author: BLACKBURN, Presiding Judge.

text:
    A99A0792.
    CHASTAIN v. THE STATE.
    (521 SE2d 657)
   BLACKBURN, Presiding Judge.

Following a jury .trial, Barry C. Chastain was convicted of one count of cruelty to children and acquitted on the child molestation charge with respect to C. C., his fifteen-year-old niece. Chastain was acquitted on the multi-count indictment on counts of child molestation, cruelty to children, and attempted rape with respect to B. F., C. C.’s older sister. Chastain contends the trial court erred in denying his motion for new trial because the evidence was insufficient to support the verdict, that he was entitled to a directed verdict on Count 2, that the court erred in admitting similar transaction evidence, and that the court erred in failing to sua sponte recuse herself. For the following reasons, we affirm.

1. In enumerations of error 6, 7, 8 and 10, Chastain challenges the sufficiency of the evidence supporting his conviction for cruelty to children with respect to victim C. C.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Chastain] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Punctuation omitted.) Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998). Viewed in this light, the record reveals the following:

C. C., who was born on January 17, 1981, testified that between June and September 1996, she stayed with her father in his home in Pickens County on weekends per her parents’ divorce visitation agreement. C. C.’s uncle, Chastain, often stayed there, too. C. C. testified about several incidents that occurred there while her father was away at work: One evening, while C. C. was watching television, Chastain pulled off his shorts and underwear, and exposed his penis to C. C. Chastain remained on the couch like that until C. C.’s father called to say he was coming home. Chastain then covered himself up and pretended to be sleeping. On another occasion, Chastain came into the living room room while C. C. was watching television, laid down on the couch, pulled his shorts down, and began touching his penis. He asked C. C. if he could brush her hair. C. C. said “no,” and left the room. On another occasion, as C. C. was preparing to go to school, she walked by Chastain, who was lying on the couch under a blanket. Chastain grabbed C. C.’s arm, and pulled her hand over his body down toward his groin area. C. C. pulled away so forcefully that she injured herself on the wooden arm of the couch. Then, after C. C. had returned home from getting a manicure, Chastain, who was sitting on the couch, asked to see C. C.’s nails. C. C. refused, initially, because she was afraid Chastain would grab her arm again. After swearing not to do anything to her, C. C. put her hand out to show her nails and Chastain grabbed it. He pulled her hand toward his penis, but C. C. pulled away, her hand grazing his belt-line. C. C. ran to her bedroom and locked her door.

C. C. testified that she was afraid of what Chastain would do and began sleeping with her bedroom door locked. She was confused and troubled by these incidents and did not speak out at first because she did not want to hurt her uncle. However, after Chastain came knocking at her bedroom door early one morning, she decided to confide in her mother, who called the police. C. C. gave statements to the police. The state introduced evidence of similar incidents involving B. F., C. C.’s older sister, and five other girls, as well as the testimony of her father, mother, and police, all of whom to a varying extent corroborated certain details of C. C.’s testimony. C. C.’s father testified that C. C. was “more upset than I’ve seen her in her whole life. She was crying so hard she could hardly tell us about it.” Since these incidents occurred, C. C. has been in counseling. C. C.’s counselor testified about the anxiety, depression, withdrawal, and other symptoms of mental anguish C. C. suffered as a result of the abuse.

A person commits the offense of cruelty to children in the first degree when he maliciously causes a child under the age of 18 cruel or excessive physical or mental pain. OCGA § 16-5-70 (b). To prove the crime, there must be evidence establishing the age of the children, that the children suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing. Hopkins v. State, 209 Ga. App. 376, 377 (1) (434 SE2d 74) (1993).

(a) Chastain argues there is no evidence of malice and that C. C.’s account of how Chastain caused her mental suffering is totally unbelievable. First, determining witness credibility and weighing evidence are not appellate court functions. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. See, e.g., Thrasher v. State, 225 Ga. App. 717-718 (1) (484 SE2d 755) (1997). In this case, there is sufficient evidence to support the jury’s finding that Chastain’s acts caused C. C. cruel and excessive mental pain. Second, as we have explained,

[a] s for malice, “for purposes of this Code section, malice in the legal sense imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

Sims v. State, 234 Ga. App. 678, 681 (1) (b) (507 SE2d 845) (1998). Given the facts of this case, malice can be inferred: C. C. was a child, relatively powerless, who depended upon Chastain as an uncle and authority figure to care for her and to behave responsibly. Chastain should have known that his actions would cause his niece feelings of fear, isolation, confusion, and shame.

(b) Chastain argues that because he was acquitted of Count 1, the child molestation charge involving C. C., a conviction for cruelty to children was “repugnant” because an acquittal for child molestation necessarily includes a finding against a fact that is essential for the cruelty to children charge. We do not agree. The cruelty to children charge was not based upon the child molestation charge, and it does not contain the same allegations. Count 2 does not require a finding that Chastain intended to arouse his or C. C.’s sexual desire. Therefore, an acquittal of the child molestation charge does not require an acquittal on the cruelty to children charge. See Turney v. State, 235 Ga. App. 431, 434-435 (2) (509 SE2d 670) (1998). Moreover,

in light of the abolition of the inconsistent verdict rule in criminal cases in Georgia, the sole issue is whether the evidence was sufficient to authorize a rational trier of fact to find [Chastain] guilty of cruelty to children beyond a reasonable doubt. See White v. State, 268 Ga. 28, 29 (1) (486 SE2d 338) (1997).

Id. at 435 (2).

2. In his first five enumerations of error, Chastain argues that the trial court erred in admitting evidence of similar transactions involving witnesses C. W, A. H., P. L., R. H., and D. H. Following a pre-trial hearing held pursuant to Uniform Superior Court Rule 31.3 (B) on the prosecutor’s notice of intent to introduce similar transactions, the court found the incidents sufficiently similar and admitted them. Chastain did not file a motion in limine to exclude the evidence. He did not ask for a continuing objection to the similar transaction evidence nor did he make an objection to the similar transaction evidence on that basis when it was admitted in the case-in-chief. Consequently, any error is waived. As we have held:

[e]ven though a defendant challenges similarity at the pretrial hearing, he waives this ground by failing to assert it when the evidence is introduced at trial. But if a pretrial motion in limine is denied, the losing party need not renew his objection when the evidence is introduced at trial in order to preserve the issue. . . . [T]he rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it. Consequently, [Chastain’s] failure to object to the similar transaction evidence at trial waived further review of the issue.

(Footnotes omitted.) McClarity v. State, 234 Ga. App. 348, 349 (2) (506 SE2d 392) (1998); Smith v. State, 268 Ga. 42, 43 (3) (485 SE2d 189) (1997); Davis v. State, 229 Ga. App. 787, 789 (2) (494 SE2d 702) (1997).

Moreover, the trial court did not abuse its discretion in determining that the similar transaction evidence was sufficiently similar in any event. See Swift v. State, 229 Ga. App. 772, 774-775 (495 SE2d 109) (1997).

Decided August 13, 1999.

Pickett, Pickett & Pickett, Will H. Pickett, Jr., for appellant.

3. In his ninth enumeration of error, Chastain argues that the trial judge should have recused herself because either she or her former law firm represented witness Dinah Dinsmore in her divorce from Chastain. Dinsmore gave testimony against Chastain regarding á similar transaction involving C. W., who is Dinsmore’s daughter from a previous marriage. Although the State and Chastain both acknowledge in their briefs that the judge’s connection to Dinsmore was disclosed and discussed prior to trial, Chastain failed to elaborate on the nature and extent of that connection, to provide any citation to the record which reveals either a motion to recuse or a bench conference on the issue, or to present any argument explaining why recusal was required.

Any analysis of the necessity for recusal is necessarily fact-bound, requiring an examination of the nature and extent of any business, personal, social or political associations, and an exercise of judgment concerning just how close and how extensive (and how recent) these associations are or have been [to mandate recusal].

Sears v. State, 262 Ga. 805, 806 (1) (b) (426 SE2d 553) (1993). If the judge did represent Dinsmore in a prior divorce action, that alone would not have been a basis for disqualification under OCGA § 15-1-8 (a) (3) because although Chastain was party to the divorce, that proceeding was a transaction involving different issues and evidence and was entirely separate from the criminal trial. See Cox v. State, 85 Ga. App. 702, 703-704 (1) (70 SE2d 100) (1952). Therefore, it was incumbent upon Chastain to demonstrate that the judge’s impartiality might reasonably be questioned. See Baptiste v. State, 229 Ga. App. 691, 693-694 (1) (494 SE2d 530) (1997). This he failed to do. Not only did Chastain fail to make such a showing in a proper motion to recuse, he has not supported this enumeration of error with appropriate argument and citation to the record. Because there is nothing before us to review, we deem this enumeration of error abandoned. Court of Appeals Rule 27. See Hunter v. State, 201 Ga. App. 9-10 (2) (410 SE2d 204) (1991).

Judgment affirmed.

Barnes and Ellington, JJ., concur.

Roger G. Queen, District Attorney, for appellee.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0874.
    WILLIS v. THE STATE.
    (521 SE2d 662)
    Decided August 13, 1999.

