text:
    A91A0908.
    WHITE v. THE STATE.
    (410 SE2d 441)
   McMurray, Presiding Judge.

Defendant was indicted for rape. The victim testified at a jury trial that defendant forced her into a vacant apartment and raped her. The victim also testified that she contracted venereal disease about two weeks after the alleged rape and that her condition was “from [defendant] not being clean. . . .” The victim explained that she was examined by a hospital physician after the rape and that she was not then diagnosed with vaginal infections.

Defendant testified that the victim agreed to have sex with him in exchange for money to purchase illegal drugs, but that he decided not to have intercourse with the victim because the victim told him she was a prostitute and because the victim’s nude body was “very filthy,” i.e., the victim had “all kind of cream and, you know, discharge ...”

The jury found defendant guilty. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the trial court erred in excluding medical testimony regarding an infectious discharge discovered in the victim’s body within hours after the alleged rape.

The defense subpoenaed Dr. Margaret Kay Cramer, the physician who examined the victim after the alleged rape. The following transpired before Dr. Cramer’s testimony: “[STATE’S ATTORNEY]: Your Honor, before [defense counsel] calls her next witness, I’d like to make an oral motion in limine, that your honor instruct [defense counsel] to limit her direct examination of the doctor, to limit it only to what she found in regards to lacerations, contusions, physical examination in regards to the incident in question and that she not go into whether or not the victim had any gonorrhea, any sexually communicated diseases or any other diseases. That would be improper under the Georgia Rape Shield Statute.

“THE COURT: That’s correct. I’m not going to let that in.”

Defense counsel unsuccessfully pressed an objection to the trial court’s ruling, but perfected the record as follows: “Q. Ms. Cramer, did you have the occasion to examine [the victim] on 12/28? A. Yes, I did. Q. Did you find that she had any type of female problems or infections? A. Yes, there was evidence that she had several common vaginal infections, including trichomonas, gardnerella and yeast. Q. Does your report also indicate that she had vaginitis? A. Those infections are vaginitis. Q. Also Ms. Cramer — Dr. Cramer, did you not find that she had a thick, white discharge? A. Yes, she did. Q. It was visible? Yes. Q. And there was no sperm seen? A. I saw no sperm on my examination.

“[DEFENSE COUNSEL]: Your honor, that is the testimony I would like to offer to impeach the [victim] as to the fact that there was no vaginal discharge, and also that she did not have these vaginal infections when she came in to see the doctor, she contracted them that day and they became evident a few weeks later. That was the [victim’s] testimony on direct examination, that she had no female problems prior to this incident and that there was no discharge.” The trial court then considered argument from the State’s attorney and held: “I will not admit this testimony and you will not argue that point to the jury.”

Defendant argues that Dr. Cramer’s excluded testimony was not evidence of the victim’s past sexual behavior in violation of Georgia’s Rape Shield Statute, OCGA § 24-2-3, but was relevant to impeach the victim’s testimony that defendant was not sexually “clean” and that defendant infected the victim during the alleged rape. Defendant further argues that this evidence was relevant to corroborate his testimony that he did not have intercourse with the victim because of the presence of an infectious discharge from the victim’s body.

Dr. Cramer’s testimony regarding the victim’s physical condition after the alleged rape was not evidence of the victim’s past sexual behavior in violation of Georgia’s Rape Shield Statute. See OCGA § 24-2-3 (a). On the contrary, the excluded testimony was relevant to defendant’s claim that he did not penetrate the victim because of the victim’s gross physical condition. The testimony was also admissible to impeach the victim’s claim that she was not diagnosed with vaginal infections after the alleged rape and it was admissible to challenge the victim’s claim that defendant was the cause of her vaginal infections. Consequently, the trial court erred in limiting Dr. Cramer’s testimony with regard to the victim’s physical condition after the alleged rape. Further, we cannot say the exclusion of this testimony was harmless error since it was crucial to defendant’s claim that he did not penetrate the victim. Accordingly, the case must be reversed. See Villafranco v. State, 252 Ga. 188, 193 (1) (313 SE2d 469).

2. Defendant contends the trial court erred in limiting his attorney’s cross-examination of the victim with regard to a pending charge of prostitution against the victim.

“It is true that an attempt to impeach a witness on the ground that he is a criminal must be supported by a conviction; that he merely has been charged with a crime is no proof that he is a criminal. But that is not to say that pending criminal charges are not relevant. On the contrary, the partiality of a witness may be exposed by proof that he hopes to benefit in related cases from his cooperation with the prosecution in this case. Such partiality ‘is subject to exploration at trial, and is “always relevant as discrediting the witness and affecting the weight of his testimony.” (Cit.)’ Hines v. State, 249 Ga. 257, 260 (290 SE2d 911) (1982) (quoting Davis v. Alaska, 415 U. S. 308, 316 (94 SC 1105, 39 LE2d 347) (1974)).” Kinsman v. State, 259 Ga. 89, 91 (7,b) (376 SE2d 845). However, “ ‘(t)rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination (about possible witness bias) based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ Delaware v. Van Arsdall, 475 U. S. 673, 679 (106 SC 1431, 89 LE2d 674) (1986). See Lee v. State, 258 Ga. 762 (6) (374 SE2d 199) (1988).” Kinsman v. State, 259 Ga. 89, 91 (n. 2), supra.

In the case sub judice, defendant argues that the trial court abused its discretion in limiting cross-examination with regard to a charge of prostitution against the victim, pointing out that such evidence is relevant to his claim that the victim voluntarily agreed to exchange sex for drug money. Defendant reasons that evidence of the victim’s propensity to exchange sex for money becomes even more relevant in light of evidence showing that no apparent signs of struggle were observed by the police officer who walked in on defendant and the victim, finding them together in a vacant apartment totally nude. Defendant further reasons that the victim’s claim of rape dispels any suspicion that she was repeating the crime of prostitution and dispels any suspicion that she was involved in apparent illegal drug activity inside the vacant apartment.

We agree that any pending criminal charge of prostitution against the victim would be highly relevant to defendant’s case. However, we find no abuse of the trial court’s discretion under the circumstances revealed in the record sub judice. First, the record reveals no proof that the victim has been arrested or charged with prostitution. Second, the trial judge questioned the victim regarding defense counsel’s allegation that the victim had been arrested and charged with prostitution and the victim responded: “I was in the wrong place at the wrong time, around the wrong people. They locked me up and that was over on Peachtree. I was with some girls that lived there. I wasn’t prostituting. If I were, I would have had some money. He throwed it out of court.”

Decided September 3, 1991.

N. Yolanda Buford-Epps, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Alfred D. Dixon, Carl P. Greenberg, Assistant District Attorneys, for appellee.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Carley, Judge.

license: Public Domain

text:
    A91A0910.
    In the Interest of M. H. F., a child.
    (410 SE2d 167)
   Carley, Judge.

Appellant-father appeals from an order of the juvenile court terminating his parental rights with respect to his daughter.

The order of the juvenile court states, in part, “that the legislature has specified that a parental act of . . . not supporting a child for a period of twelve months or longer when directed by the Court to do so, . . . in itself is . . . sufficient to terminate parental rights if the Court finds it to be in the child’s best interest.” This is erroneous. The legislature has “specified” that, when it is in the best interest of the child, parental rights may be terminated if there is clear and convincing evidence that the parent “has wantonly and willfully failed to comply with [a child support] order for a period of 12 months or longer. . . .” (Emphasis supplied.) OCGA § 15-11-81 (b) (2). The juvenile court in the instant case made no finding that appellant wantonly and willfully failed to comply with a child support order for a period of 12 months or longer.

The order of the juvenile court further states, in part, that the child “is deprived at the hand of [appellant] for his having committed [certain specified] acts.” However, clear and convincing evidence of the child’s deprivation at appellant’s hand, standing alone, will not authorize the termination of his parental rights. There must also be clear and convincing evidence that the child’s deprivation at appellant’s hand “is likely to continue or will not likely be remedied; and [that] [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-81 (b) (4) (A) (iii, iv). The juvenile court in the instant case made no such additional findings regarding the child’s deprivation.

Decided September 3, 1991.

Lori C. Obenauf, for appellant.

Michael J. Bowers, 'Attorney General, Margot M. Cairnes, Brogdon & Green, J. Lou Green, for appellee.

“[T]he requirements of the Juvenile Court Code in regard to findings of fact are mandatory; and in the absence of such findings, appeals are to be remanded with direction that the [juvenile] court vacate the judgment, cause appropriate findings and conclusions of law to be made, and enter a new judgment thereon, after which the losing party shall be free to enter another appeal. [Cits.] . . . Accordingly, this judgment is reversed and the case is remanded to the [juvenile] court for the findings of fact and conclusion [s] of law required in [termination of parental rights] cases.” In the Interest of H. T., 198 Ga. App. 463, 464 (402 SE2d 83) (1991).

Judgment reversed and case remanded with direction.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0911.
    JACOBS v. THE STATE.
    (410 SE2d 320)
   Carley, Judge.

After a bench trial, appellant was found guilty of possession of cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on its finding of guilt.

1. Two police officers participated in appellant’s arrest. At trial, only one of the officers was called as a witness for the State. Appellant urges that “[i]t was error for the trial judge to determine that the State or prosecutor was excused from producing [the other police officer as] a witness under OCGA § 24-4-22.” However, OCGA § 24-4-22 does not require a party actually to produce all possible witnesses, but merely provides that an adverse presumption may arise from a failure to so produce. Shiver & Barnett v. Firemens Ins. Co., 60 Ga. App. 57, 58 (2 SE2d 760) (1939). Moreover, “[t]his court has repeatedly held that [OCGA § 24-4-22] ‘is not applicable in the trial of a criminal case.’ . . . [Cits.] This enumeration is meritless.” Tiller v. State, 159 Ga. App. 557, 558-559 (3) (284 SE2d 63) (1981). See also Radford v. State, 251 Ga. 50, 53 (7) (302 SE2d 555) (1983).

Decided September 3, 1991.

