable to determine accurately whether any resulting charging error was harmless, and for this separate and independent reason, we also would be compelled to affirm the judgment. . . .” In addition to Layne and Johnson, on at least four other occasions this Court has refused to consider charging errors where no complete transcript or an equivalent was included in the record.

Decided September 25, 1998.

Lynwood D. Jordan, Jr., for appellant.

Hall, Booth, Smith & Slover, Roger S. Sumrall, for appellees.

True, Foskey v. Foskey held that erroneous charges are “presumed to be prejudicial and harmful. . .,” but this is not conclusive because “the presumption of harm which arises from a charging error [may be] overcome by a review of the record as a whole.” Jury charges must be adjusted to the evidence. The appellate court presumes that the trial court discharges its duty in compliance with the law based on the evidence before it, so in the absence of a transcript we affirm where the enumeration of error requires a review of the transcript. The alleged charging errors in this case require such a review, for they would not result in reversal if the transcript revealed they did not affect the verdict.

Moreover, on its face the first charge appears correct as it is nothing more than an instruction that if no negligence is found, there is no liability. The second charge is not targeted in a separate enumeration as required by OCGA § 5-6-40.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       See Thompson v. Payne, 216 Ga. App. 217 (453 SE2d 803) (1995).

       (Citations omitted.) 122 Ga. App. 839, 840 (178 SE2d 920) (1970).

       (Citations omitted.) 219 Ga. App. 164, 166 (4) (464 SE2d 259) (1995).

       See Whitby v. Maloy, 150 Ga. App. 575, 576 (2) (258 SE2d 181) (1979); Derryberry v. Higdon, 116 Ga. App. 381, 383 (2) (157 SE2d 559) (1967); Bishop v. Peoples Loan &c. Corp., 101 Ga. App. 53, 58 (8) (113 SE2d 161) (1960); Gulick v. Mulcahy, 95 Ga. App. 158 (97 SE2d 362) (1957).

       (Citation and punctuation omitted.) 257 Ga. 736, 737 (2) (363 SE2d 547) (1988).

       (Citation omitted.) Roberts v. State, 267 Ga. 669, 676 (10) (d) (482 SE2d 245) (1997).

        Carter v. State, 224 Ga. App. 445, 448 (1) (481 SE2d 238) (1997); Toole v. Brownlow & Sons Co., 151 Ga. App. 292, 296 (3) (259 SE2d 691) (1979).

        Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990); see, e.g., Dalton v. Vo, 230 Ga. App. 413, 414 (3) (497 SE2d 245) (1998); Gaddis v. Skelton, 226 Ga. App. 325, 326-327 (486 SE2d 630) (1997).

       See, e.g., Gavin v. Vasquez, 261 Ga. 568, 570 (407 SE2d 756) (1991); Ross v. State, 192 Ga. App. 850, 851 (4) (386 SE2d 721) (1989); Barton v. State, 188 Ga. App. 237, 238 (372 SE2d 647) (1988).


author: JOHNSON, Presiding Judge.

text:
    A98A2026.
    LUCAS v. THE STATE.
    (507 SE2d 253)
   JOHNSON, Presiding Judge.

John Barry Lucas appeals his conviction of driving under the influence of alcohol.

1. Lucas challenges the sufficiency of the evidence. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

The evidence viewed in a light most favorable to the verdict is as follows: At 1:45 a.m., Lucas stopped the van he was driving at a roadblock. As the arresting officer approached the van, he detected a strong smell of alcohol. He observed that Lucas’ eyes were red, glassy and “hazed over,” and thát his speech was slower than normal. The officer suspected that Lucas had been drinking alcohol and asked him to get out of the van. Lucas got out of the van after being asked to do so a second time. The officer saw that Lucas was unsteady on his feet. The officer noticed that once Lucas was outside the van, the smell of alcohol became very strong and definitely originated from Lucas. When asked how much alcohol he had consumed and when he consumed it, Lucas replied “no.” Lucas refused to submit to a field alco-sensor test.

Lucas was given field sobriety exercises. Although he had been instructed to keep his hands at his sides, during the one legged stand exercise Lucas raised his hands to keep his balance, swayed and hopped once to keep from falling. Contrary to the instructions given him, Lucas also started the exercise before being told to do so. Lucas began the “heel to toe step and turn” exercise before being told to do so, then missed eight of the nine heel-to-toe steps, stumbled off line during the exercise, and hesitated before making the turn. The officer, who had received DUI training and who had made about 200 DUI stops, then placed Lucas under arrest for driving under the influence. After being read the implied consent warning, Lucas elected not to submit to a chemical test of his breath. He was transported to a local medical center where, after signing a written implied consent warning, he again refused to take a breath test.

At trial, Lucas did not object to the admission of his refusals to submit to an alco-sensor and a chemical test of his breath. His refusal to submit to an alco-sensor test and to a later chemical test of his breath is circumstantial evidence of his intoxication. See OCGA §§ 24-1-1 (4); 24-4-9; 40-6-392 (d); Rawl v. State, 192 Ga. App. 57, 58 (3) (383 SE2d 903) (1989). Two similar transaction DUI incidents involving Lucas were also admitted in evidence. All of this evidence was before the jury for its consideration along with the testimony of the arresting officer regarding his observations of Lucas. See generally OCGA § 40-6-392 (d); Kennan v. State, 263 Ga. 569 (436 SE2d 475) (1993); see also Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328) (1992) (evidence admitted without objection). Lucas’ testimony conflicted with that of the arresting officer; the jury resolved this conflict against Lucas.

We find that Davis v. State, 206 Ga. App. 647 (426 SE2d 267) (1992) is factually distinguishable from this case. In Davis, the officer smelled an odor of alcohol in the defendant’s car but could not pinpoint the source and could not affirmatively determine whether the driver or his passengers had been drinking; and a blood sample taken three hours after the accident tested negative for alcohol and drugs. Id. at 647-648. Here there were no other passengers to which the odor could be attributed. Nor was Lucas willing to submit to testing.

Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the DUI offense of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Tuttle v. State, 232 Ga. App. 530, 531 (1) (502 SE2d 355) (1998).

2. Lucas contends the trial court erred in admitting into evidence a videotape of a prior 1995 traffic stop of Lucas, which the state offered in addition to other evidence to establish the similarity between it and the current DUI incident. We disagree.

At trial, Lucas objected to the admission of the videotape on the following grounds: (i) the tape is prejudicial and simply evidences an attempt to show Lucas in an intoxicated condition; (ii) it has no relevance in the pending case; (iii) it does not show motive; (iv) it does not show bent of mind; it is merely cumulative of the evidence of Lucas’ conviction; and (v) it puts Lucas’ character in issue.

The videotape was admissible to show Lucas’ bent of mind or course of conduct. Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996). The trial court instructed the jury that the videotape evidence of the similar transaction was admissible only for the limited purpose of showing bent of mind or course of conduct. Similar transaction evidence can be introduced to prove bent of mind or course of conduct when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense. Id.

Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind to operate a motor vehicle when it is less safe for him to do so. Id.; see also OCGA § 24-2-1. As depicted by the testimony of the officer and by the videotape, there exist substantial similarities between the prior 1995 event and the DUI alleged in the current indictment. See Okross v. State, 210 Ga. App. 132, 133-134 (2) (435 SE2d 454) (1993). The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990).

The evidence was not unduly prejudicial in view of the limiting instructions given by the trial court; moreover, by admitting the similar transaction evidence, the trial court implicitly found that the probative value of the videotape was not outweighed by any potential for prejudice. See Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995). Any issue regarding Lucas’ character was raised, at most, incidentally by the admission of the similar transaction evidence. Relevant and material evidence is not rendered inadmissible merely because it incidentally places a defendant’s character in issue. Obiozor v. State, 213 Ga. App. 523, 525 (3) (a) (445 SE2d 553) (1994).

