text:
    A99A1626.
    DARBY v. THE STATE.
    (521 SE2d 438)
   Eldridge, Judge.

Appellant Allan Walter Darby was arrested and charged with operating a motor vehicle after revocation of his motor vehicle license as a habitual violator and giving a false date of birth to a law enforcement officer. After a bench trial, he was found guilty of operating a motor vehicle after revocation of his motor vehicle license as a habitual violator. Appellant appeals his conviction and the denial of his motion to suppress.

At approximately 6:00 p.m. on October 1, 1998, Officer David M. Bradbury initiated a traffic stop of appellant in DeKalb County. Officer Bradbury testified that he was driving behind defendant’s car on South Hairston Road when he noticed a crack at least a foot long in the windshield of defendant’s car. Officer Bradbury testified that the crack was visible from the driver’s right shoulder to the left shoulder of the passenger. Based on his observation of the crack, Officer Bradbury pulled over appellant’s car. The officer testified that the cracked windshield was the only reason he stopped appellant’s car; he observed no other traffic violations and no dangerous driving.

The officer further testified that upon stopping appellant, he requested to see his driver’s license and proof of insurance. Appellant provided the officer with proof of insurance but stated that he did not have his driver’s license in his possession. Officer Bradbury then requested appellant’s name and date of birth. In response to Officer Bradbury’s inquiry, appellant stated his name was Walter Darby and his date of birth was August 19, 1960. A computer check indicated that a driver’s license had not been issued to anyone with the name and birth date appellant gave to Officer Bradbury.

Two other police officers arrived to assist Officer Bradbury. Officer Bradbury testified that one of the other officers handed him papers which gave defendant’s complete name and indicated that he had the status of habitual violator. Appellant then gave Officer Bradbury a date of birth of August 18,1960. When Officer Bradbury ran a computer check using appellant’s full name and correct date of birth, he determined that appellant’s license was suspended as a habitual violator. The officer then arrested appellant. After appellant’s arrest, a probationary license was found in appellant’s wallet. However, a computer check showed the probationary license had expired on May 30, 1998.

1. Appellant argues that the trial court erred in failing to grant his motion to suppress as Officer Bradbury lacked probable cause or articulable suspicion to stop his vehicle.

In reviewing a motion to suppress,

[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

At the hearing on the motion to suppress, appellant testified that the crack in his windshield was a starburst or spider web pattern about two inches in width, with one linear crack which at the time of the stop was about two to three inches long and, at the time of the hearing, had increased to about six inches in length. On cross-examination, Officer Bradbury was shown a picture of appellant’s windshield. Officer Bradbury testified that the starburst appeared to be between one and one-half and two inches in width, but that cracks appeared to spider web out beyond the actual starburst. Appellant argues that because OCGA § 40-8-73 (e) provides that “[n]o motor vehicle shall be operated with a windshield or rear window having a starburst or spider webbing effect greater than three inches by three inches,” that he was not in violation of the statute and that the stop by Officer Bradbury was pretextual.

In Terry [v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968)], the court stated: momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inference from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.

(Citation and punctuation omitted.) Garmon v. State, 235 Ga. App. 671, 676 (510 SE2d 350) (1998). In determining whether an investigatory stop met these requirements, “we examine whether the detaining officer had a particularized and objective basis for reasonably suspecting that the particular individual stopped was or had been engaged in criminal activity.” (Footnote omitted.) Thomason v. State, 268 Ga. 298, 301 (2) (a) (486 SE2d 861) (1997).

Applying these principles here, we conclude that Officer Bradbury’s initial stop of appellant was supported by reasonable and articulable suspicion. Before an officer can charge an individual with a violation of OCGA § 40-8-73 (e), the officer must make a determination that the break in the vehicle’s windshield has a starburst or webbing effect greater than three inches by three inches. Often, such a determination cannot be made absent a traffic stop, so that the officer may examine and measure the break in the windshield. “[A]n investigative stop can be utilized to determine if a law is being broken.” (Emphasis in original.) Jordan v. State, 223 Ga. App. 176, 178 (1) (477 SE2d 583) (1996). Officer Bradbury, who was traveling behind appellant, testified that he was able to see a crack of more than a foot in length in appellant’s windshield. A rational inference could be drawn by Officer Bradbury that such crack emanated from a starburst. Officer Bradbury’s observation of such crack gave him a specific, articulable reason to stop appellant’s vehicle to investigate if such crack emanated from a starburst and if such starburst was in violation of OCGA § 40-8-73.

2. Appellant argues that the trial court erred by failing to suppress and exclude from admission at trial evidence that was seized in violation of the Fourth Amendment of the United States Constitution and the correlative provisions of the 1983 Constitution of the State of Georgia.

(a) Having found in Division 1 that Officer Bradbury was justified in making a brief investigative Terry stop of appellant’s vehicle to determine if the crack in appellant’s windshield violated OCGA § 40-8-73, Officer Bradbury’s actions in initially stopping appellant did not violate the Fourth Amendment of the United States Constitution. Davis v. State, 236 Ga. App. 32-33 (510 SE2d 889) (1999); Brant-ley v. State, 226 Ga. App. 872, 873 (487 SE2d 412) (1997); see also Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996). “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape.” (Citation and punctuation omitted.) Coley v. State, 177 Ga. App. 669, 670 (341 SE2d 9) (1986).

Having effected a valid traffic stop, the officer was authorized to request and examine appellant’s driver’s license (or in this case, request appellant’s name and date of birth, since appellant stated that he had left his driver’s license at home), vehicle registration, and proof of insurance; to run a computer check on such documents; and to question appellant regarding the break in his windshield. See Rogers v. State, 206 Ga. App. 654, 657 (426 SE2d 209) (1992); Raney v. State, 186 Ga. App. 758, 759 (368 SE2d 528) (1988). Appellant was placed under arrest after the computer check showed that appellant’s driver’s license had been suspended because he was a habitual violator. The fact that the officer did not charge appellant with a violation of OCGA § 40-8-73 is immaterial. See Buffington v. State, 228 Ga. App. 810 (492 SE2d 762) (1997). Under the facts of this case, there was no violation of appellant’s Fourth Amendment rights.

Decided July 30, 1999.

Charles T. Magarahan, Aubrey T. Villines, Jr., for appellant.

J. Tom Morgan, District Attorney, James M. McDaniel, Barbara B. Conroy, Assistant District Attorneys, for appellee.

(b) On appeal, appellant argues that, in the instance of pretex-tual stops, the Georgia Constitution should be interpreted to provide greater protection to citizens than the Fourth Amendment of the United States Constitution.

This is a question of constitutional construction which will have to be decided by the Supreme Court of Georgia. Because the [trial] court did not err in finding no pretext, this issue is not reached for review and no transfer to the Supreme Court is required. Moreover, the state constitutional question, although raised in the written motion, was not explicitly ruled on below, which also precludes review.

(Punctuation and footnotes omitted.) Davis v. State, supra at 32-33; Brantley v. State, supra at 873. See also Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (Supreme Court has exclusive jurisdiction of interpretation of state constitution); Marr v. Ga. Dept. of Ed., 264 Ga. 841 (452 SE2d 112) (1995) (party must elicit specific ruling on constitutional question to preserve it for appellate review).

Judgment affirmed.

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

       The trial court found appellant not guilty of giving a false date of birth to a law enforcement officer.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A1651.
    BARNES v. THE STATE.
    (521 SE2d 425)
   Eldridge, Judge.

On March 22, 1999, defendant-appellant Denise Barnes pled guilty to three counts of criminal trespass for intentionally damaging property which belonged to her landlady. Following a restitution hearing on March 31, 1999, the trial court required Barnes to pay $780 in restitution to the victim. On appeal, Barnes challenges the amount of restitution.

The facts presented at the restitution hearing are as follows: In early August 1996, Minnie Kate McCrary agreed to rent a room in her home for $120 per week to Barnes and Barnes’ boyfriend. Three weeks later, Barnes moved her two teenage boys into the home without McCrary’s permission, and McCrary told Barnes that she did not have enough room for all four people. McCrary informed Barnes that Barnes would have to relocate but that, in the meantime, she would have to pay an additional $85 per week in rent for the boys to stay in a separate room. Barnes agreed, but did not make any other arrangements for housing. Barnes never paid rent for the boys and paid only a small portion of her rent during October and November. On October 14,1996, McCrary gave Barnes a legal notice to vacate and, when Barnes still did not leave, filed a dispossessory warrant against Barnes in November. Barnes answered but did not appear at the hearing on the warrant. On December 4, 1996, McCrary won a default judgment against Barnes in the amount of $1,850 in unpaid rent.

Upon returning home the same day, McCrary was unable to get into her home because Barnes had broken off a key in the lock. When McCrary finally got into her home, she discovered that Barnes had placed a glue-like substance all over a mahogany dresser, the inside of a stove, and the hardwood floor. Barnes had taken a large paper clip and carved into the top of the dresser; glued the drawers shut, so that they would not open; and glued the dresser to the floor. The stove’s heating element and the self-cleaning surface were ruined. The glue had eaten through the varnish of the floor.

McCrary contacted the police, who told her to take pictures of the damage and, if the damage exceeded $500, to swear out a warrant. McCrary swore out a warrant on December 7, 1996, and Barnes was arrested. After Barnes’ arrest, she and McCrary went to mediation to resolve issues involving the amount of unpaid rent and property damage. Following mediation, on July 8, 1997, the parties agreed on the following: the amount of unpaid rent would be set at $1,123 and the property damage set at $1,445, totaling $2,568; Barnes would be allowed to pay this off at a rate of $200 per month; and, if such payments were made in a timely manner, McCrary would petition the trial court to drop the criminal trespass charges against Barnes. However, Barnes failed to make most of the payments and, by February 1999, had paid McCrary only $1,320 of the $2,568 owed, leaving a balance of $1,248. Barnes’ prosecution went forward, and on March 22,1999, Barnes pled guilty to three counts of criminal trespass. During sentencing, Barnes requested a restitution hearing.

