text:
    A00A0289.
    GEORGIA RECEIVABLES, INC. v. WELCH.
    (529 SE2d 164)
   Eldridge, Judge.

In this contract case, appellant Georgia Receivables, Inc. sought to recover from appellee Cheryl Welch amounts it claims were due under a retail installment contract entered into between Welch and Holiday Universal, Inc. a/k/a Bally’s (“Bally’s”) for a health spa facility membership. Georgia Receivables alleged that it subsequently purchased the membership contract from Bally’s and was assigned all of the rights, title, and interest to the contract. Welch denied the debt in her pro se answer. On Georgia Receivables’ motion for summary judgment, the trial court found that the contract Georgia Receivables sought to enforce was void and unenforceable, because the contract did not meet the requirements of OCGA § 10-1-393.2. The trial court denied summary judgment to Georgia Receivables and dismissed its complaint. Georgia Receivables appeals, alleging that the trial court erred in denying its motion for summary judgment. Finding no error, we affirm.

The Fair Business Practices Act of 1975 was passed by the General Assembly “to protect consumers and legitimate business enterprises from unfair or deceptive practices in the conduct of any trade or commerce in part or wholly in the state.” OCGA § 10-1-391 (a). Such Act “is to be liberally construed and applied to promote its underlying purposes and policies, which are to protect consumers. [Cit.]” Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416) (1979); OCGA § 10-1-391 (a). In order to ensure that consumers are protected as the Act contemplates, such Act must be strictly enforced against the business which engages in unfair or deceptive acts or practices that this Act seeks to prohibit.

The Fair Business Practices Act was amended by Ga. L. 1989, p. 1606, § 2, to include health spa memberships. Such amendment, currently codified as OCGA § 10-1-393.2, set up provisions with which all health spas must comply. Welch entered into the contract on January 21, 1997, and therefore, the contract is subject to the requirements of OCGA § 10-1-393.2.

Subsection (e) of the statute addresses the consumer’s right to cancel a health spa contract and requires that each health spa contract shall contain the following paragraphs separated from all other paragraphs'.

“You (the buyer) have seven business days to cancel this contract. To cancel, mail or hand deliver a letter to the following address:
Name of health spa
Address
City, State, Zip Code
Do not sign this contract if there are any blank spaces above. In the event optional services are offered, be sure that any options you have not selected are lined through or that it is otherwise indicated that you have not selected these options. It is recommended that you send your cancellation notice by registered or certified mail, return receipt requested, in order to prove that you did cancel. If you do hand deliver your cancellation, be sure to get a signed statement from an official of the spa, acknowledging your cancellation.
To be effective, your cancellation must be postmarked by midnight, or hand delivered by midnight on_, 19_, and must include all contract forms, membership cards, and any and all other documents and evidence of membership previously delivered to you.”

(Emphasis supplied.) OCGA § 10-1-393.2 (e). Such statute also provides that the health spa shall “fill in the blank spaces in the above paragraph before the consumer signs the contract.” OCGA § 10-1-393.2 (e).

In this case, the contract does not comply with subsection (e). Although most of the required cancellation language does appear in the contract, the required language is set out in one paragraph and is not set out in three separate paragraphs as the statute requires. Further, the language in the contract regarding the buyer’s rights is not separated from all other paragraphs as the statute requires. Instead, the mandated language is sandwiched between other unrelated sentences.

Finally, and most important, the statute requires that the health spa designate in the contract the month, day, and year of the last day the consumer has to cancel the contract. Instead of properly giving a specific date, however, the contract in this case indicated that a cancellation would be effective only if received by “the seventh day after the date of the contract specified on the front of this contract.” (Emphasis supplied.) This failed to substantially comply with the requirements of the statute, i.e., that the consumer must be given a specific date as the last date to cancel the contract. Additionally, such wording is intentionally misleading, because the statute gives the consumer seven business days to cancel, not seven days. By specifying business days in the statute, the General Assembly clearly intended that the consumer have more than seven consecutive days to cancel, because the term “business days” includes only the days Monday through Friday, excluding any legal holidays. See OCGA § 1-3-1 (d) (3).

“The cardinal rule of statutory construction is to ascertain the legislative intent and purpose in enacting the law and to construe the statute to effectuate that intent. [Cit.]” Ferguson v. Ferguson, 267 Ga. 886, 887 (1) (485 SE2d 475) (1997). While the term “business days” is not defined within the Fair Business Practices Act, it is defined within the Buying Services Act of 1975, OCGA § 10-1-590 et seq. The Buying Services Act of 1975 was passed in the same legislative session as the Fair Business Practices Act of 1975. Both Acts are codified under the same title and have a common purpose of consumer protection, allow the consumer to cancel a contract within a specified number of “business days,” and require that specific language be included within the contract telling the consumer of her right to cancel. Accordingly, such Acts should be considered in pari materia in determining the intent of the General Assembly when it used the term “business days” in OCGA § 10-1-393.2. Under the Buying Services Act of 1975, the term “[b]usiness day” is defined as “any day other than a Saturday, Sunday, or legal holiday.” OCGA § 10-1-591 (2). Therefore, it is clear that the General Assembly did not intend to include Saturday, Sunday, or a legal holiday in the computation of the seven business days within which the consumer had to cancel a health spa membership contract under OCGA § 10-1-393.2.

Even if the contract had stated that the consumer had seven business days to cancel, this would not constitute substantial compliance with the statute, because the Act requires a specific date. Otherwise, the contract would not provide the consumer with the same protection that the General Assembly intended when it passed the statutory requirement. Under such facts, the consumer would be left in the uncertain position of having to calculate when the seventh business day would occur.

OCGA § 10-1-393.2 (n) further provides that:

[a]ny contract which does not comply with this Code section shall be void and unenforceable-, no purchaser of any note associated with or contained in any health spa contract shall make any attempt to collect on the note or to report the buyer as delinquent to any consumer reporting or consumer credit reporting agency if there has been any violation by the health spa of subsections (b) through (m) or of subsection (o) of this Code section. Any attempt by any purchaser or by any agent of any purchaser to collect on the note or to report the buyer as delinquent as described in this subsection shall be considered an unfair and deceptive act or practice as provided in Code Section 10-1-393.

Decided January 31,2000.

Frederick J. Hanna & Associates, Elizabeth C. Whealler, for appellant.

Cheryl Welch, pro se.

(Emphasis supplied.) Accordingly, as the contract did not comply with the requirements of subsection (e), the contract is void and unenforceable. Georgia Receivables is prohibited from attempting to collect on such note.

Georgia Receivables argues that the trial court was without authority to find that the health spa membership contract was void and unenforceable, because such issues were not raised by either of the parties at summary judgment. We do not agree. As we have found above, OCGA § 10-1-393.2 (n) states that a contract that does not comply with subsections (b) through (m) or with subsection (o) is void. This is different from a contract which is voidable by one of the parties, wherein a right of rescission exists due to some defect or illegality. Black’s Law Dictionary defines “voidable contract” as “[a] contract that is valid, but which may be legally voided at the option of one of the parties.” Black’s Law Dictionary (abridged 6th ed. 1991), p. 1087. If a contract is voidable, a party would have to assert a defense to the contract in order for the trial court to void such contract. A “void contract,” however, is defined as “[a] contract that does not exist at law; a contract having no legal force or binding effect.” Id.

On summary judgment, the trial court must consider the entire record. Lane v. Montgomery Elevator Co., 225 Ga. App. 523 (484 SE2d 249) (1997); OCGA § 9-11-56 (c). Since the trial court has an obligation to review the entire record before rendering judgment on a motion for summary judgment, there was no error in the trial court reviewing the contract, which was part of the record, to ensure it met the requirements of OCGA § 10-1-393.2 (b)-(m) arid (o).

Judgment affirmed.

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


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A0447.
    KELLER v. THE STATE.
    (529 SE2d 167)
   Eldridge, Judge.

This is an appeal from the trial court’s denial of Gerald W. Keller’s out-of-time appeal. From the record, we adduce the following:

On April 23, 1997, a Cherokee County jury convicted Keller of driving under the influence of alcohol, failure to dim headlights, and no proof of insurance. The trial court sentenced Keller to two consecutive twelve-month terms of incarceration but permitted Keller to remain out on bond pending appeal. Keller filed a notice of appeal on the same date as his conviction and directed the clerk to “omit nothing on appeal.” However, Keller took no steps toward ensuring the preparation of his trial transcript to perfect the appeal.

Immediately after the Cherokee County trial, Keller stood trial in another county for similar offenses. Before the jury returned its verdict, Keller absconded. Meanwhile, the trial court in the instant case scheduled a hearing for May 2,1997, in order to address Keller’s delay in securing the preparation of the transcript for appeal; a show cause order was issued for that date. Keller’s trial attorney appeared at the hearing. Keller did not. His attorney informed the court that “he did not know Defendant’s whereabouts, having last seen the Defendant at the Superior Court of Cobb County where the Defendant departed during his trial on Driving Under the Influence and other charges there pending.” On May 6, 1997, the trial court issued an order dismissing Keller’s appeal and issuing a bench warrant for Keller. The trial court also permitted defense counsel to withdraw in his representation of Keller. Keller did not contest the trial court’s order dismissing his appeal.

On June 19, 1997, Keller filed with the state court clerk a pro se “motion to set aside judgment of convictions post conviction relief,” requesting a new trial for various alleged errors of law. Notably, the filing did not contain an address for Keller. The trial court issued a rule nisi, scheduling a hearing on the motion for July 11, 1997. Again, Keller did not appear. The trial court denied his motion and ordered Keller to come before the court and begin serving his sentence instanter.

