text:
    A99A2419.
    SWANSON et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (530 SE2d 516)
   Miller, Judge.

The issue in this case is whether a consolidated pretrial order submitted by the parties, but unsigned by the court, which order fails to raise a defense mentioned in the answer, precludes the defendant from pursuing the defense in a motion prior to trial. Holding that it does not, we affirm the order dismissing the case on this defense.

On the day the statute of limitation ran, Natalie Swanson and Norma Bresil sued Andy Johnson and a John Doe for personal injuries arising out of an auto accident but failed to make any attempt to serve Johnson with process after the sheriff reported that he had moved and could not be found. Seeking uninsured motorist coverage, they timely served State Farm Mutual Automobile Insurance Company with process. State Farm answered, asserting all affirmative defenses that could be asserted by Johnson. Although no pretrial conference was held, the plaintiffs and State Farm later submitted a consolidated pretrial order to the court, which made no reference to the lack of service on Johnson and which the judge did not sign or enter. It was the judge’s practice to sign pretrial orders just before trial began.

After two calendar calls (one of which was postponed and at one of which both sides announced “ready”), State Farm moved in writing to dismiss the complaint for failure to serve Johnson and for failure to exercise due diligence to obtain service after the initial unsuccessful attempt. Plaintiffs opposed the motion on the grounds that the pretrial order jointly submitted by the parties made no reference to this defense and that it was too late to raise the issue. Finding lack of due diligence to obtain service, the court granted the motion, which order the plaintiffs appeal.

1. Service on the missing tortfeasor, whether by publication or otherwise, is a condition precedent for recovery against the uninsured motorist carrier. A plaintiff must exercise due diligence in locating a missing uninsured motorist to effect service. Because it is undisputed that plaintiffs failed to do anything to locate or perfect service on Johnson after the initial unsuccessful attempt, evidence supported the court’s finding of lack of due diligence and justified the dismissal.

Citing OCGA § 9-11-16 (b), plaintiffs maintain, however, that State Farm’s failure to mention the defense in the consolidated pretrial order precluded it from raising the defense. But the judge never signed the submitted pretrial order, and thus the parties were not limited to the issues specified therein. Because the defense of insufficient service on Johnson was raised in State Farm’s answer, the trial court did not abuse its discretion in holding that State Farm’s motion on this basis, filed before trial, was proper.

2. Plaintiffs’ contention that the court erred in failing to sign the proposed order is without merit. Neither OCGA § 9-11-16 nor Uniform Superior Court Rule 7.2 requires the judge to sign a pretrial order proposed by the parties. Only if a pretrial conference is held does OCGA § 9-11-16 (b) require the court to make an order, which may or may not be in the form proposed by the parties. Here, of course, no pretrial conference was held. Moreover, the statute specifies no time frame within which a pretrial order must be entered, and here the court intended to enter an order right before trial, if trial had occurred.

3. Plaintiffs also argue that State Farm waived the defense by announcing “ready” at the first calendar call (without bringing the issue to the court’s attention) and by not raising the issue in the proposed pretrial order. But once a party has raised the issue of insufficient service in its answer, that party waives the defense only if it engages in conduct so manifestly indicative of an intention to relinquish the defense that no other reasonable explanation of its conduct is possible. Here the evidence did not demand a finding of waiver, as (a) the defense applied to service not on State Farm itself, but on the missing tortfeasor, and thus was not immediately apparent to State Farm; (b) the proposed pretrial order was never entered; and (c) the motion was filed prior to trial. The trial court did not abuse its discretion in considering the issue and ruling thereon.

Decided March 7, 2000.

Lecora Bowen, for appellant.

Sharon W. Ware & Associates, Melynee C. Leftridge, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Cf. OCGA § 9-3-33.

        Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 825 (392 SE2d 33) (1990).

       See Wilson v. State Farm &c. Ins. Co., 239 Ga. App. 168, 171 (520 SE2d 917) (1999).

       Cf. Echevarria v. Hudgins, 173 Ga. App. 39, 41 (2) (325 SE2d 423) (1984) (dismissal order based on failure to exercise due diligence in obtaining service subject to abuse of discretion standard).

       Cf. Life Care Ambulance v. Hosp. Auth. of Gwinnett County, 202 Ga. App. 864, 865 (415 SE2d 502) (1992) (pretrial order supersedes the pleadings and controls the subsequent scope and course of the action).

       See Altamaha Convalescent Center v. Godwin, 137 Ga. App. 394, 395 (1) (224 SE2d 76) (1976) (unsigned pretrial order is of no effect and does not preclude amendments to pleadings raising issues not specified in the order); see also State of Ga. v. Croom, 168 Ga. App. 145, 147 (1) (308 SE2d 427) (1983) (absent enti-y of pretrial order ending pretrial proceedings, amendments allowed as of right until taking of evidence at trial); Lanier Petroleum v. Hyde, 144 Ga. App. 441, 442 (2) (241 SE2d 62) (1978) (amendment must be allowed as matter of course absent entry of pretrial order).

       Compare Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 643 (3) (507 SE2d 823) (1998) (raising insufficient service midway through trial was too late).

       Compare Sheet Metal Workers &c. v. Carter, 144 Ga. App. 48, 51 (5) (240 SE2d 569) (1977) (a pretrial conference must be followed by a pretrial order), rev’d on other grounds, 241 Ga. 220 (244 SE2d 860) (1978).

        Oasis Goodtime, supra, 234 Ga. App. at 642 (3).

       Compare id. at 643 (3) (motion raised midway through trial); Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622, 623 (396 SE2d 790) (1990) (motion to dismiss for insufficient service filed too late after summary judgment motion filed, decided, and reversed by appellate court).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1696.
    FAMILY PARTNERS WORLDWIDE, INC. v. SUNTRUST BANK, ATLANTA.
    (530 SE2d 742)
   Miller, Judge.

Family Partners Worldwide, Inc. arranged international adoptions and set up a separate corporation as a foundation to raise funds for the adoptions. The board of directors and the chief executive officer (CEO), Keith McGrew, were the same for both corporations. Unknown to the directors, McGrew opened an account in the name of the foundation at SunTrust Bank, which he allegedly used to convert funds from Family Partners. Claiming some checks had been stolen, McGrew later closed the account and opened a new account that had the same name and allegedly served the same purpose of embezzling. Family Partners sued SunTrust to recover the converted funds, contending SunTrust was liable because it did not require a corporate resolution or certificate of authority to open either account. On a motion for summary judgment, the trial court concluded that McGrew as CEO had the inherent agency power to open the accounts and granted the motion in favor of SunTrust. We agree and affirm.

1. Summary judgment is proper only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant.

2. OCGA § 7-1-352 (a) provides that whenever an agent deposits money in a bank to the credit of his principal, the bank “shall be authorized to pay the amount of such deposit, or any part thereof, upon the order of such agent [properly signed] without being accountable in any way to the principal. . . .” This protects a bank from liability for embezzlement by a signatory on a corporate bank account where the person setting up the account had the authority to do so and where the bank was without knowledge of the embezzlement. Because there is no evidence SunTrust knew of the embezzlement, our inquiry focuses on whether McGrew as CEO had either the authority or inherent agency power to open the account and designate himself as the authorized signatory for withdrawals. The evidence is disputed whether McGrew had the actual or apparent authority, and therefore summary judgment in favor of SunTrust cannot be sustained on these theories.

The question becomes whether McGrew had inherent agency power, which is defined in Trust Co. of Ga. v. Nationwide Moving &c. Co. as “the power of an agent which is derived not from authority, apparent authority or estoppel, but solely from the agency relation and exists for the protection of persons harmed by or dealing with a servant or other agent.” The agency relation here was that McGrew was the CEO of the foundation and of Family Partners, upon which SunTrust relied in setting up the accounts. Did SunTrust have the right to rely solely on McGrew’s position as CEO for the power to set up a corporate bank account and to withdraw corporate funds without a proper corporate resolution? We hold it did.

Unlike the position of general manager in Trust Co., the position of CEO here had the inherent power to open a corporate account and withdraw corporate funds. The CEO was the highest executive in both corporations and had the undisputed, complete executive power to run the corporations’ day-to-day affairs. Family Partners conceded that as CEO McGrew had the implied authority to execute contracts on behalf of the corporations, including leasing office space and entering into various contracts for advertising, office equipment, adoption coordination, and releases, with unfettered access to the corporate seal. He had implied authority to hire and fire any employee and to oversee and supervise the office and its daily operations.

McGrew sat on the finance committee of the boards and had the complete authority to oversee and supervise the financial end of the businesses, including the authority to communicate with outside accountants and attorneys. He had the implied power to interact with banks by obtaining information and receiving and reconciling monthly bank statements. Significantly, McGrew had the authority to endorse and deposit checks in Family Partners’s other three accounts at NationsBank, wire monies from those accounts, and serve as an authorized sole signatory on corporate checks and payroll checks drawn at NationsBank. He had the implied authority to incur reasonable business expenses, purchase supplies, and pay invoices and other corporate debts such as payroll taxes, refunds, liability insurance, and repair bills. He represented the companies abroad and locally, particularly to regulatory agencies and nongovernmental organizations. In effect, he was the boards’ “eyes and ears” with the express mission to save a sinking financial ship. These undisputed facts concerning the plenary scope of his power conclusively establish that, in his position as CEO, McGrew had the inherent agency power to open accounts for the corporations and to withdraw monies from those accounts, which actions would be within the ordinary course of the business of Family Partners and the foundation.

Nevertheless, Family Partners argues that SunTrust is precluded from relying on McGrew’s inherent agency power because SunTrust failed to follow its own internal policy requiring a corporate resolution or certificate of authority to establish a corporate account. We agree, however, with the United States District Court for the Northern District of Georgia that “a bank’s failure to follow its own internal operating procedures [regarding opening accounts] cannot give rise to legal liability” for embezzlements from that account. Trust Co. explained:

While we agree the bank could easily protect its interests by requiring a proper corporate resolution showing the agent’s authority to act for the corporation, that method is not the exclusive one for establishing the existence either of authority or of inherent agency power to open a bank account for the corporation.

