author: Eldridge, Judge.

text:
    A02A1602.
    BENTON v. THE STATE.
    (568 SE2d 770)
   Eldridge, Judge.

A Clarke County jury found Leo Benton guilty of stalking his daughter. He appeals, claiming that the evidence was insufficient to support the verdict; that the trial court failed to limit the jury’s consideration of evidence of prior difficulties between the parties; and that the trial court erred by including as a condition of his probation that he have no contact with his granddaughter, the victim’s daughter. Finding no merit to these claims of error, we affirm.

1. Benton first challenges the sufficiency of the evidence introduced against him.

As an appellate court, we do not weigh the evidence, judge the credibility of witnesses or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Instead, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

The relevant elements of stalking are: following, placing under surveillance, or contacting another person without the consent of the other person for the purpose of harassing and intimidating him or her. The term “harassing and intimidating” means “a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear [of death or bodily harm]” to herself or an immediate family member and serves no legitimate purpose. Overt threats of bodily harm are not required.

In that regard, the victim testified at trial that on April 16, 2001, Benton was waiting in his vehicle outside the victim’s place of employment, the First American Bank in Watkinsville. When she left the bank, she got into her vehicle and drove to a local shop; Benton followed her. From there, she drove across town to a bridal shower at the residence of her sister; Benton followed her. When the victim went inside the residence, Benton proceeded to drive up and down the road in front of the residence. The police were called, and Benton was detained for investigation. Benton admitted that he had been following the victim and claimed it was the only method by which he could locate his granddaughter, the victim’s daughter. The police interviewed the victim, which resulted in Benton’s arrest for misdemeanor stalking.

The victim then testified about a series of incidents involving Benton and herself beginning in 1997, wherein Benton repeatedly followed her, appeared at her home, and telephoned her at home and at work. During these incidents, Benton verbally abused the victim and threatened her; he asserted an absolute right to see the victim’s daughter, his granddaughter. The victim testified that she felt threatened by Benton’s conduct and was afraid for her daughter and for herself. She further testified that she repeatedly asked Benton to leave her alone.

Thereafter, the State called several witnesses to corroborate these harassing incidents. Taking the stand was a police officer who was called to the victim’s home in 1998; he testified that Benton was outside the home, “agitated” and “mad at his daughter.” He called the victim “a slut and a whore.” The victim was “upset; she was crying,” and she asked the officer to issue a “no trespass” warning to Benton. Three co-workers were called to the stand and testified as to Benton’s various harassments of the victim at work and how such conduct caused the victim to be afraid for the safety of her daughter and herself. In addition, the State introduced a letter Benton wrote to his daughter in 1999 which threatened, ‘You can expect me to appear outside of your door in the next few days to see [the victim’s daughter] .” The letter informed the victim that “we’ll just have to do this redneck style.” The victim’s sister was also called and testified that, on the incident date, Benton drove in front of the bridal shower residence eight or nine times.

Viewed in a light most favorable to the verdict, we find this evidence sufficient for a rational trier of fact to have found Benton guilty of misdemeanor stalking beyond a reasonable doubt. While Benton claims the evidence shows that the purpose of his surveillance was to locate his granddaughter and not to harass and intimidate the victim as required by the stalking statute, the intention with which an act is done is peculiarly for the jury. Given that Benton engaged for several years in a consistent pattern of abuse and harassment against his daughter, a rational trier of fact could find that his surveillance of her on the incident date evidenced yet another abusive, harassing act.

2. Next, in two enumerations, Benton claims error in the trial court’s failure to limit evidence of prior difficulties between the parties.

(a) Benton takes issue with the introduction of 1997 and 1998 prior difficulties introduced to establish an abusive course of conduct which, in turn, demonstrated that the 2001 indicted act was committed for “the purpose of harassment and intimidation,” an essential element of stalking. Benton claims the trial court should have instructed the jury that “all of the acts of the defendant which are found by them to constitute the elements of the offense of stalking must be shown by the evidence to have been committed by him within two years prior to the prosecution of the defendant for this offense.” This contention is meritless.

Benton is apparently confused between the requisite intent which must exist at the timé of an indicted act and the broad spectrum of evidence which may be introduced to prove that the indicted act was committed with such requisite intent. Evidence of prior difficulties is always admissible to show bent of mind, intent, and course of conduct between the accused and the victim. Tbe statute of limitation as to an indicted offense certainly places no time restrictions on the introduction of prior difficulties when such evidence goes to show the intent with which the indicted act was committed.

(b) Benton also contends the trial court erred by not instructing the jury on the purpose for prior difficulties evidence. However, the only objection to this evidence was a relevancy objection, and in response thereto, the trial court held it relevant for whatever weight and credit the jury wished to give it. There was no request for a limiting instruction as to the purpose of such evidence. “Because [Benton] did not request a limiting instruction on the prior difficulties evidence, we will not reverse the trial court for failing to give one sua sponte.” Moreover, the trial court twice, sua sponte, instructed the jury that Benton was on trial only for stalking; “for that offense only”; “and that’s the only issue you have been impaneled to decide.” Under such circumstances, and in the absence of any request for a limiting instruction, we find no error.

3. Finally, Benton contends the trial court erred by including as a condition of probation that he have no contact with the victim’s daughter during the probationary period; he claims that such condition was an abuse of the trial court’s discretion because “the evidence failed to show any basis whatsoever for the victim to have any concern for the safety of her daughter[ ] other than the victim’s Tear of the unknown’ which was based on her creative imagination rather than fact.” We have reviewed the evidence of record as outlined in Division 1, supra. We find ample basis for the victim’s concern and the jury’s verdict. Accordingly, we find no abuse of the trial court’s discretion in restraining Benton from contacting the victim and her family, including her daughter, during the probationary period as authorized by OCGA § 16-5-90 (d).

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

Decided July 2, 2002

Reconsideration denied July 19, 2002

Leo E. Benton, Jr., pro se.

Ralph W. Powell, Jr., Solicitor-General, Kevin D. Gonzalez, Assistant Solicitor-General, for appellee.

        Maxwell v. State, 250 Ga. App. 628-629 (1) (552 SE2d 870) (2001).

       OCGA § 16-5-90 (a).

       Id.

        Fly v. State, 229 Ga. App. 374, 376 (1) (494 SE2d 95) (1997).

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

        Haney v. State, 234 Ga. App. 214, 216 (1) (507 SE2d 18) (1998).

        Vasser v. State, 273 Ga. 747, 750 (3) (d) (545 SE2d 906) (2001).

        Lee v. State, 270 Ga. 626, 628 (4) (513 SE2d 225) (1999).

       We also find no abuse of the trial court’s discretion in imposing family counseling as a condition of Benton’s probation; the facts of this case clearly warrant it, and such treatment is authorized under OCGA § 16-5-90 (d). “A trial court certainly has broad discretion to determine the terms and conditions of probation. In the absence of express authority to the contrary, we see no logical reason why any reasonable condition imposed for probation or suspension of a sentence by a trial court should not be approved. [Cits.]” (Punctuation and emphasis omitted.) Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0332.
    HEAD v. THE STATE.
    (569 SE2d 548)
   Mikell, Judge.

Ervin Head appeals his conviction of armed robbery and hijacking a motor vehicle. Finding no error, we affirm.

Head was indicted and tried jointly with Charles Baskin. Evidence presented at trial shows that two armed, masked men ran toward the victim, Johane Eugene Blalock, as he was standing outside his parked vehicle. One man carried a 9 millimeter handgun, and the other had an AK-47 assault rifle. The assailant armed with the handgun ordered the victim to lie on the ground and demanded his keys. The assailants then took the victim’s money ($80), ripped his gold chain from his neck, and drove off in his car, a gray Buick LeSabre. The victim called the police, who apprehended Baskin and Head shortly before midnight in the parking lot of a nearby school. The defendants were in the process of stripping the rims from the wheels of the victim’s car. Two ski masks and a 9 millimeter handgun were found on the ground within arm’s reach of both men. Eighty dollars and a gold chain were found in Baskin’s pocket. The victim identified Baskin as the assailant with the handgun but was unable to identify the second attacker.

Head denied any involvement in the armed robbery and carjacking. Head testified that he wanted to purchase a certain type of rims for his car and implied that Baskin offered to procure them. Head claimed that on the night the crimes occurred, he was at home playing cards with two friends, Demetrius Barnes and Robert Brown. According to Head, he received a page from Baskin, who said he had the type of rims Head wanted. Head agreed to meet Baskin at Price Middle School. Head testified that Brown left, and Head and Barnes drove to the school. Barnes testified that he parked around the corner while Head met with Baskin. Head admitted that he began taking the rims off the victim’s car. According to Head, Baskin stated that he stole the vehicle and that the handgun belonged to him. However, the trial court sustained the state’s hearsay objection to Head’s testimony concerning the gun.

Both of Head’s alibi witnesses, Brown and Barnes, testified that they were with Head that evening in Head’s apartment until he received the page from Baskin.

Baskin’s former girlfriend, 13-year-old Sherika Hudson, who lived in the same apartment complex as Baskin, testified that she was standing on her balcony around midnight and saw Head in the victim’s car in front of Baskin’s apartment. Hudson testified that she also saw Baskin enter the vehicle, after having gone upstairs to tell his mother goodbye. During the hearing on the motion for new trial, however, Hudson testified that she had fabricated her trial testimony.

