text:
    A01A0248.
    THIGPEN v. THE STATE.
    (546 SE2d 60)
   Eldridge, Judge.

A Gwinnett County jury found Debra Thigpen guilty of aggravated assault and possession of a firearm during the commission of said assault, which charges arose during a domestic dispute wherein Thigpen shot at her ex-husband with a Ruger .357 magnum pistol. She appeals, raising a claim of ineffective assistance of trial counsel. On review of such claim, we affirm.

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, [she] is required to show that [she] was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for [her] counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Further, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

With these principles in mind, we review Thigpen’s specific claims of deficient performance.

(a) Thigpen contends her trial counsel was ineffective for failing to explore and put forward evidence of the battered woman syndrome in support of her justification defense. However, trial counsel testified at the motion for new trial hearing that he considered such evidence, but found it inapplicable in the instant case because the incidents of physical abuse between Thigpen and her ex-husband were recent in relation to the indicted offense.

The battered woman syndrome describes a series of common characteristics that appear in women who are abused physically and psychologically over an extended period of time by the dominant male figure in their lives. A summary of the battered woman syndrome is set forth in State v. Kelly [, 97 N.J. 178 (478 A2d 364, 371) (1984),] particularly the three-phase battering cycle that develops in abusive relationships and the state of psychological paralysis into which some women descend. This Court’s conclusion . . . that the battered woman syndrome is a complex subject is supported by a review of the sustained psychological and physical trauma compounded by aggravating social and economic factors that comprise the battered woman syndrome.

The record shows that the indicted offense occurred on January 6,1999. The first incident of physical abuse by Thigpen’s ex-husband occurred in July 1998, followed by a second incident of physical abuse in October 1998. Thereafter, Thigpen obtained a restraining order and a warrant for her ex-husband’s arrest.

We find the record supports trial counsel’s conclusion that the instant case “is in no manner a battered woman syndrome case.” Not only was there no evidence of a pattern of physical abuse over an extended period of time, Thigpen’s swift response in seeking a restraining order and warrant for her ex-husband’s arrest falls far short of demonstrating the “psychological paralysis” that is the hallmark of the battered woman syndrome.

(b) Next, Thigpen contends that trial counsel was ineffective for failing to call numerous character witnesses who would have testified in her support at trial. However, “[d]ecisions regarding which witnesses to call and all other trial strategies are the exclusive province of the attorney after consultation with his client.”

Here, trial counsel testified that he did not consider the introduction of character witnesses. Thigpen’s current counsel did not ask him why he made such decision. But the record is revealing in that regard. While Thigpen had numerous family and friends appear in her support at a post-trial supersedeas bond motion, the record also shows that Thigpen’s ex-husband had family and friends testify in his favor at trial regarding specific misconduct by Thigpen in relation to the indicted act. From the record, it appears that opening the door on Thigpen’s “good character” might just as easily have resulted in the introduction of an equal amount of “bad character” evidence. Absent a showing that trial counsel’s determination not to seek out character evidence was a strategic error, we will not find it as such on the record before us.

(c) Thigpen also claims error in trial counsel’s decision not to introduce good character evidence in mitigation during sentencing. However, the trial court, while noting Thigpen’s support at the supersedeas bond hearing, specifically found that

when I sat through the trial ... I was troubled by the evidence in the case — by that I mean I was troubled by the fact that your client procured a weapon, hid it outside the door knowing her husband was coming over and got into that tussle with him and shot as he was backing away. That’s the part that troubles me. The neighborhood there — those shots from a .357 magnum fortunately didn’t hit anyone. But that put the whole neighborhood in danger. And her child was in her arms at the time she did it. I just considered it an appalling act. And on the other hand I recognize the hardship that her children are going through and that her family’s going through and the anguish that her friends feel for her. But we can’t undo what happened. And we can’t avoid the consequences of that conduct. And that’s what I go with.

There is no evidence on the record before us that additional testimony regarding Thigpen’s character would have in any way altered the judge’s sentencing determination, which was expressly based upon Thigpen’s actions. “Thus, [Thigpen] has failed to carry [her] burden of showing that [she] was prejudiced by counsel’s performance.”

Judgment affirmed.

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

Decided February 27, 2001.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

       (Citations and punctuation omitted.) Hall v. State, 243 Ga. App. 804, 805 (534 SE2d 196) (2000).

       (Citations, punctuation and footnotes omitted.) Johnson v. State, 266 Ga. 624, 626 (2) (469 SE2d 152) (1996).

       (Citation omitted.) Adame v. State, 244 Ga. App. 257, 258 (1) (534 SE2d 817) (2000).

        Parrish v. State, 237 Ga. App. 274, 284 (10) (514 SE2d 458) (1999).

       The State introduced no evidence in aggravation of sentence. The trial court sentenced Thigpen to ten years, serve five, balance probated on the aggravated assault count and five years consecutive probation on the firearm count.

        Barber v. State, 236 Ga. App. 294, 299 (5) (512 SE2d 48) (1999).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A0899.
    LEVERETTE v. THE STATE.
    (546 SE2d 63)
   Eldridge, Judge.

Eddie Leverette appeals from the Superior Court of Clayton County’s revocation of his first offender probation on the offense of terroristic threats, which revocation was predicated upon Leverette’s subsequent conviction for possession of cocaine. In his enumeration of error, Leverette contends that the revocation is void ab initio, since the petition for revocation was signed and submitted to the court by a probation officer (now “supervisor”), which allegedly is the unauthorized practice of law under OCGA § 15-19-51. In considering this issue of first impression, we disagree and affirm the order of the trial court.

1. OCGA § 15-19-50 defines the acts that constitute the “practice of law” as follows:

(1) Representing litigants in court and preparing pleadings and other papers incident to any action or special proceedings in any court or other judicial body; (2) Conveyancing; (3) The preparation of legal instruments of all kinds whereby a legal right is secured; (4) The rendering of opinions as to the validity or invalidity of titles to real or personal property; (5) The giving of any legal advice; and (6) Any action taken for others in any matter connected with the law.

At trial, Leverette maintained that “when a probation officer such as Elizabeth Holcomb in this case, it [petition] says in the name and on behalf of the State of Georgia, we assert that she is representing the State of Georgia by filling out this pleading and therefore practicing law without a license.”

At the outset, it should be noted that the number of revocation petitions filed by probation officers in the State of Georgia are legion, and such practice has been ongoing for a lengthy period of time. If such petitions render the trial courts’ subsequent orders of revocation void, as argued by Leverette, then all such previous revocations — without time limitation — are subject to attack, since “[t]he judgment of a court having no jurisdiction of the person or the subject matter or which is void for any other cause is a mere nullity and may be so held in any court when it becomes material to the interest of the parties to consider it.”

However, we need not open the floodgates of litigation because Leverette’s argument ignores the fact that the probation officer is a public official employed by the State of Georgia and, in this instance, was assigned to handle Leverette’s case. As such, the probation officer was acting as a State agent in the preparation and filing of the petition for revocation of Leverette’s probation. In that regard, OCGA § 15-19-52 states in pertinent part that “Nothing contained in this article shall prevent any corporation, voluntary association, or individual from doing any act or acts set out in Code Section 15-19-50 to which the persons are a party.” In acting as an agent for the State of Georgia assigned to handle matters relating to Leverette’s probation, Holcomb was a “party” to the action, as contemplated under the statute. As such, Holcomb’s filing of a petition seeking a court hearing on the revocation of Leverette’s probation does not entail the unauthorized practice of law, such as when a layman represents another, unrelated “person” in a legal capacity. Thus, contrary to Leverette’s contention, Holcomb was authorized to act on behalf of the State of Georgia in filling out the revocation petition.

In so holding, we are not unmindful of the Supreme Court of Georgia’s admonition in Eckles v. Atlanta Technology Group, that However, OCGA § 15-19-52 is still “valid legislation,” and the Supreme Court of Georgia made it clear that reliance on statutory authority “must give way” only when “decisions and orders of this [Supreme] Court” conflict with such authority. Our efforts reveal no such conflict in this area of first impression. To the contrary, the Supreme Court’s holding in Eckles is limited to proscribe only “a layman’s legal representation in a court of record of another ‘person’ in the form of a separate corporate entity,” and the reasoning behind the holding in Eckles does not impact on a State agent’s authority to petition the court on behalf of the State with regard to a matter within the scope of his or her employment.

Ga. L. 1931, p. 191, as amended, which includes provisions such as OCGA § 15-19-52, no longer controls the practice of law in Georgia. When a legislative enactment relating to admission to the practice of law conflicts with rules for admission adopted or approved by the judiciary, the legislative enactment must give way.

Decided February 27, 2001

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Robert E. Keller, District Attorney, Kathryn O. Pulliam, Assistant District Attorney, for appellee.

2. Before this Court, Leverette also argues that the probation officer’s act of petitioning the trial court for revocation of Leverette’s probation exceeded the scope of her employment. This issue was not raised in the court below and as such is waived. However, pretermitting this fact, we have no problem concluding that filing with the court a petition for revocation of probation and the reasons why such action should be taken come within the contemplated scope of a probation officer’s duty to “make recommendations to the Court” per Department of Corrections Rule 125-1-2.12 (a) (1) and OCGA § 42-8-29.

Judgment affirmed.

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

       OCGA § 42-8-26.

       See, e.g., Roberts v. Lowry, 160 Ga. 494, 495 (128 SE 746) (1925); Smith v. State, 164 Ga. App. 384, 385 (2) (297 SE2d 738) (1982); Kitchens v. State, 234 Ga. App. 785 (508 SE2d 176) (1998).

       OCGA § 9-12-16.

       See Op. Atty. Gen. No. 68-461 (1968); see also Christensen v. State, 219 Ga. App. 10, 13 (464 SE2d 14) (1995) (probation officers enjoy qualified immunity arising from performance of official governmental functions).

