author: Johnson, Presiding Judge.

text:
    A02A0413.
    TURTLE COVE PROPERTY OWNERS ASSOCIATION, INC. v. JASPER COUNTY et al.
    (566 SE2d 368)
   Johnson, Presiding Judge.

The issue in this case is whether a subdivision’s expired restrictive covenants were renewed. We find that the covenants were renewed and are still in effect. The trial court’s holding to the contrary is therefore reversed.

Turtle Cove is a subdivision in Jasper County. In 1971, the developer of Turtle Cove encumbered the subdivision property with various covenants and restrictions. The declaration of covenants, recorded with the county, provides that the covenants are to remain in effect for 45 years, and upon the expiration of that period the covenants will automatically renew for successive 15-year terms, unless two-thirds of the property owners sign an agreement to terminate or modify the covenants.

At the time the declaration was recorded, the county had no zoning laws. But in 1975, Jasper County adopted zoning laws, which are still in effect. Because the county zoning laws and the covenants have been in effect for more than 20 years, Georgia law mandates that the 45-year term of the covenants is no longer valid. Instead, the covenants may run for only 20 years from the date of the zoning ordinance.

OCGA § 44-5-60 (b) provides: “[Covenants restricting lands to certain uses shall not run for more than 20 years in municipalities which have adopted zoning laws nor in those areas in counties for which zoning laws have been adopted.” And the Supreme Court has held that where covenants and zoning have been in effect for more than 20 years, the covenants are limited to 20 years even if the zoning was adopted after the covenants were recorded. Consequently, the initial term of the Turtle Cove covenants expired in 1995.

In 1998, Turtle Cove Property Owners Association, Inc. sued Jasper County for a rebate of property taxes paid from 1993 to 1996 on the common property in the subdivision. The association claimed that the common property had no taxable value because it was encumbered by the covenants. The county answered the complaint, asserting that the covenants were no longer in effect.

The case proceeded to a jury trial. The jury returned a verdict, denying tax rebates for 1993 through 1995, but awarding the association a rebate for 1996. The court, however, entered judgment notwithstanding the verdict in favor of the county, finding that the covenants expired in 1995, so the association is not entitled to a tax rebate for 1996. The association appeals from the court’s judgment.

The parties agree that the covenants expired, pursuant to OCGA § 44-5-60 (b), in 1995. They also agree that the automatic renewal provision found in OCGA § 44-5-60 (d) does not apply here. That provision states that after the initial 20-year term, covenants in subdivisions of at least 15 plots shall automatically renew for unlimited 20-year terms, unless 51 percent of the plot owners execute a document to terminate the covenants. The Supreme Court has held that this statutory automatic renewal provision, which took effect in 1993, shall only apply prospectively to covenants recorded after 1993. Because the Turtle Cove covenants were recorded before 1993, the automatic renewal provided by OCGA § 44-5-60 (d) does not apply to them.

This case therefore turns on whether the covenants were renewed after their 1995 expiration pursuant to the automatic 15-year renewal provision set forth in the declaration of covenants. Restrictive covenants on real property are valid and enforceable so long as they are not contrary to law or public policy. So the disposi-tive question before us is whether the Turtle Cove covenants’ automatic renewal provision is contrary to law or public policy.

Decided May 29, 2002.

Weissman, Nowack, Curry & Wilco, George E. Nowack, Jr., Linda B. Foster, Edward M. Gilgor, Derek W. Johanson, for appellant.

W. Dan Roberts, Roy R. Kelly III, for appellees.

There is nothing in the governing statute, OCGA § 44-5-60, which prohibits the automatic renewal of covenants. On the contrary, the public policy evidenced by the automatic renewal provision of OCGA § 44-5-60 (d) clearly favors the automatic renewal of covenants. And we know of no other law or public policy that is contravened by the Turtle Cove renewal provision. In fact, in another case in which the automatic statutory renewal did not apply, we approved of a renewal procedure set forth in the covenants. Accordingly, we find that the Turtle Cove provision for automatic renewal of the covenants for 15-year terms, unless two-thirds of the property owners agree to terminate or modify the covenants, is not contrary to law or public policy.

Moreover, there is no evidence that two-thirds of the property owners agreed to terminate or modify the Turtle Cove covenants. Consequently, upon their expiration in 1995, the covenants automatically renewed for 15 years. The trial court therefore erred in finding that the covenants did not renew and in entering j.n.o.v. based on that erroneous finding.

Judgment reversed.

Blackburn, C. J., and Miller, J., concur.

        House v. James, 232 Ga. 443, 444 (207 SE2d 201) (1974); see also Canterbury Forest Assn. v. Collins, 243 Ga. App. 425, 427 (1) (a) (532 SE2d 736) (2000).

       OCGA § 44-5-60 (d) (1), (2).

        Appalachee Enterprises v. Walker, 266 Ga. 35, 36-37 (2) (463 SE2d 896) (1995); Canterbury Forest, supra.

        Bryan v. MBC Partners, 246 Ga. App. 549, 551-552 (3) (541 SE2d 124) (2000).

        Bowman a Walnut Mountain &c. Assn., 251 Ga. App. 91, 93 (1) (a) (553 SE2d 389) (2001).


source: Caselaw Access Project

author: ELDRIDGE, Judge.

license: Public Domain

text:
    A02A0595.
    SONG et al. v. BROWN.
    (565 SE2d 884)
   ELDRIDGE, Judge.

Appellee-defendant Bobby Brown d/b/a Bilt-Rite Construction failed to timely answer appellants-plaintiffs See Song and Meng Cha’s complaint for breach of a homebuilding contract, conversion, and fraud. The case entered default, and the state court set the matter down for a hearing on damages. Upon the call of the case for trial, Brown first appeared during the presentation of appellants’ evidence, explaining that he had gone to the wrong courthouse out of confusion as to where he was to report for trial. Although the state court continued its damages hearing to the end of its trial calendar, Brown failed to appear when the case was recalled for hearing. Upon ascertaining that Brown was no longer in the courthouse, the state court entered default judgment for the appellants, awarding them damages for repairs to a chimney in the amount of $5,600; damages for waterproofing repairs to the basement totaling $7,542; damages for repairs made to the roof in the amount of $3,501.37; “no” damages for alleged damages to appellants’ windows; and damages for the materialman’s lien placed on appellants’ property in the amount of $3,988.07. The state court last awarded the appellants attorney fees in the amount of $1,900. The appellants appeal, contending that the state court erred in denying them damages for the cost of necessary repairs to their roof and windows. Finding no reversible error, we affirm.

“The general rule for the measure of damages involving real property is the diminution of the fair market value of the property and/or the cost of repair or restoration, but limited by the fair market value at the time of the breach or tort.” (Footnote omitted.) Ryland Group v. Daley, 245 Ga. App. 496, 502 (7) (537 SE2d 732) (2000). Where there exists defects as to real property which are not reasonably repairable, the diminution in market value of the property is allowable as the measure of damages. Id.; Ray v. Strawsma, 183 Ga. App. 622, 624 (1) (359 SE2d 376) (1987). However, whether such damages are proven on the basis of the “cost of repair” or “cost of repair plus diminution in value,” “the fair market value of the improved realty at the time of [the] breach must be proven, because the plaintiff is entitled only to the benefit of the bargain or to be made whole and not to recover a windfall.” Ryland Group v. Daley, supra at 502-503 (7). Moreover, while exact figures need not be submitted, proof of special damages must be sufficient to enable the jury or the trial judge at a bench trial as the trier of fact as well as the law to reasonably estimate their amount without resort to guesswork. Nat. Refrigerator &c. Co. v. Parmalee, 9 Ga. App. 725, 726-727 (1) (72 SE 191) (1911).

While the appellants argue that the state court’s damages awards for necessary repairs to their roof and windows were too little and contrary to uncontradicted evidence of record supporting the damages they sought, $3,501.37 versus $8,020 and $0 versus $17,026, respectively, we find no evidence of record to this effect. In particular, there was no evidence showing the fair market value of the house. The appellants’ evidence establishing the contract price of the house was not probative of more than the value of the house at the time the building contract was executed by the parties. Ryland Group v. Daley, supra at 503 (7); Hortman v. Cantrell, 173 Ga. App. 429, 430 (326 SE2d 779) (1985).

Decided May 29, 2002.

Strickland, Chesnutt & Lindsay, James M. Green, for appellants.

Bobby Brown, pro se.

Further, although the appellants showed out-of-pocket expenses of $3,501.37 paid to Precision Construction for roof repairs, these costs, awarded despite the failure of the appellants to establish fair market value at the time of the breach, went to repair only one-third of the roof. Appellants’ evidence as to roof repairs otherwise established that the estimated cost of roof replacement was $8,020 and that numerous shingles were bulging on the appellants’ roof. The appellants’ expert witness, a home inspector, opined that the bulges he noted were due to a problem of “some sort” with the roof decking. This did not establish a defect that constituted a breach of contract. His testimony, however, was not specific as to the nature of the problem because his inspection had not included shingle removal. Neither did the home inspector’s testimony reach the question of whether all or a part of the roof was affected and did not address the question of whether the defects noted were attributable to Brown’s work or to the roof repairs later performed by Precision Construction.

