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

text:
    A93A0089.
    ARMSTRONG v. THE STATE.
    (434 SE2d 560)
   Birdsong, Presiding Judge.

David Armstrong appeals his conviction for the sale of crack cocaine and his sentence to life imprisonment. Held:

1. Appellant contends evidence of a similar transaction was improperly admitted. He asserts the conviction as to that transaction was obtained in a trial in which he represented himself, after inadequate inquiry by that trial court as to whether appellant was indigent and whether he should have counsel appointed. The similar transaction was a sale by appellant of crack cocaine on March 31, 1989, in the same location as the offense in this case. This evidence was properly admitted. It was unnecessary to show that appellant was convicted for the offense; it was necessary only to show that appellant engaged in a transaction which was sufficiently similar to the transaction in this case to be relevant. Chastain v. State, 260 Ga. 789 (400 SE2d 329). The evidence of the transaction was not inadmissible merely because a conviction based on that transaction might be attacked.

2. Appellant was sentenced to life imprisonment for a second drug conviction under OCGA § 16-13-30 (d). He contends the sentence is unlawful because the State did not give notice pursuant to OCGA § 17-10-2 (a) that it “intended to demand recidivist punishment,” citing State v. Marshall, 195 Ga. App. 535, 536 (394 SE2d 379). The State contends its notice of intent to use the prior conviction as evidence of a similar transaction was sufficient to permit the maximum punishment under OCGA § 16-13-30 (d).

OCGA § 17-10-2 (a) provides that in any felony case except death penalty cases, the judge in a pre-sentence hearing shall hear evidence in aggravation of punishment, “provided that only such evidence in aggravation as the state has made known to the defendant prior to [his] trial shall be admissible,” so that the court may consider evidence “in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions.” This Code section applies to repeat felony offenders, as to whom the court has discretion under § 17-10-7 (a) to impose or “probate or suspend the maximum sentence prescribed for the offense.” Recidivist sentencing of felony offenders under § 17-10-2 (b) is improper when “the record does not contain any . . . affirmative notice to defendant that his prior felony offenses would be used against him for recidivist purposes during sentencing.” State v. Freeman, 198 Ga. App. 553, 556-557 (402 SE2d 529). The point of such notice in a sentencing under § 17-10-7 (a) is obvious: since the maximum sentence is discretionary, a defendant may show he is undeserving of it.

Because sentencing under § 17-10-7 (a) is a matter of discretion, § 17-10-2 (b) requires a felony defendant be given “unmistakable advance warning” that prior convictions will be’ used in aggravation of punishment. Mitchell v. State, 202 Ga. App. 100 (413 SE2d 517). This phrase originated in State v. Hendrixson, 251 Ga. 853, 854 (310 SE2d 526) which held that a prior drug conviction need not be set out in the indictment to authorize the maximum life sentence under § 16-13-30 (d). The issue was not whether § 16-13-30 (d) requires notice of intent to use a prior drug conviction in sentencing. The court used the phrase “unmistakable advance warning” in a sufficient-but-not-necessary context, citing Riggins v. Stynchcombe, 231 Ga. 589, 592-593 (203 SE2d 208). However, Riggins was a felony case not involving drugs, and Riggins was sentenced under § 17-10-2 (b) (repeat felony), not § 16-13-30 (d) (repeat drug offense). Hendrixson did not consider the fact that a life sentence for a second conviction under § 16-13-30 (d) is mandatory, and did not in fact hold that “advance warning” is necessary to authorize the mandatory sentence under § 16-13-30 (d).

In Edwards v. State, 260 Ga. 121, 122 (390 SE2d 580), the Supreme Court noted that in Hendrixson, supra, it “indicated that before the state can seek a life sentence under § 16-13-30 (d), the state must give notice before trial under § 17-10-2 (a) of the conviction the state plans to use in aggravation.” (Emphasis supplied.) This language expresses the Supreme Court’s own reluctance to hold or to say that it has held that advance notice is required when the sentence is mandatory under § 16-13-30. The statement is, moreover, dictum, as the point was not in issue, for the State did give notice and Edwards’ contention was merely that the mandatory provision of § 16-13-30 applies only to jury trials.

This sentence was not imposed under § 17-10-2 (b). It was mandated by Title 16, Chapter 13 (Controlled Substances). This mandate has been held constitutional. Isom v. State, 261 Ga. 596 (408 SE2d 701); Nuckles v. State, 207 Ga. App. 63, 64 (427 SE2d 54). OCGA § 16-13-30 (d) provides: “Upon conviction of a second or subsequent offense [of sale of cocaine, a person] shall be imprisoned for life” (Emphasis supplied.) The legislature thus removed the court’s sentencing discretion for second offenses under § 16-13-30 (d). A prior drug conviction is not “aggravation” of punishment to be rebutted by the defendant, argued by the parties and considered by the trial court; under § 16-13-30 (d) the court has no discretion “to probate or suspend the maximum sentence,” as it does for repeat felony offenders under § 17-10-2 (a).

The legislature enacted both §§ 16-13-30 (d) and 17-10-2 (a) at the same session in 1974. The legislature enacted the comprehensive “Controlled Substances” Act of which § 16-13-30 (d) is a part (Ga. L. 1974, p. 243); it also enacted § 17-10-2 (a) (sentencing of repeat felony offenders) (Ga. L. 1974, p. 357). In making sentencing of a repeat drug offender mandatory under § 16-13-30 (d) without requiring notice of a prior drug conviction, while providing that evidence of prior felony convictions (“evidence in aggravation”) is not admissible if they are not “made known” by the State in advance in felony sentencing under § 17-10-2 (a), the legislature made a knowing distinction: maximum sentencing under § 16-13-30 (d) is mandatory; sentencing under § 17-10-2 (a) is discretionary. Notice of prior felony convictions for discretionary sentencing under § 17-10-2 (a) is required before they can be admitted in evidence in aggravation of punishment. OCGA § 16-13-30 (d) contains no requirement of advance notice as a condition to sentencing or to receiving evidence of prior drug conviction. In a recent case, Wainwright v. State, 208 Ga. App. 777 (432 SE2d 555) (1993), we discussed what type of “notice” complies with the notice requirement of OCGA § 17-10-2 (a). Although we noted that both OCGA §§ 17-10-7 and 16-13-30 (d) “give direction as to [sentencing] under specified aggravated circumstances,” this does not imply that sentencing under § 16-13-30 (d) is discretionary. Rather, the “direction” in § 16-13-30 (d) is that the maximum sentence is mandatory upon a second drug conviction as provided in that Code section.

Because this life sentence was mandated by law under § 16-13-30 (d), notice that the State intended to use his prior conviction at sentencing would have given appellant no material benefit.

The special concurrence correctly says the defendant is presumed to know the law. Martin v. State, 160 Ga. App. 275, 277 (1) (287 SE2d 244). Therefore, he cannot contend he did not know his prior drug conviction made a life sentence mandatory. If he says he knew the law but did not know he had a prior drug conviction, the maximum sentence is still mandatory. Nothing in OCGA § 16-13-30 or in § 17-10-2 mitigates the mandatory sentence, for it is mandatory. Therefore, defendant’s knowledge that a prior drug conviction would be used in punishment is immaterial to the mandatory sentence imposed by the legislature in § 16-13-30. The special concurrence says advance notice is required because defendant’s foreknowledge that a judge will be forced to impose a certain sentence because of a prior drug crime may affect the plea negotiations or defense strategies. This argument suggests that a repeat drug offender has some constitutional or due process right to plea bargain or to use a certain defense, without which a sentence cannot be imposed. When it mandated a life sentence for a second drug conviction, the legislature did not concern itself with a defendant’s supposed right to plea bargain or use a certain defense, and certainly did not condition the mandatory sentence on the condition that he had fully explored his plea bargaining options and defense strategies.

It should be emphasized that § 17-10-2 does not actually require notice of anything. It merely says that at a pre-sentence hearing “only such evidence in aggravation as the state has made known to the defendant . . . shall be admissible.” This is a pre-condition to use of certain evidence in a sentencing; this pre-condition, or “requirement” for introducing evidence of prior convictions at sentencing after trial or plea, has no application to plea bargaining or defense strategy during trial. OCGA § 16-13-30, which makes a life sentence mandatory for second drug convictions, makes no pre-condition of this mandate; there is nothing to be argued, for there is no discretion in sentencing and the prior drug conviction is not “evidence in aggravation” of a discretionary sentence as in sentencing under § 17-10-2.