      John F. McClellan, Jr., for appellant.
   Barnes, Judge.

Jason Willis appeals his jury conviction of theft by receiving, arguing the evidence is insufficient. We affirm.

The State indicted Willis for burglary and theft by receiving. The jury acquitted him of the burglary charge, and he contends the evidence showed he committed either burglary or theft by taking, but not theft by receiving. To the contrary, State’s witness Daniel Weath-ington testified that he, Willis, and two other people broke into the victim’s house. Willis took a shotgun and money from a bedroom and, as the group was leaving, Weathington took a deer rifle from the porch, Weathington said. Willis saw him take the deer rifle. After the group agreed to pawn the deer rifle, Willis went into a pawn shop and obtained money for the deer rifle, according to Weathington.

While Willis presented a different version of events in his testimony, the jury was entitled to believe either version. Cooper v. State, 232 Ga. App. 461, 462-463 (1) (502 SE2d 306) (1998). On appeal, we do not weigh the credibility of the evidence, only its sufficiency. Ferguson v. State, 221 Ga. App. 415, 419 (2) (471 SE2d 528) (1996).

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 unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.

OCGA § 16-8-7 (a). We find the evidence that Willis obtained the stolen deer rifle from Weathington and pawned it for cash sufficient for a rational trier of fact to find Willis guilty of theft by receiving. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Willis argues that Dyer v. State, 150 Ga. App. 760 (258 SE2d 620) (1979), requires a different result. However, we expressly overruled Dyer in Redding v. State, 192 Ga. App. 325 (384 SE2d 910) (1989). Judgment affirmed. Blackburn, R J., and Ellington, J., concur.

Tambra P. Colston, District Attorney, Fred R. Simpson, Assistant District Attorney, for appellee.


author: Miller, Judge.

text:
    A99A1231.
    IN THE INTEREST OF D. S., a child.
    (521 SE2d 661)
    Decided August 13, 1999.

      William A. O’Dell, for appellant.

      Tambra P. Colston, District Attorney, Harold W Goldin, Jr., Assistant District Attorney, for appellee.
   Miller, Judge.

A juvenile court found D. S. delinquent (arson) for setting fire to three mobile classroom units at a middle school. In his sole enumeration of error, D. S. contends that the evidence did not support a finding of delinquency beyond a reasonable doubt.

The applicable standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found D. S. delinquent beyond a reasonable doubt. In re T T, 236 Ga. App. 46 (1) (510 SE2d 901) (1999).

The trial court found that an arson occurred, D. S. lived close enough to the school to have the opportunity to commit arson, and the witnesses who testified against D. S. were credible. Evidence showed that D. S. appeared at the home of a middle school student the night of the fire, where he told her that “he had caught the trailers on fire or he was going to catch them on fire.” Additionally, a second student testified that while she was at a Wal-Mart two days after the incident, she overheard D. S. admit to someone that he was responsible for starting the fire.

The evidence adduced at trial was sufficient to authorize the trial court’s adjudication finding D. S. delinquent for having committed arson beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Blackburn, Presiding Judge.

text:
    A99A1496.
    GRANT v. THE STATE.
    (521 SE2d 654)
   Blackburn, Presiding Judge.

Following a jury trial, Chester Frank Grant III, was convicted of aggravated assault, aggravated battery, and possession of hashish, a controlled substance. Appealing from the denial of his motion for new trial, Grant argues the trial court erred in denying his motion for a directed verdict of acquittal, that he was denied effective assistance of trial counsel, and that the trial court erred in admitting certain demonstrative evidence. For the following reasons, we affirm.

1. On appeal, the evidence must be viewed in the light most favorable to support the verdict, and Grant no longer enjoys the presumption of innocence. Moreover, this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. We review a denial of a motion for a directed verdict of acquittal under the standards set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and determine whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. See Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in this light, the evidence shows that during the late evening of March 1, 1995, Grant and his “common law wife,” Linda Story, argued. Both were drunk. Grant beat Story with his fists, knocked her down, then kicked her with his boot-clad feet. Story was able to move herself to the couch, where she passed out. Sometime during the night, Grant awakened Story and they resumed their argument. During the argument, Grant squirted lighter fluid on Story’s neck, face and arms. Story walked away, but Grant followed and ignited the fluid with his lighter. Grant watched Story burn for a moment, then helped her put out the flames with his shirt. Story passed out again.

When Story regained consciousness, she called her brother in Daytona Beach, Florida. She told him what had happened and asked if he would come take her away from the house. Story was afraid to call the local authorities because she wanted to leave without causing a scene. The brother, however, called the Bibb County Sheriff’s Department, who sent a patrol car out to the residence on the morning of March 2, 1995.

When the sheriff’s deputies arrived, they spoke with Grant, who told them Story had burned herself accidentally. Because Story appeared afraid to talk to the deputies in Grant’s presence, the deputies separated them. Story then told the deputies that Grant had beat her and set her on fire. Story gave her attending paramedic, her emergency room doctor, and an investigator, the same account of the incident. Shortly thereafter, she reduced that account to a handwritten and signed statement. A day later she gave an investigator an audiotaped interview which was also consistent with her previous statements. Story also showed investigators where Grant kept hashish concealed in the house. The substance, which tested positive for THC, was admitted into evidence.

Story’s injuries were significant and left her scarred: Both eyes were black and swollen, her mouth was puffy, she had disfiguring burns to her face, neck, and left arm and hand, she was bleeding from a lacerated ear, her hair and eye brows were singed, and her back was scuffed and bruised. Story’s treating physician testified that her injuries were consistent with an attack and not with an accident. After five days of convalescence, Story swore out a warrant against Grant. However, when Grant was released on bond, Story stayed at home with him and resumed their relationship. Story recanted her previous statements at trial and said she burned herself by accident when, while lighting a cigarette, she ignited lighter fluid she had previously spilled on herself. However, she did not recant her statements about the hashish she turned over to the investigator. Story testified that both she and Grant smoked the hashish they kept in the house.

This evidence was sufficient to establish an aggravated battery, OCGA § 16-5-24 (a), an aggravated assault, OCGA § 16-5-21 (a) (2), and possession of hashish, a controlled substance, OCGA § 16-13-30 (a). Although, as Grant argues, Story recanted her prior statements at trial, her recantation does not render the evidence against Grant insufficient. Story’s prior inconsistent statements concerning the assault were substantive evidence of Grant’s guilt. See, e.g., Gibbons v. State, 248 Ga. 858, 863-864 (286 SE2d 717) (1982); Brady v. State, 233 Ga. App. 287, 288 (1) (503 SE2d 906) (1998). Although these statements contradicted Story’s trial testimony, it was for the jury, rather than this Court, to resolve conflicts and to assess witness credibility. See Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389) (1997). Story’s prior statements, along with the evidence of her disfiguring injuries and the doctor’s opinion testimony that those injuries were most likely the result of an assault, authorized a rational trier of fact to find Grant guilty of aggravated assault and aggravated battery. See Brady v. State, supra. Grant does not present any argument contesting the sufficiency of the evidence supporting his conviction for possession of hashish. Consequently, any error on this point is deemed abandoned pursuant to Rule 27 (c) of this Court. Bradshaw v. Byrd, 235 Ga. App. 25 (1) (508 SE2d 433) (1998).

2. Grant contends his trial counsel was ineffective for failing to request charges on the lesser included offenses of simple battery or simple assault. The record reveals that Grant, after consultation with his trial counsel, specifically chose to forgo any charges on lesser included offenses, choosing instead to pursue the all-or-nothing defense that Story injured herself and then, out of jealousy and anger, blamed those injuries on Grant. Given this, we conclude the evidence supports the trial court’s finding that Grant failed to carry his burden of proving ineffective assistance of trial counsel under the standards set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Van Alstine v. State, 263 Ga. 1 (426 SE2d 360) (1993); Milliken v. State, 230 Ga. App. 810, 811 (2) (b) (498 SE2d 127) (1998).

Decided August 13, 1999.

Brenda J. Bernstein, for appellant.

3. Grant argues the trial court erred in allowing Story to demonstrate to the jury how she typically refills her Zippo lighter with lighter fluid. The State used this demonstration to show that it was unlikely that Story’s bums were the result of her igniting lighter fluid she had accidentally spilled on herself while filling the lighter. Grant argues the evidence should have been excluded because the lighter used in the demonstration, though of the same type, was new. Further, he contends this type of demonstrative evidence is inadmissible without the aid of an expert witness. We disagree. As we have held:

Courtroom experiments sometimes make a practical demonstration of the question in issue, and are often the best evidence in elucidating the truth. Generally, whether courtroom demonstrations will be permitted rests within the sound discretion of the trial court. The weight of such evidence is for the jury, and varies according to the circumstances of similarity which they may find to exist between the experiments and the actual occurrence under investigation.

(Citations omitted.) Powell v. State, 226 Ga. App. 861, 862 (1) (487 SE2d 424) (1997). Story testified that the lighter used in the demonstration was the same as hers. That the lighter was “new” is insignificant because its newness had no bearing, according to Story’s own testimony, on the mechanics of how the lighter was filled. That dissimilarity affects the weight to be afforded the demonstration and not its admissibility. Id. Finally, pouring fluid into a lighter is hardly a process shrouded in mystery; rather, it is a simple task within the ken of the ordinary juror. Consequently, expert testimony was not required. See Clanton v. Von Haam, 177 Ga. App. 694, 695-696 (1) (340 SE2d 627) (1986).

