text:
    A97A1924.
    POLLARD v. THE STATE.
    (495 SE2d 629)
   Judge Harold R. Banke.

Charles S. Pollard was tried for kidnapping with bodily injuries, aggravated assault, aggravated battery, rape, and burglary. The jury acquitted him on all charges except aggravated battery. Enumerating eight errors, Pollard appeals.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Pollard no longer enjoys the presumption of innocence. Dolphus v. State, 218 Ga. App. 565, 566 (462 SE2d 453) (1995). The evidence, when viewed in that manner, shows that this case arose from a domestic dispute between Pollard and the victim. According to the victim, Pollard, her former boyfriend, was obsessive, possessive, jealous, and controlling. She described past incidents of abuse where Pollard violently inflicted head and back injuries as he pushed, shoved and slapped her. After their relationship deteriorated, Pollard appeared without warning at her home. When the victim refused to leave with him, he grabbed her, struck her across the face five times and dragged her outside. During the ensuing struggle, Pollard inflicted repeated blows to her face. After forcing her into her vehicle, Pollard threatened to kill both her and her young daughter with a large steak knife. At some point, according to the victim, Pollard raped her at knifepoint in a wooded area near a reservoir.

Photographs of the victim’s facial injuries taken at the hospital emergency room were introduced in evidence. The victim’s treating physician described her injuries as a nasal fracture with an “extremely deviated” septum. He testified that a great deal of force was required to have inflicted such a traumatic blow. He also described the bruising that appeared under each of her eyelids.

Pollard admitted striking the victim once in the nose and admitted observing a bruise appear on the bridge of her nose shortly after-wards. Pollard described the blow as an “instinct shot” and asserted that he did not intend to break her nose. According to Pollard, the sexual intercourse was consensual. He claimed that on several prior occasions, they had reconciled after fighting by becoming sexually intimate. Held:

1. Pollard’s contention that the verdict was against the weight of the evidence is without merit. The pertinent essential elements of the offense of aggravated battery are: (1) maliciously causing bodily harm to another, (2) by seriously disfiguring another’s body. OCGA § 16-5-24 (a). The State’s evidence showed that Pollard struck the victim in the face with such force that the blow fractured her nose. The victim’s testimony that Pollard broke her nose was corroborated by the testimony of the treating physician and contemporaneous photographs of her facial injuries. In light of this evidence a rational trier of fact could have found Pollard guilty of aggravated battery within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We reject Pollard’s assertion that the jury’s verdict was internally inconsistent when viewed in context with the jury’s acquittals on the other charges. In light of the abolition of the inconsistent verdict rule in criminal cases in Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986), the sole question is whether the evidence was sufficient within the meaning of Jackson v. Virginia, supra. White v. State, 268 Ga. 28, 29 (1) (486 SE2d 338) (1997). The evidence, as summarized in Division 1, was sufficient to meet that standard.

3. We reject Pollard’s claim that the court’s charge on justification was vague and confusing. Pollard contends that the instruction was defective because, although it was a correct statement of law, it was juxtaposed between a charge on circumstantial evidence and one on rape. A jury charge must be considered as a whole and the parts read in conjunction with each other. Leigner v. State, 213 Ga. App. 871, 872 (3) (446 SE2d 770) (1994). When viewed in its entirety, it is apparent that the trial court properly instructed the jury. See id.

4. In four enumerations of error, Pollard contends for the first time that he was denied effective assistance of trial counsel. Where, as here, the record is sufficient, remand is unnecessary and we may decide the ineffectiveness issue. McClain v. State, 226 Ga. App. 714, 719 (5) (487 SE2d 471) (1997). See Elrod v. State, 222 Ga. App. 704, 705 (475 SE2d 710) (1996).

In order to establish ineffectiveness under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), Pollard must show not only that his trial counsel’s performance was deficient but also that the deficient performance prejudiced his defense. Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995). Absent a showing of prejudice, no inquiry need be made into counsel’s alleged deficiency. Trammel v. State, 265 Ga. 156 (1) (454 SE2d 501) (1995).

Pollard alleges four purported failures by counsel: (1) to move for a directed verdict on the aggravated battery count, (2) to explore the possibility or likelihood that the victim sustained her broken nose after Pollard left, (3) to obtain timely photographs of Pollard to show that the victim inflicted injuries on him, and (4) to search for and find two possible witnesses who came upon the victim and Pollard near the reservoir. Having determined that the evidence was sufficient to sustain Pollard’s conviction within the meaning of Jackson v. Virginia, 443 U. S. at 319, it necessarily follows that a motion for directed verdict would have been unavailing. Hogan v. State, 210 Ga. App. 122, 123 (1) (435 SE2d 494) (1993). As to the possibility that someone else broke the victim’s nose, both the victim and Pollard testified that it was Pollard who hit her. Pollard even admitted seeing a bruise on her nose almost immediately. As to possible photographs of injuries the victim purportedly inflicted on Pollard, the record does not show that trial counsel had been appointed at a time when she could have obtained such photographs. Finally, it is undisputed that these two purported witnesses were not present when Pollard struck the victim. Under the circumstances, it is apparent that Pollard cannot establish the requisite deficiency or prejudice. Stephens, 265 Ga. at 121 (2).

5. Pollard contends that the sentence imposed was unduly harsh and reflected the trial court’s belief that he was guilty of the other crimes for which he had been acquitted. A determinate sentence which falls within statutorily mandated parameters is not subject to attack on Eighth Amendment grounds. Stuart v. State, 117 Ga. App. 183, 184 (3) (160 SE2d 409) (1968). The trial court sentenced Pollard to serve 15 years, within the permissible statutory time period. Moreover, any sentence which is challenged as excessive and yet falls within the legal limits should be addressed to the sentence review panel as provided by OCGA § 17-10-6. Hill v. State, 212 Ga. App. 386, 390 (7) (441 SE2d 863) (1994).

Decided January 14, 1998.

Walker L. Chandler, for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       In an amended motion for new trial, Pollard raised the ineffectiveness issue. However, the record does not indicate that the trial court ever ruled on that issue.

       In Ms appellate brief, counsel observes, “Let it first be noted that trial counsel... was not ineffective in her presentation of the overall case. Quite the contrary, she so effectively presented her client’s case that he was acqmtted of all the apparently ‘major’crimes with wMch he was charged.”

       In sentencing Pollard, the trial court observed, “I say to you, Mr. Pollard, that you ought to consider yourself a very lucky individual in that this jury did in fact find you not guilty on all of the counts with the exception of one.”


source: Caselaw Access Project

author: McMURRAY, Presiding Judge.

license: Public Domain

text:
    A97A2002.
    JOHNSON et al. v. KVASNY et al.
    (495 SE2d 651)
   McMURRAY, Presiding Judge.

This is a dog bite case. Seven-year-old plaintiff Brandon Johnson was a guest in the home of defendants Jeffrey and Lynette Kvasny. The Kvasnys owned a Rottweiler dog, Damion, which the child was seen approaching on his hands and feet shortly before being bitten. The child and his guardian, Roland Johnson, filed this action under OCGA § 51-2-7 alleging negligence and that defendants should have known of the animal’s violent propensities. “In order to support an action for damages under OCGA § 51-2-7, it is necessary to show that the dog was vicious or dangerous and that the owner had knowledge of this fact. McCree v. Burks, 129 Ga. App. 678, 679 (200 SE2d 491) (1973).” Rowlette v. Paul, 219 Ga. App. 597, 599 (466 SE2d 37).

The defendants moved for summary judgment relying upon Georgia’s long-time adherence to the so-called “first bite” rule which requires that in order for the owners of a dog to be liable to a dog bitten victim, there must be proof of scienter, that is, that the owners knew or should have known of the dog’s propensity to do harm of the type it inflicts upon the complaining party. Rowlette v. Paul, 219 Ga. App. 597, 599, supra; Smith v. Culver, 172 Ga. App. 183 (322 SE2d 294); Banks v. Adair, 148 Ga. App. 254 (251 SE2d 88); Carter v. Ide, 125 Ga. App. 557, 558 (2) (188 SE2d 275). The defendants contend that they had no knowledge of any vicious propensities of the Rottweiler.

Plaintiffs attempted to prove scienter via the affidavit of Kimberly Johnson, mother of plaintiff Brandon Johnson and wife of plaintiff Roland Johnson. The affidavit provides evidence that while Kimberly Johnson was at the Kvasny home to pick up her injured son, Mrs. Kvasny had stated to her “that she had told her husband to get rid of the dog because she knew that something like this would happen” and that “the dog had previously growled at [defendants’ son] Durrell and had then bitten Durrell on the leg.” Mrs. Kvasny denied having told Mrs. Johnson that the dog had bitten her son.

The superior court granted defendants’ motion for summary judgment. Plaintiffs appeal. Held:

We reverse. First, we note that Kimberly Johnson’s affidavit presented admissible evidence with regard to the statements of defendant Lynette Kvasny, who denies having made the statements related in the affidavit. An inconsistent prior statement by an opposing party is admissible as an exception to the hearsay rule. Colbert v. Doe, 164 Ga. App. 618 (1) (298 SE2d 592). See also OCGA § 24-3-31; Roper v. Durham, 256 Ga. 845 (353 SE2d 476); Mayo v. Owen, 208 Ga. 483, 486 (1) (67 SE2d 709); Gusky v. Candler Gen. Hosp., 202 Ga. App. 837, 838 (3) (415 SE2d 541).

The affidavit clearly presents evidence that the defendants had knowledge of a previous bite. “ Tt is not enough, however, that the possessor of the animal has reason to know that it has a propensity to do harm in one or more specific ways; it is necessary that he have reason to know of its propensity to do harm of the type which it inflicts.’ (Citation and punctuation omitted.) Carter v. Ide, 125 Ga. App. 557, 558, [supra].Rowlette v. Paul, 219 Ga. App. 597, 599, supra. In other words, an essential element of a dog bite claim is that defendants knew of the dog’s propensity to inflict harm in the particular manner in which plaintiff was injured. The final issue is whether, on motion for summary judgment, this element of plaintiffs’ claim was supported by any evidence.

