text:
    A01A2098.
    HERNDON v. THE STATE.
    (559 SE2d 749)
   Smith, Presiding Judge.

Joseph Andre Herndon was indicted in Fulton County on one count of armed robbery and two counts of aggravated assault. He was tried by a jury and found guilty as charged. His amended motion for new trial was denied, and he appeals. Herndon raises eight enumerations of error, challenging the sufficiency of the evidence, the admission of evidence of similar crimes, and portions of the trial court’s charge to the jury and its recharge. Finding no merit in any of his contentions, we affirm.

Viewed to support the jury’s verdict, the evidence presented at trial showed that during a forty-minute period one afternoon, attempted robberies occurred at three sandwich shops in north Fulton County. Herndon testified that he did not commit these crimes, but three victim eyewitnesses identified him as the person who robbed or attempted to rob them. The first incident occurred at a Blimpies restaurant. At about 2:30 p.m., the wife of the owner was working in the store. A man entered wearing a bluish-green sweatshirt with a hood. The hood was drawn up over the man’s face with the drawstring in his mouth. The man initially asked about the special, but when the victim turned, she observed a gun pointed at her. While pointing the gun, the man said, “‘come here, come here.’” Although she believed the robber wanted money, she was too frightened to approach the cash register and instead called out for her husband and the police. When her husband emerged from the back room, the gunman fled. This victim had faced the robber from about three feet away, and she was able to get a good look at him.

The second incident occurred at a Subway restaurant on Roswell Road in Sandy Springs. At about 3:00 p.m., a black man entered wearing a hooded sweatshirt, which looked green to the owner of the store, the victim. The hood was drawn over the man’s face, but the victim was standing, “fairly close” to him and could see his face. The man dropped a plastic bag on the counter and instructed the victim to “fill up the bag with money.” The victim saw a steel handgun with a pearl handle, and he followed the robber’s instructions. Although he could not understand what the robber was saying, he testified that when he “spotted the gun, I knew what was happening.” He handed over the bag with approximately $250. As the robber left, the victim observed that he was wearing jeans and that the green sweatshirt also had navy blue on the bottom. The owner called the police, and an officer responded but was called away because another robbery was taking place nearby. This victim was later shown a photographic lineup, and he identified Herndon as the robber.

The third incident took place at another Subway restaurant on Roswell Road. An employee was working behind the counter when a black man entered and “jumped the line.” The victim testified that the man was wearing a green jacket with a hood over his head. When the man placed a clear plastic bag on the counter and said “fill it up,” the victim noticed the man had also placed a small, metallic gun with a pearl handle on the counter. The man pointed the gun at the victim, who was able to see the man’s face. When the victim slammed a door leading to the back room, the gunman left without getting any money.

A Fulton County police detective who drove to all three restaurants testified that they could easily be reached within forty minutes at that time of day. This detective was called by a Douglasville police lieutenant because an attempted armed robbery had taken place at a Blimpies restaurant in Douglas County the day after the three Fulton County incidents, and the two officers compared notes. A lookout was broadcast in Douglas County for a black male wearing a hooded sweatshirt and having a small silver handgun and driving a blue Hyundai Excel with a certain tag number. Based upon this description, a car was stopped in Douglasville within minutes of the attempted robbery there. Herndon was the driver of that vehicle. A green and purple hooded sweatshirt was found in the car, and a silver-colored handgun with a pearl handle was found at the side of the road near the car. Herndon was arrested for attempted robbery of the Douglasville restaurant and aggravated assault on the Douglas County victim. He was indicted and tried on those charges and found guilty by a jury. Certified copies of the indictment and jury verdicts on the Douglas County charges were introduced into evidence in the Fulton County trial as similar transactions.

The victim of the first Fulton County attempted robbery identified the sweatshirt recovered from the car as the one worn by the man who robbed her restaurant and the gun recovered near the car as that displayed by the robber. The victim of the Fulton County Subway robbery also identified both the sweatshirt and the handgun, and he also identified Herndon as the robber at trial. The third Fulton County victim testified that the sweatshirt admitted into evidence was the same color as the one worn by the man who attempted to rob him and the gun admitted into evidence was the same size metallic gun with pearl handle as that displayed during the attempted robbery. Herndon testified at trial, and although he denied committing the crimes, he acknowledged that the sweatshirt found in the car and admitted into evidence belonged to him.

1. In three enumerations of error, Herndon contends the evidence was insufficient to authorize the jury to find him guilty of any of the charges.

(a) He argues that he could not have been found guilty of aggravated assault on the first victim because her testimony at trial was not as strong as that she gave in the earlier Douglas County trial and because no evidence was presented that Herndon pointed the pistol at her while demanding money, with the intent to rob, as alleged in the indictment. It is true that no evidence was presented that Herndon ever actually demanded money from this victim. But intent is a question of fact for the jury. It may be found “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6; Thompson v. State, 271 Ga. 105, 107 (1) (519 SE2d 434) (1999). Herndon’s intent to rob was clear enough from the totality of the circumstances to authorize the jury to find him guilty of aggravated assault with intent to rob, as alleged in the indictment. King v. State, 213 Ga. App. 268, 269-270 (444 SE2d 381) (1994).

(b) Herndon contends the evidence was insufficient to support his conviction for armed robbery of the second victim. The indictment alleged that Herndon took money from the person and presence of this victim “by intimidation and by use of a handgun, an offensive weapon.” The specific basis for this enumeration is unclear, although Herndon does recite that the gun was not pointed at the victim, that although the victim identified Herndon from a photographic array, he saw only a part of the robber’s face during the robbery, and that this victim’s testimony in the Douglas County trial was less certain than his testimony in this trial. But a person commits armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-8-41 (a). Herndon took money from this victim using a handgun, regardless of whether it was pointed at the victim. The victim positively identified Herndon as the robber, and the jury was authorized to find Herndon guilty.

(c) Regarding the third victim, Herndon appears to argue that minor discrepancies in this victim’s testimony and the fact that this victim had difficulty remembering whether certain details pertained to this attempted robbery or several other armed robberies at his restaurant rendered the evidence insufficient to support conviction. But these discrepancies go only to the weight to be given evidence by the jury, not its sufficiency. Duncan v. State, 232 Ga. App. 157, 159 (2) (500 SE2d 603) (1998).

The evidence presented at trial was sufficient to authorize the jury to find Herndon guilty of all three charged crimes under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Herndon asserts error in the trial court’s admission of evidence concerning the Douglas County crime as a similar transaction. He argues that the State did not identify a specific appropriate purpose authorizing introduction of this evidence or to relate the Douglas County crime to such purpose and that the trial court did not make appropriate findings on the record or inform the jury unambiguously of the specific purpose for which they could consider the Douglas County crime. We do not agree.

We note initially that we agree with the State that the Douglas County attempted robbery was a continuation of a crime “spree” crossing county lines and therefore admissible as part of the res gestae. Baird v. State, 207 Ga. App. 44-45 (1) (427 SE2d 37) (1993). Uniform Superior Court Rule 31.3 therefore does not apply. Beasley v. State, 269 Ga. 620, 623 (4) (502 SE2d 235) (1998).

Even were this not the case, both the prosecutor and the trial court complied with the rule’s provisions. The prosecutor stated that the purpose of introducing the Douglas County incident was to show Herndon’s “motive, his course of conduct, his bent of mind, his plan, his scheme and his opportunity.” Although this statement includes more than one purpose, each was specific and proper. The evidence was related to these purposes in showing criminal intent through Herndon’s course of conduct. See Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1994). It was also relevant to show Herndon’s identity through a similar modus operandi. The trial court did make appropriate findings on the record. And although a finding was not made on the record that this evidence’s probative value outweighed its prejudicial impact, such a finding need not be made expressly. It is implicit in a trial court’s finding that similar transaction evidence is relevant. Farley v. State, 265 Ga. 622, 625 (2) (458 SE2d 643) (1995). As to the jury instruction, given that Herndon did not submit his own request to charge on this point, it was not error for the trial court to instruct the jury that Herndon was on trial only for the Fulton County crimes and that the jury’s consideration of the Douglas County crime was limited to its showing, if it did, that Herndon used a similar scheme, plan, and course of conduct.

3. Herndon maintains the trial court erred in giving an “impermissible sequential charge” on robbery by intimidation as a lesser included offense of armed robbery, in violation of Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996), and Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998), by compelling the jury to reach a unanimous verdict on the greater offense before considering the lesser offense. The court charged the jury:

If you do not believe beyond a reasonable doubt that the defendant is guilty of armed robbery, but do believe beyond a reasonable doubt that the defendant is guilty of robbery by intimidation, which we call it a lesser included offense of armed robbery. Now, I am going to define it for you, but if you find he is guilty of armed robbery, then you don’t consider robbery by intimidation, but if you do not find him guilty beyond a reasonable doubt of armed robbery, then you are authorized to consider robbery by intimidation.

Contrary to Herndon’s contention, the charge given did not require unanimity on the charged offense before considering the lesser offense. This case is unlike Cantrell, supra. In that case, the court’s initial charge to the jury may have passed muster, but when the jury reported it was deadlocked on the greater charge, the court “asked if the jury was able to agree unanimously one way or the other on the intent to distribute charge.” (Emphasis in original.) Id. at 701. The court in Cantrell noted that it had “no quarrel with” a charge that a jury should not consider a lesser offense unless the defendant be found not guilty of the greater offense, “so long as the court does not insist upon unanimity and is willing to accept a verdict on the lesser offense.” Id. at 702, n. 2. The trial court in this case heeded the advice given in Kunselman to follow the pattern charge, which, rather than requiring an acquittal on the greater charge before considering the lesser, requires the inverse: a finding that the jurors do not believe beyond a reasonable doubt that the defendant is guilty of the greater offense. Kunselman, supra at 325 (1). We find no error.

