author: Ruffin, Judge.

text:
    A99A2081.
    VANORSDALL v. THE STATE.
    (528 SE2d 312)
   Ruffin, Judge.

Douglas Vanorsdall was convicted of driving under the influence of alcohol to the extent that it was less safe for him to drive. He appeals, challenging the sufficiency of the evidence and asserting numerous errors with respect to the form of the accusation. Because each of his enumerations of error is meritless, we affirm.

1. When a defendant challenges the sufficiency of the evidence on appeal from a criminal conviction, we must view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. On appeal, we do not weigh the evidence or determine the credibility of witnesses but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the offense charged.

Officer G. W. Garrison, the only witness at trial, testified that at about 12:30 a.m. on November 19, 1997, he saw a car traveling at about 50 mph in a 35-mph zone. He stopped the car, which was being driven by Vanorsdall. Garrison approached the car and asked to see Vanorsdall’s driver’s license. Garrison saw two open bottles of beer in the car, one on the passenger side and the other under the driver’s feet. He testified that both bottles were cool to the touch and that it appeared that some beer had been spilled on the carpet on the driver’s side. Garrison smelled alcohol coming from the vehicle and saw that Vanorsdall’s eyes were red and bloodshot.

After Vanorsdall denied that he had been drinking any alcoholic beverages, Garrison asked if he would step out of the car and submit to field sobriety tests. Garrison testified that Vanorsdall was “very defiant and every time I asked him to do something he wanted to know why and he wouldn’t do it right away, but he did agree to do it on his own.” He testified that Vanorsdall’s pupils were dilated, which in his experience was “common among individuals who are on depressants, such as alcohol.” He also testified that he smelled “a moderate odor of alcohol coming from [Vanorsdall’s] breath.” Vanors-dall told Garrison that he had taken an antidepressant pill about six and a half hours earlier.

Vanorsdall agreed to perform a horizontal gaze nystagmus test. Garrison testified that, in this test, an officer looks for six clues that an individual is under the influence. Vanorsdall demonstrated all six clues, including lack of smooth pursuit and an involuntary jerking in both eyes. In Garrison’s opinion, the test indicated that Vanorsdall was under the influence of alcohol.

Garrison also asked Vanorsdall to submit to a “nine-step walk and turn test.” Although Vanorsdall claimed that he had an old knee injury from football, he agreed to submit to the test. Garrison testified that Vanorsdall was unable to keep his balance while standing with his right foot in front of his left and that he was unable to walk in a straight line as directed. According to Garrison, Vanorsdall demonstrated six out of eight possible indicators of alcohol impairment.

Garrison also asked Vanorsdall to touch his index finger to the tip of his nose. Vanorsdall was unable to complete this exercise successfully with either hand. Vanorsdall refused to submit to a one-leg stand test or an alco-sensor test.

Garrison testified that, in his opinion, Vanorsdall was under the influence of alcohol to the extent that he was a less safe driver. He informed Vanorsdall that he was under arrest and tried to place him in the backseat of the police car. It took Garrison several minutes to get Vanorsdall into the car, as Vanorsdall argued that he was not intoxicated. Once Vanorsdall was seated in the police car, Garrison read him the statutory implied consent notice. Garrison asked Van-orsdall to submit to a chemical test of his blood, but Vanorsdall refused to consent.

The evidence was sufficient to support Vanorsdall’s conviction for driving under the influence. Although no blood test was performed, there was ample circumstantial evidence to support Officer Garrison’s opinion that Vanorsdall was under the influence of alcohol. In addition to Vanorsdall’s inability to pass several field sobriety tests, the odor of alcohol on his breath, and his bloodshot eyes and dilated pupils, the fact that he refused to submit to a blood test “is circumstantial evidence of his intoxication.” Although Vanorsdall suggests in his brief that he might have been under the influence of a drug other than alcohol, he failed to present any expert testimony regarding the possible effect of the pill he allegedly took several hours before the arrest. Viewed in the light most favorable to the verdict, the evidence was sufficient to support his conviction.

2. In three separate enumerations, Vanorsdall raises various issues regarding the accusation upon which he was tried. Before addressing these issues, it is necessary to set forth the relevant facts.

On November 20, 1997, the State filed three Uniform Traffic Citations charging Vanorsdall with driving under the influence of alcohol, violating the open container law, and speeding. Vanorsdall filed a waiver of arraignment on each of the charges on December 19, 1997. At the same time, he filed a plethora' of apparently boilerplate motions, including a “Motion to Quash Accusation” which alleged that “[t]he above numbered accusation [no number was given] does not charge this Defendant with any crime.” On January 27,1998, the State filed formal accusations for each of the three charges, containing the same case numbers as the UTCs. The accusation relating to Count 1 (driving under the influence of alcohol), however, contained a typographical error by using the word “her” instead of “him.” In relevant part, the accusation read as follows:

June D. Green, the Solicitor of the City Court of Atlanta . . . does hereby charge and accuse Douglas F. Vanorsdall with the offense of Driving Under the Influence of Alcohol, a misdemeanor, for that the said accused . . . did drive or was in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it is less safe for her to drive. . . .

(Emphasis supplied.)

A jury trial was originally scheduled for May 6, 1998. Before the start of trial, Vanorsdall moved to quash Count 1 of the accusation because of the gender error. He also claimed the accusation was defective because it identified the accused as “Douglas F. Vanorsdall” instead of “Douglas F. Vanorsdall, II.” The trial court denied the motion on both grounds. Vanorsdall then waived his right to a jury trial and stipulated to a bench trial on the charges. At Vanorsdall’s request, the trial court then granted a continuance of the trial.

On July 21, 1998, the State filed an amended accusation with respect to Count 1, correcting the typographical error. The State also added two new counts, numbered 4 and 5. The State served Vanors-dall with these documents on July 20, 1998. Trial was scheduled for September 3, 1998. Before the start of trial, Vanorsdall’s counsel informed the court that he was ready to proceed on the original three counts but said that “[Vanorsdall] didn’t waive his right to a jury trial on any of these charges . . . that were filed in Court July 21st. . . . [W]e would object to the defendant being placed on trial on these charges that were filed in July of this year.”

The prosecutor then pointed out that, with respect to Count 1, the amended accusation was the same count as originally filed but simply corrected the typographical error by changing “her” to “him.” Vanorsdall’s counsel did not raise any further objection to proceeding with Count 1. The Staté agreed to nol pros Counts 4 and 5. The court then said, “We’re going [to] proceed to trial on Counts 1, 2 and 3. Ready to proceed?” Vanorsdall’s counsel replied, Wes, your Honor.”

Following a bench trial, the trial court found Vanorsdall guilty of the DUI and open container charges but acquitted him of speeding. The court merged the open container conviction into the DUI conviction. With respect to Count 1, the trial court entered its disposition and sentence on the back of the amended accusation. The court then wrote “Nol Pros” on the back of the original January 27, 1998 accusation.

(a) In one enumeration of error, Vanorsdall contends that his conviction on Count 1 must be set aside because he “was not arraigned on [the amended] accusation, did not plead guilty to this charge, did not waive his right to a jury charge and was not in fact tried on this accusation.” According to Vanorsdall, he did not agree to proceed to trial on the amended accusation but only agreed to proceed to trial on the accusation as originally filed. This contention is without merit.

We note that the amended accusation did not set forth a new or different charge but simply corrected a typographical error in the original accusation. In Anderson v. State, we questioned whether “correction of what was clearly a typographical error [in an accusation] rises to the level of an amendment.” However, we noted that

even if it could be considered an amendment, such a change would be authorized. “ ‘Prior to trial, the prosecuting attorney may amend the accusation to allege or to change the allegations regarding. any offense arising out of the same conduct of the defendant which gave rise to any offense alleged or attempted to be alleged in the original accusation.’ ”

Vanorsdall cites no authority for the proposition that the mere correction of a typographical error in an accusation requires the State to arraign a defendant a second time before proceeding to trial or entitles a defendant to reassert, on the day of trial, a previously waived demand for jury trial. Indeed, we have previously held that an accusation may be amended to correct a typographical error in the middle of trial.*

Moreover, the record shows that Vanorsdall clearly acquiesced in going forward with a nonjury trial on the amended accusation. After his attorney objected to proceeding to trial on “these charges that were filed in July,” the prosecutor pointed out that the new Count 1 was simply an amendment of the original charge and the two new charges were dropped. Vanorsdall’s attorney did not thereafter indicate that he still objected to proceeding to trial on the amended Count 1 but gave the impression that his concerns were resolved by the elimination of the two new charges. Indeed, when asked if he was ready to proceed with Counts 1, 2, and 3, he simply responded, ‘Yes, your Honor.” It is well settled that “[a] litigant cannot acquiesce in a ruling and then complain of the ruling on appeal.” Accordingly, Vanorsdall cannot now complain that he was denied his right to arraignment or to a jury trial with respect to the amended accusation.