Baskin’s mother, Victoria Baskin, testified that on the night in question, Baskin came home around midnight and told her that he was going out with Head. Mrs. Baskin walked out onto her balcony, looked down, and saw Head standing beside a gray car. She also saw Barnes sitting in the car, and she watched her son enter the vehicle.

1. In his first enumeration of error, Head asserts that the trial court abused its discretion in denying his motion for trial severance. We disagree.

The trial court must consider three factors in determining whether to grant a motion to sever:

(1) whether the number of defendants will create confusion as to the evidence and the law applicable to each, (2) whether there is a danger that evidence admissible against one defendant will be considered against the other despite the court’s instructions, or whether the strength of the evidence against one defendant will engulf the other with a “spillover” effect, and (3) whether the defendants’ defenses are antagonistic to each other or to each other’s rights. The burden is on the defendant requesting a severance of trials to make a clear showing of prejudice and [a consequent] denial of due process.

In the case at bar, Head contends that the second and third factors mandated severance.

(a) Head contends that the denial of his motion to sever prejudiced him because he and Baskin presented mutually exclusive, antagonistic defenses, and that because Baskin did not testify, Head was unable to cross-examine him. “In order to have his motion for severance granted, however, the defendant must show not only that his co-defendant will probably not testify at trial where he could cross examine him or elicit the testimony desired, but also that the testimony of the co-defendant would tend to exculpate the defendant.” There is nothing in the record to show that, if Head had been granted a separate trial, Baskin would have waived his Fifth Amendment rights and been willing to testify or that his testimony would have been exculpatory. Absent this offer of proof, the trial court did not abuse its discretion in denying Head’s motion to sever.

(b) Head argues that he should have been granted a severance because Baskin called two surprise witnesses, Hudson and Mrs. Baskin, who gave the only direct evidence that Head drove or rode in the stolen vehicle shortly after the crimes were committed. Head does not contend that the state or Baskin’s counsel violated a duty to disclose these witnesses prior to trial pursuant to OCGA § 17-16-3. Rather, Head maintains that he was denied a benefit to which he was entitled when he opted into the reciprocal discovery statute, and the only method of assuring Head received that benefit was severance. Head, however, failed to raise this argument at trial and may not do so for the first time on appeal.

(c) Head next argues that he was prejudiced by his inability to comment upon Baskin’s failure to testify at trial. In this regard, Head complains that he was unable to refute comments made by Baskin’s counsel during closing argument. Baskin’s attorney argued that Baskin did not testify because “he’s a juvenile, and I’m not going to let him be sucked up anymore.” Baskin’s defense theory was that Head and Barnes committed the crimes, that Barnes had possessed the AK-47 assault rifle, and that Baskin only helped strip the rims from the wheels.

In support of his argument that the trial court should have granted a severance due to his inability to comment upon Baskin’s silence, Head relies on the following dicta found in De Luna v. United States: “If an attorney’s duty to his client should require him to draw the jury’s attention to the possible inference of guilt from a co-defendant’s silence, the trial judge’s duty is to order that the defendants be tried separately.” However, not only is De Luna nonbinding federal authority, its rationale has been rejected by virtually every other circuit that has considered it. In rejecting De Luna, the Tenth Circuit noted:

Should a defendant seek to lay blame upon a nontestifying codefendant, he can always take the stand and testily against him. Such testimony would be entitled to great probative value; a jury’s decision resting upon this evidence would, in our view, rise to a fairer level than one influenced by self-serving implications drawn by an attorney regarding a codefendant’s silence.

We find this reasoning persuasive. Consequently, we decline to follow De Luna.

(d) Head further argues that he was likely convicted as a result of the “spillover” of the greater volume of evidence against Baskin. In this regard, Head relies primarily on Price v. State, in which “the evidence against one co-defendant was deemed to be so overwhelming and the evidence against the other so slight that the ‘spillover’ effect of the evidence against the former was viewed as an important factor in the latter’s conviction.” Head claims that the evidence against him was slight, entirely circumstantial, and far less than the substantial evidence adduced against Baskin. He asserts that the evidence shows merely that he was removing the rims from the stolen vehicle almost two hours after the carjacking. That is incorrect. Baskin’s mother positively identified Head as an occupant of the stolen vehicle shortly after the time the crimes were committed.

It is true that the quantum of evidence against Baskin was greater, in that the victim identified him and stolen items were found in his pocket. However, the fact that the evidence as to one of two co-defendants is stronger does not demand a finding that the denial of a severance motion is an abuse of discretion, where there is evidence showing that the defendants acted in concert. The testimony of Mrs. Baskin provided such evidence. We conclude that the trial court did not abuse its discretion in refusing to sever the trials.

2. Head also argues that he is entitled to a new trial because Hudson’s trial testimony was pure fabrication. At the hearing on Head’s motion for new trial, Hudson testified that she had not been standing on her balcony and did not witness Head or Baskin in the stolen vehicle on the night the crimes occurred. Hudson testified that she “was only told what had happened.” Hudson refused to identify the person who supplied her the information.

That a material witness for the State, who at the trial gave direct evidence tending strongly to show the defendant’s guilt, has since the trial made statements even under oath that [her] former testimony was false, is not cause for a new trial. Declarations made after the trial are entitled to much less regard than sworn testimony delivered at the trial. This difference in value must be recognized, so long as there has been no conviction of perjury. Provision is made for setting aside verdicts resting on perjury, but there must first be a conviction. The only exception to the rule against setting aside a verdict without proof of a material witness’ conviction for perjury, is where there can be no doubt of any kind that the State’s witness’ testimony in every material part is purest fabrication. A recantation impeaches the witness’ prior testimony. However, it is not the kind of evidence that proves the witness’ previous testimony was the purest fabrication.

Head’s reliance on Fugitt v. State is misplaced, as that case is inapposite. In the case at bar, no evidence was introduced to show that Hudson’s trial testimony was “purest fabrication.” In Fugitt, the defendant offered extrinsic proof that the witness’ testimony was physically impossible, as he was incarcerated at the time the crime took place. Thus, the trial court was able to determine the truth without having to determine the witness’ credibility. Accordingly, this enumeration is meritless.

3. In his second enumeration of error, Head claims that the trial court committed harmful, constitutional error when it sustained the state’s objection to Head’s testimony that Baskin admitted that the gun found at the scene belonged to him. Head contends that the trial court’s ruling denied him the “opportunity to present a complete defense” because he could not otherwise disprove the state’s theory that he constructively possessed the weapon.

We agree with Head’s contention that the statement was admissible as part of the res gestae under OCGA § 24-3-3. However, we cannot conclude that the error is either harmful or of constitutional magnitude. Head testified at length and without objection that Baskin claimed that he stole the victim’s vehicle and that Head was later informed that the car had been hijacked. In addition, Head testified on direct and cross-examination that he did not own the 9 millimeter weapon. We conclude that the erroneous exclusion of the testimony at issue did not render his trial fundamentally unfair. Accordingly, in order to establish reversible error, Head must show that had the trial court not sustained the state’s objection, a reasonable probability existed that the result of the trial would have been different. Again, given Head’s testimony concerning Baskin’s admission to stealing the car as well as denying any connection to the gun, we hold that the error was harmless.

4. Head next contends that the trial court committed harmful constitutional error by refusing to permit him to cross-examine the victim concerning his pending charges of cocaine possession with intent to distribute, attempting to elude, carrying a concealed weapon, and felony obstruction of an officer.

Head correctly asserts that the Confrontation Clause of the Sixth Amendment guarantees a defendant the right to cross-examine an adverse witness concerning criminal charges that are pending against the witness. A “defendant is entitled to attack the credibility of the witness by showing that the pending charges reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State.”

At issue in the case sub judice is whether Head waived this right. On the morning of trial, the state presented a motion in limine, seeking to exclude any evidence concerning the victim’s alleged criminal activity. Initially, the court stated that unless the defense could produce a certified copy of a conviction involving moral turpitude, questions regarding whether the victim had been arrested or indicted would not be proper impeachment. Head’s counsel then stated that he believed that the victim was under indictment. He argued that he should be permitted to explore whether the pending indictment “affects his motive and perhaps bias in how he testifies, that is, to curry or gain . . . favorable treatment from the prosecution’s office.” Baskin’s counsel offered to provide case law in support of the defense’s position “by lunchtime.” The court indicated that it would “be glad to take a look at it. Between now and then, don’t go into a discussion of whether or not Mr. Blalock may be under indictment.” Counsel for Head then stated: ‘Your Honor, one case does come to mind; the facts are very different, but the rule of the court was upheld. I believe it’s . . . Alaska versus Davis or Davis versus Alaska.” The court reiterated that “if you can find the case that you are talking about, I’ll be glad to take a look at it.”

No case, including Davis v. Alaska, was ever produced for the court’s consideration, after lunch or otherwise, even though the victim was not cross-examined until the following day. In fact, during cross-examination of the next witness, a City of Atlanta police officer, Head’s counsel asked whether the officer knew the victim prior to the night in question. The state objected to the question as irrelevant. Counsel argued it was relevant to show motive and bias. The court permitted the question, and counsel elicited the following testimony:

Q: Did you have a relationship with Mr. Blalock either professionally or socially prior to that evening?
A: No, I didn’t, prior to this evening.
Q: Have you had a relationship with him either professionally or socially subsequent to that?
A: Yes I have. . . .
Q: And was that either professional or social?
A: Professional.
Q: So you’ve had a professional relationship; is that what you are saying?
A: Yes.