Two years later, on June 2, 1999, Keller was arrested on other charges. He was brought before the trial court. On June 7, 1999, the court issued an order that Keller’s sentence of two years in state custody should begin to run from the date he was apprehended. On June 24, 1999, Keller’s new counsel filed a “motion to reinstate appeal or in the alternative request an out-of-time appeal.” On July 28, 1999, a hearing was held on the motion, and the trial court denied Keller’s motion for out-of-time appeal. On August 26, 1999, Keller filed a notice appealing the trial court’s denial of his out-of-time appeal. Held:

1. Notably, the trial court’s order dismissing Keller’s direct appeal is not before us, since no appeal was taken from that order. This is an appeal from the trial court’s denial of Keller’s out-of-time appeal. In that regard, an out-of-time appeal is appropriate where a timely direct appeal was not taken because of ineffective assistance of counsel. Gibbs v. State, 239 Ga. App. 249 (1) (a) (519 SE2d 511) (1999). However,

[a] convicted party can, by his own conduct or by his conduct in concert with that of his attorney, forfeit his appeal. If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court. An out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights.

(Citations and punctuation omitted.) Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985); Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997). Further, the denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999).

Thus, in order to secure leave to file an out-of-time appeal, Keller needed to demonstrate to the trial court that his failure to secure a direct appeal was not attributable to his own actions. Cannon v. State, supra at 742. We find that Keller made no such showing. A timely appeal was filed on Keller’s behalf. That it was dismissed was not due to defense counsel or the trial court, but to Keller. It appears from the record that Keller, while out on appeal bond, sought to delay to his own advantage in order to avoid serving his sentence. Keller delayed in perfecting his appeal through failure to arrange for the preparation of a transcript, although he requested the clerk “omit nothing from the record.” Then he abandoned his appeal altogether when he absconded from the reach of the courts and the law.

We are unpersuaded by Keller’s assertions that the trial court dismissed his appeal too hastily because only two weeks had passed between Keller’s conviction and the dismissal. Keller has made no showing that, had the trial court waited longer, he would have caused the transcript to be prepared in a timely fashion. See OCGA § 5-6-41 (b). In fact, the record belies that point. Keller did not appear to face his other charges in Cobb County; he did not appear at the hearing regarding the transcript; he did not appear at the hearing regarding his pro se “motion to set aside judgment of convictions post conviction relief”; and in fact, he made no efforts at all with regard to his direct .appeal until he was arrested two years later and had to begin serving his sentence.

Decided January 31, 2000

Head, Thomas, Webb & Willis, Thomas J. Thomas, for appellant.

G. Channing Ruskell, Solicitor, for appellee.

Under these circumstances, we are not hesitant to find that Keller, by his own actions, “forfeit[ed] appeal and review of his conviction on the merits by an appellate court.” Cannon v. State, supra at 742. Accordingly, the trial court did not abuse its discretion in denying Keller’s motion for an out-of-time appeal.

2. We find no merit to Keller’s contention that judgment was not entered on his convictions until the trial court entered a “complete judgment of sentencing” on June 7, 1999. The record shows that the trial court’s June 7, 1999 order merely reiterated the judgment that had been entered on the back of the Uniform Traffic Citations and filed with the clerk on the same day that Keller was convicted in April 1997. Accordingly, a direct appeal will not lie from the trial court’s June 7, 1999 order. OCGA § 5-6-34.

Judgment affirmed.

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

       The trial court’s oral ruling was memorialized in an order dated October 11, 1999.

       We find more than a little disingenuous counsel’s characterization of the pro se “motion to set aside judgment of convictions post conviction relief” as Keller’s attempt to “preserve his appellate rights” in the face of the trial court’s dismissal. It is apparent from the record that Keller authored the pro se motion before his direct appeal was dismissed and that Keller had no idea that his direct appeal was dismissed because he had absconded and did not show up for the hearing with regard thereto. In addition, the motion, on its face, is clearly a motion for new trial filed in the state court. Keller did not show up for the hearing on that motion either and did not appeal from the judgment entered thereon.


author: Andrews, Presiding Judge.

text:
    A98A1672.
    BREWER v. THE STATE.
    (529 SE2d 374)
   Andrews, Presiding Judge.

In Brewer v. State, 236 Ga. App. 546 (512 SE2d 30) (1999), we affirmed the judgment of conviction and sentence entered by the trial court on the jury’s verdict finding Brewer guilty of aggravated sodomy. In State v. Brewer, 271 Ga. 605 (523 SE2d 18) (1999), the Supreme Court reversed the judgment of this Court and remanded the case with direction to instruct the trial court to vacate Brewer’s conviction and sentence for aggravated sodomy and to enter a judgment of conviction and sentence on the jury’s verdict finding Brewer guilty of aggravated child molestation. The Supreme Court further directed that, after entry of the sentence for aggravated child molestation, Brewer shall have the right to pursue an appeal from his conviction for that offense. Accordingly, the judgment of the Supreme Court being made the judgment of this Court, the judgment of conviction and sentence entered by the trial court are vacated with direction.

Decided January 28, 2000.

Michael R. McCarthy, for appellant.

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

Judgment and sentence vacated with direction.

Ruffin and Ellington, JJ., concur.


author: Smith, Judge.

text:
    A98A0971.
    HAZELWOOD v. ADAMS et al.
    (529 SE2d 195)
    Decided February 1, 2000.

      Mundy & Gammage, John S. Husser, for appellant.

      Misner, Scott & Grate, Steven J. Misner, Donald J. Grate, for appellees.
   Smith, Judge.

In Hazelwood v. Adams, 235 Ga. App. 607 (510 SE2d 147) (1998), we reversed the trial court’s grant of summary judgment to Adams. The Supreme Court granted certiorari and in Adams v. Hazelwood, 271 Ga. 414 (520 SE2d 896) (1999), reversed this court’s judgment. Our judgment in this case is therefore vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s judgment is affirmed.

Judgment affirmed.

Johnson, C. J, Pope, P. J., Andrews, P. J., Ruffin, Barnes and Ellington, JJ., concur.


text:
    A99A1858.
    GODDARD v. THE STATE.
    (529 SE2d 184)
   Andrews, Presiding Judge.

David Anthony Goddard appeals from the judgment entered after a jury found him guilty of DUI. Goddard claims the evidence was insufficient to support the verdict and also that the trial court erred in refusing to give his request to charge on the definition of “alcohol concentration.” We find no error and affirm.

The evidence at trial, viewed in the light most favorable to support the jury’s verdict, was as follows. The arresting officer testified that he first noticed Goddard because he was speeding. The officer turned around to catch up to Goddard and, when he was pulling up behind him, saw that Goddard was weaving across the roadway. The officer said that at one point Goddard was driving with his car straddling the double yellow line.

The officer pulled Goddard over and, when he walked up to the car, noticed a strong odor of alcohol. Goddard first told the officer he had not had anything to drink but later admitted to having three beers. Goddard tested positive for alcohol after blowing into the alcosensor, and the officer then asked him to perform several field sobriety tests. After watching him perform the field sobriety tests, the officer arrested Goddard for the traffic offenses and for DUI.

Goddard agreed to take a breath test, and the arresting officer administered the test, using the Intoxilyzer 5000. The first breath sample taken registered 0.067 grams percent, and the second sample registered 0.072 grams percent. The officer also testified that at the time of the arrest, Goddard was 20 years old.

At trial, the jury convicted Goddard of driving with an alcohol concentration of 0.02 grams or more when he was under the age of 21. This appeal followed.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover [,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995).

1. Here, the State presented sufficient evidence from which a rational trier of fact could find that Goddard was less than 21 years old and was driving with a blood alcohol level of 0.02 grams or more. Jackson v. Virginia, supra.

Decided February 1, 2000.

Moulton & Massey, John W. Moulton, for appellant.

2. Nevertheless, Goddard claims that because the officer did not know how the machine operates, he could not and did not testify that the numbers represent grams of alcohol per 210 liters of breath, and therefore, without proof of alcohol concentration as required by the statute, the evidence was insufficient. We disagree. This Court rejected that argument in Banks v. State, 235 Ga. App. 701, 703 (509 SE2d 63) (1998), holding that testimony that the “[I]ntoximeter registered .18 grams percent” was sufficient. (Punctuation omitted.) Id. Also, in Brannan v. State, 261 Ga. 128, 129 (401 SE2d 269) (1991), the court held that Breathalyzer results showing a blood alcohol level of 0.18 grams were sufficient under the standard of Jackson v. Virginia, supra; see also Rowell v. State, 229 Ga. App. 397, 399 (494 SE2d 5) (1997); Harris v. State, 199 Ga. App. 457, 459 (405 SE2d 501) (1991).

3. Goddard also argues that the trial court erred in refusing to give the following charge: Alcohol concentration’ means grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.” Goddard cites to no case law that supports his claim that failure to give the requested charge was error, and we find none.

A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence;. . . and it must not be so phrased so as to have tendency to confuse and mislead the jury or to becloud the issues in the case.

Gen. Ins. Svcs. v. Marcola, 231 Ga. App. 144, 147 (497 SE2d 275) (1998). Here, the State objected to the charge, arguing that it was not relevant and would only confuse the jury. The court agreed, stating that grams of alcohol had never been mentioned in connection with liters of breath and the definition was not relevant in this case because there was no dispute about the accuracy of the machine.

