text:
    A99A1196.
    MAXEY v. THE STATE.
    (521 SE2d 673)
   Blackburn, Presiding Judge.

James Alfred Maxey appeals his conviction, following a jury trial, of burglary. Maxey contends that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in denying his motion in autrefois convict and plea of former jeopardy; and (3) the trial court erred in admitting similar transaction evidence. For the reasons set forth below, we affirm Maxey’s conviction.

1. As we have held:

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). ... 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.

(Citations and punctuation omitted.) Eason v. State, 234 Ga. App. 595, 596 (1) (507 SE2d 175) (1998).

At trial, the victim testified that, as she was entering her home around 10:15 p.m., she looked into the house through a window and saw a man, whom she later identified as Maxey, walking down the hall. The victim dropped her car keys and the groceries she was carrying and ran toward her neighbor’s house. Before she got to her neighbor’s house, she heard her car engine start and watched Maxey drive her car away. Upon returning to her house, she noticed that a window and glass door had been broken. The victim also reported that a checkbook was taken from her house.

Under these facts, a rational trier of fact could have found Maxey guilty beyond a reasonable doubt of burglary. See Jackson v. Virginia, supra.

2. Maxey contends that the trial court erred in denying his motion in autrefois convict and plea of former jeopardy. Maxey asserts that, as he previously pled guilty in Fulton County to theft by receiving the victim’s stolen car, any attempt to secure a criminal conviction on the present burglary charge in DeKalb County would violate his right against double jeopardy. The State agreed that it would be collaterally estopped from charging Maxey with the theft of the vehicle because he had already been convicted of theft by receiving the same car. The State maintained, however, that the burglary had been completed by the time Maxey took the car.

Maxey contends that by accepting his guilty plea to receipt of the victim’s automobile, the Fulton County trial court determined that someone else had burglarized the victim’s home. Maxey argues that the State is collaterally estopped from presenting a case against him contrary to the position found by the Fulton County court. Maxey erroneously relies on Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270) (1977) in support of his position. In Clark, the defendant was convicted in Gwinnett County of possession of a check-writing machine, “ ‘knowing said property was stolen, said property not having been retained with intent to restore it to the owner.’ ” Id. at 69. This Court reversed his later conviction in Cobb County for the burglary in which the check-writing machine was taken. We determined that “[t]he essence of the crime of receiving stolen property is that the defendant, with knowledge of the facts and without intent to return it to the owner, bought or obtained property which had been stolen by some person other than the defendant.” Id. at 70. We held that the State was collaterally estopped from attempting to relitigate whether the defendant had committed the burglary.

The present case, however, is distinguishable from Clark, supra. Herein, the evidence reveals that Maxey committed the burglary of the victim’s home, i.e., entering the victim’s home with the intent to commit felony therein, see OCGA § 16-7-1, prior to taking the victim’s vehicle. In fact, when Maxey broke into the victim’s home, the car was not there. Furthermore, the evidence revealed that Maxey took a checkbook from the victim’s home. In other words, the burglary was completed prior to the theft of the vehicle. The indictment charged that Maxey “without authority and with intent to commit a theft therein, did enter and remain in the dwelling of [the victim].” “It is clear that burglary in [DeKalb] County is not a crime for which the defendant could either have been charged or convicted on the former prosecution in Fulton Superior Court.” State v. Bolton, 144 Ga. App. 797, 799 (1) (242 SE2d 378) (1978). See also OCGA § 16-1-8. The trial court did not err in denying Maxey’s motion in autrefois convict and plea of former jeopardy.

3. Maxey contends that the trial court erred in allowing similar transaction evidence of a burglary to which Maxey pled guilty that occurred after the crime charged in the present indictment. Maxey contends that the similar transaction was not sufficiently similar to the crime charged herein.

In the present case, the State sought to introduce the similar transaction evidence to prove Maxey’s intent and bent of mind. The evidence relating to the similar transaction revealed that the day after the burglary charged in the present indictment occurred, Maxey broke into an apartment while the owner was gone by pushing a sliding glass door out of its frame with a vehicle. Maxey then took a phone and a television set.

Evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion. Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). It must be established that the State wishes to introduce evidence of the independent offense for an appropriate purpose; that the defendant committed the independent act; and that the independent act and the act for which the accused is being tried have a sufficient connection or similarity that proof of the former tends to prove the latter. The law does not require that... a similar transaction . . . crime be identical to the crime charged. There can be a substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. . . . [The State] may only have the burden of showing a logical connection between crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity.

Decided August 17, 1999.

Julie D. Herrin, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

(Punctuation omitted.) Mangham v. State, 234 Ga. App. 567, 569 (1) (507 SE2d 806) (1998).

Here, the State introduced the similar transaction evidence for the purpose of proving intent and bent of mind. As a logical connection existed between the two independent burglaries perpetrated within 24 hours of each other, we cannot say that the trial court abused its discretion in allowing the presentation of the similar transaction evidence. See Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998) (the decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion).

Judgment affirmed.

Barnes and Ellington, JJ, concur.

       OCGA § 16-1-8 pertinently provides that:
      (a) A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal. . . . (b) A prosecution is barred if the accused was formerly prosecuted for a different crime or for the same crime based upon different facts, if such former prosecution: (1) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime of which the accused could have been convicted on the former prosecution, is for a crime with which the accused should have been charged on the former prosecution ... , or is for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required on the other prosecution or unless the crime was not consummated when the former trial began.


source: Caselaw Access Project

author: Blackburn, Presiding Judge.

license: Public Domain

text:
    A99A1445.
    MILES v. SMITH.
    (521 SE2d 687)
   Blackburn, Presiding Judge.

Sid Miles, the Commissioner of the Georgia Department of Public Safety, appeals the superior court’s order reversing an administrative law judge’s decision to suspend Ronald S. Smith’s driver’s license. Although the superior court found “no merit” to Smith’s petition for review of the administrative decision, the court nevertheless reversed that decision because the ALJ “improperly admitted and considered hearsay evidence at trial.”

1. As we have held:

A superior court, when reviewing a DPS decision, sits only as an appellate court. The decision of DPS shall be affirmed so long as there is “any evidence” to support it. Miles v. Carr, 224 Ga. App. 247 (480 SE2d 282) (1997); Bowman v. Palmour, 209 Ga. App. 270 (1) (433 SE2d 380) (1993). The superior court “shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.” OCGA § 50-13-19 (h). Hardison v. Fayssoux, 168 Ga. App. 398, 401 (309 SE2d 397) (1983). When reviewing a superior court’s order in a case under the Administrative Procedure Act, this Court’s function “‘is to determine whether the . . . superior court has in (its) own final ruling committed an error of law.’ (Cit.)” Miles v. Carr, supra; DeWeese v. Ga. Real Estate Comm., 136 Ga. App. 154,155 (1) (220 SE2d 458) (1975).

Miles v. Andress, 229 Ga. App. 86 (493 SE2d 233) (1997).

In this case, the superior court reversed the holding of the ALJ even though it determined that there was no merit to the claim, because hearsay evidence was admitted at the hearing. In a case where the factfinder is a judge, we assume the judge considers the evidence only for proper purposes and sorts out that which is admissible from that which is not. See Lyles v. State, 221 Ga. App. 560, 562 (3) (472 SE2d 132) (1996); Foster v. Continental Cas. Co., 141 Ga. App. 415, 418 (6) (233 SE2d 492) (1977). There must have been some admissible evidence to support the ALJ’s decision. Where there was other admissible evidence supporting the holding, the “any evidence” standard requires that the case be affirmed. Reviewing this case under the standard set forth above, we find as follows:

In this case, DPS sought to suspend Smith’s license by showing that he refused to submit to a state-administered alcohol test following his arrest for DUI. In reviewing Smith’s driver’s license suspension, the ALJ had to determine whether Smith had been under physical control of the car, whether Smith had been arrested for DUI, and whether, at the time of the request for the test or tests, that Deputy Tabb informed him of his implied consent rights and the consequence of submitting or refusing to submit to such tests. OCGA § 40-5-67.1; Miles v. Wells, 225 Ga. App. 698 (484 SE2d 720) (1997).

