author: Barnes, Judge.

text:
    A01A1342.
    WILLIAMS v. THE STATE.
    (553 SE2d 823)
   Barnes, Judge.

Emanuel Williams appeals his rape conviction, contending the trial court erred in ruling that Williams could not cross-examine the victim regarding a prior rape allegation. Because this evidence was Inadmissible under the Rape Shield Statute, we affirm the conviction.

The victim testified that she talked to Williams and his co-defendant, Larry Simmons, over the phone while they were at her boyfriend A. B.’s house. She had never met them, but one of them used to date A. B.’s sister. The victim accepted the defendants’ offer to come to her house and drive her back to A. B.’s, because she did not have a car and A. B. did not have money for her cab fare.

The defendants drove the victim down a dark dirt road to an abandoned trailer in the middle of the woods. Simmons broke the door to get in, and Williams pulled her from the car and carried her into the trailer. Once inside, Williams directed Simmons to hold the victim down while he pulled off her shorts, tore her underwear, and put his penis inside her. The victim testified she was crying and telling the defendants to stop, but at 100 pounds she was overpowered. When Williams finished, he and Simmons laughed and said “that’s how they brother did it” or something to that effect. Simmons had sex with the victim. When he finished, he went outside. The victim stood in the comer crying while she tried to put her shorts back on, and Williams pushed her to the floor and had sex with her again. After he finished, both defendants left the victim in the unheated, unlit trailer with no transportation. She dressed and after 15 or 20 minutes made her way to the house of a stranger, who called the police for her. The police came and took her first to the station, then to the hospital, where she was examined. The DNA of sperm found in her vagina matched both defendants’ DNA, according to a laboratory report that the parties stipulated into evidence. The victim testified she was in great pain for a week or two afterward.

Williams made a statement after his arrest, which a police investigator read into the record. Williams admitted having sex with the victim in an abandoned trailer, but claimed it was consensual. After the victim had voluntary sex with Simmons, Williams said he told her he did not have enough gas to take her back to her house, so he and Simmons left her there.

Simmons testified at trial, contending that the victim consented to have sex with him after she had sex with Williams. After they had intercourse, she declined to give him oral sex so he went outside and waited in the car. Williams came out of the trailer, said he did not have enough gas to take the victim home, and the two drove away.

During Williams’ cross-examination of the victim, his counsel notified the court outside the jury’s presence that he planned to ask her about a previous rape. The following exchange ensued:

[DEFENSE COUNSEL]: In giving this statement to Mr. Arnett, the investigator who was hired by the defense, there was mention by [the victim] of a prior rape that had occurred to her. It was an unprosecuted rape, but it was a rape that had occurred nonetheless. It was my intention to go into that. I understand the idea of the rape shield statute in Georgia. But there are cases that, there is at least one case that has held that a rape of the victim in the past is not her prior sexual behavior; it is the prior sexual behavior of whoever it was that had committed it.
THE COURT: What’s the relevance of all that anyway?
[DEFENSE COUNSEL]: It goes to the, this person and her lack of response throughout the hours that this went on. . . .
THE COURT: No, no. I’m not going to let you get into any prior — in fact, we have done too much of it here. Questions have been asked about her relationship with her boyfriend. That shouldn’t have come in. Okay? Nobody objected. It is purely a violation, total violation of the rape shield law. What you are asking to do is a total violation of the rape shield law. You can’t ask that question about it.
[DEFENSE COUNSEL]: May we discuss the case that held that it is not, Your Honor?
THE COURT: No. I have already decided. . . . That’s my decision. I was going by the statute and' what the clear meaning of the statute says. And that statute is violated if you go into that. Now, what the purpose that you are telling me that you are getting into has nothing to do with this case. I’m telling you don’t go into that.
[DEFENSE COUNSEL]: Your Honor, does it not matter to the court that there was a case. . . .
THE COURT: Don’t argue with me, [defense counsel]. I have made my ruling. Do you understand me? . . . And I will be glad to look at your case if you want to hand it up here. . . . I have read it before. I know what it says. And it doesn’t give you a right to use it. Give it to me. I’ll keep it up here and will look at it again. I realize it. People have tried to pull this before using that case.

After hearing from the State, the court held, “Okay. My ruling is that it’s not relevant to these issues.” Williams responded, ‘Yes, sir. Thank you, Your Honor.”

On appeal, Williams asserts that, after asking him how the previous rape was relevant, the trial court did not allow him to respond fully but allowed the State to make a lengthy rebuttal. A review of the exchange quoted above, however, clearly reveals the purpose for which Williams wanted to cross-examine the victim about the prior rape, which was to discuss her “lack of response throughout the hours that this went on.” While he further expounds upon his theory of admissibility to this court, he does not contend that his purpose was different from that indicated at trial. He wanted

to put the alleged victim’s actions in context. Instead of arguing that [the victim] did not try to escape because she feared the possible consequences Appellant was seeking to argue the opposite, that, being a prior rape victim, [the victim] would have seized upon any and every opportunity open to her to avoid a second rape. While a jury might not have agreed, it is certainly relevant to this alleged rape and the victim’s supposed conduct throughout the chain of events that evening. In short, in closing down this avenue of questioning, the court prevented the Appellant from properly explaining the context behind [the victim’s] claimed conduct and her explanations for that conduct on the night in question.

Williams cites Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738) (1989), and Lemacks v. State, 207 Ga. App. 160 (427 SE2d 536) (1993), for the proposition that admitting evidence of a prior rape does not violate the Rape Shield Statute, OCGA § 24-2-3, because evidence that a witness was the unwilling victim of a prior crime is no reflection on her past sexual behavior. We do not find Raines or Lemacks to be authority for the proposition Williams asserts. The victim in Raines was permitted to testify, over the defendant’s objections, that she did not physically resist the defendant because she had been raped before and had been subsequently counseled not to resist. We held in Lemacks that the defendant should have been allowed to introduce evidence that the two child victims had been previously molested, because a physician testified that she saw physical evidence of penetration which could have occurred any time from just after their birth to a week before the examination.

We have further analyzed other circumstances in which evidence of prior molestations or rapes is admissible. For example, evidence of prior false rape allegations may be admissible if the trial court determines at a hearing that the defendant established a reasonable probability of falsity. Humphrey v. State, 207 Ga. App. 472, 475-476 (2) (428 SE2d 362) (1993). Evidence of prior unrelated molestations may be admissible to establish other possible causes for behavioral symptoms described as “child sexual abuse accommodation syndrome.” Hall v. State, 196 Ga. App. 523, 525 (2) (396 SE2d 271) (1990). Such evidence is not admissible, however, to show the victim’s reputation for nonchastity or preoccupation with sex, or to show that the victim was “confused.” Id.; Blackwell v. State, 229 Ga. App. 452, 454 (2) (494 SE2d 269) (1997); Proper v. State, 208 Ga. App. 471, 472 (1) (431 SE2d 133) (1993).

Finally, we have held that a defendant cannot introduce evidence that a victim actually consented to a previous sexual encounter she alleged was forcible in order to infer that the victim consented to the encounter at issue. Postell v. State, 200 Ga. App. 208, 213 (4) (c) (407 SE2d 412) (1991), rev’d on other grounds, 261 Ga. 842 (412 SE2d 831) (1992).

This is precisely the kind of evidence the rape shield statute was designed to exclude, and the trial court properly excluded it. If [the defendant] sought introduction of this evidence simply to show the victim had been previously raped, we fail to see how this could have benefited his defense, so even as proper evidence, unrelated to the victim’s prior sexual conduct, its exclusion was harmless.

Postell v. State, supra, 200 Ga. App. at 213. In affirming this portion of the opinion, the Supreme Court of Georgia held:

Decided August 8, 2001.

Mike L. Randolph, for appellant.

Howard Z. Simms, District Attorney, Graham A. Thorpe, Dorothy A. Vinson, Assistant District Attorneys, for appellee.

The trial court did not err by excluding evidence regarding the victim’s claim that she was raped previously by another man. There is no evidence that the victim accused any individual in connection with this claim. Therefore, the rule in Smith v. State, 259 Ga. 135, 137 (377 SE2d 158) (1989), authorizing evidence of prior false accusations of rape in a rape trial, does not apply, and the evidence was not otherwise admissible.

Postell v. State, supra, 261 Ga. at 843.

We similarly find that the evidence of this victim’s prior rape was not admissible as a prior false allegation or otherwise. The inference Williams wanted to argue, that the victim must have consented in this case because as a previous rape victim she would have exhibited more wariness of strange men, is not permissible under the statute. Williams was not foreclosed from fully exploring the issue of consent during his cross-examination of the victim and, therefore, had a mechanism for pursuing this defense aside from the introduction of the victim’s prior rape. Proper v. State, supra, 208 Ga. App. at 472. We find no abuse in the trial court’s discretion in disallowing the evidence of the victim’s prior rape because it was not relevant. Brown v. State, 214 Ga. App. 676, 678 (2) (448 SE2d 723) (1994).

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A1464.
    SATTERFIELD v. THE STATE.
    (553 SE2d 820)
   Eldridge, Judge.

Following a Hall County bench trial, Larry Shane Satterfield was convicted of a single count of possession of methamphetamine with intent to distribute. He was sentenced to five years probation, to serve the first six months under intensive supervision, and, among other special conditions of his probation, to pay a $2,000 fine. On appeal, the defendant challenges the denial of his motion to suppress the methamphetamine found on his person by police following a pat-down search variously arguing that the pat-down search was unlawful and that the arresting officers had neither articulable suspicion nor probable cause to seize him. We disagree and affirm.