State v. Marshall, supra, involved four counts for sales of cocaine in one indictment; the issue was whether the State, without notice, could use a conviction of the first count to impose a life sentence for convictions of the other counts. We overrule that decision to the extent it holds that notice must be given of intent to use a defendant’s prior drug conviction to authorize sentencing under § 16-13-30 (d).

The trial court was mandated to impose the maximum sentence under § 16-13-30 (d). If for any purpose appellant was entitled to “notice,” the State’s notice of intent to use the prior conviction as a similar transaction was sufficient, as we held in Moss v. State, 206 Ga. App. 310, 312 (425 SE2d 386).

3. Armstrong contends that the prior conviction was illegal, but this sentencing proceeding is not the proper forum to determine that issue; if the prior conviction is held illegal in proper proceedings, this sentence may be modified as allowed by law.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Cooper and Andrews, JJ., concur. Beasley, P. J., Blackburn and Smith, JJ., concur specially. Johnson, J., not participating.

Beasley, Presiding Judge,

concurring specially.

I concur in that defendant had notice of the court’s awareness of his earlier conviction, so that it would be bound to impose the mandatory life sentence of OCGA § 16-13-30 (d). He knew in advance of trial what sentence he faced if convicted, as he is presumed to know the law and he was advised by the State of its intent to present “similar transaction” evidence. However, I do not agree that a repeat drug offender is not entitled to notice that he will be subject to recidivist punishment under OCGA § 16-13-30 (d), and for that reason, I decline to join in overruling State v. Marshall, 195 Ga. App. 535 (394 SE2d 379) (1990).

By its terms, OCGA § 17-10-2 (a) is applicable to “any felony case,” except those “in which the death penalty . . . may be imposed.” It is not, as the majority suggests, applicable only to repeat felony offenders as to whom the court has discretion in imposing sentence. It entitles the felony defendant to a pre-sentence hearing at which “only such evidence in aggravation [of punishment] as the state has made known to the defendant prior to [his] trial shall be admissible.” This provision is mandatory. DeLoach v. State, 142 Ga. App. 666 (2) (236 SE2d 904) (1977); Jefferson v. State, 205 Ga. App. 687 (2) (423 SE2d 425) (1992). The requirement of notice comports with the concerns of due process. Without it, a defendant is not aware of whether his or her past record, or any part of it, accurate or inaccurate, will affect the sentence or influence the judge. Without notice, and the opportunity to anticipate which notice provides, a defendant cannot adequately prepare a response or explanation.

Although under OCGA § 16-13-30 (d), a prior conviction for certain offenders automatically subjects them to life imprisonment and divests the sentencing court of discretion to impose a more lenient sentence, evidence of the previous conviction is nevertheless offered in “aggravation” of punishment, as a predicate for the mandatory sentence. The very severity of it, its inevitability, heightens rather than eliminates the need for notice. The fact that the judge will have no discretion does not negate the need; it merely shortens the presentence inquiry. Knowing before trial that a judge will be forced to impose a certain sentence by law because of a prior crime or crimes which the judge is made aware of may affect the plea negotiations or defense strategies, for example.

Decided July 14, 1993 —

Reconsideration denied July 30, 1993 —

Neil L. Heimanson, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Moreover, the statute does not say that only those parts of a defendant’s criminal record which will not automatically affect the sentence shall be noticed to defendant beforehand. One must keep in mind that this dossier is evidence over and above the evidence introduced at trial but just as potent a factor, if not more so, in the determination of punishment.

The majority suggests that defendant would receive “no material benefit” from pretrial notice of the intent to use his prior conviction at sentencing and distinguishes between discretionary sentencing under OCGA § 17-10-2 (a) and the mandatory provision of OCGA § 16-13-30 (d). However, a prior conviction might have been vacated following appeal or habeas corpus proceedings, unknown to the prosecuting attorney or to the sentencing court. An offender subject to a sentence set by the legislature rather than by the court must be entitled to the same opportunity to refute that prior “conviction.” See, e.g., Phillips v. Stynchcombe, 231 Ga. 430 (6) (202 SE2d 26) (1973).

Finally, the conclusion of the majority is in conflict with the Supreme Court’s pronouncements on this issue. In Edwards v. State, 260 Ga. 121, 122 (1) (390 SE2d 580) (1990), the Court interpreted its decision in State v. Hendrixson, 251 Ga. 853 (310 SE2d 526) (1984) as follows: “This Court has indicated that before the state can seek a life sentence under § 16-13-30 (d), the state must give notice before trial under § 17-10-2 (a) of the conviction the state plans to use in aggravation.” Accord Moss v. State, 206 Ga. App. 310 (5) (425 SE2d 386) (1992). Accordingly, I reject the majority’s attempt to overrule Marshall, supra.

I am authorized to state that Judge Blackburn and Judge Smith join in this opinion.

        Martin v. State, 160 Ga. App. 275, 277 (1) (287 SE2d 244) (1981); Levar v. State, 106 Ga. 42, 49-50 (3) (29 SE 467) (1897).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A0167.
    STAPLES v. THE STATE.
    (434 SE2d 757)
   Smith, Judge.

Herman Lee Staples was tried by a jury on a four-count indictment involving possession of illegal drugs. He was acquitted on three counts and found guilty of one count of trafficking in cocaine. His motion for a new trial was denied.

1. Staples, who is black, joined in a co-defendant’s timely challenge to the prosecutor’s use of peremptory strikes, alleging a violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). He contends the trial court erroneously overruled this challenge. The record reveals that the prosecutor stated for the record that peremptory challenges were used to strike five of the eight qualified black persons in the venire of forty-two. Three black jurors were selected and served. The trial court ruled, based strictly on a mathematical analysis, that Staples had failed to make a prima facie showing of a Batson violation. The prosecutor then placed her reasons for striking the black jurors on the record. However, the trial court made no further ruling, resting on its prior ruling that no prima facie case of discrimination had been made.

The prosecutor exercised a disproportionate number of strikes by using half against blacks in selecting from a venire which was only nineteen percent black (eight out of forty-two). This was a prima facie showing of discriminatory intent sufficient to require the prosecutor to explain her strikes. The mere fact that the trial jury contained a greater percentage of black jurors (25 percent) than were in the qualified venire (19 percent) no longer is sufficient to rebut the inference of intentional discrimination arising from the prosecutor’s use of a disproportionate number of peremptory strikes to remove black potential jurors. Davis v. State, 263 Ga. 5, 7, n. 3 (426 SE2d 844) (1993). The trial court erred in concluding that no prima facie case of discriminatory jury selection had been made, based only on the relative percentages of black jurors in the jury as selected and in the venire. Weems v. State, 262 Ga. 101 (416 SE2d 84) (1992).

The trial court further erred in not making the additional factual determination of whether the prosecutor’s stated reasons for her strikes were sufficient to rebut that prima facie showing. However, a reversal of Staples’s conviction is not mandated by these omissions. The error may be cured by a post-trial hearing on the Batson challenge. There, the trial court is to make the appropriate findings on the record after determining the credibility of the reasons offered, (see Tharpe v. State, 262 Ga. 110, 112 (6) (416 SE2d 78) (1992)) as well as the facial validity of those reasons under the Equal Protection Clause as a matter of law (see Hernandez v. New York, 500 U. S. (IIB) (111 SC 1859, 114 LE2d 395) (1991)). In the event the trial court determines that the prima facie inference of intentional discrimination has not been rebutted by the prosecutor’s use of her peremptory challenges for legitimate, race-neutral, and case related reasons, neutrally applied, a new trial must be granted. In the event that Staples’s challenge is again overruled, that ruling may be reviewed on direct appeal, enumerating as error the denial of the challenge.

2. In several enumerations Staples urges the general grounds.

The evidence showed that Staples was a passenger in the rear of a vehicle stopped by the Georgia State Patrol. The driver consented to a search, and cocaine was found hidden in an area well up under the dashboard of the vehicle. There was testimony that the maneuvers necessary to hide cocaine in this inaccessible place could not have taken place during the brief time in which the car was followed and then stopped. Although he was not the owner of the vehicle, Staples was, as among the passengers, the leader and was in charge financially. He had sufficient private access to the vehicle during a time when the cocaine could have been hidden under the dashboard. Both Staples and the driver denied ownership of the cocaine. Staples was forcibly prevented from swallowing a large number of heroin pills at the time of his arrest.