Head later recalled the victim to the witness stand but failed to seek the court’s permission to cross-examine him regarding the nature of his “professional relationship” with the police.

Generally, “[t]he conditional grant of a motion in limine in a preliminary ruling is not a final ruling on the admissibility of evidence.” In this instance, the trial court left open the possibility of ruling in favor of the defense. By failing to produce supporting authority or raise the issue again during trial, Head waived the right to cross-examine the victim regarding the fact that he was under indictment.

Decided June 19, 2002

Reconsideration denied July 22, 2002

Gary W. Washington, for appellant.

Paul L. Howard, Jr., District Attorney, Anne E. Green, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

In addition, Head never made a proffer to the trial court of what evidence he would have submitted regarding the victim’s history. The indictment was not tendered until the hearing on the motion for new trial. At that time, the court queried: “Don’t you think the proper time to have done that would have been during the trial as opposed to now after the verdict?” We agree. The argument is waived.

5. Finally, Head challenges the sufficiency of the circumstantial evidence to support his conviction. It was for the jury to determine the weight of the evidence and the credibility of the state’s witnesses. On appeal we view the evidence in the light most favorable to support the jury’s verdict. The evidence outlined above, both direct and circumstantial, was sufficient for the jury to find beyond a reasonable doubt that Head either directly committed the hijacking and the armed robbery or was a party to those crimes.

Judgment affirmed.

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

       Head was sentenced to serve 20 years on each count, to run concurrently. Head was also convicted of aggravated assault, but the trial court vacated that conviction after determining that it merged with the armed robbery as a matter of fact.

       Barnes owned a one-half interest in Head’s car.

       (Citations omitted.) Stephens v. State, 245 Ga. App. 823, 827 (8) (538 SE2d 882) (2000).

        Cain v. State, 235 Ga. 128, 130 (218 SE2d 856) (1975).

        Myrick v. State, 155 Ga. App. 496 (1) (271 SE2d 637) (1980).

        Graham v. State, 171 Ga. App. 242, 245 (2) (319 SE2d 484) (1984).

        Clark v. State, 206 Ga. App. 10, 12 (2) (424 SE2d 310) (1992).

       308 F2d 140 (5th Cir. 1962).

       Id. at 141.

       See United States v. McClure, 734 F2d 484, 491 (10th Cir. 1984); United States v. McKinney, 379 F2d 259, 265 (6th Cir. 1967); United States v. Pirro, 76 FSupp.2d 478, 487 (S.D. N.Y. 1999); United States v. Marquez, 319 FSupp. 1016, 1023 (S.D.N.Y. 1970), aff’d, 449 F2d 89 (2nd Cir. 1971), cert. denied, Marquez v. United States, 405 U. S. 963 (92 SC 1173, 31 LE2d 239) (1972).

        McClure, supra, 734 F2d at 491.

       155 Ga. App. 844 (273 SE2d 225) (1980).

        Saleem v. State, 169 Ga. App. 952, 954 (2) (315 SE2d 487) (1984).

        Whitehead v. State, 237 Ga. App. 551, 552 (2) (515 SE2d 866) (1999).

       (Citations and punctuation omitted.) Johnson v. State, 236 Ga. App. 764, 765 (1) (513 SE2d 291) (1999).

       251 Ga. 451, 452-453 (1) (307 SE2d 471) (1983).

        Smith v. State, 263 Ga. 782, 785 (2) (b) (439 SE2d 483) (1994).

       See Roberts v. State, 208 Ga. App. 64, 66 (3) (430 SE2d 175) (1993).

        London v. State, 274 Ga. 91, 94 (4) (c) (549 SE2d 394) (2001).

        Davis v. Alaska, 415 U. S. 308, 316-317 (94 SC 1105, 39 LE2d 347) (1974); Hines v. State, 249 Ga. 257, 259-260 (290 SE2d 911) (1982).

        Nealy v. State, 239 Ga. App. 651, 656 (10) (522 SE2d 34) (1999).

       See, e.g., Syfrett v. State, 210 Ga. App. 185, 187 (4) (435 SE2d 470) (1993) (“an arrest or a trial and acqnittal[ ] are not legal methods of impeachment”).

       Supra, 415 U. S. 308.

        Ingram v. State, 253 Ga. 622, 632 (4) (323 SE2d 801) (1984). See also Davis v. State, 266 Ga. 801, 802 (3) (471 SE2d 191) (1996).

        Thomas v. State, 224 Ga. App. 816, 817 (1) (482 SE2d 472) (1997).

        Ellis v. State, 211 Ga. App. 605, 608 (1) (440 SE2d 235) (1994).

       OCGA § 16-2-20; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: POPE, Presiding Judge.

text:
    A02A0775.
    TODD v. CASCIANO.
    (569 SE2d 566)
   POPE, Presiding Judge.

We granted Joan Todd’s application to appeal an order of the Juvenile Court of Gwinnett County changing physical custody of the parties’ five children to the natural father.

After ten years of marriage, Todd (age forty-two at the time of the hearing) and Peter Casciano (age thirty-nine at the time of the hearing) were divorced on June 14, 1995, shortly after their fifth child was born, and the divorce decree awarded the parents joint custody of their children. The parties agreed that Todd would have primary physical custody. Based on a court order dated January 2000, the children resided with Todd nine days out of every fourteen-day period and with Casciano for the rest. On August 24, 2000, Casciano filed a petition to change custody and sought an order of contempt. In Count 1, he claimed that circumstances had changed that had adversely affected the children in that Todd “[was] living in a meretricious relationship in an open manner with a member of the opposite sex in the presence of the minor children.” In Count 2, he alleged that Todd should be held in contempt for violating a provision of the divorce decree, which provided that “[n] either party shall cohabitate [sic] with a person of the opposite sex, not a relative, in the presence of the children.”

After hearing the evidence, the juvenile court ordered that the parties retain joint legal custody, but provided that the father have primary physical custody and that the mother have fairly typical visitation rights. The court based its decision on three reasons concerning Todd: “(1) [that she was] continually cohabiting with boyfriends with the children; (2) [that she provided a] chaotic and unstable home environment that is psychologically and morally damaging to the children; and (3) [because of] her behavior toward the children, including hitting them, driving them home at 4-5 A.M.” The court ordered Todd to make child support payments to Casciano and awarded him $6,000 of attorney fees. At the time of trial, the children were approximately twelve, eleven, nine, eight, and six years old; the two oldest and two youngest are girls.

1. In five separate enumerations of error, Todd contends that the evidence was insufficient to support each of the juvenile court’s three findings, that it applied an erroneous definition of cohabitation in making its decision, and that there was no showing of harm to the children. Therefore, she concludes, it abused its discretion in changing primary physical custody.

A trial court is authorized to modify an original custody award upon a showing of “new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child.” (Citations, punctuation and emphasis omitted.) Evans v. Stowe, 181 Ga. App. 489, 491 (4) (352 SE2d 811) (1987). See also OCGA § 19-9-1 (b); Lightfoot v. Lightfoot, 210 Ga. App. 400, 403 (3) (436 SE2d 700) (1993). The proof must show both a change in conditions and an adverse effect on the child or children. See, e.g., Saxon v. Saxon, 207 Ga. App. 471-472 (428 SE2d 376) (1993); Livesay v. Hilley, 190 Ga. App. 655, 656-657 (2) (379 SE2d 557) (1989). “The duty of the court in all such cases shall be to exercise its discretion to look to and determine solely what is for the best interest of the child or children and what will best promote their welfare and happiness. . . .” OCGA § 19-9-3 (a) (2). On appeal of such a case, this Court will affirm the trial court’s decision if there is any reasonable evidence to support it. Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991).

Evidence was presented at trial that showed that in the year 1999, Todd met William Roger Hall over the Internet, and in February 2000, they began a relationship, including a sexual relationship, that lasted for about nine months. During the summer of 2000, after school was out, Todd drove fifty to seventy-five miles from her home in Snellville to Dallas, Georgia, on as many as five or six occasions, with all the children, to stay with Hall at his house for one to three days at a time. She would sometimes leave Hall’s house very early to return to her home in Snellville, apparently to open the day care that she ran in her home. For example, according to a private investigator, they left at 4:50 a.m. on one occasion and 4:44 a.m. on another. Todd admitted that this required getting the children up at 4:00 or 4:30 a.m.

Todd also admitted spending the night there at least two dozen times herself, presumably at times when the children were with Casciano, but denied sleeping with Hall when the children were there. She insisted that she took the children with her because she wanted Hall to get to know her children better, and because the entire group would plan activities that made it more convenient to stay at Hall’s house. She also denied that Hall ever spent the night at her house in Snellville.

The relationship lasted from about March to December, but there is no evidence that the children went to Hall’s house after August. Indeed, Casciano admitted that since August 2000, when he filed the action for a change of custody and contempt, Todd ceased taking the children to Hall’s house.

The evidence at trial raised some concern about Todd’s credibility, primarily because she stated in response to discovery questions that the children stayed overnight at Hall’s house only once. Then at trial she testified that it happened twice. Yet other evidence showed more visits. Also, one of the children said that she had been in the bed with Todd and Hall on one occasion when she awoke during the night and walked into their room, apparently because she had become scared. That testimony contradicted Todd’s assertion that she did not sleep with Hall while the children were there.