At the restitution hearing, McCrary presented evidence regarding the value of the dresser, stove, and floor. As to the dresser, she opined that it would cost at least $770 to repair the dresser. This opinion was based, inter alia, on the fact that she took the dresser in her truck to three different furniture restoration businesses and the lowest repair estimate was $770. McCrary presented the trial court with written repair estimates from each company.

McCrary testified that she had had the hardwood floor refinished “about six or seven months” before Barnes moved in. She stated that, after the damage was inflicted, she had the floor sanded and refinished at a cost of $450 and presented a receipt therefor.

Regarding the stove, McCrary testified that the pre-damage, fair market value was $650, based upon the fact that it was only “a couple of months old” when Barnes moved in in August 1996 and that it cost $650 new, plus delivery and connection fees. She stated that she had contacted an appliance sales and service company and, following their instructions, had attempted to clean the surface without success. She replaced the heating coil at a cost of $48, but testified that, in her opinion, the stove could not be repaired to its pre-damaged condition.

Barnes did not testify at the hearing, but her counsel extensively cross-examined McCrary. Following argument by counsel, the trial court found that the preponderance of the evidence demonstrated that McCrary was entitled to $1,822 in restitution, broken down as follows: replacement of the stove at a cost of $602 ($650 minus the cost of $48 heating element); repair of the dresser at a cost of $770; and reimbursement for repair of the floor at a cost of $450. The trial court credited $670 to Barnes, which was approximately half of the amount she had paid under the mediation agreement, and ordered her to pay McCrary $1,152, plus 12 percent interest. However, the trial court subsequently reduced the restitution amounts to $500 for the dresser, $500 for the stove, and $450 for the floor, in order to comply with the valuation limitations of the criminal trespass statute, OCGA § 16-7-21 (a). Therefore, after crediting $670 to Barnes, the trial court ordered her to pay $780 to McCrary, with no interest attached. Barnes appeals from this order. Held:

1. In her first enumeration, Barnes claims that the trial court improperly based the amount of restitution upon inadmissible hearsay testimony. This contention lacks merit.

In Maddox v. State, 157 Ga. App. 696, 697 (278 SE2d 480) (1981), this Court held that

[t]he question of value is a matter of opinion, and as to questions of opinion, the witness may swear to his opinion or belief, giving his reasons therefor. One need not be an expert or dealer in the article, but may testify as to value if he has had an opportunity for forming a correct opinion. The owner of property is considered to be qualified to state his opinion as to value. Opinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion. . . . The victim in this case proved her knowledge and familiarity with the items, and gave reasons for the value she assessed as to each item. It is not objectionable that her opinion as to value might, in some cases, be based on hearsay. Moreover, she did not purport to represent such hearsay as truth or fact, but used it to show the foundation or basis for her opinion. The credibility of this witness was for the trier of fact. The witness was thoroughly cross examined, particularly as to the bases for her opinions of value; if her testimony fell short of establishing the value, there was ample opportunity for the defendant to show it, and whether [she] did so was a question for the trier of fact.

(Citations and punctuation omitted; emphasis supplied.) See also OCGA §§ 24-9-65; 24-9-66; Vitello v. Stott, 222 Ga. App. 134,136 (473 SE2d 504) (1996); Loggins v. Mitchell, 201 Ga. App. 358, 359 (1) (411 SE2d 98) (1991); Dixon v. Williams, 177 Ga. App. 702, 704 (340 SE2d 286) (1986); B & L Svc. Co. v. Gerson, 167 Ga. App. 679, 681 (307 SE2d 262) (1983) (valuations may be based in whole or in part on hearsay, and this would go to its weight, not admissibility); Hoard v. Wiley, 113 Ga. App. 328, 331-332 (1) (147 SE2d 782) (1966) (value is necessarily a matter of opinion, and such opinion is admissible as long as the witness provides the foundation underlying such opinion).

(a) In this case, contrary to Barnes’ assertions, the trial court did not base its restitution amount for the dresser solely on the written repair estimates, but considered McCrary’s testimony as owner of the property; her opinion as to both the cost of repair and the pre-damage, fair market value; and the photographs of the damaged property that she submitted. See Anderson v. Chatham, 190 Ga. App. 559, 563 (3) (379 SE2d 793) (1989). The State admitted the written estimates in order to establish part of the basis of McCrary’s opinion as to such costs, not as evidence going to the truth of the matter asserted. See OCGA § 24-3-1 (a); Hurston v. State, 194 Ga. App. 226 (390 SE2d 119) (1990). Therefore, there was no error as to the proof of damage to the dresser in this case.

As such, this case is distinguishable from In the Interest of A. F., 236 Ga. App. 60 (1) (510 SE2d 910) (1999), wherein the victim did not give an opinion as to the amount of damages, but submitted only a repair estimate as proof. This was deemed inadmissible hearsay and, therefore, insufficient evidence to find beyond a reasonable doubt the element of the crime of criminal damage to property. Further, the case relied upon by Barnes, Cardwell v. State, 225 Ga. App. 337, 338 (484 SE2d 38) (1997), is also distinguishable. In that case, the victim’s only evidence as to the value of a damaged, second-hand CD player was not the price he actually paid, but the original price allegedly paid for the item by an unidentified third party.

(b) As to the floor, McCrary testified as to the actual cost she paid to have it repaired. Such testimony is not hearsay. OCGA § 24-3-1(a).

(c) Finally, contrary to Barnes’ assertion, McCrary’s opinion as to the value of the stove was not based upon the advice of the appliance service company, but was based upon her personal knowledge. She testified that she had purchased the stove for $650 plus costs approximately seven months before the damage was incurred. McCrary submitted photographs of the damaged property and testified about her efforts to salvage the stove. Such evidence demonstrates that McCrary had the opportunity to formulate an opinion about the value of the stove and amounts to more than a mere approximation of such value. See Vitello v. Stott, supra; Maddox v. State, supra. Compare Lovell v. State, 189 Ga. App. 311, 313 (375 SE2d 658) (1988). McCrary’s failure to present purchase receipts for the property to support her assertions goes only to the weight, not the admissibility, of her testimony. Barnes’ counsel also had full opportunity to cross-examine McCrary regarding the value and costs associated with the damaged property. See Maddox v. State, supra; Hagin v. Powers, 140 Ga. App. 300, 303 (2) (231 SE2d 780) (1976). There was no error.

2. In her second enumeration, Barnes contends that the trial court improperly based the amount of restitution for the stove on its replacement value, rather than its fair market value. Barnes relies on this Court’s statement in Cardwell v. State, supra at 338, that “[flair market value is the measure of such damages and it must be determined exactly.” This enumeration lacks merit.

“One of the two primary goals of restitution is, as nearly as possible, to make the victim whole.” Garrett v. State, 175 Ga. App. 400, 403 (2) (333 SE2d 432) (1985). Under the restitution provisions of OCGA § 17-14-2 (2), “ ‘[damages’ means all damages which a victim could recover against an offender in a civil action . . . based upon the same act or acts for which the offender is sentenced,” with some exclusions not applicable herein. However, the “amount of restitution ordered may be equal to or less than, but not more than, the victim’s damages.” OCGA § 17-14-9. See also OCGA § 51-12-4; Garrett v. State, supra at 400. This Court has also held that “the sufficiency of evidence to support an order of restitution should be measured by the civil standard of preponderance of the evidence. [Cit.]” Lawrenz v. State, 194 Ga. App. 724, 725 (1) (391 SE2d 703) (1990).

In this case, McCrary testified that the July 1996 fair market value of the stove was $650. This testimony was based upon the fact that she had purchased the stove for $650, plus transportation and installation costs, “a couple of months” before Barnes moved in in August 1996. Therefore, at the time the stove was damaged in December 1996, it was approximately seven months old. In its amended order of restitution, the trial court found as a matter of fact that the stove could not be repaired to its pre-damaged condition and ordered Barnes, to pay only $500 toward the cost of replacement. Cf. Mercer v. J. & M. Transp. Co., 103 Ga. App. 141, 143 (2) (118 SE2d 716) (1961). The preponderance of evidence supports a determination that this reduction in value encompassed any depreciation in value that took place during the seven months of ownership. Compare Revis v. State, 223 Ga. App. 470, 471 (477 SE2d 880) (1996). Therefore, the same measure could be utilized as the minimum fair market value of the stove immediately prior to the damage inflicted by Barnes. Accordingly, there was no error.

3. Finally, Barnes contends that the trial court erred in failing to give her credit for $1,320 toward any restitution requirement. This figure represents the total amount that Barnes paid to McCrary pursuant to their mediation agreement, which addressed amounts owed by Barnes for both unpaid rent and property damage. Pursuant to OCGA § 17-14-6, the trial court considered the previously paid restitution in entering its order and determined that this restitution was to be credited equally to the unpaid rent and to the property damage that was the subject of the sentence herein. See also OCGA § 17-14-10 (5).

Decided July 30, 1999.

Maryann F. Blend, for appellant.

Gwendolyn R. Keyes, Solicitor, Ann S. Brumbaugh, Pilar Gigante, Assistant Solicitors, for appellee.

In her argument to this Court, Barnes cites to no authority that requires a trial court to credit the entire amount of previously paid restitution to any subsequent restitution order, and we have found none. See Court of Appeals Rule 27 (c) (2). Therefore, this Court holds that the decision regarding the amount of restitution to be credited to the defendant, if any, lies within the purview of the trial court and will not be reversed absent an abuse of discretion. See OCGA §§ 17-10-1 (a) (1); 42-8-35 (7). This rule is particularly applicable in a situation such as this, wherein other bases for restitution or compensation exist between the parties. Accordingly, this Court finds that the trial court did not abuse its discretion in calculating the amount of restitution to be credited to Barnes.