Contrary to Staples’s assertions, the equal access rule does not mandate reversal of his conviction. The equal access rule applies only where the sole evidence of possession of contraband found in the vehicle is the defendant’s ownership or possession of or control over the vehicle. Wright v. State, 194 Ga. App. 739, 741 (2) (391 SE2d 791) (1990). The fact that Staples had access to the vehicle for a time sufficient to take the necessary steps to place the cocaine in an area far up under the dashboard was additional evidence to support the jury’s verdict against him. Moreover, his attempt to destroy other evidence at the time of his arrest is circumstantial evidence of his guilty knowledge. See generally Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345) (1990).

The evidence was sufficient to authorize a rational trier of fact to find Staples guilty of trafficking in cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. Prior to trial, appellant instructed the public defender to withdraw as his appointed counsel, on the ground that she was “racist” and uninterested in representing him. He declined the trial court’s offer of further assistance from that office, choosing instead to represent himself. In related enumerations of error, appellant urges that he was forced to trial without counsel and without a valid waiver of the benefit of counsel.

“A criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. [Cits.] However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court. [Cits.]” Burney v. State, 244 Ga. 33, 35 (1) (257 SE2d 543) (1979). The trial court was authorized to conclude that Staples was attempting to use the demand for a change of counsel as a dilatory tactic, Hibbard v. State, 208 Ga. App. 457 (430 SE2d 824) (1993), which was the functional equivalent of a knowing and voluntary waiver of appointed counsel. In such instances, the trial court may proceed to trial with the defendant representing himself. Mercier v. State, 203 Ga. App. 494, 495 (2) (417 SE2d 430) (1992).

Staples previously had been informed by the public defender of the nature of the charges against him and of the statutory minimum and maximum penalties. The record reflects that the trial court, fulfilling its important responsibility in this area, repeatedly apprised him of the dangers to a layman in conducting his own defense. See Clarke v. Zant, 247 Ga. 194, 196 (275 SE2d 49) (1981). He was well aware his own defense and that of his co-defendant were mutually antagonistic. Moreover, an attorney was made available during trial to respond to any questions of law or procedure that he might have. See Williams v. State, 192 Ga. App. 317, 318-319 (2) (384 SE2d 877) (1989). We find no error in the trial court’s determination that Staples waived his right to appointed counsel and that he voluntarily and intelligently elected to proceed pro se after being fully apprised of the possible consequences. Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987). Compare Kirkland v. State, 202 Ga. App. 356 (1) (414 SE2d 502) (1991) (relinquishment of a right to counsel cannot be inferred from silent record).

4. The trial court denied Staples’s pretrial motions for a continuance in order to prepare for trial and to contact his witnesses, for the assistance of an investigator, and for the appointment of an independent expert witness. Although these rulings are enumerated as error, the record reflects that in response to Staples’s motions, the trial court ordered that he have access to the court’s law library and also to long distance telephone service at county expense. Inasmuch as these rulings are in substance the partial grant of the relief and assistance requested, we find no due process violation and no abuse of the trial court’s discretion by denying a continuance, Bates v. State, 202 Ga. App. 460, 461 (1) (414 SE2d 691) (1992), or in refusing to hire an investigator. Smith v. State, 245 Ga. 168, 171 (9) (263 SE2d 910) (1980).

As to the trial court’s refusal to hire an expert chemist, appellant’s reliance upon Sabel v. State, 248 Ga. 10 (282 SE2d 61) (1981) is misplaced. Sabel held that the trial court erred in refusing to grant the accused’s retained expert witness access to “critical evidence whose nature is subject to varying expert opinion.” Sabel, supra at 18 (6). The evidence in Sabel that was both critical and subject to varying expert opinion consisted of paint samples taken from Sabel’s hands as well as from defaced public property, which in an expert’s opinion matched paint on defaced monuments, identifying Sabel as the perpetrator of the crime.

Staples does not challenge the chemical properties of the substance identified as cocaine or claim that the seized contraband, by its nature, misidentifies him as the perpetrator. The cocaine is not critical within the meaning of Sabel, and its identification as cocaine by an expert is not challenged. The trial court did not abuse its discretion in refusing to appoint an independent expert witness. Reinhardt v. State, 197 Ga. App. 825, 826-827 (1) (399 SE2d 729) (1990).

5. Over a chain of custody objection, the trial court admitted into evidence the cocaine seized from the vehicle in which Staples had been riding. This evidentiary ruling is enumerated as error.

The basis for Staples’s objection is that the arresting officer seized a package of white powder weighing 553 grams, whereas the chemist from the State Crime Lab tested 431 grams of white powder and that one of the sheriff’s deputies was under indictment for stealing from the evidence vault.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence as that seized and show that there has been no tampering or substitution. Johnson v. State, 143 Ga. App. 169, 170 (1) (237 SE2d 681) (1977). The circumstances must establish reasonable assurance of the identity of the substance. Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815) (1968).

The powder came from the evidence vault, where it had been placed by the arresting officers. Although there was testimony that up to five keys to the evidence vault existed during the pertinent time period, a sheriff’s employee identified a photograph she had taken of the substance as she received it. The discrepancy in weight was attributed to the difference between weighing the bundle as packaged at the time of arrest and weighing only the substance to be tested at the crime lab, and any inference of tampering was rebutted by the explanation given and by the absence of any physical manifestation of an improper opening and resealing. Langham v. State, supra at 71-72 (2). The possibility of complete substitution is rebutted by the testimony of the procedures employed to identify, store, and analyze items seized as suspected contraband. Richards v. State, 189 Ga. App. 146, 147 (1) (375 SE2d 278) (1988). There was no error in admitting the cocaine into evidence. Where there is only a possibility of tampering, substitution, or misidentification, “it is proper to admit the evidence and let what doubt remains go to its weight. (Cits.)’ [Cits.]” Johnson v. State, supra at 170 (1).

6. Staples complains that he was subjected to selective prosecution. Even assuming this issue was timely raised before the trial court, Staples has failed to establish a prima facie case of unconstitutionally discriminatory enforcement or selective prosecution of the law, deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classifications. State v. Agan, 259 Ga. 541, 547 (6) (384 SE2d 863) (1989); State of Ga. v. Causey, 246 Ga. 735, 737 (2) (273 SE2d 6) (1980).

7. Although Staples enumerates as error the failure to arraign him on a subsequent indictment, the record reflects that a plea of not guilty was entered on it. This generally amounts to a waiver of formal arraignment. Preston v. State, 257 Ga. 42, 44 (2) (354 SE2d 135) (1987). But see Hicks v. State, 145 Ga. App. 669 (1) (244 SE2d 597) (1978) (no waiver if accused makes timely express invocation of right to arraignment despite entry of plea).

8. During voir dire, but out of the presence of the panel, a black venireman expressed his disagreement with a generalization on race relations made by appellant. The venireman was seated as a juror and ultimately became the foreman. “If known to a party or his counsel, any objections to a juror for cause shall be made before the jury is sworn in the case.” OCGA § 15-12-167. In the absence of a timely request, the trial court did not err by failing to strike this potential juror for cause. OCGA § 15-12-164 (c); McKenzie v. State, 248 Ga. 294, 298 (15) (282 SE2d 95) (1981).

9. Staples enumerates as error the State’s alleged failure to disclose the felony conviction of a person listed as a witness for the State. This witness however, did not testify at trial. Moreover, this alleged conviction was known to Staples prior to trial, and he demanded that he be permitted to argue the fact of conviction despite the absence of a certified copy of that conviction. The evidence required was obtainable from public records by Staples. The State was not required to provide it to aid his defense. Johnson v. State, 244 Ga. 295, 298 (7) (260 SE2d 23) (1979).

10. Although represented on appeal by appointed counsel, Staples has nevertheless submitted a pro se filing, enumerating 45 errors allegedly committed by the trial court. Our State Constitution and the Federal Constitution do not provide a criminal defendant with a right to simultaneous representation by counsel and self-representation. We therefore do not consider those errors raised or arguments- made by Staples himself. It is his obligation to bring his concerns to his counsel’s attention in a timely manner so counsel, in the exercise of professional judgment, may incorporate them in the enumerations of error and brief. Coursey v. State, 196 Ga. App. 135, 137 (5) (395 SE2d 574) (1990).

Decided July 15, 1993 —

Reconsideration denied July 30, 1993 —

Waymon Sims, Randolph E. Wynn, for appellant.

Herman L. Staples, pro se.

Edward D. Lukemire, District Attorney, Shelley S. Howard, Assistant District Attorney, for appellee.

Judgment of conviction affirmed and case remanded with direction.

Johnson and Blackburn, JJ., concur.