A parental fitness evaluation was performed on Todd by Dr. Elizabeth Ellis, Ph.D., clinical psychology. After meeting with Todd, giving Todd certain psychological tests, interviewing only one of the children, interviewing four other witnesses, and reviewing various documents, she found:

Ms. Todd does appear to have a history of showing poor judgment regarding her dating of men and involving her children in these relationships. She appears to have involved herself with a much younger man without giving thought to whether he would be suitable as a stepfather to 5 children, only to find that he was not up to this task. . . . Given these involvements and her strong interest in meeting men on the internet, her pursuit of a love interest is an over-riding interest at this time. She does not appear to have a clear sense of how to keep these relationships separate from her children and to make suitable selections of partners. She appears to make these decisions on impulse and rationalize them later.

She also concluded, “[Todd] appears to make decisions about her personal life and the children’s lives in a haphazard manner, sort of going with what suits her at the moment, without much deep thought as to the implications of her decisions. She appears to gloss over possible negative effects of her behavior on her children.”

Dr. Ellis noted, however, that due to the limited nature of what the court ordered her to do, she could not determine whether the Todd home was a chaotic and unsupervised environment, and she did not have enough information to determine whether Todd’s cohabitation with Hall had a detrimental effect on the children. She stated, “Further interviews with the children and teachers would broaden our information about the possible impact of Ms. Todd’s behavior on the children, as well as yield information as to their attachment to her and to their father.”

Casciano testified that in his opinion Todd’s behavior was very destructive morally for the children. He testified that the message that Todd was giving them was inconsistent with what they were getting when they went to church. He explained that “their morals get watered down,” and he was especially concerned about the message it gave his oldest daughter. He said the children “are put in potential harm if we don’t know a person and we bring them overnight.” He also testified that getting up so early to drive back was detrimental because one time two of the children had soccer games that day, and such exertion in the heat was not good without plenty of rest. In general, he said he was worried for his children’s safety in connection with his perception that Todd got involved with men she did not know well and exposed the children to the men. He also testified that there have been several occasions when Todd did not make sure that an adult was present to supervise the older children when they got out of school, including one incident when Todd dropped the oldest child off at a restaurant with some of her friends for thirty minutes, but without a parent present.

He admitted that his children were all happy, healthy, intelligent, and well adapted, but he added that they were starting to have behavioral problems in school. He introduced documents written by his 12-year-old daughter and published on her website that appeared to be a personal advertisement, which in his opinion reflected the bad influence of Todd. Indeed, it was similar to biographical information that Todd maintained on the Internet. He introduced evidence that one of his children’s grades had recently changed markedly for the worse in one subject. It also reflected that the child’s behavior had changed from satisfactory to needing improvement.

Todd admitted that one child’s grades in math and science had fallen off in the fall of 2000, and that the child’s teacher commented that the child was having difficulty focusing on classwork and homework. Another child was doing very well academically but having some recent behavioral problems and difficulty in one subject. Dr. Ellis reported that one of the children said she “didn’t like sharing her mother with her boyfriends and felt it was better if her mother did not have boyfriends.” There was some testimony that the children wanted custody to remain as it was.

Casciano also testified that only one month or so before the hearing, one of his children testified that she got a cut on her eyelid when Todd missed while trying to hit her sibling and hit her in the eye instead.

There was evidence that Casciano is a fit person to have custody of the children and that he is able to provide a satisfactory home life for them. The evidence showed that he had stable employment, that his second wife had flexible hours and therefore could oversee the children, that he had an adequate home for raising the children, that he was involved in the children’s activities, and that he attended church regularly. Although some questions were raised about Casciano’s personal behavior earlier in life and about his system of discipline, there was evidence to support the conclusion that he was fit to have custody.

The above evidence supports the trial court’s findings and the conclusion that there were “new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child [ren].” (Citations, punctuation and emphasis omitted.) Evans v. Stowe, 181 Ga. App. at 491 (4). As stated by the Supreme Court, “Because of [this Court’s] inability to decide who should have custody of children, we apply the rule announced in . . . Robinson v. Ashmore, 232 Ga. 498, 500 (207 SE2d 484) (1974): If there is ‘reasonable evidence’ in the record to support the decision of the trial judge, that decision will be affirmed on appeal.” Hawkins v. Hawkins, 240 Ga. 30 (239 SE2d 358) (1977). And,

[t]he “reasonable evidence” rule applicable in change of child custody cases is applicable even where the divorced custodial parent is charged with having sexual relations. If the trial judge finds from the evidence that the welfare of children is affected and changes their custody, that decision will be affirmed on appeal where there is reasonable evidence to support it.

Id. at 31. This rule has been followed in several cases where the only or primary allegation of a change of conditions was that the custodial parent was engaged in a sexual relationship to which the child was exposed.

In this case, the juvenile court was authorized to conclude that there was a material change in circumstances arising out of Todd’s decision to take the children to her boyfriend’s house for several weekends and spend the night, where the evidence suggests that Todd and Hall slept together on those occasions. Although Dr. Ellis, because she needed more data, did not reach the conclusion that Todd’s behavior had affected the children, the juvenile court could make that conclusion based on all the evidence before it. Casciano’s concern about the children’s morality, the evidence that two of the children had begun to have academic and behavioral problems, and the oldest child’s suggestive Internet message provide reasonable support for the trial court’s decision. Therefore, we cannot find an abuse of discretion.

Saxon v. Saxon, 207 Ga. App. 471, and Livesay v. Hilley, 190 Ga. App. 655, relied upon by Todd, are distinguishable. In Saxon, the trial court specifically found that the mother was an unfit parent because she was involved in a “meretricious” relationship, i.e., dwelling together continuously and openly in an unmarried relationship; but the facts only showed that she was dating a man with whom she had a sexual relationship. Saxon, 207 Ga. App. at 471. Accordingly, the court’s finding was clearly erroneous. In addition, in Saxon, unlike here, there was no evidence that the relationship in question resulted in harm to the child. Id. Similarly, in Livesay, there was no evidence that the brief period of cohabitation by the custodial parent had any adverse effect on the child. Livesay, 190 Ga. App. at 656-657 (2).

2. Furthermore, we find no merit in Todd’s argument that the court was clearly erroneous in connection with the change in custody when it found that she was “cohabiting” with her boyfriend. She contends that cohabiting can only mean living together as spouses and that all she did was stay over on several occasions. Compare Saxon, 207 Ga. App. 471 (similar argument involving the definition of meretricious). But, cohabiting can also mean to “share the same place.” Webster’s New World Dictionary (3rd college ed. 1988), p. 271. The juvenile court was authorized to find a change in conditions based on the several overnight visits to Hall’s house and was not required to find that Todd and Hall had effectively moved in together in order to do so.

3. With regard to the award of attorney fees, however, the use of the term “cohabiting” requires closer scrutiny.

We first note that the attorney fee award can only be interpreted as being based on a finding of contempt. OCGA § 19-6-2 specifically authorizes an award of attorney fees in actions for contempt of court involving child custody. OCGA § 19-6-2 (a). See Thedieck v. Thedieck, 220 Ga. App. 764, 767 (2) (470 SE2d 265) (1996) (regarding history of statute). Although the juvenile court’s order does not indicate whether the award was made in connection with the claim for contempt or the request for a modification of custody, the complaint indicates that Casciano sought attorney fees solely in connection with the count for contempt. Accordingly, we read the trial court’s order as an award for contempt.

The contempt award is based on an apparent finding that Todd violated the terms of the divorce agreement in that she “cohabitate[d] [sic] with a person of the opposite sex, not a relative, in the presence of the children.” The word “cohabit” has more than one meaning. See Webster’s New World Dictionary, p. 271. Todd testified that she understood the word cohabit, as used in the divorce agreement, to mean actually move in with someone, rather than just spend a weekend or two with someone. This appears to be the more common meaning. For example, Black’s Law Dictionary defines “cohabitation” as follows: “To live together as husband and wife. The mutual assumption of those marital rights, duties and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.”

Before a person may be held in contempt for violating a court order, the order should inform him in definite terms as to the duties thereby imposed upon him, and the command must therefore be express rather than implied. . . . Indefiniteness and uncertainty in a judgment, decree, or order may constitute a good defense in proceedings for contempt based on the violation of such judgment, decree, or order.

(Citation and punctuation omitted.) Hughes v. Browne, 217 Ga. App. 567, 568 (459 SE2d 170) (1995). Although the court may have used a less common definition of “cohabit” in describing grounds for a change in custody, in ruling on the count for contempt, the court was required to construe the divorce agreement in order to determine the manifest intent of the parties in using that term in the agreement. See Brown v. Farkas, 195 Ga. 653 (2) (25 SE2d 411) (1943). “The trial court often must construe the [divorce] agreement and decree in order to determine the contempt issue before it. [Cit.]” Nolan v. Moore, 241 Ga. 156 (244 SE2d 10) (1978). Because the basis for the trial court’s contempt order is uncertain and because there is no indication that the court followed the rules of construction with regard to the word “cohabit,” we must reverse and remand the attorney fee award for further action consistent with this opinion. The trial court must construe the agreement first and then determine whether Todd violated it.