The appellants’ damages evidence was no more specific as to their windows. Appellants established that all their windows had been spattered by mortar as the house was built; that they had been unable to scrape the mortar off the windows without scratching them; that the windows “[were] vinyl”; and that the windows could be replaced for an estimated $17,026. However, there was no evidence showing that window replacement was required, i.e., evidence showing that the mortar in issue could not be removed by persons skilled in doing so in an economically feasible manner without damaging the windows.

It was appellants’ burden to prove their damages in a manner sufficient to allow the state court to estimate them with reasonable certainty free from “speculation, conjecture and guesswork.” Ryland Group v. Daley, supra at 504 (7). This they failed to do as to the complained-of damages awards. The state court’s damages awards for roof and window repairs were correct absent proper proof. Accordingly, we affirm. Cannon Air Transport Svcs. v. Stevens Aviation, 249 Ga. App. 514, 516 (2) (548 SE2d 485) (2001) (“The appellate standard of review for bench trials of material facts is the ‘clearly erroneous’ test, also known in civil cases as the ‘any evidence’ rule.”) (footnote omitted).

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A02A1372.
    THE STATE v. ROCCO.
    (566 SE2d 365)
   Eldridge, Judge.

Pursuant to investigation, Hall County officers secured the home of William E. Rocco while waiting for a search warrant to issue. The warrant issued, and the officers were informed of such fact by telephone. Before the search warrant was in their physical possession, the officers acted thereon and searched Rocco’s home. Prior to the search, the officers informed the resident of the premises of the existence of the warrant. Methamphetamine was seized. During the search, the warrant arrived, and a copy was left with the resident.

Rocco was charged with possession and filed a motion to suppress. The Superior Court of Hall County granted the motion and suppressed the drugs, finding that the search was illegal because the officers did not have the warrant in their physical possession at the time the search began. The State appeals. Held:

A search warrant commands the search and gives the executing officer the authority to conduct such. OCGA § 17-5-23. The warrant delineates the scope of the search and directs the execution within such boundaries. OCGA § 17-5-24; DeFreeze v. State, 136 Ga. App. 10, 11 (220 SE2d 17) (1975). Instructive as to the issue before us is Sha-fer v. State, 193 Ga. 748, 755 (20 SE2d 34) (1942), in which it was held,

If one of several officers having a common design is sent in disguise to a described house intended to be searched, while other officers, one of whom retains the search warrant, are a mile from the place, or so far distant that it can not be exhibited by such officer to the person whose house is to be searched, and in such circumstances he proceeds to search the premises without informing the owner of the existence of the search warrant, he will be a trespasser, and the attempted search will be illegal.

(Emphasis supplied.) Id. at 755-756 (2).

In that regard, “the Fourth Amendment does not ban all searches and seizures — only those deemed to be unreasonable. What is reasonable depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” (Punctuation omitted.) Fox v. State, 272 Ga. 163, 165 (2) (527 SE2d 847) (2000). In this case, it is undisputed that a search warrant, supported by probable cause, had properly issued before any search was conducted. It is also undisputed that the officers informed the resident of the premises sought to be searched of the existence of the warrant before any search was conducted. It is further undisputed that the warrant arrived during the search and a copy was left with the resident at the conclusion of the search as required by OCGA § 17-5-25. And, in addition, there is no claim or indication in the record that the officers exceeded the scope of the search authorized by the properly issued warrant. Under such specific circumstances, no substantial right of Rocco’s was affected, and it was error to grant the motion to suppress. “No search warrant shall be quashed or evidence suppressed because of a technical irregularity not affecting the substantial rights of the accused.” OCGA § 17-5-31; accord Sprauve v. State, 229 Ga. App. 478, 481 (3) (494 SE2d 294) (1997).

Further, and contrary to Rocco’s contentions, this Court’s decision in Bullock v. State does not demand a different result. Bullock is plainly distinguishable on the facts. The police officer in Bullock realized he had left the search warrant in his jacket pocket and stopped the search while the warrant was retrieved. This Court held, “Inasmuch as no search occurred while the warrant was not in the officer’s possession, we find appellant [’s] third enumeration of error to be without merit.” This Court did not hold, nor does it necessarily follow as Rocco asserts, that the search would have been invalid if the officer had not stopped the search while he retrieved the warrant. Clearly, under the facts of Bullock, that issue was not before us.

Moreover, pretermitting error, “[u]nder the inevitable discovery doctrine, if the State can prove by a preponderance of the evidence that evidence derived from police error or illegality would have been ultimately or inevitably discovered by lawful means, then the evidence is not suppressed as fruit of the poisonous tree.” Taylor v. State, 274 Ga. 269, 274 (3) (553 SE2d 598) (2001).

[T]here must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were possessed by the police and were being actively pursued prior to the occurrence of the illegal conduct.

(Punctuation omitted.) Id. at 274-275 (3). Here, clearly, the search warrant — lawfully pursued and issued prior to the purportedly tainted search and thus independent of such taint — would have resulted in the lawful discovery of the drugs at issue. In fact, Rocco concedes that “had the officers waited until the warrant was physically present at Mr. Rocco’s home before beginning the search, they would likely have found the same evidence, and it would then have been legally seized.”

Decided May 29, 2002.

Lydia J. Sartain, District Attorney, Melissa J. Sanford, Assistant District Attorney, for appellant.

Fox, Chandler, Homans, Hicks & McKinnon, David A. Fox, for appellee.

The . . . transcript speaks for itself; there exists a preponderance of the evidence, as a matter of law, establishing that the drugs ultimately or inevitably would have been discovered without reference to police error or misconduct, if any. ... In this regard, a preponderance of the evidence of record more than shows that the inevitable discovery of the [methamphetamine] was “more likely than not.” Bourjaily v. United States, 483 U. S. 171, 176 (107 SC 2775, 97 LE2d 144) [(1987)].

Barnett v. State, 204 Ga. App. 491, 494 (1) (b) (420 SE2d 43) (1992).

Judgment reversed.

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

       195 Ga. App. 37, 39 (2) (392 SE2d 534) (1990).

       Id.

       See Murray v. United States, 487 U. S. 533, 535-536 (108 SC 2529, 101 LE2d 472) (1988); Price v. State, 270 Ga. 619, 622-623 (513 SE2d 483) (1999).

       In such concession, Rocco urges that the laws relating to the inevitable discovery doctrine should not be applied here because, although applicable, the officers’ failure to wait for the physical presence of the warrant was deliberate and thus the State should be penalized. We reject the notion that a principle of law applicable to the resolution of a case can or should be ignored as a form of punishment. Moreover, Rocco’s argument that application of the inevitable discovery doctrine will substantially weaken warrant requirements was specifically rejected in Murray v. United States, supra at 539-540.


text:
    A02A1473.
    A02A1484.
    In the Interest of R. L. K., a child. In the Interest of K. D. R., a child.
    (565 SE2d 880)
   Eldridge, Judge.

In Case Nos. A02A1473 and A02A1484, appellant, the biological mother of R. L. K. and K. D. R., appeals from separate orders of the Spalding County Juvenile Court terminating her parental rights in the children. In addition to the parental rights of the appellant’s husband, the parental rights of the children’s biological fathers, one unknown and the other putative, were also terminated. The appellant enumerates as error the insufficiency of the evidence in both cases. Because these cases raise identical issues of law based on substantially the same facts, we consolidate them for disposition in a single appellate decision in the interest of judicial economy. Finding no error in either case, we affirm both. Held:

The standard of review pertinent to appellant’s challenges to the sufficiency of the evidence is

whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We defer to the trial court’s factfinding and affirm unless the appellate standard is not met. In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602) (1998).

(Punctuation omitted.) In the Interest of A. S. O., 243 Ga. App. 1 (1) (530 SE2d 261) (2000).

The termination of parental rights occurs upon the application of a two-step analysis. In the Interest of R. U, 223 Ga. App. 440, 442 (477 SE2d 864) (1996). First, the juvenile court must find clear and convincing evidence that parental misconduct or inability exists under OCGA § [15-11-94] (b). In the Interest of D. I. W., 215 Ga. App. 644, 645 (1) (451 SE2d 804) (1994). Second, the court must determine if termination is in the best interests of the children. In the Interest of R. U, supra.

(Footnote omitted.) In the Interest of N. Y, 246 Ga. App. 723, 724 (542 SE2d 137) (2000).

OCGA § 15-11-94 (b) required the juvenile court to determine parental misconduct or inability upon finding: (1) that the children were deprived; (2) that the lack of proper parental care or control was the likely cause of their deprivation; (3) that the children’s deprivation was likely to continue or was not subject to remediation; and (4) that continued deprivation was likely to cause the children serious physical, emotional, or moral harm. OCGA § 15-11-94 (b) (4) (A) (i)(iv). In the Interest of A. S. O., supra at 1-2 (1); In the Interest of N. Y, supra at 724, n. 3; In the Interest of D. I. W., supra. Because the children were not in the custody of the appellant at the time of the termination hearing, the juvenile court was required to reach the foregoing findings upon considering, in addition to other relevant factors, “whether the [appellant] failed to make a bona fide attempt to communicate with the child; comply with court-ordered support of the child; or comply with a court-ordered reunification plan for a period of. . . one year prior to the termination proceeding. OCGA § [15-11-94] (b) (4) (C) (i)-(iii).” In the Interest of J H., 240 Ga. App. 309, 310-311 (523 SE2d 374) (1999); OCGA § 15-11-94 (b) (4) (C) (i)-(iii).

