author: Johnson, Judge.

text:
    A96A2099.
    BOLDEN v. THE STATE.
    (480 SE2d 395)
   Johnson, Judge.

A jury found Morris Bolden, Jr. guilty of six counts of sale of cocaine. He appeals from his convictions and the denial of his extraordinary motion for new trial.

1. Bolden contends that the trial court erred in denying his motion for mistrial after a witness for the state improperly placed his character into evidence. During his direct examination of Agent Steven Brady of the Bureau of Alcohol, Tobacco & Firearms (“ATF”), the prosecutor asked Brady if he had ever seen any pictures of Bolden before the date of the first undercover drug buy. When Brady responded that he had a photograph of Bolden, the prosecutor asked who gave it to him. Brady answered that the picture was supplied by the sheriff’s department. Bolden immediately moved for a mistrial, which the trial court denied. The court then gave curative instructions to the jury.

This enumeration presents no grounds for reversal. “[A] mere reference to the fact that the defendant’s photograph was already in police records does not place the defendant’s character in issue. [Cit.]” Cornish v. State, 219 Ga. App. 884, 886 (2) (466 SE2d 919) (1996). Furthermore, any objection to the testimony was waived when defense counsel consented to the trial court’s offer to give the curative instruction. See Thomas v. State, 180 Ga. App. 685, 687 (4) (350 SE2d 253) (1986).

2. Bolden complains that he was denied effective assistance of counsel. “To prevail on a claim of inadequacy of counsel, appellant must show counsel’s performance was deficient and the deficient performance prejudiced the defense. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Maner v. State, 221 Ga. App. 826, 828 (1) (b) (472 SE2d 716) (1996).

(a) Bolden claims that trial counsel was ineffective because he failed to move for a mistrial when ATF Agent Stephen Bisnett injected his character into evidence. On direct examination, Agent Bisnett testified that law enforcement agencies had “targeted local violators” for their undercover operations. On cross-examination, defense counsel asked Bisnett to explain what he meant by “targeting someone.” Bisnett responded: “When we look at what I consider a potential target, typically the person that we’re looking at . . . has got to be a convicted felon, and he has to either be carrying or using a firearm during the commission of a drug-trafficking crime, or he qualifies as what the federal government considers an armed career criminal.” It is questionable whether this testimony could reasonably be construed as having placed Bolden’s character in issue, inasmuch as Bisnett stated only that typically the person targeted had these characteristics, not that Bolden himself possessed them. Moreover, Bisnett’s statement was in direct response to defense counsel’s question. “[Djefense counsel will not be heard to object to the answer, no matter how prejudicial it may be, if the answer is a direct and pertinent response to [his own] question.” (Citation and punctuation omitted.) Williams v. State, 214 Ga. App. 834, 836 (2) (449 SE2d 532) (1994). Nor may he demand a mistrial based on such an answer. Martin v. State, 193 Ga. App. 581, 584 (2) (388 SE2d 420) (1989). Because a motion for mistrial would have been to no avail, counsel’s failure to make such a motion does not constitute deficient performance. See generally Tenant v. State, 218 Ga. App. 620, 623 (2) (d) (462 SE2d 783) (1995).

(b) Bolden also alleges that counsel’s failure to interview him or his witnesses before trial amounted to ineffective assistance. Trial counsel testified at the hearing on the motion for new trial that he attempted on several occasions to speak with Bolden but that generally Bolden refused to talk to him about anything other than getting bond set, and once refused to speak to him at all when he came to the jail. Counsel also testified that he did discuss the case with Bolden’s witnesses, although he concluded after doing so that they could provide no exculpatory testimony. We find no deficiency or prejudice with regard to counsel’s pre-trial interviews.

(c) In a related argument, Bolden cites as evidence of ineffectiveness counsel’s failure to prepare him for testifying on his own behalf. However, Bolden cannot refuse to cooperate with his attorney and then claim that counsel failed to adequately prepare him as a witness. See generally Rivers v. State, 250 Ga. 303, 308 (6) (298 SE2d 1) (1982). Indeed, “[w]hat appears of record is that defendant’s appointed counsel [was] apparently denied the effective assistance of defendant, who refused to communicate or cooperate with [him]. . . .” Wehunt v. State, 168 Ga. App. 353, 356 (4) (309 SE2d 143) (1983).

(d) Defense counsel was not ineffective for not moving to reveal the identity of the confidential informant who accompanied the agents in the undercover operation. At the hearing on the motion for new trial, counsel stated that he knew the identity of the confidential informant. Under these circumstances, there was no need to file a motion. The trial court did not err in finding that Bolden was not denied his right to effective assistance of counsel. See Ruffin v. State, 201 Ga. App. 792, 794 (2) (b) (412 SE2d 850) (1991).

Decided January 29, 1997.

Jeffrey S. Parker, for appellant.

Richard E. Currie, District Attorney, Alexander J. Markowich, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A2143.
    ALEMAN v. THE STATE.
    (480 SE2d 393)
   McMurray, Presiding Judge.

Defendant Shelia Victoria Aleman and co-defendants Teresa Ann Stroud and Mari Lynn Hooks appeared before a jury to answer an indictment charging them with violation of the Georgia Controlled Substances Act (possession of more then one ounce of marijuana). During trial, defendant Aleman’s attorney moved for a mistrial after the State’s attorney elicited a response from an arresting officer which violated the trial court’s ruling excluding defendant’s admissions that she owned marijuana found at the arrest scene. The trial court granted this motion based on the following excerpt from the State’s attorney’s direct examination of the arresting officer:

“[STATE’S ATTORNEY:] Q. Who, if anyone, was placed under arrest at [the crime scene]. A. [Defendant] Aleman was placed under arrest at that time. Q. And what was she charged with? A. Possession of marijuana with intent to distribute. Q. And why did you charge her with that particular crime? What was the basis of your — A. Because she was identified as the person to bring the dope — excuse me, to bring the marijuana to the location. Q. And were the other Defendants charged? A. No, sir. [Defendant] Stroud was charged at that time for misdemeanor possession of marijuana. Q. And was Defendant Hooks charged? A. No, sir. Q. And why wasn’t she charged at that time — [DEFENDANT ALEMAN’S ATTORNEY]: Your Honor, I’m going to object to — their reasoning for doing or not doing something is not relevant. [STATE’S ATTORNEY]: Well, he argues on one hand, Your Honor, that it has everything to do with it, and now he’s arguing on the other hand that it has nothing to do with it. THE COURT: You get closing on your objection. [DEFENDANT ALEMAN’S ATTORNEY]: Nothing further. THE COURT: I will overrule the objection. [STATE’S ATTORNEY]: Please go ahead. And why was she not — A. The other two were not charged because [defendant] Aleman stated that it was her marijuana. [DEFENDANT ALEMAN’S ATTORNEY]: Your Honor, I’ve got a motion I need to make, I guess, at this time outside the presence of the jury. . . . Your Honor, on behalf of [defendant] Aleman, I would move the Court to grant a mistrial. I think less than fifteen minutes ago the Court had ruled out statements that were allegedly made to [the arresting officer]. And now while still on direct examination it has been brought out by the State. And I don’t think [that] there’s any amount of curative instructions that the Court could give that would cure the damage that’s been done in that regard. [STATE’S ATTORNEY]: Well, Your Honor, we would ask you to give the curative instructions, if you could, if you can remove the taint from that. We will just leave it in your club. I know it wasn’t something that was intentional on the officer’s part. THE COURT: Sounded intentional to me. You kept asking the questions, kept insisting on it. In fact, I overruled his objection because you insisted on it. [STATE’S ATTORNEY]: Well, the question that was asked, why she wasn’t arrested — THE COURT: You knew what the answer was going to be because somebody else had admitted it was theirs. [STATE’S ATTORNEY]: That’s not the answer that I was looking for, Your Honor. THE COURT: The motion is granted. We’ll start all over.”

Defendant Aleman filed a plea in bar based on double jeopardy grounds, arguing that she is entitled to discharge and acquittal because “[t]he actions by the State in asking a question which elicited testimony of admissions which had just been excluded were so flagrant that [the trial court] should consider them as intended to goad [defendant] Aleman into moving for a mistrial.” The trial court denied this motion and later entered an order, finding that the State’s attorney’s question was “not intended to goad any of the Defendants into moving for a mistrial[, but was] an inartfully [sic] phrased question.”

When the case was retried, a jury found defendant Aleman guilty of the crime charged. This appeal followed the denial of her motion for new trial. Held:

1. Defendant Aleman contends the trial court erred in denying her plea in bar, arguing that “prosecutorial misconduct” compelled her to move for a mistrial.

Decided January 29, 1997.

T. Michael Martin, for appellant.

Robert E. Keller, District Attorney, David B. Hornsby, Assistant District Attorney, for appellee.

“The general rule is that where a mistrial is granted at the behest of the defendant, a retrial is not barred by principles of double jeopardy unless ‘ “the governmental conduct in question is intended to ‘goad’ the defendant into moving for a mistrial.” ’ Fugitt v. State, 253 Ga. 311, 315-316 (319 SE2d 829) (1984) (quoting from Oregon v. Kennedy, 456 U. S. 667, 675-676 (102 SC 2083, 72 LE2d 416) (1982)).” Mobley v. State, 262 Ga. 808 (1), 809 (426 SE2d 150). In the case sub judice, defendant Aleman argues that the trial court’s open court declaration that the State’s attorney intended to elicit prohibited testimony from the arresting officer requires a finding that “the conduct of the State was specifically designed to ‘goad’ [her] into requesting a mistrial. . . .” This argument is without merit.