The undisputed evidence showed that McGrew had the inherent agency power to open the accounts and withdraw deposited funds. Pursuant to OCGA § 7-1-352 (a), SunTrust is protected from liability for the alleged conversion by McGrew. In this evidentiary posture, the trial court correctly granted SunTrust’s motion for summary judgment.

Decided March 8, 2000.

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Charles J. Cole, for appellant.

Hawkins & Parnell, William H. Major III, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       OCGA § 9-11-56 (c).

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Trust Co. of Ga. v. Nationwide Moving &c. Co., 235 Ga. 229, 230 (219 SE2d 162) (1975) (interpreting former Code Ann. § 13-2042).

       See id. at 231.

       (Citation and punctuation omitted.) Id. at 232.

       Cf. Franklin Sav. &c. Co. v. Branan, 54 Ga. App. 363, 366 (3) (188 SE 67) (1936) (president has power to act for corporation within the scope of its ordinary business and his usual official duties); compare Westcorp Software Systems v. Odell, 238 Ga. App. 835, 836 (1) (519 SE2d 755) (1999) (physical precedent only) (CEO does not have implied power to execute contracts involving high-level conflicting interests); Trust Co., supra, 235 Ga. at 232 (general manager does not have inherent authority to open accounts).

       Id. at 232-233.

       Cf. id. at 232-234; compare Bresnahan v. Lighthouse Mission, 230 Ga. App. 389, 391 (1) (496 SE2d 351) (1998) (president does not have implied authority regarding matters outside the scope of ordinary business).

        APCOA, Inc. v. Fidelity Nat. Bank, 703 FSupp. 1553, 1558 (N.D. Ga. 1988), aff’d, 906 F2d 610 (11th Cir. 1990).

       Supra, 235 Ga. at 233.


author: Phipps, Judge.

text:
    A99A1942.
    ROBERTS v. THE STATE.
    (530 SE2d 535)
   Phipps, Judge.

A jury found Anthony Roberts guilty of rape, and he was sentenced under the recidivist statute to life imprisonment. The trial court denied Roberts’s motion for new trial, and he appeals. He challenges the sufficiency of the evidence and complains of certain evidentiary rulings and a jury charge. Because the evidence supports the verdict and no reversible error appears, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and an appellant no longer enjoys the presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.

Viewed in the light most favorable to the verdict, the evidence shows that on August 4, 1997, 16-year-old B. C. went to a gas station to meet her boyfriend and some other friends. There she met Roberts for the first time. B. C.’s friends and her boyfriend were spending the night with Roberts’s daughter, and Roberts planned to take the teenagers to Amicalola Falls the next day for a vacation. At the gas station, Roberts, who was thirty-six years old, told one of B. C.’s friends that he would like to “hook up” with B. C.

B. C.’s boyfriend broke up with her that night and told her that he was dating Roberts’s daughter. The next morning B. C. telephoned Roberts’s home to talk with her boyfriend, but no one answered the telephone. Roberts used the call-return feature on his telephone service to return B. C.’s call. He asked her whether she wanted to come over to talk to her boyfriend about the breakup. She told Roberts that she was not allowed to “hang out” with his daughter and suggested he pretend to be the father of another friend so that her mother would allow her to visit his house. He agreed, saying that he was “a good actor.”

Roberts arrived at B. C.’s house at about 1:00 p.m. and introduced himself to her mother as the father of another friend. B. C. left with him in his car, and they headed to Roberts’s house. On the way, Roberts asked B. C. what kind of alcohol she liked, then stopped and purchased some of it, which she drank.

At Roberts’s house, B. C.’s boyfriend did not want to talk with B. C., and she became upset. Roberts offered to take her on a “15 to 30 minute” ride so that she could calm down. He stopped to buy beer, then drove B. C. to Amicalola Falls. There he rented a room, telling the front desk clerk that B. C. was his daughter. He and B. C. went to the room and watched television together for about two hours. Roberts drank the beer and encouraged B. C. to drink as well, telling her that drinking would “make [her] feel better and get the situation off [her] mind.” B. C. drank “a little” but stopped because she “started getting sick.” One of B. C.’s girlfriends paged her repeatedly from Roberts’s house, asking when she and Roberts were coming back. B. C. did not know how to get home from the hotel and asked Roberts several times to take her back to the house, but he told her to wait a little longer to make the others “mad” and that he needed to sober up. Yet he continued to drink.

While B. C. spoke with her girlfriend on the phone, Roberts “got in the floor and between [her] legs and tried to pull down [her] pants. And [she] kept scooting back and pulling them up. And he kept pulling them down.” She testified that as he was pulling down her pants, she mouthed, “quit,” to him. She testified that although her girlfriend asked her if anything was wrong and if he was trying to do anything to her, she said “no” because he was “right in front of me and I was scared to say anything.” After she hung up, she continued to resist Roberts’s advances, but he continued to pull down her pants until she eventually gave up because she “knew that [she] had no chance . . . of getting away.” Then he pulled her pants off and “started having intercourse with [her].”

B. C. repeatedly testified that she did not want to have sex with Roberts, did not agree to do so, and “just laid there” while he forced sexual intercourse upon her. She testified that she was afraid something would happen to her and was “in shock” and. that she did not know Roberts very well and “was afraid that, if [she] tried to fight ... he might hurt [her].” She had seen that “on movies where girls try to fight they end up getting hurt.”

Afterward Roberts drove B. C. back to his home, where they picked up the others, then returned to Amicalola Falls. They arrived at the hotel at about 11:00 p.m., and B. C. and some of the others changed into sleepwear. B. C. sat on a bed with Roberts while her friends talked in an upstairs loft of the room. At about 4:30 a.m., Roberts had an argument with his daughter and told all the teenagers to leave the room. Everyone was angry, and once outside B. C. told her girlfriend that Roberts had forced himself upon her. They all walked for 45 minutes to the Amicalola Falls Welcome Center, where Roberts’s daughter called her mother, who overheard B. C. blurt out “by the way, your father raped me,” and who then called the police.

The responding police officer testified that as he transported B. C. to a medical center, she was upset and crying. At the medical center, a nurse, who was certified as a sexual assault nurse examiner, examined B. C., including her vaginal area, and found no injuries.

1. Roberts contends the evidence was insufficient to sustain his conviction for rape. “A person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will.” He admits to having sexual intercourse with B. C., but he claims that it was consensual.

(a) Roberts maintains that the State failed to show that the sexual intercourse was against her will, i.e., without her consent. He points out that B. C. voluntarily left with him, brought her overnight bag, and did not call for help when she had opportunities to do so. He also points out that she voluntarily traveled back to the hotel with him, even driving part of the way. And upon arriving at the hotel the second time, she spent time in the hotel room with Roberts in her t-shirt and boxers.

Consent induced by fear is not the free consent required to prevent the act from constituting rape, but such consent is the mere product of force within the meaning of the statute. Intimidation may substitute for force. Here, “[t]he jury apparently believed that it was the force exercised, and the fears which their actions produced in her mind, that caused her to yield. . . ,”

A delay in reporting an alleged rape goes to the credibility of the victim, which is solely a jury question. It is also for the jury to determine whether the victim consented or whether any lack of resistance sprang from “reasonable apprehension of great bodily harm, violence, or other dangerous consequences to herself or another.”* The evidence authorized the jury to find lack of consent.

(b) Roberts maintains that the State failed to show force, urging that there was no evidence of physical force, threats of violence, intimidating acts, or a history of violence between B. C. and him. He points out that a trained sexual assault nurse examined B. C. and found no evidence of force on her body. He argues that B. C.’s testimony that she was scared because of what she had seen in movies cannot constitute the element of force because such fear was not based on his acts.

Force may be proved by direct or circumstantial evidence. In this case, Roberts separated B. C. from her family and friends, provided her with intoxicating liquors, took her to a hotel room in an unfamiliar location, ignored her requests to be taken back to her friends, and continued his sexual advances despite her resistance. The examining nurse testified that she found injuries in only 50 percent of her examinations of rape victims. Although this case “does not show the degree of force frequently found in crimes of rape, or the violent threats often made . . . , there was evidence of force (or intimidation), and the circumstances provided ample ground for fear on (the victim’s) part.” The evidence authorized the jury to find force.

Despite Roberts’s denial that he committed rape, the jury found otherwise. We conclude that a rational trier of fact could reasonably have found from the evidence adduced at trial proof that Roberts was guilty of rape beyond a reasonable doubt.

2. Roberts contests the admission of similar transaction evidence on procedural and substantive grounds. The State presented testimony that on June 27,1997, J. W, who was 15 years old, met Roberts at a friend’s house. Later that day, Roberts offered J. W. and her friends alcohol at his house. He then asked J. W. to go with him to run errands, and he let her drive his car because she “had just gotten [her] learner’s and [she] wanted to drive.” They left in the early afternoon, and although Roberts told her that they would return in about 15 minutes, they did not return until late evening.

They made several stops. One of Roberts’s errands was at a hotel, where J. W. got out of the car because she was “scared to sit in the car and wait because it was dark and [she] had no idea where [she] was.” Later that evening, they parked the car at a location unfamiliar to J. W., where Roberts asked J. W., “If I pay you, will you have sex with me?” J. W. said no, but Roberts moved closer to her and placed his hand on the inside of her thigh. J. W. cranked the car and told him that she wanted to leave.

J. W.’s mother paged her, and Roberts told J. W. to lie to her mother and report that they were having car trouble. He stood beside her while she spoke to her mother. Afterward, as J. W. drove toward Roberts’s home, she approached a familiar area and drove directly to her house instead.

(a) Roberts maintains that the State’s notice to present J. W.’s testimony failed to comply with Uniform Superior Court Rule 31.3 because it did not contain the date of the transaction. The notice actually pertained to two transactions that occurred on the same date, and the exact date was included in a paragraph about the other transaction. Further, the transcript shows that the State explained to the trial court that it had provided notice of the date as part of a discovery package. Error and harm must be shown affirmatively by the record to warrant reversal. Roberts has shown no harm resulting from any omission. To the degree the date was not included, on this record, the notice was adequate, and such omission does not warrant reversal.

