text:
    A01A2397.
    McKINNEY v. THE STATE.
    (555 SE2d 468)
   Eldridge, Judge.

A Wilcox County jury found Larry McKinney guilty of burglary. He appeals, raising several enumerations of error that he claims require reversal of his conviction. Upon review, we disagree and affirm.

1. In his first three enumerations of error, McKinney challenges the sufficiency of the evidence against him.

An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. Additionally, this court will not second-guess what evidence the jury chose to believe. As long as there is some competent evidence on each element necessary to prove the state’s case, the jury’s verdict will be upheld.*

With these principles in mind, the evidence of record shows testimony from a store owner that the glass front door of his grocery, Snipes Fine Food, in Rochelle was smashed. A brick was found inside the store amid the debris. Packages of meat totaling $733 were taken from the meat counter.

A patrol officer testified that he checked the Snipes Fine Food store at 2:00 a.m. as per his routine and he noted no problem. When he returned to the store on patrol at 5:00 a.m., the glass was shattered.

There was testimony from an employee of a late night bar/restaurant in Rochelle that on the incident date McKinney came into the premises at approximately 3:00 a.m. with a grocery bag of meat in an attempt to sell such. The owner of the establishment refused to buy the meat.

An inmate/trustee at the Wilcox County jail testified that McKinney told him he threw a brick through the Snipes Fine Food window. Later, the trustee saw a brick wrapped in a bag in the back of a truck belonging to the Chief of the Rochelle Police Department. He told McKinney about it, and McKinney stated, “Yeah. That’s the one.”

McKinney was arrested and gave a statement to the police that he had indeed attempted to sell meat to a local establishment at 3:00 a.m.; however, McKinney told the officer that he obtained the meat for $20 from a man in a car who had stopped him and asked him if he wanted to buy it. McKinney did not know the man and could not describe him. McKinney stated that he purchased the meat from the man for the purpose of resale to others, but thereafter no one would buy the meat because of the “Snipes stickers” on the meat packages.

In addition, the State introduced evidence of three prior burglaries — to which acts McKinney had previously pled guilty — for the purpose of showing identity, course of conduct, and modus operandi. Each of the prior burglaries occurred between 2:00 a.m. and 3:00 a.m., and in each case, McKinney threw either a brick or concrete block through the front glass window of a food market/convenience store in Rochelle for the purpose of removing merchandise therein.

We find this evidence more than sufficient for a rational trier of fact to have found McKinney guilty beyond a reasonable doubt of the burglary of Snipes Fine Food.

2. Next, McKinney contends his trial counsel rendered ineffective assistance at trial. He claims his attorney: failed to challenge for cause a juror who stated he could put aside feelings of partiality he felt for the State and decide the case on the law and the facts; failed to investigate the case; failed to interview witnesses; failed to file motions to suppress; failed to present alibi evidence; failed to prepare for trial; failed to advise the trial court that a juror on the panel was sleeping; failed to object to erroneous charges to the jury; failed to reserve objection to the court’s charge; and failed to prevent the introduction of “uncertified and unconnected evidence.”

The proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). First, appellant must show that counsel’s performance was deficient; second, [he] is required to show that [he] was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for [his] counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Further, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

In that regard:

(a) The similar transaction evidence was clearly admissible under the standard of Williams v. State; thus objection thereto would be meritless and no prejudice can result. Likewise, McKinney provides no legal basis for filing a motion to suppress either the “brick” or his statement to the police so as to demonstrate the merit of such motion. Further, a challenge for cause to a juror rehabilitated under the standard of Johnson v. State would be without merit. In each of these instances, the “[flailure to make a meritless objection cannot be evidence of ineffective assistance.”

(b) In this case, McKinney, who was indicted as a recidivist, told his trial attorney that he wished to accept a negotiated offer and plead guilty; however, on the day the case was to be called, McKinney “very adamantly decided” he wanted to try the case. Trial counsel had interviewed the only witnesses provided by McKinney and determined that such witnesses did not corroborate what McKinney said. Counsel felt prepared for trial and testified:

The issues were simple. I had already heard what the State’s witnesses were going to testify to. I didn’t feel like I needed any further discovery. I felt like I was prepared to go to trial. ... Of course, I also felt it was totally useless to go to trial because of the nature of the evidence. ... I urged Mr. McKinney not to roll the dice as he wanted to do because we had worked out a fairly good plea bargain and he would be facing a much longer period of time if he failed at trial.

Accordingly, we find that counsel’s testimony supports the trial court’s conclusion that McKinney’s attorney was prepared for trial and therefore such conclusion is not clearly erroneous. Further, any deficiency with regard thereto was due to McKinneys last minute decision to go to trial.