4. Todd contends the trial court improperly considered her conduct prior to the most recent court order regarding custody of the children. But, a trial judge is presumed to have considered only legally admissible evidence. See Schaffer v. City of Marietta, 220 Ga. App. 382, 384 (2) (469 SE2d 479) (1996). Further, the court itself noted that any evidence it received about events occurring before January 2000 would not be relevant to any alleged change in conditions except to show the status quo at that time. Therefore, without some showing that the trial court considered Todd’s conduct prior to 2000, we must presume it did not.

Decided July 3, 2002

Reconsideration denied July 22, 2002.

Deming, Parker, Hoffman, Green & Campbell, Richard A. Campbell, Elizabeth N. Harrison, for appellant.

Peevy & Lancaster, Donn M. Peevy, for appellee.

5. Todd also contends that the juvenile court failed to consider the desires of the two children who were between eleven and fourteen years old, in accordance with OCGA § 19-9-1 (a) (3) (B). That Code section provides that “the court shall consider the desires, if any, and educational needs of the child in determining which parent shall have custody.” Id. But it also provides that desires of children that age are not controlling. Id. The court interviewed the oldest three children, including the two oldest who were approximately twelve and eleven years old at the time of the hearing, and asked them many questions including whether they had anything else that they wished to say. Further, another witness indicated that the children wanted things to stay as they were. Therefore, we cannot conclude that the court failed to follow the statute.

6. Todd contends the court considered the findings and recommendation of the guardian ad litem without permitting an opportunity for her to respond or to cross-examine the witness. But the court indicated that it was going to get the guardian’s input after the close of evidence, and Todd’s attorney did not object. Therefore, any possible error has been waived. See generally Spear v. State, 270 Ga. 628, 632-633 (5) (513 SE2d 489) (1999).

Judgment affirmed in part and reversed in part and case remanded.

Ruffin and Barnes, JJ, concur.

       We first note that Todd has not given proper citations to the record. We remind the bar that citations must be made to the page numbers of the record itself - “the volume or part of the record or transcript and the page numbers that appear on the appellate records or transcript as sent from the court below.” Court of Appeals Rule 27 (a) (1). Use of lengthy titles supplied by court reporters to volumes of the record is not helpful.

       Other statements made by counsel indicate that there was no suggestion of improper behavior toward the child; the testimony was elicited to contradict Todd’s testimony that she did not sleep with Hall while the children were at Hall’s house.

       See, e.g., Burger v. Krueger, 224 Ga. App. 179 (480 SE2d 230) (1996) (change of custody affirmed where custodial parent slept with married woman in home with child and later lived with the same woman outside of marriage); Dixon v. Dixon, 183 Ga. App. 756 (360 SE2d 8) (1987) (change of custody affirmed where only evidence of a change in circumstances was conflicting testimony that the custodial parent had been living with a man to whom she was not married), disapproved on other grounds, Wilson v. Baldwin, 239 Ga. App. 327, 328 (519 SE2d 251) (1999); Gibson v. Pierce, 176 Ga. App. 287 (335 SE2d 658) (1985) (change of custody affirmed where custodial parent admitted sleeping with her flaneé prior to the marriage while the child was present in the home); Bell v. Bell, 154 Ga. App. 290 (267 SE2d 894) (1980) (change of custody affirmed where only change of condition was that custodial parent was living with a man outside of marriage); Godfrey v. Godfrey, 239 Ga. 707 (238 SE2d 378) (1977) (change of custody affirmed where custodial parent had been living with a man outside of marriage and the relationship had interfered with other parent’s visitation rights). Compare Hayes v. Hayes, 199 Ga. App. 132 (denial of change of custody affirmed where both parents were involved in meretricious relationships in the presence of the child).

       This resolves Todd’s first, fourth, fifth, and sixth enumerations of error.


author: Ruffin, Judge.

text:
    A02A0894.
    LEARY v. THE STATE.
    (569 SE2d 593)
   Ruffin, Judge.

A jury found DeFrances Leary guilty of theft by taking through breach of fiduciary obligations. On appeal, he challenges the sufficiency of the evidence and the admission of certain evidence at trial. Finding no error, we affirm.

1. In his appeal, Leary no longer enjoys a presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. We will not disturb that verdict if the evidence authorized the jury to find Leary guilty beyond a reasonable doubt of the crime charged.

Viewed in this light, the evidence shows that, between November 2000 and March 29, 2001, Leary managed a group of apartments owned by Larry Hamrick. According to Hamrick, Leary was responsible for collecting rent, picking up trash, and handling minor maintenance problems.

In March 2001, Hamrick’s records indicated that he had not received rent from several tenants. Hamrick questioned one of these tenants, who produced a receipt showing that he had paid Leary $300 in rent. Other tenants also had receipts for rent paid to Leary, but never turned over to Hamrick. When Hamrick inquired about the missing money, Leary denied collecting payments from these tenants. Concerned that Leary had taken the money, Hamrick fired him on March 29, 2001. Hamrick asked Leary to leave the apartments and instructed him not to collect any more rent.

Hamrick subsequently informed his tenants that they should not pay their rent to Leary. During the first week of April, however, tenant Charles Few paid Leary $170 of his April rent in cash. Few v showed Hamrick the receipt he received from Leary evidencing this payment. Few later gave Leary an additional $110 in cash to complete his April rent, but did not obtain a receipt for that amount. Hamrick never received Few’s April rent money from Leary.

Leary testified at trial. He denied stealing the rent money and claimed that his roommate, LaKeith Rumph, also collected rent at the apartment complex, presumably implying that Rumph could have taken the missing money. Leary also testified that an unidentified man stole $410 in rental payments from him during a January 2001 robbery. The jury, however, apparently did not believe Leary’s explanations for the missing money and found him guilty of theft by taking by a fiduciary.

Conflicts in witness testimony are matters of credibility that must be resolved by the jury. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” The State presented evidence that Leary — the apartment manager responsible for collecting rents — received rent payments from tenants, but failed to turn those payments over to Hamrick. Based on this evidence, and despite Leary’s denials, a rational trier of fact could find Leary guilty beyond a reasonable doubt of theft by taking in breach of a fiduciary duty.

2. In his second enumeration of error, Leary argues that the trial court improperly allowed the State to place his character in issue with evidence of his prior theft by taking conviction. We disagree.

On direct examination, Leary’s attorney asked him about his duties at the apartment complex. Leary explained that he had worked for Hamrick’s construction company for several years. At some point, Hamrick decided that he wanted to employ an apartment manager at the complex. According to Leary:

[Hamrick] was asking about a guy named Miguel Morris that was working with us also. He asked me how do I know Miguel Morris. I said, Mr. Hamrick, I don’t think you should let Miguel Morris do that, because he have [sic] a background of. . . taking things and, you know, just being a violent person. And he said who [do] you think could do it? I said, well, me and LaKeith will do it since we’ve been working here with you also. I mean, we been [sic] working with you for the longest time. I would like to take the job. And he was like well, okay. . . . So he gave me and LaKeith Rumph an apartment together at the [complex].

On cross-examination, Leary further stated that he told Hamrick about Morris’ background “because [he] had been working for Mr. Hamrick for so long, and it [would] make [him] look bad to bring somebody there that [he knew] would take from [Hamrick].”

Evidence of a criminal defendant’s bad character or prior convictions generally “is inadmissible unless [the defendant] first puts his character in issue.” This general rule, however, “does not . . . preclude the state from rebutting testimony of a defendant by disproving the facts to which he testified, even though this incidentally places his character in issue.” In other words, the State may impeach the defendant with evidence reflecting badly on his character, as long as that evidence proves the defendant’s specific testimony false.

In this case, the trial court found that Leary placed his character in issue by “leav[ing] the impression with the jury that he . . . [is] trustworthy [,] ... is not a thiefi,] or did not steal.” On appeal, Leary argues that his testimony did not implicate his character. Pretermitting whether Leary opened the door to character evidence, however, his theft by taking conviction was properly admitted for impeachment purposes. Leary testified that he counseled Hamrick to give him, rather than Morris, the property manager job because Morris was a thief, and he did not want to recommend someone who would steal from Hamrick. Like the trial court, we find that Leary’s testimony left jurors with the impression that he would never steal, entitling the State to rebut this testimony — and the false impression — with evidence of his prior theft conviction. Accordingly, the trial court did not err in admitting this impeachment evidence at trial.

Decided July 22, 2002.

Robert M. Bearden, Jr., for appellant.

Howard Z. Simms, District Attorney, Eugene Felton, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Barnes, J, concur.

       The jury also found Leary guilty of theft by taking property in excess of $500, but the trial court merged that conviction into his conviction for theft by taking as a fiduciary.

       See Smith v. State, 253 Ga. App. 504 (559 SE2d 537) (2002).

       See id.

       See id. at 505.

       Id.

       See Hanson v. State, 232 Ga. App. 352, 353-354 (2) (a), (b) (501 SE2d 865) (1998) (evidence supported jury’s conclusion that restaurant assistant manager responsible for closing out cash register and accounting for money was guilty beyond a reasonable doubt of theft by taking in breach of her fiduciary obligation to the restaurant).

        Porter v. State, 240 Ga. App. 554, 555 (524 SE2d 259) (1999).

       Id.

       See id.