       Although mere colloquy between counsel and the court is insufficient to perfect the record for appellate review of a Batson claim, Shaw v. State, 201 Ga. App. 438, 440 (1) (411 SE2d 534) (1991), the statement of a prosecutor “for the record” is prima facie true and if, as here, the defendant does not object, it serves in the nature of a stipulation. Morris v. State, 228 Ga. 39, 48-49 (11) (184 SE2d 82) (1971).


text:
    A93A0208.
    LEDBETTER v. McDOUGALD.
    (434 SE2d 763)
   Smith, Judge.

After exhausting her administrative remedies, Gwendol McDougald petitioned the Superior Court of Fulton County pursuant to OCGA § 50-13-19 for review of a final decision of the Commissioner of the Department of Human Resources (DHR) ordering a reduction in McDougald’s food stamp benefits. The superior court reversed the administrative decision, and this court granted the DHR Commissioner’s application for discretionary appeal.

On January 4, 1991, McDougald received an award of workers’ compensation benefits of $106.92 per week effective November 29, 1990. In its award, the State Board of Workers’ Compensation determined attorney fees in accordance with OCGA § 34-9-108, and ordered that the employer or its insurer pay 25 percent of the compensation award directly to McDougald’s attorney. Pursuant to the Board’s order, every fourth benefit payment was disbursed directly to the attorney.

In March 1991, McDougald applied for food stamps and was granted an allotment of $151 per month. Upon review by a caseworker, it was determined that the portion of the workers’ compensation award paid to McDougald’s attorney should be included in her income for purposes of calculating her food stamp eligibility, and as a result her monthly allotment was reduced to $67. Administrative hearing officers affirmed this decision, but the superior court reversed on the ground that the attorney fee payment was made pursuant to a court order and thus was excludable from income under applicable federal regulations. We affirm.

The food stamp program, which is designed to raise levels of nutrition among low income households, 7 USC § 2011, is administered jointly by the Food & Nutrition Service of the federal Department of Agriculture and by DHR. Eligibility for the program depends in large part upon the level of a household’s income. 7 USC § 2014; 7 CFR § 273.9. While the statute defines “household income” broadly to include “all income from whatever source,” a number of exceptions are created by both the enabling statute and the underlying regulations. 7 USC § 2014 (d); 7 CFR § 273.9 (c). The question presented by this appeal is whether the attorney fees awarded by the State Board are included as income, or are excluded from McDougald’s income as a “gain or benefit which is not in the form of money payable directly to a household.” 7 USC § 2014 (d) (1).

This question is apparently one of first impression. This court is aware of only one prior reported decision on the issue. In Green v. Ariz. Dept. of Economic Security, 121 Ariz. 210, 589 P2d 453 (Ariz. Ct. App. 1978), the court held that the portion of workers’ compensation benefits diverted to the claimant’s attorney should be included as income because attorney fees were not expressly excluded in the applicable statute. This decision, however, was rendered under an earlier version of the food stamp laws, and therefore is of limited guidance in this case. To resolve this appeal, this court must interpret and apply the current legislation and related regulations.

The relevant statute, 7 USC § 2014 (d), is clear: “Household income for purposes of the food stamp program shall include all income from whatever source excluding only (1) any gain or benefit which is not in the form of money payable directly to a household. . . .” The regulations found in 7 CFR § 273.9 (c) elaborate on this provision and provide additional exceptions to and exclusions from the definition of income for food stamp purposes, but do not specifically address the issue raised here.

No provision of 7 CFR § 273.9 (c) applies on its face to sums paid directly to an attorney by order of the State Board of Workers’ Compensation. Attorney fees are not a “household expense,” 7 CFR § 273.9 (c) (1) (iv), and are not included in those items defined as a “household expense” under 7 CFR § 273.9 (c) (1) (ii) or 7 CFR § 273.9 (c) (5). The award of the Board is not “[w]ages earned by a household member,” 7 CFR § 273.9 (c) (1) (iv) (A), but rather “unearned income” or compensation for an injury received in the past. See 7 CFR 273.9 (b) (2) (ii). Finally, 7 CFR § 273.9 (c) (1) (iv) (C), despite McDougald’s contention in her brief, refers only to sup port or alimony payments made pursuant to court order or legally binding agreement.

Decided July 15, 1993 —

Reconsideration denied July 30, 1993 —

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Assistant Attorney General, Cynthia H. Frank, Staff Attorney, for appellant.

Patricia D. Barron, Nancy Lindbloom, Lisa J. Krisher, Phyllis J. Holmen, for appellee.

Because no exclusion found in 7 CFR § 273.9 (c) applies, we must look to the controlling statute. Under 7 USC § 2014 (d), a gain or benefit that is not in the form of money payable directly to a household is excluded. A payment made from the employer or its insurer directly to an attorney for services previously rendered is not “in the form of money payable directly to a household.” Therefore, under the controlling statute, such an attorney fee payment is not income in calculating food stamp benefits.

In the absence of any specific regulatory provision, this court finds that under the enabling statute, 7 USC § 2014 (d), the deduction or payment is not in the form of money payable directly to a household and is therefore not considered household income for purposes of the food stamp program under 7 USC § 2014 (d). Therefore, income for the purposes of the food stamp program should not include a pre-payment deduction of attorney fees from workers’ compensation benefits.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


author: Beasley, Presiding Judge. Cooper, Judge,

text:
    A93A0254.
    TOMPKINS v. MAYERS et al.
    (434 SE2d 798)
   Beasley, Presiding Judge.

Tompkins sued Jimmy Mayers and Brookie Mayers d/b/a U Store - U Lock, a self-storage facility, to recover for the alleged conversion of her personal property. It was stored in a leased unit and disposed of by defendants after non-payment of rent. Tompkins sought summary judgment, unsuccessfully, on the issue of liability on the ground that the sale scheme in OCGA § 10-4-213 was not followed. Defendants then moved for summary judgment, successfully, contending that the lease agreement authorized sale after 30 days of non-payment of rent; that under the lease agreement they had been appointed by the lessee as his attorney in fact to sell the property without advertisement at a private sale; and that the lessee received adequate notice in advance.

The evidence favoring appellant Tompkins shows that Hatten, her son-in-law, leased a storage unit from appellees in 1984. The agreement provided in part as follows: “Lessee hereby appoints management as its attorney in fact to sell without advertisement at private sale the goods located in the leased warehouse and sell such goods at any time after the installment of rent has remained unpaid for thirty (30) days after due. Lessee relinquishes all claim to the warehouse contents at this time and assigns title to these contents to the owner of U Store - U Lock.”

The lease did not call for the sale procedure set out in OCGA § 10-4-213. Appellant’s personal property was placed in the storage unit. Hatten paid rent for the first month but no rent was paid by him for the next 43 months. Jimmy Mayers deposed that he then called the telephone number listed on the lease agreement and informed the person who answered (unidentified) that the property in the unit would be sold unless the rent was paid. The rent was never paid, and the property was sold or given away by the Mayers.

1. Appellant contends the trial court erred in granting summary judgment in favor of appellees on the issue of their failure to comply with the notice provisions of OCGA § 10-4-213 before disposing of her property for non-payment of rent.

In 1982 the legislature enacted the Georgia Self-Service Storage Facility Act, codified as OCGA § 10-4-210 et seq., “to provide a lien on all personal property stored at such facilities in favor of the owners thereof” and “to provide a procedure for the enforcement of such lien.” Ga. L. 1982, p. 2286. This creation of an owner’s lien gave the owner an additional remedy to what was contained in the contract. The Act expressly so provided: “Nothing in this article shall be construed as in any manner impairing or affecting the right of the parties to create additional rights, duties, and obligations in and by virtue of the rental agreement. The rights provided by this article shall be in addition to all other rights allowed by law to a creditor against his debtor.” OCGA § 10-4-214.

If the owner wants the protection of the statutory owner’s lien, and the right to enforce such lien, the owner must comply with the statute’s specific requirements. OCGA § 10-4-213. Failure to do so deprives the owner of this statutory remedy.

In taking the action which defendants did after over three years of non-payment of rent despite calls for it, they did not attempt to enforce the statutory owner’s lien. Instead, they merely enforced the terms of the contract which Jimmy Mayers and Shelton Hatten had signed.

Hatten had agreed that the owner of the warehouse could sell the goods located in the warehouse if the rent remained unpaid for 30 days. To effectuate such a sale, Hatten expressly, in the contract, both relinquished all claim to the goods and assigned title to the owner. The owner waited over 1,000 days before selling and otherwise disposing of the goods.