(b) In a separate enumeration of error, Vanorsdall contends that the trial court erred in denying his motion to quash the January 27, 1998 accusation because it used the word “her” instead of “him.” As Vanorsdall sees it, the word “her” is not a typographical error but must have been intended to refer to June D. Green, the solicitor, since she was the only female mentioned in the body of the accusation. Under Vanorsdall’s logic, the accusation thus accused him of driving a vehicle while under the influence of alcohol to the extent that it was less safe for June D. Green to drive. Therefore, Vanorsdall asserts, “the [January 27, 1998] accusation upon which the appellant was tried should have been quashed.”

Vanorsdall’s analysis suffers from a myriad of flaws, including two major ones: (1) his construction of the original January 27, 1998 accusation could not possibly be believed by anyone of common sense; and (2) he was not in fact tried under the January 27, 1998 accusation. Passing over the first flaw, we point out that, as discussed above, the accusation was amended to correct the clear typographical error and restore to Vanorsdall his rightful gender, and it was upon the amended accusation that he was tried and convicted. Thus, any defect in the original accusation was remedied.

Decided January 19, 2000.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

Joseph J. Drolet, Solicitor, Julie A. Kert, Ebony A. Phillips, Assistant Solicitors, for appellee.

(c) As discussed above, after convicting Vanorsdall of DUI, the trial court entered its disposition and sentence on the back of the amended accusation. For an unexplained reason, the court then wrote the words “Nol Pros” on the back of the original, superseded accusation. Vanorsdall contends that his DUI conviction must be set aside “because the charge is contained in Count 1 of the [January 27, 1998] accusation which shows on its face that it was nolle prose-quied.” This contention is without merit, as Vanorsdall was not tried and convicted on the original accusation but on the amended one. The entry of a “nol pros” on the original accusation can be regarded only as superfluous since it had been superseded by the amended accusation.

(d) Finally, Vanorsdall contends that the trial court should have quashed the accusation because it referred to the accused as “Douglas F. Vanorsdall” instead of “Douglas F. Vanorsdall, II,” which he contends is his true legal name. However, “[a] defendant may be indicted properly under a name by which he is generally known and called, whether this be his true name or not.” Vanorsdall does not contend that the accusation did not correctly identify the name by which he is commonly known. Accordingly, the trial court did not err in refusing to quash the accusation.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       He was also found guilty of violating the open container law, but the trial court merged that offense with the DUI conviction.

        House v. State, 236 Ga. App. 405 (512 SE2d 287) (1999).

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

       See Rayburn v. State, 234 Ga. App. 482, 483 (1) (506 SE2d 876) (1998) (conviction for DUI may be based on circumstantial evidence).

        Lucas v. State, 234 Ga. App. 534, 535 (1) (507 SE2d 253) (1998).

       See Scott v. State, 230 Ga. App. 522, 524 (1) (496 SE2d 494) (1998).

       211 Ga. App. 2, 3 (2) (438 SE2d 376) (1993).

       Id.

       Id., quoting Tarver v. State, 198 Ga. App. 634, 635 (402 SE2d 365) (1991).

       See Hansen v. State, 222 Ga. App. 537, 539 (3) (474 SE2d 735) (1996) (defendant who allows attorney to waive right to jury trial cannot revoke waiver in such manner as to delay trial).

       See Anderson, supra; see also Melton v. State, 174 Ga. App. 461 (1) (330 SE2d 398) (1985) (upholding amendment to accusation made after jury selection).

        Kellogg v. State, 233 Ga. App. 817, 818 (505 SE2d 794) (1998).

       See generally Melton, supra (“The defendant was not tried on the original accusation but on the amended one”).

       Indeed, Vanorsdall himself did not include the Roman numerals when signing his appeal bond, and his own attorney referred to him in correspondence as “Douglas Vanorsdall.” Vanorsdall’s driver’s license also does not include any Roman numerals.

       See generally Thompson v. State, 163 Ga. App. 828, 829 (4) (296 SE2d 123) (1982) (holding that it was “inconsequential” that a defendant was indicted under the name “Floyd Thompson” and sentenced under the name “Willie Floyd Thompson”).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2109.
    WEST v. THE STATE.
    (528 SE2d 287)
   Phipps, Judge.

After a jury found Robert West guilty of escape, the trial judge sentenced him to ten years confinement in the state penal system. West appeals, claiming that the length of the sentence is excessive and vindictive. Because the trial judge imposed a sentence within the minimum and maximum sentences prescribed by law and we find no evidence that the judge acted vindictively toward West in determining the length of the sentence, we affirm.

On July 14, 1998, West pled guilty to family violence battery for causing visible bodily harm to Regina Arnold and was sentenced to a six-month term in a Clayton County Work Release Program. The program requires the inmates to work during the day and check into a detention facility at night. West enrolled in the program on July 21, 1998, and complied with the program rules until July 31, 1998, when he failed to return at 4:30 p.m. as scheduled. The Clayton County Sheriff’s Office waited until the morning of August 2, 1998, to obtain a warrant for West’s return.

On July 31, 1998, West left the work release program and went to the house where he previously lived with Regina Arnold. Arnold testified that her relationship with West was over and that he broke into the house. West testified that their relationship was ongoing and that he let himself in with his key. Once inside the house, West went to the bedroom where he saw Arnold and another man. Arnold testified that she was going to call the police, but West ripped the telephone line out of the wall. West then left the house and went walking through the woods, ending up at his mother’s house. West later turned himself in to the Jonesboro Police Department and was transferred to Clayton County where he was presented with a warrant for his arrest and placed back into custody.

Prior to trial, the parties engaged in plea negotiations. After a pretrial conference, the trial judge issued an order providing that West could be sentenced to five years (two years to serve and three years on probation) with certain conditions (including domestic violence counseling and a requirement that West stay away from Arnold) and fines in exchange for a guilty plea prior to placement of the case on a trial calendar.

During sentencing, after the jury found West guilty of escape, the district attorney asked the court to sentence him to six years to serve. No evidence was presented in aggravation or mitigation of punishment. West commented that he thought he was being railroaded and asked if the trial judge owned the Clayton County Work Release Program.

West later filed a motion to modify his ten-year sentence, claiming he had failed to present evidence in mitigation of punishment because he was upset at being found guilty of escape. At the hearing on the motion to modify, West’s cousin testified about his good character. West also testified, apologizing for his behavior at trial, admitting that he made a mistake by not returning to the work release program, and explaining that he had changed as a result of his involvement in a spiritual group at the Clayton County Detention Center. The trial judge accepted West’s apology but refused to reduce his sentence.

West contends that he should not have received the maximum sentence for his crime and that the trial judge retaliated against him for exercising his right to go to trial and for his comments to the judge at sentencing.

West was sentenced under OCGA § 16-10-52 (b), which provides that “[a] person who, having been convicted of a felony or misdemeanor, is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than ten years.” A trial judge fixing a sentence after a guilty verdict must prescribe a sentence for a specific number of months or years that must be within the minimum and maximum prescribed by law as the punishment for the crime. Thus, the trial court was authorized to sentence West for up to ten years based on his prior conviction for battery and the guilty verdict for escape.

The trial judge cannot, however, impose a

sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law merely because the defendant has chosen to require the prosecution to prove the defendant’s guilt at trial rather than to enter a plea of guilty or nolo contendere.