In August 1997, K. D. R., then a baby four months old, was taken into protective custody upon the verified petition of her maternal grandmother filed in the Juvenile Court of Fayette County. By her petition, K. D. R.’s grandmother averred that the appellant then lived with her; had shown little interest in caring for K. D. R.; had on several occasions left K. D. R. with her for periods in excess of 24 hours; had threatened to give K. D. R. to others for care; had a diagnosed personality disorder for which she had not sought treatment; and had made no effort to determine the identity of K. D. R.’s father. In October 1997, the Fayette County Juvenile Court adjudicated K. D. R. to be deprived and awarded temporary custody to the grandmother upon negligent acts and omissions of the appellant. These included appellant’s

[(1)] failure to provide for and care for the child, including routine feedings and hygiene needs of the child; [(2)] failure to return home and provide care for the child at the scheduled time on several occasions; [(3)] being a physically fit eighteen (18) year old who is unemployed and who has shown no ability to maintain a stable employment; [(4)] a current diagnosis of mental health problems including a personality disorder; [(5)] personal membership in the gangs known as “The Bloods” and “The Folks”; [(6)] having multiple sex partners; [(7)] exchanging sexual activity for benefits including permission to stay overnight at the partner’s residence; [(8)] dropping out of high school prior to graduation and without serious attempt to obtain a G.E.D.; and [(9)] underage use and abuse of alcohol.

After a hearing on May 4,1999, the Juvenile Court of Fayette County further adjudicated K. D. R. deprived upon finding that the grandmother had been incarcerated for cruelty to K. D. R. and that the appellant was not in compliance with the case plan it ordered for reunification of the family. Notably, the appellant had not completed a psychological evaluation; she was unemployed; she had not maintained employment; her house was in disarray; she had not rectified the loss of her driver’s license for failure to appear for a traffic citation; she had been charged and jailed for writing bad checks; and, contrary to the court’s order, she had permitted K. D. R. to visit the grandmother.

K. D. R.’s younger half-brother, R. L. K., was taken into protective custody on November 24, 1999, two days after he was born upon a deprivation petition filed by the Spalding County Department of Family & Children Services on behalf of the Georgia Department of Human Resources (“DFCS”). DFCS averred that its file as to K. D. R. remained open because the appellant had not completed the case plan for appellant’s reunification with the child contained therein. Following a December 3, 1999 custody hearing on the deprivation petition, the juvenile court adjudicated R. L. K. deprived, finding, among other things, that the appellant admitted she was not yet in compliance with the case plan for reunification with K. D. R. in that she remained unemployed, had not recovered her driver’s license, and had not completed the individual counseling which she had been ordered to obtain.

After a termination hearing in these cases a year later, the juvenile court terminated the appellant’s parental rights in the children by separate orders for substantial noncompliance with the reunification plans the court had ordered for the children for periods of 12 months or longer. In doing so, the juvenile court found as to both children that the appellant had: (1) failed to maintain safe and stable housing; (2) failed to obtain and maintain gainful employment; (3) failed to pay child support [ ]; (4) not taken prescribed medication for depression; (5) not completed drug and alcohol screening; and (6) not obtained individual counseling. Further, the juvenile court found that since the time of its termination hearing the appellant had given birth to a third child who had been placed in foster care in Clayton County. Otherwise, the record shows that the appellant had voluntarily stopped all visitation with the children more than six months before the termination hearing.

Decided May 29, 2002.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, LeAnne P. Cooper, Karen M. Calloway, for appellee.

While the appellant argues that, given additional time, she could resolve her financial difficulties and complete her case plans, [t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987). The appellant also argues that the evidence is insufficient to show that the children’s deprivation is likely to continue in the future. We disagree. “ ‘(T)he past conduct of [a] parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. (Cits.)”’ In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991); In the Interest of C. E, 251 Ga. App. 708, 714 (1) (c) (555 SE2d 81) (2001); In the Interest of L. H., 236 Ga. App. 132, 136 (1) (511 SE2d 253) (1999). Moreover, “[s]ince no appeal was taken from the deprivation order[s of record, appellant] is bound by the [same]. In the Interest of L. H., [supra at] 134 (1).” In the Interest of A. S. O., supra at 2 (1).

Given the foregoing, we find clear and convincing evidence showing that the children are now deprived; that their deprivation is due to the lack of proper parental care or control; that their deprivation is likely to continue in the future as not subject to remediation; and that continued deprivation is likely to cause the children serious physical, mental, emotional, or moral harm. In the Interest of D. I. W., supra at 645-646 (1).

[I]n [considering] that termination of the [appellant’s] parental rights would serve the best interests of the children, the court properly concerned itself with the need for stability in the children’s lives.” (Punctuation omitted.) In the Interest of C. F., supra at 714 (2). The evidence was likewise sufficient to show that the finding that appellant’s parental rights in the children had been lost was in their best interests. “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of N. Y, supra at 726; In the Interest of L. H., supra.

Judgments affirmed.

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

       OCGA § 15-11-94 (b) (4) (B) pertinently provides:
      In determining whether the child is without proper parental care [or] control, the court shall consider, without being limited to, the following: (i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition ... of the child; (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; and (vi) Injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.


author: Andrews, Presiding Judge.

text:
    A02A0201.
    WOOD et al. v. D. G. JENKINS HOMES, INC.
    (565 SE2d 886)
   Andrews, Presiding Judge.

We granted Fred and Jacquelyn Wood’s application for interlocutory appeal from the trial court’s order prohibiting them from introducing similar acts evidence in their action against D. G. Jenkins Homes, Inc. (Jenkins) for trespass, negligent design, negligent construction, and punitive damages. Because we conclude the trial court abused its discretion in finding that the potential for undue prejudice and confusion outweighed the probative value of the evidence, we reverse.

This action arose when Jenkins built a house and crosstie wall for the Gosses (Goss house) on the lot adjacent to the Woods’ property. The Woods claim that the crosstie wall encroached onto their property and also that the position of the house on the lot violates the side yard setback requirement for the subdivision.

The Woods sought to introduce evidence of other occasions in which Jenkins had violated setback requirements. This evidence consists of numerous requests for variances which Jenkins made after houses were already under construction. The trial court refused to allow the introduction of the evidence, finding: “[T]he potential for undue prejudice and confusion created by introduction of variances and/or citations issued to Defendant with regard to properties other than the Goss property substantially outweighs the probative value of said evidence.” Observing that it intended to bifurcate the trial, the trial court ordered that if the jury finds Jenkins liable for punitive damages in the first phase of trial, it will allow the introduction of this evidence at the second phase in which the jury determines the amount of punitive damages to be awarded. The trial court reserved ruling on whether the evidence would be admissible for impeachment purposes. This appeal followed.

In suits for negligence,

similar acts or omissions on other and different occasions are not generally admissible to prove like acts or omissions at a different time or place. Nevertheless, such evidence may under certain limited circumstances be admissible to establish, among other things, a course of conduct or bad faith. Or, when the question of malice or wanton misconduct enters into play, such proof may then be permitted.

(Citations and punctuation omitted.) First Bancorp Mtg. Corp. v. Gid-dens, 251 Ga. App. 676, 678 (1) (555 SE2d 53) (2001).

The general rule is that trial judges may exercise discretion in excluding relevant evidence if its probative value is substantially outweighed by the risk that its admission will confuse the issue, mislead the jury, or create substantial danger of undúe prejudice. In making their decision, trial courts should consider the potential prejudice to the parties, the complexity of issues and the potential for jury confusion, and the relative convenience, economy, or delay that may result.

(Footnotes omitted.) Webster v. Boyett, 269 Ga. 191, 195 (1) (496 SE2d 459) (1998).

The Woods argue in the instant case that the trial court abused its discretion in its ruling because the evidence is admissible to show Jenkins’s state of mind and intent at the time it built the Goss house and wall and to explain why the errors occurred. The Woods contend that Jenkins failed to follow the required procedures such as requesting a variance before construction because it anticipated a negative response given its several other setback violations during the same time frame and negative publicity in the local paper. The Woods also argue that the evidence of past violations is relevant to show Jenkins’s conscious indifference to the consequences of constructing houses in violation of the setback provision and therefore is relevant in determining liability for punitive damages, not just the amount of any punitive damages awarded.

In Webster, the Supreme Court recognized that “the extent of the defendant’s wilful misconduct, wantonness, and entire want of care . . . could not be gauged solely from the incident in issue, but that evidence of other . . . incidents was relevant to the question of punitive damages.” Id. at 192 (1). It noted, however, that the admission of such evidence during the liability phase of a bifurcated trial may deny the defendant a fair trial while its omission may deny the plaintiff a fair trial on the issue of liability for punitive damages. Id. at 194. In applying the above-stated rule to the case before it, a personal injury action in which the defendant was DUI, the court concluded that the trial court properly balanced the probative value of the defendant’s prior DUI on the issue of punitive damages against its prejudicial effect on the issue of his liability and did not abuse its discretion in ruling the prior DUI inadmissible. Id. at 197. The Supreme Court observed that there was conflicting testimony on the issue of liability for the accident in question, that the defendant had no subsequent DUI convictions and just one prior conviction, and that his prior conviction had not caused injury. Id.