The controlling issue is not whether the State’s attorney intended to elicit the prohibited testimony, it is whether the State’s attorney specifically intended to “goad” defendant Aleman into requesting a mistrial. See Williams v. State, 258 Ga. 305, 310 (1), 312 (369 SE2d 232). “[A]nd such intent is a fact question for the [trial] court to resolve. [State v. Whitehead, 184 Ga. App. 162, 163 (361 SE2d 41)].” Reed v. State, 222 Ga. App. 376 (1), 377 (474 SE2d 264). In the case sub judice, the trial court found that the State’s attorney’s question to the arresting officer was “not intended to goad any of the Defendants into moving for a mistrial[, but was] an inartfully [sic] phrased question.” Since the circumstances support these findings, denial of defendant’s plea in bar was not error.

2. Defendant Aleman next contends the trial court erred in allowing the State’s use of a scientific report which the State failed to provide her in violation of OCGA § 17-16-4 (a) (3).

“If the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may prohibit the State from introducing the evidence it improperly withheld from the defense. This sanction, however, applies only where there has been a showing of prejudice to the defense and bad faith by the State. OCGA § 17-16-6.” Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696). In the case sub judice, defendant Aleman made no showing at trial that she was prejudiced as a result of the State’s failure to make the scientific report in question available to her before trial. Consequently, the trial court did not err in allowing the State’s use of this scientific report at trial.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.

       The trial court’s ruling regarding these admissions was made during a hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908).


author: McMURRAY, Presiding Judge.

text:
    A96A2252.
    KILGORE et al. v. GOLD KIST, INC. et al. NORTH et al. v. STEPHENS et al.
    A96A2253.
    (480 SE2d 391)
   McMURRAY, Presiding Judge.

Louise Hutchison (“the deceased”) was fatally injured when Thomas Stephens, while acting within the scope of his employment with Gold Kist, Inc. (“Gold Kist”), struck the side of the deceased’s car with Gold Kist’s delivery truck. The collision occurred as the deceased was crossing the highway in front of Stephens’ oncoming vehicle. Stephens’ evasive steering and braking maneuvers failed to avert the collision. Two lawsuits against Stephens and Gold Kist arose from the collision.

Plaintiffs Jeanette Kilgore, executrix of the deceased’s estate, and Neldon Hutchison, executor of the deceased’s estate, filed an action for funeral and other expenses, and the deceased’s children, plaintiffs Verna North, Charles Hutchison, Nelson Hutchison, Jeanette Kilgore and Welber Hutchison, filed a wrongful death action. Both complaints allege that Stephens’ negligent operation of Gold Kist’s delivery truck was the proximate cause of the fatal collision. The suits were consolidated for a jury trial.

Plaintiffs offered expert testimony at trial that Stephens was exceeding the posted 55 mph speed limit just before the fatal collision. Stephens and Gold Kist offered expert testimony that Stephens was not exceeding the posted speed limit. The trial court, however, sustained Gold Kist’s and Stephens’ objections to Welber Hutchison’s testimony that he duplicated the conditions under which Stephens was allegedly driving at the time of the collision — using a similar delivery truck — and that he “could not slide to the intersection [where the fatal collision occurred].”

The jury entered a verdict in favor of Stephens and Gold Kist. These appeals followed. Because the enumerations of error and arguments are identical, we consolidated Case Nos. A96A2252 and A96A2253 for disposition in this opinion. Held:

In two enumerations of error, plaintiffs contend the trial court erred in refusing to allow Welber Hutchison’s testimony regarding the braking test he conducted. We do not agree.

The admission of testimony as to experiments rests within the trial court’s discretion and this discretion will not be overturned on appeal absent manifest abuse. Reliance Ins. Co. v. Bridges, 168 Ga. App. 874, 882 (5) (311 SE2d 193). Although plaintiffs proffered testimony in the case sub judice that the truck Welber Hutchison used to perform the braking test in question was similar to the truck Stephens was driving at the time of the collision, plaintiffs proffered no proof that Welber Hutchison’s test-truck’s braking system was the same or similar to the braking system on the truck Stephens was operating at the time of the collision. Under these circumstances, we cannot say the trial court abused its discretion in refusing to allow Welber Hutchison’s testimony regarding the braking test he conducted. Assuming the contrary, however, we find no reversible error.

Decided January 29, 1997.

Chambers, Mabry, McClelland & Brooks, Clyde E. Rickard III, for appellants.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Perry A. Phillips, Merritt M. Wofford, for appellees.

“Where certain evidence is excluded over objection, but the record contains similar evidence establishing the fact which it is sought to establish by the evidence which has been excluded, such exclusion will not constitute reversible error, even if the exclusion was erroneous.” Louisville & Nashville R. Co. v. McCamy, 72 Ga. App. 769 (2) (35 SE2d 206). The crux of the plaintiffs’ expert’s testimony in the case sub judice — i.e., that Stephens was exceeding the posted 55 mph speed limit just before the fatal collision — had essentially the same impact as Welber Hutchison’s testimony regarding the results of his braking test. Consequently, exclusion of Welber Hutchison’s testimony does not constitute reversible error.

Judgments affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A2372.
    WATSON/WINTER JOINT VENTURE v. MILLEDGE.
    (480 SE2d 389)
   McMurray, Presiding Judge.

Plaintiff Watson/Winter Joint Venture (“Watson/Winter”) as contractor entered into a written construction subcontract with defendant Charles & Sons Contractors (“C&S” or “Subcontractor”), for “lath, plaster, gypsum board, acoustic wall and ceiling systems” work to be performed at Clark Atlanta University. Defendant William Charles Lewis and Annie Milledge as “officers and/or owners . . .” of C&S, entered into an indemnity agreement to hold Watson/Winter harmless from “any and all loss, liability, damages, costs. . . .” Plaintiff subsequently brought suit, alleging that C&S failed to perform its obligations under the contract, and further seeking to hold the individuals William Charles Lewis and Annie Milledge “jointly and severally liable to Plaintiff Watson/Winter,” under their indemnity agreement.

Defendants answered and denied liability, although defendant Annie Milledge admitted signing the indemnity agreement “at the request of her brother, Defendant [William Charles] Lewis, as an [accommodation], and based on certain statements he made to her to induce her to sign.” Defendant “William Charles Lewis aka Charles Lewis, individually and d/b/a Charles & Sons Contractors,” were subsequently discharged in bankruptcy and the trial court dismissed this action as to them.

The case against Annie Milledge was tried to the State Court of DeKalb County, Georgia, without the intervention of a jury. There is no transcript of the trial proceedings in the record on appeal. According to the final judgment, at the close of plaintiff’s case, defendant Annie Milledge moved for a directed verdict. The trial court found “[t]here is no evidence that the named Plaintiff is a legal entity, and the Plaintiff, as named in the pleadings and on the contract and indemnity agreement, is not an ‘amendable defect’ that would provide for a retroactive correction.” The trial court further concluded that, since “there is no Party Plaintiff in the case, . . . Defendant Milledge’s Motion [should] be granted[, whereupon,] Plaintiff’s Complaint [was] Dismissed with Prejudice and Judgment entered for Defendants.” This appeal followed. Held:

In related enumerations of error, Watson/Winter contends the trial court erred in finding “no evidence that Plaintiff is a legal entity,” and further erred in “not advising Plaintiff what additional evidence it requires to establish Plaintiff’s legal existence and [in not] affording Plaintiff a reasonable opportunity to submit same.”

“An action may be maintained by and in the name of any unincorporated organization or association.” OCGA § 9-2-24. Nevertheless, we are unable to address any enumeration of error dependent upon a review of the evidence submitted before the trial court, because there is no transcript of the proceedings below nor any attempt to recreate the record as contemplated by OCGA § 5-6-41 (g) and (i). “In order for an appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. OCGA § 5-6-41 (c).” Deen v. United Dominion Realty Trust, 218 Ga. App. 443 (1), 444 (462 SE2d 384). Therefore, we must assume in this case that the evidence authorized the trial court’s factual determination that the named plaintiff Watson/Winter Joint Venture is not a legal entity. But this finding does not itself authorize the trial court’s dismissal of the action with prejudice, for the objection raised in defendant Annie Milledge’s motion for directed verdict is a challenge to the real party in interest under OCGA § 9-11-17 (a), which provides in part: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” In Georgia, “a joint venture [is] not a distinct legal entity separate and apart from the parties composing it. . . .” Boatman v. George Hyman Constr. Co., 157 Ga. App. 120, 123 (276 SE2d 272). In the case sub judice, the real parties in interest are those entities which constitute the joint venture. The judgment in this case is therefore vacated and the case is remanded with direction that a reasonable opportunity be provided for the legal entities composing Watson/Winter Joint Venture to ratify or join the action pursuant to OCGA § 9-11-17 (a), or, upon proper motion, that the real parties in interest be joined or substituted in accordance with OCGA § 9-11-19 (a). Allman v. Hope, 200 Ga. App. 137, 138 (1), 139 (407 SE2d 107). The trial court is further directed to permit such joinder, but upon failure of plaintiff to so move within 20 days of the receipt of the remittitur, a grant of a motion to dismiss on the basis of real party in interest shall be authorized. See Henry v. Moister, 155 Ga. App. 462 (1), 463 (271 SE2d 40).

Decided January 29, 1997.

Arnold F. Ernst, for appellant.

W. Jason Uchitel, for appellee.

Judgment vacated and case remanded with direction.

Johnson and Ruffin, JJ, concur.


author: Birdsong, Presiding Judge.

text:
    A96A2373.
    THE STATE v. BUTLER.
    (480 SE2d 387)
   Birdsong, Presiding Judge.

The State appeals the grant of defendant William Clay Butler’s motion to suppress evidence of a blood alcohol test.

The trial court found that on November 5, 1995, the manager of an Arby’s restaurant in Athens, Georgia saw Butler in the restaurant talking to an employee. The manager observed Butler’s bloodshot eyes and slurred speech and detected the odor of an alcoholic beverage about his person. When Butler left the restaurant, the manager saw him go to a black or dark blue Porsche convertible with the top down; the car was parked improperly in two handicapped parking spaces. The manager instructed an employee to get the Porsche’s tag number if Butler drove away. When Butler drove the car onto Broad Street and headed west, the manager called the 911 emergency number, identified himself and his place of work, reported that a white male under the influence of alcohol had just left the restaurant, gave the car’s tag number and described it as a black or dark blue Porsche with its convertible top down. He further informed that there was a passenger in the car, and gave the direction of the Porsche’s travel as west on Atlanta Highway (Broad Street).