The evidence presented at the administrative hearing showed that Deputy W. T. Tabb responded at 1:07 a.m. to the scene of a one-car accident'and found Smith sitting in a ditch next to his overturned car. Smith told the deputy he was the only occupant in his car at the time of the incident. Deputy Tabb testified that Smith had minor injuries and refused treatment by the responding EMT. Also, Smith smelled of alcohol. Deputy Tabb read Smith the statutory implied consent warnings and asked Smith to submit to an Intoximeter 5000 alcohol test at the Grady County Sheriff’s Department. Smith agreed. When they arrived at the sheriff’s department, Deputy Tabb set up the Intoximeter 5000. Just as the deputy was ready to administer the test, Smith suddenly began complaining of chest pains. A responding EMT found nothing wrong with Smith, and Deputy Tabb attempted to administer the test a second time. Smith, however, grasped his back and legs and complained that he was in excruciating pain. Deputy Tabb testified that Smith told him he was not refusing to take the test but that he was expressing a need for medical attention. Just before they left for the hospital, Deputy Tabb suggested a blood-alcohol test be conducted at the hospital, and Smith agreed. When they arrived at the hospital emergency room at about 3:20 a.m., Deputy Tabb again read Smith his implied consent warnings and asked Smith if he would submit to a blood-alcohol test. Again, Smith agreed. However, when the hospital personnel arrived to take the blood sample, Smith told them that “they were not to treat him and were not to take anything out of his body or place anything in his body; and that he refused treatment and requested to be transferred to another hospital.” When the deputy asked Smith if he was refusing the blood test, Smith said “no.” However, when the hospital personnel attempted for the second time to take a blood sample, Smith refused to let them do it. Smith testified that he had not refused the test, but he had wanted to go to a hospital that could accommodate his rare blood type, because he thought he had internal bleeding. Deputy Tabb, however, was never told of this concern by either the hospital staff or by Smith.

At 4:18 a.m., Deputy Tabb gave Smith a citation for refusing the requested state-administered tests. Although the deputy gave Smith a breath test with an alco-sensor device, that test was requested by the doctor to determine whether Smith was too intoxicated to refuse medical treatment. The deputy testified that he never made any statement that would have led Smith to believe that the alco-sensor test was the State’s designated choice in a requested blood-alcohol test. After receiving an x-ray, Smith went home. He never sought emergency treatment at another hospital for his feared internal bleeding.

In light of these facts, all of which are based upon Deputy Tabb’s personal observations, we conclude that the ALJ’s decision was supported by the evidence. See Miles v. Wells, supra. Although Smith never expressly said “I refuse to take your test,” the ALJ was authorized to interpret Smith’s actions as an effective refusal, especially since Smith’s injuries were minor and his actions could be interpreted as manipulating events to delay the test until he had metabolized the alcohol in his system. Finally, the evidence to which Smith objected, Deputy Tabb’s recounting of the eyewitness’ statements that Smith was the sole occupant of the wrecked car, was harmless because it was highly improbable that it contributed to the ALJ’s decision. Lyles v. State, supra.

Decided August 17, 1999.

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Senior Assistant Attorney General, for appellant.

Ronald S. Smith, pro se.

2. Based on our decision in Division 1, DPS’s remaining enumeration of error is rendered moot.

Judgment reversed.

Barnes and Ellington, JJ, concur.


text:
    A99A1506.
    AVERY v. CLEVELAND AVENUE MOTEL, INC.
    (521 SE2d 668)
   Blackburn, Presiding Judge.

In this slip and fall action, Margaret S. Avery appeals the grant of summary judgment to Cleveland Avenue Motel, Inc., contending that the trial court erroneously found that the defendant had no constructive knowledge of the frayed carpeting and loose handrail which she claims caused her fall. For the reasons set forth below, we reverse.

In determining whether the trial court properly granted summary judgment, we review the record evidence de novo to determine whether that evidence, with all inferences construed in [Avery’s] favor, showed as a matter of law that [Cleveland Avenue Motel] was entitled to summary judgment.

(Citation and punctuation omitted.) Edwards v. Ingles Market, 234 Ga. App. 66 (506 SE2d 205) (1998).

Viewing the evidence in this light, the record shows that Avery was staying at a Days Inn owned by Cleveland Avenue Motel in October 1994. As Avery approached a set of stairs, her heel caught against the floor, and she began to fall. She grabbed for a rail, and, although it appeared to be firm at the top of the stairwell, it became disconnected from the wall at the bottom. Avery believed that her fall was caused by worn and frayed carpeting which she noticed at the top of the stairwell subsequent to her fall; however, Avery testified that she was not actually certain what caused her to fall.

1. As an initial matter, Cleveland Avenue Motel argues that the trial court properly granted its motion for summary judgment because Avery could only speculate about the cause of her fall.

“On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.” (Citations and punctuation omitted.) Head v. Sears Roebuck & Co., 233 Ga. App. 344, 345 (503 SE2d 354) (1998). See Sharfuddin v. Drug Emporium, 230 Ga. App. 679, 682-683 (3) (498 SE2d 748) (1998). Likewise, “it is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence.” (Citations and punctuation omitted.) Head, supra at 346.

Christopher v. Donna’s Country Store, 236 Ga. App. 219 (511 SE2d 579) (1999).

Based on this principle, we agree that Avery’s admitted speculation that she initially may have tripped on worn carpeting does not sufficiently establish causation.

2. On the other hand, Avery’s testimony regarding the defective handrail sufficiently raises a jury question whether the handrail contributed to her fall.

[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

Robinson v. Kroger Co., 268 Ga. 735, 748-749 (493 SE2d 403) (1997). There is no evidence that Cleveland Avenue Motel had actual knowledge of the defects in its stairwell; however, Avery claims that it did have constructive knowledge.

Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable inspection program in place, but that such program was actually carried out at the time of the incident. [Cleveland Avenue Motel] contends that, regardless of whether reasonable inspection procedures were followed on the day in question, it is entitled to summary judgment because plaintiff failed to show how long the [handrail] had been [loose] before the fall. Although this Court has in the past rendered conflicting decisions on [similar] issue [s], we emphatically rejected [such a] position in a recent ten-judge decision, holding that in order to withstand a motion for summary judgment, a plaintiff need not show how long a [hazard has been present] unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. Accordingly, the determinative question in this appeal is whether, viewed in the light most favorable to plaintiff! ], the evidence shows that [Cleveland Avenue Motel] followed reasonable inspection procedures at the time of the incident.

Decided August 17, 1999.

Jack K. Bohler, for appellant.

Hicks, Casey & Barber, Timothy K. Hall, for appellee.

(Citations and punctuation omitted.) Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999).

Cleveland Avenue Motel indicated that the walkways of the Days Inn were swept daily in the morning and “re-checked” in the afternoon. In addition, other hotel employees were instructed to pick up any debris they might encounter while performing their duties. Although Cleveland Avenue Motel’s representative stated that these procedures were in place on the date of Avery’s fall, no evidence was produced which showed the actual times of such inspections, and there was no evidence that the railings in the stairwell were ever inspected. Furthermore, when asked to produce documentation detailing the inspection procedures performed on the day of Avery’s fall, Cleveland Avenue Motel stated that no such documentation could be found. Accordingly, Cleveland Avenue Motel failed to sufficiently establish that procedures were in place to inspect the stair railings.

Therefore, we reverse the trial court’s grant of summary judgment to Cleveland Avenue Motel with regard to its liability relating to the stair railings.

Judgment reversed.

Barnes and Ellington, JJ, concur.


author: Smith, Judge.

text:
    A99A0630.
    CRUMP v. MCDONALD.
    (520 SE2d 283)
   Smith, Judge.

This appeal arises from one of several actions involving the probate of the will of Gussie Butler, who died in May 1993. At her death, Butler owned realty consisting of a house, a farm, and a lot in Mitchell County, as well as certificates of deposit and accounts at the Bank of Camilla and other personalty, including furniture and jewelry. Her will named her siblings, H. P. Butler and Eloise McDonald, as beneficiaries. Named as co-executors were Eloise’s son, E. Butler McDonald (hereinafter “McDonald”), and H. P. Butler. In November 1993, H. P. Butler filed a renunciation of his inheritance; his daughter, Penny Butler Crump, is his sole lineal heir. Eloise McDonald, the other heir, is incapacitated, and a guardian ad litem represents her interest.

In October 1994, McDonald filed a petition to remove H. P. Butler as his co-executor; it was denied. Another action was filed by McDonald against H. P. Butler to recover certain farm equipment and proceeds from farming operations and the sale of cattle in 1992 and 1993. That litigation apparently has not yet been concluded. In August 1995, Crump filed a petition in the Probate Court of Mitchell County to remove both her father and her cousin as co-executors, alleging waste and mismanagement, and requesting that the court appoint an independent executor. Before Crump’s petition was heard or ruled on, H. P. died, leaving McDonald as sole executor. After a hearing, the probate court denied Crump’s petition, and she appealed to the Superior Court of Mitchell County.

In the superior court a jury trial was held, and Crump’s motion for directed verdict was neither granted nor denied. The trial court simply left it “open,” and the jury returned a special verdict finding that McDonald should not be removed as executor. The motion was then denied. To perfect the record, Crump filed a motion for judgment notwithstanding the verdict, or in the alternative for a new trial, which was also denied. Crump appeals, contending the trial court erred in denying her motions for directed verdict and j.n.o.v., in its failure to give a requested jury charge, and in denying her motion for new trial. We find no error, and we affirm the judgment below.