Roberts also complains that the notice failed to state adequately the purpose of the evidence in that the notice claimed that the evidence was probative of his identity, intent, bent of mind, course of conduct, and lustful disposition toward younger girls. The mere fact that a notice specifies multiple purposes does not render it inadequate. After the USCR 31.3 hearing, the trial court ruled that identity was not at issue, but that evidence of the similar transaction could be used for the other stated purposes.

We conclude that the trial court did not err in ruling that the notice of intent to introduce evidence of similar transactions was adequate.

(b) Roberts asserts that J. W.’s testimony was not relevant in proving rape but instead showed that he had accepted her rejection. He urges that the probative value of the testimony did not outweigh the prejudicial impact of his propositioning a 15-year-old female. In that case and in this case, Roberts separated teenaged females from their families and friends, assisted them in deceiving their parents, offered them alcohol, took them to unfamiliar places, and then pursued sexual advances. Roberts offered J. W. money in exchange for sex, which constitutes the offense of pandering. J. W. refused his offer. The circumstances of this case are strikingly similar to those involving J. W. Here Roberts did not offer B. C. money for sex, but rather forced her to have sex after she had told him to quit attempting to remove her clothing.

Similar transactions need not be identical to be admitted, and in cases involving sexual offenses, that rule is to be liberally construed. Absent an abuse of discretion, we will not disturb a trial court’s determination that similar transaction evidence is admissible. We find no such abuse here.

3. Roberts contends that the trial court erroneously allowed the testimony of B. C.’s mother, who testified that on August 5, 1997, he came to her home, claiming to be someone else so that she would allow her daughter to leave with him. There is no merit in Roberts’s argument that the testimony had no probative value concerning the rape. The testimony showed the manner in which Roberts put the victim in a situation in which she could be raped. Moreover, B. C. testified, without objection, and Roberts admitted at trial that he presented himself as someone else to B. C.’s mother.

4. Roberts contends the jury charge was too broad on the element of force. He asserts that the State must prove violence or intimidation by direct threats of violence to the victim or her family member or a history of violence between the victim and the perpetrator. Roberts claims that the following charge was misleading:

In order to prove the crime of rape, the State must prove the element of force as well as the lack of consent. Mental coercion, such as intimidation, may substitute for physical force if the appellant’s words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself.

Roberts complains that the phrase “mental coercion such as” improperly encompassed a broader range of behavior than “intimidation” and that the charge confused the jury. He points to questions from the jury about this issue, which resulted in a recharge.

Decided March 8, 2000.

Carey, Jarrard & Walker, Theodore W. Robinson, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Assistant District Attorney, for appellee.

But the charge limited “mental coercion” to “appellant’s words or acts that were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself.” In its entirety, the trial court’s instruction concerning the element of force adequately informed the jury of the applicable law.

5. Roberts enumerates as error the trial court’s denial of his motion for new trial, arguing the general grounds. Our ruling in Division 1 renders this enumeration moot.

Judgment affirmed.

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

        Patterson v. State, 225 Ga. App. 515 (484 SE2d 317) (1997).

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

        Patterson, supra, 225 Ga. App. 515.

       Id.

       Id.

       OCGA § 16-6-1 (a) (1).

        Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976).

       Id.

       (Citation and punctuation omitted.) Raines v. State, 191 Ga. App. 743, 744 (1) (382 SE2d 738) (1989).

        Watson v. State, 235 Ga. 461, 463 (2) (219 SE2d 763) (1975).

        Curtis, supra, 236 Ga. at 363 (1).

       (Citation and punctuation omitted.) Raines, supra, 191 Ga. App. at 744 (1) (rape conviction was upheld where appellant drove 14-year-old victim to a secluded location and parked, refused to drive victim home, refused to allow victim to walk home unless she had sex with him, and victim gave in to appellant’s sexual demands after realizing that appellant “ ‘wasn’t going to take (her) home’ ” and concluding that she had no other choice).

       See Jackson, supra, 443 U. S. 307.

       See Herrin v. State, 229 Ga. App. 260, 261 (1) (493 SE2d 634) (1997).

       See Jones v. State, 236 Ga. App. 330, 332 (1) (a) (511 SE2d 883) (1999).

       See James v. State, 209 Ga. App. 182-183 (1) (433 SE2d 132) (1993) (the purpose of USCR 31.3 (B) is not to insist upon a technical requirement for its own sake but rather to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial).

       See OCGA § 16-6-12.

        Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

       Id.

       Curtis, supra, 236 Ga. at 362 (1) (intimidation may substitute for force).


author: Smith, Judge.

text:
    A99A2077.
    PARKER et al. v. KENNON et al.
    (530 SE2d 527)
   Smith, Judge.

Walter L. Kennon, Sr., the appointed guardian of the person and property of Virginia N. Gray, filed suit against Gray’s three daughters, Jane Parker, Linda Hunter, and Virginia Kemp.* The suit sought recovery of funds from the daughters, alleging they had misappropriated Gray’s assets. Specifically, the suit alleged that Parker and Hunter had each wrongfully converted two certificates of deposit.

After various pretrial motions were made and denied, the case came on for trial before the court and a jury. Kennon called all three daughters for purposes of cross-examination, and he then took the stand for direct examination. But during the cross-examination of Kennon, Parker and Hunter requested that the court decide the case on the applicable law without proceeding further with the trial, and Kennon agreed.

The trial court received a number of documents into evidence, took the case under advisement, made findings of fact and conclusions of law, and entered final judgment in favor of Kennon. The court ruled that Parker and Hunter had converted the funds and ordered repayment of the funds plus interest and attorney fees. Parker and Hunter now appeal this judgment, contending that the trial court erred in ruling that the funds in the joint accounts belonged to Gray, in finding that they converted the funds, and in joining them as defendants. Finding no error, we affirm the judgment.

1. The trial court ruled that the funds from the redeemed CDs were still in Gray’s estate and ordered the funds returned with penalties. Parker and Hunter contend this was error. We do not agree.

The record shows that in May 1996, Gray, who resided in Columbus, Muscogee County, suffered a stroke that incapacitated her. Included among her assets at that time were two CDs at SunTrust Bank in the names of Gray and Hunter and two others at the same bank in the names of Gray and Parker. The CDs had been purchased on varying dates ranging from 1981 to 1986. Parker and Hunter admitted at trial that they had not contributed anything to the purchase of these CDs.

Later in 1996, Parker and Hunter removed these CDs from their mother’s safe deposit box and cashed them. With the proceeds, they purchased two CDs, each in the amount of $100,000, in their joint names and opened a joint checking account with the $31,275.06 remaining. A later withdrawal from these CDs was made in the amount of $10,000, which was deposited to the joint checking account of Parker and Hunter.

Evidence was presented that the balance in the joint checking account at the time of trial was between $17,000 and $18,000, Hunter admitted that she and her sister withdrew funds from the joint accounts. She stated that the money in those accounts was “personal business,” because once she and her sister had cashed in the CDs, the funds belonged to her and her sister. Parker testified to the same belief.

Parker and Hunter still maintain on appeal that when they redeemed the CDs each of them held jointly with their mother and deposited the funds in accounts bearing only their names, their mother ceased to have any interest in the funds. That is simply not the law. OCGA § 7-1-812 (a) provides: “[a] joint account belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” In Caldwell v. Walraven, 268 Ga. 444 (490 SE2d 384) (1997), the Supreme Court of Georgia reasoned that because OCGA § 7-1-812 (a) is identical to a provision in the Uniform Probate Code, as originally approved in 1969, the interpretation, cases, and comments on that section of the probate code should be adopted and applied to OCGA § 7-1-812 (a). Id. at 448-449 (3). Those cases and commentaries agree unanimously that the statute creates a presumption that one funding a joint account does not intend to make a gift of the funds of the account during life, although this presumption may be rebutted by clear evidence to the contrary. Id. Applying that reasoning here, both Parker and Hunter admitted they made no contributions to those CDs; no evidence whatsoever was presented in this case of any other intent; and all the parties to the original joint CDs are still in life, including Gray. The trial court therefore correctly ruled that the funds belonged entirely to Gray.

The cases and statutes cited by Parker and Hunter in support of their position do not require a different result, as they all relate to their authority to withdraw funds from the joint account. OCGA § 7-1-811, relied upon by Parker and Hunter, provides that,

Code Sections 7-1-812 through 7-1-814, concerning beneficial ownership as between parties or as between parties and P.O.D. payees or beneficiaries of multiple-party accounts, are relevant only to controversies between those persons and their creditors and other successors and have no bearing on the power of withdrawal of these persons as determined by the terms of account contracts.

But this Code section does not address the real issue in this case, which is ownership of the funds. It is absolutely undisputed that both Parker and Hunter had the authority to withdraw the funds from the CDs; that is the very essence of a joint account. The trial court so found. Gray’s daughters were her joint tenants. Because we must presume that Gray did not intend to make a gift to her daughters of the funds she alone contributed to the account, her daughters had no authority to use the funds for their own personal benefit.

2. Parker and Hunter contend that because they did not convert the funds, they did not commit a tort. They argue that because they were not joint tortfeasors with Kemp and did not reside in Muscogee County, the trial court had no jurisdiction over them. They also argue that since no tort was committed, an award of attorney fees and expenses was unwarranted. But their argument on this issue rests on their reliance on OCGA § 7-1-811, which we have determined is misplaced. The trial court found that Parker and Hunter had converted their mother’s funds, had acted in bad faith in doing so, had been stubbornly litigious, and had caused unnecessary trouble and expense to recover the funds, thereby authorizing an award of attorney fees and expenses under OCGA § 13-6-11.

The tort of conversion involves an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.

Paulsen Street Investors v. EBCO Gen. Agencies, 237 Ga. App. 116, 121 (3) (514 SE2d 904) (1999). We have determined that the proceeds of the cashed-in CDs remained the property of Gray. Because Parker and Hunter assumed and exercised the right of ownership over them, it follows that this constituted the tort of conversion. Further, Parker and Hunter accomplished the conversion jointly, going together to SunTrust Bank in Columbus to redeem the original CDs and going together to SouthTrust Bank in Columbus to open new joint accounts with the proceeds. We therefore find no merit in their contention that the trial court erred in ruling that they converted those funds.