(c) Trial counsel also testified that he saw a juror who, at one point during trial, had his eyes closed, but he determined that the juror was not sleeping, and so he did not bring it to the trial court’s attention. Such a judgment call does not provide grounds for a claim of ineffective assistance of counsel.

(d) Finally, counsel determined that there was no basis for objection to the trial court’s charge to the jury and thus did not object or reserve objections thereto. McKinney, however, contends that reservation of objection to the charge was essential due to allegedly erroneous charges on (i) parties to a crime and (ii) circumstantial evidence.

(i) McKinney through his testimony raised the issue of parties to a crime by implying that “another person” burglarized Snipes Fine Food and that he was just disposing of the stolen goods. Thus, such charge was tailored to the evidence and does not provide grounds for objection.

(ii) In the charge on circumstantial evidence, the trial court used the word “include” instead of “exclude”: “The theory of guilt must include every other reasonable theory than the guilt of the accused.” There is no doubt that this charge was error, just as there is no doubt that the charge was the result of an inadvertent slip of the tongue. Moreover, there is no doubt whatsoever that even the most capable trial attorney might miss the difference in pronunciation between “include” and “exclude” during the actual giving of an entire jury charge; it is only in post-conviction attack that the luxury presents itself to pore over the written record and discover such errors.

Notwithstanding, under the circumstances presented here, any error in the jury charge must be evaluated from the prejudice prong of an ineffective assistance of counsel claim, i.e., a reasonable probability that the outcome of the trial would have been different but for the error. To that end, we must inquire: is there a reasonable probability that the jury would have acquitted McKinney if the word “exclude” had been properly used? We think not.

The evidence of McKinney’s guilt was overwhelming and was determined by the jury in 16 minutes, a time period the selection of a foreperson may often exceed. The evidence included three prior instances wherein McKinney burglarized the same type of establishments, using the same method of entry, during the same early morning hours, in the same small town. The evidence included McKinney’s admission that he was in possession of the stolen meat almost immediately after the taking, and it included McKinney’s admission to a fellow inmate that he had broken out the window of the grocery store. Moreover, McKinney’s assertion that an unknown, undescribable man stopped him in the street at 3:00 in the morning in small town Rochelle in order to sell him meat is simply not an alternative “reasonable” hypothesis to McKinney’s guilt so as to provide the jury with a choice to acquit.

No new trial is required for failure to charge on circumstantial evidence where the case is not close or doubtful and the charge on reasonable doubt is full and fair[, as it was in this case]. There is yet another reason for not reversing this case for failure to charge the law of circumstantial evidence. That is, no other reasonable hypothesis save that of the guilt of the accused has been suggested. Should the case be retried so a jury can hear those words when no other reasonable hypothesis has been offered? Our answer is in the negative.

In sum, we find McKinney’s claims of alleged deficiency on the part of his trial counsel are either: factually meritless; the result of trial strategy and judgment; the result of McKinney’s own actions; or without prejudice so as to support a claim of ineffective assistance of counsel. Thus, this claim of error is without merit.

3. McKinney contends the trial court erred in admitting similar transaction evidence because no witnesses testified during the Uniform Superior Court Rule 31.3 (B) admissibility hearing, and the record does not contain a similar transaction ten-day notice. McKinney made no such objections at trial; thus, these issues are waived.*

Moreover, witnesses need not testify at a similar transaction admissibility hearing. “A hearing in which the State relies upon the statements of the prosecuting attorney to make the required showing for the admissibility of similar transaction evidence is sufficient to satisfy the requirements of USCR 31.3 (B).”

Further, McKinney does not claim that he did not receive timely notice of the State’s intent to use the similar transaction evidence. He claims only that the record does not contain such notice. Thus, McKinney has made no showing, nor do we discern, that any prejudice to him has resulted.

4. Following a hearsay objection, there was no error in permitting State’s witness Janie T. Bell to testify as to what the restaurant/ bar owner told McKinney when he attempted to sell the owner meat at 3:00 in the morning (“he said, you know, he would not buy any pork chops because he had just bought a bunch of pork chops”). Bell was present to hear the exchange between McKinney and the owner, and it has long been the law in Georgia that “a witness may testify as to what [she] saw and heard in the defendant’s presence.”

5. Lastly, McKinney contends he was denied his right to be present during all critical stages of his trial because he was not present for a motion for directed verdict at the close of the State’s case.

We have reviewed the transcript with regard to this issue. It is unclear therefrom whether or not McKinney was in fact present for the motion for directed verdict. There is no indication that he was not except for a single comment from defense counsel that he would “be willing to proceed without my client being present.” Whether he did in fact proceed without his client present is not established in the record. Immediately following the brief motion, McKinney was called to the stand to testify on his own behalf. Thus, it is complete speculation as to whether or not McKinney was in fact present, and if he was not, at what point during the motion he was returned to the courtroom so as to be able to take the stand immediately following the denial of the motion for directed verdict.

