author: Eldridge, Judge.

text:
    A00A1766.
    DEMETRIOS v. THE STATE.
    (541 SE2d 83)
   Eldridge, Judge.

A Forsyth County jury found Dr. Abbas Halim Demetrios guilty of two counts of rape, one count of aggravated sexual battery, five counts of sexual battery, six counts of simple battery, and one count of sexual assault by a practitioner of psychotherapy on a patient. These convictions arose as a result of Demetrios’ indictment and prosecution for acts he committed against several female patients who sought medical treatment from him. Demetrios appeals, and upon careful review of the voluminous record in this case, we affirm his convictions.

1. In his first three claims of error, Demetrios challenges the sufficiency of the evidence as to (a) Count 3, rape; (b) Count 5, aggravated sexual battery; and (c) Count 6, rape. In that regard,

[o]n appeal the evidence must be viewed in the light most favorable to support the verdict, and [Demetrios] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(a) Demetrios claims that there was no evidence of force so as to sustain the verdict on Count 3, the forcible rape of victim S. We disagree. Victim S. testified that Demetrios gave her an injection of some unknown drug and, thereafter, put her under hypnosis. She testified that, at the time Demetrios raped her, she no longer had control over what was occurring: “I don’t know. It was, like, kind of like on a cloud. ... I don’t know how my panties got off, I don’t remember that. ... I don’t know. I don’t remember when my bra come off. I don’t know. ... I laid there. ... I didn’t want it. . . . It was against my will. ... I felt it all. But I just, I couldn’t do nothing. I just laid there.”

When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.

Accordingly, the evidence was sufficient to supply the element of constructive force necessary to sustain Demetrios’ conviction for the rape of victim S. While Demetrios argues to this Court that victim S. “was not drugged to the point that she could not have made some attempt at preventing the Defendant from engaging in such act had she tried,” this was an issue for the jury. They decided the issue adversely to Demetrios. We will not go behind the jury’s determination.

(b) Demetrios contends that the evidence was insufficient to sustain his conviction under Count 5, the aggravated sexual battery of victim J. He claims that there was no evidence he penetrated the victim’s “sexual organ with his hands and fingers,” as alleged in the indictment. We disagree. Victim J. testified that Demetrios was rubbing her body with his hands when “next thing I know he put his hand on my back and then, uh, then he took his other hand and started going up in me with his hands real hard.” While victim J. could not clearly see Demetrios’ hand, she testified that “as far as I could see it was his hand.” This evidence, coupled with evidence that Demetrios was rubbing the victim’s body with only his hands just prior to the sexual assault and had nothing in his hands just after the assault, provides sufficient evidence for a reasonable jury to conclude that Demetrios committed the act as alleged in the indictment.

(c) Demetrios contends that the evidence was insufficient to sustain his conviction under Count 6, the rape of victim K. He argues that, because the jury acquitted him on five other counts of rape he allegedly committed against victim K, the jury could not have found victim K.’s testimony credible enough to support conviction on any rape count. However, the question of victim K.’s credibility was for the jury to decide. She testified as to numerous acts Demetrios allegedly committed against her, and the jury was entitled to believe her testimony in full or in part. Moreover, one act of rape is not legally included in another, separate act of rape so as to require reversal under a “conflict” theory.

2. In his fifth enumeration of error, Demetrios contends that the State failed to exercise its peremptory strikes in a gender-neutral fashion against male prospective jurors because the State struck prospective male juror Charles White.

Claims that jury strikes were based on gender are reviewed under the same standards as apply to race. Batson directs a three-step process for evaluating a claim of gender discrimination in the State’s use of peremptory jury strikes: (1) the defendant must make a prima facie showing that the prosecution has exercised its peremptory challenges on the basis of gender; (2) the burden then shifts to the prosecutor to articulate a gender-neutral explanation for striking the jurors in question; and (3) the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. The explanation need not justify a challenge for cause, but it must be neutral, related to the case to be tried, and constitute a clear and reasonably specific legitimate reason or reasons.

Here, the trial court did not determine whether a prima facie case had been made out. Nor did the court opt to require the State to offer its reason for striking White. Step one of the three-step inquiry was skipped entirely without comment, and, at defense counsel’s behest, the prosecutor sua sponte volunteered an explanation for the strike. Thus, we will review the prima facie showing by Demetrios as part of our overall review of the record.

In this case, the State used three strikes against males and three strikes against females. The defense struck four males. The jury was composed of seven males and five females. Accordingly, there is no prima facie evidence of discrimination against male prospective jurors in the State’s use of its strikes.

Further, the prosecutor explained that prospective juror White appeared hostile to the State and unresponsive to her on voir dire; these are neutral reasons for the exercise of a peremptory strike. “Based on the explanations presented by the state and based upon our review of the record, we conclude that the trial court did not err in finding that [Demetrios] has failed to carry his burden of persuasion as to his allegation of discriminatory intent.”

Demetrios also contends that the trial court did not follow the proper three-step procedure because the court accepted the State’s explanations as neutral before hearing additional defense argument. However, “once an explanation for the strike has been proffered, the inquiry is properly framed for the trial court’s determination.” Thereafter, Demetrios was permitted to present additional argument. That such argument did not move/persuade the trial court from its initial gender-neutral assessment does not require reversal. The trial court’s finding of neutrality is supported by the record and is not clearly erroneous. There is no error.

3. Victim D. testified on cross-examination that she had not spoken to her attorney about filing a civil suit against Demetrios. Thereafter, the trial court refused to permit defense counsel to further inquire of the victim whether she intended to sue Demetrios in the future. There was no error in this ruling. The cases relied upon by Demetrios are inapposite and deal with the right to cross-examine a witness regarding a pending civil suit in order to demonstrate the witness’ interest in the outcome of the criminal case.

Further, we know of no authority, nor has any been cited, that would permit cross-examination regarding a nonexistent civil suit without any factual basis for such cross-examination. This case stands in stark contrast to our decision in Cunningham v. State, wherein the victim’s family had filed an ante litem notice threatening civil suit based on the underlying criminal acts, and the State acknowledged that the victim’s family contemplated such suit; these facts provided a legitimate basis for cross-examination questions regarding the victim’s financial interest in the outcome of the criminal trial. Here, however, when asked by Demetrios, “Did you speak to your attorney about suing Dr. Demetrios,” the victim replied, “No.” When Demetrios asked, “Is it your intent to sue Dr. Demetrios,” the trial court sustained the State’s objection. Defense counsel made no factual proffer for his question and, in fact, simply stated “I have no further questions.” The scope of cross-examination is within the sound discretion of the trial court and, in the absence of an abuse thereof, will not be disturbed by this Court. Here, we find no abuse of discretion.

4. Demetrios next claims error in the sentencing hearing because the trial court permitted the State to offer evidence of Demetrios’ violent conduct at the jail, when notice of the State’s intent to use such evidence was not served prior to trial per the requirement of OCGA § 17-10-2 (a). We disagree.

The notice requirement of OCGA § 17-10-2 (a) goes to the State’s use of a defendant’s prior convictions in aggravation of sentence:

[t]he purpose of § 17-10-2 is to give defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.

The statute was not intended to preclude a trial court from considering a defendant’s violent conduct which occurred during trial or, as in this case, after trial and prior to sentencing: “a defendant’s character in general, and his conduct while in prison, are relevant to the question of sentence.” If such conduct/evidence is “relevant to the question of sentence,” the fact that it occurs after trial does not make it any less relevant, even though pretrial notice under OCGA § 17-10-2 is rendered impossible. That a defendant should receive a “windfall” due to the timing of his violent misconduct makes little sense, since the purpose of the statute is not directed to such conduct in the first place.

However, we need not decide this issue based on the foregoing. In fact, while the trial court heard the contested evidence, the court also heard victim impact evidence from numerous female victims. In addition, at the time of sentencing and despite the overwhelming evidence in this case, Demetrios informed the trial court, “Judge, you are sentencing an innocent man to prison. May God have mercy on your soul.” Although life imprisonment is the maximum sentence for rape, the trial court sentenced Demetrios to twenty years on each of the two rape convictions and twenty years, serve ten — balance probated, on his conviction for aggravated sexual battery. The remaining counts were probated. The trial court gave as its specific reasons for imposition of punishment that

the Court feels that this sentence, the sentence imposed is appropriate based upon the facts of the case and the use of the doctor/patient relationship and the vulnerability of the victims in the commissions of the crimes charged, as well as the impact upon the lives of these victims. Further, the Court finds the sentence is appropriate based upon a need to protect society and the class of victims involved in these crimes. Further, the Court finds that your refusal to acknowledge or accept the jury’s verdict of guilty is [lacking] the first step in successful rehabilitation. And that will be the sentence of the court.

While evidence of the jailhouse assault was before the trial court, the court’s express reasons for imposing sentence did not include such evidence. In order for alleged error to be grounds for reversal, an appellant must show harm as well as error. Demetrios can show no harm, even if error existed.

5. In his eighth enumeration of error, Demetrios contends that the State improperly injected his character into evidence by questioning him on cross-examination about allegations he stole medication from a hospital with which he was formerly employed. We find no basis for reversal on this ground.

The State’s question was directed to impeaching Demetrios’ testimony that he had not been asked to resign from his prior employment. Defense counsel objected. At a bench conference, the prosecutor proffered the Information that Demetrios’ prior employer, Ned Miller, had told her that Demetrios was terminated because he stole pain medication. Defense counsel rejoined, “I don’t have a problem with that, Judge. If she can put Ned up, she can go for it.” Sustaining the objection, the trial court would not permit the prosecutor to question Demetrios regarding his prior employment unless Miller was called for impeachment purposes. Since Miller resided in California and was unavailable to testify, the prosecutor moved on. Demetrios registered no further objection, nor was any further relief requested. When an appellant could have tendered a timely motion for mistrial or requested additional relief but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.