We disagree with Lucas’ contention that the circumstances surrounding a similar transaction cannot be established by use of a videotape taken at the scene of the incident. We also disagree with his contention that the videotape evidence was rendered cumulative merely because his record of previous conviction was admitted in evidence. The Supreme Court has recognized that a videotape seems to be a common mechanism for presenting representations of motion to the triers of fact. Phagan v. State, 268 Ga. 272, 279 (5) (486 SE2d 876) (1997). A videotape usually will be a more accurate means of depicting motion than either a still photograph or a verbal or written description.

Generally, the state cannot establish the circumstances surrounding a similar transaction incident merely by introducing a certified copy of a conviction. Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991); see also Adams v. State, 208 Ga. App. 29, 33 (3) (a) (430 SE2d 35) (1993) (whole court) (physical precedent only). The state has an obligation to present proof establishing a prima facie case for the admission of similar transaction evidence at trial. Stephens, supra at 469. The state may do this by the introduction of any admissible form of evidence, including both testimonial and demonstrative evidence, as the rules of evidence in this State are designed to facilitate discovery of the truth. See OCGA § 24-1-2. The trial court had discretion whether to admit or exclude the videotape. Furthermore, a trial court may properly exercise its discretion in deciding whether to admit cumulative evidence. Reeb v. Daniels &c. Co., 193 Ga. App. 817, 820 (3) (389 SE2d 367) (1989). Lucas has failed to show that the trial court abused its discretion in admitting the videotape.

Lucas does not enumerate as error the admission into evidence of the certified copies of his 1995 DUI conviction or the testimony of the arresting officer regarding the 1995 incident. “[A]n enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. [Cits.]” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991); see Krebsbach v. State, 209 Ga. App. 474, 475 (2) (433 SE2d 649) (1993). Thus, these issues are not before us on appeal.

Decided September 25, 1998

Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Rebecca G. Simpson, Assistant Solicitor, for appellee.

3. Lucas contends that the trial court erred by denying his motion for mistrial after the state introduced certain prior DUI convictions other than his prior DUI convictions from 1988 and 1995. Lucas asserts that the admission of this evidence violated the court’s pretrial order. This enumeration is without merit.

Lucas has failed to show that the trial court abused its discretion in implicitly denying the motion for mistrial. The trial court concluded that Lucas had opened the door to the admission of evidence to rebut “the defendant’s impression to the jury that he is a man of good character who would not want to hurt anyone or disobey the law by driving under the influence.” Appellant testified that he would know if he had too much to drink to be a safe driver. He also testified that he did not “care to break the law” and did not want “to endanger” anyone. The prohibition against the state’s introduction of character evidence unless and until the defendant places his own character into issue does not preclude use of evidence to disprove facts testified to by the defendant. Francis v. State, 266 Ga. 69, 71 (2) (463 SE2d 859) (1995). The state is permitted to rebut statements of a defendant who testified at trial by disproving the facts to which the defendant testified. Bounds v. State, 207 Ga. App. 665, 666 (428 SE2d 673) (1993). The trial court did not abuse its discretion in overruling Lucas’ motion for mistrial on this issue.

Judgment affirmed.

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


author: Judge Harold R. Banke.

text:
    A98A1438.
    PAK v. THE STATE.
    (507 SE2d 166)
   Judge Harold R. Banke.

After a bench trial, Mark Norman Pak was convicted of two counts of driving under the influence and speeding. He enumerates two errors on appeal.

This case arose early one morning when the arresting officer clocked Pak’s Explorer at 91 mph in a 55 mph zone. After pulling Pak over, the officer noticed a strong odor of alcoholic beverages emanating from the vehicle. He also observed Pak’s bloodshot eyes and unsteadiness on his feet. After Pak failed several field sobriety tests, the officer arrested him for driving under the influence.

At trial, the arresting officer testified that Pak tested positive on the aleo-sensor, a device which was approved by the Director of the Division of Forensic Sciences. The trial court overruled Pak’s objection that absent evidence showing that the device was in fact approved, the foundation was insufficient. Pak also objected to the admission of the results from an Intoxilyzer 5000 test for lack of foundation. Held:

1. Admission of the arresting officer’s comment that the alcosensor test results were positive was not reversible error. The admissibility of an alco-sensor test is contingent on the State proving that the device’s design was approved by the Director of the Division of Forensic Sciences of the Georgia Bureau of Investigation. Aman v. State, 223 Ga. App. 309, 310 (1) (477 SE2d 431) (1996); Channell v. State, 172 Ga. App. 156, 157 (322 SE2d 356) (1984). Here, the arresting officer testified without contradiction that the device he used was approved by the Director of the Division of Forensic Sciences. The fact that he could not name the model or model number went to credibility, not admissibility. See Wesley v. State, 228 Ga. App. 342, 343 (1) (491 SE2d 824) (1997).

2. Pak maintains that the trial court erred in admitting the results of the Intoxilyzer 5000 test. Before the breath test results could be admitted, the State was required to show that the machine was properly maintained and in good working order. OCGA § 40-6-392 (a) (1) (A); Hamilton v. State, 228 Ga. App. 285, 286 (4) (491 SE2d 485) (1997). This foundational burden may be satisfied by introducing certificates of inspection of the Intoxilyzer, but that is not the only method. Id.; Caldwell v. State, 230 Ga. App. 46 (495 SE2d 308) (1997) . Live testimony of an appropriate witness concerning the requisites of OCGA § 40-6-392 (a) (1) (A) may also provide the necessary foundation. Evans v. State, 230 Ga. App. 728, 730 (497 SE2d 248) (1998) (physical precedent only).

Here, the State introduced no such certificates. Instead, it offered proof that the arresting officer was certified to operate the machine and had ensured the machine was working properly before testing Pak’s breath, waiting for it to warm up and advise him of the diagnostics and its readiness. He also testified that the machine was periodically checked for calibration.

On cross-examination, the officer referred to a log book of the machine’s calibration which certified that the machine had been calibrated a few weeks prior to Pak’s arrest and shortly thereafter. The officer testified that the log, which was kept by the machine, showed that the individual who calibrated it had certified its calibration, checked its working components, and had initialed the log to signify such.

Decided September 15, 1998

Reconsideration denied September 28, 1998.

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

Carmen Smith, Solicitor, Karlise Y. Grier, Jody L. Peskin, Assistant Solicitors, for appellee.

This evidence is substantially the same as that offered into evidence to show foundation in Evans, 230 Ga. App. at 730. In Evans, we concluded that, “although marginal, the foundation proven was adequate for admission of the test results.” Id. That conclusion applies equally in the instant case. See Caldwell, 230 Ga. App. at 46.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

       The less safe to drive count merged with the count accusing Pak of driving with an alcohol concentration of 0.10 or more.

       Absent the evidence of the log book Pak elicited on cross-examination, we question whether the foundation would have been adequate. See Oglethorpe Power Corp. v. Seasholtz, 157 Ga. App. 723, 724-725 (1) (278 SE2d 429) (1981).


author: Smith, Judge.

text:
    A98A1487.
    DAWSEY v. THE STATE.
    (507 SE2d 786)
   Smith, Judge.

Joseph James Dawsey was convicted of the offenses of aggravated battery upon a police officer and obstruction of an officer. Sentence was entered on these charges. Dawsey moved for new trial based in part on the trial court’s failure to instruct the jury that knowledge by the defendant that the victim was a police officer was an essential element of aggravated battery on a law enforcement officer. Apparently finding this contention to have merit, the trial court later resentenced Dawsey for the offense of aggravated battery but denied Dawsey’s motion for new trial as to all other grounds. Dawsey appeals. We find no error, and we affirm.