While current counsel maintains before this Court that McKinney was removed from the courtroom at the same time as the jury and was not present for the directed verdict motion, counsel is the only one to so maintain. McKinney — who was otherwise extremely vocal during the hearing on the motion for new trial — never testified that he was removed at the close of the State’s case; he never testified that he was not present for the directed verdict motion; he never testified that he would have elected to be present at the motion for directed verdict; and McKinney’s trial counsel was never questioned at all with regard to this issue. Thus, there is no evidence in the record as to this point other than the single ambiguous comment referenced above.

Decided October 11, 2001.

David E. Morgan III, for appellant.

Accordingly, we will not reverse on this basis. A waiver of constitutional rights will not be presumed, and the State has the burden to show such from the record; however, under the circumstances presented here, we do not reach the propriety of any “waiver” of McKinney’s presence, since his lack of presence is not factually established, a burden that belongs to McKinney. “This court cannot consider the factual assertions of the parties appearing in briefs when such evidence does not appear on the record.” Since McKinney has failed to demonstrate by evidence of record that he was in fact not present during the motion for directed verdict, there is no factual basis for the legal arguments made and his claim of error is merit-less.

Further, there is no contention that McKinney was not present when his counsel announced, “Motion for directed verdict, Your Honor,” immediately after the State rested and in the presence of the jury. Thereafter, the trial court announced that the jury needed to go to the jury room for such motion. Thus, even if McKinney was removed with the jury, as alleged by current counsel, McKinney knew that the motion for directed verdict was being made at that time, and he remained silent both when he was allegedly removed from the courtroom and when he was allegedly returned thereto. “[McKinney’s] counsel made no objection and [McKinney] remained silent as well. Therefore, we conclude that [McKinney] acquiesced in the proceedings that occurred ... in his absence.”

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

       (Punctuation and footnotes omitted.) Brown v. State, 246 Ga. App. 517, 518 (1) (541 SE2d 112) (2000).

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

        Thigpen v. State, 248 Ga. App. 301 (546 SE2d 60) (2001).

       261 Ga. 640, 642 (2) (409 SE2d 649) (1991).

       262 Ga. 652, 653 (2) (424 SE2d 271) (1993). See also McCannon v. State, 268 Ga. 393, 395 (4) (489 SE2d 801) (1997).

       (Punctuation omitted.) Demetrios v. State, 246 Ga. App. 506, 513 (7) (a) (541 SE2d 83) (2000).

        Mann v. State, 240 Ga. App. 809, 811 (3) (524 SE2d 763) (1999).

        Hines v. State, 248 Ga. App. 752, 756 (548 SE2d 642) (2001); Smith v. State, 207 Ga. App. 290, 291 (2) (428 SE2d 95) (1993).

        Gordon v. State, 273 Ga. 373, 377 (4) (541 SE2d 376) (2001).

       (Citation and punctuation omitted.) Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).

        Jones v. State, 272 Ga. 884, 887 (4) (536 SE2d 511) (2000).

       (Citation and punctuation omitted.) Talmadge v. State, 236 Ga. App. 454, 457 (1) (e) (512 SE2d 329) (1999).

        Sweatman v. State, 181 Ga. App. 474-475 (352 SE2d 796) (1987); Wells v. State, 208 Ga. App. 298, 304-305 (430 SE2d 611) (1993).

       (Punctuation omitted.) Jarrett v. State, 212 Ga. App. 381, 383 (441 SE2d 843) (1994).

       Compare Pennie v. State, 271 Ga. 419, 421 (520 SE2d 448) (1999) (both Pennie and her trial counsel testified at the hearing on the motion for new trial that Pennie was not present; trial counsel testified that he had never discussed the matter with his client and that he never sought or received her permission to waive her presence; and Pennie testified that she would have elected to be present had she known of it).

        Keith v. State, 218 Ga. App. 729 (463 SE2d 51) (1995).

       (Punctuation omitted.) Leatherwood v. State, 212 Ga. App. 342 (1) (a) (441 SE2d 813) (1994).

        Griffin v. State, 241 Ga. App. 783, 786 (7) (527 SE2d 577) (1999).

        Holsey v. State, 271 Ga. 856, 861 (5) (524 SE2d 473) (1999); Parker v. State, 220 Ga. App. 303, 312 (469 SE2d 410) (1996).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A0876.
    SIMPSON v. THE STATE.
    (555 SE2d 247)
   Blackburn, Chief Judge.

