author: Andrews, Presiding Judge. Phipps, Judge,

text:
    A02A0685.
    MIKA v. THE STATE.
    (568 SE2d 818)
   Andrews, Presiding Judge.

Richard P. Mika was found guilty by a jury of selling cocaine in violation of the Georgia Controlled Substances Act. Finding no reversible error in the enumerations raised on appeal, we affirm the judgment of conviction.

1. The State produced eyewitness testimony from three witnesses who saw Mika sell the cocaine. Two police officers working undercover in a nightclub testified that from a distance of about seven yards they saw Mika accept money from Christopher Cash and give Cash a plastic bag containing a white powder that appeared to be cocaine. During the sale, one of the officers walked up directly behind Cash, closely observed the apparent cocaine in Cash’s hand, and watched Cash place the apparent cocaine in his pocket. Shortly thereafter, Cash was taken by the officers outside the nightclub where he consented to a search of his person. The officers found the bag of apparent cocaine in Cash’s pocket. Tests conducted by the Georgia State Crime Lab confirmed that the substance in the bag was cocaine. Cash, who was charged as a co-defendant with possession of cocaine and pled guilty prior to trial, testified for the State that Mika sold him the cocaine at the nightclub in exchange for two $20 bills. Cash and Mika were arrested at the nightclub, and at least two $20 bills were found in Mika’s possession in a search of his person incident to the arrest. Although Mika did not testify, the defense asserted on his behalf at trial was that he did not sell the cocaine, and that Cash gave him money to buy drinks, not to buy cocaine.

The State produced overwhelming evidence in support of its case that was more than sufficient to allow the jury to conclude that Mika was guilty of selling cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Mika contends the trial court erred by admitting over his objection a statement he made to police which was obtained by illegal police interrogation.

After Mika was taken into custody and informed of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), he invoked his right not to speak without counsel present. Under Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981), all police interrogation was required to stop at that point and could not resume without counsel present, unless Mika initiated further conversation with the police and waived the invoked right. Nevertheless, without counsel present, a police officer told Mika that he saw Cash give him money, to which Mika responded, “So what does that mean? Maybe he owed me some money. Just because he gave me money does not mean anything.”

Assuming Mika’s response should have been excluded because the officer’s statement was improper interrogation and the officer should have known it was likely to elicit an incriminating response (see Cottingham v. State, 206 Ga. App. 197, 200-201 (424 SE2d 794) (1992)), the admission of the response was harmless error under the circumstances. Two undercover police officers testified they saw Mika sell the cocaine in exchange for money from Cash, and Cash testified he bought cocaine from Mika and handed him money. This eyewitness testimony was overwhelming evidence of Mika’s guilt. Mika’s defense was to admit Cash handed him money to buy drinks, but to deny it was for the sale of cocaine. Mika’s response to the officer was merely cumulative of other evidence showing he accepted money from Cash, and it was not necessarily inconsistent with his defense that Cash gave him the money to buy drinks. Under the circumstances, the error, although of constitutional dimension, was harmless because the record establishes beyond a reasonable doubt that it did not contribute to the guilty verdict. Cox v. State, 274 Ga. 204, 205-206 (553 SE2d 152) (2001).

3. Contrary to Mika’s contention, the trial court did not err by allowing the State to introduce similar transaction evidence showing he was convicted of selling cocaine eight years prior to the present charge.

After a hearing held pursuant to Uniform Superior Court Rules 31.1 and 31.3, the trial court found pursuant to Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), that there was sufficient similarity between the earlier offense and the present offense so that the former tends to prove the latter, and the former was admissible to show intent, course of conduct, bent of mind, and mode of operation of Mika in the present offense. The evidence showed that in both offenses Mika sold about one-half gram of powdered cocaine packaged in a similar manner to an individual for cash.

A trial court’s admission of similar transaction evidence will be upheld on appeal unless the ruling is clearly erroneous. Garrett v. State, 253 Ga. App. 779, 781 (560 SE2d 338) (2002). Here, the prior offense was sufficiently similar to the charged offense and at a minimum showed a similar bent of mind and mode of operation. Moreover, the lapse of eight years between the offenses does not render the prior offense too remote.

Mere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility. It is . . . the similarity of the offenses within the meaning of Williams v. State, 261 Ga. 640, that determines the admissibility of such evidence, not whether the span of time between offenses is brief.

(Citation and punctuation omitted.) Id. at 782; Mullins v. State, 269 Ga. 157, 158 (496 SE2d 252) (1998). The trial court was not clearly erroneous in admitting the prior offense as similar transaction evidence.

4. Mika contends the trial court committed reversible error in its instructions to the jury regarding impeachment of a witness convicted of a crime of moral turpitude.

Cash testified without objection that he had been convicted of a crime of moral turpitude, possession of cocaine, for his involvement in the incident at issue, so there was an evidentiary basis for giving the instruction requested by Mika. Harwell v. State, 270 Ga. 765, 770 (512 SE2d 892) (1999). The trial court instructed the jury that

[a] witness may be impeached by (a) disproving the facts to which the witness testified, (b) proof of general bad character, (c) proof that the witness has been convicted of a crime involving moral turpitude, and (d) proof of contradictory statements previously made by the witness as to matters relevant to the witness’ testimony and to the case.

Immediately thereafter the trial judge further instructed the jury that

[i]f any attempt has been made in this case to impeach any witness by proof of contradictory statements previously made or by proof that the witness has been convicted of a crime involving moral turpitude, then, Ladies and Gentlemen, you may determine from the evidence, (a) first, whether any such statements were made and (b) second, whether they are contradictory to any statements the witness made on the witness stand and (c) third, whether it was material to the witness’ testimony and to the case. If you find that a witness has been successfully impeached by proof of previous contradictory statements, you may disregard that testimony, unless it’s corroborated by other creditable evidence, and the credit to be given to the balance of the testimony of the witness would be for you to determine.

(Emphasis supplied.) The first quoted instruction clearly informed the jurors that they were entitled to conclude Cash was impeached by proof that he was convicted of a crime of moral turpitude. The second quoted instruction informed the jurors with respect to impeachment by proof of prior contradictory statements but inserted, apparently by mistake, the reference (emphasized above) to impeachment by conviction of a crime of moral turpitude which has nothing to do with the instruction on impeachment by prior contradictory statements. Mika contends this had the effect of improperly imposing requirements applicable to impeachment by prior contradictory statement on impeachment by conviction of a crime of moral turpitude. We disagree. Although the mistaken insertion created some confusion, it imposed no such requirements, and the instructions taken as a whole clearly informed the jurors they were entitled to conclude Cash was impeached by his prior conviction. The error was nonconstitutional, and, because it was highly improbable it contributed to the guilty verdict, it was harmless. Johnson v. State, 238 Ga. 59 (230 SE2d 869) (1976).

5. There is no merit to Mika’s contention that the trial court gave an instruction which erroneously implied to the jurors that he could be convicted on the basis of “grave suspicion” or “mere speculation or conjecture.”

In the complained-of instruction, the trial court informed the jurors that

facts and circumstances which merely place upon the defendant a grave suspicion of the crime charged, or which merely raise a speculation or conjecture of the defendant’s guilt are not sufficient to authorize conviction of the defendant, but only if the facts and circumstances of this case and all legal deductions thereof — strike that.

Contrary to Mika’s contention, the trial court’s statement of “strike that” following this instruction could not possibly have given the jurors the impression that they were entitled to convict him on the basis of “grave suspicion” or “mere speculation or conjecture.” Moreover, the trial court gave other instructions which fully and correctly informed the jurors on the State’s burden to prove the charges beyond a reasonable doubt.

6. There is no basis for Mika’s claim that the trial court erroneously instructed the jurors as to the form of the verdict.

After being informed by defense counsel and the prosecutor that it had misspoken by instructing the jurors that the verdict form would be “guilty” if the jurors did not believe the defendant was guilty or had reasonable doubt as to his guilt, the trial court recharged the jurors to correct this error and properly instructed them that the verdict form would be “not guilty” if they did not believe the defendant was guilty or had reasonable doubt as to his guilt. The error was corrected, and both defense counsel and the prosecutor agreed in the presence of the trial court that the recharge corrected the problem.

7. Finally, Mika contends on various grounds that his trial counsel was ineffective.

The Sixth Amendment right to assistance of counsel also guarantees a criminal defendant the right to effective assistance of counsel. Black v. State, 264 Ga. 550 (448 SE2d 357) (1994). In order to obtain the reversal of a conviction on a claim of ineffectiveness of counsel, a defendant has the burden of proof under both prongs of the test set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Zant v. Moon, 264 Ga. 93, 97 (440 SE2d 657) (1994). Under Strickland, supra, the defendant must prove: (1) counsel’s performance was deficient, and (2) counsel’s deficient performance prejudiced the defense. In determining whether or not counsel’s performance was deficient under the first prong, a court must measure counsel’s performance against an objective standard of reasonableness in light of all the circumstances and apply the strong presumption that all of counsel’s significant decisions were made in the exercise of reasonable professional judgment. Strickland, supra; Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985). Under the second prong, the test is whether there was a reasonable probability that the outcome of the proceedings would have been different but for counsel’s deficient performance. Id. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous.” Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994). We apply these standards to each of the claims of ineffectiveness.

Parker v. State, 220 Ga. App. 303, 306-307 (469 SE2d 410) (1996).

Mika claims trial counsel failed to properly investigate and argue his claim that his pretrial statement to police should have been suppressed as the product of an illegal interrogation. As we concluded in Division 2, supra, even if the statement was erroneously admitted, the error was harmless. Accordingly, Mika cannot show that any claimed deficient performance by counsel would have changed the outcome of the trial.

Mika contends trial counsel failed to properly investigate, argue, and preserve his claim that the similar transaction evidence was erroneously admitted. We considered this claim in Division 3, supra, and concluded that the similar transaction evidence was properly admitted. Accordingly, there is no basis for concluding that trial counsel was ineffective.