Uniform Superior Court Rule 33.6 does not require the trial judge to sentence the defendant to the same sentence that would have been appropriate if the defendant had pled guilty. “ Tt is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea.’ ”

Decided January 19, 2000.

Richard Genirberg, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Assistant District Attorney, for appellee.

Although the judge did not indicate her reasoning for sentencing West to the maximum penalty for his crime, we are not persuaded that she was motivated to do so merely because West refused to enter a guilty plea. At trial, West offered no evidence that he was not guilty of escape and showed no remorse whatsoever. These factors, along with a concern for Arnold’s safety, may have influenced the judge.

Nor are we persuaded that the sentence was based upon West’s comments to the judge after the verdict was returned. In response to West’s inquiry about the judge’s interest in the work release program, the judge responded that she had heard that rumor before and explained that neither she nor her family had any interest in the Clayton County Jail or the work release program. The judge’s remarks do not indicate that she acted vindictively in sentencing West to the maximum penalty for his crime.

Judgment affirmed.

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

       West was also charged with criminal trespass, but the jury found him not guilty of that crime.

       OCGA § 17-10-1 (a) (1).

       See Pendleton v. State, 184 Ga. App. 358, 360 (4) (361 SE2d 663) (1987).

       Uniform Superior Court Rule 33.6 (B).

        Johnson v. State, 224 Ga. App. 568, 570 (2) (481 SE2d 268) (1997).

       (Citations omitted.) Baldwin v. State, 217 Ga. App. 866, 868 (3) (460 SE2d 80) (1995). Accord Arnold v. State, 228 Ga. App. 470, 473 (1) (491 SE2d 819) (1997); Sparks v. State, 176 Ga. App. 8, 12-13 (3) (335 SE2d 298) (1985).


author: Johnson, Chief Judge.

text:
    A00A0374.
    DEAL v. THE STATE.
    (528 SE2d 289)
   Johnson, Chief Judge.

Stephen Deal was convicted of aggravated sexual battery and child molestation for having inserted his finger into the vagina of the two-year-old victim. He appeals, challenging the sufficiency of the evidence, the admission of similar transaction evidence and the effectiveness of his trial counsel. Because the challenges are without merit, we affirm his convictions.

1. In reviewing the sufficiency of the evidence supporting a criminal conviction, we view the evidence in the light most favorable to the verdict and we no longer presume that the appellant is innocent.* We do not weigh the evidence or determine witness credibility, but instead we determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

The evidence in the instant case shows that Deal was a friend of Chris Bailey, who lived with Tonya Pendley and her two-year-old daughter. Deal spent a lot of time at Pendley and Bailey’s home, and Pendley’s daughter liked Deal, playing with him and calling him her uncle. But in March 1997, Pendley noticed that her daughter began avoiding Deal and crying when he tried to pick her up.

Later that month, after Pendley’s daughter complained that she was hurt, Pendley checked her diaper and noticed that the child’s vaginal area was irritated. When Pendley decided to take the girl to the hospital, Deal tried to discourage her by saying that nothing was wrong with the child, that the doctors at the hospital would laugh at her and that she could not afford to take her daughter to the hospital.

Nevertheless, Pendley took her daughter to the hospital, where she was examined by Dr. James Rimer. Dr. Rimer discovered that the opening of the child’s vagina had a slight tear and was red. He concluded that both the tear and redness were consistent with a finger having been inserted into the vagina.

Sheriff’s Detective Jackie Williams questioned Deal about the child’s injuries. Deal denied having had any contact with the child’s vaginal area, and he agreed to take a polygraph examination, stipulating that the polygraph results would be admissible at a trial on the matter.

During the polygraph examination, Deal was asked if he had put his finger or anything else into the child’s vagina. Deal answered that he had not put anything inside her vagina. The polygraph results showed that Deal’s denials of having inserted anything into the child’s vagina were deceptive. When the polygraph examiner later asked Deal why his responses showed deception, Deal explained that he had been reluctant to tell the true story that his finger had accidentally slipped into the victim’s vagina because he had been “blamed for it before in Tennessee.” Deal then signed a written statement claiming that Pendley was giving her daughter a bath, that the child got out of the tub and ran down a hallway, that Pend-ley asked him to stop the child, that he then picked the girl up and when he did so his finger accidentally slid into her vagina. Both Pendley and Bailey said that this incident described by Deal never occurred.

Detective Williams and another detective interviewed Deal after his failed polygraph and subsequent statement that he had accidentally touched the child. During that interview, Deal changed his story about the accidental touching of the victim and signed a statement admitting that he had put his finger inside the victim’s vagina intentionally and that he needs help because he is attracted to young children.

Deal also allegedly committed two similar molestations. Johnny Welch testified that in 1992 Deal was babysitting Welch’s three-year-old son when, while giving the boy a bath, Deal put his penis inside the boy’s anus. And Robert Firsdon testified that in 1993 Deal was babysitting his seven-year-old daughter when he gave her a bath and then rubbed lotion on her and touched her vagina.

A person commits the offense of child molestation when he does any immoral or indecent act to, with or in the presence of a child under the age of 16 years with the intent to arouse or satisfy his own or the child’s sexual desires. And a person commits the offense of aggravated sexual battery when he intentionally uses a foreign object to penetrate the sexual organ or anus of another person without that person’s consent. Based on the evidence presented at Deal’s trial, we conclude that a rational trier of fact could have found beyond a reasonable doubt that Deal is guilty of child molestation and aggravated sexual battery because he inserted his finger into the child victim’s vagina. Deal’s claim that there is insufficient evidence to support the convictions is therefore without merit.

2. Deal complains that the court erred in allowing the fathers of the two similar transaction victims to give hearsay testimony about the victims’ statements that Deal had molested them. Deal’s complaint is meritless because this sort of hearsay testimony, describing a child’s statement about sexual abuse, is admissible similar transaction evidence under OCGA § 24-3-16, the child hearsay statute.

3. Deal contends that his trial attorney was ineffective because he did not subpoena Deal’s work records to show that Deal was working at the time of the charged molestation, he did not object that Deal’s character was improperly placed in issue by his own written statement that he had been “blamed for it before in Tennessee” and he did not ask the judge to charge the jury on the limited purpose of the similar transaction evidence at the time the evidence was admitted.

To prevail on a claim of ineffective assistance of counsel, the defendant must show two things: (1) that counsel’s performance was deficient and (2) that the deficiency prejudiced the defense to the extent that there is a reasonable probability that but for the deficiency the result of the proceeding would have been different. In this case, Deal has shown neither a deficiency nor prejudice.

As to Deal’s claim that counsel ineffectively failed to subpoena his work records, the purported documents are not part of the record, so it is impossible for us to determine if such documents in fact exist, let alone if they actually would have helped his defense. Moreover, his trial attorney testified at the motion for new trial hearing that Deal never asked him to subpoena his work records. Under these circumstances, Deal has not shown that the failure to subpoena the records was deficient or, even if it were deficient, that it prejudiced his defense.

Deal’s claim that his attorney was ineffective because he did not raise a character objection to part of Deal’s written statement is likewise without merit. In the statement, Deal indicated that he had been afraid to tell the truth during the polygraph because he had been “blamed for it before in Tennessee.” As the trial court correctly noted, this statement is ambiguous and does not clearly refer to a prior molestation by Deal. Furthermore, even if the statement can be read to refer to a prior molestation charge and thereby place Deal’s character in issue, the trial transcript reveals that Deal’s counsel vigorously objected to admission of the statement on the ground that its prejudice outweighed its relevance. Counsel’s decisions on which motions and objections to make are matters of trial strategy and tactics that are within the lawyer’s exclusive province and that do not amount to ineffective assistance of counsel.

Additionally, counsel’s decision not to request a contemporaneous limiting jury instruction regarding the similar transaction evidence was a matter of trial tactics and strategy that does not provide a ground for reversal. Moreover, the court did give a complete and accurate limiting charge on similar transactions during its final jury instructions. Thus, Deal has shown no prejudice arising from counsel’s decision.*

Because Deal has not shown either a deficiency by trial counsel or any prejudice from counsel’s performance, the trial court correctly denied Deal’s motion for a new trial on the ground of ineffective assistance of counsel.

