text:
    A94A2197.
    RITZ CARLTON HOTEL COMPANY v. REVEL et al.
    (454 SE2d 183)
   Andrews, Judge.

We granted the Ritz Carlton Hotel Company’s application for interlocutory appeal to review the superior court’s denial of its motion for summary judgment. The Ritz’ motion to unseal the record is granted since the documents under seal are necessary to this court’s consideration of this matter.

Construing the evidence in the light most favorable to the Revels, as respondents, the facts are the following: On the afternoon of November 23, 1990, Carolyn Revel was staying as a guest at the Ritz Carlton Buckhead in Atlanta. At about 6:00 p.m., she ordered room service, which was delivered to her room by a female room service attendant. About an hour later, she heard a knock on the door and what she thought were the words “room service.” She looked through the peephole in the door, which was also equipped with a door lock, a deadbolt lock and a safety chain, and saw a male wearing a white jacket. Through the peephole, the man appeared clean-cut and clean-shaven. Revel assumed that the man had come to retrieve her tray and she unlatched the safety chain on the door and opened the door.

Upon opening the door, Revel was hit by the door as the person entered the room. She saw then that he was not an employee of the Ritz. She noticed that he was disheveled, that his jacket was not starched and pressed, and that his appearance did not conform to that of the other Ritz employees. The man threatened to kill Revel and then physically and sexually assaulted her and robbed her. At one point he stated that he was “tired of you rich bitches coming in here.” He fled and was never apprehended.

On April 3, 1992, Revel filed suit against the Ritz contending that the hotel had failed to exercise ordinary care for her safety. Her husband, David Revel, sued for loss of consortium. On November 2, 1993, the Revels amended their complaint and included various allegations regarding the alleged deficiencies in the hotel’s security procedures. They alleged that the hotel had failed to deny access to the hotel to the general public; that the hotel had failed to adequately monitor access to guest room corridors and rooms; and that the hotel had failed to perform walking patrols of the guest room corridors. They also alleged that the hotel had breached its pledge to provide Carolyn Revel with the finest personal service, since it failed to provide necessary security.

The Ritz filed a motion for summary judgment, arguing that there was no liability for Revel’s injuries since there had been no substantially similar occurrences on the property. Specifically, the hotel argued that there had never been a rape, sexual assault, or armed robbery committed against anyone on the Ritz premises. The hotel contended that the only crimes against the person which had been committed inside the hotel involved assaults by guests on other guests in the room. The Ritz argued that since the act was not foreseeable, there was no duty to protect Revel.

In opposing the motion, the Revels asserted that once the Ritz undertook to protect its guests by employing a broad-based security system, it had a duty to operate the system in a non-negligent fashion. They claimed that this duty was breached and that the security system fell beneath acceptable standards of care in the industry.

The superior court denied the Ritz’ motion. In its order, the court stated: “[defendant is also correct in its assertion that foreseeability exists where substantially similar acts have occurred on the premises. However, Plaintiff correctly states the alternative imposition of liability in cases where a broad-based security system is intact.” The court concluded that factual issues remained as to whether the Ritz was negligent in providing security to Revel. The court stated: “[f]acts such as the perpetrator’s access to the employee uniform, the prior sighting of a suspicious individual fitting his description, the simultaneous acts of Plaintiff ordering room service and the perpetrator appearing at her room under the pretense of room service, inter alia, suggest that there remain genuine issues of material fact as to whether the Defendant operated its security system in a non-negligent manner.” The court also found that, based on OCGA § 24-4-22, the unavailability of the videotape of the surveillance cameras on the date of the incident raised factual issues, since the lost videotape contained information which might resolve negligence issues.

1. “ ‘It is the duty of [the] proprietor to protect an invitee from injury caused by the misconduct of employees, customers, and third persons if there is any reasonable apprehension of danger from the conduct of said persons or if injury could be prevented by the proprietor through the exercise of ordinary care and diligence. Ordinarily, even where the proprietor’s negligence is shown, he would be insulated from liability by the intervention of an illegal act which is the proximate cause of the injury. However, the above rule has been held inapplicable if the defendant (original wrongdoer) had reasonable grounds for apprehending that such criminal act would be committed.’ ” Camelot Club Condo. Assn. v. Bonner, 207 Ga. App. 634, 635 (1) (428 SE2d 625) (1993), quoting Savannah College of Art &c. v. Roe, 261 Ga. 764, 765 (2) (409 SE2d 848) (1991).

The requisite knowledge for imposition of liability may be demonstrated by evidence of the occurrence of prior substantially similar incidents. Savannah, supra. In the instant case, it is undisputed that there had been no prior rapes or sexual assaults at the Ritz. It is undisputed that there had been no previous armed robberies at the hotel. It is undisputed that there had been no robberies in a guest’s room prior to this incident, except in situations in which the robber had been invited into the room by a guest. It is undisputed that, prior to this incident, there had never been a violent crime committed at the hotel upon anyone. In fact, the Revels’ own expert witness admitted that the particular attack upon Ms. Revel was unforeseeable.

Nevertheless, there was evidence in the record of incidents of other crimes, including thefts on the premises and crimes to the person occurring at the surrounding shopping areas. Moreover, although the Revels concede that this particular crime was not foreseeable, they contend that Revel, as a woman traveling by herself, was a member of a class of persons where the crime was foreseeable.

In its first enumeration of error, the Ritz contends that the superior court erred in denying its motion for summary judgment. We agree and reverse. “In light of the dearth of evidence of the occurrence of prior substantially similar incidents, the [Ritz] was entitled to summary judgment because there was no evidence sufficient to create a factual issue as to whether the [Ritz] knew or should have known that [its guests] were at risk of a violent criminal sexual attack. Adler’s Package Shop v. Parker, 190 Ga. App. 68, 70 (378 SE2d 323) (1989).” Savannah, supra at 766. The evidence regarding the other crimes was irrelevant, because none of the incidents was substantially similar to the sexual assault which was the basis of this litigation. See Savannah, supra. Those incidents did not serve as notice for this crime. “As a matter of law, [the Ritz] owed no duty to protect [Carolyn Revel] from the attack at issue. [Cits.]” Woods v. Kim, 207 Ga. App. 910, 911 (429 SE2d 262) (1993); Taylor v. Atlanta Center Ltd., 208 Ga. App. 463 (430 SE2d 841) (1993); compare Killebrew v. Sun Trust Banks, 216 Ga. App. 159 (453 SE2d 752) (1995); Matt v. Days Inns of America, 212 Ga. App. 792 (443 SE2d 290) (1994), cert. granted 214 Ga. App. 909 (1995).

2. The Ritz also claims that the superior court erred in concluding that its undertaking to provide security on the premises raised a factual issue as to whether this undertaking was exercised non-negligently. The Ritz contends that because there were no prior substantially similar crimes, there was no duty to provide security against this specific type of attack. Again, we agree.

Knowledge of a dangerous condition giving rise to the incident is necessary in order to show the existence of even an initial duty to provide preventive security measures for this type of attack. Bishop v. Mangal Bhai Enterprises, 194 Ga. App. 874, 877 (392 SE2d 535) (1990). Since there were no prior substantially similar attacks on the premises, there was no such knowledge and no duty to provide security adequate to protect against this kind of attack. Woods, supra; Lau’s Corp. v. Haskins, 261 Ga. 491 (3) (405 SE2d 474) (1991); Donaldson v. Olympic Health Spa, 175 Ga. App. 258 (333 SE2d 98) (1985); McCoy v. Gay, 165 Ga. App. 590 (302 SE2d 130) (1983).

In Lau’s, supra, our Supreme Court clarified the rule regarding the providing of security; it stated: “A landowner does not become an insurer of safety by taking some security precautions on behalf of invitees. Undertaking measures to protect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that further measures might be required. In all cases, a landowner is not required to do more than is reasonable for the protection of invitees. [Cit.]” Id. at 494-495. In a footnote, the court continued: “[i]f a defendant undertakes to do more for the benefit of another person than the law requires, he or she may be held liable if he or she acts unreasonably or makes the situation worse, by increasing the danger, or by misleading the plaintiff into belief that it has been removed, or by depriving the plaintiff of the possibility of help from other sources. ...” Id. at 495.

The fact that this particular crime was unforeseeable establishes that there was no duty to protect against this specific attack. The evidence which the Revels present regarding the alleged deficiencies in the security system ignore the fact that there was no duty to protect against this type of attack. As a matter of law, the Ritz did all that was reasonable for the protection of invitees given the absence of any substantially similar incidents.

Moreover, there was no evidence here that the security undertaken by the Ritz made the situation worse by increasing the danger to Revel, misled Revel into the belief that the danger had been removed, or deprived her of the possibility of help from other sources. See generally Lau’s, supra; Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (2) (386 SE2d 415) (1989). Indeed, contrary to misleading Revel into believing that all generalized danger had been removed, aspects of the room itself indicated that not all conceivable risks had been removed. The door had a lock, a deadbolt lock, and a chain on it, and a peephole had been built into the door. The room had a safe in a closet for storing valuables. See generally Camelot, supra at 635; Adler’s, supra at 70 (1) (b).

The Ritz argues that Atlanta Center Ltd. v. Cox, 178 Ga. App. 184 (341 SE2d 15) (1986), and Bishop, supra, should be overruled in that they appear to analyze the undertaking to protect patrons without regard to the foreseeability of the particular crime. See also Taylor, supra. We agree that both cases seem to analyze the security provided independently of the original duty imposed, in a manner inconsistent with that dictated by Lau’s. Nonetheless, in both cases, the foreseeability of the incident in issue created a factual issue, and thus, there is no need to overrule the cases.