An absence of evidence to support any element of plaintiffs’ case would require, under the holding in Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474), application of the principle that a defendant who will not bear the burden of proof at trial need not affirmatively disprove the claim against him, but may discharge his burden as moving party on motion for summary judgment by reference to an absence of evidence in the record to support the nonmoving party’s case. In the case sub judice, evidence that Mrs. Kvasny “knew that something like this would happen” provides some proof that defendants knew of the Rottweiler’s propensity to inflict harm in the particular manner in which plaintiff Brandon Johnson was injured. There is no absence of proof as to any element of plaintiffs’ claim. The resolution of the credibility issue presented by the conflict in the evidence is properly reserved for a jury. The superior court erred in granting defendants’ motion for summary judgment.

Judgment reversed.

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

Decided January 14, 1998.

Regina L. Myers, for appellants.

Allen & Associates, David W. Wallace, for appellees.


author: Pope, Presiding Judge.

text:
    A97A2096.
    DECKERT et al. v. FOSTER et al.
    (495 SE2d 656)
   Pope, Presiding Judge.

In this case, the trial court granted summary judgment against homebuyers who claim that the seller’s real estate agents passively concealed defects in the property.

Debbie and Robert Deckert purchased a home that contractor Steve Foster built on a steep slope. To control drainage and erosion, Foster terraced the slope, built retaining walls, and contoured the lot to direct drainage away from the home. Keg Realtors, Inc. and its employees, Diane Childress and Dirinda Maxwell, acted as Foster’s agents for the sale. Within a month or two after the sale, some of the drainage systems failed, causing excessive rainwater runoff and erosion problems. The Deckerts sued Foster and the real estate agents, Childress and Maxwell. They charged that even though Maxwell and Childress knew Foster had experienced severe erosion problems on the lot during construction, the agents did not tell the Deckerts about those problems. We affirm the trial court’s grant of summary judgment on the claims against the agents. First, the natural slope of the lot placed the Deckerts on notice that the property was naturally subject to runoff and erosion. Second, erosion occurring during construction did not put the agents on notice that the steps Foster took to control drainage would not work.

The only issue the Deckerts raise on appeal is their claim of passive concealment, which is a type of fraud and an exception to the rule of “caveat emptor.” Wilhite v. Mays, 140 Ga. App. 816, 817-818 (3) (232 SE2d 141) (1976), aff’d, 239 Ga. 31 (235 SE2d 532) (1977). “That exception places upon the seller [or agent] a duty to disclose in situations where he or she has special knowledge not apparent to the buyer and is aware that the buyer is acting under a misapprehension as to facts which would be important to the buyer and would probably affect its decision. [Cits.]” Wilhite, 140 Ga. App. at 818. “In cases of passive concealment by the seller or agent of defective realty, the buyer must prove that the vendor’s concealment of the defect was an act of fraud and deceit, including evidence that the defect could not have been discovered by the buyer in the exercise of due diligence and that the seller or agent was aware of the problems and did not disclose them.” (Citation and punctuation omitted.) Ben Farmer Realty Co. v. Woodard, 212 Ga. App. 74, 76 (441 SE2d 421) (1994). Although the Deckerts also cite to OCGA § 10-6A-5 (b), that statute places on the agents no duties in addition to those imposed by case law. '

The Deckerts alleged, and the trial court agreed, that Maxwell and Childress knew the lot experienced erosion problems before and during the period Foster was building the house. On several occasions, dirt had washed down from the lot and onto the adjoining roadway. In July 1994, during a severe period of flooding, rainwater washed out terraces that Foster had begun to build. But those problems, the record shows, occurred before the systems designed to control erosion were fully completed.

First, the agents were not required to tell the Deckerts that their lot was prone to runoff and erosion if proper drainage control systems were not installed. From the steep grade of the slope, any prospective buyer should have known that runoff would occur unless proper drainage control systems were installed. See Smith v. Stanley, 223 Ga. App. 334, 335 (477 SE2d 618) (1996) (grade of terrain put purchaser on notice of drainage patterns); Miller v. Clabby, 178 Ga. App. 821, 822 (344 SE2d 751) (1986) (fact that pasture was “low-lying” area bounded by swamp and creek was factor placing purchasers on notice of its tendency to flood in wet weather). Therefore, the fact that erosion had occurred on the steep slope during construction was not a material defect the agents had to disclose.

Second, erosion problems which occurred prior to completion of the drainage control systems were insufficient to make the agents aware that, the property would continue to experience erosion after Foster fully terraced, contoured, and sodded the property. As Foster testified, these controls were necessary to prevent the naturally occurring drainage which would otherwise erode the slope. Foster testified he experienced no problems with drainage control between the time he completed the bulk of the erosion control work and the time the parties closed the purchase. The Deckerts admit in their appellate brief that “the landscape structures appeared to be properly built and functioning at the time of the sale.” Because the prior erosion did not put Maxwell or Childress on notice of a defect in Foster’s drainage systems, the trial court properly found they did not knowingly conceal any such defects from the Deckerts. As no evidence shows the agents knew the erosion control systems were defective or would not work, the trial court properly granted summary judgment on this passive concealment claim. See Ben Farmer Realty, 212 Ga. App. at 77. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

Decided January 14, 1998

Bush, Crowley, Leverett & Leggett, J. Wayne Crowley, for appellants.

O’Neal, Long & Hall, Michael J. Long, Lisa R. Coody, for appellees.


author: Ruffin, Judge.

text:
    A97A2126.
    JENKINS v. THE STATE.
    (495 SE2d 647)
   Ruffin, Judge.

A jury found Willie Lee Jenkins, Jr. guilty of five counts of armed robbery and one count of criminal attempt to commit armed robbery. Jenkins appeals, arguing that the trial court erred in denying his motions to suppress his custodial statement and evidence seized during a search of his car. Jenkins also asserts that the evidence was insufficient to convict him of two of the armed robbery counts. For the following reasons, we affirm.

Viewed in a light most favorable to support the verdict, the evidence shows that around midnight on November 14, 1994, Wayne Spence was working as a cashier at the Econo Flash Fina store on Covington Highway in DeKalb County when he was robbed by a man brandishing a knife. Spence stated that the man forced him to the floor and then took money from the cash register. Spence identified Jenkins as the robber in a photographic lineup and at trial.

Another robbery took place at approximately 11:00 p.m. on November 23, 1994, when a man entered the Captain D’s restaurant on Wesley Chapel Road in DeKalb County, came around the counter, poked a razor blade into the back of cashier Ethel Carter and demanded that she open the register. The perpetrator took money from the register and left. Carter and another cashier stated that they clearly saw the robber’s face. Carter identified Jenkins as the robber in a photographic lineup after the crime. At trial, Carter, pointing to Jenkins, stated “[t]hat might be him, but I’m not sure.” She noted that Jenkins’ facial hair was different at trial than during the robbery and that he was wearing glasses at trial. The other cashier identified Jenkins at trial, noting that while she was not absolutely sure given the changes in Jenkins’ appearance, he looked like the person that committed the crime. Both were certain, however, of their identification at the lineups.

At approximately 4:30 p.m. on November 26, 1994, a third robbery occurred while Pamela Miller was working at Pinckard & Morgan Cleaners on Church Street in Decatur, Georgia. A man entered the business, came around the counter and demanded that she give him money. According to Miller, she noticed something shiny in his hand and he threatened to cut her. When she opened the register, he took money and ran. She chased after him and a passerby saw the man get into a silver or gray Pontiac Fiero and drive off. The passerby took down the Fiero’s tag number. Miller said that she got a good look at the robber and was very sure of her identification of Jenkins in a photographic lineup. Miller also identified Jenkins as the robber at trial, stating that he looked like the man who robbed her.

Three days later, on November 29,1994, a man robbed the Krystal restaurant on Candler Road in DeKalb County at approximately 5:30 p.m. Gloria Thomas, the Krystal shift manager, testified that she was behind the counter when a man entered the restaurant, hopped over the counter, poked her in the side with a knife-like object and ordered her to open the cash register. The man grabbed money from the register and left. Thomas identified Jenkins as the robber in a photographic lineup and at trial. Another Krystal employee who was working at the time also identified Jenkins in a photo lineup and at trial. The second employee stated that she saw Jenkins leave the restaurant in a white Pontiac Fiero.

At approximately 9:44 p.m. that same evening, Anita Grier was working at Big Lots department store on Snapfinger Woods Drive in DeKalb County as a cashier when a man approached her check-out aisle, grabbed her arm and told her that he would cut her if she did not open the register. Grier noted that the man had a boxcutter in his hand. When Grier would not open the register and the robber could not get the register open after hitting it with his fist, he ran out of the store. She identified Jenkins at trial and in a photographic lineup the day after the attempted robbery.

Approximately 15 minutes after Grier’s encounter with Jenkins, June Truitt was robbed while working at a Long John Silver’s restaurant on Wesley Chapel Road, also in DeKalb County. Truitt testified that a man entered the restaurant, jumped over the counter, brandished a razor blade and said that he would cut her if she did not open the register. After taking money from the register, he ran out the door. The robber was seen leaving in a gray Fiero. Truitt identified Jenkins as the robber both in a photographic lineup and at trial.

At approximately 12:20 a.m. on November 30, 1994, a couple of hours after the robbery at Long John Silver’s, an off-duty police officer spotted Jenkins driving a car matching the description of the vehicle involved in the earlier armed robberies. However, it did not have a license plate. The officer radioed in the sighting and DeKalb County Police Officer . Perry Hilton responded. When Hilton arrived, Jenkins had parked the car in front of a Kroger grocery store. Hilton approached Jenkins, advised Jenkins that his vehicle matched the description of a car used in several robberies, and asked Jenkins for his consent to search the car for evidence, including the weapon used in the robberies. Jenkins consented, and a subsequent search yielded a razor blade. Jenkins was then placed under arrest and charged with armed robbery. According to Officer Hilton, Jenkins was coherent, appeared to understand what Hilton was saying, and did not appear to be under the influence of drugs or alcohol.