6. We find no error in the trial court’s denial of Demetrios’ demurrer to those counts of the indictment which do not list a date specific on which the charged crime was committed but, instead, assert that the offense was committed between two specific dates, not more than four months apart.

[W]here the exact date is not stated as a material allegation of the time of commission of the offense in the indictment, it may be proved as of any time within the statute of limitations, as long as the defendant is not surprised or prejudiced by presentation of evidence that the offenses occurred at a time substantially different from that alleged in the indictment.

Here, Demetrios contends only that the failure to list a specific date on which the offense was committed “prevented him from being able to adequately prepare a defense.” However, such bare assertion does not establish prejudice or surprise. In this case, the indictment stated the offenses and the dates with sufficient certainty to allow Demetrios to prepare his defense and to protect against double jeopardy concerns.

Further, contrary to appellant’s argument, our decision in State v. Stamey does not require a different result. In State v. Stamey, we reversed when an indictment for theft by taking failed to state either the day or the month within a 53-week period during which the goods were alleged to have been taken. Clearly, as in this case, listing two specific, close-in-time dates — including the day, month, and year — between which the charged offense occurred does not implicate our decision in Stamey.

7. In his last three enumerations of error, Demetrios claims he received ineffective assistance of counsel during trial. In order to prevail on his claim of ineffective assistance of trial counsel, Demetrios must show both that counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). He must overcome the strong presumption that counsel’s performance fell within a broad range of reasonable professional conduct and must show that there is a reasonable probability that, absent counsel’s deficiency, the result of the trial would have been different. Here, this burden has not been met.

(a) Demetrios contends that his trial attorney was ineffective for failing to object to testimony from a jail intake officer that, after Demetrios’ initial arrest in December 1993 and during the dress-out process when Demetrios exchanged his street clothes for prison garb, Demetrios was wearing colorful men’s bikini underwear. The basis for this claim of error is the fact that, pursuant to motion, the trial court suppressed admission/reference to the same bikini underwear found as a result of a warrantless, February 1994 search of Demetrios’ jail locker. However, we find no basis for objection by defense counsel. Pretermitting whether the motion to suppress was providently granted, the intake officer’s observation of Demetrios’ underwear occurred months before the allegedly unauthorized search and was completely independent thereof. Without any causal connection, the intake officer’s observation/testimony was not “tainted” by the search, and the trial court’s order on the motion to suppress did not go to such testimony. “Failure to make a meritless objection cannot be evidence of ineffective assistance.”

(b) Demetrios next contends that his trial attorney was ineffective for failing to claim a fatal variance between the allegata and probata under Count 4 of the indictment, the rape of victim B. He claims inadmissible testimony from the victim that Demetrios also touched her breast and vagina with his hands permitted the jury to use improper evidence to find Demetrios guilty of the lesser offense of sexual battery under Count 4 in a manner that differed from the act as alleged in the indictment. However, we see no basis for a fatal variance objection. Sexual battery is a lesser included offense of rape as alleged under Count 4 of the indictment. Victim B.’s testimony that, without her consent, Demetrios deliberately touched her vagina with his penis supports the jury’s verdict of guilty on the lesser included offense of sexual battery under Count 4. Demetrios’ hypothesis that the jury used testimony regarding other types of touching to support its verdict under Count 4 is unsupported speculation and contrary to the trial court’s instruction to the jury that they must find Demetrios guilty of the offense as charged in the indictment. Since the evidence supports the lesser included offense under Count 4, there is no “fatal variance.” And the “[flailure to make a meritless objection cannot be evidence of ineffective assistance.”

(c) There is also no merit to Demetrios’ contention that his trial counsel was ineffective for failing to object to testimony from victim K. that she had repeatedly suffered physical abuse from other men in her life and had come to expect abuse from men. As recognized by Demetrios’ trial counsel, this testimony was relevant to explain victim K.’s return visits to Demetrios’ office, although she had already been sexually abused by him. Contrary to appellant’s argument, the Rape Shield statute, OCGA § 24-2-3, is not implicated since the testimony was regarding prior physical abuse, not sexual abuse. Further, the Rape Shield statute “is a strong legislative attempt to protect the victim-prosecutrix in rape cases,” and cannot be invoked by a defendant to prevent a victim from offering otherwise relevant evidence.

Moreover, Demetrios’ attempt to demonstrate prejudice by asserting that such testimony “created tremendous sympathy for victim [K.]” which impacted the verdict is contradicted by the fact that the jury acquitted Demetrios on five of the counts involving victim K. and found him guilty of lesser, misdemeanor offenses on two of the counts involving victim K. Accordingly, Demetrios has failed to carry the prejudice prong of his claim.

Decided October 24, 2000

Drew Findling, Cris E. Schneider, for appellant.

Philip C. Smith, District Attorney, for appellee.

Judgment affirmed.

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

       (Citations and punctuation omitted.) Phillips v. State, 242 Ga. App. 404 (530 SE2d 1) (2000).

        Drake v. State, 239 Ga. 232, 234-235 (236 SE2d 748) (1977), reaff’d, State v. Collins, 270 Ga. 42 (508 SE2d 390) (1998).

        Cowart v. State, 177 Ga. App. 107 (338 SE2d 534) (1985).

       Id. at 108.

       (Citations and punctuation omitted.) Odom, v. State, 241 Ga. App. 361 (2) (526 SE2d 646) (1999).

        Holsey v. State, 271 Ga. 856, 859 (4) (524 SE2d 473) (1999) (when trial court simply “assume[s] that [defendant] made a prima facie case of discriminatory intent,” review of prima facie statistics may be part of Batson review of record).

        Livingston v. State, 271 Ga. 714, 717 (2) (524 SE2d 222) (1999).

        Jones v. State, 226 Ga. App. 428, 430 (1) (487 SE2d 62) (1997).

        Holsey v. State, supra at 860.

       (Punctuation omitted.) Johnson v. State, 231 Ga. App. 114, 116-117 (497 SE2d 666) (1998). See also Greene v. State, 266 Ga. 439, 443 (469 SE2d 129) (1996), rev’d on other grounds, Greene v. Georgia, 519 U. S. 145 (117 SC 578, 136 LE2d 507) (1996).

       Compare Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990).

       240 Ga. App. 92, 93-94 (522 SE2d 684) (1999).

       Id. at 94.

       In his brief, Demetrios attempts to put forward a factual foundation for his question by reference to civil lawsuits filed against Demetrios by other, unrelated victims in this case. However, no evidence was submitted regarding these purported facts, either at trial or motion for new trial. “It is an ancient and honored tenet of law that we do not take evidence from the briefs of parties, we do not get evidence from outside the record, and we do not accept assertions of fact or evidence which were not before the trial court.” (Citation omitted.) Farmer v. State, 216 Ga. App. 515, 522 (455 SE2d 297) (1995).

        Hamilton v. State, 238 Ga. App. 320, 321 (2) (517 SE2d 118) (1999).

       Demetrios assaulted a guard at the jail on November 9, 1994, approximately six weeks after trial. Defense counsel was notified immediately that the State intended to introduce such conduct in aggravation of sentence. Written notice was received by Demetrios on November 18, 1994, four days prior to the sentencing hearing.

       (Citations and punctuation omitted.) Armstrong v. State, 264 Ga. 237 (2) (442 SE2d 759) (1994); Hatcher v. State, 224 Ga. App. 747, 750 (2) (a) (482 SE2d 443) (1997).

        Fugitt v. State, 256 Ga. 292, 296 (348 SE2d 451) (1986); Hicks v. State, 256 Ga. 715, 727-728 (352 SE2d 762) (1987). Compare Terrell v. State, 271 Ga. 783, 788 (12) (523 SE2d 294) (1999).

        Wakily v. State, 225 Ga. App. 56, 61 (10) (483 SE2d 313) (1997); In re Booker, 195 Ga. App. 561, 564 (5) (394 SE2d 791) (1990); King v. State, 194 Ga. App. 69, 71 (5) (389 SE2d 500) (1989). See also Williams v. State, 271 Ga. 686 (523 SE2d 857) (1999).

        Smith v. State, 210 Ga. App. 451 (2) (436 SE2d 562) (1993).

       (Citations and punctuation omitted.) Davidson v. State, 231 Ga. App. 605, 608 (499 SE2d 697) (1998).

       Id.

       211 Ga. App. 837 (440 SE2d 725) (1994), overruled on other grounds, State v. Forthe, 237 Ga. App. 134 (514 SE2d 890) (1999).

        Johnson v. State, 233 Ga. App. 450, 451 (2) (504 SE2d 290) (1998).

        Cross v. State, 271 Ga. 427, 430-432 (3) (520 SE2d 457) (1999).

       Two of the victims had previously testified that Demetrios was wearing brightly colored men’s bikini underwear at the time of his improper sexual acts.

        See Nix v. Williams, 467 U. S. 431, 444, 448 (104 SC 2501, 81 LE2d 377) (1984); Delay v. State, 258 Ga. 229, 231 (3) (367 SE2d 806) (1988); Barnett v. State, 204 Ga. App. 491, 494 (420 SE2d 43) (1992); compare Mach v. State, 189 Ga. App. 261, 262 (1) (375 SE2d 458) (1988) (independent source rule).

        Hayes v. State, 262 Ga. 881, 884-885 (426 SE2d 886) (1993).

       In this enumeration of error, Demetrios makes the same claim with regard to Count 5, the aggravated sexual battery of victim B. However, he fails to support such claim, since his argument is directed solely to an alleged variance between the allegations of rape under Count 4 and the evidence sustaining the jury’s sexual battery verdict thereon.

       “A person commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.” OCGA § 16-6-22.1 (b). The offense of sexual battery is included in the offense of rape as a lesser offense without the additional elements of force and penetration. OCGA §§ 16-6-1 (a); 16-1-6 (1). See also Heard v. State, 236 Ga. App. 47 (510 SE2d 900) (1999).