We find no error. The trial court properly denied Grant’s motion for new trial.

Judgment affirmed.

Barnes and Ellington, JJ., concur.

Charles H. Weston, District Attorney, Howard Z. Simms, Angela J. Manson, Assistant District Attorneys, for appellee.


author: Eldridge, Judge.

text:
    A99A1119.
    FORSMAN v. THE STATE.
    (521 SE2d 410)
   Eldridge, Judge.

Carl A. Forsman appeals his convictions by a Fulton County Traffic Court jury for the following crimes: (1) DUI — less safe driver (OCGA § 40-6-391 (a) (1)); (2) two counts of speeding (OCGA § 40-6-181); and (3) weaving (OCGA § 40-6-48). We affirm.

The facts, viewed in the light most favorable to upholding the verdict, showed that, at approximately 1:45 a.m. on December 15, 1996, Forsman was driving 75 mph in a 55 mph speed zone, while “weaving from lane to lane” without using his turn signals. Atlanta Police Department Officer Michael Pulliam observed that, while Forsman was abruptly changing lanes, other drivers were forced to change lanes in order to avoid being hit by Forsman’s truck. The officer followed Forsman on Interstate 75-85 north in Atlanta for approximately one to two miles before turning on his blue lights as Forsman’s truck exited the interstate. Forsman did not stop right away and passed several areas where he could have pulled over before finally stopping his truck. Forsman immediately exited his vehicle and walked toward the officer; the officer testified that Forsman “was holding onto his vehicle for support.” Forsman emitted a strong odor of alcohol, his skin was “blushed,” and he appeared unbalanced while standing. Forsman’s passenger was “extremely intoxicated.” The officer asked Forsman to participate in field sobriety tests, and Forsman complied with and failed the horizontal gaze nystagmus test (“HGN”) before deciding that he did not want to take additional tests. At that point, the officer arrested Forsman and placed him in the patrol car, where he gave an implied consent notice. Forsman consented to a blood alcohol test, but the results were not introduced at trial. Forsman was convicted by a jury in July 1998. He timely appeals. Held:

1. As an initial matter, we find that the evidence presented at trial was sufficient for a rational juror to find Forsman guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, supra.

2. Further, Forsman’s contention that his convictions were based solely on circumstantial evidence is contrary to the record before us. The State presented both circumstantial and direct evidence, and the trial court properly charged the jury regarding its consideration of such evidence. See Tomko v. State, 233 Ga. App. 20, 21-22 (2) (503 SE2d 300) (1998). Accordingly, this enumeration is without merit.

3. Forsman contends that the trial court’s admission of evidence regarding his refusal to perform additional field sobriety tests after the HGN violated his constitutional rights against self-incrimination tinder the Georgia Constitution. See Ga. Const, of 1983, Art. I, Sec. I, Par. XVI. However, it is undisputed that Forsman was not in custody at the time of his HGN test or at the time of his refusal to take additional field sobriety tests. Officer Pulliam pulled Forsman over on the basis of the traffic offenses and was entitled to temporarily detain Forsman while he determined the nature of the situation and conducted field sobriety tests. Daugherty v. State, 182 Ga. App. 730, 731 (2) (356 SE2d 902) (1987). “Such detentions do not trigger the requirements of Miranda v. Arizona[, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966)]. [Cit.]” Lankford v. State, 204 Ga. App. 405, 406 (2) (419 SE2d 498) (1992). Since Forsman was not arrested until after he failed the HGN and refused to take additional field sobriety tests, there was no violation of his constitutional right against self-incrimination. Id. at 407. Accordingly, the evidence of Forsman’s refusal was admissible and there was no error.

4. Forsman claims that the trial court’s admission of the results of his breath test was a violation of his constitutional right against self-incrimination. However, no such evidence was presented at trial. This enumeration lacks merit. Further, it was wholly unsupported by citations to the record or authority and, therefore, is deemed abandoned. See Court of Appeals Rule 27 (c) (2), (3).

5. Forsman asserts that evidence seized following the traffic stop should have been suppressed because it was the result of an unlawful search. Forsman claims that the officer lacked an “articulable suspicion” that Forsman was under the influence of drugs or alcohol or that he had committed a crime. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

However, the officer testified that, prior to the stop, he witnessed Forsman traveling 75 mph in a 55 mph speed zone, in violation of OCGA § 40-6-181, and weaving between lanes, in violation of OCGA § 40-6-48.

The stop of a vehicle is authorized, and not pretextual, if the officer observed a traffic offense. . . . While failure to issue a citation or even an acquittal on an underlying traffic offense is of no consequence in determining the officer’s [articulable suspicion necessary] to stop the vehicle, in this case [Forsman] was both cited for and convicted of the traffic offense [s].

(Citations and punctuation omitted.) Hicks v. State, 221 Ga. App. 735, 738-739 (3) (472 SE2d 474) (1996). See also State v. Kirbabas, 232 Ga. App. 474 (502 SE2d 314) (1998). Accordingly, this enumeration is without merit.

6. Forsman contends that the State “blatantly disregarded” a ruling by the trial court regarding the inadmissibility of his statements after arrest, and that the trial court’s curative instructions were so insufficient as to amount to reversible error. This enumeration has no merit.

Prior to trial, defense counsel moved to exclude certain statements made by Forsman after he was under arrest; these statements involved Forsman’s concern about his dog (which was riding in the truck) and what the police would do with the dog, since Forsman had been arrested. Such motion was based on the fact that the State had failed to provide Forsman’s custodial statement to the defense pursuant to his OCGA § 17-16-22 and Brady motions for discovery. The trial court granted Forsman’s motion to exclude the spontaneous statements by Forsman regarding his dog, as well as any other custodial statement that had not been provided by the State during discovery.

At trial, the State asked Officer Pulliam about the officer’s observations regarding a change in Forsman’s demeanor after he was placed under arrest. The officer proceeded to testify that Forsman exhibited a “change in attitude” and “began to argue with me about a pet that he had in the car, a dog, and he said what are you going to do.” Following objection by defense counsel, the trial court reviewed the transcript outside the presence of the jury and specifically found that the State “did not, by the questions [the State] asked the officer, purposefully seek to avoid or neglect the Court’s order ... in this matter.” The trial court then instructed the jury that the officer’s response to the State’s question was “improper and in violation of the previous order of the Court” and directed the jury to disregard any testimony regarding Forsman’s post-arrest statements. Defense counsel did not renew his objection following such curative instructions. Accordingly, any claim of error on appeal was waived. Jackson v. State, 248 Ga. 480, 483 (2) (284 SE2d 267) (1981); Ward v. State, 234 Ga. App. 610, 612 (2) (507 SE2d 506) (1998).

7. Forsman also asserts that the State violated a prior court order excluding testimony about an implied consent notice and challenges the trial court’s failure to give a curative instruction following such testimony. Again, this enumeration lacks merit.

At trial, the State asked the officer what he did after he placed Forsman in the patrol car. The officer replied that he read Forsman the implied consent notice, and defense counsel objected. The motion hearing and trial transcripts clearly show that the trial court had not ruled on the issue of Forsman’s implied consent prior to the testimony to which Forsman objects.

Following defense counsel’s objection, the trial court prohibited the State from addressing the issue of implied consent. However, when the trial court stated that it intended to instruct the jury to disregard the testimony regarding implied consent, defense counsel specifically asked the trial court not to give such instruction, as it would only “amplify” the issue with the jury. This was clearly a determination made by defense counsel regarding trial strategy. The trial court complied with this request. If, in fact, the failure to give a curative instruction was error, “induced error is not a proper basis for claiming prejudice. [Cits.]” Brundage v. State, 208 Ga. App. 58, 59 (430 SE2d 173) (1993).

8. Forsman also asserts that he received ineffective assistance of counsel at trial. Such issue was not ruled upon by the trial court. It is raised for the first time in this appeal by his appellate counsel, who was retained in March 1999, after the period for filing a motion for new trial had passed and a notice of appeal had been filed by trial counsel. Therefore, it must be concluded that this appeal was the earliest practicable moment for such issue to be addressed. Russell v. State, 267 Ga. 865 (485 SE2d 717) (1997); Willingham v. State, 235 Ga. App. 475, 477 (3) (509 SE2d 744) (1998); Davitt v. State, 232 Ga. App. 427, 429 (502 SE2d 300) (1998).

In cases such as this, when the issue can be decided from the record on appeal, a remand to the trial court for a ruling on this issue would be “wasteful of judicial and legal resources” and “would serve no useful purpose.” (Citations and punctuation omitted.) Elrod v. State, 222 Ga. App. 704, 705 (475 SE2d 710) (1996), citing Brundage v. State, supra, and Hutton v. State, 192 Ga. App. 239, 243 (384. SE2d 446) (1989) (Beasley, J., dissenting in part). See also Mackey v. State, 235 Ga. App. 209, n. 4 (509 SE2d 68) (1998); Pollard v. State, 230 Ga. App. 159, 161 (495 SE2d 629) (1998); Norman v. State, 208 Ga. App. 830 (432 SE2d 216) (1993).