       See Huber v. State, 234 Ga. 357 (216 SE2d 73) (1975).

       267 Ga. 801 (485 SE2d 22) (1997).

       (Punctuation omitted.) Id. at 804.

        Huber v. State, supra at 360.

        Eckles v. Atlanta Technology Group, supra at 804.

       Id. at 806.

        Right v. State, 242 Ga. App. 13, 18 (528 SE2d 542) (2000) (a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal).


author: Blackburn, Chief Judge.

text:
    A00A2388.
    STROZIER v. THE STATE.
    (546 SE2d 290)
   Blackburn, Chief Judge.

Following the revocation of his probation for possession of cocaine, Tobias Strozier appeals, contending that: (1) the district attorney, not the trial court, prepared the hearing calendar and assigned his case in violation of Uniform Superior Court Rule 3.1; (2) the evidence was not sufficient to support the probation revocation; (3) his probation officer committed the unauthorized practice of law by filing his petition for probation revocation; and (4) the trial court erred during sentencing by failing to give him credit for time served for the original crime. For the reasons set forth below, we vacate the trial court’s order and remand for further proceedings.

On January 11, 1999, Strozier pled guilty to possession of cocaine, and he was sentenced to five years of probation as a first offender. On April 5, 2000, Strozier was arrested for possession of cocaine and marijuana. Subsequently, Strozier’s probation officer filed a petition with the trial court recommending that his probation be revoked. After a hearing, the trial court found Strozier guilty of possession by a preponderance of the evidence, revoked his probation, and sentenced him to serve five years of incarceration “over and above any time previously served.”

1. Strozier contends that the district attorney, not the trial court, prepared the hearing calendar and effectively assigned his case in violation of USCR 3.1. USCR 3.1 provides, in pertinent part:

Method of Assignment. In multi-judge circuits, unless a majority of the judges in a circuit elect to adopt a different system, all actions, civil and criminal, shall be assigned by the clerk of each superior court according to a plan approved by such judges to the end that each judge is allocated an equal number of cases.

In Cuzzort v. State, our Supreme Court considered the efficacy of the manner in which cases were calendared and, thereby, assigned in the Lookout Mountain Judicial Circuit. There, the district attorney assigned cases to judges and placed them on the court’s calendar. In rejecting this procedure, our Supreme Court held:

Under the plain language of [USCR 3.1], multi-judge circuits may adopt a different method subject to the approval of a majority of the circuit’s judges. Certainly, judges, in their capacity as members of the judiciary, have the inherent authority to determine their own internal operating procedure for the selection of which of them shall hear cases. Accordingly, we do not take issue with the Lookout Mountain Judicial Circuit’s decision to adopt a more efficient system. The precise method of assigning and calendaring cases adopted by a multi-judge circuit, however, must comport with the notion of due process under the State and Federal constitutions, as well as the spirit and purpose of the uniform rules and applicable statutes.

(Citations and punctuation omitted.) Id. at 464 (1).

In Cuzzort, our Supreme Court explained further:
The purpose of the assignment system in multi-judge circuits is to “prevent any person’s choosing the judge to whom an action is to be assigned.” USCR 3.1. ... In the Lookout Mountain Judicial Circuit, however, it is not the chief or other circuit judge who makes case assignments and sets the calendar but the district attorney. Because the district attorney is clearly within the category of persons directed to refrain from affecting case assignments under USCR 3.1, we find the method of case assignment employed in the Lookout Mountain Judicial Circuit violates the clear mandate of that rule.

Id. at 464-465 (2).

Unlike the record in Cuzzort, the record now before us is incomplete and inconclusive with regard to the method of assigning cases to particular judges in the Coweta Judicial Circuit. During Strozier’s revocation hearing, testimony showed that the trial calendar was prepared by the district attorney’s office “at the direction of the trial court.” Although the record indicates that the trial court knew about and approved of the method of calendaring cases, the transcript does not indicate the nature of the “direction” given by the trial court to the district attorney’s office. As a result, we are unable to determine from the record who actually has discretion over calendaring cases in the Coweta Judicial Circuit — the trial court or the district attorney. If the trial court retains discretion, the system does not violate USCR 3.1. On the other hand, if the district attorney has discretion over assignment, the system violates the holding of Cuzzort.

Because the record does not contain enough information regarding the method of assigning cases in the Coweta Judicial Circuit, we must vacate the trial court’s order revoking Strozier’s probation and remand this case for further hearings on this issue.

2. Strozier also contends that the evidence was insufficient to support the trial court’s revocation of his probation for possession of cocaine. We disagree.

The evidence produced at the revocation hearing must establish the violations of probation only by a preponderance of the evidence, not beyond a reasonable doubt. OCGA § 42-8-34.1 (a). In this case, the record shows that, on April 5, 2000, Officers Gino Grippo and Robert Moore spent two hours observing a house located at 105 Edgewood Avenue in LaGrange. From their concealed location, the officers watched numerous people coming and going from the house and staying for three minutes or less. Strozier and one other compatriot, however, stayed at the house for almost the entire time, occasionally leaving to go behind a vacant house next door and returning shortly thereafter.

Decided February 20, 2001

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

At the end of their surveillance, the officers decided to approach the house, and Officer Grippo asked Strozier and the other occupants for permission to search the house, which was granted. The officers did not find any contraband either in the house or on the occupants thereof. Officer Moore did, however, find a bag of marijuana and a bag of cocaine hidden behind the vacant house next door, where Strozier had been seen going several times. Both officers testified that, based on their training, they believed that Strozier was conducting drug sales out of the home.

This evidence was sufficient, by a preponderance of the evidence, to support the trial court’s holding.

3. Strozier contends that his case must be reversed because the petition for his probation revocation was filed by a probation officer, constituting the unauthorized practice of law. This contention, however, is without merit for the reasons outlined in Leverette v. State, 248 Ga. App. 304 (546 SE2d 63) (2001).

4. Finally, Strozier contends, and the State agrees, that the trial court erred in sentencing him by failing to give him credit for time already served on probation. Franklin v. State, 236 Ga. App. 401, 402 (1) (512 SE2d 304) (1999). If, after production of new evidence on remand, the trial court determines that the method of assigning cases in the Coweta Judicial Circuit complies with USCR 3.1 and reinstates its order revoking Strozier’s probation, the trial court must resentence Strozier to correct this error.

Judgment vacated and case remanded.

Eldridge and Barnes, JJ, concur.

        Cuzzort v. State, 271 Ga. 464 (519 SE2d 687) (1999).


author: Pope, Presiding Judge.

text:
    A00A2492.
    In the Interest of T. R. et al., children.
    (548 SE2d 621)
   Pope, Presiding Judge.

The Juvenile Court of Jones County, following two hearings, entered an order authorizing the Jones County Department of Family & Children Services (DFACS) to discontinue efforts to reunite T. R., A. R., and K. R. with their mother and father. The mother appeals, contending that the juvenile court should have dismissed DFACS’s report recommending nonreunification because it did not comply with the requirements of OCGA § 15-11-58. For the reasons that follow, we affirm.

1. The mother first contends the juvenile court should have granted her motion to dismiss because the report to court recommending nonreunification did not meet the requirements of OCGA § 15-11-58 (b) (formerly OCGA § 15-11-41 (c)). In pertinent part that subsection provides:

The contents of the report shall be determined at a meeting to be held by the Division of Family and Children Services ... in consultation with . . . the parents and children, when available. The parents shall be given written notice of the meeting at least five days in advance and shall be advised that the report will be submitted to become an order of the court. The report submitted to the court shall also contain . . . any recommendations of the parents, if such are available.

In this case, the mother points to evidence which she contends shows that the contents of the report recommending nonreunification were determined prior to her meeting with DFACS caseworkers. Although we agree with the mother that the report should not be finalized until after the meeting contemplated by OCGA § 15-11-58 (b) has occurred, we disagree with the mother’s apparent contention that nothing should be committed to writing prior to the meeting. In our opinion, the statutory procedure was followed in this case.

Moreover, we also find no merit to the mother’s argument that the report failed to meet the requirements set forth in OCGA § 15-11-58 (f) (formerly OCGA § 15-11-41 (g)). Contrary to the mother’s contention, the report sufficiently set forth the factual bases for determining that a plan for reunification was not appropriate.

2. The mother also contends that DFACS presented no evidence concerning reasonable efforts made to return the children safely to the home, as required by OCGA § 15-11-58 (a) (formerly OCGA § 15-11-41 (b)). The record does not support this contention. Evidence was presented, as the juvenile court noted and the mother’s counsel acknowledged, concerning efforts made to allow the children to return home, including that DFACS had provided the mother with parenting classes and substance abuse treatment. Indeed the mother testified that the parenting classes provided by DFACS had enabled her to identify and to seek treatment for medical problems suffered by a child born subsequent to the removal of the three children who are the subject of this appeal, and that as a consequence that child did not suffer the same fate (failure to thrive) as had two of her older children. Additionally, some of DFACS’s attempts to aid the mother were met with resistance, such as when the mother was untruthful in some of her responses during an alcohol abuse assessment. This contention is without merit.

3. Lastly, the mother argues there was insufficient evidence to establish clearly and convincingly that continued reasonable efforts to reunify the family would be detrimental to the children as required by OCGA § 15-11-58 (h) (formerly OCGA § 15-11-41 (i)). However, that subsection goes on to provide that there will be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that:

(1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-94; or (4) Any of the circumstances set out in paragraph (4) of subsection (a) of this Code section exist, making it unnecessary to provide reasonable efforts to reunify

Our review shows the finding of the juvenile court that the mother unjustifiably failed to comply with plans designed to reunite the family is supported by clear and convincing evidence. See In the Interest of S. A. W., 228 Ga. App. 197, 200 (491 SE2d 441) (1997). As the court noted, under the mother’s version of events, everyone who had testified before the court, except her, was untruthful about her efforts. “[B]ut on appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and [we] affirm unless the appellate standard is not met.” (Citations and punctuation omitted.) In the Interest of L. S. M., 236 Ga. App. 537, 538 (512 SE2d 397) (1999). In the Interest of R. U., 239 Ga. App. 573, 577 (1) (521 SE2d 610) (1999).