4. In two enumerations, Herndon contends the trial court impermissibly broadened Count 2 of the indictment in its charge to the jury and in a supplemental charge by reading the entire Code section on armed robbery. The indictment charged Herndon with committing armed robbery “by use of a handgun, an offensive weapon.” The trial court did not read the indictment to the jury, although it went out with the jury. In its instruction to the jury, the trial court charged that “[a] person commits armed robbery when, with the intent to commit a theft, that person takes property of another, from the person or the immediate presence of another by use of an offensive weapon or by any replica, article or device having the appearance of such a weapon.” Herndon argues that the jury reasonably could have found him guilty of using a “replica, article or device having the appearance of such a weapon.”

A jury charge that deviates from the language of the indictment violates the defendant’s right to due process of law when evidence has been introduced at trial that would support a conviction on the unalleged manner of committing the crime, and the jury has not been instructed that it must limit its consideration to the manner specified in the indictment. Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). Here, as in Harwell, no such limiting instruction was given. The deciding factor is therefore whether evidence was presented from which the jury could have concluded that Herndon committed armed robbery by means of a “replica, article or device having the appearance of an offensive weapon.”

No such evidence was presented. Although the Douglas County officer testified that the gun found was recovered with an empty magazine and was broken on one side, it was nevertheless an actual handgun, not a replica. The armed robbery statute does not require the use of a gun containing ammunition. Worthy v. State, 237 Ga. App. 565, 567 (2) (515 SE2d 869) (1999). In this case, the

Decided January 31, 2002.

Christine M. McDonald, James J. Lacy, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

evidence was undisputed that a handgun was used in the commission of the robbery, and although the court did not read directly from the indictment in the course of charging the jury, the indictment went out with the jury during its deliberations. Considering the charge in its entirety in connection with the evidence adduced at trial, the jury could not have been misled into convicting appellant of armed robbery by any means other than as charged in the indictment.

(Citation omitted.) Daniels v. State, 207 Ga. App. 689, 690-691 (2) (428 SE2d 820) (1993).

5. Herndon asserts that the trial court erred in permitting the Douglas County officer to testify to his course of conduct, which was based upon hearsay statements to him from the victim, who did not testify at trial. Herndon’s hearsay objection to the description of the perpetrator given to the officer was sustained twice. For the most part, the officer testified to his own actions and observations. Any hearsay that was admitted through this officer was harmless, because it was cumulative of other evidence that Herndon was the person arrested driving the blue Hyundai after a brief police chase, that the sweatshirt admitted into evidence and identified by the victims of the three Fulton County crimes was found in the car he was driving, and that the gun also identified by the victims was found on the ground nearby. “The admission of hearsay identification evidence is harmless error where such evidence is merely cumulative or supported by a positive identification and other corroborative circumstances.” (Citations and punctuation omitted.) White v. State, 273 Ga. 787, 791 (4) (546 SE2d 514) (2001).

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Herndon’s conviction in Douglas County was affirmed on appeal. Herndon v. State, 229 Ga. App. 457, 460-461 (11) (494 SE2d 262) (1997), overruled on other grounds, Felix v. State, 271 Ga. 534, 537, n. 3, 540 (523 SE2d 1) (1999); Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768) (1998).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A2376.
    HERNANDEZ v. THE STATE.
    (559 SE2d 758)
   Blackburn, Chief Judge.

Following a jury trial, Gregoria Martines Hernandez appeals his convictions for armed robbery, kidnapping, and simple battery, contending that the trial court erred by denying his motion for a directed verdict of acquittal. Because the evidence supported the verdict, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hernandez] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the [standard] of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that [Hernandez] was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Lowery v. State.

Viewing the evidence in this light, the record shows that, on the evening of January 31, 1998, Julio Montilla drove his cab to a gas station where he picked up two Hispanic males. Montilla testified that, prior to picking anyone up, it was his custom to study that person closely for his safety. On the night in question, Montilla followed this custom and looked at his passengers carefully in a well-lit area of the gas station for more than a minute. After Montilla began to drive away with the two men, they pulled guns on him, drove his cab to another location, beat him, and robbed him.

Following the crime, Montilla gave the police a detailed description of the perpetrators, and he also described them to his coworkers. About a week after the crime, a co-worker spotted Hernandez and alerted both Montilla and the police. At the scene, Montilla positively identified Hernandez as one of his assailants, and he was subsequently arrested. Montilla testified that he had no doubt that Hernandez had committed the crime.

Decided January 31, 2002.

Mary Erickson, for appellant.

Patrick H. Head, District Attorney, Amy H. McChesney, Assistant District Attorney, for appellee.

On appeal, Hernandez’s only argument is that Montilla’s eyewitness identification was not credible. As stated previously, however, a witness’s credibility is a matter for the trier of fact, not this Court. Lowery, supra. Here, the jury believed Montilla’s testimony that Hernandez committed the crime against him.

The evidence was sufficient to support the verdict.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

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

        Lowery v. State, 242 Ga. App. 375-376 (530 SE2d 22) (2000).


author: Phipps, Judge.

text:
    A02A0245.
    INSURANCE DEPARTMENT OF THE STATE OF GEORGIA et al. v. ST. PAUL FIRE & CASUALTY INSURANCE COMPANY et al.
    (559 SE2d 754)
   Phipps, Judge.

The Georgia Commissioner of Insurance found that the decision of a group of affiliated insurance companies not to renew approximately 1,260 medical malpractice policies for physicians and surgeons in Georgia was an unfair trade practice under OCGA § 33-6-5 (12), which limits insurers’ ability to “cancel an entire line or class of business.” The insurers (collectively St. Paul) sought review in the superior court, which reversed the Commissioner’s decision. The Commissioner and the Insurance Department of the State of Georgia (collectively the State) appeal. Because we agree with the superior court that St. Paul’s actions did not fall within the scope of OCGA § 33-6-5 (12), we affirm.

The record shows that St. Paul issued medical malpractice insurance policies to various health care providers in Georgia, including “stand-alone” policies to physicians and surgeons who were not insured through a hospital or institution. On May 11, 2001, St. Paul informed its agents that it would not renew approximately 1,260 of these stand-alone policies due to underwriting losses. St. Paul then began sending notices of nonrenewal to the affected insureds as the annual expiration dates of their policies approached.

On May 23, the Commissioner ordered St. Paul to show cause why it should not be prevented from violating OCGA § 33-6-5 (12), which provides that

[n]o insurer shall cancel an entire line or class of business unless the insurer demonstrates to the satisfaction of the Commissioner that continuation of such business would violate the provisions of this title or would be hazardous to its policyholders or the public.

After a hearing, the Commissioner found that St. Paul’s nonrenewal of the 1,260 stand-alone policies did, indeed, violate OCGA § 33-6-5 (12), ordered St. Paul to “cease and desist” from the nonrenewals, and imposed a variety of penalties. St. Paul sought review in the Superior Court of Fulton County, arguing that the statute did not apply because (1) it nonrenewed the policies in question, rather than cancelled them; and (2) its action did not affect an entire line or class of business, but only a subset of its medical malpractice line. The superior court agreed with St. Paul and reversed the Commissioner’s order.

This case turns on the correctness of the Commissioner’s interpretation of key terms in OCGA § 33-6-5 (12), which is part of the Insurance Code that he is charged with administering. “ ‘The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.’ ” However, a reviewing court is “authorized to make an independent determination as to whether the interpretation of the administrative agency correctly reflects the plain language of the statute and comports with the legislative intent. [Cits.]”

The cardinal rule of statutory interpretation is to ascertain the legislature’s purpose in enacting a statute and then construe the statute to effect that purpose, avoiding interpretations that do not “square with common sense and sound reasoning.” Language in one part of the statute must be interpreted in light of the legislature’s intent as found in the whole statute. But if the statutory language is plain and unequivocal,s then “judicial construction is not only unnecessary but forbidden.”

1. The first issue is the meaning of “cancel” in OCGA § 33-6-5 (12). The Commissioner found that the statute “applies to termination by any means, whether it is technically denominated as a cancellation or a nonrenewal.” The superior court disagreed, ruling that the statute’s plain language and legislative history show that it applies only to cancellations, and not to nonrenewals, of policies. We agree with the superior court.

First, the Insurance Code repeatedly distinguishes between cancellation and nonrenewal of policies, indicating that the terms are not synonymous. For example, OCGA §§ 33-24-44 to 33-24-47 prescribe different procedures for the cancellation of a policy before its expiration date and the refusal to renew a policy after that date. The State argues that the distinction between cancellation and nonrenewal in unrelated chapters of the Insurance Code does not illuminate the definition of “cancel” in the chapter of the Code addressing unfair trade practices. However, OCGA § 33-6-5 (8) — which is part of the unfair trade practices chapter — provides, with certain exceptions, that no insurer shall “cancel, modify coverage, refuse to issue, or refuse to renew any property or casualty insurance policy” solely because of an applicant or insured’s physical or mental impairment. The legislature’s inclusion of both “cancel” and “refuse to renew” in OCGA § 33-6-5 (8) indicates that, contrary to the State’s contention, those terms are not interchangeable for the purpose of the unfair trade practices chapter.

Second, this Court previously has recognized that cancellation and nonrenewal are not the same thing. In Banks v. Aetna Cas. &c. Co., Aetna refused to renew Banks’s motor vehicle insurance policy after she reported two losses. Banks, who denied fault in both incidents, sued Aetna under OCGA § 33-9-40, which provides that an insurer may not “cancel” a policy if the insured is involved in a multivehicle accident that is not her fault. Banks argued that Aetna’s failure to renew her policy was a cancellation in violation of the statute. We disagreed:

If OCGA § 33-9-40 forbade “termination” where a policy holder was not at fault Banks might be right. However, that code section employs instead the more restrictive term “cancel,” which does not include “nonrenewal.” While the insurance carrier could not cancel the policy for accidents not the fault of its insured, it was not prohibited from declining to renew the policy for that reason.