       See Payne v. State, 248 Ga. App. 158, 160 (2) (545 SE2d 336) (2001); Porter, supra; Jester v. State, 229 Ga. App. 490, 491 (1) (494 SE2d 284) (1997); see also Lucas v. State, 234 Ga. App. 534, 538 (3) (507 SE2d 253) (1998) (State allowed to introduce prior DUI convictions “to rebut ‘the defendant’s impression to the jury that he is a man of good character who would not want to hurt anyone or disobey the law by driving under the influence’ ”); Long v. State, 181 Ga. App. 830, 831 (354 SE2d 190) (1987) (State allowed to impeach defendant to “eras[e] the false impression he had raised in the minds of the jurors” regarding his criminal history).

       Although the trial court found that Leary had opened the door to character evidence, and thus admitted the prior conviction “on grounds other than impeachment, ‘we have consistently held that a correct decision of a trial court will not be reversed, regardless of the reasons given therefor.’ ” (Citation omitted.) Jester, supra at 491.


text:
    A02A1363.
    JIVIDEN v. THE STATE.
    (569 SE2d 589)
   Ruffin, Judge.

A jury found William Arnold Jividen guilty of numerous theft-related offenses. Jividen appeals, arguing that he received ineffective assistance of counsel and that the trial court erred in excluding evidence from his motion for new trial hearing. For reasons that follow, we affirm.

Jividen’s convictions relate to a string of burglaries and thefts in Whitfield County. The record shows that police and several victims discovered various stolen items in Jividen’s possession at a flea market where he often sold goods. Police also found stolen merchandise at Jividen’s residence and in storage buildings he used on property belonging to his father’s mother-in-law.

The State charged Jividen with three counts of burglary, two counts of theft by taking, and one count each of theft by bringing stolen property into the state, theft by receiving stolen property, and possessing an article with an altered identification mark. At trial, the lower court directed a verdict for Jividen on the charge of theft by bringing stolen property into Georgia. The jury found Jividen guilty of the remaining counts, but reduced one burglary charge to theft by taking less than $500.

Jividen moved for a new trial, arguing, among other things, that he received ineffective assistance of counsel. In particular, he asserted that his appointed counsel did not have time to adequately prepare his defense. The trial court held a hearing on Jividen’s motion, at which both Jividen and his trial counsel testified. Jividen also sought to introduce evidence relating to the Whitfield County Indigent Defense Program, which, Jividen claimed, showed that appointed defense counsel in Whitfield County are overworked, underpaid, and do not have time to develop their clients’ cases. The trial court, however, excluded this evidence as irrelevant to Jividen’s ineffective assistance claim. In the court’s view,

[even] assuming[,] for hypothetical purposes, that the Whitfield County Indigent Defense Program was just terrible and the worst in the world and dumped all sorts of too many cases on the counsel and whatever else you might want to allege is wrong with it, if that is true, nevertheless the question is whether the appointed public defender was effective in this particular trial. And if he was, then the other [evidence] is irrelevant.

After the hearing, the trial court denied Jividen’s motion for new trial.

1. In his first enumeration of error, Jividen argues that the trial court erred in denying his ineffective assistance of counsel claim. To succeed in this claim, Jividen must prove “(1) that his trial counsel’s performance was deficient, and (2) that but for this deficiency the outcome of the trial would have been different.” In so doing, he must overcome the strong presumption that trial counsel performed within the wide range of reasonable professional conduct and that any challenged conduct might be considered sound trial strategy. We will not reverse the trial court’s conclusion that Jividen received effective assistance of counsel absent clear error. As discussed below, we find no error here.

(a) According to Jividen, trial counsel lacked sufficient time to prepare for trial and thus rendered ineffective assistance of counsel. The record shows that trial counsel was appointed to defend Jividen on July 2, 2001, 22 days before trial commenced on July 24, 2001. This 22-day preparation period is not, as a matter of law, inadequate. As we have held, [t] here exists no specified amount of time which a counsel must spend in preparation for trial; each situation must be judged upon its own circumstances and in light of its own degree of complexity.’ ”

Jividen argues that, because trial counsel had a heavy caseload and other commitments, the 22-day period was inadequate in this case. Trial counsel testified, however, that he interviewed Jividen two or three times before trial, discussed the case with the district attorney more than once, received discovery from the State, and developed a trial strategy. The record also shows that, in addition to calling Jividen at trial, counsel presented another witness and introduced evidence on Jividen’s behalf. Asked whether extra preparation time would have produced additional leads, witnesses, or evidence helpful to the defense, trial counsel responded: No, none that I’m aware of. I was led to believe [by Jividen] that there was nothing out there to get.” Counsel further testified that he would not have changed his preparation had he been afforded more time.

Jividen testified that he saw counsel only one time before the calendar call, when he spoke with counsel “briefly.” Charged with resolving the conflict in the testimony, however, the trial court was authorized to believe trial counsel and reject Jividen’s apparent claim that counsel interviewed him only once. Furthermore, given counsel’s testimony about his pre-trial activities, the trial court did not clearly err in finding that counsel had sufficient time to prepare and, in fact, adequately prepared Jividen’s defense.

We also note that Jividen has presented no evidence that, if counsel had been given additional time to prepare, the outcome of his trial would have been different. Jividen asserts that counsel should have subpoenaed certain witnesses to testify on his behalf. None of these witnesses, however, appeared at the new trial hearing. And without evidence regarding what their testimony would have been at trial, “it is impossible for [Jividen] to show there is a reasonable probability the results of the proceedings would have been different” had trial counsel called these witnesses. Moreover, trial counsel testified that additional time would not have affected his preparation or produced beneficial evidence. Jividen, therefore, has not shown any prejudice from this alleged lack of preparation time.

(b) Jividen also argues that trial counsel failed to explain to him the risks of trial and the rewards of the State’s plea offer. Counsel testified that he received a plea offer from the State at some point before calendar call. He informed Jividen about the offer and, given the State’s evidence, “recommended that [Jividen] consider taking the plea.” According to counsel, he made it clear to Jividen that they would have difficulty “[get]ting around” the State’s evidence at trial. Counsel also informed Jividen about the length of possible prison sentences if the jury found him guilty and tried to impress upon him the seriousness of the charges. Counsel further testified that he “explained . . . the consequences” of the plea offer to Jividen and informed his client that the sentence imposed following a guilty verdict could be substantially more than the sentence involved in the State’s offer. Jividen, however, “continued to want to go to trial” and, in counsel’s view, did not take the case seriously until jury selection began.

At the new trial hearing, Jividen testified that counsel never told him he faced difficult odds at trial, did not discuss the trial risks with him, and informed him that they “stood a pretty good chance of winning.” Jividen also testified that if he had known he had virtually no chance of winning on all counts, he would have accepted the plea offer.

Jividen’s testimony contrasts sharply with that of trial counsel. Given the conflicting evidence, the trial court was authorized to conclude that counsel sufficiently informed Jividen about the consequences of rejecting the plea offer and proceeding to trial.

(c) Jividen further claims that trial counsel should have moved to suppress evidence discovered during a warrantless search of property owned by his father’s mother-in-law. Even assuming that Jividen had standing to challenge the search, he has not shown that counsel was ineffective on this ground.

According to counsel, Jividen stated before trial that he and his family had agreed to the search. Counsel thus concluded prior to trial that the search was consensual, rendering any motion to suppress the seized evidence frivolous. Nevertheless, counsel admitted that, during trial, he learned that police received permission to search the buildings from a member of Jividen’s family, rather than Jividen himself. Jividen similarly testified at the new trial hearing that he did not consent to the search.

This evidence does not establish a deficiency. As we have held,
[t]he reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions. Counsel’s actions are usually based, quite properly, on informed strategic choices made by the defendant and on information supplied by the defendant. In particular, what investigation decisions are reasonable depends critically on such information. For example, when the facts that support a certain potential line of defense are generally known to counsel because of what the defendant has said, the need for further investigation may be considerably diminished or eliminated altogether.

Based on the testimony, the trial court could have determined that Jividen misinformed counsel about consenting to the search, leading counsel reasonably to believe that a motion to suppress would be frivolous.

Furthermore, Jividen has not shown that the family member who actually consented to the search lacked authority to permit it. “ ‘Even if a deficiency did result from trial counsel’s failure to file a motion to suppress, [Jividen’s] burden is to make a strong showing that if trial counsel had made a motion to suppress, the damaging evidence would have been suppressed.’ ” Accordingly, the trial court did not clearly err in rejecting this ineffective assistance claim.

(d) Finally, Jividen argues that trial counsel was ineffective in not subpoenaing additional witnesses to testify on his behalf As noted above, however, Jividen failed to call these witnesses at the new trial hearing and thus cannot show that any prejudice resulted from their absence at trial.

Decided July 22, 2002.

Todd M. Johnson, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

2. In his second enumeration of error, Jividen argues that the trial court erred in finding information relating to the Whitfield County Indigent Defense Program irrelevant to the new trial hearing. We disagree.

“The exclusion of evidence ‘on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’” The trial court did not abuse its discretion here. The issue before the trial court was whether trial counsel provided effective assistance to Jividen, not whether Whitfield County public defenders are overworked and underpaid. The trial court reasonably found Jividen’s generalized attack on the entire indigent defense program irrelevant to the ineffective assistance claim presented here. And the record shows that the trial court permitted Jividen to question trial counsel about his particular caseload and other commitments he faced at the time of Jividen’s trial.