Decided February 26, 2001.

Richard A. Epps, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Philip B. Spivey, for appellee.

Moreover, although the mother argues that the fact that two children, born after the removal of the three older children, were allowed to remain in the home shows continued reunification efforts would not be detrimental, she fails to mention that by the time of the second hearing the two younger children had also been placed in foster care. And she also fails to mention that the younger children were removed after she was arrested for criminal trespass because she broke out windows in her public housing apartment or that the arresting officer testified she and her husband were arguing and that both of them smelled of alcohol, in violation of the case plan to remain alcohol free.

Our review of this and other evidence shows there was clear and convincing evidence sufficient from which the juvenile court could conclude that reunification services should be discontinued, and the order of the court is accordingly affirmed. In the Interest of R. U., 239 Ga. App. at 574-575 (1).

Judgment affirmed.

Miller and Mikell, JJ, concur.

       The father consented to the recommendation to discontinue reunification and has not appealed the juvenile court’s order.

       Effective July 1, 2000, subsections (b) through (r) of OCGA § 15-11-41 were redesignated as subsections (a) through (q) of OCGA § 15-11-58. Ga. L. 2000, p. 20, § 1.

       The mother does not argue that this subsequent evidence should not be considered, and her attorney conceded at the second hearing that this evidence was relevant to the issue of nonreunification.


text:
    A00A1059.
    THE STATE v. REDD.
    (546 SE2d 68)
   Eldridge, Judge.

On December 17, 1999, we granted interlocutory review to the State, which appealed from the trial court’s denial of its motion to disqualify attorney Charles Reddick from the representation of criminal defendants — including appellee Mark Allen Redd — because Charles Reddick is a district attorney pro tempore.* The State claimed that the trial court’s order conflicted with OCGA §§ 15-18-10 (d) and 15-18-21 (a), as well as with ethical proscriptions against dual representation which result in a per se conflict of interest. Based on the State’s position, the trial court’s order would arguably have been void under the laws of this State because the court’s order permitted Redd to be represented in a criminal matter by an attorney disqualified per se from the private practice of criminal law.

Decided February 28, 2001.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Ellen S. Golden, Assistant District Attorneys, for appellant.

Charles R. Reddick, for appellee.

Kermit N. McManus, District Attorney, Kenneth B. Hodges III, District Attorney, J. David Miller, District Attorney, Keith C. Martin, Solicitor, Leslie C. Abernathy, Solicitor, Carmen Smith, Solicitor, Sheryl B. Jolly, Solicitor, Wensley Hobby, Solicitor, amici curiae.

We affirmed the trial court, and the State filed for certiorari on the merits. On January 5, „2001, the Supreme Court of Georgia granted certiorari and, on the same day, executed an order as follows: “Because the State is not authorized to appeal a trial court’s denial of a motion to disqualify an attorney under OCGA § 5-7-1, we remand the case to the Court of Appeals with direction to vacate its judgment and dismiss the appeal.” Accordingly, we vacate our opinion in State v. Redd, 243 Ga. App. 809 (534 SE2d 473) (2000), and dismiss the State’s appeal.

Opinion vacated and appeal dismissed.

Blackburn, C. J., and Barnes, J., concur.

        State v. Redd, 243 Ga. App. 809 (534 SE2d 473) (2000). Reddick was appointed by the Chief Judge of the Alapaha Judicial Circuit solely to investigate alleged wrongdoing on the part of the Alapaha District Attorney's Office.

       It is well established that an appellate court applies the law as it exists at the time its decision is rendered. Elmore v. State, 269 Ga. 528, 530 (4) (501 SE2d 215) (1998). At the time the Supreme Court rendered its above-referenced decision/order, OCGA § 5-7-1 had been amended to add a new subsection (a) (5) which in pertinent part says that the State has a right to appeal “[flrom an order, decision, or judgment of a court where the . . . order is otherwise void under the Constitution or laws of this state.” See Ga. L. 2000, p. 862, § 2. This amended statute conferring subject matter jurisdiction upon the appellate courts to entertain the State’s appeal of an allegedly void order is procedural and does not affect any substantive rights of any party, especially since “there is no federal or state constitutional right to bring an appeal. ‘Instead, the right of appeal depends upon statute.’ ” Fullwood v. Sivley, 271 Ga. 248, 250 (517 SE2d 511) (1999). Where a statute governs only the procedure of the courts, it is to be given retroactive effect absent an express contrary intention. Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988).


author: Phipps, Judge.

text:
    A00A2173.
    CRABBE v. THE STATE.
    (546 SE2d 65)
   Phipps, Judge.

Clayton Crabbe appeals the denial of his motion to withdraw his guilty plea. He claims that his counsel was ineffective for incorrectly advising him that he would be eligible for parole after serving ten years in prison and that he would not have accepted the negotiated plea if his counsel had correctly advised him that he would be required to serve his entire sentence of twenty years in prison on the charge of kidnapping.

There is no requirement that a defendant be advised of his eligibility or ineligibility for parole for his guilty plea to be valid. But where, as here, the defense strategy in plea negotiations is an attempt to ensure the defendant’s eligibility for parole, and the defendant’s attorney misinforms his client that he will be eligible for parole, the attorney renders ineffective assistance. We therefor^ reverse the denial of Crabbe’s motion to withdraw his guilty plea on the kidnapping charge.

Crabbe was indicted for numerous offenses, including kidnapping, and as a recidivist. His motion to sever certain counts was granted, and those charges ultimately were dismissed. A number of other charges not at issue here were disposed of by plea.

At Crabbe’s request, his attorney entered plea negotiations with the State prior to trial. A plea was negotiated and Crabbe pled guilty to kidnapping and other charges, and the State agreed to nolle prosequi the recidivist count. During the plea hearing, the judge did not explain to Crabbe that under OCGA § 17-10-6.1 he would be required to serve any sentence imposed on the kidnapping charge without the possibility of parole. The judge accepted the negotiated plea and sentenced Crabbe to serve 20 years on the kidnapping count, concurrent with the sentences on the other charges. He received no other sentence longer than 20 years.

After he was incarcerated, Crabbe became aware that he would not be eligible for parole after serving ten years and instructed his attorney to file a motion to withdraw his guilty plea. Crabbe’s counsel filed the motion, asserted a claim of ineffective assistance of counsel, and withdrew from the case.

At the hearing on the motion, Crabbe testified that his attorney had told him that they needed to eliminate the recidivist count so that he would be eligible for parole. Crabbe’s attorney told him that with the dismissal of that count, he would be eligible for parole after ten years. Crabbe testified that the only reason he entered the plea was because he was told that he would be eligible for parole after ten years.

Crabbe’s attorney testified that he never made any promises to Crabbe about how much of his sentence he would serve, but told him that the parole board would make that decision. He acknowledged that Crabbe was concerned about his ineligibility for parole if he were sentenced on the recidivist count. He also testified that he negotiated the dismissal of the recidivist count so that Crabbe would be eligible for parole. He testified that he did not recall whether he discussed with Crabbe the fact that he would have to serve 100 percent of any sentence imposed on the kidnapping charge.

The trial court found that Crabbe was not informed of the provisions of OCGA § 17-10-6.1, which would require him to serve 100 percent of any sentence imposed on the kidnapping charge and that he would not have pled guilty if he had known he would be required to serve the entire sentence without the possibility of parole. Nevertheless, relying on Williams v. Duffy, the trial court ruled that Crabbe’s counsel was not ineffective for failing to inform him about his parole eligibility or even for informing him inaccurately and denied Crabbe’s motion to withdraw his guilty plea.

The two-part test of Strickland v. Washington applies to challenges to guilty pleas based on ineffective assistance of counsel. To prevail, a defendant must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, in the absence of his attorney’s errors, he would not have pled guilty and would have insisted on going to trial.

In Williams, the Supreme Court of Georgia held that there is no constitutional requirement that a defendant be advised of his eligibility or ineligibility for parole for his guilty plea to be valid and that an attorney is not ineffective for failing to inform his client of parole ineligibility under OCGA § 17-10-6.1. The defendant in Williams alleged that his counsel failed to advise him that, pursuant to OCGA § 17-10-6.1 (a) (2) and (c) (3), he would be ineligible for parole if he pled guilty to armed robbery.

We find Williams distinguishable. Crabbe’s attorney did not merely fail to advise Crabbe of the consequences of pleading guilty to the kidnapping charge. Although he apparently did not intend to provide incorrect information to Crabbe, he nevertheless affirmatively misinformed Crabbe that with the dismissal of the recidivist count, he would be eligible for parole. Relying on this advice, Crabbe pled guilty thinking that after serving ten years he would be eligible for parole consideration. The defense strategy in negotiating the plea agreement was to ensure that Crabbe would be eligible for parole. Under these circumstances, an attorney rendering reasonably effective assistance would have informed Crabbe before he pled guilty that any sentence imposed on the kidnapping charge would have to be served in its entirety, without the possibility of parole. We find that Crabbe has satisfied the first prong of the Strickland v. Washington test.

Decided February 28, 2001.

Caleb B. Banks, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

With respect to the second prong, we accept the trial court’s undisputed conclusion that Crabbe would not have pled guilty to the kidnapping charge if he had known that he would be required to serve his entire sentence without the possibility of parole. We therefore find that Crabbe received ineffective assistance of counsel and that the trial court erred in denying his motion to withdraw his guilty plea on the kidnapping charge. Crabbe does not challenge his guilty plea to the remaining counts of the indictment, and our decision will not affect his convictions or sentences on those counts.