       Victim B.’s testimony that during the course of the indicted act of rape, Demetrios also touched her breasts and vagina with his hands was not improper. Such was part of the res gestae of the crime and was admissible. See generally Green, Ga. Law of Evidence, §§ 289-298 (2nd ed. 1983) (Res gestae is the circumstances, acts, and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.).

        Hayes v. State, supra at 884-885.

       (Citation omitted.) Banks v. State, 230 Ga. App. 258, 259 (2) (495 SE2d 887) (1998).

        Walthour v. State, 269 Ga. 396, 399 (497 SE2d 799) (1998).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A00A1789.
    REDDING v. THE STATE.
    (541 SE2d 122)
   Miller, Judge.

Robert Redding pled guilty to criminal solicitation to commit murder, a criminal offense under OCGA § 16-4-7 (a). The court sentenced him to five years imprisonment (three to serve, two on probation). He appeals his conviction, enumerating as his sole error that the court erred in sentencing him to prison. Since his brief fails to support this enumeration by citation to relevant authority or with reasoned argument, it is deemed abandoned under Court of Appeals Rule 27 (c) (2).

Even if the enumeration were not abandoned, it would fail. OCGA § 16-4-7 (b) authorizes a five-year prison sentence for this offense. Generally, we do not review for legal error sentences within the statutory limits.

Rather than addressing the enumeration of error, Redding’s counsel’s argument in his brief consists entirely of the following sentence: “When the validity of a guilty plea is challenged, the burden is upon the State to demonstrate that the plea was intelligently and voluntarily entered. Morgan v. State, 191 Ga. App. 367, 368 [(381 SE2d 583) (1989)].” Redding’s counsel evidently has this inapplicable and barren argument and brief format stuck in his word processor. In 1997, he submitted the identical one-sentence argument in Brown v. State, which we held did not address his client’s enumerations of error. As we further determined in Brown, this terse argument certainly “does not contend that [appellant’s] guilty plea was not intelligently and voluntarily entered, or point to any facts to support such a contention.”

Decided October 24, 2000.

T. Mark Thedieck, for appellant.

J. David Miller, District Attorney, Jason C. Cain, Assistant District Attorney, for appellee.

Even if it did, we hold (as we did in Brown ) that the record demonstrates that Redding’s plea was intelligently and voluntarily made. Redding was not under the influence of drugs or alcohol and was represented by counsel at the time of the plea hearing. The court carefully explained to him his rights, including his right (1) not to incriminate himself, (2) to a jury trial, (3) to confront witnesses, (4) to subpoena witnesses and have them testify, (5) to testify on his own behalf and present other evidence, (6) to have his lawyer assist him, and (7) to the presumption of innocence. The judge instructed Red-ding that by pleading guilty he was giving up all these rights and would be sentenced by the judge within the limits set by law.

Redding stated that he understood his rights; that he had no questions; that he understood he was pleading guilty to criminal solicitation to commit murder, which he understood carried a possible penalty of five years imprisonment; that no threats, promises, or agreements had been made to induce his plea; and that he was acting freely and voluntarily. On five separate occasions during the hearing, Redding pled guilty to the charge. He specifically admitted to the State’s description of the facts showing that he offered someone $2,000 to kill a woman. The record amply meets the required showings that Redding’s guilty plea was freely, voluntarily, knowingly, and intelligently entered into as set forth in Green v. State and Morgan v. State.

Judgment affirmed.

Pope, P. J, and Mikell, J, concur.

        Small v. State, 243 Ga. App. 678, 680 (3) (534 SE2d 139) (2000).

       226 Ga. App. 309 (486 SE2d 429) (1997).

       (Emphasis in original.) Id. at 309-310. We admonish Redding’s counsel that such minimalist appellate advocacy is not to be repeated.

       Id. at 310.

       265 Ga. 263 (1) (454 SE2d 466) (1995).

       Supra, 191 Ga. App. at 367-368 (1); see Martin v. State, 268 Ga. 584, 585-586 (492 SE2d 223) (1997); Rooks v. State, 245 Ga. App. 655, 656-657 (3) (538 SE2d 555) (2000).


author: Mikell, Judge.

text:
    A00A1822.
    BROWN v. THE STATE.
    (541 SE2d 112)
   Mikell, Judge.

A jury found Ricky Razino Brown guilty of two counts of disorderly conduct. Brown appeals his conviction, challenging the sufficiency of the evidence. Brown also contends that the trial court erred by: (1) proceeding with a jury trial when it had no jurisdiction over the statute he allegedly violated; (2) proceeding upon an accusation filed by the solicitor without requiring a warrant; (3) failing to invoke the rule of sequestration against a surprise witness; (4) failing to exclude the testimony and statement of a surprise witness; (5) admitting evidence of a prior conviction; (6) admitting a document that had not been authenticated; (7) making a prejudicial statement; (8) limiting his closing argument; (9) failing to charge the jury on justification, intent, and defense of persons; and (10) denying Brown a presentencing hearing and the opportunity to poll the jury. Having determined that the evidence was sufficient to support the verdict and that no reversible error occurred, we affirm.

The standard of review applied in determining the sufficiency of the evidence is that of Jackson v. Virginia whether any rational trier of fact could have found guilt beyond a reasonable doubt. This Court has held, “[o]n appeal from a criminal conviction, the evidence must be construed in the light most favorable to [support] the verdict, and an appellant no longer enjoys [the] presumption of innocence.”

Viewed in the light most favorable to the verdict, the evidence shows that on May 5, 1999, at approximately 6:00 p.m., Luther and Tim Neace, employees of Tara Wrecker, went to Lake Harbin Apartments to remove 13 illegally parked cars. The apartment complex had contacted Tara Wrecker to provide this service. Courtesy Officer Danny Avery placed orange stickers on the windshields of all of the cars designated for towing.

In preparation to tow the first car, Luther Neace lowered the bed of his truck and loosened his chains to connect the car. Defendant Brown approached Luther Neace and asked what he was doing. Luther Neace testified that upon learning that the car was being removed, Brown became angry and told him, “That’s my so-and-so car.” In response, Luther Neace told Brown to contact the complex if he had a dispute. Neace testified that Brown pushed him and said, “I’ll kill you. If I ever catch you at a gas station or a food mart, I’ll beat you up.”

Tim Neace, Luther Neace’s nephew and co-worker, testified that he saw Brown push his uncle and that Brown also said he would kill Tim Neace as well. The Neaces testified that they feared that Brown might hurt them. Brown’s wife and an employee at Tara Wrecker’s home office both called the police.

Officer Hanner, the police officer who responded to the 911 call, testified that the scene was volatile when he arrived. Brown denied that he threatened to kill the Neaces, but admitted that he threatened to “kick their ass.” As a result, Officer Hanner placed Brown under arrest. Before leaving the scene, however, Officer Hanner released Brown and gave him a copy of the charges. Brown’s family members testified that he did not verbally threaten or touch anyone.

1. Brown claims the evidence was insufficient to sustain the convictions. We disagree. “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.” Additionally, this court will not second-guess what evidence the jury chose to believe. As long as there is some competent evidence on each element necessary to prove the state’s case, the jury’s verdict will be upheld.

In relevant part, OCGA § 16-11-39 (a) (1) provides: “A person commits the offense of disorderly conduct when such person . . . acts in a violent or tumultuous manner toward another person whereby such person is placed in reasonable fear of the safety of such person’s life, limb, or health.” Brown admitted that he threatened the Neaces. The Neaces testified that they were in fear for their safety. Although Brown’s family testified that he did not threaten the Neaces, conflicts in the witnesses’ testimony are properly resolved by the jury, not this court. Accordingly, we find that there was sufficient evidence to convict Brown.

2. In several enumerations of error, Brown argues that the state court lacked jurisdiction to preside over his trial since he was charged with violating a county ordinance. Brown’s argument is without merit. State courts have jurisdiction over the trials of misdemeanors, and the offense of disorderly conduct is a misdemeanor. Though the accusation upon which Brown was tried does not specifically cite OCGA § 16-11-39 (a) (1), the accusation mirrors the language of the statute. Brown was not tried for the violation of a county ordinance as he argues in his brief. Since the error enumerated on appeal did not occur, Brown’s arguments with respect to this issue are without merit. Furthermore, as Brown was accused of violating a state statute, any arguments regarding the county ordinance are inapposite, including challenges to the constitutionality of the ordinance.

Brown also argues that the state court had no jurisdiction because he did not file a demand for a jury trial. This argument, too, must fail for the reason stated above, i.e., the alleged error did not occur. Brown’s demand for a jury trial is contained in the record.

3. Brown contends that the trial court erred by proceeding with the trial on an accusation, instead of a warrant, which would have required a sworn affidavit. This contention must fail. OCGA § 17-7-71 (a) provides that

[i]n all misdemeanor cases . . . the defendant may be tried upon an accusation framed and signed by the prosecuting attorney of the court. The accusation need not be supported by an affidavit except in those cases where the defendant has not been previously arrested in conjunction with the transaction charged in the accusation and where the accusation is to be used as the basis for the issuance of a warrant for the arrest of the defendant.

In the instant case, no affidavit was required because both exceptions were met. Brown was arrested for the charged offenses at the scene. Also, the accusation was not intended or used as the basis for the issuance of a warrant for his arrest. Furthermore, “Georgia law allows misdemeanor charges to be brought by either accusation or indictment.”

Brown also argues that his arrest was unconstitutional because it was based upon an offense that did not occur in the presence of the officer. An arrest for a crime may be made by a law enforcement officer without a warrant if the offense is committed in such officer’s presence or within such officer’s immediate knowledge. In order to determine exactly what constitutes “immediate knowledge,” we must look to “the facts and circumstances existing within the knowledge of the arresting officer at the moment arrest is made.” In this case, Brown was arrested immediately after he admitted to the police officer that he threatened the Neaces. Therefore, even though the initial threat was made outside of the officer’s presence, it was within his immediate knowledge and justified the arrest. Accordingly, this argument is without merit.