A trial court does not err in refusing to give a confusing or misleading instruction. Grimsley v. State, 233 Ga. App. 781, 785 (505 SE2d 522) (1998). Further, the jury charge as a whole substantially presented the issues in a way not likely to confuse the jury. Therefore, there was no error in refusing to give the requested charge. Jordan v. State, 220 Ga. App. 627, 630 (470 SE2d 242) (1996).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Richard R. Read, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.


text:
    A99A1860.
    GEORGIA PUBLIC SERVICE COMMISSION v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION. GEORGIA POWER COMPANY v. SAWNEE ELECTRIC MEMBERSHIP CORPORATION.
    A99A1861.
    (529 SE2d 186)
   Smith, Judge.

In separate appeals, the Georgia Public Service Commission (“PSC”) and Georgia Power Company challenge an order issued by the Superior Court of Fulton County reversing a decision by the PSC. The PSC had determined that under the “large load customer choice exception” to the Georgia Territorial Electric Service Act, OCGA § 46-3-1 et seq. (“Territorial Act” or “Act”), Georgia Power was properly selected as the electric supplier of a particular apartment qomplex. The trial court found otherwise. At issue here is whether the trial court erred in finding that this apartment complex did not qualify as a customer choice location within the meaning of the Territorial Act. Because the trial court failed to accord proper deference to the PSC in concluding that the large load exception did not apply, we reverse.

This case originated when Sawnee Electric Membership Corporation (“Sawnee EMC”) lodged a complaint against Georgia Power, with the PSC alleging that Georgia Power was violating the Territorial Act by unlawfully providing service to Aylesbury Farms Apartment Complex, an apartment complex located entirely within Saw-nee EMC’s assigned service territory.

Georgia Power defended its actions by claiming it had a right to provide electric service to this complex under the large load exception to the Territorial Act which permits a customer to select its electric provider rather than having to receive service from the electric provider assigned to that particular territory. OCGA § 46-3-8 (a). Under the large load exception, the consumer may choose an electric supplier different from the one assigned if “service [is] to one or more new premises (but if more than one, such premises must be located on the same tract or on contiguous tracts of land) if utilized by one consumer and having single-metered service and a connected load which ... is 900 kilowatts or greater.” OCGA § 46-3-8 (a).

During the construction phase of the complex, Georgia Power and Dominion Development Corporation (“Dominion”), the general contractor, entered into an arrangement by which electric usage for the whole complex would be measured at a master or pass-through meter. The electric usage of the individual apartments would be measured by separate meters, one for each apartment. This master/ submetering arrangement was proposed by Georgia Power which installed the on-site electric distribution system except for the sub-meters. Dominion had the submeters installed and at all times retained ownership of them.

After construction was completed, no single apartment or apartment building had a connected load of 900 kilowatts or more. Georgia Power billed Dominion based on the total electric usage indicated on the master meter, the only meter it reads. Dominion contracted with an outside company, Argén Billing Systems, to perform meter-reading services on the submeters. Argén reads the individual meters every month and computes each tenant’s bill. Each tenant is billed for his unit’s electric use as reflected on the individual meter, plus additional charges, including electricity for common areas. Argén also billed the tenants for their water and sewer usage. The tenants then paid Argén and not Dominion.

Georgia Power considers Dominion its customer and does not bill the tenants for electric service. The president of Dominion, Chris Driskell, testified that Dominion “is the user of electricity until a tenant moves into an apartment.” Elliot Lewis, the president of Dominion Holdings, a related company, testified that the arrangement with Georgia Power enabled Dominion to purchase electric power on a bulk basis “at commercial rates,” resulting in savings for the residents. Lewis felt that purchasing electricity in this manner enabled the apartment complex to be more competitive in the residential marketplace.

In an initial decision, a hearing officer agreed with Sawnee EMC that the large load exception did not apply and ordered Georgia Power to cease and desist from providing electric service to the apartment complex. While recognizing that this court’s decision in City of Norcross v. Ga. Power Co., 197 Ga. App. 891 (399 SE2d 725) (1990), was physical precedent only, the hearing officer felt that “the decision should be given substantial weight” because of its “remarkably similar” facts.

Georgia Power sought and obtained full commission review of the hearing officer’s initial decision. After conducting a hearing, the PSC found that the hearing officer had erred in concluding that the large load exception did not apply. The large load exception requires: the electric service be to one or more new premises; the premises be utilized by one consumer; the premises have single-metered service; and the premises have a connected load of at least 900 kilowatts at the time of initial full operation. OCGA § 46-3-8 (a). Since the complex receives electric service by means of one meter and has a connected load that exceeds 900 kilowatts, the dispute between Sawnee EMC and Georgia Power focuses on the first and second requirements of the Act. The PSC reached its decision after resolving two interconnected questions: (1) whether this apartment complex constituted one “premises” as defined by the Act and (2) whether the premises were being “ ‘utilized by one electric consumer . . . having single-metered service’ ” withing the meaning of the Act.

In refusing to embrace the initial decision of the hearing officer, the PSC expressly found: “that it is evident that the Aylesbury Farms complex qualifies under the Act as a ‘premises.’ Aylesbury Farms does consist of multiple buildings or structures located on one tract or contiguous tracts of land.” The PSC struggled, however, with the second question of whether the landlord, Dominion, met the requirement of being “one electric consumer” as contemplated by the Territorial Act. The PSC reasoned that when deciding which entity is the “electric consumer” within the meaning of the Act, the “focus should be on the relationship of the entity in question to the electric supplier.” The PSC noted that Dominion “takes service from [Georgia Power] at a single metering point. Electric service is then provided to the individual units. Each unit has an individual meter. Tenants are billed their pro-rata share of the landlord’s electric bill, based upon their individual consumption.” The PSC noted that “[t]he tenants do not have any obligation to or relationship with [Georgia Power].” It is undisputed that Dominion, not the tenants, was the party responsible for paying Georgia Power for the electric service. The PSC found: “[t]he method that Dominion has chosen to allocate its electric bill among the tenants does not make the tenants ‘consumers’ as the Commission envisions the Territorial Act intended.” The PSC found: “[i]t is the determination of this Commission that the entity which has the direct relationship with the electrical supplier is the one who meets the definition of ‘consumer.’ ” The PSC decided that since the large load exception applied, it was permissible for Georgia Power to provide electric service to the apartment complex.

Under OCGA § 50-13-19, Sawnee EMC petitioned for judicial review of the PSC’s order. In seeking review, Sawnee EMC designated the PSC and its five members as respondents to its action. After the trial court reversed the PSC’s decision, the PSC and Georgia Power filed separate appeals. Because we find the trial court erred, we reverse.

Case No. A99A1860

1. In its sole enumeration of error, the PSC contends that the trial court erred by applying an incorrect standard of review to the decision by the PSC. We agree.

As a general rule, decisions of administrative agencies are to be afforded great deference. City of Atlanta Bd. of Zoning Adjustment v. Midtown North, Ltd., 257 Ga. 496, 499 (4) (360 SE2d 569) (1987). Here, as the agency charged with the enforcement and administration of the Territorial Act, the PSC’s interpretations of that Act are entitled to great deference. Colquitt Elec. Membership Corp. v. City of Moultrie, 197 Ga. App. 794, 796 (399 SE2d 497) (1990); North Ga. Elec. Membership Corp. v. City of Calhoun, 195 Ga. App. 382, 384 (393 SE2d 510) (1990); City of LaGrange v. Ga. Power Co., 185 Ga. App. 60, 63 (363 SE2d 286) (1987). Because the PSC is in a better position than the courts to determine the appropriate extent of regulation needed under the Act, much weight must be accorded to the PSC’s interpretations of the Act. Id.; see also Bd. of Zoning Adjustment of Atlanta v. Fulton Fed. Sav. &c. Assn., 177 Ga. App. 219, 221 (1) (338 SE2d 730) (1985).

The Georgia Administrative Procedure Act confines a court’s review to the record established at the agency level unless application is made for leave to present additional evidence and the court orders that additional evidence be taken before the agency. OCGA § 50-13-19 (f), (g). A reviewing court is expressly prohibited from substituting its own judgment for that of the agency as to the weight of the evidence on questions of fact. OCGA § 50-13-19 (h). And upon judicial review, reversal is not warranted unless the substantial rights of the appealing party have been prejudiced in one of the five ways expressly delineated in OCGA § 50-13-19 (h) (l)-(5) or the agency decision was “ [arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.” OCGA § 50-13-19 (h) (6).

But here, in reversing the order of the PSC, the trial court made no finding that the PSC had exceeded its powers, abused its discretion, or acted arbitrarily or capriciously. See Colquitt Elec., supra. Instead, the court decided that the PSC’s decision violated the statutory provisions of the Territorial Act.

The court decided that the PSC erred in applying the large load exception to the apartment complex. In so finding, the court disregarded the PSC’s interpretation of the Act and substituted its own definition of the term “consumer,” assigning the “common and ordinary meaning” to the term “consumer.” The court found that the individual tenants were the consumers “and not the aggregate created by the Georgia Power metering arrangement.” The court also decided that the aggregation of various apartment units within the apartment complex did “not constitute ‘one premises’ for purposes of the large load customer choice exception.” Based on those two findings, the court concluded: “[t]hus, strictly construing the large load customer choice exception to the Territorial Act, the Aylesbury Farms metering arrangement does not fall within it.” In reversing the PSC in this manner, the trial court failed to give any deference to the PSC’s interpretation of the Act. This was plainly inappropriate. Commr. of Ins. v. Stryker, 218 Ga. App. 716, 718 (5) (463 SE2d 163) (1995) (interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference).