Ann Porgers-Dodson, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Assistant District Attorney, for appellee.

2. Appellant further contends that he was deprived of his Sixth Amendment right of confrontation by the State’s failure to call the other police officer as a witness at trial. However, the other police officer “did not testify himself, . . . nor . . . was any reference made [at trial] to the contents of any [prior] statement made by [him]. Thus, appellant was not denied his right to confront ... a witness testifying against him. [Cit.] ” Cargill v. State, 255 Ga. 616, 632-633 (18a) (340 SE2d 891) (1986). See also Greeson v. State, 97 Ga. App. 245-246 (2) (102 SE2d 503) (1958); Brown v. State, 147 Ga. App. 638-639 (1) (249 SE2d 689) (1978).

3. The evidence, construed most favorably for the State, shows the following: Appellant was the sole passenger in an automobile stopped by the two police officers. One of the police officers found the cocaine on the ground in front of the front passenger door of the automobile. Where the cocaine was found, there had been nothing just a few minutes before. Appellant was sitting in the front passenger seat before and after the cocaine appeared. This evidence was sufficient to authorize a rational trior of fact to find appellant guilty of possession of cocaine beyond a reasonable doubt and the general grounds are, therefore, without merit. See Lewis v. State, 186 Ga. App. 349, 350 (1a) (367 SE2d 123) (1988).

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Sognier, Chief Judge.

text:
    A91A0920.
    BUTLER v. THE STATE.
    (410 SE2d 168)
   Sognier, Chief Judge.

Robert Lewis Butler was convicted of selling cocaine and trafficking in cocaine. Finding that the offenses merged, the trial court entered judgment accordingly and subsequently denied Butler’s motion for new trial. Butler appeals.

1. Appellant contends the evidence was insufficient to support the verdict because Arthur Carter, the undercover GBI agent, did not observe the transactions, and Jasper Johnson, the informant who made the purchases, was not credible. Agent Carter testified that on the afternoon of June 27, 1989, he and Johnson drove to Cooley Drive in Gainesville to buy cocaine from appellant. Carter watched as Johnson went to the door of a house in which appellant was known to reside and a man Carter identified as appellant came to the door. When appellant informed Johnson he would not deal directly with Carter and instructed Johnson to buy from Samuel Randolph who was standing nearby, Johnson called for Randolph, who gave Johnson instructions to drive away and return a few minutes later. Carter testified that after he and Johnson did as Randolph directed, Randolph met them at the car when they returned and handed them a plastic bag containing a white powder that proved to be cocaine. When Carter indicated to Randolph that the quantity was inadequate, Randolph went inside appellant’s house and returned with more cocaine, for which Carter paid $600.

Carter testified further that he and Johnson returned to the neighborhood the next afternoon, June 28, and parked behind appellant’s home. He stated that Johnson went around to the front of appellant’s house and returned a few minutes later. Johnson handed Carter a bag containing what proved to be 28.2 grams of cocaine with a purity of 39.5 percent, and Carter gave Johnson $2,000 to be used for payment.

Johnson’s testimony established the sequence of events inside the house on June 28. Johnson testified he met appellant at the front door of his home and asked to purchase $2,000 worth of cocaine. Appellant at first stated that he had only crack cocaine, but Johnson then observed appellant take out a plastic bag containing a white powdery substance and break it down into smaller quantities, which he put into other plastic bags. Appellant then handed Johnson a bag of white powder and directed another man to accompany Johnson to get the money from Carter. Johnson was equipped with a concealed tape recorder on both days, and the tape recording of his encounter with appellant on June 28 was consistent with this testimony.

We find this evidence satisfies the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See generally Holder v. State, 194 Ga. App. 790-792 (391 SE2d 808) (1990). Although appellant contends Johnson was not credible because he had prior criminal convictions, determination of the credibility of a witness is a task for the jury, not the appellate court. Ledford v. State, 173 Ga. App. 456 (1) (326 SE2d 819) (1985). Johnson’s testimony constitutes direct evidence of the charged crime, and accordingly we need not consider appellant’s arguments concerning circumstantial evidence.

2. In his other enumeration, appellant contends the trial court erred by allowing the jury to be furnished transcripts of the June 28 tape recording proffered by the State so that they could read the transcripts while listening to the recording. Johnson and Carter testi-

Decided September 3, 1991.

Charles R. Floyd, Jr., for appellant.

C. Andrew Fuller, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

fied that during the encounters with appellant on June 27 and 28, Johnson was equipped with a concealed tape recorder that he used to record his conversations with appellant and the other persons in the house. Johnson testified he had listened to the tapes and concluded that they accurately reflected the conversations that occurred. Johnson also testified that he had reviewed the transcript prepared by the State from the June 28 tape and that after he made some corrections he found the transcript to be accurate as well.

Upon appellant’s objection to the quality of the tape and the accuracy of the transcript, the trial court conducted a hearing out of the presence of the jury. The trial judge listened to the June 28 tape while reviewing the transcript and also continued the trial until the next morning so that appellant could listen to the tape, review the State’s transcript, and prepare his own transcript if he wished. When the trial resumed, the court made some changes to the transcript based on appellant’s objections and the court’s own conclusion that certain portions should be designated as inaudible because they were too unclear to be transcribed. After instructing the jury that the transcript was not evidence and that they should make their own determinations of its accuracy, the court allowed the jurors to read the transcript while listening to the recording.

It is well settled that a transcript of a tape recording may be furnished to the jurors for their use during the playing of the tape provided that the transcript is shown to reflect accurately the conversations and events recorded on the tape. E.g., Brooks v. State, 141 Ga. App. 725, 736-737 (9) (234 SE2d 541) (1977). In the case at bar, this requirement of accuracy was met. Not only did Johnson, a participant in the recorded conversations, attest to the accuracy of the transcript, see Burke v. State, 248 Ga. 124, 125 (2) (281 SE2d 607) (1981), but the judge and defense counsel also listened to the tape, compared it to the transcript, and revised the transcript as needed. See Brooks, supra at 737 (9). As we discussed in Division 1, appellant’s contention that Johnson’s testimony cannot be used to authenticate the tape because he was not a credible witness was a matter for the trier of fact. Considering that the proper foundation was laid for admission of the tapes and use of the transcript, and given that the court properly instructed the jury on the limited purpose of the transcript, Lawrence v. State, 174 Ga. App. 788, 789 (2) (331 SE2d 600) (1985), we find no error. See id.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A91A0921.
    WILBURN v. THE STATE.
    (410 SE2d 321)
   Banke, Presiding Judge.

The appellant was charged by accusation with eight counts of misdemeanor theft by deception based on allegations that he had obtained wages from two employers through the creation of a false impression of fact by working for both of them during the same period of time under employment agreements requiring him to work for each of them exclusively. He was tried before a jury and found guilty on four of the eight counts. In this appeal from the denial of his motion for new trial, he contends that the evidence was insufficient to support a verdict of guilty on any of the counts.

While employed as a police sergeant by the City of Augusta Police Department, the appellant was retained by two private businesses, namely, the Landmark Hotel and the Upton Management Company, to work as a security officer during his off-duty hours. His duties for the Upton Management Company involved patrolling the “Olde Town” section of the city as a member of a private security force known as the Olde Town Police. It was established at trial that the Olde Town area of Augusta encompasses several square blocks, including the one where the Landmark Hotel is located. Pursuant to his oral employment agreement with Upton Management, the appellant was paid a fixed salary every two weeks for which he was to work 56 hours during each 28-day period; however, his salary remained constant even if he worked fewer hours than that during any such period. It was shown that when members of the Olde Town security force were unable to work full shifts, they “would work it out with each other to make up [the time].” While there was no contractual provision requiring the members of the Olde Town security force to work exclusively within the Olde Town area during a given shift, there was an “implied understanding” that they would do so. When the Upton Management Company’s property manager was asked whether the appellant had provided Olde Town with the services for which he was paid during the period of time at issue, he responded, “For the most part, yes.”

. The appellant’s supervisor with the Landmark Hotel testified that on-duty officers “normally . . . would be expected to stay around the hotel or parking lot” but that “there was no written rule that they be on the premises” and that on a slow night they “could perform their duties and still have free time.” He further testified that he had received no complaints regarding the appellant’s work performance. The hotel’s general manager testified that the appellant had performed his duties satisfactorily during the period in question and had not deceived the hotel out of any money. The appellant similarly testified that he had performed the services required of him by both companies on the days in question, as reflected by the activity logs which he had maintained for them, and that he had not intended to deceive them. It was shown that neither company had expressed a desire to pursue criminal charges against the appellant. Held:

The offense of theft by deception is defined by OCGA § 16-8-3 as follows: “(a) A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property, (b) A person deceives if he intentionally: (1) Creates or confirms another’s impression of an existing fact or past event which is false and which the accused knows or believes to be false; . . . (c) ‘Deceitful means’ and ‘artful practice’ do not, however, include falsity as to matters having no pecuniary significance. ...”

“ ‘The purpose of this law is not to enforce the contract to perform services, but to punish the fraudulent procurement of money, or other thing of value under the contract. Because of the nature of this law, and lest it be abused, the courts have been strict in requiring the State to allege and prove those things which, under the statute, are necessary for a conviction. To make a prima facie case, the State must prove, among other things, a definite contract; that the defendant failed to perform the services so contracted for, without good and sufficient cause; and that he failed to return the money so advanced . . ., without good and sufficient cause, and all to the loss and damage to the hirer. . . .’ [Cit.] Furthermore, ‘(b)efore a prosecution can be successfully maintained under this act, the burden is upon the State to show that loss or damage was actually sustained by the hirer. . . .’ [Cit.]” Holt v. State, 184 Ga. App. 664, 665-666 (362 SE2d 464) (1987).