Judgment affirmed.

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

       Under OCGA § 16-7-21 (a), a person commits the offense of criminal trespass when she “intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less.”

       This amount was approximately $700 less than the default judgment for unpaid rent in the amount of $1,850.

       This amount was broken down as follows: $770 for furniture repair; $450 for floor repair; and $225 for damage to the stove.

       We note that, in cases of property damage, a diminution in fair market value may be the most appropriate measure of damages and, therefore, restitution. However, to hold that such measure is appropriate in all restitution cases
      would be to ignore the statutory scheme established and the myriad measure of damages possible, depending upon the acts of the offender, how the property was disposed, any recovery, the condition of property recovered, and the type of property involved.

        Garrett v. State, 175 Ga. App. 400, 404 (333 SE2d 432) (1985).


text:
    A99A1817.
    RANSOM v. THE STATE.
    (521 SE2d 430)
   Eldridge, Judge.

Rico Ransom appeals from a DeKalb Superior Court’s order denying his motion to suppress evidence obtained pursuant to an allegedly illegal detention and resulting chase arising from the following set of facts adduced at the motion hearing:

DeKalb County Police Officer B. Davis testified that he was patrolling in a marked police car by Cedar Park in Scottsdale, DeKalb County, at approximately 11:30 a.m. The area, and the park in particular, is a target for police patrols because it is a high drug crime area. Officer Davis “has made a lot of arrests out of that area for drug activity,” including several arrests in Cedar Park itself. “Hundreds of complaints” by area residents are received by the DeKalb police department regarding prostitution and the sale of drugs in the area. Davis also had made several firearm arrests in the park.

On the day at issue, Davis saw appellant Rico Ransom and three other men standing around the park’s basketball court, apparently doing nothing. Davis pulled over and exited his patrol car. As he approached the men, Officer Davis saw Ransom and another man hide behind a large oak tree adjacent to the basketball court. When Davis reached the group, Ransom and the other man came out from behind the tree. Davis asked the men what they were doing. One man, Tyrone Flemister, replied, “playing basketball.” Davis inquired about the absence of a ball. After several moments of consternation, Flemister stated that they were waiting for another person to arrive with a ball.

At that point, to Officer Davis, the totality of the circumstances provided a basis for a Terry-type pat-down of Flemister based upon Flemister’s presence at an active and known drug sale location for no other apparent purpose; what appeared to be furtive behavior on the part of two members of the group in hiding behind a tree upon the approach of a law enforcement officer; Flemister’s apparent falsehood regarding a purpose for being at a known drug sale location; and personal experience that likened the current situation to others Davis had personally encountered in the past when making drug sale arrests.

As the officer began to pat down Flemister, two members of the group walked away. However, Rico Ransom, upon viewing the pat-down, “just took off; flat out ran.” Prior to this point, no physical motion or spoken word had been directed toward Ransom. Officer Davis gave chase and ordered Ransom to stop. Ransom ignored the officer’s command and kept running. During his flight, Ransom discarded on a nearby creek embankment what appeared to be a gun and ammunition magazine. Ransom then ran into the creek, where Davis saw him reach into his clothing and pull out a plastic bag and drop it into the creek. After a few more minutes, Davis and subsequent backup officers were able to detain Ransom in the creek. The plastic bag was recovered, and it contained 15 small ziplock bags of crack cocaine, totaling 22 grams in weight. A Glock 9mm handgun and ammunition magazine were recovered from the creek embankment. Ransom was then taken into custody. Thereafter, he told Davis that the gun was his, but the drugs were not.

Ransom and Tracy Ross, who had been part of the foursome at Cedar Park, testified at the motion to suppress hearing. They testified that the men had, in fact, been playing basketball when Officer Davis approached them; that Davis began harassing them for no apparent reason; that Ransom never ran from the group, but began to walk away from the park; that Officer Davis started to chase him for no apparent reason; and that Ransom ran only because of the “fight or flight theory.” In his testimony, Ransom did not deny or in any manner negate the fact that, during the chase, he discarded the gun and drugs found by Officer Davis.

Relying on our decision in Hunt v. State, 205 Ga. App. 490, 491 (422 SE2d 24) (1992), the trial court found that Ransom was in a state of flight when he abandoned the items sought to be suppressed and, thus, the seizure of the items was not the product of an illegal arrest. The trial court denied Ransom’s motion to suppress. Held:

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court.” (Citations and punctuation omitted.) Scott v. State, 232 Ga. App. 337, 338 (1) (501 SE2d 255) (1998).

1. In his first enumeration of error, Ransom contends that his motion to suppress should have been granted because Officer Davis did not have reasonable suspicion to stop, detain, or pat down any of the four men in the park.

(a) Davis’ initial approach of the four men in the park did not constitute a “stop” of the men. A police officer may approach a citizen, ask for identification, and freely question a citizen with or without any basis or belief that the citizen is involved in criminal activity, as long as the officer does not detain the citizen or create the impression that the citizen may not leave. State v. Kaylor, 234 Ga. App. 495, 496-497 (507 SE2d 233) (1998).

(b) Ransom does not have standing to challenge the detention and pat down of Tyrone Flemister. Stewart v. State, 227 Ga. App. 659, 661, n. 1 (490 SE2d 194) (1997). “The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously.” (Citations and punctuation omitted.) Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989); Gilbert v. State, 159 Ga. App. 326, 327 (283 SE2d 361) (1981).

(c) There is no evidence that Ransom or the other two members of the foursome were themselves “detained” by virtue of Flemister’s detention and pat-down. The evidence is uncontroverted that Davis did not pat down any other member of the group, and there is no testimony from Davis that he intended to detain and pat down any other member of the group. In fact, according to the testimony of all parties, two members of the group started to walk away from the area when Davis began the pat-down; Davis did not prevent or attempt to prevent either man from leaving. It was only because Ransom bolted and ran at the sight of the pat-down that a subsequent foot chase ensued. We decline to accept Ransom’s invitation to find that a detention and pat-down of one member of a group is the equivalent of a detention and pat-down of all members of a group, especially in the absence of any evidence of such intention.

2. Ransom contends that he “had the right to run away from the illegal encounter.” By this, we assume Ransom is referring to the detention and pat-down of Flemister. Pretermitting the validity of such claim, we do not agree with Ransom’s correlating contention that Officer Davis could not investigate Ransom’s flight.

Flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search; certainly these circumstances [give] rise to an artic-ulable suspicion that a criminal act may have been occurring so as to authorize a brief investigatory stop.

(Citation omitted.) State v. Smalls, 203 Ga. App. 283, 286 (2) (416 SE2d 531) (1992).

Here, Ransom’s flight, coupled with his earlier, suspicious behavior in hiding behind a tree at the approach of law enforcement and his presence in a known drug sale location for no apparent purpose, provided Officer Davis with at least a reasonable suspicion of Ransom’s criminal activity to warrant further investigation. State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). That such further investigation necessarily entailed a foot chase was due only to Ransom’s refusal to halt at Officer Davis’ authorized request.

3. Ransom contends that he was improperly “seized” at the point in which he entered the creek, and thus, the drugs he threw down during such seizure should have been suppressed pursuant to the “fruit of the poisonous tree” doctrine. However, the trial court found as a matter of fact that Ransom was still in a state of flight when he discarded the drugs. The evidence supports such finding in that Officer Davis testified that, after Ransom had dropped the plastic bag of drugs, “he ran from that location — I was going down the bank towards him. He ran down the creek from me.” The evidence shows that it took “a few minutes” to apprehend Ransom subsequent to his dropping of the drugs. “[A] trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Scott v. State, supra at 338. Since it was supported by the evidence, we find no error in the trial court’s determination that Ransom was still in a state of flight at the time he dropped the drugs. Accordingly, he could not have been improperly “seized” at such time; the “fruit of the poisonous tree” doctrine is not implicated; and Ransom’s argument is meritless. Milton v. State, 232 Ga. App. 672, 677 (4) (503 SE2d 566) (1998).

Decided July 30, 1999.

Jennifer A. Jones, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory J. Lohmeier, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

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

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

       “Contact between police and citizens implicates no Fourth Amendment interest, unless in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” (Citations and punctuation omitted.) Pickens v. State, 225 Ga. App. 792, 793 (484 SE2d 731) (1997).

       See also Tuggle v. State, 236 Ga. App. 847 (512 SE2d 650) (1999); Castillo v. State, 232 Ga. App. 354, 356-357 (502 SE2d 261) (1998); Walker v. State, 228 Ga. App. 509, 511 (1) (493 SE2d 193) (1997); State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989); Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989).

        Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).


text:
    A99A0929.
    WOODWARD v. SICKLES.
    (521 SE2d 211)
   Eldridge, Judge.

Plaintiff-appellant Glenda Woodward appeals from the Gwinnett County Superior Court’s grant of summary judgment to defendant-appellee Mark Sickles. We affirm.

In her pro se appeal to this Court, Woodward presented several enumerations of error and a brief that were wholly indecipherable. See Court of Appeals Rule 1 (c), (d).

Further, the enumerations [and brief] do not point to distinct errors of law and do not set forth cogent argument and citation of authorities. See OCGA § 5-6-40; Court of Appeals Rule 27 [(c) (1), (2), (3)]. Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court. While our goal is to directly address the specific issues raised on appeal, where, as in [this case], the contentions presented are argued generally, we must necessarily answer these issues in a similar fashion.

(Citations and punctuation omitted.) Bennett v. Moody, 225 Ga. App. 95, 96 (483 SE2d 350) (1997). “Furthermore, a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form. [Cit.] ” Aldalassi v. Drummond, 223 Ga. App. 192 (1) (477 SE2d 372) (1996).

Decided July 23, 1999

Reconsideration denied August 3, 1999

Glenda Woodward, pro se.