Decided January 19, 2000.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        House v. State, 236 Ga. App. 405 (512 SE2d 287) (1999).

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

       OCGA § 16-6-4 (a).

       OCGA § 16-6-22.2 (b).

       See Hendrix v. State, 230 Ga. App. 604, 607 (5) (497 SE2d 236) (1998); Ryan v. State, 226 Ga. App. 180 (1) (486 SE2d 397) (1997); Burke v. State, 208 Ga. App. 446-447 (1) (430 SE2d 816) (1993).

        Guest v. State, 216 Ga. App. 457, 458-459 (3) (454 SE2d 622) (1995).

        Esquivel v. State, 236 Ga. App. 325 (512 SE2d 61) (1999).

       See Hearst v. State, 212 Ga. App. 492, 495 (2) (b) (2) (441 SE2d 914) (1994); Gant v. State, 197 Ga. App. 351, 352 (2) (398 SE2d 301) (1990).

       See Rivers v. State, 271 Ga. 115, 118 (2) (b) (516 SE2d 525) (1999); Esquivel, supra at 326.

       See Champion v. State, 238 Ga. App. 48, 49 (1) (b) (517 SE2d 595) (1999).

       See id.


author: Eldridge, Judge.

text:
    A00A0396.
    BOYLE v. THE STATE.
    (528 SE2d 303)
   Eldridge, Judge.

A Fulton County jury found Chris Boyle guilty of aggravated assault for pulling a handgun on Charles Andrews outside the Ashby Street MARTA station and ordering Andrews to “give it up.” Boyle appeals, raising two errors of law which allegedly require reversal. Having reviewed them both, we affirm Boyle’s conviction.

1. Boyle first claims that the trial court erred in granting the State’s motion to strike for cause prospective juror no. 20, Deborah Ann Vanzile. We find no error.

Prior to individual voir dire, the trial court asked the panel several general questions, including: “Have any of you had such a negative or bad experience with law enforcement that you would have a difficult time sitting and being fair and impartial jurors where law enforcement witnesses might be involved?” Prospective juror Vanzile raised her hand in response to the trial court’s question. Later, during individual voir dire, the following colloquy occurred:

[State:] Do you think that [unfortunate encounter with law enforcement] would in any way work as a block to you listening to officers’ testimony in this case and weighing their testimony just as any other witness?
[Vanzile:] Probably, yeah.
[State:] It probably would?
[Vanzile:] Yeah.
[State:] So you do not think you could be fair and impartial to the state in this case?
[Vanzile:] Not if it involves police officers. . . .
[Defense:] You don’t feel like you could put your incident outside and kind of leave it outside the courtroom and listen to the evidence in this case and render a fair and impartial verdict?
[Vanzile:] In all honesty, probably not. .

At the conclusion of voir dire, the State moved to strike Vanzile for cause. The trial court brought her back in for more questioning:

[Trial court:] All right. Now, if, you know, I give you a charge, which I will, that you are to put aside all of that, other things and just consider your — put aside your own experience and consider the evidence in this case and look at this case, you know, straight on, so to speak, the question is, then, can you be fair and impartial?
[Vanzile:] I think I could try, but I think that there would always be in the back of my mind going through my thoughts that, well, if I wasn’t treated fairly, how could I expect somebody else to be treated fairly by the police officer, a cop. I mean, just the whole situation just made me look at the law enforcement officers in a completely different way from what I didn’t have a problem with them. To me just feeling very scared and very intimidated and very frustrated over the whole thing, and, I mean, I can look at somebody and try and say, yes. I am going to try and be impartial, but, I mean, if the thought is always there in the back of my mind, and it is not something that I can get rid of too easily, I don’t see how I can be fair with somebody else.

(Emphasis supplied.) The trial court granted the State’s motion to strike Vanzile for cause.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Kirkland v. State, 271 Ga. 217, 219 (518 SE2d 687) (1999).

In order to disqualify a prospective juror for cause on the basis that she could not fairly and impartially judge the case, the opinion must be so fixed and definite that it would not be changed by the evidence or the charge of the court during the trial of the case.

Menefee v. State, 270 Ga. 540, 542 (512 SE2d 275) (1999). “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Kirkland v. State, supra at 219. Under this legal standard, the evidence was clearly sufficient to support the trial court’s credibility determination that Vanzile could not decide the case impartially. Id.

Further, contrary to Boyle’s contentions, the fact that Vanzile used the word “try” during the course of voir dire does not necessarily rehabilitate her, and the Supreme Court of Georgia’s decision in Garland v. State, 263 Ga. 495, 496 (1) (435 SE2d 431) (1993), does not stand for that proposition. On appeal, the question is whether evidence supports the trial court’s determination. In Garland, a juror’s repeated assertions that she would “try” to decide the case based on the evidence supported the trial court’s credibility decision to deny a motion to strike for cause. Here, however, the fact that Vanzile stated “I think I could try, but. . .” does not require the trial court to ignore the numerous times Vanzile affirmatively stated she could not decide the case impartially and does not make the trial court’s credibility decision to strike Vanzile error.

2. During opening statement, defense counsel stated to the jury that “you will hear” who the defendant is; what he does for a living; where he lives; what his salary is; whom he supports financially; what he wears; when he worked; how he spent the first part of the day in question; what he ate; what he watched on television; where he went in the evening; why he was at the Ashby Street MARTA station; how he got there; which way he went; whom he was going to see; and that Boyle was picked up a block from the MARTA station in a case of mistaken identity, because “Mr. Boyle was not the man who pulled a gun on Mr. Andrews.”

After the State rested its case-in-chief, Boyle took the stand on his own behalf and testified as defense counsel had outlined in opening. However, he also testified that while at the Ashby Street station, he saw Andrews being robbed by the real perpetrator: “I never fully made it to go all the way up to the back of the station because after I came up to the steps and reached the platform, that’s when I seen Mr. Andrews and the man who was robbing him, you know,'5'upon each other.”

In closing argument, the State commented on defense counsel’s failure to include this last detail in her opening statement; the State raised the inference that defense counsel’s omission was due to the fact that Boyle improvised his testimony as he went along:

[State:] But what didn’t Ms. Blitz tell you in her opening statement? She didn’t tell you that he walked up those stairs and that he walked right past an armed robbery and that he walked right past an armed robbery taking place. . . . Could it be that nobody knew except this defendant what was going to come out of his mouth?

Defense counsel moved for mistrial and now claims error in the trial court’s denial of the motion. But we find no error.

Counsel should have ample latitude to argue what has transpired in a case from its inception to its conclusion, and the conduct of the party or his counsel with respect to the case is the subject of legitimate comment, and the range of such comment is necessarily in the discretion of the trial judge; and unless it can be shown that such discretion has been abused and some positive injury done by the remarks of counsel, the discretion of the trial judge will not be controlled.

Decided January 19, 2000

Anna Blitz, for appellant.

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

(Citations and punctuation omitted; emphasis supplied.) Findlay v. Griffin, 225 Ga. App. 475, 477 (5) (484 SE2d 80) (1997).

In this case, the fact that Boyle claimed to have actually witnessed the armed robbery in question was a rather large, important detail to omit from an opening statement that appeared to include even the smallest detail of what the jury “would hear” during the defense case. As such, comment on its omission was legitimate, as was the inference that defense counsel’s omission was due to the fabricated nature of Boyle’s testimony. “We cannot say that the trial court abused its discretion in allowing the comments objected to by [Boyle].” Findlay v. Griffin, supra at 477.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A99A1206.
    BURNS v. THE STATE.
    (528 SE2d 547)
   McMurray, Presiding Judge.