The accusation against the appellant charged him with obtaining wages by “creating an impression of existing fact, i.e., that he had performed security patrol services under an agreement to perform said services exclusively for [both employers] at the particular time, which impression [was] false and which the accused knew to be false and which was done with the intention of depriving [both employers] of their property.” Inasmuch as the evidence did not establish that the appellant’s employment with either of the two companies in question had been conditioned on any express promise or representation by him to the effect that he would work exclusively for those companies, and inasmuch as both employers denied that the appellant had received any compensation to which he was not entitled, we hold that the evidence was insufficient to support the convictions. Compare Harrell v. State, 192 Ga. App. 876 (2) (386 SE2d 676) (1989).

Decided September 3, 1991.

Charles L. Wilkinson III, for appellant.

Robert W. Hunter III, Solicitor, Carl P. Dowling, Assistant Solicitor, for appellee.

Judgment reversed.

Beasley, J., concurs. Carley, J., concurs in judgment only.


author: Cooper, Judge.

text:
    A91A0931.
    LEVITT v. THE STATE.
    (410 SE2d 170)
   Cooper, Judge.

Stephen Levitt appeals from his conviction of sexually molesting his four-year-old daughter and the denial of his motion for new trial.

1. Appellant contends that the trial court erred in refusing to grant his motion for directed verdict of acquittal bn the general grounds. The State presented testimony of the victim’s aunt and uncle and two cousins, with whom the child had stayed on a number of occasions while her family was living in a DeKalb County motel. On one such weekend, the victim told her 12 and 13-year-old cousins that her daddy had “hurt” her, identifying where she had been hurt by rubbing her fingers between her legs in her genital area. After the cousins related this to their parents, the couple also questioned the victim and were told the same story. When the aunt returned the victim to her mother and questioned the child in her mother’s presence, the victim repeated the same events. Because the mother acknowledged that the victim had previously told her that appellant had hurt her in this manner, the aunt reported the information to the Department of Family & Children’s Services and the child was placed in foster care.

Appellant contends the testimony of the relatives was contradictory and unreliable and should not have been admitted under the exception to the rule against hearsay testimony set forth in OCGA § 24-3-16. He also argues that the four-year-old victim’s confused and inconsistent testimony was equally unreliable. However, appellant’s argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury. Seidel v. State, 197 Ga. App. 14 (1) (397 SE2d 480) (1990); OCGA § 24-9-5 (b). “ ‘ “(A) motion for directed verdict in a criminal trial should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law.” (Cit.)’ [Cit.] A careful review of the record in a light most favorable to the jury’s verdict reveals conflict in the evidence and further ‘ “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of the offense charged.” (Cits.)’ [Cits.] There was no error in denying the directed verdict or the motion for new trial.” House v. State, 197 Ga. App. 644 (1) (399 SE2d 262) (1990).

Decided September 3, 1991.

Nancy K. Peterson, for appellant.

Robert E. Wilson, District Attorney, Michael D. Thorpe, Nelly F. Withers, Assistant District Attorneys, for appellee.

2. Appellant also claims the State failed to prove venue beyond a reasonable doubt. The State’s evidence showed that at the time the victim was molested, she, her mother and father and two siblings had been living in a DeKalb County motel, sharing one room with two beds since January of 1990. The indictment alleged that the molestation was committed between the first day of January and the second day of April. The DeKalb County detective who conducted the investigation testified that the victim told him the molestation occurred in the DeKalb County motel where she had been living; when the victim was questioned at trial as to where she was when her daddy hurt her, she drew a picture of one room with the entire family sleeping in it.

“Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. [Cit.]” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). “ ‘Circumstantial, as well as direct evidence, may be used to establish venue. [Cit.] . . . Since venue is a question for the jury, its decision will not be set aside if there is any evidence to support it. (Cits.)’ [Cits.]” White v. State, 193 Ga. App. 428 (1) (387 SE2d 921) (1989). “Because no evidence conflicts with the conclusion that the crime was committed in [DeKalb] County, we find this evidence sufficient to establish venue in [DeKalb] County.” Minter, supra at 630. Accord Lewallen v. State, 199 Ga. App. 798 (1) (406 SE2d 255) (1991).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A91A0968.
    BURNEY v. THE STATE.
    (410 SE2d 172)
   Beasley, Judge.

Defendant appeals his convictions for burglary, OCGA § 16-7-1, and criminal attempt to commit rape, OCGA §§ 16-4-1 and 16-6-1, which offenses both occurred during the same incident in 1989. He enumerates error on admission of evidence of a prior conviction and on the admission of evidence which he contends also placed his character in evidence.

1. Defendant was notified under USCR § 31 that the State intended to place three of his prior convictions in evidence. After a hearing the trial court denied the State’s request as to two of the convictions but allowed the State to introduce defendant’s 1980 conviction for burglary with intent to commit theft at a residence, where a female victim lived. Defendant was not convicted of any sexual assault in connection with the 1980 burglary.

The conviction was objected to both at the hearing and at the trial. No showing was made other than the conviction itself. The State never offered an explanation of its relevancy. The trial court, after admitting the evidence, instructed the jury that it was for a limited purpose, that is, as an example of a similar transaction. The court amplified this by stating that the jury could consider it solely to determine “knowledge, motive, intent or identity or any other matter dependent upon a person’s state of mind or [where] any material element in a criminal offense is in question.”

“The general rule is that evidence of independent crimes is inadmissible at the trial of the crime charged, even though it be a crime of the same sort. [Cit.] However, evidence of the other crime is admissible if some logical connection can be shown between it and the crime charged from which it can be said that proof of one tends to establish the other, other than by merely showing the bad character of the accused.” Johnson v. State, 242 Ga. 649, 652 (3) (250 SE2d 394) (1978); OCGA § 24-2-2. Accord Hamilton v. State, 239 Ga. 72, 75 (235 SE2d 515) (1977); Walraven v. State, 250 Ga. 401, 407 (4b) (297 SE2d 278) (1982). “The only separate crimes which are admissible are those that are either similar or logically connected to the crime for which defendant is being tried.” State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980).

The 1980 burglary was of the same general category, but at most it showed that nine years before, defendant had committed a burglary of the residence of a female with intent to commit theft, as was stated on the face of the indictment. There was no proof that a sexual assault was the motivation or even that the female victim was at home when the crime was committed. Thus the proof disclosed his bad character but not a propensity to commit the species of crime for which he was on trial. The earlier conviction did not tend to establish any of the purposes to which the court confined it. Compare Johnson, supra. The evidence, such as it was, indicated instead that the crime was not sufficiently similar or connected. Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). Bacon v. State, 209 Ga. 261 (71 SE2d 615) (1952); Shinall v. State, 113 Ga. App. 127 (147 SE2d 510) (1966); Kitchens v. State, 113 Ga. App. 663, 665 (149 SE2d 373) (1966).

Decided September 3, 1991.

T. Chris Hughes, for appellant.

John C. Pridgen, District Attorney, James E. Turk, Assistant District Attorney, for appellee.

Moreover, the evidence was too sparse to show factually that the earlier crime was of sufficient similarity to warrant its admission. Stephens, supra.

Because the evidence against defendant was not overwhelming, the admission of the prior conviction was not harmless error as was found in Durden v. State, 169 Ga. App. 777, 778 (1) (315 SE2d 291) (1984), and Wright v. State, 253 Ga. 1, 4 (3) (316 SE2d 445) (1984). Stephens, supra.

2. During redirect examination of a police officer the prosecutor asked the State’s witness where he got a photograph of defendant used in a lineup. The witness replied: “It was taken out of our police files from a previous arrest.” Defendant contends this was error, citing Stanley v. State, 250 Ga. 3 (295 SE2d 315) (1982).

Stanley and Wright, supra, both involved situations where there was a clear implication, other than or in addition to an arrest, that defendant had violated the criminal law. For a thorough discussion in this regard see Hughey v. State, 180 Ga. App. 375, 377-378 (2) (348 SE2d 901) (1986), where “arrest” was not interpreted as denoting a crime. See in addition cases cited in Hughey. Since this case must be reversed because of the error appearing in Division 1, we merely caution that such testimony is of dubious relevancy and dangerous propensity. On retrial, the source of the photo, if relevant, should not be described so as to cast defendant as a bad character.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


text:
    A91A0969.
    SNYDER v. THE STATE.
    (410 SE2d 173)
   Cooper, Judge.

Appellant appeals from his conviction of aggravated child molestation, two counts of aggravated sodomy, three counts of child molestation, two counts of simple battery and harassing telephone calls.

1. Appellant’s constitutional attacks upon OCGA § 24-3-16 are without merit as the statute has been held to satisfy both state and federal constitutional standards. Reynolds v. State, 257 Ga. 725 (3) (363 SE2d 249) (1988). Since the witnesses supplying the statements at issue testified at trial and were subject to cross-examination, there was no constitutional deprivation.

2. Appellant contends that the trial court erred in declining to grant his general demurrer to the indictments because the indictments failed to put him on notice of the dates of the alleged occurrences or to show that the alleged offenses occurred within the applicable statute of limitation. We do not agree. Counts 1 through 8 of the indictments alleged that the criminal acts occurred on or before December 25, 1989. Although the young victims did not recall the actual dates, they testified that the acts of molestation had happened within the last four years, which was within the period of limitation. “ ‘[Ejvidence of guilt of an accused is not restricted to the day mentioned in the indictment, but may extend to any appropriate date previous to the finding in the indictment, and within the statute of limitation for the prosecution of the offense charged.’ [Cit.] Here the appellant was on notice well in advance of trial that while the indictment alleged only the date of the last occurrence, the state intended to show a pattern of ongoing occurrence. Under these circumstances, he cannot claim surprise that every date of alleged abuse was not specified in the indictment.” Eberhardt v. State, 257 Ga. 420 (2) (359 SE2d 908) (1987), cert. denied, 484 U. S. 1069 (108 SC 1036, 98 LE2d 999) (1988). See also Martin v. State, 196 Ga. App. 145 (1) (395 SE2d 391) (1990).