But, in Gunthorpe v. Daniels, 150 Ga. App. 113 (257 SE2d 199) (1979), the Court ruled that prior acts evidence was admissible to show that the defendant knew from previous experience that his alleged negligence would probably result in injury to the plaintiff, because he knew that such carelessness on his part in the past had resulted in similar injuries to others but continued in this course of conduct in utter indifference to the consequences. In that case, the Court reversed the exclusion of such prior acts evidence, finding it admissible on the issue of liability for punitive damages. Id. at 115.

This case appears to be more closely analogous to Gunthorpe than to Webster. As noted above in affirming the exclusion of the prior acts evidence in Webster, the Supreme Court observed that there was conflicting testimony on the issue of liability, the defendant had no subsequent DUI convictions and just one prior conviction, and his prior conviction had not caused injury. Webster, supra at 197. In the instant case, the facts are not in dispute, and this is not a case in which evidence of similar transactions would unduly influence the jury in deciding the negligence claim against Jenkins. The underlying facts on that issue are easily susceptible of proof at trial. Either Jenkins violated the side yard setback requirement when it built the Goss house or it did not. Either Jenkins requested a variance for any setback encroachments or it did not. As in Gunthorpe, the evidence is certainly relevant to the punitive damages claim. Moreover, the issues are not complex, and we do not believe that a jury would be confused by this evidence.

The cases argued by Jenkins in support of its contention that the evidence is inadmissible are not persuasive. In Kutner v. Davenport, 257 Ga. 456 (360 SE2d 586) (1987), the Supreme Court stated that the notices sought to be admitted were not evidence of similar transactions but, instead, charges against the defendant. Id. at 457. That is not the case here. Likewise, in Cocozzelli v. Andrews Homes, 223 Ga. App. 550 (479 SE2d 391) (1996), we held the trial court did not abuse its discretion in refusing to admit certain photographs because the plaintiff was unable to establish the proper foundation necessary for their admission. Id. at 552. Again, that does not apply in this case.

Therefore, because it appears that the evidence is not unduly prejudicial and is relevant to the issue of Jenkins’s liability for punitive damages, we conclude that the similar transaction evidence is admissible at trial. Accordingly, the trial court abused its discretion in granting Jenkins’s motion in limine to exclude this evidence from the Woods’ case-in-chief.

Decided May 30, 2002

Peevy & Lancaster, Douglas N. Fox, for appellants.

Webb, Tanner & Powell, Robert J. Wilson, for appellee.

Judgment reversed.

Phipps and Mikell, JJ., concur.

       Under OCGA § 51-12-5.1, the first part of the bifurcated trial must include the issues of liability for both compensatory and punitive damages.


text:
    A02A0241.
    MILLER-ROY v. THE STATE.
    (565 SE2d 899)
   Eldridge, Judge.

On May 30, 2001, at approximately 10:00 a.m., defendant Maria Miller-Roy, a licensed commercial driver, was stopped on Tara Boulevard in Clayton County for driving 71 mph in a 55-mph speed zone. The Clayton County Solicitor-General filed an accusation in the Traffic Violations Division of the Clayton County State Court charging Miller-Roy with a single count of speeding.

Through trial counsel, now counsel on appeal, Miller-Roy and a co-defendant not involved in this appeal attempted to waive arraignment and plead not guilty by letter to the traffic court, dated June 27, 2001. Such letter also “confirmed” that trial on the speeding charge was set for July 24, 2001. By his brief on appeal and for reasons he does not explain, counsel for Miller-Roy avers that Miller-Roy appeared without counsel in traffic court on July 24 prepared to be arraigned alone; that the trial court informed Miller-Roy she was to be tried on that date; that the trial court denied her request for a continuance to “retain” counsel; and that a bench trial then followed, resulting in her conviction and the imposition of a $150 fine. Miller-Roy apparently chose not to have the proceedings taken down.

On appeal, Miller-Roy contends that the trial court erred by “making [her] proceed in her traffic bench trial without informing her of her right to proceed with an attorney and the significant consequences of proceeding pro se.” (Emphasis supplied.) Because Miller-Roy was not entitled to counsel before the traffic court, we affirm.

Although the right to counsel extends to misdemeanor prosecutions where imprisonment may result (Argersinger v. Hamlin, 407 U. S. 25 (92 SC 2006, 32 LE2d 530) (1972)), our Supreme Court has interpreted Argersinger as requiring that a defendant in a misdemeanor criminal prosecution be entitled to counsel only where the defendant is sentenced to actual imprisonment. Brawner v. State, 250 Ga. 125 (2) (296 SE2d 551) (1982); Johnston v. State, 236 Ga. 370 (3) (223 SE2d 808) (1976); see also Sams v. State, 162 Ga. App. 118 (1) (290 SE2d 321) (1982). [Cit.]

Decided May 30, 2002.

Saia & Richardson, Joseph J. Saia, for appellant.

Keith C. Martin, Solicitor-General, for appellee.

Barnes v. State, 250 Ga. App. 276 (549 SE2d 495) (2001). Tried in traffic court, Miller-Roy was not subjected to a misdemeanor prosecution. See OCGA § 40-13-60 (“Any traffic violation under the jurisdiction of the traffic violations bureau shall . . . not be [characterized] as a misdemeanor.”); see also OCGA § 40-6-1 (a) (“It is unlawful and, unless otherwise declared in this chapter with respect to particular offenses, it is a misdemeanor for any person to do any act forbidden or fail to perform any act required in this chapter.”). Even had she been subjected to such a prosecution, her sentence was simply to a fine, foreclosing any issue as to her actual imprisonment. Under these circumstances, Miller-Roy was not entitled to counsel. Barnes v. State, supra. Consequently, her claim that her conviction must be reversed for failure of the traffic court to find a valid waiver of the right to counsel on the record is without merit.

Judgment affirmed.

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


text:
    A02A0416.
    LEE v. THE STATE.
    (565 SE2d 902)
   Johnson, Presiding Judge.

Shannon Lee was tried and convicted of theft by taking money from a Wal-Mart store where she had been employed as a cashier. She appeals from the conviction, arguing that the trial court erred in allowing testimony from three witnesses who were added to the state’s witness list the day before trial. Contrary to Lee’s argument, the court did not err in allowing the testimony.

After the jury was selected, but before it was sworn in, the state served Lee with a list of three new witnesses. Lee did not request a continuance, but moved to exclude the witnesses’ testimony on the ground that she did not get to ask the jury panel about these three witnesses during voir dire. The state responded that it had expected a guilty plea in the case based on Lee’s prior representations and that once Lee opted for a trial, it provided the names of the witnesses to Lee as soon as they were discovered. The state suggested that Lee be allowed to interview the witnesses before the trial started. But Lee rejected this suggestion, reiterating that she was concerned only about how her voir dire of the jury panel may have been affected. She then told the court she wanted to voir dire the jury about the new witnesses.

The court granted the request, and Lee then asked the members of the jury about the three witnesses. None of the jury members knew two of the witnesses, while one juror had previously worked with the third witness. Lee moved to disqualify that juror. The court granted the motion by excusing the juror and seating the alternate juror in her place. Lee raised no objection to this procedure.

The judge also stated that he would wait to rule on the issue of whether the three new witnesses could testify, so that Lee would have a chance to show prejudice. He instructed Lee to renew her motion to exclude the testimony of the new witnesses as each of them was called. All three witnesses were called during the state’s case-in-chief. But Lee never moved again to exclude their testimony.

By failing to renew her motion to exclude the three new witnesses’ testimony, Lee never secured a ruling from the court on that issue. And because she failed to obtain a ruling, her sole enumeration that the court erred in failing to exclude the testimony presents nothing for us to review.

Even if the issue were properly before us, it is without merit. Although the state’s addition of new witnesses the day before trial failed to comply with the discovery requirements set forth in OCGA § 17-16-1 et seq., the court did not err in the way that it handled the state’s discovery failure. OCGA § 17-16-6 provides various actions that the court may take upon a discovery violation by the state, such as permitting the defendant to interview witnesses, granting the defendant a continuance, prohibiting the state from presenting undisclosed witnesses, or entering such other order as it deems just under the circumstances.

Here, Lee did not seek a continuance or to interview the witnesses. Rather, her sole concern was how her voir dire of the jury panel was affected by the undisclosed witnesses. The court remedied that concern by granting Lee’s request to voir dire the jurors again and by ordering the removal of the lone juror who knew one of the witnesses. The trial court deemed such an order just under the circumstances, and we agree. Because Lee failed to show any prejudice to her defense and bad faith by the state, the trial court did not err in failing to exclude the testimony.

Decided May 30, 2002.

Martin H. Eaves, for appellant.