Having acted in accordance with the contract and enforced its provisions, and not having depended on the Act for the remedy of an owner’s lien, the owner did not violate the Act. Tompkins has no claim for conversion against the owner. Even if she was a disclosed principal and Hatten was her agent, she is foreclosed because her agent agreed to the sale provision in the contract and there is no evidence of a waiver of it by agreement or otherwise.

2. Appellant also contends the trial court erred in granting summary judgment in favor of appellees on the issue of their failure to comply with the notice provisions of OCGA § 11-9-504 before disposing of her property for non-payment of rent, but it is not applicable.

Article 9 of the Uniform Commercial Code does not govern a true lease but only one which disguises a secured transaction. Mejia v. C & S Bank, 175 Ga. App. 80 (332 SE2d 170) (1985), dealt with the distinction, with respect to a “motor vehicle lease.”

Applying the definition of “security interest” and attributes described in OCGA § 11-1-201 (37), the contract between the parties for the use of space to store personal property in exchange for a fee was a true lease. It did not bear the indicia of a UCC security interest in the lessor but merely created and designated a resource for possible recoupment of unpaid rent.

OCGA § 11-1-201 (37) provides in relevant part that a “ ‘[s]ecurity interest’ means an interest in personal property . . . which secures payment or performance of an obligation. . . . Unless a consignment is intended as security, reservation of title thereunder is not a ‘security interest.’ . . . Whether a transaction creates a lease or security interest is determined by the facts of each case. . . .” See and compare Guthrie v. Pilgrim Realty Co., 156 Ga. App. 692 (275 SE2d 686) (1980) in which the court impliedly found or at least assumed that the “lease” in question was actually a security agreement.

In deciding whether a lease is a security agreement, “ ‘[t]he determining factor to be considered is the intention of the parties at the time the contract was entered into as construed in the light of facts and circumstances as they existed at that time[.] . . .’ [Cits.]” Citi zens &c. Leasing v. Atlanta Fed. Savings &c. Assn., 144 Ga. App. 800, 805 (3) (243 SE2d 243) (1978). Where the “parties’ agreement [is] a lease agreement and not intended to evince a secured transaction, the lease provisions govern[ ] the rights of the parties.” Third Century v. Morgan, 187 Ga. App. 718, 721 (2) (371 SE2d 262) (1988).

Under OCGA § 11-1-201 (37), the fact that title was assigned by the lease if a future event occurred is not dispositive on the issue of whether a security agreement was intended. Nor is the fact that the parties may argue after the fact that a security interest was intended. “ ‘A “lease intended as security” is an agreement in which the ultimate intent is a sale.’ ” First Nat. Bank of Cobb County v. Atlanta Classic Cars, 184 Ga. App. 784, 786 (363 SE2d 16) (1987).

Here, neither party intended for lessee to purchase what was leased, i.e., the storage space. The owner/lessor never parted with anything other than its use. No security interest was created in the property leased. Of course, neither did the owner/lessor intend to purchase the items stored in the facility rented to the lessee. Nor did the lessee intend a sale. As plaintiff points out, the lease does not mention the creation of a security interest.

Instead, the provision allowing the owner/lessor to dispose of the lessee’s goods after failure to pay for 30 days enabled the owner/lessor to clear out the storage space and rent it to someone else. The lease states that if the lessee is “30 days delinquent in the monthly rent payment, lessee gives [lessor] the right to . . . take possession of the Warehouse and rent same.” Lessee’s intent at the time of entering into the agreement was not to forfeit the goods in the facility, but to eventually retrieve them. In sum, the intent of the agreement was not for a sale of goods to take place under the guise of a lease contract.

In the usual situation in which a security interest is disguised as a lease, the lessor and lessee contemplate that the lessee will buy the “leased” item by paying monthly payments and exercising an “option to buy” for a nominal price. See Walton v. Howard, 198 Ga. App. 804, 805 (1) (403 SE2d 90) (1991). Here, the owner/lessor was attempting to ensure payment under the lease or alternatively the opportunity to relet the premises, by obtaining on default title to the goods so as to recoup unpaid rent and to relet the unit. There is no evidence that the parties intended that a security interest be created by the lease in the goods which lessor did not own. The lessor did not even know what goods, if any, the lessee would or did place in storage until long after the default. Lessee was not required to store anything in the facility and thus, there could be no reliance by the owner/lessor of the space on any goods in the warehouse to provide “security.” Instead, the intention of the parties as evidenced in the lease was simply to provide the owner/lessor with a method of clearing out the rental space after a specified period of non-payment by the lessee. It was a true lease and not subject to Article 9.

Decided July 16, 1993 —

Reconsideration denied July 30, 1993 —

Huey W. Spearman, Phyllis J. Holmen, Lisa J. Krisher, for appellant.

Emmett P. Johnson, for appellees.

The trial court was correct and should be affirmed.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Andrews and Smith, JJ., concur. McMurray, P. J., and Cooper, J., dissent. Johnson and Blackburn, JJ., not participating.

Cooper, Judge,

dissenting.

I respectfully dissent because the majority views the Georgia Self-Service Storage Facility Act as merely providing an “additional remedy” to owners of self-storage rental facilities when they attempt to dispose of personal property without judicial intervention. However, where the Act is applicable, its provisions are not optional. OCGA § 10-4-215 expressly provides that agreements entered into after July 1, 1982 and those agreements entered into before July 1, 1982 which have been extended or modified after that date are subject to the requirements of the Act. The rental agreement at issue in this case was executed on March 11, 1984 and therefore had to comply with OCGA § 10-4-213 before the Mayers were authorized to dispose of the property without judicial intervention. The rental agreement at issue did not contain the mandatory language set forth in OCGA § 10-4-213 and consequently did not create a lien upon the property which could be enforced without judicial intervention. Moreover, Shelton Hatten was not provided written notice of default, and the property was not advertised and sold in conformity with the statute. In my view, this blatant violation of the Act cannot be ignored. Accordingly, the trial court erred in enforcing the rental agreement and granting summary judgment to appellees.

I am authorized to state that Presiding Judge McMurray joins in this dissent.

       Although its presence does not alter the outcome, we note that Tompkins’ deposition, which she referred to in her original brief, was not in the record at the time of initial determination of the appeal. Apparently, the clerk of the trial court inadvertently failed to send it. The clerk of this court received the deposition on July 28, 1993 and it has been reviewed on reconsideration.


author: McMurray, Presiding Judge. Beasley, Presiding Judge, Blackburn, Judge,

text:
    A93A0256.
    McGUIRE v. THE STATE.
    (434 SE2d 802)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of statutory rape (Count 1), incest (Count 2), two counts of child molestation (Counts 3 and 4), and aggravated child molestation (Count 5). The charges of Counts 1 and 2 of the indictment merged for purposes of sentencing. This appeal followed denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in denying his motion for directed verdict of acquittal with regard to Count 5, arguing that fatal variances exist between the allegata and probata.

(a) Defendant first contends the State failed to prove that he committed aggravated child molestation by “placing his sex organ on and against the anus of [the victim].” Defendant argues that the offense could not have occurred as alleged because the victim testified that the criminal act occurred while the victim was wearing “jeans.”

At trial, the five-year-old victim testified that defendant used his hands to touch the victim’s penis, anus and chest. On cross-examination, the victim explained as follows: “[DEFENSE COUNSEL:] What did [defendant] do to you? A. He stick [sic] his private parts in my private parts. Q. He stuck his private part to your private part? . . . Q. So what did you have on when [defendant] touched you — touched you with his private parts? A. My jeans. Q. You had on your jeans.” This evidence and testimony from several adults that the victim reported defendant’s sexual assault in the manner charged in Count 5 of the indictment is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of committing aggravated child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Richardson v. State, 194 Ga. App. 358, 359 (1a) (390 SE2d 442); OCGA § 24-3-16.

(b) Next, defendant contends the State failed to prove that the alleged incident of aggravated child molestation occurred on the date alleged. “ ‘ “[A]ssuming . . . that there was a variance between the allegata and the probata in regard to the time of the commission of the crime, a motion for directed verdict was not the proper vehicle for obtaining relief. The [defendant] should have made a motion for continuance, postponement or recess if surprised by a time variance.” (Cit.)’ Mann v. State, 167 Ga. App. 829 (1) (308 SE2d 12) (1983). See also Whittington v. State, 184 Ga. App. 282 (4) (361 SE2d 211) (1987). Accordingly, we find no error with the trial court’s denial of [defendant’s] motion for directed verdict of acquittal on [Count 5] of the indictment.” Martin v. State, 196 Ga. App. 145 (1), 146 (395 SE2d 391).