Citing Henderson v. Alexander, the State argues that because OCGA § 33-6-5 (12) is a remedial statute designed to prevent unfair trade practices, it must be construed broadly to effect its equitable goals:

Statutes that are remedial [ ] are to receive an equitable interpretation, by which the letter of the Act is sometimes restrained and sometimes enlarged, so as more effectually to meet the beneficial end in view, and prevent a failure of the remedy. They are to be construed liberally and ultra, but not contra to the strict letter. [Cits.]

We agree that uncertainties or ambiguities in remedial statutes should be resolved in favor of a liberal interpretation. But there is no uncertainty or ambiguity here; as explained above, “cancel” clearly does not encompass “nonrenew.” Interpreting “cancel” in that manner would be “contra to the strict letter” of the statute. Where statutory language is plain and not capable of multiple interpretations, “the court is not authorized to construe the act according to the supposed intention of the legislature.”

The State is asking for more than a broad construction of the statute in this case. It is asking for a construction contrary to the plain meaning of the term “cancel” as that term is used in the insurance industry, in the Insurance Code, and in our case law. By its plain terms the statute limits the power of an insurer to “cancel an entire line or class of business,” thereby effectuating an immediate, widespread interruption of insurance coverage. This is a far cry from discontinuing a line of business by refusing to renew policies as they come up for renewal.

According to the State, a literal interpretation of “cancel” in OCGA § 33-6-5 (12) would make the statute “wholly ineffective” by creating a “loophole big enough for any insurer to accomplish an unlawful mass termination.” While courts are to avoid statutory interpretations that create absurd or unjust results, that is not the case here. A literal interpretation of “cancel” undeniably narrows the range of policy terminations to which OCGA § 33-6-5 (12) applies, but we cannot say that the legislature’s decision to restrict only mass cancellations and not mass nonrenewals is absurd or unjust. If the legislature had intended to restrict both, then it would have said so, as it did elsewhere in the unfair trade practices chapter.

Decided January 31, 2002.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, Sidney R. Barrett, Assistant Attorney General, for appellants.

King & Spalding, Ralph B. Levy, Richard L. Shackelford, Robert M. Keenan III, Michael A. Sexton, for appellees.

Because St. Paul nonrenewed, rather than cancelled, the medical malpractice policies at issue, OCGA § 33-6-5 (12) did not apply.

2. In light of our holding in Division 1, we need not address the meaning of “entire line or class of business” in OCGA § 33-6-5 (12).

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

       St. Paul Fire & Casualty Insurance Company, St. Paul Fire & Marine Insurance Company, St. Paul Guardian Medical Insurance Company, St. Paul Medical Liability Insurance Company, and St. Paul Mercury Insurance Company.

       (Citations omitted.) Commr. of Ins. v. Stryker, 218 Ga. App. 716, 718 (5) (463 SE2d 163) (1995).

        Sawnee Elec. Membership Corp. v. Ga. Public Svc. Comm., 273 Ga. 702, 706 (544 SE2d 158) (2001).

       Id. at 704.

       (Citations and punctuation omitted.) Simpson v. Southwire Co., 249 Ga. App. 406, 407 (1) (548 SE2d 660) (2001).

       Id. at 408.

       (Citation omitted.) Glover v. State, 272 Ga. 639, 640 (533 SE2d 374) (2000).

       (Emphasis supplied.)

       189 Ga. App. 758 (377 SE2d 685) (1989).

       Id. at 759.

       2 Ga. 81 (1847).

       (Emphasis in original.) Id. at 85.

       (Emphasis in original.) Id.

        Floyd County v. Salmon, 151 Ga. 313, 315 (106 SE 280) (1921); see also Home Indem. Co. v. Battey Machinery Co., 109 Ga. App. 322, 324 (1) (136 SE2d 193) (1964) (rule that remedial statutes are entitled to liberal construction “ ‘does not justify ignoring plain words’ ”).

       See Hinton v. Interstate Guaranty Ins. Co., 267 Ga. 516, 518 (480 SE2d 842) (1997).


author: Mikell, Judge.

text:
    A01A2220.
    RICHARDSON v. THE STATE.
    (560 SE2d 65)
   Mikell, Judge.

James Autrie Richardson was indicted for aggravated assault by firing a gun at Jarvis Freeman. A Monroe County jury found Richardson guilty of the lesser count of simple assault. On appeal, Richardson claims the trial court (1) prevented his counsel from questioning the victim about a related civil action, (2) allowed hearsay testimony, and (3) erred in its jury charges on impeachment and justification. For the reasons that follow, we affirm.

The record shows that on August 29, 1998, Richardson entered a convenience store in Monroe County and confronted Jarvis Freeman. Freeman testified that Richardson took off his belt, started beating Freeman, and said, “you black nigger I ought to whip your ass for accusing my son of stealing some gas.” Although Freeman said he had no idea what Richardson was talking about, Richardson continued to hit Freeman with his belt and chased him out of the store. Two witnesses, Stanley Jackson and Emmett Willis, testified that Richardson fired a gun twice in Jarvis Freeman’s direction as he fled.

1. During cross-examination, defense counsel established that Freeman had filed a civil suit seeking $350,000 in damages against Richardson based on the events giving rise to the criminal prosecution. Defense counsel then asked Freeman: “Now, is there anybody told you that if Mr. Richardson is convicted, you would have a better chance of getting that $350,000?” The state objected. The trial court sustained the objection for the reason that Freeman might not be aware of all the ramifications of a conviction. Richardson contends that the trial court committed reversible error in sustaining the objection. We disagree.

It is only reversible error for a trial court to refuse to allow a state’s witness to testify on cross-examination that he has a civil damage suit pending based upon the facts involved in the criminal case. Freeman was cross-examined at length concerning the civil suit he filed against Richardson. Moreover, Freeman was ultimately asked, without objection, whether he felt that the outcome of the criminal case would affect the outcome of the civil case. The questions asked and answered by Freeman on cross-examination show the existence of the civil action and Freeman’s possible bias by reason of that action. Therefore, Richardson can show no harm arising from the trial court’s alleged error. As both error and harm must be shown to warrant a reversal on appeal, this enumeration lacks merit.

2. The prosecutor asked Sergeant William Freeman, the police officer who responded to the incident, “What story did Jarvis [Freeman] relate to you?” Richardson argues the trial court erred when it overruled his hearsay objection to the question. We disagree. The trial court correctly admitted the testimony as a prior consistent statement. Evidence of a prior consistent statement is admissible as substantive evidence “when the veracity of the witness’s trial testimony has been placed in issue at trial, the witness is present at trial, and the witness is available for cross-examination.” These prerequisites were satisfied. Richardson had questioned Jarvis Freeman’s credibility when he introduced evidence of the civil suit and asked him whether the outcome of the criminal case would affect the outcome of the pending civil action. Accordingly, this enumeration is meritless as well.

3. Nor did the trial court err in allowing Sergeant Freeman to relate what witness Willis had told him transpired that evening. Sergeant Freeman testified that “Mr. Willis said [Richardson] had it [the gun] dead-level pointed at him [Jarvis Freeman] in the direction he was running.” This statement is consistent with Willis’s prior testimony that Jarvis Freeman had fled behind some bushes and that Richardson had shot in that direction. Moreover, defense counsel impliedly placed Willis’s veracity in issue when counsel established on cross-examination that Willis and Jarvis Freeman were friends as well as cousins who had been “raised up together.” The veracity of a witness may be placed into issue either expressly or by implication, and the testimony concerning Jarvis Freeman’s relationship with Willis tended to show bias by Willis. Accordingly, the trial court did not err in admitting the testimony at issue.

4. Richardson also claims that the trial court erred in refusing to strike Sergeant Freeman’s testimony concerning Willis’s statement because the prosecutor’s question amounted to an impermissible attempt to impeach Willis’s testimony. As discussed above, however, Willis’s statement to Sergeant Freeman was consistent with his prior testimony; there was no attempt to impeach that testimony.

5. Richardson next asserts that the trial court erred in its jury charge on impeachment. In part, the charge provided:

Now Ladies and Gentlemen, to impeach a witness means to prove that witness unworthy of belief. A witness may be impeached in Georgia by disproving the facts to which they have testified or by proof of contradictory statements previously made by the witness. A witness may also be impeached by proof of general bad character or by proof of a crime involving moral turpitude.

The trial court’s charge was not erroneous with regard to the nature of impeachment. At worst, the trial court charged the jury on methods for impeachment not authorized by the evidence, which is error. Nevertheless, “an unauthorized charge on an unavailable method of impeachment is generally harmless error.” Given the strength of the evidence against Richardson and the nature of the charge as a whole, we conclude that any error regarding the impeachment charge was harmless.

6. Richardson further contends the trial court erred in charging the jury as follows: “The indictment coupled with the plea of not guilty form the issue which you . . . are to decide, and that is whether or not this Defendant did commit some act out there on the 29th day of August, 1998 that was in violation of a Georgia criminal statute.” Richardson argues that the charge erroneously authorized the jurors to find him guilty if they concluded that he committed any crime at all on August 29, 1998. However, considering the charge as a whole, we do not believe the jury was misled. The trial court made it clear that the state was required to prove the elements of the crimes actually charged in the indictment. The portion of the trial court’s charge alleged to be erroneous must be viewed in the context of the charge in its entirety, and the charge given, considered in its entirety, is correct.