After the arrest, Detective D. A. Lillard of the DeKalb County Police Department spoke with Jenkins and obtained a statement. According to Lillard, Jenkins said he had been smoking crack during the evening of November 29, 1994, and that while he does not remember the crimes, he probably did all the things with which the police were charging him. Lillard testified that Jenkins did not appear under the influence of alcohol or drugs when he gave the statement. Furthermore, Lillard found Jenkins to be coherent and that he appeared to understand everything Lillard was saying. Nothing regarding Jenkins’ demeanor or actions prompted Lillard to question Jenkins’ mental state.

Jenkins moved to suppress his custodial statement and evidence seized during the search of the Fiero. At the suppression hearing, Jenkins asserted that he could not have consented to the search nor could he have given a voluntary statement to police because he was experiencing visual and auditory hallucinations of his dead relatives prompting him to consent to the search and to give a statement. A caseworker employed by DeKalb County Clifton Springs Mental Health Center testified that she had worked with Jenkins and that he suffered from a seizure disorder along with a psychotic disorder that caused him to experience hallucinations. The trial court denied the motions to suppress, finding that Jenkins was capable of understanding and waiving his rights at the time of the search and the statement.

At trial, Jenkins denied committing any of the crimes. Instead of pursuing an insanity defense, Jenkins argued that his brother committed the crimes. Jenkins testified that at the time of the robberies his brother, who looked like Jenkins, was in Atlanta and had access to Jenkins’ Fiero. Jenkins and his wife testified that Jenkins’ brother was depicted in surveillance videos of the Big Lots attempted robbery and the Long John Silver’s robbery. However, Jenkins presented no evidence regarding his whereabouts at the time of the first three robberies.

1. Jenkins asserts that the trial court erred in denying his motions to suppress. “In reviewing a trial court’s decision on a motion to suppress, its findings will not be disturbed if there is any evidence to support them; all relevant evidence of record, including evidence introduced at trial, as well as evidence introduced at the motion to suppress hearing, may be considered. [Cits.]” Hill v. State, 224 Ga. App. 208 (480 SE2d 256) (1997). Furthermore, we “must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous.” (Punctuation omitted.) Pless v. State, 218 Ga. App. 603 (1) (462 SE2d 472) (1995).

Despite Jenkins’ testimony that his deceased grandmother advised him to consent to the search of the car he further testified that he understood that Officer Hilton wanted to search the car and that the hallucination of his grandmother was not forcing him to consent, but was merely suggesting that he consent. Additionally, though Jenkins claimed his deceased relatives advised him to make the custodial statement, he testified that he wanted to tell the police the truth and in fact did tell them the truth.

Detective Lillard and Officer Hilton testified that Jenkins did not appear to be hallucinating, but was coherent and understood the questions asked of him. Additionally, a forensic psychiatrist who examined Jenkins pursuant to a court order testified that Jenkins was probably competent when he was arrested and provided the statement. He added that Jenkins was not suffering from a delusional compulsion at the time of the crimes, but rather was responsible for and aware of the consequences of his actions. Finally, while Jenkins’ caseworker testified about the disorders under which he suffered, she further said that she never recommended that Jenkins be committed to a mental institution.

“Even an insane person is responsible for his conduct during lucid intervals. [Cit.]” Starr v. State, 134 Ga. App. 149, 150 (2) (213 SE2d 531) (1975). Jenkins has not shown that he was insane or that he was not lucid when he consented to the search and provided his statement. Accordingly, in light of this evidence, the trial court did not clearly err in denying Jenkins’ motions to suppress based on his claim that he was mentally incapable of consenting to a search of his car or knowingly and voluntarily providing a statement to police. Pless, supra; Hill, supra.

2. We next turn to Jenkins’ assertion that the evidence was insufficient to convict him of two of the robberies. “ ‘On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ [Cit.] ‘The determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. (Cit.)’ [Cit.] ‘This court determines the sufficiency of the evidence, and does not weigh the evidence or determine witness credibility.’ [Cits.]” (Punctuation and emphasis omitted.) Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994).

We conclude the evidence was sufficient to convict Jenkins of the Captain D’s robbery. Two Captain D’s employees identified him in a photographic lineup and at trial. While the employees were less sure of their in-court identification than of their pretrial identification due to the change in Jenkins’ physical appearance, this went to the credibility of the witnesses, which was within the exclusive province of the jury. See Gray, supra. In light of all the evidence, including the similarity of the crime with the other robberies, the witnesses’ identification of Jenkins in photographic lineups, Jenkins’ voluntary statement, we find that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Gray, supra; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See also Hight v. State, 221 Ga. App. 574 (1) (472 SE2d 113) (1996) (victim’s testimony that defendants’ characteristics matched characteristics of burglar fleeing his house, combined with other circumstantial evidence, supported conviction).

Decided January 14, 1998.

Devon A. Orland, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert M. Coker, Benjamin M. First, Assistant District Attorneys, for appellee.

We also conclude that the evidence was sufficient to support Jenkins’ conviction for the Pinckard & Morgan Cleaners robbery. While Miller was not as certain of her in-court identification as she was of her pretrial identification, this went to the jury’s assessment of the witness’ credibility and the weight the jurors placed on her testimony. Gray, supra. Moreover, the in-court identification was not the sole means to prove Jenkins’ guilt. Price v. State, 204 Ga. App. 288 (419 SE2d 126) (1992). The evidence of Miller’s identification of Jenkins in the pretrial lineup, Jenkins’ departure from the scene of the crime in his Pontiac Fiero which was involved in some of the other crimes and the similarity between the manner in which he committed the crime compared to the other robberies supported the conviction. In light of all the evidence, weighed in favor of the jury’s verdict, we conclude that a rational trier of fact could have found Jenkins guilty beyond a reasonable doubt of the crime. Gray, supra; Jackson, supra.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.


text:
    A97A2220.
    VICKERS v. BROXTON STATE BANK.
    (495 SE2d 645)
   Pope, Presiding Judge.

Victor Vickers and his partner had a business checking account with Broxton State Bank. The bank agreed to honor checks drawn on that account only when they bore the signatures of both Vickers and his partner. Between July 1990 and March 1992, however, the bank honored several thousand dollars in checks signed only by Vickers’ partner. When Vickers brought this suit to recover the money improperly disbursed, the trial court granted partial summary judgment to the bank. Applying the limitation period found in OCGA § 11-4-406, the court ruled that because the bank mailed regular checking account statements to the address Vickers specified, Vickers could not recover for checks the bank improperly paid more than 60 days before March 11, 1992 — the date Vickers notified the bank of the improprieties. In this appeal, Vickers contends only that a jury should decide whether the bank acted with the “good faith” required by the statute. We disagree and affirm the judgment.

Pursuant to OCGA § 11-4-406 (1) and (4), “if a bank sends its ‘customer’ an account statement ‘accompanied by items paid in good faith in support of the debit entries’ or ‘otherwise in a reasonable manner made the statement and items available to the customer,’ and the customer ‘does not within 60 days from the time the statement and items are made available . . . discover and report his (or her) unauthorized signature or any alteration on the face of the item,’ the customer ‘is precluded from asserting against the bank such unauthorized signature or alteration.’ ” (Emphasis supplied.) Travelers Indem. Co. v. Trust Co. Bank, 228 Ga. App. 893, 895 (2) (495 SE2d 296) (1997). In Travelers, we held this statute applicable to the facts at issue, where a bank has improperly paid a check bearing only one of two required signatures.

“When OCGA § 11-4-406 is followed properly, the bank cannot be held liable for [an item paid without both required signatures] shown on a statement it sent more than 60 days before the customer reports the forgery. As [Vickers] correctly notes, however, to avail itself of this cut-off, the bank must first give the customer a statement showing items paid ‘in good faith.’ [Vickers] contends the bank did not pay the [improperly signed] checks in good faith. ‘Good faith’ is defined as ‘honesty in fact in the conduct or transaction concerned.’ OCGA § 11-1-201 (19). Contrary to [Vickers’] contention, issues of good faith do not always present jury questions. The facts of a case determine when it is possible to declare as a matter of law whether good faith can be established. [Cit.]” Eason Publications v. NationsBank of Ga., 217 Ga. App. 726, 728 (1) (458 SE2d 899) (1995).

Decided January 14, 1998.

Starling & Starling, Donald A. Starling, Kenneth E. Futch, Jr., for appellant.

Walters, Davis, Smith, Meeks & Pujadas, J. Harvey Davis, for appellee.

Here, as in Eason, Vickers has presented no evidence showing the bank paid the checks “without ‘honesty in fact.’ ” 217 Ga. App. at 728 (1). Once Vickers notified the bank of its errors, the bank took steps to ensure that all future checks bore two signatures. Although Vickers points to evidence showing he was a new customer of the bank, and the bank had a long-term relationship with his partner, this relationship gives rise to no inference that the bank treated him dishonestly. See id. (person who forged checks had multiple business dealings with bank). Vickers also shows that the bank closed the account without his permission after learning of its errors, and he claims that the bank president cursed him and told him he had suffered no loss because his partner had contributed all funds in the account. But any bad faith the bank exhibited after Vickers notified it of the errors is immaterial because “[t]he transactions regarding which lack of good faith must be shown are paying the checks and debiting [the] account.” Id. Under these circumstances, the trial court properly found no jury question existed regarding the “good faith” requirement of OCGA § 11-4-406. Its grant of partial summary judgment was therefore proper.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       Although the record does not clearly show the basis for the March 11, 1992 notification date, Vickers does not challenge that date in this appeal.

       In 1996, these subsections were redesignated as OCGA § 11-4-406 (a) and (d).

       Although the bank cited Eason in both its trial court and appellate briefs, Vickers makes no reference to the case and no effort to distinguish it.


text:
    A97A2301.
    MAYES v. STATE OF GEORGIA.
    (495 SE2d 640)
   Pope, Presiding Judge.