Judgment reversed.

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

       270 Ga. 580 (513 SE2d 212) (1999).

       466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

        Hill v. Lockhart, 474 U. S. 52, 57-59 (106 SC 366, 88 LE2d 203) (1985).

       Id.

       270 Ga. at 581-582.


author: Ellington, Judge.

text:
    A00A2193.
    WILLIAMS v. THE STATE.
    (546 SE2d 74)
   Ellington, Judge.

A Cobb County jury found Wallace James Williams guilty of aggravated assault with intent to rape, OCGA § 16-5-21 (a) (1), aggravated battery, OCGA § 16-5-24 (a), child molestation, OCGA § 16-6-4 (a), and cruelty to children, OCGA § 16-5-70 (b). Wallace appeals from the order denying his motion for new trial, challenging his aggravated battery conviction, the court’s admission of certain evidence, the jury charge, the court’s merging of offenses, and his trial counsel’s effectiveness. Because the evidence was insufficient to support Williams’ aggravated battery conviction, we must reverse that conviction.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Williams attacked 13-year-old C. T. when she was alone at her uncle’s house. Williams knocked at the door and asked to speak with C. T.’s uncle. When C. T. said her uncle was not home, Williams asked to use the telephone. Although C. T. did not know Williams, she let him into the house and handed him the telephone. Williams made two calls, then handed the phone back to C. T. He then asked C. T. if she was scared of him. C. T. asked Williams to leave; instead, he approached her, grabbed her arm, and touched her thigh. Williams chased C. T., grabbed her by the shoulders, and wrestled her into her uncle’s bedroom. Once there, Williams pushed C. T. to the floor and tried to pull her shorts down. C. T. testified that she thought Williams was also trying to remove his pants. Williams called C. T. a “whore,” yelled at her to shut up, felt C. T.’s legs and inner thigh, and stuck his fingers in C. T.’s mouth. When C. T. bit Williams, Williams retaliated by stepping on her face with his foot so hard that it left an imprint of his shoe’s tread on her skin. During this struggle, C. T. grabbed the phone and acted as if she were going to call the police. Williams fled.

C. T. locked herself in the house and waited for her uncle to come home. When the uncle returned, he called the police. When C. T. told the responding detective that her attacker was short, very dark-skinned, and “cock-eyed,” the uncle thought he knew who the man might be. Based on information from the uncle, the detective put together a photographic lineup, and C. T. selected Williams’ photo from it immediately. Later that evening, the detective arrested Williams at his home. Williams smelled of an alcoholic beverage and appeared intoxicated. The detective noted that Williams’ face and knees were scratched and that he looked like he had “been in a fight.” The tread on Williams’ tennis shoes was consistent with the marks on C. T.’s face. At trial, Williams admitted he drank a quart of beer that evening. He also admitted he struggled with C. T, but that it was in self-defense because C. T. had “lost all self-control” and attacked him.

C. T. testified that the bruises and scratches to her face healed completely within a month and left no scars. The photographs of C. T.’s face taken after the attack do not show any bleeding wounds or swelling. C. T. testified that after the attack, her face started “stinging real bad.” However, the evidence shows that C. T. did not require immediate medical attention. In fact, she did not go to the hospital until several hours after the attack. The State adduced no evidence showing that C. T. needed or received any diagnostic tests, like x-rays; medical treatment, like anti-inflammatory drugs, bandages, or ice packs; or minor surgery, like stitches.

1. Williams argues that the evidence adduced was insufficient to support his conviction for aggravated battery. We agree. The aggravated battery statute provides, in relevant part, that a “person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another by . . . seriously disfiguring his or her body or a member thereof.” (Emphasis supplied.) OCGA § 16-5-24 (a). “Black’s Law Dictionary defines disfigurement as that which impairs or injures the appearance of a person, and defines serious as grave, or great. Baker v. State, 246 Ga. 317, 318 (2) (271 SE2d 360) (1980).” (Punctuation omitted.) In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991). “To constitute the crime of aggravated battery, there is no requirement that, in addition to being ‘serious,’ the disfigurement of a victim be permanent.” Id.

This Court has never attempted to illustrate what is meant by the term “seriously” in the “seriously disfiguring” element of aggravated battery, and the trial court is not required to give a charge explaining that term. See, e.g., Perkins v. State, 269 Ga. 791, 796 (5) (505 SE2d 16) (1998); Levin v. State, 222 Ga. App. 123, 127-128 (7) (473 SE2d 582) (1996); Miller v. State, 155 Ga. App. 54, 55-56 (4) (270 SE2d 466) (1980). Because the circumstances of each aggravated battery vary, whether disfigurement is serious is best resolved by the factfinder on a case-by-case basis. Consequently, what constitutes serious disfigurement is almost always a question for the jury. Silvers v. State, 245 Ga. App. 486 (1) (538 SE2d 135) (2000). That does not mean, however, that no threshold exists for determining whether disfiguring injuries meet the requisite level of seriousness for an aggravated battery charge.

The legislature has created three distinct categories of battery: simple battery, OCGA § 16-5-23 (offensive touching or physical harm); battery, OCGA § 16-5-23.1 (substantial physical harm or visible bodily injury); and aggravated battery, OCGA § 16-5-24 (loss of body member or serious disfigurement). These statutes evidence a legislative intent to categorize the types of battery by the severity of the harm inflicted and to provide harsher penalties for batteries that result in more severe bodily harm. For example, a simple battery is generally punished as a misdemeanor. See OCGA § 16-5-23 (b). The greater offense of battery, however, may be punished as a felony under certain circumstances and a prison sentence of up to five years imposed. OCGA § 16-5-23.1 (e), (f) (2), (i), (k). Aggravated battery, the most grave of the battery offenses, carries a maximum 20-year penalty. OCGA § 16-5-24 (b).

Pursuant to OCGA § 16-5-23.1, a person commits a battery when he “intentionally causes substantial physical harm or visible bodily harm to another.” Thus, this intermediate battery offense requires something more than simple battery’s offensive touching or physical harm. The injury must be manifest, that is, “capable of being perceived by a person other than the victim.” OCGA § 16-5-23.1 (b). “[Vlisible bodily harm,” in fact, is defined to include, “but is not limited to, substantially blackened eyes, substantially swollen lips or other facial or body parts, or substantial bruises to body parts.” OCGA § 16-5-23.1 (b). It logically follows then that, although “seriOusly disfiguring” is not defined in OCGA § 16-5-24, it must require an injury more severe than the visible wounds used to illustrate the “visible bodily harm” required to support a battery conviction.

In every aggravated battery based upon a serious disfigurement, including those in which the disfigurement was temporary, the injury inflicted was more than a superficial wound, that is, a scrape, bruise, discoloration, or swelling. See, e.g., Baker v. State, 246 Ga. at 318 (2) (broken nose, deep lacerations requiring stitches, extensive bruising); Penland v. State, 229 Ga. 256, 257 (1) (190 SE2d 900) (1972) (massive bruising, cuts, and swelling resulting from head trauma that left the victim incoherent); Ganas v. State, 245 Ga. App. 645-646 (1) (a) (537 SE2d 758) (2000) (a broken and distended finger); Silvers v. State, 245 Ga. App. at 486 (1) (shattered nasal and sinus bones); Ramsey v. State, 233 Ga. App. 810-811 (1) (505 SE2d 779) (1998) (lacerations to face, ear, and neck requiring stitches); Deal v. State, 233 Ga. App. 79, 84 (15) (503 SE2d 288) (1998) (multiple, severe blows to the head requiring hospitalization); McClain v. State, 232 Ga. App. 282, 283 (1) (502 SE2d 266) (1998) (gasoline burns resulting in scarring); Miller v. State, 155 Ga. App. at 56-57 (4) (scarring from multiple gunshot wounds). We have found no case upholding an aggravated battery based upon injuries like those C. T. suffered. In fact, C. T.’s injuries are comparable to those found sufficient to support a conviction for battery. See Hussey v. State, 206 Ga. App. 122, 123 (2) (424 SE2d 374) (1992) (bruising caused by forceful prodding with foot); Danzis v. State, 198 Ga. App. 136, 137-138 (400 SE2d 671) (1990) (red scuff marks that turned into substantial bruising). The evidence in this case is sufficient to support a finding that C. T. suffered visible bodily harm and, as a consequence of that, her appearance was temporarily impaired by scratches and bruises. However, the evidence adduced is insufficient to support a finding that the disfigurement was serious. Because the State adduced no evidence from which the jury could infer that C. T.’s injuries were more significant, grave, or severe than the superficial, visible wounds that would typically support a battery conviction under OCGA § 16-5-23.1, the State has failed to carry its burden of proving the “seriously disfiguring” element of the offense of aggravated battery. Consequently, the evidence, when viewed in the light most favorable to the verdict, is insufficient to authorize a rational trier of fact to conclude beyond a reasonable doubt that Williams was guilty of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We must, therefore, reverse Williams’ conviction for aggravated battery.

2. Williams claims the trial court erred in admitting C. T.’s statement that she believed Williams was trying to have sex with her because it went to an ultimate issue in the case. Williams, however, did not object to C. T.’s testimony on this basis. “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it.” (Citations and punctuation omitted.) Arnold v. State, 236 Ga. App. 380, 383 (3) (511 SE2d 219) (1999).

3. Williams contends the court should have granted his motion for a mistrial because the State adduced testimony commenting on Williams’ right to remain silent. We have reviewed the complained-of testimony and find that the State’s questions focused on Williams’ conduct immediately after what he claimed was an assault against him and did not inquire into his post-arrest silence. For example, because Williams testified on direct examination that C. T. attacked him, the State asked Williams on cross-examination why he did not report C. T.’s hysterical behavior and violent attack against him to anybody, including C. T.’s uncle or the police. Williams was not being impeached with his silence in the face of an accusation or with a tacit admission, but with his failure to immediately report what he claims was a crime against him. See Miller v. State, 228 Ga. App. 754, 755 (2) (492 SE2d 734) (1997). We find no error.