Officer McCain, who was parked on Atlanta Highway, heard the “be on the lookout” dispatch regarding a black Porsche heading west on Atlanta Highway. The officer was unable to recall whether any other description or information about the vehicle was given by the dispatcher. Within a few minutes of the dispatch the officer observed a black or dark blue Porsche headed westbound on Atlanta Highway. He used his flashlight to direct the car off the roadway and told its driver, Butler, to remain parked. A few minutes later, Officer Cochran arrived. When he heard over the police radio that McCain had stopped the suspect vehicle, Officer Cochran had been looking for the blue convertible Porsche with a white male driver and passenger heading west on Atlanta Highway which was reported to be operated by an intoxicated driver. When Cochran approached the driver of the blue Porsche, he detected a strong odor of an alcoholic beverage from the car. He saw Butler to be flushed of face and red of eye. When Butler stepped out of his car, he could not stand without leaning on the car and he admitted that he had been drinking alcohol.

The trial court determined that the initial stop of the defendant’s vehicle was unlawful. The court concluded that police action is justified only after the details given by an informer have been corroborated by police (Easterlin v. State, 216 Ga. App. 112 (452 SE2d 801)), and that the officer who stopped Butler had no reasonable articulable suspicion of criminal activity but stopped Butler’s vehicle only on the basis that it was a black or dark blue Porsche heading west on Atlanta Highway. According to the trial court, this information provided no factual basis that Butler had been or was about to be involved in illegal activity, nor did the officer ascertain such further information. The trial court reasoned that based on the information used by this officer, any dark-colored Porsche traveling through the area would thus have been detained unlawfully. Held:

Appellee Butler relies principally on Vansant v. State, 264 Ga. 319 (443 SE2d 474) as being a factually similar case in which the suppression of the evidence was affirmed. In that case, the policeman who responded to a dispatch about a suspected hit-and-run driver knew only that the suspect vehicle was a white van. He testified that few vehicles were on the road at 1:15 a.m., that he was within a mile of the crime and saw only one white van, but he did not observe any traffic violations or damage to the vehicle prior to the stop. The Supreme Court held that the essence of the “elusive concept” of what is sufficient cause to authorize police to stop a person is, taking the totality of the circumstances into account, whether the detaining officer has “ ‘a particularized and objective basis for suspecting the particular person stopped of criminal activity.’ ” Id. at 320, quoting United States v. Cortez, 449 U. S. 411, 417-418 (101 SC 690, 66 LE2d 621). In Vansant at 321, the court concluded “the detaining officer did not have the requisite particularized basis for suspecting the driver of this particular white van of criminal activity. He did not have a particularized description of the vehicle; he did not know the direction in which the vehicle had left the scene of the purported hit-and-run; [and] he had not observed criminal activity on the part of the person stopped.”

The circumstances in each case control this inquiry. The essential element of “articulable suspicion” is that the circumstances, though showing less than probable cause, must give rise to a suspicion which is “greater than mere caprice.” McGaughey v. State, 222 Ga. App. 477, 479 (474 SE2d 676). It was significant to the decision in Vansant that the car stopped was a “white van,” which is a very common vehicle. That fact reduced the level of particularized and objective suspicion that the white van had been engaged in criminal activity. It is equally significant in this case that the car detained was unusual and that in other significant respects — chiefly its direction on a particular highway — it matched the description acted on by the detaining officer. In this case the detaining officer had a distinct, particularized and objective basis for suspecting that an unusual car, a dark blue or black Porsche heading west on Atlanta Highway, was or had been engaged in criminal activity.

We need not speculate whether the description acted on by the detaining officer was the same as the details he remembered at trial, for entirely missing in this officer’s stop of this distinctive vehicle heading in the described location on the described highway is the element of “mere caprice” which would have made this governmental intrusion unlawful. The totality of the circumstances include the fact that the dark blue or black Porsche for which this detaining officer had been warned to be on the lookout was an unusual car and was seen heading in the precise direction of which the officer had been advised just moments before. These circumstances gave him a particularized and objective basis for suspecting the driver of this car of the reported criminal activity; the dispatch by its nature indicated that this car was the subject of suspected criminal activity. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.” Adams v. Williams, 407 U. S. 143, 145 (92 SC 1921, 32 LE2d 612); McGaughey, supra at 478-479.

Decided January 29, 1997

Kenneth W. Mauldin, Solicitor, Ethelyn N. Simpson, Assistant Solicitor, for appellant.

Boyce, Ekonomou & Atkinson, William M. Coolidge III, for appellee.

For the protection of innocent citizens, this decisional process will not admit of too much restraint, as long as it involves more than “mere caprice” and does not violate the individual freedom of citizens from arbitrary and groundless police intrusion. See McGaughey, supra at 479.

The trial court’s ruling is reversed.

Judgment reversed.

Beasley and Blackburn, JJ, concur.


text:
    A96A2539.
    KING v. THE STATE.
    (480 SE2d 385)
   Birdsong, Presiding Judge.

Phillip King appeals his conviction for two counts of sale of cocaine. He was one of several persons charged with drug offenses over a period of time and arrested in a “sweep.” Held:

1. In three enumerations of error, appellant asserts the general grounds, to wit: that the evidence is insufficient to support the verdict. The evidence shows that two undercover drug agents testified they bought cocaine from appellant on two occasions on November 15, 1993 and March 18, 1994, and at the same location. The first time they bought cocaine from appellant on November 1993 the sale was not videotaped, but the agents testified the cocaine seller (identified as appellant) depicted in a videotape of the second sale in March 1994 was the same person who had sold them cocaine four months earlier. Both undercover agents positively identified appellant at trial as the person who sold them cocaine in November 1993 and March 1994. The credibility of witnesses and the weight to be given the evidence is the sole province of the jury. Hooks v. State, 212 Ga. App. 878 (3) (443 SE2d 532); Herndon v. State, 187 Ga. App. 77, 78 (369 SE2d 264). We have reviewed the evidence in this case and find it sufficient to persuade a rational trier of fact of appellant’s guilt on both charges beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant contends the trial court erred in allowing the State to exercise peremptory challenges against four black jurors over defense counsel’s Batson objection. Appellant contends that reversible error appears in the fact that the qualified venire of jurors consisted of ten blacks and twenty-six whites and the State used four of its five strikes against black persons, with the result that the trial jury consisted of five blacks and seven whites. Especially considering that the ratio of black jurors (five) to white jurors (seven) was far greater than the ratio of potential black jurors (10) to potential white jurors (26), appellant has not made out a prima facie case of purposeful racial discrimination in the jury selection, in the totality of the relevant facts. Batson v. Kentucky, 476 U. S. 79, 94 (106 SC 1712, 90 LE2d 69), cited in Gamble v. State, 257 Ga. 325 (357 SE2d 792). In any case, even assuming the facts raised a prima facie indication of discrimination, we do not find clearly erroneous the trial court’s finding that the State’s strikes were racially neutral. See Sorrells v. State, 218 Ga. App. 413, 414 (461 SE2d 904). Appellant questions the reasons for the State’s strikes against only two of those four black persons. The State had charged several persons with sale of cocaine in addition to appellant, and one of those persons sat in the courtroom during appellant’s trial; of the two prospective jurors brought in issue by appellant, one knew other persons who were charged with sale of cocaine by the State, and one was a friend of the defendant’s grandmother.

Decided January 29, 1997.

Frank T. Bell, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

3. Appellant contends the trial court erred “in refusing to suppress unreliable identification evidence obtained from the witness after exposure to identification procedures which were unnecessarily suggestive some eleven (11) months after the alleged identification occurred.” Specifically, appellant refers to testimony that the agents did not have a “name” to put on the person from whom they had bought cocaine in November 1993 until appellant was videotaped selling cocaine to the agents in March 1994 and was identified by them as the same person who sold them cocaine on the November 1993 occasion. As appellant did not object to this identification process at trial, any error was not properly preserved. See Scott v. State, 243 Ga. 233, 234 (253 SE2d 698).

4. Likewise, as to appellant’s complaint that the videotape of the March 1994 sale was shown in the jury room, no objection was made at trial and cannot be made for the first time on appeal. Id.

5. Appellant concedes he made no objections to the trial court’s charge and he therefore presents nothing for us to review.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


text:
    A97A0440, A97A0441.
    COPELAND v. THE STATE (two cases).
    (480 SE2d 623)
   McMurray, Presiding Judge.

Defendant Copeland was convicted of leaving the scene of an accident in violation of OCGA § 40-6-270. In Case No. A97A0440, defendant appeals his conviction while in Case No. A97A0441, he appeals the denial of his motion for supersedeas bond pending appeal. Defendant has asserted that although he is not in custody there are continuing adverse consequences resulting from his conviction, particularly the revocation of his driver’s license which would be stayed by the grant of a supersedeas bond. Held:

In his appeal from his conviction of leaving the scene of an accident, defendant has submitted enumerations of error which are predicated on factual assertions unsupported by the record. There is no transcript of the proceedings below. In his notice of appeal defendant indicated that although his trial was not reported he intended to submit a transcript prepared from recollection for approval by the trial court pursuant to OCGA § 5-6-41 (g). The record does contain a document signed by defendant’s attorney and styled as a proposed transcript from recollection but as it has not been approved by the trial court we may take no notice of it or of the factual statements contained in defendant’s brief which are unsupported by the record. Generally, such failure to show error via the record from the lower court is fatal to an appellant’s contentions. Wright v. State, 215 Ga. App. 569 (2) (452 SE2d 118); Hudson v. State, 197 Ga. App. 428, 429 (2) (398 SE2d 779).