Patricia O’Kelley, for appellee.

This Court was able to glean the following from the record and the trial court’s order thereon: Woodward filed her personal injury and fraud claims in July 1998; such claims were the result of an incident that occurred in 1987. Sickles responded to the claim by asserting the two-year statute of limitation. See OCGA § 9-3-33. The trial court found that such claims were barred by the statute of limitation and granted Sickles’ motion for summary judgment.

In order to survive Sickles’ motion for summary judgment, Woodward was required to present some evidence of disability, legal incompetence, fraud, or other factor which would have tolled the statute of limitation in this case. OCGA §§ 9-3-90; 9-3-91; 9-3-96; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). After reviewing the record, this Court finds that Woodward has presented no such evidence. Therefore, Sickles was entitled to summary judgment as a matter of law.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Johnson, Chief Judge.

text:
    A99A1406.
    PACE v. THE STATE.
    (521 SE2d 444)
   Johnson, Chief Judge.

A jury found Willie Juan Pace guilty of seven counts of aggravated assault and possession of a firearm during the commission of a crime, one count of carrying a pistol without a license and one count of discharging a firearm near a public street. Pace appeals. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the record shows that following a basketball game, Pace walked outside the gym and was speaking with a friend. A group of men in two different vehicles pulled up and parked nearby. One of the men called Pace’s friend over and spoke briefly with her. As Pace’s friend was returning to speak with him, Pace drew out his pistol and began shooting at the group, which included nine people. He ran away from the gym while firing the shots. Prior to the shooting, no words had passed between Pace and the group. Pace had not been threatened in any manner, and no one in the group had a weapon.

Pace gave a statement to the police and testified at trial that a passenger in one of the vehicles made faces at him and another reached down, picked up a gun and pointed it at him through the windshield. In response to this, Pace pulled out his pistol .and shot as he ran away. Pace admitted he was guilty of carrying a firearm without a license.

Three shots fired by Pace struck the vehicle, one of which injured one of the vehicle’s occupants. Another shot embedded in the heel of a shoe worn by one of the individuals at the scene.

1. Pace contends the trial court erred in charging the jury that criminal negligence could substitute for criminal intent as a basis for authorizing the jury to convict him of aggravated assault by use of a deadly weapon. We find no error.

The trial court charged the jury on aggravated assault and criminal intent. During the charge on criminal intent, the trial court informed the jury that criminal intent was an essential element of a crime and that intent could be found through a consideration of words, conduct, demeanor, motive and other circumstances. The court added that criminal intent is not an intent to violate a statute, but an intent to commit an act.

The trial court then charged on transferred intent. During this portion of the court’s charge, the court stated:

There are circumstances where a wanton or reckless state of mind is sometimes the equivalent of a specific intention to commit a crime, and which may and could be treated by the jury as amounting to such an intention, that is a criminal intent, when productive of violence that is likely to cause the destruction of life or serious bodily injury.

Pace contends this portion of the trial court’s charge instructed the jury that criminal negligence could substitute for criminal intent.

It is true that criminal negligence cannot substitute for criminal intent. Dunagan v. State, 269 Ga. 590, 593 (2) (502 SE2d 726) (1998). However, considering the charge in its entirety, we find the elements were adequately explained to the jury with sufficient clarity so as not to mislead the jury. See Smarr v. State, 199 Ga. App. 572, 573 (4) (405 SE2d 561) (1991). This case differs dramatically from Dunagan. In Dunagan, the defendant and his victim frequently played with handguns by pointing the guns at each other and pulling the trigger. The defendant, believing the gun would not discharge, pointed a loaded revolver at his friend, pulled the trigger, and killed his friend. He did not know the firearm would discharge. Under such circumstances, the Supreme Court found that the trial court’s charge substituting reckless conduct for specific intent was harmful error.

In the present case, Pace knew the gun was loaded and fired at a group of people he claimed had threatened him. He relied on the defense of justification. Given that the trial court charged the jury on criminal intent and the crime of aggravated assault and did not mention intentional or reckless acts until its charge on transferred intent, we find no harmful error in the charge.

2. Pace contends the trial court erred in failing to charge the jury that aggravated assault against him by one of the victims was the forcible felony he was relying upon for his defense of justification. We disagree.

The record shows that the trial court thoroughly charged the affirmative defense of justification. During this portion of the charge, the trial court defined the term forcible felony as a felony involving the use or threat of physical force or violence against a person. The trial court further instructed the jury: Later, the trial court instructed the jury on the elements of aggravated assault in connection with the pending charges against Pace.

If you believe from the evidence that, at the time of the incident, the circumstances were such as to cause a reasonable belief on the part of the defendant that the imminent use of unlawful force was about to be used by the alleged victim upon or toward the defendant, which caused the defendant to reasonably believe that his life was in danger, or that he was about to suffer great bodily injury to himself, or that a forcible felony was about to be committed upon the defendant by the alleged victim, and the defendant really acted, not in a spirit of revenge, but under the influence of such belief at the time of the shooting, and that the defendant reasonably believed that the force he used was necessary to prevent the commission of a forcible felony or to prevent death or great bodily injury to himself, then the shooting would be justified under the law. . . .

We find no error. The charge as a whole substantially presented all the requested issues in a manner not likely to confuse the jury. Aggravated assault was charged, just not in the form requested by Pace. Compare Wiseman v. State, 249 Ga. 559, 560 (5) (292 SE2d 670) (1982). The trial court’s failure to quote the specific language requested by Pace does not amount to reversible error. See Griffin v. State, 199 Ga. App. 646, 648 (3) (b) (405 SE2d 877) (1991).

3. The trial court did not err in failing to give Pace’s requested charge on the lesser included offense of pointing a gun at another. See OCGA § 16-11-102. There was no evidence that Pace merely pointed a gun at the group. Under the facts in this case, Pace either completed the offense of aggravated assault or committed no crime at all. See OCGA § 16-5-21 (a). Pace’s requested charge on the lesser included offense was not warranted. See Rowe v. State, 266 Ga. 136, 139 (3) (464 SE2d 811) (1996); Thomas v. State, 226 Ga. App. 441, 444-445 (8) (487 SE2d 75) (1997).

4. Pace contends the trial court erred in sentencing him on the convictions for possession of a firearm during the commission of a crime because these offenses merged with the aggravated assault convictions. We disagree.

The legislature intended to impose additional punishment against an individual who uses a firearm during the commission of certain crimes, including aggravated assault, OCGA § 16-5-21. See OCGA § 16-11-106 (e); Golden v. State, 233 Ga. App. 703, 705 (2) (c) (505 SE2d 242) (1998). The trial court properly refused to merge the convictions for possession of a firearm during the commission of a crime and aggravated assault. Id.

5. Because discharging a firearm near a public street is not a lesser included offense of aggravated assault, the trial court did not err in refusing to merge the offenses during sentencing. Laster v. State, 178 Ga. App. 825, 826 (2) (345 SE2d 78) (1986); see also Hawkins v. State, 262 Ga. 193, 194 (3) (b) (415 SE2d 636) (1992).

6. Pace contends a conviction and sentence should have been entered only on four counts of aggravated assault because he fired his pistol only four times. This contention lacks merit.

OCGA § 16-5-21 (a) (2) provides in pertinent part: “[a] person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” The record shows that Pace fired his pistol into a group of nine people. Pace’s act of firing his weapon into the group made each individual in the group a separate victim. The seven aggravated assault convictions of which Pace was found guilty do not merge because the offenses were committed upon different victims. See Hall v. State, 235 Ga. App. 44, 47 (5) (508 SE2d 703) (1998); Harshaw v. State, 134 Ga. App. 581, 582 (3) (215 SE2d 337) (1975). The trial court properly refused to merge any of Pace’s aggravated assault convictions based solely on the number of shots fired.

7. Pace contends his trial counsel was ineffective in failing to offer any evidence in mitigation during the sentencing phase and in failing to request the court to merge certain convictions. This enumeration of error lacks merit.

In order to establish ineffective assistance of counsel, Pace must show both that his trial counsel’s performance was deficient and a likelihood that the deficient performance prejudiced his defense. Zant v. Moon, 264 Ga. 93, 97 (2) (440 SE2d 657) (1994). Trial counsel is presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of trial counsel’s performance must be highly deferential. Id. As we stated in Divisions 4-6, Pace was not entitled to have any of his convictions merged. Thus, his trial counsel was not ineffective for failing to request the mergers.

As for the remainder of Pace’s arguments regarding the fact that no evidence was introduced on his behalf at the sentencing hearing, “[t]his statement standing alone provides no prop for [Pace’s] argument in the absence of a showing that such evidence was available, had been requested, and could have materially affected the outcome.” Brown v. State, 179 Ga. App. 538, 539 (2) (346 SE2d 908) (1986). Pace has failed to show what mitigating evidence other than his first offender status should have been presented and how any such mitigating evidence would have changed the sentence entered by the trial court. Thus, he has failed to carry his burden of showing that he was prejudiced by trial counsel’s performance. Barber v. State, 236 Ga. App. 294, 299 (5) (512 SE2d 48) (1999); see also Zant, supra at 99 (2); Gaither v. Cannida, 258 Ga. 557, 561 (2) (372 SE2d 429) (1988). Moreover, the record reveals that the trial court requested a pre-sentence investigation by the probation department prior to sentencing Pace. Pace has failed to show that any such mitigating evidence, including his first offender status, was not included in that report. The trial court’s finding that Pace received effective assistance of counsel was not error.