Upon defendant’s motion to suppress at the bench trial, Hall County Sheriff’s Investigator Gary Moore testified that he was paged by a confidential informant with whom he had previously worked. When Investigator Moore returned the call, the informant told Moore that the defendant was then in a Gainesville bar known as the Crazy Horse; that she had earlier observed the defendant offer to sell a quantity of “crank,” the street name for methamphetamine; and that the defendant returned it to his right front pants pocket after doing so. On this tip, Investigator Moore traveled to the Crazy Horse where the informant further described the defendant as wearing blue jeans and a yellow pullover having “Tommy Hilfiger” embroidered across the back of its collar. At Investigator Moore’s request, the informant then located the defendant, pointing him out in a crowd of more than 400 patrons at the bar.

Inasmuch as Scott Ware, another Hall County Sheriff’s Investigator, was working part time at the Crazy Horse on the evening in issue and in uniform, Investigator Moore enlisted Ware’s support after obtaining the defendant’s description from the informant. The two then effected an investigatory stop of the defendant, Moore in plainclothes by showing the defendant his badge and Ware by asking the defendant to accompany them to the rear of the Crazy Horse. The defendant came voluntarily, except that several times defendant’s efforts to put his hands in his pants pockets prompted both officers to tell him not to do so.

Behind closed doors in a back room away from the crowded bar, the defendant initially denied having any weapons or drugs on his person. As he did so, Investigator Moore patted the defendant’s right front pants pocket with the back of his hand, felt what he believed was a knife, and said, “I thought you didn’t have any weapons.” His denial thus challenged, the defendant admitted that he had a knife. Investigator Ware requested the defendant’s consent to search. When no reply was forthcoming, Investigator Moore reached in the defendant’s right front pants pocket, removing a knife and a plastic baggie containing what Moore believed to be illegal drugs. A second search of the pocket produced another plastic baggie containing suspected drugs. Investigator Moore then placed the defendant under formal arrest and handcuffed him, although he regarded the defendant as in a custodial arrest status upon first finding methamphetamine in the defendant’s pocket. Subsequent testing showed that the baggies contained a total of 6.4 grams of methamphetamine or an amount which, when separately packaged and divided by two, was consistent with methamphetamine as typically distributed, termed an “eight ball.”

Contrary to defendant’s characterization of the informant as unreliable, Investigators Moore and Ware did have reasonable suspicion to stop and detain him. In analyzing whether there was reasonable suspicion, we are required to assess the totality of the circumstances. Solomon v. State, 236 Ga. App. 778, 780 (1) (513 SE2d 520) (1999).

Although a tip provided by an informant of unknown reliability will not ordinarily create a reasonable suspicion of criminal activity, reliability may be established if the tip is detailed enough to provide some basis for predicting the future behavior of the suspect and those details are corroborated by the observations of the police. Stanley v. State, 213 Ga. App. 95, 96 (443 SE2d 633) (1994).

Gordon v. State, 242 Ga. App. 50, 52 (1) (528 SE2d 838) (2000).

Although it is unclear in the record whether Investigator Moore considered the informant to be reliable, there was evidence that he had a prior working relationship with the informant; that the informant’s tip was unsolicited; and that it came just after she had seen the defendant in possession of methamphetamine. However, pretermitting the question of whether the informant was of known reliability, the information upon which these officers acted was sufficient to create a reasonable, articulable suspicion upon which to conduct an investigatory stop of the defendant. Investigator Moore went to the Crazy Horse immediately after returning the informant’s call and there obtained a detailed description of the defendant from the informant before seeking the defendant out in the crowd. In doing so, Investigator Moore corroborated for himself the informant’s predictions, authorizing Investigators Moore and Ware to temporarily detain and question the defendant based upon the reasonable suspicion that he was in possession of methamphetamine. See Gordon, supra; see also Thomas v. State, 231 Ga. App. 173, 174 (498 SE2d 760) (1998).

At an investigatory stop under Terry v. Ohio, 392 U. S. 1, 28-31 (88 SC 1868, 20 LE2d 889) (1968), a police officer is authorized to conduct a “limited protective pat-down for weapons . . . after ‘reasonable suspicions’ that a crime has been committed justify the stop.” (Emphasis in original.) Montoya v. State, 232 Ga. App. 24, 27-28 (499 SE2d 699) (1998) (Eldridge, J., concurring specially in judgment only); see also Thomas v. State, supra (police officer authorized limited pat-down search of suspect for weapons if officer reasonably believes suspect poses threat of safety risk to self or others). Moreover, “[i]t is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” (Citations and punctuation omitted.) Stewart v. State, 227 Ga. App. 659, 660-661 (2) (490 SE2d 194) (1997). That the defendant several times had to be ordered not to put his hands in his pocket is not inconsistent with the reasonable belief that he might have been armed as a drug trafficker. Thomas v. State, supra at 175. Neither is it inconsistent with a reasonable anticipation of the presence of drugs and of an intent to destroy the same. Patrick v. State, 219 Ga. App. 888, 889 (467 SE2d 211) (1996). Investigator Moore first conducted a nonintrusive pat-down of the surface of the defendant’s clothing, only searching the defendant’s pocket after feeling what he suspected was a possible knife.

In evaluating an intrusive search of a suspect by a police officer to investigate or eliminate a threat to his [or her] safety, the issue is whether, balancing the officer’s need to search against the intrusion of personal security which the search entails, the officer’s actions were reasonable under the circumstances. Hayes [v. State, 202 Ga. App. 204, 206 (414 SE2d 321) (1991)]; Terry [v. Ohio, supra] at 18-22.

Thomas v. State, supra at 175.

Investigator Moore first felt what he believed was a knife in defendant’s pocket as the defendant denied having a weapon. When confronted with this by Investigator Moore, the defendant admitted he had a knife. Under these circumstances, we conclude that Investigator Moore acted reasonably in conducting the protective search of defendant’s pocket, and no Fourth Amendment violation resulted upon his initial discovery of methamphetamine in the pocket in addition to the knife. Probable cause to place the defendant under arrest having arisen at that point, the further search of defendant’s pocket and the seizure of the second baggie of methamphetamine were likewise lawful as pursuant to a valid search incident to his arrest, although the defendant was formally placed under arrest immediately thereafter. Thomas v. State, supra at 175. In light of the foregoing, we need not address the defendant’s remaining arguments that his was an arrest de facto not supported by probable cause and that the search of his pocket exceeded the permissible scope of a pat-down search.

Decided August 8, 2001.

McDonald & Cody, Douglas W. McDonald, Jr., for appellant.

Lydia J. Sartain, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

Having found that articulable suspicion supported the defendant’s detention, that the limited pat-down search conducted of defendant’s person was properly limited, and that probable cause supported his arrest, we affirm the judgment of the superior court denying his motion to suppress.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       On cross-examination, Investigator Moore declined to describe the defendant’s detention as custodial. See Small v. State, 243 Ga. App. 678, 679 (1) (534 SE2d 139) (2000) (investigatory stop or detention a Fourth Amendment seizure in circumstances where police conduct would cause reasonable person to believe he or she no longer free to leave).

       Investigator Moore defined an eight ball as weighing 3.5 grams or an eighth of an ounce.

       “What is intended to be an investigatory detention can be transformed into a de facto arrest by the means of detention employed. See Florida v. Royer, 460 U. S. 491, 502-503 (103 SC 1319, 75 LE2d 229) (1983).” Holsey v. State, 271 Ga. 856, 861 (6) (524 SE2d 473) (1999).


text:
    A01A1487.
    KNIGHT v. THE STATE.
    (553 SE2d 670)
   Barnes, Judge.

A jury convicted William Knight of rape and statutory rape. The trial court merged the convictions and sentenced him to life in prison without parole. He appeals, arguing only that the State presented insufficient evidence of penetration to sustain the convictions. We disagree and affirm the trial court.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in the light most favorable to the verdict, the evidence at trial established that the 15-year-old victim was a patient at a spinal center. She had been paralyzed in an automobile accident two months earlier, leaving her without feeling from her mid-breast down, unable to move her legs or fingers, and able to move her arms only slightly.

The victim woke up around 5:00 a.m. to find Knight on top of her in the bed. The victim could see that Knight’s pants were unzipped and pulled down a little, that his body was in contact with hers, with his hips moving right on top of her pelvis and private region. The victim could not feel anything and tried to fight him off, “but there wasn’t much to it.”

After the victim reported the incident she was taken to the emergency room for an examination. An emergency room physician testified that she examined the victim. The doctor swabbed the inside of the victim’s vaginal canal, then smeared glass slides with the swab. The slides were then dried and sealed inside a sexual assault kit that a police investigator then took to the Georgia Bureau of Investigation crime lab for analysis. Later, blood samples were obtained from Knight and the victim and taken to the crime lab.

A GBI crime lab forensic serologist and DNA analyst testified that he found sperm on the vaginal cervical smear taken from the victim. He analyzed the DNA in the sperm, along with DNA from the blood of the victim and Knight, and concluded that the sperm came from Knight or a close relative of his. The analyst testified that one in three billion Caucasian people and one in two billion African-American people would have the same DNA pattern found in Knight’s blood and the sperm from the victim’s vaginal cervical smear.

Knight argues on appeal that the evidence was insufficient to support his rape conviction because the State presented insufficient evidence of penetration. OCGA § 16-6-1 (a) defines rape as “carnal knowledge of [a] female forcibly and against her will” and further defines carnal knowledge as “any penetration of the female sex organ by the male sex organ.” The penetration necessary to constitute rape “need be only slight and may be proved by indirect or circumstantial evidence.” Summerour v. State, 242 Ga. App. 599, 603 (4) (530 SE2d 494) (2000). Even if the victim cannot testify regarding the act because she was unconscious, medical testimony may authorize the jury’s finding that intercourse took place. Moss v. State, 160 Ga. App. 42 (2) (285 SE2d 776) (1981).