1. Crump contends the trial court erred in denying her motions for directed verdict and j.n.o.v. Relying upon Lokey v. Lokey, 82 Ga. App. 171, 173 (2) (60 SE2d 569) (1950), she argues that when a fiduciary admits facts showing a breach of fiduciary duty, a directed verdict is proper. While agreeing with this general statement, we do not agree that was the case here.

The standard for granting motions for directed verdict and for j.n.o.v. is the same. Richards v. Wadsworth, 230 Ga. App. 421, 422 (1) (496 SE2d 535) (1998). They may be granted only when no conflict exists in the evidence and the evidence presented, with all reasonable inferences therefrom, demands a particular verdict. OCGA § 9-11-50 (a). On appeal, the standard of review is “any evidence.” This court must therefore view the evidence presented at trial and determine whether some evidence supported the jury’s verdict. In doing so, we must view the evidence in the light most favorable to the party for whom the verdict was rendered. Richards, supra.

Applying those principles, we find that some evidence presented at trial supported the special verdict returned by the jury. Crump did present evidence of mismanagement by McDonald. She showed, for instance, that McDonald never inventoried nor appraised any of the estate’s personalty; filed an estate income tax return late, causing the estate to be charged penalties and interest; withheld information necessary to value the estate for estate tax purposes from the estate’s accountant for five years despite several requests; deeded Butler’s house and two acres of land to his incapacitated mother, but renovated it for his personal use while paying for utilities, lawn care, and insurance from estate funds; maintained the estate’s cash in low-interest passbook savings accounts at the Bank of Camilla, of which he is an officer, shareholder, and director; failed to keep basic records concerning his actions as executor; failed to provide an accounting of the estate to Crump despite repeated requests; and engaged in various acts of self-dealing.

Some of these allegations were indeed admitted by McDonald. But he also offered various explanations which, if believed, tempered the incriminating nature of the admissions. The jury heard these explanations, and it apparently believed them.

For instance, McDonald testified that he did not comply with the accountant’s request for information to be used in valuing the estate because in his opinion, the estate’s value would not reach $600,000, the threshold for filing an estate tax return. He stated he did not understand Butler’s will to require that he give an accounting to beneficiaries until the estate was closed. He testified that he paid for maintaining and insuring Butler’s house even after deeding it to his mother because some of the contents of the house were estate property, and Crump refused to travel to Camilla from her home in Marietta although he had asked her to do so on several occasions, so that this personalty could be divided. He explained that the estate income tax returns were filed late because H. P. Butler, his co-executor before his death, would not sign the returns. He also introduced into evidence a printout showing all the expenses and receipts of the estate since his appointment as executor. Because we are mandated to view the evidence presented in the light most favorable to McDonald, we are constrained to conclude that some evidence supports the jury’s verdict.

Moreover, even if the jury concluded that McDonald breached his fiduciary duty, it had discretion to find that he should remain as executor. Former OCGA § 53-7-148, which was in effect at the time McDonald was appointed executor and at the time the probate court ruled on Crump’s petition, provided that upon investigation of the actions of an administrator or executor, the judge of the probate court “may, in his discretion,” revoke letters of administration or letters testamentary or take several other actions. Former OCGA § 53-7-148 (l)-(4). OCGA § 53-7-55, effective January 1, 1998, carries forward the provisions of former OCGA § 53-7-148, providing that the probate court “may, in the court’s discretion,” revoke the letters of an executor or administrator upon investigation after a petition to remove is filed, may take other specified action, or may “[i]ssue such other order as in the court’s judgment is appropriate under the circumstances of the case.” OCGA § 53-7-55 (l)-(4). Upon appeal to superior court, the probate court’s discretion is exercised by the jury. Patterson v. Patterson, 208 Ga. 17, 22 (2) (64 SE2d 585) (1951); Shackelford v. Whatley, 172 Ga. App. 127, 128 (1) (322 SE2d 331) (1984). It is therefore apparent that “[w]here the personal interests of the representative of an estate conflict with the interests of the estate it is within the discretion of the probate judge, or in the discretion of the jury or judge acting as jury on appeal, to remove the representative. [Cits.]” Wardlaw v. Huff, 259 Ga. 1, 2 (2) (376 SE2d 366) (1989). See also Nesmith v. Pierce, 226 Ga. App. 851, 852 (1) (487 SE2d 687) (1997). And although courts have the power to remove an executor, they “are reluctant to exercise it when no strong case therefor is shown. [Cits.]” Patterson, supra.

Indeed, Lokey v. Lokey, relied upon by Crump, recognizes this very discretion. In Lokey, we noted that the superior court charged the jury:

Now, gentlemen, you have noticed in this charge I have given you the statement that you would be authorized to remove the administrator. I wish to emphasize that statement. It does not mean that you are directed to remove him. It is in your discretion, gentlemen, whether you will or will not remove the administrator, even if any or all of those acts charged have been proven, that being entirely a matter for you.

Id. at 174 (3). Citing the predecessor statute to former OCGA § 53-7-148, we held that removal and other measures were within the jury’s discretion. Id. at 175 (3). Because removal of McDonald was within the jury’s di scretion but was not mandated, given the evidence in this case, the trial court properly denied Crump’s motions for directed verdict and j .n. o.v.

2. Citing Holsenbeck v. Arnold, 75 Ga. App. 311 (43 SE2d 348) (1947), Crump enumerates as error the trial court’s refusal to give a portion of one of her requested jury charges. The omission complained of would have instructed the jury that “[t]he failure of an executor to make [an] inventory is an omission of duty and puts on him the burden of proving to the jury that he has discharged the duty of his trust with fidelity.”

The trial court charged the jury in this case that unless the will provided otherwise, the executor must prepare an inventory of all the property of the decedent, file it with the probate court, and mail a copy to the beneficiaries within six months after qualifying. The court read to the jury the provision in the will relieving the executors “from making any reason or accounting to the Court,” adding that the will “did not relieve the executors from accounting to the beneficiaries. The executors, by law, would be required to comply with all requirements of Georgia law, except that they were relieved from giving bond and from making any reason or accounting to the Court.”

The court’s charge was a correct statement of the law. In Holsen-beck, this court approved a charge instructing the jury that “[t]he neglect of an administrator to return a correct inventory and appraisal shall be held as sufficient ground for removal” and that the failure to do so was “ ‘an omission of duty ” placing upon the administrator the burden of proving the discharge of duty with fidelity. Id. at 313 (4). But this case does not involve an administrator; McDonald was an executor. While an administrator must make an inventory and appraisal, an executor may be relieved from doing so by the testator in the will, as charged by the trial court. Had the trial court given the last sentence of the requested charge, the jury would have been left with the impression that McDonald was required to make an inventory. It was for the jury to decide whether the provision in the will relieving the executors from making “any reason or accounting to the Court” relieved them from making an inventory. The trial court did not err in failing to give this portion of the requested charge.

3. Crump raises the general grounds in contending that the trial court erred in denying her motion for new trial, arguing that in addition to the error in charging, the motion should have been granted because the verdict was “contrary to evidence and justice” and “decidedly and strongly against the weight of the evidence.” In reviewing a verdict after the denial of a motion for new trial,

we follow well-established principles. "Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of [the] motion for . . . new trial will not be disturbed.

Decided July 6, 1999

Reconsideration denied July 28, 1999.

Cannon, Meyer von Bremen & Goss, Stephen S. Goss, for appellant.

Perry & Walters, Robert K. Raulerson, for appellee.

(Citations and punctuation omitted.) MARTA v. Green Intl., 235 Ga. App. 419, 420 (1) (509 SE2d 674) (1998).

Because some evidence supported the jury’s verdict, we cannot say the trial court abused its discretion in denying Crump’s motion for new trial. We are therefore constrained to affirm the judgment.

Judgment affirmed.

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


author: Andrews, Presiding Judge.

text:
    A99A0806.
    NEALY v. THE STATE. MAHMOUD v. THE STATE. GRANT v. THE STATE.
    A99A0807.
    A99A0808.
    (522 SE2d 34)
   Andrews, Presiding Judge.

Mike Nealy, Abdul Jalal Mahmoud, and Shawn Grant were jointly indicted for two counts of armed robbery and jointly tried before a jury. All three defendants were found guilty on both counts and filed separate appeals, which have been consolidated for review.

All three defendants were charged in a single indictment with the same two counts of armed robbery. Count 1 charged that, by intimidation and the use of a handgun, the defendants stole two gold chains, a watch, and $290 from Levelle Hagins. Count 2 charged that, by intimidation and the use of a handgun, the defendants stole an undetermined amount of money from Tony Matthews.