Eddie Mayes appeals the judgment in this civil forfeiture action under Georgia’s gambling forfeiture statute, OCGA § 16-12-32. Based on the following facts, we vacate the judgment and remand the case with direction.

On January 9, 1997, Investigator W. L. Jones of the Atlanta Police Department received information that illegal gambling was taking place at Mayes’ business, the Rib Shack. Accordingly, that day Jones went to the Rib Shack and saw several people he knew as gamblers enter and leave the building. Jones saw neither food sales nor food preparation, but he did observe illegal gambling activity. Jones saw people give slips of paper or quote numbers to someone who, in exchange, took cash. Then Willie Stroud, who was standing at the back of the establishment behind a partition in which there was an opening, would take the lottery slips and cash, band them, and place them aside. After Stroud collected a certain amount of money and betting slips, he would pass the bundle through a hole in the wall. Stroud repeated the process several times.

After observing this activity, Jones got a search warrant from a magistrate. The next day, on January 10, Jones entered the Rib Shack to execute the warrant and saw the same betting activity that he had seen the previous day. Jones also saw a fax machine which was receiving betting instructions and saw Stroud removing lottery numbers from it and putting them with money into the hole in the wall. The officers seized the fax machine, various firearms and money which was in Stroud’s immediate vicinity. The officers then found more money in the back room behind the wall. Some currency was in a desk drawer, and $15,961, which was wrapped in bundles with illegal betting slips, was found in a paper bag under another desk. Mayes and several other people were arrested and a total of $22,750 was seized.

Mayes appeared in municipal court on January 28, 1997, and pled nolo contendere to disorderly conduct and conducting a numbers game. The court ordered the release of Mayes’ $15,961.

, On February 14, 1997, the State filed a Complaint for Forfeiture, alleging that the property which had previously been seized — more than $17,000, a fax machine, and three firearms — was contraband and subject to forfeiture under OCGA § 16-12-32. On April 14, 1997, Mayes filed an answer to the complaint. Willie Stroud filed an answer to the complaint on May 21, 1997.

A bench trial was held on May 6, 1997, at which the evidence above was presented. Mayes testified that he took $16,000 to work on his arrest date to pay off legitimate lottery customers.

On May 21, 1997, the court entered an order of forfeiture, finding that the State had proved by a preponderance of evidence that an illegal gambling operation was being conducted at Mayes’ business; that the defendant currency was intended to pay off illegal bets or was the proceeds of illegal betting; and that all of the defendant property was contraband as defined by OCGA § 16-12-32 (b).

1. In his first enumeration of error, Mayes claims that the trial court erred in denying his motion to suppress because the warrant was not supported by probable cause. Mayes argues that because the magistrate did not know the status of the tipster he could not assess the informant’s reliability, and that the information provided to the magistrate did not indicate that illegal activity was occurring at the restaurant.

Mayes’ arguments are without merit. “[Findings of fact and of credibility in a motion to suppress hearing are for the trial court and should not be set aside unless clearly erroneous.” (Citation omitted.) Carter v. State, 192 Ga. App. 726, 727 (3) (386 SE2d 389) (1989). “The question presented is whether, taking a common sense approach, the information presented to the issuing magistrate showed a reasonable probability that contraband would be found in the place to be searched.” Perkins v. State, 220 Ga. App. 524 (1) (469 SE2d 796) (1996).

Here, the issuance of the warrant did not depend on the informant’s reliability, and the facts presented to the magistrate sufficiently demonstrated probable cause. To the extent that Mayes’ arguments exceed the scope of his enumeration of error, we will not consider them. See generally MacDonald v. MacDonald, 156 Ga. App. 565, 566 (1) (a) (275 SE2d 142) (1980).

2. In his next three enumerations Mayes claims that the court erred in ordering the forfeiture of the $17,829; in ruling that the State had shown by a preponderance of the evidence that the property seized was subject to forfeiture; and in failing to apply the proportionality test of Thorp v. State of Ga., 264 Ga. 712 (450 SE2d 416) (1994).

OCGA § 16-12-32 (b) states that “[a]ll property used in, intended for use in, used to facilitate, or derived from or realized through a violation of this article or which is located within any gambling place ... is declared to be contraband and may be seized and forfeited. . . .” Here, the evidence was sufficient to enable the trial court to find that the property seized was contraband and that the State met its burden of proof by a preponderance of the evidence. See generally Griffin v. State of Ga., 211 Ga. App. 750 (2) (440 SE2d 483) (1994). The court properly ordered the forfeiture.

Next, we turn to Mayes’ arguments regarding Thorp “In Thorp v. State of Ga., 264 Ga. 712[, supra], the Supreme Court adopted a three-factor analysis as a minimum guideline for determining whether an in rem forfeiture is constitutionally excessive. Accordingly, in determining whether forfeiture of the property was constitutionally permissible, the trial court was required to apply the following factors in light of all the facts of the case: (1) whether the harshness of the penalty imposed by forfeiture of the property is proportional to the gravity of the offense giving rise to the forfeiture; (2) whether the property had a close enough relationship with the offense to render it ‘guilty’; and (3) whether the criminal activity involving use of the property was extensive in terms of the period of time the property was used and/or the spatial use of the property. Id. at 717-718.” Shook v. State of Ga., 221 Ga. App. 151, 152 (470 SE2d 535) (1996).

Although Thorp involved a drug forfeiture under OCGA § 16-13-49, the case set forth appropriate guidelines to consider in the context of this civil in rem forfeiture action under OCGA § 16-12-32. See generally Hall v. State of Ga., 226 Ga. App. 486 (486 SE2d 710) (1997). As in the context of forfeiture actions in drug cases, an evaluation of the three general factors set forth above well serves the scrutiny demanded by the Excessive Fines Clause, and these are the minimal guidelines for excessiveness inquiries. Thorp v. State of Ga., 264 Ga. at 718.

“Proper application of these factors requires the trial court to make certain mixed findings of law and fact. Normally a trial court’s findings of fact as to these matters must be accepted by an appellate court unless clearly erroneous.” Thorp v. State of Ga., 217 Ga. App. 275, 276 (2) (457 SE2d 234) (1995). Because this is a case of first impression, the trial court did not explicitly refer to the three-factor proportionality analysis of Thorp. In Thorp v. State of Ga., 217 Ga. App. 275; Evans v. State of Ga., 217 Ga. App. 646 (458 SE2d 859) (1995); and Rabern v. State of Ga., 221 Ga. App. 874, 878 (4) (473 SE2d 547) (1996), when the trial court did not have the opportunity to render its factual determinations in light of our Supreme Court’s decision in Thorp, we remanded the cases to give the trial court an opportunity to apply the Thorp analysis.

In this case, the trial court’s order, while detailed, did not address one of the prongs of the Thorp analysis. Specifically, the court failed to address whether the harshness of the penalty imposed by the forfeiture of the property was proportional to the gravity of the offense giving rise to the forfeiture. Thus, while the court’s order was detailed and well-reasoned, as in Thorp v. State of Ga., 217 Ga. App. 275; Evans v. State of Ga., 217 Ga. App. 646; and Rabern v. State of Ga., 221 Ga. App. 874, “we must remand this case for further proceedings in the trial court. The trial court is directed to hold a post-trial hearing for the determination of the Eighth Amendment issue herein presented. Either party shall be entitled to appeal the trial court’s new order within 30 days of its entry. See Art. VI, Sec. I, Par. IV, Ga. Const, of 1983.” Evans v. State of Ga., 217 Ga. App. at 647.

Judgment vacated and case remanded with direction.

Johnson and Blackburn, JJ., concur.

Decided January 14, 1998.

Dwight L. Thomas, Caprice R. Jenerson, for appellant.

J. Tom Morgan, District Attorney, Stephen D. Sencer, Assistant District Attorney, for appellee.

       In a supplemental brief, Mayes seeks to supplement the record here with information from the DeKalb County State Court actions against eight of the persons who were arrested and charged with possessing an illegal lottery ticket with the intent to bet. Because those actions are not relevant to our resolution here, we have not reviewed those additional files.

       Contrary to the State’s arguments, we conclude that Mayes sufficiently preserved this argument for review.


text:
    A97A2409.
    SANDERS v. THE STATE.
    (495 SE2d 653)
   Pope, Presiding Judge.

Harvey Wayne Sanders appeals his child molestation conviction and sentence. He claims three errors stemming from the testimony of a police officer: that the trial court improperly allowed the officer to (1) bolster the child victim’s credibility; (2) state that he did not believe Sanders’ version of the incident; and (3) comment on Sanders’ silence. We find no reversible error and affirm the conviction. However, we agree with Sanders that the trial court erred in sentencing Sanders. As an aggravating factor in sentencing, the State was allowed to present evidence of Sanders’ prior convictions for solicitation of sodomy and obscene language. Because the State failed to give Sanders adequate pretrial notice of its intent to use those convictions against him, we must vacate the sentence and remand the matter for resentencing.

1. When the officer testified that the child victim seemed “convincing,” Sanders moved for a mistrial. The court denied it, instructed the jury that it should disregard the statement, and asked if any juror could not strike the comment from their minds. No juror responded. The court did not abuse its discretion when it denied the motion and gave appropriate curative instructions. See Hicks v. State, 196 Ga. App. 25, 26 (2) (395 SE2d 349) (1990). Moreover, Sanders did not thereafter request additional instructions or renew his motion for mistrial, so he has waived appellate review of this issue. Coates v. State, 222 Ga. App. 888, 889 (1) (476 SE2d 650) (1996).

2. The officer testified that after Sanders waived his Miranda rights and made a statement, the officer told Sanders that he did not believe him. Defense counsel objected, arguing that the officer should not be allowed to comment on Sanders’ credibility. The trial court then gave an appropriate limiting instruction and cautioned the jury that the officer’s reply was admissible only to show the exchange between the officer and Sanders and should not be considered for its truth. Sanders requested no further instructions or curative measures, and he has not shown how the curative instruction given was incorrect or insufficient. We find no error. See Lane v. State, 223 Ga. App. 740, 742 (3) (479 SE2d 350) (1996) (trial court is not required to give relief that a party has not requested).