This case is again before this Court because, after granting certi-orari, the Supreme Court of Georgia by order of November 19, 1999, remanded the case for application of its later decision in Fleming v. State, 271 Ga. 587 (523 SE2d 315). In Fleming, the Supreme Court held that prior to the 1998 amendments to OCGA § 17-10-6.1 and the First Offender Act, OCGA § 42-8-60 et seq., a defendant found guilty of a serious violent felony under OCGA § 17-10-6.1 was not barred from requesting and obtaining first offender treatment. Id. Accordingly, upon application of such holding, Division 2 of the prior judgment of this Court in the case sub judice is vacated as to sentence, and the judgment of the superior court as to sentence is vacated. The case is remanded with direction that the superior court consider defendant’s first offender petition and resentence him thereunder, if appropriate, see, e.g., Stinnett v. State, 214 Ga. App. 224 (447 SE2d 165) (first offender treatment discretionary in trial court), or resen-tence him to the mandatory minimum sentence as convicted of a serious violent felony under OCGA § 17-10-6.1.

Decided January 20, 2000.

Jackson & Schiavone, Michael G. Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

Judgment vacated as to sentence and case remanded with direction.

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

        Burns v. State, 239 Ga. App. 532, 535-536 (2) (521 SE2d 217).


author: Pope, Presiding Judge.

text:
    A99A1824.
    BRANDON v. THE STATE.
    (528 SE2d 809)
   Pope, Presiding Judge.

Charles Brandon appeals his conviction and sentence for burglary, theft by taking and entering an automobile with intent to commit theft or a felony. In addition to raising the general grounds, he asserts the trial court erred by giving two improper jury charges, and he claims ineffective assistance of counsel.

Construed in favor of the verdict, the evidence shows that at about 2:20 a.m., Officer Joseph Pobalis of the Richmond County Sheriff’s Department was dispatched to check out strange noises coming from a landfill. Shortly after entering one gate of the landfill, Pobalis saw a truck crash through a second gate and come toward him. Pobalis got a good look at the driver’s face from a distance of about ten feet. Dragging behind the truck on a chain was a large safe. After the truck passed, Pobalis saw a second man on the property near the landfill buildings, and he began chasing him on foot through the landfill onto neighboring private property where he saw the man attempt to hide underneath a car. Pobalis never lost sight of the man, and he apprehended him beside the car. The man Pobalis captured was Charles Brandon, the defendant. Brandon was muddy, acting nervous and out of breath.

Sergeant Billy Hambrick also responded to the call. He saw a car parked on the side of the road near the landfill, and he waited by the car. A shirtless man approached on foot. He was sweaty, muddy and out of breath, and he said that the car was his and that it was broken down. Because Hambrick had heard Pobalis report that men had run from the scene, he took the man, who gave his name as James Tolver, into custody. A radio belonging to the landfill was found in this car. Shortly thereafter, the man identified as Tolver escaped. Tolver, Brandon’s co-defendant, was arrested on a warrant six weeks later. At trial, Pobalis identified Tolver as the man driving the truck.

Investigator Jerry Howell and the director of the landfill testified that the landfill offices and vehicles had been ransacked and burglarized. A truck with a chain and safe attached was found resting against a light pole. Various items belonging to the landfill office were found moved from their usual location. But Howell could not get fingerprints from the vehicles and other items at the scene because of the rain.

1. Both Brandon and Tolver testified that they were not at the landfill that night, and they denied all charges. Brandon claimed that he was hiding next to a car because he had been visiting a lady friend in a nearby trailer and he thought the woman’s husband was coming home. But Brandon was chased from the scene of the burglary, and Pobalis caught him without ever losing sight of him. It was rainy and dark, Pobalis did not see the runner’s face, and at one point Pobalis thought two men may have been running ahead of him. But whether Brandon was the man Pobalis chased was a question of fact for the jury.

Next, it is true that mere presence at the scene of a crime is insufficient to support a conviction. Walsh v. State, 269 Ga. 427, 429 (1) (499 SE2d 332) (1998). But, “[t]he fact that a suspect flees the scene of a crime points to the question of guilt in a circumstantial manner.” Renner v. State, 260 Ga. 515, 517 (3) (b) (397 SE2d 683) (1990). And, “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citations and punctuation omitted.) Cummings v. State, 227 Ga. App. 564, 566 (489 SE2d 370) (1997).

Here, no one was authorized to be on the landfill property at that hour of the night. Brandon was seen trespassing on the burglarized property at 2:20 a.m. in the immediate vicinity of the burglary while it was taking place. He was nearby when the truck dragging the safe passed, and he fled the scene at the first sight of an officer. The evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to convict Brandon. See, e.g., Scott v. State, 238 Ga. App. 258, 259-260 (1) (518 SE2d 468) (1999); Oakes v. State, 233 Ga. App. 684, 685-686 (1) (505 SE2d 33) (1998); Stokes v. State, 232 Ga. App. 232, 233 (1) (501 SE2d 599) (1998).

2. Brandon contends the following charge to the jury was improper: “I charge you that juries are not bound to believe testimony as to facts incredible, impossible or inherently improbable.” He contends the charge is an improper statement of the law and that it constitutes an improper comment on the evidence. Resolution of the first question decides the case.

The statement was a correct, although incomplete, statement of the law. Patton v. State, 117 Ga. 230, hn. 5 (43 SE 533) (1903). But we must determine whether it was appropriate to give in this case. In Patton, the case, establishing the rule, the Supreme Court held:

Courts and juries are not bound to believe testimony as to facts incredible, impossible, or inherently improbable. Great physical laws of the universe are witnesses in each case, which cannot be impeached by man, even though speaking under the san ction of an oath.

Id. The high court explained that when testing the sufficiency of the evidence, an appellate court cannot consider the credibility of witnesses, except that the court may hold that a witness’s testimony is to be accorded no value under this circumstance, i.e., when it is not “in accord with natural laws, or is improbable, incredible, or seeks to establish facts which are impossible, or which, if not impossible, must in their very nature be uncertain, vague, indefinite, and insufficient to remove reasonable doubts.” Id. at 234. The court characterized the exception as applying when the testimony is contrary to the “great physical laws of the universe.” Id. at 235. In Patton, the court applied the rule to nullify the testimony of a witness who claimed the ability to recognize a voice from fifty to seventy-five yards away, when only three words were spoken, and when the witness had so little experience with the voice that he had no grounds for claiming to be able to identify it. Id. at 236-237.

We have held that this exception applies in only “extraordinary cases,” Central of Ga. R. Co. v. Summers, 34 Ga. App. 340, 343-344 (2) (129 SE 659) (1925), and only for statements “which run contrary to natural law and the universal experience of mankind.” Webb v. State, 82 Ga. App. 543, 545 (61 SE2d 542) (1950). When there is nothing inherently impossible, incredible, or even improbable, the rule does not apply. Booker v. State, 50 Ga. App. 66, 68 (176 SE 917) (1934).

It is error to give a charge on this proposition of law when it is not warranted by the evidence. Dixie-Ohio Express v. Brackett, 106 Ga. App. 862, 872-874 (7) (128 SE2d 642) (1962); cf. Southern R. Co. v. Smalley, 116 Ga. App. 356, 358-359 (4) (157 SE2d 530) (1967) (not error to refuse to give the charge where not warranted). In such a case, the charge can mislead the jury into believing that there was incredible, impossible, or inherently improbable testimony or that they would be authorized to find that there was. Brackett, 106 Ga. App. at 874. The charge tends to discredit a witness’s testimony in the eyes of the jurors and can “confuse the jury as to the real issues.” Id.

Decided January 20, 2000.

Peter D. Johnson, for appellant.

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

In this case, there was nothing about Brandon’s alibi that ran contrary to the “great physical laws of the universe.” His story may have been improbable, but it was not impossible. And, it could very well have been true. It could also be true that Pobalis did lose sight of Brandon in the dark and rain and that Brandon was not the right man. These questions should have been presented to the jury without this inapplicable charge. See also Thornton v. State, 161 Ga. App. 296, 299 (287 SE2d 749) (1982) (Deen, P. J., concurring specially) (distinguishing two types of “incredible, impossible, or inherently improbable evidence”).

For these same reasons we cannot say the error was harmless. Brandon’s alibi was his sole defense, and the erroneous charge discredited his testimony.