3. The Ritz also enumerates as error the superior court’s conclusion that a factual issue existed based on the fact that an individual fitting the description of Revel’s assailant was seen by Ritz employee Dianna Baiutti prior to the attack. This argument is based on Baiutti’s testimony that she noticed two men who “didn’t look like they belonged” at a desk in the hotel lobby on the date of the incident. She stated that the men “didn’t look kosher,” She failed to report this to hotel security and the Revels contend that this omission constituted a breach of the Ritz’ security policy.

Decided February 14, 1995

Long, Weinberg, Ansley & Wheeler, J. Kenneth Moorman, John C. Bonnie, for appellant.

We have reviewed Baiutti’s deposition and agree that the superior court erred in determining that this fact created a jury issue. First, as set forth in the divisions above, the lack of foreseeability of this incident created no duty.

Moreover, there was no evidence connecting these men with the assailant in Revel’s room. The Revels argue that the fact that Baiutti thought that a composite of a suspect from a separate rape investigation resembled one of the men she saw in the gift store indicates that these two incidents were related. We disagree. Baiutti testified that the composite of Revel’s attacker did not resemble either of the men she saw in the gift shop.

Finally, there was evidence that Carolyn Revel had also seen these men. A supplementary police report contained in the record indicates that Revel reported being in the gift shop and “noticing two men that appeared to be out of place.” She stated that the sales lady in the gift shop asked her several times out loud to repeat her room number. Mrs. Revel said she repeated her room number from the doorway of the gift shop and believes the men could have heard her.

We find that the superior court erred in determining that Baiutti’s testimony created a factual issue.

4. The Ritz claims that the superior court erred in concluding that Revel’s action of ordering room service and that of the attacker appearing at her room door under the pretense of room service were simultaneous. The Ritz contends in a separate enumeration that the superior court erred in holding that the attacker’s purported access to an employee uniform created a jury issue. Both of these issues are irrelevant in light of the fact that the attack was unforeseeable and therefore no duty in regard to the room service execution or uniform protection arose.

5. Finally, the Ritz argues that the court erred in holding that its failure to produce a videotape of camera surveillance on the premises gave rise to the application of the “spoilation of evidence” doctrine. Again, for the reasons stated in Divisions 1 and 2, we find that the surveillance videotape was irrelevant to the resolution of this case.

Judgment reversed.

Beasley, C. J., and Johnson, J., concur.

Mundy & Gammage, Gerry E. Holmes, for appellees.

       There was also evidence of two incidents of assault arising out of arguments which occurred outside of the hotel. There was evidence of several incidents of theft, none of which involved robbery or armed robbery. There was evidence of five incidents of theft which occurred in guest rooms in which a male guest had invited a woman to his room, who subsequently took his property. Several incidents of crimes involving guests’ vehicles were also in evidence.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A94A2415.
    COTTON v. BROAD RIVER REALTY, INC. et al.
    (454 SE2d 183)
    Decided February 14, 1995.
    Thomas E. Cotton, pro se.

      Whelchel, Dunlap & Gignilliat, Thomas M. Cole, Calvin M. McMullen, Charles E. Legette, Jr., for appellees.
   Ruffin, Judge.

Thomas E. Cotton filed a complaint against Broad River Realty, Inc. and others, to which Wayne Colston, one of the named defendants, filed a counterclaim for a writ of possession. After the hearing on Colston’s demand for possession, Cotton filed a motion requesting the right to purchase a copy of the hearing transcript. Cotton filed this direct appeal from the trial court’s order denying that motion.

As the complaint and counterclaim are still pending, the trial court’s order “ ‘cannot be considered a final judgment within the meaning of OCGA § 5-6-34 (a) (1), and it follows that we are without jurisdiction to entertain a direct appeal from it.’ [Cit.]” Chatham County Hosp. Auth. v. Mack, 185 Ga. App. 13, 14 (363 SE2d 264) (1987). Further, we do not agree with Cotton that OCGA § 9-11-60 (g) is applicable in this case. Cotton has pointed to no portion of the limited record that would support his argument that a clerical mistake was made and we cannot find any.

Appeal dismissed.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A94A2491.
    PENNAMON v. THE STATE.
    (454 SE2d 192)
   Johnson, Judge.

Robert Pennamon appeals from his convictions of robbery and obstruction of a law enforcement officer.

1. Pennamon argues there is insufficient evidence to support his robbery conviction because the only proof that he stole any property was the testimony of the victim, who was intoxicated at the time of the incident. See OCGA § 16-8-40 (a). This argument is without merit because the victim’s intoxication at the time of the incident affects only his credibility as a witness and the weight to be given his testimony. See generally Roberts v. State, 259 Ga. 620, 621 (3) (385 SE2d 668) (1989). “[T]he weight of the evidence and credibility of witnesses are questions for the triers of fact, and this court passes on the sufficiency of the evidence, not its weight.” (Citations and punctuation omitted.) Lattimore v. State, 203 Ga. App. 259, 260 (1) (416 SE2d 829) (1992). “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.” Palmore v. State, 213 Ga. App. 140, 141 (2) (444 SE2d 581) (1994).

In the instant case, the victim testified he was walking home when he encountered Pennamon, who hit him in the mouth, knocked him to the ground, kicked him and took $75 from him. The victim’s sister testified she saw Pennamon hit her brother and heard her brother say, “Leave me alone, you’ve already done got my money.” The police officer who was dispatched to the victim’s house on the date of the incident testified the victim appeared to be intoxicated, had a bloody lip and said he had been beaten and robbed. The sole defense witness testified the victim and Pennamon were arguing when one of them hit the other, but the witness could not identify who hit whom.

Viewing the evidence in the light most favorable to the verdict, we conclude a rational trier of fact could have found Pennamon guilty of robbery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Denson v. State, 212 Ga. App. 883, 885 (4) (443 SE2d 300) (1994).

2. Pennamon contends the court erred in refusing to give his written requests to charge on battery, simple battery and use of opprobrious or abusive language as justification for simple battery. The record, however, does not contain any written requests to charge by either Pennamon or the state and there is no transcript of a charge conference. Because the record does not contain any written requests to charge, we cannot make the preliminary determination as to the legal accuracy of Pennamon’s alleged requests. See Carter v. State, 263 Ga. 401, 403 (4) (435 SE2d 42) (1993). Moreover, the absence of a transcript of the charge conference leaves us in a position of presuming that no timely accurate written requests were made. See Jackson v. State, 213 Ga. App. 170, 171 (2) (a) (444 SE2d 126) (1994). Pennamon’s assertions in his brief to the contrary are insufficient. “[A] brief . . . cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Henderson v. State, 203 Ga. App. 733, 734 (1) (417 SE2d 413) (1992). Pennamon has thus shown no error.

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.

Decided February 14, 1995.

Patrice S. Howard, for appellant.

Joseph H. Briley, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.


author: Smith, Judge.

text:
    A94A2639.
    STILES v. THE STATE.
    (454 SE2d 189)
   Smith, Judge.

John Wesley Stiles, Jr., was convicted of armed robbery, OCGA § 16-8-41. His motion for new trial was denied, and he appeals.

1. Stiles enumerates the general grounds. Construed in favor of the verdict, the evidence shows that the victim was approached by a man who spoke with him in a well-lighted area. The man stood next to him while he used the telephone, then held a machine gun on him, struck him in the head, and took his wallet and pickup truck. The encounter lasted approximately 20 minutes. The victim immediately telephoned the police and gave a detailed description of the robber, including his height, weight, haircut, facial hair and clothing. Clothing similar to that described by the victim was recovered at Stiles’ home, and the victim identified the clothing at trial as that worn by the robber. The victim’s car was recovered near Stiles’ home. The victim “immediately without a moment’s hesitation” positively identified Stiles as the robber in a six-person photo line-up. He also identified Stiles at trial. Viewed in the light most favorable to the verdict, there was ample evidence presented from which a rational trier of fact could reasonably find that Stiles was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Stiles also enumerates as error the State’s use, for demonstrative purposes, of a machine gun similar to that described by the victim. Before any demonstration took place, the victim gave a detailed description of the small machine gun used in the robbery, including its size, its color, and the length of its ammunition clip, and testified that the machine gun produced by the State was similar to that used in the robbery. Defense counsel then noticed the machine gun lying behind the prosecutor’s chair and asked for a conference outside the presence of the jury. In the bench conference, the trial judge denied Stiles’ motion for mistrial, then gave curative instructions as requested by defense counsel. The trial court instructed the jury that no gun was recovered, that the demonstration weapon was not the one used in the offense, “if any was used,” and that the weapon was used only for demonstrative purposes. The victim then used the machine gun to demonstrate for the jury the robber’s actions at the time of the robbery.

Decided February 14, 1995.

Melissa M. Nelson, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Lee Anne Mangone, Robert M. Coker, Assistant District Attorneys, for appellee.

“A weapon that was not actually used in the commission of an offense, but which is similar to that which was so used is generally admissible into evidence. [Cits.]” Boyd v. State, 264 Ga. 490, 491 (2) (448 SE2d 210) (1994). “Where, as here, the victim of a crime identifies a weapon as similar to that used in the commission of the crime, the weapon is admissible whether or not it is the identical weapon. [Cits.]” Duvall v. State, 238 Ga. 325, 326 (232 SE2d 918) (1977). This court has held it must be “undisputed” that a similar weapon was used. Cauley v. State, 206 Ga. App. 233, 234 (1) (424 SE2d 822) (1992). The evidence was undisputed that a small machine gun similar to that presented was used in the robbery. See also Ingram v. State, 211 Ga. App. 821, 822 (3) (441 SE2d 74) (1994). Compare Jones v. State, 190 Ga. App. 416, 417 (2) (379 SE2d 189) (1989), in which the victim was unable to identify the weapon used, although she believed it was either a knife or a nail file, and a police officer testified that he had recovered a similar knife from the accused. That knife was unavailable because it had been lost by the police. 190 Ga. App. at 417-418.