3. The trial court did not improperly allow the State to introduce evidence of a similar transaction. Appellant was served with detailed notice at arraignment that the State planned to introduce evidence of a similar act by appellant through the testimony of another eight-year-old child. “ ‘The sexual abuse of young children, regardless of the sex of the victims or the nomenclature or type of acts (or other conduct) perpetrated upon them, is of sufficient similarity to make the evidence admissible.’ [Cits.]” Boynton v. State, 197 Ga. App. 149 (1) (397 SE2d 615) (1990).

4. Appellant contends that the trial court denied his attorney a thorough and sifting cross-examination of the victims’ mother but points out no specific instance in which this right was abridged. As he has neither alleged nor shown how he was prejudiced, and our review of the trial transcript discloses no such aggrievement, “appellant has not borne his burden to show harmful error by the record. [Cits.]” Standridge v. State, 196 Ga. App. 697 (3) (396 SE2d 804) (1990).

5. Contrary to appellant’s assertions, the trial court committed no error in refusing to allow cross-examination of one of the victims as to specific sex acts with other named persons for the purpose of showing prejudice, bias and motive to lie, nor does OCGA § 24-2-3 deny an accused the constitutional rights of confrontation and due process. The constitutionality of the Rape Shield Statute has been established. Harris v. State, 257 Ga. 666 (2) (362 SE2d 211) (1987). It is applicable in child molestation cases to preclude evidence of the victim’s reputation for nonchastity which “ ‘might reflect on the character of the witness without contributing materially to the issue of the guilt or innocence of the accused.’ [Cits.]” Martin, supra at 147.

6. Appellant has presented no valid basis for his complaint that the trial court erroneously allowed the detective investigating the case to testify about appellant’s conversations with the detective, nor did appellant object to the detective’s testimony at trial. Objections to evidence not raised at trial will not be considered on appeal. Riley v. State, 196 Ga. App. 148 (1) (395 SE2d 394) (1990).

7. Appellant contends that the trial court erred in failing to grant his motion for mistrial when the State violated OCGA § 24-2-3 by introducing evidence of alleged sexual acts of one victim with other persons, after having prevented defense counsel from examining the State’s witnesses in the same regard. While cross-examining the victim, defense counsel sought to question the 11-year-old boy about eight acts of sexual conduct that the appellant contended the victim had committed with four other persons. The State objected on the ground that prior acts of sexual conduct of the victim were not admissible, and the objection was sustained. In order to perfect the record, appellant was allowed to testify about these acts outside the presence of the jury, after which the trial court reiterated its original ruling not to permit defense counsel to cross-examine the victim in this regard. During cross-examination of appellant by the State, however, appellant testified at length about alleged sexual acts of the victim with others. He was further questioned in this regard upon redirect examination by defense counsel, who then moved for mistrial. The trial judge denied the motion, but stated that had defense counsel objected to this testimony he would have sustained the objection.

Appellant argues that the State gained an unfair advantage because the prosecution was allowed to question appellant about this behavior while the defense was not permitted to examine the victim about this behavior. We are at a loss to understand what injury appellant has suffered since the evidence he now claims is erroneous is what he wished to have before the jury in the first place. While the State did not want this evidence admitted, the assistant district attorney felt it was necessary to continue the line of questioning once the subject was introduced by appellant. “Where a witness voluntarily injects into the trial improper and prejudicial matters, whether a mistrial must be granted or whether the effect can be corrected by instructions to the jury is a matter within the discretion of the trial court. [Cit.]” Hicks v. State, 196 Ga. App. 25, 26 (2) (395 SE2d 349) (1990). Since counsel neither objected to this testimony nor asked for curative instructions during the cross-examination of appellant, we conclude that there was no abuse of discretion justifying reversal.

8. Appellant protests the denial of his motion for new trial on the ground of ineffective assistance of counsel, contending that his representation was deficient because his trial attorney (a) allowed the prosecutor to lead witnesses and testify without objection; (b) placed two persons on the jury who were relatives of State’s witnesses; (c) failed to recall the victim and his younger brother after the State opened the door to inquiry into the children’s past sexual behavior; and (d) failed to raise the defense of appellant’s diminished mental capacity.

(a) In regard to the first ground of his motion for new trial, appellant has not pointed out in the trial transcript any instances where the State was allowed to lead its witnesses or have them testify without objection. Moreover, “his enumeration of error challenging the denial of that motion has not been supported either by citation of authority or by argument. Accordingly, this [ground] is deemed to have been abandoned pursuant to Rule 15 (c) (2) of this court.” Whatley v. State, 197 Ga. App. 489 (2) (398 SE2d 807) (1990).

(b) Appellant claims he received ineffective representation of counsel because his trial attorney selected two jurors who were related to State’s witnesses. However, appellant’s trial attorney testified at the hearing on the motion for new trial that he would not have selected these two jurors without the approval of appellant’s family. The attorney testified that appellant’s family felt these jurors would be favorable to appellant because they knew appellant and his family. “ ‘The mere fact that appellate counsel would have tried the case differently does not show ineffectiveness. (Cit.) Errors of judgment and trial tactical errors do not constitute ineffectiveness. (Cit.)’ [Cit.]” Ranalli v. State, 197 Ga. App. 360 (5) (398 SE2d 420) (1990).

(c) With regard to the failure to recall the victims after appellant testified about the children’s past sexual behavior, appellant’s trial attorney explained his trial strategy in detail, including a motion for mistrial and perfecting the record, and stated that he did not consider recalling the children to be a viable approach. Again, this was a matter of trial tactics, not a basis for a finding of ineffectiveness. Ranalli, supra.

(d) Appellant insists his trial attorney was ineffective because he failed to raise the defense of retardation or diminished mental capacity; and that at the very least counsel should have placed appellant’s IQ in evidence to show why he was unable to effectively cope with the behavior of his accusers and how easily they could take advantage of him. Trial counsel testified that appellant was examined by two psychiatrists at counsel’s request; that counsel did not obtain any information to indicate there were grounds for a plea of incompetency, insanity, or guilty but mentally ill or retarded; and that appellant always asserted he did not commit any of the acts of which he was accused. Appellant’s testimony bears this out, as it was consistent and lucid. We do not consider this trial strategy to be a deficient performance which prejudiced appellant’s defense, nor did appellant “ ‘show there is a reasonable probability that the outcome would have been different, but for counsel’s . . . errors. (Cits.)’ [Cit.] ‘(T)here is a strong presumption that trial “counsel’s conduct falls within the wide range of reasonable professional conduct and that all significant decisions were made in the exercise of reasonable professional judgment.” (Cit.)’ [Cits.]” Sweetenburg v. State, 197 Ga. App. 36 (2) (397 SE2d 451) (1990). “A trial court’s finding that a defendant has not been denied effective assistance of counsel will be affirmed unless clearly erroneous. [Cit.] The trial court’s finding in the instant case is not clearly erroneous.” Warren v. State, 197 Ga. App. 23 (1) (397 SE2d 484) (1990).

9. Appellant contends that certain members of the jury were guilty of misconduct because they were seen associating and conversing with witnesses for the State during a lunch recess and that the specter of impropriety raised by this contact can only be erased by a new trial. The transcript of the new trial hearing reveals that these jurors and the witnesses were eating at the same restaurant but not at the same table. One juror, upon walking past his brother’s grandson, who was the son of a State’s witness, asked the boy how his grandfather was doing, but the child did not reply. Appellant’s relatives who reported the conversation were not in the restaurant and only saw the incident as they drove past in a car.

Even if we considered this to be an unauthorized contact or communication, which we do not, “a valid conviction is not otherwise vitiated unless the defendant was actually prejudiced by the communication. [Cits.] In the case sub judice, the prosecution carried its burden of showing that [appellant] was not harmed by the communication. [Cit.]” Dudley v. State, 179 Ga. App. 252 (3) (345 SE2d 888) (1986). This enumeration is without merit.

10. Appellant’s final enumeration of error protests the sentence imposed by the trial court. He maintains that because there was evidence that he was mentally retarded (according to the test records, his intelligence quotient was estimated to be between 71 and 72), he should have received a “less restrictive and more socially safe” alternative punishment, as a sentence of imprisonment “is utterly disproportionate in light of evolving concepts of decency inherent in the eighth amendment and in this society.” OCGA § 17-7-131 (g) (1) provides that when a defendant is found guilty but mentally retarded, the court shall sentence him in the same manner as a defendant found guilty of the offense, except as to the death penalty. This dictate seems equally appropriate where a retarded defendant is found guilty. In any event, “ ‘[t]his court will not review for legal error any

Decided September 3, 1991.

Frank B. Perry & Associates, Frank B. Perry, for appellant.

Ralph Van Pelt, Jr., District Attorney, Susan S. Camp, Assistant District Attorney, for appellee.

sentence which is within the statutory limits — as in the instant case. (Cits.) Any question as to excessiveness of a sentence which is within legal limits should be addressed to the sentence review panel, as provided in (OCGA § 17-10-6).’ [Cits.]” Head v. State, 191 Ga. App. 262 (9) (381 SE2d 519) (1989). We find no grounds for reversal.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A0985.
    OTWELL v. THE STATE.
    (410 SE2d 178)
   Beasley, Judge.

Otwell was indicted on four counts of theft by receiving stolen property, OCGA § 16-8-7 (a). The first involved a number of electronic items belonging to one Nichols and seized at Otwell’s residence on March 2, 1990; the remaining counts were for property seized at the residence on March 15. Otwell unsuccessfully moved to suppress evidence of the property from both seizures and a jury found him guilty of count one only. His motion for new trial was denied.

Otwell’s sole contention is that the trial court erred in denying suppression of the property taken on March 2. (No challenge is made to the search on March 15.) The court concluded that the warrantless seizure was either incident to a lawful arrest or to a consent to search. The argument is that the initial seizure was unlawful under the Fourth Amendment as the fruit of a nonconsensual warrantless search under Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38) (1981). The State Constitution is not involved. See Smith v. State, 186 Ga. App. 303, 309 (3) (367 SE2d 573) (1988).

