text:
    A02A1950.
    KEYTON v. THE STATE.
    (571 SE2d 423)
   Eldridge, Judge.

This is an appeal of a 12-month jail sentence imposed pursuant to the entry of a guilty plea to driving with an expired tag.

An accusation was filed in the State Court of Fayette County charging Clinton Keyton with prowling and driving with an expired tag. A co-defendant, Marcus Franklin, was charged in a separate accusation with prowling. Keyton and Franklin entered not guilty pleas to prowling, waived a jury, and went to bench trial on the charge. Just prior to the start of trial, Keyton entered a nonnego-tiated guilty plea to the expired tag charge.

During trial, the police officer who stopped Keyton’s car testified. The trial court learned that the offense of driving with an expired tag arose at 1:45 a.m.; that Keyton and his co-defendant were driving slowly down a deserted street and made a u-turn in the middle of the road; that Keyton was driving; that the only business open in that area was a 24-hour convenience store close to where the officer spotted Keyton’s car; that Keyton was heading toward the convenience store when the officer pulled in behind him; that Keyton’s license tag was expired; that, after the officer came in behind his vehicle, Keyton turned into a deserted business park; that the officer stopped Keyton for driving with an expired tag; that Keyton stated he had gotten lost while trying to locate the house of a girl he had met over the Internet; that Keyton could not provide directions for such house; that a black wig was beside Keyton’s knee; that, although it was October 21, Keyton stated the wig was for Halloween; that a ski mask and box cutter were underneath the passenger seat of Keyton’s car; that Keyton was wearing a dark jogging shirt and jogging pants, under which he was wearing blue jeans and an orange t-shirt. The State introduced as exhibits the black wig, the ski mask, and the box cutter.

At the close of the State’s case, Keyton moved to dismiss the prowling offense because the specific location of the offense alleged in the accusation drawn against him, 349 Kenwood Road, was not the location proved at trial, i.e., the intersection of Kenwood Road and Highway 85. The trial court granted the motion. The location apparently being correctly stated in the accusation drawn against Franklin, the case continued; Franklin called a witness who testified that the mask found in the car had been issued to Keyton six months earlier as a part of his three-week employment at a cold storage facility. At the close of evidence and following argument, the court found Franklin guilty of prowling.

A sentencing hearing was held wherein the trial court heard evidence and argument in aggravation and mitigation of sentence on Keyton, as well as Franklin. The State introduced evidence that Keyton was on probation for a 1998 armed robbery and that, at the time of the incident, Franklin was out on bond awaiting trial on armed robbery charges. Keyton’s wife offered testimony in his behalf. The trial court sentenced Franklin to 12 months in jail on the prowling offense. Thereafter, the court sentenced Keyton to 12 months in jail on the charge of driving with an expired tag. In so doing, the trial court stated,

Mr. Keaton [sic], it is very rare that someone goes to jail for an expired tag violation. I know that is a very minor offense. But, sir, I find that you committed the relatively minor offense of driving with an expired tag while in the commission of prowling, even though it was at a different location as alleged in the accusation. For that reason, I sentence you to 12 months in the county jail.

Held:

1. Keyton contends the trial court erred in considering the factual context in which the driving with an expired tag occurred because the prowling offense was dismissed against him and, thus, Keyton “never had the opportunity to put up his defense.” We disagree.

In a presentence trial the trier of fact must make a determination as to the sentence to be imposed, taking into consideration all aspects of the crime, the past criminal record or lack thereof, and the defendant’s general moral character. Any lawful evidence which tends to show the motive of the defendant, [his] lack of remorse, [his] general moral character, and [his] predisposition to commit other crimes is admissible in aggravation. Actions that are part of the res gestae are included in the type of evidence that may be considered. Here, evidence of appellant’s actions . . . would have been admissible at a trial as part of a course of criminal conduct because it was part of the res gestae of the charged crime, and thus the evidence could be admitted in the sentencing hearing.

In addition,

[generally, all the circumstances connected with a defendant’s arrest are admissible as part of the res gestae. And relevant evidence will not be excluded merely because it incidentally shows the commission of another crime, puts the defendant’s character at issue, or is prejudicial, where that evidence is admitted for the purpose of showing the circumstances of the arrest.

Here, dismissal of the charged offense of prowling due to a technical variance between the location alleged in the charging instrument and the location proved at trial did not negate the State’s proof of the facts surrounding the commission of driving with an expired license tag. In that regard, if sentencing on Keyton’s guilty plea had occurred at the time of its entry, the State would have been permitted to articulate all of the above facts surrounding the driving with an expired tag offense as part of the res gestae and the circumstances surrounding arrest. That sentencing was postponed and the evidence brought out during bench trial does not impact on the propriety of the court’s consideration of proved facts in aggravation of sentence on Keyton’s guilty plea.

Keyton’s reliance on our decisions in Newby v. State and Minis v. State is misplaced. When imposing sentence in Minis, the trial court considered evidence of a similar transaction offense separate from the one for which the defendant was on trial; during sentencing in Newby, the trial court considered evidence of a separate offense about which a jury — as trier of fact — was still deliberating Newby’s guilt or innocence. In the instant case, however, Keyton pled guilty to driving with an expired tag, the trial court was the trier of fact, and the circumstances surrounding the commission of the offense of driving with an expired tag were not separate and unrelated to that offense.

Further, in a nonnegotiated guilty plea context, “putting up a defense” to the State’s factual presentation in aggravation of sentence is by way of introduction of factual evidence in mitigation of sentence. The record shows that, during the sentencing hearing, Keyton was given ample opportunity to present evidence in mitigation of the State’s evidence as to the factual context in which the driving with an expired tag occurred. No such mitigating evidence was offered; nor was any argument made with regard thereto. In addition, no mitigating evidence in contradiction to the State’s case was offered at motion for new trial. As the trial court found, “There really was no mitigation of any merit put forth at the sentencing on this case.” Moreover, before this Court, Keyton has not put forth a factual basis for the existence of any evidence in mitigation of the State’s evidence considered in aggravation of sentence. Accordingly, this claim of error is without merit.

2. Keyton contends that sentencing him to the maximum 12-month jail sentence for driving with an expired tag is cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution because the sentence was grossly disproportionate to the offense. We disagree.

“Evidence in aggravation is not limited to convictions, and reliable information tending to show a defendant’s general bad character is admissible in aggravation.” Even when pleading guilty to a specific offense, such offense does not occur in a vacuum; and, as noted above, a trial court is not obligated to ignore the factual context in which an offense occurred when determining an appropriate sentence within statutory parameters. Here, the trial court presided over the trial of the case. From the record, it is clear that the court viewed the factual context in which Keyton committed the offense of driving with an expired tag when imposing sentence thereon. In addition, the court properly considered Keyton’s first offender probation for armed robbery and the fact that Keyton was consorting with Franklin who, at the time, was facing armed robbery charges. The trial court clearly found aggravating circumstances sufficient to justify imposing the maximum sentence. As the record supports the existence of such aggravating factors, we find no error.

Our decision in Haygood v. State upon which Keyton relies is inapposite. Therein, a trespass arose when Haygood, who had no criminal record, trimmed a hedge on her neighbor’s property. The trial court imposed the maximum 12 months in jail and $1,000 fine when Haygood indicated she would appeal her conviction — this, although the court had originally been willing to impose probation and a $625 fine prior to Haygood’s decision to appeal. This Court considered the lack of criminal record, the essentially benign nature of the trespass, and the disparity between the original sentence and the sentence imposed punitively for the exercise of the constitutional right to appeal. We determined, based on all of these factors, that the sentence imposed demonstrated a “constitutional. . . disproportionality.” In the instant case, by contrast, Keyton has a criminal record, the facts surrounding the commission of the offense were not benign, and there is no evidence that the sentence was punitively imposed for the exercise of a constitutional right.

Decided September 13, 2002.

Peters, Roberts, Borsuk & Rubin, Robert G. Rubin, for appellant.

Steven L. Harris, Solicitor-General, for appellee.

In this case, when determining the appropriate sentence, the trial court was authorized to consider all of the evidence surrounding the commission of the offense and to give it such weight as the court considered proper under the circumstances. After doing so, the trial court imposed a sentence within statutorily permissible bounds. “A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds.”

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       (Citations and punctuation omitted.) Ansley v. State, 197 Ga. App. 765-766 (399 SE2d 558) (1990). See also Phillips v. State, 241 Ga. App. 689, 690 (527 SE2d 283) (1999).

       (Footnotes omitted.) Gober v. State, 249 Ga. App. 168, 173-174 (6) (547 SE2d 656) (2001).

        Boney v. Tims, 254 Ga. 664, 665 (333 SE2d 592) (1985).

       161 Ga. App. 805, 810-811 (5) (288 SE2d 889) (1982).

       150 Ga. App. 671, 675 (258 SE2d 308) (1979), overruled in part, Boney v. Tims, supra at 665.

       (Citations omitted.) Williams v. State, 258 Ga. 281, 287 (7) (368 SE2d 742) (1988).

       Id. at 287; Williams v. State, 228 Ga. App. 622, 623 (3) (492 SE2d 290) (1997) (“first offender indictment, plea, and sentence are admissible at a sentencing hearing”).

       225 Ga. App. 81 (483 SE2d 302) (1997).

       Id. at 84 (2).

       Accord In re Mauldin, 242 Ga. App. 350, 353 (2) (529 SE2d 653) (2000); Inglett v. State, 239 Ga. App. 524, 529 (9) (521 SE2d 241) (1999); Gidey v. State, 228 Ga. App. 250, 252-253 (3) (491 SE2d 406) (1997).

       (Citations and punctuation omitted.) In re Mauldin, supra at 353.


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A1998.
    DAVITT v. THE STATE.
    (571 SE2d 427)
   Phipps, Judge.