4. Williams contends the court erred in failing to charge the jury on battery and simple battery as lesser included offenses of the crimes of aggravated assault with intent to rape and child molestation. The court did, however, charge on battery and simple battery as lesser included offenses of aggravated battery and cruelty to children.

In Edwards v. State, 264 Ga. 131 (442 SE2d 444) (1994), the Supreme Court held that

The complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citation and emphasis omitted.) Id. at 133. Here, Williams’ defense was self-defense. The State’s evidence established the elements of aggravated assault with intent to rape. Contrary to Williams’ argument, the evidence showed either the commission of the completed offenses of aggravated assault with intent to rape and child molestation as charged or the commission of no offense. Consequently, there was no error in the court’s failure to charge the lesser offenses. See Huckeba v. State, 217 Ga. App. 472, 475-476 (3) (458 SE2d 131) (1995) (aggravated assault with intent to rape); Ney v. State, 227 Ga. App. 496, 503 (4) (g) (489 SE2d 509) (1997) (child molestation).

5. The trial court charged the jury that Williams had no duty to retreat before being justified in using force to defend himself. Williams contends the charge was an incorrect statement of the law. Williams, however, requested the charge as drafted. That request precludes a finding of error now because “on appeal, one cannot complain of a judgment, order, ruling, or charge that his own procedure or conduct aided in causing.” (Citations and punctuation omitted.) Billingsley v. State, 220 Ga. App. 69, 70 (2) (467 SE2d 377) (1996).

6. Williams argues that all the offenses for which he was convicted should have merged. Because the trial court merged the aggravated assault with intent to rape and the child molestation convictions, and because we reversed Williams’ aggravated battery conviction in Division 1, the only merger issue before us is whether the cruelty to children conviction merges into either of the remaining convictions.

Our review of the indictment reveals that different facts were alleged to support the child molestation, aggravated assault, and cruelty to children charges. Further, there was evidence from which the jury could have found that Williams committed the offenses based upon the facts alleged. Specifically, the cruelty to children charge alleged that Williams maliciously caused C. T. cruel and excessive mental pain by “biting her face and stomping on her face with his foot” — an act not alleged in either the child molestation or assault with intent to rape charges. Although the various acts alleged were committed in close temporal proximity, the offenses were committed sequentially. Specifically, after Williams lay on top of C. T. and felt her thigh (the acts supporting the child molestation charge), he then bit her and stomped on* her face with his shoe. Thus, the offense constituting cruelty to children was based upon and committed in a way different from the remaining offenses and was not satisfied by the introduction of the same evidence. Therefore, there was no merger, and we do not find that the trial court erred in entering a separate conviction on cruelty to children. See Walker v. State, 214 Ga. App. 777, 780 (6) (449 SE2d 322) (1994). Because the trial court merged this conviction into the aggravated battery conviction and imposed sentence for that greater, but now reversed, offense, we must remand to the trial court for sentencing on the cruelty to children conviction.

7. Williams contends he is entitled to a new trial because his trial counsel was ineffective. Williams complains that his trial counsel’s performance was deficient because he failed to call a defense witness, do DNA blood testing on Williams’ tennis shoes, and to introduce C. T.’s medical records into evidence.

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). The first prong of this test cannot be met unless a defendant overcomes the “strong presumption” that his counsel’s performance fell within the “wide range of reasonable professional conduct” and his counsel’s decisions were “made in the exercise of reasonable professional judgment.” Id. The inquiry focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial. Id. Thus, the courts will not second-guess counsel’s decisions concerning matters of trial strategy and tactics. See Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530) (1995). With regard to the second prong, Williams had to show that the alleged deficient performance actually prejudiced his case, that is, that there was a reasonable probability the jury would have reached a different verdict absent the error of counsel. See Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554) (1992).

(a) The transcript of the motion for new trial hearing reveals that Williams’ attorney made a tactical decision not to call defense witness Charles Zellars. Williams argues that Zellars would have testified that his knees were scratched and bruised in an incident that occurred a few nights before the events involving C. T. Williams’ attorney testified that he determined Zellars’ testimony was more damaging than helpful in that it would have made Williams out to be a complete drunkard and, consequently, unbelievable. Further, the attorney wanted to preserve his right to open and close final argument. “The decisions on which witnesses to call . . . and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.” (Citations and punctuation omitted.) Austin v. Carter, 248 Ga. 775, 779 (2) (c) (285 SE2d 542) (1982). “Whether an attorney’s trial tactics are reasonable ‘is a question of law,’ not fact.” (Citation omitted.) Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). Because opening and closing argument is a valuable right, the trial court was authorized to conclude that the preservation of that tactical advantage was a reasonable strategy for Williams’ defense attorney to pursue. See generally Givens v. State, 264 Ga. 522, 523 (1) (448 SE2d 687) (1994) (recognizing that the right to open and close is important and that erroneous denial of that right gives rise to presumption of harm). We find that trial counsel’s tactical decision was not deficient performance.

(b) Williams complains that his attorney should have done DNA testing on Williams’ tennis shoes to show that any blood on them was his and not C. T.’s. Williams’ attorney testified that he saw little value in such a test when Williams admitted, as part of his defense of self-defense, that he “pried” C. T. off of him by putting his shoe to her face. Because Williams has failed to show that any deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency, we find no error. See, e.g., Milner v. State, 271 Ga. 578, 579 (2), (3) (522 SE2d 654) (1999).

Decided February 28, 2001.

Derek H. Jones, for appellant.

Patrick H. Head, District Attorney, Eleanor A. Kornahrens, Maria B. Golick, Bruce D. Hornbuckle, Assistant District Attorneys, for appellee.

(c) Finally, Williams argues that his attorney should have introduced C. T.’s medical records into evidence to show that she was not seriously injured. Because the photographic evidence and the testimony from C. T. and other State’s witnesses amply revealed the limited extent of C. T.’s injuries, the medical records would have been redundant. For the reasons stated in Division 7 (b), we find no error.

Judgment affirmed in part, reversed in part, and remanded in part for resentencing.

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


text:
    A00A2383.
    BLANSIT v. THE STATE.
    (546 SE2d 81)
   Phipps, Judge.

Donnie Blansit was convicted of child molestation, aggravated sodomy, aggravated child molestation, enticing a child for indecent purposes, and two counts of sexual exploitation of a child. He appeals his conviction for aggravated sodomy, contending that the evidence was insufficient to establish the essential element of force. We disagree and affirm.

Viewing the evidence in the light most favorable to the verdict, we find that the following occurred. Blansit was once married to A. M.’s sister and had two children who were close in age to A. M. Between May 1 and July 3, 1997, when A. M. was 12 years old, Blansit frequently picked up A. M. at her mother’s home and took her to his home for the ostensible purpose of allowing the children to visit. On many of these visits, A. M. stayed overnight in Blansit’s home. From the first night A. M. stayed there, Blansit established a pattern of bringing A. M. into his bedroom late at night and engaging in sexual acts with her. Blansit had sexual intercourse with A. M. six or seven times and had oral sex with her twice. He also took numerous pornographic photographs of A. M., some of which depicted sexual acts between him and her.

“A person commits the offense of aggravated sodomy when he or she commits sodomy with force and against the will of the other person.” “The term force . . . means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.” Only a minimal amount of evidence is necessary to prove force against a child. Proof of force may be direct or circumstantial.

This court does not weigh the evidence, determine witness credibility, or attempt to resolve conflicts in the evidence. We merely determine whether there is any competent evidence from which a rational trier of fact could find each element of the offense beyond a reasonable doubt.

At trial, A. M. described her sexual encounters with Blansit as rape. She had similarly described them to her psychologist before trial. The psychologist testified that she had asked A. M. what rape is and that A. M. responded, “[it] is when a guy wants you to have sex with him and you say no and he make you anyway.”

A. M. testified that Blansit was like a father to her because she had never known her own father. She told her psychologist that the first time Blansit asked her to have sex with him, she said, “No.” Nevertheless, he began to touch her breasts and her genital area. She told him to stop, but he continued. Then he began taking off her shirt and told her to unzip her pants. She did so because she was scared.

A. M. testified that she felt she would be in trouble with him if she did not do what he wanted. With each encounter, she asked Blansit to stop, but he never did.

She testified that Blansit threatened that if she ever told anyone, he would come after her and kill her. On one occasion, she testified, Blansit took a knife from under his pillow and rubbed it on her breasts and across her stomach. At trial, A. M. identified the knife, which the police had found under a pillow on Blansit’s bed.

Finally, A. M.’s psychologist testified that A. M. said Blansit “made [her] put [his penis] in [her] mouth.”

Blansit argues that there is no evidence that the threats he allegedly made induced A. M. to participate in sodomy with him. The record does not establish whether the threats of violence or intimidation with the knife occurred before the acts of sodomy.

Decided February 28, 2001.

James I. Collins, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

However, the record contains substantial evidence that A. M. allowed Blansit to perpetrate sodomy upon her because she was afraid to resist him. And “Mack of resistance, induced by fear, is force.” While we do ndt know the timing of the acts of sodomy within the continuum of abuse, the record shows that they occurred in Blansit’s bedroom, behind locked doors, after A. M. had been isolated from her peers, after Blansit had already begun a pattern of sexually abusing her, and after he had demonstrated that he would not comply with her requests to stop. From these circumstances, we find sufficient evidence of force to support Blansit’s conviction.

Judgment affirmed.

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

       See Bright v. State, 244 Ga. App. 23, 24 (1) (535 SE2d 14) (2000).

       OCGA § 16-6-2 (a).

       (Citation and punctuation omitted.) Brewer v. State, 271 Ga. 605, 607 (523 SE2d 18) (1999).