Richard E. Currie, District Attorney, Allen R. Knox, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       See Sillman v. State, 247 Ga. App. 681, 683 (2) (545 SE2d 85) (2001).

       See Bell v. State, 224 Ga. App. 191, 192 (480 SE2d 241) (1997).


text:
    A02A0432.
    COOK v. STATE OF GEORGIA.
    (565 SE2d 896)
   Johnson, Presiding Judge.

After the State of Georgia initiated civil forfeiture proceedings against $52,333 in cash and other items recovered from Wayne Cook’s residence, Cook sought to suppress the seizure of the money. Cook argued that the search was illegal because the magistrate who issued the search warrant improperly included in the warrant, at the officer’s request, a provision which allowed officers to enter his home without first knocking and announcing their presence. According to Cook, the officer who applied for the warrant did not include sufficient facts to support the “no-knock” provision. The trial court denied Cook’s motion and entered a judgment of forfeiture. Cook appeals from the denial of his motion to suppress and the judgment of forfeiture. We affirm the judgment of the trial court.

The evidence shows that police received a tip that Cook was selling drugs in and near his home. Officers set up surveillance of Cook’s condominium unit and searched a trash bin behind his four-unit building. In the bin, police found small plastic bags with cocaine residue. Later, they followed Cook to a nearby gas station and watched as a man got into Cook’s car and left within a few minutes. When officers approached the man, he admitted purchasing cocaine from Cook and handed the cocaine to the officers.

One of the officers then applied for a warrant to search Cook’s residence. In his affidavit, the officer noted Cook’s three prior drug arrests, including a conviction for possession of cocaine with intent to distribute, and the results of police surveillance and investigation. The officer also stated in his affidavit: “The affiant would further request a no-knock provision be included in the search warrant for officer safety as well as the easy destruction of evidence. Cook has been arrested twice and convicted once of battery offenses.”

Basing his decision on the affidavit as well as the officer’s oral testimony, the magistrate issued the search warrant as requested. Officers executing the warrant found the cash, along with cocaine, handguns, and other items.

In executing a search warrant, officers are generally required to make a good faith attempt to give verbal notice of their authority and purpose prior to gaining entry by the use of force. This requirement may be excused when the officers reasonably believe that announcing themselves would either greatly increase their peril or lead to the immediate destruction of evidence. The reasonableness standard for a no-knock entry, as opposed to a probable cause requirement, is not high. To establish reasonable grounds, the officer does not have to show specific information that would lead officers to conclude that they would be harmed if they announced their authority and purpose; it is sufficient if the information supplied by affidavit and sworn testimony would lead to the reasonable conclusion that the officers could be harmed if they announced their authority and purpose.

Cook claims that the officer applying for the warrant failed to show that an announced entry would greatly increase the officers’ peril, inasmuch as Cook was only arrested once for battery and that he was only convicted of simple battery. One simple battery conviction, he argues, does not justify a no-knock entry to execute a warrant.

We note that the record contains no information regarding Cook’s battery conviction, so we do not know whether he was convicted of battery or simple battery. Nor do we know the circumstances of the offense or offenses. Nonetheless, as Cook concedes, even simple battery is a crime of violence, and it can involve causing physical harm to another.

On appeal, we construe the evidence most favorably to the trial court’s findings and judgment. Our responsibility in reviewing a trial court’s ruling on a motion to suppress is to ensure that there was a substantial basis for the decision. Here, the officer had a reasonable belief that Cook, who had been convicted of a violent crime and a drug offense, could harm officers if they entered his residence announced. There was a substantial basis for the trial court’s holding that the inclusion of a no-knock provision in the warrant was reasonable under the circumstances. Accordingly, the trial court did not err in denying Cook’s motion to suppress.

Decided May 30, 2002.

King, King & Jones, David H. Jones, for appellant.

Patrick H. Head, District Attorney, Andrew J. Saliba, Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       OCGA § 17-5-27.

        Adams v. State, 201 Ga. App. 12, 14 (3) (410 SE2d 139) (1991).

        Richards v. Wisconsin, 520 U. S. 385, 394-395 (117 SC 1416, 137 LE2d 615) (1997).

       See generally Cox v. State, 160 Ga. App. 199, 201 (2) (286 SE2d 482) (1981).

       See OCGA §§ 16-5-23; 16-5-23.1.

       See OCGA § 16-5-23 (a) (2).

       See State v. Wesson, 237 Ga. App. 789, 790 (516 SE2d 826) (1999).

       Id.

       See Hout v. State, 190 Ga. App. 700, 701 (1) (380 SE2d 330) (1989) (no-knock provision authorized where officer told magistrate several people might be in the house and some firearms would likely be present); Jones v. State, 127 Ga. App. 137 (1) (193 SE2d 38) (1972) (no-knock provision justified where informants told police that defendant said he would shoot the next officers who entered his residence).

       See generally Neal v. State, 173 Ga. App. 71, 72 (1) (325 SE2d 457) (1984).


author: Mikell, Judge.

text:
    A02A0624.
    SMITH v. THE STATE.
    (565 SE2d 904)
   Mikell, Judge.

A Clayton County jury convicted Ulysses Smith of two counts of theft by taking. Smith was sentenced as a recidivist under OCGA § 17-10-7 (c) because of his three prior felony convictions. On appeal, Smith contends that his conviction should be reversed because his trial counsel was ineffective, the evidence was insufficient to support his conviction, and the trial court erred in its charge to the jury on intent. For reasons which follow, we affirm.

“On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” Construed in the light most favorable to the verdict, the evidence shows that on February 6, 1999, Smith opened an individual retirement account with a $100 deposit at the Jonesboro Corners branch of SunTrust Bank, which was located in a Publix supermarket. Toeanzar Anderson, who worked as a financial service representative at that branch, testified that she opened the account for Smith. Smith told her that his former employer, Bearings & Drive, would be sending a check for deposit into his account from his retirement fund. Anderson testified that within the next few days she received the check from Bearings & Drive in the amount of $5,106.47. She contacted Smith, he came in and endorsed the check, and it was deposited into his IRA on February 18, 1999. Anderson gave Smith the deposit receipt and told him that the funds would be available for withdrawal on the following day.

On February 19,1999, Smith returned to the bank and withdrew $5,100. Because the deposit from the previous day had not yet posted to Smith’s account, the debit for the withdrawal could not be posted. Nevertheless, the bank permitted the withdrawal because Anderson had witnessed Smith’s deposit the previous day. Anderson testified that when she next tried to post the $5,100 debit, she was still unable to do so because the deposit had not yet posted. She never posted the debit to Smith’s account, but noticed later that some additional withdrawals had been made. When she next saw Smith at the Publix supermarket where the bank was located, she told him that too much money had been withdrawn from his account. Smith said the money had already been spent but he would stop by to try to clear up the problem. He never did.

Michael Zachary, SunTrust’s fraud investigator, began to investigate Smith’s account on November 8, 1999. Zachary testified that the bank’s records revealed that after the $5,100 withdrawal on February 19, 1999, Smith withdrew $150 on March 2, 1999, $4,000 on March 5 from a different branch, $1,000 on April 16 from another branch, and $164.42 on April 17 from yet another branch. Smith’s account did not have funds to cover any of these subsequent withdrawals as there were no additional deposits made to the account after the check from Bearings & Drive.

Zachary admitted that the failure to debit the initial withdrawal was the bank’s clerical error. After discovering this error, a letter addressing the error was sent via certified mail to Smith’s wife at her place of employment, Arnold Elementary School. The return receipt showed that the letter was delivered on November 12, 1999, and that it had been signed by someone at the school.

1. In Smith’s first enumeration of error, he claims that his trial counsel’s performance was defective because she failed to present Smith’s defense that he believed his employer had matched his 401k funds and failed to interview any of the state’s witnesses and other material witnesses before trial. We disagree.

To establish ineffectiveness, [Smith] must show (1) that counsel’s performance was deficient, and (2) that this deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s result would have been different but for that deficiency. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

Furthermore, “A court ... is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one.”

Rosalind Watkins was appointed to represent Smith approximately six months before his trial began. Watkins found a variance in Smith’s indictment, which after the filing of the proper motions, resulted in the dismissal of Smith’s case and forced the state to reindict the case. Watkins testified that she talked to Smith at least ten times before the trial. Though Smith told her that he thought he may have received funds from his 401k plan with Bearings & Drive, he also said that he was not familiar with their matching program or savvy in financial matters or banking transactions. Watkins contacted Lois Lund, who was the retirement plan administrator at Bearings & Drive and was told that Smith either had not worked at the company long enough or had not deposited enough money in his 401k to become eligible for matching. When Watkins informed Smith of what she had learned, he told her that since he heard of other people getting their funds matched, he thought that his would be matched too.

In his appellate brief, Smith argues that he should have been informed of his right to testify so he could have presented his defense. Watkins testified that she talked to Smith about the advantages and disadvantages of him testifying on his own behalf. Watkins told him that she did not think it would be a good idea, but that ultimately, it was his decision. The trial court was authorized to believe Watkins’ testimony, especially since it was the only evidence before it regarding whether Smith should testify.