Case No. A99A1861

2. Georgia Power contends that the trial court erred in its legal conclusion that Dominion cannot be deemed “one consumer” within the meaning of the Territorial Act. We agree.

The cardinal rule of statutory construction is to ascertain the intent of the legislature. Ga. Pub. Svc. Comm. v. ALLTEL Ga. Communications Corp., 227 Ga. App. 382, 384-385 (1) (489 SE2d 350) (1997), aff’d, 270 Ga. 105 (505 SE2d 218) (1998). In discerning the legislative intent, the purpose of the statute, its impact on the body of law as a whole, the law as it existed previously, and the harm sought to be corrected may be considered. Ga. Pub. Svc. Comm., 227 Ga. App. at 385. Further, the construction of a statute must square with common sense and sound reasoning. Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367) (1992).

The Territorial Act does not expressly define “consumer.” See OCGA § 46-3-3. Nevertheless, we cannot agree that the PSC’s determination that Dominion was “one consumer” within the meaning of the Act violated the Act’s statutory provisions. OCGA § 50-13-19 (h). Nor do we find the PSC’s interpretation of this Act at variance with the Act’s policies, particularly the stated goal “to assure the most efficient, economical, and orderly rendering of retail electric service within the state.” OCGA § 46-3-2.

The evidence indisputably showed that Georgia Power billed Dominion and no one else for the electric service being provided to this apartment complex. No contractual relationship existed between Georgia Power and the residents of the apartment complex. It was Argén, under contract to Dominion, that read the tenants’ meters and billed the tenants. The undisputed evidence showed that it was Dominion which was Georgia Power’s customer and that Dominion alone was contractually obligated to pay Georgia Power for the electric service entering the complex.

The record evidence demonstrates that this master metering arrangement is neither unique nor an anomaly. Jeffrey Webster, an account executive with Georgia Power, explained that Georgia Power currently serves apartment complexes in one of three ways: (1) by individual meters on every apartment unit; (2) by a master meter without submeters whereby the owner allocates utility usage based on some formula; and (3) by a master meter with individual submeters. Georgia Power offered into evidence many examples in the metropolitan Atlanta area of the third method of master metering/sub-metering service including: the Atlanta Housing Authority’s apartment complexes, a high rise under construction at the Buck-head Loop and Georgia Highway 400, the Park Towers complex, Poplar Place Apartments, Abbott’s Mill community, and Gables Over Peachtree. And, in fact, according to Webster, “[t]he Atlanta Housing Authority . . . has over 40 apartment complexes served with master meter[s] and has been allocating the usage to the residents through individual submeters for a long number of years.”

Webster also testified that several malls in metropolitan Atlanta also use a master meter system with submetering, including: Gwinnett Place Mall, Perimeter Mall, Town Center Mall, and the Galleria complex. Military bases such as Fort Benning, as well as various office complexes in the Atlanta area, including Concourse Six, Hammond Joint Venture, the NationsBank building, and 999 Peachtree, also use a single Georgia Power meter and individual meters for each tenant. A Georgia Power manager for pricing and rates, Jonathan Kubler, testified without contradiction that it is company policy to let property owners “take advantage of the most cost effective rate for which they qualify.”

But if, as the trial court implicitly concluded, only the end-users of electric service are “consumers” within the meaning of the Act, then under no circumstances could a multi-tenant building, mall, or office complex with a master metering arrangement qualify for the large load exception, because there would be more than one consumer. This interpretation of the Act flatly contradicts current industry practice. The trial court’s finding that the term “consumer” refers to the individual tenants and not to the landlord lacks any basis in fact or law and cannot stand. See OCGA § 50-13-19 (h).

The Territorial Act expressly prohibits discrimination between classes of consumers. OCGA § 46-3-11 (a); Habersham Elec. Membership Corp. v. Mize, 211 Ga. App. 329, 330 (439 SE2d 26) (1993). In resolving the underlying dispute, the PSC apparently refused to distinguish between property owners which lease to commercial tenants and those which lease to residential tenants, a result consistent with the Act. Since the PSC’s decision was not an unreasonable interpretation of this Act and did not contradict the intent of the Act, the trial court erred in reversing that decision. See Colquitt Elec. Membership Corp., supra at 796.

3. Georgia Power also contends that the trial court erred in its legal conclusion that Dominion cannot be deemed “one premises” within the meaning to the Territorial Act.

Twenty-four buildings housing 380 individual apartment units comprise the premises at issue. The Territorial Act defines “premises” as meaning:

the building, structure, or facility to which electricity is being or is to be furnished, provided that two or more buildings, structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer shall together constitute one premises; provided, however, that any such building, structure, or facility shall not together with any other building, structure, or facility . . . constitute one premises if the permanent service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility; provided, further, that an outdoor security light, or an outdoor sign requiring less than 2200 watts, shall not constitute a premises.

OCGA § 46-3-3 (6). The PSC found that this apartment complex fit within the contours of the large load exception since it consists of multiple buildings located on one tract or contiguous tracts, with the power being utilized by what the PSC determined to be “one electric consumer.” We find no error in this conclusion. North Ga. Elec., supra at 384.

Sawnee EMC’s reliance on City ofNorcross, a nonbinding case in which two judges concurred in judgment only, is misplaced because that case is legally and factually distinguishable. In that case, unlike here, some of the tenants had purchase options, so that the property at issue there “was not conceived as a unified rental premises for its entire useful life.” Id. at 893 (2). In that case, unlike here, the superior court also gave the proper deference to the decision of the PSC. In contrast, the trial court in this case failed to accord the proper deference to the PSC’s construction of “premises” or to the PSC’s interpretation of the meaning of “consumer,” despite the rule of law that an administrative interpretation of a statute must be accorded great weight. See City of LaGrange, supra at 63. Because the record does not show that the PSC’s decision violated the statutory provisions or was affected by legal error, no basis has been shown for reversing the decision of the PSC under OCGA § 50-13-19 (h). Bd. of Natural Resources v. Walker County, 200 Ga. App. 301, 308 (5) (407 SE2d 436) (1991).

Decided February 1, 2000

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Alan Gantzhorn, William R. Phillips, Assistant Attorneys General, for appellant (case no. A99A1860).

Troutman Sanders, Kevin C. Greene, Susan P. Wilkerson, for appellant (case no. A99A1861).

Sutherland, Asbill & Brennan, James A. Orr, Charles B. Jones III, for appellee.

McCullough Sherrill, John A. Sherrill, Corin M. McCarthy, amici curiae.

Judgments reversed.

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

       The Georgia Apartment Association filed an amicus curiae brief in support of Georgia Power and the decision of the PSC.

       The parties stipulated that the aggregate load for this apartment complex exceeds 900 kilowatts, the size load that qualifies a customer for the large load exception to the Territorial Act.

       Dominion also sought and obtained a proposal from Cobb EMC which submitted a plan for a similar master metering arrangement.

       Under this agreement, Dominion, not Argén, was solely responsible for meter maintenance and installation and the termination of service to the tenants.


author: Barnes, Judge.

text:
    A99A1909.
    BRICE v. THE STATE.
    (529 SE2d 178)
   Barnes, Judge.

Mary Margaret Brice appeals from her conviction of driving under the influence of alcohol to the extent she was a less safe driver. In this appeal, Brice contends the trial court erred by (1) admitting the arresting officer’s implied consent card; (2) denying her motions in limine to exclude the testimony of witnesses not listed by the State in discovery; (3) allowing the solicitor to state in his place the factual basis for impeaching a prosecution rebuttal witness; (4) denying a motion for a mistrial after allowing unnoticed witnesses to testify for the State; (6) denying her amended motion for new trial based upon prosecutorial misconduct; and (7) denying her motion to recuse the trial judge. For reasons that follow, we affirm.

1. In her first enumeration of error, Brice contends the trial court erred when it admitted the arresting officer’s implied consent card over her objection. The arresting officer testified that he read the implied consent warning to Brice from a card he carried at the time of her arrest and read the warning on this card during his testimony. A photocopy of the officer’s card was admitted into evidence by the trial court. Brice’s only objection to the admission of the card during the trial was that it was not relevant. As a result, we will not consider any other objections to its admission raised for the first time on appeal. See Kinney v. State, 234 Ga. App. 733, 736 (4) (506 SE2d 441) (1998); Hestley v. State, 216 Ga. App. 573, 575-576 (2) (455 SE2d 333) (1995).

“[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent [an] abuse of discretion.” O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). The trial court did not abuse its discretion by admitting the implied consent card in a DUI case in which the defendant refused to submit to a breath test.

2. In her second enumeration of error, Brice complains that the trial court should have granted her motion in limine to exclude

any written or oral evidence concerning the Defendant’s detention, arrest, and any subsequent investigation and booking activity, as well as, all oral testimony surrounding the aforementioned events, specifically any mention of the Defendant’s alleged refusal to take any test. . . .

According to Brice, this evidence should have been excluded because the arresting officer failed to give her the implied consent warning and Miranda warnings before he asked her to blow into an alcosensor device. We disagree for two reasons.