Furthermore, even if the trial court erred in excluding this evidence, Jividen has not established how the evidence would have helped him demonstrate that trial counsel’s performance in this case was deficient and that the deficiency prejudiced his defense. Accordingly, Jividen has not shown any harm from the evidentiary exclusion.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

        Blackford v. State, 251 Ga. App. 324, 328 (4) (554 SE2d 290) (2001).

       See id. at 328-329.

       See id. at 329.

        Hudson v. State, 234 Ga. App. 895, 901 (3) (b) (ii) (508 SE2d 682) (1998). See also Roland v. State, 266 Ga. 545, 546 (3) (468 SE2d 378) (1996) (“[A] two-week preparation period is not inadequate as a matter of law.”).

       See Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

       See Roland, supra at 545-546 (2); Randolph, supra at 324-325.

        Swint v. State, 250 Ga. App. 573, 574 (552 SE2d 504) (2001). See also Baker v. State, 251 Ga. App. 377, 380 (2) (554 SE2d 324) (2001) (“Where the missing witness does not testify at the motion for new trial hearing, no evidence supports the claim that the witness was crucial to the defense or that the witness could have been located.”); Webb v. State, 249 Ga. App. 214, 217 (2) (547 SE2d 767) (2001) (because defendant failed to call allegedly exculpatory witnesses at new trial hearing, he “ ‘provided no evidence, other than bare allegations, that the testimony of these witnesses would have changed the outcome of the proceedings’ ”).

       See Gary v. State, 244 Ga. App. 577-578 (536 SE2d 220) (2000); Randolph, supra at 324.

       See Thomas v. State, 274 Ga. 156, 159 (3) (549 SE2d 359) (2001) (“When an individual has no ownership or possessory interest in the premises, the individual has no expectation of privacy, and therefore, lacks standing to challenge the validity of a search”).

       See Green v. State of Ga., 250 Ga. App. 440, 442 (3) (550 SE2d 736) (2001) (“A valid consent to search eliminates the need for either probable cause or a warrant”).

       (Punctuation omitted.) Huff v. State, 224 Ga. App. 115-116 (479 SE2d 476) (1996).

        Lane v. State, 250 Ga. App. 160, 161 (1) (549 SE2d 468) (2001).

       See id. at 162-163; Huff, supra.

       See Swint, supra.

        Bryant v. State, 246 Ga. App. 711, 713 (2) (541 SE2d 80) (2000).

       See Shelton v. State, 252 Ga. App. 444, 448 (3) (556 SE2d 540) (2001) (“ ‘Error alone is not automatically grounds for a new trial but is subject to scrutiny for harmless error.’ ”).


text:
    A02A0325.
    BURT, BURT & RENTZ RETIREMENT PENSION TRUST et al. v. DOUGHERTY COUNTY TAX ASSESSORS.
    (569 SE2d 557)
   Ruffin, Judge.

The three appellants in this case are Dougherty County property owners (“Property Owners”), who challenged the County Tax Assessors’ alleged failure to properly assess real and personal property interests held by utility companies, and to uniformly assess other real and business personal property located in the county. After the Dougherty County Board of Equalization denied their claims, the Property Owners appealed to the superior court. The superior court denied the Property Owners’ motion for summary judgment and partially granted the County Tax Assessors’ motion for summary judgment. The Property Owners filed the instant appeal, and for reasons that follow, we affirm.

1. Before turning to the merits of the Property Owners’ appeal, we must address two impediments to our review posed by their appellate brief. First, the Property Owners enumerate nine errors, but have not shown how they preserved these nine asserted errors for review. It is not our function to cull the record to insure that the appellants properly raised the arguments below. Court of Appeals Rule 27 (a) (1) clearly places that burden on appellants. Second, notwithstanding their nine enumerated errors, the Property Owners’ brief contains only two sections of argument. Court of Appeals Rule 27 (c) (1) requires that arguments “follow the order of the enumeration of errors, and shall be numbered accordingly .” The rule is not a mere formality, but is intended to assist the Court in addressing the individual merits of each enumerated error. By failing to separately address each assertion and not showing how they were preserved, the Property Owners have seriously hampered our review of their appeal. These deficiencies are all the more troubling because we granted the Property Owners’ motion to exceed the 30-page limit imposed by Court of Appeals Rule 23 (e). Though we will address the merits of the arguments raised, the Property Owners are wholly responsible for any claim that we have failed to sufficiently address each of their nine enumerated errors.

2. One of the utility companies at issue is Colonial Pipeline Company (“Colonial”), which owns utility easements on property located in Dougherty County. Most of Colonial’s easements are 30 feet wide, and the company has 34.2 miles of pipe running through the county. In its tax returns to the Georgia Department of Revenue (“Revenue Department”), Colonial lists 34.2 miles of pipe, two meter stations, and other business personal property, but does not separately list the easements. The Property Owners presented affidavits establishing that the easements have a value equal to 70 percent of the value of the underlying fee simple property and that Colonial has easements on property owned by the Property Owners.

Another of the utilities at issue is Georgia Power Company. Georgia Power has utility easements in the county that are 100 feet wide. In addition, Georgia Power owns over 1,000 acres of submerged land in the county. Like Colonial, Georgia Power lists its lines, wires, and other business personal property on its Revenue Department tax returns, but does not separately list the easements or the submerged land.

In assessing utility companies such as Colonial and Georgia Power for the property they own in Dougherty County, the County Tax Assessors rely on valuations reported by the Revenue Department. The Revenue Department’s public utility valuation manager, Joseph Slappey, testified at length about the method it uses to value utility company property. According to Slappey, a utility company is required to annually supply the Revenue Department with a complete set of its financial records. His office reviews those records and determines “an overall value of the company as if somebody were buying it.” The Revenue Department then apportions the overall value of the utility among the various counties “by the [company’s] original investment in that tax jurisdiction.” Although a utility company lists individual assets in each county on its returns, the Revenue Department is primarily concerned that the total value of those assets is consistent with the Revenue Department’s independent valuation calculated under this method. Slappey testified that the Revenue Department considers a utility company’s “gross investment” in a county, rather than the value of “each individual item,” because his office does not have the expertise required to independently appraise much of the specialized property, such as pipe and meter stations, owned by the utilities.

Dougherty County’s chief appraiser acknowledged that his office has the authority to question the valuations approved by the Revenue Department, but “the normal practice is that the State does the tax returns” and his office accepts them without further investigation. The County Tax Assessors also give deference to the business personal property listed on the returns of businesses. The county has approximately 6,000 business personal property owners, and, other than randomly selecting approximately 30 returns for audit each year, the County Tax Assessors accept a taxpayer’s return without significant scrutiny if there is no “large disparity” from the previous year’s return.

In addressing the parties’ cross-motions for summary judgment, the court ruled that, under Bd. of Tax Assessors &c. v. Clary, the Property Owners were precluded from challenging the “State Revenue Commissioner’s decisions regarding valuation and assessment of utility property.” The court also found that the County Tax Assessors were entitled to summary judgment on the Property Owners’ challenge to the alleged disparate treatment of business personal property and real property because the State Revenue Commissioner was entitled to use reasonable means to assess the property. Finally, the court concluded that a factual issue remained concerning the Property Owners’ claim that the County Tax Assessors placed an excessive value on their property.

As best we can discern from the Property Owners’ brief, they raise three arguments concerning the trial court’s order. First, the Property Owners argue that the trial court erred in precluding them from challenging the County Tax Assessors’ practice of relying entirely on the Revenue Department’s assessments. Second, the Property Owners argue that the County Tax Assessors are improperly accepting the Revenue Department’s valuation of utility property without independently examining those valuations. And third, the Property Owners argue that the County Tax Assessors should give greater scrutiny to business personal property returns to ensure that taxpayers accurately list and value the property they own.

(a) Pretermitting whether the Property Owners should have been allowed to challenge the County Tax Assessors’ practice of relying entirely on the Revenue Department’s assessments of utility property, we conclude that this practice is authorized under Georgia law. This issue was addressed by our Supreme Court in Telecom*USA v. Collins, a case relied on by the Property Owners. In Collins, the Court recognized that, before 1988, Georgia’s Revenue Code made the State Revenue Commissioner solely responsible for assessing a utility’s taxable assets. In 1988, however, the legislature amended OCGA § 48-2-18 to permit counties to “play a new role in the taxation of utilities. The essence of the counties’ new role is the right to make an assessment that is different from the Commissioner’s proposed assessment and to deal with appeals from its final assessment.”

The Property Owners quote Collins for the proposition that County Tax Assessors are required to modify the assessments in this case. They ignore the rest of the Court’s decision, however, in which it concluded that, under the 1988 amendments, “the county boards of tax assessors may either adopt or modify the Commissioner’s proposed assessment before issuing a final assessment.” In other words, “counties may rely entirely on the Commissioner’s proposed assessment in issuing the final assessment.”