“On appeal, a trial court’s ruling on disputed facts and credibility at a suppression hearing must be accepted unless clearly erroneous.” Muff v. State, 254 Ga. 45, 48 (2) (b) (326 SE2d 454) (1985). But this Court is at liberty to take into account the evidence at trial as well as the evidence at the motion hearing in determining whether or not the motion to suppress was properly denied. Newsome v. State, 192 Ga. App. 846, 847 (1) (386 SE2d 887) (1989). See also O’Donnell v. State, 200 Ga. App. 829 (1) (409 SE2d 579) (1991).

In this case, the trial court conducted a full pre-trial hearing on the motion at which appellant and two of the police investigators testified. There was significant disparity among the witnesses’ versions of the circumstances of the March 2 seizure both at the motion hearing and at trial. However, even the version of the evidence most favorable to the State mandates the conclusion that the State did not carry its burden of showing the legality of the warrantless search and seizure. State v. Slaughter, 252 Ga. 435, 436 (315 SE2d 865) (1984).

DeKalb County police contacted Gwinnett County police to request assistance in executing an arrest warrant for burglary on appellant’s brother. DeKalb had received a tip from the brother’s ex-wife that she had just seen her ex-husband at a duplex in Gwinnett County. The officers arrived at the duplex at approximately 1:00 a.m. on March 2. An officer was stationed at the rear entrance while the remaining three or four officers went to the front door. The only evidence which the State presented as to how they gained entry was the testimony of one of the officers during the trial and is as follows:

“[We] walked here to the front door, and knocked on this door right here.Q. How many officers were with you when you knocked on the door? A. Let’s see — two, three — three, I’m sorry — Q. Okay. When you knocked on the door what happened next? A. Well, we knocked on the door and we identified ourselves as Gwinnett County Police Officers, and the gentleman came to the door. If I am not mistaken it was a female that came to the door. And we asked for Sam Otwell — if Sam Otwell was at the address — Q. They opened the door for you? A. Yes. Q. And who did you ask if Sam Otwell was at the residence? A. If I’m not mistaken it was him or the female that we asked was he here, and shortly after he came to the front door while we were standing there. Q. All right. And he identified himself as Sam Otwell? A. Yes, sir. Q. And did you place him under arrest at that time? A. Well, we walked into the residence and we explained the situation to them that we had received information from DeKalb County Police Department that we had an arrest warrant for him for his arrest. Q. All right. So you got into the apartment and after you had already been identified — A. Yes. Q. And you and how many officers were in the residence at that time? A. At that time there were three of us in the residence.” There was a hallway and the officers went with the occupants into the living room, where appellant’s brother Sam was taken into custody. One of the officers, who was a burglary investigator, noticed an answering machine with missing or scratched out serial numbers lying upside down on the floor. From that point transpired the seizing of the items listed in count one and the arrest of appellant. Appellant disputed the method of entry and testified at the suppression hearing that his brother went to the door when a knock was heard and “about four or five police officers just kicked it in and threw him on the floor and threw me on the floor. . . .” Nothing in this evidence would support a finding of consent.

Decided September 3, 1991.

Clark & McLaughlin, Michael C. Clark, Leslie J. Cardin, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

It is undisputed that the entered and searched residence was that of appellant. Therefore, the threshold inquiry is whether or not the arrest warrant for appellant’s brother provided the officers with legal entry into the duplex for the purposes of the search and seizure on March 2. Steagald, supra, held that an arrest warrant as opposed to a search warrant is inadequate to protect the Fourth Amendment interests of persons not named in the warrant, when their homes are searched without their consent and in the absence of exigent circumstances. The Supreme Court noted that “Whatever practical problems [in requiring a search warrant in such cases] cannot outweigh the constitutional interests at stake . . . [T]he right protected — that of presumptively innocent people to be secure in their homes from unjustified, forcible intrusions by the Government — is weighty.” Steagald, supra, 451 U. S. at 222.

There were no exigent circumstances shown here. See Steagald, supra, 451 U. S. at 221. Nor was there any evidence whatsoever that appellant consented in any manner to the officers’ entry of his home. The best that can be said is that the officers merely walked in without seeking permission. Such unconsented-to entry without a search warrant violated the Fourth Amendment, as the Supreme Court concluded in Steagald. Therefore, the search and seizure which followed on that occasion cannot be sustained. The trial court erred in ruling that the March 2 search was valid and in refusing to suppress the seized items and evidence of the search.

Judgment reversed.

Banke, P. J., and Carley, J., concur.


author: Pope, Judge,

text:
    A91A0994.
    STARR v. THE STATE.
    (410 SE2d 180)
   Pope, Judge,

Defendant Joe Starr was tried before a jury and convicted of armed robbery and subsequently sentenced to 12 years imprisonment. Starr appeals, enumerating two errors. We affirm.

1. “In state criminal trials, the Due Process Clause of the Fourteenth Amendment ‘protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ In re Winship, 397 U. S. 358, 364, 25 L Ed 2d 368, 90 S Ct 1068 (1970), [cits].” Cage v. Louisiana, 498 U. S. _ (111 SC 328, 112 LE2d 339, 341) (1990) (per curiam). Defendant contends the trial court’s charge on reasonable doubt lessened the burden of proof required under the reasonable doubt standard of Winship and thus violated the Due Process Clause of the Fourteenth Amendment. Specifically, defendant contends Cage v. Louisiana, supra, precludes the use of the term “moral certainty” in defining reasonable doubt.

In Cage, the trial court instructed the jury in pertinent part: “If you entertain a reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your duty to . . . return a verdict of not guilty. . . . This doubt, however, must be a reasonable one; that is one that is founded upon a real tangible substantial basis and not upon mere caprice and conjecture. It must be such doubt as would give rise to a grave uncertainty, raised in your mind by reasons of the unsatisfactory character of the evidence or lack thereof. A reasonable doubt is not a mere possible doubt. It is an actual substantial doubt. . . . What is required is not an absolute or mathematical certainty, but a moral certainty.” 112 LE2d at 341-342.

The United States Supreme Court in its opinion stated: “[t]he charge did at one point instruct that to convict, guilt must be found beyond a reasonable doubt; but it then equated a reasonable doubt with a ‘grave uncertainty’ and an ‘actual substantial doubt,’ and stated that what was required was a ‘moral certainty’ that the defendant was guilty. It is plain to us that the words ‘substantial’ and ‘grave,’ as they are commonly understood, suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard. When those statements are then considered with the reference to ‘moral certainty,’ rather than evidentiary certainty, it becomes clear that a reasonable juror could have interpreted the instruction to allow a finding of guilt based on a degree of proof below that required by the Due Process Clause.” Id. at 342.

In the case at bar, the charge by the trial court was substantially different than the charge in Cage. The charge here provided “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt and to a moral and reasonable certainty.” The jurors were not told that reasonable doubt must be such doubt as would give rise to “grave uncertainty,” nor were they told that reasonable doubt is an “actual substantial doubt.” Rather, the charge provided a reasonable doubt “is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon reason and common sense. It does not mean a vague or arbitrary notion, but it is a doubt for which a reason can be given arising from a consideration of the evidence, the lack of evidence, a conflict in the evidence, or a combination of these. If after giving consideration to all the facts and circumstances in the case or a case or a charge, your minds are [wavering], unsettled, unsatisfied in so far as a particular count or a particular indictment is concerned, then that is a doubt of the law and you should acquit the defendant on that charge.” Unlike the definition of reasonable doubt in the Cage charge, this definition does not suggest a higher degree of doubt than is required for acquittal under the reasonable doubt standard.

Decided September 3, 1991.

Mark V. Cloud, Kenneth D. Kondritzer, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

Moreover, Cage, supra, does not absolutely preclude the use of the term “moral certainty” in defining reasonable doubt. In Cage, it is clear that it was both the definition of reasonable doubt, which impermissibly equated reasonable doubt with a “grave uncertainty” and an “actual substantial doubt,” coupled with the reference to “moral certainty” that invalidated the jury instruction. Id. Here, the instruction properly defined reasonable doubt, and we hold that the reference to “moral and reasonable certainty” does not, standing alone, lessen the burden of proof required for conviction in violation of the Due Process Clause.

2. Defendant also contends the trial court erred in charging the jury regarding flight of the accused. Defendant specifically argues that the rule in Renner v. State, 260 Ga. 515, 517-518 (3) (397 SE2d 683) (1990), should be applied in this instance.

In Renner, the Georgia Supreme Court ruled that it would be reversible error for a trial court to charge a jury on flight in any criminal case tried after January 10, 1991. Id. at 518, n. 2. Since this case was tried in June 1990, Renner does not apply, and this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Andrews, Judge.

text:
    A91A0998.
    MULLIS v. THE STATE.
    (410 SE2d 182)
   Andrews, Judge.

The defendant, Rickey Preston Mullís, appeals his conviction by a jury of the offense of driving an automobile under the influence of alcohol in violation of OCGA § 40-6-391 (a) (4).

The evidence shows the defendant lost control of his truck and swerved off the road into the yard of a private residence, damaging the resident’s automobile and other personal property. Within five minutes after hearing the crash and seeing a truck leave the scene with a flat tire, a nearby resident called the police at 9:55 p.m. to report the accident. When the police arrived at the accident scene about five minutes later, they found debris from an automobile, tire tracks leading from the yard to the paved roadway, and a trail leading down the roadway made by the imprint of a tire rim cutting into the pavement. They followed the trail which led to another residence where a truck was parked with body damage consistent with the debris found at the scene, and one flat, shredded rear tire.

Information provided by residents where the truck was parked, and a check on the license tag, enabled police to identify the defendant as the owner of the truck, and locate his residence about a quarter of a mile away. At about 10:30 p.m., officers arrived at the defendant’s residence, and told his father, who answered the door, that the truck had been involved in an accident, and they were looking for the driver. The defendant’s father said he would check to see if the defendant was home. The officers followed him back to the defendant’s bedroom where the defendant was found in bed. When questioned about the truck, he admitted he had been driving it. Detecting a strong odor of alcohol about the defendant and other signs of intoxication, an officer asked the defendant if he had consumed any alcohol since he had been home. He denied having consumed any alcohol since arriving at his home. Officers then arrested the defendant, and charged him with driving under the influence. The defendant submitted to a breath test at 11:25 p.m. which showed an alcohol concentration of 0.13 grams.