Smith also argues that Watkins should have interviewed other witnesses from Bearings & Drive to validate the basis for his belief that employers typically match 401k funds. Watkins knew from the plan administrator that Smith was not eligible for matching. Smith did not give her a list of witnesses to call in his defense. Furthermore, Watkins testified that Smith was never certain that his funds had been matched.

Though Watkins admitted that she did not interview the bank employees, she tried to do so. She testified that when she traveled to the Jonesboro Corners branch to interview Anderson, she was told that Anderson did not work there and that they did not know how to locate her. Watkins had the statements of the bank employees at branches where Smith made subsequent withdrawals and tried to call them to no avail. Watkins tried to contact the bank employee who discovered the error in Smith’s account. Instead, she spoke with Geneva Perez, who worked in the records department. Watkins served a subpoena requesting all documents relating to Smith’s account, and after she did not receive them in a timely manner, requested and was granted a continuance by the court to afford her the opportunity to inspect these records. Perez finally sent her Smith’s bank statements. Watkins also testified that she extensively reviewed the documents that Zachary compiled.

Even if we assume that the failure to interview the state’s witnesses constituted deficient performance, Smith has not shown how interviewing the witnesses would have changed the outcome of the trial. Through cross-examination of the state’s witnesses, Watkins was able to show that the failure to debit Smith’s initial withdrawal was the bank’s error; that each employee should have verified the funds availability before allowing Smith to make subsequent withdrawals; and that each time Smith made a withdrawal, the bank’s system showed that the funds were available. Thus, the jury had evidence from which it could have inferred that Smith simply made a mistake by relying on the availability of the funds at the bank. Furthermore, Smith never identified other witnesses who he now claims could have supported his defense. Because Smith has failed to show how the outcome would have been different, we cannot find that Watkins’ failure to interview the witnesses constituted ineffective assistance of counsel.

2. In his next enumeration of error, Smith argues that the evidence was insufficient to support his conviction. We disagree.

The elements of theft by taking relevant to this case are (1) an unlawful taking of property of another (2) with the intention of withholding the property without justification permanently or temporarily. The evidence shows that Smith made an initial deposit to open the bank account and completed the paperwork necessary to deposit the check from Bearings & Drive. Yet, he made withdrawals which far exceeded the amounts he knew had been deposited. Furthermore, when he was told by Anderson that his withdrawals exceeded his account balance, he told her that he had spent the money but would stop by to try to clear up the discrepancy. Accordingly, we find the evidence sufficient to support his conviction under the standard set forth in Jackson v. Virginia.

3. Lastly, Smith argues that the trial court erred by charging the jury that intent may be inferred when it is the natural and probable consequence of the act because the charge improperly shifts the burden of proof onto the defendant as to intent. Again, we disagree.

We note first that Smith failed to preserve this error for review. The court charged as follows:

Intent is an essential element of any crime and must be proved by the State beyond a reasonable doubt. Intent may be shown in many ways provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion. Criminal intent does not mean an intention to violate the law or to violate a penal statute, but means simply to intend to commit the act which is prohibited by a statute.

At the end of the charge, the court asked if defense counsel had any objections, and she replied that she did not. By failing to object to the charge or to preserve objections for review upon direct request by the trial court, trial counsel waived any challenge to the trial court’s charge. Nevertheless, had trial counsel objected to the charge, we would still find Smith’s argument meritless as the charge is a proper statement of the law.

Smith’s reliance on Harris v. State in support of his argument is misplaced. Harris specifically involved the charge that the jury may infer the intent to kill from the use of a deadly weapon. The Supreme Court held that “giving [the use] of [the] deadly weapon charge is error” and instructed the trial courts to use a simple charge on intent. Thus, Harris is inapposite here.

Decided May 30, 2002

Sexton & Morris, Joseph S. Key, Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur. ,

       Appellant’s brief states that he was convicted of three counts of theft by taking. However, the verdict form and sentencing sheet show that Smith was tried on three counts of theft by taking, but convicted on only two of those counts.

       (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

       (Punctuation and footnotes omitted.) Lovelace v. State, 241 Ga. App. 774, 775 (3) (527 SE2d 878) (2000).

       (Citation and punctuation omitted.) Green v. State, 240 Ga. App. 650, 652-653 (3) (523 SE2d 632) (1999).

        Parker v. State, 226 Ga. App. 462, 466 (8) (486 SE2d 687) (1997).

        Lovelace, supra at 776 (3) (b).

       See OCGA § 16-8-2.

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

        Bacon v. State, 249 Ga. App. 347, 349 (2) (548 SE2d 78) (2001).

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases; see Hodges v. State, 249 Ga. App. 268, 272-273 (6) (547 SE2d 386) (2001).

       273 Ga. 608 (543 SE2d 716) (2001).

       Id. at 609 (2).

       (Punctuation omitted.) Id. at 610 (2).

       Id.


text:
    A02A0758.
    MITCHELL v. THE STATE.
    (565 SE2d 889)
   Mikell, Judge.

A jury convicted Harry Boothe Mitchell of the following offenses: two counts of homicide by vessel in the second degree, OCGA § 52-7-12.2 (b); four counts of violating the rules of the road for boat traffic, OCGA § 52-7-18 (b), (f), (g); and one count of reckless operation of a vessel, OCGA § 52-7-12.1. The trial court sentenced Mitchell to a total of four years confinement and a $1,500 fine. After the denial of his motion for new trial, Mitchell filed the present appeal, in which he challenges the sufficiency of the evidence and argues that the court erred in allowing a witness to testify to the ultimate question of his guilt, in refusing to charge the jury on the avoidance doctrine, and in sentencing him separately for offenses that merged. We disagree and affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the record shows that on August 14, 1999, Mitchell was operating a 32-foot Marinet cruiser (the “Marinet”) on Lake Lanier with three passengers on board. The boat belonged to Mitchell’s wife, Barbara Holland, who was one of the passengers. There was no evidence of the vessel’s precise speed; however, Mitchell told a law enforcement officer that the Marinet’s engines were operating at 2,200 rpm.

A smaller ski boat owned by Brian Carringer was also on the lake that day. Carringer was accompanied on the boat by his fiancée, Kelly Rocks; her father, Richard Rocks; Richard’s wife, Patricia; Richard’s son, Greg; and Greg’s fiancée, Jennifer. At the time in question, Carringer had stopped his boat so that Richard Rocks could climb back into it after unsuccessfully attempting to water ski. One of Richard’s skis floated away, and Carringer jumped into the water to retrieve it. The ski had drifted approximately 15 to 20 yards away from the boat. While he was retrieving the ski, Carringer and the other passengers noticed the Marinet approaching their boat from a distance of approximately 300 to 400 yards. As the Marinet came closer, the passengers on the ski boat became concerned that the driver of the Marinet did not see them. They began waving their arms and yelling in an attempt to get his attention. Carringer was still in the water, approximately 15 yards from his boat. Greg Rocks attempted to start the ski boat’s engine to move it out of the Marinet’s path, but he could not get it started. It appeared that the Marinet was going to collide with the ski boat, so the smaller boat’s passengers began jumping into the water. Richard Rocks jumped into the path of the Marinet and appeared to be struck by the cruiser as he entered the water.

Richard floated to the surface because he was wearing a life vest. Carringer and Patricia Rocks saw Richard and observed a large amount of blood in the water around him. Carringer called out to Greg that his father was injured, and Greg swam over to Richard. Unbeknownst to him, Greg had started the engine of the ski boat before jumping overboard, and it began running in circles with no one on board until it ran ashore. The boat did not come into contact with any of the people in the water or with another vessel. Once outside of the path of the circling ski boat, the Marinet stopped, and Jerry Highland, a passenger, called 911.

In the meantime, two boys on jet skis arrived at the scene, and Greg used one of the jet skis to carry Richard to the Marinet. After Richard was lifted onto the boat’s swim platform, the Marinet proceeded to the Athens Boat Club, where an ambulance waited. Several minutes after Richard was placed in the ambulance, an emergency medical technician told Patricia that her husband had died.

Officer Melvin Dale Clayton of the Georgia Department of Natural Resources interviewed Mitchell at the scene. After waiving his Miranda rights, Mitchell told Officer Clayton that he was operating the Marinet at the time of the accident and that he had been looking over his shoulder at some jet skis behind his boat and did not see the ski boat or Richard Rocks. He was arrested approximately one year later.

1. First, Mitchell contends on appeal that there was insufficient evidence to support his conviction for Counts 1 and 3. Count 1 charged him with homicide by vessel in the second degree. OCGA § 52-7-12.2 (b). Count 3 contained the predicate offense for that homicide charge, accusing Mitchell of violating Rule 18 of the Steering and Sailing Rules adopted in OCGA § 52-7-18 (b) by failing to keep the Marinet out of the way of Carringer’s boat while it was not under command. We conclude that there was ample evidence to support the convictions on both charges.

The evidence adduced at trial and summarized above demonstrates that Mitchell was operating a power-driven vessel which was underway; that Carringer’s boat was not under command at the time of the accident; and that Mitchell failed to keep the Marinet out of the way of the ski boat. In fact, the Marinet was headed directly toward Carringer’s boat, when the passengers were forced to jump into the water. Carringer testified that had Greg not started the ski boat’s engine before jumping, the Marinet would have collided with it. Contrary to Mitchell’s argument, there was evidence of a violation of OCGA § 52-7-18 (b) despite the fact that the two boats did not actually collide. Mitchell has failed to point to any statute or case law that requires an actual collision in order to convict a defendant of violating the rules of the road for boat traffic, and our research reveals none.