In support of the allegations in the indictment, the State presented evidence that Hagins and Matthews were robbed at gunpoint by Nealy, Mahmoud, and Grant. Hagins testified that, as he and Matthews were walking together, Grant approached, pointed a handgun at them, and detained them at gunpoint while $290, gold chains, and a watch were stolen from Hagins and a sum of money was stolen from Matthews. Hagins further testified that, while Grant held a gun, Mahmoud took the money from him and Matthews, and that Nealy stood a short distance away acting as a lookout and shouted to Grant and Mahmoud, “They just got paid. And make sure you get all they [sic] money.” Matthews also testified that Grant held a handgun as he and Hagins were robbed, that Mahmoud and Nealy participated, and that all three defendants ran off together after the robbery. Both victims positively identified all three defendants as the robbers in pretrial lineups. As similar transaction evidence, the State also presented testimony that Nealy and Mahmoud had committed similar armed robberies. None of the defendants testified at the trial.

Case No. A99A0806

1. Nealy claims the trial court erred in admitting evidence of his participation in three prior armed robberies as similar transaction evidence because of lack of sufficient similarity to the armed robbery at issue. Because no objection was made at the time the similar transaction evidence was admitted at trial, this claim of error was waived. Hunter v. State, 202 Ga. App. 195, 196-197 (413 SE2d 526) (1991). In any event, the three prior armed robberies were sufficiently similar. In all three prior armed robberies the victims testified that they were robbed at gunpoint by Nealy on the street in the same neighborhood as the present robbery.

2. Contrary to Nealy’s assertion, the trial court did not err in failing to give a limiting instruction on similar transaction evidence when it was admitted. In the absence of a request for such instruction, none was required when the similar transaction evidence was admitted. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

3. Nealy claims he was prejudiced and should have been granted a new trial because of ineffective assistance of counsel.

The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective . . . counsel. Black v. State, 264 Ga. 550 (448 SE2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 (440 SE2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In determining whether or not counsel’s performance was deficient under the first prong, a court must measure counsel’s performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).

Parker v. State, 220 Ga. App. 303, 306-307 (469 SE2d 410) (1996). Applying these standards, we find no merit in Nealy’s claims that he was denied effective assistance of counsel.

Nealy asserts his trial counsel was ineffective because he failed to move to sever his trial from the trial of his co-defendants. Nealy claims he was entitled to a severance because his co-defendants were entitled in the joint trial to impeach him on cross-examination with his pending charges for rape and child molestation, and therefore the joint trial improperly forced him to give up his Fifth Amendment right to testify in his own behalf to avoid being impeached with the pending charges.

Even if Nealy had elected to testify in his own behalf at the trial and was subject to cross-examination by his co-defendants, the use of pending charges (as opposed to a prior conviction) would not have been a proper method of impeachment. Williams v. State, 257 Ga. 761 (363 SE2d 535) (1988); Syfrett v. State, 210 Ga. App. 185, 187 (435 SE2d 470) (1993); compare Thomas v. State, 199 Ga. App. 586, 588-591 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992) (even where defendant seeks to cross-examine co-defendant with prior conviction, trial court retains wide latitude to impose limits on cross-examination). Since Nealy’s Fifth Amendment rights were not abridged by the joint trial, there is no basis to conclude trial counsel was ineffective in failing to move for severance on this basis. See Dennard v. State, 263 Ga. 453, 455 (435 SE2d 26) (1993).

Nealy claims trial counsel was ineffective because counsel had a hearing impairment which prevented him from hearing the witnesses at trial and prevented effective communication between counsel and defendant. Trial counsel testified at the motion for new trial that, with the benefit of hearing aids which he wore during the trial, he was able to hear without trouble and communicate effectively with Nealy. The trial judge, who had the opportunity to observe trial counsel during the trial, concluded that there was no merit to this contention. We find no error in this conclusion.

Nealy contends trial counsel failed to adequately investigate the case. Trial counsel testified that he interviewed Neaiy on eight or ten occasions prior to trial and that his investigator also inquired into the facts of the case and interviewed witnesses. Even if trial counsel could have conducted a more complete investigation, we find no basis to conclude that the investigation fell below an objective standard of reasonableness.

. There is no merit in Nealy’s claim that trial counsel was ineffective for failing to assert prior to trial that the victims in the three prior similar transaction armed robberies failed to identify Nealy as the armed robber. In all three similar transactions, the victim positively identified Nealy as the robber.

4. Nealy contends the trial court erred by denying his motions for a mistrial.

First, Nealy moved for a mistrial on the basis that, during a recess taken during Hagins’ trial testimony, the trial court barred certain members of the public from returning to the courtroom after receiving evidence that they were intimidating Hagins as he testified. In moving for a mistrial, Nealy contended that, when the jury returned, they would notice that the people were no longer in the courtroom and would improperly infer that Nealy was involved in intimidation of the witness. None of the rulings or actions taken by the trial court on this issue was done in the presence of the jury. We find no basis to conclude that the jury would infer that Nealy was intimidating witnesses or that the trial court’s actions did anything to prejudice Nealy’s right to a fair trial. The trial court did not err by denying the motion for a mistrial.

Second, Nealy moved for a mistrial on the basis that he was denied a fair trial because Hagins changed his testimony during the trial and was allowed to explain that he did so because he was threatened with bodily harm and bribed. We find no error in the denial of the motion. Hagins was properly allowed to explain why he had testified falsely and inconsistently earlier in the trial to rebut the discrediting effect of the earlier testimony. Bivins v. State, 200 Ga. 729, 740-741 (38 SE2d 273) (1946); Benefield v. State, 140 Ga. App. 727, 731 (232 SE2d 89) (1976). Moreover, the trial court instructed the jury that the explanation given by Hagins was only for the purpose of explaining the changed testimony, and that it was not to be considered as evidence against any of the defendants or for any other purpose.

5. The evidence was sufficient for a rational trier of fact to con-elude that Nealy was guilty beyond a reasonable doubt as a party to the crime of armed robbery. OCGA §§ 16-2-20; 16-2-21; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Case No. A99A0807

6. Mahmoud contends the evidence was insufficient to establish that he was guilty of armed robbery against either of the victims. Hagins testified that, while Grant held a gun, Mahmoud took money from him and Matthews. Matthews testified that all three defendants ran off together after the robbery. This testimony, along with other evidence presented by the State, was clearly sufficient to allow a rational trier of fact to conclude that Mahmoud was guilty beyond a reasonable doubt as a party to the crime of armed robbery. OCGA §§ 16-2-20; 16-2-21; Jackson v. Virginia, 443 U. S. 307.

7. There is no merit to Mahmoud’s claim that the trial court improperly expressed an opinion during the course of the trial as to what had or had not been proved or as to the guilt of the accused in violation of OCGA § 17-8-57. The trial court stated to the jury that Hagins “is about to testify as to I believe some bases for his change in testimony which you may have observed yesterday,” then followed with a cautionary instruction that Hagins’ testimony should be considered solely for the purpose of explaining the change and for no other purpose. This statement could not possibly be construed as a violation of OCGA § 17-8-57.

8. Mahmoud contends the trial court erred by denying his motion for a mistrial after Hagins was allowed to testify that he received a threat from an unidentified person and a bribe from Mahmoud’s father concerning his testimony in the case.

Earlier in the trial, Hagins gave testimony that the defendants were not the robbers that was inconsistent with other trial testimony and pretrial statements he made identifying the defendants as the robbers. In subsequent testimony, Hagins said that, earlier in the trial, he had falsely testified that the defendants were not the robbers because an unidentified person threatened him with bodily harm if he testified against the defendants and because Mahmoud’s father had bribed him with money. The trial court properly allowed Hagins to give this testimony to explain why he had testified falsely and to rebut its discrediting effect. Bivins, 200 Ga. at 740-741; Bene-field, 140 Ga. App. at 731; compare Fields v. State, 260 Ga. 331, 333 (393 SE2d 252) (1990) (error to admit prosecution witness’ testimony as to threat where it was not admissible to explain other testimony discrediting the witness, and the State’s inability to link the threat to the defendant prevented the testimony from being relevant to any other material issue). Moreover, before Hagins gave his explanation, the trial court gave cautionary instructions to the jury that the testimony was solely for the purpose of explaining Hagins’ changed testimony, and that it was not to be considered as evidence against any of the defendants or for any other purpose. Under these circumstances, the trial court properly denied the motion for a mistrial.

Case No. A99A0808

9. There is no merit to Grant’s contention that the evidence was insufficient to support his convictions for armed robbery. Both victims testified that Grant held them at gunpoint while they were robbed. It was for the jury to determine the weight of the evidence and the credibility of the State’s witnesses. Parker v. State, 220 Ga. App. 303. On appeal, this Court views the evidence in the light most favorable to the verdict and determines if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Id. Under these standards, the evidence was sufficient to support Grant’s convictions on both counts of armed robbery. Jackson v. Virginia, 443 U. S. 307.