David Davitt was convicted of child molestation and aggravated child molestation. Although his convictions were affirmed on direct appeal, the case was remanded to the trial court for consideration of Davitt’s claim of ineffective assistance of trial counsel. On remand, the burden was on Davitt to show that counsel performed deficiently and that, but for the deficient performance, there was a reasonable likelihood that the outcome of the trial would have been different. After conducting a hearing, the trial court ruled that Davitt did not carry this burden. Davitt appeals. We find no error and affirm.

Davitt asserts that he was denied effective assistance of counsel because trial counsel failed to: (1) object to alleged bolstering by the child’s mother; (2) object to the trial court’s statement in the jury’s presence that the child was qualified to testify; (3) develop the record as to whether the jury overheard testimony from a Jackson-Denno hearing; and (4) either make an opening statement or file written requests for jury charges.

1. Even though trial counsel should have objected to a question by the prosecutor to the mother concerning her child’s credibility, there is no reasonable likelihood that introduction of the mother’s testimony impacted the outcome of the trial.

In his earlier appeal, Davitt claimed that the trial court erred in allowing the child’s mother to bolster the child’s credibility. Although we held that this claim of error was waived by trial counsel’s failure to object at trial, we noted that “[w]hen the prosecutor asked the mother whether her child was generally credible, the mother responded that the child ‘doesn’t go around lying,’ but then volunteered examples of when the child had lied in the past.” Because this testimony was ambiguous as to whether the child’s allegations against Davitt would be truthful, the mother’s remarks were not so prejudicial as to have affected the verdict.

2. Counsel’s failure to object to the trial court’s statement that the child was qualified to testify provides no basis for reversal.

Davitt also complained in his earlier appeal that the trial court, in violation of OCGA § 17-8-57, expressed its opinion as to what had been proved by stating in the jury’s presence that the child was qualified to testify. We held that this claim of error was also waived by trial counsel’s failure to object.

Because the prosecution invoked the Child Hearsay Statute to introduce out-of-court statements of the victim, the court called her to the stand so that the parties could examine her. Although Georgia law excepts the victim in a child molestation case from a competency challenge on the ground that she does not understand the nature of an oath, and although Davitt did not otherwise challenge the child’s competency, the trial court conducted a hearing on her competency in the presence of the jury. During the hearing, the court briefly questioned the child concerning her general awareness of things such as the place of her residence, name of her school, and date of her birth. After she demonstrated that she knew the difference between telling a lie and the truth, the court stated that she was qualified to testify.

Under OCGA § 17-8-57, relied on by Davitt, “[i]t is error for any judge in any criminal case, during its progress or in [the] charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” Although a trial judge certainly violates this statute by expressing his opinion as to a witness’s credibility, we have held that a trial court does not violate the statute simply by qualifying an expert witness in the presence of the jury. It follows that the trial court’s remarks in this case did not violate the statute and that the trial court would have so ruled if defense counsel had objected to its remarks at trial. And even if the jury could have interpreted the remarks as a commentary on the victim’s credibility, the court later charged the jurors that it was their function to determine the credibility or believability of the witnesses and that the court had not intended, by any ruling or comment made during the progress of the trial, to express any opinion upon the credibility of the witnesses. This adequately removed any taint to which counsel might have objected.

3. Counsel’s failure to perfect the record on the issue of whether the jury overheard testimony from a Jackson-Denno hearing was a strategic decision which has not been shown to have prejudiced the defense.

Davitt also claimed in his earlier appeal that the trial court erred in failing to determine whether jurors actually heard testimony taken during the Jackson-Denno hearing. Although we held that Davitt waived this claim of error through trial counsel’s failure to request any type of relief at trial, we noted that no juror irregularity or harm appeared because Davitt had not shown that any of the jurors actually heard the testimony.

On remand, Davitt’s trial counsel testified that he did not ask for any relief at trial because of his concern that questioning the jurors on the subject would prejudice them if they heard nothing. Trial strategy such as this does not equate with ineffective assistance of counsel. Moreover, although Davitt was given an opportunity to do so on remand, he failed to produce evidence that any jurors actually overheard matters discussed at the Jackson-Denno hearing. Therefore, no prejudice has been shown.

Decided September 13, 2002.

Lane & Crowe, Robert L. Crowe, for appellant.

Stephen D. Kelley, District Attorney, George C. Turner, Jr., Diane L. Dodd, Assistant District Attorneys, for appellee.

4. Finally, trial counsel testified on remand that, as a matter of trial tactics, he chose to waive his opening statement, and that he did not request any jury charges because the court’s standard charge was adequate. Davitt has not shown that counsel’s decisions were unreasonable.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

        Davitt v. State, 232 Ga. App. 427, 429 (4) (502 SE2d 300) (1998).

        Pittman v. State, 274 Ga. 260, 264 (5) (553 SE2d 616) (2001).

        Davitt, supra at 427 (1).

       Id.

       Cf. Roberson v. State, 241 Ga. App. 226, 229 (1) (526 SE2d 428) (1999) (mother’s testimony that her child lied about normal things that children lie about was ambiguous as to whether the child was truthful with respect to her allegations against the defendant and did not contribute to the verdict; Eldridge, J., concurring specially and concurring in the judgment only, but noting that mother’s statement neither bolstered the credibility of the victim nor contributed to the verdict).

        Davitt, supra at 428 (2).

       Id.; Paul v. State, 272 Ga. 845, 848 (3) (537 SE2d 58) (2000), subsequently held that, even in the absence of an objection at trial, violations of OCGA § 17-8-57 will be reviewed on appeal under the plain error rule.

       OCGA § 24-3-16.

       See Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987).

       OCGA § 24-9-5 (b); Sizemore v. State, 262 Ga. 214, 217 (416 SE2d 500) (1992).

       See Sizemore, supra.

       See Jones v. State, 189 Ga. App. 232 (1) (375 SE2d 648) (1988).

       See Williams v. State, 239 Ga. App. 30, 31-32 (2) (521 SE2d 27) (1999); see generally Gallagher v. State, 196 Ga. App. 153, 154 (395 SE2d 358) (1990) (competency of witness determined by court); compare Ray v. State, 181 Ga. App. 42, 43 (3) (351 SE2d 490) (1986) (determination of voluntariness of confession ultimately for jury).

        Davitt, supra at 428 (3).

       Id. at 428-429.

       See Powell v. State, 210 Ga. App. 409, 413-414 (6) (b) (437 SE2d 598) (1993).

       See generally Harris v. State, 274 Ga. 774, 775 (3) (560 SE2d 642) (2002).


text:
    A02A2086.
    WEIR v. THE STATE.
    (571 SE2d 191)
   Phipps, Judge.

Diarra Weir was charged with possessing less than one ounce of marijuana in violation of OCGA § 16-13-2 (b) and with attempting to elude a police officer in violation of OCGA § 40-6-395. The marijuana charge was nolle prossed due to the unavailability of a State’s witness at the bench trial, and the court convicted Weir of attempting to elude a police officer. Weir appeals, challenging the sufficiency of the evidence to support his conviction. Finding the evidence sufficient, we affirm.

OCGA § 40-6-395 (a) provides:

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

Cobb County Police Officer Robert Morris testified as follows. At approximately 1:45 a.m. on December 25, 2001, he was in uniform in a marked patrol car when he observed Weir’s vehicle leave the back parking lot of a closed business that had been burglarized on numerous occasions. Morris pursued the vehicle down Cobb Parkway. Both cars were traveling about 40 to 45 mph in a 45-mph speed zone. Although Morris activated his blue lights and sounded his siren twice, Weir did not stop. Instead, he drove about one-half mile down the parkway and across a bridge to the entrance of an apartment complex in Fulton County. He then stopped his vehicle and used a remote control device to open the gate and enter the complex. Morris followed him into the complex to where the road dead-ended into a parking lot. Weir stopped there, exited his vehicle, and began to walk away. Morris ordered Weir to stop, but Weir ignored him. Morris then drew his weapon and ordered Weir to the ground, and he complied. Morris testified that after handcuffing Weir, he looked inside Weir’s vehicle and detected a strong odor of marijuana. A plastic bag of marijuana was found in Weir’s pants pocket, after Weir admitted that he had some marijuana there. A marijuana cigarette was also discovered on the front seat of Weir’s car.

In his trial testimony, Weir acknowledged that he heard the police siren, saw the emergency lights, and understood that the officer was trying to effect a traffic stop. Weir testified that he did not stop his car until he entered his apartment complex, because he had not done anything wrong and he wanted the officer to know that he lived in the vicinity. Weir admitted that the officer could have smelled marijuana in his car.

In reliance on Johnson v. State, Weir argues that the evidence was insufficient to convict him of violating OCGA § 40-6-395. We disagree. Johnson is distinguishable. In Johnson, the arresting officer activated his blue lights, but Johnson did not stop immediately. The officer then noticed Johnson look back at him in his rearview mirror and activated his siren. Johnson stopped his car within five to ten seconds. Weir, in contrast, did not stop until he had traveled about one-half mile to his ultimate destination, even though he heard the siren, saw the emergency lights, and knew the officer was trying to stop him. This evidence authorized the court to find beyond a reasonable doubt that Weir wilfully failed and refused to bring his vehicle to' a stop when given visual and audible signals to do so.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

Decided September 13, 2002.

Tina M. Richards, for appellant.

Barry E. Morgan, Solicitor-General, Jeffrey B. Grable, Jessica K. Moss, Assistant Solicitors-General, for appellee.

       246 Ga. App. 197, 199 (2) (540 SE2d 212) (2000).


text:
    A02A1354.
    TORSTENSON v. DOE.
    (571 SE2d 432)
   Phipps, Judge.

Rose Torstenson sued an unknown driver for personal injuries she sustained when a piece of metal flew from his truck and struck the windshield of her van. She served Allstate Insurance Company, her uninsured motorist carrier, which later moved for summary judgment. The trial court granted Allstate’s motion because Torstenson failed to meet OCGA § 33-7-11 (b) (2)’s requirement that an uninsured motorist claimant present proof either that her vehicle had actual physical contact with the unidentified vehicle or that an eyewitness can corroborate her description of the incident. Torstenson appeals, but we agree with the trial court that she failed to satisfy the statutory requirement.