2. In his fourth enumeration, defendant contends the trial court erred in failing to give him access to exculpatory or impeaching material in the State’s file and the investigation records of the City of Roswell Police Department and Department of Family & Children Services.

The record reveals that the State provided defendant all material required pursuant to defendant’s pre-trial discovery motions. See Stewart v. State, 199 Ga. App. 157, 158 (2) (404 SE2d 461). The record also reveals that the trial court found no impeaching or exculpatory material after an in-camera examination of records from the City of Roswell Police Department and the Department of Family & Children Services. We have examined these sealed records and find no such exculpatory or impeaching information. Consequently, this enumeration is without merit. See Davidson v. State, 183 Ga. App. 557, 559 (4b) (359 SE2d 372).

3. Defendant contends in his sixth enumeration that the trial court erred in denying his request to charge on the law of circumstantial evidence.

In Whittington v. State, 252 Ga. 168 (313 SE2d 73), the Supreme Court held that “it is not error to fail to charge on circumstantial evidence where there is some direct evidence[,] Johnson v. State, 235 Ga. 486, 491-92 (220 SE2d 448) (1975)[, b]ut if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request. Stanley v. State, 239 Ga. 260, 261 (236 SE2d 611) (1977).” Id. at 176 (7). However, the Supreme Court changed this rule in Robinson v. State, 261 Ga. 698 (410 SE2d 116), recognizing that it is impossible to determine whether the jury did or did not believe a State’s witness (i.e., determine whether the witness was or was not impeached) and enunciating that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. [The Supreme Court then emphasized that t]his rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” Id. at 699.

In the case sub judice, there was circumstantial evidence pointing to the conclusion that defendant committed at least one of the crimes charged. Since it is impossible to determine whether the jury rejected the direct evidence, Robinson requires reversal of defendant’s conviction based on the trial court’s failure to give defendant’s requested charge on circumstantial evidence. Russ v. State, 204 Ga. App. 689 (1) (420 SE2d 373).

4. The errors alleged in defendant’s remaining three enumerations are unlikely to occur upon retrial.

Judgment reversed.

Birdsong, P. J., Cooper, Andrews and Smith, JJ., concur. Pope, C. J., Beasley, P. J., and Blackburn, J., concur in part and dissent in part. Johnson, J., not participating.

Beasley, Presiding Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2 but I respectfully dissent with respect to Division 3, which involves the rejection of two requested charges. As to Division 4, I cannot concur because a new trial is not required and thus the three remaining enumerations must be addressed.

1. Request No. 14 is a nearly verbatim recitation of the charge endorsed in Davis v. State, 74 Ga. 869, 880 (1885). It is premised on the given fact that all of the evidence linking defendant with the crime is circumstantial. It starts out, “[w]here the guilt of the defendant depends upon circumstantial evidence alone ...” and the rest follows, focusing only on the scenario of a “chain of circumstances.” Davis was such a case. There was no direct evidence whatsoever that Davis had committed the homicide or that it was in fact murder. The court posed “[t]he great question” thusly: do the links in this chain of circumstances so twine around and bind the accused as to make the knot, tied by all combined, hold him as it can hold no other person . . . ?” Id. at 877. It answered as follows: “If, then, suicide and accident can, neither of them, consist with these circumstances, and some one is a murderer, . . . , the same circumstances can consist with no other, as that murderer, than this unhappy [defendant].” Id. at 879.

The instant conviction did not depend on circumstantial evidence alone. Both victims testified that defendant performed the indicted acts on them. The charge was not adjusted to the evidence. It would have been wrong to imply to the jury that all of the evidence in this case was only circumstantial and thereby to relegate the direct evidence to the lower status accorded to circumstantial evidence, which requires a higher quantum and quality to support a conviction. See Davis, supra at 880.

Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), involved both direct and circumstantial evidence. The Court held that “where the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request.” The Court did not rule that the request made by defendant in this case was required. Nor is the particular charge requested by Robinson set out in the opinion. Robinson does not mandate the charge requested by McGuire; it mandates “a” charge, and it obviously means a proper charge, given the body of evidence in the case.

Here the court did instruct the jury on the definitions of, and the difference between, direct and circumstantial evidence, and on the two theories principle.

The opinion in Russ v. State, 204 Ga. App. 689 (1) (420 SE2d 373) (1992), relied upon by appellant, does not contain the charge requested and indicates that the court gave no charge whatsoever on the law of circumstantial evidence. It is not authority for the contention that the charge requested by McGuire was demanded.

2. Defendant’s authority for Request No. 15 is Riley v. State, 1 Ga. App. 651, 655 (1) (57 SE 1031) (1907), but the requested charge constitutes merely that court’s judicial opinion upon the worth of circumstantial evidence; it does not constitute the instruction which that court held must be given in “wholly” circumstantial cases. That case, unlike this one, depended “entirely” on circumstantial evidence.

Defendant’s reference below to O’Quinn v. State, 153 Ga. App. 467, 471 (265 SE2d 824) (1980), is of no aid to him because it did not involve a jury charge. Defendant’s final authority, Williamson v. State, 191 Ga. App. 388 (381 SE2d 766) (1989), which like O’Quinn concerned a conviction based exclusively on circumstantial evidence, also did not involve a jury charge. Rather, the issue was whether the evidence was sufficient to support the verdict.

The refusal of the trial court to instruct the jury as defendant requested did not deprive him of a fair trial.

Blackburn, Judge,

concurring in part and dissenting in part.

I concur in Divisions 1 and 2 of the majority opinion. However, I believe that in Division 3 the majority opinion misapplies the rule set forth in Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991), regarding a proper jury charge on circumstantial evidence and when it must be given, and in holding that the trial court erred in failing to give the jury charge requested by the defendant. Accordingly, for the following reasons, I must respectfully dissent as to Division 3 of the majority opinion.

The defendant, Michael McGuire, was charged with incest, statutory rape, and two counts of child molestation with regard to his thirteen-year-old stepdaughter. An additional charge of aggravated child molestation pertained to his five-year-old stepson.

At trial, the victimized stepdaughter testified in detail about an incident in early 1991 when McGuire approached her after school one day while her mother was still at work. He sat down on the victim’s bed, touched her chest, and tried to pull down her shorts. When the victim pulled her shorts back up, McGuire pulled them down again. The victim hit McGuire, who raised his hand as if to strike her and told her to shut up. McGuire then laid on top of the child and had sexual intercourse with her. Afterwards, he threatened to kill her and hurt her brother and mother if she told anyone about what happened. Following this initial incident, McGuire continued to have sexual intercourse with the girl about twice per week, always while the mother was at work. Occasionally, her little brother was at home when it happened. The stepdaughter did not report the above until her little brother told their mother what McGuire had done to him.

The five-year-old stepson testified that once he saw McGuire and his sister on the floor with McGuire’s shoulder going up and down. The stepson also testified that on two occasions, McGuire touched the child’s penis, anus, and chest, and threatened to whip him. On cross-examination, he stated that McGuire had stuck “his private parts in my private parts.” Both children recounted these experiences with the defendant to caseworkers with the Department of Family & Children Services, who also testified at the trial.

A physician examined both children, and discovered a small laceration in the stepdaughter’s vagina, as well as the fact that her vaginal opening was large. He also pointed out that internal lacerations could be present for several months. The child also had a sexually transmitted disease. The physician found no physical signs of abuse during his examination of the five-year-old stepson.

Based upon the above evidence, McGuire requested a jury charge on the law of circumstantial evidence. The general law regarding circumstantial evidence is codified at OCGA § 24-4-6, which provides that “[t]o 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.” (Emphasis supplied.) This statute represents a codification of the rule requiring a charge on circumstantial evidence where the State’s case depends entirely upon circumstantial evidence, derived from Martin v. State of Ga., 38 Ga. 293 (1868); Carter v. State, 46 Ga. 637 (1872); and Simmons v. State, 85 Ga. 224 (11 SE 555) (1890), which were such cases.

Based upon the three cases from which OCGA § 24-4-6 and its predecessor statutes were derived, it was originally intended to apply only to those cases that were based entirely upon circumstantial evidence. Subject to certain exceptions, subsequent cases held that the general rule is that unless the evidence relied upon for the conviction is entirely circumstantial, a jury charge under OCGA § 24-4-6 is not required. “Where, as here, there is some direct evidence against the defendant, it is not error to fail to charge on circumstantial evidence.” Terrell v. State, 258 Ga. 722 (373 SE2d 751 (1988).