1. Dawsey contends the trial court erroneously failed to grant his motion for directed verdict. We do not agree. Construed to uphold the verdict, evidence was presented that Deputy John Daniel of the Worth County Sheriff’s Department responded to a domestic violence call at a trailer park on the night of December 6, 1996. He parked at the trailer lot next to the lot where the disturbance had occurred, and a man ran toward him stating, “ ‘[T]he guy over there is crazy, he done tried to beat me up.’ ” Daniel testified that he shined his flashlight in the direction pointed out by this individual and saw Dawsey coming from behind a tree. Because Daniel believed Dawsey would harm the other man at the scene, he said, “ ‘[Wjhoa, man, whoa, what’s going on?’ ” He shined his flashlight on Dawsey and asked, “ £[W]here’s the gun?’ ” Dawsey then jumped on Daniel, and the two began fighting. Dawsey, who was acting like a “wild man,” pinned Daniel to the ground, restrained the hand Daniel was using to hold his pistol, and bit Daniel’s cheek; Daniel testified that Dawsey “latched onto” his face, and an officer who was dispatched to the scene to assist Daniel observed “a large piece of meat hanging out of his face.” Daniel also “received a black eye when [Dawsey] tried to gouge [his] eyes out.”

Dawsey contends a directed verdict was required because the State failed to prove that the victim was identified as a peace officer or that Dawsey had any reason to know that the victim was a peace officer. This argument is moot because the trial court resentenced Dawsey to the lesser offense of aggravated battery. But even assuming that the trial court had not resentenced Dawsey, denial of Dawsey’s motion was authorized. The evidence was sufficient to establish that Dawsey should have known Daniel was a police officer, as evidence was presented that Daniel was in uniform on the night of the incident. See generally Chandler v. State, 204 Ga. App. 816, 822 (4) (421 SE2d 288) (1992).

2. For the same reasons argued by Dawsey in his enumeration concerning the trial court’s denial of his motion for directed verdict, he also argues that the evidence was insufficient to permit a rational trier of fact to find him guilty of the crimes charged against him. For the reasons discussed in Division 1, we find no merit in this argument.

3. Dawsey enumerates as error the trial court’s refusal to admit his testimony concerning the alleged identity of a substance he drank prior to the altercation with Daniel. At trial Dawsey testified, stating that he and a man named Michael Thrower, whom he had not met prior to December 6, 1996, went inside the trailer of Michael Morris. Dawsey testified that the three of them smoked marijuana and that he inhaled a line of cocaine. He stated that Morris then poured each man a drink he claimed to be bourbon, which Dawsey drank. According to Dawsey, he and one of the two men began “rassling” outside, a “flash” hit him in the face, and he “just went after the flash.” He claims on appeal that his sole defense was that his assault on Daniel, which occurred after he drank the beverage, resulted from involuntary intoxication. At trial, he sought to testify that Michael Thrower told him after the incident that the drink he ingested was “mushroom tea,” which, according to Daniel’s testimony, is a hallucinogen. The trial court sustained the State’s objection to this testimony based on hearsay grounds.

(a) Dawsey argues the statement was admissible on the basis of necessity, an exception to the hearsay rule permitting “the admission of hearsay when the declarant is unavailable and there exists a circumstantial guaranty of the trustworthiness of the offered evidence.” (Citation and punctuation omitted.) Livingston v. State, 268 Ga. 205, 211 (486 SE2d 845) (1997). But Dawsey did not seek admission of this statement on the basis of necessity at trial, and our law is well settled that “[g]rounds which may be considered on motion for new trial or on appeal are limited to those which were raised at trial.” (Citations and punctuation omitted.) Wilson v. State, 227 Ga. App. 59, 63 (3) (488 SE2d 121) (1997).

Moreover, even if Dawsey had properly argued as ground for admission the necessity of Thrower’s alleged statement, we cannot say that reversal is required. The jury learned from Dawsey himself that the substance he ingested could have been mushroom tea. He testified twice that he thought the drink “was some alcohol, not mushroom tea” or “a drug.” And evidence was presented that mushroom tea is a hallucinogen. Even assuming arguendo that error occurred, Thrower’s alleged statement was therefore cumulative of other evidence admitted without objection at trial, and the error was harmless. See generally Fields v. State, 179 Ga. App. 116, 117 (345 SE2d 662) (1986).

(b) Dawsey also relies on cases such as Reeves v. State, 194 Ga. App. 539 (391 SE2d 35) (1990), for the proposition that “[a] witness may testify as to what he saw and heard in the defendant’s presence.” (Citations and punctuation omitted.) Id. at 540. But the statement Dawsey sought to introduce was not that of a third party who heard a statement in Dawsey’s presence. It was instead, Dawsey’s self serving allegation concerning a statement he claimed he heard.

4. Dawsey contends he was denied effective assistance of counsel by trial counsel’s failure to make an offer of proof when the trial court excluded as hearsay his testimony concerning the substance he ingested. He argues that his counsel “made no attempt to make an offer of proof as to what evidence he sought to place before the jury to allow the trial court to make an informed ruling.”

Decided September 28, 1998.

L. Clark Landrum, for appellant.

C. Paul Bowden, District Attorney, Nancy G. R. Smith, Assistant District Attorney, for appellee.

To show that trial counsel was ineffective, an appellant must show both that counsel’s performance was deficient and that the deficiency so prejudiced his defense that a reasonable probability exists that the outcome of trial would have been different but for the deficiency. Hassan v. State, 231 Ga. App. 783, 784 (500 SE2d 644) (1998). See also Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997). Assuming without deciding that trial counsel’s performance was deficient in that he failed to make an offer of proof concerning the necessity exception to the hearsay rule, Dawsey has not shown that he was prejudiced by this failure. As discussed in Division 3 (a), evidence was introduced that Dawsey did not know that the substance he drank was mushroom tea. The State also presented evidence that mushroom tea is a hallucinogen. Furthermore, the record is replete with references to Dawsey’s unusual behavior after he drank the substance, and evidence was presented that this behavior was consistent with an individual under the influence of a drug. Evidence of Dawsey’s involuntary intoxication was presented, and the jury nevertheless found Dawsey guilty. We therefore cannot say that a new trial is warranted on the basis of ineffective assistance of counsel.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       One of the officers dispatched to the scene after Daniel called for assistance testified that upon his arrival he saw blood on Daniel’s cheek and uniform.

       Morris testified, denying that Dawsey came into his trailer, participated in any drug activity involving marijuana or cocaine, or was given any “mushroom tea.”

       We note that Reeves and other cases were modified by Jarrett v. State, 265 Ga. 28 (453 SE2d 461) (1995) insofar as they stood for the proposition that the acquiescence or silence of a defendant constitutes an admission.


text:
    A98A1515.
    SCOTT et al. v. TAYLOR.
    (507 SE2d 798)
   Judge Harold R. Banke.

One day before the expiration of the statute of limitation, Roy Scott III, filed an action for personal injuries on his own behalf and for Roy Scott IV, and Calvin Scott (collectively “Scott”). Scott’s complaint was not served on Grace Elizabeth Taylor until 32 days later. The trial court dismissed the action finding that Scott was guilty of laches for failing to use due diligence in obtaining service. Scott appeals. Held:

A trial court’s exercise of discretion in determining the diligence of a plaintiff in perfecting service after the five-day safe harbor provision of OCGA § 9-11-4 (c) will not be disturbed absent an abuse of discretion. Morse v. Flint River Community Hosp., 215 Ga. App. 224 (450 SE2d 253) (1994). Where, as here, a complaint is filed near the expiration of the applicable statute of limitation and service is made after the five-day statutory grace period provision, the plaintiff bears the burden of showing that he exercised due diligence in perfecting service. Cantin v. Justice, 224 Ga. App. 195, 196 (480 SE2d 250) (1997); OCGA § 9-11-4 (c). See Hossain v. Tohme, 205 Ga. App. 538, 539 (1) (423 SE2d 4) (1992). Where a plaintiff can show that due diligence was exercised in perfecting service, then the service will relate back to the time of the filing of the complaint, effectively tolling the statute of limitation. Starr v. Wimbush, 201 Ga. App. 280 (410 SE2d 776) (1991). But where a delay occurs then the plaintiff must show his lack of fault for that delay. Devoe v. Callis, 212 Ga. App. 618, 619 (1) (442 SE2d 765) (1994).