The material facts are not in dispute. Torstenson was driving her van north on Interstate 95 near Brunswick in heavy traffic. Her husband, who is now deceased, was sitting in the backseat. Suddenly a metal object flew from a pickup truck ahead of the van and hit the van’s windshield, causing “spider web cracks.” Although the van “whiptped]” onto the shoulder, Torstenson maintained control of it and was able to return to her lane. She saw the license plate number of the pickup truck and reported it to the police, but the identity of the owner was never discovered. Torstenson claims that she suffered personal injuries as a result of the incident.

Under OCGA § 33-7-11 (b) (2), a motor vehicle is deemed uninsured if its owner or operator is unknown. To recover under an uninsured motorist policy, the claimant must show that “actual physical contact” occurred between her vehicle and the unknown motorist’s vehicle. Actual physical contact is not necessary, however, “if the description by the claimant of how the occurrence occurred is corroborated by an eyewitness to the occurrence other than the claimant.” Thus, the claimant must either prove actual physical contact or provide a corroborating eyewitness. Torstenson claims, contrary to the trial court’s ruling, that she did both. We disagree.

1. Torstenson argues that contact between her van and the metal object that flew from the pickup truck is sufficient to establish OCGA § 33-7-11 (b) (2)’s “actual physical contact” requirement. Our decision in Murphy v. Ga. Gen. Ins. Co., however, forecloses that argument.

In Murphy, the plaintiff claimed that a pipe fell from the bed of an unknown pickup truck, striking his windshield. We held that there was no actual physical contact between the unknown vehicle and the plaintiff’s vehicle. The facts of this case are virtually indistinguishable from those of Murphy, and the result must be the same: the statutory “actual physical contact” requirement is not satisfied.

Torstenson cites State Farm Fire &c. Co. v. Guest, in which we held that an insured whose vehicle struck a tire assembly lying in the road had a claim under her uninsured motorist endorsement. The insured alleged that the tire assembly had detached from an unknown truck. This court found that OCGA § 33-7-11 (b) (2)’s physical contact requirement could be met by showing that the insured’s vehicle made contact with an “integral part” of an unknown vehicle. Because a tire assembly is an “integral part” of a motor vehicle, the insured had satisfied the statute.

Guest does not apply here. Torstenson alleged in her complaint that her van was struck by “several items which were being hauled by the pick up truck.” In her deposition, she described the object that hit her van as a “piece of metal” that “looked like something . . . that came off of a trailer” and was similar to “[c]orrugated metal like we see on the roofs of sheds.” This undisputed evidence indicates that Torstenson’s van was hit not by an “integral part” of the truck, but by cargo carried by the truck.

2. Torstenson also argues that an eyewitness to the incident — namely, her deceased husband — corroborated her account of it. Tor-sténson offered virtually identical affidavits from two of her adult children, her husband’s stepchildren. Each affidavit states that the affiant saw Torstenson and her husband the day of the incident and that “both reported . . . that they had been traveling Northbound on Interstate 95 near Brunswick, Georgia, behind a truck hauling tires when a piece fell off the truck and hit the windshield of their automobile.” Each affidavit also states that, before Mr. Torstenson’s death, he reported to the affiant “on a number of occasions the details of the incident of which he was an eyewitness.”

Only admissible evidence can satisfy OCGA § 33-7-11 (b) (2)’s corroboration requirement. Torstenson argues that her husband’s out-of-court statements are admissible either as original evidence under OCGA § 24-3-2 or under the necessity exception to the hearsay rule. We do not agree.

(a) Out-of-court statements used to “explain conduct and ascertain motives” are admissible not as hearsay, but as original evidence. Contrary to Torstenson’s assertions, her husband’s statements are offered not to show his conduct or motive, but as corroboration of a crucial element of her claim — that the object that hit her van’s windshield came from an unidentified truck. Thus, the statements are offered for the truth of the matter asserted, and they are not admissible under OCGA § 24-3-2.

(b) To introduce an out-of-court statement under the necessity exception to the hearsay rule, a party must show that the statement is both necessary and trustworthy. The trial court found that Torstenson satisfied neither requirement. We review that decision for abuse of discretion.

To establish that her husband’s statements were trustworthy, Torstenson must point to “something present which the law considers a substitute for the oath of the declarant and his cross examination by the party against whom the hearsay is offered.” In determining whether this requirement has been met, the trial court should consider the totality of the circumstances under which the statements were made.

Here, the court found no circumstances supporting the reliability of Torstenson’s husband’s statements:

In reviewing the two affidavits [of Torstenson’s children], the Court notes again that they are nearly identical and do little more than report that statements of corroboration were made. The affidavits indicate that the first occasion on which the statements were made was when the declarant and [Torstenson] arrived at one of the affiant’s homes after the wreck. And yet, the statements appear to clearly arise from a joint discussion with declarant and [Torstenson]. Rather than focusing on what was said by the declarant, what his apparent state of mind was, what the setting was in which the statements were made, the affidavits use the term “both reported” twice to describe the circumstances. . . . The affidavits each include one more summary statement to indicate that before his death the declarant “reported to him [her] on a number of occasions the details of the incident of which he was an eyewitness.” But the affidavits give the Court no details or flavor of the declarations to determine if they meet the high standard of being a “circumstantial guaranty of trustworthiness” or “something the law considers the substitute for the oath of the declarant and his cross examination.”

Decided September 16, 2002

Callaway, Neville & Brinson, William J. Neville, Jr., for appellant.

Karsman, Brooks & Callaway, R. Kran Riddle, for appellee.

In addition, we note that the statements were made to family members rather than to a disinterested third party such as the police officer to whom Torstenson reported the incident, and that the statements were in Torstenson’s husband’s self-interest. Under the totality of the circumstances, the trial court did not abuse its discretion in concluding that the statements lacked sufficient indicia of trustworthiness and therefore did not qualify for admission under the necessity exception to the hearsay rule.

In the absence of physical contact between the vehicles or any admissible corroborating eyewitness evidence, Torstenson failed to satisfy the requirements of OCGA § 33-7-11 (b) (2). Accordingly, the trial court properly granted summary judgment to Allstate.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       OCGA § 33-7-11 (b) (2).

       Id.-

       208 Ga. App. 501 (431 SE2d 147) (1993).

       See also Fisher v. Clarendon Nat. Ins. Co., 210 Ga. App. 711, 713-714 (2) (b) (437 SE2d 344) (1993) (statutory physical contact requirement was not met where bullets were fired from unknown car into insured’s truck); Scott v. Allstate Ins. Co., 200 Ga. App. 296 (407 SE2d 492) (1991) (insured had no uninsured motorist claim where cardboard box allegedly fell from truck, causing collision involving his vehicle).

       203 Ga. App. 711 (417 SE2d 419) (1992) (physical precedent only).

       Id. at 714.

       See State Farm &c. Ins. Co. v. Swetmon, 228 Ga. App. 538, 539 (492 SE2d 678) (1997).

       OCGA § 24-3-2.

       See Harrison v. Jenkins, 235 Ga. App. 665, 670 (2) (510 SE2d 345) (1998).

        Lewis v. Emory Univ., 235 Ga. App. 811, 816 (2) (509 SE2d 635) (1998).

        Dodd v. Scott, 250 Ga. App. 32, 35 (2) (550 SE2d 444) (2001).

       (Citation and emphasis omitted.) Swain v. C & S Bank of Albany, 258 Ga. 547, 549 (1) (372 SE2d 423) (1988).

        Ward v. State, 271 Ga. 648, 650 (2) (520 SE2d 205) (1999).

       Compare Herring v. State, 252 Ga. App. 4, 8 (2) (555 SE2d 233) (2001) (fact that out-of-court statement was made to police during official rape investigation bolstered its credibility).

       See Dodd, supra at 36-37 (2) (b) (statement favorable to interest of declarant was not reliable).

       In light of this ruling, we need not decide whether Torstenson also failed to establish that the statements were necessary.


text:
    A02A1524.
    GRAY v. THE STATE.
    (571 SE2d 435)
   Phipps, Judge.

Quentin Gray was tried by a jury and convicted of four counts each of aggravated assault and possession of a weapon during the commission of a crime and one count of theft by receiving stolen property. On appeal, he claims that the trial court abused its discretion by denying his motion to sever Counts 5 and 6 of the indictment (robbery and theft by receiving stolen property) and that the evidence was insufficient to support his convictions for aggravated assault and theft by receiving stolen property. Finding no abuse of discretion and finding the evidence sufficient to support the challenged convictions, we affirm.

Viewed in the light most favorable to the verdicts, the evidence showed that on May 5, 1999, Orlando Shannon drove to a Circle K convenience store to get gas and saw a Buick driven by Quentin Gray drive into the station. Wilfred Ford was a passenger in the Buick. Gray spoke to Shannon, accusing him of robbing his cousin, and Ford threatened Shannon. Moments later Ford and Shannon began fighting, and Ford grabbed Shannon’s watch, bracelet and necklace. During the fight, Gray threatened to shoot Shannon. Gray told Shannon that he would kill him if he found him in the neighborhood again.

Later that day, Anthony Tolbert was driving a Toyota with passengers Brian Tolbert, Willie Triplett and Triplett’s children. Tolbert noticed a Buick at a stop sign with four men in it. Ford, Quentin Gray, Timothy Gray (Quentin’s brother) and another man were in the Buick. Quentin Gray stepped out of the Buick and yelled something at Tolbert, which caused Tolbert to assume that the four men were looking for trouble. Tolbert dropped the children off in the neighborhood, and thereafter the Buick blocked the Toyota’s path. Gray asked, “what’s up, what ya’ll want to do now.” Tolbert drove around the Buick, but it followed them.