8. Pace argues the trial court erred in denying his motion for new trial based on insufficiency of the evidence. We disagree. The evidence was more than sufficient to authorize a rational trier of fact to find Pace guilty beyond a reasonable doubt of seven counts of aggravated assault and possession of a firearm during the commission of a crime. Landers v. State, 236 Ga. App. 368 (1) (511 SE2d 889) (1999); Cheney v. State, 233 Ga. App. 66, 69 (2) (503 SE2d 327) (1998). In addition, it is clear from the record that Pace was not old enough to obtain a license to carry a firearm. See OCGA § 16-11-129 (b) (1). Therefore, his conviction for carrying a pistol without a license was authorized. Waugh v. State, 218 Ga. App. 301, 302 (1) (460 SE2d 871) (1995).

Pace specifically contends that his conviction for discharging a firearm near a public street is insufficient because the state failed to prove the firearm was discharged within 50 yards of a public street. However, a police officer testified that Pace was standing 50 yards from a public street when he fired his weapon. This evidence was sufficient to authorize the jury’s finding that Pace is guilty beyond a reasonable doubt of discharging a firearm within 50 yards of a public street. See OCGA § 16-11-103; Parker v. State, 234 Ga. App. 137, 139 (2) (505 SE2d 784) (1998).

Decided August 3, 1999.

Allen & Forehand, Jon V. Forehand, for appellant.

J. David Miller, District Attorney, Charles M. Stines, A. Scott Gunn, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       Pace argued that one of the occupants of the car had pointed a gun at him and that this amounted to an aggravated assault.


text:
    A99A1451.
    In the Interest of B. M. L., a child.
    (521 SE2d 448)
   Johnson, Chief Judge.

The mother of two-year-old B. M. L. appeals from the termination of her parental rights. B. M. L.’s father, who did not appear for the termination hearing and whose parental rights were also terminated, is not a party to this appeal. The mother concedes that her son, who was initially placed in the custody of the Department of Family & Children Services when he was two months old due to her incarceration, is deprived because she is currently serving a habitual felon prison sentence. She argues, however, the court erred in basing its decision to terminate her parental rights largely on the department’s assertions that she would likely continue to commit crimes. The mother’s argument is without merit given her criminal history of arrests, convictions and incarcerations both before and after B. M. L.’s birth.

The record shows that in 1991 the mother was sentenced to ten years of first offender probation after being convicted of three counts of possessing controlled substances and one count of shoplifting. In January 1997, while pregnant with B. M. L., she was incarcerated and resentenced as a first offender because she had committed various violations of her probation conditions, including simple battery and two instances of shoplifting. Before B. M. L.’s birth in March 1997, she was released from jail and continued on probation. Two months after the birth, in May 1997, she was again arrested on criminal charges.

In June 1997, her probation was revoked because she violated its conditions by shoplifting and possessing marijuana. During that same month she pled guilty to the three counts of shoplifting that had been probation violations and was sentenced to two years imprisonment followed by three years on probation. She was released from confinement in October 1997, but was arrested again in May 1998. She subsequently pled guilty to two more shoplifting offenses and to possessing marijuana. She is currently serving a felony sentence of ten years imprisonment with service of the last five years on probation. This sentence was upheld in Lynn v. State, 236 Ga. App. 600 (512 SE2d 695) (1999).

A conviction of a crime and incarceration [do] not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist. [Cits.] Such aggravating circumstances are shown when a parent has a history of repetitive incarcerations for the commission of criminal offenses or parole violations since this past conduct of the parent is viewed as illustrative of the probable conduct of the parent in the future. [Cit.]

In the Interest of T. M. R., 217 Ga. App. 461, 462 (458 SE2d 148) (1995).

In the instant case, the trial court appropriately based its termination of the mother’s parental rights, in part, on her repeated criminal convictions and probation violations. Contrary to the mother’s argument, her criminal history provides clear and convincing evidence that B. M. L.’s deprivation is likely to continue even after she is released from custody for her most recent convictions. See In the Interest of C. L. R., 232 Ga. App. 134, 138 (1) (c) (501 SE2d 296) (1998); In the Interest of S. N. N., 230 Ga. App. 109, 110 (1) (495 SE2d 602) (1998).

Moreover, we note that the court’s thorough ruling was based on many factors other than the mother’s criminal history, including the mother’s failure to comply with goals of a case plan to reunite her with the child, her failure to support B. M. L. or another child, her failure to obtain drug treatment, expert testimony that B. M. L. is well adjusted and has bonded with his foster parents and that removing him from them would be harmful to the child, and the recommendation of the guardian ad litem that termination of parental rights is in the child’s best interests.

The mother has not challenged any of these other factors, which, in addition to her criminal history, support the court’s decision to terminate her parental rights. See OCGA § 15-11-81. The mother has shown no error requiring reversal of the trial court’s ruling.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

Decided August 3, 1999.

Michael R. McCarthy, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William, C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Richard K. Murray, for appellee.


text:
    A99A1368.
    ENLOE v. THE STATE.
    (520 SE2d 925)
   Johnson, Chief Judge.

Following a bench trial, Patrick Enloe was convicted of driving under the influence of alcohol and failing to maintain a single lane. He appeals, challenging the sufficiency of the DUI evidence and the admission of similar transaction evidence. The challenges are without merit.

1. Enloe claims the state did not present sufficient evidence to support his DUI conviction. On appeal, the evidence must be viewed in the light most favorable to support the trial court’s judgment and the appellant is no longer presumed innocent. Lucas v. State, 234 Ga. App. 534-535 (1) (507 SE2d 253) (1998).

Viewed in favor of the judgment, the evidence shows that at 2:30 one morning two police officers were driving in a marked police car on a two-lane road when Enloe came speeding around a curve in the opposite direction. Enloe was so far across the road’s centerline that the officers had to pull their car off the road to avoid being hit. The officers turned their car around and chased Enloe, who continued driving at a very high rate of speed. When they eventually stopped his car, the officers smelled a strong odor of alcohol on Enloe’s breath and saw several open beer cans in the front passenger seat. Enloe stumbled as he got out of his car. He consented to a breath test, but the test results were not admitted into evidence. According to one of the officers, Enloe’s driving ability was definitely impaired and he was unable to maintain control over his vehicle because he was under the influence of alcohol.

Prior to his arrest in this case, Enloe was involved in another DUI incident in which he had opened and unopened beer bottles on the front passenger side of the vehicle he was driving, had a strong odor of alcohol about him and was unable to keep his balance during field sobriety tests. Evidence was also admitted of another DUI incident that occurred after Enloe’s arrest in the instant case. In this later DUI incident, Enloe again had trouble keeping the vehicle he was driving in a single lane, was seen drinking a beer in the vehicle after he stopped in a parking lot, staggered as he got out of the vehicle and smelled strongly of alcohol.

Based on the evidence, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Enloe was guilty of driving under the influence of alcohol to the extent he was a less safe driver. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Fruhling v. State, 233 Ga. App. 544 (1) (505 SE2d 47) (1998); Bayer v. State, 230 Ga. App. 708, 711 (4) (497 SE2d 266) (1998).

2. Enloe argues the trial court erred in admitting evidence of the two similar DUI incidents because the evidence was unduly prejudicial and was not admitted for a proper purpose. We disagree with the arguments.

The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Although the general character of an accused is inadmissible unless he chooses to put his character in issue, where an accused is on trial for the commission of a.crime, proof of a distinct, independent and separate offense is admissible if there is sufficient logical connection between the two from which it can be said the proof of one tends to establish the other. Prior acts of driving under the influence are relevant to prove bent of mind or course of conduct in a subsequent DUI case. Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.

(Citations omitted.) Smith v. State, 236 Ga. App. 548, 552 (3) (512 SE2d 19) (1999).

Here, the two other DUI incidents involving Enloe were very similar to the DUI in this case and were admissible for the purposes of showing his bent of mind and course of conduct. “[I]t is well settled that in a bench trial the court has broader discretion in admitting evidence than in cases where a jury is involved. [Cit.]” Davis v. State, 189 Ga. App. 412, 413 (2) (376 SE2d 421) (1988). The trial court did not abuse its discretion in admitting the similar transaction evidence. See Bayer, supra at 710-711 (3); Fields v. State, 223 Ga. App. 569, 570-571 (2) (479 SE2d 393) (1996).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided July 22, 1999

Reconsideration denied August 4, 1999

Monte K. Davis, for appellant.

Carmen Smith, Solicitor, Jody L. Peskin, Phillip Jackson, Assistant Solicitors, for appellee.


author: Smith, Judge.

text:
    A99A1133.
    SMITH v. THE STATE.
    (521 SE2d 450)
   Smith, Judge.

Franklin D. Smith was charged by accusation with two counts of DUI. He was tried by a jury, which found him guilty as charged. He appeals, raising issues with regard to the denial of pretrial motions and the trial court’s charge. We find no merit in Smith’s contentions, and we affirm the judgment.

1. Count 1 of the accusation charged Smith with DUI to the extent that he was a less safe driver, citing OCGA § 40-6-391; Count 2 charged him with driving with an unlawful alcohol concentration, erroneously citing subsection (a) (4) of OCGA § 40-6-391. Smith contends the trial court should have dismissed both charges because Count 2 cited the wrong Code subsection. He argues that because both counts involved the “same transaction,” they were “inextricably attached” so that if Count 2 fails, Count 1 must fail, as well. The State concedes that Count 2 should have cited subsection (a) (5) of the statute instead of subsection (a) (4). For several reasons, we agree with the State that, notwithstanding this error, the trial court correctly refused to dismiss the accusation.

First, although Smith filed a “Motion Asserting Demurrers” to the accusation, that document did not raise this particular issue. It is axiomatic that Smith may not raise on appeal an issue not raised and ruled on below. See, e.g., Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996).

Second, the record shows that the motion was filed on May 14, 1998, three days after Smith was arraigned. Because Smith’s contention challenges the sufficiency of the form of the accusation, it would be a special demurrer, which must be filed at or before arraignment. OCGA § 17-7-113; see also Uniform Superior Court Rule 31.1 (requiring that all motions, demurrers, and special pleas be made at or before arraignment unless time extended by judge in writing prior to trial); Bennett v. State, 216 Ga. App. 365, 366 (454 SE2d 562) (1995). A special demurrer not filed at or before arraignment is waived. Dunbar v. State, 209 Ga. App. 97-98 (432 SE2d 829) (1993).