Decided February 1, 2002.

Ham & Jenkins, Phillip B. Ham, for appellant.

7. Finally, Richardson assigns error to the trial court’s charge to the jury on justification. The trial court charged the jury that “if there is any justification for abusive language used by the person against whom force was threatened or used, you the jury may in your discretion find the words for [sic] justification for a simple assault.” Richardson contends this charge was incorrect and misleading. The correct principle of law is embodied in OCGA § 16-5-25, which provides:

A person charged with the offense of simple assault or simple battery may introduce in evidence any opprobrious or abusive language used by the person against whom force was threatened or used; and the trier of facts may, in its discretion, find that the words used were justification for simple assault or simple battery.

In this case, the trial court inadvertently referred to justification for the use of abusive language by the victim. Where, as here, the trial court commits a slip of the tongue in charging the jury, “we must address whether a fair risk exists that the mistake misled or confused the jury.” We conclude that the error was harmless. First, it did not change the central meaning of the law, which is that abusive language may be justification for a simple assault. Second, Jarvis Freeman uttered no arguably abusive words until after Richardson beat him with a belt. Accordingly, any error in the charge on the defense of justification by reason of opprobrious or abusive language by the victim is harmless.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

       See Chancellor v. State, 165 Ga. App. 365, 372 (23) (301 SE2d 294) (1983).

       See Ellis v. State, 235 Ga. App. 837, 838 (4) (510 SE2d 127) (1998).

       (Punctuation omitted.) Robinson v. State, 246 Ga. App. 576, 581-582 (5) (541 SE2d 660) (2000).

        Carter v. State, 238 Ga. App. 708, 710 (2) (520 SE2d 15) (1999).

        Hardy v. State, 240 Ga. App. 115, 120 (6) (522 SE2d 704) (1999).

       (Punctuation omitted.) Id.

       See Nunery v. State, 229 Ga. App. 246, 247-248 (2) (493 SE2d 610) (1997).

       See Nealy v. State, 246 Ga. App. 752, 756 (5) (542 SE2d 521) (2000).

        Chamberlain v. State, 216 Ga. App. 207, 208 (2) (453 SE2d 793) (1995), overruled on other grounds, Moak v. State, 222 Ga. App. 36, 40 (473 SE2d 576) (1996).

       After he was beaten, Freeman testified that he exclaimed, “Fuck it, Fuck it, Fuck it.”


author: MlKELL, Judge.

text:
    A01A2341.
    JACKSON v. THE STATE.
    (560 SE2d 62)
   MlKELL, Judge.

Following a bench trial, Christopher Jackson was convicted of misdemeanor battery, OCGA § 16-5-23.1, and false imprisonment, OCGA § 16-5-41, for acts directed at his girlfriend. The trial court without a hearing denied Jackson’s motion for a new trial, and this appeal followed. In the sole error raised on appeal, Jackson contends that the court erred in conducting a bench trial without first determining whether he had knowingly, voluntarily, intelligently, and personally waived his right to a jury trial. Because the record does not adequately demonstrate whether Jackson made such a waiver, we vacate the judgment and remand for an evidentiary hearing on this issue.

The record shows that on the morning of trial, Jackson’s counsel announced in open court that the defense intended to “proceed with a non-negotiated plea as to Mr. Jackson.” After being sworn as a witness, Jackson testified that he was not under the influence of drugs, alcohol, or any other medication; that he was aware of the maximum and minimum penalties for battery and false imprisonment; that he had sufficient time to consult with his attorney; and that he was satisfied with his attorney’s services. The prosecutor then informed Jackson of the rights he would waive by pleading guilty, including the right to a jury trial, the right to confront witnesses against him, the right to produce evidence and witnesses in his favor, and the right to choose whether to testify at trial. At this point in the proceeding, Jackson and his counsel conferred for a moment. Defense counsel announced that Jackson had changed his mind and wished to go forward with a trial. The following exchange then took place between defense counsel and the trial court:

THE COURT: All right. Is he asking for a jury trial or a bench trial?
(The defendant and his counsel confer.)
MR. WALLACK: We wish to go ahead with a bench trial, Your Honor.
THE COURT: All right.

After hearing the evidence, the court convicted Jackson of both offenses and sentenced him to four years to sérve for the false imprisonment charge and twelve months to serve for the battery charge.

The law is clear that “[although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. [Cit.] However, defendant’s consent need not be in a particular, ritualistic form. . . . [T]he only real issue is whether appellant intelligently agreed to a trial without jury.” (Punctuation omitted.) Safford v. State, 240 Ga. App. 80, 82 (2) (522 SE2d 565) (1999). See also Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996).

Jackson argues that the court failed to determine whether he had knowingly and intelligently waived his right to a jury trial.

When the purported waiver of this right is questioned, the State bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Payne v. State, 217 Ga. App. 386, 387 (460 SE2d 297) (1995). See also Gary v. State, 241 Ga. App. 76, 77 (2) (526 SE2d 148) (1999), citing Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994). In this case, the state contends that the record demonstrates Jackson’s knowledge of the right being waived. We disagree.

The transcript shows that Jackson and his attorney conferred after being asked whether they wished to proceed with a bench or jury trial. But the record is silent on the content of that conversation. Unlike in Gary, supra, where the defendant and his counsel testified in detail about their discussions of whether to proceed with a bench trial, here, the record does not reveal what was discussed. It is likely that they discussed the matter, but we cannot presume compliance with constitutional requirements from a silent record. Thus, we have no way of knowing whether counsel explained Jackson’s right to a jury trial to him and no way of knowing whether Jackson personally participated in the decision to choose a bench trial.

The record’s silence prevents the state from meeting its burden of demonstrating a knowing and voluntary waiver. In McCormick v. State, 222 Ga. App. 753, 756 (1) (476 SE2d 271) (1996), we held that the state had not met its burden when trial counsel could not recall discussing “the fact that appellant had a right to be tried by a jury, and that appellant knowingly and voluntarily waived that right.” (Emphasis in original.) In that case, defense counsel testified that he remembered discussing the difference between a jury trial and a bench trial and that he recommended that his client elect to proceed with a bench trial; however, we concluded that such evidence was not sufficient to establish a knowing and voluntary waiver of the defendant’s right to a trial by jury. Id. Here, we have far less evidence of the conversations between Jackson and his counsel because the court did not conduct a hearing on the motion for new trial.

Moreover, the record is inadequate to demonstrate that the decision to waive a jury trial was actually made by the defendant. Since 1930, federal cases have required a showing that the defendant “personally and intelligently participate [d] in the waiver.” (Punctuation omitted.) Pirkle, supra at 657, citing Patton v. United States, 281 U. S. 276, 312 (50 SC 253, 74 LE 854) (1930). Further, it is clear under Georgia law that mere “participation” is not enough; rather, the state must show that the defendant made a “conscious choice to waive his right to a jury trial.” Jones, supra at 679 (2). See also Eason v. State, 249 Ga. App. 738 (549 SE2d 532) (2001). In the case at bar, for example, it could be argued that Jackson participated in the decision to waive a jury trial because he was present when the decision was made and conferred with his counsel prior to counsel’s announcement that “we wish to go ahead with a bench trial.” (Emphasis supplied.) But we have held that similar records were inadequate. Whitaker v. State, 244 Ga. App. 241, 244 (4) (535 SE2d 283) (2000); Capelli v. State, 203 Ga. App. 79-80 (2) (416 SE2d 136) (1992). Essentially, the record must affirmatively show that the defendant made the decision to waive his right to a jury trial, or at least that he or she agreed with the decision.

Chief Judge Quillian explained in Wooten v. State, 162 Ga. App. 719, 720 (293 SE2d 11) (1982), that “it would be preferable to have defendant’s personal participation spread on the record in open court.” In a more recent decision, we recognized that

before accepting a waiver, it would be preferable for the trial judge to question the defendant on the record to ensure that the defendant personally has made a voluntary, knowing, and intelligent waiver of his or her right to a jury trial. A few questions directed to the defendant by the trial judge would protect the right and help to avoid subsequent claims that the right was not personally, voluntarily, knowingly, and intelligently waived.

Whitaker, supra. A foolproof guide to the correct procedure for eliciting a valid waiver is found in the Georgia Superior Courts Criminal Benchbook, §§ 11.21 and 11.22. Trial judges may be reticent to address defendants directly, particularly those represented by counsel, to determine if they personally elected to waive the right to a jury trial. However, it is difficult to imagine a valid reason not to follow the course of action suggested by Chief Judge Quillian in Wooten, supra. Upon being questioned by the court regarding the waiver, if a defendant exercises his right to remain silent, or if counsel objects to his client’s being addressed directly by the court, the trial judge can impanel a jury and proceed to trial.

Decided February 1, 2002.

James S. Lewis, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

Accordingly, because the record in this case does not adequately demonstrate whether Jackson made a knowing and intelligent waiver of his right to a jury trial, the conviction is hereby vacated, and the case is remanded to the trial court for an evidentiary hearing on this issue. Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991). In the event the trial court determines from the evidence adduced at this hearing that Jackson did make such a waiver and that he personally participated in the decision, then the conviction and sentence may be reinstated, and Jackson will be entitled to file a new appeal directed to this issue. Id. See also Payne, supra at 388.

Judgment vacated and case remanded with direction.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A2403.
    DOMINGUEZ-VEGA v. THE STATE.
    (560 SE2d 56)
   Mikell, Judge.

A jury convicted Leoncio Dominguez-Vega of rape, two counts of aggravated assault, kidnapping, battery, and carrying a concealed weapon. He appeals from the denial of his motion for new trial, contending the evidence was insufficient to support his rape conviction and that his trial counsel rendered ineffective assistance. Finding no error, we affirm.