As to jurisdiction, both Parker and Hunter are Georgia residents, and therefore the issue they raise is one of venue, which may be waived. Ganny v. Ganny, 238 Ga. App. 123, 125 (2) (518 SE2d 148) (1999). Venue was proper when the suit was filed, because Kemp resided in Muscogee County. Ga. Const. of 1983, Art. VI, Sec. II, Par. IV has been construed to provide that suits against joint tortfeasors residing in different counties may be brought in any county where one of them resides. This is true, but if no judgment is taken against a resident defendant, venue as to the nonresident defendants vanishes unless the issue of venue is waived. Timberlake Grocery Co. &c. v. Cartwright, 146 Ga. App. 746, 747 (247 SE2d 567) (1978). Although a judgment was not taken against Kemp in this case, Parker and Hunter waived any issue regarding venue by failing to raise it even after the verdict. They also failed to raise the issue of venue in responsive pleadings, participated in the trial, and requested that the trial court decide the case on its merits during the trial. The issue of venue was clearly waived. Sidwell v. Sidwell, 237 Ga. App. 716, 717 (1) (515 SE2d 634) (1999).

3. For the reasons stated in Division 1 of this opinion, we find no merit in Parker and Hunter’s contention that the trial court lacked the authority to freeze the joint accounts of Parker and Hunter. Like OCGA § 7-1-811, OCGA § 7-1-814, giving each joint tenant the right to close a joint account and open a new account on different terms, is 1 addressed only to the authority of joint tenants with regard to the joint account. It has no bearing on ownership of the funds in the account.

Decided March 8, 2000

L. B. Kent, for appellants.

Denney, Pease, Allison & Kirk, John W. Denney, Ashley C. McKenna, for appellees.

Judgment affirmed.

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

       This is the second appearance of this case in this court. In Parker v. Kennon, 235 Ga. App. 272 (509 SE2d 152) (1998) (Parker I), we dismissed the direct appeal of Parker and Hunter from an order denying their motion to lift a freeze on bank accounts each held jointly with their mother, Gray.

       The trial court also found that Kemp had not misappropriated any of Gray’s funds. Kemp is nominally an appellee, therefore, in this appeal.

       Hunter redeemed two certificates totaling $73,423.35 and paid a penalty of $985.34 for early withdrawal, leaving $72,438.01. Parker redeemed two certificates totaling $162,442.19 and paid a $3,605.14 early withdrawal penalty, leaving $158,837.05.


text:
    A99A2116.
    BOWEN v. THE STATE.
    (531 SE2d 104)
   Smith, Judge.

We granted Christopher C. Bowen’s appeal from the trial court’s order revoking his probation after the court determined that he violated the terms and conditions of his probation. Bowen contends that the State failed to satisfy its evidentiary burden under OCGA § 42-8-34.1 (a). We agree and reverse.

Bowen entered a negotiated guilty plea to the offense of statutory rape on March 11, 1997. Bowen received a probated sentence of 12 years subject to his compliance with certain terms and conditions including not “to use drugs in any illegal manner” and to submit to random drug testing. After Bowen tested positive for marijuana on April 7, 1999, the State submitted a petition to revoke Bowen’s probation.

At the probation revocation hearing, the State contended that Bowen had violated a special condition of probation. See OCGA § 42-8-34.1 (c). The State’s sole witness, Jill Hardegree, the probation officer assigned to supervise Bowen, testified that Bowen’s urine was tested using a drug testing kit provided by the State. She testified that she generally performed about 25 such tests per month. According to Hardegree, when Bowen reported to the county probation office on April 7, 1999, he was asked to submit to a random drug screen administered by her surveillance officer.

Bowen objected to the admission of the test results on two separate grounds: that Hardegree had not been the person who performed the actual test and that the test at issue was “a novel scientific test” within the meaning of Harper v. State, 249 Ga. 519, 525-526 (1) (292 SE2d 389) (1982). Bowen argued that the test results should not be considered in evidence.

Satisfied with the State’s proof of the chain of custody and as to Hardegree’s personal knowledge that the urine specimen tested belonged to Bowen, the trial court focused on the latter issue. Hardegree knew that this test, the “on track test stick,” had been developed by Roche Diagnostic and used separate sticks for detecting marijuana, cocaine, and amphetamines. She testified that her knowledge of the process was based on the “test stick information that they send us in the box.” Hardegree, who had never previously testified about the administration of this test, made no claim to having any knowledge about the scientific basis for the procedure. Hardegree conceded she had received no training on the characteristics, theory, or reliability of the test itself.

The trial court found that Bowen violated his probation based exclusively on Hardegree’s testimony that Bowen tested positive for drugs on this urine test. The court revoked Bowen’s probation “in accordance with OCGA §§ 42-8-38, 17-10-1 (a) (3) (A),” and ordered Bowen “to continue on supervised probation after posting a $2,000 bond and pending a discretionary appeal.” The trial court deferred sentencing pending a decision by this court whether to hear the matter.

In his only enumerated error, Bowen contends the trial court erred by revoking his probation on the basis of a drug test that the State failed to prove was scientifically reliable. Bowen claims the trial court erred in giving any consideration to the test result. We agree.

After a procedure has been recognized in a substantial number of jurisdictions, a trial court may take notice, without receiving evidence, that the procedure has been established with verifiable certainty. Harper, supra at 525-526 (1). A trial court may also decide a procedure or technique has reached a “scientific stage of verifiable certainty,” from evidence presented to it by the parties or an expert or based on exhibits, treatises, or the rationale of cases in other jurisdictions. Id. at 525.

As the State readily acknowledges, the analysis of Bowen’s urine “was performed using the Abuscreen Ontrak test developed and marketed by Roche Diagnostic Systems, Inc.” But in Hubbard v. State, 207 Ga. App. 703 (429 SE2d 123) (1993), this court reversed drug convictions that were based on positive urine test results obtained on the “ontrack system.” In reversing, we found that the trial court erred in admitting any testimony as to test results because

Decided March 8, 2000.

Jackie G. Patterson, Yasma Patterson, for appellant.

the ontrack system has not been widely recognized and the trial court, in essence, took judicial notice that the ontrack test results were based on accepted scientific theory without receiving expert testimony that the procedure has been established with verifiable certainty. .

Id. at 704. We further noted, “[a] review of the decisions of this court, our Supreme Court and the courts of other states reveals no decision in which the ‘ontrack system’ has been discussed as a reliable method of drug detection.” Id.

It was the State’s burden to establish the reliability of this particular test by expert testimony or to offer authority subsequent to Harper to prove that this urine testing procedure had become scientifically established with verifiable certainty in Georgia or in other jurisdictions. Id. This the State failed to do. Compare Hunt v. State, 173 Ga. App. 638 (327 SE2d 500) (1985) (State offered expert testimony about two separate urine test results and about the validity of the testing instrument).

In a recent nonbinding decision, this court reiterated the point of law that under the holding of Hubbard, the ontrack system for drug detection is not admissible evidence unless accompanied by expert testimony as to the test’s reliability. Kendrick v. State, 240 Ga. App. 530, 532 (2) (523 SE2d 414) (1999) (physical precedent only). Again, as in Hubbard, we find the drug test result lacked probative value since no expert testimony was offered by the State to prove the scientific reliability of the ontrack system as used for the purpose of drug detection. Hubbard, supra; see Kendrick, supra.

For purposes of revoking probation, the State has a lesser burden of proof and must show by only a preponderance of evidence that a defendant violated a special condition of probation issued under OCGA § 42-8-34.1. Manville v. Hampton, 266 Ga. 857, 858 (2) (471 SE2d 872) (1996); State v. Jones, 196 Ga. App. 896 (397 SE2d 209) (1990). But here, since the State failed to sustain its evidentiary burden, it was error to revoke Bowen’s probation.

Judgment reversed.

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

Peter J. Skandalakis, District Attorney, Julianne W. Holliday, Assistant District Attorney, for appellee.

       Bowen also entered a guilty plea to the offense of obscene/abusive language.

       Hardegree testified that she was present when Bowen was given an empty cup, watched Bowen enter the rest room accompanied by the other officer, and observed the urine in the cup when they exited the rest room.'She explained that policy required that a person of the same gender observe him urinate into the cup. Hardegree was shown the stick indicating the results.


author: Barnes, Judge.

text:
    A99A2435.
    FERRO v. BOSWELL.
    (530 SE2d 533)
   Barnes, Judge.

Onna Ferro appeals from a jury verdict in favor of Vincent E. Boswell, M.D., in her medical malpractice action against him. In this appeal, Ferro asserts the trial court erred by (1) failing to grant her motion for new trial because there was unrefuted evidence that Dr. Boswell violated the standard of care; (2) failing to charge the jury with regard to the statutory presumption that arises under OCGA § 24-4-22 when a party fails to produce evidence; and (3) charging the jury on comparative negligence when this charge was not supported by the evidence and this defense theory was not included in the pretrial order. For reasons that follow, we affirm.

1. In her first and second related enumerations of error, Ferro asserts the trial court should have granted her motion for new trial because there was “unrefuted evidence that Dr. Boswell had violated the . . . standard of care, thereby causing Ms. Ferro’s damages.” In further support of this argument, Ferro contends the trial court abused its discretion because it failed to apply evidentiary presumptions when it ruled on the motion for new trial.

In reviewing a verdict after the denial of a motion for new trial we follow well-established principles. Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of the motion for new trial will not be disturbed.

(Citation and punctuation omitted.) Crump v. McDonald, 239 Ga. App. 647, 650-651 (3) (520 SE2d 283) (1999).

The record in this case shows that Dr. Boswell, an orthopedic surgeon, performed a high tibial osteotomy on Ferro’s right knee in November 1993. The purpose of this procedure is to realign a bone in the knee, shift where the patient bears weight, and relieve arthritis pain. This procedure failed to achieve these results with Ferro because the bone that was cut during the surgery did not grow back together. Physicians call this failure to grow together “nonunion.”