3. Sanders also claims that the officer was improperly allowed to comment on his silence. The officer testified that Sanders waived his Miranda rights, voluntarily came to the station, and gave a statement. After the officer told Sanders he did not believe the story and asked him to tell the truth, Sanders said he wanted to go home and “think it over.” The next day, Sanders called and told the officer he wanted to tell the truth but was hoping he would not be arrested until after the Christmas holiday later that week. The officer agreed. A few days after Christmas, Sanders called again and asked if his arrest could be delayed past the first of the year. The officer testified, “I told him no. Actually, I said if you’ll come back in and complete your statement, tell me the truth, which he didn’t agree to do” (Emphasis supplied.) Sanders objected and moved for a mistrial, claiming this latter statement was a comment by the officer on Sanders’ silence.

The trial court found the officer had not improperly commented on Sanders’ silence, and we agree. This is not a case in which testimony showed Sanders refused to give a statement or specifically invoked his right to remain silent. Compare Ford v. State, 219 Ga. App. 562, 563 (1) (466 SE2d 11) (1995); Cromwell v. State, 218 Ga. App. 481 (1) (462 SE2d 388) (1995). Rather, this case is analogous to Williams v. State, 258 Ga. 281, 283 (2) (368 SE2d 742) (1988), in which an officer testified before the jury that the defendant made a statement, then said he wanted to talk to a lawyer before giving any additional statement. As the Court noted, “[t]he defendant did not remain silent. He discussed the crime, and then he invoked his right to a lawyer.” Id. at 284 (2). The case is also similar to Dunn v. State, 145 Ga. App. 612, 614 (4) (244 SE2d 127) (1978), which held that an officer’s explanation that the defendant stopped answering questions and wanted an attorney was not a comment on defendant’s silence; rather, it was an explanation of the officer’s course of conduct. Here, Sanders gave statements to the officer and had several conversations with him, and the officer’s testimony was an explanation of how their conversations ended, rather than a comment on Sanders’ silence. Moreover, “[t]o reverse a conviction, the evidence of the defendant’s election to remain silent must point directly at the substance of the defendant’s defense or otherwise substantially prejudice the defendant in the eyes of the jury.” (Citation and punctuation omitted.) Duck v. State, 250 Ga. 592, 595 (1) (300 SE2d 121) (1983). Here, the trial court could conclude that the officer’s testimony “did not purport to be evidence of the defendant’s guilt or to be directed toward undermining any of his defenses.” Id. See also Sabo v. State, 226 Ga. App. 106, 109 (4) (485 SE2d 591) (1997).

Decided January 14, 1998.

Julian M. Treadaway, Ray B. Gary, Jr., for appellant.

Thomas J. Charron, District Attorney, Shannon L. Goessling, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

4. While upholding the conviction, we must conclude that the trial court erred in sentencing Sanders. Pursuant to OCGA § 17-10-2 (a), the sentencing court may consider “only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial. . . .” The trial court considered as aggravating circumstances Sanders’ 1987 misdemeanor convictions for solicitation of sodomy and obscene language, offenses to which he pled guilty in DeKalb County State Court. The only pretrial notice the State gave, however, was a copy of Sanders’ Georgia Crime Information Center criminal history. That report listed a “simple assault” conviction in DeKalb County State Court, accusation no. 86C21120. The State contends that notice was sufficient because the solicitation of sodomy and obscene language charges, though not listed in the GCIC report, were included in the simple assault accusation.

We disagree with the State’s argument because OCGA § 17-10-2 (a) requires “that [pretrial] notice of each specific conviction to be introduced in evidence by the State at the sentencing phase of the trial should be given to the party on trial or his attorney. And the fact that such notice was given should be clear and not cloudy.” (Citation and punctuation omitted.) Rielli v. State, 174 Ga. App. 220, 223 (5) (330 SE2d 104) (1985). See Ramsey v. State, 241 Ga. 426, 428 (2) (246 SE2d 190) (1978). The State’s notice simply did not name these additional offenses. Although the State argues that Sanders could have researched his record based on the GCIC information given, it is clear that the State did not provide the necessary “notice of each specific conviction.” See also Armstrong v. State, 264 Ga. 237, 238 (2) (442 SE2d 759) (1994) (absent notice of State’s intent to use offense in aggravation, defendant is not on notice to explore defects that could make conviction inadmissible). Therefore, we vacate the sentence and remand the case for resentencing.

Judgment of conviction affirmed, sentence vacated and case remanded.

Johnson and Blackburn, JJ, concur.


text:
    A97A2442.
    ROBERSON v. THE STATE.
    (495 SE2d 643)
   Ruffin, Judge.

After a non-jury trial, a Whitfield County Superior Court judge found James E. Roberson guilty of driving under the influence. Roberson appealed, asserting as error the denial of his motion to suppress evidence obtained from his allegedly improper traffic stop. For the following reasons, we affirm.

“ This court’s responsibility in reviewing the trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. We construe the evidence most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be adopted unless they are clearly erroneous.’ [Cit.]” Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996).

The evidence reveals that between 11:30 p.m. and midnight on January 27, 1997, Deputy Sheriff Gary Stephens of the Whitfield County Sheriff’s Office was parked on Mountain Road in Whitfield County. Below Deputy Stephens, at the intersection of Mountain Road and Tibbs Road, another deputy had made a traffic stop and had his patrol car’s blue lights engaged. In between Deputy Stephens’ location and the other deputy’s traffic stop was the intersection of Mountain Road and a roadway that led to a bar called the Hill Top Lounge. The road up to the bar was steep. According to Deputy Stephens, the grade of the road made it difficult for motorists exiting from the bar’s parking lot and motorists traveling up the steep road to see each other.

On the night in question, Deputy Stephens had been sitting at his location on Mountain Road for about two to five minutes when he saw Roberson travel down the steep road from the bar. When Roberson reached Mountain Road, he stopped and backed up the steep incline “on the side the traffic would have been [coming down].” In the few minutes that Deputy Stephens had been parked, he had seen ten to fifteen cars leave the bar traveling down the hill that Roberson had traveled up in reverse. Deputy Stephens was also aware that the bar closed at midnight and that additional cars would soon be leaving the bar parking lot via the steep roadway. Because of Roberson’s backing up the steep incline that numerous cars had traversed and would be traversing, and given the limited visibility on that road, Deputy Stephens was concerned that Roberson’s actions created a safety risk and thus decided to investigate the matter. Upon reaching the bar’s parking lot, Deputy Stephens saw that Roberson had parked and was exiting his vehicle. When Deputy Stephens questioned Roberson about why he had backed up the hill, Roberson said he had seen the other deputy’s blue lights and that he backed up because his license was suspended. Deputy Stephens smelled a strong odor of alcohol on Roberson’s breath and subsequently arrested Roberson for DUI after he failed field sobriety tests.

Roberson argues that Deputy Stephens did not have proper legal grounds to make the stop because the deputy did not see him engage in criminal conduct. We disagree.

“An initial investigative stop requires that the arresting officer have only reasonable, articulable suspicion of criminal conduct, not probable cause. [Cit.] An officer may conduct a brief investigatory stop of a vehicle if that stop is justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. [Cit.] This specific, articulable suspicion must be based on the totality of the circumstances, including objective observations, known information about the individual, patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel. [Cit.]” Herrington v. State of Ga., 221 Ga. App. 354 (1) (471 SE2d 289) (1996). Furthermore, a “stop of a vehicle is authorized if an officer observes the commission of a traffic offense. [Cit.]” Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

In the instant case, Deputy Stephens witnessed Roberson commit a traffic offense. OCGA § 40-6-240 (a) provides that “[a] driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.” Roberson backed up a steep hill that had limited visibility on the same side of the road that was being heavily traveled by patrons exiting the Hill Top Lounge. The fact Roberson successfully backed up the roadway without colliding with other cars did not mean that this maneuver was made with safety as OCGA § 40-6-240 (a) requires. Roberson ran a risk of causing an accident, given that it was difficult for him to see cars exiting the bar’s parking lot and that it was difficult for other patrons to see him backing up the steep incline. Because Deputy Stephens observed Roberson commit a traffic offense, he was authorized to stop him.

The cases on which Roberson relies to support his argument that his traffic stop was unreasonable because his backing did not impede traffic are inapposite. See Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only); State v. Jones, 214 Ga. App. 593 (448 SE2d 496) (1994); Raulerson v. State, 223 Ga. App. 556 (479 SE2d 386) (1996). In Bowers, the defendant was stopped for changing lanes without using a turn signal. In concluding that there was no traffic violation of OCGA § 40-6-123, we noted that the arresting officer admitted there were no vehicles on the road, and thus there was no need to use the signal to alert other drivers. Bowers, supra at 887-888. Next, in Jones, the defendant was stopped for making a U-turn. Again, there were ho other vehicles on the road, and thus, under OCGA § 40-6-123, the defendant did not need to signal his intention to turn. Jones, supra at 593-594. Accordingly, the trial court in Jones properly granted the defendant’s motion to suppress. Id. Finally, in Raulerson, the defendant-was stopped for driving slowly in a 55 mph speed zone. We concluded that there was no traffic violation of OCGA § 40-6-184 (a) (1) because, by the arresting officer’s own admission, there were no other vehicles on the road for defendant to impede by her low speed. Raulerson, supra at 557-558.

Decided January 14, 1998.

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, for appellant.

Kermit N. McManus, District Attorney, Mark P. Higgins, Jr., Assistant District Attorney, for appellee.