The defendant contended at trial that he lost control of the truck, and swerved into the yard because of a tire blowout. He claimed he had consumed no alcoholic beverages before or while he drove the truck, and that after driving from the scene of the accident, he drove the truck to a friend’s house, and walked home because it would not start. He told the jury that, because he was nervous about the accident, he drank almost a pint of alcoholic beverage immediately before he went to bed.

1. In his first two enumerations of error, the defendant claims he was illegally arrested without probable cause, and that the trial court erroneously denied his motion to suppress, and admitted evidence obtained as a result of the arrest. We find no merit in these contentions.

The officers were conducting an investigation into an apparent hit and run accident. They had gathered ample evidence to conclude that the defendant’s truck was involved in the accident. This information provided the officers with an articulable suspicion sufficient to authorize them to briefly question the defendant to determine if he was the driver of the truck. State v. Webb, 193 Ga. App. 2, 4 (386 SE2d 891) (1989); State v. Hodges, 184 Ga. App. 21 (360 SE2d 903) (1987). Though the defendant’s father testified that he let the officers in the house and led them back to his son’s room because they threatened to arrest him, the officers stated they made no such threats. We find no evidence of forceful entry by the officers. The evidence was sufficient to enable the trial court to conclude the officers were lawfully present, and that the defendant’s father freely and voluntarily consented to their entry into the house. Dean v. State, 250 Ga. 77, 78-80 (295 SE2d 306) (1982). When the defendant responded that he had driven the truck, and the officers detected signs of his intoxication, there was probable cause at that point to lawfully arrest the defendant. Durden v. State, 199 Ga. App. 397, 398 (405 SE2d 50) (1991). The trial court’s findings with respect to the motion to suppress were supported by the record, not clearly erroneous, and, therefore, must be accepted on appeal. Bryan v. State, 197 Ga. App. 207-208 (398 SE2d 230) (1990).

2. In his third enumeration of error, the defendant contends the trial court erred by allowing the state to present evidence of the breath test without the testimony of the officer who administered it. The foundation the state must lay in order to support admission of the breathalyzer test results is controlled by OCGA § 40-6-392. See Brannan v. State, 261 Ga. 128 (401 SE2d 269) (1991). OCGA § 40-6-392 (a) (1) provides: “Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation is authorized to approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, which shall be subject to termination at the discretion of the Division of Forensic Sciences.”

The state was unable to produce the police officer who administered the test, but instead relied on the arresting officer who testified that he was personally present and witnessed the administration of the test to the defendant; that at the time the test was given, he (the arresting officer) held a valid permit to administer the test given; that when the test was given, the officer administering the test displayed a valid permit issued to her for the purpose of administering the test; that the test given to the defendant was performed in accordance with the approved methods and techniques taught to those holding a valid permit. The arresting officer demonstrated his personal knowledge of the foundational facts, and was subject to a full cross-examination by the defendant. This was sufficient to lay a proper foundation for admission of the test results in the absence of the administering officer. See Wallace v. State, 188 Ga. App. 77, 79 (371 SE2d 914) (1988).

Decided September 3, 1991.

T. Jefferson Moore, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor, William F. Bryant, Assistant Solicitor, for appellee.

3. The evidence was sufficient for a rational trier of fact to conclude that, as charged in the accusation, the defendant drove the truck with an unlawful blood alcohol level, in that he consumed alcohol before or while driving so that his blood alcohol count reached at least 0.12 grams within three hours after driving the truck, in violation of OCGA § 40-6-391 (a) (4). Lester v. State, 253 Ga. 235, 236 (320 SE2d 142) (1984); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A91A1005.
    MINCEY v. THE STATE.
    (410 SE2d 185)
   Sognier, Chief Judge.

Louis Alford Mincey was charged with murder and tampering with evidence. Mincey and his uncle, Ricky Craig Lewis, who was charged with the same offenses, were tried jointly. The jury found both guilty of tampering with evidence, acquitted Lewis of the murder charge, and found Mincey guilty of the lesser offense of voluntary manslaughter. Mincey appeals from the judgment and sentence entered on the jury’s verdict finding him guilty of voluntary manslaughter.

The evidence adduced at trial, construed to support the jury’s verdict, showed that although neither was invited, both appellant and Lewis attended a birthday party. Sometime past midnight, after many of the guests had left the party, a fight erupted between Lewis and Donnie Mock, another guest. There was evidence that as Lewis and Mock were fighting, Greg Taylor caught Lewis’s arm and began pulling him away. Lewis shook Taylor off, and several witnesses heard Lewis call to appellant to “get him.” Appellant and Taylor then engaged in a struggle and Taylor fell to the ground.

Although none of the witnesses testified to having seen appellant stab Taylor, appellant testified at trial that he did so, saying that he opened a pocketknife he was carrying because he had earlier “seen an imprint [of a knife] that was in [Taylor’s] pocket” and that he stabbed Taylor in self-defense, to protect his uncle and “to get him [Taylor] off of me.” Appellant and Lewis left the scene in Lewis’s truck while the remaining party guests were gathered around Taylor. The sheriff and an ambulance were called to the scene by those remaining, and Taylor was transported to the hospital, where he was pronounced dead. The autopsy report, introduced into evidence at trial, established five separate stab wounds. Appellant and Lewis testified at trial that when they left the party Lewis was driving because appellant’s hand was bleeding profusely from a cut. However, when appellant and Lewis passed sheriff’s deputies on their way to the scene of the stabbing, they stopped to change drivers because Lewis did not have a driver’s license and was afraid of being stopped. During this stop Lewis threw appellant’s knife into a pond.

1. Appellant contends the trial court erred by refusing to give his requested charge on justification drawn from Dunn v. State, 16 Ga. App. 9 (1) (84 SE 488) (1915). The requested charge would have instructed the jury that “[w]here a homicide is admitted and the accused seeks to justify it upon the ground that he was actuated by the fears of a reasonable man, the conduct and condition of the deceased in his presence shortly before the fatal encounter, and the influence of this conduct or condition upon the mind of the accused, are relevant as being illustrative not only of the reasonableness of his fears, but also as indicating the quo animo of the deceased, although the previous difficulty may have been between the deceased and a third person.” Although the trial court indicated it would take the ideas embodied in the requested charge, it rejected this particular language, finding it argumentative because it implied that the court could direct the jury that certain conduct of the victim was relevant because it illustrated other things. The trial court did give a complete charge on justification which embodied the principles in the requested charge, and thus “[t]he failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. [Cits.]” Stephens v. State, 196 Ga. App. 29, 30 (2) (395 SE2d 353) (1990).

2. Appellant also enumerates error in the trial court’s charge on flight, which he argues was incomplete, singled out and emphasized one piece of circumstantial evidence, and prejudiced the jury by instructing them that guilt may be inferred from flight. Recently, in Renner v. State, 260 Ga. 515, 517-518 (3) (b) (397 SE2d 683) (1990), the Supreme Court adopted the rule set forth by Justice Bell in his concurrence in Cameron v. State, 256 Ga. 225, 227-228 (345 SE2d 575) (1986), abolishing the jury instruction on flight as serving no real purpose and carrying the “potential of being interpreted by the jury as an intimation of opinion by the court that there is evidence of flight and that the circumstances of flight imply the guilt of the defendant.” Renner, supra at 518 (3) (b). However, the new rule was made applicable only to cases tried after January 10, 1991, “the date on which [the Renner] opinion appealed] in the advance sheets of the Georgia Reports, 260 Ga. 515.” Id. at 518 n. 2. As the case sub judice was tried on April 18, 1989, here, as in Renner, giving the charge on flight was not reversible error. Id.

Decided September 3, 1991.

Michael J. Classens, Lisa M. Gross, for appellant.

J. Lane Johnston, District Attorney, for appellee.

Judgment affirmed.

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


text:
    A91A1016.
    BRINSON v. THE STATE.
    (410 SE2d 50)
   Carley, Judge.

Appellant was tried before a jury and found guilty of armed robbery and possession of a firearm during the commission of a crime. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. The victim made an in-court identification of appellant as her assailant. In the course of her testimony, the victim gave a detailed description of her assailant and indicated that he had not worn eyeglasses. When appellant took the stand in his own defense, he testified that he had worn glasses for many years and would not drive or watch television without prescription glasses. Appellant then proffered a pair of his glasses for the jury to examine. The State objected on the ground of relevancy and the trial court sustained the objection, stating that appellant’s testimony regarding his eyesight was “sufficient.” This evidentiary ruling is enumerated as error.

“The Georgia rule favors admission of any relevant evidence, [cit.]. . . . [Cits.]” Wilbanks v. State, 165 Ga. App. 876, 878 (4) (303 SE2d 144) (1983). Appellant’s use of eyeglasses had been rendered a relevant topic of inquiry by the victim’s testimony that her assailant had not worn them. Although appellant may have testified as to his dependence upon eyeglasses, his testimony in that regard would not render the jury’s consideration of his actual eyeglasses any less relevant. “It should require a very strong case of threatened evil, to justify a Court in preventing a party from giving additional confirmatory, cumulative and corroborative evidence, either of facts previously proved, or which tends to strengthen, add force or probability to such evidence.” Walker v. Walker, 14 Ga. 242 (6) (1853). Moreover, insofar as the extent of appellant’s visual impairment is concerned, demonstrative evidence in the form of his actual eyeglasses can scarcely be deemed to be only cumulative of his merely oral testimony. See gener- . ally Department of Transp. v. Petkas, 189 Ga. App. 633, 636 (3) (377 SE2d 166) (1988). Accordingly, the trial court’s evidentiary ruling with regard to appellant’s eyeglasses was violative of the “Georgia rule” favoring the admissibility of any relevant evidence and was, therefore, erroneous.

Decided September 3, 1991.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, G. Barksdale Boyd, Assistant District Attorneys, for appellee.