First, our law does not require officers to read the implied consent warning before asking a suspect to submit to an alco-sensor test. Keenan v. State, 263 Ga. 569, 571 (2) (436 SE2d 475) (1993). Second, the record authorized a finding by the trial court that Brice was not in custody at the time she was asked to blow into the alco-sensor device. Id. The arresting officer testified that Brice was not arrested and placed in custody until after she failed to cooperate in the administration of the alco-sensor test. The officer’s request that Brice step out of her car did not amount to a custodial arrest. See State v. Peters, 222 Ga. App. 484 (474 SE2d 623) (1996). Since Brice was not in custody when the officer asked her to submit to the alco-sensor test, Miranda warnings were not required before the request. Keenan, supra, 263 Ga. at 571.

3. Brice contends the trial court also erred when it allowed the State to present two rebuttal witnesses, Craig Snell and Sheriff Alvie Right, who were not identified by the State in response to her demand for a list of the State’s witnesses. The record shows that defense counsel injected Snell’s name into the trial by saying in his opening statement that Snell argued with the defendant shortly before her arrest. Defense counsel further asserted that the police responded to a suspicious vehicle report Snell made on the evening of Brice’s arrest. During this opening, the State objected to defense counsel’s use of hearsay evidence regarding Snell’s knowledge because neither the State nor Brice had listed Snell as a witness. The trial court instructed defense counsel to “move on.”

Snell’s name surfaced again during defense counsel’s cross-examination of a police officer called by the State. This officer testified that he responded to the report of a suspicious person at the intersection of Irene and Rissingbower Streets. To the best of his knowledge, this call originated from Monroe, who lived at this intersection. After additional cross-examination, the officer acknowledged that Snell lived with Monroe and that Snell had once dated the defendant. He also testified that since he did not receive the report from the Monroe residence, the call could have originated from Snell.

The State rested its case, and the defense presented three witnesses on the first day of trial. One of these witnesses testified during direct examination that the defendant drove to the home of her boyfriend, Snell, on the night of her arrest. On the second day of trial, Brice testified during direct examination that she drove to Snell’s home on the evening of her arrest, discovered that he was with another woman, and argued with him in the driveway. After arguing with Snell, she returned to her car and tried to calm down. She further testified that she assumed Snell “called the law to me” when the police arrived a few minutes later. When a police officer asked her “[w]hat was going on back there,” she told him, “Just an argument between a boyfriend and a girlfriend.” She denied that she was drunk the evening of her arrest.

When the defense rested on the second day of trial, the State called Snell as a rebuttal witness. The trial court allowed Snell to testify and denied Brice’s motion in limine to exclude his testimony because he had not been listed as a witness by the State. It also gave defense counsel an opportunity to interview Snell. When called by the State, Snell was uncooperative and told the court he did not want to be a witness. He denied telling the solicitor 30 minutes before his testimony that Brice was drunk when she came to his house the night she was arrested.

At the conclusion of Snell’s testimony, the solicitor stated in his place that Snell told him the night before that Brice was drunk the night of her arrest. He further stated that Snell told him again, in the presence of Sheriff Right, that Brice was drunk that evening. This conversation occurred during a break on the second day of the trial. The trial court allowed Sheriff Eight to testify after defense counsel was provided time to interview him. Sheriff Eight testified that he was present when the solicitor talked with Snell during a break in the trial. In this conversation, Snell told the solicitor he did not want to testify because he thought it would cause problems between himself and Brice. The sheriff further testified that Snell nodded his head affirmatively when the solicitor reminded Snell he had previously told the solicitor that Brice was drunk.

(a) The trial court did not err by allowing Snell to testify even though his name was not provided to defense counsel before trial. OCGA § 17-16-21 provides:

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

(Emphasis supplied.)

In this case, the record shows that the State did not become aware that Snell had knowledge of the defendant’s condition and conduct on the night of her arrest until after the trial had begun. It further shows that defense counsel’s statements and questions during the trial gave the State its first notice of this witness. Defense counsel referred to Snell during his opening statement and asked three different witnesses about Snell’s interaction with the defendant on the night of her arrest. Contrary to the assertions of this same defense counsel on appeal, the record does not show that the police officers knew that Snell had interacted with Brice that evening. As a result, the trial court was authorized to accept the solicitor’s statement that Snell was a newly discovered witness. Therefore, it did not err when it allowed the State to call Snell as a witness.

(b) Likewise, the trial court did not err when it allowed the State to call Sheriff Eight for the purpose of impeaching Snell with a prior inconsistent statement. OCGA § 17-16-21 obligated the State to provide Brice with a list “of the witnesses on whose testimony the charge against [the defendant] is founded.” It does not obligate the State to list unanticipated impeachment witnesses.

4. For the reasons stated in Division 3, the trial court did not err when it denied Brice’s motion for a mistrial based upon the trial court’s decision to allow Snell and Kight to testify.

Decided February 1, 2000.

M. Francis Stubbs, for appellant.

David B. Pittman, Solicitor, for appellee.

5. The trial court did not err when it allowed the solicitor to lay the foundation for calling Sheriff Kight to impeach Snell by stating in his place the prior inconsistent statement made by Snell in the presence of Sheriff Kight. See OCGA § 24-9-81; Billings v. State, 212 Ga. App. 125, 129 (5) (441 SE2d 262) (1994).

6. Brice contends the trial court should have granted her amended motion for new trial based upon prosecutorial misconduct. Brice’s sole support for her claim of prosecutorial misconduct was hearsay statements in an affidavit by Snell. The trial court properly refused to consider these hearsay statements and properly denied the amended motion for new trial. See Wright v. State, 211 Ga. App. 474, 475 (1) (440 SE2d 27) (1993).

7. In her remaining enumeration of error, Brice contends the trial court improperly denied her motion to recuse instead of referring it to another judge as required by Uniform Superior Court Rule 25.3. We find no error in the trial court’s denial of the motion to recuse because it was neither timely filed nor accompanied by the required affidavit. See USCR 25.1; Thomason v. State, 199 Ga. App. 875 (1) (406 SE2d 528) (1991); Wright v. Swint, 224 Ga. App. 417, 420 (4) (480 SE2d 878) (1997).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       An alco-sensor device is a preliminary field test for the presence of alcohol.


text:
    A99A1932.
    GOODSON v. THE STATE.
    (529 SE2d 175)
   Smith, Judge.

After a bench trial, Frederick Don Goodson was convicted of DUI by being in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for him to do so. OCGA § 40-6-391 (a) (1). Goodson’s motion for new trial was denied, and he appeals. Finding no error, we affirm.

1. Goodson contends the verdict was against the weight of the evidence. But “[t]he weight of the evidence is a matter for consideration in the trial court, not this court, which considers the sufficiency of the evidence. [Cit.]” Ellis v. State, 211 Ga. App. 605, 612 (11) (440 SE2d 235) (1994).

2. Goodson also contends the trial court erred in failing to grant his motion for a directed verdict of acquittal. But

the trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial. Therefore, even if a motion for a directed verdict was made, such a motion has no meaning when a case is tried without a jury. . . . [T]he issue is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Jones v. State, 226 Ga. App. 608, 609 (487 SE2d 89) (1997).

3. Goodson in effect challenges the sufficiency of the evidence by contending in his third enumeration of error that “the State failed to prove the corpus delicti of the crime of driving under the influence of alcohol.” We therefore consider the sufficiency of the evidence.

A DeKalb County police officer was called by Avondale Estates police officers to the scene of a one-car accident at the intersection of Mountain Drive and Covington Highway. He found Goodson and his vehicle, which was parked off the roadway behind a building. Good-son stated to the officer that he had been driving on Mountain Drive when he lost control on a curve. According to the officer, Goodson stated that he hit a curb, went up over a grassy area, and came to a stop on Covington Highway. The officer found car tracks in the grass and on the roadway leading from the highway to the parking lot.

In speaking with Goodson, the officer noticed that his eyes were bloodshot and that he smelled of alcohol, and he asked Goodson to take some field sobriety tests. Goodson registered positive on the portable aleo-sensor test and displayed all six of the criteria for the presence of alcohol under the horizontal gaze nystagmus (HGN) test. His speech was slurred, he became argumentative, and he refused to take any additional field sobriety tests. The officer testified that Goodson’s score on the HGN test indicated that there was enough alcohol in his blood to make him a less safe driver. He also testified that he was familiar from personal experience and training with people who have been drinking and that in his opinion Goodson was under the influence of alcohol. Based on his investigation, he concluded that Goodson was a less safe driver.

Goodson contends the arresting officer’s testimony regarding his bloodshot eyes and the odor of alcohol on his breath was insufficient to sustain a conviction for DUI. But the officer also testified at length to Goodson’s failure to pass field sobriety tests and to his opinion, based on his observations and experience, that Goodson was under the influence of alcohol to the extent that it was less safe for him to drive. “A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive.” (Citations and punctuation omitted.) Tanner v. State, 225 Ga. App. 702 (484 SE2d 766) (1997). This contention is without merit.

Goodson also contends that the evidence was insufficient both because the officer never saw him in control of the vehicle on the public highway and because no evidence was presented that he was under the influence of alcohol at the time he was driving. But Good-son admitted he was driving the car when he lost control on Mountain Drive and that he moved the car to the parking lot after the accident. His statement to the officer was corroborated by the tracks across the grass and the highway, as well as extensive damage to the tires of his car. The officer also testified that he knew the accident had occurred within three hours of his arrival on the scene because his department’s normal response time to calls from the City of Avondale Estates is between five and seven minutes. He also testified that no one, including the defendant, ever told him that the accident happened a long time before his arrival. The evidence was sufficient to allow the trier of fact to conclude that Goodson was intoxicated at the time he was in control of his car.