Mitchell Simpson, Sr. appeals the revocation of his probation for failure to pay fines and possession of marijuana, contending that: (1) the evidence was insufficient to support the revocation and (2) the trial court failed to conduct a hearing to determine his ability to pay the fines in question before revoking probation. For the reasons set forth below, we affirm.

The record shows that, following a jury trial on March 29, 1986, Simpson was convicted for the sale of cocaine and sentenced to twenty years, ten in confinement and ten on probation. As a special condition of his probation, Simpson was required to pay a fine of $4,000 and certain other costs and surcharges. Prepayment of these charges was not a condition precedent to Simpson’s release on probation. Simpson was paroled on August 11, 1987; however, during this parole, Simpson was indicted for two counts of possession of a firearm by a convicted felon. Following a jury trial, Simpson was convicted for both offenses. On the first count, he was sentenced to five years to run concurrently with his sentence for selling cocaine, and on the second count, he was sentenced to five years to run consecutively to the cocaine offense.

On September 8, 1997, Simpson was released on parole again. On April 9, 1999, Simpson’s probation officer filed a petition to revoke Simpson’s probation, contending that Simpson had failed to pay his $4,000 fine and other costs associated with the initial conviction for the sale of cocaine. On July 21, 2000, Simpson’s probation officer filed an amended petition to revoke Simpson’s probation, contending that, in addition to failing to pay his fines, Simpson did not report when required and that he had illegally used marijuana. After a hearing, the trial court revoked Simpson’s probation, finding that he had used marijuana and failed to pay his fines.

1. Simpson contends that the evidence presented at the revocation hearing was insufficient to show that he had violated the terms of his probation. We disagree.

As a general matter, “[t]he evidence produced at the revocation hearing must establish the violations of probation only by a preponderance of the evidence, not beyond a reasonable doubt. OCGA § 42-8-34.1 (a).” Strozier v. State.

At the probation revocation hearing, Simpson’s probation officer testified that, on May 9, 2000, she asked Simpson whether he had been using illegal drugs. Simpson admitted that he smoked marijuana a few days earlier. In addition, on June 2, 2000, Simpson admitted that he smoked marijuana on May 28, 2000. Furthermore, it was undisputed that Simpson failed to pay the fines associated with his original conviction for the sale of cocaine. The record, therefore, supports the trial court’s finding that Simpson violated the terms of his probation by a preponderance of the evidence.

Simpson’s argument that he was not read his Miranda rights prior to being questioned by his probation officer does not change this result. Generally, a probationer has no Fifth Amendment privilege with regard to questions relevant to the status of his or her probation.

A State may require a probationer to appear and discuss matters that affect his probationary status; such a requirement, without more, does not give rise to a self-executing privilege. The result may be different if the questions put to the probationer, however relevant to his probationary status, call for answers that would incriminate him in a pending or later criminal prosecution.

Minnesota v. Murphy In this case, there is no indication that the information obtained from Simpson during his interviews with his probation officer was elicited for the purpose of charging him with a new crime. And, there is no evidence that he was charged with one. To the contrary, it appears that Simpson’s probation officer was simply trying to assure that Simpson was complying with the conditions of his probation. Accordingly, the use of Simpson’s admissions to smoking marijuana in the revocation hearing, which is not a criminal proceeding, did not violate Miranda. See, e.g., United States v. Nieblas.

2. Simpson also contends that revocation of his probation was improper because the trial court failed to hold a hearing regarding his ability to pay the fines associated with his conviction for the sale of cocaine. We disagree.

Under Bearden v. Georgia, if a court determines that a fine or restitution is the appropriate and adequate penalty for a crime, it may not imprison a person solely because he lacks the resources to pay it. A Bearden hearing as to defendant’s ability to pay is required only when a fine is made a condition precedent of probation or probation is about to be revoked for failure to pay a fine.

(Punctuation omitted.) Hunt v. State.

Simpson’s probation was not conditioned upon his fine first being paid; therefore, the only issue which remains is whether the trial court improperly revoked his probation for failure to pay the fine without a hearing. The record shows, however, that prior to Simpson’s revocation hearing, the trial court asked Simpson to submit information regarding his financial status. In response, Simpson submitted only incomplete records to support his claim of indigence. And, contrary to Simpson’s contention, he did have the opportunity to present evidence regarding his ability to pay at the revocation hearing. Based on the evidence and testimony which it did have, the trial court found that Simpson was a signatory on three different bank accounts and that he was solely responsible for payments on a vehicle costing more than the amount of his fines. Accordingly, the trial court properly found, after hearing evidence, that Simpson had the ability to pay his fines, and the trial court did not err in revoking Simpson’s probation thereafter.

Judgment affirmed.

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

Decided October 12, 2001.

E. Kontz Bennett, Jr., for appellant.

Richard E. Currie, District Attorney, Albert H. Tester, Assistant District Attorney, for appellee.