Decided September 28, 1998

Shaffer, Raymond & Dalton, Philip T. Raymond III, for appellants.

Notwithstanding Scott’s claim to the contrary, this is not a case where Scott was penalized for a delay caused by the sheriff. Taylor testified, without contradiction, that on February 7, 1997, she moved across the street from 1145 Kathleen Bynum Drive to 1142 Kathleen Bynum Drive. Scott’s complaint, filed more than three and one-half months after Taylor moved, incorrectly listed the old address. Compare Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997) (plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers). Both the complaint and entry of service contained an incorrect address. Compare Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350 (1) (408 SE2d 111) (1991) (dismissal reversed because plaintiffs timely provided sheriff’s department with proper address).

Scott offered no evidence showing any effort was made to verify or validate Taylor’s address. See Devoe, 212 Ga. App. at 619 (1). Nor did Scott offer any explanation as to why the wrong address appeared on the complaint. Nor did Scott show that the sheriff’s office was contacted to ascertain the reason for the delay in effectuating service. In light of the apparent dearth of evidence of due diligence, we are unable to conclude that the trial court abused its discretion in dismissing the complaint. Morse, 215 Ga. App. at 224.

Judgment affirmed.

Johnson, P. J, and Smith, J., concur.

Martin, Snow, Grant & Napier, Cubbedge Snow III, Blair K. Cleveland, for appellee.


text:
    A98A1542.
    STRICKLAND v. HOME DEPOT.
    (507 SE2d 783)
   Smith, Judge.

This appeal arises out of the trial court’s dismissal of Brenda Strickland’s personal injury lawsuit for failure to show due diligence in serving the complaint. We find no error and affirm.

Within the statute of limitation for filing a personal injury claim, Strickland filed suit in the State Court of Chatham County on October 14, 1996, alleging that she slipped and fell inside a Home Depot store on December 17, 1994. Strickland alleged in her complaint that Home Depot could be served through its registered agent and recited an Atlanta address of 2727 Paces Ferry Road. Although Strickland does not dispute that this address is in Cobb County, the summons and complaint were forwarded by the State Court Clerk of Chatham County to the Fulton County Marshal’s Office two days later for perfection of service on Home Depot’s registered agent at the address specified in the complaint. Service was not perfected until four months later, as evidenced by a duplicate copy of the sheriff’s entry of service appearing in the record showing that a Cobb County Deputy served Home Depot on February 27, 1997. The trial court granted Home Depot’s motion to dismiss based on Strickland’s failure to exercise due diligence in serving the complaint.

Strickland challenges this ruling, stating in her appellate brief that she “reasonably assumed” the complaint and summons would be properly served after she filed the documents in state court, because she “provided the correct street address and location to the process server.” She further recites that on February 2, 1997, the Fulton County Sheriff’s Office executed its entry of service form showing that Home Depot’s address was Cobb County and that immediately after receiving this entry of service, she attempted service through the Cobb County Sheriff’s Department. Strickland argues that less than 30 days elapsed from the time she received the Fulton County Sheriff’s entry of service form placing her on notice of the incorrect county until service was perfected in Cobb County and that she therefore exercised due diligence in serving the complaint.

We find no merit in Strickland’s arguments. The burden on a plaintiff who has failed to serve a complaint within the statute of limitation is well established: “When service is made outside the limitation period, the plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. The plaintiff must also show the failure to timely serve was not her fault.” (Citations and punctuation omitted.) Mitchell v. Hamilton, 228 Ga. App. 850-851 (493 SE2d 41) (1997). See also Robison v. Green, 228 Ga. App. 27, 28-29 (2) (491 SE2d 95) (1997).

The record is silent as to why the summons and complaint were forwarded to Fulton County rather than Cobb County, and in her argument to the trial court, Strickland attempted to place responsibility on the state court and the marshal’s office for the error by stating that she paid the clerk’s office a fee to perfect service on Home Depot at the address listed for the registered agent and that the actions of the marshal’s office were outside her control. But Strickland herself bore the burden of ascertaining the correct county for service and of showing due diligence. “ ‘The burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible.’ ” Corley v. Gilley, 205 Ga. App. 660 (423 SE2d 55) (1992). And “when a plaintiff is aware of a defendant’s correct address, she must also determine the correct county in which that address is found, otherwise her actions show a lack of diligence.” (Punctuation omitted.) Robison at 29. See also Cantin v. Justice, 224 Ga. App. 195, 196 (480 SE2d 250) (1997); Nee v. Dixon, 199 Ga. App. 729 (405 SE2d 766) (1991).

Contrary to Strickland’s argument that she provided the correct “location” for service to the process server, the record does not show that she took any affirmative action to determine the proper county for service; it does not, for example, “disclose that she consulted readily available references such as county property records, postal authorities, sheriff or other law enforcement agencies, or voting registration officials to ascertain the location of appellee’s address and effect prompt service. [Cit.]” (Punctuation omitted.) Robison at 29. Strickland cannot excuse this lack of diligence by attempting to place blame on others. Nee, supra at 730. See also McManus v. Sauerhoefer, 197 Ga. App. 114, 116 (397 SE2d 715) (1990); Walker v. Hoover, 191 Ga. App. 859, 861 (383 SE2d 208) (1989). Unlike cases such as Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350 (408 SE2d 111) (1991) and Jackson v. Nguyen, 225 Ga. App. 599, 600 (484 SE2d 337) (1997), in which plaintiffs provided the proper address for service of process to the sheriff’s department and therefore “did all that was initially expected of them,” Strickland failed to provide the proper location for service of process by ascertaining the correct county for service. She therefore failed to meet her burden of exercising due diligence.

Starr v. Wimbush, 201 Ga. App. 280 (410 SE2d 776) (1991), the sole case cited by Strickland in support of her argument that she exercised due diligence, does not demand a different conclusion. In Starr, in an order permitting service by publication, the trial court found due diligence in attempting to serve defendant. Id. at 282. After this order was entered, plaintiff perfected service. A different trial judge then concluded that due diligence in service had not occurred and dismissed the complaint. Id. at 281. This court stated that if the record showed only plaintiff’s “steady efforts” to effect service, the trial court’s ruling would have been correct. Id. at 281-282. But we went on to note that due diligence had previously been found in the order permitting service by publication and that diligence in service was measured from the date of that order until the time service was perfected. We held that because “additional steps,” id. at 282, were taken to locate defendant between issuance of the order permitting service by publication and the time defendant was served less than two months later, the trial court abused its discretion in dismissing the complaint.

But here, no finding of due diligence has previously been entered, and more importantly, Strickland failed to exercise due diligence before she filed her complaint by failing to determine the correct county for service. See Nee, supra at 730 (duty on plaintiff to ascertain proper county for service before filing suit). Nor has she shown that she exercised due diligence after she learned the correct location for serving Home Depot. Although Strickland asserts in her appellate brief that she acted diligently to perfect service after learning from a return of service form dated February 2 that service could not be perfected in Fulton County, the February 2 form document does not appear in the record. Strickland simply has provided no evidence supporting her allegation that she learned of the mistake on February 2. In addition, her brief contains nothing more than bare, unsupported allegations that she acted diligently once she learned of that mistake. And assertions of fact unsupported by evidence cannot be considered by this Court. See, e.g., Zaytzeff v. Safety-Kleen Corp., 222 Ga. App. 48, 49 (1) (473 SE2d 565) (1996).

Because the record supports the conclusion that Strickland failed to exercise due diligence in determining the correct county for service and that she failed to exercise due diligence in serving the complaint once she learned that the correct county for service was Cobb County rather than Fulton County, we cannot say that the trial court abused its discretion in granting Home Depot’s motion to dismiss.

Decided September 28, 1998.

Joyce M. Griggs, for appellant.