A conviction for driving or being in actual physical control of a moving vehicle while under the influence of intoxicants may be based on circumstantial evidence. The circumstantial evidence need not exclude every hypothesis save that of guilt, but only reasonable hypotheses, so as to justify a finding of guilt beyond a reasonable doubt. There is evidence that appellant was driving the car, based on his admission that he was driving. There is also evidence that appellant was intoxicated at the time he encountered the [police officer]. It is a reasonable inference that a short time passed between the time defendant drove . . . and the time the officer found the defendant in the condition described above, given the events.

(Citations and punctuation omitted.) Moon v. State, 211 Ga. App. 559, 560 (2) (439 SE2d 714) (1993); see also Mattarochia v. State, 200 Ga. App. 681, 682-683 (3) (409 SE2d 546) (1991). The circumstantial evidence was sufficient to enable a rational trier of fact to sustain Goodson’s conviction. Jackson v. Virginia, supra.

Decided February 1, 2000.

Louise T. Hornsby, for appellant.

Gwendolyn R. Keyes, Solicitor, David M. Zagoria, Thomas E. Csider, Assistant Solicitors, for appellee.

4. As we understand his fourth enumeration of error, Goodson also contends the trial court erred in allowing the State to introduce evidence of the reading of his implied consent rights because the officer did not observe him operating a motor vehicle while under the influence of alcohol and because the vehicle was on private property when the officer arrived. As noted above, however, sufficient circumstantial evidence was presented at trial to support Goodson’s conviction. Goodson cites no case law in support of his contention, and this evidence necessarily also shows that the arresting officer had “reasonable grounds to believe that the person ha[d] been driving or was in actual physical control of a moving motor vehicle upon the highways or elsewhere throughout this state in violation of Code Section 40-6-391 and the officer . . . arrested such person.” OCGA § 40-5-67.1 (a).

Judgment affirmed.

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

       The trial court correctly noted, however, that the three-hour requirement applies only to those cases in which a DUI offense is proved by a measured blood alcohol concentration of 0.10 grams or more under OCGA § 40-6-391 (a) (5), while Goodson was charged under the less safe driver provisions of OCGA § 40-6-391 (a) (1).


text:
    A99A2232.
    REYES v. THE STATE.
    (529 SE2d 192)
   Andrews, Presiding Judge.

Stacy Louise Reyes appeals from the judgment entered after a jury found her guilty of reckless conduct for failing to supervise her three-year-old daughter Tenya. We find no reversible error and affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. Three-year-old Tenya Reyes was found unconscious in a neighbor’s yard after apparently being attacked by an animal, probably a dog. The doctor on duty who examined her said that she was soaked with rainwater and blood and her body temperature was 87.6 degrees Fahrenheit. He stated that she had lacerations and nail marks over her whole body, had lost between 20 and 40 percent of her blood, and responded only to deep pain. The doctor said the injuries had occurred more than an hour before she was brought to the hospital. He based this conclusion on the amount of time it takes for the body’s temperature to go down ten degrees and the fact that her blood had congealed and there was no active bleeding when he examined her.

The officer who investigated the incident testified that he found the spot where the attack occurred and found a child’s pants and shoe in a neighbor’s yard. The pants and shoe were wet. The officer said it rained early that morning but stopped between 9:30 and 10:00 a.m. at the latest. The officer was able to trace the path Tenya took that morning before the attack occurred. He stated that she had walked down her driveway, then walked down Old Tennessee Road along a drainage ditch for about 100 feet. She also walked past a shed with a lot of boards with nails in them. The officer also stated that the temperature that morning at 10:00 a.m. would have been about 60°F.

Tenya’s grandmother testified that Reyes called her around 10:30 that morning and said the child was missing. The grandmother went outside to look for her and found Tenya lying in the yard, unconscious and bleeding.

A neighbor testified that she saw Tenya that morning running along the road with two little puppies sometime between 9:00 and 9:30. Tenya was by herself, and there were no adults around at the time.

The triage nurse at the hospital said she questioned Tenya’s grandmother about what had happened to the little girl. The nurse said Tenya’s grandmother told her the child had been sent over to her house at 9:00 that morning and was found at 11:00 a.m.

The Department of Family & Children Services (DFCS) investigator testified that she retraced the route Tenya took that day and there was no sidewalk on the road. Also, a deep drainage ditch containing standing water ran alongside the road. In the yard Tenya walked through, there was broken glass, lumber, paint supplies, nails and chemicals.

The State also introduced similar transaction evidence. A neighbor testified that in December 1996, he found a little boy and girl playing in the street at the end of his driveway. He said the boy was about five or six and the little girl was only two or three. The neighbor asked the children where they lived, and he took them up the street to their house, about 150 to 200 yards away. He said the mother, Reyes, told him the children had been at home just a few minutes ago. The neighbor told her the children had been in the street five to ten minutes and she needed to keep a closer eye on them.

Another neighbor testified that she saw Tenya walking up to her grandmother’s house by herself when her grandmother was not home. The neighbor’s son-in-law took Tenya back home and said that when he arrived at the house, Reyes was just getting up from the sofa and looked like she had been asleep.

Another neighbor said that she had seen Tenya running across the road by herself about three or four times and had taken Tenya home because she was too young to be out in the street. She said that one of the times she took Tenya home, Reyes was asleep on the couch.

Reyes testified in her own defense. She said that after getting the two older children off to school, she went back to bed and Tenya stayed in the bedroom with her. They both got back up around 9:00 or 9:30 and watched television for about 45 minutes. Reyes said that she got up to go to the bathroom around 10:15 and when she came out about ten or fifteen minutes later, Tenya was gone. She looked around the house for her, then went outside and called to her neighbors and asked if they had seen the child. They said they had not, so she went inside and called her mother. Shortly after, she heard her neighbor yell and saw that he had Tenya in his arms. Reyes claimed Tenya had been missing only twenty to twenty-five minutes when they found her and that it took between two and five minutes to drive to the hospital.

1. Reyes argues the evidence was insufficient to support the verdict. We disagree. A person is guilty of reckless conduct if she

causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that [her] act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. ...

OCGA § 16-5-60. The evidence, as discussed above, was sufficient to authorize a jury to find beyond a reasonable doubt that Reyes was guilty of reckless conduct. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys the presumption of innocence; moreover [,] an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [supra]. Howard v. State, 261 Ga. 251, 252 (403 SE2d 204) [(1991)]; King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) [(1994)].

Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). The jury, assessing the weight of the evidence and the credibility of the witnesses, chose not to believe Reyes’ testimony that Tenya had been gone only a short while, but rather, chose to believe the evidence which showed that Reyes allowed Tenya to wander unsupervised and that the child had been missing for over an hour before Reyes began looking for her. Weems v. State, 267 Ga. 182, 183 (476 SE2d 585) (1996).

Hall v. State, 268 Ga. 89 (485 SE2d 755) (1997), on which Reyes relies, is not controlling in this instance. In Hall, the defendant left her three children, ages five, three and one, with their older brother who was not quite twelve years old. The three-year-old child suffered a severe head injury while in the older brother’s care, and the mother was charged with reckless conduct. The court held that the vague and indefinite language in the statute as to what risks are “substantial” and “unjustifiable” permitted law enforcement officials to selectively and arbitrarily prosecute the defendant. The opinion stated that the defendant’s actions “were deemed to be unjust and unreasonable only when viewed in retrospect.” Id. at 94. Compare State v. Boyer, 270 Ga. 701 (512 SE2d 605) (1999) (Reckless Conduct Statute not subject to vagueness challenge where day care center employee roughly handled 12-month-old child).

But, the facts in this case are not similar to the facts in Hall. First, Reyes’ lack of supervision over her child is not an action that placed Tenya at risk only in hindsight. The risks posed to a three-year-old child who is allowed to wander down the road unsupervised are both substantial and unjustifiable. See Boyer, supra at 703.

2. Reyes also claims the trial court erred in admitting the similar transaction evidence. But, Reyes does not argue that the trial court failed to make the proper inquiry required by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991); rather, Reyes claims that there was no evidence at trial on the issue of intent and the State improperly used previous acts to show that she acted in a certain manner in the present case.

There was no error. The trial court conducted a hearing before admitting the evidence and properly found that the evidence was relevant for some purpose other than to show that Reyes likely committed this crime because she is a woman of bad character. See Bohannon v. State, 208 Ga. App. 576, 580 (431 SE2d 149) (1993). Moreover, the trial court twice instructed the jury that the evidence was admitted only for the limited purpose of showing course of conduct.

3. Reyes also argues the court erred in allowing the DFCS representative to testify about the hazards Tenya would have encountered that morning after she left her house and before she was attacked. Reyes claims the evidence was irrelevant and prejudicial. We disagree. Reyes was charged with consciously disregarding a substantial and unjustifiable risk that her failure to adequately supervise Tenya would endanger her safety. Therefore, the hazards the child encountered when she was allowed to wander away from her house were both relevant and admissible. See Humphrey v. State, 218 Ga. App. 574, 576 (462 SE2d 641) (1995).

Decided February 1, 2000.

Levinson & Paul, Christopher G. Paul, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A99A2247.
    HORTMAN et al. v. GUY.
    (529 SE2d 182)
   Barnes, Judge.