Nonetheless, an exception to the general rule has developed based on Jones v. Wharton, 253 Ga. 82 (316 SE2d 749), wherein the Supreme Court has held that in any case where an accused is placed on trial and faces imprisonment, a constitutional guarantee of right of counsel attaches, the waiver of which may not be presumed from a silent record. The procedure required under Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) was made applicable to misdemeanor cases, and the Supreme Court further held that where an accused is proceeding pro se, “a valid waiver of right to trial by jury cannot be found on the sole ground that defendant failed to request one.” Jones v. Wharton, supra at 84.

Defendant enumerates as error the denial of his rights to counsel and trial by jury. Unsupported by any transcript, defendant states in his brief that he appeared in court, pleaded not guilty, and that the trial court immediately began receiving evidence in the trial without advising him of any of the rights he now maintains he was denied. The State maintains that the absence of a transcript requires that we assume the trial court’s judgment is supported by the evidence. The same argument was made by the State in the similar case of Keith v. State, 218 Ga. App. 729 (463 SE2d 51), but in that case the issue posed by the absence of the transcript was avoided because the prosecution conceded that Keith’s statement of the facts in his brief to this Court was accurate.

Decided January 29, 1997.

James S. Lewis, for appellant.

In the case sub judice, the State in its brief “consents to nothing” contained in defendant’s statement of facts. Whether this complies with Court of Appeals Rule 27 (b) (1) which requires that appellee “point out any material inaccuracy or incompleteness of statement in the appellant’s brief” is doubtful. Is the State controverting defendant’s statement of the facts? We need not seek an answer since a subsequent decision of this Court clearly rejects the argument posed by the State based on the absence of a transcript.

In Keegan v. State, 221 Ga. App. 487 (2) (472 SE2d 107), which coincidentally arises in the same trial court and involves an appeal from a conviction for the same offense as in the case sub judice, an allegation of a denial of the right to a jury trial was raised on a silent record. This Court held that when such a claim is raised by a criminal defendant, the State must show, either from the record or from appropriate extrinsic evidence, that the accused intelligently consented to the waiver. There, as in the case sub judice, the State did not meet this burden but relied on the failure of the record on appeal to affirmatively show error. Id. at 488.

As in Keegan, in view of the absence of a transcript and the failure of the State to satisfy its burden, we vacate the conviction and sentence and remand this matter for an evidentiary hearing to determine if defendant Copeland properly waived his right to counsel and right to trial by jury. If the trial court so determines, the conviction and sentence may be reinstated and be subject to appeal, if desired; if the court determines otherwise, Copeland will be entitled to a new trial. See also Payne v. State, 217 Ga. App. 386, 387 (460 SE2d 297).

Defendant’s remaining enumerations of error either present nothing for review on appeal because unsupported by the record or are rendered moot by the preceding portions of this opinion. Nonetheless, we note the right of a misdemeanor defendant to bail and supersedeas bond pending appeal pursuant to OCGA §§ 17-6-1 (b) (1) and 5-6-45.

Judgments vacated and cases remanded with direction.

Beasley and Smith, JJ., concur.

June D. Green, Interim Solicitor, Steven E. Rosenberg, Assistant Solicitor, for appellee.


text:
    A96A2473.
    LOGAN v. TUCKER et al.
    (480 SE2d 860)
   Birdsong, Presiding Judge.

Appellant/plaintiff Tonce Logan, Sr. d/b/a Logan Photography, a Georgia business operating in Muscogee County, appeals from the order of the superior court granting summary judgment on behalf of appellees/defendants Leonard Tucker, individually, and Rekcut Photographic, Inc., a Florida corporation d/b/a Leonard’s Studio. Rekcut is engaged in commercial and group photography and competes for contract awards at various schools and military bases, including Fort Benning, Georgia and Parris Island, South Carolina.

This is an action for damages; suit was filed on November 10, 1994 and process was served on December 14, 1994 on Mr. Ben George. Mr. George was an employee of Leonard’s Exchange Portrait Studios, Inc. (LEPS), which is also a Florida corporation. LEPS subcontracts with Rekcut to sell and distribute photographs and yearbooks which are produced as part of Rekcut’s military contracts. LEPS was dismissed from the complaint and Rekcut was added as a party on or about October 20, 1995.

The case arises from a dispute over the use of certain photographic images of United States Marine Corps (Marine Corps) training-related activities. Appellant Logan, a professional photographer, was awarded a class book supply contract with the Marine Corps at Parris Island, South Carolina. In the performance of this contract, appellant expended time and money to secure photographic images at the Marine base for use in the class books. These photographs had to be obtained without disrupting the base’s training schedule. All class books contained this basic photographic work, although additional photographs of trainees were taken as each training group progressed through their training cycle. None of the cycle class books or photographs indicated the claim of a copyright thereon.

In 1988, Rekcut was awarded the contract by the Marine Corps at Parris Island, South Carolina to produce training cycle books which are sold to recruits as mementoes of their training experiences. After the contract award, the Marine Corps asked Rekcut if it would complete the production of other training cycle books which had been ordered pursuant to the contract previously awarded to appellant Logan. Rekcut was informed that Mr. Logan had failed to perform on his contracts and that he had already been paid; however, Rekcut was offered a fee to complete the Logan contract. To expedite its production of the cycle books not delivered by appellant Logan, appellee Tucker telephonically contacted Mr. Logan at his place of business in Muscogee County and offered to purchase the original negatives of cycle-related photographs for use in the cycle books. Appellant offered the plates to appellees for $120,000. Appellee Tucker rejected this offer, as he considered it too high, but indicated appellees would respond with a counter-offer. Believing that Mr. Logan had no copyright protection, as produced cycle books bore no marking indicating, a copyright claim, appellee Tucker telephonically contacted appellant’s printer, Waldrup Printing, who had been hired to produce physically the book under appellant’s contract. Waldrup Printing also operates its business in Muscogee County, Georgia; Mr. Andrew Waldrup is an officer of this corporation. Appellant bad supplied his photographs to Waldrup Printing who made color separations therefrom which would allow the printer to include the photographic images in the books being produced. (Color separations are enlarged page and/or poster-size pictures which are made from negatives or photographs, or lithographic film which printers use to produce printing plates.) Neither Mr. Waldrup nor appellant was of the belief that the images had been sold or given to Waldrup. Waldrup elected to sell the color separations of appellant’s photographs to appellee Tucker for $5,000. Before purchasing the color separations, Mr. Tucker asked and was assured by Mr. Waldrup that the color separations used in the Parris Island contracts had been prepared by and were the property of Waldrup Printing Company. Rekcut used the color separations to produce cycle books for the Marine Corps at Parris Island; neither Mr. Logan’s negatives nor any other item except the Waldrup Printing Company’s color separations were used to produce the booklets. There also exists some evidence that the Marine Corps offered Mr. Waldrup the opportunity to complete the Logan contract prior to the sale of the color separations. In fact, Waldrup Printing subcontracted a portion of this work to another printer. After selling the color separations, Mr. Waldrup learned there were more books to be produced under the Marine contract and contacted Mr. Tucker who agreed to complete certain printing from the color separations for Mr. Waldrup at less than Waldrup’s cost. Waldrup Printing ultimately filed for Chapter 13 bankruptcy.

Appellant Logan further alleges that, prior to the sale of the images, Waldrup had negotiated a separate contract with the Marine Corps to finish supplying the books due under appellant’s contract with the Corps. However rather than print the books, Waldrup hired appellee Rekcut to complete this work at a price substantially less than Waldrup’s production cost. Thus it is contended that the printing of the books by Rekcut in fact was part of the negotiated price for the sale of the color separations by Waldrup to Rekcut. Held:

1. The applicable summary judgment standard is that of Lau's Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Contrary to appellant’s contention, this standard rather than the standard applying to motions to dismiss applies in this case.

2. Appellant/plaintiff averred in his complaint a claim of wrongful conversion of personal property without any averment of resulting personal injury. OCGA § 9-3-32 provides as follows: “Actions for the recovery of personal property, or for damages for the conversion or destruction of the same, shall be brought within four years after the right of action accrues.” As a general rule, a right of action for wrongful conversion accrues on the date of the conversion. Harper v. Jones, 103 Ga. App. 40, 41 (118 SE2d 279); Therrell v. Georgia Marble &c. Corp., 960 F2d 1555, 1560 (2) (11th Cir.). More than four years has expired since the date of the alleged wrongful conversion and the filing of the complaint.

Appellant contends, nevertheless, that the statute of limitation has not expired in this case because wrongful conversion of personal property is a continuing tort. However, in the absence of personal injury, the continuing tort theory does not apply in actions involving wrongful conversion of personal property. See Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365 (2) (368 SE2d 732); Citizens &c. Trust Co. v. Phillips &c. Co., 192 Ga. App. 499 (1) (385 SE2d 426); see also Hanna v. McWilliams, 213 Ga. App. 648, 649 (2) (a) (446 SE2d 741); compare Therrell, supra at 1561 (4) (concluding that the rule announced in Mercer, supra, was controlling in a conversion case). The claim of wrongful conversion averred in appellant/plaintiff’s complaint was barred by the four-year statute of limitation in OCGA § 9-3-32.

3. In its order, the trial court noted that appellant/plaintiff “does not appear to specifically claim a copyright violation in his pleadings.” We agree. Examination of the original complaint, the amended complaint and the first amended complaint filed in this case reveals that the only claim averred of which appellees were placed on reasonable notice was that of wrongful conversion. “Under notice pleading procedure of the Civil Practice Act, only a short and plain statement of the claim is required; nevertheless, a complaint must give a defendant notice of the claim in terms sufficiently clear to enable him to frame a responsive pleading thereto.” Allen v. Bergman, 201 Ga. App. 781, 783 (3) (b) (412 SE2d 549); Bazemore v. Burnet, 117 Ga. App. 849, 852 (161 SE2d 924). “Giving appellant/plaintiff the benefit of all reasonable inferences that can be drawn from the complaint [cit.], we find that appellees were not placed on reasonable notice” {Allen, supra at 783) of any claim grounded upon either a common law or federal statutory copyright violation. Neither were appellees placed on reasonable notice of any claim grounded upon breach of implied contract such as was averred in Wilson v. Barton & Ludwig, Inc., 163 Ga. App. 721, 722 (1) (296 SE2d 74).