In May 1994, another orthopedic surgeon, Dr. George Cierny, performed a total right knee replacement on Ferro. One year later, in May 1995, Dr. Cierny removed Ferro’s right knee prosthesis because of infection in her knee. At the same time, he fused her knee. As a result of this fusion, Ferro can no longer bend her right knee.

During the trial, Ferro asserted Dr. Boswell committed malpractice in three different ways: (1) he should never have performed the high tibial osteotomy on Ferro because it was contraindicated for a patient like her; (2) a cut he made during the operation violated the standard of care because it was less than two centimeters long; and (3) he failed to diagnose and treat a post-operative infection of Ferro’s right knee. She further claimed that Dr. Boswell’s malpractice necessitated the surgeries performed by Dr. Cierny and deprived her of a functioning right knee.

In this appeal, Ferro contends unrefuted evidence during the trial showed that Dr. Boswell’s cut during the high tibial osteotomy was less than two centimeters below a joint line and that such a cut violated the standard of care. Ferro also points to evidence showing that a cut that is less than two centimeters can result in nonunion and bone death. Based on this evidence, Ferro argues, the trial court should have granted her motion for new trial because no evidentiary basis existed for the jury’s verdict in favor of Dr. Boswell.

We disagree. The record in this case shows that Dr. Boswell presented evidence that a cut between one and one-half centimeters and two centimeters falls within the standard of care, and there was evidence that the cut he made was one and one-half centimeters, as well as two centimeters. He also presented evidence that the nonunion of Ferro’s right knee could have resulted from her noncompliance with instructions to keep her knee joint immobile after the November 1993 surgery. Finally, he presented evidence that nonunion is a known complication of a high tibial osteotomy that can occur with no malpractice on the part of the surgeon. Based on this evidence, the trial court did not abuse its discretion when it denied Ferro’s motion for new trial. See Harris v. Leader, 231 Ga. App. 709, 713 (2) (499 SE2d 374) (1998).

2. In her third enumeration of error, Ferro asserts the trial court erred when it failed to charge the jury about the statutory presumption found in OCGA § 24-4-22. We find no merit in this enumeration because Ferro failed to request this charge or except to the trial court’s failure to give this charge. See OCGA § 5-5-24 (a); Evans Toyota v. Cronic, 233 Ga. App. 318, 322 (3) (a) (503 SE2d 358) (1998). Furthermore, this alleged error was not harmful as a matter of law. See OCGA § 5-5-24 (c).

Decided March 8, 2000.

Fred L. Cavalli, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Earl W. Gunn, John K. Train TV, for appellee.

3. In her remaining enumeration of error, Ferro contends the trial court erred when it charged the jury on comparative negligence because (a) the evidence did not support such a charge and (b) Dr. Boswell waived this defense by failing to assert it in the pretrial order. We disagree. As outlined above, Dr. Boswell presented evidence that Ferro’s noncompliance with his instructions to keep the knee joint immobile after the surgery could have caused the nonunion. Thus, the trial court properly charged the jury on comparative negligence. McMullen v. Vaughan, 138 Ga. App. 718, 720-721 (2) (227 SE2d 440) (1976).

Since evidence of Ferro’s noncompliance was presented without objection during the trial, the omission of the defense of comparative negligence from the pretrial order did not preclude the trial court from charging the jury on this defense. See Cooper v. Rosser, 232 Ga. 597, 599 (207 SE2d 513) (1974) (“a pre-trial order will be deemed modified to conform to evidence admitted without objection”).

Judgment affirmed.

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


text:
    A99A2495.
    ELLISON v. THE STATE.
    (530 SE2d 524)
   Miller, Judge.

Based on a videotape and police testimony that he purchased cocaine from an undercover officer, Ronald Ellison was convicted of possession of cocaine. Testimony also indicated that he exhibited signs of intoxication after driving his vehicle and that he refused a breath test, resulting in a conviction for driving under the influence. Following the denial of his motion for new trial, he appeals pro se on numerous grounds, none of which has merit. We therefore affirm.

1. In two related enumerations of error, Ellison focuses on the seven-week interval between his arrest on March 1, 1996, and his committal hearing on April 17. Citing OCGA § 17-4-62, he argues that because this preliminary hearing did not take place within 48 hours of his warrantless arrest, his conviction should be overturned.

Ellison’s argument fails for two reasons. First, on the day after his arrest, police obtained an arrest warrant for Ellison based on an affidavit regarding the undercover cocaine sale. Dean v. State held that obtaining an arrest warrant from a neutral magistrate within 48 hours of a warrantless arrest, even without an adversarial hearing, satisfies the statute. Second, even if police had violated the statute, this would not invalidate Ellison’s conviction.

2. Ellison contends that he was denied due process when the arresting officers failed to give him Miranda warnings. But these procedural safeguards are required only in the context of custodial interrogation. Here, there was no evidence of a custodial interrogation or of any incriminating custodial statements made by Ellison. Therefore, this contention is without merit.

3. Ellison bases two enumerations of error on the State’s introduction of his refusal to take the breath test. An officer testified that he read to Ellison the requisite “implied consent” notice set forth in OCGA § 40-5-67.1 (b). Therefore, Ellison’s refusal to submit to the test was admissible as evidence against him. This does not rise to the level of constitutional self-incrimination.

4. Ellison claims that some evidence showed the audio on the videotape had been altered and therefore the videotape’s admission against him was error. This claim fails for three reasons. First, Ellison did not object to the videotape when it was introduced into evidence and therefore waived this issue. Second, he testified himself that, with the exception of some lighting, the videotape accurately depicted the events of that night. And finally, an officer explained that the reason the audio was not clear was due to the quality of the courtroom equipment. Ellison’s objections go to the weight and credibility of the videotape and not to admissibility. It was within the province of the jury to resolve these matters.

5. Ellison argues that the court erred in failing to charge the jury on entrapment. But Ellison admitted that he voluntarily and without enticement approached the officers with the intent of purchasing illegal drugs. Claiming he asked only to buy marijuana, he denied that he sought or received cocaine. Not only does this show a lack of enticement by the officer, but his denial of the cocaine offense precluded an entrapment defense.

6. Ellison complains that the trial court took too long to transmit his record to this Court. Such, however, provides no grounds for overturning his conviction. His complaint that transcripts were not forwarded to this Court is simply inaccurate.

7. The remaining enumerations of error focus on Ellison’s general contention that he received ineffective assistance of counsel. Under Strickland v. Washington, Ellison bore the burden of showing his counsel’s actions were deficient and prejudiced his defense. The trial court’s determination of this question against Ellison is not to be disturbed unless clearly erroneous.* Ellison did not make the necessary showings.

(a) Ellison first contends that he received ineffective assistance at his preliminary hearing because counsel failed to meet with him before that hearing. This argument is without merit, because a preliminary hearing is not required and even waiver of the hearing cannot constitute ineffective assistance of counsel. Thus, failure of an attorney to meet with a client before the hearing is not deficient performance. In fact, errors in that hearing cannot in and of themselves afford grounds for relief when the defendant, as here, is subsequently indicted by a grand jury. Nor could Ellison show any harm resulting from his attorney’s performance at that hearing. He made no statements at the hearing that were later used against him, nor does the record show that he was injured bj^ the denial of the opportunity to preserve testimony favorable to him.

(b) Ellison next contends that because his counsel represented seven other people who were arrested for buying illegal drugs in the same reverse sting operation but who chose to plead guilty, counsel therefore had a conflict in representing Ellison. But the record is devoid of any evidence of an actual conflict of interest. “Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice.” Nothing shows that Ellison was at cross-purposes with any of the other persons arrested for other transactions that day. Because any conflict of interest in representing multiple defendants must be palpable and have a substantial basis in fact, speculative conflicts afford no basis for an ineffective assistance claim.

Decided March 8, 2000.

Ronald Ellison, pro se.

Kenneth B. Hodges III, District Attorney, Sadhana Pandey, Assistant District Attorney, for appellee.

(c) Ellison claims his counsel failed to cross-examine the undercover officer adequately. Though this officer was cross-examined at length, Ellison feels that additional matters should have been covered; in fact, these matters had already been explained. Whether and how to conduct cross-examination, made after consultation with the client, are trial tactics that are virtually unchallengeable in an ineffective assistance claim. We discern no error here.

(d) Ellison faults his attorney for failing to argue the defenses of selective prosecution and entrapment. But based on Ellison’s own appellate argument that 20 other people were arrested in the sting operation that day, a selective prosecution claim hardly seems likely. And, as discussed above, no evidence supported an entrapment defense.

The trial court did not clearly err in determining that Ellison did not meet his burden of showing ineffective assistance.

Judgment affirmed.

Pope, P. J,, and Smith, J, concur.

       250 Ga. 77, 81 (2) (b) (295 SE2d 306) (1982).

       See Lambert v. McFarland, 612 FSupp. 1252, 1261 (N.D. Ga. 1984) (ex parte determination of probable cause satisfies statute).

       See Vaughn v. State, 248 Ga. 127, 130 (1) (a) (281 SE2d 594) (1981).

        Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813) (1994).

       OCGA §§ 40-5-67.1 (b); 40-6-392 (d).

        Miles v. State, 236 Ga. App. 632, 633 (1) (513 SE2d 39) (1999).

        Benson v. State, 233 Ga. App. 58, 60 (3) (503 SE2d 316) (1998); see McGee v. State, 205 Ga. App. 722, 729 (13) (423 SE2d 666) (1992).

        See Anderson v. State, 200 Ga. App. 29, 30 (7) (406 SE2d 791) (1991).

        Hinton v. State, 236 Ga. App. 140, 142 (511 SE2d 547) (1999).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999).

        Cargill v. State, 255 Ga. 616, 621-622 (1) (340 SE2d 891) (1986); McClarity v. State, 234 Ga. App. 348, 351-352 (3) (a) (506 SE2d 392) (1998).

        Taylor v. State, 177 Ga. App. 624 (1) (340 SE2d 263) (1986).

       See Barksdale v. State, 161 Ga. App. 155, 157 (2) (291 SE2d 18) (1982).