1. Appellant challenges the sufficiency of the evidence to support the rape conviction. This argument consists of a generalized attack upon the rape victim’s credibility. However, it is not the function of an appellate court to weigh the evidence, determine witness credibility, or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Hardy v. State, 240 Ga. App. 115, 121 (8) (522 SE2d 704) (1999). Instead, the evidence must be viewed in the light most favorable to the verdict to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A person commits rape when he has carnal knowledge of a woman forcibly and against her will. OCGA § 16-6-1. In this case, the state, assisted by the defendant’s own testimony, presented ample evidence of the defendant’s guilt. The record reveals that on the date of the incident, the defendant and the victim, who had had a volatile, long-term relationship, were no longer living together but still saw each other daily. The defendant testified that early in the morning he drove to the victim’s workplace and demanded that she give him money to help pay for repairs to his car. According to the victim, she went outside with the defendant and explained that she could not help him. Enraged, the defendant slapped her hard on her cheek' with the back of his hand. The victim testified that the defendant took her arm, shoved her into his car, drove to his brother’s house, took her inside, and raped her.

On direct examination, the defendant testified that he slapped the victim; that he grabbed her hand and opened the car door so she would get in; and that he drove her to his brother’s apartment. The defendant testified that after he and the victim went inside, he suggested they have sex because “after I slapped her, that made her feel good.” Although counsel tried to rehabilitate the defendant, he continued in the same vein:

A. I knew that I had slapped her on the cheek. I told her come over, take your pants off, so we turned the sofa around. At this point I pull her pants off and also her panties. I was making love with her. It was like lové and foreplay.
Q. Did she do anything to make you think that she did not want to have sex?
A. She said no, but a man knows what that no means.

Given that the defendant admitted all of the essential elements of the offense, the jury was authorized to conclude beyond a reasonable doubt that the defendant raped the victim.

2. The defendant next contends that his trial counsel was ineffective because she failed to impeach the victim with prior inconsistent statements. We disagree.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), a defendant must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the outcome would have been different. Jackson v. State, 243 Ga. App. 289, 291 (3) (531 SE2d 747) (2000). Moreover,

Decided February 1, 2002.

Mark R. Gaffney, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Joseph N. Walden III, Assistant District Attorneys, for appellee.

there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic.

(Footnote omitted.) Id.

Defendant argued at the hearing on his motion for new trial that his trial counsel should have impeached the victim with the statement she gave to the police and with her testimony at the preliminary hearing. Defendant raises only one inconsistency between the victim’s trial testimony and her prior statements. At trial, the victim testified that she removed her clothing after the defendant instructed her to do so, while at the preliminary hearing and in her statement to police, the victim indicated that the defendant pulled off her pants and underwear. Trial counsel testified that she elected not to cross-examine the victim on this point because counsel “was happier with her version on the stand than with what she wrote in her statement.” We hold that trial counsel’s decision not to impeach the victim with her prior inconsistent statements was a matter of trial strategy and fell within the bounds of reasonable professional conduct. Jenkins v. State, 268 Ga. 468, 473 (10) (491 SE2d 54) (1997).

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       Although the defendant has not contested the sufficiency of the evidence to support his conviction on the remaining counts, we have reviewed the entire transcript out of an abundance of caution, and we find that any rational trier of fact could have found the defendant guilty of the offenses with which he was charged. Jackson v. Virginia, supra.


text:
    A01A2409.
    In the Interest of G. G. et al., children.
    (560 SE2d 69)
   MlKELL, Judge.

J. G., the biological mother of G. G. and B. A. S., eighteen months and five months, respectively, appeals the juvenile court’s order finding the children deprived and awarding temporary custody to the Lumpkin County Department of Family & Children Services (“DFCS”). We affirm.

“On appeal from a juvenile court’s order finding deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the [children were] deprived.” We neither weigh evidence nor determine the credibility of witnesses.

So viewed, the evidence shows that on March 1, 2001, J. G. left G. G. in the care of her boyfriend’s sister while she went to work. Her boyfriend, B. S., who is B. A. S.’s father, came home at about 5:30. B. S. testified that he wrestled with G. G. that evening as he did every evening when he arrived from work. He and G. G. picked up J. G. at about 11:00 p.m. J. G. recalled that G. G. whined throughout the night while sleeping.

The next morning, J. G. noticed that G. G. was holding his right arm. When she asked B. S. if G. G. had fallen, he told her that they had wrestled the previous night and that G. G. had cried several times while they were wrestling, but he had not noticed that anything was wrong with G. G. Later that day, J. G. noticed that G. G.’s arm was swollen, but she still did not become alarmed because G. G. played on the floor as he normally did. J. G. testified that G. G. dropped his cup later that evening because he could not hold it in his right hand and that B. S. threw it against the wall and started calling G. G. vulgar names. J. G. confronted B. S., they argued, and J. G. called a shelter and left with the children. When they arrived at the shelter, J. G. asked if someone would take them to a doctor. The doctor examined G. G.’s arm but did not take x-rays. They returned to the shelter, and G. G. cried and held his arm throughout the night.

The next morning, after she had scheduled another doctor’s appointment for 2:00 p.m., J. G. was told that DFCS had called and planned to visit the shelter within an hour or so to talk to her about G. G.’s arm. When the DFCS caseworker arrived, J. G. explained that she did not know what happened to G. G.’s arm. The cáseworker insisted that she take the child in for x-rays immediately. The x-rays showed that G. G.’s right arm had been fractured in two places.

The juvenile court ordered that the children be placed in the custody of DFCS for emergency shelter care on March 8, 2001. On April 4, 2001, Lumpkin County DFCS filed its petition for temporary custody of the children. At the deprivation hearing, DFCS introduced a report from Dr. Kris Sperry, Chief Medical Examiner for the State of Georgia, who reviewed G. G.’s medical records and x-rays. Dr. Sperry concluded that the fractures resulted from an adult exerting a severe, twisting force upon G. G.’s arm, hand, and wrist in a violent, forceful manner, which constituted child abuse. Dr. John Hemmer, who examined G. G. on March 6, 2001, testified that he also observed two fractures of G. G.’s right arm and that from the pattern of the injuries, it was unlikely that they were accidentally caused. Also, it would have been unusual for the injuries to have occurred simultaneously. Dr. Hemmer opined that one of the breaks was caused by a fall or a direct blow while the other, which was unusual in a child of G. G.’s age, was caused by a twisting mechanism. He testified that the latter injury was consistent with a child’s arm having been twisted by an adult. When asked if G. G.’s injuries were consistent with child abuse, Dr. Hemmer replied, “I would certainly think about that more, yes.”

DFCS offered evidence from B. S. that J. G. regularly picked up G. G. by one arm. Mickey Kane, who is B. S.’s brother’s girlfriend and lived with J. G. and B. S. for two to three months, also testified that she saw J. G. pick up G. G. by one arm. J. G. denied that she ever picked up her child by one arm and maintained that she did not know how G. G.’s injury occurred. Dr. Hemmer testified, however, that J. G. told him that B. S. broke G. G.’s arm while she was at work.

The record revealed that J. G. and her children had a long history with DFCS. DFCS presented evidence of other injuries suffered by G. G. since his birth and of J. G.’s case history. On cross-examination, J. G. testified that when G. G. was two months old, his doctor prescribed a home cardiac/apnea machine to monitor his breathing problems. The Apnea Center at Children’s Healthcare of Atlanta was asked to download findings from the monitor to interpret and to report them to G. G.’s doctor. J. G. testified that the doctor told her to use the monitor for two weeks, and if G. G. did not appear to have problems breathing, she could discontinue its use. To refute J. G.’s testimony, DFCS introduced a letter to J. G. from Children’s Healthcare of Atlanta informing her that they planned to discontinue their services on June 26, 2000, because she was unwilling to use or download the monitor. J. G. denied that she had ever received the letter.

Debra Bryeen, a White County DFCS caseworker, testified that she investigated J. G. for general neglect of her home and of G. G. in August 2000. Bryeen testified that at that time, J. G. lived with her mother, stepfather, and two siblings in a two-bedroom trailer. When she visited J. G. in the trailer, Bryeen observed roaches all over the home, piles of clothing on the floor, flooring that had fallen out under the sink, trash, cigarette burns, and holes in the walls. She smelled an odor from garbage, feces, and urine. At that time, J. G. was seven months pregnant with B. A. S. Bryeen testified that she and J. G. had several heated discussions about the condition of the home and that they finally agreed that J. G.’s sister would move in to help clean the house.

In September 2000, another caseworker from White County DFCS visited J. G. to investigate the allegation that G. G.’s legs were infected. G. G. had casts on both of his legs after having surgery for his club feet. J. G. testified that G. G.’s legs became infected because of eczema. On the morning of September 15, 2000, J. G. and G. G. visited Bryeen at DFCS. When Bryeen saw G. G., she was concerned that he had impetigo and urged J. G. to take him to a doctor. Because J. G. insisted that she would wait to take him later that evening, she and Bryeen argued, and Bryeen had a co-worker call the police after J. G. threatened her. Bryeen testified that they eventually went to the doctor, and after he diagnosed impetigo, J. G. argued with the doctor about his prescribed course of treatment for G. G. Bryeen then referred J. G. to counseling for parenting classes and counseling with her anger.

Three weeks after G. G.’s bout with impetigo, he fell from the seat of B. S.’s truck and hit his head on the pavement. J. G. testified that she was cleaning G. G.’s carseat because he had vomited and that she had asked B. S. to sit with G. G. in the truck. Instead, B. S. left the child alone in the truck and closed the door. When he opened it, G. G. fell, hitting his head on the pavement. When questioned about her statement to hospital personnel that the accident happened because G. G. rolled over while J. G. changed his diaper, J. G. replied that the records were inaccurate.