However, an erroneous exclusion of evidence will not always warrant a reversal. Tuzman v. State, 145 Ga. App. 761, 767 (3) (244 SE2d 882) (1978). A review of the record demonstrates that appellant’s guilt was not dependent solely upon the victim’s identification testimony and here, as in Burks v. State, 195 Ga. App. 516, 518 (4) (394 SE2d 136) (1990), the evidence of appellant’s guilt, considered as a whole, was overwhelming. Under these circumstances, it is highly probable that the trial court’s erroneous evidentiary ruling did not contribute to the conviction and a reversal of appellant’s conviction is not mandated.

2. Appellant contends, and the State concedes, that the trial court erred in failing to hold a presentence hearing as mandated by OCGA § 17-10-2. Accordingly, the sentences are reversed and the case remanded for sentencing in conformity with OCGA § 17-10-2. See Sprouse v. State, 242 Ga. 831, 834 (5) (252 SE2d 173) (1979).

Judgments of conviction affirmed; sentences are reversed, and case remanded.

Banke, P. J., and Beasley, J., concur.


text:
    A91A1030.
    SCOTT v. AETNA FINANCE COMPANY.
    (410 SE2d 203)
   Banke, Presiding Judge.

The appellee, Aetna Finance Company brought suit against the appellant, James Scott, seeking to recover the unpaid balance allegedly due on a promissory note. In his answer, Scott denied liability on the ground that the note violated the Georgia Industrial Loan Act (OCGA § 7-3-1 et seq.); however, the parties thereafter entered into a written agreement whereby he was to continue making payments on a slightly reduced balance and Aetna was to defer seeking a judgment so long as these payments remained current. Asserting that Scott had defaulted in making these payments, Aetna subsequently moved for summary judgment on the complaint; and the trial\court granted the motion, awarding it judgment in the principal amoúnt of $1,162, plus interest and court costs. The case is before us pursuant to our grant of Scott’s application for a discretionary appeal from that ruling. Held:

Decided September 3, 1991.

Ralph S. Goldberg, for appellant.

Goodman, Hudnall, Cohn & McManus, H. Gilman Hudnall, for appellee.

Aetna’s motion for summary judgment was predicated solely on Scott’s failure to comply with the terms of the promissory note and his subsequent repayment agreement. Thus, his Industrial Loan Act defenses were not addressed in the trial court’s order. “[0]n motion for summary judgment the burden was upon the plaintiff, as movant, to conclusively establish the absence or nonexistence of any defense. . . . The defendant’s answer raised an issuable defense which the proof offered by the plaintiff failed to effectively negate.” Duke Enterprises v. Espy, 140 Ga. App. 527, 530 (231 SE2d 522) (1976). Inasmuch as Scott’s Industrial Loan Act defenses have not been addressed, we hold that the trial court erred in granting Aetna’s motion for summary judgment.

Judgment reversed.

Carley and Beasley, JJ., concur.


text:
    A91A1043.
    SMITH v. THE STATE.
    (410 SE2d 202)
   Banke, Presiding Judge.

The appellant brings this appeal from his convictions of burglary, armed robbery, and possession of a knife during the commission of a crime. Held:

1. The trial court did not err in refusing to excuse a prospective juror for cause on the ground that he was a certified police officer, where the juror stated that he was retired, that he was no longer connected with any law enforcement agency in any official capacity whatsoever, and that he was no longer exercising any “rights” under his certification. Accord Depree v. State, 246 Ga. 240 (2) (271 SE2d 155) (1980) ; Jordan v. State, 247 Ga. 328, 339-340, fn. 16 (276 SE2d 224) (1981) . The appellant’s reliance on such cases as Harris v. State, 255 Ga. 464 (339 SE2d 712) (1986); Hutcheson v. State, 246 Ga. 13 (268 SE2d 643) (1980); and Parks v. State, 178 Ga. App. 317 (343 SE2d 134) (1986), is misplaced in that the prospective jurors in those cases were not retired but were currently employed as law enforcement officers.

Decided September 3, 1991.

H. B. Edwards III, for appellant.

H. Lamar Cole, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

2. The appellant contends that he was entitled to a charge on alibi based on his testimony that he was at home with his girl friend and a cousin on the day the offenses occurred. The appellant did not introduce any evidence tending to corroborate his testimony in this regard, nor did he request an instruction on alibi. More importantly, when asked by the trial court whether he had any objections or exceptions to the charge as given, his counsel responded in the negative. Consequently, this enumeration of error presents nothing for review. See Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980).

3. The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the appellant guilty of each of the offenses of which he was convicted beyond a reasonable doubt. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley and Beasley, JJ., concur.


text:
    A91A1054.
    FITZ v. THE STATE.
    (410 SE2d 186)
   Andrews, Judge.

Fitz was convicted by a jury on five counts of burglary and sentenced to ten years concurrently on each count. He was also ordered to pay restitution for damages incurred by the victims on each count.

The evidence against Fitz was entirely circumstantial. Construed in favor of the verdict, the evidence showed that at approximately 3:00 a.m. on June 4, 1990, police began responding to reports of numerous burglaries and attempted burglaries at businesses in the city of Folkston. No suspects were apprehended or observed at any of the businesses. Police discovered similar boot prints in and around some of the businesses, evidence of forced entry by a tool used to pry open doors or windows, and the theft of about $160 and other miscellaneous items taken from various businesses. At approximately 3:40 a.m. a police officer observed a man running within a few blocks of some of the businesses, but the officer was only able to determine that the man was about 5 8 to 5 9 tall, of average build, and was wearing dark clothing and a baseball style cap. At about 9:00 a.m. a deputy was approached by a man walking in Folkston, later identified as the defendant, who asked the deputy if they had caught the man yet. At about 10:00 a.m., in an abandoned warehouse a mile outside of Folkston, police discovered several bags of clothing, boots with soles leaving an imprint consistent with the boot tracks found at various of the businesses, a folder containing papers bearing the name of Henry Fitz, a crowbar, three screwdrivers, a flashlight, gloves, a bag of condoms, and miscellaneous other items. The flashlight and one of the screwdrivers were positively identified at trial as taken from two of the burglarized businesses. The owner of another burglarized business testified that a gag gift, a sack of condoms, had been stolen, and identified the condoms found by the police as being in a similar package as those stolen.

About 30 minutes after finding the items in the warehouse, police approached the defendant, who was walking about a quarter of a mile from the warehouse, and arrested him after he identified himself as Henry Fitz. At the time of his arrest, Fitz was wearing a light colored shirt, and had $174 in currency and $11 in quarters on his person. Fitz could not be identified as the man police observed running near the scene of the burglaries, but he was of the same general build and height. After being informed of his constitutional rights, Fitz gave the police conflicting stories of how he had arrived in Folkston. Fitz denied any involvement in the burglaries. Although he admitted that the papers bearing his name, and some of the clothes found at the warehouse were his, he said he had never been to the warehouse, and claimed to have no knowledge of the boots or any of the tools found with his clothes. He testified that his clothes and papers had been stolen earlier from a restaurant in Folkston where his brother had dropped him off to visit a friend. He explained that while looking for his missing clothes, he learned that the police were searching for a burglary suspect, and for that reason he approached the deputy and asked if they had caught the man.

In the five count indictment, Fitz was charged and convicted of burglarizing the following businesses: Taylor Timber Shop (count one); Okefenokee Restaurant (count two); Taylor’s Cleaners (count three); Folkston Gas Company (count four), and Folkston Auto Supply (count five).

As to count one, evidence showed that sometime between the close of business on June 3 and the morning of June 4, Taylor Timber Shop was illegally entered when a window was pried open. An employee of the shop identified a screwdriver found at the warehouse with the defendant’s clothes as having been taken from the business.

As to count two, the only evidence was that Okefenokee Restaurant was illegally entered between the close of business on June 3 and the morning of June 4 by someone who pushed in a window. Testimony that $10 to $14 in quarters was taken from the cash register was clearly hearsay, and though unobjected to, has no probative value and cannot be considered. Shaver v. State, 199 Ga. App. 428, 429-430 (405 SE2d 281) (1991).

As to count three, the owner of Taylor’s Cleaners testified that during the evening and morning of June 3-4 a door had been kicked in at his business, and there were marks indicating someone had attempted to pry open the cash register. He also identified a flashlight found by the police with the defendant’s clothing as one taken from his business.

As to count four, an employee of Folkston Gas Company testified that upon opening the business on the morning of June 4, he discovered that, sometime after the close of business on the previous day, the back door of the business had been broken out of its door jamb and opened. He observed that a locked cabinet in the business had been pried from the wall and that four $20 bills had been taken from the cash drawer. In his opinion, the pry marks were consistent with the use of the crowbar found by the police.

As to count five, the owner of Folkston Auto Supply testified that sometime between the close of business on June 3 and the morning of June 4, the door to the business had been pried open and $60 to $80 taken from the cash drawer. A gag gift, a sack of condoms, was also taken from the business. Although he was unable to say positively that the condoms found with the defendant’s clothing were taken from his business, he testified they looked the same, and were in the same kind of package.

Fitz claims the trial court erred in denying his motion for a new trial because the verdict was not supported by the weight of the evidence. An appellate court does not weigh the evidence or pass on witness credibility, but determines only the sufficiency of the evidence. Robinson v. State, 194 Ga. App. 432, 433 (390 SE2d 652) (1990).

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6. “To sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except guilt of the accused, but only reasonable inferences or hypotheses, so as to justify the inference, beyond reasonable doubt, of guilt. Questions as to reasonableness generally are to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilt is unsupportable as a matter of law.” (Citations and punctuation omitted.) Ware v. State, 198 Ga. App. 24, 26 (400 SE2d 384) (1990); Muckle v. State, 165 Ga. App. 873 (303 SE2d 54) (1983).

We conclude the evidence was sufficient to sustain Fitz’s conviction on counts one, three, four and five, but not on count two.