Tolbert saw Ford lean out the window and point a 9 millimeter handgun toward his car. Tolbert accelerated to get away and ultimately lost control of the car, which skidded and came to a stop. The Buick followed and stopped behind Tolbert’s car. When Ford stepped out of the car with a handgun, Tolbert, who had a .32 caliber handgun, fired a shot, and Ford got back in the car. Quentin Gray then got out of the Buick and began shooting at Tolbert’s car with a 9 millimeter handgun. Tolbert drove away while Gray was shooting and heard at least one bullet hit his car and another go past the front seat passenger’s head. Tolbert testified that Quentin Gray was driving the Buick during this encounter, but Ford testified that Timothy Gray was driving.

Regina Ramsey lived nearby and was in her house at the time. After she heard her patio door explode, she felt a burning sensation and realized she had been injured. She then heard more gunshots. An investigator with the Clayton County Sheriff’s Office found fourteen 9 millimeter shell casings and seven .32 caliber casings at or near the scene. One casing was found within 50 feet of Ramsey’s house, which was almost 400 feet from the intersection where the shoóting took place. The .32 caliber casings were all found near the intersection, whereas the 9 millimeter casings were spread out.

During the shooting, Shannon’s jewelry was in the front seat of the Buick. At some point after the shooting, Ford, Quentin Gray and Timothy Gray went to a pawnshop, and Ford pawned the jewelry for $15. Ford spent the $15 at a package store and gave Quentin Gray one of the beers he purchased. Quentin Gray lived within a mile of the location of the Circle K where Shannon was robbed and the intersection where the shooting took place. The same detective investigated the incident at the Circle K and the shooting.

1. Gray challenges the sufficiency of the evidence to support his convictions for the aggravated assault of Anthony Tolbert, Brian Tolbert, Willie Triplett and Regina Ramsey and his conviction for theft by receiving stolen property.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the jury’s verdict to determine whether it is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of witnesses are a matter of credibility for the jury to resolve.

(a) With respect to the aggravated assault charges, Gray argues that there is insufficient evidence (1) that he intended to hurt or harm anyone or (2) that his actions were not justified.

(i) The pertinent essential elements of aggravated assault are an assault on a person as defined in OCGA § 16-5-20 and use of a deadly weapon. “[I]ntent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2).” Instead, the focus is on the victim’s state of mind and the only intent that must be shown is the criminal intent to commit the acts that caused the victim to be reasonably apprehensive of receiving a violent injury. The' evidence clearly showed that Gray had the intent to fire the gun at the car occupied by Anthony Tolbert, Brian Tolbert and Willie Triplett. No further proof of intent was necessary.

The doctrine of transferred intent is applicable to Gray’s aggravated assault against Ramsey.

When an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. In legal contemplation, the intent follows the act through to its legitimate results.

Accordingly, the evidence was sufficient to find that Gray’s intent to fire the gun at someone was transferred to Ramsey, although she was not the intended target.

(ii) A person is justified in using force that is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or someone else. A person is not justified in using force under such circumstances if he “[initially provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant” or if he was the aggressor.

Whether the circumstances of any confrontation “were such as to excite the fears of a reasonable person that he had to use deadly force in order to prevent the use of deadly force against him” is a matter to be determined by the jury. Similarly, whether Gray provoked the use of force or was the aggressor was a matter for the jury to resolve. The jury was adequately instructed on the use of force in defense of self or others and obviously concluded that Gray’s actions were not justified.

(b) With respect to the theft by receiving stolen property conviction, Gray argues that there is no evidence that he received any money from Ford.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen.” The indictment charged Gray with retaining Shannon’s jewelry.

The evidence showed that Gray was present when Ford took the jewelry from Shannon; that he was driving the car when Ford placed the jewelry in the front seat; that the jewelry was still in the front seat of the car Gray was driving (or riding in) several hours later and that he was in the car when Ford went into the pawnshop with the jewelry and returned with $15 — but without the jewelry. “This evidence, combined with permissible inferences raised by the evidence, was sufficient to permit a rational trier of fact to find [Gray] guilty beyond a reasonable doubt of theft by receiving stolen property” as charged in the indictment.

2. Gray claims that the trial court abused its discretion by refusing to sever the offenses of robbery and theft by receiving stolen property for trial.

Two or more offenses may be tried together if they: (a) are of the same or similar character, even if not part of a single scheme or plan; or (b) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan. Where two or more offenses are joined only because they are of the same or similar character, the trial court, upon motion of the defendant, must order separate trials for each of the offenses. But when they are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, the court in the interest of justice may order that one or more of such charges be tried separately.

Here, all of the alleged crimes occurred on the same day, in the same vicinity and involved some of the same evidence and witnesses. Thus, the offenses were not joined solely because they were of the same or similar character, and the trial court had discretion whether to sever the offenses for trial.

In exercising this discretion, the trial court “ ‘should consider whetherQ in view of the number of offenses charged and the complexity of the evidence to be offered, the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.’ ” Although Gray was charged with ten offenses, the same straightforward evidence was used to prove most of them. The trial court instructed the jury to consider each count separately, and the jury announced its verdict on each count separately. “We do not find the number of offenses charged in this case, nor the complexity of the evidence, to be such that the trial court abused its discretion in denying [Gray’s] motion to sever.”

Decided September 16, 2002.

Brown & Gill, Angela Y. Brown, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Etheridge v. State, 249 Ga. App. 111 (1) (547 SE2d 744) (2001).

       Id. at 112.

       OCGA § 16-5-21 (a) (2).

        Jay v. State, 232 Ga. App. 661, 662 (1) (503 SE2d 563) (1998).

        Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998).

       (Citation and punctuation omitted.) Harris v. State, 233 Ga. App. 696, 697-698 (505 SE2d 239) (1998).

       OCGA § 16-3-21 (a).

       OCGA § 16-3-21 (b) (1), (3).

       (Citations and punctuation omitted.) Knight v. State, 271 Ga. 557, 559 (1) (521 SE2d 819) (1999).

       See Palmore v. State, 264 Ga. 108 (441 SE2d 405) (1994); Knox v. State, 254 Ga. App. 870, 872 (564 SE2d 225) (2002).

       OCGA § 16-8-7 (a).

        Wilson v. State, 227 Ga. App. 59, 60-61 (1) (488 SE2d 121) (1997).

       (Citations, punctuation and emphasis omitted.) Ridgeway v. State, 174 Ga. App. 663, 664 (2) (330 SE2d 916) (1985).

       Id.

        Sanders v. State, 236 Ga. App. 578, 580 (1) (b) (512 SE2d 678) (1999).

       See id.

        Lane v. State, 210 Ga. App. 738, 740 (1) (437 SE2d 479) (1993).


author: Blackburn, Chief Judge.

text:
    A02A1502, A02A1503.
    McCORKLE et al. v. DEPARTMENT OF TRANSPORTATION; and vice versa.
    (571 SE2d 160)
   Blackburn, Chief Judge.

In Case No. A02A1502, Jack McCorkle and Glynda McCorkle, as surviving parents of Autumn Burgess, and Jack McCorkle as administrator of the estates of Autumn Burgess, Tyler Burgess, and Cierra Burgess; Sara Burgess, as surviving parent and administratrix of the estate of Johnne Burgess; and Rhonda Lewis and Allen Burgess as surviving parents and administrators of the estate of Karen Burgess, plaintiffs below, appeal the defendant’s verdict in their action against the Georgia Department of Transportation for negligent placement of safety devices at an intersection which contributed to a fatal automobile collision.

Appellants contend that the trial court erred by excluding: (1) a memorandum of a DOT engineer asking for consideration of “fast track” placement of a traffic light at the accident location; (2) evidence about repairs made after the accident occurred; (3) evidence from a superior court judge concerning the dangerous nature of the bypass on which the accident site was located; and (4) by refusing to give appellants’ charge on similar accidents, giving a contradictory and misleading charge, and inappropriately timing this instruction.

In Case No. A02A1503, a cross-appeal, the DOT, defendant below, contends that the trial court erred in denying its motion for a directed verdict. Both appeals are consolidated herein for review.

The underlying actions arose from a motor vehicle collision at the intersection of U. S. Highway 84, part of the North Thomasville Bypass, and Georgia Highway 3. On July 4, 1997, a tractor-trailer failed to stop at the intersection notwithstanding the fact that there were stop ahead signs, flashing beacons, rumble strips, and a stop sign in place. The tractor-trailer proceeded through the intersection without slowing and crashed into a car killing all five occupants. The occupants were Johnne Burgess, his wife, their two children, and their niece.

Appellants alleged that the DOT was negligent in the design and maintenance of the intersection, and that such negligence, concurrent with that of the truck driver, caused the deaths. A jury trial resulted in a defendant’s verdict for the DOT. We affirm Case No. A02A1502 and dismiss Case No. A02A1503 as moot.

Case No. A02A1502

1. Appellants contend that the trial court erred by granting the DOT’s motion in limine to exclude a September 3, 1997 DOT memorandum recommending a “fast track” safety improvement project which would include a traffic light for the intersection in this case. The Burgesses’ fatalities were specifically referred to in the memo, and it stated that public sentiment was a motivating factor for the “fast track request.”

The traffic signal improvement was never made. In the alternative, the DOT expedited a construction program for four-laning the bypass. The four-laning had been a part of the DOT long-range plans and, when completed, would include a traffic light at the intersection. The DOT, in its motion in limine, argued that the memo related to a subsequent remedial measure. The trial court agreed and granted the DOT’s motion. Appellants also argue that the trial court erred in rejecting their argument that defense witnesses had opened the door to the admission of such evidence.

Evidence of subsequent remedial measures generally is inadmissible in negligence actions, because the admission of such evidence basically conflicts with the public policy of encouraging safety through remedial action, for the instituting of remedial safety measures might be discouraged if such conduct is admissible as evidence of negligence. It is generally presumed that evidence of subsequent repair is submitted by plaintiffs for the purpose of showing that the defendant recognizes and admits his negligence.