As to the merits of Foreman's contentions,

Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984), set the standard for evaluating a claim of ineffectiveness of counsel. Its two-prong test was acknowledged and applied by the Georgia Supreme Court in Smith v. Francis, 253 Ga. 782, 784 (1) (325 SE2d 362) (1985): The defendant must show (1) that his attorney’s representation was deficient; and (2) that the deficient representation prejudiced his defense, i.e., that a reasonable probability exists that but for the ineffective representation the result of the proceeding would have been different. Id. at 783. Both prongs must be proved. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989).

Norman v. State, supra at 832. In this case, the record clearly demonstrates that trial counsel’s performance was not deficient.

(a) Foreman’s claim that trial counsel failed to object to certain statements by the State regarding his demeanor upon arrest, particularly statements that Forsman was silent after he was stopped by police and was “playing it cool.” Forsman claims that such statements previously had been barred by the trial court. However, Foreman's citation to the record does not demonstrate such ruling, nor does this Court find any such ruling in the record. See footnote 4, supra.

Further, the State is entitled to make reasonable inferences from the evidence during argument to the jury. “The record reveals that these statements were proper inferences. See Morgan v. State, 267 Ga. 203 (1) (476 SE2d 747) (1996) (counsel on closing argument may draw from the evidence any reasonable and legitimate inference).” Whatley v. State, 270 Ga. 296, 302 (15) (a) (509 SE2d 45) (1998). There was no basis for objection for trial counsel.

(b) Foreman's claim that trial counsel was ineffective for failing to object to references regarding his refusal to submit to additional field sobriety tests is without merit, pursuant to our decision in Division 3, supra.

(c) Forsman asserts that trial counsel was ineffective for failing to argue that the State had a higher standard of proof because only circumstantial evidence was presented. However, as presented in Division 2, supra, both direct and circumstantial evidence was presented in this case.

Therefore, as the record in this case clearly demonstrates that trial counsel’s performance was not deficient, it is unnecessary to address the second prong of the test under Strickland v. Washington, supra.

9. Pursuant to this Court’s decision in the preceding divisions, Forsman’s remaining enumeration is without merit.

Decided July 29, 1999

Reconsideration denied August 16, 1999.

Chestney Hawkins Law Firm, Robert W. Chestney, Gale W. Mull, Hollie G. Manheimer, for appellant.

Joseph J. Drolet, Solicitor, Katherine Diamandis, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       An additional count of DUI was nolle pressed, and the speeding charges were merged for sentencing.

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

       In addition to the facts as presented above, the jury also heard testimony of a similar transaction which occurred in Cobb County on January 14,1994.

       This Court notes with disapproval that, in their arguments on appeal, Forsman’s appellate counsel repeatedly mischaracterized the timing, substance, and breadth of the trial court’s evidentiary rulings. See also Divisions 7 and 8, infra.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

       The issue of whether this ruling was error is not before this Court.


author: Johnson, Chief Judge.

text:
    A99A1611.
    GREEN v. THE STATE.
    (521 SE2d 441)
   Johnson, Chief Judge.

Following a bench trial, Kenny Green was found guilty of possession of less than one ounce of marijuana, possession of methamphetamine, trafficking in methamphetamine, unlawful possession of fireworks, giving a false name to a law enforcement officer, making a false statement, and speeding. Green appeals. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the record shows that an officer stopped Green after observing him speeding, confirming his speed with radar, and observing Green crossing the road’s fog line twice. As he approached Green’s car, the officer observed a box of assorted fireworks in the back seat. When the officer asked Green for his driver’s license and insurance card, Green produced two traffic citations in the name of Franklin McEn-tire. The officer advised Green that it was illegal to possess fireworks in Georgia and had Green wait in his patrol car while he cited Green for speeding and illegal possession of fireworks. While in the patrol car, the officer asked Green for consent to search the vehicle and gave Green a consent to search form which he read and explained to Green. Green signed the consent to search form using the name Franklin McEntire.

Before beginning the search of Green’s car, the officer asked Green’s passenger to get out of the vehicle and to take an infant out of the vehicle. As the passenger was leaving the car, she reached for a white cloth bag, explaining that she wanted a bottle for the infant. The officer allowed her to get a bottle out of the bag, but instructed her to leave the cloth bag in the car. During the search of the car, the officer discovered $6,000 in cash in a paper bag located inside the white cloth bag and two containers of marijuana and methamphetamine located inside a wooden shadow box cabinet that was behind the front seat. The officer arrested Green and his passenger and discovered Green’s true identity the following day.

1. Green contends the trial court erred in denying his motion to suppress based upon the state’s alleged failure to prove that the use of a radar speed detection device was in accordance with OCGA § 40-14-1 et seq. This contention lacks merit.

Even if the state did fail to prove that the radar was used in accordance with the required prerequisites, the officer testified at trial that he stopped Green’s car because he first observed Green driving in excess of the posted speed limit and then confirmed his observation through the use of radar. It is well-established that opinion testimony of an eyewitness may be used to establish speed and that such evidence is sufficient to authorize a factfinder to conclude that the speeding laws have been violated. Dunbar v. State, 228 Ga. App. 104, 111 (4) (491 SE2d 166) (1997); Jackson v. State, 223 Ga. App. 27, 28 (2) (477 SE2d 28) (1996); Natron v. State, 215 Ga. App. 76, 78 (3) (449 SE2d 634) (1994). In addition, Green admitted at the motion to suppress hearing that he was speeding. Based on this evidence, it is undisputed that Green was speeding and that the officer was authorized to stop Green’s vehicle. See Dunbar, supra; Freeland v. State, 223 Ga. App. 326 (1) (477 SE2d 633) (1996). The trial court properly denied Green’s motion to suppress.

2. Green next contends the trial court erred in denying his motion to suppress because he was illegally detained and his vehicle was searched without proper consent or a warrant. This contention also lacks merit.

When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

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

Contrary to Green’s contention, the stop was not unlawful. As we stated in Division 1, based on the officer’s observations of Green’s speed, the stop was legal. We therefore turn to Green’s argument that his consent was not freely and voluntarily given because he was being illegally detained in the back of the officer’s patrol car at the time he gave the consent.

According to the record, Green was placed in the back seat of the patrol car while the officer issued him citations for speeding and possession of fireworks. This was done for the safety of Green and the officer since they were on a road shoulder alongside an interstate highway. There were no handles on the inside of the back doors of the patrol car so Green could not have left the vehicle. The officer testified that Green was not free to go and was being detained for investigation. Green contends these facts show that his consent to search was the product of an illegal detention in the patrol car. We disagree.

We have previously held that where an officer has reasonable suspicion to justify detaining a suspect briefly, a ten to fifteen minute detention in the back seat of a patrol car is valid. Goodman v. State, 210 Ga. App. 369, 371 (436 SE2d 85) (1993); State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992). In the present case, the officer stated Green acted “real nervous” and he believed there may have been more fireworks in the vehicle. He therefore asked Green for consent to search the car, which Green gave. Green’s argument that his consent to search was not freely and voluntarily given because he was detained in the back of the police car at the time he gave the consent lacks merit. See Cotton v. State, 237 Ga. App. 18, 20 (513 SE2d 763) (1999). The order denying the motion to suppress will not be disturbed. See Anderson v. State, 207 Ga. App. 590, 591 (2) (428 SE2d 803) (1993).

We also reject Green’s argument that his consent was not freely and voluntarily given based on contradictions in the officer’s testimony regarding his consent. During a suppression hearing and during a bench trial, the trial court is the trier of fact, and its decision regarding credibility must be accepted unless clearly erroneous. Goodman, supra at 371.

3. The trial court did not err in failing to grant Green’s motion to suppress evidence obtained “in the search of a diaper bag belonging to the passenger of his vehicle.” As even Green’s enumeration of error shows, he has never asserted a possessory or proprietary interest in his passenger’s white cloth bag. Thus, he lacks standing to challenge the admissibility of the $6,000 confiscated from the bag. See State v. Harris, 236 Ga. App. 525, 529 (3) (513 SE2d 1) (1999); Lewis v. State, 233 Ga. App. 560, 561-562 (2) (504 SE2d 732) (1998).

4. Green contends Georgia’s trafficking in methamphetamine statute is unconstitutional because it requires a mandatory minimum sentence regardless of the percentage of methamphetamine found in the mixture. See OCGA § 16-13-31. According to Green, the statute raises the possession of infinitesimal and unusable quantities of methamphetamine, contained within some other substance, to the level of trafficking based merely on the amount of the entire mixture. We need not address whether this argument has merit since the record shows that Green was in possession of 54.5 grams of methamphetamine and the weight of the total sample was 56.7 grams. Thus, his argument regarding infinitesimal amounts of methamphetamine within a larger mixture does not apply to the facts of his case. In addition, Green’s argument that the mandatory fines imposed under OCGA § 16-13-31 violate constitutional standards has been decided adversely to him in Wyatt v. State, 259 Ga. 208, 209 (2) (378 SE2d 690) (1989).