We also reject Mitchell’s contention that Rule 18 of the Steering and Sailing Rules, as adopted in OCGA § 52-7-18 (b), does not apply to this case because the victim’s boat was not moving. The language of the rule requires a vessel that is “underway” to stay out of the way of a vessel that is “not under command.” There is no requirement that the second boat be underway. Vessels not under command may be adrift.

Further, contrary to Mitchell’s argument, the existence of OCGA § 52-7-18 (d) does not affect his conviction under subsection (b) of that Code section. Subsection (d) provides that “[p]owered vessels approaching nonpowered vessels shall reduce their speed so that their wake shall not endanger the life or property of those occupying the nonpowered vessel.” (Emphasis supplied.) It was not alleged that the wake from the Marinet caused Richard’s death, but that the near-collision between the boats caused Richard to evacuate the ski boat and jump into the path of the Marinet.

Accordingly, there was sufficient evidence to support Mitchell’s conviction of violating the rules of the road for boat traffic under OCGA § 52-7-18 (b). Because the evidence shows that Mitchell’s violation of that provision caused Richard’s death, his conviction of homicide by vessel in the second degree must be affirmed, as well. OCGA § 52-7-12.2 (b).

2. Next, Mitchell challenges the sufficiency of the evidence in connection with his convictions for Counts 2 and 4. Count 4 charged him with violating the rules of the road for boat traffic by operating a vessel above idle speed within 100 feet of Richard Rocks while he was in the water. OCGA § 52-7-18 (f). Count 2 accused Mitchell of homicide by vessel in the second degree because his violation of that rule caused Richard Rocks’ death. OCGA § 52-7-12.2 (b). Again, we find that the evidence was sufficient to support both convictions.

OCGA § 52-7-18 (f) provides, in pertinent part: “No person shall operate any vessel... on the waters of this state at a speed greater than idle speed within 100 feet of any . . . person in the water.” There was evidence that Mitchell was operating the vessel in question; that the Marinet was traveling at a speed greater than idle; and that it was within 100 feet of Richard Rocks while he was in the water and actually ran over him.

Mitchell argues that his convictions under Counts 2 and 4 cannot stand, because Richard was not in the water until after the Marinet was already within 100 feet of him. We reject this argument. First, there is no language in the statute or case law that requires that the person be in the water before the vessel comes within 100 feet of him. Furthermore, it was Mitchell’s action in driving the Marinet directly at the ski boat that caused Richard to jump into the water. The jury rejected Mitchell’s justification defense and concluded that the evidence was sufficient to convict him of these charges, and we find no reason to disturb that verdict.

3. Mitchell contends that the offenses contained in Counts 4 and 6 merged; therefore, the two convictions cannot stand, and the court erred in sentencing him separately. We disagree and affirm.

As we noted above, Count 4 charged Mitchell with violating OCGA § 52-7-18 (f) by operating the Marinet above idle speed within 100 feet of Richard Rocks while he was in the water. Count 6 charged him with violating the rules of the road for boat traffic by operating his vessel above idle speed within 100 feet of Carringer while he was in the water. Mitchell argues that the two offenses merged because the Marinet was within 100 feet of both men at the same time. We conclude that the offenses did not merge as a matter of law or fact.

OCGA § 16-1-7 (a) prohibits multiple convictions for the same conduct; however, here the two offenses involved different conduct. Specifically, Count 4 required proof that Mitchell drove the Marinet within 100 feet of Richard, while Count 6 required proof that he drove within 100 feet of Carringer. Further, in proving one offense, the state did not “use up” evidence necessary to prove the other. See Brown v. State, 246 Ga. App. 60, 64 (1) (539 SE2d 545) (2000); OCGA § 16-1-6 (1). Accordingly, the two offenses did not merge.

4. Mitchell also contends that the offenses charged in Counts 3 and 7 merged for sentencing purposes and that the trial court erred in sentencing him separately for the two counts. Again, we find no harmful error and affirm.

Count 3 alleged that Mitchell violated OCGA § 52-7-18 (b) by failing to keep his vessel out of the way of a vessel not under command. Count 7 accused Mitchell of violating OCGA § 52-7-18 (g) by operating a vessel within 100 feet of another vessel at a speed greater than idle speed when his vessel was not overtaking or meeting the other vessel.

As noted above, OCGA § 16-1-7 (a) prohibits multiple convictions for the same conduct, but the two offenses at issue here involve different proscribed conduct, and each crime has distinctive elements which distinguish it from the other. See Bogan v. State, 177 Ga. App. 614, 617 (2) (340 SE2d 256) (1986). Count 3 required proof that Car-ringer’s boat was not under command and that Mitchell failed to keep out of that boat’s way. Count 7 required proof that Mitchell exceeded idle speed while within 100 feet of Carringer’s boat. Thus, the offenses as charged were separate and distinct.

However, we must also consider whether the offenses merged as a matter of fact.

As with any factual merger question, the dispositive issue is whether the State “used up” its evidence in proving the crime: “The actual evidence test, in effect, means that if the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under OCGA § 16-1-6 (1).”

Brown, supra at 64 (1), citing Montes v. State, 262 Ga. 473, 474 (1) (421 SE2d 710) (1992). We conclude that the state “used up” the evidence that would establish Mitchell’s guilt for Count 7 in proving Count 3. There was no evidence that Mitchell operated the Marinet within 100 feet of Carringer’s boat at any time other than when it was not under command. Therefore, the offenses merged as a matter of fact. While a defendant may be tried for both offenses under such circumstances, he may not be sentenced for both. Chadwick v. State, 236 Ga. App. 199, 202 (3) (511 SE2d 286) (1999).

However, any error was harmless, because Count 3 merged with Count 1 for sentencing purposes, and Mitchell received no separate sentence for Count 3. Mitchell does not argue that the court erred in sentencing him separately for Counts 1 and 7. Thus, the sentence is valid.

5. Mitchell contends that the trial court committed reversible error by overruling his objection to the testimony of Mike Burgamy, when, in response to the prosecutor’s question as to his characterization of the manner in which Mitchell operated the Marinet on the date in question, the witness responded: “I would say he had a reckless disregard for safety.” Count 5 of the indictment charged Mitchell with “operating a vessel in reckless disregard for the safety of persons and property.” Therefore, Mitchell argues that the court erred in allowing the state’s witness, a boat safety officer with the Georgia Department of Natural Resources, to testify as to the ultimate issue of Mitchell’s guilt. We find no error.

Mitchell is correct that generally witnesses are not permitted to express their opinions regarding an ultimate issue in a case, because to do so would invade the factfinding province of the jury. Medlock v. State, 263 Ga. 246, 248 (3) (430 SE2d 754) (1993). However, in this case, the court did not overrule Mitchell’s objection to the testimony. Immediately following the objection, the court asked the prosecutor if he wished to respond. The prosecutor said that he would ask the witness to rephrase the answer, and he posed the following question to Burgamy: “Don’t use legalese terms. How would you characterize in layman’s terms how the Defendant was operating his boat?” Bur-gamy answered by describing in detail the manner in which Mitchell was operating the boat and the hazards he created. Mitchell objected to Burgamy’s answer on hearsay grounds but did not renew his objection that the testimony went to the ultimate question of guilt. Significantly, Mitchell did not object to the rephrased question, move for a mistrial, or request a curative instruction. “When an appellant could have tendered a timely motion for mistrial or requested additional limiting or curative instruction but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.” (Citations, punctuation and footnote omitted.) Pena v. State, 247 Ga. App. 211, 216 (1) (542 SE2d 630) (2000).

Mitchell argues that we should apply the plain error doctrine. See Almond v. State, 180 Ga. App. 475, 480 (349 SE2d 482) (1986). The Supreme Court has applied that analysis only to death penalty cases and criminal cases where the trial judge improperly intimated his or her opinion in violation of OCGA § 17-8-57. Paul v. State, 272 Ga. 845, 848-849 (3) (537 SE2d 58) (2000). Clearly, the case sub judice does not fall into either category. We have applied the plain error doctrine more broadly, however. See id.; Almond, supra.

This Court generally refuses to address issues not raised or ruled upon below. An exception exists, however, in cases of plain error which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.

(Punctuation and footnotes omitted.) Rogers v. State, 253 Ga. App. 675, 676 (2) (560 SE2d 286) (2002).

We cannot conclude that plain error existed in this case. The witness inadvertently responded improperly to one question. Upon Mitchell’s objection, the state immediately rephrased the question and elicited a different response. The improper testimony did not rise to the level of resulting in “a likelihood of a grave miscarriage of justice,” nor did it “seriously affect[ ] the fairness, integrity or public reputation of a judicial proceeding.” (Punctuation and footnote omitted.) Rogers, supra. Furthermore, even if the court had erred in not providing a curative instruction, sua sponte, any error would be harmless in light of the overwhelming evidence of Mitchell’s guilt.