Moreover, because the testimony and the instructions of the trial court clearly established that the weapon was admitted for demonstrative purposes only and was not the one used by Stiles, “ ‘there could be no prejudice such as would infect an otherwise valid verdict and judgment. (Cit.)’ [Cits.]” Boyd, supra, 264 Ga. at 492.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.


text:
    A94A2696.
    BRITTON v. THE STATE.
    (454 SE2d 187)
   Ruffin, Judge.

Appellant, Donald Britton, was convicted of possession of cocaine with intent to distribute and possession of a controlled substance in a public school. He was sentenced to 27 years’ imprisonment and appeals following the denial of his motion for a new trial.

Britton contends that the drugs in question did not belong to him and that the evidence was insufficient to support his conviction. We disagree. The evidence showed that prior to school one morning, Britton was with a group of eight to ten boys. Mr. Bachelor, the teacher supervising the area where the boys were congregated, saw that Britton had something in his pocket which he showed to the other boys but appeared to be hiding from Bachelor. Bachelor testified that when classes began, Britton walked by him and held up a roll of money with a $100 bill on the outside. Bachelor then discussed the incident with Mrs. Williams, Britton’s homeroom teacher.

Decided February 14, 1995.

John E. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

Williams testified that when she went to take Britton to the principal’s office, she thought he passed something to Tyrone Roberts, the classmate sitting behind him. When she asked Roberts to open his hand, he had a small plastic bag containing what was later identified as rocks of cocaine. Roberts testified that when Britton was called to the principal’s office Britton gave him the bag of “rocks” and told him to hold it. The principal testified that Britton admitted the bag of “rocks” was his and that he had given it to Roberts.

A detective from the sheriff’s department testified that Britton told him the bag of cocaine was his. Britton also gave the detective a signed, written statement admitting that “I get my drugs from Savannah in the projects. I sell them for $20.00 a piece in Midway.”

At trial, however, Britton testified that the cocaine was not his and actually belonged to Roberts. He also testified that Roberts, who was shown to be a convicted drug dealer at trial, had threatened to kill him if he did not claim ownership of the drugs.

The evidence adduced at trial, and as related in Britton’s own statement of facts, was clearly sufficient to allow a rational trier of fact to find Britton guilty beyond a reasonable doubt of the crimes of which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 214 Ga. App. 838 (449 SE2d 538) (1994).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A1968.
    CLAY v. THE STATE.
    (454 SE2d 198)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of rape (Count 1), aggravated sodomy (Count 2) and aggravated child molestation (Count 3). The trial court merged Counts 1 and 2 of the indictment and ordered defendant to serve consecutive 20-year sentences on the remaining counts of the indictment. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the evidence is insufficient to support his convictions, arguing there was proof that the victim was also sexually molested by someone other than himself. This argument is without merit.

Although there was evidence that one of the victim’s brothers had sexual contact with the victim, testimony from the nine-year-old victim, the victim’s ten-year-old brother (an eyewitness), the victim’s mother and an investigator with the Atlanta Police Youth Squad reveals that defendant committed acts against the victim constituting rape, aggravated sodomy and aggravated child molestation. “ ‘ “[A]ny questions of the credibility of witnesses and the weight to be given their testimony is entirely within the province of the jury. (Cits.)” (Cits.)’ Smith v. State, 263 Ga. 224 (1) (430 SE2d 579) (1993). Accordingly, the evidence in this case is sufficient to authorize a rational trier of fact to find proof of [defendant’s] guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Smith v. State, supra; Roker v. State, 262 Ga. 220 (1) (416 SE2d 281) (1992).” Stephens v. State, 264 Ga. 761 (1) (450 SE2d 192).

2. Next, defendant contends the “trial court erred in refusing to take curative action, as requested by [his trial attorney], when his character was improperly placed in issue by the District Attorney.”

The request for curative instructions referred to in this enumeration of error arose while the State’s attorney was cross-examining defendant. The pertinent portion of the trial transcript provides as follows: “[STATE’S ATTORNEY]: Mr. Clay, you didn’t call there and ask [the victim] to get on the phone and tell her to change her story because she’s lying? [DEFENDANT]: No. Q. You never called there? A. No. Q. You didn’t harrass [sic] them and try and fire bomb their house? A. No. [DEFENSE COUNSEL]: Objection, your Honor. . . . THE COURT: Ms. Wynn, [the State’s attorney,] there is an objection. [DEFENSE COUNSEL]: If she has proof of other criminal activity, she knows the way to get it in. THE COURT: That’s inappropriate. There has been absolutely no foundation. [DEFENSE COUNSEL]: I make a motion for mistrial at this time. THE COURT: Denied. [DEFENSE COUNSEL]: I ask for curative instructions to the jury, your Honor. THE COURT: Denied. [DEFENSE COUNSEL]: I renew my objection at this time. THE COURT: Denied. Go ahead.” The State’s attorney then continued cross-examination of defendant.

Decided February 15, 1995.

Carla J. Friend, for appellant.

Lewis R. Slaton, District Attorney, Herman L. Sloan, Suzanne Wynn, Frances E. Cullen, Assistant District Attorneys, for appellee.

“ ‘[T]he trial court has broad discretion in fashioning a remedy to alleviate a problem created by the utterance of inadmissible evidence, and its exercise may not be reversed unless abused. (Cit.)’ Whiteley v. State, 188 Ga. App. 129 (1) (372 SE2d 296) (1988).” James v. State, 196 Ga. App. 569, 571 (396 SE2d 306). In the case sub judice, we cannot say the trial court abused its discretion in refusing defense counsel’s request for curative instructions as “there are instances where ‘curative instructions would serve only to emphasize the alleged error.’ Griggs v. State, 181 Ga. App. 618 (2) (353 SE2d 97) (1987).” James v. State, 196 Ga. App. 569, 571, supra. Moreover, we are satisfied the lack of curative instructions does not require a new trial in the case sub judice as “consideration of the entire record satisfies us that it is highly probable that the argument did not contribute to the verdict. Blanchard v. State, 247 Ga. 415 (2) (276 SE2d 593) (1981).” Horne v. State, 192 Ga. App. 528, 529 (385 SE2d 704).

Judgment affirmed.

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


text:
    A94A2309.
    BROWN v. THE STATE.
    (454 SE2d 596)
   McMurray, Presiding Judge.

Defendant was charged via indictment with the offense of murder in that he “unlawfully and with malice aforethought cause [d] the death of Cynthia Ann Webb Brown, by asphyxiation. . . .” With the assistance of counsel and “pursuant to an agreement between the State and the defense, [defendant agreed to] plead guilty to the lesser included offense of voluntary manslaughter.” However, on May 24, 1994, the day of the hearing on this plea agreement, the District Attorney for the Cordele Judicial Circuit preferred an accusation charging defendant with the additional offense of cruelty to George Ira Brown, Jr., a child under the age of 18, by “striking and suffocating Cindy Brown, the child’s mother, and thereby causing her death in the presence of said child. . . .”

At the hearing, the trial court determined that defendant had completed high school through the tenth grade and that he was not under the influence of alcohol or drugs. The trial court then questioned defendant as to the voluntariness of his guilty plea to the lesser offense of voluntary manslaughter, advising defendant of the rights he was waiving by foregoing a jury trial. In response to direct inquiry, defendant affirmed that he was satisfied with the services of his attorney. With respect to the charge of cruelty to children, the following then transpired: “[THE COURT:] Do you understand that you have the right to have this accusation submitted to the grand jury first to determine whether or not you will be indicted? . . . [DEFENDANT:] Yes, sir. [THE COURT:] Do you wish that done or do you wish to go ahead and dispose of the case today and enter a plea? [DEFENDANT:] Go ahead and dispose of it.” The trial court then read the accusation and again queried defendant as to the voluntariness of his plea.

The trial court accepted defendant’s guilty pleas and proceeded with sentencing. The State’s attorney recommended that defendant receive a sentence of 20 years for the offense of voluntary manslaughter and for the offense of “cruelty to children, ... a sentence of 20 years to be served consecutively. ...” The following then transpired: “[DEFENSE COUNSEL:] Your Honor, that’s the recommendation we anticipated. We would ask the Court to follow it. [Defendant] has asked me to inform the Court and also to make part of the record in this case that he never physically harmed this child and he never would physically harm this child. [THE COURT:] But you’re basically agreeing with the recommendation of the State. . . . [DEFENSE COUNSEL:] Yes, sir.”

Thereafter, defendant never moved to withdraw his guilty pleas but filed this direct appeal, challenging “only his conviction for the offense of cruelty to children. ...” Held:

In two related enumerations, defendant contends the trial court failed to follow the mandatory procedures for accepting a guilty plea as outlined in the Uniform Superior Court Rules (USCR). Specifically, he enumerates the failure of the trial court to inform him of the “maximum possible sentence . . .” for cruelty to children, as required by USCR 33.8 (C) (2). He further enumerates the purported failure of the trial court to determine on the record that a “factual basis existed for [defendant’s] plea of guilty . . .” as required by USCR 33.9.