3. Brandon also challenges the following jury instruction: ‘You will determine both the law and the facts in this case.” This issue is addressed in Dasher v. State, 229 Ga. App. 41, 44 (3) (494 SE2d 192) (1997). There we held,

The Georgia Constitution states: “[T]he jury shall be the judges of the law and the facts.” Ga. Const, of 1983, Art. I, Sec. I, Par. XI (a). A previous edition of the Pattern Jury Instructions included a charge: ‘You will determine both the law and the facts.” This instruction was replaced by a more accurate and complete instruction in January 1996. . . . The better practice would be to limit the instruction to the new pattern charge.

Because the case must be retried, the claim that there was ineffective assistance of counsel is moot.

Judgment reversed.

Smith and Miller, JJ, concur.


text:
    A99A1966.
    POLKE v. THE STATE.
    (528 SE2d 537)
   Ruffin, Judge.

Alva Lee Polke was convicted of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of a housing project. He appeals, contending that the evidence was insufficient to support the verdict and that the trial court erred in denying his motion to suppress. For reasons discussed below, we affirm.

1. On appeal of a criminal conviction, we view the evidence in the light most favorable to support the verdict, and the defendant is no longer entitled to a presumption of innocence. We do not weigh the evidence or determine the credibility of witnesses but simply determine whether the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of the offenses charged.

In late March 1998, the Vidalia police received several anonymous telephone calls stating that Polke was selling drugs from a residence in a housing complex. The police investigated Polke and placed him under surveillance. During the investigation, the police learned that Polke’s driver’s license had been suspended.

On April 9, 1998, Officers Billy Young and Clint Kennedy saw Polke and another man walking down the street. A few minutes later, they observed Polke and the other man get into a car and drive off, with Polke driving. Because they knew that Polke’s driver’s license had been suspended, they radioed another officer, James Metts, and asked him to stop Polke’s car. Metts stopped the car as it pulled into a parking lot. Polke admitted that his driver’s license was suspended, and Metts placed him under arrest for driving with a suspended license. Another officer on the scene searched Polke and found $1,500 in cash in Polke’s pocket. Officers Young and Kennedy arrived at the scene while Polke was being searched. They searched the vehicle and found a clear plastic container in a pocket of the passenger door. Inside the container were ten pieces of crack cocaine, which Officer Young described as “twenty-dollar rocks.” Young, who was tendered as an expert in the field of narcotics investigation, testified that the number and size of the pieces indicated that they were intended for distribution, and not for personal use.

Polke’s passenger, Paul Jones, testified that when they were stopped by the police, Polke pulled the plastic container “from somewhere in his midsection” and handed it to Jones, telling him to “hold this.” Jones said that he did not know what was in the container and that he placed the container into the passenger door compartment. Jones denied that the cocaine found in the container was his.

Polke testified at trial and claimed that the drugs belonged to Jones. He denied handing the container to Jones and claimed that he did not know Jones had the container. He said that he did not see any drugs until the police discovered them during the search of the vehicle. Polke claimed that the reason he had $1,500 in cash in his pocket was that he had won the lottery the day before.

On appeal, Polke argues that Jones’ testimony is not credible and that “it appears clear that [Polke] did not pass anything to [Jones] and [Jones] had equal access to the drugs.” However, questions of witness credibility are for the jury to resolve, and the jury apparently found Jones’ testimony more credible than Polke’s. The evidence was thus sufficient for the jury to conclude that the cocaine belonged to Polke. Although Polke does not raise the issue on appeal, the evidence was also sufficient to show that the cocaine was intended for distribution.

2. Polke also contends that the trial court erred in denying his motion to suppress evidence resulting from the traffic stop. This contention is without merit.

Polke argues that the anonymous tips received by the police did not provide a reasonable basis for making an investigatory stop of the vehicle. However, the police did not stop the car because of the anonymous tips, but because Polke was committing a traffic offense by driving with a suspended license. Police officers are authorized to arrest a defendant for commission of a traffic offense in their presence. The fact that

at the time of the stop, the officers may have had a suspicion, short of probable cause, that the vehicle would contain contraband does not demand a finding that the stop was pretextual. A rule requiring a law enforcement officer to forego making a traffic stop which he would otherwise be authorized to make merely because he suspects that the vehicle might be engaged in the transport of illicit drugs would have little to commend it, and we have previously declined the invitation to create such a rule.

Accordingly, the trial court did not err in determining that the police properly stopped Polke and arrested him for driving with a suspended license.

OCGA § 17-5-1 authorizes an officer, after making a lawful arrest, to search the defendant’s person and the area within his immediate presence for the purpose of protecting the officer from attack, preventing the defendant from escaping, or discovering or seizing the fruits of the crime or any articles used in the commission of the crime. We have previously held that this section authorizes an officer to search the defendant’s automobile following an arrest for driving without a license. In such a situation, “the authority to search extends to the entire passenger compartment of the automobile and any closed containers therein.” The officers were thus authorized to search the vehicle incident to Polke’s arrest. The fact that the officers might have expected to find contraband did not lessen their authority to search. As the U. S. Supreme Court has held,

[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. ... [A] search incident to the arrest requires no additional justification. . . . Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the [defendant] or that he did not himself suspect that [defendant] was armed.

Polke’s reliance on Knowles v. Iowa is misplaced. In that case, the U. S. Supreme Court held that the rationale for a search incident to arrest does not apply where an officer does not make a custodial arrest but simply issues a citation for a traffic offense. However, the Court reaffirmed that

Decided January 20, 2000.

Kathy S. Palmer, for appellant.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellee.

the authority to conduct a full field search as incident to an arrest [is] a “bright-line rule,” which [is] based on the concern for officer safety and destruction or loss of evidence, but which [does] not depend in every case upon the existence of either concern.

In this case, the officers did effect a custodial arrest of Polke, thus authorizing a search incident to arrest.

Finally, Polke argues that the police had no need to impound the vehicle and conduct an inventory search because Jones, the passenger, could have driven the vehicle away. This argument is without merit because the search was not conducted as an inventory search, but as a search incident to a lawful arrest. Thus, it is irrelevant that someone else may have been available to drive the vehicle away. In any event, the car did not belong to Polke, but to his girlfriend, and there is no indication that she had authorized Jones to drive her car.

For the reasons discussed above, the trial court did not err in denying Polke’s motion to suppress.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Wilhelm v. State, 237 Ga. App. 682 (516 SE2d 545) (1998); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Patrick v. State, 219 Ga. App. 888, 891 (2) (467 SE2d 211) (1996).

       See Lindley v. State, 225 Ga. App. 338, 339-340 (1) (484 SE2d 33) (1997); Kinney v. State, 199 Ga. App. 354 (1) (405 SE2d 98) (1991) (substantial quantity of contraband, seven rocks of cocaine, was evidence of intent to distribute); Hayes v. State, 203 Ga. App. 409, 410 (417 SE2d 45) (1992) (quantity of cocaine possessed, seven rocks, illustrates intent to distribute); Bacon v. State, 225 Ga. App. 326-327 (483 SE2d 894) (1997).

        Ridgeway v. State, 205 Ga. App. 218 (422 SE2d 4) (1992).

       (Citations and punctuation omitted.) Id. at 219.

        Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999).

       (Punctuation omitted.) Id. See also Bagwell v. State, 214 Ga. App. 15, 17 (446 SE2d 739) (1994) (defendant arrested for driving with suspended license; authority to search incident to arrest extends to passenger compartment and closed containers found therein); Stanley v. State, 191 Ga. App. 603, 604 (2) (382 SE2d 686) (1989) (search of passenger compartment of car authorized where defendant arrested for DUI).

       (Footnote omitted.) United States v. Robinson, 414 U. S. 218, 235-236 (94 SC 467, 38 LE2d 427) (1973). See also Whren v. United States, 517 U. S. 806, 812 (116 SC 1769, 135 LE2d 89) (1996) (rejecting contention that “an officer’s motive invalidates objectively justifiable behavior under the Fourth Amendment”).

       525 U. S. 113 (119 SC 484, 142 LE2d 492) (1998).

       Id., 119 SC at 487-488.

       Id. at 488.

       See Stanley, supra.


text:
    A99A2397.
    KING v. THE STATE.
    (528 SE2d 535)
   Johnson, Chief Judge.

A jury found Billy King guilty of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. The trial court entered judgments of conviction on each of the verdicts and denied King’s motion for a new trial.