10. Grant contends the trial court erred by granting the State’s motion in limine to preclude any cross-examination of the State’s witness, Matthews, as to charges pending against the witness.

Grant proffered evidence that, at the time of Matthews’ testimony, Matthews had charges pending against him for theft by shoplifting, theft by receiving, possession of marijuana, simple battery, and giving false information to the police. He was also on probation for theft by receiving. Pursuant to the Confrontation Clause of the Sixth Amendment, a defendant in a criminal trial is guaranteed the right to cross-examine a witness against him concerning criminal charges brought by the State which are pending against the witness. Hines v. State, 249 Ga. 257, 259-260 (290 SE2d 911) (1982). By means of such cross-examination, the defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State. Id. Whether the witness is testifying pursuant to a deal with the State relating to the pending charges is not crucial to the right to conduct such cross-examination. Id. Rather, the defendant is entitled to show by cross-examination that the witness may be shading his testimony in an effort to curry favor from the State. Id. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.” (Citations and punctuation omitted.) Id. at 260.

Although the extent of cross-examination on a relevant issue is within the sound discretion of the trial court, it is an abuse of discretion and clear error for the trial court to bar all inquiry by defense counsel on an issue on which the defendant was entitled to reasonable cross-examination. Hines, 249 Ga. at 260. It was error in the present case for the trial court to deny Grant any cross-examination of Matthews on the charges pending against him. Moreover, we cannot agree with the State’s contention that the error was harmless. The State relied on the testimony of both victims, Hagins and Matthews, to prove the charges. Hagins gave conflicting versions of the robbery, at one point denying that any of the co-defendants were the robbers, then changing his testimony later in the trial and identifying the defendants as the robbers. Hagins explained that, earlier in the trial, he had been intimidated and offered money to exonerate the defendants. Hagins was also impeached by evidence that he had numerous prior felony convictions. Matthews, on the other hand, consistently testified that all three defendants were involved in the robbery. Because the State relied heavily on credible testimony from Matthews to prove its case, and the evidence was not otherwise overwhelming, the trial court committed reversible error by preventing defense counsel from attacking Matthews’ credibility by cross-examination on his pending charges. Beam v. State, 265 Ga. 853, 856-857 (463 SE2d 347) (1995); Owens v. State, 251 Ga. 313, 316-317 (305 SE2d 102) (1983); Hines, 249 Ga. at 260; compare Byrd v. State, 262 Ga. 426, 427-428 (420 SE2d 748) (1992) and Garcia v. State, 267 Ga. 257, 259 (477 SE2d 112) (1996).

Decided August 18, 1999.

Johnson, Prioleau & Kenison, Theodore Johnson, for appellant (case no. A99A0806).

11. Grant contends the trial court erred in admitting, over objection, testimony from Hagins that he received a threat from an unidentified person concerning his testimony in the case. There was no error for the reasons stated in Division 8, supra.

12. In light of our rulings affirming the convictions in related Case Nos. A99A0806 and A99A0807, we need not address Grant’s contention that the trial court erred by refusing to sever his case from his co-defendants.

Judgments affirmed in Case Nos. A99A0806 and A99A0807. Judgment reversed in Case No. A99A0808.

McMurray, P. J., and Ruf-fin, J., concur.

Rickey L. Richardson, for appellant (case no. A99A0807).

Suparna Malempati, for appellant (case no. A99A0808).

Paul L. Howard, Jr., District Attorney, David E. Langford, Kellie S. Hill, Assistant District Attorneys, for appellee.

       Although the trial court’s ruling erroneously prevented all three defendants from cross-examining Matthews on the pending charges, only Grant enumerated this as error on appeal.


author: Miller, Judge.

text:
    A99A1102.
    LINSON v. THE STATE.
    (522 SE2d 55)
    Decided August 18, 1999.

      David J. Grindle, for appellant.
   Miller, Judge.

Timothy Linson was convicted of sodomy and aggravated child molestation and given concurrent sentences. Because of arguments raised in his motion for new trial, the court merged the sodomy conviction into the aggravated child molestation conviction and re-sentenced him based on the aggravated child molestation conviction alone. In Linson v. State, 221 Ga. App. 691, 693 (3) (472 SE2d 690) (1996), we reversed the aggravated child molestation conviction on grounds the jury charge allowed a conviction by an act causing physical injury or by an act of sodomy, even though the indictment alleged only physical injury.

On remand, the State successfully moved the court to reinstate the sodomy conviction and dead-docketed the child molestation, charge. The court re-sentenced Linson on the sodomy conviction. Lin-son argues on appeal that the court did not have the power to reinstate and re-sentence on the sodomy conviction.

On remand, the trial court had the power to “unmerge” the sodomy conviction from the defective aggravated child molestation conviction and to re-sentence on the sodomy conviction alone. The Supreme Court of Georgia has reinstated formerly merged convictions and remanded the case to the trial court for sentencing on those convictions. See, e.g., Briscoe v. State, 263 Ga. 310, 311 (2) (431 SE2d 375) (1993); Thompson v. State, 263 Ga. 23, 26 (2) (426 SE2d 895) (1993). We have specifically held that on remand a trial court may reconsider any merger issues and sentence accordingly. Hunter v. State, 228 Ga. App. 846, 847-848 (493 SE2d 44) (1997); see Duffey v. State, 222 Ga. App. 802, 804 (2) (476 SE2d 89) (1996).

The court did not err in reinstating the sodomy conviction and in re-sentencing Linson thereon.

Judgment affirmed.

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

J Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.


author: Ruffin, Judge.

text:
    A99A1107.
    MURRAY v. THE STATE.
    (522 SE2d 48)
   Ruffin, Judge.

Michael Murray was convicted of armed robbery and aggravated assault. He appeals, contesting the sufficiency of the evidence. Because the evidence was sufficient to support the verdicts, we affirm.

On appeal of a criminal conviction,

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

(Citations omitted.) Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999). “The standard of review of a denial of a motion for a directed verdict is the same as that for the sufficiency of the evidence.” Smith v. State, 237 Ga. App. 616, 617 (1) (516 SE2d 319) (1999).

Aggravated Assault of Anjula Charles

Anjula Charles, part owner of the Lotto Grocery Store, testified that on the evening of April 15,1996, three individuals, subsequently identified as Murray, Levi Hodnett, and DeWayne Jackson, entered her store. Charles’ son, who was working at the store that night, testified that Murray’s face was partially hidden by his jacket. Murray and Hodnett got into an argument with Charles and her son after they refused to sell Murray cigarettes. Hodnett then pulled a gun, pointed it at Charles, and said, “Give us the money.” Charles’ son testified that Murray looked at Hodnett, and then turned back and said, “Now will you give me the cigarettes?” Charles screamed and told her son to push the alarm button. He did so, and the three men then ran out of the store together.

A videotape of the incident recorded by the store’s security camera shows that Murray and Hodnett entered the store together about 25 seconds after Jackson. The videotape clearly shows Murray attempting to hide his face beneath the upturned collar of his jacket. Although the robbery itself is not shown on the videotape, the tape shows the three men running from the store together about four minutes after they arrived.

Murray argues that the evidence showed at most that he was present at the store while a crime was committed by Hodnett. We have previously held that

mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citations and punctuation omitted.) Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997). Contrary to Murray’s claim of mere presence, several facts suggest that he was actually a participant in the crime, including (1) his attempt to hide his face from the security camera while entering the store, (2) his statement, “Now will you give me the cigarettes?” after Hodnett pulled out the gun, and (3) his flight from the scene in the company of Hodnett. Under all of the circumstances, the jury was authorized to infer that Murray was an active participant in the crime, and not a mere bystander. See id.

Armed Robbery of Rochelle Cox

At about 12:30 p.m. on April 15, 1996, two men entered the Colonial Bakery store where Rochelle Cox was working alone. One of the men started to purchase some cookies, but complained that the price was too high after Cox rang up the purchase. Cox rang the purchase up a second time and opened her cash register. The second individual then pulled a gun and demanded the money in Cox’s cash register. Both men took money and food stamps from the register and then left the store.

Cox talked with the police after the incident, and described the first individual as approximately 5'5" to 5'7" tall with a slight beard. A few hours later, Cox was shown a photographic lineup, and she identified a photograph of Murray as the individual without the gun. At trial, she testified that, at the time she made the identification, she was certain that the person in the photograph was in fact the individual who had robbed her. When asked if she saw that person in the courtroom, she said, “Yes. Now, I’m not for sure, like I said, been a whole year; but, yes, I think I do.” However, she then pointed not at Murray, but at his co-defendant, Jackson, who was not charged in connection with the Colonial Bakery robbery. Cox stated that “[t]he person that I think I’m seeing is the one sitting here on the right-hand side with the white shirt on.” When asked if she was certain that was the person she had identified in the photographic lineup, she said yes.