1. So long as the substantive requirements of Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) concerning the defendant’s guilty plea are met, there is no procedural requirement that the trial judge personally make all the inquiries established by USCR 33.7 through 33.9. See State v. Germany, 245 Ga. 326, 328 (265 SE2d 13). “It is presumed that counsel will fulfill the role in the adversary process that the Sixth Amendment envisions, and has rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland v. Washington, 466 U. S. 668, 688, 690 (104 SC 2052, 80 LE2d 674). Accordingly, when the hearing record affirmatively reflects that a defendant has consulted with counsel regarding his guilty plea, and on appeal an ineffective assistance of counsel claim is not timely asserted in regard to the plea, it may be presumed (subject to rebuttal) that counsel has adequately advised [the] client regarding the meaning and effect of the subsequently offered plea. And such consultation constitutes an additional factor which may be considered in determining plea validity. Compare Hill v. Lockhart, 474 U. S. 52, 56-57 (106 SC 366, 88 LE2d 203).” (Emphasis omitted.) Scurry v. State, 194 Ga. App. 165, 166 (390 SE2d 255).

In the case sub judice, there is no allegation that trial counsel rendered ineffective assistance with respect to defendant’s guilty pleas. The record demonstrates that defendant and his counsel anticipated the State’s request for a 20-year consecutive sentence and counsel agreed to that sentence in defendant’s presence, in response to direct inquiry by the court. In the absence of any allegation to the contrary, this record supports the conclusion that counsel fulfilled his professional responsibilities and informed defendant of the maximum sentence. Scurry v. State, 194 Ga. App. 165, 166, supra. “An accused, having participated in the court’s inquiry into the voluntariness of a guilty plea and having approved ‘ “in the presence of the court while his attorney entered a plea of guilty in his behalf and the court acting thereon imposed [the anticipated] sentence, (is not permitted) to deny thereafter the authority of his attorney to enter the plea or to deny his approval of such action by his attorney. Had he had any objection [that the State’s recommendation deviated from the anticipated sentence], he should have made it known at the time and before the court acted thereon.” (Cits.)’ Smith v. Fuller, 223 Ga. 673, 675 (2) (157 SE2d 447) (1967).” Paino v. State, 209 Ga. App. 87, 88 (432 SE2d 599). “Although the [trial] court [in the case sub judice] did not specifically address each issue found in Superior Court Rule 33.8, we find the court’s determination of voluntariness clearly supported by the record. We find no error. Cf. Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971).” McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235). Compare McKibben v. State, 212 Ga. App. 866 (443 SE2d 640). “Although no reversible error was committed as [contended in this enumeration], we strongly caution both the state and superior courts, in the interests of judicial economy, to comply in spirit and in letter with the requirements of Uniform Superior Court Rules 33.7-33.9 when conducting guilty plea hearings.” Robinson v. State, 212 Ga. App. 613 (1), 615 (442 SE2d 901).

Decided February 15, 1995.

Kenneth W. Krontz, for appellant.

John C. Pridgen, District Attorney, Denise D. Fachini, Assistant District Attorney, for appellee.

2. Uniform Superior Court Rule 33.9 provides: “Notwithstanding the acceptance of a plea of guilty, the judge should not enter a judgment upon such plea without making such inquiry on the record as may satisfy [the court] that there is a factual basis for the plea.” “It is not necessary that a trial court affirmatively state on the record that it is satisfied that a factual basis for a defendant’s guilty plea exists when there is evidence that the trial court is aware of the factual basis.” (Citation and punctuation omitted.) Holland v. State, 209 Ga. App. 821, 822 (434 SE2d 808). In the case sub judice, the particulars alleged in the fact-specific accusation were admitted to by defendant’s plea. Those particulars were further corroborated by defendant’s mitigating statement that he never harmed the child and never would. “Although the details of what occurred so as to constitute the [crime of cruelty to children] were not articulated, which is the better practice, the court minimally made ‘such inquiry on the record as may satisfy (it) that there is a factual basis for the plea.’ USCR 33.9. Compare Evans [v. State, 212 Ga. App. 805 (443 SE2d 296)].” Johnson v. State, 214 Ga. App. 404, 405 (2) (447 SE2d 711).

Judgment affirmed.

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

       We do not consider the affidavit of trial counsel made subsequent to the entry of judgment, for it does not affirmatively appear that this evidence was properly made of record. Rather, it is appended as an exhibit to the State’s brief. “This procedure is not an authorized method to supplement the record. See OCGA § 5-6-41 (g), (i).” Leatherwood v. State, 212 Ga. App. 342 (1a) (441 SE2d 813).


text:
    A94A2441.
    BALLARD v. THE STATE.
    (454 SE2d 200)
   McMurray, Presiding Judge.

Defendant was charged via indictment with possession of cocaine, possession of less than one ounce of marijuana, improper left turn, driving without a license, possession of a firearm during the commission of a crime, and possession of a firearm by a convicted felon. After a bench trial, he was found guilty of possession of a firearm by a convicted felon as alleged in Count 6 of the indictment. He appeals from the judgment of conviction and sentence entered on that count. Held:

In his sole enumeration of error, defendant contends the trial court erred in denying his written motion to suppress the weapon and drugs found in his possession. He argues that the traffic stop of the automobile in which he was a passenger “was made without a valid independent reason and therefore, was pretextual.”

Decided February 15, 1995.

David B. Brown, for appellant.

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

“[A] mere passenger who asserts an interest in neither the car nor the property found in it has no standing to object to the search of the automobile. Rakas v. Illinois, 439 U. S. 128 (99 SC 421, 58 LE2d 387) (1978).” McGhee v. State, 253 Ga. 278, 279 (1) (319 SE2d 836). In the case sub judice, defendant “ ‘asserted neither a property nor a possessory interest in the automobile, nor an interest in the [weapon] seized.’ [Cits.]” Mecale v. State, 186 Ga. App. 276, 278 (367 SE2d 52). Consequently, he held no legitimate expectation of privacy which was infringed by this traffic stop. Compare State v. Diaz, 191 Ga. App. 830, 831 (1), 832 (383 SE2d 195). The trial court did not err in denying defendant’s motion to suppress.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A94A2652.
    BYRD v. THE STATE.
    (454 SE2d 594)
   Beasley, Chief Judge.

Byrd asserts the evidence was insufficient to support the conviction, after being sentenced on one count of an indictment charging five counts of giving a false statement to a police officer. OCGA § 16-10-20.

In the early morning hours of February 24, 1993, Byrd appeared at a fire station with a gunshot wound in the abdomen. When separate officers investigating the incident asked Byrd the next day who had shot him he twice stated he did not know. Counts one and two of the indictment, of which he was acquitted, were based upon these two statements.

On March 2,1993, Byrd told police officers that he had been shot by a woman named Adams, and he signed a written statement to that effect. Counts three and four were based upon these statements. The jury found him guilty, but the court directed verdicts for Byrd after it determined that he had been placed in custody at the time the statements were made without having been advised of his rights.

On March 25, 1993, he recanted his accusation of Adams and stated that he had been shot by a man named “Greg”; this statement was the basis of Count five, upon which judgment and sentence were entered. It does not appear from the record that anyone was ever charged with shooting Byrd.

On appeal, the evidence is viewed in the light most favorable to support the verdict. Key v. State, 213 Ga. App. 556, 557 (445 SE2d 349) (1994). As the jury found Byrd not guilty on the two counts based upon his statements that he did not know who shot him, and found him guilty on the counts based upon statements that accused specific persons, it appears the jury believed Byrd’s earlier statement that he did not know who shot him. He repeated it at trial and the jury logically concluded that his other statements were falsely made.

Two investigating officers testified that in his last statement Byrd admitted his accusation of Adams was false and he related a version of the shooting involving a man named “Greg.” Byrd told the officers that he and “Greg” were in a bar and became belligerent towards one another. Rather than engage in a fight at the bar they separately drove to a vacant lot. There “Greg” lunged at Byrd and shot him. “Greg” was Greg Freeney.

Byrd contends that the officers’ testimony only indicates that he made an implication, conclusion, or supposition that Greg Freeney shot him, not a declaration that such was the case. One officer related Byrd’s statement as “Greg lunged at [Byrd] and [Byrd] guessed that’s when he shot [Byrd].” The other officer related the statement as “[h]e said that Greg came toward him and lunged toward him and that’s when evidently he was shot. He become (sic) unconscious and when he woke up later he was by himself.” This second officer, who asked some questions of Byrd after the first, officer left, also testified that Byrd answered “yes” to the specific question “did Greg shoot you?”

Byrd testified that his March 25 statement to the officers was that he could not remember exactly how he was shot but that he could have been shot by Greg Freeney in the manner described, and that he only responded “yes” to the specific question “did Greg shoot you” because that seemed a logical possibility. He also testified that he did not know who shot him and never told anyone that he did know. He admitted he consumed a large amount of alcohol, as well as some Valium, during the course of the day and evening before the shooting. Byrd’s testimony created a conflict in the evidence and a question of credibility to be resolved by the jury. Cantrell v. State, 210 Ga. App. 218, 219-220 (1) (435 SE2d 737) (1993). There was sufficient evidence that Byrd stated to police that he had been shot by Greg Freeney.

There was also evidence from which the jury could conclude that the statement was false. Freeney testified that he did not shoot Byrd and that he was with his girl friend from the evening of February 23 through the morning of the 24th. His girl friend testified to the same effect and noted that February 23 was her birthday.