4. Brown contends that the trial court erred by admitting the testimony of Officer Avery because he was not identified on the state’s witness list. Brown was charged with a misdemeanor, and the applicable statutory provisions for discovery differ somewhat from those applicable to felony prosecutions. The elective, optional mutual discovery provisions of OCGA § 17-16-1 et seq. are not available. The statute applicable to misdemeanor prosecutions expressly states that the list of witnesses shall be furnished “on demand.” Pursuant to OCGA § 17-16-21,

[p]rior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of the witnesses.

Since the language of this statute, pertaining now only to misdemeanors, is identical to that contained in now repealed OCGA § 17-7-110, the case law construing OCGA § 17-7-110 applies even though former § 17-7-110 applied to felonies and misdemeanors. In Tyus v. State, this Court held, “[w]here the record does not show that any demand for a list of witnesses was filed prior to arraignment as provided by OCGA § 17-7-110, the trial court does not err in permitting an unlisted witness to testify over objection.”

Brown served his demand for discovery upon the solicitor’s office. However, he did not file his demand with the clerk’s office; thus, it was not a part of the record before the trial judge. The trial judge examined the clerk’s record before overruling Brown’s objection to Avery’s testifying. Accordingly, under Tyus, the trial court was permitted to allow Avery’s testimony.

5. Brown argues that the rule of sequestration should have been applied to Officer Avery. The evidence shows that the state invoked the rule before opening arguments. During Officer Hanner’s testimony, the solicitor informed the court that Officer Avery was “here to testify.” At that moment, Brown did not object to a violation of the sequestration rule. Thus, there is no evidence that Avery was in the courtroom before he was called to testify. When Officer Avery was called to testify, again, Brown did not object to a violation of the sequestration rule. “As this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court.” Because Brown failed to raise this objection at trial, we cannot now consider it on appeal.

6. Brown argues that Officer Avery’s written statement and his testimony about his statement should have been excluded on the grounds that they constituted hearsay. “Hearsay evidence is that which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” Officer Avery’s statement was not based upon statements provided to him by others. It was written by Officer Avery and described his conduct when he tagged Brown’s car. Since Officer Avery was present to testify, neither his written statement nor his testimony about his statement constitutes hearsay.

Brown also contends that the written statement should have been excluded because it was not produced in response to his discovery demand. However, Georgia law does not require prosecutors to make their witnesses’ statements available for discovery by the defendant in a misdemeanor case.

In an attempt to prevent the testimony of Officer Avery, Brown filed a Brady motion in open court. However, there was no Brady violation. “The Brady line of cases protects defendants from prosecutors suppressing exculpatory evidence.” The evidence from Officer Avery’s statement, that he tagged Brown’s car, was not exculpatory evidence. Accordingly, we find these arguments lack merit.

7. Brown argues that his prior conviction should have been excluded since he was not given notice by the solicitor that it would be utilized during the trial. When the state tendered the prior conviction as an exhibit, Brown stated: “The defense will not object to her putting that in, because it was just something that happened.” Since Brown failed to object, he has waived this claimed error.

8. In Brown’s eighth enumeration of error, he argues that the trial judge erred when he commented upon what charge made against the defendant was important in this trial. Brown did not cite to the record for the alleged error. However, in his brief, he quotes the trial transcript where the error allegedly occurred. Sustaining the state’s objection, the trial judge told the jury:

Essentially what the officer charged the defendant with or what options he had in charging him with different offenses is basically irrelevant to you, because what binds you and what binds the inquiry that this Court is making is what charges are embodied in the four corners of the written accusation that’s presented to you.

Brown did not object to the judge’s statement during the trial.

OCGA § 17-8-57 provides that “[i]t is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” The question of whether a trial judge has violated this statute is not reached unless an objection or motion for mistrial is made. Furthermore, “[r]emarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.”

In this case, the issue was not properly preserved for review because Brown did not object or make a motion for a mistrial. Even if Brown had objected, there was no error since the trial judge was simply explaining his ruling to the jury. Therefore, this enumeration is without merit.

9. Brown contends the trial court improperly limited his closing argument. Brown argues that the jury should not have been told that statements made during closing argument are not evidence. He contends that he was prevented from “testifying” during his closing argument. Also, Brown argues that he should have been allowed to mention his possible punishment, if convicted, during his closing argument.

The statement by the court that counsel’s opening and closing arguments are not evidence is correct. Furthermore, since OCGA § 17-8-75 precludes counsel from making statements to the jury based upon facts which are not in evidence, the court’s rulings preventing Brown from testifying to facts not in evidence during his closing argument was correct. Finally, Georgia law provides that it is not error for the court to prevent counsel from mentioning the potential punishment which the defendant could receive if convicted. Consequently, this contention is without merit.

10. Brown argues that the trial court erred by failing to charge the jury on justification, intent, and defense of persons. However, the record reveals that the trial court charged the jury on justification and intent in accordance with the Pattern Jury Instructions. We agree with the trial court’s refusal to charge the jury on defense of persons. “It has long been the rule in this state that a request to charge must be correct, even perfect, and that it must also be legal, apt, precisely adjusted to some principle involved in the case and be authorized by the evidence.” Furthermore, “[i]t is never error to refuse to charge on an issue which is not adjusted to the evidence.” In this case, there is no evidence that Brown was defending a person at the time he threatened the Neaces. On the contrary, the evidence shows that Brown was defending his car. Accordingly, the charge of defense of persons was not adjusted to the evidence, and the trial court did not err by refusing to give it.

11. Finally, Brown contends the trial court erred by denying him the opportunity to poll the jury and to have a presentencing hearing. When asked whether he wanted to poll the jury, Brown said he did not. Thus, Brown waived the opportunity. Further, OCGA § 17-10-2 provides for presentence hearings in felony cases, not misdemeanor cases. Therefore, this contention, too, fails.

In any event, Brown did not request a presentence hearing despite the trial court’s inquiries as to whether Brown wanted to submit additional evidence or offer anything in closing prior to sentencing. As stated earlier, the failure to object waived the claimed error.

Judgment affirmed.

Pope, P. J, and Miller, J., concur.

Decided October 24, 2000.

Ricky R. Brown, pro se.

Keith C. Martin, Solicitor, Evelyn P. Sandefur, Assistant Solicitor, for appellee.

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

        Hight v. State, 221 Ga. App. 574-575 (1) (472 SE2d 113) (1996).

        Hight, supra at 575 (1).

        Camp v. State, 181 Ga. App. 714 (353 SE2d 832) (1987).

        Jackson v. State, 236 Ga. App. 260, 261 (511 SE2d 615) (1999); see Knight v. State, 239 Ga. App. 710, 713 (2) (521 SE2d 851) (1999).

        Jackson, supra.

       OCGA § 15-7-4 (a) (1).

       OCGA § 16-11-39 (b).

        Dukes v. State, 224 Ga. App. 305, 306 (480 SE2d 340) (1997).

       Id.

       See also Blankenship v. State, 208 Ga. App. 710 (431 SE2d 481) (1993).

        Wooten v. State, 240 Ga. App. 725, 726 (524 SE2d 776) (1999).

       OCGA § 17-4-20 (a).

        Barnett v. State, 204 Ga. App. 491, 493 (420 SE2d 43) (1992).

        Satterfield v. State, 228 Ga. App. 89 (491 SE2d 189) (1997).

       196 Ga. App. 857 (397 SE2d 194) (1990).

       (Punctuation omitted.) Id. at 858 (3).

        Cheesman v. State, 230 Ga. App. 525 (497 SE2d 40) (1998).

        Hight, supra at 576 (6).

       Avery’s statement provided, “On the evening of April 29th, 1999, while patrolling the property at 2070 Lake Harbin Road, I tagged a white vehicle in front of apartment number D-6 for having an expired tag.”

       OCGA § 24-3-1.

        Walter v. State, 256 Ga. 666 (352 SE2d 570) (1987); OCGA § 17-16-20 et seq.

        Walter, supra at 668. See Stevens v. State, 242 Ga. 34 (1) (247 SE2d 838) (1978); Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974).

        Wynn v. State, 225 Ga. App. 206 (483 SE2d 352) (1997); Burruss v. State, 242 Ga. App. 241, 243 (529 SE2d 375) (2000) (even when the state is required to give notice of its intent to admit prior convictions into evidence before sentencing, if the defendant failed to object, the issue is not preserved for review).

        Richards v. State, 232 Ga. App. 584, 587 (2) (502 SE2d 519) (1998).

       (Punctuation omitted.) Johnson v. State, 234 Ga. App. 58, 59 (1) (506 SE2d 212) (1998), citing McGinnis v. State, 258 Ga. 673, 675 (4) (372 SE2d 804) (1988).

        Stokes v. State, 232 Ga. App. 232 (501 SE2d 599) (1998).

        Hill v. State, 239 Ga. 799 (239 SE2d 15) (1977).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 2 (I); Part 3 (AA) (4) (2nd ed. 1991).

        Freeman v. State, 268 Ga. 185,189 (4) (486 SE2d 348) (1997); see also McCoy v. State, 262 Ga. 699, 701 (3) (a) (425 SE2d 646) (1993); Hill v. State, 211 Ga. 683, 685 (4) (88 SE2d 145) (1955).

        Chester v. State, 267 Ga. 9 (471 SE2d 836) (1996), citing Bland v. State, 210 Ga. 100, 107 (8) (78 SE2d 51) (1953).

        Martin v. State, 219 Ga. App. 277, 281 (5) (464 SE2d 872) (1995).


author: Johnson, Chief Judge.

text:
    A00A1938, A00A2302.
    DOVER et al. v. CITY OF JACKSON et al.; and vice versa.
    (541 SE2d 92)
   Johnson, Chief Judge.