       (Citation omitted.) Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986).

        Lamb v. State, 267 Ga. 41, 42 (1) (472 SE2d 683) (1996); see Curry v. State, 238 Ga. App. 511, 518 (3) (a) (519 SE2d 269) (1999).

        Teat, supra, 237 Ga. App. at 869 (2).

       Cf. Mackey v. State, 235 Ga. App. 209, 210 (2) (509 SE2d 68) (1998).


author: Eldridge, Judge.

text:
    A00A0719.
    WALTON v. THE STATE.
    (530 SE2d 531)
   Eldridge, Judge.

A McDuffie County jury found Mark Victor Walton guilty of armed robbery, kidnapping, and possession of a knife during the commission of a felony for acts he perpetrated against the night clerk of Fast Fare Convenience Store on Augusta Highway in Thomson. Walton contends on appeal that the trial court erred in denying his motion for continuance and that the evidence was insufficient to support the verdict. After reviewing the record, we reject these contentions and affirm.

1. Walton claims error in the trial court’s denial of his motion for continuance. We do not agree.

Defense counsel filed a motion for speedy trial on June 21, 1996. The case was placed on a September trial calendar. After the call of the trial calendar, defense counsel made a motion for continuance wherein she claimed to be unprepared to try the case. The motion was denied. The case was called two days later. Defense counsel announced ready, and a jury was struck. No further motion for continuance was made. The next day, prior to the introduction of evidence, defense counsel again announced ready, and the case proceeded to trial. No further motion for continuance was made. “The announcement of ready constitutes a waiver of [Walton’s] right to a continuance.” (Citations and punctuation omitted.) Mercier v. State, 203 Ga. App. 494, 495 (3) (417 SE2d 430) (1992). See also Vining v. State, 195 Ga. App. 816, 817 (2) (395 SE2d 17) (1990); Wise v. State, 146 Ga. App. 194 (1) (246 SE2d 6) (1978).

2. Walton challenges the sufficiency of the evidence because no witness could identify him as the perpetrator of the offenses.

In a light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence in this case — including a videotape from the store’s surveillance camera — showed that at approximately 3:19 a.m. on October 18, 1995, a maroon colored Honda Accord pulled up to Fast Fare. Although no one entered the store, the car pulled off shortly thereafter. Several minutes later, a black male entered Fast Fare and approached the clerk, who was making coffee. The man was wearing a white baseball cap with an Adidas logo and had a stocking over his face with sunglasses under the stocking; in addition, he was wearing a black hood with eye holes cut out. The man had white athletic tube socks over his hands and was carrying a steak knife. As he approached the clerk, he told her “Don’t you dare run. . . . Let’s go.” He forced her to the cash register and took the money from it; $105 was taken during the robbery. The clerk noticed that the man was barefoot; that his feet were scaly; and that his right foot had a scar running across the big toe. The man then forced the clerk to the cooler in the back of the store, told her to “get in,” and shut the cooler door. The man removed a box of Newport cigarettes from the store’s cigarette rack, exited Fast Fare, and began running down Augusta Highway toward Neal’s Produce Store. He got into a maroon Honda Accord that had been parked on a dirt turnoff by Neal’s Produce. The car had tinted side windows and a gold “Honda” tag on the front.

Approximately 20 minutes later, Walton was stopped driving a maroon Honda Accord with tinted windows and a gold “Honda” tag on the front. An eyewitness who saw the perpetrator run from Fast Fare to the maroon Honda positively identified the car as the one he saw on the scene. The witness also testified that he had seen the car parked numerous times in front of Walton’s residence, which was located five minutes from Fast Fare. Further, although it was in the predawn hours of a cold October day, Walton was dressed in shorts and a t-shirt; the jacket worn by the perpetrator and seen in the surveillance video was recovered from Walton’s residence. A white Adidas baseball cap, a pair of sunglasses, and a steak knife were recovered from the trunk of Walton’s Honda. Two white athletic tube socks were recovered from the backseat of the Honda. A box of Newport cigarettes and $105 were recovered from Walton’s person. A bare footprint was found in the dirt turnoff beside Neal’s Produce; the print measured 10.5 inches in length. A photograph of Walton’s right foot was put in evidence; Walton’s foot measured 10.5 inches in length. In addition, the photograph showed Walton’s right foot as scaly with a large scar running across the big toe.

When assessing the sufficiency of evidence to support a criminal conviction, this Court does not weigh or evaluate the evidence for itself, nor does it resolve conflicts concerning the evidence. Rather, it examines the evidence in its entirety in a light most favorable to the verdict to determine whether any rational trier of fact could have found the accused guilty beyond a reasonable doubt. When the evidence is entirely circumstantial, as it was in the State’s case against appellant, a conviction will be sustained only if the proven facts are both consistent with the hypothesis of guilt, and also exclude every other reasonable hypothesis except the guilt of the accused. However, it is not necessary for circumstantial evidence to exclude every conceivable hypothe- . sis of a defendant’s innocence in order to authorize a conviction; only reasonable hypotheses must be excluded. In cases based upon circumstantial evidence, questions concerning the exclusion of all reasonable hypotheses other than guilt are generally left to the jury, and when the evidence is sufficient to have enabled reasonable jurors to exclude all reasonable hypotheses except an accused’s guilt, that conclusion will not be disturbed on appeal unless it is unsupportable as a matter of law.

(Citations omitted; emphasis in original.) Barela v. State, 271 Ga. 169, 171-172 (517 SE2d 321) (1999). In this case, the jury heard Walton’s defenses of alibi and mistaken identity; they rejected those defenses. That was their prerogative. A review of the transcript in a light most favorable to the verdict shows sufficient evidence from which the jury could conclude beyond a reasonable doubt that it was, in fact, Walton who committed the offenses as charged. Harris v. State, 223 Ga. App. 661, 662 (478 SE2d 458) (1996). Accordingly, Walton’s challenge to the sufficiency of the evidence fails.

Judgment affirmed.

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

Decided March 8, 2000.

Lucy J. Bell, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Assistant District Attorney, for appellee.


text:
    A00A0796.
    KING v. THE STATE.
    (530 SE2d 744)
   Eldridge, Judge.

This is the second appearance of this case before us. See King v. State, 238 Ga. App. 575 (519 SE2d 500) (1999), wherein Stanley King appealed from his conviction for possession of 35 pounds of marijuana with intent to distribute. Previously, we decided the substantive issues raised by Stanley King on appeal but remanded for a hearing on King’s motion for new trial based upon a claim of ineffective assistance of counsel against Pete Whitlock, who at the time of King’s trial was a member of defense attorney Bruce Harvey’s firm. Subsequently, the trial court denied King’s motion in an order which found that Whitlock provided effective legal assistance at trial and that “[t]he defendant’s claim of ineffective assistance of counsel is meritless.” King appeals from this order. After reviewing the record, we do not find error in the trial court’s conclusions, and thus, we affirm.

1. King contends that Whitlock was ineffective for failing to object to the admission of King’s prior conviction for sale of methamphetámine. However, as noted by the trial court, the State’s introduction of the similar transaction evidence was vigorously contested prior to trial by Harvey. Whitlock’s subsequent failure to object to the evidence at trial was irrelevant, since evidence of King’s prior sale of drugs was properly admitted for the purposes offered by the State, i.e., to show intent and course of conduct in engaging in the business of distributing controlled substances. Chappell v. State, 215 Ga. App. 596, 597 (1) (451 SE2d 491) (1994).

2. We have reviewed King’s remaining contentions against Whit-lock and find them equally meritless. As concluded by the trial court: (a) King made the decision that “I ain’t testifying,” not Whitlock; (b) Whitlock and his co-counsel were “intimately aware and knowledgeable of the facts of the case,” had consulted with both King and Harvey about the case, and had tried the case earlier before the parole board; and (c) Whitlock’s tactical decision not to call witnesses and preserve the right to closing argument does not warrant a finding of ineffective assistance of counsel. See Brown v. State, 268 Ga. 354, 357 (4) (a) (490 SE2d 75) (1997).

Decided March 8, 2000.

William A. Jordan, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Further, this Court previously found that the denial of King’s motion for continuance based on the absence of Harvey was not error, because King’s motion for continuance failed to demonstrate that his attorney of choice, Harvey, would be available at the next term to try the case; in fact, the evidence showed that Harvey had not even been fully retained at the time of trial. King v. State, supra at 577. Herein, this evidentiary status has not changed. King lias failed to show that his attorney of choice, Harvey, would have been available to represent King at trial had the court continued the case to the next term pursuant to King’s motion. See OCGA § 17-8-24. Accordingly, King’s unfounded assertions cannot provide a basis for a finding that Whit-lock was ineffective with regard to the filing of a motion for continuance in this case.

“[A] trial court’s finding that appellant had been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. [Cit.]” Datz v. State, 210 Ga. App. 517, 519 (3) (d) (436 SE2d 506) (1993). As the trial court’s findings are supported by the record, we do not find error in the court’s conclusion that King received effective assistance of counsel.

Judgment affirmed.

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

       King’s reliance on our decision in King v. State, 230 Ga. App. 301 (496 SE2d 312) (1998) (unrelated to the instant case), is misplaced. There, we held that a 1984 conviction for sale of drugs did not demonstrate a defendant’s course of conduct or intent to use drugs 13 years later. Here, both the charged offense and the similar transaction evinced the intent to distribute narcotics.

       Harvey testified at the hearing that he had been “halfway retained”; that “my office undertook the representation of Mr. Bang”; and that he had made it clear to King that “he hired not Bruce Harvey, but Bruce Harvey’s firm.”


author: McMURRAY, Presiding Judge.

text:
    A00A0028.
    CAMPBELL v. MOODY et al.
    (529 SE2d 923)
   McMURRAY, Presiding Judge.