         Patterson v. State, 242 Ga. App. 885 (531 SE2d 759) (2000).

        Gibbins v. State, 229 Ga. App. 896, 898 (1) (495 SE2d 46) (1997).

        Yarbrough v. State, 241 Ga. App. 777, 781 (4) (527 SE2d 628) (2000).

        Carnell v. State, 246 Ga. App. 542, 543 (1) (541 SE2d 118) (2000).

       (Citations and punctuation omitted.) Gibbins, supra, 229 Ga. App. at 898 (1).

       See id. at 897-898; Raines v. State, 191 Ga. App. 743-744 (1) (382 SE2d 738) (1989); Drake v. State, 239 Ga. 232, 235-236 (2) (236 SE2d 748) (1977).


author: Smith, Presiding Judge.

text:
    A00A2471.
    AJAYI v. WILLIAMS.
    (546 SE2d 537)
   Smith, Presiding Judge.

This appeal involves the application of OCGA § 9-3-97.1, which provides for tolling the statute of limitation if medical records properly sought in preparation for a possible medical malpractice action are not furnished in a timely manner. Dr. Rex O. Ajayi appeals from the trial court’s order tolling the statute of limitation under OCGA § 9-3-97.1, thereby enlarging the time period for Herman Williams to bring a malpractice action against him. In his sole enumeration of error, Ajayi contends the trial court erred both in finding that Williams strictly complied with the statutory requirements and in tolling the statute beyond the date on which Ajayi alleges he informed Williams that he had provided all medical records in his possession. We conclude that the trial court correctly ordered the statute tolled, because Williams had met all requirements of the statute and Ajayi had not furnished the copies or an appropriate letter of response prior to the petition being filed. We also find, however, that Ajayi eventually complied with OCGA § 9-3-97.1 and the trial court therefore erred in finding that Ajayi had not yet complied with the statute at the time of its order. We therefore reverse that portion of the trial court’s order extending the tolling of the statute for an indefinite period until such time in the future that Ajayi complies. Instead, we conclude that the statute should be tolled for 155 days, the period during which Ajayi failed to comply with the statute.

OCGA § 9-3-97.1 provides for tolling the limitation period for bringing an action for medical malpractice when five factors are present: (1) An injured person or his or her attorney makes a request to a health care provider by certified or registered mail or, in the language of the statute, “statutory overnight delivery,” return receipt requested, for medical records in the provider’s custody or control to which the injured person is legally entitled that relate to the injured person’s treatment; (2) a properly executed document authorizing the release of the requested information is enclosed; (3) the request expressly states that the records should be mailed to the injured person or his or her attorney by certified or registered mail or statutory overnight delivery, return receipt requested, and that the records are needed for possible use in a medical malpractice action; (4) all fees charged by the provider for compiling, copying, and mailing the records are paid promptly; and (5) either the records or a letter stating that the provider does not have the requested medical records in his or her custody or control has not been received within 21 days of the date of receipt of the request.

The record shows that on September 24, 1999, Williams’s counsel sent such a request to Ajayi. The request stated that counsel had been retained to prosecute a potential malpractice action and requested that “certified copies of all medical records, to include but not limited to videos and x-rays, in your possession, custody or control” be sent by certified mail to the attorney’s office. The letter stated that a check for $50 was enclosed to cover costs and referenced both Williams and the dates of service of “3-17-98 (and any other visits thereafter).” The request was sent certified mail, return receipt requested, and a medical release form was enclosed. The record shows that Ajayi received the letter on September 27, 1999.

On January 17, 2000, another certified letter was mailed to Ajayi by Williams’s attorney. This letter indicates that records requested in September had not yet been received and that “further action” would be taken if they were not received within “six (6) working days.”

On March 16, 2000, one day before the limitation period was to expire in Williams’s potential malpractice action against Ajayi, Williams filed this petition to compel production of the records. In the petition, Williams alleged that Ajayi had deposited the $50 check but had not furnished the requested records. Williams prayed, among other things, that the statute of limitation be tolled and that Ajayi be ordered to furnish the applicable records.

In response, Ajayi sought dismissal of the petition on the ground that Williams had not complied with the requirements of OCGA § 31-33-2 or § 9-3-97.1. While maintaining that Williams had not complied with the applicable statutes, Ajayi also claimed that after he received the January letter he “provided a complete copy of his records pertaining to petitioner to petitioner’s attorney” and had not omitted anything. He admitted that he saw Williams on March 17, 1998, but asserted that his office “generated no record relating to that visit other than those entries which have already been voluntarily provided” to Williams’s attorney, which consisted of billing records only.

By way of explanation, Ajayi stated that his office employed computer software designed to produce notes automatically for certain procedures, which notes were then pasted into the patient’s chart, making notes handwritten or dictated by the doctor unnecessary. The procedure performed on Williams on March 17,1998, apparently was one covered by this software. Ajayi claimed his office staff recollected that this software had malfunctioned at one time, that the March 17, 1998 visit by Williams “apparently occurred within that time period,” and that “there is no separate note other than the billing entry for that date.” Ajayi also noted that the hospital record indicates the procedure performed on March 17, 1998, and that the hospital record and all subsequent office records were provided to Williams’s attorney “Well before the filing of this petition.”

On May 23, 2000, over two months after the limitation period otherwise would have expired the trial court, after hearing argument, entered an order tolling the statute of limitation for the indefinite period “from October 19, 1999 until delivery by” Ajayi of a letter of response stating he does not have custody or control of the March 17, 1998 record. The trial court found that after receiving the January 17, 2000 letter, Ajayi furnished to Williams all medical records covering visits after March 17, 1998, but “no record for the date of service, March 17, 1998 [,] was provided nor was a letter of response provided stating that Dr. Ajayi does not have custody or control of the medical record for the date of March 17, 1998.”

1. The trial court correctly noted that OCGA § 9-3-97.1 provides that its terms must be strictly complied with and strictly construed. OCGA § 9-3-97.1 (d). Ajayi contends that Williams is not entitled to relief because he did not comply with the requirements set forth in OCGA § 9-3-97.1.

(a) Ajayi appears to argue that Williams’s request failed to comply with the statute because the language of the request under the heading referencing the date of service (“all medical records, to include but not limited to videos and x-rays, in your possession, custody or control”) did not exactly correspond to the language identifying the records in the authorization to release records (“any and all medical, professional opinion and reports, data and information relating to an injury received by the undersigned on the 17th day of March, 1998”). But the statute does not prescribe exact language for identifying the records sought, and using slightly different language in the request and the authorization to release records did not change the request itself. It is still clear which records were sought.

(b) Ajayi also points out that the statute requires the request for medical records to state expressly that the records should be mailed by certified or registered mail or statutory overnight delivery, “return receipt requested.” Because Williams’s requests did not include the phrase “return receipt requested,” Ajayi argues that Williams’s requests were invalid. We find this argument unpersuasive.

It is true that whenever strict adherence with a statute’s terms is required, substantial compliance generally has been deemed insufficient by this court. See, e.g., U S. Filter Distrib. Group v. Barnett, 241 Ga. App. 759 (526 SE2d 912), aff’d, 273 Ga. 254 (538 SE2d 739) (2000) (time limitation in materialman’s lien); Swanigan v. Leroux, 240 Ga. App. 550-551 (1) (524 SE2d 244) (1999) (service under nonresident motorist act); Kim v. Dept. of Transp., 235 Ga. App. 480, 481-482 (2) (510 SE2d 50) (1998) (ante litem notice under tort claims act).

But this court has made exceptions to the general rule. See, e.g., Ga. Ports Auth. v. Harris, 243 Ga. App. 508 (533 SE2d 404) (2000). In Harris, the claimant was required to give ante litem notice under the Georgia Tort Claims Act, which provides that the notice must be sent certified mail. The notice was sent by Federal Express, but receipt was admitted by the addressee agency. This court rejected the agency’s contention that the suit should have been dismissed because the plaintiff failed to comply with the statute requiring mailing by certified mail, return receipt requested. We held that the requirement of return receipt

can only have been intended to protect potential claimants, by providing proof of delivery of the required notice, and to simplify the trial court’s determination of whether the claimant had complied with OCGA § 50-21-26 (a) (2). In a case such as this, where actual receipt of the notice is admitted . . . , the doctrine of strict compliance does not require us to use the receipt provision to harm the very party it was designed to benefit, namely, one with a tort claim against the state.

Id. at 512 (1) (b).

In this case, a careful examination of the statutory language leads us to conclude that the requirement that the request expressly state the records must be sent “return receipt requested” must be for the protection of the patient making the request, to ensure receipt of the records. While a requirement that the records be sent certified mail, return receipt fequested, would also protect the provider, ensuring proof that the records were sent and received, the same is not true of a requirement that the request state this requirement. Moreover, the purpose of the entire statute is the protection of the recipients of health care who seek their medical records, not the protection of the providers. Here, as in Harris, it is undisputed that the March 17, 1998 record was never sent and therefore never received. Application of the strict construction doctrine would reward the provider for subverting the purpose of the statute, which is to facilitate the timely provision of documentation to persons who suspect they may have been injured by the provider. Therefore, as in Harris, supra, we decline to use the doctrine of strict compliance “to harm the very party it was designed to benefit.” Id.

(c) Ajayi maintains that Williams failed to comply with the statute because he requested “certified copies” of the records and this requirement is not included in the statute. We agree with the trial court that because compliance with this request is not mandated by the statute, it is merely an additional request, with whose terms the doctor was not required to comply. But nothing in the statute prohibits such a request, and Williams’s request cannot be deemed noncom-pliant simply because it included a request not mandated by the statute.

The trial court correctly ruled that Williams’s request complied with OCGA § 9-3-97.1.