Licensed clinical social worker Kristen Snedden testified that she provided counseling to J. G. When Snedden first visited J. G. at her mother’s trailer on September 29, 2000, Snedden observed and commented upon the unsanitary living conditions. These conditions had not changed by Snedden’s second visit. When Snedden next visited on October 9, 2000, she learned from J. G.’s mother that J. G. had moved to Lumpkin County to live with her boyfriend. J. G.’s mother reported that they had had a fight and that J. G. had been verbally and physically abusive and could no longer live there. Snedden then advised the White County DFCS caseworker that J. G. had left the county. Snedden closed her file on J. G. on November 28, 2000, reporting that J. G.’s prognosis was poor and that she would continue to need intervention to insure the safety and well-being of her children.

Snedden’s next contact with J. G. occurred in April 2001 after G. G.’s arm was fractured, when DFCS requested that the social worker assess the children. In her assessment, Snedden found that G. G. was developmentally delayed. He had very low activity for his age. He was not able to say more than three words, while other eighteen-month-old children have vocabularies of at least twenty to thirty words. He was not walking yet. His ability to show affection was stunted in comparison to other children his age. Because of G. G.’s problems, Snedden recommended a structured child care environment for him so that G. G. could interact with other children and adults. J. G. testified that she thought Snedden’s recommendations were wrong and that she planned to have her sister keep both of her children if they were returned to her.

Snedden testified that the five-month-old child, B. A. S., needed continued treatment for reflux and ongoing monitoring, especially in light of his history with asthma. Also, she testified that B. A. S. should remain on the feeding schedule recommended by his doctor because of his reflux problems. Snedden recommended the continuation of both children’s current foster care placement.

On June 4, 2001, the juvenile court entered an order finding the children deprived and awarding DFCS temporary custody, which J. G. appeals. In her sole enumeration of error, J. G. argues that the juvenile court erred in finding that DFCS carried its burden of presenting clear and convincing evidence of deprivation. We disagree.

OCGA § 15-11-2 (8) defines a deprived child as one who:

(A) [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals; (B) [h]as been placed for care or adoption in violation of law; (C) [h]as been abandoned by his or her parents or other legal custodian; or (D) [i]s without a parent, guardian, or custodian.

In its order, the juvenile court found that the children were without proper parental supervision and care and had no parent or guardian to care for them. DFCS offered uncontroverted and unrebutted testimony from Drs. Sperry and Hemmer that G. G. was subjected to child abuse, resulting in two fractures to his right arm. The court concluded from the evidence that G. G. was injured either by the neglect of the parents or by child abuse, and that the medical evidence supported a finding of child abuse.

We have previously affirmed deprivation orders where the cause of the child’s injuries was never determined. In In the Interest of J. V., which is factually similar to this case, we held that “ [deprivation may be shown to have resulted from parental unfitness that is either intentional or unintentional misconduct resulting in the abuse or neglect of a child by what is tantamount to physical or mental incapability to care for the child.” Our holding mandates that we reject J. G.’s argument that the trial court erred by applying the doctrine of res ipsa loquitur because there was no substantive evidence that she or B. S. intentionally or unintentionally harmed G. G.

In In the Interest of J. V., the child’s x-rays revealed 13 fractures in his extremities and there was no evidence as to how the fractures occurred. Two expert witnesses testified that there was no plausible explanation other than child abuse, while another expert testified that the injuries could have resulted from child abuse or accidental injury. The child was in the care of the parents or grandmother when the fractures occurred. Each caretaker denied abusing the child, and none offered evidence that he or she would do anything differently if the child were returned to the home. We affirmed the juvenile court’s finding of deprivation as it was supported by clear and convincing evidence.

Here, Dr. Sperry opined that the cause of G. G.’s fractures was definitely child abuse, and Dr. Hemmer testified that the cause was probably child abuse. The evidence shows that G. G. was in the care of J. G, B. S., or B. S.’s sister when the fractures occurred. There was no explanation offered by J. G. as to how the fractures occurred, only J. G.’s denial that they could have been caused by her picking up the child by one arm and B. S.’s denial that it occurred when he was wrestling with G. G. There was no evidence that J. G. intended to comply with the recommendations of the social worker as to the best future care for her children. In fact, there was evidence to the contrary. Thus, here, as in In the Interest of J. V., the fact that there was no determination as to how the injuries occurred is inapposite.

The juvenile court also found that there was a history of uncontrolled anger by both parents toward each other, which created a dangerous environment for the children, and that DFCS made reasonable efforts to avoid court intervention. J. G. argues that neither of these findings is supported by clear and convincing evidence. Pretermitting whether they are so supported, the evidence presented was nonetheless sufficient to support the deprivation finding, which authorized the award of temporary custody. J. G. also contends that there was no clear and convincing evidence presented that the deprivation was ongoing. We disagree and find that there was ample evidence to support the court’s conclusion that remaining in the parents’ home would be contrary to the children’s welfare and that the children needed its protection while the parents endeavored to comply with the reunification plan.

Decided February 1, 2002.

Turner & Willis, Christopher W. Willis, Lynn Akeley-Alderman, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Thompson, Fox, Chandler, Homans & Hicks, Catherine H. Hicks, Hall & Rapoport, Robert E. Hall, for appellee.

Accordingly, having reviewed the evidence in the light most favorable to the juvenile court’s judgment, we affirm the juvenile court’s order.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       These were the children’s ages at the time of the hearing in May 2001.

       (Punctuation and footnote omitted.) In the Interest of M. L. C., 249 Ga. App. 435, 436 (2) (548 SE2d 137) (2001).

        In the Interest of C. C., 249 Ga. App. 101 (547 SE2d 738) (2001).

        Rodgers v. Dept. of Human Resources, 157 Ga. App. 235 (276 SE2d 902) (1981); see also In the Interest of J. V., 241 Ga. App. 621 (526 SE2d 386) (1999).

       Supra.

       (Citation omitted.) Id. at 626.

       Id.

       See OCGA § 15-11-55 (2) (B).

        In the Interest of M. L. C., supra.


text:
    A01A2428.
    QUINN v. THE STATE.
    (560 SE2d 58)
   Mikell, Judge.

A jury convicted Emanuel Quinn of selling cocaine in violation of OCGA § 16-13-30. He was sentenced to seven years confinement. The trial court appointed counsel to assist Quinn at trial, but Quinn elected to conduct his own defense. On appeal, Quinn is represented by counsel, who contends that the trial court erred in denying Quinn’s motion for new trial. Quinn argues that a videotape was erroneously admitted into evidence and that he was not sufficiently identified as the person selling cocaine. We affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that Officer James E. Mason, a narcotics agent with the Oconee Drug Task Force, participated in an undercover drug operation in Lumber City, Georgia, on May 15, 1998. Mason testified that he met with Irvin Foskey, a confidential informant, on that day. The authorities searched Foskey and his vehicle and found no contraband. Next, Mason wired Foskey’s vehicle with a videocamera and gave the informant $20 in state funds with which to make a drug purchase. The officer testified that Foskey drove into Lumber City, purchased crack cocaine, and returned to the task force. Upon his return, Foskey gave Mason the suspected crack cocaine he had purchased. The substance tested positive for cocaine at the State Crime Lab. According to Mason, the videocamera in Foskey’s vehicle recorded the events from the time he left the task force until he returned. Mason testified that the tape showed Foskey riding down a city street, making contact with a black male in a white vehicle, and purchasing a rock of crack cocaine from the man. Mason further testified that the man stated on the tape that he had been “laying low” because the police had raided the home of his brother-in-law two weeks prior to the sale. Mason explained that a search warrant had been executed at the home of Goldie Stegall, Quinn’s brother-in-law, ten days before Foskey made the purchase.

At trial, Foskey positively identified Quinn as the man from whom he purchased the crack cocaine. He testified that he had bought drugs from Quinn on prior occasions, but those transactions had not been recorded. Foskey testified that he knew that his vehicle had been wired and that there was a tape in the videocamera. He identified the tape, which was admitted into evidence. The tape was played for the jury. Afterward, Foskey testified that he recognized Quinn’s voice on the tape and again positively identified Quinn.

Chief Jimmy Adams of the Lumber City Police Department testified to the following: that he had known Quinn for a number of years; that he viewed the videotape of Foskey’s transaction with Quinn; that he recognized Quinn’s face and voice on the tape; and that he had seen Quinn operating a white vehicle with a Florida tag and had observed the vehicle parked at what appeared to be Quinn’s residence. Chief Adams also positively identified Quinn in the courtroom.

Quinn took the stand in his own defense. He claimed that he had been misidentified. He also denied selling the crack cocaine to Foskey on the day in question and suggested that the police may have mistaken his nephew for him.

During the jury’s deliberation, the court played the videotape two additional times at the jurors’ request without objection. Additionally, the court granted the jury’s request to listen to a tape of Officer Mason’s testimony. After the jury reheard Mason’s testimony, the court gave a cautionary instruction reminding the jurors of their duty to consider all of the evidence presented.

1. First, Quinn challenges the sufficiency of the evidence identifying him as the individual who sold Foskey the crack cocaine. This argument is without merit.

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).

There was ample evidence to show that Quinn was the man who sold cocaine to Foskey. First, Foskey himself positively identified Quinn.

“The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. . . . [T]he in-court identification of defendant as the seller is sufficient under the standard of Jackson v. Virginia, [supra,] to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of selling crack cocaine as alleged in the indictment. Flemister v. State, 229 Ga. App. 8 (1) (492 SE2d 907) [(1997)]; Rauls v. State, 209 Ga. App. 101, 102 (2) (432 SE2d 677) [(1993)].