The victim testified that she saw that Knight’s pants were pulled down, that his hips were contacting her pelvic region, and that he was moving his hips. Even though the victim also testified that she could not feel anything and did not know whether Knight was raping her at that point, an emergency room physician subsequently testified that the evidence she obtained from the victim’s body, which later proved to contain Knight’s sperm, came from inside the victim’s vagina. The physician further testified that the vagina is ordinarily a closed area, so she “open[ed] it up to access all the way to the end of the vagina,” and then used cotton tip swabs to collect secretions from the vagina and the opening in the center of the cervix. “Accordingly, we conclude that the evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of penetrating the victim’s sex organ with his sex organ in violation of OCGA § 16-6-1.” Burks v. State, 246 Ga. App. 22, 24 (1) (538 SE2d 769) (2000); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 8, 2001.

Culp & Smith, John C. Culp, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


author: Phipps, Judge.

text:
    A01A1582.
    DOUGLAS v. SEIDL.
    (553 SE2d 829)
   Phipps, Judge.

Michael Douglas sued John Seidl for injuries sustained in an automobile collision. The trial court granted summary judgment to Seidl on the ground that Douglas failed to act diligently to effect service of process after the statute of limitation had expired. We agree and affirm.

The collision occurred on November 13, 1997. Douglas filed his complaint in Effingham County State Court on November 12, 1999. On November 15, the Sheriff’s Department of Effingham County executed a return of service indicating an inability to serve the complaint because the defendant “lives in Sav[annah].” Douglas learned of the failure to serve on November 29, when he received the return of service in the mail.

According to Douglas’s attorney, who submitted an affidavit, the return of service also contained a note indicating Seidl’s current address. Counsel stated that he prepared a motion to transfer the case to Chatham County State Court as soon as he received the return of service, but did not file the motion until mid-December because he was not certain where Seidl lived and because his client had not paid the fee required to transfer the case. Counsel stated that he checked the “Savannah telephone [b]ook and other materials,” but could not verify Seidl’s address. Counsel further averred that on January 12, 2000, he received a call from a clerk in the Effingham County State Court, who said that the motion to transfer could not be filed until Douglas prepared an order. Counsel stated that he prepared and sent an order that day.

The motion to transfer was file-stamped by the clerk of the court on January 18, 2000. The court granted the motion to transfer in an order which also was file-stamped on January 18. Douglas’s attorney averred that he received the order on January 31. That same day, he hired a private process server to find and serve Seidl. Seidl was served on February 15.

Decided August 8, 2001.

Orin L. Alexis, for appellant.

Ellis, Painter, Ratterree & Bart, Ryburn C. Ratterree, Tracy O’Connell, for appellee.

When an action is filed within the applicable limitation period but service is perfected more than five days after that period expires, the service relates back to the original filing only if the plaintiff acted reasonably and diligently to ensure that proper service was made as quickly as possible. The plaintiff bears the burden of showing that he acted diligently. The trial court must consider all the facts to determine whether the plaintiff was guilty of laches, and we will not disturb the trial court’s determination absent an abuse of discretion.

In this case, Douglas filed his complaint one day before the expiration of the applicable statute of limitation for personal injury actions. Seidl was not served until 93 days after the limitation period expired. Although Douglas provided a variety of reasons for the delay, it is undisputed that he took no steps to ascertain whether service had been made before receiving the sheriff department’s return of service, even though he knew the statute of limitation had expired. After learning that Seidl had moved to Savannah, Douglas waited at least two more weeks to file a motion to transfer the case and thereafter made no attempt to check the status of the motion. Only after the motion to transfer was granted did Douglas finally hire a private process server to effect service. Under these circumstances, the trial court did not abuse its discretion in concluding that Douglas failed to act with due diligence.

Judgment affirmed.

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

        Pringle v. Jaganauth, 240 Ga. App. 65, 66 (2) (522 SE2d 560) (1999).

        Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989).

        Jackson v. Doe, 243 Ga. App. 210, 211-212 (532 SE2d 761) (2000).

       See OCGA § 9-3-33.

       See Devoe v. Callis, 212 Ga. App. 618 (442 SE2d 765) (1994) (service 81 days after limitation period expired was not timely); McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990) (affirming dismissal of complaint where defendant was not served until 63 days after expiration of statute of limitation).


text:
    A01A1878.
    MARTIN v. THE STATE.
    (553 SE2d 827)
   Eldridge, Judge.

In 1995, a Cobb County jury found Gregory Allen Martin guilty of sale of cocaine, possession of cocaine with intent to distribute, and giving a false name. After what appears to be a convoluted series of attempts to obtain post-conviction relief, Martin’s motion for out-of-time appeal to this Court was granted. Now, he alleges two errors of law require reversal. Upon review of the errors as enumerated, we affirm Martin’s conviction.

1. Martin first assigns error to the trial court’s admission of two Georgia Bureau of Investigation crime laboratory reports without calling the laboratory analysts to testify. Citing Miller v. State, which held such admission to be unconstitutional because it violates a criminal defendant’s right to confront witnesses against him, Martin contends that the admission of the lab reports constitutes grounds for reversal.

Had [Martin] objected at the hearing to the admission of the lab report[s] we could agree. At [trial], however, [Martin] specifically and expressly stipulated to [their] admission. Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived. [Martin] therefore waived any objection to the admission of the lab report [s],

In that regard, Martin contends that his defense attorney’s stipulation fails because, while the record shows that such stipulation of fact was expressly made, the record does not contain Martin’s personal waiver of his Sixth Amendment confrontation rights as to the stipulated facts. We do not agree.

Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake.

Martin does not claim fraud or mistake, nor has he ever repudiated counsel’s authority to make the stipulation at issue. “Under the present circumstances, we find [Martin] acquiesced in an oral stipulation of facts made in open court upon which the case was agreed to be tried for the express purpose of dispensing with proof of the agreed facts, and which amounted to a conclusively binding admission in judicio as to such facts.”

Finally, Martin’s defense at trial was that he was guilty of smoking cocaine, not selling it or possessing it with intent to distribute, and that he was an addict who needed help, not prosecution and incarceration. In that regard, Martin took the stand and admitted to the jury that the substance in the 17 small ziplock baggies removed from his person pursuant to arrest was in fact crack cocaine. The crime lab reports were simply cumulative of Martin’s sworn testimony.

Moreover, contrary to Martin’s contentions, such solemn admissions in judicio are clearly distinguishable from facts ascertained only through a defendant’s out-of-court and unsworn confession to the police. Thus, Martin’s reliance on pre-trial confession cases is misplaced in this instance where he took the stand, swore an oath, and testified that the substance at issue was cocaine.

2. In his final enumeration of error, Martin contends the trial court erréd in refusing to give his defense request to charge no. 3,-which informed the jury that, if they returned a verdict of guilt on sale or possession with intent to distribute, Martin could face mandatory life imprisonment as a recidivist. However, after the trial court asked whether the parties had any exceptions to the charge, Martin’s counsel responded, “No, Your Honor.” “The right to raise an erroneous charge on appeal may be lost only in certain well-defined instances,.. . . [as] where defense counsel in response to an inquiry by the trial judge plainly states that he has no objections to the charge as given.” Therefore, Martin waived his right to raise this objection on appeal.

Further, the essence of Martin’s argument is that the jury should have been permitted to decide the issue of guilt not on the basis of the factual evidence presented, but on the punishment Martin might receive, i.e., purely on the basis of sympathy. We find no merit to this argument. While the jury does possess a de facto power of nullification and may acquit the defendant regardless of the strength of the evidence against him, it is nevertheless the jury’s duty to convict if the evidence proves the defendant guilty beyond a reasonable doubt. We adhere to this principle. And while a jury’s de facto power of nullification may be employed from time to time based upon the circumstances of a particular case, we will not permit the deliberate introduction of extraneous issues, such as punishment, when a jury is charged and duty-bound to return a fact-based resolution on the issue of guilt or innocence.

Decided August 8, 2001.

Michael A. Zoffmann, Jay L. Palmer, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       266 Ga. 850, 856 (472 SE2d 74) (1996).

       (Citations and punctuation omitted.) In the Interest of D. L. S., 224 Ga. App. 660, 661 (2) (482 SE2d 418) (1997).

        Dryer v. State, 205 Ga. App. 671, 672 (423 SE2d 297) (1992).

       Id. at 673.

       Compare Johnson v. State, 205 Ga. App. 760, 761 (423 SE2d 702) (1992) (defendant’s confession cannot establish the corpus delicti, which must be proved beyond a reasonable doubt, independently of the confession).

       (Citation omitted.) Lumpkin v. State, 249 Ga. 834, 835 (1) (295 SE2d 86) (1982); Bailey v. State, 246 Ga. App. 337 (540 SE2d 298) (2000).

        Tolver v. State, 269 Ga. 530, 533 (5) (500 SE2d 563) (1998).

        Cargill v. State, 255 Ga. 616, 642 (30) (d) (340 SE2d 891) (1986); Duggan v. State, 225 Ga. App. 291, 295 (483 SE2d 373) (1997).


author: Blackburn, Chief Judge.

text:
    A01A0956.
    MOELLER v. SCHRENKO et al.
    (554 SE2d 198)
   Blackburn, Chief Judge.

In this action regarding the separation of church and state, Rebecca L. Moeller, a 14-year-old student at Columbus High School, appeals the trial court’s grant of summary judgment to Guy Sims, Georgia’s Superintendent of Education, contending that the use of a certain biology textbook in Muscogee County public school violates her rights to religious freedom under both the Establishment Clause and the Free Exercise Clause of the First Amendment.* For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conelusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp. ,

Viewed in this light, the record shows that the Muscogee County School Board approved Biology Principles and Exploration by George Johnson and Peter Raven for use as the textbook in the ninth grade honors biology course. Moeller was a student in this class, and she claims that portions of the text denigrate her belief in creationism and hinder the free exercise of her religious beliefs. Out of 1,072 pages in the text, Moeller objects to two passages contained in Chapter 11-1, “The Mystery of Life’s Origin.”