Decided January 17, 1997

Reconsideration denied January 30, 1997.

Agnew, Schlam & Bennett, G. Michael Agnew, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, James E. Humes II, for appellees.

Additionally, any available state remedy currently existing for a common law copyright violation, under the facts and pleadings here attendant, would have been limited to that of a claim for wrongful conversion under OCGA § 9-3-32; as discussed in Division 2 above, such a claim is barred due to the expiration of the four-year statute of limitation. Moreover, this Court held in Monumental Prop. &c. v. Frontier Disposal, 159 Ga. App. 35, 37 (2) (282 SE2d 660) that “[w]hile our court has referred to a so-called ‘common law copyright’ in Jones v. Spindel, 128 Ga. App. 88 (196 SE2d 22) [ ]; Jones v. Spindel, 122 Ga. App. 390 (177 SE2d 187) []; Jones v. Spindel, 113 Ga. App. 191 (147 SE2d 615) [ ], we find no authority therefor.” See also Wright v. Tidmore, 208 Ga. App. 150 (430 SE2d 72).

As the claims which appellant asserts either have not been adequately raised by the pleadings or have been barred by expiration of the applicable statute of limitation, the trial court did not err in granting summary judgment to appellees/defendants. “ ‘(A) grant of summary judgment must be affirmed ... if it is right for any reason.’ ” Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746).

Judgment affirmed.

Beasley and Blackburn, JJ, concur.


author: Ruffin, Judge.

text:
    A96A1951.
    MATTHEWS v. THE STATE.
    (481 SE2d 235)
   Ruffin, Judge.

A jury found Hughlon Matthews guilty of two counts each of criminal damage to property and discharge of a gun near a highway and one count each of aggravated assault, possession of a firearm during the commission of a crime, criminal trespass, and possession of a firearm by a convicted felon. Matthews appeals, challenging the sufficiency of the evidence for his convictions of aggravated assault and criminal trespass. For reasons which follow, we affirm Matthews’ conviction for aggravated assault and reverse his conviction for criminal trespass.

1. Matthews asserts the evidence was insufficient to support his conviction for aggravated assault because there was no evidence showing he intended to injure the victim. The evidence concerning this offense, viewed in a light to support the verdict, shows that Mike and Melinda Thomas were sitting in their living room one afternoon when they heard a gunshot. Mike Thomas looked out his living room window and noticed that their car, which was parked directly in front of the window, had a window shot out and that shotgun pellets had hit the house immediately beneath the living room window. Mike Thomas testified that if the shot “had been up a little bit more, it’d have went in the house. . . .” The Thomases also saw Matthews and Matthews’ two sons sitting in a car stopped in front of the house. According to Melinda Thomas, Matthews was sitting in the driver’s side of the car with a shotgun “on his little boy’s shoulder, facing — pointing toward me.” When Matthews fired another shot out the passenger side of the car, Mike Thomas grabbed Melinda and threw her to the floor. Melinda testified: “I hit the floor when I saw the gun facing my face.” She also testified that she was in fear for her life. After the second shot, Matthews drove away, and the Thomases called the police.

Matthews contends that the evidence shows only that he intended to shoot the Thomases’ car and that such intent is insufficient to support a conviction for aggravated assault. We disagree. The evidence showed that Matthews assaulted Melinda Thomas with a deadly weapon.

“The offense of aggravated assault has two essential elements: (1) that an assault, as defined in OCGA § 16-5-20 be committed on the victim; and (2) that it was aggravated by . . . use of a deadly weapon.” (Citations and punctuation omitted.) Jordan v. State, 214 Ga. App. 598, 599 (1) (448 SE2d 917) (1994). A person commits an assault under OCGA § 16-5-20 (a) (2) when the person “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” Id. Intent to injure is not an element of aggravated assault with a deadly weapon when the assault element is predicated on OCGA § 16-5-20 (a) (2). Id. “[I]f the pointing of the firearm placed the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred.” (Citations and punctuation omitted.) Id. at 600. Accordingly, the evidence showing that Matthews pointed the shotgun toward Melinda Thomas and that this caused her to fear for her life was sufficient for a rational trier of fact to find beyond a reasonable doubt that Matthews was guilty of aggravated assault. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Jordan, supra.

2. We agree with Matthews, however, that the evidence was insufficient to support his conviction for criminal trespass. Viewed in a light to support the verdict, the evidence concerning this charge showed that on the same afternoon as the shooting discussed above, Matthews drove by another residence and fired his shotgun at a “Tony Tucker reelection or election billboard sign.” A state’s witness testified that the sign was not his, but he allowed it to be erected in his yard. The witness stated that after the shooting the sign had a bunch of pellets in it, “[m]aybe 10 or 20.” Importantly, the transcript is devoid of any description of the sign or anything indicating its worth.

Decided January 30, 1997.

Anthony E. Cheatham, for appellant.

Stephen F. Lanier, District Attorney, Emory B. Thompson, Assistant District Attorney, for appellee.

“A person commits the offense of criminal trespass when he intentionally damages any property of another without his consent and the damage thereto is $500.00 or less. . . .” OCGA § 16-7-21 (a). “This court has held that where there is no evidence as to whether the amount of damage done is more or less than $100 [now $500], no conviction can stand under Code Ann. § 26-1503 (a) [now OCGA § 16-7-21 (a)]. Fullewellen v. State, 127 Ga. App. 568, 569 (194 SE2d 275) (1972).” Johnson v. State, 156 Ga. App. 411, 413 (2) (274 SE2d 778) (1980). See also Vaughan v. State, 210 Ga. App. 381, 384 (4) (436 SE2d 19) (1993) (jury charge on OCGA § 16-7-21 (a) not authorized where there is no proof that damage was $500 or less).

Furthermore, although a jury may draw from their own experience in forming estimates of damage to everyday objects (Mallory v. State, 164 Ga. App. 569, 570 (2) (298 SE2d 290) (1982)), the evidence in this case was insufficient to permit any such finding. No one described the sign even generally so as to permit a determination of whether it was a small cardboard yardsign, as is typically found erected around election time, or whether it was a large billboard such as those that are erected along major thoroughfares. As noted in Jordan, the state simply “left a hole in drawing the circle of evidence. . . .” Jordan, supra at 601. Matthews’ conviction for criminal trespass under Count 6 of the indictment is accordingly reversed.

Judgment affirmed in part and reversed in part.

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


text:
    A96A2100.
    McKEEN v. McKEEN et al.
    (481 SE2d 236)
   Ruffin, Judge.

Paul McKeen and Shirley McKeen filed an action for grandparents’ visitation against Keri McKeen pursuant to OCGA § 19-7-3. The trial court found that Paul and Shirley McKeen met the special circumstances requirement of OCGA § 19-7-3, but ruled that grandparent visitation rights were not necessary to the best interests of the child because of the acrimony and antipathy between the parties. Keri McKeen filed a motion for attorney fees based upon OCGA § 9-15-14. The trial court denied this motion, and Keri McKeen appeals. We reverse.

1. In her first enumeration of error, Keri McKeen asserts the trial court erred in denying her motion for attorney fees. Pursuant to OCGA § 9-15-14 (b), a trial court may assess attorney fees if it finds (1) that an. attorney or party brought or defended an action that lacked substantial justification or (2) that the action was interposed for delay or harassment or (3) that an attorney or party unnecessarily expanded the proceedings by other improper conduct. An award under OCGA § 9-15-14 (b) “is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents &c., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

While the trial court was correct in limiting its consideration of this motion to conduct relating to the grandparent visitation suit, a number of actions taken by Paul and Shirley McKeen in the suit arguably evidence some basis for an award of attorney fees. The record shows that Paul and Shirley McKeen filed a motion for contempt citing a March 10, 1993 temporary order from the trial court, yet the record is devoid of any March 10, 1993 temporary order. In addition, there is also evidence that Keri McKeen gave proper notice to take the depositions of Paul and Shirley McKeen, but they did not appear for the depositions or make any effort to notify Keri McKeen that they would not appear. These actions, inter alia, could form the basis for an award of attorney fees under the grounds of harassment or unnecessarily expanding the proceedings.

The decision by the trial court which denied Keri McKeen’s request for attorney fees, however, fails to address any of Keri McKeen’s allegations and instead looks only to the words of the initial order. Although that order denied grandparent visitation rights, it found that Paul and Shirley McKeen met the special circumstances requirement of OCGA § 19-7-3. Consequently, the trial court based its denial of the motion for attorney fees on the fact that Paul and Shirley McKeens’ visitation claim did not lack substantial justification. This ignores Keri McKeen’s allegations of harassment and discovery abuse, which can support a motion for attorney fees under OCGA § 9-15-14 (b).

Decided January 30, 1997.

Chuck Sylvester, for appellant.

Lewis, Taylor & Todd, James R. Lewis, Jeffrey M. Todd, Daniel W. Lee, David E. Morgan III, David J. Turner, Jr., for appellees.

We conclude that the trial court abused its discretion in not properly reviewing the issues raised by Keri McKeen prior to making its decision on the motion for attorney fees. The trial court was obligated to address Keri McKeen’s claim that Paul and Shirley McKeen harassed her or unnecessarily expanded the proceedings by other improper conduct. We accordingly remand this case for consideration of Keri McKeen’s other claims. In rendering this decision, we in no way express an opinion regarding the merits of Keri McKeen’s motion for attorney fees.