This zoning case arises out of a five-year dispute between Dover Realty Company and Ben Dover (collectively “Dover Realty”) and the City of Jackson, its Mayor and its council members (collectively “City of Jackson”) regarding the City of Jackson’s refusal to rezone Dover Realty’s property. Since the time Dover Realty purchased its residential property (the “subject property”) in 1995, it has filed three rezoning applications and two lawsuits. Dover Realty voluntarily dismissed its first lawsuit, and the trial court awarded the City of Jackson attorney fees.

On January 5, 1996, Dover Realty reapplied to have its property rezoned commercial. Dover Realty’s rezoning application proposed the construction of a 28-room motel on the subject property. On March 5, 1996, the Jackson City Council unanimously denied Dover Realty’s rezoning application.

On April 3, 1996, Dover Realty filed the present complaint, asserting (1) federal constitutional claims, (2) federal damages claims, (3) state law damages claims, and (4) state constitutional claims. During the ensuing four years of litigation, either Dover Realty voluntarily dismissed its federal and state law claims or the trial court awarded judgment to the City of Jackson on these claims. The only remaining claim is a declaratory judgment action to determine whether the Jackson Zoning Ordinance, as applied to the subject property, is unconstitutional.

In Case No. A00A1938, Dover Realty appeals the grant of summary judgment to the City of Jackson with regard to Dover Realty’s claims for attorney fees, costs and expenses of litigation under (1) its request for state law damages based on OCGA § 13-6-11, and (2) its just compensation and equal protection claims based on 42 USC §§ 1983 and 1988. In Case No. A00A2302, the City of Jackson appeals the trial court’s ruling that a jury shall consider whether the City of Jackson acted arbitrarily in refusing to rezone the subject property. We will consider these cases together.

Case No. A00A1938

On appeal from the grant of summary judgment, this court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden

by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.

1. Dover Realty first contends the trial court erred in granting the City of Jackson’s motion for summary judgment with respect to Dover Realty’s claim for attorney fees and expenses of litigation under OCGA § 13-6-11. The trial court granted this motion on the ground that Dover Realty failed to comply with the ante litem notice requirement of OCGA § 36-33-5. Under this statute,

No person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.

It is clear that the ante litem notice requirement applies in zoning cases in which a party seeks damages under Georgia law. Moreover, it is undisputed that Dover Realty failed to comply with the ante litem notice requirement of OCGA § 36-33-5. However, Dover Realty attempts to avoid the consequences of its failure to comply with the ante litem notice requirement by claiming that the notice requirement does not apply to its claim for attorney fees and costs of litigation because the only issue remaining in the case is an equity issue and not a claim for money damages. We disagree.

It is true that a litigant seeking equitable relief is not bound by the ante litem notice requirement of OCGA § 36-33-5. However, a claim for attorney fees and costs of litigation under OCGA § 13-6-11 is clearly a claim for damages and clearly seeks monetary, rather than equitable, relief. Even though Dover Realty’s claim for attorney fees and costs of litigation may be ancillary to its claim for equitable relief, it is nonetheless a claim for money damages. Thus, under a strict reading of the ante litem notice statute, Dover Realty’s failure to comply with the notice requirement of OCGA § 36-33-5 precludes its ability under Georgia state law to sue for money damages in the form of attorney fees and costs of litigation. The trial court did not err in granting the City of Jackson’s motion for summary judgment with respect to Dover Realty’s state law claim for attorney fees and costs of litigation.

Because a trial court’s grant of summary judgment will be affirmed if it is right for any reason, we need not address Dover Realty’s remaining enumerations of error regarding the trial court’s grant of summary judgment as to Dover Realty’s state law claim for attorney fees and litigation costs.

2. Dover Realty also contends the trial court erred in granting the City of Jackson’s motion for summary judgment with respect to Dover Realty’s claim for attorney fees and expenses of litigation under 42 USC §§ 1983 and 1988. The trial court granted this motion on the ground that the denial of Dover Realty’s application for rezoning did not deprive it of any constitutional right which could be remedied under 42 USC § 1983. Dover Realty contends the trial court erred in making this finding because genuine issues of material fact exist as to whether (1) the City of Jackson’s repeated refusals to rezone the property denied Dover Realty all economically viable use of the property and (2) the City of Jackson’s allegedly disparate treatment of Dover Realty violated Dover Realty’s equal protection rights. We find no error.

We first note that the ante litem notice requirement of OCGA § 36-33-5 does not apply to actions filed pursuant to 42 USC § 1983. 42 USC § 1983 provides a federal remedy in damages when a person, acting under color of state law, deprives another of “any rights, privileges, or immunities secured by the Constitution and laws.” 42 USC § 1988 (b) authorizes a trial court, in the exercise of its discretion, to award reasonable attorney fees to the prevailing party in an action to enforce 42 USC § 1983.

(a) Federal Just Compensation Claim. Only a handful of Georgia cases have discussed 42 USC § 1983 damages in the context of land development and rezoning. In Cobb County v. McColister, the property owner filed an application to rezone his property, which was denied by the Cobb County Board of Commissioners. When the property owner appealed the decision to superior court, the trial court determined that the existing zoning was unconstitutional. The property owner argued that there had been an unconstitutional taking of his property and sought damages pursuant to 42 USC § 1983. The trial court granted the property owner’s request for § 1983 damages incurred from the time he filed his application until the time the trial court overruled the commission’s decision. The Supreme Court of Georgia, however, reversed the trial court’s decision, finding that the property owner had not suffered a compensable taking under the Fifth Amendment to the United States Constitution because he was not deprived of all use of his property when the commission refused to grant his application for rezoning. According to the Supreme Court, the property owner “still had possession and use of the land where he could have built in accordance with the existing zoning or applied for a different type of zoning.”

Similarly, in Forsyth County v. Greer, the property owners brought an inverse condemnation suit against Forsyth County for delay in issuing permits and certificates necessary to develop a subdivision. We denied the property owners’ request for damages under 42 USC § 1983, finding that the delay of completion of their project was not sufficient to show a § 1983 violation. And, in Whipple v. City of Cordele, we held that a property owner was not entitled to damages under 42 USC § 1983 when a new ordinance made it illegal for her to stable horses at her city residence. Since the deprivation of the property owner’s right to use her property to stable horses was not the deprivation of a vested right, such deprivation did not entitle her to bring an action under 42 USC § 1983.

In the present case, Dover Realty has not been deprived of all use of the property. As in McColister, Dover Realty “still had possession and use of the land where [it] could have built in accordance with the existing zoning or applied for a different type of zoning.”

The case of Lucas v. South Carolina Coastal Council is inapposite. In Lucas, unlike Dover Realty, the property owner was prohibited from developing his property in any manner due to a newly enacted law. The United States Supreme Court held that a landowner must show that he has been deprived of all economically beneficial use of the property. Here, even if the present zoning is deemed unconstitutional, Dover Realty has not been deprived of all economically beneficial use of its property. Because Dover Realty did not suffer a taking that denied it all use of its property, or all economically beneficial use of its property, when its application for rezoning was denied, it did not suffer a taking compensable under the Fifth Amendment of the United States Constitution and, therefore, was not deprived of a right secured by the United States Constitution, the violation of which could be remedied under 42 USC § 1983. The trial court did not err in granting the City of Jackson’s motion for summary judgment on Dover Realty’s claim for federal damages pursuant to 42 USC § 1983.

(b) Federal Equal Protection Claim. The Equal Protection Clause is essentially a direction that all persons similarly situated should be treated alike. In this case, Dover Realty has shown no one similarly situated who has been treated more favorably. While Dover Realty argues that area property has been rezoned to include a restaurant, a day care center, and multi-storage facilities, the record is void of the City of Jackson’s treatment of similar uses such as that proposed by Dover Realty (e.g., motels). Since Dover Realty has failed to show that others similarly situated were treated differently, it has failed to make out an equal protection claim.

Further, even if Dover Realty had shown it was similarly situated with other property owners whose rezoning applications were granted, Dover Realty has failed to show that the City of Jackson’s decision was not rationally related to a legitimate government interest. The City of Jackson asserts that it denied Dover Realty’s application for rezoning in an effort to preserve the character of the residential neighborhood. The record shows that a number of residential properties abut the subject property and that the area in which the property is located is approximately 70 percent residential. Preserving the character of an existing neighborhood is a legitimate purpose of zoning and planning. Thus, Dover Realty fails to state a claim that the City of Jackson violated its rights to equal protection. None of the claims advanced by Dover Realty warrant reversing the trial court’s order granting summary judgment to the City of Jackson on this ground.

Case No. A00A2302

On November 19, 1999, the trial court ruled, “IT IS HEREBY CONSIDERED after consideration of all pleadings and orders in this case, that the jury shall consider the following question only: Did the City act arbitrarily in refusing to rezone the property?” The City of Jackson contends the trial court erred (1) in the way it phrased the issue remaining in the case, and (2) in ruling that a jury shall consider the remaining issue. According to the City of Jackson, the proper standard employed in a rezoning case is whether the present zoning ordinance is unconstitutional, not whether a refusal to rezone was unconstitutional. In addition, the City of Jackson contends that the trial court, not a jury, is responsible for deciding the constitutionality issue. Both assertions are correct.

3. To the extent that the trial court’s ruling indicates that the issue to be resolved is whether the City of Jackson’s determination not to rezone Dover Realty’s property from residential to commercial was arbitrary, the trial court erred. In a declaratory judgment involving a zoning case, courts begin with the proposition that a zoning ordinance is presumptively valid. The challenger to the validity of the zoning ordinance has the burden to present clear and convincing evidence that he has suffered a significant loss which is unsubstantially related to the public health, safety, morality, or welfare. The challenger may also prove that the zoning ordinance is not being enforced in a reasonable and nondiscriminatory manner. If the challenger satisfies this initial burden, then the governing authority must offer evidence that the existing zoning classification is indeed in the public’s interest. A balancing test is used by the trial court to decide the result. Thus, the issue to be determined is whether the zoning ordinance applicable to the property is constitutional, not whether a governing authority’s decision not to rezone a property to another zoning classification is arbitrary.

Decided October 24, 2000

Charles L. Ruffin, Joel V. Sherlock, for appellants.