Neither party commented at the time on the fact that Cox had pointed to the wrong defendant, and Murray’s attorney did not cross-examine Cox on this discrepancy. However, at the close of the State’s evidence Murray moved for a directed verdict based on Cox’s mis-identification. The trial court denied the motion. Murray now contends that he was entitled to a directed verdict based on Cox’s testimony. This contention is without merit.

As discussed above, “[c]onflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.” (Emphasis supplied.) Ringo, supra. A pre-trial identification of a defendant is sufficient to support a conviction, even if the witness fails to make an independent in-court identification of the defendant. See Jackson v. State, 239 Ga. App. 77 (519 SE2d 746) (1999); Harper v. State, 213 Ga. App. 444, 445-446 (1) (445 SE2d 303) (1994).

Although Cox apparently pointed to the wrong defendant at trial, the jury could have concluded that this was due to the length of time between the robbery and trial, particularly since Cox prefaced her in-court identification by stating that “I’m not for sure, like I said, been a whole year; but, yes, I think I do [see him].” Moreover, the evidence showed that Murray’s appearance had changed in the 17 months between the robbery and the trial in that he wore glasses and no longer had an Afro hairstyle at the time of trial. Given the passage of time, Murray’s changed appearance, and Cox’s ambivalence about her in-court identification, the jury could have determined that Cox’s positive identification of Murray immediately after the incident was not rendered less credible by the fact that she could not correctly identify Murray 17 months later at trial. These types of credibility determinations are particularly within the province of the jury, and our role is limited to determining the sufficiency of the evidence. Jones v. State, 232 Ga. App. 630 (502 SE2d 557) (1998). Under the circumstances, the jury was authorized to find Murray guilty of armed robbery, notwithstanding Cox’s failure to correctly identify him at trial. See Jackson v. State, supra; Harper, supra.

Decided August 18, 1999.

Bobby D. Wilson, for appellant.

J. Tom Morgan, District Attorney, Keith E. Adams, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.

       Many of the relevant facts in this case are set forth in Jackson v. State, 239 Ga. App. 77 (519 SE2d 746) (1999), in which we affirmed the conviction of Murray’s co-defendant, DeWayne Jackson.

       In fact, the trial occurred 17 months after the robbery.

       Murray was apparently wearing a green shirt at the time.


text:
    A99A1124.
    MARTINEZ v. THE STATE.
    (522 SE2d 53)
   Miller, Judge.

Martin Martinez was convicted of possession of cocaine. He was a passenger in a vehicle that was stopped during a police roadblock. A search of his person revealed cocaine folded into a dollar bill found in his wallet. Finding the search was consensual, the trial court denied his motion to suppress the evidence, which order he appeals. After review, we affirm the judgment of the trial court.

When reviewing the decision of the trial court on a motion to suppress, the evidence is construed most favorably to uphold the court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Lewis v. State, 233 Ga. App. 560 (1) (504 SE2d 732) (1998). If there is any evidence to support the trial court’s findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous.

The trial court found that the vehicle was stopped at a valid roadblock and that while there was no probable cause to search Martinez, he consented. Police officials may use a roadblock to require motorists to display their driver’s license as long as it does not invade their right to access public ways or cause unreasonable interception. Payne v. State, 232 Ga. App. 591, 592 (1) (502 SE2d 526) (1998). The factors to be considered in determining the validity of a roadblock include whether (1) supervisory personnel made the decision to implement the roadblock, (2) all passing vehicles were stopped, (3) the delay was minimal, and (4) the operation was easily identified as a police checkpoint. Id. In this case, there was no evidence that the delay to Martinez and the driver was excessive or that the roadblock was not well identified. An officer testified that the authority to set up the roadblock was given by a superior officer and that every vehicle was stopped. Evidence supports the court’s finding that the roadblock was valid. See LaFontaine v. State, 269 Ga. 251, 252 (3) (497 SE2d 367) (1998). .

Martinez contends that he did not freely and voluntarily consent to the search and that he was not told he had a right to refuse. The searching officer testified at the suppression hearing that he requested permission of Martinez to search his person and that Martinez consented. A search based on voluntary consent eliminates the need for a search warrant or probable cause. Dean v. State, 250 Ga. 77, 80 (295 SE2d 306) (1982). The law does not require that a party be told of his right to refuse a search or terminate a search. Semelis v. State, 228 Ga. App. 813, 814 (1) (a) (493 SE2d 17) (1997). While giving such information may be considered, voluntariness is determined by the totality of the circumstances,

including such factors as the age of the accused, his education, his intelligence, the length of detention, whether the accused was advised of his constitutional rights, the prolonged nature of questioning, the use of physical punishment, and the psychological impact of all these factors on the accused.

Dean, supra, 250 Ga. at 80. No single factor controls. Id.

Martinez was thirty-three years old with an eighth-grade education. There was no evidence of a lengthy detention, and Martinez did not suffer any physical punishment. Although Martinez was not advised of his constitutional rights, the questioning was limited to whether he had any drugs or weapons on his person and whether he consented to being searched. Testimony differed as to whether the driver of the vehicle was handcuffed prior to Martinez being searched, but the trial court made no finding of fact on this issue, precluding further review.

Martinez cites State v. Norrington, 203 Ga. App. 574, 575 (417 SE2d 203) (1992), for the proposition that failure to notify the accused of the right not to consent coupled with his belief that he could not refuse or terminate consent establishes a lack of voluntariness. Norrington held only that the trial court is authorized to consider the absence of any attempt to advise the accused of his right not to consent as one among many factors. See Semelis, supra, 228 Ga. App. at 814.

Evidence supports the trial court’s ruling that appellant consented to the search and that the search was voluntary.

Decided August 18, 1999.

Alfred J. Powell, Jr., Richard L. Waters, Jr., for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A99A1265.
    HUTCHISON v. THE STATE.
    (522 SE2d 56)
   Miller, Judge.

Convicted of rape, Neil Hutchison appeals on three grounds: insufficiency of the evidence, the sustaining of Batson challenges to four females struck by Hutchison, and the admission of a prior similar transaction. We affirm.

1. Based on the evidence presented, could any rational trier of fact have found Hutchison guilty of rape beyond a reasonable doubt? See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Here the victim testified that while she was sunbathing in her bathing suit, Hutchison asked permission to place his beer in her refrigerator. She consented, and once Hutchison was inside the residence, he grabbed her wrists and over her objections forced sexual intercourse upon her. As Hutchison escaped, she cried for help from a neighbor, who called police. Police found the victim traumatized and hysterical, with red marks on her throat, upper arm and chest and with a torn strap on her bathing suit.

After running from police for a day, Hutchison was apprehended and admitted to sexual intercourse with the victim, but claimed she consented in exchange for $50. He further contended that she falsely accused him of rape because he took the $50 back before leaving.

Hutchison argues that the uncorroborated testimony of a single witness is insufficient to sustain a rape conviction. This argument is without merit. Maloy v. State, 237 Ga. App. 873, 874 (1) (516 SE2d 370) (1999); Littleton v. State, 225 Ga. App. 900, 901 (1) (485 SE2d 230) (1997). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. And corroboration is no longer necessary to establish rape. Baker v. State, 245 Ga. 657, 665-666 (5) (266 SE2d 477) (1980).

Moreover, corroboration was shown. The physical marks on the victim’s body and her emotional state reflected a recent non-consensual struggle, and Hutchison’s evasion of police constituted circumstantial evidence of a consciousness of guilt. Anderson v. State, 225 Ga. App. 727, 728 (484 SE2d 783) (1997); Gearin v. State, 208 Ga. App. 878, 879 (1) (432 SE2d 818) (1993); see Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990).

2. Hutchison used eleven of his fourteen peremptory strikes to remove females from the jury, resulting in all eight white female venire persons being removed and in only two females remaining on the thirteen-person jury. The State challenged these selections under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and J. E. B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994), as unconstitutional. The court sustained the challenge as to four of the removed females and reinstated them onto the jury.

Turner v. State, 267 Ga. 149, 150-151 (2) (476 SE2d 252) (1996), summarized: “The Equal Protection Clause of the U. S. Constitution prohibits discrimination in jury selection on the basis of race or gender, or the assumption that a venireperson will be biased in a particular case for no reason other than the person’s race or gender. [Cit.]” The party challenging the selections must first make out a prima facie case of purposeful discrimination by pointing to relevant facts giving rise to an inference of discriminatory purpose. Id. at 151. Here the State pointed to the elimination of all white females from the jury through Hutchison’s use of 11 of his 14 strikes to strike females.