In the instant case, however, Deputy Stephens testified that there were fifty to seventy-five cars in the parking lot and that he had seen ten to fifteen cars on the steep roadway leaving the parking lot within minutes of Roberson backing up the roadway. There was a reasonable likelihood, given the fact the bar was near closing, that other cars would be descending from the parking lot and that Roberson’s backing would endanger those motorists and interfere with traffic. Even if Roberson’s actions did not amount to a per se traffic violation, under the totality of the circumstances — the heavy traffic on the roadway, the lack of visibility on the steep incline and the time of night when patrons would be leaving the closing bar — Stephens had a reasonable, articulable suspicion that Roberson was committing a traffic offense. Herrington, supra.

Accordingly, in light of the evidence, we conclude that the traffic stop was not improper and thus the trial court did not err in denying Roberson’s motion to suppress. Dooley, supra; Herrington, supra.

Judgment affirmed.

Birdsong, R J, and Eldridge, J., concur.


text:
    A97A2517.
    In the Interest of J. B. A. et al., children.
    (495 SE2d 636)
   Ruffin, Judge.

In this appeal, the mother of J. B. A. and G. B. A. challenges the sufficiency of the evidence supporting the juvenile court’s order terminating her parental rights. For reasons which follow, we affirm.

“The question on appeal is whether, after reviewing the evidence in a light most favorable to the lower court’s judgments, ‘any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ [Cit.] This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. [Cit.]” In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997).

OCGA § 15-11-81 provides the grounds that a court must consider in determining whether to terminate parental rights. The court is first required to determine whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-81 (a). Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If such evidence exists, the court must then determine whether termination of parental rights is in the best interests of the child. OCGA § 15-11-81 (a).

1. There is clear and convincing evidence in this case of parental misconduct or inability. That evidence shows that the children, who are twins, were born on October 12, 1995. The Department of Family & Children Services (“DFCS”) became involved with the twins in November 1995. DFCS learned that the twins were living in a two- or three-bedroom trailer with as many as thirteen other people who were, as the trial court put it, “engaged in various sexual relationships [sic] with each other though not married.” The DFCS caseworker who investigated the report testified that when she first visited the trailer at approximately 11:00 a.m., everybody was still in bed. When the caseworker entered the trailer, she noticed that there was no door knob or latch of any kind on the front door and that some of the windows of the trailer were broken out of the trailer. Inside, she observed children and teenagers lying on the couch and on the floor. There was an unvented kerosene heater in the living room and dirty dishes, crawling roaches, clothes, clutter and other trash everywhere. The caseworker testified that even though you could smell fumes from the kerosene heater, two individuals lit cigarettes. She also noticed a bullet hole in the living room wall. A 15-year-old boy, who stated that he was having a sexual relationship with the twins’ mother, explained that he fired a gun in the trailer because another individual “was threatening to commit suicide and he was trying to get his attention.” The bullet went through the living room wall and lodged in the wall of the bedroom where the twins were sleeping. The 15-year-old has since married the twins’ mother. The twins, who were approximately six weeks old at the time of the DFCS visit, were dirty and lethargic. One of the twins was previously admitted to the hospital when he stopped breathing.

At the conclusion of the visit, the twins’ mother was arrested for sexual molestation, and the caseworker instructed the other trailer residents to find alternative housing. The mother’s grandmother offered to take care of the twins. The grandmother immediately went to the jail, however, posted bail for the mother, and two days later the caseworker learned “that everybody was back in the trailer just like it was when we had gone over there and told them to vacate it.” According to the twins’ great aunt and uncle, the unhealthy conditions at the trailer existed before the twins were born and had not changed upon their last visit when the twins were three weeks old. The twins were adjudicated deprived, and DFCS arranged for the great aunt and uncle to take temporary physical custody.

When the great aunt and uncle received the twins, they were in very poor condition. Both twins appeared malnourished. One twin had a “real bad” diaper rash which left scars on the infant’s buttocks. According to the uncle, “the diapers they had on had so much wet [sic] in them that they weighed like around five pounds each.” The diaper rash medication prescribed for the twins remained in its packaging and had never been touched. Some of their feeding bottles had bug droppings on them. Both infants had irregular sleeping patterns due to the mother’s practice of staying up late or all night and sleeping late in the morning.

Although a court-ordered reunification plan was established for the mother, she failed to satisfy several goals in the plan. According to her caseworker, the mother was instructed to obtain mental health counseling. After three appointments, however, she stopped attending, and her file “was closed because of her lack of participation and her lack of contacting the counselor.” Although the mother was required to obtain stable housing, her caseworker stated that she had at least eight different residences during the previous year, that she often moved back into the trailer and that she moved so often the caseworker was having difficulty keeping up with her. While the mother visited the twins 23 times during the previous year, the caseworker stated that there was an “extreme . . . lack of bonding” and “very little interaction.” According to the caseworker, the mother “normally sits on the couch and watches the boys play in [sic] the floor.” And, while the mother obtained a required parenting skills class certificate based on her attendance, she failed to participate in the class and did not appear to grasp the information. The mother made only two child support payments of $20 each and, at the time of the hearing, was $1,780 in arrears of the required payments. Finally, although the mother was required to obtain steady employment, the caseworker was never “able to confirm that she ha[d] been employed anywhere.”

(a) There is clear and convincing evidence that the children are

deprived. OCGA § 15-11-81 (b) (4) (A) (i). A child is deprived if he is without the care necessary “for his physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A). It is undisputed that the children were adjudicated deprived in a November 26, 1995 deprivation order, and there is no indication that the order was appealed. See In the Interest of M. R., 213 Ga. App. 460, 464 (1) (a) (444 SE2d 866) (1994). Furthermore, the evidence showed that since birth, and during the time the mother had custody of the children, they lived in a dilapidated, overcrowded, unsanitary, unsafe and morally depraved environment. They were not administered necessary medication and were left festering in soiled diapers. They were wanting, but denied any meaningful, supportive, parental attention from their natural mother, a condition that continued even after she lost custody and until the termination hearing. See OCGA § 15-11-81 (b) (4) (C) (i). Contrary to the reunification plan, the twins were denied any significant financial support from their natural mother, and there is no indication that the mother made any attempt to provide them with a safe, stable home from the time of their birth until the hearing. See OCGA § 15-11-81 (b) (4) (C) (iii).

(b) There is clear and convincing evidence that the lack of proper parental care by the mother is the cause of the twins’ deprivation. OCGA § 15-11-81 (b) (4) (A) (ii). The mother was responsible for their living environment and lack of care prior to the temporary change in physical custody, and the mother’s same indifference to the twins’ needs resulted in her lack of parental care after the change of custody.

(c) There is clear and convincing evidence that the cause of deprivation is likely to continue or will not likely be remedied. OCGA § 15-11-81 (b) (4) (A) (iii). The deplorable conditions in the trailer existed before the twins’ birth, during their first six weeks of life, and after DFCS intervention. Even after the temporary change in custody, the mother failed to take necessary steps to provide for minimal financial support, stable housing, steady employment or to obtain necessary mental health counseling. See R. N., supra. And, although the mother has since married, it is to the same child who discharged the firearm in the trailer. There is no evidence that these problems will be remedied.

(d) We also find clear and convincing evidence that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the twins. OCGA § 15-11-81 (b) (4) (A) (iv). There can be no doubt that if the twins were subjected to the continued medical, emotional, housing and financial neglect of their natural mother, they would suffer serious harm. See In the Interest of P. N. L., 228 Ga. App. 187, 189 (1) (d) (491 SE2d 639) (1997).

2. The evidence similarly shows that termination of parental rights is in the best interests of the children. OCGA § 15-11-81 (a). “The same evidence showing parental misconduct or inability may, and here does, establish this requirement. [Cit.]” P. N L., supra at 190 (2). Furthermore, additional testimony showed that during their stay with the aunt and uncle, the twins’ health has improved dramatically and that the twins treat the aunt and uncle as parents. The aunt testified that she has bonded with the twins, and the caseworker agreed stating that “to move them from their home . . . would break a great bond that they have with them. . . .” See id.

Decided January 14, 1998.

Jerry W. Moncus, for appellant.

3. Finally, we disagree with the mother’s assertion that the trial court erred in terminating her parental rights because DFCS failed to clearly define her reunification goals as required by OCGA § 15-11-41 (d) (3). The record shows that the mother attended the Citizen Review Panel meeting at which the reunification plan was established. The plan contained six goals, and the caseworker testified that she “made it very clear to [the mother] what [was] expected of her throughout the case.” Similarly, a panel member stated that the panel explained each goal to the mother and that she appeared to understand the goals. The mother did not take advantage of her statutory right to request a hearing before the juvenile court to review the plan, and it was subsequently adopted by the court in a supplemental order. The juvenile court’s order clearly stated that the mother was required “to comply with each and every portion of the plan, including any and all requirements for evaluation and treatment and all requirements for financial child support.” Of the six goals in the plan, the mother achieved only one — regular visitation. Although the mother initially complied with some of the goals in a subsequent plan, as stated above, the evidence of record shows that after three appointments she stopped attending required mental health counseling, she never obtained stable housing, she made only two $20 child support payments and was $1,780 in arrears, and the caseworker was never able to confirm that she was employed.

In short, it is clear that the mother’s failure to comply with the reunification plans was not the result of any ambiguities in the stated goals, but a consequence of her own actions. See In the Interest of C. G. A, 204 Ga. App. 174, 176 (3) (418 SE2d 779) (1992). The goals were sufficiently clear to comport with the requirements of due process. See In the Interest of S. L. W., 221 Ga. App. 509, 511 (2) (471 SE2d 579) (1996).

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Michael R. McCarthy, Richard K. Murray, Deborah H. Peppers, for appellee.


author: Smith, Judge.

text:
    A97A1939.
    TATE v. THE STATE.
    (495 SE2d 658)
   Smith, Judge.

Odell Tate was indicted by a Floyd County grand jury for the offenses of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b), simple possession of cocaine, OCGA § 16-13-30 (a), and possession of cocaine with intent to distribute within 1,000 feet of public housing, OCGA § 16-13-32.5 (b). A jury found him guilty, his motion for new trial was denied, and he appeals. We affirm.