Mika argues trial counsel was ineffective for failing to request a jury instruction informing the jurors they could consider Cash’s believability as a witness in light of his testimony for the State as a result of a plea in which he received lenient treatment. The record does not support a claim that Cash pled guilty to a lesser offense or received any other lenient treatment. In fact, the record at trial and at the hearing on the motion for new trial showed that Cash pled guilty to possession of cocaine without a negotiated plea agreement and that he had no deal with the State. Trial counsel was not ineffective because there was no reasonable basis for requesting this instruction.

Mika contends trial counsel was ineffective for failing to request a specific jury instruction regarding the credibility of the testimony given by the two undercover police officers. First, the trial court gave a jury instruction concerning the credibility of witnesses which fully covered this issue. Second, trial counsel conducted a vigorous cross-examination and made a forceful closing argument challenging the ability of the officers to observe the cocaine sale in the nightclub. There is no basis for concluding that trial counsel was ineffective for failing to fashion and request the type of specific instruction that present appellate counsel believes would have been more effective.

Mika claims trial counsel was ineffective for failing to request a jury charge regarding the State’s violation of the rule of sequestration after it was invoked by the defense. The record shows that Mika’s trial counsel objected that a police officer remained in the courtroom in violation of the invoked rule of sequestration, and the trial court overruled the objection. Presumably, trial counsel did not request a jury instruction regarding violation of the rule because the trial court had already ruled there was no violation. Mika raises no issue on appeal as to the trial court’s ruling. In any event, the trial counsel handling this portion of Mika’s trial was not called as a witness to explain his decision. “In the absence of contrary evidence, defense counsel’s actions are presumed to be part of trial strategy. . . . [Mika] has shown nothing that would demonstrate that his trial counsel failed to exercise reasonable professional judgment in his handling of the case.” (Citation and punctuation omitted.) Thomas v. State, 268 Ga. 135, 139-140 (485 SE2d 783) (1997).

Lastly, Mika speculates that trial counsel was ineffective for failing to impeach one of the State’s witnesses with evidence that he resigned from his prior employment for reasons that could have been used to contest the witness’ credibility at trial. In an effort to prove that such evidence existed and that trial counsel was ineffective for failing to find and use it, Mika subpoenaed the witness’ personnel files for an in camera inspection by the trial court. At the hearing on the motion for new trial, the trial court informed Mika’s appellate counsel that it had reviewed the files and found nothing relevant to Mika’s claims. On these facts, we decline to conduct any further review of the files.

This Court will not review an in camera inspection conducted by the trial court based on speculation that there might be additional material which should have been found and produced for the defense. Williams v. State, 251 Ga. 749, 789 (312 SE2d 40) (1983). The trial court’s discretionary ruling after an in camera inspection that all exculpatory material, if any, has been produced establishes that as a fact absent a countershowing. Barnes v. State, 157 Ga. App. 582, 586 (277 SE2d 916) (1981). The burden is on the defendant to show what was suppressed and how it is materially exculpatory. Id. at 586-589; Williams, 251 Ga. at 788-789. [Mika] has failed to satisfy this burden.

Dunagan v. State, 255 Ga. App. 309, 312 (565 SE2d 526) (2002).

Moreover, the defense was not entitled to challenge the witness’ credibility by questioning about allegations of misconduct unrelated to this case and having no logical connection with the witness’ testimony. Woods v. State, 210 Ga. App. 172, 173 (435 SE2d 464) (1993). Specific misconduct cannot be used to impeach a witness’ character or veracity unless the misconduct results in a criminal conviction, in which case the proper procedure is to prove the conviction by a certified copy thereof. Id.

It follows that there is no support for Mika’s claim that trial counsel was ineffective.

Judgment affirmed.

Blackburn, C. J, Johnson, P. J., Smith, P. J., and Mikell, J., concur. Miller and Phipps, JJ, dissent.

Phipps, Judge,

dissenting.

I concur fully with the majority in Divisions 5 and 6.1 concur in Division 7 except to the extent that it concludes that the errors in Divisions 2 and 3 were harmless. I concur in Division 1 only to the extent that it concludes that the evidence was sufficient to support the verdict. I respectfully dissent from Divisions 2, 3, and 4 and from the judgment.

1. The majority assumes, without deciding, that Mika’s pretrial statement to police was the product of improper interrogation, but finds its admission to be harmless error.

Mika’s statement was clearly inadmissible because it was obtained in violation of Edwards v. Arizona. Edwards holds that a defendant who invokes his Fifth Amendment right to counsel after being advised of his Miranda rights may not be subjected to further “interrogation” until counsel is made available to him, unless he subsequently initiates communication. “ ‘The term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . .’ [Cit.]” The officer’s remarks to Mika were not “normally attendant to arrest and custody,” and he should have known that if he advised Mika of the incriminating evidence against them, it was reasonably likely that Mika’s response would prove incriminating to some degree. Therefore, the trial court erred in denying Mika’s motion to suppress his pretrial statement.

Although the State does not raise this issue, the majority takes the position that any error in the admission of Mika’s statement was harmless. “[B]efore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” The prosecution bears the burden of making this showing, and the fact that there was other evidence sufficient to convict does not make the error harmless. The test is whether the evidence may have influenced the jury’s verdict.

Contrary to the majority’s position, the evidence was not cumulative of other evidence or entirely consistent with Mika’s defense. The officers’ testimony was that they observed Cash hand money to Mika whereas Mika’s statement was an explanation of why Cash gave him money. Mika’s statement that Cash may have owed him some money contradicted his defense that Cash gave him money to buy drinks. Because this inconsistency may have influenced the jury’s perception of Mika and thereby affected its verdict, Mika is entitled to a new trial.

2. The majority concludes that the trial court properly admitted similar transaction evidence showing that, eight years prior to the present offense, Mika sold one-half gram of cocaine to an undercover drug agent for $50 after being introduced to the agent at an apartment complex in Statesboro. The majority bases its conclusion solely on the similarities between the two offenses and takes the position that the passage of eight years between the two incidents does not render the prior offense too remote. The majority does not discuss the purpose for which the similar transaction was admitted and fails to point out that the passage of time is one of the more important factors to weigh in considering the admissibility of evidence.

Before any evidence of independent offenses or acts may be admitted, the state must make three affirmative showings.

The first of these affirmative showings is that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility. The second affirmative showing is that there is sufficient evidence to establish that the accused committed the independent offense or act. The third is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

It is important to keep in mind, however, that the first and third showings are not made in isolation but rather embrace highly interrelated inquiries. This was recognized in King v. State, wherein the court observed:

Indeed, “the test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” [Cit.] “Similarity is an important factor in determining the admissibility of the extrinsic crime; however, it is not the only factor, nor is it necessarily the controlling factor. The ultimate issue for admissibility is whether the evidence of other crimes has relevance to the issues in the trial of the case at bar. Depending on the purpose for which the extrinsic evidence is offered, the State may be required to prove a high degree of similarity between the relevant characteristics of the extrinsic crime and the crime charged, or it may have only the burden of showing a logical connection between the crimes which are essentially dissimilar. [Cit.]” [Cit.]

In this case, the evidence of the independent crime was admitted to show the defendant’s intent, course of conduct, bent of mind, and modus operandi. Mika, however, did not raise the issue of criminal intent (mens rea) but rather denied that he committed the act of selling cocaine to Cash (actus reus). Consequently, neither intent nor bent of mind was a disputed issue. Moreover, “ ‘[t]he state of mind that will permit the admission of an unrelated crime is the state of mind at the time of the commission of the offense as shown by the acts or words of the defendant so close in time to the alleged offense as to have a bearing upon his state of mind at that time. . . .’ [Cit.]” And “course of conduct,” properly construed, means “a continuous course of conduct, closely connected in time, place and manner of commission. [Cit.]” Extrinsic offenses are properly admitted under the modus operandi exception where they are “ ‘so nearly identical in method [as the crime charged] as to earmark them as the handiwork of the accused.’ [Cit.]” Consequently, evidence of Mika’s earlier crime was not properly admitted to show either course of conduct or modus operandi in this case. The real role which the extrinsic crime evidence played at trial was simply to show that Mika had sold cocaine before, thereby permitting the jury to infer that he had done so again. “Under our law, however, that is not a permissible basis for introducing similar transaction evidence. [Cit.]”

Decided July 16, 2002

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

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

3. The trial court correctly instructed the jury on impeachment by proof that a witness has been convicted of a crime involving moral turpitude and immediately thereafter erroneously inserted the phrase “or by proof that the witness has been convicted of a crime involving moral turpitude” into an instruction meant only to address impeachment by proof of contradictory statements. Although the additional requirements necessary to impeach by proof of a contradictory statement could not logically be applied to impeachment by proof that the witness has been convicted of a crime involving moral turpitude, the erroneous instruction was nevertheless misleading and confusing. “Where the judge gives a correct instruction upon an issue involved in a criminal case . . . and afterwards gives a further instruction upon the same issue, which is misleading and confusing to the jury, and fails to withdraw such further charge and call the jury’s attention to the error, error results.”

And the error was not harmless. It was vitally important to Mika’s defense that he discredit Cash’s testimony, and impeachment by proof that he had been convicted of a crime of moral turpitude was one way to achieve that goal. After the erroneous instruction was given, it is unlikely that the jury clearly understood the requirements for impeachment by that method. Because it is not “obviously highly probable that the error . . . did not contribute to the verdict,” I would reverse.

I am authorized to state that Judge Miller joins in this dissent.

       451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981).

        Cottingham v. State, 206 Ga. App. 197, 200-201 (4) (424 SE2d 794) (1992).

       See Franks v. State, 268 Ga. 238 (486 SE2d 594) (1997) (discussing the “routine booking question” exception to the Miranda rule).