2. In her eighth enumeration of error, Keri McKeen contends the trial court erred in denying her request for oral argument on the motion for attorney fees. She cites the case of Dixon v. McClain, 204 Ga. App. 531 (420 SE2d 66) (1992), in support of her claim that oral argument was necessary due to the trial court’s delay in reaching a decision on the motion. The Dixon case, however, involved a request for oral argument on a motion for summary judgment, not a motion for attorney fees, hence it is inapposite.

Uniform Superior Court Rule 6.3 specifically limits the right to oral argument on motions to motions for new trial, motions for j.n.o.v. and, upon written request, motions for summary judgment. There is no right to oral argument on other motions. Hosley v. Computer Transport of Ga., 218 Ga. App. 835, 837 (2) (463 SE2d 526) (1995). Accordingly, the trial court did not err in denying Keri McKeen’s request for oral argument on her motion for attorney fees.

3. Based on our conclusion in Division 1, we need not reach the remaining enumerations.

Judgment reversed and remanded.

Johnson, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2103.
    MCDONALD v. THE STATE.
    (481 SE2d 1)
   Ruffin, Judge.

A jury found Ray McDonald guilty of reckless conduct. McDonald appeals, challenging the sufficiency of the evidence. We affirm.

Viewed in a light most favorable to support the verdict, the evidence shows the following. The victim was Sherri Bias, McDonald’s wife at the time of the incident. McDonald and Bias had an argument the evening preceding the incident, and Bias left their home to spend the night with a friend. When Bias returned home the following morning, she noticed a handgun lying on the sofa. Bias told McDonald she was leaving him and began walking about the home packing her belongings. As Bias walked into the kitchen, she saw McDonald holding the handgun. The two began arguing, and McDonald grabbed Bias’ arm. While still holding Bias in one hand and the handgun in the other, McDonald threatened to kill himself. When Bias “jerked down” to get away, McDonald fired the gun into the kitchen cabinets. Bias testified that when McDonald fired the gun, her “ears felt like they were coming slap apart. It was just like a big old canon [sic] had went off, and they were just ringing and ringing. . . .” As Bias ran from the house, she heard another gunshot.

McDonald admitted he did something “stupid” when he fired the gun while holding Bias by the arm. According to McDonald, he grabbed Bias’ arm when she attempted to exit the door. McDonald testified that he put the gun to his head, threatened to kill himself, then shot the gun in the air. McDonald also admitted he fired a second shot in the air after Bias ran away.

An investigating officer testified that he found one gunshot hole in a wall cabinet over a kitchen appliance. According to the officer the “[w]ood was splintered up pretty well, pretty good hole. A .357 is a right powerful weapon.” The officer further testified that based on his experience, firing such a weapon near an individual’s ear “could rupture an eardrum.”

The foregoing constitutes sufficient evidence from which a rational trier of fact could find McDonald guilty of reckless conduct under OCGA § 16-5-60 (b). “A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his 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 is guilty of a misdemeanor.” OCGA § 16-5-60 (b). See also Cowan v. State, 218 Ga. App. 422 (461 SE2d 587) (1995). From the evidence presented, the jurors could have found that when McDonald fired the first shot in the air “he did not actually intend to hurt [Bias] but consciously disregarded the substantial and unjustifiable risk that he might do so — and that that disregard constituted a gross deviation from the standard of care a reasonable person would exercise in the situation. [Cit.]” Id. at 422-423.

The dangers posed by such senseless use of firearms cannot be overstated. To borrow the language of the trial judge during McDonaid’s sentencing: “[o]ne thing that concerns me everyday that I sit up here is our society’s propensity to use weapons. Weapons when there’s absolutely no need of having them around or in your hand or in your pocket or in your presence. . . . [E]ven in believing every word that [McDonald] said about how the incident occurred ... I think stupid is an understatement. It could’ve resulted in a death but for the grace of God.” Evidence of firing a .357 handgun near a person’s head, while standing inside a building gripping the person’s arm, is sufficient to satisfy the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided January 30, 1997.

Gale & Henley, Teddy L. Henley, for appellant.

James R. Osborne, District Attorney, Cari Ann Kaplan, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A96A2186.
    MARION v. THE STATE.
    (480 SE2d 869)
   Beasley, Judge.

Marion was convicted on four of six counts of aggravated assault (OCGA § 16-5-21 (a) (2)) and one count of misdemeanor theft by shoplifting (OCGA § 16-8-14 (a) (1), (b) (1)).

Evidence showed department store security personnel observed Marion shoplifting, approached him, and began to escort bim to the security office. Marion broke away, produced a knife, confronted security officer Powell with it, and ran out of the store into the enclosed mall with security officer Scheirer in pursuit. In the mall off-duty sheriff’s deputy Agasarkisian confronted Marion, who stabbed at him with the knife. Agasarkisian backed away, and when Marion resumed flight, Agasarkisian joined pursuit. He was not in uniform, but his badge and gun were visible.

Marion went back into the department store and then into the parking deck. He encountered a security vehicle from which security guard Elliott emerged and told Marion to stop. Marion displayed the knife and told Elliott to back off. Marion ran out into the parking lot where Jacoby, another off-duty sheriff’s deputy, joined the chase.

Still holding the knife, Marion tried to enter two cars and again brandished the knife toward Elliott. While then attempting to enter a public bus, he made an aggressive movement with the knife toward Jacoby, who was giving the bus driver instructions. Marion held on to the bus as it left, but it stopped abruptly, he fell to the ground, dropped the knife, and was apprehended.

Evidence was also presented concerning Marion’s actions towards security officers Scheirer and Ham, who originally approached him, but the jury acquitted Marion of the two counts of aggravated assault based upon those actions.

1. In his first enumeration Marion contends the court’s denial of his motion for continuance, made at the beginning of trial, denied him effective assistance of counsel in violation of the Sixth Amendment to the Constitution of the United States and Art. I, Sec. I, Par. XIV of the Constitution of the State of Georgia. See also OCGA § 17-8-33 (a). Trial counsel moved for a continuance because she was hired the Friday before the Monday trial and was not prepared.

“[A] motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial [court] and a ruling denying such a motion will not be interfered with unless the [court] has abused [its] discretion in denying the motion. In these cases we have noted that the conduct of the party is a relevant and proper consideration of the [court] in the exercise of its discretion in order to prevent a party using the discharge and employment of counsel as a dilatory tactic. [Cits.]” Brannon v. State, 220 Ga. App. 572, 574 (2) (469 SE2d 716) (1996). “In all cases, the party making an application for a continuance must show that he has used due diligence.” OCGA § 17-8-20. See Bates v. State, 202 Ga. App. 460, 461 (1) (414 SE2d 691) (1992); Patterson v. State, 202 Ga. App. 440, 441 (1) (414 SE2d 895) (1992).

Although trial counsel argues on defendant’s behalf that counsel is not chargeable with dilatory conduct, that claim does not address whether Marion was dilatory or failed to exercise diligence in retaining counsel. Marion was originally represented by appointed counsel. On Monday, prior to entering a guilty plea pursuant to an agreement, Marion through counsel asked the court to postpone the plea until the next day. Counsel stated Marion “indicated he is going to accept the recommendation, that he has no intention to back out. He wanted to talk to his family, though.”

The next day counsel informed the court that Marion had stated he did not want counsel to represent him any further and that he rejected all plea offers. Marion stated he did not want to be represented by his appointed attorney because the plea agreement he had negotiated was not what Marion expected or desired as it pertained to a sentence he was already serving. Marion himself informed the court that his family was going to get an attorney for him.

The court noted that the proceedings had been postponed to allow Marion’s family to attend and that they had not done so. The court also told Marion that trial would be set for the next Monday, strongly cautioning him that his retained attorney would have to be ready then and the fact that “you’re just getting a new lawyer is not going to be an excuse to not go forward next Monday morning.” The State expressed concern that family members had stated they would be at court that day and had not done so and might not diligently seek to hire an attorney. The court told Marion to have his family there the next day at 8:30 a.m. to discuss the matter.

When Marion’s mother arrived the next day, the court denied her request for an additional two weeks to hire an attorney, stating that trial would take place Monday. The court specifically directed her to inform the attorney she hired that the case would be tried Monday and that no continuance would be granted based on that attorney’s late entry, a direction which the mother indicated she understood. The court twice advised Marion that he had three options: continue to use appointed counsel, hire one himself or through his family, or represent himself. As Marion was adamant that he did not wish appointed counsel to represent him, the court noted he now had two options: retain counsel or represent himself at trial Monday morning.

The case was called for trial on Monday before a different judge. Retained counsel appeared and moved for a continuance. After some discussion, the court agreed to postpone jury selection until the afternoon and start the trial the next day to enable counsel to meet with former counsel. The new counsel also received the State’s discovery package that day. When trial reconvened, the court informed counsel that it would accommodate her need to view evidence or take any similar action.

Although counsel stated at trial that she was not retained until Friday “because the public defender was released on Thursday,” that is incorrect. During the proceedings on Wednesday the court definitively announced that appointed counsel would withdraw. The court had stated during the proceedings the day before that such would occur. The order allowing withdrawal of appointed counsel was actually not signed until the day of trial, but there is no indication that the delay in signing the order contributed to retained counsel’s lack of preparation. Rather, the situation was clear well before the date of formal withdrawal, and retained counsel was in fact hired before the order was signed.

Marion was told to retain counsel and to inform counsel that a lack of time to prepare for trial would not justify a continuance. Although it is contended on appeal that Marion did not do so and that counsel assumed the case was set for a plea calendar and not for trial, there is no indication that she so informed the court when the case was called for trial. In any event, either counsel had been advised that the case would be tried on Monday and had accepted the case with that knowledge, or Marion had not advised her that the case would be tried on Monday as the court had directed him to do.