Chilivis, Cochran, Larkins & Bever, James D. Durham, for appellees.

As Dover Realty concedes in its brief on appeal, the only issue remaining in the case is a declaratory judgment action to determine whether the Jackson Zoning Ordinance, as it is applied to the subject property, is unconstitutional under Georgia law. The trial court is directed to determine the remaining issue in this case using the legal standard we have cited.

4. The City of Jackson also asserts that the trial court erred in ruling that a jury shall consider the remaining issue. The City of Jackson is correct in its conclusion that the constitutionality of zoning is not a jury issue. Constitutionality is a question of law for the court and not a question of fact for a jury. Thus, to the extent that the trial court’s ruling purports to assign the court’s duty to determine the constitutionality of the zoning ordinance to a jury, such a ruling is in error. However, as both parties point out, a trial court may submit questions of fact to the jury in the form of special verdicts if, in its discretion, it desires to seek a jury’s aid to resolve specific factual disputes. The court then will have the facts as determined by the jury’s special verdict in deciding the ultimate constitutional issue. As Dover Realty points out, whether a zoning ordinance has been enforced in a uniform and nondiscriminatory manner is a question of fact that may be submitted to a jury for a special verdict. Thus, while a jury may decide whether the City of Jackson acted arbitrarily in refusing to rezone the property, this is not the true issue remaining in the case, and this issue does not necessarily need to be decided by a jury. The trial court is directed to determine the remaining issue in this case consistent with the law we have cited.

Judgment affirmed in Case No. A00A1938.

Order vacated and case remanded with direction in Case No. A00A2302.

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

       On May 9, 1997 (after the City of Jackson filed a summary judgment motion), Dover Realty dismissed all of its state law damages claims, as well as its procedural due process federal damages claims. On February 2, 1999, the trial court granted the City of Jackson’s motion for summary judgment on Dover Realty’s remaining federal damages claims under 42 USC § 1983. On November 22,1999, the City of Jackson was granted summary judgment on Dover Realty’s state law damages claim under OCGA § 13-6-11.

        Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993).

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       OCGA § 36-33-5 (a).

       See Brownlow v. City of Calhoun, 198 Ga. App. 710, 712 (2) (402 SE2d 788) (1991).

       See Thompson v. City of Atlanta, 219 Ga. 190, 192 (2) (132 SE2d 188) (1963).

       See generally Whipple v. City of Cordele, 231 Ga. App. 274, 275 (2) (499 SE2d 113) (1998).

        Schoen v. Cherokee County, 242 Ga. App. 501, 503 (3) (530 SE2d 226) (2000).

        Armour v. Davidson, 203 Ga. App. 12 (1) (416 SE2d 92) (1992).

       261 Ga. 876 (413 SE2d 441) (1992).

       Id. at 877.

       211 Ga. App. 444 (439 SE2d 679) (1993).

       Id. at 446-447.

       Supra at 274.

       Id. at 277 (4).

        McColister, supra at 877.

       505 U. S. 1003 (112 SC 2886, 120 LE2d 798) (1992).

       Id. at 1018-1019.

        Spence v. Zimmerman, 873 F2d 256, 261 (11th Cir. 1989).

       See Mackenzie v. Rochledge, 920 F2d 1554, 1560 (11th Cir. 1991).

       See Moore v. City of Edgewood, 790 FSupp. 1561, 1568 (M.D. Fla. 1992).

       See Flournoy v. City of Brunswick, 248 Ga. 573, 574 (285 SE2d 16) (1981).

        Jones v. City of Atlanta, 257 Ga. 727, 728 (363 SE2d 254) (1988).

       See Gwinnett County v. Davis, 271 Ga. 158 (517 SE2d 324) (1999); Jones, supra.

        Gouge v. City of Snellville, 249 Ga. 91, 94 (4) (287 SE2d 539) (1982).

        Jones, supra at 729.

       Id.

        Guhl v. Davis, 242 Ga. 356, 357-358 (249 SE2d 43) (1978).

       Id. at 358; see also OCGA § 9-11-49.

        Gouge, supra; see Matthews v. Fayette County, 233 Ga. 220, 226 (210 SE2d 758) (1974).


author: MIKELL, Judge.

text:
    A00A1967.
    BRYAN v. THE STATE.
    (541 SE2d 97)
   MIKELL, Judge.

William Randall Bryan, then aged thirty-five, was indicted for statutory rape (two counts), child molestation (two counts), aggravated child molestation (two counts), sodomy (two counts), and enticing a child for indecent purposes, based on acts committed against a fifteen-year-old girl. A jury convicted the defendant of one count of child molestation, one count of statutory rape, and enticing a child for indecent purposes. A mistrial was declared on the other counts, and the defendant’s motion for new trial was denied. On appeal, the defendant contends that the trial court erred in admitting into evidence 26 pornographic images that had been stored on computers retrieved from his home and workshop. We disagree and affirm the defendant’s convictions.

1. Georgia Bureau of Investigation (“GBI”) Investigator Wayne White testified that the defendant’s wife called him on April 20, 1998, indicating that she had discovered on the family’s home computer “36 different pornographic files of teenage girls in various sex acts.” Two search warrants were obtained and executed, one for the home computer and the second for the computer located in Bryan’s workshop. Thomas Wade Grant, Chief Forensic Computer Auditor for the GBI, who testified for the state as an expert data recovery specialist, downloaded the images, which depicted teenaged girls engaged in “group sex, interracial sex, bondage, and lesbianism.” Twenty-six pornographic images were projected on a screen for the jury to view.

In three related enumerations of error, the defendant challenges the admission of the computer images into evidence. He contends that the images portrayed illegal acts similar to those for which he was convicted and, as such, were subject to Uniform Superior Court Rule (“USCR”) 31.3, governing the admission of similar transaction evidence. We disagree. The images viewed by the jury do not depict the defendant. They are not similar transactions or prior bad acts, as they would be if, for example, they depicted the defendant engaging in sexual activity with a minor. Accordingly, we reject the defendant’s argument that the state was required to comply with the mandates of USCR 31.3 and Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991), prior to the admission of the evidence in question.

We next consider the defendant’s argument that the admission of the evidence contravened the rule recently enunciated by the Supreme Court in Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999):

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Decided October 24, 2000.

Garland, Samuel & Loeb, Nelson O. Tyrone III, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

Id. at 774.

Applying Simpson retroactively to the case sub judice, we conclude that the evidence at issue passes its stringent relevancy test. The graphic images showed teenaged girls committing various sexual acts. They were relevant to show Bryan’s bent of mind to engage in sexual activity with the victim, a 15-year-old girl. Cf. Frazier v. State, 241 Ga. App. 125, 126 (1) (524 SE2d 768) (1999) (sexually explicit materials did not depict children). It follows that the trial court did not abuse its discretion in admitting the evidence.

2. Defendant’s final enumeration of error asserts for the first time on appeal that his trial counsel was ineffective. The record reflects that trial counsel filed the initial motion for new trial. However, appellate counsel filed an amended motion which failed to raise an ineffectiveness claim.

[T]he rule that an ineffectiveness claim must be raised “at the earliest practicable moment” requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising the issue at a later time.

(Emphasis in original.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996).

The defendant had the opportunity to raise his claim of ineffective assistance of trial counsel in his amended motion for new trial. Accordingly, the claim is now procedurally barred. Whitaker v. State, 244 Ga. App. 241, 243-244 (3) (535 SE2d 283) (2000).

Judgment affirmed.

Pope, P. J, and Miller, J., concur.


text:
    A00A2028.
    BLAIR v. THE STATE.
    (541 SE2d 120)
   Mikell, Judge.

A jury found Kenneth C. Blair guilty of three counts of entering an automobile with the intent to commit theft, OCGA § 16-8-18. The trial court denied his motion for new trial. On appeal, Blair argues that the evidence is insufficient because the testimony of his accomplice was not corroborated, as required in felony cases by OCGA § 24-4-8. We find that the state presented sufficient evidence to corroborate the accomplice’s testimony and affirm Blair’s conviction.

On appeal, this Court views the evidence in a light most favorable to the verdict; we determine evidence sufficiency and do not weigh the evidence or determine witness credibility. Palmer v. State, 243 Ga. App. 656 (533 SE2d 802) (2000). So viewed, the evidence shows that three “smash and grab” thefts occurred in the parking lots of three restaurants in Bibb County on August 22, 1998. The three victims each testified that after finishing their meals, they returned to their vehicles to find either a passenger’s side or driver’s side window smashed. Purses were taken from two of the vehicles, and a camera and tool set were stolen from a third vehicle. During that day, credit cards bearing the names of two of the victims were used to make unauthorized purchases at a nearby mall and gas station.

Security officers at the mall caught a woman later identified as Kathy Scott with some of the stolen credit cards. She gave the officers a description of Blair and his truck and disclosed the location in the mall parking lot where he awaited her. Based on this information, officers found Blair. Stolen goods, screwdrivers, and items obtained through the fraudulent use of stolen credit cards were discovered in his truck.

Scott was the state’s key witness. She testified that she waited in the truck while Blair broke into all three vehicles utilizing a screwdriver. According to Scott, Blair removed the credit cards from the purses and threw the purses away. She and Blair then used the credit cards to buy gas, beer, and cigarettes at a gas station as well as merchandise at the mall. Scott further testified that they made two trips to the mall. Blair went with her the first time, and they bought jewelry, including a gold chain she saw him wearing at their joint arraignment. Finally, Scott testified that the state had promised her no leniency for her testimony, and that she was unaware at the time she pleaded guilty to three counts of financial transaction card fraud that she would be summoned to testify against Blair.