Mosley, Finlay son & hoggins, Carroll G. Jester, Jr., for appellee.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

       The statute of limitation would have expired two years from the date of Strickland’s injury. OCGA § 9-3-33.


text:
    A98A1550.
    CHERGI v. THE STATE.
    (507 SE2d 795)
   Judge Harold R. Banke.

Paul Eugene Chergi was convicted of armed robbery, possession of cocaine, felony obstruction of an officer, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. He enumerates four errors on appeal.

This case arose when Chergi robbed the assistant manager of a local Shoney’s Restaurant at gunpoint in the presence of several witnesses. Piefer v. State, 228 Ga. App. 385 (491 SE2d 836) (1997) (evidence is reviewed on appeal in the light most favorable to the verdict). Just before the robbery, a security guard at a nearby construction site saw a red Beretta with some damage to the right side park behind a donut shop next to the Shoney’s. A young white man got out and walked to the Shoney’s. After hearing the car speed from the parking lot, the guard was informed by a police investigator that the Shoney’s had been robbed. The guard connected the robber to the Beretta and informed the police.

Later that night, Chergi and his girl friend drove to Roswell Road and purchased some cocaine, then went to the Mariott Marquis where they smoked cocaine all night. They returned to the girl friend’s apartment and then left to purchase more cocaine.

On their way back, one of the arresting officers spotted the car and radioed for assistance. After the officer pulled Chergi from the car and prepared to frisk him, Chergi ran and the officer called the K-9 unit. Eventually, Chergi was found, subdued, and arrested. Officers found a crack pipe containing cocaine in the Beretta. Held:

1. Chergi argues that the trial court’s failure to sever the obstruction and possession charges from the armed robbery and weapons charges requires reversal. We disagree.

Severance is mandated when offenses are joined solely because of their similarity, but not when offenses are joined because they are based on a series of acts connected together, Loyless v. State, 210 Ga. App. 693, 695 (3) (436 SE2d 814) (1993); Sabree v. State, 195 Ga. App. 135, 137 (1) (392 SE2d 886) (1990). Joinder of offenses based on their connectedness is permissible unless it precludes a fair trial. Sabree, 195 Ga. App. at 137 (1).

Here, a reasonable factfinder could infer a connection between the armed robbery, the purchase of cocaine, and Chergi’s flight to avoid prosecution. Id. The association between the high cost of drugs and the need for funds to purchase them is well recognized. Because these offenses clearly were not joined solely for their similarity, we must conclude that the trial court did not abuse its discretion in denying the motion for severance. Id.; Loyless, 210 Ga. App. at 695; see Carter v. State, 261 Ga. 344 (1) (404 SE2d 432) (1991).

2. Chergi argues that the trial court erred by permitting the State to introduce identification testimony which was purportedly tainted. He argues that the in-court identification procedure was flawed because one of the witnesses, who could not identify him in the photo lineup, was asked to review those photos and then make an in-court identification, and the defense investigator was ordered to move from counsel table, purportedly due to his resemblance to Chergi.

While Chergi broadly argues that this procedure tainted all the witnesses who offered identification testimony, the witnesses at issue were unable to identify Chergi from the photo lineup and admitted so before the jury. Only two of the witnesses subsequently identified Chergi at trial, and one of them had not viewed the photographic lineup. These are the only witnesses who arguably could have harmed Chergi. See Williams v. State, 202 Ga. App. 485, 486 (2) (414 SE2d 712) (1992) (both harm and error are necessary for successful appeal).

Pretermitting whether the allegedly tainted identification testimony was cumulative, the evidence at issue was admissible. See Thompson v. State, 201 Ga. App. 646, 648 (3) (411 SE2d 886) (1991). A witness’ failure to make a pretrial identification of the defendant merely raises an issue of weight, and does not affect the admissibility of a subsequent in-court identification. Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135) (1983); West v. State, 218 Ga. App. 341 (1) (461 SE2d 300) (1995). The witnesses who identified Chergi at trial were subject to cross-examination concerning their identification and their ability to observe Chergi during the crime. Ralston, 251 Ga. at 684 (2). Having considered their testimony, we find that the in-court identifications had independent origins, in that both witnesses were standing at or near the register when Chergi approached it and pulled out his gun. Munn v. State, 208 Ga. App. 674, 676 (5) (d) (431 SE2d 447) (1993); Johnson v. State, 214 Ga. App. 455, 458 (1) (448 SE2d 80) (1994).

3. The court’s failure to instruct the jury that the .25 caliber semiautomatic pistol introduced into evidence was only a replica of the firearm at issue does not require reversal. Replicas of weapons used in the commission of a crime are generally admissible when it is undisputed that a similar weapon was used. Stiles v. State, 216 Ga. App. 308, 309 (2) (454 SE2d 189) (1995). It is undisputed that the weapon used in the robbery, described by witnesses as a small semiautomatic, was similar to that introduced here as demonstrative evidence. Rivers v. State, 225 Ga. App. 558, 562 (4) (484 SE2d 519) (1997). Inasmuch as the weapon was admissible, the investigator testified that he had not recovered the gun used in the robbery, and the court gave defense counsel permission to argue in closing that the real pistol had not been recovered, we fail to see how Chergi was harmed by the absence of a charge on this issue. See Miller v. State, 226 Ga. App. 509, 514 (3) (486 SE2d 911) (1997) (both harm and error necessary for successful appeal). We need not reach Chergi’s remaining arguments on this matter because they were not raised in the enumeration. Guest v. State, 229 Ga. App. 627, 628 (1) (494 SE2d 523) (1997).

Decided September 28, 1998.

Jill L. Anderson, Lee W. Fitzpatrick, for appellant.

4. Chergi contends that the evidence of cocaine possession, consisting solely of uncorroborated testimony from his girl friend, was insufficient to support his conviction. We disagree.

Accomplice testimony must be corroborated to support a conviction. OCGA § 24-4-8. But only slight evidence of participation in the offense from an extraneous source will provide the necessary corroboration, which may consist entirely of circumstantial evidence. Moody v. State, 232 Ga. App. 499, 503 (2) (502 SE2d 323) (1998).

Here, Chergi’s girl friend testified that he purchased cocaine after stopping at the Shoney’s and smoked it later that night at the Marriott Marquis using a crack pipe which was subsequently recovered in the Beretta. Another crack pipe was found in a pair of Chergi’s pants sitting in a basket at his girl friend’s apartment. The arresting officer testified about Chergi’s flight. Id. at 502. Further, a chemical test revealed a cocaine metabolite in Chergi’s blood. This evidence, viewed in the light most favorable to the verdict, was sufficient to establish all the elements of cocaine possession. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson, P. J., and Smith, J, concur.

David McDade, District Attorney, Jeffrey L. Ballew, Assistant District Attorney, for appellee.

       Closing arguments were not transcribed.


text:
    A98A1606.
    GORDON v. THE STATE.
    (507 SE2d 269)
   Judge Harold R. Banke.

David E. Gordon was convicted of burglary, possession of a firearm during the commission of a crime, carrying a concealed weapon, possession of a firearm by a convicted felon, interference with government property and escape. Gordon was acquitted on the charge of possession of burglary tools.

When viewed in the light most favorable to the verdict, the evidence established the following facts. Gordon entered a Piggly Wiggly store near closing time and waited in a back restroom until the store closed. About 1:00 a.m., an assistant manager, Todd Sledge, was awakened by a hang-up phone call. Using caller id, Sledge discovered that the call originated from his own locked office. Gordon later admitted that he had placed the call because he wanted Sledge to let him out of the locked store. Sledge contacted police to meet him at the store. The responding officers intercepted Gordon still inside the store and holding a hammer. Upon searching Gordon, police found two screwdrivers and a fully loaded Titan .25 semi-automatic pistol in the pocket of his trousers. The officers also found five packs of Newport cigarettes and eight books of stamps in Gordon’s jacket. Part of the ceiling of Sledge’s office had been ripped out and a roll of quarters and some stamps were missing from a bank bag on Sledge’s desk. Sledge identified the items seized as store property.