However, this court has held that “if the only direct evidence comes from a witness who has been impeached, it is reversible error to fail to charge on circumstantial evidence upon request.” (Emphasis in original.) Whittington v. State, 252 Ga. 168, 176 (313 SE2d 73) (1984); Horne v. State, 93 Ga. App. 345 (4) (91 SE2d 824) (1956). The theory underlying this rule was that where both direct and circumstantial evidence of the defendant’s guilt is admitted, and the jury is authorized to find that all the direct evidence in the form of witness testimony, has been impeached, the jury is left to determine the guilt or innocence of the defendant based solely on the circumstantial evidence, and therefore must have some guidance on the quantum of circumstantial evidence which will authorize a conviction. See Green v. State, 167 Ga. App. 548 (306 SE2d 354) (1983).

The Supreme Court noted in Robinson v. State, supra, that it was impossible to determine whether the jury found the State’s witnesses had not been impeached and thus based its verdict on the direct evidence, or whether the jury found that the state’s witnesses had been impeached and thus based its verdict on circumstantial evidence (giving rise to a need for a jury charge on circumstantial evidence). To avoid such problems in the future, the Supreme Court devised the following rule: “[Wjhere the state’s case depends, in whole or in part, on circumstantial evidence, a charge on the law of circumstantial evidence must be given on request. This rule will apply whether or not the jury is authorized to find that the direct evidence presented by witness testimony has been impeached.” (Emphasis supplied.) Id. at 699-700.

The questions which must be answered in applying Robinson, are: what is the meaning of the word “depends” as used therein, and what charge on circumstantial evidence must be given, where a charge is required? It is only where the State’s case “depends” upon circumstantial evidence that such a jury charge becomes necessary. The State’s case “depends” upon circumstantial evidence only where such evidence is necessary to prove one of the essential elements of the offense for which the defendant is on trial. See Rash v. State, 207 Ga. App. 585 (5) (428 SE2d 799) (1993).

Robinson by no means requires a jury charge on the law of circumstantial evidence in every case in which some circumstantial evidence is adduced. See, e.g., Berry v. State, 262 Ga. 614 (422 SE2d 861) (1992), wherein the Supreme Court, citing Robinson, found no error in the trial court’s refusal to give a requested jury charge on circumstantial evidence that was not properly adjusted to the evidence in the case.

If the State had depended on a mixture of direct and circumstantial evidence to prove essential elements of the offense, no charge on circumstantial evidence would have been required absent a proper request to charge the law on circumstantial evidence adjusted to the facts of the case. There was no independent duty on the court to create and give a proper charge on circumstantial evidence, adjusted to the evidence of the case. It is only where the State relies wholly on circumstantial evidence that a charge on circumstantial evidence must be given without request. Gentry v. State, 208 Ga. 370 (66 SE2d 913) (1951); Campbell v. State, 202 Ga. 705 (44 SE2d 903) (1947). This rule has not been changed by Robinson.

McGuire’s requested charge on circumstantial evidence is taken from Davis v. State of Ga., 74 Ga. 869, 880 (1885). In Davis, there was no direct evidence of the defendant’s guilt, and the jury charge prescribed in that case was designed for cases in which all of the evidence proving the defendant’s guilt is circumstantial in nature. The applicability of that jury charge derived from Davis thus is on the same footing with the general codification of the law on circumstantial evidence in OCGA § 24-4-6.

Inasmuch as the jury charge derived from Davis which was requested by McGuire, as well as the general codification of the law on circumstantial evidence found in OCGA § 24-4-6, applies only to cases in which the State depends entirely upon circumstantial evidence, and the subject case involves a mixture of direct and circumstantial evidence, it was not error for the court to refuse to give the requested charge. Indeed, to have done so, would have misled the jury as OCGA § 24-4-6 provides, in part, “[t]o warrant a conviction on circumstantial evidence, . . .” (emphasis supplied) while the direct evidence in the instant case was sufficient to convict McGuire. Thus, the charge requested by McGuire was not adjusted to the evidence of this case (a mixture of direct and circumstantial evidence) and the court properly refused to give it. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.” Harris v. State, 202 Ga. App. 618 (414 SE2d 919) (1992); Hill v. State, 259 Ga. 557 (3b) (385 SE2d 404) (1989).

In the instant case, the testimony of the two victims constituted direct evidence which, standing alone, was sufficient to establish McGuire’s commission of incest, statutory rape, child molestation, and aggravated child molestation as charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The evidence characterized by the majority opinion as circumstantial evidence corroborated that direct evidence, but the State did not depend thereon to prove any of the essential elements of the offenses with which McGuire was charged. Where the direct evidence alone suffices to establish the charged offense, and any circumstantial evidence is merely cumulative, no jury charge on circumstantial evidence is required even under Robinson. Rash v. State, supra.

In summary, the rule regarding a jury charge on circumstantial evidence set forth in Robinson v. State, supra, applies only where the State relies upon such evidence to prove one of the essential elements of the offense for which the defendant is on trial. The limited quantity of circumstantial evidence adduced in the instant case was not used or needed for that purpose, and the majority opinion errs in reversing the defendant’s conviction on the basis that a jury charge on circumstantial evidence was required under Robinson v. State, supra.

The current status of the law concerning charging the jury on circumstantial evidence can be stated as follows:

Decided July 16, 1993 —

Reconsideration denied July 30, 1993.

Sarina J. Woods, for appellant.

Lewis R. Slaton, District Attorney, Barry I. Mortge, Suzanne Wynn, Assistant District Attorneys, for appellee.

1. Where the State relies wholly on circumstantial evidence to prove its case, a charge on circumstantial evidence as provided by OCGA § 24-4-6 is required, without request from the defendant.

2. Where the State relies on a mixture of direct and circumstantial evidence to prove essential elements of the charged offense, a proper charge on circumstantial evidence adjusted to the fact of there being mixed direct and circumstantial evidence is required, upon proper request, without regard to whether or not the State’s witnesses may have been impeached.

Moreover, as this court noted in Rash v. State, supra at 587, “there is yet another reason for not reversing this case for failure to charge the law of circumstantial evidence. That is, no other reasonable hypothesis save that of the guilt of the accused has been suggested. Should the case be retried so a jury can hear those words when no other reasonable hypothesis has been, offered? Our answer is in the negative.” (Citations and punctuation omitted.)

Reversal of this case is neither required nor authorized under a proper application of Robinson, and I must respectfully dissent to Division 3 of the majority opinion.

I am authorized to state that Chief Judge Pope joins in this dissent.

       It is not, as such, in the Suggested Pattern Jury Instructions, Vol. II, Criminal, 2d ed. See pp. 11-12.


author: Cooper, Judge. McMurray, Presiding Judge, Beasley, Presiding Judge,

text:
    A93A0339.
    HOLLAND v. THE STATE.
    (434 SE2d 808)
   Cooper, Judge.

Appellant entered guilty pleas to three counts of child molestation and one count of aggravated sodomy based on a series of episodes involving his eight-year-old stepdaughter. Prior to the acceptance of the pleas and the imposition of a sentence, appellant was fully advised of his rights pursuant to Uniform Superior Court Rule (USCR) 33.8, and appellant indicated that he read and signed the special presentment by which he was charged and understood the charges contained therein. The State detailed the factual basis for each of the offenses, including with respect to the aggravated sodomy charge, the victim’s statement that appellant got on top of her while in his underwear but she did not know whether he made a “liquid” and appellant’s admission to “doing it with her doggie-style” but with his clothes on. Later in the hearing, the trial court needed a clarification of the various charges and asked specifically for the factual basis as to the aggravated sodomy charge, to which defense counsel replied: “There was a touching, yes, sir. One time she had her back to him and she said she felt something. He said he had his pants on. She thought he had his underwear on or was — did not have anything on. I believe that’s what both of them had said. And whether or not there was actual contact or not Mr. Holland has been in a position where he’s wanted to plead guilty to the charges. ...”

Following the hearing, the court sentenced appellant to fifteen years on each of the four counts to run concurrently, with six years to serve on the child molestation counts and nine years to serve for aggravated sodomy. Shortly thereafter, appellant filed a motion to withdraw his guilty plea to aggravated sodomy on the grounds that he did not commit the offense of aggravated sodomy; that there was no evidence presented to the court that he committed an act of sodomy; that he would not be found guilty of aggravated sodomy at trial; that appellant’s desire to avoid any conflict with the State in the presentation of his case resulted in his admission of guilt; that the guilty plea “creates a manifest injustice” unless the court permits its withdrawal; and that the plea was not intelligently and voluntarily entered. During the hearing on the motion to withdraw, responding to the court’s inquiry, appellant admitted reading and signing the indictment but claimed that he only pled guilty because he was embarrassed because his family was present in court during the plea hearing and he “would have said anything to get out of this.” The trial court denied the motion, and this appeal followed. Appellant asserts as his sole enumeration of error that the guilty plea to aggravated sodomy had no factual basis and creates a manifest injustice.