Finally, even had Smith’s motion been timely filed and raised this issue, it would not have affected the validity of his conviction on Count 1 of the accusation, which charged that he was a less safe driver. The cases cited by Smith in support of his contention that the two counts were “inextricably attached” and that Count 1 must fail if Count 2 was subject to special demurrer simply do not support his contention. Jones v. State, 75 Ga. App. 610, 614-615 (4) (44 SE2d 174) (1947), does not stand for the proposition for which it is cited by Smith. And Kevinezz v. State, 265 Ga. 78 (454 SE2d 441) (1995), involved a completely different fact situation. In Kevinezz, the conviction for vehicular homicide was reversed because the Supreme Court was unable to discern the theory upon which the jury based its verdict. In that case, one possible theory was valid and the other invalid because it had not been properly charged in the indictment, but the jury had been instructed on that statute. Id. at 83 (2) (d).

Here, the State charged Smith with two alternative counts of DUI, arising from the same conduct, allowing the jury to decide on a verdict as to each count. This practice has been upheld numerous times. See, e.g., State v. Corbitt, 221 Ga. App. 304 (471 SE2d 261) (1996); Tomlin v. State, 184 Ga. App. 726, 727 (1) (362 SE2d 489) (1987). A defect in one count need not affect the other, alternative charge relating to the same transaction. The crime of driving under the influence may be committed in several different ways, and different facts are required to prove the alternative methods of committing the crime. Even if one is acquitted on one alternative charge, a subsequent retrial is not barred on an alternative charge for the same offense after a mistrial. Hogan v. State, 178 Ga. App. 534, 537 (343 SE2d 770) (1986). Thus, even assuming error in failing to dismiss Count 2, any such dismissal would not affect the validity of Count 1. And only one punishment for the alternative charges could be, and was, imposed. See id. at 536. Any error in denying Smith’s motion as to Count 2 would therefore be harmless.

2. Citing State v. Rustin, 208 Ga. App. 431 (430 SE2d 765) (1993), Smith maintains that the trial court erred in refusing to dismiss the charges because the charges in the accusation were different from those in the uniform traffic citation issued to him, and a uniform traffic citation may not be amended. He also asserts that the officer who cited him should have signed either the accusation or another affidavit. We find no merit in any of these contentions.

Smith correctly states that we held in Rustin that OCGA § 17-7-71 (f), relating to the preparation and amendment of formal accusations, does not apply to uniform traffic citations. Rustin, supra at 434-435. But in Rustin, an alternative count of DUI in a subsequent accusation was time barred under OCGA § 17-3-1 (d), because prosecution had commenced upon the original DUI charge in the uniform traffic citation more than two years earlier. See Rustin, supra at 432-433 (2). In this case, the uniform traffic citation charged Smith with violating OCGA § 40-6-391 (a) (5), while Counts 1 and 2 of the accusation charged him with violating OCGA § 40-6-391 and subsection (a) (4) of that Code section, respectively. But no prosecution actually “commenced” on the citation, and the differences between the two documents do not affect the accusation’s validity.

It is not true that a prosecution must proceed upon the uniform traffic citation form that has initially been issued or that the prosecuting attorney has no authority to file a subsequent formal accusation. The State is not prohibited from issuing a subsequent accusation. The subsequent issuance of a formal accusation did not amend the uniform traffic citation, as contended by defendant. Rather, such accusation superseded any uniform traffic citation as the charging instrument.

(Citations and punctuation omitted.) Ellerbee v. State, 215 Ga. App. 102, 104 (3) (449 SE2d 874) (1994). And under OCGA § 17-7-71 (a), an accusation need not be supported by an affidavit if the defendant has been previously arrested “in conjunction with the transaction charged in the accusation,” which was the case here. See Blankenship v. State, 208 Ga. App. 710, 711 (431 SE2d 481) (1993).

3. Smith contends that the results of his breath test should not have been admitted because he was not given Miranda warnings before agreeing to the test in response to being read the implied consent warnings. This contention has been decided adversely to Smith by the Supreme Court in Fantasia v. State, 268 Ga. 512, 513-514 (2) (491 SE2d 318) (1997). In Fantasia, the Supreme Court held that the right against self-incrimination guaranteed by both the federal and state constitutions is directed against the State’s use of coercion or compulsion to force one to be a witness against oneself; that if no coercion is involved, the right is not implicated and Miranda warnings are unnecessary; and that no coercion is involved in the choice made to submit to a breath test, even though the choice may “not be an easy or pleasant one to make.” Id. at 514 (2).

4. Relying upon our decision in Stepic v. State, 226 Ga. App. 734 (487 SE2d 643) (1997), Smith claims the trial court gave a burden-shifting jury charge on inference. We do not agree. The court charged the jury:

If you should find from the evidence in this case that at the time of the alleged offense the amount of the alcohol in the defendant’s blood as shown by a chemical analysis of the defendant’s blood or breath was 0.08 percent, you may infer that the defendant was under the influence of alcohol. However, whether or not you make such an inference is for you to decide.

Decided August 4, 1999.

Michael B. Perry, for appellant.

Stephen D. Kelley, District Attorney, James J. Presswood, Jr., Assistant District Attorney, for appellee.

Stepic specifically approved such a charge. Id. at 735-736 (1). We reversed in Stepic because, unlike here, the charge given in that case did not immediately reaffirm the jury’s right to decide whether to make the inference.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       We note that Cargile v. State, 244 Ga. 871, 874 (2) (262 SE2d 87) (1979), relied upon by-Smith, was decided before the enactment of OCGA § 17-7-71 in 1980.


author: JOHNSON, Chief Judge.

text:
    A99A1322, A99A1389.
    HOPKINSON v. HOPKINSON; and vice versa.
    (521 SE2d 453)
   JOHNSON, Chief Judge.

Helen Hopkinson filed a petition to modify alimony and child support paid by her former husband, Peter Hopkinson. He filed a counterclaim for, among other things, stalking. She then amended her action to claim that he had stalked her and caused her emotional distress. The trial court severed the alimony and child support modification claims from the parties’ stalking and other claims. A jury trial on the modification issues resulted in a judgment increasing the amount of alimony, but not the amount of child support.

A separate jury trial was held on the Hopkinsons’ other claims. After the close of the evidence, the court charged the jury that both parties claimed the other was liable in tort for stalking and read to the jury the statute defining the crime of stalking. The jury found against Mrs. Hopkinson and in favor of Mr. Hopkinson, returning a general verdict awarding him $100,000 in damages and $110,000 in attorney fees. Mrs. Hopkinson appeals from the judgment entered on that verdict, and Mr. Hopkinson cross-appeals from the court’s refusal to set off his $100,000 judgment against his alimony obligations.

Case No. A99A1322

1. Mrs. Hopkinson correctly contends that in light of the recent decision in Troncalli v. Jones, 237 Ga. App. 10 (514 SE2d 478) (1999), the trial court erred in charging the jury that it could award tort damages for stalking. The Troncalli court cited the well-settled principle that violation of a penal statute does not automatically give a party injured by the violation a civil cause of action. Id. at 12 (1). The court applied that principle to OCGA § 16-5-90, which defines the crime of stalking, and expressly held that the criminal statute does not create a tort of stalking. Id. The court concluded that because there is no cause of action for stalking, a verdict based on such a claim cannot stand. Id. at 12-13 (1).

Although the trial court here did not have the benefit of the Troncalli decision because it was published after the trial in this case, and though we are hesitant to reverse a judgment based on an error to which the appellant contributed by making her own stalking claim, we cannot ignore and are obligated to apply the law as it now exists. See Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 796 (4) (359 SE2d 920) (1987) (physical precedent). Under Troncalli there is no tort cause of action arising from the criminal stalking statute, and we are therefore compelled to find that the trial court erroneously instructed the jury on stalking as a basis for awarding tort damages. Because the jury returned a general verdict in favor of Mr. Hopkinson, we cannot tell if the verdict was entered on one of his proper tort claims or on his improper claim of stalking. See Troncalli, supra at 13 (1). Consequently, we must reverse the judgment for money damages entered on that verdict.

2. Because the award of damages is reversed, the award of attorney fees to Mr. Hopkinson must also be reversed. “Because litigation expenses (costs and attorney fees) are wholly ancillary, they are not recoverable when no damages are awarded.” Gardner v. Kinney, 230 Ga. App. 771, 772 (498 SE2d 312) (1998).

Case No. A99A1389 ■

3. Mr. Hopkinson’s argument that the court erred in refusing to set off his $100,000 judgment against his alimony payments is without merit. Because we have reversed the judgment in his favor, there is now nothing to be set off. Moreover, a party paying alimony is not entitled to such a set-off. Baer v. Baer, 263 Ga. 574, 575-576 (2) (436 SE2d 6) (1993). The trial court’s decision not to grant a set-off was correct.

Judgment affirmed in Case No. A99A1389. Judgment reversed in Case No. A99A1322.

Pope, P. J., and Smith, J., concur.

Decided August 5, 1999

Robert C. Koski, for appellant.

Bogart & Bogart, Jeffrey B. Bogart, George R. Ference, for appel-


text:
    A99A1433.
    BROWN v. THE STATE.
    (521 SE2d 454)
   Johnson, Chief Judge.

Larry Brown was convicted of burglary, driving under the influence of alcohol and driving without insurance. He appeals, challenging only the sufficiency of evidence supporting the burglary conviction. The challenge is without merit.

On appeal the evidence is viewed in the light most favorable to the verdict, the appellant is no longer presumed innocent, and the appellate court determines evidence sufficiency and does not weigh evidence or determine witness credibility. Martin v. State, 228 Ga. App. 59, 60 (1) (491 SE2d 142) (1997).