The first passage about which Moeller complains states in its entirety:

Traditionally, many cultures have believed that life was put on Earth by divine (relating to a god or gods) forces, as the act of a creator or creators. Belief in divine creation is common to many of the world’s major religions, though the accounts of creation vary from one religion to another. By all accounts of divine creation, the process that gave rise to life on Earth was driven by forces that cannot be explained by science. Philosophers have debated the essence of these forces for centuries. It is important to understand, however, that a belief is not the same thing as a scientific hypothesis. The essence of any scientific hypothesis is that the proposed idea is subject to test — that the idea could, in principle at least, be proven false. As you learned in Chapter 1, science is a way of investigating the natural world (through observation and experimentation) and forming general rules about how things happen. A belief in divine creation, however, is not a scientific hypothesis that can be tested. Try to imagine an observation that would disprove divine creation. Whatever you propose, it is always possible to argue that a divine agent simply made things appear the way they do. Because the idea that life originated through divine creation cannot be tested by scientific methods, it falls outside the realm of science. This is not to say that the belief is wrong, but rather that science can never test it.

And the second allegedly improper passage provides:

As you can see, the scientific vision of life’s origin is at best a hazy outline viewed from a long distance through dark glasses. While scientists cannot disprove the hypothesis that life originated naturally and spontaneously, little is known about what actually happened. Many different scenarios — some of them quite imaginative — seem possible, and some have solid support from experiments. But because researchers do not yet understand how DNA, RNA, and hereditary mechanisms first developed, science is currently unable to resolve disputes concerning the origin of life. How life might have originated naturally and spontaneously remains a subject of intense interest, research, and discussion among scientists.

Because Moeller found these paragraphs offensive, she filed suit against Sims, requesting a declaratory judgment that the textbook’s content violated the First Amendment and asking for an injunction against the textbook’s use. Sims, in response, filed a motion for summary judgment, which the trial court granted.

1. Moeller contends that references in the textbook to creationism violate the Establishment Clause of the First Amendment. We disagree.

The Establishment Clause mandates that “Congress shall make no law respecting an establishment of religion,” and it was intended to prevent “sponsorship, financial support, and active involvement of the sovereign in religious activity.” (Punctuation omitted.) Lemon v. Kurtzman. In general, the Establishment Clause ensures that the State neither endorses nor denounces religious beliefs.

Alleged violations of Establishment Clause prohibitions are analyzed using the three-part Lemon test which indicates that a state action affecting a religious belief or practice will be constitutional if the state action: (1) has a secular purpose; (2) has a primary effect that neither advances nor inhibits religion; and (3) does not foster excessive state entanglement with religion. Id.

One does not even reach the Lemon test, however, if no establishment of religion is supported by the facts. That is the case here. The textbook criticized by Moeller does not sponsor religious actions or beliefs. To the contrary, it points out that the origin of life is, to date, unknown, and it lists the most prevalent ideas regarding this issue, including creationism and evolution. Indeed, the subchapter containing the offending passages is titled “The Mystery of Life’s Origin.” (Emphasis supplied.) The textbook makes it clear that no definitive answer exists with regard to the origin of life on Earth, and it lists creationism and evolution as two commonly cited explanations.

And, contrary to Moeller’s arguments, the textbook, on its face, indicates that it does not pass judgment on the efficacy of creation theory. It merely states that creationism is not a scientific theorem capable of being proven or disproven through scientific methods. The textbook explicitly points out, however, that just because creationism may not be subject to scientific proof, it may nonetheless be the proper explanation for the origin of life. Although Moeller may find the textbook’s neutral statements on this matter offensive, the implicated passages do not comprise an inappropriate establishment of religion. See, e.g., Fleischfresser v. Directors of School Dist. 200.

Moreover, even if we were to find that Moeller made a viable claim of establishment, Muscogee County’s use of the textbook in question would remain constitutional. Applying the Lemon test, the use of the textbook in question serves the secular purpose of educating biology students regarding both the nature of the scientific method as well as the most common explanations for the origin of life. To find that the use of the textbook has no secular purpose, as Moeller contends, we would have to conclude that its use was “motivated wholly by religious considerations.” Lynch v. Donnelly. That is clearly not the case here.

With regard to the second prong of the Lemon test, a state action may be considered impermissible if its primary effect is to advance or prohibit religion. Id. at 618. As an initial matter, the material considered by Moeller comprises only a few pages of a 1,072-page textbook, the purpose of which is to give students a broad knowledge of biology. As discussed above, the only religious references which are made inform the students that creationism is one commonly given explanation for the origin of life. This reference in no way advances or endorses a religious belief or practice, and, as such, use of the textbook does not violate the second prong of the Lemon test.

Finally, use of the textbook does not foster excessive state entanglement with religion.

School boards have broad discretion in determining curricula in their schools. Surely, the mere exercise of this discretion cannot constitute excessive entanglement with religion. Further, there is no allegation that the publisher of the reading series is a religious organization or that the directors are in some way dealing with a particular religious organization. Nothing, then, supports a claim that the use of this reading series constitutes excessive entanglement with religion.

Decided August 9, 2001.

David J. Grindle, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Thurbert E. Baker, Attorney General, Kathryn L. Allen, Assistant Attorney General, for appellees.

Fleischfresser, supra at 689.

2. Moeller also contends that use of the textbook in question hindered the free exercise of her religion. Again, we disagree.

“The free exercise inquiry asks whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden.” Hernandez v. Commissioner To prove a violation of the free exercise clause, Moeller must show that use of the textbook prevents her from practicing her religion. In this case, this showing has riot been made, and no substantial burden has been placed on Moeller’s free exercise of religion. The use of the textbook in question in no way forces Moeller to refrain from practicing her religious beliefs. And it does not impinge on her parents’ religious instruction of their daughter. As such, Moeller’s free exercise of her religion has not been substantially burdened, and use of the textbook does not violate her First Amendment rights.

Judgment affirmed.

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

       Rebecca Moeller brought this case by and through her father, Donald R. Moeller. The suit was brought against both Guy Sims and Linda Schrenko, Superintendent of Public Instruction. The trial court granted summary judgment to both Sims and Schrenko; however, Moeller appeals only the grant of summary judgment to Sims.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Lemon v. Kurtzman, 403 U. S. 602, 612 (91 SC 2105, 29 LE2d 745) (1971).

       Indeed, the textbook, in an attempt to be comprehensive, points out that some scientists have proffered theories that life on Earth has an extraterrestrial origin.

        Fleischfresser v. Directors of School Dist. 200, 15 F3d 680 (7th Cir. 1994).

        Lynch v. Donnelly, 465 U. S. 668, 680 (104 SC 1355, 79 LE2d 604) (1984).

        Hernandez v. Commissioner, 490 U. S. 680, 699 (109 SC 2136, 104 LE2d 766) (1989).


author: Miller, Judge.

text:
    A01A0971.
    LYNN v. THE STATE.
    (553 SE2d 836)
   Miller, Judge.

Larry Lynn demanded sex from his estranged wife and then stabbed her in the back with a knife when she refused. Holding the knife to her throat, he then forced her to disrobe and partially penetrated her. After she promised to say that she accidentally cut herself, he took her to the hospital, where she escaped from him and told authorities of the assault. A jury found him guilty on two counts: aggravated assault with intent to rape* and aggravated assault with a deadly weapon. The court gave him the same sentence on each count, with the sentences to run concurrently.

Lynn enumerates three errors: (1) the court gave flawed instructions on reasonable doubt; (2) the court allowed additional testimony from the treating surgeon that the victim’s wound was not self-inflicted; and (3) the court failed to merge the two counts before sentencing. We hold that the instructions were adequate and that the surgeon’s testimony was properly allowed. As tacitly conceded by the State, however, the failure to merge the two counts was error, which requires that we vacate the convictions and remand for resentencing.

1. The court’s instructions on reasonable doubt, although disapproved, do not require a new trial.

(a) Lynn first complains that in a preliminary instruction at the beginning of trial, the court instructed the jury that they “should acquit” if they found reasonable doubt as to Lynn’s guilt, and that if they found no reasonable doubt, they had a “responsibility to convict.” Lynn argues that the judge should have instructed the jury that they must acquit if they found reasonable doubt, and only that they were authorized to convict if they found no reasonable doubt.

We have previously considered and rejected the argument that “must acquit” not “should acquit” is the required language when describing the jury’s role should they find reasonable doubt. We have consistently approved the “should acquit” language.

The Supreme Court of Georgia has disapproved, however, language that a jury has a responsibility or duty to convict if they find no reasonable doubt. The better language is that in that event the jury would be authorized to convict. Nevertheless, when the disapproved language is used only once in the preliminary instructions, and when, as here, the approved language is used in the closing instructions, the error does not justify a reversal.

(b) Lynn next contends that the court erred in instructing the jury that they were “the sole judges of the guilt or innocence of the defendant.” Lynn argues that the jury is concerned not with the innocence of the accused, but with whether the State bears its burden of proving guilt beyond a reasonable doubt. We have long approved the instruction that the jury is the sole judge of the defendant’s guilt or innocence. We see no reason to change that approval now, particularly in light of the trial court’s instructions here clearly placing on the State the burden of proving Lynn’s guilt beyond a reasonable doubt.

2. A thoracic surgeon who treated the victim testified that the victim had a three-inch-deep stab wound that went straight in or slightly upward. Even though the surgeon was excused after his testimony and left the courtroom, the State later asked the court for leave to recall the surgeon to ask his opinion whether the wound was self-inflicted. Over Lynn’s objection, the court allowed the surgeon to return and to testify that the location and nature of the wound indicated that it was not self-inflicted.