(Citations and punctuation omitted.) Thomas v. Dept. of Transp.

Appellants argue that the memo did not constitute a subsequent remedial measure because the remedy it contemplated, installation of a traffic light at the intersection, was never undertaken. In the alternative, they argue that the memo should have been admitted on one of the following bases: (1) to prove knowledge of a defect; (2) to show the feasibility of modification or repair; or (3) to refute the DOT’s position that the light was not needed prior to the accident.

Reviewing the contents of the “fast track” memo, we find no error in the trial court’s ruling. First, if the traffic light had been installed, the memorandum would clearly fall within the general rule of exclusion. Although the traffic light has not yet been installed, the evidence indicates that the DOT chose to expedite an alternative solution which would ultimately result in the installation of a traffic light at the intersection although as a part of a larger highway project. This project began a few months subsequent to the collision. Even though the construction had not been completed more than three years later, and the light had not yet been installed, the project was underway. We find no error in the trial court’s ruling on this issue. The admission of evidence is within the sound discretion of the trial court, and this Court will not interfere with such exercise absent an abuse of discretion. Cooper Tire &c. Co. v. Crosby; Brooks v. Cellin Mfg. Co.

We next review appellants’ contention that the DOT opened the door to the admission of subsequent remedial measures by the testimony of its witnesses. Appellants rely on Brooks, supra, where this Court held that it was error to exclude subsequent remedial measures when the door was opened by testimony that might mislead the jury as to a material issue. In Brooks, the Supreme Court held that defendants had opened the door for plaintiffs with testimony that there had been no other fires in the other apartments, despite improperly installed insulation. This gave the impression that improperly installed insulation was not the cause of the fire, when, in fact, the faulty insulation had been repaired in those other apartments.

Appellants also rely on APAC-Ga. v. Padgett and Gunter v. Jack son Elec. Membership Corp. In APAC-Ga., the trial court admitted subsequent remedial measure testimony that a DOT engineer had requested APAC, the contractor, to move signage, after the DOT engineer had “opened the door” by testifying that he was satisfied with signage placement after the accident. Id. at 708 (1). Further, in Gunter, this Court reversed the trial court’s exclusion of a company supervisor’s auto accident investigation report when, on direct examination, the defendant “opened the door” by elaborating extensively on sections of his report which had been excluded as subsequent remedies. Gunter, supra at 631 (2).

On the other hand, this Court has also held that “[t]his exception must be applied with care, since any evidence of subsequent remedial measures might be thought to contradict and so in a sense impeach a party’s testimony that he was using due care at the time of the accident. If this counted as impeachment the exception would swallow the rule.” (Punctuation omitted.) Studard v. Dept. of Transp.

Here, appellants contend that testimony from DOT engineers that the traffic control at the intersection was more than adequate and that there was no recommendation for a traffic light prior to the completion of the bypass four-laning opened the door to the admission of the “fast track” memo as rebuttal that a recommendation was indeed needed and was made prior to the completion of the four-laning. The DOT’s denial that a recommendation for a traffic signal had ever been made other than for the four-laning project followed testimony about two of the appellants’ exhibits which were applications for a traffic signal at the relevant intersection in 1993 and 1996. The engineer testified that these were applications which were related to the study and planning of the four-laning project. It is reasonably clear from the record that his answer had referred back to the evaluation of the intersection related to these two documents and, therefore, does not constitute an “open door.”

The omission of the memo is not misleading as to a material issue in this case as was true in Brooks, supra, and APAC-Ga., supra. The “fast track” memorandum is consistent with the other testimony presented by DOT engineers that the intersection did not meet the standards of the Manual on Uniform Traffic Control Devices to warrant a traffic signal prior to the accident, that a signal was contemplated with the four-laning project, and that the primary reason for the special request was the public sentiment about the accident in this case. Further, it cannot be said that the DOT opened the door so broadly as occurred in Gunter, supra, in which defendant’s testimony introduced a substantial portion of the excluded remedial measures in the accident report into evidence. “Under the circumstances, the trial court clearly could find that the real reason for seeking to introduce evidence of remedial measures was to try to show the defendants’ awareness of their own negligence.” Thomas, supra at 642 (1). “Heeding the warning in Studard, supra[,] and deferring to the discretion the trial judge has in deciding such evidentiary matters, we find no abuse of discretion.” (Punctuation omitted.) Royals v. Ga. Peace Officer Standards &c. Council. We likewise find no error in the trial court’s ruling on this issue.

2. Appellants contend that the trial court erred in excluding evidence of repair to the rumble strips at the intersection for impeachment purposes, since the DOT’s interrogatory answer denied that any subsequent remedial measures had been made. The specific interrogatory question and answer follow:

Interrogatory No. 4: Were there any changes (subsequent remedial measures) made to any of the traffic control devices (signs, markings, rumble strips, and the like) after the subject wreck? If so, please state the nature of these changes and the name of present and former DOT employees who have knowledge of those changes.
Response: No.

The DOT’s expert testified that the rumble strips he observed at the accident site in 1999 appeared to be the same as those in photographs taken shortly after the collision in 1997; no work on them had been done recently; they complied with the DOT standards; and the strips would have given notice of the upcoming stop by sound, vibration, and sight.

Appellants contend that the expert’s testimony in cross-examination proves that the DOT acknowledged the rumble strips were repaired or refurbished. Appellants are mistaken. The record shows that the DOT expert was asked to read the portion of the truck driver’s deposition which alleged the strips had been refurbished after the collision and to acknowledge that he had read that testimony before he gave his opinion on direct examination. There is no evidence that repairs were ever made to the rumble strips or that the DOT conceded such fact. Therefore, there is no inconsistency between the DOT’s interrogatory answer and its later testimony as to the rumble strips.

We cannot say that the trial court abused its discretion in ruling on this issue, and thus there is no error.

3. Appellants also contend that the trial court erred in excluding the testimony of a superior court judge and letters he wrote to the Governor concerning the dangerousness of the bypass. In 1986, the judge had been seriously injured in an accident at a different intersection on the subject bypass.

In Dept. of Transp. v. Brown, this Court held that although the general rule is that similar accidents are inadmissible, there are two exceptions: (1) to show that the defendant had knowledge of a certain condition and (2) to show the existence of a dangerous condition. But Brown further specifies the evidence is admissible only if it is “at the same intersection at other times under the same or similar circumstances.” (Emphasis supplied.) Id.

The superior court judge’s testimony, in contention here, is that of a lay witness, since he had no expertise in the field of traffic highway engineering and design and had undertaken no study or investigation as to the bypass. OCGA § 24-9-65 provides for the opinion of lay witnesses if a sufficient foundation for the opinion is laid. Xiong v. Lankford. A lay witness’s opinion must be based upon the witness’s own observations, and he must be able to recite the facts and reasons for the opinion. Johnson v. Knebel. A lay witness’s opinion based solely on hearsay is inadmissible. In re Copelan.

The judge’s deposition was proffered, as were the two letters written to the Governor. The judge testified that he had driven through the intersection on occasion, but he had no specific knowledge of the facts and circumstances of the accident involved in this case; did not have any specific information or recollection as to the traffic control in place at this intersection; and had not witnessed or come upon any accident at the intersection. Additionally, the judge testified that he had not witnessed any other accidents on the bypass.

Of the two letters to the Governor, the first was written in 1995 following a fatal accident at the same intersection where the judge was injured. The letter does not contain any reference to the intersection in this accident. Furthermore, the only reference to the bypass as a whole is the phrase “the Bypass is an engineering nightmare.” On July 10, 1997, the second letter was written. It does not address any particular intersection or intersections and was written after the fatalities in this case. Both the testimony of the judge and the letters were based primarily on knowledge of wrecks on the bypass obtained from news reports or by “word of mouth.”

Appellants erroneously rely on American Golf Corp. v. Manley, which does not support their position. In Atnerican Golf, this Court affirmed the admission of a lay witness’s testimony about the dangerousness of a golf course cart path when the witness had observed the specific location of the accident and had given a contemporaneous opinion. Id. at 8. Here, the judge did not have any specific information or recollection as to the traffic control in place at this intersection even though he had been through the accident intersection in the past. His letters did not specifically refer to the accident scene in this case. The judge testified he had no personal knowledge of any accidents, other than his own accident, and relied solely on hearsay of other accidents for his opinion of dangerousness.

The judge’s letters do not show that the DOT had prior knowledge of a dangerous condition because the 1997 letter was written after the subject collision and neither letter identified the intersection in this case.

It is well settled that “ ‘determination of whether the witness has established sufficient opportunity for forming a correct opinion, and a proper basis for expressing his opinion, is for the trial court.’ ” Xiong, supra at 129 (2). Absent an abuse of discretion, the trial court’s decision will not be disturbed. Id. In light of the fact that other accident evidence must be similar and must be based on personal observations, the trial court did not abuse its discretion in excluding the judge’s testimony and letters.

4. Appellants’ last enumeration of error is that the trial court gave an incorrect charge on other similar accidents and improperly timed the instruction. They assert that the trial court’s charge is contradictory and misleading, relying upon Dept. of Transp. v. Brown, supra. On the first day of trial, a Georgia State Trooper testified as to the dangerousness of the intersection and to other similar occurrences at the intersection. Accident reports of the other occurrences were introduced into evidence at that time.

On the following day, prior to testimony, the court gave the jury limiting instructions on similar accidents. This instruction was repeated at the end of the case. Appellants allege that the timing of the instruction was prejudicial to them, confused the jury, and was, therefore, an abuse of discretion. Although appellants objected to the timing of the limiting instructions on similar accidents on the second day of trial, they did not do so when the charge was given at the end of the case. Although appellants made post-charge objections to other specific charges, the similar occurrence charge was not addressed at that time. Golden Peanut Co. v. Bass. Therefore, they have waived any right to complain on appeal. Delaney v. Lakeside Villa. In any event appellants have failed to show any harm or that the timing of the charge was so improper as to warrant reversal, notwithstanding their failure to timely object. Key v. State.