Construed in favor of the verdict, the evidence shows that the burglary victim was driving a tractor near his house when he saw a car drive behind the house and park for approximately five minutes. The victim became suspicious, drove the tractor to the house and blocked the car in the driveway. A man, later identified as Brown, ran out from the carport and told the victim he was looking for someone else’s house and was in a hurry. The victim pulled the tractor out of the car’s path and allowed Brown to leave.

The victim then went through the back door of the house, which had been opened, and noticed that three rifles and a television set were missing. He contacted the police and got a friend to help him chase after Brown’s car in the friend’s truck. They eventually caught up with Brown’s car and stopped it. They forced Brown to open his car trunk, where they found the rifles, television set and other items stolen from the victim’s house. The police then arrived and arrested Brown.

Brown claimed at trial that another man had committed the burglary. Brown testified that while he was stopped by the side of the road a man with a gun stole his car; that he jogged after his stolen car and eventually saw it parked at the burglary victim’s house; that he went up to the car and saw the man who had stolen his car run out of the house; that he then encountered the victim, who allowed him to leave; and that he did not know the stolen items were in his car trunk when he drove away from the house.

Decided August 5, 1999.

Robert J. Pinnero, for appellant.

J. Brown Moseley, District Attorney, Anthony E. Paulsen III, Assistant District Attorney, for appellee.

Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.

(Citation and punctuation omitted.) Manis v. State, 235 Ga. App. 789-790 (1) (510 SE2d 584) (1998).

Based on all the evidence in the instant case, the jury was authorized to find Brown’s explanation of his possession of the stolen property to be unsatisfactory and to conclude beyond a reasonable doubt that he is guilty of burglary. See Romines v. State, 233 Ga. App. 790-791 (1) (505 SE2d 530) (1998). The burglary conviction is therefore upheld. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grabowski v. State, 234 Ga. App. 222-224 (1) (507 SE2d 472) (1998).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


text:
    A99A1630.
    RAY M. WRIGHT, INC. v. JONES et al.
    (521 SE2d 456)
   Smith, Judge.

This appeal is before us on the motion of appellees Robert Jack Jones and Jo Jones to dismiss for lack of jurisdiction. Because appellant Ray M. Wright, Inc. failed to follow the requirement of OCGA § 44-7-56 that an appeal be filed within seven days of the entry of judgment, its notice of appeal is untimely and we therefore lack jurisdiction to consider this appeal.

This action grew out of a dispute between a homebuilder and its dissatisfied customers. Ray M. Wright, Inc. filed this action in Mus-cogee Superior Court as a dispossessory proceeding seeking to evict the Joneses from a house it built for them. In August 1997, the Joneses answered and counterclaimed for breach of contract, specific performance, intentional infliction of emotional distress, and attorney fees. In October 1997, on Wright’s motion, the trial court ordered that the Joneses pay arrears of rent and continue to pay rent into the registry of the court on a monthly basis. Wright continued to request and obtain the release of funds on a monthly basis throughout this litigation.

The contract between the parties contained an arbitration clause, and the Joneses successfully moved for an order compelling arbitration. The Joneses continued to pay rent into court, and Wright continued to collect it, after arbitration was ordered. The arbitration award resolved the dispute between the parties regarding the contract price for construction and continued the payment of rent pending completion of remedial work on the house. The award later was modified to suspend the payment of rent if the remedial work was not completed within a specified time. The superior court confirmed the arbitration award on February 5, 1999, and Wright filed its notice of appeal on March 4, 1999.

Article 3, Chapter 7 of Title 44 governs dispossessory proceedings. OCGA § 44-7-56 provides, in pertinent part: “Any judgment by the trial court shall be appealable pursuant to Chapters 2, 3, 6, and 7 of Title 5, provided that any such appeal shall be filed within seven days of the date such judgment was entered.” Wright’s notice of appeal is untimely under this Code section.

Wright contends in response to the Joneses’ motion that this action is no longer a dispossessory proceeding but an appeal of an order confirming an arbitration award and that the time limitation of OCGA § 44-7-56 therefore should not apply. We disagree.

The Supreme Court of Georgia, in another context, has stated plainly that “the underlying subject matter generally controls over the relief sought in determining the proper procedure to follow to appeal.” Rebich v. Miles, 264 Ga. 467, 469 (448 SE2d 192) (1994). In Rebich, the Supreme Court dismissed a direct appeal from denial of a writ of mandamus where the underlying subject matter (appeal from an administrative decision) was subject to discretionary review, even though a writ of mandamus ordinarily may be appealed directly. Similarly, in Self v. Bayneum, 265 Ga. 14 (453 SE2d 27) (1995), the Supreme Court dismissed an appeal of the denial of a petition for writ of prohibition because the orders complained of arose in a divorce case and the underlying subject matter, divorce, was subject to the discretionary appeal procedure. This principle is equally applicable to an action based on a dispossessory warrant, even if a remedy such as arbitration is also sought.

Moreover, the applicable Code section is not limited in scope to a particular type of judgment. It simply provides that “any judgment” must be appealed within seven days. If the legislature had intended to limit the scope of OCGA § 44-7-56 strictly to appeals of a writ of possession, it would have done so. “It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning.” (Citations and punctuation omitted.) Sledge v. Employees’ Retirement System &c., 196 Ga. App. 597, 598 (396 SE2d 550) (1990). The intention of the legislature in enacting OCGA § 44-7-56 is also entirely consistent with the intention of the parties as expressed in the arbitration clause. Both provisions are intended to expedite litigation and resolve the disputes between the parties without delay.

Decided August 5, 1999

Buchanan & Land, Jerry A. Buchanan, Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, Teri Y. Callahan, for appellant.

Finally, not only did this action begin as a dispossessory proceeding instituted by Wright, but Wright continued to rely upon the provisions of the dispossessory statutes throughout the litigation. The monthly payment of rent into the registry of the court and the release of that money on request to the landlord are governed by OCGA § 44-7-54. Wright sought and obtained that remedy and continued to receive its benefits after the Joneses filed their answer. Provision for rent was also made part of the arbitration award. Wright cannot reasonably expect to reap the benefits of the dispossessory statutes without also being subject to their requirements and limitations.

OCGA § 44-7-56 provides that any judgment in a landlord/tenant case shall be appealable, provided that any such appeal shall be filed within [seven] days of the date such judgment was entered. The proper and timely filing of a notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.

(Citations and punctuation omitted.) Lewis v. Countrywide Funding Corp., 225 Ga. App. 440 (484 SE2d 66) (1997). Wright’s notice of appeal was filed almost 30 days after entry of judgment and is untimely. Accordingly, we are without jurisdiction to consider this case, and it must be dismissed.

Appeal dismissed.

Pope, P. J., and Miller, J., concur.

Kilpatrick Stockton, Raymond L. Mann III, for appellees.

       This Code section was amended in 1998 to change the time for appeal from ten to seven days. Ga. L. 1998, p. 1380, § 4.


author: Phipps, Judge.

text:
    A99A0910, A99A0911.
    INGLETT et al. v. THE STATE (two cases).
    (521 SE2d 241)
   Phipps, Judge.

Roger Inglett, William Gill, and Gail Inglett were tried jointly, convicted of various drug offenses, and given respective sentences of ten, fifteen, and twenty years. In addition, Roger and Gail Inglett were each given a $200,000 fine. In Case No. A99A0910, defendants appeal their convictions. In Case No. A99A0911, they appeal the denial of their appeal bond.

Lieutenant Grizzard of the Troup County Sheriff’s Department was informed that a package, containing 169.2 grams of methamphetamine and having a street value of approximately $56,000, had been intercepted at Hartsfield Atlanta Airport. The package was being shipped by United Parcel Service to a residential address in LaGrange, Georgia, and was addressed (euphemistically) to “Mr. Head.” Lieutenant Grizzard arranged for a controlled delivery of the package.

Gail Inglett appeared at the door of the house and signed for the package with the remark, “We’ve about give up on you all.” She was placed under arrest as she was reentering the residence. A team of officers being led by Investigator White then conducted a “protective sweep,” i.e., limited search, of the house primarily to ensure officer safety by detecting the presence of other occupants. Officers Grizzard and White testified that as Gail Inglett was opening the door, they observed another individual inside the house. After White entered the house, officers found Gail Inglett’s son Roger Inglett and a Ms. Kelly in the living room and handcuffed them.

Grizzard testified that he and Officer Hamrick informed Gail Inglett of her Miranda rights and asked for her consent to search the house. She agreed to speak to the officers and later told them that Darryl Weathers had provided her with methamphetamine if she would take delivery of the package. Although she verbally consented to a search of the house, she would not sign a consent form.

As a result, Grizzard left the house to secure a search warrant. To prevent possible destruction of evidence before the warrant was obtained, the officers seized a marijuana cigarette butt and suspected methamphetamine found in plain view in the living room. After issuance of the warrant, the officers seized evidence both in and out of plain view throughout the house. This evidence consisted of marijuana, methamphetamine, articles used to ingest these substances, and items associated with the distribution of methamphetamine (i.e., cutting agents, strainers, small plastic baggies, and scales).

1. Defendants first contend that the court erred in denying their motion to suppress evidence.

Their argument is that the protective sweep of the house constituted an illegal warrantless search and that all evidence subsequently found is “fruit of the poisonous tree.” This argument is without merit.

On the basis of Gail Inglett’s comments and the officers’ observation of at least one other individual in the residence, it appeared that there was more than one person on the premises engaged in narcotics trafficking. On the basis of his experience, Grizzard testified that where there is a large amount of narcotics “there’s bound to be guns,” and numerous guns in fact were found in Roger Inglett’s bedroom.