On October 9, 1997, following this Court’s decision in Dunlap v. Moody, 224 Ga. App. 38 (479 SE2d 456), appellee-petitioners Cleveland L. Moody and Alice Stapleton filed a petition for declaration of heirs in the Superior Court of Ware County as to the estate of Charles Etta Scott (“the decedent”) who died without a will, leaving a substantial estate. Though counsel for appellant-respondent Zella Campbell acknowledged service of the petition as attorney for the respondent Campbell, counsel styled Campbell’s answer thereto as “William C. Dunlap’s Response to Petition for Declaration of Heirs” and signed the answer as “Attorney for William C. Dunlap.” On April 26, 1999, respondent’s counsel moved to amend respondent Campbell’s answer seeking to substitute respondent Campbell’s name for that of William C. Dunlap. On May 3, 1999, respondent Campbell’s counsel filed motions seeking to open default and to add the respondent Campbell as a party. At the hearing on the case the following day, respondent Campbell’s counsel sought only a hearing on his motion to open default. Upon such hearing, the superior court executed its judgment, implicitly denying respondent’s motion to open default, finding that: (1) the “[respondent Campbell] did not timely file an answer[,]” and (2) citing Dunlap v. Moody, 224 Ga. App. 38, supra, “William C. Dunlap has no standing in this case.” The superior court further found that the petitioners had “compromised the dispute between themselves concerning the disposition of the assets of the estate of [the decedent] without the intervention of a Court” and declared petitioner Moody to be the decedent’s sole heir, ordering Moody to comply with the terms of the agreement reached with petitioner Stapleton. Respondent Campbell appeals contending that (1) the superior court erred in denying her motion to open default for failure to allow her an opportunity to be heard, arguing the case sub judice to be one ex delicto under OCGA § 9-11-55 (a), and (2) the superior court erred in ruling instanter that respondent Campbell was in default. Held:

1. Pretermitting respondent Campbell’s claim that the instant case is one ex delicto, the record reflects that the superior court afforded respondent such a hearing. Even if the superior court had not done so, the record shows not the payment of costs under oath, but an offer under oath to pay costs “[i]f the court determines that Respondent is in default. . . The payment of costs is a mandatory condition precedent to opening default. Davis v. Southern Exposition Mgmt. Co., 232 Ga. App. 773, 774 (1) (503 SE2d 649). Consequently, under the facts and circumstances of the case sub judice, conducting a hearing upon respondent Campbell’s motion to open default is here immaterial in that the superior court was without authority to open default with or without a hearing thereon. Moreover, where, as in the case sub judice, the caption of the disputed answer and the signature block of respondent Campbell’s counsel demonstrate that the answer is not filed on respondent Campbell’s behalf and there is nothing to the contrary in the body of the pleading or otherwise of record, it cannot reasonably be interpreted as being the answer of other than the named party. McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 681 (2) (504 SE2d 747). “ ‘Liberal construction of a pleading does not encompass the imputation or engrafting to a claim of a meaning not reasonably deductible or inferable from the explicit language of the pleading.’ [Cit.]” Id. Accordingly, the superior court properly denied the instant motion to open default.

Decided February 22, 2000 —

Reconsideration denied March 9,2000

E. Kontz Bennett, Jr., for appellant.

Gibson & Spivey, Douglas L. Gibson, Willis H. Blacknall III, for appellees.

2. In light of our disposition of Division 1, we need not address respondent’s remaining claim of error.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Respondent’s counsel did so upon the following colloquy with the superior court: [RESPONDENT CAMPBELL’S COUNSEL]: Now that’s, I’ve filed these other motions and if the court, we’ll I’m just asking the court to set it down and let us have a hearing on the issue of default before you put us in that status, that’s a real change in circumstances, a real prejudice on the you know.
      COURT: Well I understand, I’m going to look at it and see. I’ll issue, I’ll either issue one before the day’s over or I’ll have another hearing, we’ll have a hearing on the — [RESPONDENT CAMPBELL’S COUNSEL]: I just ask you to read my brief.

       On May 6,1999, four days before the superior court filed its judgment in the case sub judice, respondent filed a traverse of certificate, opposing a certificate filed by petitioners which sought default judgment.

       At the hearing on petitioners’ motion for declaration of heirs, respondent stated “we’re in default because of a misnomer in the [answer] that I filed before I got sick.” However, by his brief on appeal, respondent’s counsel, though indicating he continued to practice law while ill, argued “[he] was reduced to tears and/or anger, on numerous occasions, including November 7, 1997, when I filed the answer which is the subject of this litigation.” “[U]nsupported assertions of fact in appellate briefs will not be considered by this court on appeal. See, e.g., Davis v. Gamble, 151 Ga. App. 155 (259 SE2d 159) (1979).” Joyner v. Schiess, 236 Ga. App. 316, 318, n. 1 (512 SE2d 62).


text:
    A00A0639.
    HUGULEY v. THE STATE.
    (529 SE2d 915)
   Eldridge, Judge.

Meldamion Huguley was convicted by a jury on two counts of aggravated assault on February 11, 1999. He appeals from the trial court’s denial of his motion for new trial, which raised, inter alia, the issue of ineffective counsel. We find no error and, therefore, affirm.

The facts, viewed in a light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Paz v. State, 239 Ga. App. 278 (3) (521 SE2d 362) (1999), are as follows: On his eighteenth birthday, Huguley received $108,000, the proceeds of a settlement from a personal injury suit arising from a childhood injury. Huguley soon adopted the habit of carrying around several thousand dollars in cash. On June 23, 1998, Huguley began arguing with a friend on Tiffany Circle in DeKalb County in the presence of several other people, including children. The two exchanged gunfire, and Huguley shot his friend in the arm. Huguley then went into a house and emerged with a semiautomatic weapon, “the type of gun that. . . you clean the streets with.” However, the gun jammed on Huguley, and he left. Huguley was not charged in this incident because his friend refused to cooperate with police.

On the day of that shooting, however, Carlos Valcarcel was visiting his brother, Paul, who lived on Tiffany Circle. Carlos witnessed the shooting incident, and Paul called 911. Carlos gave a statement to police officers.

Approximately two weeks later, Huguley returned, and Paul called the police. A police officer responded and talked to Huguley and Paul separately. After the officer left, however, Paul overheard Huguley tell his friends that “I was wanted for a shooting; now, I’m going to be wanted for murder.” Paul became concerned and asked Carlos and his wife, Belinda, to come over. Later, as Carlos and Belinda were leaving Paul’s house that evening, Huguley drove up and parked his blue Cadillac in the middle of the road. A white car pulled in behind him. Huguley emerged from the Cadillac and approached the white car while holding a handgun. The Valcarcels were frightened and, with their car headlights turned off, slowly backed out of Paul’s driveway, hoping that they would not attract Huguley’s attention. Carlos drove down the street and attempted to leave the neighborhood but soon realized that Huguley was following him. Huguley attempted to pass the Valcarcels, but Carlos swerved and prevented Huguley from passing, because he feared that Huguley would shoot him and his wife. Huguley then shot his gun from the car. Carlos turned into a side street but was unaware that it had no exit; the street circled around in a “9” shape, meeting the entrance road. Huguley was familiar with the street layout and parked his car in the middle of the street to block the exit and prevent the Valcarcels from leaving. Huguley exited his car and hid behind a tree. When the Valcarcels drove toward him, Huguley “ambushed” them by jumping from behind the tree and shooting his gun several times as he approached the Valcarcels’ car. Carlos put the car in reverse, backed into a space between two houses, and turned off the headlights. Carlos walked around the back of the houses to see if it was safe before he finally left the area several minutes later. The Valcarcels testified that they were afraid that they were “going to be shot” and that they were “hysterical” and “in shock.” Carlos described the experience as “one of the worst nightmares you can ever get into, wondering if you’re going to get out of it alive or not.”

Huguley returned to Tiffany Circle and drove by Paul’s house three times, stopping in front of the house each time. In the meantime, Carlos called his brother, because he was afraid that Huguley was going to go back to that area. Carlos also called the police and then spotted Huguley’s Cadillac at a nearby gas station. Huguley stepped out of his car and changed his shirt behind a bush. Police officers stopped Huguley, and the Valcarcels identified him. When Huguley was arrested for shooting at the victims, he told police officers that he did not own a gun, but a nine millimeter pistol and magazine were discovered in Huguley’s car in a search incident to his arrest.

Huguley was convicted by a jury of two counts of aggravated assault on February 11, 1999. Huguley’s motion for new trial asserted the general grounds and a contention that he received ineffective assistance of counsel. The trial court denied the motion on September 23, 1999, expressly finding that Huguley was not denied effective assistance. Huguley appeals therefrom. Held:

1. In his first enumeration, Huguley claims that his trial counsel was ineffective for failing to request a charge on the allegedly lesser included offense of reckless conduct. He claims he was entitled to such charge because, in firing his weapon, he did not intend to injure the victims, but only to “warn” them. This enumeration lacks merit.

In order to establish that trial counsel’s performance was so defective as to require a new trial, [Huguley] must show that counsel’s performance was deficient and that the deficient performance so prejudiced [Huguley] that there is a reasonable likelihood that, absent counsel’s errors, the outcome of the trial would have been different. There is a strong presumption that counsel’s conduct fell within a broad range of reasonable professional conduct.

(Citation and punctuation omitted.) Allen v. State, 271 Ga. 502, 503 (2) (521 SE2d 190) (1999). “The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.” (Citations and punctuation omitted.) Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).

(a) Aggravated assault is a felony which occurs when a person utilizes a deadly weapon to commit “an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA §§ 16-5-20 (a) (2); 16-5-21 (a) (2). Under this statute, the focus is on

the victim’s state of mind, rather than the accused’s. . . . There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim. . . . It is the state of mind of the victim that determines whether an assault [under] OCGA § 16-5-20 (a) (2) has been committed.

(Citations omitted; emphasis supplied.) Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998). In other words, “[u]sing a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification.” (Citations and punctuation omitted; emphasis in original.) Riley v. State, 181 Ga. App. 667, 670 (353 SE2d 598) (1987). See also Dunagan v. State, supra at 593 (2) (b); Paz v. State, supra; Briard v. State, 188 Ga. App. 490, 493 (373 SE2d 239) (1988). “Where the evidence shows either the completed offense, as averred, or no offense, such evidence will not support a verdict for one of the lesser included offenses.” (Citation and punctuation omitted.) Paz v. State, supra at 279 (2).