Decided August 3, 1999

Reconsideration denied August 16, 1999

John A. Nuckolls, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A99A0813.
    RAMEY v. THE STATE.
    (521 SE2d 663)
   Smith, Judge.

After a jury trial, James Lyn Ramey was acquitted of theft by receiving stolen property, OCGA § 16-9-7 (a), but convicted of theft by deception, OCGA § 16-8-3, and selling a motor vehicle with an altered vehicle identification number, OCGA § 40-4-22 (a). Appealing from the trial court’s order denying his amended motion for new trial, Ramey contends that he was entitled to a directed verdict of acquittal and that he received ineffective assistance of counsel. For the following reasons, we affirm.

1. On appeal, the evidence must be viewed in the light most favorable to the verdict, and a criminal defendant no longer enjoys the presumption of innocence; moreover, an appellate court determines the sufficiency of the evidence, and may not weigh the evidence or determine the credibility of witnesses. Hill v. State, 207 Ga. App. 65, 66 (1) (426 SE2d 915) (1993). When the sufficiency of the evidence is challenged by a motion for a directed verdict of acquittal, the proper test is the reasonable doubt test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991).

Viewed in this light, the record reveals that on December 11, 1996, Debra and Vincent Parr reported the theft of their “mint condition” 1966 Mustang convertible, vehicle identification number (VIN) 6F08C338975. The car, which had a “For Sale” sign in it, was stolen from a parking lot in a shopping center in Cordele, Georgia. The Parrs had been advertising the car for sale in the newspaper, listing the selling price at $10,000 — approximately what they paid for it when they bought it from a local car dealer. Ten months later, Haber-sham County Sheriff’s Deputy Chip Duncan recovered the Parr’s Mustang from Dwayne Cantrell. Cantrell testified that he bought the Mustang from Ramey for $2,750 in “the 11th month of ’96. The 11th and 23rd I believe,” referring to the original bill of sale for the date. Cantrell, the owner of 123 Tire Company, knew Ramey through his business dealings with Ramey’s company, Ramey Motors. When Cantrell bought the car, he received a bill of sale prepared by one of Ramey’s employees dated November 23, 1996 — almost a month before the car was stolen. The bill of sale listed the car’s VIN as 5F08D150307.

Agent Charlie Wershem of the National Insurance Crime Bureau positively identified the Mustang Cantrell bought as the one stolen from the Parrs. Agent Wershem, who testified to his training and experience in the field of identifying stolen automobiles, was able to reconstruct a partial VIN from a damaged VIN he found concealed beneath an area of patching compound under the Mustang’s hood. He reconstructed the number by deriving all possible VINs for the car and comparing them for vehicle attributes such as color and body type, as well as matching them against known stolen cars of that make and model. He found only one vehicle that matched: the vehicle stolen from the Parrs in Cordele. The Parrs also positively identified the Mustang as theirs through several of the car’s distinctive marks and features. Agent Wershem testified that the VIN on Ramey’s bill of sale did not belong to the 1966 Ford Mustang Ramey sold Cantrell. Deputy Duncan also testified that the VIN on Ramey’s bill of sale was assigned by Ford to 1965 Mustangs only. Finally, Agent Wer-shem and Deputy Duncan testified that the VIN plate on the Mustang’s door had been altered and did not fit properly. Deputy Duncan testified that it was obvious to any person knowing “a little bit” about cars that the plate was loose and “didn’t look like it belonged at all.” Vincent Parr testified that he did not damage or alter his vehicle’s identification number in any way.

“A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property.” OCGA § 16-8-3 (a). A person deceives if he intentionally: OCGA § 16-8-3 (b); see also Walls v. State, 161 Ga. App. 235 (291 SE2d 15) (1982).

(1) creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false;
(2) Fails to correct a false impression of an existing fact or past event which he has previously created or confirmed.

In this case, Ramey obtained cash from Cantrell through deceitful means by selling Cantrell a stolen 1966 Mustang that Ramey represented he legitimately owned. The jury could infer Ramey’s intent to deceive from several facts in evidence: (1) Ramey gave Cantrell a bill of sale with a date that pre-dated the car’s theft, giving rise to an inference that Ramey was attempting to conceal that the car was stolen; (2) the car’s true VIN was damaged and then concealed, and a false VIN plate applied loosely to the door, changes that a person in the business of buying and selling cars should have noticed; (3) Ramey sold the car for significantly less than its market value; and (4) the VIN stamped on the false plate and used by Ramey for the bill of sale did not match the car and could not have been assigned to a 1966 Ford Mustang. Given these facts and the inferences that logically could be drawn from them, we find the evidence was sufficient to support Ramey’s conviction for theft by deception.

Also, it is unlawful for a person knowingly to sell a motor vehicle with an altered VIN for the purpose of concealing or misrepresenting the identity of the vehicle. OCGA § 40-4-22. Whether this Code section was “knowingly” violated may be proven by circumstantial evidence. McJunkin v. State, 160 Ga. App. 30, 32 (2) (285 SE2d 756) (1981). The evidence from which the jury was authorized to infer an intent to deceive on the theft by deception conviction was also sufficient to show Ramey had guilty knowledge of the altered VIN number. Id. Viewed in the light most favorable to the verdict, it is apparent that the evidence was sufficient to enable a rational finder of fact to conclude that Ramey was guilty of the crimes charged beyond a reasonable doubt.

2. Ramey also argues that he was denied effective assistance of counsel because his trial attorney failed to call witnesses who allegedly would have testified that Ramey sold Cantrell his Mustang several weeks before the Parr’s Mustang was stolen.

Generally, the burden is on the defendant claiming ineffective assistance of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations and punctuation omitted; emphasis in original.) Anderson v. State, 228 Ga. App. 453, 457 (2) (491 SE2d 893) (1997).

Decided August 16, 1999.

Verdery & Oliver, Cindy M. Franklin, for appellant.

Michael H. Crawford, District Attorney, Earnest J. McCollum, Assistant District Attorney, for appellee.

Ramey has not provided us with a transcript of the hearing on his motion for new trial. However, the trial court concluded that based upon the testimony given by Ramey’s trial counsel at that hearing, trial counsel’s decisions concerning what witnesses to call “were clearly matters of trial strategy.” Nothing in the record before us suggests that Ramey identified any potential defense witnesses or made any other showing that revealed any favorable evidence that his defense counsel failed to obtain or to present at trial. Nor has Ramey demonstrated how that evidence would have affected the outcome of the trial — especially in light of the fact that such testimony would have been cumulative of the evidence provided by the date printed on Ramey’s bill of sale as well as Cantrell’s testimony based on the bill of sale. We therefore conclude that Ramey failed to carry his burden of showing either error or the resulting harm necessary to support a claim of ineffective assistance of counsel. Id.

Judgment affirmed.

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


text:
    A99A0841.
    MCINTYRE v. THE STATE.
    (520 SE2d 55)
   Blackburn, Presiding Judge.

After pleading guilty to voluntary manslaughter, Raymond McIntyre appeals the trial court’s denial of his motion to withdraw the plea, contending that the trial court erred by failing to hold an evidentiary hearing on his subsequent claim of ineffective assistance of counsel. Since McIntyre failed to establish a prima facie claim of ineffective assistance, we affirm.

“A trial court’s ruling on a motion to withdraw a guilty plea after sentencing is pronounced will not be disturbed absent an abuse of discretion.” England v. State, 232 Ga. App. 842 (502 SE2d 770) (1998).

Hill v. Lockhart, 474 U. S. 52 (106 SC 366, 88 LE2d 203) (1985), established the following test for ineffective assistance of counsel in the context of a guilty plea: 1) the performance of counsel “fell below an objective standard of reasonableness” (quoting Strickland v. Washington, 466 U. S. 668, 687-[688] (104 SC 2052, 80 LE2d 674) (1984)); and 2) “. . . defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” 474 U. S. at 59.

Decided June 28, 1999

Reconsideration denied August 17, 1999.

Harold B. Baker, for appellant.

Raymond McIntyre, pro se.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Tarwater v. State, 259 Ga. 516, 517-518 (383 SE2d 883) (1989).

McIntyre has failed to meet the test. While McIntyre broadly alleges he was not “properly represented at his plea,” he has not alleged how his counsel was ineffective. McIntyre fails to mention any specific act or omission of counsel which he contends fell below the standard of reasonableness. Having failed to meet the first prong of the test, McIntyre fails to meet the second prong as well. McIntyre cannot show that, but for the . errors, he would not have pleaded guilty. Moreover, we note that at his guilty plea hearing, McIntyre testified that his counsel had thoroughly explained the case to him and that he was completely satisfied with their performance. Absent any allegations specifying conduct by counsel which was ineffective, the record establishes McIntyre’s satisfaction with counsel at the time of his plea.

McIntyre’s contention that the trial court erred by failing to hold a hearing on his ineffective assistance claim, thereby preventing him from building a record to support his appeal, has no merit. The trial court is not obligated to hold an evidentiary hearing on a claim of ineffective assistance of counsel where the claimant has failed to allege a prima facie case.

Judgment affirmed.