James v. State, 233 Ga. App. 516, 519 (2) (504 SE2d 533) (1998). Additionally, the jury had the opportunity to view the videotape and to observe Quinn in the courtroom and could make their own identification from the tape. Finally, Officer Mason and Chief Adams identified Quinn from the videotape. Accordingly, we conclude that there was sufficient evidence to support both the identification of Quinn as the person who sold cocaine to Foskey and the resulting conviction.

2. In several related errors, Quinn argues that the court erred in admitting the videotape of the transaction. This argument was waived by Quinn’s failure to object to the admission of the videotape during the trial or to the tape being played two additional times during the jury’s deliberation. In fact, when asked by the court if he objected to the tape being played during the jury’s deliberation, Quinn answered that he did not. “The failure to object to the admission of evidence at trial constitutes a waiver of the right to raise the issue on appeal ” Rhodes v. State, 271 Ga. 481, 482 (2) (521 SE2d 579) (1999). See also Spear v. State, 270 Ga. 628, 631-632 (5) (513 SE2d 489) (1999).

Decided February 1, 2002.

Walter E. Baker, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, James E. Turk, Assistant District Attorneys, for appellee.

Furthermore, Quinn’s pro se status did not relieve him of his obligation to object to the admission of the tape. “[Quinn] is not held to a different or more lenient standard in this regard merely because he elected to proceed pro se. One who knowingly elects to represent himself assumes full responsibility for complying with the substantive and procedural requirements of the law.” Common v. State, 227 Ga. App. 774, 775 (2) (490 SE2d 529) (1997). Accordingly, Quinn’s remaining errors present nothing for our review, and the conviction is affirmed.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

       On appeal, Quinn mistakenly contends that Foskey testified that the transaction at issue was not recorded on the videotape. It is clear from the record that Quinn misunderstood Foskey’s testimony, in which the witness stated that prior drug purchases from Quinn had not been recorded.


author: Johnson, Presiding Judge.

text:
    A02A0273.
    ELLER v. THE STATE.
    (560 SE2d 60)
   Johnson, Presiding Judge.

A jury found Jerry Eller guilty of two counts of driving under the influence of alcohol, leaving the scene of an accident, failing to yield the right of way, and being a habitual violator. In his sole enumeration of error, Eller contends his trial counsel was ineffective. Because this claim lacks merit, we affirm Eller’s convictions.

To establish a claim of ineffective assistance of counsel, Eller must show that trial counsel’s performance fell below a reasonable standard of conduct and that there was a reasonable probability that the outcome of the case would have been different but for the deficient performance of counsel. Moreover, the trial court’s finding that Eller received effective assistance of counsel must be upheld on appeal unless that finding is clearly erroneous. On appeal, Eller states two grounds for his claim of ineffective assistance of counsel.

1. First, Eller contends that his trial counsel knew of certain witnesses and failed to call them at trial. However, this Court has consistently held that the decision regarding which witnesses to call is a matter of trial strategy and tactics and does not provide a basis for finding trial counsel ineffective. Since Eller’s trial counsel did not testify at the hearing on Eller’s ineffective assistance claim, we assume trial counsel’s actions were strategic.

Moreover, in determining the prejudicial effect of trial counsel’s failure to call a witness, Eller is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. Because Eller failed to call all but one of the witnesses at the hearing on his motion for new trial, it is impossible for him to show there is a reasonable probability the results of the proceedings would have been different if the witnesses had testified.

As for the testimony of his mother, the only witness besides Eller to testify at his motion for new trial hearing, the record shows that she did not see the accident and her testimony was not relevant to the charges. Although she could have rebutted evidence about Eller’s physical appearance immediately after the accident, the record shows that she was possibly a hostile and unreliable witness. She attempted to be removed from Eller’s bond and had trouble distinguishing between Eller’s previous arrests and the present arrest. In addition, her testimony was contrary to the weight of testimony on the subject and did not address the key issue of whether Eller was driving at the time of the incident. Under the circumstances, the decision by trial counsel not to call Eller’s mother as a witness was reasonable.

2. Eller next contends that trial counsel was ineffective in failing to ensure that closing arguments were recorded. However, Eller had no right to have closing arguments recorded. Accordingly, the fact that trial counsel did not request that closing arguments be fully recorded did not deprive Eller of any right and does not serve to demonstrate that his trial counsel was ineffective. Furthermore, we note that OCGA § 5-6-41 provided Eller the means to reconstruct the proceedings for purposes of appeal, potentially removing any prejudice from the absence of a transcript of closing arguments.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

Decided February 1, 2002.

C. David Turk III, for appellant.

N Stanley Gunter, District Attorney, Gerald W. Bruce, Assistant District Attorney, for appellee.

       See Milner v. State, 271 Ga. 578, 579 (2) (522 SE2d 654) (1999).

        Rutledge v. State, 237 Ga. App. 390, 391 (2) (515 SE2d 1) (1999).

        Beecher v. State, 240 Ga. App. 457, 460 (4) (523 SE2d 54) (1999); Rutledge, supra at 392.

        Taylor v. State, 248 Ga. App. 715, 717 (5) (548 SE2d 414) (2001); Veal v. State, 242 Ga. App. 873, 877 (5) (a) (531 SE2d 422) (2000).

        Letson v. State, 236 Ga. App. 340, 341 (2) (512 SE2d 55) (1999).

       Id. at 342. See also Randall v. State, 234 Ga. App. 704, 706 (2) (a) (507 SE2d 511) (1998).

        Anderson v. State, 206 Ga. App. 354, 356 (4) (426 SE2d 6) (1992).

        Ney v. State, 227 Ga. App. 496, 503 (4) (h) (489 SE2d 509) (1997); Anderson, supra.


text:
    A01A2324.
    SMITH et al. v. JACKSON ELECTRIC MEMBERSHIP CORPORATION et al.
    (560 SE2d 26)
   Phipps, Judge.

The parents of demon Hull filed a wrongful death action against Jackson Electric Membership Corporation (Jackson EMC), the Utilities Protection Center, Inc. (UPC), and others. They sought recovery based on a claim that their son would not have been electrocuted while working on a construction project but for negligence by Jackson EMC and UPC in processing requests for protection from overhead high-voltage power lines under the High-voltage Safety Act (HVSA). They appeal the trial court’s award of summary judgment to Jackson EMC and UPC.

UPC was formed by utilities as provided by the HVSA to receive advance notifications of work performed in the vicinity of high-voltage power lines and to distribute the notifications to utility members. Hull was employed on a construction project in the vicinity of high-voltage power lines owned and operated by Jackson EMC. The project’s general contractor notified UPC that it needed Jackson EMC to provide protection from the overhead power lines until completion of the project on a specified date. A delay was encountered in finishing the work, and Hull was not electrocuted until after the completion date provided by the general contractor to UPC. Because the general contractor had not renewed the request for protection from the power lines by giving what is referred to in the HVSA as a “new notice” to UPC, the trial court ruled that Jackson EMC and UPC are entitled to summary judgment on plaintiffs’ claim of negligence under the HVSA. On general tort principles, the court also concluded that recovery is barred because the power line was open and obvious. Because we conclude that the HVSA did not require the general contractor to give a new notice under the circumstances of this case and that the open and obvious rule does not bar plaintiffs’ recovery as a matter of law, we reverse.

One purpose of the HVSA is to prevent injury to persons or property from accidental or inadvertent contact with high-voltage electric lines. To that end, the HVSA provides that no work shall be done in the vicinity of such lines unless and until the owner or operator of the lines has been notified of the work and has taken safety measures prescribed in the Act. The HVSA is applicable only to high-voltage electric lines “installed above ground level.”

In OCGA §§ 46-3-33 and 46-3-34, the HVSA prohibits anyone from commencing work within ten feet of any such lines unless and until the person responsible for the work has given notice to UPC at least seventy-two hours before commencing the work. Under OCGA § 46-3-34 (b), the notice must designate, among other things, the date the work will commence and the date it will be completed. OCGA § 46-3-34 (c) then requires the UPC to distribute the notice to the owner or operator of the power line, who must then contact the person responsible for the work and arrange for required safety precautions. OCGA § 46-3-34 (d) provides, “If, after such arrangements are made, a delay in commencing the work is encountered, . . . the person responsible for the work shall be required to give a new notice” again designating the start and completion dates of the work. The owner or operator of high-voltage lines has no liability for damage or loss to person or property resulting from work within ten feet of the lines unless the statutorily required notice has been given.

Defense evidence showed that the great majority of requests for power line protection received by UPC relate to underground lines. UPC requires requests for underground protection to be renewed every two weeks. On the other hand, UPC has adopted a practice of keeping requests for overhead protection in effect until the person doing the work in the vicinity of the line has notified the owner or operator of the line that the project has ended.

Hull was employed by a subcontractor on a water pipeline construction project in Jackson County. On April 18, 1997, an employee of the general contractor notified UPC that work was going to be done in the vicinity of the pipeline. The contractor’s employee stated that the project was expected to last about two weeks and requested protection from both overhead and underground power lines until May 2. A delay, however, was encountered in beginning the work. On April 29, the contractor’s employee again notified UPC and requested underground protection for an additional two weeks. There was no discussion concerning the request for protection from overhead lines. On May 13, the general contractor’s employee again called UPC to renew the request for protection from underground lines. During the May 13 call, the employee, in response to questioning, specifically declined any further overhead protection for the project. The employee testified that she did not intend to cancel the request for overhead protection, but simply misunderstood the question. The request for underground protection was renewed once again on May 27.