(a) Lynn first argues that the court should not have allowed the excused witness to be recalled. A court has broad discretion to allow a witness to be recalled for further examination, even after the State has rested its case and even though the additional testimony is not in rebuttal of evidence offered by the defendant. As we discern no abuse of that discretion here, this argument is without merit.

(b) Lynn then complains that the court erred in assisting the State in laying a foundation for the surgeon’s opinion on self-infliction of the wound. At trial, however, Lynn made no objections to the court’s actions in this regard. Lynn’s failure to raise and preserve this issue at trial forecloses any appellate review.*

(c) Lynn claims that the issue of whether the wound was self-inflicted was not beyond the jury’s range of knowledge and therefore expert opinion on the matter was erroneously admitted. Expert testimony is appropriate where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves, meaning the conclusion is beyond the range of knowledge of the average layman. Whether stabbing wounds are self-inflicted is a matter beyond the range of knowledge of the average layman. The court did not abuse its discretion in allowing the opinion testimony.

Decided August 9, 2001.

Axam, Adams & Secret, Herbert Adams, Jr., for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

3. Lynn complains that in sentencing him the court erroneously considered his prior convictions, even though he had not received notice of such nor were certified convictions submitted. The record reveals, however, that no harm came of this because the court acknowledged problems regarding the prior convictions and therefore did not consider them in issuing its sentences.

4. Citing OCGA § 16-1-7, Lynn contends that the court erred in not merging the two counts prior to sentencing. The State tacitly concedes the point, but maintains that only a remand for resentencing is required.

Count 1 charged Lynn with aggravated assault in that on May 10, 1998, he assaulted the victim, with intent to rape, by holding a knife to her throat and stabbing her in the back. Count 2 charged him with aggravated assault in that on that same date, he assaulted the victim, with a deadly weapon, by holding a knife to the victim’s throat and stabbing her in the back. As the evidence showed only one such stabbing and knife-to-throat holding, the counts were clearly based on the same conduct. Under OCGA § 16-1-7, Lynn could be sentenced on only one of the counts. The court should have merged one of the counts into the other and sentenced only on the surviving count. Although the guilty verdicts stand, we must vacate the two convictions and sentences and remand the case to the trial court to merge one of the counts into the other and to resentence on the surviving count.

Judgment affirmed in part and vacated in part. Case remanded to the trial court for resentencing.

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

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-5-21 (a) (2).

        Thomas v. State, 238 Ga. App. 42, 44 (8) (517 SE2d 585) (1999).

        Burns v. State, 246 Ga. App. 383, 384 (1) (540 SE2d 640) (2000); Tyson v. State, 217 Ga. App. 428, 430 (2) (b) (457 SE2d 690) (1995); see Stansell v. State, 270 Ga. 147, 151 (4) (510 SE2d 292) (1998) (“duty to acquit”).

        Monroe v. State, 272 Ga. 201, 203 (3) (528 SE2d 504) (2000); Berry v. State, 267 Ga. 476, 480 (4) (d) (480 SE2d 32) (1997); Sutton v. State, 262 Ga. 181 (2) (415 SE2d 627) (1992).

        Monroe, supra, 272 Ga. at 203 (3); Berry, supra, 267 Ga. at 480 (4); Sutton, supra, 262 Ga. at 181 (2).

        Monroe, supra, 272 Ga. at 203 (3); see Lemay v. State, 264 Ga. 263, 266 (4) (443 SE2d 274) (1994); Marion v. State, 263 Ga. 358, 359 (3) (434 SE2d 463) (1993).

        Slaughter v. State, 217 Ga. App. 449, 451 (3) (459 SE2d 168) (1995); Padgett v. State, 205 Ga. App. 576, 577 (1) (423 SE2d 411) (1992); Robinson v. State, 164 Ga. App. 652, 657 (6) (297 SE2d 751) (1982); Wade v. State, 147 Ga. App. 511 (2) (249 SE2d 323) (1978).

        Clarke v. State, 241 Ga. App. 186, 191 (2) (526 SE2d 395) (1999); McGee v. State, 205 Ga. App. 722, 723 (4) (423 SE2d 666) (1992); Sweetenburg v. State, 197 Ga. App. 36, 37 (5) (397 SE2d 451) (1990) (“very broad discretion”).

        Porter v. State, 224 Ga. App. 276, 278 (1) (b) (480 SE2d 291) (1997).

        Thomas, supra, 238 Ga. App. at 43 (5); see Hull v. State, 265 Ga. 757, 761 (7) (462 SE2d 596) (1995), overruled in part on other grounds, Woods v. State, 269 Ga. 60, 63 (3) (495 SE2d 282) (1998).

        Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981).

        Caldwell v. State, 245 Ga. App. 630, 633 (4) (538 SE2d 531) (2000).

       Id. at 633-634 (4).

       See OCGA § 16-5-21 (a) (1).

       See OCGA § 16-5-21 (a) (2).

        Brown v. State, 246 Ga. App. 60, 64 (1) (539 SE2d 545) (2000); Davis v. State, 186 Ga. App. 491, 492 (2) (367 SE2d 884) (1988).

        Kelley v. State, 201 Ga. App. 343-344 (1) (411 SE2d 276) (1991); see Rhodes v. State, 221 Ga. App. 792, 795 (8) (470 SE2d 790) (1996).

       See Wyatt v. State, 222 Ga. App. 604, 606 (3) (475 SE2d 651) (1996).


text:
    A01A1016.
    GINN v. THE STATE.
    (553 SE2d 839)
   Miller, Judge.

Christopher Ginn appeals from his conviction for criminal trespass. He claims that the trial court erred by admitting into evidence a statement given to the police by his wife and further claims that there was insufficient evidence to sustain his conviction. Discerning no error in the admission of the evidence and further finding the evidence sufficient to support the conviction, we affirm.

Viewed in the light most favorable to the verdict, the record reveals that on April 24, 2000, Ginn got into an argument with his wife after she returned home from dinner with her children. Ginn was drunk when his wife arrived and suddenly flew into a rage when he could not find any drugs in the house. During the argument, he grabbed a computer keyboard, which was a family gift from Mrs. Ginn’s mother, and destroyed it by throwing it outside.

The police arrived after Ginn ran away from the house and took a statement from Mrs. Ginn about the events that had just occurred. They then took a statement from Mrs. Ginn’s 14-year-old son, who had also witnessed the entire incident. Ginn then returned to the house, still appearing to be drunk, and the police arrested him. Mrs. Ginn never recanted her statement to the police.

Prior to trial, Mrs. Ginn invoked the marital privilege and refused to testify against her husband. Ginn moved to exclude the statement that Mrs. Ginn gave to the police, claiming that it was hearsay. The court denied the motion, ruling that the unavailability of the witness, the reasonableness in time from the event that the statement was given, and the reliability of the statement made it admissible under an exception to the hearsay rule.

At trial, Ginn moved for a directed verdict, claiming that he could not be convicted of criminal trespass since the computer keyboard that was destroyed during the dispute in his home was not the property of another person as required by OCGA § 16-7-21 (a). The court denied the motion, ruling that the jury could reasonably conclude that someone other than Ginn had a property interest in the keyboard with which Ginn had no right to interfere.

1. “The admission of evidence is [a matter] committed to the sound legal discretion of the [trial] judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” Ginn argues that the trial court abused its discretion by admitting into evidence his wife’s statement to police about the incident at his home since this statement was hearsay and did not fall under any exception to the hearsay rule. We disagree.

Hearsay may be admitted under the specific exception of necessity. In order for hearsay evidence to be admissible under this exception, it must be (1) necessary, in that the declarant is unavailable to testify and the statement is relevant to a material fact and more probative than other evidence that may be offered, and (2) trustworthy, in that the statements involved are surrounded by particularized guarantees of trustworthiness.

The evidence in this case met both prongs of the necessity test and was properly admitted. The first prong was met since Mrs. Ginn was unavailable as a witness, as she had invoked the marital privilege and refused to testify against her husband, her statement was relevant to the issue of Ginn damaging items in the house, and her statement was more probative than other evidence that could be offered since she was the actual victim in this case. The second prong was met because the statement was surrounded by particularized guarantees of trustworthiness, in that it was made to police in the course of an official investigation on the same night as the incident, and Mrs. Ginn never recanted the statement or indicated that it was inaccurate in any way.

2. Ginn further argues that the trial court erred by denying his motion for a directed verdict because there was insufficient evidence to show that the damaged computer keyboard was the property of another person. A directed verdict is proper only “[w]here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or not guilty as to the entire offense or to some particular count or offense. . . .”

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.

Decided August 9, 2001.

Stephen T. Smith, for appellant.

Keith C. Martin, Solicitor-General, Michael T. Lesutis, Assistant Solicitor-General, for appellee.

Since a jury could reasonably conclude that Ginn was guilty of the offense as charged, we affirm the conviction.

■ “A person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less. . . .” The evidence revealed that the keyboard that Ginn damaged during the dispute with his wife was a gift to the family from Mrs. Ginn’s mother. A jury could reasonably conclude from this evidence that the keyboard was not Ginn’s property alone, and that his damaging of the property would make him guilty of criminal trespass.

Judgment affirmed.

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

       (Citation and punctuation omitted.) Conyers v. State, 234 Ga. App. 830, 832 (1) (507 SE2d 842) (1998); accord Bradford v. State, 221 Ga. App. 232, 234 (2) (471 SE2d 248) (1996).

       OCGA § 24-3-1 (b).

        Clark v. State, 271 Ga. 6, 10 (5) (515 SE2d 155) (1999).

       See Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (1987).

       See Johnson v. State, 273 Ga. 345, 347-348 (5) (541 SE2d 357) (2001).

       (Punctuation omitted.) OCGA § 17-9-1 (a).

       (Citations and punctuation omitted.) Grier v. State, 218 Ga. App. 637, 638 (1) (463 SE2d 130) (1995).