Appellants further argue that there has been a substantial error or plain error in the charge which was harmful as a matter of law whether or not they objected. “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Punctuation omitted.) Drug Emporium v. Peaks. Plain error may be considered whether or not an objection was made to the court’s charges. OCGA § 5-5-24 (a).

While this Court stated in Dept. of Transp. v. Brown, supra at 183 (5), that the instruction there was a correct statement of the law, it does not follow that any variation from the language of that instruction would be an incorrect statement of the law. Instead, we review the instruction in the present case to determine whether it was erroneous. The contention that “the charge is incorrect and erroneous as an abstract principle of law raises . . . the question as to whether it is, standing alone, a sound pronouncement of law.” Mut. Benefit Health &c. Assn. of Omaha v. Hickman.

Here, the statements in the instruction given are not contradictory, but set out separate limits on the use of other collision evidence that was presented in this particular case. First, the instruction states that similar occurrence evidence may be used only to show the intersection was dangerous or that the DOT had notice of that fact. Thereafter, this general rule is limited by the statement that other collision evidence alone is insufficient to show notice or dangerousness. The original charge correctly states, in accordance with Dept. of Transp. v. Brown, supra, that the jury may consider the evidence to show both notice and dangerousness.

The later limiting charge incorrectly states that similar evidence alone cannot show notice or dangerousness. This Court finds no case law to support this statement. ‘When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.”. (Punctuation omitted.) Vaughn v. Protective Ins. Co.

Decided August 22, 2002

Reconsideration denied September 17, 2002

Chason & Willett, Jonathan K. Chason, Charles A. Gower, J. Frank Myers III, for appellants.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Lawson, Davis, Pickren & Seydel, G. Thomas Davis, Paul R. Jordan, Donald P. Boyle, Jr., Alexander & Vann, Raleigh W. Rollins, for appellee.

Here, the error in the limiting charges was harmless because there was other substantial evidence produced at trial to show dangerousness and notice of dangerousness (i.e., the testimony of the trooper that the intersection was dangerous; testimony of a DOT engineer that he was contacted by the county commission chairman who had received citizen complaints and asked that something be done about the intersection; county commission chairman’s testimony that he requested a traffic light and sought it to make the intersection safer for the public; and another DOT engineer’s testimony that the intersection had a history of some fatal accidents and that the DOT would have received these accident reports and investigated them). Therefore, the record shows that the charge error was not likely to have influenced the jury to find against the appellants and was not so prejudicial as to constitute reversible error.

Case No. A02A1503

In Case No. A02A1503, a cross-appeal, the DOT appeals the trial court’s denial of its motion for a directed verdict. Having affirmed Case No. A02A1502, this cross-appeal is moot.

Judgment affirmed in Case No. A02A1502. Appeal dismissed in Case No. A02A1503.

Johnson, P. J., and Miller, J., concur.

        Thomas v. Dept. of Transp., 232 Ga. App. 639, 641 (1) (502 SE2d 748) (1998).

        Cooper Tire &c. Co. v. Crosby, 273 Ga. 454, 456-457 (543 SE2d 21) (2001).

        Brooks v. Cellin Mfg. Co., 251 Ga. 395, 397 (306 SE2d 657) (1983).

        APAC-Ga. v. Padgett, 193 Ga. App. 706 (388 SE2d 900) (1989).

        Gunter v. Jackson Elec. Membership Corp., 198 Ga. App. 629 (402 SE2d 309) (1991).

        Studard v. Dept. of Transp., 219 Ga. App. 643, 645 (2) (466 SE2d 236) (1995).

        Royals v. Ga. Peace Officer Standards &c. Council, 222 Ga. App. 400, 404 (3) (474 SE2d 220) (1996).

        Dept. of Transp. v. Brown, 218 Ga. App. 178, 183 (4) (460 SE2d 812) (1995).

        Xiong v. Lankford, 226 Ga. App. 126, 128 (2) (485 SE2d 534) (1997).

        Johnson v. Knebel, 267 Ga. 853, 855 (1) (485 SE2d 451) (1997).

        In re Copelan, 250 Ga. App. 856, 866 (553 SE2d 278) (2001).

        American Golf Corp. v. Manley, 222 Ga. App. 7 (473 SE2d 161) (1996).

        Golden Peanut Co. v. Bass, 249 Ga. App. 224, 236 (2) (547 SE2d 637) (2001).

        Delaney v. Lakeside Villa, 210 Ga. App. 430 (2) (440 SE2d 668) (1993).

        Key v. State, 226 Ga. App. 240, 241 (1) (485 SE2d 804) (1997).

        Drug Emporium v. Peaks, 227 Ga. App. 121, 125 (2) (a) (488 SE2d 500) (1997).

        Mut. Benefit Health &c. Assn. of Omaha v. Hickman, 100 Ga. App. 348, 363 (3) (111 SE2d 380) (1959).

        Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 83 (3) (532 SE2d 159) (2000).


author: Ellington, Judge.

text:
    A02A0967.
    GOINS v. THE STATE.
    (571 SE2d 195)
   Ellington, Judge.

A Wilcox County jury convicted Walter Julius Goins of seven counts of child molestation, OCGA § 16-6-4 (a). He appeals the denial of his motion for new trial, contending the trial court erred in admitting evidence of his prior difficulties with the victims and of a similar transaction. He also challenges the sufficiency of the evidence. Finding no error, we affirm.

1. Goins contends that he was entitled to a directed verdict of acquittal, arguing that the evidence presented was insufficient to support his convictions. Under OCGA § 16-6-4 (a), “[a] person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia[, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)]. Any conflict in the testimony of the witnesses, including the State’s witnesses, is a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Footnotes omitted.) Sewell v. State, 244 Ga. App. 449, 451 (1) (a) (536 SE2d 173) (2000).

Viewed in this light, the evidence showed that Goins lived in Wilcox County with his wife, his two minor sons, and the victims in this case, his wife’s three minor children. At trial, the nine-year-old male victim testified that Goins masturbated in front of him using hair “grease” as a lubricant, attempted to touch the child’s genitals and buttocks, and tried to force the child to perform oral sodomy. This abuse occurred at least 11 times. According to the boy, Goins “said if I tell anybody he will choke me until I die.”

The seven-year-old female victim testified that, when the family lived in North Carolina, Goins masturbated in front of her using baby oil. See Division 2, infra. She also testified that, after the family moved to Georgia when she was five years old, Goins touched and “pinched” her “private parts.” On several other occasions, he tried to pull down her pants.

Finally, the thirteen-year-old girl testified that, when she was seven years old and her family was living in New York, Goins told her that he was going to do “a little experiment.” Goins touched her genitals under her clothes. See Division 2, infra. When the family lived in North Carolina, Goins took the girl’s clothes off and performed oral sodomy on her. He also masturbated in front of her “a lot” using “hair grease.” Id. The family moved to Georgia when she was 11, and the victim testified that his abuse got worse. Goins touched her genitals and choked her when she cried or screamed. On one occasion, Goins locked her inside the house, pulled off her pants, put his finger inside her genitals, and forced her to watch a “nasty” videotape. On several other occasions, Goins forced her to watch the videotape while he masturbated. Goins made the victim put her hand on the Bible and swear she would not tell anyone about the abuse, and he also put his hand on the Bible and swore that he would kill her if she told anyone. If she and the other children tried to lock the doors to keep Goins from “bothering” them, he would use a knife to open the door.

In addition to this testimony, the State presented the testimony of a special agent with the Georgia Bureau of Investigation who had interviewed the children about their sexual abuse by Goins. The State also presented similar transaction testimony that Goins had been convicted in New York of the rape, sodomy, and sexual abuse of a 13-year-old girl. See Division 3, infra. During at least two separate assaults on the New York victim, Goins used “hair grease” as a lubricant. He threatened to kill the girl if she reported the abuse to anyone.

We find that the evidence presented was sufficient for a rational jury to find Goins guilty beyond a reasonable doubt of seven counts of child molestation. Jackson v. Virginia, 443 U. S. at 307; Sewell v. State, 244 Ga. App. at 451-452 (1) (c). The trial court did not err in denying his motion for a directed verdict of acquittal or his motion for new trial on this basis.

2. Goins contends the trial court erred in admitting the evidence of prior difficulties between him and the victims when the family lived in North Carolina. As the trial court correctly found,

evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

Decided September 17, 2002.

David E. Morgan III, for appellant.

(Citations omitted.) Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998); see also Buice v. State, 239 Ga. App. 52, 57 (3) (520 SE2d 258) (1999) (applying Wall v. State in a prosecution for child molestation). Since this evidence did not involve a similar transaction against a separate victim, the State was not required to comply with Uniform Superior Court Rules 31.1 and 31.3. Wall v. State, 269 Ga. at 509 (2); Cox v. State, 241 Ga. App. 388, 391 (3) (526 SE2d 887) (1999). The trial court did not err in admitting evidence that Goins had sexually abused the children while living in North Carolina.

3. Goins challenges the admission of a similar transaction that occurred in Rochester, New York. The State filed a notice of its intent to introduce evidence of a similar transaction pursuant to USCR 31.1. The court conducted a similar transaction hearing, during which a police investigator testified that Goins was convicted of the rape, sodomy, and sexual abuse of a 13-year-old girl in 1988. Goins had also threatened to kill the girl. The investigator identified Goins during the hearing as the man who had been convicted of the crimes, and the State presented a certified copy of the conviction. Having considered this evidence, the court admitted it for the limited purpose of showing Goins’ lustful disposition, his bent of mind toward molesting children under the age of consent, and his course of conduct. The court gave a limiting instruction to the jury at the time the evidence was introduced. We find no error in the trial court’s decision to admit this evidence. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) (outlining the requirements for admission of similar transaction evidence); Sewell v. State, 244 Ga. App. at 452-453 (3) (evidence of defendant’s molestation of other young children relevant and admissible to prove his state of mind in child molestation case); Godbey v. State, 241 Ga. App. 529, 530 (1) (526 SE2d 415) (1999) (in a child molestation case, similar transaction evidence involving the molestation of another child is usually sufficiently similar to be admissible, regardless of the gender of the child involved or the exact act perpetrated upon the child); Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999) (“rules regarding the use of similar transaction evidence are construed most liberally in cases involving sexual offenses”).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.


author: Ruffin, Presiding Judge.

text:
    A02A1217.
    ELLIS v. THE STATE.
    (571 SE2d 198)
   Ruffin, Presiding Judge.