Barnes, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A99A0881.
    SHORTER v. THE STATE.
    (521 SE2d 684)
   Barnes, Judge.

Spencer Shorter appeals his convictions for three counts of aggravated assault on a police officer, fleeing, or attempting to elude a police officer, obstruction of a police officer, and possession of a firearm by a convicted felon. This appeal arose from the same incident and trial addressed in Shaw v. State, 238 Ga. App. 757 (519 SE2d 486) (1999). Shorter argues his first appellate counsel was ineffective for waiving his right to assert his trial counsel’s ineffectiveness. He also argues that insufficient evidence supports the verdicts. For the reasons that follow, we affirm.

1. Shorter contends his case should be remanded to the trial court for a hearing on whether his initial appellate counsel was ineffective for failing to argue, in a motion for new trial, that his trial counsel was ineffective, thus waiving the issue. Trial counsel was ineffective, according to Shorter, because he did not move to suppress the evidence obtained from Shorter’s car after a lengthy police chase. The question before us is whether Shorter is entitled to a hearing on the issue of the ineffectiveness of his first appellate counsel.

Because the trial court decided the motion for new trial made by Shorter’s first appellate counsel before his second appellate counsel was appointed, this is the first opportunity he has had to raise this issue. Generally, when the appeal presents the first opportunity to raise an ineffective assistance claim, we remand the case to the trial court for an evidentiary hearing on the issue. However, remand is not mandated if we can determine from the record that Shorter cannot satisfy the two-prong test set forth in Strickland v. Washington, 466 U. S. 668, 695-696 (104 SC 2052, 80 LE2d 674) (1984). Mackey v. State, 235 Ga. App. 209 (1) (509 SE2d 68) (1998); Setser v. State, 233 Ga. App. 822, 824 (2) (505 SE2d 798) (1998).

Under Strickland, Shorter has to show “both that counsel’s performance was deficient and that a reasonable probability exists that but for counsel’s deficient performance, the result of the proceeding would have been different.” Davis v. State, 221 Ga. App. 131, 133 (3) (470 SE2d 520) (1996). We conclude that Shorter cannot meet either requirement, because a review of the record shows that a motion to suppress evidence at trial would have been without merit.

Shorter contends the evidence seized from his car following the police chase should be suppressed because the police officer who initially tried to pull him over had no reasonable suspicion he had committed a crime, and was acting on an insufficiently detailed tip. We disagree.

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U.S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968).’ ”

(Citations and punctuation omitted.) Shapiro v. State, 233 Ga. App. 620 (2) (504 SE2d 719) (1998). While a general tip to be on the lookout for a vehicle such as “a white van” may not create sufficient articulable suspicion, Vansant v. State, 264 Ga. 319, 321 (2) (443 SE2d 474) (1994), a more particularized description of a suspect vehicle may provide a reasonable suspicion sufficient to warrant a Terry stop. Thomason v. State, 268 Ga. 298, 301 (2) (a) (486 SE2d 861) (1997). In Thomason, the officer knew “the color of both the car and its top, the manufacturer, model, and model year of the car, and the driver’s gender and race.” Id. at 301.

Here, the officer was looking for a blue Cadillac with four black men near the area where a tipster said he saw gunshots fired from such a car. A blue Cadillac with four black men in it crossed the road directly in front of the police car, almost hitting it. The officer had to stop in the middle of the street to avoid a collision. These facts support the conclusion that the officer had a reasonable, articulable suspicion for attempting to pull the Cadillac over. Subsequent gunshots from the car during the ensuing chase ripened the suspicion into probable cause for arrest.

Because the issue Shorter claims trial counsel should have raised is not meritorious, we conclude that Shorter cannot satisfy the first element of the Strickland test, deficient performance on the part of his first appellate counsel.

“[I]t is not deficient to fail to file a motion which is frivolous. Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [Shorter’s] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.”

Mayes v. State, 229 Ga. App. 372, 373 (1) (494 SE2d 34) (1997). Shorter has not shown that a motion to suppress evidence seized from his Cadillac would have been successful, and cannot show that his first appellate counsel’s failure to assert his trial counsel’s ineffectiveness was deficient.

2. In his remaining enumeration of error, Shorter claims that insufficient evidence supports his convictions of aggravated assault on a police officer. In this case, the aggravated assault charges against Shorter are based on his conduct that aided and abetted others who also committed aggravated assault. OCGA § 16-2-20; Jackson v. State, 163 Ga. App. 526, 527 (1) (295 SE2d 206) (1982).

Viewed in the light most favorable to the verdict, the record shows that a high-speed automobile chase began when an unnamed citizen told Atlanta Police Officer L. R. Gilbert, who was patrolling in his marked car, that he had just seen gunshots fired from a blue Cadillac “with several young black males in it.” Shortly after a radio announcement advised officers to be on the lookout for a blue Cadillac with four or five black men in it, Officer W. C. Jones began looking for the car in the area where it had last been seen. A few minutes later, a blue Cadillac with four black males in it suddenly appeared in front of him and almost collided with his police car. The Cadillac continued across the road in front of him and he pulled behind it, turning on his blue lights and siren. Instead of stopping, the Cadillac driver “stomped on the gas,” and the chase ensued.

The prosecution presented evidence that, during the chase, gunshots were fired at three police cars at three different times. Officer Jones testified that, shortly after he began the chase, someone inside the car pointed a gun out of the front or back passenger side window at his patrol car and fired at him. This was the first shot fired during the chase, which formed the basis for the first aggravated assault charge of which Shorter was convicted. Jones slowed after the shot was fired, and an unmarked police car containing Officers Mason and Kailimai pulled behind the Cadillac.

Officer Mason testified about the second shot fired during the chase, which formed the basis of the other two aggravated assault convictions. Mason testified that, after his police car pulled behind the Cadillac, he saw someone lean out of the front passenger side of the Cadillac, then saw a muzzle flash and blue-gray smoke. Kailimai, who was driving, also saw someone hanging out of the front passenger side of the Cadillac and then saw Officer Mason recoil in his seat, though he did not see a weapon.

The chase continued on surface streets for a time, then proceeded onto Interstate 20. Now-retired GBI special agent House saw a blue Cadillac full of men come “flying by” him at about 100 mph on 1-20, followed closely by an Atlanta police car. House testified that as the police car pulled in front of him, he saw a puff of smoke from the Cadillac, which he recognized as coming from a firearm. This was the third shot fired during the chase, and formed the basis for the fourth aggravated assault charge of which Shorter was acquitted.

Shortly after the last shot was fired, the Cadillac left the interstate and hit a curb, flattening the front tires. Four men got out and began running in different directions. Officer Lester chased the driver of the car, whom he identified at trial as Shorter, into a wooded area. The two scuffled and exchanged gunfire before Shorter jumped a fence and disappeared. Sergeant Harty followed Lester and began canvassing the neighborhood. A resident told him that the door to her storage shed had been opened while she was gone, and gave him permission to search her house. Harty found Shorter hiding in a closet and arrested him. After his arrest, Shorter admitted that he owned the car, drove it during the chase, and tried to elude the police officers chasing him.

Decided August 17, 1999.

Gerard B. Kleinrock, for appellant.

J. Tom Morgan, District Attorney, Sheila A. Connors, Robert M. Coker, Assistant District Attorneys, for appellee.

Shorter argues the evidence raises serious doubt as to whether he was a party to the aggravated assaults on police officers Jones, Mason, and Kailimai, and further asserts he is guilty, at most, of obstruction. We find that ample evidence supports the jury’s conclusion that Shorter was guilty of these three aggravated assaults.

OCGA § 16-2-20 provides: “Every person [who intentionally aids or abets in the commission of the crime] is a party thereto and may be charged with and convicted of commission of the crime.” The record in this case shows that Shorter did not attempt to withdraw from the crime; on the contrary, he continued driving the vehicle while shots were fired from the car at least three times, and only stopped when he disabled his vehicle. These facts authorize the jury’s finding that Shorter committed aggravated assault. See Jackson, supra, 163 Ga. App. at 527 (affirming aggravated assault conviction when evidence showed defendant participated in armed robbery but did not fire or possess a gun). Because we find sufficient evidence supports Shorter’s convictions of aggravated assault on a police officer, we affirm them. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.


author: Phipps, Judge.

text:
    A99A1038.
    AL-MADINAH PETROLEUM, INC. v. MANJEE et al.
    (521 SE2d 681)
   Phipps, Judge.

Al-Madinah Petroleum, Inc., filed this complaint for breach of contract against Ashwin Manjee and Golden Deer Corporation. Al-Madinah seeks a total recovery of $180,000 consisting of $1,000 monthly payments allegedly owed under two contracts. The first is an agreement by Golden Deer to purchase a business owned by Al-Madinah but situated on premises owned by Phillips and leased to Al-Madinah; the second is an agreement between Al-Madinah, Golden Deer, and Manjee through which Al-Madinah assigned the lease to Golden Deer.

Manjee and Golden Deer claim that the purpose of the monthly payments was to ensure that Phillips received sums in addition to rent which the lease required Golden Deer to pay. Therefore, Manjee and Golden Deer maintain that their liability for the monthly payments terminated when the lease was canceled upon their acquisition of the underlying fee. Al-Madinah claims that the payments were consideration for Golden Deer’s purchase of the business and survive termination of the lease under the terms of the lease assignment agreement.