Glen, Sandra, and Judy Hortman sued Linda and Morgan Guy for personal injuries and property damage. The Hortmans alleged they were in a car that hit the Guys’ cow in the road. The trial court granted Linda Guy’s motion for summary judgment, and the Hortmans appeal. The Hortmans argue that a state statute defining livestock ownership does not preempt a county animal control ordinance that defines “owner” more broadly to include people who keep or harbor the animals. We disagree and affirm.

Linda Guy averred in her affidavit that she owned no cows on the date of the collision, although she allowed her ex-husband to keep and care for cows on her property. Morgan Guy confirmed in his affidavit that his ex-wife owned no cows and that he did own some cows he kept on her property. The Hortmans produced no evidence that Linda Guy owned the cow in the road.

1. Under OCGA § 9-11-56 (c), the trial court should grant summary judgment when no issue of material fact remains to be decided and the movant is entitled to judgment as a matter of law. We review de novo a grant of summary judgment, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592 (472 SE2d 140) (1996).

2. Chapter 3 of Title 4 is titled “Livestock Running at Large or Straying,” and its first section, “Legislative Intent,” provides: “There is found and declared a necessity for a uniform state-wide livestock law embracing all public roads in the state and all other property.” OCGA § 4-3-1.

The 1953 and 1955 Acts abolishing the open range and requiring that uniformly over the State the owners of livestock must fence them or take the necessary steps to prevent them from straying to the roads and the lands of others, provided: “No owner shall permit livestock to run at large on or stray upon the public roads of this State, or any property not belonging to the owner of the livestock unless by permission of the owner of such property.” [OCGA § 4-3-3.]

Tennessee, Ala. &c. R. Co. v. Andrews, 117 Ga. App. 164, 168 (159 SE2d 460) (1968).

We have held that a landowner who allows livestock on his land is not necessarily the “owner” as defined in OCGA § 4-3-2 (2) (“ ‘Owner’ means any person, association, firm, or corporation, natural or artificial, owning, having custody of, or in charge of livestock.”). Evidence that a landowner merely allows someone else to put livestock on her land is insufficient “to create an issue of fact over whether [Linda Guy] owned, had custody of, or was in charge of the [cow] involved in the collision.” Supchak v. Pruitt, 232 Ga. App. 680, 682 (3) (503 SE2d 581) (1998).

“ ‘If the landowner is neither the owner nor keeper, he has no duty to confine or restrain the animal. If an animal is allowed by its keeper to escape from its confinement and harm results, that damage results from the negligent confinement, not from the condition of the land. To the extent that the condition of the land made it inadequate or unsuitable for confinement, the responsibility for selecting an adequate method of confinement is upon the keeper, not upon the landowner who neither owned nor kept the animal.’ ”

Id. at 683 (3), quoting Evancho v. Baker, 196 Ga. App. 903, 904 (2) (397 SE2d 166) (1990).

Accordingly, the trial court did not err by granting summary judgment to Linda Guy on the Hortmans’ claims for damages arising from their collision with the cow.

3. The Hortmans contend that county ordinances in both Henry County, where Linda Guy’s property is located, and Newton County, where the collision took place, define “owner” more broadly than the state statute to include a person harboring an animal or allowing an animal to remain on her premises. The Hortmans further contend that the state statute does not preempt the county ordinance, because “it is considered permissible to augment and strengthen the general law by special law.” The Supreme Court of Georgia in Grovenstein v. Effingham County, 262 Ga. 45 (414 SE2d 207) (1992) and later in. Franklin County v. Fieldale Farms Corp., 270 Ga. 272, 275 (2) (507 SE2d 460) (1998), discussed the uniformity clause in the 1983 Georgia Constitution, which provides:

Laws of a general nature shall have uniform operation throughout this state and no local or special law shall be enacted in any case for which provision has been made by an existing general law, except that the General Assembly may by general law authorize local governments by local ordinance or resolution to exercise police powers which do not conflict with general laws.

Ga. Const. of 1983, Art. Ill, Sec. VI, Par. IV (a).

In Grovenstein, the court noted that the state statute at issue expressly authorized counties “to exercise by local ordinance the police power of revoking licenses for the sale of beer and wine, so long as the ordinance meets the requirement of Art. Ill, Sec. VI, Par. IV (a), that it not conflict with general law.” The court upheld the county ordinance. Grovenstein v. Effingham County, supra, 262 Ga. at 47 (1).

In Franklin County v. Fieldale Farms Corp., supra, the court held that a state statute regulating the application of sludge to land preempted a county land disposal ordinance. First, the court inferred that the state statute preempted local laws because its provisions and implementing regulations were so comprehensive. Id. at 276-277 (4). Second, the General Assembly expressly granted local authorities limited powers to assess monitoring fees and seek injunctions if the fees are not paid; “[b]y explicitly granting this narrow power to local governments, the statute by implication precludes counties from exercising broader powers.” Id. at 277 (4).

The statute at issue here, OCGA § 4-3-1, specifically finds and declares “a necessity for a uniform state-wide livestock law embracing all public roads in the state and all other property.” Thus it expressly preempts local laws on the subject by declaring the need for uniformity. Nothing in the statute authorizes local governments to exercise power in this regard.

Our Supreme Court held in Grovenstein, supra, 262 Ga. at 47 (1), that no conflict exists when the local law does not impair the general law’s operation but rather augments and strengthens it. That case involved a county ordinance that forbid anyone holding a beer or wine license from selling beer or wine to persons under the age of 21 and provided that the license could be revoked for such sales. The appellant argued that the state statute forbidding anyone from furnishing alcoholic beverages to anyone under 21 preempted this county ordinance. The court disagreed, noting first that the state statute specifically authorized local governing authorities to grant or withdraw liquor permits, and second that the local ordinance prohibited sales to minors under more specific circumstances than did the state statute’s general prohibition against furnishing alcohol to minors. Id. In so doing, the local ordinance augmented and strengthened the state statute and did not conflict with it.

In the case before us, a county ordinance extending responsibility for stray livestock to persons not included in the state statute would not augment the state law; it would alter its stated purpose, which is to create a state-wide uniform law applying to these circumstances.

Decided February 1, 2000.

Cramer & Peavy, Timothy C. Cramer, James E. Peavy, for appellants.

Temple, Strickland & Dinges, William D. Strickland, Smith, Welch & Brittain, Thomas B. McFarland, for appellee.

Accordingly, we conclude that the trial court did not err in granting summary judgment to landowner Linda Guy in the Hortmans’ action for damages against her.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A99A2445.
    MITCHELL v. THE STATE.
    (529 SE2d 169)
   Barnes, Judge.

Eugene Mitchell was indicted for armed robbery and possession of a knife during the commission of a crime. A jury convicted him on both counts, and the trial court sentenced him to serve twelve years for the armed robbery and five years concurrently for the knife possession. Mitchell appeals, arguing that insufficient evidence supports his conviction; that admitting evidence at trial of his post-arrest silence violated his privilege against self-incrimination; that his identification as a suspect at a “showup” violated his due process rights; that the Valdosta Police Department policy of destroying field notes violated his due process and confrontation rights; that his trial counsel was ineffective; and that he was denied his right to be defended by counsel of his own selection. After considering each of these enumerations, we affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Construed to support the verdict, the evidence at trial showed that around 11:00 a.m. on April 2, 1997, a black man with a sweatshirt hood over his head and a bandanna tied over the lower half of his face robbed Vallorbe Real Estate Management Company. The victim testified that she looked up from her desk and saw the robber standing before her holding a knife. He threw a black bag onto her desk and said, “[p]ut the money in the bag and don’t say a word.” The robber then reached over the desk, pointed the knife at the victim, took the cash box, and left.

The police arrived, and the victim described the robber as a young black man wearing a dark sweatshirt with some kind of printing on it. With that description, the police began searching the neighborhood. Within about 15 to 20 minutes, they returned and asked her to look through her plate glass storefront and see if she could identify anyone outside as the robber. She could not, and the police let the first suspect go. Shortly thereafter, the police again asked her to look outside and see if she could identify anyone as the robber. This time she positively identified Mitchell as the robber, and he was arrested.

Detective McGraw testified that he heard radio traffic about an armed robbery and went with his partner to help secure the area. He heard another officer say the suspect was running along a canal parallel to the road, where the detective was located, then saw the suspect jump the canal and run around a house. Detective McGraw ran after him and, as he turned the corner, came upon another officer arresting the suspect. Detective McGraw picked up the bag on the ground next to the suspect and found money and paperwork from Vallorbe inside it. He identified Mitchell as the suspect he had been chasing.

Mitchell testified in his defense, explaining that, while walking through the area, he saw a black man run through a fence gate, throw a bag on the ground, and run off. Mitchell testified that he picked up the bag, looked inside, and saw papers and money. While he was looking, he heard someone say, “Did you see anybody run through there?”

He then realized someone was looking for the black man who had run off, and because he was also a black man holding the bag the other man dropped, he panicked and ran, keeping the bag because he was afraid his fingerprints would be on it. He stopped when a police officer with a drawn gun ordered him to do so.

Mitchell also presented two other witnesses, both nurses from the jail, who testified that he had unusual, remarkable eyes that changed color.