Byrd also contends there was insufficient evidence that his accusation of Greg Freeney was “knowingly and willfully” made, as required by OCGA § 16-10-20. He argues that he was coerced to make the March 25 statement by a police officer’s threat to reveal to his girl friend the earlier version of events involving the woman named Adams. Any fear on Byrd’s part was prompted by his knowledge that the statement was false and that its falsity would not be known by his girl friend, who would react unfavorably to him upon the mistaken belief it was true. This was self-induced, not police-induced. See Ramos v. State, 198 Ga. App. 65, 66 (1) (400 SE2d 353) (1990), which analyzes the character of the statement’s prompting in the context of admissibility under OCGA § 24-3-50.

The proper question is whether the jury could have inferred the elements of the crime from the evidence presented. See Dalton v. State, 251 Ga. 641, 642 (3) (308 SE2d 835) (1983). “Knowingly,” as used in OCGA § 16-10-20, includes knowledge of the falsity of the statement. Tidwell v. State, 216 Ga. App. 8 (453 SE2d 64) (1994). There was evidence from which the jury could conclude Byrd knew Greg Freeney had not shot him. Additionally, Byrd’s argument is not that he did not know the statement was false, but that he did not make anything that could be termed a statement.

Tidwell, supra, did not specifically address the statutory element of “willfully.” In the context of the statute concerning securities crimes, OCGA § 10-5-24, we have upheld a jury instruction that “willful means knowingly and intentionally committing the acts that constituted the violation.” Greenhill v. State, 199 Ga. App. 218, 220 (3) (404 SE2d 577) (1991). Willful means intentional, deliberate, self-determined. Webster’s Third New Inti. Dictionary. Even if Byrd was pressured into attending the March 25 interview, the evidence supports the conclusion that his false accusation of Greg Freeney was the result of his own voluntary intent. The jury evaluates the credibility of the witnesses. Cantrell, supra. Obviously, the jury chose not to believe Byrd’s allegation that he made the accusation against Greg Freeney unknowingly or against his will. See Cason v. State, 197 Ga. App. 308 (398 SE2d 292) (1990).

Although the statement’s admissibility is not before us, we note that there does not appear to be any violation of Byrd’s due process rights: “The circumstances of the investigation and arrest in this case reveal none of the extreme tactics identified as the hallmarks of coercive police activity offensive to fundamental notions of due process. [Cit.] There was no lengthy interrogation, threats of physical violence, promises or other deliberate tactics calculated to break the will of the suspect.” Metheny v. State, 197 Ga. App. 882, 886 (1) (c) (400 SE2d 25) (1990).

The evidence on the specific charge for which Byrd was convicted and sentenced was sufficient to support that conviction. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jacobs v. State, 207 Ga. App. 714, 716 (3) (429 SE2d 256) (1993).

Decided February 15, 1995.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Johnson, JJ., concur.


author: McMurray, Presiding Judge. Smith, Judge,

text:
    A94A2765.
    FREEMAN v. THE STATE.
    (454 SE2d 196)
   McMurray, Presiding Judge.

Defendant and two others were charged via indictment with multiple counts of “SALE OF COCAINE” and “SCHOOL DRUGS,” i.e., the “[unlawful] sale” of cocaine within 1,000 feet of real property owned by the Board of Education and Orphanage for Bibb County. The evidence adduced at defendant’s jury trial, including a videotape of one sale, showed that defendant was one of a group of young men that stood in the street at an intersection near Central High School and sold drugs stored in the woods behind an abandoned house on the corner. Officer Stewart Ellington of the Macon Police Department identified defendant as “Six-pack,” whom Officer Ellington approached on February 5, 1993, and “asked him if he was straight. He replied, yes.” Officer Ellington explained that, in the patois of the street, this meant that defendant was holding cocaine to sell. Defendant “went across the street to a little wooded area in the back of a vacant house. . . .” “He came back across the street, . . . and he handed me a dime piece of cocaine, and [Officer Ellington] handed [defendant] $10.” On February 9, 1993, Officer Ellington returned to the intersection of Duncan Avenue and Napier. Officer Ellington saw defendant and an unknown male walking along the sidewalk and the following transpired: “The [unknown] male approached me and asked me what did I need. I told him a dime. He went back and informed [defendant] what did I need. [Defendant] left the scene at the time, went across the street to a house. It had a real estate sign. . . . And came back within a minute, minute and a half, handed me the dime piece of cocaine. I handed the unknown . . . male a $20 bill and [defendant] handed me a $10 bill back.” On February 10, 1993, Officer Ellington returned to this intersection, accompanied by representatives of the television news and print media. At the scene was a group of young men, “anywhere . . . from about five to eight [persons].” Officer Ellington made a third purchase of crack cocaine, having made contact with one unknown male who “informed another [unknown] male. [This second person] then left that scene and went into a house on the corner. . . . He went into the house for about a minute, minute and a half, he came back out, handed the first [unknown] male . . . the two pieces of crack cocaine. The first [unknown] male . . . came and handed [Officer Ellington] two pieces of crack cocaine. [Officer Ellington] handed him a $20 bill . . . [and] then left the scene.” As to defendant’s involvement in this sale of February 10, 1993, Officer Ellington affirmed that “[Six-pack was] there when [the officer was] talking to the [unknown] male about buying cocaine [.]” Officer Ellington affirmed that defendant “[left] right then ...” and came back. Christopher Ballard was summoned as a witness for the State. He identified himself selling drugs in the videotape that is State’s Exhibit 5. Under cross-examination, Christopher Ballard testified that he was selling his own drugs and not those of the defendant. He further denied being “part of an organization dedicated to selling dope.” When asked on redirect whether these drug sellers “work together to sell each other’s drugs, . . . [Christopher Ballard answered:] Not really, . . . [explaining:] We all take turns.” Nevertheless, Christopher Ballard affirmed that “[he] and Six-pack help each other [. . . in that Ballard] watched out while he [Six-pack] was out there . . . [ánd Six-pack would] watch out for [Christopher Ballard].”

The trial court directed verdicts of acquittal as to Count 1 alleging a pattern of criminal activity in violation of the Georgia Racketeer Influenced & Corrupt Organizations Act, and as to Count 10, alleging the use of an underage person in the sale of cocaine. The jury returned guilty verdicts as to six counts: three counts of “SALE OF COCAINE” and three counts of “SCHOOL DRUGS.” Defendant’s motion for new trial was denied and this appeal followed. Held:

1. In his second enumeration, defendant contends the trial court erred in admitting into evidence the videotape of one sale, arguing that this videotape “was improperly authenticated,” in that the State failed to meet the foundational requirements established in Allen v. State, 146 Ga. App. 815 (247 SE2d 540).

“Under the silent witness theory, a videotape constitutes independent probative evidence of what it shows. People v. Byrnes, 308 NE2d 435, 437 (N. Y. 1974).” State v. Berky, 214 Ga. App. 174, 175 (447 SE2d 147). “Authentication of the subject videotape is always required. However, the foundational requirements for the admissibility of videotapes under the silent witness theory [do not mandate a showing of each of] the requirements stated in Allen [v. State, 146 Ga. App. 815], supra. While, the admission of evidence is within the discretion of the trial court, the following three elements must be established: (1) expert testimony establishing that the videotape had not been altered or manipulated; (2) testimony establishing the date and place the videotape was taken; and (3) testimony establishing the identity of the relevant participants depicted. [Cits.]” State v. Berky, 214 Ga. App. 174, 176, supra. “[W]here a foundation is laid for the admission in evidence of a videotape through the testimony of a witness to the event who confirms that the videotape accurately and reliably represents what the witness sensed at the time in question, it is not necessary to show the proper functioning of the recording device or its operation by competent personnel. [Cits.]” Harper v. State, 213 Ga. App. 444, 447 (4) (445 SE2d 303).

In the case sub judice, Perry Smith, “a photographer and editor” with WGXA TV, authenticated this videotape as “the video [he] shot . . .” on February 10, 1993, when Smith accompanied Major Allen and Officer Ellington from the Macon Police Department vice unit. Mr. Smith confirmed that the video had not “been altered or spliced in any way.” Chain of custody was established by Officer Mark Cotton of the Macon Police Department, who testified that he “obtained this video from Perry Smith at Channel 24 on February 11, [1993,] and placed it in our city crime lab as evidence.” Officer Cotton also identified the events depicted as “the incident on February 10th, 1993, at Duncan Avenue and Napier Avenue[,]” in “Macon, Bibb County, Georgia.” Officer Cotton identified “four or five . . .” of the persons there depicted, including defendant. The trial court did not err in admitting this videotape over the objection that an improper or inadequate foundation had been established. Harper v. State, 213 Ga. App. 444, 447 (4), 448, supra.

2. In his first enumeration, defendant contends the evidence is insufficient to support his convictions for sale of cocaine and “school drugs” as alleged “under Counts 8 & 9 of the indictment,” respectively. He argues the evidence shows only that he was present at the scene and did not participate. Defendant is correct that there is no evidence that he directly participated in the February 10, 1993, hand-to-hand sale of cocaine. However, evidence that he would act as a lookout for Christopher Ballard is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to authorize the jury’s determination that defendant was guilty, beyond a reasonable doubt, as a party to, participating in, the sale of cocaine alleged in Counts 8 and 9 of the indictment. Langham v. State, 196 Ga. App. 71, 72 (2) (395 SE2d 345). See also Lundy v. State, 130 Ga. App. 171, 172 (1b) (202 SE2d 536). This enumeration is without merit.

Judgment affirmed.

Pope, P. J., concurs. Smith, J., concurs specially.

Decided February 15, 1995.

L. Elizabeth Lane, for appellant.

Frederick J. Freeman, pro se.

Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.

Smith, Judge,

concurring specially.