While the testimony of a single witness usually is sufficient to establish a fact, in order to sustain a felony conviction based upon the testimony of an accomplice, there must be independent corroborating evidence which connects the accused to the crime. While such corroborating evidence must do more than merely “cast on the defendant a grave suspicion of (doubt),” it may consist entirely of circumstantial evidence, or evidence of an accused’s conduct before and after the crime that infers he participated therein. The sufficiency of the corroborating evidence is a matter for the jury, and if the verdict is based upon the slightest evidence of corroboration connecting an accused to a crime, even if it is circumstantial, it is legally sufficient.

Decided October 24, 2000.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Marci F. Goldman, Dorothy A. Vinson, Assistant District Attorneys, for appellee.

(Footnotes omitted.) Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996). Here, Blair’s unexplained recent possession of items stolen from the victims’ vehicles, as well as his possession of screwdrivers used to break into the vehicles, is substantially more than the slight evidence needed to corroborate Scott’s testimony. It follows that the trial court did not err in denying Blair’s motion in limine to exclude the testimony of his accomplice. Finally, we hold that the evidence authorized the jury’s finding that Blair was guilty, beyond a reasonable doubt, of entering an automobile with the intent to commit theft. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


text:
    A00A2168.
    ROBERSON v. THE STATE.
    (540 SE2d 688)
   Mikell, Judge.

Roosevelt Roberson was indicted by a Richmond County grand jury on the offenses of possession of marijuana with intent to distribute, manufacturing marijuana, and possession of a firearm by a convicted felon. After the trial court denied his motion to suppress, Roberson waived his right to a jury trial. At the close of the bench trial, Roberson was convicted of the two drug offenses and was acquitted of the firearm offense. Roberson appeals. We affirm.

Viewed in the light most favorable to support the verdict, the evidence shows that, on May 14, 1999, narcotics officers with the Richmond County Sheriff’s Department obtained a search warrant for Roberson’s residence. The officers conducted surveillance of the residence for approximately 30 minutes, until Roberson arrived. They detained Roberson and searched his truck, finding marijuana.

Next, the officers searched Roberson’s mobile home and lot. They found 25 marijuana plants growing inside a storage shed on the property. They also found a heat lamp, fertilizer, potting soil, and several buckets of water near the plants. The officers recovered 14 bags of marijuana in a footlocker buried under the defendant’s mobile home. Further search yielded a buried safe containing over $27,000 in cash. Lieutenant Clark Hiebert of the Jefferson County Sheriff’s Department and the Augusta Drug Enforcement Agency Task Force testified that he discovered two additional bags of marijuana hidden under a loose board beneath the trailer. A forensic drug chemist with the Georgia Bureau of Investigation testified that the total weight of the packaged marijuana was approximately ten pounds.

The officers also found several weapons, as well as two 2-way radios and $495 in cash, inside the mobile home in the room Roberson identified as his bedroom. Investigator Barry Davis testified that the bedroom contained male clothing and “paper work with [Roberson’s] name on it in the dresser.”

1. Roberson enumerates as error the denial of his motion to suppress, arguing that no probable cause existed for the issuance of the search warrant.

On appeal, we pay substantial deference to the decision of the magistrate to issue the warrant and construe the evidence in favor of the trial court’s determination that probable cause existed. In Mitchell v. State, we enumerated three principles to guide appellate courts in reviewing a trial court’s ruling on a motion to suppress evidence seized during the execution of a search warrant:

First, the trial judge sits as the trier of facts, and his findings are analogous to a jury verdict and should not be disturbed if there is any evidence to support the findings. Second, the trial court’s decisions on the credibility of witnesses and questions of fact must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s findings and judgments.

So viewed, the evidence shows that Investigator Davis presented a sworn affidavit to the magistrate in order to obtain the search warrant. In the affidavit, Investigator Davis stated that he had been contacted within the previous forty-eight hours by a confidential informant, that he had known the informant for two years, and that the informant had provided information regarding Roberson which had been corroborated by independent investigation. Investigator Davis also stated in his affidavit that the informant had observed a large amount of marijuana being stored by the defendant at the residence and had observed weapons on the property.

In addition, Investigator Davis testified at the suppression hearing that he provided oral testimony to the magistrate in support of the warrant. According to Investigator Davis, he did not include certain information in the written affidavit in an effort to protect the identity of the informant. The oral testimony provided the magistrate with the following information: that the informant had been to the defendant’s residence within the previous two days; that law enforcement officers had observed the informant meeting with Roberson; that the informant believed that marijuana was buried under the mobile home; and that Investigator Davis had successfully relied upon information from that particular informant in the past. Investigator Davis further testified that, as a result of cooperation with law enforcement, the informant was given consideration by the district attorney’s office regarding criminal charges pending against him.

In determining whether an affidavit provided probable cause for the issuance of a search warrant, the Supreme Court in Illinois v. Gates adopted the totality of the circumstances test, which was subsequently adopted by the Supreme Court of Georgia in State v. Stephens. Under this analysis,

[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 concluding that probable cause existed.

We have since held that oral testimony may be considered in support of the issuance of a warrant, in addition to information presented by affidavit.

Roberson contends that the magistrate did not possess sufficient information to determine the reliability of the confidential informant, because Investigator Davis failed to disclose the charges pending against the informant or the favorable treatment he received in exchange for his cooperation.

We conclude, however, that under the totality of the circumstances, the information in the affidavit, as well as that presented orally, provided a substantial basis for the magistrate’s finding of probable cause. The information presented to the magistrate allowed him to gauge independently the reliability of both the informant and the information. While Investigator Davis’s statement that the informant was reliable, standing alone, cannot provide a substantial basis for probable cause, the magistrate could determine the informant’s reliability through other indicia. Specifically, Investigator Davis swore that the informant had provided information in the past which led to seizures, arrests, and convictions; that the informant had provided the information at issue within two days prior to the application for a warrant; and that the informant had been on the defendant’s premises within the past few days. The record is unclear as to whether the informant visited the defendant two days prior to the application for the warrant or two days prior to his telling the officer about the contraband. This is an example of the type of ambiguity which should be resolved by drawing all inferences in favor of supporting the magistrate’s decision rather than undoing it.

While the better practice would have been for Investigator Davis to provide the magistrate with all of the information he possessed regarding the informant’s reliability, the lack of specificity about the informant’s pending criminal charges was offset by the other indicia of the informant’s reliability. Additionally, “[b]ecause of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, the resolution of close questions . . . should favor validating the warrant.” Therefore, the trial court properly denied the motion to suppress and admitted the evidence obtained in the search.

2. Next, Roberson contends that there was insufficient evidence to sustain his conviction. On appeal, Roberson no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the verdict. Our review is limited to determining whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt.

We conclude that the evidence adduced at trial amply supports Roberson’s conviction of possession of marijuana with intent to distribute and of manufacturing marijuana.

The defendant contends that he was merely in the vicinity of the contraband, and that the state failed to establish possession. Contrary to Roberson’s argument, however, the evidence sustained the court’s determination that he was in possession of marijuana. First, Investigator Davis testified that Roberson indicated that he occupied the master bedroom of the home where the drugs and money were found. Further, the officers observed documents belonging to Roberson in the dresser drawers. Significantly, the defense did not present any evidence to establish or even to suggest that another individual resided in the home or had equal access to the contraband.

Furthermore, the requisite finding of possession is also supported by the testimony of Investigator Davis regarding the tip from the confidential informant. According to Investigator Davis, the informant reported that Roberson had buried marijuana under his home, and that he was growing marijuana on his property. This report was corroborated upon the execution of the search warrant for Roberson’s residence.

Roberson’s intent to distribute the drug was evidenced by the large quantity of marijuana divided into individual packages, the 25 marijuana plants, and the large amount of cash discovered by law enforcement officers. Similarly, his conviction for manufacturing marijuana was supported by evidence of the plants, heat lamps, fertilizer, and potting soil.

3. Finally, Roberson argues that the trial court improperly restricted his cross-examination of Investigator Davis by refusing to allow questions regarding the specific charges pending against the confidential informant.

Decided October 24, 2000.

Peter D. Johnson, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

It is well settled that the admission of evidence at trial is within the discretion of the trial court.

Although each party is entitled to a thorough and sifting cross-examination, that right is not unfettered. The trial court may, in its discretion, restrict the scope of cross-examination to the relevant issues. The court’s discretion will not be interfered with on appeal unless abuse is present.

In Gremillion v. State, we concluded that a trial court did not abuse its discretion when it limited a defendant’s cross-examination of a police officer because the answers could have revealed the identity of a confidential informant. In Gremillion, as in the case sub judice, the trial court did not completely restrict cross-examination concerning the informant’s reliability and veracity; rather, it carefully protected the identity of the informant.

Here, the court permitted defense counsel to elicit testimony regarding the informant’s motivation for providing information. Specifically, the defense was allowed to ask Investigator Davis whether charges were pending against the informant and whether any of the charges had been dismissed as a result of the informant’s cooperation with law enforcement. The defense also inquired into the fact that the informant had provided information to the authorities in the past and into his reliability. Because the trial court allowed the defense to probe the veracity of the informant, we conclude that it did not abuse its discretion in limiting the cross-examination of Investigator Davis.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

        DeYoung v. State, 268 Ga. 780, 787 (7) (493 SE2d 157) (1997); Houston v. State, 242 Ga. App. 114, 115 (1) (527 SE2d 619) (2000); Pettus v. State, 237 Ga. App. 143, 144 (2) (514 SE2d 901) (1999); Hayes v. State, 182 Ga. App. 319, 320 (355 SE2d 700) (1987).

       239 Ga. App. 735 (521 SE2d 873) (1999).

       (Citations omitted.) Id.

       462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

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

       (Citation and punctuation omitted.) Id. at 182.

        York v. State, 242 Ga. App. 281, 293 (7) (528 SE2d 823) (2000); Pettus, supra, 237 Ga. App. at 144 (2); Gibson v. State, 223 Ga. App. 103, 104 (2) (476 SE2d 863) (1996).

       See Clark v. State, 235 Ga. App. 569, 570 (1) (510 SE2d 319) (1998). See also Sawyer v. State, 227 Ga. App. 493, 494 (2) (489 SE2d 518) (1997).