In denying a continuance, the court stated that it believed Marion was “kind of manipulating the system.” The prevention of such is the reason the court is permitted to look to the conduct of the party in exercising its discretion on such a motion. Brannon, supra; Bates, supra. Further, Marion has not suggested what evidence or witnesses he would have put forth in his defense had counsel more time to prepare; he only conjectures that more time to prepare might have resulted in an acquittal on some other counts of aggravated assault. See Scroggins v. State, 198 Ga. App. 29, 37 (2) (401 SE2d 13) (1990). The only additional action he contends counsel would have taken if she had additional time is to interview each witness, but he does not explain how that might have altered the result.

“Mere shortness of time does not by itself show a denial of the rights of the accused, and mere shortness of time will not reflect an abuse of the trial court’s discretion in denying a continuance, where the case is not convoluted and is without a large number of intricate defenses. [Cit.] This case involves serious issues, but they are not intricate or convoluted.” Id. The evidence on the assaults consisted of eyewitness accounts. In these circumstances, we cannot say that the court erred in denying a continuance.

2. In his second enumeration, Marion contends the court erred in denying his request to charge on reckless conduct as a lesser included offense of aggravated assault. OCGA § 16-5-60 (b). He argues that his act of running through the mall with a knife was a reckless act performed with a conscious disregard for a substantial and unjustifiable risk of harm to others. While that may be true, and might have supported Marion being indicted and tried on an additional charge of reckless conduct towards persons not named in the indictment, the question is whether the evidence concerning his actions towards those named as victims in the indictment warranted a reckless conduct charge.

Reckless conduct is a crime of criminal negligence. See Briard v. State, 188 Ga. App. 490, 493 (5) (373 SE2d 239) (1988); Weaver v. State, 185 Ga. App. 573, 574 (365 SE2d 130) (1988); Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985). Marion does not indicate how his actions toward his named victims constituted criminally negligent, reckless conduct except to say that at all times he was attempting to flee. He does not cite any portion of the transcript to support a right to the charge. He does cite portions of the transcript for the contention that he was at all times fleeing security, at least as the transcript pertains to his actions constituting the four assaults of which he was convicted. Testimony concerning flight through the mall would pertain to a separate charge of reckless conduct, not to the indicted charges. There is no testimony that would support a finding that Marion’s brandishing of the knife in the presence of the named victims was only criminally negligent rather than intentional. That he committed aggravated assault as he tried to flee does not change the character of his actions with the knife.

Decided January 30, 1997.

Cathy M. Alterman, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Donald T. Phillips, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Marion also cites testimony concerning his actions towards Scheirer and Ham, but as he was acquitted of assault as to these witnesses, any refusal to charge reckless conduct based upon those actions would be harmless error.


text:
    A96A2224.
    WRIGHT et al. v. SWINT et al.
    (480 SE2d 878)
   Birdsong, Presiding Judge.

This litigation arises from a faulty title search performed by attorney A. Ronald Cook in 1985. Cook issued a certificate of title on July 24,1985. This lawsuit was filed in November 1994 against attorney Cook and others, including Roger Herman Swint, and United Bank Corporation and its agent Joe Bostwick, who participated in the real estate closing for appellants’ purchase of the subject property. By order of July 29, 1995, the trial court dismissed all defendants except Swint (who was later voluntarily dismissed by appellants, thereby allowing a direct appeal of the dismissal of the other defendants) on the ground that this suit was not filed within the four-year statute of limitation. The Wrights appeal the dismissal of Cook and of the bank and its employee Bostwick.

Construing the evidence in favor of the Wrights on defendants’ motions to dismiss (Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 874 (463 SE2d 713)), the record shows the Wrights learned of the defective title at an aborted closing of a refinancing on November 3, 1993. Then and thereafter, attorney Cook and the other defendants made “assurances” to plaintiffs Wright that the defect was being cured. Defendants contend, and the trial court found, that Cook was never the Wrights’ attorney and that he and the bank’s officer (Bostwick) and the grantor (Swint) had no fiduciary relation with the Wrights on which the Wrights could rely to excuse their failure to discover and file suit for the defective title within four years of the performance of the 1985 title search. However, the Wrights contend Cook was their attorney and that he and the other defendants assured the Wrights on and after November 3, 1993 that they would repair the defective chain of title. The Wrights contend Cook last acted as their attorney by effecting “the reissuance of a new deed from Roger Herman Swint to plaintiffs dated January 3, 1994,” and that Cook again failed to clear title to the property, failed to advise them on January 3, 1994 that title was still under cloud, and failed to advise them to obtain title insurance.

The trial court found that this is an action in legal malpractice and that the real estate closing which forms the subject of the Wrights’ complaint against defendants took place in 1985, so that the statute of limitation as to all defendants expired in 1989. Long v. Wallace, 214 Ga. App. 466 (448 SE2d 229). Held:

1. Defendant Cook attempts to show and the trial court found on his motion to dismiss that he never acted as the Wrights’ attorney. This issue is in factual dispute. When the sufficiency of a complaint is questioned by a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible, and the defendant is not entitled to have the complaint dismissed unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts. Hartsfield, supra.

If the jury finds that Cook acted as the attorney for the Wrights on or after November 29, 1990 (four years before this complaint was filed), and attempted to fix or repair the defective chain of title on or after November 29, 1990, but did so negligently or negligently failed to do so, then the four-year statute of limitation does not bar an action for legal malpractice against him for acts he committed on or after November 29, 1990. Long, supra.

The trial court’s findings that there never existed a fiduciary relation between the Wrights and defendant Cook is a determination of fact which the trial court could not make on defendants’ motion to dismiss, inasmuch as the evidence is in dispute. If Cook served as the Wrights’ attorney within four years prior to the filing of this suit, there is no doubt he stood in a fiduciary capacity to them. Jordan v. Stephens, 221 Ga. App. 8, 9 (470 SE2d 733). The standard of determining a motion to dismiss is not based on a determination of the truth of any issue of fact; rather, the trial court must construe all allegations and all evidence most favorably to the respondent (Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583); Hartsfield, supra), and thereupon must determine whether, under any state of facts, the plaintiffs have stated a claim on which relief can be granted. See OCGA § 9-11-12; Wehunt v. ITT Business &c. Corp., 183 Ga. App. 560, 561 (2) (359 SE2d 383).

2. Assuming Cook acted as the Wrights’ attorney, an action against him for legal malpractice based on negligence must have been pursued within four years of the commission of the act. OCGA § 9-3-25; Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 65 (3) (473 SE2d 501). Any action for legal malpractice against Cook for performance of a defective title search in 1985 is therefore barred. The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude and must have the effect of debarring or deterring the plaintiff from his action. Riddle v. Driebe, 153 Ga. App. 276, 280 (265 SE2d 92), cited in Hyman v. Jordan, 201 Ga. App. 852, 854 (412 SE2d 615). No claim of fraudulent concealment is shown such that would toll the statute of limitation in this case as to a defective title search performed in 1985. We affirm the trial court’s dismissal of any claim in this regard.

3. The trial court erred in dismissing Cook and the bank and its agent Bostwick for any wrongful acts they committed on and after November 3, 1993, when (construing the evidence and pleadings in favor of the Wrights on defendants’ motions to dismiss) they made assurances to the Wrights that a defective chain of title would be fixed and even reissued a deed purporting to repair the chain of title.

No fiduciary relation existed between the Wrights and the defendant bank and its agent Bostwick merely by virtue of their efforts to make a loan to the Wrights (see Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 715 (5) (458 SE2d 887)); but if defendants by certain promises assumed duties and obligations to the Wrights to cure the cloud on title but failed to do so, including by reissuing a “deed” from Swint in 1994 which failed to repair the defective title, they may have breached a contractual duty for which action for damages may lie. The statute of limitation for such action being four years (OCGA § 9-3-25), it has not expired for acts committed negligently or in breach within four years prior to November 29, 1994 when this suit was filed.

The entire complaint as drawn under our notice pleading provisions lends itself to interpretation that the Wrights seek recovery for the failure of defendants’ duty, and if the jury finds that any such duty existed as to any defendant under the facts to cure the defective title after it was discovered, a cause of action exists therefor, if it occurred within four years prior to the filing of the complaint. OCGA § 9-3-25. A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim. Finch v. City of Atlanta, 232 Ga. 415, 416 (207 SE2d 46).

Decided January 30, 1997.

William R. L. Latson, William D. Patten, Jr., for appellants.

Swift, Currie, McGhee & Fliers, Robin F. Clark, Schrade & Richardson, Richard D. C. Schrade, Jr., Lindsey & Jacobs, Tamara Jacobs, for appellees.

4. A motion to recuse under Uniform Superior Court Rule 25 must assert facts and circumstances which, if true, would be sufficient to show partiality in the case, and requires an affidavit in support thereof. Butler v. Biven Software, 222 Ga. App. 88, 90 (1) (473 SE2d 168). It is wholly insufficient to file a motion merely citing local rules of etiquette and containing no affidavit. The trial court did not err in denying the motion to recuse upon the motion presently in the record.

Nothing prevents the filing of a proper motion and affidavit, however, on remittitur of this case.

5. In view of the ruling in this case, we reverse the award of attorney fees under OCGA § 9-15-14 as being unauthorized by that statute.

Judgment affirmed in part and reversed in part.

Beasley and Blackburn, JJ., concur.


text:
    A96A2341.
    BRUNO’S, INC. v. WEST.
    (481 SE2d 2)
   Beasley, Judge.

West brought this negligence action against Bruno’s, Inc., d/b/a Fresh Value, to recover damages for injuries allegedly sustained as a result of a trip and fall over a box in the aisle of defendant’s grocéry store. The trial court denied defendant’s motion for summary judgment under the authority of Dill’s Food City v. Johnson, 219 Ga. App. 654 (466 SE2d 250) (1995); Axom v. Wendy’s Intl., 219 Ga. App. 623 (466 SE2d 613) (1995); and Piggly Wiggly Southern v. Brown, 219 Ga. App. 614 (468 SE2d 387) (1995). We granted defendant’s application for interlocutory appeal.