(d) Ajayi asserts that tolling the statute should be barred by the doctrine of laches. “A court of equity may bar a complaint based on laches when the lapse of time and the claimant’s neglect in asserting rights result[ ] in prejudice to the adverse party.” Hall v. Trubey, 269 Ga. 197, 199 (1) (498 SE2d 258) (1998).

Laches is peculiarly a factual defense, the resolution of which will rest in the sound discretion of the trial judge, sitting as a chancellor in equity, and without the intervention of a jury. In determining the viability of a laches defense, the trial court should consider the length of the delay, the sufficiency of the excuse, the loss of evidence on disputed matters, the opportunity for the claimant to have acted sooner, and whether the plaintiff or defendant possessed the property during the delay. The defendant must show prejudice from the delay.

(Citations and punctuation omitted.) McGhee v. Johnson, 268 Ga. 731, 732 (492 SE2d 893) (1997), overruled in part on other grounds, Redfearn v. Huntcliff Homes Assn., 271 Ga. 745, 749, n. 20 (524 SE2d 464) (1999).

Applying these factors, given the lack of prejudice to Ajayi, as well as the short delay and the fact that no evidence was lost, we conclude that the trial court did not abuse its discretion in finding that Williams was not guilty of laches.

2. We must disagree with the trial court’s finding that as of the date of its order, May 23, 2000, Ajayi had not yet delivered a letter of response to Williams stating that he did not have custody or control of the record for the date of March 17,1998. The record includes a letter from Ajayi’s attorney to Williams’s attorney, dated March 22, 2000, enclosing Ajayi’s response to the petition. The response recites that Ajayi gave Williams “a complete copy of his records pertaining to petitioner” and denied “omitting any matter from the records sent to petitioner’s attorney, specifically including any record relating to a March 17, 1998 visit.” The response further states that Ajayi’s “office generated no record relating to that visit other than those entries which have already been voluntarily provided to petitioner’s attorney,” that Ajayi had provided Williams with “a complete and current copy of his office records prior to the filing of this petition,” and that Williams’s attorney was “in possession of all records involving petitioner’s March 17, 1998 visit to respondent and has been prior to the filing of his petition.” In addition, Ajayi provided an explanation for the absence of notes of this visit from his office records, and although they were not part of his office’s records, he enclosed copies of the hospital records covering the day of the procedure and subsequent days. The statute requires no particular wording in a letter of response. We find that in combination, Ajayi’s response, his letter, and the hospital records clearly satisfy the statute’s requirement for a “letter of response stating that the provider does not have custody or control of the medical records.”

Decided February 28, 2001.

Watson, Spence, Lowe & Chambless, Dawn G. Benson, Charles K. Wainright II, for appellant.

Brimberry, Kaplan & Brimberry, Jerry W. Brimberry, Jr., for appellee.

Because the response required by statute was provided on March 22, 2000, we reverse that portion of the trial court’s order tolling the statute of limitation “until delivery by respondent” of the required letter. Instead, we hold that the statute of limitation was tolled only between the dates of October 19, 1999, and March 22, 2000. The period of time during which Williams may file a malpractice action is thereby extended by 155 days, giving him 156 days to file such an action once the statute of limitation again begins to run.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur. Phipps and Mikell, JJ, disqualified.

       The record does not show that a medical malpractice action has been filed as yet. The trial court’s'ruling was made on a petition filed under OCGA § 9-3-97.1 to compel the supplying of medical records.

       We note that OCGA § 31-33-2 requires only that a patient make a “written request.”

       Ga. L. 1989, p. 419, provides that the statute’s purpose, as amended, is to toll the period of limitation for filing medical malpractice actions when “the injured person is delayed in obtaining medical information from a health care provider.”

       Although laches is an equitable doctrine, “many of the substantive principles of equity — including (but not limited to) undue influences, mistake, unjust enrichment, fraud, and equitable defenses that include estoppel and laches — have worked themselves into the law to the extent that there is nothing particularly ‘equitable’ about them.” (Punctuation and footnote omitted.) Redfearn v. Huntcliff Homes Assn., 271 Ga. 745, 749 (4) (524 SE2d 464) (1999).

       Of course, in a civil case the limitation period is also tolled during the pendency of this appeal. Hardin Constr. Group v. Fuller Enterprises, 233 Ga. App. 717, 720 (1) (505 SE2d 755) (1998) (physical precedent only); Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 173 (1) (262 SE2d 481) (1979).


text:
    A01A0288.
    AGGARWAL v. THE STATE.
    (545 SE2d 924)
   Eldridge, Judge.

Following a bench trial in Gwinnett County State Court, Rahul Aggarwal was found guilty of violating OCGA § 40-6-391 (k) (1), which provides that a “person under the age of 21 shall not drive or be in actual physical control of any moving vehicle while the person’s [blood] alcohol concentration [(“BAC”)] is 0.02 grams or more.” Aggarwal appeals from this conviction, claiming the trial court erred in denying his motion to suppress the results of his breath test because the implied consent notice he was given at arrest misled him as to the purpose of such test. Upon review, we affirm.

In pertinent part, the implied consent notice given to Aggarwal reads as follows:

Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. ... If you submit to testing and the results indicate an alcohol concentration of 0.02 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended and, if you are convicted of having such an alcohol concentration, will be revoked.

OCGA § 40-5-67.1 (b) (1).

Relying on the Supreme Court of Georgia’s decision in Kevinezz v. State, 265 Ga. 78 (454 SE2d 441) (1995), Aggarwal contends that he consented to the test only for the purpose of determining whether or not he was “under the influence” of alcohol, which phrase is “universally recognized and understood” to mean whether he was “less safe to drive.” Id. at 81 (2) (b). Therefore, Aggarwal contends, he was not put on notice that the breath test would be for the purpose of a per se 0.02 BAG prosecution, and the State’s use of the test results for such prosecution exceeded the scope of Aggarwal’s consent.

We find such argument unpersuasive. Aggarwal’s reliance on Kevinezz v. State, supra, is misplaced. Kevinezz involved the elements of an indicted DUI offense and the State’s burden of proof with regard thereto. The issue entailed a variance between what was proved and what was alleged in the indictment. Kevinezz in no way addressed the substance of our statutory implied consent notice.

As to such notice, we have recognized that OCGA § 40-5-67.1 should be read in pari materia with OCGA § 40-5-55. Radcliffe v. State, 234 Ga. App. 576, 577-578 (507 SE2d 759) (1998). In that regard,

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent ... to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drugs.

(Emphasis supplied.) OCGA § 40-5-55 (a).

Decided February 28, 2001

Head, Webb & Willis, Gregory A. Willis, for appellant.

Gerald N. Blaney, Jr., Solicitor, Gary S. Vey, Staci B. Melton, Assistant Solicitors, for appellee.

So, consent to testing for the purpose of determining whether one is driving “under the influence” per the implied consent notice does not limit the State to prosecution solely under the “less safe driver” provisions of our DUI laws, but includes prosecution for the presence of alcohol under the per se BAC provisions as well. For those over 21, our legislature has determined that a 0.10 BAC is a per se violation, and the “over 21” implied consent notice specifically informs a driver that a 0.10 BAC will result in a violation. OCGA §§ 40-6-391 (a) (5); 40-5-67.1 (b) (2). Because of special concerns involving young drivers who illegally consume alcoholic beverages, our legislature has determined that a 0.02 BAC is a per se violation, and the “under 21” implied consent notice specifically informs a driver that a 0.02 BAC will result in a violation. OCGA §§ 40-6-391 (k) (1); 40-5-67.1 (b) (1). In both instances, the presence of the prohibited BAC renders the driver “under the influence” of alcohol for purposes of the implied consent notice.

In this instance, the “under 21” implied consent notice given to Aggarwal informed him that the purpose of the breath test was to determine whether he was driving “under the influence” of alcohol and that a 0.02 BAC would result in such violation. Accordingly, we do not find the implied consent notice misled Aggarwal as to the purpose of the breath test, and the trial court did not err in denying his motion to suppress it.

Judgment affirmed.

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

       “The Court stated that ‘the defendant has the right to rely on the specific manner of committing the crime that is alleged in the indictment.’ ” Thompson v. State, 243 Ga. App. 878, 879-880 (1) (534 SE2d 151) (2000).


author: Barnes, Judge.

text:
    A01A0295.
    In the Interest of J. R., a child.
    (546 SE2d 67)
   Barnes, Judge.

J. R., a fifteen-year-old minor, appeals from his adjudication of delinquency for molesting a ten-year-old girl in violation of OCGA § 16-6-4, contending insufficient evidence supports his adjudication of delinquency and that the trial court erred by failing to consider evidence submitted in his defense. For reasons that follow, we affirm.

1.
In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile! ] committed the acts charged. [Cits.]

Decided February 28, 2001.

Carlton K. Nelson III, for appellant.

Ralph M. Walke, District Attorney, Judson Green IV, Assistant District Attorney, for appellee.

In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in this light, the record shows that J. R. fondled a ten-year-old girl who was spending the night with his sister. The victim testified that she awoke to find J. R. “feeling all over me.” He touched her breast underneath her shirt and touched her “privates” on the outside of her pants. Three other witnesses testified that the victim told them a similar account a few days later.

We find this evidence sufficient to support J. R.’s delinquency adjudication under the standard set forth in Jackson v. Virginia, supra.

2. In his remaining enumeration of error, J. R. contends the trial court erred because it allegedly struck a defense witness’s testimony that the victim was an untruthful child. We find no merit in this contention because the record shows only that the trial court, appropriately, refused to consider a specific instance of the victim’s misconduct. See OCGA § 24-9-84.

Judgment affirmed.

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


text:
    A01A0617.
    HOLT v. THE STATE.
    (546 SE2d 83)
   Eldridge, Judge.