A jury found Rodrik Ellis guilty of aggravated assault, aggravated stalking, and possession of a firearm during the commission of a crime. On appeal, Ellis challenges the sufficiency of the evidence. He also asserts the trial court erred in admitting into evidence hearsay testimony and his custodial statement, which he contends was involuntary. Ellis’s assertions of error lack merit, and we affirm.

Viewed in a light favorable to the jury’s verdict, the evidence demonstrates that Ellis had a troubled relationship with 16-year-old Monique Shuffler. According to Monique’s mother, Cecilia Shuffler, there were several incidents during which Ellis became violent aromad Monique, who appeared to fear Ellis. On one occasion, Cecilia Shuffler came home to discover Monique with a bleeding lip and Ellis hiding under Monique’s bed. On another occasion, Cecilia Shuffler returned home after an incident between Ellis and Monique and found holes punched through the walls of her house and a broken mirror. At some point, Cecilia Shuffler obtained a warrant to keep Ellis away from her daughter. Evidently, Ellis disregarded the warrant, prompting Cecilia Shuffler to call the police on numerous occasions.

The night of July 19, 1999, Monique was working at a drug store near her house when Ellis appeared at the store and spoke to her. A store security guard arrived and ordered Ellis to leave. According to Ellis, the guard thought he and Monique were having an argument. Rather than, walking home, Monique called her mother, who drove her back to the house. Unbeknownst to Cecilia Shuffler, Monique had made arrangements to meet Reginald Walker after work. Walker drove to Monique’s house and waited for her to come outside. As Monique approached the car, Walker heard her scream. At the same time, someone opened Walker’s car door and ordered him to “get the f-ck on” before shooting him in the neck.

Although Walker was unable to identify his assailant, Ellis was subsequently arrested and charged with aggravated assault for shooting Walker; possession of a firearm during the commission of a crime; and aggravated stalking for following Monique Shuffler into her place of employment in violation of a court order. Ellis provided a statement to police in which he admitted that he pulled a gun on Walker and told him to “get the f-ck on,” claiming that the gun just “went off.” According to Ellis’s statement, he thought the shot “had gone out the window,” and he did not realize Walker had been shot. At trial, however, Ellis testified that he had not shot Walker, asserting that he only admitted to the crime under pressure from the police. With respect to the aggravated stalking charge, Ellis admitted that he had shown up at Monique’s place of employment despite knowledge that he was not supposed to contact her.

1. In his first enumeration of error, Ellis contends that the trial court erred in admitting “the hearsay statements of Monique Shuffler.” The purported hearsay is a witness statement that she gave to police implicating Ellis in Walker’s shooting. At trial, however, Monique was unavailable to testify. Cecilia Shuffler testified, “I sent [Monique] to Miami” because “I was afraid for . . . her life.” Although the district attorney’s office attempted to locate Monique by contacting relatives in Florida, it was unable to find her. The trial court concluded that Monique’s statement to police was, thus, admissible under the necessity exception to the prohibition against hearsay.

“The admission of evidence is a matter committed to the sound legal discretion of the trial judge, whose determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.” Even hearsay may be admitted under the exception of necessity. In order to fall within this exception, such hearsay must be both “(1) necessary, in that the declarant is unavailable to testify and the statement is relevant to a material fact and more probative than other evidence that may be offered, and (2) trustworthy, in that the statements involved are surrounded by particularized guarantees of trustworthiness.”

Here, Ellis contends that the statement was inadmissible because the State failed to present sufficient evidence that it made a diligent effort to find Monique, which is a prerequisite to meeting the necessity requirement. Pretermitting whether the State presented sufficient evidence, we find no cause for reversal. After Monique gave a statement implicating Ellis, he essentially admitted to committing the crimes. Under these circumstances, any error in admitting Monique’s statement is harmless.

2. Ellis also contends that the trial court erred in admitting his custodial statement into evidence, which he argues was involuntary. Prior to admitting the statement, the trial court conducted a Jackson-Denno hearing. Detective Timothy Hunt testified that Ellis, when informed of his Miranda rights, appeared lucid and calm and that he asked no questions before waiving his rights. According to Hunt, he neither threatened Ellis nor made any promises to him to induce him to make the statement. Similarly, Detective Buice testified that Ellis had not been threatened or cajoled into giving a statement. Ellis, on the other hand, testified that he was unable to understand his Miranda rights. He furthermore maintained that he informed the officers that he did not want to talk to them, but was bullied into making a statement. The trial court concluded that Ellis’s testimony was not credible and admitted the statement.

“The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous.” Here, the trial court clearly resolved the factual disputes adversely to Ellis. As there was evidence supporting the trial court’s conclusion, we cannot say that the court erred in admitting the statement.

3. Finally, Ellis challenges the sufficiency of the evidence supporting his convictions for aggravated stalking and aggravated assault. In reviewing such challenge, we view the evidence in the light most favorable to the jury’s verdict. Ellis no longer enjoys a presumption of innocence, and we will uphold the verdict so long as “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

(a) A person commits the offense of aggravated stalking when he “follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person” in violation of a court order. According to Ellis, the evidence was insufficient to prove this offense because the court order upon which the State relied did not specify that he was to stay away from Monique Shuffler. The warrant provided “[t]hat, as a condition of the granting and continuance of said bond, the Defendant. . . [s]tay away, absolutely, directly or indirectly, by person and telephone, from the person, home[,] job and school of . . . Monique Shuffler.” Monique’s name was handwritten on the warrant. However, whoever completed the warrant failed to check the blank space next to this condition of bond.

Decided September 17, 2002.

Mark R. Gaffney, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Ingrid D. Skidmore, Assistant District Attorneys, for appellee.

Despite this clerical oversight, we find no basis for reversal. By inserting Monique’s name as the person protected, the State sufficiently informed Ellis that the otherwise generic condition applied to him. Moreover, Ellis acknowledged at trial that he knew he was supposed to stay away from Monique, but approached her nonetheless. Under these circumstances, the evidence is sufficient to support his conviction for aggravated stalking.

(b) A person commits aggravated assault when he assaults another ££[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Here, the evidence — particularly Ellis’s statement — supports the conclusion that Ellis intentionally shot Walker, which constitutes aggravated assault. Although Ellis subsequently denied shooting the victim, resolving such conflicts in the evidence was strictly a matter for the jury. The jury clearly found Ellis’s trial testimony incredible, and we will not gainsay that finding on appeal.

Judgment affirmed.

Barnes, J., and Pope, Senior Appellate Judge, concur.

       (Punctuation omitted.) Ginn v. State, 251 Ga. App. 159 (1) (553 SE2d 839) (2001).

       See id. at 160.

       Id.

       See Harris v. State, 274 Ga. 422, 425 (5) (554 SE2d 458) (2001).

       See id. at 426.

        York v. State, 242 Ga. App. 281, 292 (6) (528 SE2d 823) (2000).

       See Stephens v. State, 233 Ga. App. 32, 35 (3) (503 SE2d 311) (1998).

       Because Ellis has failed to provide any argument with regard to the sufficiency of the evidence supporting his conviction for possession of a firearm during the commission of a crime, this issue is deemed abandoned. See Court of Appeals Rule 27 (c) (2).

       See Bradley v. State, 252 Ga. App. 293 (556 SE2d 201) (2001).

       Id.

       OCGA § 16-5-91 (a).

       OCGA § 16-5-21 (a) (2).

       See Thurman v. State, 249 Ga. App. 390, 392 (3) (547 SE2d 715) (2001).

       See id.


author: Ellíngton, Judge.

text:
    A02A1255.
    LOCKETT v. THE STATE.
    (571 SE2d 192)
   Ellíngton, Judge.

On January 6, 2000, Monroe County officers arrested Marion Lockett after the tractor-trailer he was driving turned over. A breath test showed a blood alcohol level of 0.073 grams. After a bench trial, the Probate Court of Monroe County found Lockett guilty of driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1), and driving a commercial motor vehicle while there was 0.04 percent or more by weight of alcohol in his blood, breath, or urine, OCGA § 40-6-391 (i). The probate court merged the counts and sentenced Lockett only for the commercial vehicle violation. The Superior Court of Monroe County affirmed the conviction, and Lockett appeals, contending the trial court erred in denying his motion to quash the citation and in denying his motion to suppress blood alcohol test results. We affirm.

1. Lockett contends the trial court erred in denying his motion to quash the citation because the citation did not specify the charged offense. Specifically, Lockett contends the citation, which charged him with violating “OCGA § 40-6-391 (a) (1) (i),” did not specify the charged offense because no such Code section exists. Because “the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of the law to the undisputed facts.” (Citation omitted.) State v. Allen, 256 Ga. App. 798, 799 (570 SE2d 34) (2002).

The record shows the officers intended to charge Lockett with two separate DUI violations: DUI, less safe, OCGA § 40-6-391 (a) (1), and driving a commercial motor vehicle with an illegal blood alcohol level, OCGA § 40-6-391 (i). But, just as a single count of an indictment or accusation may not allege two or more separate and distinct offenses, the form for the uniform traffic citation, Department of Public Safety Form, prescribes the use of a separate Form DPS-32 for each offense charged. State v. Rustin, 208 Ga. App. 431, 434 (2) (430 SE2d 765) (1993). Indeed, the form used in this case is clearly marked, “ONE VIOLATION PER CITATION.”