As to count two, the evidence may create a strong suspicion that Fitz burglarized the Okefenokee Restaurant, but mere suspicion is insufficient to support a conviction. O’Quinn v. State, 153 Ga. App. 467, 471-472 (265 SE2d 824) (1980). Other than the fact that Fitz was convicted of burglarizing other businesses in the same general area at approximately the same time, there is no evidence linking him to the restaurant burglary. Proximity without additional evidence of participation in the crime is insufficient to support the conviction. Crumley v. State, 185 Ga. App. 795, 796 (366 SE2d 171) (1988). There was no evidence of boot prints at the restaurant consistent with the boots found with Fitz’s clothing, nor was any item stolen from the restaurant tied to Fitz. No pry marks were found at the restaurant, similar to the burglaries at other businesses, which could have been made by the tools found with Fitz’s belongings. The only evidence which could have provided the necessary connection, the quarters taken from the cash register, was introduced by hearsay testimony lacking any probative value. Without some evidence establishing a connection between Fitz and the break-in, the proof was insufficient to exclude every reasonable hypothesis save that of guilt. See Muckle, supra; O’Quinn, supra. Accordingly, the judgment of conviction and sentence, including the order of restitution, as they apply to count two must be reversed.

In the burglaries at Taylor Timber Shop (count one), Taylor’s Cleaners (count three), Folkston Gas Company (count four), and Folkston Auto Supply (count five) there was evidence connecting Fitz to each of these crimes. In three of these burglaries (counts one, three and five) the screwdriver, flashlight and condoms taken from the businesses were linked to Fitz. In count four, pry marks were found consistent with the crowbar found with Fitz’s belongings. Evidence showed that a total of approximately $160 in cash was taken in the burglaries in counts four and five, and Fitz was found carrying $174 in currency and $11 in quarters at the time of his arrest. As to counts one, three, four and five the evidence excluded every other reasonable hypothesis save that of guilt, and was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment and sentence affirmed in part and reversed in part.

Sognier, C. J., and McMurray, P. J., concur.

Decided September 3, 1991.

John S. Myers, for appellant.

Harry D. Dixon, Jr., District Attorney, Deborah M. Perlis, Assistant District Attorney, for appellee.


text:
    A91A1063.
    SOUTHERN INTERNATIONAL PICTURES, INC. et al. v. FRIEDMAN.
    (410 SE2d 51)
   Beasley, Judge.

Friedman sued Southern International Pictures, Inc., Neal G. Gale, and Neal G. Gale, Jr., seeking the principal, interest, and attorney fees on two promissory notes executed by Southern and personally endorsed by the Gales.

Shortly after defendants filed their answer,, plaintiff requested admissions that Southern had executed the notes, as well as renewals and extensions, and that the individual defendants had endorsed them. Defendants did not respond, establishing as fact the matters stated. OCGA § 9-11-36 (a) (2) and (b).

Thereafter, plaintiff moved for summary judgment. He supported it with his affidavit, in which he stated that the notes, extensions, and renewals had been executed by Southern and personally endorsed by the individual defendants; that the computation of the amounts due had been made in exhibits to the complaint; that defendants had made no payment of any portion of principal and interest; and that defendants had not responded to his request for admissions, thereby resulting in the admission of the matters set forth under OCGA § 9-11-36 (a) (2). His attorney stated, in affidavit, that demand for payment was made and that in accordance with OCGA § 13-1-11 (a) (3), defendants were notified in writing, by his letters, that the provisions of the notes relative to attorney fees would be enforced unless payment of principal and interest was made within ten days.

Defendants responded by merely stating that no admission had been made as to the amount of the indebtedness.

In this appeal from the trial court’s grant of plaintiff’s motion for summary judgment, defendants enumerate two alleged errors.

1. They contend that the court erred in ruling without conducting a hearing on the motion.

Under Uniform Superior Court Rule 6.3, motions in civil actions, including motions for summary judgment, shall be decided by the trial court without oral hearing, in the absence of a written request, notwithstanding prior Court of Appeals’ decisions interpreting OCGA § 9-11-56 (c) as requiring oral hearings on motion for summary judgment even in the absence of a request. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (1) (350 SE2d 265) (1986), aifd in Dallas Blue Haven Pools v. Taslimi, 256 Ga. 739 (354 SE2d 160) (1987).

Decided September 3, 1991.

Neal G. Gale, pro se.

Gilbert, Whittle, Harrell, Scarlett & Skelton, Wallace E. Harrell, for appellee.

There was no request for a hearing here, and the court did not rule until after 30 days had elapsed.

2. Defendants contend that plaintiff’s affidavits were without probative value, since it was not affirmatively stated in the affidavits that affiants had personal knowledge of the information contained therein. See Cawthon Motor Co. v. Scheufler, 153 Ga. App. 282, 286 (1) (265 SE2d 96) (1980); OCGA § 9-11-56 (e).

Defendants did not raise this objection below. It is thus not subject to review on appeal, even in this summary judgment situation, where the record must “show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (OCGA § 9-11-56 (c).) Chapman v. McClelland, 248 Ga. 725 (2) (286 SE2d 290) (1982), holds that objections to affidavits, such as that they were not based on personal knowledge, will not be entertained on appeal if the affidavits were considered by the court without objection in ruling on motions for summary judgment.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


text:
    A91A1090.
    JOHNSON v. THE STATE.
    (410 SE2d 189)
   Carley, Judge.

Appellant was tried before a jury and found guilty of public drunkenness and obstruction of a law enforcement officer. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. The charge of obstructing a law enforcement officer was predicated upon appellant’s resistance to being arrested for disorderly conduct. Subsequent to appellant’s arrest, the disorderly conduct statute was declared unconstitutional. Satterfield v. State, 260 Ga. 427 (395 SE2d 816) (1990). At trial, appellant urged that he had had the legal right to resist his arrest for disorderly conduct and moved for a directed verdict of acquittal as to the charge of obstructing the law enforcement officer who had been attempting to enforce the unconstitutional statute. The denial of appellant’s motion for a directed verdict of acquittal is enumerated as error.

Appellant’s “argument that [his] arrest was unlawful depends entirely on the unconstitutionality of the . . . disorderly conduct statute. [However,] . . . such statute had not been held unconstitutional prior to [appellant’s] arrest. ... An arrest is not unlawful within the common law right to resist, if the arrest is authorized by statute . . . , even though the statute may later be declared unconstitutional. . . . [Cits.] .... [T]he validity of the arrest depends on the law as it exists at the time of the arrest and not as it may later be declared.” (Emphasis in original.) Wright v. Bailey, 544 F2d 737, 740 (2) (4th Cir. 1976).

Under the circumstances, it would not have been proper for the law enforcement police officer “ ‘to take it upon himself to pass upon the validity of the [statute]. Until repealed or held invalid by a court of competent jurisdiction, it was the duty of the officer to enforce the [statute]. Likewise, it was not the right of an individual to resist arrest on the basis of a contention that the law he allegedly was violating was unconstitutional or invalid for some other reason. A defendant may raise that question as a defense to the charge and have the validity or constitutionality of the statute or ordinance determined, and he will be acquitted if his claim of unconstitutionality or invalidity is sustained. Courts are established and available for the purpose of determining such questions. Such procedure is an integral part of an orderly society under a government of law. To permit persons to resist arrest and attack an officer and then be excused if they successfully question the constitutionality or validity of a statute or ordinance would lead to chaos and would be intolerable. . . .’ Since it was not until . . . after [appellant’s] arrest that the statute under which he was arrested was found unconstitutional, it follows that his arrest was not unlawful at the time made within the contemplation of the rule granting one arrested the right to resist.” Wright v. Bailey, supra at 741-742.

The fact that the State was barred from securing appellant’s conviction for disorderly conduct is immaterial to appellant’s guilt for obstruction of the law enforcement officer. It is the legality of appellant’s arrest for disorderly conduct, not his actual conviction for disorderly conduct, that is material to his guilt for obstruction of the law enforcement officer. See Brooks v. State, 166 Ga. App. 704, 706 (305 SE2d 436) (1983). “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. [Cit.]” Garrett v. State, 184 Ga. App. 715, 716 (3) (362 SE2d 423) (1987). “Since the arrest was lawful, the evidence was . . . sufficient to meet the requirements of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” Brooks v. State, supra at 706. See also Garrett v. State, supra at 716 (2, 3).

Decided September 3, 1991.

Summer & Summer, Daniel A. Summer, for appellant.

Lydia S. Jackson, Solicitor, Jerry Rylee, Graham McKinnon IV, Assistant Solicitors, for appellee.

2. Appellant also enumerates as error the trial court’s denial of his motion for directed verdict on the charge of public drunkenness.

The State’s evidence showed that appellant evidenced a strong smell of alcohol and exhibited mannerisms and an attitude indicative of intoxication. An officer at the scene testified that, in his opinion, appellant was under the influence of alcohol. There is no question that appellant was in a public place, was boisterous and used “vulgar, profane, loud, or unbecoming language. . . .” OCGA § 16-11-41 (a). Although appellant testified that he had only taken medicine which smelled like alcohol, “[o]bviously the jurors elected to disbelieve the explanation offered by [appellant] and accept the spotlight of guilt focused by the circumstantial evidence [of intoxication].” Baldwin v. State, 153 Ga. App. 35, 37 (264 SE2d 528) (1980). See also Trammell v. State, 196 Ga. App. 540, 541 (1) (396 SE2d 286) (1990).

“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for the trier of fact. [Cit.]” Youngblood v. State, 179 Ga. App. 163, 164 (345 SE2d 634) (1986). “The evidence set forth above was sufficient to authorize a rational trier of fact to find appellant guilty of public drunkenness [as well as] obstruction of an officer beyond a reasonable doubt. [Cits.]” Garrett v. State, supra at 716 (3). See also Patterson v. State, 181 Ga. App. 68 (1) (351 SE2d 503) (1986); Lovell v. State, 189 Ga. App. 311, 314 (6) (375 SE2d 658) (1988).

Judgments affirmed.

Banke, P. J., and Beasley, J., concur.