       OCGA § 16-7-21 (a).

       Cf. Rash v. State, 182 Ga. App. 655 (356 SE2d 719) (1987) (conviction for criminal damage to property of another person upheld despite conflicting evidence that defendant may have had some property interest in the damaged property); see also Jones v. State, 236 Ga. App. 716, 717 (1) (513 SE2d 254) (1999) (In a criminal trespass case, “the State [does] not have to prove the actual ownership of the [property], only that the [property] belonged to someone other than [the defendant].”).


author: Ellington, Judge.

text:
    A01A1177.
    MORRISON v. THE STATE.
    (554 SE2d 190)
   Ellington, Judge.

A Cobb County jury convicted Clyde Morrison of armed robbery, OCGA § 16-8-41, and obstruction of an officer, OCGA § 16-10-24. Following the denial of his motion for new trial, Morrison appeals, contending that the trial court erred in admitting the statements of his nontestifying co-defendants, and that he was denied effective assistance of counsel. For the following reasons, we affirm.

1. Morrison contends the trial court violated his right under the United States and Georgia Constitutions to confront the witnesses against him in that the statements of his nontestifying co-defendants inculpated him.

Viewed in the light most favorable to the verdict, the evidence showed that at about 2:30 a.m. on August 5, 1998, four young men went to a convenience store. While David Jamaine Madric, Jr. and James Augustine Tallent remained in the car, Morrison and Donnell Reginald Wilder went into the store to rob it. Morrison and Wilder each had a shirt wrapped around his head to conceal his face and each carried a handgun. Wilder pushed one clerk against a cooler and demanded money. The other clerk opened the registers. Morrison and Wilder took cash from the register drawers and returned to the car. A police officer responding to the emergency dispatch saw a car leaving the area of the robbery and pursued it. The car stopped at an apartment complex, and the officer attempted to detain all four men. Before backup arrived, Morrison, Wilder and Madric ran away. The officer succeeded in detaining Tallent. Another officer arrived and interviewed Tallent who gave a statement and showed the officer where Morrison lived in the apartment complex. The officer went to Morrison’s residence and found Morrison and Wilder inside. Morrison immediately admitted his involvement and gave a statement. Morrison, Madric and Tallent were tried together.

After a Jackson-Denno hearing, the trial court ruled the statements of Morrison, Madric and Tallent would each be admissible. Counsel agreed to redacted versions so that each defendant’s statement would not refer to any of his co-defendants. Morrison cites eight instances where the officer testifying as to the contents of Tallent’s and Madric’s statements referred to Morrison by name. Morrison contends this evidence violated his right to confrontation under the standards set forth in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968). See Hanifa v. State, 269 Ga. 797, 800 (2) (505 SE2d 731) (1998). The record shows, however, that Morrison made no Bruton objection at trial, and he is, therefore, foreclosed from raising this claim on appeal. Sharpe v. State, 272 Ga. 684, 689 (9) (531 SE2d 84) (2000).

2. In a related enumeration, Morrison contends his trial counsel’s assistance was ineffective in failing to object to the admission of his co-defendants’ statements. To prove his ineffective assistance of counsel claim, Morrison had to show that his counsel’s performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Johnson v. State, 266 Ga. 380, 381 (2) (467 SE2d 542) (1996).

Because Morrison’s own inculpatory statement was admitted, any references in his co-defendants’ statements to his participation in the robbery were cumulative; trial counsel’s failure to object to such cumulative testimony was neither deficient nor prejudicial. Peterson v. State, 212 Ga. App. 147, 151 (4) (441 SE2d 481) (1994). Furthermore, because Morrison’s defense was that he was coerced into participating by fear that Wilder would harm him and Tallent if he refused, repetitive Bruton objections would have served no purpose. Under these circumstances, counsel’s decision not to object falls within the realm of trial strategy, which does not equate with ineffective assistance of counsel. Williams v. State, 239 Ga. App. 598, 599 (2) (521 SE2d 650) (1999). Finally, Morrison has not shown a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s alleged deficiency. See Himmel v. State, 246 Ga. App. 845, 850 (2) (d) (542 SE2d 557) (2000).

3. Morrison contends he was denied effective assistance of counsel in that his attorney repeatedly failed to object to the prosecutor’s comments on his exercise of his constitutional right to silence. Morrison identifies twenty cross-examination questions, which allegedly implied such a comment, and three comments during the State’s closing argument. A review of the State’s cross-examination reveals that, after Morrison testified that he participated in the robbery only out of fear of harm to himself and Tallent, the prosecutor attempted to weaken that defense by highlighting every conceivable opportunity for seeking help that Morrison had passed up. The State’s comments during closing were consistent with that attack on the coercion defense. Because all of the questions and comments related to Morrison’s failure to act or speak before he was arrested, none implicated his right to silence while in custody and at trial. Therefore, the prosecutor’s comments did not violate his right to silence under the United States Constitution. Mallory v. State, 261 Ga. 625, 630 (5) (409 SE2d 839) (1991) (discussing Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976); Jenkins v. Anderson, 447 U. S. 231 (100 SC 2124, 65 LE2d 86) (1980); Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982)).

As Morrison contends, however, Georgia evidence law provides greater protection than the constitutional minimum and prohibits prosecutorial comment on “prearrest silence.” In Jenkins v. Anderson, the United States Supreme Court noted that states are not required to allow impeachment by prearrest silence and “remain! ] free to formulate evidentiary rules defining the situations in which silence is viewed as more probative than prejudicial.” 447 U. S. at 240. In Mallory v. State, the Supreme Court of Georgia laid down such an evidentiary rule, defining any comment on an accused’s prearrest silence or failure to come forward as more prejudicial than probative and disallowing such comments “even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” 261 Ga. at 630 (5).

In this case, Morrison took the stand at trial and provided evidence that he was coerced into participating in the armed robbery — in effect, that he himself was the victim of the crime of assault. The prosecutor’s questions and argument related primarily to Morrison’s failure to report the crime against himself or to seek police protection from his assailant before police officers identified him as a participant or questioned him. Although this line of impeachment arguably “touch [ed] upon” Morrison’s prearrest silence in the broadest sense, we find no violation of Mallory v. State. Mallory v. State addressed the introduction of defendant’s pretrial statement “which included the question why appellant had not come forward to explain his innocence when he knew that he was under investigation and his answer that he was waiting for police to come to him.” (Emphasis supplied.) 261 Ga. at 629 (5). We conclude the rule prohibiting comments regarding prearrest silence is properly limited to a defendant’s silence in the face of questions by an agent of the State or his failure to come forward when he knew that he was the target of a criminal investigation. Wallace v. State, 272 Ga. 501, 503 (2) (530 SE2d 721) (2000) (prohibiting evidence that the defendant reacted physically but did not admit anything when police questioned him about his wife’s death); Mallory v. State, 261 Ga. at 629-630 (5); Gordon v. State, 250 Ga. App. 80 (550 SE2d 131) (2001) (prohibiting evidence that the defendant stood mute when police came to his house to investigate a shooting). We conclude that a prosecutor does not impermissibly comment on prearrest silence merely by showing that the accused’s demeanor and conduct during and after the crime (but before an agent of the State questions him and before he knows he is being investigated) were inconsistent with a defense such as coercion or justification. See Aleman v. State, 227 Ga. App. 607, 608-609 (1) (489 SE2d 867) (1997); Norris v. State, 227 Ga. App. 616, 619 (4) (489 SE2d 875) (1997). See also Hollis v. State, 201 Ga. App. 224, 226 (4) (411 SE2d 48) (1991) (decided before Mallory v. State). In our view, defining “prearrest silence” to include the failure of an accused under the circumstances described here to report a crime or to seek police protection would unduly expand the scope and limits of the privilege against sélf-incrimination at the expense of the duty of the State to enforce the laws and the function of the courts to seek the truth. Because the prosecutor’s questions and argument in this case were not objectionable, the trial court correctly rejected Morrison’s claim that he received ineffective assistance of counsel. Taylor v. State, 272 Ga. 559, 562 (2) (d) (532 SE2d 395) (2000) (where reference to defendant’s silence was not objectionable, trial counsel’s failure to object was not deficient assistance of counsel).

Decided August 9, 2001.

Shandor S. Badaruddin, for appellant.

Patrick H. Head, District Attorney, Thomas A. Cole, Dana J. Norman, Assistant District Attorneys, for appellee.

4. We have considered Morrison’s remaining enumerations of error and have found each to be abandoned, without merit or moot.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

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

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

       We note that many states declined to accept the invitation in Jenkins v. Anderson to adopt such an evidentiary rule and have allowed impeachment by evidence of prearrest silence. See Impeachment of Defendant in Criminal Case by Showing Defendant’s Prearrest Silence — State Cases, 35 ALR4th 731.

        Wallace v. State, 272 Ga. 501, 503 (2) (530 SE2d 721) (2000).

       See K. Jackson, The Right to Remain Silent: The Use of Pre-Arrest Silence in United States v. Oplinger, 150 F3d 1061 (5th Cir. 1998), 68 U. Cin. L. Rev. 505, 528 (2000).

       See Smith v. State, 656 P2d 277 (Okla. Crim. App. 1982):
      Once a defendant decides to testify, the interests of the other party and regard for the function of the courts of justice to ascertain the truth become relevant, and prevail in the balance of considerations determining the scope and limits of the privilege against self-incrimination. Thus, impeachment follows the defendant’s own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial.
      (Citations and punctuation omitted.) Id. at 282-283.


author: Mikell, Judge.

text:
    A01A1294.
    AVANT v. THE STATE.
    (554 SE2d 194)
   Mikell, Judge.

After a bench trial, Duane Scott Avant was convicted of driving under the influence of alcohol to the extent that it was less safe for him to drive and driving with an unlawful alcohol concentration. Avant appeals the denial of his motion to suppress his breath test results on the grounds that his request for an independent blood test was denied. We affirm.