        Chapman v. California, 386 U. S. 18, 24 (87 SC 824, 17 LE2d 705) (1967).

        Mangum v. State, 274 Ga. 573, 577 (2) (555 SE2d 451) (2001).

       Id.

       See id.

        Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       (Citation and footnote omitted.) Id.

       230 Ga. App. 301 (496 SE2d 312) (1998).

       Id. at 302 (1); see State v. Hinson, 269 Ga. 862, 863 (506 SE2d 870) (1998) (Fletcher, P. J., dissenting).

        Walraven v. State, 250 Ga. 401, 408 (4) (b) (297 SE2d 278) (1982).

        Putnam v. State, 251 Ga. 605, 608 (2) (308 SE2d 145) (1983).

        Felker v. State, 252 Ga. 351, 360 (1) (a) (314 SE2d 621) (1984); see Shuman v. State, 244 Ga. App. 335, 336 (3) (535 SE2d 526) (2000).

        King v. State, supra at 303.

        Reece v. State, 210 Ga. 578, 579 (2) (a) (82 SE2d 10) (1954).

       (Citation and punctuation omitted.) Carr v. State, 251 Ga. App. 117, 120 (3) (553 SE2d 674) (2001) (physical precedent).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0841.
    KWICKIE/FLASH FOODS, INC. v. LAKESIDE PETROLEUM, INC.
    (568 SE2d 816)
   Mikell, Judge.

Kwickie/Flash Foods, Inc. appeals the award of $4,680 in attorney fees to Lakeside Petroleum, Inc. in this breach of contract action. Because no expert testimony was offered as to the reasonableness of the fees, we vacate the award and remand for a hearing on that issue.

Lakeside’s breach of contract action was tried before the court sitting without a jury. The undisputed evidence showed that Kwickie operated a convenience store on premises which it leased from Lakeside, a distributor of petroleum products. The term of the lease extended from May 1, 1987, through April 30, 2002.

Sometime during the night on June 1, 1999, Kwickie abandoned the premises. Lakeside’s president, Larry Jack Dennis, testified that when he arrived at the store at 7:30 the following morning, “the store was empty, trashed, and all the equipment removed, including equipment owned by Lakeside Petroleum.” A day or two later, Dennis received a letter from Kwickie, stating that it had terminated the parties’ agreements. These included the lease and a sales and marketing agreement, which governed Kwickie’s purchase of petroleum products from Lakeside.

It was undisputed that the lease required Kwickie to give 90 days notice of termination and that Kwickie provided no notice whatsoever. At trial, Kwickie stipulated that it owed Lakeside $2,000 in back rent plus $13,632.20 for certain petroleum products. The only amount in controversy was $7,665.22, the valúe of fuel left by Kwickie in the underground tanks when it abandoned the premises.

At the conclusion of the bench trial, the court found that during May 1999, Lakeside delivered Kwickie gasoline worth $21,297.42, for which Kwickie did not pay; that when Kwickie abandoned the premises, it left gasoline worth $7,665.22 in the underground tanks; and that Lakeside secured a new tenant who paid for the gasoline. The court concluded that under OCGA § 11-2-709 (2), Lakeside was required to credit Kwickie for the $7,665.22 received by the new tenant. Therefore, the trial court awarded Lakeside the amount the parties had stipulated was owed, $13,632.20, plus $2,167.66 in interest. In addition, the court found that Kwickie had acted in bad faith, had been stubbornly litigious, and had caused Lakeside unnecessary trouble and expense in litigating the action, given that most of the amount in question was undisputed. The court thus awarded Lakeside $4,680 in attorney fees under OCGA § 13-6-11.

1. Kwickie contends that Lakeside failed to establish the necessary criteria to support an award of fees under OCGA § 13-6-11. We disagree.

OCGA § 13-6-11 allows the trier of fact to award attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Moreover, an award of attorney fees under this Code section will be upheld if there is any evidence to support it. In the instant case, there is evidence supporting the court’s finding that Kwickie acted in bad faith. “Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated. It may be found in defendant’s carrying out the provisions of the contract, that is, in how defendant acted in his dealing with the plaintiff.” Here, undisputed evidence introduced at trial shows that Kwickie violated its lease by abandoning the premises in the middle of the night and leaving the store in a disheveled mess. Photographs show trash, cans of paint, debris, and shelving strewn about and littering the floor. This provides some evidence of bad faith.

2. However, insufficient evidence was offered to support the amount of the fees awarded. “An award of attorney fees is unauthorized if appellee failed to prove the actual costs of the attorney and the reasonableness of those costs.” Although Lakeside presented sufficient evidence of the actual costs of its attorney, no testimony was offered as to the reasonableness of those fees. Moreover, the affidavit submitted by Lakeside’s counsel does not suffice to establish the reasonableness of its attorney fees. “[A] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.” Defense counsel should have been given an opportunity to cross-examine Lakeside’s attorney on the amount and reasonableness of the fees and costs requested. Because Kwickie was denied this opportunity, we vacate that portion of the judgment awarding Lakeside $4,680 in attorney fees and remand the case to the trial court to hold an evidentiary hearing on the amount of the fees.

Judgment vacated and case remanded.

Andrews, P. J., and Phipps, J., concur.

Decided July 16, 2002.

Gibson & Spivey, Douglas L. Gibson, for appellant.

Robert D. Schoen, for appellee.

        Shepherd, v. Aaron Rents, Inc., 208 Ga. App. 139, 143 (4) (430 SE2d 67) (1993).

       (Citation and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 857 (1) (c) (501 SE2d 30) (1998). See also Stargate Software Intl. v. Rumph, 224 Ga. App. 873, 878 (4) (482 SE2d 498) (1997) (bad faith is a jury question, to be determined from consideration of the facts and circumstances in the case).

       (Punctuation and footnote omitted.) Cannon Air Transport Svcs. v. Stevens Aviation, 249 Ga. App. 514, 519 (6) (548 SE2d 485) (2001).

       (Citations and punctuation omitted.) C. A. Gaslowitz & Assoc, v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998).

       See Greer v. Davis, 244 Ga. App. 317, 321 (4) (534 SE2d 853) (2000).

       See Cannon Air Transport Svcs. v. Stevens Aviation, supra.


text:
    A02A0853.
    GIBBS v. THE STATE.
    (568 SE2d 850)
   Mikell, Judge.

Robert Grady Gibbs appeals his conviction of child molestation, challenging the sufficiency of the evidence. We affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only decide if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Peterson v. State, 253 Ga. App. 390, 391 (1) (559 SE2d 126) (2002).

Viewed in the light most favorable to the verdict, the evidence reveals that Gibbs was the victim’s stepgrandfather. The victim, 12-year-old A. W, testified that she often visited the home of Gibbs and her grandmother. According to A. W, on April 13, 2001, she went with a teenaged friend, J. B., to look at a prom dress. Upon returning to J. B.’s house, A. W. told her friend that Gibbs had touched her on her breasts and vaginal area, underneath and on top of her clothing. J. B. confirmed that A. W. told her that Gibbs had touched her breasts and vagina.

A. W. further testified that she gave a videotaped statement to a sheriff’s investigator, Brent Loeffler, that she told the truth to Loeffler, and that Gibbs had molested her since she was little. A. W. also stated that she never told her mother because she was afraid that Gibbs would hurt her. A. W.’s videotaped statement was admitted into evidence. Loeffler testified that prior to making the statement, A. W. told him that on numerous occasions over the last several years Gibbs had touched her on her breasts and vaginal area.

A. W.’s mother and aunt also testified that Gibbs had molested them when they were young. Gibbs denied molesting A. W, her mother, or her aunt.

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a). We find that the evidence recounted above amply supports Gibbs’s conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Contrary to Gibbs’s contention, the victim’s testimony alone was sufficient to sustain the conviction. Cobb v. State, 254 Ga. App. 48 (1) (561 SE2d 124) (2002); Alford v. State, 243 Ga. App. 212, 213 (1) (534 SE2d 81) (2000).

Decided July 16, 2002.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: Blackburn, Chief Judge.

text:
    A02A0989.
    BARGE v. THE STATE.
    (568 SE2d 841)
   Blackburn, Chief Judge.

Following a jury trial, Stanley Barge was found guilty but mentally ill of aggravated battery, carrying a concealed weapon, obstruction of a police officer, and two counts of aggravated assault. Barge appeals, contending: (1) the trial court erred by allowing the State to ask the defendant’s expert witness what effect Barge’s brother’s criminal record would have on his diagnosis of Barge’s mental condition; (2) the verdict was erroneous because Barge proved that he was legally insane; (3) the trial court erred by providing an instruction to the jury as to when using force is not justified; (4) it was error for the trial court to repeat, sua sponte, the definitions of aggravated assault, obstruction of an officer, and aggravated battery in its charge to the jury; (5) it was error for the trial court to refuse to grant a mistrial or give curative instructions relating to testimony about Barge’s competency to stand trial; and (6) trial counsel was ineffective because of her failure to request a mistrial or request curative instructions concerning the testimony related to Barge’s competency to stand trial. We affirm.

On appeal from a criminal conviction, the appellant no longer enjoys the presumption of innocence. The evidence is viewed in the light most favorable to the verdict under the standard of Jackson v. Virginia. See Robinson v. State So viewed, the record shows that, on June 29,1999, Stanley Barge approached the counter of the Shake & Burger in the food court at Avondale Mall. Cursing, Barge demanded a hamburger and was told that the restaurant was closed. Moments later, Barge returned to the counter, grabbed the owner’s hand, demanded money, and pulled back his jacket to reveal a handgun. The restaurant owner jumped over the counter and began to run. Barge opened fire, hitting the victim twice. Shortly thereafter, Barge pointed his gun at a mall security guard, who fired his own gun and instructed Barge to put his gun down. Barge eventually complied and was restrained by the security guard.