In this case, the uncontroverted evidence showed that the County Tax Assessors opted to adopt the Commissioner’s proposed assessments, as permitted by the Supreme Court’s decision in Collins. “The object of the assessors must be to determine the fair market value of the property subject to taxation in the county and the methods employed may be varied if the object is attained.” The methods used by the Revenue Department, and the results adopted by the County Tax Assessors, accomplished this purpose. Though each individual utility company asset was not separately assessed under the Revenue Department’s formula, the overall fair market value of each company’s combined assets in the county was assessed. It follows that the superior court did not err in upholding the County Tax Assessors’ right to adopt the Revenue Department’s proposed assessments of the utility companies, and summary judgment was appropriate on this issue.

(b) We also conclude that the superior court properly granted summary judgment to the County Tax Assessors on the Property Owners’ claim that personal property and real property were not uniformly assessed because the County Tax Assessors were not properly scrutinizing personal property returns of businesses. The Property Owners argue that “[t]he bottom line is that [the County Tax Assessors] are required to utilize an investigative process to uncover all business personal property and thereafter to have a staff or a mechanism to determine its fair market value.”

The Property Owners’ argument places a greater burden on the County Tax Assessors than is imposed by law:

It is the duty of the board of tax assessors to see that all taxable property within the county is assessed and returned at its just and fair valuation and that valuations as between individual taxpayers are fairly and justly equalized. This does not require the tax assessors to use any definite system or method, but demands only that the valuations be just and that they be fairly and justly equalized among the individual taxpayers according to the best information obtainable.

Under this rule, tax assessors are

not required to resort to close distinctions or to maintain a precise, scientific uniformity with reference to composition, use or value. To hold otherwise would be to subject the essential taxing power of the State to an intolerable supervision, hostile to the basic principles of our Government and wholly beyond the protection which the general clause of the Fourteenth Amendment was intended to assure.

The Property Owners have not shown that the County Tax Assessors’ method of assessing business personal property runs afoul of these standards. Rather, the evidence shows that the County Tax Assessors are using the best information obtainable to determine the fair market value of business personal property. The Assessors use methods mandated by the State Appraisal Manual to arrive at the fair market value of business inventory, equipment, and furniture, and the Property Owners have presented no evidence challenging the propriety of these methods.

Furthermore, the County Tax Assessors receive approximately 6,000 business personal property returns annually, yet the office responsible for processing these returns has only seven employees — a manager, one appraiser, three auditors, and two clerks. Every return is checked against the previous year’s return and sometimes the returns of similar companies. If an inconsistency is found, the staff audits that return. In addition, the County Tax Assessors subject a number of returns to random audits.

Undoubtedly, there are taxpayers who fail to properly report every item of business personal property they own. But the law does not require the County Tax Assessors to implement a procedure that will reveal every such instance. To impose this standard would require the assessors to perform an impossible task. They cannot possibly inventory the stock and equipment of every retailer and other business to insure that they have all reported 100 percent of their property. Thus, that level of information is not obtainable. Because the undisputed evidence shows that the County Tax Assessors are using the best information that is obtainable, the trial court properly granted partial summary judgment to the appellees on this claim.

Decided July 1, 2002

Reconsideration denied July 23, 2002

Burt & Burt, Hilliard P. Burt, for appellants.

Jenkins & Nelson, Frank E. Jenkins III, Lee & Lee, William S. Lee IV, for appellee.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       The appellants are Burt, Burt & Rentz Retirement Pension Trust, Pace Burt, Inc., and Westover Apartments, L.P. This appeal originated from three separate actions that were consolidated by the superior court.

       (Emphasis supplied.)

       161 Ga. App. 828, 830 (3) (290 SE2d 110) (1982).

       (Punctuation omitted.)

       260 Ga. 362 (393 SE2d 235) (1990).

       See id. at 364-365 (1).

       (Punctuation omitted.) Id. at 365.

       (Punctuation omitted; emphasis supplied.) Id. at 365-366.

       (Punctuation omitted.) Id. at 366.

       See id.

       (Punctuation omitted.) Rogers v. DeKalb County Bd. of Tax Assessors, 247 Ga. 726, 728 (2) (279 SE2d 223) (1981).

       See OCGA § 9-11-56 (c).

       (Punctuation omitted; emphasis supplied.) Coastal Equities v. Chatham County Bd. of Tax Assessors, 201 Ga. App. 571, 572 (1) (411 SE2d 540) (1991).

       (Punctuation omitted.) Rogers, supra at 729.

       See Rogers, supra.

       See id.; Coastal Equities, supra.


author: Ellington, Judge.

text:
    A02A1040.
    WEBB v. THE STATE.
    (569 SE2d 596)
   Ellington, Judge.

A Cobb County jury convicted Harold James Webb of aggravated assault, OCGA § 16-5-21 (a) (2), and theft by taking, OCGA § 16-8-2. Following the denial of his motion for new trial, Webb appeals, challenging the sufficiency of the evidence of aggravated assault and contending the trial court erred in refusing to give a requested jury charge. Finding no error, we affirm.

1. Webb contends the evidence was insufficient to convict him of aggravated assault with a deadly weapon in that the injuries sustained by the victim did not rise to the level of serious bodily injury required by OCGA § 16-5-21 (a) (2).

[O]n appeal, a defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Further, we do not weigh the evidence or determine witness credibility. Instead, an appellate court determines whether the evidence is sufficient to convict the defendant beyond a reasonable doubt. Conflicts in witness testimony, even the testimony of the State’s witnesses, are a matter of credibility for jury resolution. And as long as some competent evidence is presented to support every fact necessary to make out the State’s case, even though contradicted, we will not disturb the jury’s verdict.

(Citation omitted.) Moten v. State, 252 Ga. App. 222 (1) (554 SE2d 553) (2001). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in the light most favorable to the jury’s verdict, the evidence showed as follows: On the morning of January 7, 1998, the victim and his son-in-law stopped at a restaurant, leaving the victim’s truck running in the parking lot. Webb got into the vehicle and drove toward the highway. The victim and his son-in-law borrowed a car and pursued Webb. They found Webb in the stolen truck, stuck in stop-and-go traffic on the interstate highway. The victim pulled beside Webb, stopped in the emergency lane blocking him, got out, and stood in front of the stolen truck waving his hands over the hood. From a full stop, Webb gunned the engine, accelerated toward the victim, and struck him with the stolen truck. The victim was thrown up on the hood of the truck and then rolled off. After another chase, the victim and his son-in-law caught Webb and turned him over to police officers.

It is well settled that a motor vehicle may qualify as a deadly or offensive weapon under OCGA § 16-5-21 (a) (2), “depending on the manner and means by which the vehicle is used.” (Footnote omitted.) Durrance v. State, 250 Ga. App. 185, 187 (2) (549 SE2d 406) (2001). It is equally well settled that “evidence of an actual bodily injury is not required to sustain a conviction under OCGA § 16-5-21 (a) (2).” Reynolds v. State, 234 Ga. App. 884, 885 (1) (b) (508 SE2d 674) (1998). Thus, one who aims a motor vehicle at another person may be convicted of aggravated assault regardless of whether the victim sustained any injuries or was even touched by the vehicle. Thomas v. State, 255 Ga. App. 777, 778 (1) (567 SE2d 72) (2002); Durrance v. State, 250 Ga. App. at 186-187 (2); Black v. State, 222 Ga. App. 80, 81 (1) (473 SE2d 186) (1996); Payne v. State, 195 Ga. App. 523, 525 (4) (394 SE2d 781) (1990). Webb’s argument lacks merit.

2. Webb contends the trial court erred in refusing to give his requested jury charge on the statutory definition of reckless conduct as a lesser included offense of the charge of aggravated assault.

[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. However, where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Citations, punctuation and emphasis omitted.) Lightfoot v. State, 227 Ga. App. 605 (490 SE2d 177) (1997).

Webb contends, correctly, that if the jury could have found from the evidence that he negligently, rather than intentionally, struck the victim with the truck then he was entitled to his requested charge on reckless conduct. See OCGA §§ 16-1-6 (conviction for lesser included offenses); 16-5-60 (b). Specifically, Webb contends the evidence warranted a charge on reckless conduct because no witness testified that he was looking at the victim when he drove the stolen truck in the victim’s direction or that he appeared to know that the victim was in the path of the truck. The trial court found the charge was not adjusted to the facts of the case, citing Payne v. State, 206 Ga. App. 189 (424 SE2d 868) (1992). In Payne v. State, the uncontroverted evidence showed that the defendant brought a stolen car to a stop before a roadblock and then gunned the engine, accelerating straight toward an officer “who was in uniform and easily visible.” 206 Ga. App. at 190-191 (2). The trial court correctly concluded there was no evidence of the lesser crime of reckless conduct. Id.

Decided July 23, 2002

Howard & Delaney, Stephen A. Delaney, Lawrence W. Daniel, for appellant.

Harold J. Webb, pro se.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

Similarly, in this case, Webb was stopped in the stolen car and then accelerated straight toward the victim who was easily visible and just a few feet in front of the truck. Webb offered no evidence that he did not see the victim. Because the only evidence before the court showed the completed offense of aggravated assault, the trial court did not err in refusing to charge the jury on the lesser included offense of reckless conduct. Payne v. State, 206 Ga. App. at 190-191 (2). The trial court properly denied Webb’s requested charge on reckless conduct. Id. Cf. Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999) (trial court erred in declining to give reckless conduct charge where witness testimony that defendant fired gun in the air while the police were chasing the car in which he was riding, rather than at officers, provided some evidence of negligence).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

       OCGA § 16-5-60 (b) provides:
      A person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.