In contrast,

[r]eckless conduct occurs when a person causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. OCGA § 16-5-60 (b) . The distinguishing difference between a charge of aggravated assault and one of reckless conduct is that in a case of aggravated assault, [placing another in fear of receiving a violent injury] is the intended consequence of the defendant’s act, whereas with reckless conduct, the [victim’s apprehension] is a product of the defendant’s criminal negligence. Compare Shaw v. State, 238 Ga. App. 757 (519 SE2d 486) (1999) [(physical precedent only)].

(Emphasis in original.) Paz v. State, supra at 278 (2). See also Briard v. State, supra at 493; Riley v. State, supra at 670; Bowers v. State, 177 Ga. App. 36, 37-38 (338 SE2d 457) (1985).

(b) The basic facts of this case are not in dispute. In a custodial statement and again at trial, Huguley admitted that he chased the victims in his car, fired his gun during the chase, blocked the exit of the subdivision so the victims could not escape, jumped out from behind a tree, approached the victim’s vehicle, and intentionally fired three to five “warning shots.” This begs the question — what was he “warning” the victims about, if not the very real possibility that Huguley’s next shots would violently injure or kill them?

In fact, the only dispute is whether Huguley directed these “warning shots” at them, as the Valcarcels contend, or into the air, as Huguley contends. However, this is a nonissue, because, either way, Huguley’s intent was to put the Valcarcels in fear of an immediate bodily injury. See Briard v. State, supra at 493. Thus, a charge on reckless conduct was not .warranted. Id.

The evidence, including Huguley’s own admissions, clearly established that Huguley repeatedly fired his weapon with the intention of scaring the victims, even if he did not intend to hit them. As such, the evidence established aggravated assault under OCGA § 16-5-21 (a) (2), and there was no error in the failure to give an instruction on reckless conduct. Shaw v. State, supra at 759. Since Huguley was not entitled to a charge on reckless conduct, his trial counsel cannot be deemed ineffective for failing to request such charge. There was no error.

2. In his second enumeration, Huguley complains about the adequacy of the trial court’s recharge to the jury during deliberations. The recharge was in response to the following jury inquiries: “May we have a written definition of assault and aggravated assault?” and “Does a weapon need to be aimed at a person to constitute aggravated assault?” The trial court sent out one written message to address both issues. The message included the statutory definitions of assault and aggravated assault under OCGA §§ 16-5-20 and 16-5-21, as well as the following:

To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show, beyond a reasonable doubt, an intention to commit injury on another person, coupled with the apparent ability to commit that injury, or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.

Decided February 22, 2000 —

Reconsideration denied March 9,2000.

Peter M. Zeliff, for appellant.

J. Tom Morgan, District Attorney, Maria Murcier-Ashley, Melissa L. Himes, Assistant District Attorneys, for appellee.

This was a reiteration of the instructions previously given the jury and is a correct statement of the law. See Head v. State, 233 Ga. App. 655, 656 (2) (504 SE2d 499) (1998). We find that it adequately addressed both of the jury’s issues. There was no error.

Judgment affirmed.

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

       Although Huguley claimed upon arrest and at trial that he shot at the Valcarcels because he thought they were going to rob him, the jury obviously rejected this defense. This was understandable, since no evidence was presented to support self-defense. When the shots were fired, the Valcarcels were unarmed and driving away from Huguley in an attempt to escape his unprovoked attack.


text:
    A99A1631.
    ALMOND v. THE STATE.
    (530 SE2d 750)
   Miller, Judge.

Terri Almond was charged with possession of cocaine based on evidence an officer acquired during a traffic stop. She moved to suppress this evidence, arguing that at the time the officer obtained the evidence he had, without reasonable grounds, improperly expanded the scope of the stop beyond its original purpose. Finding that Almond was not illegally detained, the trial court denied the motion and in a bench trial convicted her based on the evidence. Because the officer had an articulable suspicion to expand or extend the scope of inquiry and detention, we affirm.

1. Almond first contends that because the officer lacked an articulable suspicion to continue the detention, the court should have granted her motion to suppress. Where the evidence on a motion to suppress is uncontroverted and credibility is not an issue, we review the evidence and the application of the law thereto de novo, construing all evidence in favor of the trial court’s judgment.

The officer was the only witness to testify. He observed that the vehicle Almond was driving was improperly stopped in the roadway with a man leaning into her window and a woman seated nearby. The officer recognized the man by name as someone reported to him by concerned citizens as selling cocaine at that corner. The officer motioned for her to move her vehicle forward, and she shouted back that she was talking to her girlfriend. After she pulled forward, he turned on his blue flashing lights and detained her to investigate the improper stopping as well as her apparent loitering in a known open air drug market.

When asked why she was stopped in the roadway, Almond explained that her girlfriend had flagged her down and that she did not know where she needed to stop because there was no driveway to pull into. In fact, there was a driveway 20 feet from where she was stopped. He inquired whether she was familiar with the area, and she responded that she knew a local road, but since the road was not adjacent to any of the roads on which the officer and she were located, the officer considered this response “particularly curious” and “completely out of context with the conversation.” He asked her where the girlfriend lived, and she responded that she did not know and that she only knew her from attending some substance abuse treatment meetings together. The officer checked her license and registration, which showed no problems. He began to write her a citation for the improper stopping.

Suspecting that Almond might be in the area to purchase illegal drugs, the officer changed the focus of the detention and investigation to determining whether she possessed drugs. He based this suspicion on (a) the appearance that she had hastily pulled up to the intersection and stopped illegally, (b) her inconsistent responses to his questions, (c) his having previously made three to five drug arrests in the vicinity, (d) previous reports from concerned citizens (including some members of the man’s family) that the man leaning into Almond’s car window sold drugs at that corner, and (e) Almond’s nervousness. He directed her to step out of her vehicle and asked if she had anything in her vehicle that he should know about. She replied at first that she did not know and then said no. He asked for consent to search her vehicle, which she gave. After further inquiry but before any consensual search began, she confessed to having a crack pipe and produced it to the officer. The search produced a single rock of crack cocaine.

Almond does not contest the validity of the initial traffic stop to investigate the improper stopping of her vehicle. Rather, she contends that after having satisfied his inquiry into this matter, the officer, without an articulable suspicion, expanded the scope of the detention and investigation to determine whether she had illegal drugs.

Migliore v. State of Ga. recently reiterated the limits on investigatory traffic stops:

While a reasonable investigative stop does not offend against the Fourth Amendment, a Terry stop is subject to strict boundaries regarding duration, intent, and scope. Such a stop has been described by this court as a brief stop, limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

The United States Supreme Court has emphasized that “[t]he scope of the detention must be carefully tailored to its underlying justification.”

If during an investigatory stop the officer, without an articulable suspicion, proceeds to ask questions unrelated to the reason for the stop, the officer goes beyond the permissible scope of the investigation, and the further detention of the car driver exceeds that permitted by Terry v. Ohio and its progeny. To give deterrent effect to the exclusionary rule, a court must suppress evidence obtained through an excessive detention and investigation.

Although the officer did not observe a hand-to-hand drug sale, he redirected his investigation from inquiring into the circumstances of the traffic violation to inquiring into Almond’s possible possession or attempted purchase of illegal drugs. The expanded inquiry would constitute an illegal detention if that expansion was not supported by an articulable suspicion.

The reasons the officer gave for expanding the inquiry suffice to establish a reasonable, articulable suspicion of drug possession. Initially alerted by the appearance that Almond had hastily pulled over near an intersection in a high drug traffic area, the officer was mystified by Almond’s out-of-context and inconsistent responses to his questions about her actions. Combined with “concerned citizen” reports that the man leaning in her window sold drugs at that very corner, plus Almond’s nervousness, these circumstances constituted facts supporting a reasonable, articulable suspicion that Almond may have been purchasing illegal drugs. Although each of these factors alone may have been insufficient, the convergence of them at one time sufficed.*

Decided March 9, 2000.

John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.

2. Almond contends that the officer coerced her consent to search. The record does not support this conclusion, as the State presented evidence to meet its burden of proving that the consent was freely and voluntarily given. This consent was not withdrawn. Moreover, before the officer conducted the search, Almond volunteered the crack pipe to the officer, thus giving him probable cause to conduct a warrantless search even without consent.

The trial court did not err in denying the motion to suppress.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       240 Ga. App. 783 (525 SE2d 166) (1999).

       (Citation and punctuation omitted.) Id. at 784. See State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

        Florida v. Royer, 460 U. S. 491, 500 (II) (103 SC 1319, 75 LE2d 229) (1983) (plurality opinion); see Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Smith, supra, 216 Ga. App. at 455 (2); see Migliore, supra, 240 Ga. App. at 785; Blair, supra, 239 Ga. App. at 341; United States v. Fernandez, 18 F3d 874, 878 (10th Cir. 1994).

        Smith, supra, 216 Ga. App. at 455 (2); see Blair, supra, 239 Ga. App. at 342; see generally OCGA § 17-5-30 (a).

        Smith, supra, 216 Ga. App. at 455 (2).

        State v. Robinson, 239 Ga. App. 349, 350 (521 SE2d 377) (1999) (speaking with someone in high drug area alone is insufficient); State v. Kwiatkowski, 238 Ga. App. 390, 393 (519 SE2d 43) (1999) (stopping in drug area and nervousness are insufficient); Parker v. State, 233 Ga. App. 616, 618 (1) (504 SE2d 774) (1998) (nervousness alone is insufficient).

       See Pitts v. State, 221 Ga. App. 309, 311 (2) (471 SE2d 270) (1996) (combination of unusual anxiousness and conflicting accounts of travel itinerary sufficed).

       See Raulerson v. State, 268 Ga. 623, 625 (2) (a) (491 SE2d 791) (1997).

       See Underwood v. State, 218 Ga. App. 530 (462 SE2d 434) (1995).

       Cf. Dupree v. State, 232 Ga. App. 573, 574 (502 SE2d 511) (1998) (probable cause authorizes a warrantless search).