Once a prima facie case is made, the proponent of the strikes is asked to set forth a race/gender-neutral, case-related reason for each challenged strike. The opponent of the strikes may then show why the purported reasons are pretextual, and the court then determines whether the opponent has carried his burden to show that discriminatory intent motivated the strikes. “The trial court’s findings concerning whether the opponent of the strike has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous. [Cit.]” Turner, supra, 267 Ga. at 152 (2).

Here Hutchison failed to announce a race/gender-neutral reason for striking Flynn, one of the four females reinstated. His counsel admitted the rationale was that she was a young, white female who would closely identify with the victim (also a young, white female). He even admitted (i) picking certain jurors because they were white males and would therefore identify with the defendant, and (ii) excluding older females because they would be “sympathetic” to the victim and excluding younger females because they would be “antithetical” to the defendant. This is precisely the type of stereotyping that Batson and J. E. B. prohibit. See Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995); Herrin v. State, 221 Ga. App. 356, 359 (471 SE2d 297) (1996) (counsel’s admission of gender consideration is automatically an unconstitutional strike).

Although Hutchison did set forth a race/gender-neutral reason for striking the other three reinstated females, these reasons were suspect in light of his admissions. Moreover, the State in each case showed that similarly situated males were seated on the jury, a well-recognized method of demonstrating that discriminatory intent motivated a strike. See Turner, supra, 267 Ga. at 151 (2); Ford v. State, 262 Ga. 558, 559 (3) (423 SE2d 245) (1992). Cupp, a potential juror, was allegedly struck because she had previously served on a jury, but the State showed that Hutchison did not strike five males who previously served on a jury. Kreisher was purportedly struck because she was associated with the military and her husband held a management position, yet males with the same background and positions were seated. Similarly, Hernandez was supposedly struck because she was a crime victim and also made strong decisions in her profession as an emergency medical technician, but a male EMT as well as other males who made strong decisions and who were crime victims were seated.

This evidence, especially viewed in light of Hutchison’s candid admissions, supported the trial court’s findings of discrimination and the reinstatement of the four female jurors.

3. Hutchison previously pled guilty to assaulting another young, white female in her residence shortly after she came in from outside. The evidence showed that during the day Hutchison came to the residence of a woman and asked to use her phone. When she refused, he wrestled her to the ground and took her to a back bedroom where he tried to remove her shorts. He discontinued the assault and escaped. Hutchison contends this prior transaction was not sufficiently similar to the charged crime to allow its admission under Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

The State argued the prior assault was similar to the rape here in numerous respects: (i) both victims were unknown to Hutchison, (ii) both had been outside immediately prior to the assault, (iii) both were alone, (iv) both were young, white females, (v) both were assaulted in their own residence, (vi) both assaults took place near the door soon after Hutchison’s entry into the residence, (vii) both women were forced down, (viii) no weapon was used in either assault, (ix) both were assaulted for sex, and (x) he fled both scenes immediately after the assault.

A trial court’s finding of sufficient similarity will be reversed only if clearly erroneous. Evans v. State, 235 Ga. App. 577, 580 (3) (510 SE2d 313) (1998). Also, “[t]he rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses.” (Punctuation and footnote omitted.) Rehberger v. State, 235 Ga. App. 827, 829 (2) (510 SE2d 594) (1998). The trial court did not clearly err in finding sufficient similarity.

Judgment affirmed.

Smith and Eldridge, JJ., concur.

Decided August 18, 1999.

Elaine T. McGruder, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.


text:
    A99A1269.
    McDOWELL v. THE STATE.
    (522 SE2d 44)
   Smith, Judge.

Robert Lee McDowell was indicted by a Tattnall County grand jury on one count of aggravated assault and one count of aggravated assault upon a correctional officer. A jury found him guilty of aggravated assault on Count 1 and guilty of the lesser included offense of aggravated assault on Count 2. McDowell’s trial counsel did not timely file an appeal, and the trial court granted McDowell’s pro se motion to file an out-of-time appeal and appointed new counsel to represent him.

The indictment charged that McDowell, an inmate at Georgia State Prison at Reidsville, assaulted a special education teacher at the prison and a laundry supervisor, who also held the title of correctional officer, with gasoline and a lighter. The evidence presented at trial showed that McDowell had a history of mental retardation and the teacher had counseled him when she was the mental retardation specialist at the prison. The teacher testified that McDowell asked several times if she would meet with him for a few moments to discuss some personal problems, and she finally agreed. McDowell was working in the laundry, and the teacher came to meet him there. When the rest of the prisoners left, the laundry supervisor indicated that the teacher and McDowell could talk in the laundry office, a glass-enclosed room that was air conditioned.

The teacher testified that although the meeting was pleasant initially, McDowell soon became angry. He took a lotion bottle out of his pocket, told her it was not lotion, squeezed the bottle, and told her to do what he said or he would burn her. He sprayed the liquid around her chair and took a disposable lighter from his pocket and lit it, again threatening to burn her. When McDowell lit the lighter, the teacher became frightened that the gasoline would ignite, and she ran. The laundry supervisor, who had remained outside the office, noticed McDowell start toward the teacher and came into the office. As he entered the office, McDowell warned him: “I’ve got gas, get away from me, I’ll burn you up.” McDowell sprayed gasoline from the plastic bottle in the supervisor’s face and on his clothes while holding the lighter in his other hand. McDowell then hit the supervisor on the side of the face, knocking off his glasses.

As this happened, the teacher was able to reach the other door to the office. The laundry supervisor testified that at this point, McDowell began mumbling “[they’re gonna kill me” and “I’m gonna kill you.” The supervisor placed himself between McDowell and the teacher and passed her the key to the door, allowing her to unlock the door and get out. The teacher, soaked with gas, fell, and McDowell again struck the supervisor and began running. A maintenance worker had called for help, and McDowell reentered the laundry. He was still muttering “[t] hey’re gonna kill me” when he was subdued by other correctional officers.

1. Counsel was appointed to represent McDowell. On the day of trial, his appointed counsel informed the court that McDowell wished to represent himself. A hearing was conducted to ensure that McDowell was waiving his right to counsel knowingly and voluntarily. The trial court then allowed McDowell to proceed pro se, instructing appointed trial counsel to remain present in an advisory capacity. At the end of the State’s case-in-chief, McDowell appeared to elect to have his standby counsel proceed in representing him for the remainder of the trial. McDowell testified, and his appointed counsel questioned him. McDowell elected to have appointed counsel make the closing argument.

On appeal, McDowell contends the trial court erred in allowing him to proceed pro se. We do not agree.

In Clarke v. Zant, 247 Ga. 194[, 196] (275 SE2d 49) (1981), we discussed the dilemma faced by a trial judge when a criminal defendant refuses representation by appointed counsel and announces his desire to represent himself. In doing so, we recognized the right of self representation as pronounced in Faretta v. California, 422 U. S. 806 (95 SC 2525, 45 LE2d 562) (1975). We also found that a defendant cannot exercise this right unless it is shown that he has adequately waived his right to counsel. This led us to the holding that in future cases the record should reflect a finding of the trial court that the defendant has validly chosen to proceed pro se and that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

(Citations and punctuation omitted.) Wayne v. State, 269 Ga. 36, 37-38 (2) (495 SE2d 34) (1998). But although a high burden is placed on the trial court, a defendant still retains the right to waive representation by counsel. He may not, however,

play one right against another with the hope of creating error. Neither may a defendant who has knowingly waived counsel then complain of a lack of counsel when he determines that the judge’s warnings were valid. Under such circumstances, the defendant’s problems are of his own making, and he is bound by his poor choices.

Reviere v. State, 231 Ga. App. 329, 331 (498 SE2d 332) (1998). To be valid, the waiver

must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

(Citations and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357-358 (414 SE2d 502) (1991). No “magic language” need be employed, Reviere, supra at 330, and the trial court need not ask any particular questions. “The record need only reflect that the accused was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver. [Cits.]” Wayne, supra at 38 (2).

The record so reflects in this case. The trial court advised McDowell of his right to testify and the difficulty of doing so without an attorney to question him. He was informed of the nature of the charges against him and the range of punishments that might be imposed upon conviction. He was cautioned regarding the likelihood of success, or lack thereof, if he proceeded pro se. He was reminded of attorneys’ special training in court procedure and in presenting favorable evidence. The trial court even permitted the district attorney to question McDowell regarding his understanding of the right to counsel he wished to relinquish and whether he was doing so voluntarily. In addition, the trial court protected McDowell further by directing appointed counsel to remain and to represent McDowell on a standby basis. McDowell stated he understood the consequences and repeatedly stated his desire to represent himself. Moreover, McDowell took advantage of standby counsel, both when he testified in his own defense and by electing to have counsel make closing argument. Contrary to McDowell’s argument, the record indicates that the necessary requirements were satisfied. Shavers v. State, 179 Ga. App. 45, 46 (1) (345 SE2d 134) (1986).