At trial, Barge asserted a defense of insanity. The jury, however, rejected this defense and found Barge guilty but mentally ill.

1. Barge contends that Dr. Owens, the defendant’s expert on his mental condition, should not have been allowed to testify, over an objection, as to what effect knowledge of Sidney Barge’s (Stanley’s brother) criminal convictions would have had on Dr. Owens’ diagnosis of Stanley Barge. Barge alleges the State used erroneously admitted impeachment evidence to attack the credibility and conclusions of Barge’s expert witness. Barge contends the impeachment evidence was improper because not all of the crimes were crimes of moral turpitude, and, therefore, not admissible for impeachment purposes, and the simple battery charge had not been properly proved by a certified copy of the conviction.

During cross-examination, Sidney Barge admitted to convictions of three counts of armed robbery, two counts of felony shoplifting, a felony count of receiving stolen property, and misdemeanor counts of fleeing an officer and obstruction of an officer. Certified copies of the convictions were admitted over an objection to admission of the entirety of the copies.

“[C] rimes involving moral turpitude are restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind.” (Punctuation omitted.) Polk v. State The misdemeanors, fleeing an officer and obstruction of an officer, do not fit within the definition of crimes of moral turpitude, and simple assault is not such a crime. Id. Even if simple assault had been a crime of moral turpitude, a certified copy of the conviction was not admitted into evidence as was done for the other crimes used to impeach the testimony of Sidney Barge. Sapp v. State

Although Barge made an objection to the expert’s explanation of the effect of the obstruction and assault (battery) charges on his evaluation of Stanley Barge, there is no indication in the record as to the grounds for these objections. “In order to raise on appeal contentions concerning admissibility of evidence the specific ground of objection must be made at the time the evidence is offered, and a failure to do so will be considered as a waiver. All evidence is admitted as a matter of course unless a valid ground of objection is interposed.” Caldwell v. State.

Furthermore, even though admission of the misdemeanor convictions was error, it was harmless. The evidence of the felony convictions was properly introduced, and, therefore, it is likely the effect on the expert’s evaluation of Stanley Barge would not have been altered significantly if the misdemeanor charges were excluded. In fact, Dr. Owens testified that even if all of Sidney Barge’s statements about his brother were eliminated from consideration, it would not have had a major impact on his opinion of Stanley Barge’s mental condition.

2. Barge contends the verdict of guilty but mentally ill was erroneous because he had proved insanity by a preponderance of the evidence. Insanity is an affirmative defense, and, therefore, “[t]he appropriate standard of appellate review is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that appellant failed to prove by a preponderance of the evidence that [Barge] was insane at the time of the crimes.” (Punctuation omitted.) Lawrence v. State.

Under Georgia law, the jury is entitled to presume an individual is sane unless such presumption is rebutted. OCGA § 16-2-3. “Jurors are not bound by the opinions of either lay witnesses or expert witnesses as to the question of sanity and they may rely on the basic presumption existing under our law. The jury is free to reject expert testimony as to sanity and may find an accused sane even without positive testimony as to sanity.” (Punctuation omitted.) Wilson v. State.

On the other hand, juries may not rely solely on the rebuttable presumption of sanity, when the proof of insanity is overwhelming. Keener v. State. To support a finding that Barge is not guilty of a criminal act, his defense must show: “(1) that [Barge] was laboring under a delusion; (2) that the criminal act was connected with the delusion under which [Barge] was laboring; and (3) that the delusion was as to a fact which, if true, would have justified the act.” Stevens v. State.

In the present case, the State presented evidence that Barge was arguing with the victim prior to the shooting, carried a concealed gun, demanded money, and came to the mall even though God told him that someone was going to hurt him. There was also testimony that, after the shooting, Barge hid behind a pillar and pointed his gun at the security guard, followed orders to lie down and throw the gun out, and calmly told the security guard the caliber of his gun. Testimony from the police officer interviewing Barge after the incident indicated Barge understood his Miranda rights, and he was acting angry and hostile rather than crazy. The State also attacked the credibility of Sidney Barge’s testimony about his brother’s unusual behavior before the incident by introducing evidence that he had been convicted of a number of felony crimes. A recording of Barge’s interview with the police after the incident was viewed by the jury.

Testimony given by the State’s expert, a forensic psychiatrist, was that Barge’s statement to the police was coherent, and that while he was in the state hospital after the incident, he displayed no psychotic behavior and was not under medication. In an interview at the hospital with this psychiatrist, Barge denied hearing voices and having any special connection to God. It was the expert’s opinion that on the day of the incident, Barge could distinguish right from wrong, that if he had delusions, there was no compulsion to act, and, in fact, if he had a premonition that the event would happen, he would have sought to avoid it. Dr. Sachy also testified that there was conflicting information about Barge’s substance abuse history, and that his behavior immediately before and during the incident was consistent with a substance-induced psychosis. In the interview with the expert, Barge told Dr. Sachy that he knew the crimes were wrong and tried to justify them.

The defense presented testimony by Barge’s great-uncle and Sidney that his behavior had not been normal for about a year and a half, since an accident in which his wife and son were injured. His great-uncle testified that Stanley Barge talked to dead relatives and told his great-uncle that his wife and son were devils. Sidney testified that Barge burned meat saying it was for “feeding his fathers,” that he stated that witches and demons were after him, and that he had talked with dead relatives; but the credibility of his testimony was impeached by the State by introduction of his criminal convictions. A former co-worker testified that, on the day of the incident, Barge had come to the work site, wanted to come back to work, was demanding and nervous, and said that witches talked to him in the night.

A number of witnesses at the mall on the day of the incident indicated that Barge was not acting normally or was acting crazy. In contrast to the State’s expert, Dr. Owens testified that, on the day of the incident, Barge was suffering from a psychotic disorder, felt he was acting in self-defense, and, after the shooting, did not think he had done anything wrong. The defense presented evidence of either mental illness or insanity, which presented an issue for resolution by the jury. The evidence supported the jury’s verdict.

Barge cites Stevens v. State, supra, in support of his contentions that he has carried his burden of proof of insanity, but Stevens is distinguishable. Unlike the present case, in Stevens, “[t]here was no contrary expert testimony tending to rebut the defendant’s insanity defense.” McMachren v. State. Moreover, in Stevens, the trial court, after a bench trial, had made written findings that the first two prongs of the burden of proof had been satisfied; the defendant was laboring under a delusional compulsion which overmastered his will which caused the criminal act. The Supreme Court reversed the trial court only on the third prong of the burden of proof that the evidence demanded a finding that the delusion, if true, would have justified the act.

Unlike Stevens, Barge was convicted by a jury which determined all three prongs from the evidence presented. The trial court did not abuse its discretion in refusing to grant a new trial.

3. Barge contends that it was error for the trial court to give an instruction to the jury about when using force is not justified. Defense counsel tendered the pattern jury instruction on the use of force in its entirety to the trial court, and, therefore, Barge cannot complain about a charge which he requested. Smith v. State. Furthermore, Barge erroneously asserts that there was no evidence upon which to base this charge. Here, the victim testified that prior to the shooting, Barge was cursing and yelling when he came to the counter, grabbed him by his shirt while displaying a gun, and demanded money.

4. Barge asserts that the trial court erred in repeating the jury charges defining aggravated assault, aggravated battery, and obstruction of an officer because this repetition provided undue emphasis that resulted in an unfair statement of law in relation to the defendant’s rights. “Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.” (Punctuation omitted.) Grier v. State.

In Key v. State, this Court found that repetition of the charges related to the definition of aggravated assault and transfer of intent was not grounds for reversal. Here, the trial judge repeated the definition of three of the crimes with which Barge was charged immediately after stating it the first time. Merely restating the definition of the crimes charged did not, taking the charge as a whole, so unduly emphasize the State’s case as to result in an unfair statement of the law tending to prejudice the minds of the jury. Id. Therefore, this argument is without merit.

5. Barge asserts that a reference by the State’s expert to the earlier proceeding to determine Barge’s competency to stand trial was so prejudicial that a new trial should have been granted. Barge contends that, from the psychiatrist’s comment, the jury could have concluded that a hearing had already found Barge competent. The State’s expert responded to the following question on direct examination, “Is there any part of Dr. Owens’ report which affects your opinion in any way?” Dr. Sachy responded, “Not as far as criminal responsibility. However, when I — this is a different jury, but when I was here Monday.”

The abuse of discretion standard is applied in reviewing the trial court’s ruling on a motion for new trial. McIntosh v. State. The trial court’s discretion will not be overturned when “the cause of the motion lies in the voluntary remark of a witness not invited by the court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant.” Owens v. State.

The voluntary and nonresponsive answer did not directly identify the hearing, its content, or result. The trial court instructed the witness to say nothing further concerning the Monday proceeding and, upon the jurors’ return to the courtroom, instructed them to disregard the response. Under these circumstances, we cannot say that Dr. Sachy’s remark was so flagrantly prejudicial as to violate the fair trial rights of the defendant. Moreover, defense counsel did not renew the objection after the curative instruction. Caldwell v. State.

6. Barge asserts that the trial court erred in, sua sponte, failing to give a curative instruction after the State, on cross-examination, asked defendant’s expert, “Now, in your opinion, he’s not competent to even stand trial, is he?” He also asserts that defense counsel’s failure to request a mistrial, at the time that question was asked, constitutes ineffective assistance of counsel.

(a) Barge argues permitting this question allows introduction of irrelevant material which is prejudicial to the defendant. In Hudson v. State, the Supreme Court held that inquiry into “an accused’s competency to stand trial is a totally different inquiry than inquiry into insanity at the time of the criminal act.” (Punctuation omitted.) Id. at 127 (4). Without a specific showing of relevancy, evidence relating to competency to stand trial is not admissible during the inquiry into insanity at the trial for the criminal act. Id.