Although a bench trial was conducted, no testimony was heard. Instead, various factual representations were made by the attorneys and documents were submitted for the court’s consideration. In the event a contractual ambiguity was found to exist, the court agreed to consider additional evidence. See Thomas v. American Global Ins. Co., 229 Ga. App. 107, 109 (2) (a) (493 SE2d 12) (1997) (parol evidence admissible to explain an ambiguity in a written contract).

The trial court entered judgment in favor of Manjee and Golden Deer after concluding that (1) the $1,000 payments called for under the lease assignment agreement were rent payments; and (2) there was no longer any obligation to make such payments because the lease terminated by operation of law when Manjee and Golden Deer became owners of the underlying fee. On appeal, Al-Madinah complains about the court’s conclusions and entry of judgment without considering additional evidence.

In 1993, Al-Madinah bought a business known as Conoco Food Mart on premises owned by Phillips. Al-Madinah became assignee of a lease agreement which had been entered between Phillips and the original tenant in July 1986. The original term of the 1986 lease was from August 1, 1986, until December 31, 1996, but the lessee was granted a “successive option” to extend the lease for a period of ten years at the expiration of the initial term. From January 1, 1993, until December 31, 1996, rent was set at $1,800 monthly but was to escalate to $2,000 monthly from January 1,1997, until December 31, 2006. Rental payments were due on the first of each month. The lease also obligated the lessee to pay various sums in addition to rent (e.g., utilities, repairs and maintenance, insurance, and taxes).

In September 1994, Golden Deer purchased the assets of Conoco from Al-Madinah pursuant to a buy/sell agreement. It was stated in the buy/sell agreement and closing statement that the purchase price for the business assets was $185,000, consisting of $100,000 to be paid in cash at or before closing and an indebtedness of $85,000 under two promissory notes. Paragraph 19 of the buy/sell agreement, entitled “ [leasehold improvements,” obligated Golden Deer to pay Al-Madinah “additional rent” in the amount of “$1,200.00 per month or the difference between $3,000.00 and the rent to be paid to the landlord, whichever is less.” This additional rent was to “be paid by the 5th day of each month for the entire term of the lease including options if exercised.” The buy/sell agreement also contained a number of contingencies. One required Golden Deer to obtain a lease or lease assignment upon the same terms and conditions as the existing lease.

In October 1994, Al-Madinah entered a lease assignment agreement with Golden Deer and Manjee, who was not a party to the buy/ sell agreement. Because Manjee was not a United States citizen and had no green card, Phillips consented to the assignment only on the condition that Al-Madinah continue to be responsible for the obligations of the lessee. Under the lease assignment agreement, Golden Deer became assignee of the 1986 lease.

Paragraph one of the lease assignment agreement provides as follows:

As consideration for the assignment of the Lease Agreement, Golden Deer and Manjee, jointly and severally, agree to pay Al-Madinah . . . upon the fifth of each calendar month and throughout the term of the Lease Agreement the sum of [$1,200] each month beginning the fifth day of October, 1994, and continuing through the fifth day of December, 1996 and shall pay the sum of [$1,000] each month beginning January 5, 1997 and continuing until December 5, 2006.

Although the lease assignment agreement prohibited Golden Deer from assigning, subletting, mortgaging, or encumbering the lease agreement or property without Al-Madinah’s consent, it did not preclude Golden Deer from buying the property.

Golden Deer later sold Conoco and then, along with Manjee, purchased the underlying fee from Phillips’s estate after Al-Madinah declined to exercise a right of first refusal it was granted under the original lease. While all of these transactions were under discussion, on December 19,1997, Al-Madinah’s attorney sent a letter to Manjee. This letter was in reference to “Lease with Al-Madinah . . . Dated October, 1994.” The purpose of the letter was to notify Manjee that the “landlord” intended to give effect to the original strict terms of the lease, so that all future rental payments had to be received on or before the first of each month.

On December 31, Phillips’s estate canceled the lease because of the sale of the property to Manjee and Golden Deer. Al-Madinah then brought this suit because of Manjee’s and Golden Deer’s refusal to pay the $1,000 monthly payments required under paragraph one of the lease assignment agreement, beginning with the payment that came due on January 5, 1998. By amendment to the complaint, Al-Madinah claimed that Manjee and Golden Deer had committed an anticipatory breach of the lease assignment agreement by taking the position that it was invalidated by cancellation of the lease, and it asserted a claim for the entire $108,000 in monthly payments that would become due through December 31, 2006.

Allegations in the complaint and statements by counsel at the bench trial show the following. Paragraph one of the lease assignment agreement was a mechanism through which joint and several liability was imposed on Manjee and Golden Deer for the $1,000 monthly payments Golden Deer was required to pay under paragraph 19 of the buy/sell agreement. The December 1997 letter from Al-Madinah’s attorney to Manjee was a demand for these payments. Held:

Since paragraph 19 of the September 1994 buy/sell agreement and paragraph one of the October 1994 lease assignment agreement concern the same monthly payments to be made to Al-Madinah, these two paragraphs should be construed together. See OCGA § 24-6-3 (a); Duke v. KHD Deutz of America Corp., 221 Ga. App. 452, 453 (471 SE2d 537) (1996); Manry v. Hendricks, 66 Ga. App. 442, 453 (1) (18 SE2d 97) (1941). So construed, we interpret the two paragraphs to mean that Golden Deer and/or Manjee are only obligated to make the monthly payments until such time as the lease terminates, with the payments being either $1,200 or $1,000 depending upon whether the monthly rent is $1,800 or $2,000.

Moreover, under the first provision of paragraph one of the lease assignment agreement, Golden Deer and. Manjee agree to pay “throughout the term of the Lease Agreement” the specified monthly sums. The second provision states the payment is to be $1,200 from October 1994 until December 1996, and then $1,000 from January 1997 until December 2006. To the extent there is an inconsistency between these provisions, the former provision (requiring payment to be made during the term of the lease) would control over the latter (requiring payment to be made until 2006). See Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988) (a limited provision of a contract controls over one that is more broadly inclusive; further, the first of two contradictory contract clauses will prevail).

Therefore, the court did not err in entering judgment in favor of Manjee and Golden Deer without considering additional evidence. See Hearn v. Old Dominion Freight Lines, 172 Ga. App. 658, 659 (1) (324 SE2d 517) (1984). The judgment is affirmed under the right for any reason rule. Mine Chen v. Alexander Terry Assoc., 228 Ga. App. 345, 347 (491 SE2d 834) (1997).

Decided August 17, 1999.

Higgins & Dubner, Michael W. Higgins, for appellant.

A. Joseph Nardone, Jr., for appellees.

Judgment affirmed.

Blackburn, P. J., and Ellington, J, concur.


text:
    A99A1040.
    HUBBARD v. THE STATE.
    (521 SE2d 678)
   Phipps, Judge.

Following denial of his motion for new trial, Wayne Hubbard appeals his convictions of theft by receiving a stolen motor vehicle and possession of a motor vehicle with identification removed.

Lloyd Fielden’s 1986 Chevrolet Silverado pickup truck was stolen from his home in August 1996. Several days later, his son observed the vehicle in a restaurant parking lot. Although the “public” vehicle identification number (i.e., the one appearing under the windshield) did not match the vehicle identification number on his father’s truck, it appeared that the number on the truck had been altered.

After Hubbard entered the truck and drove it away from the restaurant, he was stopped by a police officer who had been alerted to the suspected status of the vehicle. The officer determined that the “confidential” vehicle identification number (i.e., the one concealed underneath the frame of the truck) did match the number on Fielden’s stolen truck.

Hubbard testified that an individual whom he knew as Jessie Hoskins offered to sell the truck to him for $3,000 and that he ultimately purchased it for $2,000. As proof, Hubbard produced a handwritten bill of sale witnessed by Billy Barnes. Barnes testified he had met Hoskins while camping, that Hoskins had introduced himself by another name and had attempted to sell the truck to him for $2,000, and that he acted as witness for the sale of the truck to Hubbard because Barnes had become involved with Hoskins in an interrelated financial transaction. Although both Hubbard and Barnes claimed that they had not met before this incident, evidence was presented by the State from which the jury could have found otherwise. This evidence showed that as early as 1995 Hubbard knew who Barnes was and where he lived, and had informed police that Barnes was in possession of a stolen motor vehicle.

To show Hubbard’s guilty knowledge, the State submitted similar transaction evidence showing that in 1989 the Cherokee County Sheriff’s Office conducted an investigation of an auto repair shop being operated by Hubbard. The investigator, Culver, found Hubbard in possession of vehicles with altered and missing vehicle identification numbers. Culver testified that other items and articles found on the premises indicated that Hubbard was operating a “salvage/swap” operation, i.e., a business which sells automobile salvage parts with vehicle identification numbers intact so that the numbers can be transferred to other vehicles to conceal their identity.

Individuals with long involvement in the automotive industry gave testimony showing that the fair market value of Fielden’s pickup truck was between $1,500 and $3,500.