1. Tate asserts the general grounds. Construed in favor of the jury’s verdict, the evidence shows that a police officer on foot patrol saw Tate driving a car on the street adjoining the Rome Housing Authority public housing project. Because the officer knew that Tate did not have a valid driver’s license, he followed him to a unit in the housing project and arrested him for driving with a suspended license. After briefly patting Tate down for weapons, the officer escorted him to his patrol car. Before placing Tate in the patrol car, the officer lifted up the rear seat to make sure the rear seat area contained no contraband or other objects. The officer had checked his patrol car when his shift began for any “out of the ordinary” objects in the rear seat area, as required by police department policy.

After Tate was placed in the patrol car, the officer conducted an impound and inventory of Tate’s vehicle. During this time, the officer observed Tate making unusual movements inside the patrol car. Tate stopped moving several times when he noticed the officer watching him. Once they arrived at the county jail, the officer lifted the rear seat and found a small plastic bottle containing 12 pieces of suspected crack cocaine. A forensic chemist testified that the material tested positive for cocaine. Tate testified and denied any knowledge of the cocaine in the back seat of the patrol car.

(a) In asserting the general grounds, Tate contends the State failed to foreclose the possibility that the cocaine was placed in the patrol car by some other person. After the jury’s verdict of guilty Tate can no longer rely on the presumption of innocence, and this Court cannot weigh evidence or judge the witnesses’ credibility. We must construe the evidence to uphold the verdict and determine only whether the evidence was sufficient to enable any rational trier of fact to find Tate guilty of the crime charged beyond a reasonable doubt. Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2d 377) (1990). It is true that the evidence of Tate’s possession of the cocaine was circumstantial. But “[although such evidence may be classified as circumstantial rather than direct, we conclude that, with all the other evidence taken into account, there is no other reasonable hypothesis to account for the cocaine’s presence where it was found other than that appellant had placed it there.” Goins v. State, 184 Ga. App. 452, 454 (361 SE2d 853) (1987). See also Cotton v. State, 223 Ga. App. 288 (1) (477 SE2d 425) (1996). The evidence was sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), for a rational trier of fact to find beyond a reasonable doubt that Tate possessed the cocaine found in the rear seat of the patrol car.

(b) But mere possession of cocaine, without more, will not support a conviction for possession with intent to distribute. Wright v. State, 154 Ga. App. 400, 401-402 (268 SE2d 378) (1980). “We have considered various kinds of additional evidence as proof of intent to distribute, including drug measuring and weighing paraphernalia, the packaging of the contraband, possession of certain amounts or denominations of currency, a prior possession with intent to distribute conviction, and expert testimony that the amount of contraband possessed was consistent with larger amounts usually held for sale rather than for personal use.” (Citations and punctuation omitted.) McNair v. State, 226 Ga. App. 516, 517 (1) (487 SE2d 100) (1997).

Here, the State offered two types of proof of intent to distribute: Tate’s earlier guilty plea to possession of cocaine with intent to distribute and sale of cocaine, along with the testimony of two police officers that the amount of cocaine discovered in this case was inconsistent with personal use. Tate enumerates as error the admission of the similar transaction and the testimony of one of the officers. We disagree; both the similar transaction and the testimony were properly admitted, as discussed in Divisions 2 and 3, below. The evidence was sufficient under Jackson v. Virginia to support Tate’s conviction for possession of cocaine with intent to distribute. See Davis v. State, 200 Ga. App. 44 (406 SE2d 555) (1991).

2. The trial court properly admitted Tate’s 1988 plea of guilty to one count of a five-count indictment, alleging that he “did . . . possess with intent to distribute, dispense, administer, sell and deliver cocaine.” An undercover officer testified that Tate in the earlier incident sold him $475 worth of cocaine within a few blocks of the site of his arrest in this case. Both arrests occurred in the same area, but Tate did not live there. When Tate took the stand, he testified that he came to the housing project to ask a friend to play on a basketball team with him.

While Tate argues there was insufficient similarity between the two incidents, the earlier offense “involved a violation of the Georgia Controlled Substances Act and the sale or intent to sell cocaine. Accordingly, the offenses were substantially similar to justify admission as it is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity. On the question of similarity, the trial court’s findings will not be disturbed unless clearly erroneous. Further, the similar transaction evidence was being introduced to show motive, intent, and knowledge, purposes deemed appropriate and exceptions to the general rule of inadmissibility.” (Citations and punctuation omitted.) Cantrell v. State, 210 Ga. App. 218, 220-221 (435 SE2d 737) (1993). See also Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). In Collins, an earlier guilty plea to simple possession of cocaine was held sufficiently similar where the defendant was originally charged with possession with intent to distribute, both incidents occurred in the same area, and the defendant had a number of plastic bags containing cocaine. Id.

In Tate’s case, the earlier incident involved an actual sale of cocaine within a few blocks of the arrest in this case, although Tate did not live in the area. The earlier incident involved powder rather than crack cocaine, but the arresting officer testified that crack cocaine was “not that prevalent here in Rome” at that time. The finding of similarity is not clearly erroneous under the standard of Cantrell and Collins, and the trial court did not err in admitting the evidence.

3. We also find the arresting officer properly testified that the amount of cocaine found was inconsistent with personal use and consistent with sale. As in Bacon v. State, 225 Ga. App. 326 (483 SE2d 894) (1997), although the police officer was not formally tendered by the State as an expert witness, the prosecutor questioned him extensively regarding his experience in drug enforcement and his knowledge of the customary methods employed in the use and sale of cocaine. Upon the defendant’s objection to the officer’s testimony, the trial court expressly found the officer qualified to give an expert opinion. Compare McNair, supra (officer not qualified as expert and prosecutor elicited no background information from which jury could infer expertise).

Moreover, the officer who testified to the similar transaction was also questioned regarding his experience in drug enforcement and knowledge of the habits of crack cocaine users. He testified without objection regarding the amount of crack cocaine customarily carried for personal use. The testimony to which appellant objected was therefore at most simply cumulative of other testimony admitted without objection. “Evidence is harmless where admissible evidence of the same fact is before the jury. Accordingly, any error in overruling defendant’s objection would have been harmless.” (Citations and punctuation omitted.) Maher v. State, 216 Ga. App. 666, 667 (1) (455 SE2d 377) (1995).

4. Tate also enumerates as error the trial court’s refusal to grant a mistrial based on the unsolicited remark of a forensic chemist on cross-examination that he had testified in “probation court” regarding the same cocaine sample. After Tate objected, the trial court offered to give an immediate curative instruction to the jury, but noted that it “might call too much attention” to a term that the trial court correctly described as not having “any particular meaning.” Tate’s counsel immediately responded, “I would ask that that not be done.”

“[Ajppellant refused the offer of curative instructions, thus making it impossible for the trial court to repair the alleged prejudice and waiving the grounds to assert mistrial error on appeal.” (Citations and punctuation omitted.) Shelton v. State, 214 Ga. App. 699, 701 (448 SE2d 771) (1994). See also Scott v. State, 207 Ga. App. 196, 202 (1) (b) (427 SE2d 537) (1993) (reference by witness to defendant’s “jail file”). Since Tate’s counsel declined the trial court’s offer to give a curative instruction, Tate cannot now complain that the trial court should have granted his motion for mistrial.

5. In his final enumeration of error, Tate asserts he was denied effective assistance of counsel. In order to show he was denied the constitutional right to counsel, Tate must show that his trial counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. The record shows that this issue was raised in a timely fashion in the amended motion for new trial filed by Tate’s appellate counsel. The record further shows that the amended motion for new trial was denied after a hearing. However, no transcript of the hearing on the amended motion for new trial has been included in the record on appeal. “Accordingly, we must presume that [Tate] failed to meet his burden of proving the ineffectiveness of his trial counsel and that the trial court correctly denied the motion for new trial on this ground.” (Citation omitted.) Sorrells v. State, 267 Ga. 236, 241 (9) (476 SE2d 571) (1996).

Decided January 15, 1998.

Farless & Newton, William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, Lisa W. Tarvin, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

       Tate was also charged with three counts of recidivism.

       As noted below, Tate did not object to or enumerate as error the testimony of the second officer regarding the amount of cocaine generally possessed for personal use.


author: Beasley, Judge.

text:
    A97A2026.
    BROWN v. THE STATE.
    (495 SE2d 858)
   Beasley, Judge.

Jeffrey Brown appeals from a conviction of theft by receiving stolen property involving a 1984 Nissan 300ZX. OCGA § 16-8-7. He was sentenced to ten years confinement. In the same trial, Brown was acquitted of the same offense involving a 1995 Ford Explorer and of possession of that vehicle without the manufacturer’s serial number. OCGA § 40-4-22. Brown’s sole enumeration of error is that the court erred by failing to separate the trial of the Nissan charge from the Ford charges.

Prior to trial, Brown moved to sever from each other groups of offenses related to three separate incidents. Thereafter he pleaded guilty to shoplifting charges arising in one of the incidents. As to the other two, he argued that “[tjhere is no evidence that the instances stemming from the receipt of the stolen Nissan [and] the stolen Ford Explorer . . . show any common pattern, motive, plan, scheme, or bent of mind so as to justify joinder of these charges for the purposes of trial.” The trial court denied the motion and denied Brown’s renewed motion before trial. After presentation of the State’s case, Brown moved for mistrial based on the court’s failure to sever. That motion, and a motion for new trial made after judgment, were also denied.

1. Where two offenses have been joined “solely on the ground that they are of the same or similar character,” the defendant has a right to sever the offenses for trial. But, as argued by the State, where two offenses have been joined on the ground that they are based “(1) ‘on the same conduct’ or (2) ‘on a series of acts connected together’ or (3) on a series of acts ‘constituting parts of a single scheme or plan,’ ” the trial judge has discretion to grant severance if necessary “ ‘to achieve a fair determination of the defendant’s guilt or innocence of each offense.’ ” For these purposes, “the same conduct” means “the same transaction.”