Here, after the bench conference on this objection, which was not included in the record, the State asked another question, and, unlike the witness in Hudson, the witness never answered the question on incompetency. “In no case will the trial judge’s ruling be reversed for not going further than requested. After his objection, [Barge] neither moved for a mistrial nor requested curative instructions.” Zellner v. State. Therefore, in these circumstances, we do not find that there was an abuse of discretion by the trial court in refusing to grant a mistrial for its failure, sua sponte, to give curative instructions.

(b)
To be successful with (his) claims of ineffectiveness of trial counsel, [Barge] must demonstrate that (his) attorney’s performance was deficient and that the deficiency prejudiced (his) defense. (He) must overcome the strong presumption that counsel’s performance was within a wide range of professional conduct and that counsel’s decisions were the result of reasonable professional judgment, the reasonableness of which is viewed at the time of trial and under the particular circumstances of the case.

Anderson v. State.

Defense counsel did object to introduction of the evidence concerning Barge’s competency trial. At the hearing on the motion for new trial, defense counsel testified that she did not move for a new trial because the judge sustained her objection and did not let the doctor answer the question. She also stated that it was her experience that jurors did not understand the competency issue, and competency would have to be explained over and over for them to understand. Furthermore, defense counsel testified that when Dr. Sachy, the State’s expert, made a reference to the incompetency trial, she had objected and moved for a mistrial. “Trial strategy and tactics do not equate with ineffective assistance of counsel. ... A trial court’s finding that a defendant has been afforded effective assistance of counsel will not be disturbed on appeal unless clearly erroneous.” (Punctuation omitted.) Coney v. State. Under the circumstances above, we do not find that defense counsel’s conduct fell outside the range of reasonable professional conduct, and we are unable to find the trial court’s ruling on this matter clearly erroneous in the instant case.

Decided July 16, 2002.

Maria Murder-Ashley, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, James M. McDaniel, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

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

        Robinson v. State, 246 Ga. App. 576 (1) (541 SE2d 660) (2000).

       The record actually shows that it was a simple assault charge rather than a battery charge that was not included in the certified copies of sentences admitted into evidence and acknowledged by Sidney Barge in his testimony.

        Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506) (1992).

        Sapp v. State, 271 Ga. 446, 448 (2) (520 SE2d 462) (1999).

        Caldwell v. State, 247 Ga. App. 191, 198 (3) (542 SE2d 564) (2000).

        Lawrence v. State, 265 Ga. 310, 311 (1) (454 SE2d 446) (1995).

        Wilson v. State, 257 Ga. 444, 449 (11) (d) (359 SE2d 891) (1987).

        Keener v. State, 254 Ga. 699, 701 (1) (334 SE2d 175) (1985).

        Stevens v. State, 256 Ga. 440, 442 (350 SE2d 21) (1986).

        McMachren v. State, 187 Ga. App. 793, 794 (1) (371 SE2d 445) (1988).

        Smith v. State, 267 Ga. 372, 375 (4) (477 SE2d 827) (1996).

        Grier v. State, 273 Ga. 363, 366 (4) (541 SE2d 369) (2001).

        Key v. State, 226 Ga. App. 240, 242 (1) (485 SE2d 804) (1997).

        McIntosh v. State, 247 Ga. App. 640, 643 (3) (545 SE2d 61) (2001).

        Owens v. State, 250 Ga. App. 61-62 (550 SE2d 464) (2001).

        Caldwell v. State, 247 Ga. App. 191, 197 (1) (c) (542 SE2d 564) (2000).

        Hudson v. State, 273 Ga. 124 (538 SE2d 751) (2000).

        Zellner v. State, 260 Ga. 749, 751 (3) (b) (399 SE2d 206) (1991).

        Anderson v. State, 237 Ga. App. 382, 383-384 (2) (515 SE2d 195) (1999).

        Coney v. State, 209 Ga. App. 9,11 (1) (432 SE2d 812) (1993).


text:
    A02A1065.
    LAMAR v. THE STATE.
    (568 SE2d 837)
   Mikell, Judge.

A jury convicted William Stokes Lamar of voluntary manslaughter, two counts of aggravated assault, and possession of a firearm during the commission of a crime following the shooting death of his brother. Lamar was acquitted on charges of malice murder and felony murder. He appeals the voluntary manslaughter conviction, arguing that the court erred in denying his motion for a directed verdict and in admitting a photograph of the victim without a proper foundation. We affirm the conviction.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

So viewed, the evidence shows that on the night of October 30, 2000, Lamar, who worked as a truck driver, parked his rig at his mother’s home at approximately 7:30 or 8:00. Next, Lamar drove his car, a Ford Granada, from his mother’s home to his sister’s, where he lived at the time in question. He returned to his mother’s home shortly thereafter, driving a gray Ford pickup truck. While Lamar was parking his pickup truck, he drove into a muddy area where his mother’s washing machine drained. As he turned the truck around, the tires “slung mud,” some of which landed on a white truck belonging to one of Lamar’s sisters. His brother Tommy was driving the truck that day.

Lamar entered the house and retrieved the keys to one of several vehicles located in the yard of his mother’s residence. Lamar parked his truck so that the headlights illuminated a red 1987 Ford Thunderbird parked in the yard, and he began changing the red car’s tires. He left the engine of his pickup truck running and the driver’s side door open. There were at least three other vehicles in the yard: an old truck belonging to Lamar’s father, “a tan colored car with the trunk up on it” that also belonged to Lamar’s father, and a black car that had been abandoned.

While Lamar was changing the tires on the Thunderbird, his brother Tommy realized that Lamar’s truck had thrown mud inside the white truck that he intended to drive. Tommy, who was unarmed, approached Lamar to ask about the mud. Kyshina Lamar, a niece of the defendant and Tommy, testified that Lamar told Tommy: “Well, I’m sorry about the dirt. . . . What — what’s the problem? . . . Just get the hell from around here bothering me. I’ll kill all yhll.” As Tommy walked toward the house, he said, “[o]h, [S]hot, you ain’t going to do nothing.” Kyshina testified that “Shot” was Lamar’s nickname.

Four witnesses — Kyshina, Tommy’s son Dalfron Battle, Lamar and Tommy’s nephew Jamus Lamar, and his girlfriend Garnish Bryant — testified that when Tommy walked away, Lamar immediately went to his pickup truck, retrieved a gun, and fired at his brother. After Tommy was shot for the first time, he began to run. He initially continued his original path next to his father’s old truck toward the tan car, but then he cut to the right around the house. He was shot a second time in his right armpit. Jamus estimated that Lamar fired approximately ten shots. Tommy collapsed near the driveway of his mother’s home. Lamar and Tommy’s sister, Charlene Stanton, turned Tommy over from where he collapsed facedown and held him as he died. Investigator Mike Wolfe of the Hancock County Sheriff’s Department reported to the scene and observed Tommy’s dead body near the driveway. He identified the autopsy photograph as the person he saw there.

There was also evidence that Lamar shot at Jamus as he was running toward the house. Lamar fled the scene and was observed by Stanton “walking fast” along the side of the road away from their mother’s home. Jamus and Battle retrieved two shotguns from the house. Battle shot out the passenger side window in Lamar’s parked pickup truck and broke the back window with a rock. Jamus testified that he did not fire his shotgun.

Andrew Lawrence Falzon, an associate medical examiner with the Georgia Bureau of Investigation, testified that two gunshot wounds to the chest were the cause of Tommy Lamar’s death. Falzon explained that the first wound was on the left side of Tommy’s chest, and the other was in the “posterior fold of the armpit on the right side.” Both bullets were recovered and were estimated to be of .22 to .25 caliber.

Investigator Jeff Penna of the Hancock County Sheriff’s Department testified that Lamar voluntarily gave a statement. According to Investigator Penna, Lamar admitted that he fired a .22 caliber semiautomatic rifle. Lamar told Penna that he hid the rifle in the woods near his home, but the weapon was never recovered. When Lamar accompanied law enforcement officers to the location where he claimed he hid the rifle, it was not there.

Lamar took the stand in his defense. He testified that as Tommy walked away from him, Jamus began firing at Lamar, and that he retrieved his .22 caliber rifle from his truck and fired back. Contrary to the testimony of the other witnesses, Lamar testified that he never threatened anyone. He admitted leaving the scene and explained that he held his rifle down by his side when he walked on the road in an effort not to draw attention to himself.

1. First, Lamar contends the trial court erred in denying his motion for a directed verdict of acquittal on the voluntary manslaughter charge. According to Lamar, the circumstantial evidence adduced at trial did not exclude every reasonable hypothesis except his guilt. See Brooks v. State, 206 Ga. App. 485, 486-487 (1) (425 SE2d 911) (1992). Specifically, he argues that the state failed to prove that the bullets retrieved from Tommy’s body were discharged from the rifle fired by Lamar, and he contends that Jamus could have shot Tommy. We disagree.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” White v. State, 250 Ga. App. 783 (552 SE2d 927) (2001). Bearing that standard in mind, we conclude that there was ample evidence in the case sub judice for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, supra.

OCGA § 16-5-2 (a) provides, in pertinent part:

A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

As discussed above, four witnesses testified that Lamar became angry when Tommy approached him, that he threatened Tommy, and that he shot him. The medical examiner testified that two gunshot wounds caused Tommy’s death, and that the bullets recovered from the body were of .22 to .25 caliber. Lamar admitted firing his .22 caliber semi-automatic rifle while Tommy was in the vicinity. Lamar’s rifle was not recovered after he admittedly disposed of it in the woods near his residence.

“A directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence with all reasonable deductions and inferences demands a verdict of acquittal as a matter of law.” Gunter v. State, 237 Ga. App. 863 (517 SE2d 105) (1999). Here, in addition to the witness testimony that Lamar opened fire on Tommy, and contrary to Lamar’s allegation that Jamus shot at him, Jamus testified that he did not fire a weapon. Therefore, a directed verdict was not warranted.