       See Branton v. State, 240 Ga. App. 106, 107 (522 SE2d 694) (1999).

       See Kessler v. State, 221 Ga. App. 368, 370 (471 SE2d 313) (1996).

       See Clark v. State, 243 Ga. App. 362 (532 SE2d 481) (2000); Mitchell, supra, 239 Ga. App. at 736-737. Compare Robertson v. State, 236 Ga. App. 68, 70 (510 SE2d 914) (1999).

        Branton, supra, 240 Ga. App. at 108.

        Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

       OCGA § 16-13-30 (b).

       See Brown v. State, 244 Ga. App. 440, 442 (2) (535 SE2d 785) (2000).

       See Gremillion v. State, 233 Ga. App. 393, 396-397 (3) (504 SE2d 265) (1998). Compare Parris v. State, 226 Ga. App. 854, 856 (487 SE2d 690) (1997).

        Sweeney v. State, 233 Ga. App. 862, 866 (6) (506 SE2d 150) (1998); Murray v. State, 219 Ga. App. 405, 407 (465 SE2d 515) (1995).

       (Citations omitted.) Id. at 407.

       Supra, 233 Ga. App. 393.


text:
    A00A2225.
    WOODRUFF v. THE STATE.
    (541 SE2d 99)
   Miller, Judge.

Convicted of trafficking in cocaine, Edward Woodruff appeals on two grounds: (1) the evidence was insufficient, and (2) the court erred in accepting an officer as an expert in narcotics deals and allowing him to testify why more than one person may be involved on the seller’s side of a large drug transaction. Since the evidence amply supported the conviction, and since the officer did not render an expert opinion but only testified as to why two people were involved as sellers in this particular sale, we affirm.

1. When sufficiency of the evidence is raised, the question on appeal is whether, based on the evidence presented, a rational trier of fact could have found the accused guilty of the charged crime beyond a reasonable doubt. We construe the evidence in favor of the verdict.

So construed, the evidence showed that two undercover officers testified that co-indictee John Tate and Woodruff met with one of the officers and negotiated the sale of three kilos of cocaine to the officer. Woodruff told the officer, “we’ll be right back with the package.” Woodruff and Tate returned minutes later, and Woodruff handed the officer a bag containing a box holding one and one-half kilos of cocaine. The officer asked Woodruff where the drugs were, and Wood-ruff responded that they were in the box. The officer opened the box in plain view of Woodruff, who expressed no surprise when the contraband was revealed. An arrest immediately followed.

Tate corroborated this evidence, testifying that Woodruff helped negotiate the deal, that Woodruff was a supplier of drugs, that Wood-ruff arranged for and received the package of cocaine at a nearby gas station, that Woodruff confirmed to Tate that the package contained one and one-half kilos of cocaine because three kilos were not available, and that Woodruff handed the bag to the undercover officer. Woodruff’s argument on appeal that no evidence showed he knew what was in the bag is refuted by the record. This evidence suffices to sustain Woodruff’s trafficking conviction.

2. Woodruff’s remaining two enumerations claim that the court erred in accepting the second undercover officer, Agent Andris, as an expert and then allowing him to testify why it would not be unusual for a person to accompany the seller in a large drug transaction. Both of these enumerations miss the mark, for Agent Andris did not testify as an expert that generally one could expect more than one person on the seller’s side of a large drug transaction. Rather, he testified as a fact witness as follows:

Decided October 24, 2000.

Juwayn N. Haddad, for appellant.

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

Q. Was it unusual, sir, or did you find it unusual that Mr. Tate arrived at the location with someone else?
A. No, sir.
[Objection.]
Q. Agent Andris, between yourself and all of the other agents who were there at the location, who did you expect to come to the location to deliver the drugs?
A. John Tate.
Q. Did you find it unusual that Mr. Tate arrived at that location with someone else?
[Objection.]
A. No. Through prior conversation on the phone with the confidential source, she asked him if he was bringing anybody and at first he said no and then he said his money man.

This testimony was not expert opinion but was a recounting of the facts pertaining to this particular transaction as to why Agent Andris, an eyewitness, did not find it unusual that Woodruff accompanied Tate. Thus, Woodruff’s complaints about Agent Andris’s expert qualifications and about his alleged giving of improper expert testimony on large drug transactions are without merit.

Judgment affirmed.

Pope, P. J, and Mikell, J, concur.

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

        Hall v. State, 235 Ga. App. 44, 45 (1) (508 SE2d 703) (1998).

        Wyatt v. State, 259 Ga. 208 (1) (378 SE2d 690) (1989); see OCGA § 16-13-31 (a) (1) (“[a]ny person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .”).

       See Ward v. State, 271 Ga. 648, 652-653 (5) (520 SE2d 205) (1999); Hicks v. State, 145 Ga. App. 669 (2) (244 SE2d 597) (1978); cf. Carnes v. Woodall, 233 Ga. App. 797, 798-799 (1) ;505 SE2d 537) (1998).


text:
    A00A2322.
    CARNELL v. THE STATE.
    (541 SE2d 118)
   Eldridge, Judge.

A Gordon County jury convicted defendant Billy H. Camell of four counts of homicide by vehicle (OCGA § 40-6-393) and two counts of driving under the influence (OCGA § 40-6-391). The superior court thereafter sentenced the defendant consecutively to 32 years confinement to serve. Defendant now appeals the superior court’s denial of his motion for new trial, contending (1) that the evidence is insufficient to support his convictions, and (2) that the superior court erred in denying his motion for continuance for its failure to allow him time sufficient to retain an independent expert to examine blood samples he had given, having granted his motion for funds to do so in camera before trial.

1. Viewed in the light most favorable to the jury’s verdict, the evidence shows that at or about 7:30 p.m., on December 14,1998, the defendant was driving his 18-wheel tractor-trailer eastbound on Georgia Highway 53 at 40-50 mph outside Fairmount in Gordon County. Defendant’s truck crossed the centerline into the westbound lane of the two-lane highway and collided with a westbound automobile head-on. The driver of the westbound vehicle and his wife were crushed to death in the collision, the cab of the truck coming to rest over the top of the victims’ car.

No witness to the collision testified at trial. However, Trooper First Class Gary Gallant, an accident reconstruction expert who visited the scene approximately an hour after the incident occurred, opined that the tire marks left on the shoulder of the road indicated that defendant’s truck left the roadway without braking, hit the guardrail, resulting in “steering input” to the left. Trooper Gallant further opined that all the physical evidence on the scene showed that the truck then crossed the centerline of the roadway into the victims’ lane where impact occurred, driving the victims’ vehicle back 257 feet.

Other evidence admitted at trial showed that defendant had been drinking before the collision occurred. A sample of defendant’s blood drawn on the scene at 8:00 p.m. tested at 0.23 blood-alcohol content (“BAC”). When tested at the hospital two hours later, defendant’s BAG was 0.19. Two whiskey bottles, one empty, one full, were found a short distance from where defendant sat in the driver’s seat of the truck. Although these were found in dew laden grass, each was in a dry paper bag. Although it was conflicting, there also was evidence indicating that the defendant smelled of alcohol at the scene of the accident and immediately thereafter at the hospital. In custodial statements admitted at trial, the defendant took the position that he had not been drinking on the day of the collision and that his victims had driven head-on into his vehicle after leaving their traffic lane and entering his.

Notwithstanding defendant’s denials and conflicting testimony otherwise of record, the weight of such evidence was for the jury to determine. “[A]n appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient” for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). “As long as there is some [competent] evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the jury’s verdict will be upheld. [Cit.]” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311) (1976). The jury could here reasonably find the defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Scott v. State, 230 Ga. App. 522, 524-525 (1) (496 SE2d 494) (1998).

2. The superior court did not err in denying defendant’s motion for a continuance grounded upon his claim that the court had authorized him funds for independent testing of his blood samples but had not allowed him adequate time to hire an independent expert for such purpose. Our review of the record on appeal shows the contrary — that is, the superior court impliedly denied defendant’s motion, ruling only that it would grant his motion for funds to hire an independent expert upon a showing of an appropriate “plan” for the examination of critical evidence. Brown v. State, 242 Ga. App. 106, 108 (528 SE2d 868) (2000) (indigent criminal defendant’s motion for funds should state why evidence sought for examination is critical, state what testimony is necessary, state what the expert proposes to do with the evidence, and give a costs estimate). Inasmuch as trial counsel did not support his motion by setting forth an appropriate plan for the examination of the evidence, the superior court properly denied defendant’s motion. As a consequence, the superior court did not abuse its discretion in denying defendant’s motion for continuance. Id. “A refusal to grant a continuance should not be disturbed by an appellate court unless it clearly appears that the judge abused his discretion. [Cit.]” Garvey v. State, 176 Ga. App. 268, 272 (3) (335 SE2d 640) (1985).

Judgment affirmed.

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

Decided October 24, 2000.

Coppedge & Leman, Jesse L. Vaughn, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

       One of two emergency medical technicians testified she smelled alcohol on defendant’s person at the scene of the collision. The other testified that he had not smelled alcohol on defendant.


author: Ellington, Judge.

text:
    A99A1820.
    ELLIS v. THE STATE.
    (541 SE2d 410)
    Decided October 25, 2000.

      Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

      Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Assistant District Attorney, for appellee.
   Ellington, Judge.

Frederick Ellis entered a guilty plea to one count of armed robbery, OCGA § 16-8-41, and was sentenced to serve ten years in prison. Ellis appealed the denial of his motion to withdraw his guilty plea, and we affirmed his conviction in Ellis v. State, 240 Ga. App. 498 (523 SE2d 914) (1999).

The Supreme Court granted certiorari and reversed our finding that Ellis’ right to effective counsel was not violated by his attorney’s joint representation of him and a co-defendant who also entered a guilty plea. Ellis v. State, 272 Ga. 763, 765 (2) (534 SE2d 414) (2000). Accordingly, our ruling is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

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