After Gordon was placed in handcuffs in the rear of a patrol vehicle, he managed to rip out the inside panel of a door and escape. About 30 minutes later, police recaptured Gordon a few blocks away, hiding inside a large doghouse in a residential backyard. Gordon was still in handcuffs.

The sole witness for the defense was Gordon who claimed that he committed the burglary because he needed to repay money he had lost. According to Gordon, in April or May of 1996, he had agreed to transport $50,000 in drug money to Alabama for someone. When he stopped for breakfast while en route, he left the $50,000 in his unlocked truck. Upon his return, the money was missing. Gordon claimed that the owner of the money had threatened to hurt his son and that the owner’s friends dropped him off at the Piggly Wiggly. No witnesses corroborated Gordon’s version of events. Gordon admitted that he removed a section of ceiling tiles because he “was fixing to try to get out.” The trial court refused to give Gordon’s requested instruction on coercion. Held:

Decided September 28, 1998.

John F. McClellan, Jr., for appellant.

In his sole enumeration of error, Gordon contends that the trial court erred in failing to charge on coercion and by prohibiting his counsel from arguing coercion to the jury.

Where any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted to the evidence or not reasonably raised or authorized by the evidence, denial of the charge request is proper. Harris v. State, 202 Ga. App. 618, 621 (4) (c) (414 SE2d 919) (1992). See Hill v. State, 259 Ga. 557, 558 (3) (b) (385 SE2d 404) (1989).

In this case, Gordon wanted the court to charge, “[a] person is not guilty of a crime, except murder, if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” (Emphasis supplied.) OCGA § 16-3-26. The fear of injury must be reasonable and the danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act. Head v. State, 191 Ga. App. 262 (1) (381 SE2d 519) (1989). Coercion is no defense if the person has any reasonable way, other than committing the crime, to escape the threat of harm. Barnes v. State, 178 Ga. App. 205, 206 (1) (342 SE2d 388) (1986). Unless the danger of present and immediate violence coincides with the commission of the forbidden act, a trial court may refuse to give a charge on coercion. Holder v. State, 194 Ga. App. 790, 794 (4) (391 SE2d 808) (1990).

Here, even assuming solely for the sake of analysis that Gordon’s version of events is true, then Gordon was acting under no immediate threat of danger when he was alone inside a locked building with access to a functioning phone while the whereabouts of those who had allegedly posed a threat to him was unknown. In fact, Gordon conceded that nobody was outside the building with a gun. Since none of Gordon’s evidence related to present and immediate violence toward him so as to justify his criminal conduct, and there was no showing of a reasonable fear of immediate violence, the trial court correctly declined to give the requested charge. Slater v. State, 185 Ga. App. 889, 890 (2) (366 SE2d 240) (1989).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.


text:
    A98A1657.
    NICHOLS v. THE STATE.
    (507 SE2d 793)
   Judge Harold R. Banke.

On appeal, Jesse Ivan Nichols contests his conviction for trafficking methamphetamine.

After the jury returned a verdict of guilty, Nichols immediately requested that the jury be polled. The trial court complied but the clerk called upon only eleven of twelve jurors, thus, omitting one juror. Nichols’ counsel posed no objection to this apparent oversight. Three weeks later, at the sentencing hearing, Nichols orally moved for a mistrial or a reduction to a conviction for possession. To support the motion, Nichols submitted the affidavit of the juror who had not been polled by the court. This juror attested that she wished to change her verdict to guilty of possession. Nichols also offered the affidavits of two other members of the jury in which they stated that they desired to change their verdict to guilty of possession. All three affidavits declared the verdict a “gross miscarriage of justice.” Nichols appeals the denial of this motion. Held:

In his sole enumeration of error, Nichols contends that the trial court erred by not sua sponte declaring a mistrial or by refusing to set aside the guilty verdict due to the polling error. Nichols seeks to buttress this argument with the affidavits.

The record, without question, indicates that defense counsel was present during the polling of the jury. Because no objection was asserted at the time of the polling, there was no error as a matter of law. Thomas v. State, 268 Ga. 135, 141 (18) (485 SE2d 783) (1997). Accord Tucker v. State, 252 Ga. 263 (349 SE2d 172) (1984); Awtrey v. State, 175 Ga. App. 148, 152 (6) (332 SE2d 896) (1985).

Nor do the post-verdict affidavits authorize a different result. As a general rule, “affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 17-9-41. Exceptions to this rule are narrowly permitted. See Gardiner v. State, 264 Ga. 329, 332 (2) (444 SE2d 300) (1994) (post-verdict affidavits may be considered where extrajudicial and prejudicial information was improperly brought to the jury’s attention or where non-jurors interfered with the jury’s deliberations).

Decided September 28, 1998.

Mark T. Sallee, for appellant.

Darrell E. Wilson, District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

Here, the affidavits offered were not admissible to impeach the verdict because they did not fall within any exception to the rule barring post-trial testimony of this nature. Moore v. State, 224 Ga. App. 797, 801 (6) (481 SE2d 892) (1997). See Spencer v. State, 260 Ga. 640, 643 (3) (398 SE2d 179) (1990).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       The court’s instructions afforded the jury the option to convict Nichols of the offense of possession.


author: Johnson, Presiding Judge.

text:
    A98A1845.
    MACKEY v. THE STATE.
    (507 SE2d 482)
   Johnson, Presiding Judge.

Following a bench trial, Mitchell Mackey was found guilty of possession of cocaine. He appeals this conviction.

According to Mackey, he went to his mother’s home after work and allowed his brother to borrow his car for a short time. Mackey later drove to visit his girlfriend and agreed to drive two of her friends home. He was letting the second passenger out of the car around 1:00 a.m. when he was pulled over for improperly stopping in the roadway. OCGA § 40-6-203. The officer testified that Mackey smelled of alcohol and admitted that he had been drinking that evening. According to Mackey, he stated that he had not been drinking. Mackey was unable to provide a valid driver’s license. The officer asked Mackey for consent to search the car for drugs, alcohol, guns or other contraband. Mackey began to act in a nervous manner and denied consent to search his car. The officer then arrested Mackey for stopping in the middle of the roadway and driving without a license and placed him in the patrol car. A search incident to the arrest yielded less than one gram of cocaine under the seat on the driver’s side of the car.

At trial, the judge questioned the attorneys as to whether guilty knowledge could be inferred from Mackey’s refusal to consent to the search, thereby providing additional circumstantial evidence of the possession of the contraband. Ultimately, the trial court concluded that Mackey’s refusal to consent to the search was not evidence of his guilt, but was a circumstance that could be considered by the court in addition to the other evidence. The trial judge stated that Mackey “comes clear on the equal access rule except where he fails is that his refusal implies guilty knowledge, which is circumstantial evidence that is considered by the Court in addition to all of the other evidence. And I would say that in the absence of his refusal to permit the search, the equal access rule would apply and he would’ve been found not guilty.” Mackey argues that the trial court erred in finding him guilty merely because he asserted his Fourth Amendment right and refused the officer consent to search his car. We agree.

The equal access rule is as follows: “If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the jury.” (Citation, punctuation and emphasis omitted.) Griggs v. State, 198 Ga. App. 522, 523 (402 SE2d 118) (1991).