       This conviction was subsequently affirmed by this Court. See Simpson v. State, 181 Ga. App. 558 (353 SE2d 55) (1987).

        Strozier v. State, 248 Ga. App. 306, 308 (2) (546 SE2d 290) (2001).

        Minnesota v. Murphy, 465 U. S. 420, 435 (104 SC 1136, 79 LE2d 409) (1984).

        United States v. Nieblas, 115 F3d 703 (9th Cir. 1997).

        Bearden v. Georgia, 461 U. S. 660, 672 (103 SC 2064, 76 LE2d 221) (1983).

        Hunt v. State, 222 Ga. App. 66, 70 (3) (473 SE2d 157) (1996).


text:
    A01A0982.
    HERRING v. THE STATE.
    (555 SE2d 233)
   Blackburn, Chief Judge.

Following a jury trial, Gerald Wayne Herring appeals his convictions for aggravated assault and rape, arguing that (1) the State’s evidence was insufficient to identify him as the perpetrator who assaulted and raped the victim and (2) the trial court erred by allowing the State’s investigator to testify to certain hearsay statements made by Herring’s wife. For the reasons set forth below, we affirm.

1. Herring argues that the evidence fails to support the jury verdict because the State did not present evidence sufficient to identify him as the perpetrator of the crimes charged. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Herring] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State, see Jackson v. Virginia.

Viewing the evidence in this light, the record shows that on June 9, 1999, the victim, a 64-year-old woman, answered a knock at the door to her home in a public housing project at 1:30 a.m. to find a man with a stocking over his head pointing a handgun at her face. The man forced his way into the victim’s home at gunpoint and raped her. During the attack, the perpetrator choked the victim and repeatedly threatened to shoot her. The victim tried to fight her assailant but was unsuccessful. As a result of the attack, the victim suffered a number of tears to her vaginal area.

After her attacker fled, the victim got up, locked the door, and went to the bathroom to wash up. After lying down on the bed for some time, the victim called her daughter (at approximately 6:15 a.m.) and informed her of the attack. The victim’s daughter called the police.

The police arrived at the victim’s home and discovered her disoriented and sitting in a chair in her living room. There was blood in the bathroom and in the hallway leading to the living room, as well as on the living room floor, the daybed, and on the chair in which the victim was sitting. The victim described the attack to the police and described the perpetrator as a black man, wearing a stocking over his head and weighing between 250 and 300 pounds. The victim also indicated that the attacker wore blue work pants. The victim was unable to describe the man’s face because of the stocking.

The victim was taken to the emergency room at Grady General Hospital, where she was examined. The examining physician identified the victim as having a second degree vaginal tear, consistent with sexual assault. A rape kit was prepared and sent to the Georgia Bureau of Investigation (GBI) Crime Laboratory for analysis.

Later that day, acting on information gathered during the investigation, Investigator Wandell Asbell of the Cairo Police Department and a number of other law enforcement officers went to Herring’s house, which is located across the street from the victim’s home. In Herring’s presence, his wife stated that he had come home during the early morning hours with what appeared to be bloodstains on his clothes. The officers obtained permission from Herring’s wife to search the residence. Mrs. Herring showed the officers the clothes that her husband was wearing that morning and turned over stained underwear and navy blue work pants to the officers.

Analysis of the slides taken during the emergency room examination of the victim revealed the presence of sperm. The GBI matched the DNA from this sperm to the DNA from a blood sample obtained from Herring. Investigator Asbell arrested Herring upon receiving news from the GBI Crime Laboratory of the DNA match. Herring was later indicted and convicted by a jury of aggravated assault and rape.

At trial, Herring did not testify or present witnesses in his own behalf. Instead, Herring attacked the State’s evidence, arguing as he does now that no rational jury could find that he was the perpetrator based upon the evidence presented as to the identity of the attacker. Herring’s argument is without merit.

The jury could reasonably have determined that Herring was the attacker based upon the evidence presented by the State. Gina Barton, a forensic biologist with the GBI Crime Laboratory, testified at trial as an expert in the area of forensic DNA testing and analysis. Barton conducted a DNA analysis using the swab samples from the rape kit obtained at the emergency room and blood samples obtained from Herring. Barton testified that the DNA from spermatozoa found on the swabs matched Herring’s DNA. Barton further testified that the probability of selecting an unrelated individual from Herring’s racial population who had a genetic profile matching the semen taken from the victim was one in ten million.