West’s fall occurred after she had been shopping in the store for 35 to 40 minutes during early morning hours. As she proceeded up and down each aisle, she became aware that the store was being stocked, as she noticed employees bringing out boxes in the back of the store and saw boxes of stock in some of the aisles. She left her shopping cart on one side of the last aisle in order to get an item from the display shelf on the other side of the aisle. As she turned to go back to her cart, she tripped on a brown box of canned goods in the aisle. Although she testified she did not remember seeing any boxes in this aisle prior to her fall, she acknowledged that the box was open and obvious and in plain view, and that there were no store employees stocking the aisle when she was there. She also admitted that when she fell, she did not know where she was looking. A store manager testified that stock was put in the last aisle of the store a couple of hours before West’s fall.

Decided January 30, 1997.

Jennings & Sparwath, Stephen H. Sparwath, Long, Weinberg, Ansley & Wheeler, Paul L. Weisbecker, for appellant.

In the three cases referred to above, this Court held, by 5-4 majorities, that the defendants were not entitled to summary judgment. Each of these cases is factually distinguishable from West’s case. See also Faulkner v. Home Depot, 222 Ga. App. 449 (474 SE2d 311) (1996). In Brown, the Court could not conclude, as a matter of law, that the small puddle of water which caused plaintiff’s fall was an open and obvious danger. In Axom, the court held that the evidence authorized a finding that the colorless water on which plaintiff slipped was not observable to her before the fall. In Johnson, a four-judge plurality decided the case on the ground that one is not bound to the same degree of care in discovering or apprehending danger in moments of stress or excitement or when attention has been diverted by a distraction. The author of the present opinion concurred specially because the undisputed facts did not call for analysis under the distraction theory. Faulkner also involves distraction.

Those decisions are not inconsistent with such cases as Riggs v. Great A. & P. Tea Co., 205 Ga. App. 608 (423 SE2d 8) (1992). In Riggs, we recognized that “ ‘ “[a] merchant . . . may place cartons and containers in the aisles while he places articles on the display shelves. . . .” (Cit.)’ [Cits.]” Id. at 609. Plaintiff Riggs was barred from recovery because of her failure to exercise ordinary care for her own safety, in that the box on which she tripped was plainly visible. That is the situation here. It is undisputed that the box was plainly visible. There is no evidence of distraction or that plaintiff fell during a moment of stress or excitement. West’s case is controlled by Riggs and the cases cited therein, rendering erroneous the court’s denial of defendant’s motion for summary judgment.

Judgment reversed.

Birdsong, P. J, and Senior Appellate Judge Harold R. Banke concur.

Michael J. Moffett, for appellee.


text:
    A96A2378.
    SLATON v. THE STATE.
    (480 SE2d 872)
   Johnson, Judge.

Jarred Slaton appeals from his conviction of armed robbery and aggravated assault, and from the denial of his motion for new trial. We affirm.

1. Slaton claims the evidence was insufficient to support the conviction. An appellate court may not weigh the evidence or determine witness credibility, but must view the evidence in the light most favorable to the verdict. The presumption of innocence does not apply on appeal. Powell v. State, 218 Ga. App. 556 (462 SE2d 447) (1995). Viewed in this light, the evidence shows that two masked men robbed a convenience store in Warm Springs just after 10:00 p.m. on September 6, 1995. In addition to taking the store’s cash, the robbers pistol-whipped one of the two employees and stole a pistol from him.

Between 10:30 and 11:00 that night, Slaton and Tony McAfee (whose conviction of the robbery in a separate trial was affirmed by this Court in an unpublished opinion) went to the home of Teleshia White, about a mile and a half from the store. Slaton, breathing hard, told White he was running from police.

Between 11:30 p.m. and 12:30 a.m. the same night, Slaton and McAfee visited another home in Woodbury. Two people there heard Slaton say he and McAfee had just made a “hit” or “lick.” A GBI officer testified at trial that “lick” is slang for robbery. ■

About two weeks later, police executed a search warrant for the trailer of McAfee’s half-sister. In one of the closets, they found Slaton, McAfee, and the pistol taken in the robbery. The pistol was on a shelf in the closet, not on the person of Slaton or McAfee. McAfee had been seen with the pistol several times since the robbery, but Slaton had not.

After his arrest, Slaton was interrogated by a GBI officer. The officer testified that Slaton told her, “hypothetically,” that if three people had been involved in the robbery, McAfee would have been the one with the gun, someone else would have been the one waiting outside with a car, and Slaton would have been the second robber who went inside the store.

Based on this evidence, a rational trier of fact could have found Slaton guilty beyond a reasonable doubt of aggravated assault and armed robbery. See Mitchell v. State, 222 Ga. App. 866, 867 (1) (476 SE2d 639) (1996); Grace v. State, 210 Ga. App. 718, 719 (1) (437 SE2d 485) (1993). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Slaton asserts that the trial court erred in allowing into evidence his unredacted custodial statement, in which Slaton claimed he could take the GBI officer to a place where marijuana was growing. Slaton contends this improperly placed his character in evidence. This contention is correct. See generally Capers v. State, 220 Ga. App. 869, 875-876 (470 SE2d 887) (1996). However, the admissible evidence of Slaton’s guilt, which included his own statements heard by four people on three separate occasions, was overwhelming. The error was therefore harmless. See Shaaghir v. State, 264 Ga. 492, 493 (3) (448 SE2d 196) (1994).

3. Slaton’s remaining enumerations of error concern the jury charge.

(a) Slaton maintains that the following instruction violated Sandstrom v. Montana, 442 U. S. 510, 523-524 (99 SC 2450, 61 LE2d 39, 50-51) (1979), by shifting the burden of proof to him: “If you find beyond a reasonable doubt that the crime of armed robbery has been committed as charged in the indictment and certain personal property was stolen as a result of such crime and if recently thereafter the defendant should be found in possession of the stolen property, that would be a circumstance along with all other evidence from which you may infer guilt as to the charge of armed robbery as set forth in the indictment, if you see fit to do so, unless there should be from the evidence a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.”

Because this charge merely allowed, and did not require, the jury to draw the inference, the charge was not erroneous. See generally Leverett v. State, 254 Ga. 691 (2) (333 SE2d 609) (1985).

(b) Slaton also claims the trial judge improperly commented on the evidence twice during the charge, in violation of OCGA § 17-8-57. In the first challenged comment, the court noted that “there was evidence introduced that one of the people involved had the weapon and that the others were present in some capacity.” The second challenged comment was that there was “some evidence in this case involving recent possession of certain stolen items that took place in the armed robbery.”

Our review of the transcript shows that, in these comments, the judge was not telling the jury what the evidence proved, but instead was merely drawing their attention to the evidence which was relevant to the next charge to be given. “There is a wide difference between saying that a particular thing has been proved and saying that there has been testimony on that thing.” (Citation and punctuation omitted.) Thornton v. State, 191 Ga. App. 801 (1) (383 SE2d 181) (1989).

Moreover, in deciding whether the trial judge expressed or intimated an opinion in the charge, we must consider the charge as a whole. Ellis v. State, 216 Ga. App. 232, 233-234 (2) (453 SE2d 810) (1995). In this case, the challenged comment on possession of stolen property was immediately followed by the language discussed in Division 3 (a) above. The other portions of the charge also contained repeated statements that it was entirely up to the jury to decide what the evidence had or had not proven. The charge as a whole therefore did not express or intimate the judge’s opinion on what the evidence showed.

(c) Slaton contends that the following example the trial court used to explain the concept of “party to a crime” impermissibly implied that Slaton was guilty: “[A] party to the crime means that everybody that participates in the crime is guilty of the crime. Let me give you an example. If you have a burglary — this case did not involve burglary. But ... if you have a burglary ... if one person breaks in the building and commits the theft but another person stands outside as a lookout but never goes into the building . . . that person is a party to the crime and is just as guilty of the burglary as the person that actually broke and entered into the building.”

If a trial court states the law correctly, an appellate court “will not narrowly scrutinize the illustration, if satisfied that, whether right or wrong, it was not calculated to mislead, and did not in fact mislead, the jury.” (Citation and punctuation omitted.) Hall v. State, 239 Ga. 832, 833 (2) (238 SE2d 912) (1977). A reasonable juror could have interpreted this language only as an illustration, and would not have been misled to think that the court was stating a conclusion that Slaton had been a party to the robbery. This enumeration is without merit.

(d) Slaton asserts that the court erred in charging the jury: “If you find from the evidence in this case that the defendant had no knowledge that the crime was being committed and that the defendant did not knowingly and intentionally commit, participate, or help in the commission of the alleged offense, then it would be your duty to acquit the defendant.” (Emphasis supplied.) This challenged language fell between the following two sentences: “[K]nowledge on the part of the defendant that the crime of armed robbery or aggravated assault or kidnapping was being committed and the defendant knowingly and intentionally participated in or helped in the commission of such crime must be proved by the State beyond a reasonable doubt. [Language objected to.] On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge of the crime of armed robbery or aggravated assault and that the defendant knowingly and intentionally participated and helped in the commission of it, then you would be authorized to convict the defendant.”

Decided January 30, 1997

E. Earl Seals, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Aileen R. O’Neil Page, Assistant District Attorneys, for appellee.

The court later charged the jury: “Mere presence at the scene of a crime is not sufficient to convict one as being a party to the crime. . . . A person is a party to a crime only if that person directly commits the crime or intentionally helps in the commission of the crime or intentionally advises, encourages, hires, counsels, or procures another to commit the crime.”

The use of “and” instead of “or” was erroneous. “Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that defendant is a party.” (Citations omitted.) Smith v. State, 188 Ga. App. 415, 416 (1) (373 SE2d 97) (1988). We must affirm the conviction, however, because in view of the rest of the charge, this “slip of the tongue” did not mislead or confuse the jury, and so was harmless. See Rodriguez v. State, 211 Ga. App. 256, 257-258 (3) (439 SE2d 510) (1993).

Judgment affirmed.

McMurray, P. J., and Senior Appellate Judge Harold R. Banke concur.