On appeal from the denial of a motion to suppress, “[w]here the evidence is uncontroverted [,] and there is no issue as to witness credibility, ... we review de novo the trial court’s application of the law to the undisputed facts.”

The uncontroverted evidence shows that Officer J. Sellers of the Doraville Police Department arrested Avant for DUI at approximately 1:06 a.m. on May 17, 1999. Immediately thereafter, Sellers read to Avant the Georgia Implied Consent Notice. Avant consented to the breath test and was driven approximately three miles to the Doraville Police Department to take the test. Before leaving the scene, Sellers allowed Avant to call someone to pick up his vehicle since Avant did not want it towed.

Sellers administered the Intoxilyzer 5000 breath test to Avant at the police station. Because Avant’s first breath sample registered 0.141 grams of alcohol, and his second, 0.137 grams of alcohol, Sellers charged him with DUI. Avant then asked for an independent blood test. Sellers testified that he replied, “Do you have any money for it because you have to pay for it,” and Avant told him that he did not have cash or credit. Sellers also told Avant that Dunwoody Medical Center was the closest hospital and that all of the hospitals would require payment.

Sellers testified that he could not remember whether he or Avant placed the call to Dunwoody Medical Center, but Sellers did recall that he actually spoke with a phlebotomist during the phone call. The phlebotomist verified that the hospital would not give Avant a blood test if he did not have cash, a credit card, or a check to pay for it. Sellers testified that after the call, Avant seemed resolved that he was not going to secure an independent test. On cross-examination, Sellers admitted that he did not volunteer to Avant that he could call someone to bring him money or inquire as to whether Avant could obtain money in any other way.

Because he did not secure the independent test, Avant moved to suppress his breath test results. The trial court denied his motion and convicted him of DUI. In his sole enumeration of error, Avant challenges the trial court’s denial of his motion to suppress.

OCGA § 40-6-392 (a) (3) provides that a person charged with a violation of OCGA § 40-6-391 who undergoes a chemical test at the request of a law enforcement officer is entitled to have a qualified person of his own choosing administer an additional test. Law enforcement officers have a corresponding duty not to refuse or fail to allow an accused to exercise the right to have an independent test. We find that in this case the evidence shows that the officer did not interfere with Avant’s ability to secure an independent test, but made a reasonable effort to accommodate his request to do so.

Decided August 9, 2001.

Charles G. Harbin, Jr., for appellant.

Avant does not dispute that he was properly advised of his rights to obtain an independent test. He requested the test, but did not specify the personnel or place at which he wished to have the test administered. Sellers had no obligation to force Avant to choose or contact any particular hospital. Sellers informed Avant that he would have to pay for the test at whatever facility he chose and called the local hospital so that Avant could attempt to arrange a blood test. There is no evidence in the record that by making these statements, Sellers was attempting to mislead Avant or otherwise dissuade him from calling other hospitals to arrange the test.

In Pruitt v. State we held that the defendant was not impeded from obtaining an independent test based on facts strikingly similar to those in the instant case. In Pruitt, the officer suggested the hospital at which the defendant could obtain the test, called the hospital and gave the phone to the accused. However, no additional test was performed because the accused was ultimately unable to pay for it. Similarly here, the defendant was unable to pay for the test, and the officer suggested a hospital and called or allowed the defendant to call that hospital to arrange the test. The fact that the officer told defendant that he would have to pay for the test at whichever facility he chose does not constitute a denial of the defendant’s right to obtain the test. As in Pruitt, the facts in this case “support the trial court’s findings that the officer made a reasonable effort to accommodate defendant’s efforts to obtain an independent test and that he was not impeded from doing so by any conduct on the part of law enforcement.” Accordingly, we affirm.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

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

       OCGA § 40-6-391 (a) (1), (5).

        State v. Becker, 240 Ga. App. 267, 268 (523 SE2d 98) (1999).

        State v. Button, 206 Ga. App. 673, 674 (426 SE2d 194) (1992).

       But see Smith v. State, 250 Ga. App. 583 (552 SE2d 528) (2001). In that case, we reversed the defendant’s DUI convictions because the officer made absolutely no effort whatsoever to accommodate the defendant’s request to have an independent test. The officer testified that he did not comply with the defendant’s request because he thought that the defendant would bond out of jail and obtain the test on his own.

        Wells v. State, 227 Ga. App. 521, 524 (2) (489 SE2d 307) (1997) (officer’s statement that he would take defendant to a local hospital did not violate OCGA § 40-6-392 (a) (3) since the defendant did not object to the officer’s statement and the officer had no obligation to ask defendant to choose a hospital).

       203 Ga. App. 125 (416 SE2d 524) (1992).

       But see State v. Terry, 236 Ga. App. 248, 251 (511 SE2d 608) (1999) (the officer gave the defendant extraneous and misleading information, which violated her implied consent statutory privileges).

        Pruitt, supra at 126 (1).


text:
    A01A1349.
    FLOYD et al. v. GLOVER et al.
    (554 SE2d 207)
    Decided August 9, 2001.

      Harry S. Kuniansky, for appellants.
    Charles Glover, pro se.

    Latasha Glover, pro se.

   Blackburn, Chief Judge.

Charles and Latasha Glover instituted dispossessory proceedings against Anthony and Perlicia Floyd, claiming that the Floyds failed to pay rent pursuant to a lease agreement. Following a bench trial, the trial court entered a writ of possession in favor of the Glovers and ordered the Floyds to pay $2,600 in back rent. The Floyds now appeal this decision, claiming that the trial court misconstrued both the lease and the underlying facts of their case. The record, however, contains neither a copy of the purported lease nor a transcript of the trial proceedings. As such, the Floyds have failed to shoulder their burden to show error by the record. Oliver v. Green. And, in the absence of a transcript, we must assume that the trial court’s judgment below was correct and affirm. Deen v. United Dominion Realty Trust.

Judgment affirmed.

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

        Oliver v. Green, 240 Ga. App. 439 (523 SE2d 68) (1999).

        Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 444 (1) (462 SE2d 384) (1995).


text:
    A01A1428.
    THE STATE v. MIXON et al.
    (554 SE2d 196)
   Mikell, Judge.

The state appeals the trial court’s suppression of evidence discovered during a warrantless “protective sweep” of the home of defendants Donna and John Roscoe Mixon. A “protective sweep” is a limited search of the house primarily to ensure officer safety by detecting the presence of other occupants. Inglett v. State, 239 Ga. App. 524 (521 SE2d 241) (1999). Following the suppression hearing, the court concluded that the warrantless search was unlawful and granted the motion. We affirm the trial court’s ruling.

The evidence adduced at the suppression hearing demonstrated that on August 7, 1997, United States Postal Inspector Ronald Monroe Williams intercepted a package mailed from San Antonio, Texas, to Alma, Georgia, addressed to Donna Dale. Williams was notified that the package had been singled out by a drug-detecting dog. Williams arranged for a “parcel lineup,” where another drug dog “alerted on” the package. The inspector obtained a search warrant. When the package was opened, postal inspectors discovered approximately 28 pounds of marijuana inside. The package was then rewrapped in order for the authorities to execute a “controlled delivery.”

The package was addressed as follows: “Donna Dale, Rt. 2, Box 91, Radio Station Road, Alma, GA 31510”; however, the Alma postal employees did not know of a person by that name in town, and it was not a valid address. The record showed that defendants John Roscoe and Donna Mixon’s address was nearly identical to the incorrect address on the package, except that theirs was Box 191 instead of Box 91. Postal clerk Dana Boatwright Carter testified that Mr. Mixon retrieved a package addressed identically to the one at issue in July 1997. Additionally, Mrs. Mixon had mailed a package to an address in Texas using the name Donna Dale on the express mail slip along with her correct address.

A postal clerk attempted to contact Mrs. Mixon regarding the package but instead located her mother, Mary Alice Carter, and left a message that there was a package at the post office that may belong to her family. Carter went to the post office to retrieve the package, where postal inspector Williams, posing as a mail carrier, showed it to her. Carter called her grandson, Mrs. Mixon’s son, defendant Jamie Knight, and he advised her to take the package. At that time, Carter signed for the package, and Williams placed it in the back of her pickup truck.

Law enforcement officers followed Carter as she drove to the Mixon residence from the post office. Carter parked in the driveway, with her truck partially under the attached carport. Defendant Knight, the only person at the residence at the time, came out of the house and looked at the package in the bed of the truck. Knight concluded that it was not the package he was expecting and did not remove it from the truck.

The police officers then approached Carter and Knight, and Officer John Murray ordered a protective sweep of the residence. The officers conducted a sweep of the home, during which they observed marijuana and drug-related paraphernalia. Next, Agent John Blood-worth of the Southeast Georgia Drug Task Force entered the home. He testified that “I wanted to see what they found before I went [to obtain a search warrant], you know.” At the time of the initial protective sweep and the subsequent entry into the home by Agent Blood-worth, a search warrant had not been obtained, and no one had been placed under arrest. Furthermore, the package remained in the bed of the truck where Inspector Williams had placed it. Subsequently, a search warrant was obtained and executed, resulting in the seizure of marijuana and two shotguns. The Mixons, Knight, and Michael Carter, a fourth occupant of the Mixon residence, were arrested.

The court determined that the police officers did not possess a reasonable belief that the Mixons’ home harbored an individual posing a danger to them, as required by Maryland v. Buie, 494 U. S. 325 (110 SC 1093, 108 LE2d 276) (1990). Accordingly, the trial judge granted the defendants’ motion to suppress all evidence seized by virtue of any entry into the Mixon home, and this appeal followed.