Herring argues that the DNA match was incomplete because the State failed to match every characteristic of his DNA to that of the sperm swabbed from the victim. Herring presented no expert testimony. On cross-examination, Herring attacked Barton’s conclusions, citing her inability to match all characteristics of the DNA. Barton explained that there are 14 areas in DNA that are compared to determine whether there is a match. Here, Barton testified that she matched the characteristics from 11 areas to Herring’s DNA. She could not obtain results on three areas and explained that such failure did not mean that those areas did not match, only that no results were obtained. Barton explained that her failure to match all 14 areas did not affect her conclusion that the DNA from the swabs and from Herring’s blood matched. Herring’s objection to the DNA evidence does not affect its admissibility, but rather its weight. On appeal of a criminal conviction this Court does not weigh the evidence or determine the credibility of witnesses and will not disturb the jury’s determination thereof. Woodford v. State.

In addition to the evidence that Herring’s DNA matched a sperm sample swabbed from the victim’s body the day of the attack, the State seized underwear and blue work pants from Herring’s home that matched the description given by the victim and that contained reddish-orange stains that appeared to be blood. Moreover, Herring’s wife told police that he came home during the early morning hours the day of the attack wearing the clothes she gave police. Two police officers testified that they observed the reddish-orange stains on the pants and underwear, just as Herring’s wife described. Although the stains were not analyzed by the GBI Crime Laboratory, testimony concerning the clothes as well as Herring’s appearance and conduct on the morning of June 9, 1999, constitutes circumstantial evidence of Herring’s guilt. Investigator Asbell testified that, in his experience, the GBI does not test all evidence because of limited resources. In fact, there are no scientists in the regional lab in Moultrie, which was used in this case as a collection facility. Here, the other evidence from Herring and the rape kit was forwarded to the GBI facility in Decatur for testing. After tests on that evidence revealed a DNA match, Investigator Asbell immediately obtained warrants and arrested Herring. The GBI did not then test the pants and underwear.

A careful review of the entire record in this case reveals that there was evidence from which a rational trier of fact could determine that Herring was the attacker and find him guilty beyond a reasonable doubt of all the offenses of which he was convicted. Compare Bryant v. State; Hardegree v. State. We find the evidence sufficient to support the verdict under the standard set forth in Jackson v. Virginia, supra.

2. Herring next claims that the trial court erred by allowing Investigator Asbell to testify to Mrs. Herring’s out-of-court statement that her husband came home during the early morning hours of June 9, 1999, wearing what appeared to be bloodstained clothing. Herring argues that the statement is hearsay and its admission constitutes reversible error.

Hearsay is evidence “which does not derive its value solely from the credit of the witness but rests mainly on the veracity and competency of other persons.” OCGA § 24-3-1 (a). “Testimony is considered hearsay ... if the witness is testifying to another party’s statement in order to prove or demonstrate the truth of the matter asserted in that statement.” (Citations and punctuation omitted.) In re Burton. Here, Investigator Asbell testified as to Mrs. Herring’s statement in order to prove the truth of the matter asserted, i.e., her husband’s whereabouts and appearance on the morning of the rape. Investigator Asbell’s testimony contained hearsay; it derived its value partially from the veracity of Mrs. Herring. See OCGA § 24-3-1 (a). Therefore, such testimony can be admissible only if it meets a hearsay exception.

OCGA § 24-3-1 (b) provides that “[hjearsay evidence is admitted ... in specified cases from necessity.” The State offered the hearsay testimony under this necessity exception. There are three prerequisites for admission of hearsay because of necessity: (1) necessity, (2) particularized guarantees of trustworthiness, and (3) the evidence must be relevant to a material fact and more probative on that material fact than other evidence that may be procured or offered. See Holmes v. State.

The first prerequisite is met since the statement in question was made by Mrs. Herring, who invoked the spousal privilege and was therefore unavailable to testify. See OCGA § 24-9-23 (spousal privilege); Quijano v. State (assertion of spousal privilege met necessity requirement); Higgs v. State (same). Accordingly, her statement is admissible against her husband if it demonstrated sufficient trustworthiness and is more probative than other evidence that could have been offered on the same issue.

Whether a proponent of a hearsay statement can show a guarantee of trustworthiness is based upon a consideration of the totality of the circumstances surrounding the making of the statement. Chapel v. State.* In the case at bar, Mrs. Herring made her statement to police during an official rape investigation, bolstering the reliability of the statement. See Quijano, supra at 185. In addition, because a relatively short period of time had elapsed between the commission of the crime and the police visit to Herring’s apartment (less than 24 hours), it is unlikely that Mrs. Herring spoke based upon a faulty recollection of the events of the morning. Moreover, there is no evidence that Mrs. Herring was under duress, spoke out of fear, or possessed the motive to fabricate a story to incriminate her husband. Furthermore, Mrs. Herring never recanted her statement or sought to change it. Finally, Mrs. Herring’s statement was corroborated by other evidence. Two police officers confirmed that the clothing that Mrs. Herring described was indeed stained reddish-orange. The trial court properly found that there were sufficient guarantees of trustworthiness in Mrs. Herring’s statement.