I concur specially in order to clarify two points.

1.1 agree that the videotape of one drug sale was properly admitted under Harper v. State, 213 Ga. App. 444, 447 (4) (445 SE2d 303) (1994). However, I cannot support the tacit expansion here of the “silent witness” rule established in State v. Berky, 214 Ga. App. 174, 175 (447 SE2d 147) (1994). Reading Berky in its entirety, it should reasonably be viewed as restricting the “silent witness” rule to cases of necessity, such as the death or unavailability of the authenticating witness required by Allen v. State, 146 Ga. App. 815, 817 (2) (247 SE2d 540) (1978). Any expansion of the rule in Berky should be both explicit and required by the facts of the case presented.

2. I also concur with respect to the sufficiency of the evidence to support Freeman’s conviction. Construing the evidence to support the jury’s verdict, there was testimony that Freeman and Ballard customarily acted as lookouts for one another. This testimony, in combination with the video footage of the drug sale showing Freeman’s presence, is sufficient to show that Freeman acted as a lookout on the occasion recorded on videotape. The majority also appears to agree with this reasoning, and I write simply to clarify that holding. To a reader not having, as we do, the benefit of the entire record, it might appear that evidence of customary acts on another occasion, without more, was sufficient to support a conviction. Testimony of that kind would have been insufficient without the evidence of Freeman’s presence on this occasion, as shown on the videotape.


author: Blackburn, Judge.

text:
    A95A0153.
    LUND v. COMMONWEALTH MORTGAGE ASSURANCE COMPANY.
    (454 SE2d 194)
   Blackburn, Judge.

Commonwealth Mortgage Assurance Company (Commonwealth) filed suit against James M. Lund III, seeking to recover the amount owed under an indemnity agreement executed by Lund in favor of Commonwealth.

Lund executed the agreement in issue on October 10, 1986, incident to a real estate closing on a home he purchased. In connection therewith Lund executed a promissory note and security deed in favor of Bankers First Mortgage Corporation (Bankers First). On the same date, Lund executed an Investor Loan Indemnity Agreement in favor of Commonwealth as consideration for its issuance of a private mortgage insurance policy to Bankers First covering the lender against Lund’s default on the loan.

By the terms of the agreement, Lund agreed to indemnify Commonwealth for all amounts that Commonwealth might be required to expend in fulfilling its obligations under the policy. Lund’s mortgage was subsequently assigned to Barclays American Mortgage Corporation (Barclays). Lund thereafter defaulted, whereupon Barclays foreclosed, purchasing the property at an unconfirmed foreclosure sale for $132,752.59. The aggregate principal, interest, attorney fees and costs then owed on the property was $134,433.76.

Commonwealth later paid Barclays $40,322.77, Barclays’ claim of loss under the mortgage insurance policy. Asserting that he had not signed the agreement, Lund refused repayment under the Investor Loan Indemnity Agreement. Commonwealth then brought the underlying action against Lund to recover its payment of loss to Barclays. In a pretrial hearing, the trial court granted Commonwealth’s motion in limine, preventing Lund from introducing any evidence regarding the foreclosure sale in satisfaction of his debt on the property. At trial, the jury rendered a verdict for Commonwealth, and Lund now appeals.

1. Lund first contends that the trial court erred in granting Commonwealth’s motion in limine because it prevented him from introducing into evidence the amount applied to his debt as a result of the foreclosure sale.

“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.” OCGA § 24-2-1. The issues on trial were whether Lund was signatory to and obligated under an indemnity agreement obligating him to reimburse Commonwealth all expenses indemnified against under the agreement; and, if so, the amount of indemnification thus paid. The fact that Barclays had earlier recovered all but $1,681.17 on the debt owing on the property was not relevant, as such recovery was obtained on a debt which was the subject matter of an entirely separate cause of action — the lender’s action on Lund’s mortgage. Turner v. Commonwealth Mtg. Assurance Co., 207 Ga. App. 428, 429 (428 SE2d 398) (1993). Inasmuch as the terms of the Investor Loan Indemnity Agreement before us are unambiguous and susceptible to but one interpretation, we must give effect to the agreement as written. Schroeder v. Ga. Farm Bureau Mut. Ins. Co., 211 Ga. App. 302, 304 (439 SE2d 18) (1993). Accordingly, this enumeration of error is without merit.

Decided February 15, 1995.

William A. Trotter III, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Donna C. Sloan, for appellee.

2. Lund also contends that the trial court erred in granting the motion in limine in that it resulted in the exclusion of evidence which would have allowed him to establish that the foreclosure sale was unconfirmed and barred as a deficiency claim pursuant to OCGA § 44-14-161.

“Although the failure to confirm a foreclosure sale precludes a lender from seeking a deficiency judgment, it does not extinguish the underlying debt. Further, failure to confirm does not estop even the actual lender from pursuing other contractual security on the debt.” (Citations omitted.) Turner, supra at 429. In the instant circumstances, Lund’s liability arises out of contractual obligations undertaken pursuant to the Investor Loan Indemnity Agreement he entered into with Commonwealth. As we have indicated, these obligations were wholly separate from those he undertook with the lender. Inasmuch as Commonwealth’s action to recover under its indemnity agreement with Lund was independent of the foreclosure sale instituted by Barclays, the action on such agreement is not foreclosed by Barclays’ failure to have the foreclosure sale confirmed.

3. Lund lastly contends that the Investor Loan Indemnity Agreement is unenforceable as violative of public policy. We are not unmindful that OCGA § 44-14-161 was enacted to protect debtors against deficiency judgment in circumstances where foreclosure sale of their property brings less than its fair market value. See Turner, supra at 429; Kennedy v. Gwinnett Commercial Bank, 155 Ga. App. 327 (1) (270 SE2d 867) (1980). We are likewise aware of Redman Indus. v. Tower Properties, 517 FSupp. 144 (N.D. Ga. 1981) in which the district court concluded that the guarantor’s action to recover under the indemnity agreement therein was, in effect, an action seeking a deficiency judgment because of evidence of collusive activity between the lender and guarantor. Absent such evidence, as here, it is settled that the enforcement of an indemnity agreement is not contrary to public policy in that mortgagors are otherwise fully protected from lenders seeking deficiency judgment. Turner, supra at 429-430. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

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


text:
    A95A0529.
    THE STATE v. HARRISON.
    (453 SE2d 820)
   Blackburn, Judge.

The appellee, Norman Keith Harrison, was charged by accusation with driving under the influence, driving with unlawful alcohol concentration, and following too closely. The trial court granted Harrison’s motion in limine to suppress his breath test results, and the State now appeals.

On November 20, 1993, at about 3:00 p.m., Officer M. E. Phillips responded to a call which indicated that an accident had occurred on Georgia Highway 124 involving Harrison. Upon arriving at the scene of the accident, Phillips determined that Harrison had driven into the rear end of another vehicle. Officer Phillips observed that Harrison had a moderate odor of alcohol on his breath and that his eyes were “kind of glazed over.”

Harrison submitted to two field sobriety tests, testing positive for alcohol on both. As a result, Phillips arrested Harrison and read him his implied consent rights advising him, among other things, that “[a]fter submitting to the required testing, you are entitled to additional chemical tests at your own expense.” Thereafter, Harrison submitted to an Intoximeter 3000 test, neither requesting additional testing nor making further inquiry as to the nature of his implied consent rights. In granting Harrison’s motion in limine, the trial court observed that the implied consent warning given Harrison had been defective because it failed to give Harrison notice of his right to additional chemical testing by qualified persons of his own choosing under OCGA § 40-6-392 (a) (3).

The State contends the trial court erred in granting the motion because it applied an overly technical standard in deciding the issue, particularly in the absence of a showing of harm to the appellee. “It is true that ‘(a) defendant is not entitled to a warning which tracks the exact language of the implied consent statute.’ (Citations, punctuation, and emphasis omitted.) Pryor v. State, 182 Ga. App. 79, 80 (2) (354 SE2d 690) (1987); Howard v. Cofer, 150 Ga. App. 579, 580 (2) (258 SE2d 195) (1979).” State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). However, here, as in Causey, the warning is deficient, not because of its form, but because of its content. That is — “it completely failed to inform [Harrison] that he could choose his own qualified person to administer the additional test.” Id. The State thus failed to meet its burden to demonstrate compliance with the pertinent statutory requirement in proving the violation by evidence of a chemical test. As a result, the intoximeter test administered appellee is inadmissible, even in the absence of a showing of harm. Id. Accordingly, we affirm the trial court’s grant of the motion in limine.

Judgment affirmed.

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

Decided February 15, 1995.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Thomas C. Nagel, for appellee.


author: Birdsong, Presiding Judge.

text:
    A94A2477.
    BANKS v. THE STATE.
    (454 SE2d 784)
   Birdsong, Presiding Judge.

Claxton Banks appeals his conviction of aggravated assault with intent to commit robbery. He contends the evidence is insufficient to sustain his conviction, and he also contends the trial court erred by allowing the State to use evidence of an alleged telephone conversation between him and a witness, erred by admitting identification testimony, and erred by admitting evidence of a similar transaction.

The evidence shows the victim, an 83-year-old man, was on his front porch when a young man that he knew, Darrell Ferrell, asked if he could use the telephone. Because Ferrell’s grandfather lived a few houses away, the victim was suspicious of this request and followed Ferrell into the house and kept a “close eye” on him. Ferrell then procured a kitchen knife and held it to the victim’s throat while he demanded the victim’s money. Another man, alleged to be Banks, then hit or kicked the victim in the face. When the victim yelled for his roommate, the two men fled.