On May 30, Hull and his co-employee Mitchell were operating a drill in the course of constructing the pipeline. Their work did not require them to come in close proximity to the overhead power lines, and, according to the defense, Hull and Mitchell attended a safety program several hours before the accident in which they were instructed not to go within 15 feet of the line. Nonetheless, while operating the drill, they accidentally came into contact with the line, and both were electrocuted.

Jackson EMC and UPC argue that they cannot be held liable because the general contractor withdrew its request for protection from overhead lines on May 13 and the notice in effect at the time of the May 30 accident contained no request for overhead protection. The Hulls counter that, notwithstanding any withdrawal of the request for overhead protection, Jackson EMC and UPC still may be held liable based on evidence showing that during the time in question, no calls for protection from overhead power lines were being forwarded by UPC to Jackson EMC due to a glitch in either Jackson EMC’s or UPC’s computer system. Additionally, the Hulls point out that if the system adopted by UPC had been functioning as UPC intended, the general contractor’s request for overhead protection would not have ended until notification of completion of the project was given to Jackson EMC, even though UPC had been told that the request was being withdrawn. For these reasons, the Hulls argue that, notwithstanding any failure by the general contractor to give the notice required by the HVSA, a proximate cause of their son’s death was Jackson EMC’s and/or UPC’s negligence in failing to properly handle the notifications that were given.

The question to be decided under the order appealed, however, is whether the general contractor’s failure to provide UPC with a “new notice” under OCGA § 46-3-34 (d) following the delay encountered in completing the project insulates Jackson EMC and UPC from liability under the HVSA. We hold that it does not. In our opinion, the general contractor complied with the notice requirements of the HVSA through the initial notice given on April 18 and was not required to give any further notice under subsection (d) of OCGA § 46-3-34, because it does not appear that Jackson EMC ever complied with subsection (c) by contacting the general contractor so that arrangements could be made for completion of the required safety precautions. Absent the utility’s compliance with subsection (c), the general contractor was not required to give a new notice to UPC under subsection (d). Whether the utility’s failure to comply with subsection (c) resulted from its negligence or from the negligence of UPC is a question for the jury. Therefore, the trial court erred in awarding summary judgment to Jackson EMC and UPC based on a lack of notice under the HVSA.

Decided January 11, 2002

Reconsiderations denied February 5, 2002

Butler & MacDougald, Daniel MacDougald III, for appellants.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, Christopher H. Smith, Ashley P. Nichols, for appellees.

The trial court also erred in awarding summary judgment to Jackson EMC and UPC under the open and obvious rule. Although there is certainly evidence that the power lines would have been open and obvious to Hull if he had been looking in their direction, the circumstances surrounding his electrocution are uncertain given the fact that there are no living eyewitnesses to the event. Circumstantial evidence indicates that the accident happened because Hull accidentally ventured off of his work course and backed the machine he was operating into the lines. Under these circumstances, it cannot be said that as a matter of law that the situation was so open and obvious that an average person exercising ordinary care would have observed it and avoided the danger. Moreover, even if Hull had seen the lines before the accident, he might have assumed they were deenergized.

Judgment reversed.

Smith, P. J, and Barnes, J., concur.

       OCGA § 46-3-30 et seq.

       OCGA § 46-3-32 (4).

       OCGA § 46-3-31.

       OCGA § 46-3-32 (1).

       OCGA § 46-3-39 (a); Santana v. Ga. Power Co., 269 Ga. 127-128 (1) (498 SE2d 521) (1998), and cits.

       See Zack’s Properties v. Gafford, 241 Ga. App. 43, 44 (1) (526 SE2d 80) (1999); compare Leonardson v. Ga. Power Co., 210 Ga. App. 574 (436 SE2d 690) (1993).


author: Smith, Presiding Judge.

text:
    A01A2543.
    LEWIS v. THE STATE.
    (560 SE2d 73)
   Smith, Presiding Judge.

Jumal Lewis was convicted of criminal damage to property in the second degree and two counts of simple assault. Following the denial of his motion for new trial, he appeals, contending that the evidence was insufficient to convict him of simple assault. We find no error, and we affirm.

Construed in favor of the jury’s verdict, evidence was presented that the two victims were standing and talking on the porch of a relative’s apartment when they saw Lewis approaching them. One victim testified that Lewis was “almost running towards us. And he came right up about five inches, six inches from our face” and asked the victims what they were laughing at and why they were laughing at him. Lewis asked, “ ‘Don’t you know I’ll kill you? Don’t you know who I am?’ ” According to this victim, Lewis “was working himself up into a frenzy” and was “cursing and telling us that he will kill us and he will cut our throats. . . . [W]hatever threat you can think of, that is what he was uttering.” Lewis “was extremely agitated” and was “being very, very threatening.” One of the victims “thought he was going to punch either myself or” the other victim. This victim “expected some physical interaction.” He testified that Lewis said several times that he would kill or cut them, “as if he had a knife.” Lewis also stated that he would “ ‘destroy’ ” them. The other victim similarly testified concerning Lewis’s demeanor and his threats. He stated that Lewis threatened to kill him. He also testified that Lewis told him, “ T can stab you, I can shoot you.’ And he was the undisputed champion, and if I wanted him to prove to me that he was the undisputed champion then he could do it right now.”

The other victim testified that he realized that Lewis did not have a weapon in his waistband while Lewis “was up in our faces basically making threats.” At that time, the victim walked to his car, approximately ten feet away, and took his firearm from the trunk. It was holstered, and he put it in his waistband, behind his back, and walked back and joined the other victim. He felt that he needed the gun because he was “fearful for my safety and for the safety of” the other victim. Although he knew Lewis did not have a gun in his waistband, he did not know whether he had “something else in his pockets or if he had something at his ankle.” He did not pull the gun on Lewis, but he wanted “to make sure I can protect myself if he does decide to do something.”

After this witness returned to the side of the other victim, both began to walk inside the apartment where they had been visiting family, and Lewis saw the firearm. Lewis said, “ ‘Okay, you’ve got a gun. You’ve got a gun. Okay. I’m going to go get something. I’ll be right back.’” He went inside another apartment, and the victims called the police. The victims stayed inside their family member’s apartment and watched as Lewis came back outside “more belligerent than he was even before” and was swearing and making threats, not directly toward the victims, but “to the neighborhood in general.” He kicked a car in the parking lot and “was just up and down like a mad man.” When the police arrived, Lewis struggled with them and was arrested. Neither victim had ever seen Lewis before this incident.

A person commits the offense of simple assault when he or she “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). This offense is complete if the assailant has made “such a demonstration of violence, coupled with an apparent ability to inflict injury so as to cause the person against whom it is directed reasonably to fear the injury unless he retreats to secure his safety. [Cit.]” Hise v. State, 127 Ga. App. 511 (194 SE2d 274) (1972). And as correctly pointed out by Lewis, because assault is an attempted battery, the State must show that a “substantial step” was made toward committing the battery in order to sustain a conviction for simple assault. Hamby v. State, 173 Ga. App. 750, 751 (2) (328 SE2d 224) (1985). Furthermore, the mere threat to commit a violent injury on a victim, without more, does not constitute an assault. Id.; see also Johnson v. State, 158 Ga. App. 432, 433 (280 SE2d 856) (1981).

Relying primarily on Johnson, supra, Lewis argues that his actions were mere verbal threats that did not constitute a simple assault and that he did not take a “substantial step” toward completing a battery. We do not agree. In Johnson, the defendant was a picketing employee outside an industrial plant. As the personnel manager drove his automobile slowly through the picketers, from approximately five feet away, the defendant raised his hand and either pointed or shook his finger at the manager and said, “ ‘We are going to get you.’ ” Id. at 432-433. He did or said nothing more, and the vehicle drove on to the plant. The State offered no evidence that the victim felt he was in danger at the moment, that he fled to avoid danger, or that the defendant was in a position to inflict injury at that time. Id. at 433. This court reversed the defendant’s conviction for simple assault, finding “a complete absence of evidence to establish that [defendant] had the present ability to inflict a violent injury,” that the manager feared any immediate injury, or that the defendant’s actions or words would cause a reasonable person to fear immediate injury. Id.

The facts of this case are distinguished from those in Johnson. Of course, the events occurring after Lewis saw the two victims retreat, stated to them that he had to “go get something,” and then returned belligerently to the parking lot after the victims had gone inside another apartment would not constitute simple assault. There was no showing, at that time, that the victims had a reasonable apprehension of immediate bodily injury. See id. at 433; Hudson v. State, 135 Ga. App. 739, 741 (1) (218 SE2d 905) (1975) (no simple assault when defendant told police he was going into another room to get gun and therefore no apprehension of immediate bodily injury). In other words, the apprehension of future injury is not sufficient to convict a defendant of simple assault. Id.; see also Johnson, supra at 433.

Decided February 5, 2002.

Laila A. Washington, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Steven C. Chen, Assistant District Attorneys, for appellee.

But before Lewis briefly left the scene and the two victims went inside the apartment, Lewis threatened to harm and kill the victims from very close range. Although he did not appear to have a weapon such as a gun or knife in his hands or pants pockets, one of the victims could not determine whether any other weapon was concealed on Lewis’s person, and this victim believed Lewis might strike him or the other victim. And Lewis had the present ability to do so, given his close proximity to the victims. The witness who retrieved his firearm did so because he feared for the safety of himself and the other victim. Given Lewis’s demeanor and actions when he made several threats directly toward the victims while standing only inches away from them, we conclude that a rational trier of fact could have found that a substantial step had been taken toward harming the victims, that these victims had a reasonable apprehension of receiving immediate physical injury, and that a reasonable person would have felt the need to retreat in order to avoid receiving such injury. We therefore affirm the judgment of the trial court.

Judgment affirmed.

Barnes and Phipps, JJ, concur.