6. Next, Mitchell contends that the court erred in refusing to give his requested jury instruction on the avoidance doctrine. Specifically, he argues that a jury issue existed regarding whether Richard could have avoided the consequences of Mitchell’s negligence by jumping to safety as the ski boat’s other occupants did.

This enumerated error presents nothing for review, however, because the requested jury charge at issue is not included in the record. “The appellant bears the burden of showing error affirmatively by the record. We will not presume error from a silent record.” (Punctuation and footnotes omitted.) In re Ray, 248 Ga. App. 45, 46 (1) (545 SE2d 617) (2001).

Furthermore, during the charge conference, the trial court stated that it did not believe Mitchell’s requested charge on the avoidance doctrine was adjusted to the evidence and pointed out that it was a charge suggested for use in civil cases. In refusing to give the requested charge, the trial court relied on the case of Whitener v. State, 201 Ga. App. 309 (410 SE2d 796) (1991), in which we held:

So long as the defendant’s negligence proximately caused the death of another, the crime has been committed, even if there are other factors which also are proximate causes of the death. As opposed to the civil context, in which compensating deserving victims is the aim, in the criminal context it simply is not relevant that the victim was negligent, unless the defendant’s conduct did not substantially contribute to the cause of death.

(Citations and punctuation omitted.) Id. at 311 (3). The evidence that Mitchell’s conduct substantially contributed to Richard’s death was overwhelming.

Decided May 30, 2002.

Leo E. Benton, Jr., for appellant.

Jerry Rylee, Solicitor-General, Larry A. Baldwin II, Assistant Solicitor-General, for appellee.

The jury charge given by the court, taken as a whole, was a correct statement of the law and was adjusted to the evidence. See Hoang v. State, 250 Ga. App. 403, 410 (3) (551 SE2d 813) (2001). The court instructed the jury on the general principles of the presumption of innocence, reasonable doubt, witness credibility, circumstantial evidence, intent, accident, and proximate cause, as well as the specific charges against Mitchell. Accordingly, we find no error.

7. Mitchell argues in his brief that the court erred in not certifying Highland as an expert witness in the area of boating safety. However, this assertion is not raised anywhere in the enumeration of errors. “[A]n enumeration of error cannot be enlarged by a brief to give appellate viability to an issue not contained in the original enumeration. Thus, this issue is not preserved on appeal.” (Citations and punctuation omitted.) Unden v. State, 218 Ga. App. 463, 466 (5) (462 SE2d 408) (1995). Furthermore, it is not clear that Mitchell preserved this issue during the trial. The state objected to Highland being qualified as an expert witness. Counsel for Mitchell and the state approached the bench, where the court told them, outside of the hearing of the jury, that it was not inclined to certify Highland as an expert. The court offered to announce its ruling for the record, but defense counsel stated that he would withdraw the question which prompted the state’s objection. Accordingly, we find that Mitchell’s argument presents nothing for our review.

Even if Mitchell had properly preserved this issue for appeal, an enumerated error on this ground would not have been successful. “It is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular art, science or profession as to entitle him to be deemed prima facie an expert.” (Punctuation and footnote omitted.) Yount v. State, 249 Ga. App. 563, 564-565 (1) (548 SE2d 674) (2001). Our review of the witness’ qualifications does not indicate that the trial court abused its discretion.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


text:
    A02A1557.
    DAVENPORT v. THE STATE.
    (565 SE2d 900)
   Eldridge, Judge.

A Clarke County jury found Frederick Davenport and his two co-defendants, Morris Dunn and Edward Scott, Jr., guilty of aggravated assault and aggravated battery, which charges arose when, during the course of the three defendants’ attempt to murder a third unrelated party in a drive-by shooting, an innocent bystander was shot and paralyzed. Davenport appeals, challenging the sufficiency of the evidence and claiming error in the trial court’s failure to charge the jury on self-defense. As we find that the evidence was sufficient to support Davenport’s conviction and that the facts of record do not support a justification charge, we affirm.

1. Davenport claims the trial court erred in denying his motion for directed verdict made at the close of the State’s case, contending that the State’s evidence was too “conflicting and contradictory” for a rational trier of fact to find beyond a reasonable doubt that he participated in the charged offenses.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. A motion for a directed verdict in a criminal case should only be granted when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Moreover, on appeal the evidence must be viewed in the light most favorable to the verdict, [Davenport] no longer enjoys the presumption of innocence, and the appellate court determines the sufficiency, not the weight of the evidence, and does not judge the credibility of the witnesses. Further, we do not speculate which evidence the jury chose to believe or disbelieve.

Here, evidence of record shows that Davenport and his co-defendants drove up to the curb of a public housing project at Pauldoe Street and Old West Broad in Athens; they were in a gray Caprice with a vinyl top. Co-defendant Scott was driving; appellant Davenport was in the backseat; and co-defendant Dunn was in the front passenger seat. When the car came to a stop, Dunn attempted to exit the Caprice. The victim testified that “[t]he guy in the front seat, he fumbles with the door and the guy in the backseat helped him get his door open.” As Dunn exited the car, he fired a weapon at Antonio Thomas, who was standing nearby. The victim, a bystander, was hit in the throat with the first shot, severing his spinal cord and paralyzing him. Dunn ran past the victim and fired several more shots at Thomas. Thereafter, Dunn ran back to the car, got in, and began firing out the window as the car drove away. Eyewitness testimony showed that Davenport also began shooting out the rear passenger side window as the car drove down Pauldoe Street.

The police immediately dispatched an APB for the Caprice as involved in a drive-by shooting. Almost at once, Officer A. Epps with the Athens-Clarke County Police Department saw the vehicle, chased it, and was able to block the Caprice between Franklin Street and Milledge Avenue. Epps testified that “[t]wo occupants were bailing out of the passenger side of the vehicle. I exited my patrol vehicle and drew my duty weapon and ordered them to the ground.” Dunn and appellant Davenport were “put on the ground” and handcuffed. Scott, still in the car, was also arrested. The car was searched, and several shell casings were found therein. Additional shell casings were recovered from the scene. No weapons were found on the defendants or in the Caprice. But, upon retracing the likely route taken by the Caprice after leaving the incident location, an automatic handgun was found in the yard of a residence on Hancock Avenue; there were divots in the concrete sidewalk beside the yard and the gun was scraped, which evidence was consistent with the weapon being tossed from a vehicle and bouncing off the sidewalk into the yard. Analysis at the Georgia Bureau of Investigation Crime Lab showed that the shell casings recovered at the scene and in the Caprice had been fired from the handgun found on Hancock Avenue.

When construed to uphold the verdict, we find this evidence sufficient for a rational trier of fact to have found Davenport guilty as a party to the charged offenses. Presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. The evidence shows that appellant Davenport aided Dunn by opening the door of the vehicle for him; Davenport fired a weapon at the intended victim as the Caprice was driving away; and he attempted to flee after being stopped by the police. That there may have been conflicts in the testimony of the State’s witnesses is not a matter for this Court. Instead, as they were authorized to do, the jury resolved all conflicts when choosing which testimony to believe and which to reject.

Decided May 30, 2002.

Vicki E. Carter, for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

Moreover, contrary to Davenport’s contentions, the fact that only one weapon was recovered and that all the recovered shell casings came from such weapon does not as a matter of law negate eyewitness testimony that Davenport was also firing a handgun from the rear passenger window, especially since co-defendant Scott took the stand on his own behalf — not on behalf of the State — and testified that Davenport had a weapon; that he was firing it from the car; and that he tossed it out of the car window. After all, not all handguns are automatics which eject shell casings. And, indeed, the fact that only one weapon was recovered after being thrown from the Caprice does not refute the fact that another weapon may have been thrown and simply not found. These are issues for a jury to determine. The jury did so in this case. As the' State’s evidence was sufficient to prove the essential elements of the offenses as charged against Davenport, there was no error in denying his motion for directed verdict.

2. Davenport enumerates as error the trial court’s failure to charge on self-defense. He did not make a request for the instruction, but urges it was unnecessary to do so because justification was his sole defense. We reject this contention. The record shows that Davenport’s defense was “mere presence.” Davenport claimed that the State proved only that he was there and that there was no evidence he either possessed a weapon or had a motive to use a weapon: “[Davenport’s Defense Counsel:] I told you he [Davenport] was in the wrong place at the wrong time. I told you that the evidence would be that there wasn’t a gun. I told you that the evidence would be that there wasn’t a motive.” Thus, justification was not his sole defense, and the trial court charged the jury on “mere presence.” Moreover, Davenport “did not produce any evidence which would support a finding that shooting the unarmed victim in the [neck] was an act of self-defense.”

Judgment affirmed.

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

       (Citations and punctuation omitted; emphasis supplied.) Coalson v. State, 237 Ga. App. 570 (515 SE2d 882) (1999).

       Apparently, Thomas and co-defendant Dunn had previously had an altercation.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See OCGA § 16-2-20 (a).

        Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993).

        Millwood v. State, 237 Ga. App. 748 (1) (516 SE2d 799) (1999).

        Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997).

        Riley v. State, 274 Ga. 342, 343 (2) (553 SE2d 797) (2001).