When the police arrived, the victim immediately told them that Ferrell was one of the men who attempted to rob him, and, according to the police, described the other person as a black male, 5 foot 3 inches to 5 foot 5 inches tall, slim build, brown eyes, dark complexion, wearing black pants and no shirt. No mention was made of any facial hair. At a hearing on Banks’ motion to exclude the identification, however, the victim denied giving any description to the police.

Ferrell called his mother, Ms. Smith, and told her that the police were looking for him. From then on Ferrell’s mother orchestrated Ferrell’s surrender to the police and Banks’ apprehension. The police picked up Ms. Smith at her father’s residence and took her to the location where Ferrell told her that he would be waiting with his accomplice. When the police arrived, Ferrell was apprehended and in the process pointed out Banks as his accomplice. Banks was taken into custody, handcuffed* and placed in the rear of the police car with Ferrell. Although it was almost four hours after the incident, they were then taken to the victim’s house to see if he could identify them. According to the victim, the police came to his house and asked him to see if he could identify the perpetrator who was with Ferrell. When the victim arrived on the street, Banks was sitting in the rear seat closest to the curb and Ferrell was sitting next to him. The victim identified Banks as the person who assaulted him. Banks was taken to the police station and booked for the robbery.

Banks was tried by jury and convicted of aggravated assault with intent to commit robbery. He now appeals. Held:

1. Contrary to Banks’ contention, we find that the evidence was sufficient to sustain his conviction within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Banks alleges that the trial court erred by allowing the State to introduce evidence of another transaction which Banks alleges was not similar to the current offense. The similar transaction was a robbery in which the victim, a 57-year-old woman, was kidnapped from a parking lot in downtown Atlanta, her purse was stolen, and she was forced into the trunk of her car and driven around town for several hours until the police apprehended Banks and his accomplice. Banks was tried and convicted for kidnapping and robbery and sentenced to prison. At the trial of the present offense, the victim of the earlier robbery and the police officer who apprehended Banks testified to the facts of that robbery. Additionally, a police technician testified that the fingerprints of the person named Banks who was convicted of the first robbery and of the person named Banks on trial for this offense were the same person.

To insure an accused of a fair trial the general character of an accused is inadmissible unless the accused puts his character in issue. Therefore, proof of a distinct, independent, and separate offense is never admissible unless there is some logical connection between the separate offense and the offense for which the accused is on trial so that proof of the separate offense establishes the offense for which the accused is on trial. Williams v. State, 261 Ga. 640, 641 (409 SE2d 649). Therefore, before evidence of independent offenses or acts may be admitted into evidence, the trial court must hold a hearing pursuant to Uniform Superior Court Rule 31.3 (B) at which the State must show affirmatively as to each independent offense or act it seeks to introduce: (1) that the evidence of the independent offense or act is not intended to raise an improper inference about the accused’s character, but will be introduced for a purpose which is an exception to the general rule against inadmissibility, e.g., a system of mutually dependent crimes, or to show guilty knowledge, or identity, or articles connected with the offense, or prior attempts by the accused to commit the same crime upon the same victim, or to prove malice, intent, motive, or state of mind, if such is an element of the offense now charged; (2) that there is sufficient evidence to prove the accused committed the independent offense or act; (3) that there is a sufficient connection or similarity between the independent offense or act that proof of the former tends to prove the latter. After the hearing, the trial court must find specifically on the record that the State has made a satisfactory showing of each of these elements as to each independent offense or act. Id. at 642. The State must show facts establishing both that the accused committed the independent offense or act and that the connection or similarity between the independent offense or act and the offense now charged is sufficient such that proof of the former tends to prove the latter. Stephens v. State, 261 Ga. 467, 468-469 (405 SE2d 483).

In this case, the required hearing was held, the prosecutor made the necessary representations as to the proof of similarity and identity, and asserted that the proof of the earlier crime was to be introduced to prove Banks’ motive and intent. After the hearing, the trial court made the necessary findings and determined that evidence of the prior robbery was admissible under Williams v. State, supra, and Stephens v. State, supra.

We cannot agree with this determination. The facts testified to at trial show that other than the fact that the earlier offense was a robbery with two perpetrators, there are no significant similarities between the two offenses. In the first robbery, the victim was kidnapped and robbed in a downtown parking lot at night by two men, one of whom was armed with a pistol, forced into her car trunk and driven around for hours. In the present case, the victim was assaulted in his own home in the early evening by two men, one of whom was armed with a knife.

Although the prosecutor urged, and the trial court found, that the prior crime was introduced to prove motive and intent, it is clear that proof of the first offense did not prove the second. Stephens v. State, supra. Moreover, while theoretically motive may always be relevant in a criminal prosecution, neither motive nor intent was an issue in this case. Banks’ defense was that he did not commit this crime, and not that he committed the acts but lacked the requisite criminal intent or motive. We must note that if it were permissible to admit the prior robbery in the trial of this case, then any earlier robbery would be admissible in any robbery trial since the motive, to acquire victims’ property, and the intent, to take the property from the victims with the intent to commit theft, would exist in every case. Accordingly, it was error to admit the evidence of the prior transaction, and since it cannot be said that the error was harmless, the conviction must be reversed. Robinson v. State, 192 Ga. App. 32, 34-35 (383 SE2d 593).

3. Banks also contends the trial court erred by admitting evidence testimony concerning the victim’s identification of him because the procedures used in the identification were inherently suggestive. “Although the practice of showing suspects singly to a witness for identification purposes has been widely condemned, Daniel v. State, 150 Ga. App. 798 (1) (258 SE2d 604) (1979), ‘our appellate courts have consistently upheld the admission of in-court identifications when prior one-on-one showups are reasonably and fairly conducted at or near the time of the offense. (Cits.)’ Arnold v. State, 155 Ga. App. 782 (1) (272 SE2d 751) (1980).” Baines v. State, 201 Ga. App. 354, 357 (411 SE2d 95). Nevertheless, our court has recognized the inherent suggestibility of one-on-one showups. Jefferson v. State, 206 Ga. App. 544, 546 (425 SE2d 915). In this instance, the identification was not made at or near the time of the offense. In fact, the victim identified Banks some four hours after the offense, and in circumstances which themselves were suggestive: Banks was identified while seated in the rear of a police car with Ferrell, a person the victim had known for twenty years, and a police officer shone his flashlight in their faces. Further, the victim testified that he made the identification after the police officer asked him to come out and identify both perpetrators.

Additionally, the victim’s testimony shows that his testimony was highly suspect. At the hearing on the motion to exclude the identification, the victim again identified Banks, but did so by stating, “that’s him right there. . . . He’s sitting on the right of that lady there.” Further, when the victim identified Banks during his testimony before the jury, he also identified Banks as “on the right of that lady there.” When the victim was asked to describe what Banks was wearing in court, however, he could not do so because he could not see too well. The victim also testified that he was kind of deaf, that he did not pay too much attention to Banks’ clothing, and that he was keeping his eye on Ferrell during the robbery, and was focusing on Ferrell and watching Ferrell. Additionally, he denied that he had given a description of Ferrell’s accomplice to the police before the showup and steadfastly testified that the showup identification was made during daylight hours. Further, the description the victim gave to the police after the offense, but before the showup, differed in important respects from Banks’ appearance at the showup. Although the victim did not mention that the person with Ferrell had facial hair, Banks had a full beard. Also, the victim said the man was dressed in black pants and with no shirt, but Banks was wearing a black tee shirt and pinstriped shorts when he was apprehended, and there is no allegation he changed clothes. The victim attempted to explain any discrepancy about the facial hair and the shirt by stating that he did not pay too much attention to the face or the clothing of the person with Ferrell.

Given the testimony just discussed and applying the two-part test to determine whether the identification should be excluded (State v. Frye, 205 Ga. App. 508, 509 (422 SE2d 915)), we must con-elude that the identification procedure used in this case was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification. The considerations outlined in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401), to be used in evaluating the likelihood of misidentification, include: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’ degree of attention, (c) the accuracy of the witness’ prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the time and the confrontation. McCoy v. State, 190 Ga. App. 258, 260 (378 SE2d 888). Thus, considering the victim’s testimony in this case with these factors, we must conclude that under the totality of the circumstances the procedures used were so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification, and, that under all the circumstances we cannot find that the witness’ in-court identification had an “independent origin.” See Jones v. State, 258 Ga. 25, 27 (365 SE2d 263); McCoy v. State, supra. Therefore, the trial court also erred by allowing testimony concerning the victim’s identification of Banks. State v. Frye, supra.

Decided January 24, 1995

Reconsideration denied February 16, 1995.

Megan C. De Vorsey, for appellant.

Lewis R. Slaton, District Attorney, Charles W. Smegal, Vivian D. Hoard, Assistant District Attorneys, for appellee.

4. In view of our disposition above, we need not address Banks’ remaining enumeration of error.

Judgment reversed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2245.
    GIDO v. THE STATE.
    (454 SE2d 201)
   Ruffin, Judge.

Rene Gido appeals his conviction of the offenses of rape, statutory rape, kidnapping with bodily injury and robbery by force.