Under the third prerequisite to the necessity exception, the statement must be more probative on a material fact than other evidence that may be procured or offered. Holmes, supra at 138-139; Chapel, supra at 155. Mrs. Herring’s statement was relevant to her husband’s conduct and appearance on the morning of the rape and more probative on this issue than other evidence that the State could have offered. Herring contests this point and argues that the State cannot claim necessity because the State failed to introduce the clothing with the alleged bloodstains. However, the clothes themselves could not prove that Herring was wearing them when his wife saw him come home during the early morning hours on the day of the rape. Mrs. Herring’s statement constituted the only evidence on this point.

Decided October 12, 2001.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

We conclude that the statement satisfied the requirements for admission under the necessity exception to the hearsay rule. For this reason, the trial court did not err by allowing the admission of Investigator Asbell’s testimony. Herring’s second enumeration of error fails.

Judgment affirmed.

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

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

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

       Investigator Asbell testified that he went to Herring’s house on the day of the attack to follow up on information that he received from Corporal Rebecca Baudree of the Cairo Police Department and Investigator Scott Newberry with the Grady County Sheriff’s Department that Herring came home that morning with blood on his clothing.

        Woodford v. State, 240 Ga. App. 875, 876 (525 SE2d 408) (1999).

        Bryant v. State, 268 Ga. 616-617 (1) (491 SE2d 320) (1997).

        Hardegree v. State, 230 Ga. App. 111, 112 (2) (495 SE2d 347) (1998).

        In re Burton, 271 Ga. 491, 494 (3) (521 SE2d 568) (1999).

        Holmes v. State, 271 Ga. 138-139 (2) (516 SE2d 61) (1999).

        Quijano v. State, 271 Ga. 181, 184 (4) (516 SE2d 81) (1999).

        Higgs v. State, 256 Ga. 606, 608 (4) (351 SE2d 448) (1987).

        Chapel v. State, 270 Ga. 151, 155 (4) (510 SE2d 802) (1998).

       Because we conclude that the statement is admissible under the necessity exception to the rule against hearsay, we do not address the State’s claim that the statement was admissible as a tacit admission because it was made in the presence of the defendant and under circumstances requiring a response. OCGA § 24-3-36.


text:
    A01A1065.
    WAY v. THE STATE.
    (555 SE2d 230)
   Blackburn, Chief Judge.

Dale Way was convicted by a jury of speeding, driving under the influence to the extent he was a less safe driver, and possession of cocaine with the intent to distribute. Way appeals only his conviction for possession of cocaine with the intent to distribute. He contends that (1) the evidence was insufficient to support the conviction and (2) the trial court erred by refusing to allow him to argue first and last during closing arguments. For the following reasons, we affirm.

1. Way argues that the evidence was insufficient to support his conviction for possession of cocaine with the intent to distribute. We disagree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Way] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State; Jackson v. Virginia.

So viewed, the evidence shows that on April 4, 1998, Deputy Jason Wilkes stopped Way and charged him with speeding. During the investigatory stop, Deputy Wilkes determined that Way had been driving under the influence and so charged him. Incident to the arrest, Deputy Wilkes searched Way and discovered a crumpled dollar bill in his pocket containing several off-white rocks, which were later determined to be 1.6 grams of crack cocaine. In addition, Deputy Wilkes found $937 in currency on Way, including 17 $20 bills.

Way was given his Miranda warning and taken into custody, where he gave a statement denying his guilt. Thereafter, Way voluntarily remarked to Georgia Bureau of Investigation (GBI) Agent Tracy Sands that “he could do the big man in Glenville” if Agent Sands could make the charges disappear. Way then moved to suppress this testimony. Following a Jackson-Denno hearing, the trial court determined that Way made his custodial statements voluntarily after he waived his rights.

Way argues only that the evidence was insufficient to support a finding that he intended to distribute the cocaine and that the most it showed was mere possession. “Mere possession of cocaine . . . will not support a conviction for possession with intent to distribute.” Morgan v. State. Intent to distribute may be shown in numerous ways; expert testimony that the amount of contraband possessed was inconsistent with personal use, the possession of certain amounts or denominations of currency, and a prior conviction for possession with intent to distribute are facts which may support such intent. See Bethea v. State. ,

Here, Deputy Wilkes seized 1.6 grams of crack cocaine from Way. Agent Sands testified that the cocaine consisted of several big chunks, each capable of being cut into two to four $20 rocks. Agent Sands also testified that, in his experience, crack commonly sells on the street in $20 or $40 amounts. Thus, it was significant that Way ' was carrying $937 in currency, including 17 $20 bills. “[P]ossession of a large amount of currency in certain denominations, as here, may help establish an intent to distribute.” Brown v. State Way argues on appeal that the currency was not from the sale of cocaine, but that he received it from his wife. However, the credibility of witnesses is a matter for the jury to determine. Woodford v. State .