When reviewing the grant or denial of a motion to suppress, we apply the clearly erroneous standard. “Unless clearly erroneous, the trial court’s rulings on disputed facts and credibility at a suppression hearing must be accepted. . . .” State v. Williams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994). “The credibility of the witnesses and the weight to be accorded their testimony rest with the trier of fact, who is under no obligation to believe a witness, even in the absence of contradictory testimony.” State v. Williams, 193 Ga. App. 462 (388 SE2d 55) (1989).

We cannot conclude that the trial court’s grant of the motion to suppress was clearly erroneous. We have previously held that officers may conduct a protective sweep in connection with an in-home arrest when they possess “articulable facts which, taken together with the rational inferences from those facts, would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene.” (Punctuation omitted.) Inglett, supra at 525 (1), citing Maryland v. Buie, supra at 334. The trial court did not err in concluding that the protective sweep in the case at bar did not comply with the above standard. As a preliminary matter, the sweep was not conducted in connection with an in-home arrest, as none of the defendants had been placed under arrest at the time. In fact, defendant Knight was the only occupant of the residence present during the warrantless sweep.

Furthermore, the trial court was authorized to conclude that the officers did not possess a reasonable belief, based on articulable facts, that the home harbored a dangerous individual. Officer Murray testified that he ordered the protective sweep “to make sure that no one there is standing around, extra bodies in place, and anybody that might do harm to law enforcement officers. At that time we also make sure they take no steps to destroy any evidence or contents or any damages are done.” However, his further testimony established that the officers did not know if anyone else was in the house. Based on the evidence, the trial court concluded that, not only did the officers not possess a reasonable belief that the house contained an individual posing a danger, they did not know whether anyone was in the house at all. Accordingly, because the trial court’s ruling was not clearly erroneous, we affirm the grant of the motion to suppress.

Decided August 9, 2001.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellant.

George L. Hoyt, Jr., for appellees.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A1523.
    JACKSON v. THE STATE.
    (554 SE2d 202)
   Mikell, Judge.

Michael Leon Jackson was convicted of four counts of child molestation based on incidents involving his two stepdaughters. The trial court denied his motion for new trial, and this appeal followed. Jackson argues that the court improperly expressed an opinion by posing questions to a defense witness and that his counsel rendered ineffective assistance. We disagree and affirm.

The record shows that in 1996 Jackson married Effie Mae Hamm, who had two daughters, T. H., age ten, and J. H., age six. Initially, Jackson and his wife slept in a pickup truck covered with a “camper” parked outside the family home, while the children slept inside. In 1998, Hamm underwent surgery and began sleeping in the house during her recuperation. Her daughters took turns sleeping with Jackson in the pickup truck.

T. H. testified that around the time of her eleventh birthday, on a night when she was sleeping in the truck with Jackson, he reached under her nightgown and panties and inserted his fingers into her vagina. She further testified that Jackson placed her hand on his erect penis. T. H. testified that she did not tell anyone what Jackson had done because she was afraid.

The record further shows that the family moved to an apartment complex several months later. T. H. testified that on one occasion, Jackson climbed into her bed at the apartment, put his hand inside her panties, and fondled her vagina. T. H. also described a third incident in the summer of 1998 when Jackson took T. H. and J. H. on a trip to Florida. T. H. testified that Jackson touched her vagina while she slept in the truck with J. H.

There was evidence that Jackson also molested J. H. She testified that on a day she stayed home from school, she was sleeping in the living room when Jackson lay down next to her, reached inside her underwear, and rubbed her “private area” with his hand. When presented with a diagram, J. H. indicated that Jackson touched her vaginal area.

In December 1998, after T. H. learned that Jackson had also molested her younger sister, T. H. told a school counselor that her stepfather had touched her. The counselor contacted the authorities, and Jackson was arrested.

1. On appeal, Jackson first argues that his conviction should be reversed because the trial judge intimated his opinion as to Jackson’s guilt in violation of OCGA § 17-8-57 when he questioned a defense witness. We reject this argument.

Rufus Ray, Hamm’s teenaged son, testified that his half-sisters, T. H. and J. H., his grandmother, a male cousin, and his brother all resided in the home with Jackson and Hamm before the family moved to an apartment. Ray further specified where each family member slept in the crowded home. After defense counsel and the state had an opportunity to examine the witness, the court stated, “I want to make sure I understand the sleeping arrangements out on Bethel Road.” The court proceeded to ask Ray to explain again where the family members slept and inquired why the young girls were required to sleep outside in the truck with Jackson.

According to OCGA § 17-8-57, it is error for a judge to “express or intimate his opinion as to what has been proved or as to the guilt of the accused.” Jackson does not specify what portion of the court’s examination constitutes a violation of OCGA § 17-8-57; rather, he simply argues that the jury could have determined that the judge was suspicious of the sleeping arrangements.

Contrary to Jackson’s argument, the court’s straightforward inquiries were not an improper expression of its opinion of the case. See Denny v. State, 226 Ga. App. 432, 435 (10) (486 SE2d 417) (1997). Unlike the judge in Paul v. State, 272 Ga. 845, 846 (1) (537 SE2d 58) (2000), who “intimated his opinion as to the credibility of witnesses and the guilt of the defendant,” the court in the case sub judice simply asked Ray to clarify his testimony regarding the sleeping arrangements in the home, without commenting on the evidence or the guilt of the defendant.

It is well settled that a trial court may question a witness in order to develop the truth of a case. Eagle v. State, 264 Ga. 1, 3 (3) (440 SE2d 2) (1994).

Though a judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the trial judge does have the right to propound a question or series of questions to any witness for the purpose of developing fully the truth of the case. The extent to which the examination conducted by the court shall go is a matter within the court’s discretion.

Calloway v. State, 199 Ga. App. 272, 274-275 (7) (404 SE2d 811) (1991), citing Eubanks v. State, 240 Ga. 544, 546-547 (2) (242 SE2d 41) (1978). We find no abuse of discretion in the case at bar.

Furthermore, at the close of the trial, the judge charged the jury as follows:

[D]uring the course of the proceedings, I asked a question or two of the witnesses and so on. And I want to give you this instruction. By no ruling or comment which the court has made during the progress of the trial has the court intended to express any opinion upon the facts of this case. . . . [Wjhatever the facts of this case are, is a matter for you, the jury, to decide. The court has not intended to express any opinion, ladies and gentlemen, upon the credibility of the witnesses. . . . [T]he issue of credibility of witnesses and believability of witnesses and the weight to be given their testimony is a matter entirely for you, the jury, to decide.

Accordingly, we conclude that the court did not violate OCGA § 17-8-57. See Hunt v. State, 247 Ga. App. 464, 469 (5) (542 SE2d 591) (2001).

2. Next, Jackson argues that he was denied effective assistance of counsel. Jackson’s trial counsel withdrew from the case following the verdict, and his present attorney filed an amended motion for new trial alleging ineffective assistance of counsel. Following a hearing, the court denied Jackson’s motion for new trial. We affirm.

In order to establish ineffective assistance of counsel, Jackson must show that his trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994). Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. Pace v. State, 239 Ga. App. 506, 510 (7) (521 SE2d 444) (1999).

Jackson argues that his trial counsel’s performance was deficient because she did not object to the court’s examination of Ray or move for a mistrial following the court’s colloquy with the witness. Jackson erroneously contends that counsel’s failure to object rendered the argument waived and not subject to appellate review.

Decided August 9, 2001.

April Dabney-Froe, for appellant.

Richard R. Read, District Attorney, for appellee.

Counsel’s failure to object did not prejudice Jackson’s defense, as the allegation of a violation of OCGA § 17-8-57 is subject to appellate review under plain error analysis. Paul, supra at 848-849 (3). Moreover, as we concluded in Division 1, the trial court did not improperly express its opinion in this case. Thus, defense counsel’s failure to object did not constitute deficient performance. Accordingly, the trial court did not err in denying Jackson’s motion for new trial on this ground.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A2088.
    CLOER v. THE STATE.
    (554 SE2d 206)
   Miller, Judge.

Dan Cloer has appealed his misdemeanor conviction for DUI arising from a bench trial. His sole argument is that the court erred in denying his motion to suppress the evidence obtained by an officer at a roadblock. The trial court based its ruling on evidence received at a hearing on the motion to suppress. Although Cloer in his initial notice of appeal asked that the transcript from the hearing be included in the record on appeal, he amended that notice to exclude the transcript.

In his appellate brief, Cloer challenges as unsupported by evidence the court’s findings that the officer was acting with supervision pursuant to department policy, that the delay caused by the roadblock was minimal, and that the roadblock was well identified. Cloer complains that the officer had no plan for the roadblock and “provided no methodology to the court” as to how he conducted the roadblock. “[H]e simply pulled over the cars he wanted to.” Cloer complains further that “[t]here was no evidence recited by the court as to how long the delay lasted.” Finally, Cloer argues that the evidence showed the roadblock was not well identified.

Upon receipt of this brief, the State moved this Court for an extension of time to file its brief so that the State could have the motion to suppress hearing transcribed and added to the appellate record. There is no need for this Court to consider lengthy extensions to cure problems created by the appellant. Here, even though the challenges to the suppression ruling are all evidentiary based, Cloer has consciously chosen to exclude the transcript of the evidentiary hearing. “Absent a transcript of the suppression hearing, we must assume as a matter of law that the evidence presented supported the findings of the court. [Cits.]” Boston v. State, 226 Ga. App. 17, 18 (3) (485 SE2d 578) (1997). We must assume further that “the court properly exercised its judgment and discretion in denying the motion to suppress.” (Citations and punctuation omitted.) Aaron v. State, 203 Ga. App. 658, 659 (2) (418 SE2d 66) (1992); see Hasty v. State, 195 Ga. App. 427 (394 SE2d 800) (1990).

Decided August 9, 2001.

Fraser & Fraser, Mark S. Fraser, for appellant.

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

Judgment affirmed.

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