Conflicts in the testimony of the witnesses . . . are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. Here, the jury was authorized to resolve any conflicts in the evidence and find that [Lamar] is guilty beyond a reasonable doubt of [voluntary manslaughter].

(Punctuation and footnotes omitted.) Hamilton v. State, 250 Ga. App. 568, 569 (552 SE2d 511) (2001). See also Jaber v. State, 243 Ga. App. 562, 563 (533 SE2d 767) (2000). Accordingly, the trial court properly denied Lamar’s motion for directed verdict.

2. Next, Lamar contends that the trial court abused its discretion by admitting a photograph of Tommy despite the fact that the authenticating witness, Investigator Wolfe, had never met the victim. The court admitted state’s Exhibit 14, which depicted the victim’s body, after Investigator Wolfe testified that the person in the photograph was the same as the one found dead near Lamar’s mother’s home. Lamar argues that Investigator Wolfe was not qualified as an expert witness with “special knowledge in making scientific identification of corpses,” nor was he in a position to offer a lay opinion as to the victim’s identity.

Decided July 16, 2002.

Clifton Boone, for appellant.

Fredric D. Bright, District Attorney, Wilson B. Mitcham, Jr., Assistant District Attorney, for appellee.

It is well settled that “[t]he quantum of evidence required to sufficiently identify photographs as true and accurate representations of what they purport to depict is a matter to be left within the discretion of the trial court.” (Citations and punctuation omitted.) Williams v. State, 174 Ga. App. 56, 57 (2) (329 SE2d 226) (1985). Investigator Wolfe did not identify the victim as Tommy Lamar based on the photograph; rather, he testified that the photograph depicted the person he found lying near the driveway of Lamar’s mother’s home. We find no abuse of discretion in the admission of the photograph.

Furthermore, even if the court had erred in admitting the photograph based on Investigator Wolfe’s testimony, it would have been harmless error. See Taylor v. State, 253 Ga. App. 468, 469 (559 SE2d 499) (2002). Dr. Falzon, who was qualified as an expert forensic pathologist and who performed the autopsy on the victim, testified that the photograph at issue depicted Tommy’s body and that it was taken under the doctor’s direct supervision. Additionally, Battle, Stanton, and Bryant identified Tommy as the man who collapsed near the driveway after being shot. Lamar did not raise an issue regarding misidentification of the victim.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: Andrews, Presiding Judge.

text:
    A02A1106.
    DEPARTMENT OF TRANSPORTATION v. LEWIS et al.
    (568 SE2d 849)
   Andrews, Presiding Judge.

The Georgia Department of Transportation (DOT) condemned land for a road right-of-way pursuant to OCGA § 32-3-1 et seq., and a jury awarded Joshua L. Lewis, Jr. and other named condemnees holding interests in the land $380,000 as compensation for the value of the land taken and consequential damages to the remaining land. The DOT appeals claiming the award should be reversed because it exceeded the highest value and damages placed on the land by the evidence admitted at trial. We find there was evidence to support the award and affirm.

Decided July 16, 2002.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Spivey, Carlton & Edenfield, J. Franklin Edenfield, for appellant.

Brown & Rountree, Charles H. Brown, for appellees.

The DOT argues that the maximum award which could have been supported by the evidence was $329,531. It points out that Lewis testified the land at issue was worth $3,750 per acre, that evidence showed 15.912 acres were taken for the right-of-way, that an expert testified the value of remaining tracts of land split by the taking (6.687 acres and 85.6 acres) was reduced by 80 percent, and that timber on the land taken for the right-of-way was valued at $11,000. As Lewis points out, however, he also testified that comparable land sold at up to $4,000 per acre, and that the land at issue was more desirable than the comparable land. Lewis further testified that the consequential damages to the remaining land was at least an 80 percent reduction in value. In addition to viewing the land, the jury heard testimony that severely restricted access to the remaining land caused by the taking destroyed the highest and best use for the land as a residential subdivision and diminished the value of the timber on the remaining land.

Based on this evidence, the jury could have reasonably decided the land at issue was worth $200 more per acre than the highest comparable sale at $4,000 per acre, and that consequential damages amounted to an 85 percent reduction in value to the remaining land. These figures would have justified an award slightly in excess of $380,000. Although there was evidence of value and consequential damages justifying a lower award, the jury was not bound to accept the lower figures. Hogan v. Olivera, 141 Ga. App. 399, 402-403 (233 SE2d 428) (1977); Dept. of Transp. v. Driggers, 150 Ga. App. 270-271 (257 SE2d 294) (1979). There was evidence of value and consequential damages along with evidence of the nature of the property and other facts and circumstances which supported the jury’s award. Hogan, 141 Ga. App. at 403; Driggers, 150 Ga. App. at 271-272. Contrary to the DOT’s contention, there is no evidence that the jury’s award was the result of gross mistake or undue bias.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A1236.
    WEAVER v. THE STATE.
    (568 SE2d 836)
   Andrews, Presiding Judge.

Dennis Waymon Weaver was found guilty by a jury of aggravated assault on his wife, second degree cruelty to his wife’s child, and obstructing his wife from making a 911 telephone call. He appeals claiming the aggravated assault and cruelty to a child verdicts were not supported by the evidence, and that the trial court erred by refusing a requested jury charge related to the aggravated assault offense. We find no error and affirm the judgment of conviction.

1. The State presented testimony from Weaver’s former wife and her minor child that Weaver, while under the influence of alcohol, was engaged in an argument with his then wife at their residence. In the presence of his wife and the child, Weaver threatened to kill them and retrieved a shotgun. Fearing for her life, Weaver’s wife ran outside the residence with a portable telephone and attempted to call 911. Weaver pulled the telephone wire out of the wall to prevent the 911 call and, with shotgun in hand, pursued his wife outside calling her name. The wife and child escaped to a neighbor’s house where they called the police.

Weaver claims that, because there was no evidence he actually pointed the shotgun at his wife, the State failed to prove there was an aggravated assault.

Under [OCGA § 16-5-21 (a)], aggravated assault has two essential elements: (1) [an assault by] an attempt to commit a violent injury, or an act that places another in reasonable apprehension [of immediately receiving such injury], and (2) that the assault was aggravated by either (a) an intention to murder, rape or rob, or (b) the use of a deadly weapon.

(Footnote omitted; emphasis in original.) Smith v. Hardrick, 266 Ga. 54, 55 (2) (464 SE2d 198) (1995). In other words, an aggravated assault is committed under OCGA § 16-5-21 (a) when a simple assault under OCGA § 16-5-20 (a) is committed with an intent to murder, rape, or rob, or by use of a deadly weapon. Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892) (1991). Weaver’s threat to kill his wife, coupled with evidence that he immediately retrieved the shotgun and pursued his fleeing wife with the shotgun in hand, was sufficient to establish the commission of an aggravated assault. The evidence showed an assault by the commission of an act that placed Weaver’s wife in reasonable apprehension of immediately receiving a violent injury, which assault was aggravated by the use of a deadly weapon, the shotgun, in a threatening manner. Compare Nichols v. State, 238 Ga. App. 412, 413-414 (519 SE2d 20) (1999); Phillips v. State, 250 Ga. 336, 338 (297 SE2d 217) (1982).

Decided July 16, 2002.

Hudson & King, David R. Trippe, for appellant.

N. Stanley Gunter, District Attorney, G. Robert Ryan, Jr., Assistant District Attorney, for appellee.

The evidence was also sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Weaver was guilty of: (1) second degree cruelty to the child by committing the aggravated assault with knowledge that it was done in the child’s presence (OCGA § 16-5-70 (c) (2)), and (2) obstruction of his wife’s attempt to make or complete a 911 telephone call. OCGA § 16-10-24.3.

2. Weaver contends the trial court erred by refusing to give a requested jury charge defining a simple assault. There is no merit to this contention. A charge on simple assault is not necessary to make a charge on aggravated assault complete. Spaulding v. State, 185 Ga. App. 812, 813 (366 SE2d 174) (1988). Moreover, there was no written request to give the charge at issue, and the instructions given to the jury by the trial court were sufficient to explain the elements of aggravated assault. Id.

Judgment affirmed.

Phipps and Mikell, JJ., concur.


text:
    A02A1347.
    TINGER v. THE STATE.
    (568 SE2d 832)
   Andrews, Presiding Judge.

Muhammad Tinger appeals from the judgment entered after a jury convicted him of armed robbery. After reviewing the record, we conclude there was no reversible error and affirm.

The evidence at trial, taken in the light most favorable to the verdict, was that the victim was walking on Lee Street toward the West End train station when Tinger pointed a gun at her and forced her into his car. The victim testified that Tinger stopped the car at Washington Park and tried to force her to have sex with him. She said Tinger also made her put her jewelry into a brown paper bag. As Tinger was putting the bag under the seat, an Atlanta police officer pulled up next to the car. When the officer asked if everything was all right, the victim jumped out of the car and Tinger sped off. Tinger ran a red light as he was fleeing and collided with a van. The officer, who had followed Tinger, said that after the collision, he saw Tinger grab a gun that was underneath him on the seat. After arresting Tinger, officers searched his car and found a brown bag with the victim’s jewelry in it.

Tinger testified in his own defense and said the victim went with him willingly. They drove to Washington Park, and he parked the car and asked her how much she would charge to have sex with him. He said she put her jewelry in the bag because it was not safe in the park at that time of night. Tinger said that when the police officer pulled up and the woman told the officer that Tinger had robbed her, he panicked and drove away. The jury found Tinger guilty of armed robbery, and this appeal followed.

1. In his first enumeration of error Tinger contends that the State failed to prove venue beyond a reasonable doubt. We disagree.