The evidence at trial, viewed in the light most favorable to the verdict, shows the following. At approximately 2:45 one morning, the 13-year-old victim was waiting for a friend outside a nightclub. A man, later identified as Gido, approached the victim and asked her name. When the victim told Gido she did not talk to strangers, he grabbed her tightly around the waist and dragged her up the street. As they approached an intersection, the victim got away and ran across the street. Gido caught the victim and pushed her down an embankment. At the bottom of the embankment, he threw the victim between two bushes. Gido then picked up the victim, and as he moved her beyond a beam of light, she broke free and ran up the embankment. As she ran, money fell from her pantyhose, which Gido picked up, put in his pocket and said, “I guess this is for me.” Gido again caught the victim, pushed her into the bushes, pulled her shirt open and broke her brassiere strap and the elastic band at the top of her shorts. With one hand on the victim’s throat, Gido ripped off her shorts and pantyhose. At the same time, the victim was biting Gido, pulling his hair, screaming for help and trying to get away. Still holding the victim’s throat, Gido pulled down his pants, and began having intercourse. As the victim continued crying for help, Gido punched her twice in the stomach and told her to shut up or he would kill her.

At that time, a security guard patrolling the parking lot of a nearby adult entertainment club heard the victim scream “rape.” The club’s valet called the police and the guard ran in the direction of the screams. As he approached the area of the screams he turned on his flashlight, and from approximately ten feet away saw Gido, with his pants around his knees, on top of the victim, moving in “up and down intercourse type motions.” When the guard yelled “freeze,” Gido jumped up and ran up the embankment. At the same time a police officer arrived, who, after a short chase, caught Gido, took him back to the scene, and after the victim identified him, placed Gido under arrest.

Gido contends there was insufficient evidence to support the convictions.

1. “A person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will. Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). In the instant case, although Gido denied penetrating the victim, her testimony demonstrated evidence of penetration. When asked if Gido penetrated and had sex with her, the victim responded affirmatively. Although Gido argues this testimony was insufficient evidence of vaginal penetration, the victim’s statements were corroborated by scientific evidence that she had an “incompletely perforated hymenal ring” and the testimony of the security guard that he saw Gido on top of the victim, with his pants around his knees moving in “up and down intercourse type motions.” The foregoing constitutes sufficient evidence from which the jury could conclude there was vaginal penetration. Furthermore, considering the victim’s age at the time of the offense, as well as the corroborating evidence of the rape, we conclude that under OCGA § 16-6-3 (a) there was sufficient evidence for the jury to find Gido guilty of statutory rape.

Decided February 16, 1995.

Melissa M. Nelson, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeffrey H. Brickman, Assistant District Attorneys, for appellee.

2. Gido also argues that the conviction for kidnapping with bodily injury cannot stand because the “bodily injury” that was specified was “rape.” “ ‘The rape of a victim of a kidnapping is sufficient evidence of bodily injury to authorize the conviction of [Gido] for kidnapping with bodily injury to the victim.’ [Cit.]” Edwards v. State, 197 Ga. App. 51, 52 (397 SE2d 559) (1990). This enumeration is without merit.

3. Finally, Gido contends there was insufficient evidence to support his conviction of robbery by force. Gido argues that since the victim dropped the money and he picked it up without the use of force, the most he could have been convicted of is theft by taking. He further argues there was insufficient evidence to show his intent to rob or that any of the $389 he possessed at the time of his arrest included the money taken from the victim. We disagree.

The evidence showed that Gido used force to push the victim down the embankment and throw her into the bushes. “ ‘Without the force used by appellant here, the taking from [the victim] could not have been accomplished.’ [Cit.]” Maddox v. State, 174 Ga. App. 728, 730 (1) (330 SE2d 911) (1985). Furthermore, although Gido did not take the money directly from the victim, it was in her immediate possession at the time of the robbery. See OCGA § 16-8-40 (a) (1). Nor does it matter that Gido did not have the intent to take the money at the time he pushed the victim down the embankment. “[H]e took [money] belonging to [the victim] regardless of when the intent to take the victim’s [money] arose.” (Punctuation omitted.) Davis v. State, 255 Ga. 588, 593 (2) (b) (340 SE2d 862) (1986). Finally, the victim testified that she saw Gido pick up the money and put it in his pocket. “Her testimony standing alone was sufficient to establish a robbery by force. [Cit.] Our responsibility after verdict is to indulge every presumption in favor of the prevailing party which in this case is the State. [Cit.]” Kennedy v. State, 179 Ga. App. 587, 589 (1) (347 SE2d 604) (1986).

Accordingly, we conclude the evidence was sufficient for a rational trier of fact to find Gido guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Battles v. State, 205 Ga. App. 510 (422 SE2d 672) (1992).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2402.
    PEARSON v. THE STATE.
    (454 SE2d 205)
   Ruffin, Judge.

Mick David Pearson was convicted of armed robbery. He appeals from the judgment of conviction and sentence and the denial of his motion for new trial, enumerating as error the denial of effective assistance of trial counsel.

The evidence showed that Pearson entered a Huddle House restaurant where he was previously employed. One of the waitresses recognized Pearson as a former employee. He ordered a cup of coffee and paid for it. Pearson then told another waitress that he had a gun in his coat pocket, and almost apologetically, he informed her that he was robbing the restaurant. The waitress thought he was joking, remarked that he was not wearing a coat and asked to see the gun. She testified that Pearson then said the gun was in his pants, and he lifted his shirt, revealing a black gun with a brown handle pushed down into his jeans. Both waitresses testified they saw the gun. Pearson then ordered one of the waitresses to place the money from the cash register in a bag. He took the bag and fled the restaurant. Testifying in his own behalf, Pearson admitted taking the money but denied having a gun.

At the hearing on Pearson’s motion for new trial, Pearson’s trial counsel testified that because Pearson insisted that he did not have a gun during the robbery, counsel attempted to negotiate a plea to robbery by intimidation on Pearson’s behalf. When the prosecutor rejected the plea, counsel advised Pearson of his options of entering a plea or going to trial. Pearson opted to go to trial, admitting he committed a theft, but seeking a conviction on a lesser included offense. Counsel indicated several times during the hearing on the motion for new trial that Pearson’s sole defense to the armed robbery charge was that he did not have a weapon. However, counsel failed to submit any requests to charge, on the lesser included offenses or any other aspect of the case. Counsel testified that he had defended hundreds of criminal prosecutions, yet when asked whether he knew a jury could not convict of a lesser included offense unless it is charged on the offense, he replied, “I don’t know anything of the kind.” Thus, the jury was not instructed to consider the lesser included offenses. On appeal, Pearson contends counsel’s failure to request charges on the lesser included offenses of robbery by intimidation and theft by taking constituted ineffective assistance of counsel and caused him to forfeit his sole defense at trial.

“In order to show ineffective assistance of counsel, [Pearson] must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990).” Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). “[Pearson] must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.]” Roberts v. State, 263 Ga. 807, 808 (2) (439 SE2d 911) (1994).

A charge on a lesser included offense is waived in the absence of a written request. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). Accord Barner v. State, 263 Ga. 365 (3) (434 SE2d 484) (1993). Counsel’s admitted ignorance of this long standing principle and failure to request charges on the lesser included offenses was unreasonable and indefensible. Thus, Pearson satisfied the first showing required under Strickland. Cochran v. State, 262 Ga. 106 (2) (a) (414 SE2d 211) (1992). However, Pearson is not entitled to a new trial unless there is a reasonable probability that the outcome of his trial could have been different had counsel asked for the charges. The State argues that Pearson was not prejudiced by the omission of the charges because there was insufficient evidence to support them and there was overwhelming evidence of Pearson’s guilt; therefore, the failure to give the charges did not contribute to the verdict.

“Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.” Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). In Edwards, one of the defendant’s defenses to the charge of armed robbery was that he was not armed. See id. at 132. The court held that a custodial statement introduced at trial, in which the defendant merely denied committing armed robbery, and certain circumstantial evidence were sufficient to require a charge on the lesser included offense of theft by taking, but the court declined to find reversible error in light of the overwhelming evidence against the defendant. Id. at 133.

In the instant case, evidence of a lesser included offense was Pearson’s live testimony at trial that he did not use a weapon in the theft. Therefore, he was also entitled to a charge on the lesser included offense of theft by taking. Id. However, since this court does not weigh the credibility of witnesses, we cannot conclude that the failure to allow the jury to consider a lesser included offense was harmless error, particularly since Pearson’s denial of using a weapon was his sole defense. “While we, like the trial court or jury, might find such evidence incredible, issues of credibility are for the factfinder, the jury, not for the court as a matter of law. The failure to give the requested [charge] which in reality formed the basis of [Pearson’s] sole defense, effectively removed this issue from the jury’s determination. ‘An instruction which, while stating the nature of the charge or of the evidence against the accused, omits to charge the jury as to the defense set up by him is error. . . . Where there is only one defense on which a party relies, failure to instruct the jury as to the evidence supporting this defense, so specifically that the jury will ... do so intelligently, under pertinent rules of law and evidence, practically withdraws that defense, and to that extent prejudices the defendant’s right to a fair and impartial trial.’ [Cits.] Accordingly, [Pearson] is entitled to a new trial. [Cit.]” Anglin v. State, 182 Ga. App. 635, 637 (2) (356 SE2d 564) (1987).

Decided February 16, 1995.

Wolfe & Steel, Brian E. Steel, Shandor Badaruddin, for appellant.

Thomas J. Charron, District Attorney, Beth T. Golub, Irvan A. Pearlberg, Assistant District Attorneys, for appellee.

There was no error in the failure to charge on robbery by intimidation, though a lesser included offense, since the evidence either demonstrated completion of that crime, if the jury rejected Pearson’s testimony (Smith v. State, 228 Ga. 293 (1) (185 SE2d 381) (1971)), or lacked proof of intimidation, if the jury believed Pearson, since there was no other evidence of intimidation. Cf. Studdard, v. State, 185 Ga. App. 319 (1) (363 SE2d 837) (1987).

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.