A DeKalb County Superior Court jury convicted Samuel Holt of robbery, aggravated assault, fleeing or attempting to elude a police officer, and obstruction of an officer. Defendant’s convictions arose out of circumstances in which a security guard discovered him at a warehouse belonging to the Atlanta Board of Education. The record reveals that the defendant, accompanied by the co-defendant, a young woman, drove his Plymouth to the warehouse. After exiting the vehicle, the defendant told the co-defendant to take the car to his mother’s nearby home and wait for him. The defendant shot the security guard on being discovered as the defendant emerged from the warehouse, wounding him in the chest and taking his Chrysler New Yorker, service revolver, barber clippers, and gold bridge. Twenty minutes later, the defendant appeared at his mother’s residence in the New Yorker and instructed the co-defendant to follow him. Defendant subsequently abandoned the New Yorker for the Plymouth, and he and the co-defendant were arrested after a high speed police chase which followed shortly thereafter.

On appeal, the defendant contends that the trial court erred in denying his motions for mistrial grounded upon claims that his character was improperly placed in issue since: (1) the trial court instructed the jury venire he was charged with possession of a firearm by a convicted felon, among other things, having earlier been convicted of armed robbery; (2) after pleading guilty, the co-defendant testified as a State’s witness that “[the defendant] tote[d] a gun, a .38”; and (3) the State’s attorney’s cross-examination forced him to testify that he had once been in a chain gang. Finding the defendant’s claims of error without merit, we affirm. Held:

1. The question of whether the trial court abused its discretion in denying defendant’s motion for mistrial grounded on the claim that the court erred in informing the prospective jurors of the felony underlying the possession charge was waived.

The record shows that the trial court read the complained-of possession charge without objection after a bench conference in charging the jury venire before voir dire and jury selection. Trial counsel moved for mistrial the following day as the trial resumed, belatedly requesting that the possession charge be bifurcated under Head v. State, 253 Ga. 429 (322 SE2d 228) (1984), or that a limiting instruction complying with Head be given. The trial court tailored such an instruction and gave it as a part of its preliminary instruction to the jury, although the State’s attorney agreed to a bifurcation of the trial. Trial counsel offered no objection to the instruction as given and did not renew his motion for mistrial.

Failure to object contemporaneously, as here, results in waiver of an objection to the admission of the defendant’s prior convictions. Spencer v. State, 260 Ga. 640, 646 (9) (398 SE2d 179) (1990); see also Thaxton v. State, 260 Ga. 141, 143 (5)(390 SE2d 841) (1990); Peoples v. State, 184 Ga. App. 439, 440 (2) (361 SE2d 848) (1987). Waiver also results for the further reason that trial counsel failed to renew his motion for mistrial after the trial court gave the curative instruction he requested. Woodham v. State, 263 Ga. 580, 582 (3) (439 SE2d 471) (1993) ; McBride v. State, 213 Ga. App. 857, 858 (3) (b) (446 SE2d 193) (1994) . Even in the absence of waiver, a trial court does not abuse its discretion in granting requested relief. See Staples v. State, 209 Ga. App. 802, 804 (4) (434 SE2d 757) (1993). Moreover, induced error does not furnish a basis for appeal. Mercier v. State, 203 Ga. App. 494, 495 (3) (417 SE2d 430) (1992). Under the circumstances of this case, defendant, in effect, invited such error by his failure to object at the bench conference conducted to consider the admissibility of the prior conviction about which he complains.

However, even in the event of error, the evidence against the defendant at trial was overwhelming. The victim identified the defendant in court as the individual who shot and robbed him. The defendant confessed to the co-defendant, stating, “Oh, I left that man for dead.” The co-defendant testified that the defendant had earlier sold a handgun which she did not know he had. Two neutral witnesses heard a gunshot and then saw the defendant leave the crime scene in the victim’s car. One of the witnesses identified the defendant in court. Another disinterested witness saw a man fitting defendant’s description abandon the victim’s car. The police recovered the victim’s property in the defendant’s car. The defendant fled from the police, leading them on a 20-minute chase before his arrest. Given the overwhelming evidence of the defendant’s guilt, any error would have been harmless. Coleman v. State, 271 Ga. 800, 803 (3) (523 SE2d 852) (1999).

2. Neither did the trial court err in denying the defendant’s motion for mistrial upon the co-defendant’s testimony describing him as an individual who carried a gun. Asked on cross-examination, “The gun he sold, had you ever seen it,” the co-defendant and State’s witness replied, without objection, “No. I know he tote a gun, a .38.” Thereafter, the trial court instructed the jury to disregard the answer “in toto[ ]” as unresponsive. In light of the immediate curative instruction of the court, the nature of the comment as unresponsive, and the overwhelming evidence of the defendant’s guilt otherwise, we find no abuse of discretion in the denial of the motion for mistrial. James v. State, 270 Ga. 675, 677 (4) (513 SE2d 207) (1999); Hansley v. State, 267 Ga. 48, 49 (3) (472 SE2d 305) (1996).

3. Further, asked on cross-examination, “Do you think it would have been a good idea to bring [your copy of the lease corroborating your previous address] with [you],” the defendant voluntarily placed his character in issue testifying

I — I can’t — well, in order to answer that question, I mean for me to say — what I’m trying to say, for me to bring, bring the papers with me, I mean, I have been in jail for two years. How am I going to bring the papers? Just put it that way. I have been in jail for two years. How’s I’m going to bring the paper? You know this.

Decided February 28, 2001.

Robert J. Storms, for appellant.

J. Tom Morgan, District Attorney, Andrette Watson, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Immediately following this exchange, the State’s attorney asked several questions aimed at showing that the defendant had most recently lived at his mother’s home. On this, defendant replied that he had lived in a chain gang, and for a third time trial counsel moved for mistrial, contending that the prosecutor’s questions put the defendant’s character in issue.

The record shows that the trial court chose to give a curative instruction on this issue, denying the motion for mistrial thereon. Additionally, because the defendant voluntarily placed his bad character in evidence before being questioned as to where he had lived, he cannot complain on appeal that the nature of the cross-examination which followed was prejudicial as requiring him to reveal that he had earlier lived in a chain gang. “An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful. [Cits.]” Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992); Brantley v. State, 177 Ga. App. 13,18 (3) (338 SE2d 694) (1985).

The grant or denial of a motion for mistrial is a matter which necessarily resides largely within the sound discretion of the trial judge, and unless it is clear that a mistrial is essential to preserve the right to a fair trial, the exercise of a judge’s discretion will not be disturbed on appeal. Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982); see also Jones v. State, 212 Ga. App. 473, 474 (442 SE2d 20) (1994); Bess v. State, 207 Ga. App. 295, 296 (427 SE2d 813) (1993). Given the circumstances of this case, the trial court did not abuse its discretion in denying the motions for mistrial complained of.

Judgment affirmed.

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

       The jury found the defendant guilty of robbery and aggravated assault as lesser included offenses of armed robbery and aggravated battery, respectively.

       The State subsequently nolle prossed the possession charge.


text:
    A01A0740.
    McCLAIN v. THE STATE.
    (545 SE2d 926)
   Barnes, Judge.

Johnny Isaiah McClain appeals from his conviction of aggravated assault, contending insufficient evidence supports his conviction and that the trial court erred in allowing an incompetent witness to testify. For reasons that follow, we affirm.

1. We must review McClain’s “challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], construing the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.” Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997). Viewed in this light, the record shows that McClain, along with Lashon Holloway and Ramato Kent, were indicted for the aggravated assault of a fellow inmate, Matthew Shawn Morgan. The victim, who was hospitalized for almost three months after the assault, testified that he did not know who assaulted him and that he had no memory of the assault. Another inmate testified that he saw the defendant, along with the other two men, stomping and kicking the victim. At trial, Holloway and Kent denied that the defendant participated in the assault with them. Both of these men were impeached by a tape-recorded statement in which they admitted the defendant’s participation. .

We find this evidence sufficient to support McClain’s aggravated assault conviction under the standard set forth in Jackson v. Virginia, supra.

2. The trial court did not err by allowing the victim to testify despite the defendant’s competency objection. The defendant’s objection was based on the fact that a probate judge appointed a guardian for the victim’s person and property after his injuries. The trial court questioned the victim outside the presence of the jury and determined that he was competent to testify.

Pursuant to OCGA § 24-9-7 (a), the trial court has broad discretion to determine the competency of a witness as a preliminary matter to the admissibility of the testimony of that witness, and the trial court’s determination will not be disturbed on appeal absent an abuse of that discretion. [Cit.]

Vaughn v. State, 226 Ga. App. 318, 319 (1) (486 SE2d 607) (1997).

Appellant argues that once he “proved” the victim’s incompetency through certified copies of the probate court documents, the trial court could not rely upon the victim’s testimony “to explain it away.” OCGA § 24-9-7 provides:

(a) The competency of a witness shall be decided by the court. The court shall by examination decide upon the capacity of one alleged to be incompetent from idiocy, lunacy, insanity, drunkenness, or infancy, (b) If an objection to competency is known, it shall be taken before the witness is examined at all. It may be proved by the witness himself or by other testimony. If proved by other testimony, the witness shall be incompetent to explain it away, (c) Any fact which in the judgment of the court removes the ground of incompetency shall restore the competency of the witness.

Decided February 28, 2001.

Layne & Layne, Alan P. Layne, for appellant.

Richard A. Malone, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

We disagree with appellant’s reading of this Code section. The appellant did not use “other testimony” to prove the victim incompetent. Instead, the appellant relied upon certified copies of probate court documents that were over a year old by the time of the criminal trial. The trial court did not abuse its discretion when it allowed the victim to testify. See Redfield v. State, 240 Ga. 460, 462 (3) (241 SE2d 217) (1978); Saxe v. State, 112 Ga. App. 804, 805 (1) (146 SE2d 376) (1965). The record shows that the victim appropriately answered the trial court’s questions about his name, age, education, location, occupation, family members, and the ages of his siblings.

Judgment affirmed.

Smith, R J, and Phipps, J., concur.