Georgia’s Constitution requires that venue in all criminal cases must be laid in the county where the crime is alleged to have been committed. Venue is a jurisdictional fact that must be proved by the prosecution beyond a reasonable doubt. Jones v. State, 272 Ga. 900, 901 (537 SE2d 80) (2000). “The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence.” Id. at 902-903 (2).

Here, the prosecutor questioned the investigating officer as follows: “Okay. Now, sir, I would like to direct your attention back to September 1 of 1996. During the early morning hours of that day, were you on routine patrol near Washington Park?” The officer answered, ‘Yes.” Prosecutor: “Okay. Now, is that in Fulton County?” Answer: “Yes.”

Accordingly, the officer testified that the park was in Fulton County, and the evidence was undisputed that Tinger and the victim were in Washington Park when Tinger took her jewelry. Therefore, the State proved venue beyond a reasonable doubt.

2. Next, Tinger claims the trial court impermissibly lowered the State’s burden of proof in its charge to the jury. The complained-of instruction was: “the law requires the State to prove the defendant’s guilt of the offense charged to your satisfaction, beyond a reasonable doubt. . . .” Tinger argues that the phrase, “to your satisfaction,” could have been interpreted by the jury as allowing them to find him guilty based on a degree of proof below that required by the due process clause.

The State points out that this language simply paraphrases the pattern jury instruction which provides: “This presumption remains with the defendant until it is overcome by the state with evidence which is sufficient to convince you beyond a reasonable doubt that the defendant is guilty of the offense charged.” Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 7.

There was no error. The charge, taken as a whole, repeatedly and accurately conveys the concept of reasonable doubt. See Head v. Ferrell, 274 Ga. 399, 403 (554 SE2d 155) (2001).

3. Tinger also enumerates as error the following jury charge:

The law does not require the State to prove the defendant’s guilt to a mathematical or absolute certainty. A reasonable doubt is not a vague or a conjectural doubt. It is not a fanciful doubt. It is not an imaginary doubt; neither does it mean a possibility that the defendant may be innocent, but as the court has stated to you, it is a doubt that is founded upon reason.

Specifically, Tinger contends that the emphasized language was disapproved of in Coleman v. State, 271 Ga. 800 (523 SE2d 852) (1999).

Tinger is correct. The Supreme Court has “emphatically” disapproved the use of this charge. Coleman, supra at 805 (8). But, the Supreme Court also held in Coleman that the court’s use of the charge in that case did not require reversal but that “continued use of the disapproved charge in disregard of this opinion may result in the reversal of future convictions.” Id.

Here, at the hearing on Tinger’s motion for new trial, the trial judge stated that the charge was given before he received the opinion in Coleman and, to the best of his knowledge, he had not “charged it since then.” Accordingly, under these circumstances, there was no reversible error.

4. In his last enumeration, Tinger argues the trial court erred in its charge to the jury by expressing an opinion as to his guilt. The court charged the jury with the statutory definition of armed robbery and then said: “The State contends this robbery was committed by the use of an offensive weapon, a handgun, and the defendant denies this. That’s a question for you to determine.” Tinger objects to the term “this robbery,” contending that this assumes that he committed the robbery and that the only thing for the jury to decide is whether he was armed when he committed it.

Tinger cites to no case law on point in support of his argument, and we find none. Moreover, as the State points out, this is merely a correct statement of the State’s case.

“[T]he charge to the jury must be considered as a whole, and a particular instruction is not to be taken out of context in determining its correctness.” Lee v. State, 241 Ga. App. 182, 186 (5) (525 SE2d 426) (1999). Taken in context, we do not believe that the charge as a whole would mislead a jury of average intelligence. Allen v. State, 242 Ga. App. 367, 368 (533 SE2d 401) (2000).

Judgment affirmed.

Phipps and Mikell, JJ, concur.

Decided July 16, 2002

Michelle L. Gopman, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.


text:
    A02A1350.
    CLASSIC CITY BONDING COMPANY v. STATE OF GEORGIA.
    (568 SE2d 834)
   Andrews, Presiding Judge.

Classic City Bonding Company (Classic City) appeals from the trial court’s order granting the State’s motion for forfeiture of an appearance bond after the principal failed to appear in court on his arraignment date. Classic City argues that because the State did not serve it with notice of the execution hearing within ten days, as required by OCGA § 17-6-71, the trial court erred in forfeiting the bond. Because the State substantially complied with the notice requirement, we affirm.

The principal in this case was charged with criminal damage to property and entered into an appearance bond for $2,500 with Classic City. The principal failed to appear for arraignment on March 29, 2001. The State filed a motion for bond forfeiture on April 3, 2001, and scire facias was entered on that date scheduling an execution hearing for August 15, 2001. On April 11, 2001, the State served Classic City with notice of the hearing.

At the execution hearing, Classic City argued that the court should not grant the State’s motion to forfeit the bond because the State did not serve it with notice of the hearing within ten days of the principal’s failure to appear, as required by OCGA § 17-6-71. This Code section provides, in pertinent part:

The judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear. Notice of the execution hearing shall be served within ten days of such failure to appear by certified mail or statutory overnight delivery to the surety at the address listed on the bond or by personal service to the surety within ten days of such failure to appear at its home office or to its designated registered agent. Service shall be considered complete upon the mailing of such certified notice.

OCGA § 17-6-71 (a).

Decided July 16, 2002

McArthur & McArthur, John J. McArthur, for appellant.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, Thurbert E. Baker, Attorney General, for appellee.

Here, Classic City was not served until 12 days after the principal’s failure to appear. It claims that the word “shall,” as used in the statute, makes it mandatory that the State serve notice of the hearing within ten days.

We disagree. In AAA Bonding Co. v. State of Ga., 192 Ga. App. 684 (386 SE2d 50) (1989), this Court held that substantial compliance with the statutory requirements was sufficient. Nevertheless, Classic City argues that AAA Bonding is not applicable because it was decided under a previous version of the statute which required the State to serve notice of the hearing within seventy-two hours of the principal’s failure to appear, not within ten days. But, the analysis in AAA Bonding still applies. In that case, we noted that OCGA § 1-3-1 (c) provides that “[a] substantial compliance with any statutory requirement, especially on the part of public officers, shall be deemed and held sufficient, and no proceeding shall be declared void for want of such compliance, unless expressly so provided by law.” Id. at 685 (2). And, “[t]he failure to perfect service within 72 hours is not one of the conditions listed in OCGA § 17-6-72 as precluding forfeiture or remission of forfeiture; nor does any language in OCGA § 17-6-71 itself expressly address the failure to comply with the 72-hour provision or bar forfeiture in the event of less than strict compliance.” Id. The Court goes on to state that if the General Assembly had intended strict compliance with the notice provision to be a condition precedent to forfeiture, this should have been expressed in the statute. Id.

Accordingly, when the legislature subsequently amended this statute in 1989, see Ga. L. 1989, pp. 556-560, it was presumed to do so with full knowledge of the existing law and with reference to it. Abend v. Klaudt, 243 Ga. App. 271, 275 (531 SE2d 722) (2000). The legislature did not address failure to comply with the notice provision or bar forfeiture in the event of less than strict compliance. Had the legislature wished to change the law and make strict compliance with the ten-day notice requirement a condition precedent to forfeiture, we presume it would have done so.

Judgment affirmed.

Phipps and Mikell, JJ, concur.


text:
    A02A1495.
    ROUSE v. THE STATE.
    (569 SE2d 261)
   Andrews, Presiding Judge.

William Rouse pled guilty to DUI, possession of marijuana, and driving without a license. He was sentenced to twelve months, to serve two days, with the balance probated. As part of his sentence on the DUI count, he was to pay a $650 fine. Before he paid the $650 fine, Rouse’s probation was revoked and he was required to serve out the remainder of his sentence. Rouse argued below and now on appeal that he should not have to pay the $650 fine. The trial court denied Rouse’s motion to negate or suspend the fine, and we affirm.

Rouse claims that under OCGA § 42-8-36 (b) he is no longer required to pay the fine. This Code section provides that “[a]ny unpaid fines, restitution, or any other moneys owed as a condition of probation shall be due when the probationer is arrested; but, if the entire balance of his probation is revoked, all the conditions of probation, including moneys owed, shall be negated by his imprisonment. . . .” OCGA § 42-8-36 (b).

But, this fine was not assessed as a condition of probation; it was part of Rouse’s mandatory sentence for DUI under OCGA § 40-6-391. This Code section provides in pertinent part:

(c) Every person convicted of violating this Code section shall, upon a first or second conviction thereof, be guilty of a misdemeanor and, upon a third or subsequent conviction thereof, be guilty of a high and aggravated misdemeanor and shall be punished as follows: (1) First conviction with no conviction of and no plea of nolo contendere accepted to a charge of violating this Code section within the previous five years, as measured from the dates of previous arrests for which convictions were obtained or pleas of nolo contendere were accepted to the date of the current arrest for which a conviction is obtained or a plea of nolo contendere is accepted: (A) A fine of not less than $300.00 nor more than $1,000.00, which fine shall not, except as provided in subsection (g) of this Code section, be subject to suspension, stay, or probation. . . ,

Contrary to Rouse’s contention on appeal, OCGA §§ 42-8-36 (b) and 40-6-391 (c) are not in conflict. OCGA § 42-8-36 (b) specifically states that it applies to only those fines imposed as a condition of probation and therefore does not apply to the fine in this case which was part of the mandatory sentence for DUI under OCGA § 40-6-391 (c). Moreover, OCGA § 40-6-391 (c) (1) (A) expressly provides that fines assessed as part of the sentence for DUI shall not be subjected to suspension, stay, or probation. There was no error.

Decided July 16, 2002.

Randall A. Schmidt, for appellant.

. Spencer Lawton, Jr., District Attorney, Jennifer L. Parker, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps and Mikell, JJ, concur.