The record and transcript are ambiguous as to the basis of the court’s denial of Brown’s motion to sever. The discussion immediately prior to trial appears to indicate that the court denied the motion to sever on the sole ground that the two transactions were similar. If so, the court erred. After trial the State admitted that “the evidence is . . . not totally conclusive on the proposition that these incidents were part of a common scheme or plan.” The State argues that it is a reasonable inference that the two incidents “were part of a common scheme or plan to dispose of stolen vehicles” despite the lapse of eleven months between them. The facts must be examined.

With regard to the Nissan, the evidence presented at trial showed that on March 1, 1995, Jeffrey Brown and Joseph Bing went to Nick’s Auto Sales in Columbia, South Carolina, in a black BMW. While Joseph Bing stayed in or near the BMW, Brown test drove a 1984 Nissan 300ZX with a salesman. On the drive, Brown pulled over and told the salesman that he believed there was a flat tire. Both men got out of the car, but Brown jumped back in and drove away, leaving the salesman standing on the interstate. Police were called to Nick’s Auto, and Bing and the BMW were still there when they arrived. The BMW contained a Georgia Power bill with a due date of March 10, 1995, in the name of Jeffrey Brown with an address in Augusta.

Richmond County, Georgia police were informed of the incident on March 3, 1995, and asked to investigate Brown at the address shown on the bill. The investigator went to the apartment complex at the address given, where Brown lived, and told the apartment manager and maintenance person to watch for the Nissan and Brown. Later that day, the manager called back and reported she had seen Brown and another man exit a Nissan. The maintenance worker also saw Brown in the Nissan at about the same time. After the officer found Brown hiding at the apartment complex, a fight occurred and Brown escaped. He was not arrested until February 16, 1996. The stolen Nissan was recovered on March 3. Its vehicle identification number plate had been removed from the inside dash.

As for the green 1995 Ford Explorer, it was stolen from Bourne Toyota in Columbia County, Georgia, after the close of business on November 10, 1995. The following January, Richmond County investigators were investigating a possible auto theft ring that involved stealing cars such as Mercedes, BMW, and Lexus from out of town and bringing them into Augusta. Two suspects gave information to an investigator that a 1995 Ford Explorer which had been stolen from Columbia County was located in Richmond County, and that Brown had been driving it. On February 8, a Richmond County investigator went to the address given by the suspects and found a blue 1995 Ford Explorer from which the vehicle identification plate had been removed. He confirmed that it was the stolen car and had been repainted.

The address was for an apartment occupied by Tammy Taylor, who drove up while the officer was present. The officer never saw Brown at Taylor’s apartment, but he had information that Brown lived with her and he told Taylor to tell Brown to call him. The officer testified that someone later called about the Ford Explorer, identified himself as Jeffrey Brown, and admitted he knew about the Explorer. The Explorer was inventoried, and a document with Brown’s name and signature were found together with life insurance papers bearing Tammy Taylor’s name. There was no evidence that Brown lived with Taylor or that the Nissan was connected with the auto theft ring. Nor was Brown directly implicated in the auto theft ring.

In Booker v. State, 231 Ga. 598 (203 SE2d 194) (1974), the Supreme Court held that two separate charges of armed robbery arising out of incidents that occurred one week apart should have been severed. The “separate crimes did not arise out of the same conduct, did not involve the same victims or witnesses and the evidence of one would not be admissible on the trial of the other.” Id. at 599 (1). See also Haisman v. State, supra. Here, there is no evidence showing the two incidents were part of a scheme or plan. The only similarities remotely suggesting a common scheme or plan are the fact that the VIN plate on both cars was removed, and both cars were stolen from dealerships. The similarities are commonplace in auto theft, but the differences are significant. The offenses occurred 11 months apart in different locations, at different times of the day, by different methods of larceny, and involved different victims and different schemes. There are no common witnesses. One car was repainted; the other was not.

The similarities do not reveal a scheme or a common modus operandi and are an insufficient basis to deprive a defendant of his right to sever as found in Dingier.

Bailey v. State relied on by the State, is distinguishable. The two burglaries could be tried together because they were similar in many ways, were separated by only a few days in time, occurred within one-fourth of a mile of each other, and the defendants stated “they were involved in a continuing burglary scheme.” Id. at 223 (3). Nor was severance necessary in Cooper v. State, 253 Ga. 736 (325 SE2d 137) (1985), because the three incidents bore similar characteristics and were so related in time that “the similarity reaches the level of a pattern.” They occurred over a 15-day span in the same vicinity, all against women, and each involving physical violence. Thus, in Bailey and Cooper the trial court had discretion to refuse to sever.

Although separate crimes that are “somewhat removed from one another in terms of time and place” may constitute parts of a single scheme or plan, the 11-month separation and the lack of other factors showing a common scheme or plan compel the conclusion that the counts should have been severed.

2. In addition to error, the appellant must establish prejudice or harm to obtain reversal. Severance is designed to protect a defendant from, among other things, “ ‘the great risk of prejudice from a joint disposition of unrelated charges,’ ” and “ ‘confusion of law and evidence by the trier of the fact and the “smear” effect such confusion can produce.’ ” Brown argues that joinder caused “a smear effect” that created “an unfair disadvantage” for him at trial.

Even though Brown was acquitted of the charges involving the Ford Explorer, the court must analyze whether the defendant was harmed by the joint trial. In Carter v. State, 261 Ga. 344, 345 (1) (404 SE2d 432) (1991), the Supreme Court noted that the “posture of the defense would have been dramatically different had the severance motion been granted.” It reversed the conviction even though Carter had been acquitted of the second murder charge.

Brown testified at trial, but his attorney questioned him only about the allegations regarding the Ford Explorer, which he strongly denied. He never denied involvement with the Nissan. The cross-examination was limited to the same topic. The contrast of Brown’s denial of involvement with the Ford Explorer together with his silence regarding the Nissan could have created the direct implication that Brown was guilty of the Nissan incident. A separate trial would obviate this comparison.

The argument that the Ford episode could have been admitted as evidence of a similar transaction is not supported by the facts. But first of all the two standards are different. “[T]he criteria for the introduction of similar transactions under Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991), are considerably more rigorous than the evidentiary standard for determining ‘similarity of conduct’ for purposes of joinder. Under the analysis of Williams, supra, the state must show not only significant similar conduct, but similarity to the extent that proof of one offense tends to prove the other. Williams, [261 Ga.] at 642. Under the evidentiary standard for joinder, the state must show, similarity of conduct only to the extent that the sole purpose of joinder is not because the offenses are of a like ‘character.’ Swinney [v. State, 217 Ga. App. 657, 659 (458 SE2d 686) (1995)].”

Under the similar transaction analysis, there is very little evidence that Brown was a knowing participant in the Explorer incident and no one testified to seeing Brown in the car or in possession of it. One part of the test for admitting evidence of similar transactions is that the State must make an affirmative showing that the accused committéd the independent offense or act. Here, that is highly questionable.

As in Carter, the posture of Brown’s defense likely could well have been different had the severance motion been granted.

Judgment reversed.

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

Decided January 15, 1998.

Garrett & Gilliard, Michael C. Garrett, Kirk E. Gilliard, for appellant.

Daniel J. Craig, District Attorney, for appellee.

        Dingler v. State, 233 Ga. 462, 464 (211 SE2d 752) (1975). Dingier involved three counts of theft by receiving stolen property, and “[a]ll three of the offenses occurred at different times and involved different property stolen from different persons.” Dingler v. State, 134 Ga. App. 223 (214 SE2d 6) (1975).

       (Citations omitted.) Haisman v. State, 242 Ga. 896, 900 (252 SE2d 397) (1979). See also OCGA § 16-1-7.

        Davis v. State, 159 Ga. App. 356 (283 SE2d 286) (1981).

       See also Davis v. State, supra (counts of robbery should have been severed where they did not arise from the same transaction and where they were joined solely on the ground they were of the same or similar character); Wigley v. State, 140 Ga. App. 145 (230 SE2d 108) (1976) (three counts of drunk driving which occurred in a five-month period should have been severed).

       157 Ga. App. 222 (276 SE2d 843) (1981).

       Id. at 737 (3).

       See also Davis v. State, 223 Ga. App. 346 (477 SE2d 639) (1996) (not error to refuse to sever incidents of theft by taking and robbery committed a month apart, in the victims’ homes, from the victims’ purses, and where the victims were known to the defendant, because they constituted parts of a single scheme or plan and shared a single criminal purpose); Mack v. State, 163 Ga. App. 778, 779 (1) (296 SE2d 115) (1982) (two incidents were so similar “as to evidence a common plan or scheme and revealed an identical modus operandi”).

        Clemson v. State, 239 Ga. 357, 359 (236 SE2d 663) (1977).

        Brown v. State, 173 Ga. App. 640 (327 SE2d 515) (1985).

       (Citations omitted.) Dingler v. State, 233 Ga. at 463.

       But see Gober v. State, 247 Ga. 652 (278 SE2d 386) (1981); Williams v. State, 186 Ga. App. 266 (367 SE2d 92) (1988) (question moot where defendant acquitted of the charges defendant wanted severed and where he has shown no harm or prejudice from the joint trial); Franklin v. State, 185 Ga. App. 502 (364 SE2d 632) (1988). Gober, Williams, and Franklin, all reverse after finding the trial court should have granted the motion to sever, without considering whether the error was harmful. Another line of cases find no harm where the defendant was acquitted of the charges he wished severed. See Watkins v. State, 187 Ga. App. 108 (1) (369 SE2d 356) (1988) (“[an]y error resulting from the failure to sever those charges of which the appellant was acquitted was, of course, harmless.”); Hayes v. State, 182 Ga. App. 26, 27 (354 SE2d 655) (1987) (any error for failure to sever a count for which defendant was acquitted was harmless). These cases pre-date Carter.

        Smith v. State, 225 Ga. App. 553, 556 (484 SE2d 515) (1997).

        Williams v. State, 261 Ga. at 642.