In the present case, the only evidence linking Mackey to the cocaine was the proximity of the contraband to Mackey in a vehicle which his brother had borrowed earlier, Mackey’s refusal to consent to a search of the vehicle, and the nervousness exhibited by Mackey at the time of his refusal. As the trial judge acknowledged, the other evidence which he considered along with Mackey’s refusal to permit the search, alone, was not sufficient to overcome the equal access rule. Under the equal access rule, mere proximity to the cocaine is insufficient to support a conviction for possession of cocaine. See Griggs, supra. In addition, that Mackey acted nervous when the officer requested permission to search his vehicle is insufficient to authorize his conviction for possession of cocaine. See Hughes v. State, 215 Ga. App. 6, 9 (1) (449 SE2d 547) (1994). The evidence was insufficient to enable a rational trier of fact to find Mackey guilty beyond a reasonable doubt of possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

We reject the state’s argument that this case is analogous to a defendant’s refusal to submit to a blood or urine test for determining alcohol or drug content. We have previously held that such a refusal in a driving under the influence context may be considered as positive evidence creating an inference that the test would show the presence of the prohibited substance. See Brooks v. State, 187 Ga. App. 194, 195 (1) (369 SE2d 801) (1988). This holding was purportedly limited in Brinson v. State, 232 Ga. App. 706 (503 SE2d 599) (1998) (physical precedent only), where it was stated that evidence of a defendant’s refusal to submit to such a test, alone, is insufficient to sustain a conviction of driving under the influence of drugs. However, these driving under the influence holdings follow the legislature’s mandate that such evidence is admissible in evidence. See OCGA § 40-6-392 (d). In addition, these cases also show facts other than a mere refusal to consent to a search plus an officer’s testimony that the individual appeared “nervous.”

Decided September 28, 1998.

D. Duston Tapley, Jr., for appellant.

Richard A. Malone, District Attorney, Lance J. Hamilton, Assistant District Attorney, for appellee.

A defendant’s refusal to consent to a warrantless search of his vehicle or other property is quite a different issue. A refusal of permission to search is analogous to the assertion of the privilege against self-incrimination. It is forbidden to “parade [a witness] in front of the jury for the sole purpose of having him invoke the Fifth Amendment. [Cit.]” Sweat v. State, 226 Ga. App. 88, 89 (2) (485 SE2d 259) (1997). By analogy, an individual should be able to invoke his Fourth Amendment rights without having his refusal used against him at trial. Moreover, the legislature has not yet stated that such a refusal is admissible against a defendant. Mackey’s refusal to consent to the search cannot be used as evidence of guilty knowledge. Since the other evidence alone is insufficient to support Mackey’s conviction for possession of cocaine, his conviction must be reversed.

Judgment reversed.

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


author: Ruffin, Judge.

text:
    A98A0902.
    McKAY v. THE STATE.
    (507 SE2d 484)
   Ruffin, Judge.

A jury found Tyrone McKay guilty of selling marijuana in violation of OCGA § 16-13-30 (j) (1) (Count 1) and selling marijuana within 1,000 feet of a housing project in violation of OCGA § 16-13-32.5 (Count 2). The trial court sentenced McKay as a recidivist. McKay appeals, asserting (1) there was insufficient evidence to support his convictions, (2) Count 2 of the indictment was insufficient, and (3) the State failed to prove the voluntariness of prior pleas for use in recidivist sentencing. For reasons which follow, we affirm.

1. “ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the record shows undercover agents Quarterman and Lucas drove past an unoccupied building located at 603 Emerald Drive. Agent Quarterman noticed three individuals seated in a white Buick which was parked in front of the building. He also saw Tyrone McKay and Akeem Williams standing outside of the car facing one another. Quarterman testified that, after parking behind the Buick, he “observed Mr. McKay pass Mr. Williams one bag of marijuana, and . . . Mr. Williams pass Mr. McKay some paper currency.” Quarterman witnessed the exchange from a distance of approximately ten to fifteen feet. Quarterman testified that McKay and Williams were standing approximately 20 feet from the building located at 603A Emerald Drive at the time of the exchange.

When Williams started to walk toward the Buick, Quarterman drove his vehicle alongside the Buick. As Williams entered the right rear passenger compartment of the Buick, Quarterman saw him holding the bag of marijuana in his right hand. When the Buick drove away, Quarterman followed. He also called a “reaction take-down team” and provided them with a description of the Buick. When the reaction take-down team stopped the Buick approximately two blocks away, Quarterman exited his undercover vehicle, approached the rear passenger compartment of the Buick, opened the door, and asked Williams to step out. When Williams stepped out, “he dropped the bag of marijuana to the ground.” Quarterman retrieved it and arrested Williams. The contents of this bag tested positive for the presence of marijuana.

After arresting Williams, Agents Quarterman and Lucas, along with two other agents, returned to 603 Emerald Drive and found McKay standing in front of the building. When Quarterman approached McKay, he stated “Police! I need to talk to you for a second.” McKay immediately raised his hand and said, “I didn’t sell my man no weed.” The agents then placed McKay under arrest.

Jeffrey Barker, the chief construction inspector for the Housing Authority of Savannah, testified that State’s Exhibit 1 was a copy of a map for Frazier Homes and that Frazier Homes is a public housing project. Barker explained that the map was prepared from blueprints which were drawn to scale and prepared by architects. Barker further testified that he was personally familiar with the area depicted in Exhibit 1 and that it appeared to be accurate and correct. These blueprints show a building located at 603A and 603B Emerald Drive. This exhibit was admitted into evidence.

We find this evidence sufficient to support McKay’s convictions under OCGA §§ 16-13-30 (j) (1) and 16-13-32.5. Jackson v. Virginia, supra.

2. McKay contends Count 2 of the indictment fails to allege a violation of OCGA § 16-13-32.5 (b). Count 2 charges McKay with the offense of “SALE OF MARIJUANA WITHIN 1000 FEET OF A HOUSING PROJECT OCGA § 16-13-32.5.” It further alleges that “TYRONE A. MCKAY AKA JAUDON ANTHONY MCKAY ... on or about September 27, 1995, did unlawfully sell marijuana, within 1000 feet of a housing project. . . .” McKay asserts Count 2 of the indictment is insufficient because it alleges an unlawful sale of marijuana, and OCGA § 16-13-32.5 (b) makes it unlawful only to “manufacture, distribute, dispense, or possess with intent to distribute . . . marijuana . . .in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project. . . .” OCGA § 16-13-32.5 (b).

We must first determine whether this enumeration has been preserved for our review. The State claims McKay failed to preserve this issue because he raised it for the first time on appeal. McKay contends he preserved it through a motion for directed verdict of acquittal. However, the record shows that McKay never challenged the validity of the indictment in this motion. McKay did file a one-page motion for new trial in which he asserted “[t]he verdict is contrary to law.” After a hearing, the trial court denied this motion in a one-line order. The record contains no transcript of the hearing and no information about the specific grounds for McKay’s new trial motion.

In Georgia, a defendant has a right to be tried upon an indictment which is perfect in form and substance. State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d 506) (1979); State v. Stamey, 211 Ga. App. 837, 838 (1) (440 SE2d 725) (1994). However, this right can, under certain circumstances, be waived if a defendant fails to timely challenge the indictment. See Lanier v. State, 5 Ga. App. 472, 476-477 (63 SE 536) (1909).

A challenge to an indictment is typically made through a demurrer to the indictment. “A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d 38) (1977). See also OCGA §§ 17-7-113;17-7-111; Uniform Superior Court Rule 31.1.

“[A] special demurrer is waived if not raised before pleading to the merits of the indictment.” Eubanks, supra at 486. On the other hand, because a “general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment even if there was no earlier objection. [Cits.] . . . [A] motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime. [Cit.]” Id. at 485-486. Likewise, an oral objection or motion to quash based upon the same grounds as a general demurrer can be asserted anytime during the trial. Gilmore v. State, 118 Ga. 299-300 (1) (45 SE 226) (1903); Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991). Compare Perkins v. State, 151 Ga. App. 199, 206 (7) (259 SE2d 193) (1979) (motion to quash “because of objection to form is essentially the same as a special demurrer and must be made in writing before the plea”), overruled on other grounds; Chance v. State, 154 Ga. App. 543, 544 (268 SE2d 737) (1980).