King challenges the aggravated assault conviction, arguing that it merged into the armed robbery conviction. He also claims that the trial court gave an erroneous instruction on aggravated assault and erred in denying his motion for new trial based on ineffective assistance of counsel. We agree that the aggravated assault conviction merged into the armed robbery conviction and must be vacated because the aggravated assault was used to effectuate the robbery. We do not agree with Ring’s claim that the legal assistance he received at trial was deficient or that, but for trial counsel’s alleged errors, the outcome of the trial would have been different. Therefore, we affirm his convictions of armed robbery and possession of a firearm during the commission of a felony.

1. King correctly contends that the trial court erred in not merging his aggravated assault conviction into his armed robbery conviction. As acknowledged by the state, the aggravated assault conviction merged as a matter of fact into the armed robbery conviction.

The evidence, construed so as to support the verdicts, shows that King entered a liquor store, pointed a gun at the clerk’s face, and told him to open the cash register. The clerk replied: ‘You must be kidding.” King turned and fired a shot into the wall approximately four to five feet from where the clerk was sitting. The clerk then opened the cash register. King reached into the drawer, removed cash, and ran out of the store.

The only violence employed against the victim in this case was that which was used to effectuate the theft. Because the violence preceded the theft and was the means by which King secured the victim’s compliance with his demand, the aggravated assault conviction merged with the armed robbery conviction. See Jordan v. State, 218 Ga. App. 679, 680 (2) (462 SE2d 801) (1995); Smith v. State, 193 Ga. App. 208, 209 (1) (387 SE2d 419) (1989); Moreland v. State, 183 Ga. App. 113, 114-115 (1) (358 SE2d 276) (1987). Therefore, the aggravated assault conviction is vacated. Smith, supra.

2. Based on our holding in Division 1, King’s claim of error regarding the trial court’s instruction on aggravated assault is rendered moot.

3. King claims his trial counsel provided ineffective assistánce because he failed to make an opening statement or a closing argument and failed to object to hearsay testimony from police officers. This claim presents no grounds for reversal.

In order to establish ineffectiveness of trial counsel, King must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. See Smith v. State, 234 Ga. App. 586, 588 (1) (506 SE2d 406) (1998). There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. Id. Matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel. Id. at 589 (1) (a); Berry v. State, 267 Ga. 476, 482 (4) (i) (480 SE2d 32) (1997).

Decided January 20, 2000.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

(a) Trial counsel’s decision to waive opening statement is considered a matter of trial strategy and does not amount to ineffective assistance. Tenant v. State, 218 Ga. App. 620, 622 (4) (a) (462 SE2d 783) (1995).

(b) Contrary to King’s contention, trial counsel did make a closing argument, and it is a part of the transcript. That another attorney might have argued the case differently does not show ineffectiveness. See generally Ranalli v. State, 197 Ga. App. 360, 365 (5) (398 SE2d 420) (1990). We find no reasonable probability that the outcome of the trial would have been different if trial counsel had made a different closing argument. See generally McCord v. State, 268 Ga. 842, 845 (8) (493 SE2d 129) (1997).

(c) As for King’s claim of error regarding trial counsel’s alleged failure to object to testimony of police officers, it is not supported by any argument or citation to authority. It is therefore deemed abandoned. See Court of Appeals Rule 27 (c); Parker v. State, 220 Ga. App. 303, 310 (6) (469 SE2d 410) (1996).

(d) In sum, King was not entitled to a new trial on the basis of ineffective assistance of counsel. See Smith, 234 Ga. App. at 589 (1) (b).

4. For the foregoing reasons, King’s convictions and sentences for armed robbery and possession of a firearm during the commission of a felony are affirmed, while his conviction and sentence for aggravated assault are vacated.

Judgments of conviction affirmed as to armed robbery and possession of a firearm during the commission of a felony. Judgment of conviction vacated as to aggravated assault.

McMurray, P. J., and Phipps, J., concur.


text:
    A99A2402.
    ELY v. THE STATE.
    (528 SE2d 532)
   Phipps, Judge.

Curtis E. Ely and his wife were jointly indicted and convicted of the manufacture and possession of marijuana. On appeal, Ely chai-lenges the sufficiency of the evidence to support the verdict, claiming the State’s circumstantial evidence fails to exclude every reasonable hypothesis except his guilt. Viewed in the light most favorable to the prosecution, we find the evidence was sufficient for a rational trier of fact to find guilt beyond a reasonable doubt and affirm Ely’s conviction.

Barry Burkhalter informed his nephew, Tim Burkhalter, an officer with the Floyd County Sheriff’s Department, that he believed marijuana plants were growing on his property. Officer Burkhalter, with Investigators Bob Couey and Mike Tison, went to the property to locate the marijuana. After walking around the property for an hour, they located two buckets containing marijuana plants on the other side of a- barbed wire fence. One of the plants was in a white five-gallon bucket, and the other was in a black plastic planting pot. Two dogs were tied in the vicinity of the plants and barked as the men approached. Looking over the fencé, the officers were able to see the mobile home on the other side where Ely lived with his wife and his 18-year-old son.

To reach the marijuana plants, the officers drove around to Doyle Road, near Ely’s mobile home. They knocked on both doors of the Ely residence and determined that no one was home. They noticed several black plastic planting pots stacked outside of the mobile home. Officer Burkhalter then climbed a dirt bank behind the residence, followed a small trail past the barking and growling dogs, and picked up the two marijuana plants. Investigator Couey left his business card on Ely’s front door with a message notifying them that he had recovered marijuana plants and asking them to contact him.

When Ely came in to talk to Investigator Couey, he denied any knowledge of the marijuana plants. Ely admitted that the dogs were his, that they were vicious, and that they were tied on the same property where the marijuana was located but denied that it was his property.

Investigator Couey testified that there were several trails coming from behind Ely’s home that went in different directions into the area where the dogs and plants were located. He also testified that the whole area was beaten down where the dogs were allowed to run but grown up on either side of the dogs and the plants. He never determined who owned the property where the dogs and the marijuana were located but believed the dogs were placed there to guard the marijuana plants and notify the residents of Ely’s home if someone was behind the house.

Investigator Couey testified that he could see the plants from the back of Ely’s mobile home and estimated that they were found approximately 20-25 yards from the back porch. To get to the plants from Burkhalter’s house, someone would have to climb over a barbed wire fence and walk through a briar patch.

Ely testified that he kept his dogs on Barry Burkhalter’s property with Burkhalter’s permission. He denied ever seeing marijuana growing in that area and denied that he had ever seen marijuana growing except in books. Ely explained that the black plastic gardening buckets came from his brother-in-law, a landscaper. Ely’s wife sold the buckets at yard sales. Ely testified that his son fed the dogs most of the time and that they used a five-gallon bucket to water them.

“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.” Questions regarding the reasonableness of hypotheses are generally decided by the jury hearing the evidence, and a finding that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except guilt will be upheld unless the guilty verdict is insupportable as a matter of law.

Ely contends the State failed to establish a sufficient connection between him and the marijuana plants.

“[T]he ‘beaten path’ doctrine . . . allows connection of contraband found in close vicinity to a house so as to authorize rational jurors to conclude beyond [a] reasonable doubt that the primary resident of that house owned or had control over the contraband. (Cits.)” [Cit.]

The fact that the contraband is found on property adjacent to the defendant’s property will not preclude a conviction for possession of the contraband. Given the proximity of the plants to Ely’s residence and the placement of the vicious dogs, the jury was authorized to conclude that Ely owned or had control over the marijuana plants.

Ely contends that his son, Burkhalter, and others had equal access to the marijuana plants and equal opportunity to commit the crime. Under the equal access rule, finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it is affirmatively shown that persons other than the defendant had equal access or opportunity to commit the crime. But the equal access rule applies only if persons other than the defendant and members of his immediate household had equal opportunity to commit the crime. Other than Ely and his wife, Ely’s son, a member of his immediate household, was the only person shown to have equal access to the marijuana plants. The evidence supports a finding that Burkhalter’s access was not equal to Ely’s. There was no evidence that anyone else had equal access to the area where the plants were located.