       Subsection (g), providing for payment of the fine under conditions of economic hardship, is not applicable in this case.


text:
    A02A1500.
    PHOUKPHANH v. THE STATE.
    (569 SE2d 259)
   Blackburn, Chief Judge.

Following a jury trial, Anousone Phoukphanh appeals his convictions for the false imprisonment of Young Uhl and Angie Park, contending that the evidence was insufficient to support the verdict. We disagree and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.

Phagan v. State.

In the light most favorable to the verdict, the record shows that, on the morning of June 12, 2000, Uhl and Park were working in the kitchen of the Good Natural Spa massage parlor. At that time, Phoukphanh entered the kitchen brandishing a gun, and he admonished Uhl and Park not to move. Phoukphanh briefly left the room, tied up a co-worker of Uhl and Park, and then returned to the kitchen. While Phoukphanh was out of the room, Uhl pressed a silent security alarm alerting police. After his return, Phoukphanh tied both Uhl’s and Park’s hands with telephone cords.

Decided July 16, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, for appellee.

Phoukphanh then left the kitchen once again. While he was away, Uhl fled the building and ran to her manager’s office which was nearby. The manager untied Uhl’s hands and followed her back to the massage parlor. At that time, they witnessed police entering the building. Uhl then saw two men running out of the massage parlor toward an abutting trailer park. Police subsequently caught Phoukphanh and arrested him as one of the assailants. Uhl positively identified Phoukphanh as the gunman both at the scene and during trial.

Park, the owner of the massage parlor, corroborated Uhl’s testimony. Shortly after Uhl fled the building, Park followed suit. She then took refuge with Uhl while the police entered the building. Park also positively identified Phoukphanh as the gunman who entered the kitchen that morning.

Officer Sean Hill testified that Sumruay Chermhunthud, Phoukphanh’s co-defendant, told him that he and Phoukphanh planned to rob the massage parlor earlier that day. Chermhunthud also stated that he witnessed Phoukphanh tie up Uhl and Park, and Phoukphanh then instructed him to search through the massage parlor for money.

OCGA § 16-5-41 (a) provides: “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” The evidence discussed above was sufficient to support the jury’s determination that Phoukphanh illegally detained both Uhl and Park by tying them up and ordering them not to move.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

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

        Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).


author: Pope, Presiding Judge.

text:
    A02A0476.
    UNUM LIFE INSURANCE COMPANY OF AMERICA v. CRUTCHFIELD.
    (568 SE2d 767)
   Pope, Presiding Judge.

UNUM Life Insurance Company of America appeals the decision of the trial court granting class certification to Glendolyn Crutchfield for her claims against UNUM. Because we find that the trial court acted within its discretion, we affirm.

The facts relative to Crutchfield are not in dispute. A Georgia resident and an employee of Singer & Company in Atlanta, Crutch-field purchased through Singer, UNUM-issued group life insurance policies on her life and her husband’s. She was the beneficiary of her husband’s $10,000 policy. On December 4, 1996, her husband died; six days later she submitted a claim to UNUM for death benefits; and on January 8,1997, UNUM paid the $10,000 plus three percent postmortem interest required by the policy in the amount of $18.08. Georgia law, however, requires that life insurers pay post-mortem interest of six or twelve percent, depending on the time of payment following the death of the insured. OCGA § 33-25-10. See also OCGA § 33-27-4. According to Crutchfield, she should have been paid interest in the amount of $57.53.

In her complaint, Crutchfield also alleged that UNUM, which is based in Portland, Maine, has a pattern and practice of underpaying post-mortem interest nationwide, and, therefore, she sought class action certification on behalf of others similarly situated throughout the nation. Crutchfield sought to certify as a class those persons who, within the class period (defined by the applicable statute of limitation), received death benefits under a UNUM policy, but who received “less post-mortem interest than was required by law,” and whose damages were less than or equal to $75,000. She alleged that the statutes of at least three states were involved — Georgia, Illinois, and Colorado — but she did not purport to provide a complete list.

Under OCGA § 9-11-23, a class action is authorized if the members of the class share a common right and common questions of law or fact predominate over individual questions of law or fact. Trend Star Continental v. Branham, 220 Ga. App. 781, 782 (1) (469 SE2d 750) (1996). “The character of the right sought to be enforced may be common although the facts may be different as to each member of the alleged class.” Ga. Investment Co. v. Norman, 229 Ga. 160, 162 (190 SE2d 48) (1972). Crutchfield had the burden of establishing her right to class certification. Jones v. Douglas County, 262 Ga. 317, 324 (418 SE2d 19) (1992). Certification of a class action is a matter of discretion with the trial judge, and, absent abuse of that discretion, we will not disturb the trial court’s decision. Trend Star, 220 Ga. App. at 782 (1).

We first note that the trial court and the parties analyzed the class certification issue following the four-part federal test that requires a showing of numerosity, typicality, commonality, and adequacy of representation. We may proceed without deciding whether the test under OCGA § 9-11-23 is identical to the federal test, because the only issue on appeal is whether common questions of law or fact predominate over individual questions, an element required by both Georgia and federal law. Compare Hooters of Augusta v. Nicholson, 245 Ga. App. 363, 368 (4) (537 SE2d 468) (2000) (where this Court noted that the trial court had applied the four-part test). The trial court first found that UNUM had conceded two parts of the four-part test, typicality and adequacy of representation. The court then addressed the remaining two, numerosity and commonality, finding in Crutchfield’s favor on both. On appeal, UNUM asserts that class certification is not proper because common issues do not predominate over individual issues. We turn to that issue.

The trial court noted that “the life insurance policies which are at issue in this case are generally identical in their terms,” and that “[c]laims arising from interpretation of form agreements are considered to be ‘classic’ cases for treatment as a class action. [Cits.]” The court concluded that the fact that there may be plaintiffs from many states with claims arising under different states’ laws, thereby requiring application of the rules of contract interpretation from different states, does not preclude class action treatment where “ ‘the general policies underlying the common law rules of contract interpretation tend to be uniform.’ [Cit.]” The court then found that the three named states had uniform rules of contract interpretation. Finally, the court reasoned that “the fact that there may be differences in the damages for the members of the class does not prevent certification” because, when common issues predominate, individualized damage calculations do not defeat class certification.

UNUM argues strenuously that contract interpretation is not an issue in the case and that therefore the trial court’s order is based on faulty reasoning and constitutes an abuse of discretion. UNUM further argues that individual issues predominate over common issues. We disagree.

Georgia case law provides that common questions of law and fact predominate when an action “is brought on behalf of purchasers of agreements from a common source, the character of the right sought to be enforced is common, and common relief is sought.” (Citations omitted.) Sta-Power Indus. v. Avant, 134 Ga. App. 952, 954 (1) (216 SE2d 897) (1975). But not all cases involving purchasers of agreements from a common source qualify for class treatment. See Stevens v. Thomas, 257 Ga. 645 (361 SE2d 800) (1987). We have also held that “[m]inor variations in amount of damages, or location within the state, do not destroy the class when the legal issues are common.” (Citation omitted.) Sta-Power, 134 Ga. App. at 954 (1). But a class action is not authorized where the resolution of individual questions plays a significant, integral part of the determination of liability. West v. Southern Guaranty Ins. Co., 194 Ga. App. 412, 414 (2) (390 SE2d 619) (1990). Finally, there need not be a total absence of individual questions of law or fact as long as the common questions predominate. Trend Star, 220 Ga. App. at 782.

This case presents a significant common issue of fact. UNUM admits: (1) that its computers “are programmed to pay the postmortem interest that corresponds with the state which is considered to be the ‘situs’ of the policy, i.e., where the policy is delivered”; (2) that in some cases, the state where the policy was delivered or the state which constitutes a situs of the policy may not be the state in which the policyholder resides, or where a beneficiary resides; and (3) that “[t]his can, on occasion, cause either an underpayment or an overpayment of post-mortem interest if the beneficiary or claimant resides in a state other than the state which constitutes the situs of the policy.” The operation of the computer program is a common fact applicable to the entire class.

The case also presents individual issues of law. Crutchfield is asserting the violation of at least three states’ laws regarding postmortem interest, and perhaps more; a full review has not been done. Potential plaintiffs live in Georgia and an unknown number of other states “throughout the United States.” A policy may have been entered into in one state, the insured could have died in another, and the beneficiary live in yet another. The post-mortem interest statutes of Georgia, Illinois, and Colorado protect different classifications of persons and prescribe different rules for calculating interest, most of which purport to apply in an extraterritorial manner in such a way that they could overlap thereby requiring a significant effort to resolve many potential conflict of law questions. Other states’ laws could be similar. The number of permutations of this problem could be high.

But the trial court has discretion in certifying a class and has concluded that the common issues presented in this case predominate over these individual issues. We cannot say the trial court abused its discretion.

Judgment affirmed.

Ruffin and Barnes, JJ, concur.

Decided July 2, 2002

Reconsideration denied July 17, 2002

Love, Willingham, Peters, Gilleland & Monyak, Allen S. Willing-ham, Michael J. Hannan III, for appellant.

Browning & Tanksley, Jerry A. Landers, Jr., Bell, James & Bentley, John C. Bell, Jr., Jeffrey G. Casurella, Barrett & Associates, M. Scott Barrett, Gold, Weber & Hershkowitz, Leland L. Greene, for appellee.

       See OCGA § 33-25-10 (a) (statutory interest applicable “to a beneficiary residing in this state or to a beneficiary under a policy issued in this state or to a beneficiary under a policy insuring a person resident in this state at the time of death”); 215 ILCS § 5/224 (1) (no policy may be “issued or delivered in this State” unless it contains the statutory post-mortem provision); Colo. Rev. Stat. § 10-7-112 (1) (statutory post-mortem interest payable by “each insurer admitted to transact the business of life insurance in this state”).