Because the citation charged two offenses in a single citation, the trial court erred in denying Lockett’s special demurrer. But “[i]n order to have reversible error, there must be harm as well as error.” (Citation omitted.) Prather v. State, 275 Ga. 268, 271 (3) (564 SE2d 447) (2002).

The true test of the sufficiency of an indictment or accusation or citation is not whether it could have been made more definite and certain or, for that matter, perfect, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused.

(Citations and punctuation omitted.) Miller v. State, 182 Ga. App. 700, 701 (356 SE2d 900) (1987). The record shows that Lockett understood that he was charged with OCGA § 40-6-391 (a) (1) and OCGA § 40-6-391 (i) and that he was prepared to defend against those charges. Because Lockett was not harmed by the error on the citation, this enumeration is without merit. Hankins v. City of Alpharetta, 217 Ga. App. 635, 636 (458 SE2d 858) (1995); Broski v. State, 196 Ga. App. 116, 118 (1) (395 SE2d 317) (1990).

2. Lockett contends the trial court erred in denying his motion to suppress the results of the blood alcohol breath test because the officer administered the test using an Intoxilyzer 5000, which renders results in “alcohol concentration,” but OCGA § 40-6-391 (i) defines the offense as driving a “commercial motor vehicle while there is 0.04 percent or more by weight of alcohol” in the driver’s blood, breath, or urine. On cross-examination, Lockett elicited testimony from an expert witness, who had inspected the breath alcohol meter used to test Lockett’s alcohol level, to the effect that breath alcohol meters were formerly programmed to read “percent of alcohol by weight” but had since been programmed to give results in “alcohol concentration.” “As this [enumeration] involves the interpretation of a statute as a matter of law, our review is de novo.” (Citation and punctuation omitted.) Barraco v. State, 252 Ga. App. 25 (555 SE2d 244) (2001).

Like the superior court, we conclude that our state legislature used the terms “alcohol concentration” expressed in grams and “percent ... by weight of alcohol” interchangeably. Alcohol concentration expressed in grams and percentage of alcohol by weight are simply two phrases which indicate blood alcohol level is measured using the weight of pure alcohol in a certain volume of blood. We find that the Georgia legislature has used the terms interchangeably. Cf. OCGA §§ 40-6-391 (i); 40-6-392 (b) (2). When the terms are considered in their statutory context, it is clear the legislature “was concerned with providing accurate evidence as to the amount of alcohol or drug in a person’s blood at the alleged time,” regardless of whether the chemical test is performed on the driver’s blood, breath, or urine. Fisher v. State, 177 Ga. App. 465, 466 (2) (339 SE2d 744) (1986). Lockett’s argument lacks merit.

Decided September 17, 2002

Virgil L. Brown & Associates, Virgil L. Brown, Ronald J. Ellington, for appellant.

Richard G. Milam, District Attorney, Jason S. Johnston, Assistant District Attorney, for appellee.

3. Lockett contends the trial court erred in denying his motion to suppress the results of the blood alcohol breath test because the officer did not read the proper implied consent notice. Lockett concedes that the officer read the proper implied consent notice for persons stopped while driving a commercial vehicle but failed to read the implied consent notice for drivers arrested for DUI, less safe. See OCGA § 40-5-67.1 (b) (2), (3).

In ruling on Lockett’s motion to suppress the results of the blood alcohol test, the probate court implicitly ruled as a matter of law that the officer read the proper implied consent notice under the circumstances. We again conduct a de novo review of the trial court’s application of the law to the undisputed facts. State v. Allen, 256 Ga. App. at 799.

In this case, the probate court sentenced Lockett only for the commercial vehicle violation, OCGA § 40-6-391 (i). At the time of his arrest, Lockett received the corresponding implied consent notice. Roberson v. State, 228 Ga. App. 416, 417 (1) (491 SE2d 864) (1997). Error, if any, was harmless.

4. Lockett’s conviction of violating OCGA § 40-6-391 (i) is affirmed. Inasmuch as the judgment contains a clerical error and suggests Lockett was convicted of violating OCGA § 40-6-391 (a) (1) (i), a nonexistent Code section, we remand the case solely for the correction of the error in the judgment.

Judgment affirmed and case remanded with direction.

Smith, P. J., and Eldridge, J., concur.

       See OCGA § 40-13-21 (a).

       OCGA § 40-6-391 (i) provides: “A person shall not drive or be in actual physical control of any moving commercial motor vehicle while there is 0.04 percent or more by weight of alcohol in such person’s blood, breath, or urine.”

       See OCGA §§ 40-13-28; 15-6-8 (3), (4).

       A motion to quash an indictment or accusation for charging more than one offense in a single count is properly styled a special demurrer. Hall v. State, 241 Ga. App. 454, 459 (1) (525 SE2d 759) (1999); Morgan v. State, 212 Ga. App. 394 (1) (442 SE2d 257) (1994).

        State v. Williams, 247 Ga. 200, 202-203 (2) (275 SE2d 62) (1981).

       See OCGA § 40-13-1 (directing commissioner of public safety to develop uniform traffic citation form and board of public safety to establish procedures governing use of citations); Rules of Department of Public Safety, r. 570-19-.01 (designating Form DPS-32 for uniform traffic citations).

       We note that “most challenges to the admissibility of evidence based upon the procedures used in reading a defendant the statutory implied consent notice should be raised in a motion in limine.” (Citations omitted.) State v. Allen, 256 Ga. App. at 798, n. 1.


text:
    A02A1414.
    HAM v. HAM et al.
    (571 SE2d 441)
   Ellington, Judge.

Sarah Ellen Ham, as the executrix of the estate of her husband, James Amos Ham, sued her nephews, Phillip and James Ham, to collect on a bill of sale to secure a debt. The nephews admitted executing an agreement to pay the decedent $50,000 for 200 head of beef cattle, but claimed the debt had been satisfied. The nephews presented a document purportedly signed by James Amos Ham releasing them from the debt in exchange for $32,000. Even though the executrix claimed her husband’s signature was forged, the superior court granted the nephews’ motion for summary judgment, which was based upon the defense of accord and satisfaction. The executrix appeals, contending that material issues of fact remain for jury resolution. We agree and reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn, from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). Viewed in this light, the record reveals the following relevant facts.

James Amos Ham was hospitalized shortly before his death. One of the nephews, Phillip, and Phillip’s father, Benson Ham, visited the decedent in the hospital. The executrix was also there. During this visit, the executrix witnessed her husband sign a quitclaim deed conveying certain real property to the nephews in exchange for $32,000. Benson Hqm, on behalf of the nephews, prepared the documents the decedent signed. The executrix testified that her husband was legally blind and could not read. Although the executrix witnessed, as planned, the signing of the quitclaim deed, she never saw anyone present for her husband’s signature a document purporting to release the bill of sale to secure debt. The executrix testified that she left the room briefly to use the restroom, and that when she returned, Phillip and Benson quit talking immediately and her husband appeared agitated. The executrix stated in both her deposition and affidavit that she did not recognize the signature on the document, that.it was not her husband’s signature, and that it was, in fact, a forgery. The executrix also testified that her husband never intended to forgive the $50,000 debt for the cattle.

The nephews argue on appeal, as they argued below, that they were entitled to summary judgment because the affidavit testimony of the witnesses who allegedly observed the decedent execute the document releasing the debt proved an accord and satisfaction as a matter of law. Citing OCGA § 24-7-6, they contend the executrix’s lay testimony contesting the authenticity of her husband’s signature is inadmissible in light of their “direct evidencé of execution.” That Code section, however, does not exclude opinion testimony on the authenticity of a signature when direct evidence of execution is available. “The reason [such testimony is not excluded] is obvious; such an instrument requires proof of execution before it can be admitted [into] evidence, but, because this is so, it does not follow that it must be conclusively taken as . . . genuine.” McArthur v. Morrison, 107 Ga. 796, 798 (34 SE 205) (1899). In fact, upon proof of execution, “the genuineness of the instrument may be attacked by competent evidence on the trial of the case in which the instrument is sought to be used. Its admission is not decisive of its genuineness.” Id. Thus, a jury could still conclude that the instrument or the signature on it was forged. See id. See also Rumsey, Agnor’s Ga. Evidence (3rd ed.), § 12-4.

Decided September 17, 2002.

In this case, the executrix may offer opinion evidence attacking the authenticity of her husband’s signature. . A witness can give lay opinion testimony identifying handwriting if the witness knows the handwriting or is so familiar with it that he or she would recognize it. See, e.g., Johnson v. Knebel, 267 Ga. 853, 856 (2) (485 SE2d 451) (1997); Carnes v. Woodall, 233 Ga. App. 797, 798-799 (1) (505 SE2d 537) (1998); Copeland v. State, 66 Ga. App. 142, 143, hn. 4 (17 SE2d 288) (1941). Here, the executrix testified she believed her husband’s signature was a forgery. Moreover, she testified that her husband did not intend to forgive the debt. Given this testimony and the circumstances under which the document was executed, a jury could find that the signature was a forgery and could infer collusion by the witnesses who allegedly witnessed the execution. These facts, and the inferences that reasonably may be drawn from them, were sufficient to raise a material issue of fact regarding the authenticity of James Amos Ham’s signature as well as his intention to release the nephews from the $50,000 debt. Consequently, the trial court erred in granting summary judgment based upon an accord and satisfaction.

Judgment reversed.

Smith, P. J, and Eldridge, J, concur.

Martin L. Fierman, for appellant.

W. Franklin Freeman, Jr., for appellees.

       Proof of handwriting may be resorted to in the absence of direct evidence of execution. In such case, any witness who shall swear that he knows or would recognize the handwriting shall be competent to testify as to his belief. The source of his knowledge shall be a question for investigation and shall go entirely to the credit and weight of his evidence.
      OCGA § 24-7-6.