1. Hubbard first contends that the trial court erred in denying his motion to disqualify and remove a juror who demonstrated overt hostility toward defense counsel during closing argument.

It appears from the transcript that counsel was standing extremely close to the jury and arguing in a loud tone, when he dropped a tablet into the jury box. The juror in question picked it up and returned it, whereupon counsel facetiously suggested that the juror might have stolen money from it. This juror and another on the panel took umbrage at counsel’s remark, and the juror to whom the comment was directed arose in anger and made inaudible comments. When counsel continued his closing argument in a loud voice while remaining in close proximity to the juror, the juror raised his fist to counsel. Counsel later sought the juror’s removal. The court refused to do so, but instructed the jurors that they should not be influenced in their deliberations by comments by either attorney which might have been considered personally offensive.

There is nothing inherent in the confrontation between counsel and the juror or, appearing from the record, which demonstrates that the juror became so hostile toward defense counsel that he could not fairly decide the question of Hubbard’s guilt or innocence. There is no merit in Hubbard’s argument that there arose a presumption of prejudice to the defense because “an irregularity in the conduct of a juror” was shown, thereby placing a burden on the prosecution to prove beyond a reasonable doubt that no harm occurred. McIntyre v. State, 207 Ga. App. 129, 130 (3) (427 SE2d 99) (1993). Such an irregularity has been found to exist in instances such as where there is an unauthorized communication between a juror and non-juror concerning the case, Lockridge v. State, 260 Ga. 528 (397 SE2d 695) (1990), or where jurors violate court instructions concerning communications between themselves. Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996). The juror here engaged in no such misconduct. He only made emotional responses to counsel’s provocative remark and courtroom style. Hubbard has not shown that the court abused its discretion in finding that the curative instruction was sufficient to remove any prejudice and that removal of the juror was not warranted. See generally McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991).

2. Hubbard contends that the court erred in denying his motion for directed verdict of acquittal.

The standard of review of the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). [Cit.] On appeal, the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. [Cit.] In addition, conflicts in the witnesses’ testimony are a matter for a jury to resolve. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld. [Cit.]

Holman v. State, 236 Ga. App. 111, 112-113 (1) (511 SE2d 240) (1999).

Adjudged by the foregoing principles, the evidence was sufficient to authorize the jury to find that Hubbard received stolen property under circumstances in which he knew or should have known that it was stolen, and that he was in possession of the stolen truck with knowledge that its vehicle identification number had been removed. See OCGA §§ 16-8-7; 40-4-22; Martin v. State, 160 Ga. App. 275, 276 (1) (287 SE2d 244) (1981).

3. Hubbard contends that the trial court erred in permitting Lloyd Fielden to testify that one of his neighbors had offered him $5,000 for his truck. He argues that admission of this testimony was prejudicial because the jury could have found that he knew or should have known the truck was stolen based on the difference between the $5,000 value of the truck and his purchase of it for $2,000.

The prosecuting attorney asked Fielden the value of the truck. On objection by the defense, the State was required to elicit testimony from Fielden that would lay a foundation for this testimony. In attempting to lay the foundation, Fielden testified that he was familiar with the approximate valuation of the truck because of the $5,000 offer by the neighbor. Hubbard objected on grounds that this testimony constituted hearsay and was not a proper part of the foundation the witness was attempting to lay. The court stated that it would reserve ruling, but shortly thereafter the prosecutor began questioning Fielden on a different subject, and a ruling on the admissibility of Fielden’s testimony concerning the neighbor’s offer was never invoked.

Decided August 17, 1999.

Herbert Shafer, for appellant.

Garry T. Moss, District Attorney, Scott T. Poole, Allen D. Morris, Assistant District Attorneys, for appellee.

Any objection to admission of this testimony was thus waived when the court reserved ruling on its admissibility and counsel for defendant failed to invoke a final ruling thereon. Bacon v. Federal &c. Assn., 169 Ga. App. 538, 539 (2) (313 SE2d 727) (1984); see Vun Cannon v. State, 208 Ga. 608, 611 (2) (68 SE2d 586) (1952). Moreover, in view of the other evidence on the question of the truck’s value and Hubbard’s guilty knowledge, we find it highly probable that admission of this testimony did not contribute to the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

Judgment affirmed.

Blackburn, P. J, and Ellington, J., concur.


text:
    A99A1052.
    MORGAN v. AMERICAN INSURANCE MANAGERS, INC. et al.
    (521 SE2d 676)
   Blackburn, Presiding Judge.

In this action concerning the viability of a contract for employment, Norman W. Morgan appeals the trial court’s order granting summary judgment to both American Insurance Managers, Inc. (AIM) and David Dennett-Smith, contending that the trial court erred by: (1) ruling the statute of frauds barred Morgan’s oral employment agreement with AIM; (2) improperly construing deposition testimony on AIM’s motion for summary judgment; and (3) failing to consider facts and law concerning Morgan’s part performance of the alleged employment agreement. Based on Morgan’s own testimony, we find that the employment agreement falls within the statute of frauds and affirm the trial court’s grant of summary judgment.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . Our review is de novo.

(Citations and punctuation omitted.) Brown v. Brewer, 237 Ga. App. 145, 146 (513 SE2d 10) (1999).

Viewing the evidence in favor of Morgan, the nonmovant, the record reveals that Morgan sought employment with AIM’s Medical Stop Loss (MSL) Division on May 26, 1992. After negotiating with Dennett-Smith, AIM’s President, Morgan and AIM entered into an oral employment agreement to begin June 1, 1992.

Morgan agreed to work for AIM in return for AIM’s promise to provide him with an annual salary of $120,000, an automobile allowance of $950 per month, and a bonus equal to ten percent of annual MSL Division profits pursuant to a twelve-month rolling agreement. Pursuant to the oral agreement, Morgan reported to work on June 1, 1992, and continued to work until he was terminated on May 23, 1994.

When AIM terminated Morgan, it paid him his salary and auto allowance to date, and gave him one month’s salary as severance pay. Morgan did not receive any bonuses. He contends that AIM owes him salary for 11 months and automobile allowance for 12 months pursuant to the 12-month rolling agreement, as well as unpaid bonuses for partial year 1992, full year 1993, and partial year 1994.

1. Morgan claims the trial court erred in ruling that his employment agreement with AIM is barred by the statute of frauds. We disagree.

The common law statute of frauds codified in Georgia states:

To make the following obligations binding on the promisor, the promise must be in writing and signed by the party to be charged therewith or some person lawfully authorized by him: ... (5) Any agreement that is not to be performed within one year from the making thereof.

OCGA § 13-5-30 (5).

Morgan deposed that the agreement entitled him “to be [employed] for the next 12 months” in exchange for “each day [he] show[ed] up for work” and that, in the event of termination, he was entitled to receive compensation “for the next 12 months.” According to this testimony, Morgan’s alleged contract could, at its minimum duration, be performed in a year and a day. Thus, Morgan’s own interpretation of the 12-month rolling agreement renders the agreement an employment contract impossible of being performed in one year, and therefore, subject to the statute of frauds.

An oral employment contract for a definite term not to be performed within one year, such as the one we have here, is within the statute of frauds. Therefore, the trial court neither erred in construing the deposition testimony nor did it err in finding that Morgan’s enforcement of the alleged oral employment contract with AIM is barred by the statute of frauds.

2. Alternatively, Morgan contends that, because he partially performed under the oral agreement, the agreement should be excepted from the statute of frauds. “Where there has been such part performance of the contract as would render it a fraud of the party refusing to comply if the court did not compel a performance,” the statute of frauds does not apply. OCGA § 13-5-31 (3).

[The p]art performance required by OCGA § 13-5-31 (3) to obviate the statute of frauds must be substantial and essential to the contract. Thus, oral employment contracts for longer than one year are unenforceable unless there has been part performance that is consistent with the presence of a contract and inconsistent with the lack of a contract.

(Citations and punctuation omitted.) Ikemiya v. Shibamoto America, 213 Ga. App. 271, 273 (444 SE2d 351) (1994).

In this case, the activity performed by Morgan as an employee with the MSL Division of AIM, merely showing up for work on a daily basis, does not support his contentions regarding the terms of the oral contract he is now seeking to enforce, namely his severance package and bonuses. Therefore, his acts were not sufficient acts to establish part performance and remove this agreement from the statute of frauds because his activities with the MSL Division are not inconsistent with employment terminable at will without an express contract. Id.

As the enforcement of Morgan’s alleged oral employment contract with AIM is barred by the statute of frauds, no material issues of fact remain for trial. Therefore, we hold that summary judgment was appropriate and, accordingly, we affirm.

Judgment affirmed.

Barnes and Ellington, JJ, concur.

Decided August 17, 1999.

Greer, Klosik & Daugherty, Jeffrey F. Leasendale, for appellant.

Rogers & Hardin, Daniel McGinnis, Phillip S. McKinney, for appellees.

       Although the original agreement provided Morgan an annual bonus of ten percent of the MSL Division profits, Morgan and AIM agreed that he would receive five percent of the profits for 1992 since he started work in June of that year. Morgan’s ability to recover bonuses for 1992 was not raised in the defendant’s motion for summary judgment and is not before us on appeal.