“A motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal. . . addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. [Cit.] When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus. [Cit.]” Williams v. State, 162 Ga. App. 350, 351 (291 SE2d 425) (1982). See also Echols v. State, 187 Ga. App. 870, 871-872 (371 SE2d 682) (1988); Lancaster v. State, 83 Ga. App. 746, 760 (2) (64 SE2d 902) (1951). A motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment. Boswell v. State, 114 Ga. 40, 41-42 (1), (2) (39 SE 897) (1901); Thompson v. State, 58 Ga. App. 452-453 (198 SE 805) (1938).

Decided September 29, 1998

June E. Fogle, for appellant.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

Based on the above, it is clear that objections to defects in an indictment can be waived, except when “ ‘[the] defects are so great that the accusation is absolutely void.’ Lanier v. State, [supra at 472 (2)].” Goldstein v. State, 26 Ga. App. 651 hn. 1 (107 SE 176) (1921). See also Tennesson v. State, 214 Ga. App. 103 (447 SE2d 152) (1994); Staton v. State, 165 Ga. App. 572 (1) (302 SE2d 126) (1983). However, when a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding. Williams, supra; Lancaster, supra.

Here, McKay apparently claims that Count 2 of the indictment is void because it fails to allege a crime under OCGA § 16-13-32.5 (b). However, this claim is not properly before us because McKay failed to object to the indictment in any manner before or during trial and did not move to arrest the judgment after his conviction. “The issue of whether the indictment underlying appellant[’s] conviction[] was void must await determination until such time as [appellant avails himself] of the proper procedures for attacking the conviction on that basis.” Williams, supra at 353.

3. McKay contends the trial court erroneously sentenced him as a recidivist based upon two prior convictions. According to McKay, the trial court could not consider these convictions because the State failed to prove the voluntariness of his guilty pleas to the two prior offenses. However, McKay failed to object to the use of these convictions in the sentencing portion of the trial. As a result, we cannot review this alleged error on appeal. Simmons v. State, 222 Ga. App. 447 (1) (474 SE2d 253) (1996); Moody v. State, 206 Ga. App. 387, 391 (6) (425 SE2d 397) (1992); Darty v. State, 188 Ga. App. 447-448 (373 SE2d 389) (1988).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       This statute provides: “All exceptions which go merely to the form of an indictment or accusation shall be made before trial.”

       This statute provides: “If the defendant, upon being arraigned, demurs to the indictment, .. . the demurrer .. . shall be made in writing. If the demurrer ... is decided against the defendant, he may nevertheless plead and rely on the general issue of‘not guilty.’ ”

       This rule provides: “All motions [and] demurrers . . . shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial____”


author: McMurray, Presiding Judge.

text:
    A98A0952.
    HUNNICUTT v. THE STATE.
    (507 SE2d 802)
   McMurray, Presiding Judge.

Defendant and co-defendants Kimbrell and Henon were tried before a jury on charges of violating the Georgia Controlled Substances Act and possessing tools for the commission of a crime. Both co-defendants testified for the State, explaining on direct examination that defendant owned and possessed most of the methamphetamine found at the crime scene. The jury found defendant guilty of possessing methamphetamine by ingesting the substance, guilty of trafficking in methamphetamine by possessing a mixture of more than 28 grams of methamphetamine and guilty of possessing tools for the commission of a crime. The jury found co-defendants Kimbrell and Henon guilty of possessing methamphetamine with intent to distribute. The jury found all three defendants guilty of possessing tools for the commission of a crime.

Defendant filed this appeal after entry of his judgments of conviction and sentences and the denial of his motion for new trial. Held:

1. Citing Morris v. State, 204 Ga. App. 437 (419 SE2d 733), defendant contends the trial court erred in denying his motion to sever his trial from that of co-defendants Kimbrell and Henon.

In Morris, this Court held that the trial court abused its discretion in denying Morris’ motion to sever because Morris was unable to impeach his co-defendants by introducing evidence of their prior convictions. Id. at 437 (1). This holding is based on the premise that, “[i]f the consolidation of defendants at trial hinders a fair determination of each defendant’s guilt or innocence, then the defendants must be tried separately.’ Magouirk v. State, 158 Ga. App. 517, 518 (2) (281 SE2d 283) (1981).” Id. at 438 (1). Defendant shows no such prejudice in the case sub judice. Specifically, defendant does not show that he was denied the right to impeach either of his co-defendants. He argues only that he was denied due process because co-defendants Kimbrell and Henon were called by the State and testified against him at trial. This argument provides no basis for reversal.

“ ‘Abuse of discretion amounting to a denial of due process must be shown before a trial court’s decision on a motion to sever in a non-capital felony case will be overturned.’ McKenzie v. State, 187 Ga. App. 840, 846 (8) (371 SE2d 869) (1988). . . . ‘ “(T)he mere fact that co-defendants’ defenses are antagonistic is not sufficient in itself to warrant separate trials. (Cit.) A showing of harm is necessary. (Cit.)” (Cit.)’ Hill v. State, 193 Ga. App. 401, 403 (387 SE2d 910) (1989).” Jordan v. State, 210 Ga. App. 30 (1) (435 SE2d 256). Such harm is not shown where “the co-defendant could have testified at a separate trial and related the same testimony as that presented at the joint trial and the defendant had ample opportunity to cross-examine the co-defendant concerning any antagonistic defenses. See also Cain v. State, 235 Ga. 128 (218 SE2d 856) (1975).” Id. Since defendant in the case sub judice has failed to show that his co-defendants’ testimony would have differed at separate trials and since the record demonstrates that defendant had ample opportunity to cross-examine his co-defendants about their antagonistic defenses, the trial court did not abuse its discretion in denying defendant’s motion to sever. See id.

2. Defendant contends a chain of custody for certain methamphetamine the State proffered as evidence from the crime scene was never established because the state crime laboratory chemist who originally received the crime scene evidence was not called to testify.

“The fact that one of the persons in control of a fungible substance does not testify at trial does not, without more, make the substance or testimony relating to it inadmissible.” Williams v. State, 199 Ga. App. 122, 123 (2) (404 SE2d 296). When proffering such evidence, the State is required to show with reasonable certainty that the evidence is the same as that seized at the crime scene and that there has been no tampering or substitution. Sutton v. State, 223 Ga. App. 721, 725 (3) (478 SE2d 910).

As in Sutton, another chemist from Georgia’s crime laboratory gave testimony in the case sub judice regarding office procedures which show with reasonable certainty that the methamphetamine proffered at trial was the same as that seized at the crime scene and that there was no tampering or substitution of this evidence. But unlike Sutton, defendant in the case sub judice challenges this chemist’s reliance on markings which the absent chemist allegedly placed on the proffered methamphetamine. Pointing out that these markings are hearsay, defendant argues that the trial court improperly accepted them as proof of the absent chemist’s receipt and handling of the crime scene evidence.

Because the State proffered a foundation for admission of the absent chemist’s records under Georgia’s business records exception to the hearsay rule, OCGA § 24-3-14 (b), the trial court did not err in overruling defendant’s hearsay objection to admission of the methamphetamine which the State proffered as evidence seized at the crime scene. Millwood v. State, 166 Ga. App. 292, 293 (5) (304 SE2d 103); Green v. State, 165 Ga. App. 702, 703 (3) (302 SE2d 604).

3. The trial court did not err in denying defendant’s motion for new trial based on newly discovered evidence.

This newly discovered evidence consists of two letters which were purportedly written by co-defendant Kimbrell over a month before trial. Co-defendant Kimbrell allegedly stated in one letter that she was protecting co-defendant Henon. In the other, she allegedly wrote that she was involved in illegal drug dealing activities. The letters do not mention defendant’s name, nor do they include anything helpful to defendant. Since neither letter includes information which could have reasonably been relevant to defendant’s defense, the trial court did not err in denying defendant’s motion for new trial. See Timberlake v. State, 246 Ga. 488, 490 (1) (271 SE2d 792).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.

Decided September 29, 1998.

Levinson & Paul, Christopher G. Paul, for appellant.

T Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.