1. Mitchell contends that insufficient evidence supports his convictions of armed robbery and possession of a knife while committing a crime. We conclude that the evidence as outlined above was sufficient for a rational trier of fact to find Mitchell guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Mitchell contends that the victim’s identification of him during an impermissibly suggestive showup gave rise to a substantial likelihood of irreparable misidentification. See Simmons v. United States, 390 U. S. 377 (88 SC 967, 19 LE2d 1247) (1968). We first consider whether the identification procedure was impermissibly suggestive and note that we have held that on-the-scene confrontations and identifications are inherently suggestive because of the presentation of a single suspect. Ferguson v. State, 221 Ga. App. 415, 418 (1) (471 SE2d 528) (1996). We then consider whether the situation presented a substantial likelihood of irreparable misidentification.

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, and the level of certainty demonstrated by the witness at the confrontation.

(Citations and punctuation omitted.) Id.

In the case before us, Mitchell was arrested within an hour and in the immediate neighborhood of the robbery. The victim testified that the robber stood before her desk in full daylight, then reached over her desk and grabbed the cash box. When she first identified him, “his face was very fresh in [her] mind.” She positively identified him at the showup and at trial, testifying that she remembered his eyes, and Mitchell himself presented two witnesses who testified that he had unusual eyes. Finally, when caught, Mitchell was carrying the bag used in the robbery, which contained money and paperwork with the name of the victim’s company on it. The trial court’s determination that no likelihood of irreparable misidentification existed under the totality of the circumstances is supported by the evidence, is not clearly erroneous, and is therefore affirmed.

3. Mitchell argues that the trial court erred in admitting evidence of his post-arrest silence, in violation of his Fifth Amendment privilege against self-incrimination. However, trial counsel did not object to the cross-examination. While in most instances failure to object would waive this issue (see, e.g., Pye v. State, 269 Ga. 779, 787 (14) (505 SE2d 4) (1998)), Mitchell also alleges that his trial counsel was ineffective for failing to object to the prosecutor’s cross-examination of him regarding his silence after the investigating detective told him he did not have to give a statement. We will consider Mitchell’s argument in the context of his ineffective assistance of counsel claim.

4. We must affirm a trial court’s finding that a defendant has not been denied effective assistance of counsel unless it is clearly erroneous. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.

Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

(a) On direct examination, Mitchell testified that after he was taken to the police station, he went into a back office where a detective began asking him about a knife. He testified that he told the detective he did not know anything about a knife and then the detective read him his rights. At that time, Mitchell testified that he told her he would rather not make a statement because he was not sure what he had gotten himself into. He was then taken to the sheriff’s department and booked.

On cross-examination, the State asked Mitchell if he had talked to the detective about the case. He answered,

No, I didn’t talk to her about the case. She was asking me questions that I didn’t know answers to. She kept asking me where is the knife and things like that. . . . And basically, I was telling her I don’t know anything about a knife. They keep asking me about a knife. I told her the other officer had asked me about a knife. I don’t know anything about one and I can’t tell them anything about one. She asked me about it again and I told her I don’t know. I can’t tell you. And that was my only response to all that there. I never said I knew anything about it.

The following exchange then took place:

Q: Isn’t it true that you didn’t want to — that you invoked your rights; you didn’t want to talk to Detective Rofulowitz?
A: That was before she told me that I could. I told her that I did not want to make a statement. She asked me if I wanted to make a statement; I told her no.
Q: So, you’re saying that you talked to her and then decided not to talk to her?
A: Well, the only thing I told her was that I didn’t know anything about the knife. And when she told me I could have got in there and not said anything at all by right, then I told her that’s what I’d rather do. I’d rather not make a statement and I just won’t say anything else.
Q: Did you ever tell her . . . about you getting lost going from your house to pick up your wife?
A: No, sir. Nobody —.
Q: You never told her that, did you?
A: No, sir.
Q: You never told her, did you, that you just found this money on the streets, did you?
A: No, sir.
Q: You never told her that you just happened to walk in the middle of twenty police officers with the wrong bag, did you?
A: No, I never told her that. . . .
Q: But you did not ever tell her about you just picking up the money, finding the money?
A: No, because she told me I didn’t have to make a statement and that’s what I chose to do. I chose not to go into any detail about my involvement at all because I didn’t want to say anything that could later be used against me, such as —
I don’t — I don’t trust police at all. . . .

Later in the cross-examination, Mitchell reiterated that he had chosen to remain silent after being told he had the right to do so:

She told me I didn’t have to say anything so I chose not to because I had already been seen or I had already been apprehended by the police with the bag and it did not look good at all on my part because I did have whatever it was that this person had taken from whoever he took it from. And so it didn’t look good on my behalf, so I chose not to say anything.

The State, like any other party, has the right to conduct a thorough and sifting cross-examination and to pursue the specifics of a topic Mitchell introduced. Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). Because Mitchell opened the door to this line of questioning during his direct testimony, Smith v. State, 258 Ga. 181, 182 (1) (366 SE2d 763) (1988); Hollis v. State, 191 Ga. App. 525, 528 (4) (382 SE2d 145) (1989), he cannot now complain that his trial counsel was ineffective for failing to object. Because such an objection would not have been sustained, Mitchell has failed to establish that trial counsel’s performance was deficient.

The trial court did not err in concluding that Mitchell’s trial counsel was not ineffective due to his failure to object to the cross-examination outlined above.

(b) Mitchell contends that his counsel was ineffective also for failing to request a charge on his Fifth Amendment right to remain silent. While appellate counsel argued during the hearing on Mitchell’s motion for a new trial that trial counsel failed to request a charge on the defendant’s right to remain silent, he did not ask trial counsel about the reasons behind his failure to request such a charge. Trial counsel may not have asked for the charge to avoid calling attention to Mitchell’s assertion of his right to remain silent. The trial court’s finding that trial counsel was not ineffective is supported by the presumption that, in the absence of contrary evidence, counsel’s actions are presumed strategic in nature. Milliken v. State, 230 Ga. App. 810, 813 (2) (b) (498 SE2d 127) (1998).

(c) Mitchell contends that his counsel was ineffective for failing to call Officer Hudson as a witness. Officer Hudson brought the first suspect before the victim, and she could not identify him. Mitchell’s trial counsel testified at the motion for new trial that his decision not to question Officer Hudson was strategic. He had interviewed Officer Hudson and decided that his testimony would be more damaging than helpful to Mitchell. Therefore, he decided not to call him as a witness. It is well settled that “strategic choices made after thorough investigation are virtually unchallengeable.” (Citation and punctuation omitted.) Stephens v. State, supra, 265 Ga. at 121. The trial court did not err in finding that Mitchell’s trial counsel was not ineffective for failing to call Officer Hudson as a witness.

(d) Finally, Mitchell contends his trial counsel was ineffective for failing to investigate and prepare his case sufficiently. Mitchell points out that several testifying officers mentioned witnesses who had pointed them toward evidence or toward the suspect, but his trial counsel did not interview any of them. However, during the motion for new trial, Mitchell’s new counsel did not question the trial counsel regarding his failure to investigate and interview these alleged eyewitnesses.

Pretermitting whether counsel’s professional performance was deficient, Mitchell has failed to establish by a reasonable probability that, but for trial counsel’s failure to interview the neighborhood eyewitnesses mentioned by the testifying officers, he would have been acquitted. The trial court did not err in concluding that Mitchell’s trial counsel was not ineffective.

5. Mitchell argues that the trial court erred in denying his motion for mistrial due to prosecutorial misconduct. Mitchell contends that the Valdosta Police Department has a policy of destroying original field notes and that this policy violates his due process, fair trial, and confrontation rights because he cannot examine the police officers’ first impressions. Further, he argues, the similarity of the different officers’ reports suggests that the officers edit their stories to “conceal any flaws in the prosecution’s case.” Mitchell cites no authority for this argument.

The State responds first that the arresting officer, Detective Connor, testified that the police department has no policy regarding field notes and that every piece of paper that goes into the trash is shredded as a matter of routine. He does not keep a notebook; he simply jots down on a small pad names, addresses, and other details while he is responding to a situation. He then uses those notes to write his official report when he returns to the station, and when he is done, his notes are shredded.

Decided February 1, 2000.

Bennett Law Firm, Michael S. Bennett, Sr., James T. Bennett, for appellant.

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Mitchell has produced no evidence that the police department had a policy regarding field notes or that Detective Connor or any officer involved in this case edited their reports to conceal flaws in the prosecutor’s case, or for any other purpose. While he argues that the similarity in the officers’ reports suggests collusion, an equally plausible explanation for the similarity is that the officers saw the same things. We are not persuaded by Mitchell’s arguments and conclude that the trial court did not err in refusing to declare a mistrial due to prosecutorial misconduct.

6. Finally, Mitchell argues that the State violated his Sixth Amendment right to be represented by counsel of his own choosing and seeks to have us consider letters to the trial court which are attached to his brief. We may not consider on appeal evidence that is not included in the record sent from the trial court. Sun v. Bush, 179 Ga. App. 80, 81 (4) (345 SE2d 85) (1986). Second,

a criminal defendant does have a constitutional right to be defended by counsel of his own selection whenever he is willing and able to employ such counsel. However, an indigent criminal defendant does not have an absolute right to discharge one court-appointed counsel and have another substituted in his place. A request of this sort addresses itself to the sound discretion of the trial court.

(Citations and punctuation omitted.) Hesterlee v. State, 210 Ga. App. 330, 333 (2) (436 SE2d 32) (1993). We find that the trial court did not abuse its discretion in denying Mitchell’s request for a different public defender.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.