Decided January 20, 2000.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

Viewed in the light most favorable to the prosecution, the evidence, although circumstantial, was sufficient to support the guilty verdict for the manufacture and possession of marijuana.

Judgment affirmed.

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

       OCGA § 24-4-6.

        Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

        Blitch v. State, 188 Ga. App. 487, 488-489 (373 SE2d 227) (1988).

        Childers v. State, 218 Ga. App. 457 (1) (462 SE2d 412) (1995).

        Prescott v. State, 164 Ga. App. 671, 673 (2) (297 SE2d 362) (1982).

        Childers, supra at 458.

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


text:
    A00A0057.
    LEONARD v. THE STATE.
    (528 SE2d 540)
   Eldridge, Judge.

Calvin Leroy Leonard appeals his conviction for being a party to the crime of violation of the Georgia Controlled Substances Act (sale of cocaine). His sole enumeration of error questions the sufficiency of the evidence to authorize his conviction. Under the standard of Jackson v. Virginia, we find that the evidence was sufficient for a rational trier of fact to find Leonard guilty of the crime for which he was convicted, and we affirm.

In the light most favorable to the verdict, the evidence shows the following: On October 14, 1997, the Bartow County Sheriff’s Department, together with the City of Cartersville Police Department, conducted an undercover drug buy operation with the assistance of Car! January, a confidential informant. Prior to sending Jan- ' uary to attempt to purchase drugs, police officers searched both the vehicle that was to be used in the undercover operation and January for contraband. January was provided with marked currency to purchase drugs. January drove a car equipped with a hidden video-camera to the Walker Street area of Cartersville. January was followed by several police officers who were traveling in a surveillance vehicle.

At trial, Leonard’s accomplice, Gary Lamar Allen, testified that he, Leonard, and Freddie Stockely, Jr. were walking down Walker Street. Allen testified that he thought January was someone else and motioned with his hand for him to stop. Allen approached January’s car while the other men continued walking. Allen further testified that January asked him if he knew where January could purchase some crack cocaine. Allen walked up to Leonard and asked him if he had any cocaine. Leonard told Allen that he had “a couple of pieces.” Leonard handed Allen one piece of cocaine, which Allen sold to January for $20. Then, Allen gave Leonard the $20. Allen further testified that Leonard gave him a rock of cocaine for his part in the sale.

Leonard argues that there was not sufficient evidence to corroborate Allen’s testimony. We disagree. While Georgia law does not allow a conviction based upon the uncorroborated testimony of an accomplice, “[s]light evidence of [Leonard’s] identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict. The necessary corroboration may be by circumstantial evidence.” (Citations and punctuation omitted.) Sparks v. State, 234 Ga. App. 11, 12 (505 SE2d 555) (1998).

In this case, the testimony of accomplice Allen is amply corroborated. January testified that he saw Allen and some other men on Walker Street; that Allen came over to his stopped car; that he asked Allen if Allen could sell him some drugs; and that Allen said he would have to get the drugs from someone else. January further testified that he saw Allen walk up to Leonard, who was standing under a tree at a nearby apartment building, and talk with him. Leonard then handed something to Allen and walked away. Allen came back to January’s car and sold him one piece of crack cocaine for $20.

Further, police officers who were in a surveillance vehicle testified that they saw Allen, Leonard, Stockely, and possibly a fourth male walking up Walker Street. They saw January stop his car and Allen walk over to January’s car. Allen’s companions continued walking down the street. The surveillance officers then drove past January’s stopped vehicle, circled around the Civic Center, and came back down Walker Street. When the surveillance officers made their second trip down Walker Street, Leonard, Allen, and Stockely were standing together next to an apartment building.

Decided January 20, 2000.

Kelley A. Dial, for appellant.

T. Joseph Campbell, District Attorney, Mickey R. Thacker, Assistant District Attorney, for appellee.

The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of [Leonard] is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting [Leonard] with the crime, it cannot be said, as a matter of law, that the verdict is contrary to the evidence.

(Citations and punctuation omitted.) Id.

Judgment affirmed.

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

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

       Id.

       The testimony of a single witness is generally sufficient to establish a fact. However, in certain cases, including prosecutions for treason, prosecutions for perjury, and felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient. Nevertheless, corroborating circumstances may dispense with the necessity for the testimony of a second witness, except in prosecutions for treason.
      OCGA § 24-4-8.


text:
    A00A0069.
    WILLIAMS v. THE STATE.
    (528 SE2d 521)
   McMurray, Presiding Judge.

A Cobb County jury convicted defendant of a single count of trafficking in cocaine, and the trial court sentenced him to confinement for a term of 30 years and a $200,000 fine. The trial court denied defendant’s motion for new trial, as amended. Defendant now appeals, contending that trial counsel failed to call the State’s confidential informant as a witness for conflict of interest prompted by animosity trial counsel held for the informant resulting from “dual representation” — specifically, trial counsel’s representation of the informant in an earlier criminal case. Further, defendant argues that his waiver of any conflict of interest claim against trial counsel at trial was invalid, as not knowingly, voluntarily, and intelligently given.

Prior to trial, defendant filed a motion to require the State to reveal the identity of the informant who accompanied the arresting agent in the buy-bust drug transaction that resulted in defendant’s arrest. The trial court granted defendant’s motion following an in camera hearing conducted during its hearing on defendant’s motion to suppress. In camera, the informant testified, among other things, that he had been in the arresting agent’s car at the time of defendant’s arrest therein. However, on subsequently being interviewed by defendant’s counsel, the informant, who after reviewing the arresting agent’s testimony at the probable cause hearing, changed this testimony and stated he had been outside the arresting agent’s car. It is undisputed that the trial counsel had formerly represented the confidential informant in another criminal case. Further, the record reflects that such case was dismissed for the State’s nolle prosequi action in October 1995, after defendant’s arrest, but more than three months before trial counsel undertook his representation of the defendant and about two and a half years before trial. At trial, neither party called the informant as a witness. Held:

While defendant claims his trial counsel was ineffective, he has not established that his counsel’s performance was deficient and that deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674); Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590). At the hearing on the motion for new trial, trial counsel acknowledged animosity in his relationship with the confidential informant, testifying that his decision not to call the informant as a witness was in part based on the informant’s attitude toward him. However, trial counsel further testified that he regarded the confidential informant’s potential testimony as unpredictable and harmful to defendant’s case. This amounted to no more than a decision on trial strategy. “Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel. [Cits.]” Scott v. State, 238 Ga. App. 258, 260 (2) (518 SE2d 468). We further conclude that conflict of interest in trial counsel is here not in issue. Beyond trial counsel’s decision not to call the informant as a witness, a matter of trial strategy in defendant’s interest rather than against it, the record reflects that trial counsel did not simultaneously represent the confidential informant at the time of trial in the case sub judice. Hill v. State, 269 Ga. 23, 24 (2) (494 SE2d 661) (“The legal presumption is, of course, that an attorney-client relationship terminates once the case or controversy in which the attorney was originally employed is resolved by the entry of a final judgment.”); see Craddock v. State, 173 Ga. App. 133 (1) (325 SE2d 804). Additionally, there is no indication in the record before us that trial counsel had any pecuniary interest in possible future business from the confidential informant given their strained relationship, and, neither party having called the confidential informant as a witness, the possibility that privileged information obtained from informant might have been relevant is moot. Hill v. State, 269 Ga. at 24 (2), supra. Consequently, we need not address the question of whether defendant voluntarily waived any objection to trial counsel’s remaining in the case for alleged conflict of interest. Though given the foregoing we need not measure defendant’s ineffectiveness claim for prejudice under the second prong of Strickland v. Washington, 466 U. S. 668, supra, see Shiflett v. State, 270 Ga. 308, 309 (2) (509 SE2d 633), we add that no prejudice inured to defendant’s detriment for counsel’s failure to call the informant as a witness to impeach him regarding his changed testimony — the reason for not calling the informant being the immateriality of his location at the time of arrest in light of overwhelming evidence identifying defendant as the perpetrator. Accordingly, this assertion of error is without merit.

Decided January 20, 2000.

Mitchell D. Durham, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Maria B. Golick, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.