USCR 33.9 provides: “[notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy him that there is a factual basis for the plea.” The record of the plea hearing contains the State’s summary of the evidence which would have been presented at trial on all the offenses charged in the special presentment, and remarkably, this evidence was corroborated by defense counsel. Moreover, the transcript reveals that the court specifically asked defense counsel whether there was a legal and factual basis for his client’s plea, and counsel replied affirmatively. “ ‘([I]t is not) necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when there is evidence that the trial court is aware of the factual basis.’ [Cit.]” Clark v. State, 186 Ga. App. 106, 107 (2) (366 SE2d 361) (1988).

The dissent acknowledges that there was contact between defendant’s penis and the victim’s anus, albeit through clothing, but contends the factual basis presented did not establish sodomy because there was no skin-to-skin contact. However, there is no authority for that proposition.

In his appellate brief, appellant also argues that he did not fully understand the charge of aggravated sodomy at the time the plea was tendered and that his guilty plea to aggravated sodomy was not knowingly and voluntarily entered. Not only do these contentions improperly enlarge appellant’s enumeration of error (Chezem v. State, 199 Ga. App. 869 (2) (406 SE2d 522) (1991)), but our review of the record indicates they are unfounded. Therefore, the trial court did not err in denying appellant’s motion to withdraw his guilty plea.

Judgment affirmed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Blackburn and Smith, JJ., fully and specially concur. Beasley, P. J., dissents. Johnson, J., not participating.

McMurray, Presiding Judge,

concurring fully and specially.

I agree with all that is written in the majority opinion, but wish to emphasize that skin-to-skin contact is not a necessary element of the crime of sodomy. As noted in the majority opinion, there is nothing in the sodomy statute or related case law suggesting that the prohibited conduct can only be committed by skin-to-skin contact. If the legislature had intended the words of the statute to have the meaning urged by the dissent, it could have easily said so.

The essence of the sodomy statute is to prohibit certain contact which may be perceived by the sense of feeling. It is a matter of common knowledge that the interposition of a layer of fabric will not prevent a person feeling the object thus concealed. Thus, the statutory purpose would be frustrated were someone able to avoid the prohibition of the statute by the interposition of such a gossamer barrier.

I am authorized to state that Chief Judge Pope, Presiding Judge Birdsong, Judge Andrews, Judge Blackburn, and Judge Smith join in this opinion.

Beasley, Presiding Judge,

dissenting.

No citation of authority need be given for the principle that no person should be punished for an act which is not a crime, or which does not constitute the crime with which he is charged.

An act of sodomy occurs “when [a person] performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a). What “involving” means is that there must be “some . . . actual contact” between the two body parts. It is contact short of penetration. Carter v. State, 122 Ga. App. 21, 23 (176 SE2d 238) (1970); Wimpey v. State, 180 Ga. App. 529, 530 (2) (349 SE2d 773) (1986).

The indictment charged an act “involving [defendant’s] sex organ and the anus of [the child],” the words of the Code. It did not mention “contact.” The State recited that the evidence would show that the child described to a detective “an incident where [defendant] got on top of her while in his underwear.” The State further recited that, referring to the same incident, defendant “described doing it with her doggie style, but that he had clothes on during that transaction, that he was not nude or in his underwear. She described an incident in which he was in his underwear doing this type of activity. He acknowledged an incident of that nature occurring but claimed that he was wearing clothing at the time.”

After the court heard from both sides, it distinguished the count of aggravated sodomy from the three counts of child molestation and said, “I’ve not heard any factual basis as to the allegation of anal sex.” Defense counsel assured the court that defendant was pleading guilty also to the aggravated sodomy charge because “[t]here was a touching, yes, sir. One time she had her back to him and she said she felt something. He said he had his pants on. She thought he had his underwear on or was — did not have anything on. I believe that’s what both of them had said. And whether or not there was actual contact or not Mr. Holland has been in a position where he’s wanted to plead guilty to the charges, but that’s the actual — [the district attorney] showed me the video [of the child’s statement] so that we would both know what she was going to say. . . . But I believe that’s the gist of the evidence is she is not sure and Mr. Holland said that he had his pants on.”

The factual basis presented does not show sodomy, that is, “actual contact” by defendant’s penis with the child’s anus, although it does show a touching through some clothing, either underwear or pants. Even if defendant is not permitted to say he was unaware of the words of the indictment because he signed it in open court, he would not know from the words that to constitute the crime, “involving” had to be an actual touching, skin-to-skin. So his acknowledgment of guilt would simply be in conformity with the recitations of what the evidence would show.

This is not a case where the factual basis is not spread on the record, which under Ford v. State, 248 Ga. 241, 242 (2) (282 SE2d 308) (1981), would not be reversible. Nor is it a case where the court did not make an inquiry on the record to satisfy itself that there was a factual basis, as urged by USCR 33.9. It is rather a case where the factual basis is set out and shows the absence of the crime. The factual basis was insufficient to establish that for which defendant was sentenced to serve, in effect, three years more than was imposed for the molestations. To accept a plea under such circumstance is error under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Breland v. Smith, 247 Ga. 690, 691-692 (2) (279 SE2d 204) (1981); Watt v. State, 204 Ga. App. 839, 840 (1) (420 SE2d 769) (1992).

The factual basis is crucial to the assurance of a valid plea, as demonstrated in Golden v. State, 190 Ga. App. 477, 478 (379 SE2d 230) (1989). There it was stated: “Although the trial court did not make a determination concerning the factual basis for appellant’s plea, as urged by Rule 33.9 of the Uniform Rules for the Superior Courts, we have held that it is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when the transcript presents evidence that the trial court was aware of the factual basis. Clark v. State, 186 Ga. App. 106, 107-108 (2) (366 SE2d 361) (1988).” The court proceeded to examine the district attorney’s summary of the evidence the State was prepared to present at trial, which showed the factual basis.

In Clark, too, although the trial court did not make a determination concerning the factual basis, this court reviewed the State’s summary of evidence and assured itself that there was indeed one. We concluded: “Since the transcript contained a factual basis for appellant’s plea; it was not necessary for the trial court to affirmatively state that a factual basis existed. There was no error in accepting appellant’s plea. Brannon v. State, 176 Ga. App. 49 (2) (335 SE2d 163) (1985).” Id. at 108.

The same is true of Scurry v. State, 194 Ga. App. 165 (390 SE2d 255) (1990), where the court stated: “At the outset we note that the trial judge did not state on the record that he was satisfied that a factual basis existed for appellant’s plea of guilty. However, such an express finding is unnecessary as the record establishes that the trial judge was aware of the factual basis, because of the prosecutor’s summarization of the operative facts on the record.”

Decided July 16, 1993.

Winn, Price & Winn, Frank C. Winn, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

In Goodman v. Davis, 249 Ga. 11, 16 (2) (287 SE2d 26) (1982), the trial court and this court were assured of the factual basis for the plea, that the evidence that would be presented at trial would show the elements of the crime to which the defendant was entering a plea of guilty. In Goodman, the facts constituted the offense and the defendant merely misunderstood its elements, so the plea was deemed valid.

In this case, the transcript affirmatively shows that there is not a factual basis showing aggravated sodomy. Compare McGuire v. State, 209 Ga. App. 813 (434 SE2d 802) (1993), where the facts were held to constitute aggravated child molestation.

The plea cannot stand. It was error to reject defendant’s motion to withdraw his plea of guilty to the charge of aggravated sodomy.

       In this case defendant is charged with aggravated sodomy because the alleged act was against a child, so the force and against-will elements, which elevate sodomy into aggravated sodomy, were conclusively proved by her age.

       Whether the use of a condom could constitute a defense is not before us.

       We have “strongly urged” that trial judges follow the imploring of USCR 33.9. See, e.g., Scurry v. State, 194 Ga. App. 165, 167 (390 SE2d 255) (1990). It may be time to require that the factual basis appear on the record, just as the record must affirmatively show that defendant’s plea was intelligent and voluntary. Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). How can a defendant have “a full understanding of what the plea connotes and of its consequence,” Boykin, supra at 244, if he or she does not understand what the elements of the crime are and that the expected evidence establishes them?