McDowell argues specifically that because his history of mental retardation was not mentioned until well into the presentation of evidence at trial, the trial court could not have taken this factor into consideration in determining that he knowingly and intelligently waived his right to counsel. He also notes that appointed trial counsel observed McDowell taking medication. But the record reflects that whatever developmental problems existed, they did not prevent McDowell from questioning the State’s witnesses cogently. And McDowell indicated to the trial court that he took medication regularly both for high blood pressure and for pain. No indication exists in the record that this medication altered his mental state, judging from both his conduct at trial and the jury’s deliberations and questions, leading to conviction of a lesser included offense on Count 2.

Finally, in light of the overwhelming evidence of McDowell’s guilt, including the direct testimony of the victims, even if error existed in allowing him to represent himself, it did not contribute to the jury’s verdict and was therefore harmless. Reviere, supra at 331.

2. McDowell also maintains that the evidence presented at trial was insufficient to support his conviction for aggravated assault upon the teacher. He argues that because the laundry supervisor testified he never saw McDowell use the gasoline and lighter in any way against the teacher and McDowell testified he did not do so, no corroboration exists for the teacher’s testimony that McDowell assaulted her with the gasoline.

No corroboration was required.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant... no longer enjoys a presumption of innocence; moreover, 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)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. 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.

(Citations and punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997). Although in conflict with McDowell’s testimony, the testimony of the victim alone was therefore sufficient to support McDowell’s conviction.

Judgment affirmed.

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

Decided August 18, 1999.

Hal T. Peel, for appellant.

J Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.


text:
    A99A1312.
    WILLIAMS v. THE STATE.
    (522 SE2d 43)
   Ruffin, Judge.

Kendall Williams was convicted of possession of cocaine. He appeals the denial of his motion to suppress evidence resulting from the search of his house, arguing that the affidavit used to obtain a search warrant did not establish probable cause because it did not show the reliability of a confidential informant. Because this contention is without merit, we affirm.

On February 26,1998, Detective U. D. Rios of the DeKalb County Police Department applied for a warrant to search Williams’ home. Rios submitted an affidavit stating that he had been advised by Special Agent Farr of the Drug Enforcement Administration that a confidential informant had made a purchase of cocaine at Williams’ residence within the past three days. Agent Farr, who had recorded the transaction, told Detective Rios that he heard Williams mention a gun during the transaction.

“In determining whether an affidavit sufficiently establishes probable cause, the totality of the circumstances analysis is to be employed.” Davis v. State, 266 Ga. 212, 213 (465 SE2d 438) (1996). Under this test,

“[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . con-clud[ing]’ that probable cause existed.” [Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 2332, 76 LE2d 527) (1983).]

State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

Williams contends that Detective Rios’ affidavit was defective because it did not provide any indication of the reliability of the confidential informant. However, the credibility of the affidavit was dependent not upon the reliability of the confidential informant, but upon the reliability of Special Agent Farr, who recorded the transaction at issue. We have previously held that “[w]hen a police officer is the informant the reliability of the informant is presumed as a matter of law.” (Punctuation omitted.) McConville v. State, 228 Ga. App. 463, 467 (2) (491 SE2d 900) (1997); McNeal v. State, 133 Ga. App. 225, 228 (2) (211 SE2d 173) (1974). Moreover,

Decided August 18, 1999.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

it was not essential that [Agent Farr] and the informant appear before the magistrate. The rule in Georgia has been that an affidavit supporting a search warrant may be based on hearsay information as long as there is a substantial basis for crediting the hearsay.

(Punctuation omitted.) Lewis v. State, 234 Ga. App. 873, 876 (1) (b) (508 SE2d 218) (1998). Under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed, and the trial court thus did not err in denying Williams’ motion to suppress. See id. at 875-876.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.


text:
    A99A1423.
    FUENTES v. THE STATE.
    (521 SE2d 698)
   Ruffin, Judge.

A Lowndes County jury found Ceasar Fuentes guilty of burglary. In two enumerations of error, Fuentes challenges the sufficiency of the evidence. We affirm.

On appeal, this Court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. London v. State, 235 Ga. App. 30, 31 (508 SE2d 247) (1998). We neither weigh the evidence nor assess the credibility of witnesses, but merely determine whether the evidence was sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). London, supra.

The evidence establishes that at approximately 10:30 p.m. on July 10, 1997, a Lowndes County deputy sheriff saw a white van parked next to the loading dock at the back of a Ruff Hewn store. Realizing that there was a burglary in progress, the deputy called for backup. As the deputy exited his car, he saw two individuals run from the loading dock into the store. When a second law enforcement officer arrived, the two officers entered the store. The officers were unable to find the suspects, who apparently had fled through another door that had been forcibly opened. The officers inventoried the abandoned van, which contained approximately $77,000 worth of Ruff Hewn merchandise. Law enforcement officers subsequently learned that the van was registered to Alexi Monteagudo.

At approximately 10:40 p.m., James Fowler, a clerk at the Days Inn motel situated approximately 2,100 feet away from the Ruff Hewn store, saw two men walk by the motel pool. The two men, whom Fowler described as “hot and sweaty and out of breath,” entered the motel and walked to the front desk. At 10:44 p.m., the two men checked into the motel. According to the registration information, one of the men was Ceasar Fuentes.

At 9:46 the next morning, a man named Ceasar Fuentes checked into a Travelodge motel. The manager on duty testified that he was suspicious of Fuentes because he had no visible means of transportation and carried no luggage. According to the manager, it is “very rare” for people to arrive at the motel with no visible means of transportation. The manager called the Sheriff’s Department, and several law enforcement officers arrived at the motel at approximately 10:30 a.m.

Shortly thereafter, Fuentes exited the motel with another man, Ernesto Romero, and the two were stopped by Detective Jimmy Blan-ton. Blanton was then joined by Officer William Jones, who is fluent in Spanish. Fuentes told Jones that he and Romero had been stranded by friends, and that they were waiting for his wife to arrive from Miami to pick them up. Fuentes was unable to tell Jones the names of his friends, but said that they had been in a van. Jones asked Fuentes for permission to search his hotel room, and Fuentes consented. According to Jones, Fuentes appeared nervous and was shaking as he attempted to insert the key card into the motel room door. When Jones and Blanton entered the room, they found two other men who were identified as Victor Lopez and Alexi Monte-agudo — the owner of the van abandoned at the scene of the burglary. The four men were placed under arrest.

After reading Monteagudo his Miranda rights, Jones and Detective Wanda Temples questioned him about his van. Monteagudo said his van had been stolen. However, the police had not received any reports of a stolen van. Monteagudo claimed that when he checked into the motel at 10:45 p.m. the night before, he still had the van with him. Jones asked Monteagudo how the van could have been with him when, at the time he checked in, the deputies had found the van at the scene of the burglary. At that point, Monteagudo refused to answer additional questions and requested an attorney. At the Sheriff’s Department, Jones overheard Lopez, in Spanish, tell the other three suspects “not to say anything” and “that they would talk later.”

Decided August 18, 1999.

William R. Folsom, for appellant.

J David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

All four men were tried for burglary. At trial, the State introduced evidence that Fuentes’ fingerprints were found on the van. Romero’s fingerprints also were found on the van and on one of the Ruff Hewn boxes. The jury convicted Fuentes, Romero and Monte-agudo of burglary, but acquitted Lopez.

This evidence was sufficient to support the jury’s determination that Fuentes burglarized the Ruff Hewn store. Duke v. State, 176 Ga. App. 125, 126-127 (1) (335 SE2d 400) (1985). Although Fuentes asserts that the only evidence bilking him to the crime scene was his fingerprint on the van door, this assertion is inaccurate. The evidence also showed that: (1) two men were seen fleeing from the Ruff Hewn store; (2) within minutes of the burglary, two men checked into a motel near the crime scene; (3) one of the men was named Ceasar Fuentes; (4) the two men were sweaty and out of breath; (5) the two men lacked any visible means of transportation; and (6) Fuentes subsequently was found in the company of Monteagudo — the owner of the van left at the scene of the crime. Under these circumstances, the jury could have concluded that Fuentes participated in the burglary of the Ruff Hewn store, and that he fled on foot to the motel when the sheriff’s deputy arrived. Thus, the evidence authorized Fuentes’ conviction for burglary. See Grabowski v. State, 234 Ga. App. 222, 224 (1) (507 SE2d 472) (1998); Etheridge v. State, 228 Ga. App. 788, 789 (1) (492 SE2d 755) (1997).

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.