Police officers are authorized to make a protective sweep in conjunction 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.” Maryland v. Buie, 494 U. S. 325, 334 (110 SC 1093,108 LE2d 276) (1990). It would thus appear that the officers in this case had the grounds needed to justify a protective sweep. And even if they did not, exigent circumstances did permit a cursory search of the house in order to prevent the escape of unknown individuals. See United States v. Rubin, 474 F2d 262, 268-269 (3), (4) (3rd Cir. 1973).

2. Defendants contend that the court erred in ruling at the Jackson-Denno hearing that oral statements by Gail Inglett to Officers Grizzard and Hamrick were admissible in evidence.

Defendants base this contention on testimony by Inglett denying that she was informed of her Miranda rights prior to making these statements. But Grizzard testified otherwise. This presented a com flict in the evidence which the trial court was authorized to resolve in the State’s favor. See Mack v. State, 209 Ga. App. 104, 106 (1) (432 SE2d 680) (1993). The evidence supports the court’s determination that Inglett made the statements at issue freely and voluntarily after a knowing and intelligent waiver of her Miranda rights.

3. Defendants next complain of the trial court’s admission of crime lab evidence which tested negative for contraband.

Defendants have not, however, preserved this enumeration for appellate review. Although they have cited to parts of the record in which the trial court overruled their objection to the apparent admission of this evidence, they have failed to cite to that part of the record wherein the evidence itself was introduced. See Court of Appeals Rule 27 (c) (3).

4. Defendants charge the trial court with error in overruling their hearsay objection to Grizzard’s testimony concerning Jody Evans. Other grounds for objection which were not raised below have been waived. Hawkins v. State, 230 Ga. App. 627, 629 (2) (497 SE2d 386) (1998).

The State’s evidence showed that as the officers were executing the search warrant in this case, the telephone rang. Grizzard testified on direct examination that Jody Evans was identified as the caller through the phone’s caller identification feature. When Griz-zard then began to explain how he knew Evans by alluding to his criminal record, defense counsel objected as follows: “We’re getting far afield here as to something else. We’re almost getting into irrelevant hearsay as to what we’re talking about. We don’t know for a fact other than the phone caller ID that in fact it was him calling.” After an unreported bench conference, the court effectively overruled defendants’ objection while agreeing to make it a continuing one. Grizzard proceeded to testify that Evans had recently pled guilty to possession of amphetamine with intent to distribute.

There is no merit in defendants’ argument that Grizzard’s testimony concerning the identification of Evans as the telephone caller constituted inadmissible hearsay. These computer-generated data automatically appearing on the screen of the telephone do “not constitute out-of-court statements by any person or ‘the conclusion of a third party not before the court.’ ” Caldwell v. State, 230 Ga. App. 46, 47 (495 SE2d 308) (1997).

On the other hand, Grizzard’s oral testimony concerning Evans’ prior criminal conviction was subject to a hearsay objection. See Lipscomb v. State, 194 Ga. App. 657, 658 (2) (391 SE2d 773) (1990). But after this testimony was admitted, defendants elicited testimony during their cross-examination of Grizzard showing that Evans had been involved with Weathers in drug dealing and that Weathers had been convicted in federal court based on charges that he had engaged in drug trafficking schemes similar to the one in this case. Gail Inglett also testified on direct examination that Weathers had been involved in the distribution of methamphetamine. The foregoing testimony renders it highly probable that the error in admitting Griz-zard’s testimony concerning Evans’ conviction did not contribute to the verdict. See generally Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

5. Defendants contend that the court erred in not granting their motion for a mistrial when the State sought to admit a photograph taken of Roger Inglett at the time of his arrest.

In the presence of the jury, the State tendered the photograph in evidence through the testimony of Grizzard in order to show a change in Inglett’s appearance. When the defense raised an objection, the prosecuting attorney withdrew the tender, and the court instructed the jury to disregard any comments concerning the photograph. We cannot say that the prosecuting attorney’s comments were so harmful that the court abused its discretion in determining that remedial instructions were sufficient to cure any prejudice to the defense and that a mistrial was not warranted. See, e.g., Crawford v. State, 256 Ga. 585, 587 (2) (351 SE2d 199) (1987).

6. Defendants challenge the sufficiency of the evidence to support the verdicts against them. On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict; an appellate court determines evidence sufficiency and does not weigh the evidence; and the verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

Gail Inglett accepted delivery of the package of methamphetamine and admitted that she had been provided with methamphetamine in exchange for doing so. Her boyfriend William Gill arrived at the residence while the search warrant was being executed. They both resided in the master bedroom, where rolling papers and suspected marijuana were found in plain view. In the adjacent room, police recovered bags containing more than one ounce of marijuana, methamphetamine, and a digital scale belonging to Gill, among other things. The jury was authorized to find that a virtual shop for methamphetamine preparation, packaging, and distribution was being operated in that room, which was accessible to all residents. Inglett admitted to police that all of the drugs found in the master bedroom belonged to her, and after the search warrant was obtained, she showed the officer bags of marijuana found in the adjacent room. In addition, she attempted to ingest a bag of methamphetamine as she was being escorted by the officers out of the house. In his defense, Gill gave testimony to the effect that he did not actually reside at the house, but he used the house as his address and his clothing was found in the master bedroom.

Roger Inglett resided in the other bedroom in the house. Less than one ounce of marijuana, methamphetamine, and straws used to snort methamphetamine were found in his bedroom, along with small plastic baggies and scales which can be used to weigh methamphetamine before distribution. At trial, he admitted that the marijuana was his. Evidence was also introduced showing that after his arrest, Inglett placed a telephone call to Jody Evans, informed him that the package had arrived, and told him that he needed to be bailed out of jail.

Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize any rational trier of fact to find beyond a reasonable doubt that all three defendants were in possession of methamphetamine with intent to distribute it, that Gail and Roger Inglett were both involved in the offense of trafficking in methamphetamine, that Gail Inglett and William Gill were in possession of more than one .ounce of marijuana, and that Roger Inglett was in possession of less than one ounce of marijuana. To the extent that various of these convictions were solely based on circumstantial evidence, such evidence authorized the jury to find that every reasonable hypothesis except that of guilt was excluded.

7. Defendants next contend that the court erred in replaying a videotape of the crime scene to the jurors after they had begun their deliberations. They argue that the repeat showing unduly emphasized this evidence and violated the continuing witness rule.

Neither of these arguments has merit. The continuing witness rule is inapplicable here, as it precludes the court from allowing written testimony to go out with the jury to be read again during deliberations. Hinton v. State, 233 Ga. App. 213 (1) (504 SE2d 49) (1998). On the other hand, “[o]ur appellate courts have recognized the general rule that the trial court has discretion to liear again’ evidence previously presented. [Cits.]” Haynes v. State, 180 Ga. App. 202 (2) (349 SE2d 208) (1986). Defendants have shown no abuse of discretion.

8. Defendants claim that they received ineffective assistance of counsel because they were represented by the same lawyer and their cases were not severed. Since the latter ground was not raised at the trial level, it will not be addressed here. Hawkins v. State, supra.

In their motion for new trial, Roger Inglett and William Gill claimed that they would have entered guilty pleas but were unable to do so because all three defendants were represented by the same attorney. At the hearing on the motion for new trial, the trial court was presented with conflicting testimony which it was required to resolve. Mobley v. State, 264 Ga. 854, 856 (2) (452 SE2d 500) (1995). Testimony given by trial counsel showed that the State offered a guilty plea agreement conditioned on acceptance by all defendants. Defendants testified that they wanted their own attorneys but were told by defense counsel that joint representation was required since they were arrested together. Roger Inglett and Gill claimed that if they had secured independent counsel, they would have pled guilty.

But at the beginning of their trial, all defendants were asked in open court whether they perceived any kind of conflict in defense counsel’s representation of them, and they all responded that they had no objection to their joint representation by counsel. Defense counsel testified at the hearing on the motion for new trial that he informed defendants of the State’s plea offer and made clear to them that they could opt to be represented by separate counsel.

Decided July 28, 1999

Reconsideration denied August 6, 1999

John D. Rasnick, for appellants.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assistant District Attorney, for appellee.

Where, as here, the defendants do not object to multiple representation by the same attorney until after trial, they must show that an actual conflict of interest existed which impaired their attorney’s performance on their behalf. Tarwater v. State, 259 Ga. 516, 518 (383 SE2d 883) (1989). Here, the trial court was authorized to find that no conflict existed because none of the defendants expressed any desire to plead guilty until after the State obtained the convictions, compare Ford v. Ford, 749 F2d 681 (11th Cir. 1985), and that defendants made a knowing and intelligent decision to be represented by the same lawyer. The trial court did not abuse its discretion in denying defendants’ motion for new trial. Young v. State, 269 Ga. 490, 493 (2) (500 SE2d 583) (1998).

9. Defendants maintain that their sentences violated the Eighth Amendment.

The sentences of imprisonment are well within statutory limits. See OCGA §§ 16-13-30; 16-13-31. “A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. [Cit.]” Pollard v. State, 230 Ga. App. 159, 161 (5) (495 SE2d 629) (1998); compare Haygood v. State, 225 Ga. App. 81, 83 (2) (483 SE2d 302) (1997) (where trial court was considering a sentence of fine and community service but imposed the maximum sentence of imprisonment after defendant made known her decision to appeal). The fines for trafficking in methamphetamine were also within the statutory limit, OCGA § 16-13-31 (e) (1), and were not “ ‘grossly out of proportion to the severity of the crime.’ ” Id. at 83 (2).

10. “Because we have decided the main appeal, the appeal from the denial of bond pending post-trial relief is moot. [Cit.]” Fenimore v. State, 218 Ga. App. 735, 739 (463 SE2d 55) (1995).

Judgment affirmed in Case No. A99A0910. Appeal dismissed as moot in Case No. A99A0911.

Andrews, P. J., and Ruffin, J., concur.