In addition, Way made an inculpatory statement that “he could do the big man in Glenville” if Agent Sands could make the charges disappear. Way’s statement was voluntarily given, and the jury was free to consider it. Although Way denied making this statement at trial, the resolution of factual disputes is for the jury, which could properly infer from it that Way was involved in the distribution of cocaine. Cornell v. State.

Finally, Way notes that the jury had reservations about finding that he intended to distribute the cocaine. After deliberating for several hours, the jury submitted the following note to the court: “On counts 2 and 3 we have reached a verdict but on count 1 we are divided. What now? We all agree he was in possession of cocaine. But not the part of‘with intent to distribute.’ Help Us!!” The trial court asked the jury to continue to deliberate and explained that they could either continue to deliberate into the evening or return in the morning. The jury chose to continue with deliberations that evening and found Way guilty of possession of cocaine with the intent to distribute.

The fact that the jury experienced difficulty reaching its verdict does not undermine Way’s conviction. The jury had the option of convicting Way for simple possession only, because the court instructed on this lesser included offense. Way contends that the jury “relented,” implying that the jury returned its verdict out of a desire not to have to deliberate any further. Way cites no facts of record that demonstrate the trial court acted improperly. “Whether a verdict was reached as the result of coercion depends upon the totality of the circumstances.” Sears v. State. The court did not put pressure on the jurors “ ‘one way or the other,’ ” exhort the minority to abandon its views, or suggest that the majority’s opinion was correct. Id. at 838. Moreover, it was within the trial court’s discretion to determine whether fiirther deliberations were in order. Id. Ultimately, each of the jurors stood by their verdict, announcing, upon being polled, that they rendered it freely and voluntarily in the jury room and that it was still their verdict.

The evidence at trial shows that Way possessed 1.6 grams of crack cocaine and $937, including 17 $20 bills. Testimony from Agent Sands revealed that crack cocaine is frequently sold in $20 and $40 amounts at the street level. In addition, Way offered to become a confidential informant for the State to “do the big man in Glenville” if the charges were dismissed. The evidence was sufficient to support Way’s conviction for possession with the intent to distribute cocaine under the standard set forth in Jackson v. Virginia.

Decided October 12, 2001.

Barbara J. Nelson, for appellant.

J. Thomas Durden, Jr., District Attorney, D. Jay Stewart, Assistant District Attorney, for appellee.

2. Citing OCGA § 17-8-71, Way contends that the trial court erred by failing to allow him, as the defendant, to argue first and last during closing arguments. “[W]here an accused offers no testimony or evidence into the trial of a case, other than his own testimony, he has the right to the opening and closing arguments.” Scott v. State. Here, the State does not contend that Way introduced evidence other than his own testimony. Instead, the State argues that Way waived the error. We agree.

“[O]bjections to irregularities must ordinarily be made at a time when they may be remedied, or they are waived.” State v. Williamson Here, when the trial court called the State to commence closing arguments, Way made no objection. In fact, prior to initiating its closing argument, the State remarked: “I believe I have the right to open and conclude. I’ll give a brief opening.” Only after Way’s closing, when the State was ready to present its final argument, did Way object to the order of the closing arguments. At this point, the trial court was unable to remedy the situation. Consequently, Way waived any error by failing to timely raise it. Id.

Judgment affirmed.

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

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

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

        Morgan v. State, 230 Ga. App. 608, 609 (1) (496 SE2d 924) (1998).

        Bethea v. State, 220 Ga. App. 800, 801 (1) (470 SE2d 328) (1996).

       Testimony at trial established that Agent Sands worked for the Tri-Circuit Drug Task Force for five years prior to becoming a GBI agent.

        Brown v. State, 243 Ga. App. 842, 843 (534 SE2d 206) (2000).

        Woodford v. State, 240 Ga. App. 875, 876 (525 SE2d 408) (1999).

        Carnell v. State, 246 Ga. App. 542, 543 (1) (541 SE2d 118) (2000).

        Sears v. State, 270 Ga. 834, 837 (1) (514 SE2d 426) (1999).

       OCGA § 17-8-71 provides: “After the evidence is closed on both sides, the prosecuting attorney shall open and conclude the argument to the jury. If the defendant introduces no evidence, his counsel shall open and conclude the argument to the jury after the evidence on the part of the state is closed.”

        Scott v. State, 243 Ga. 233, 234 (2) (253 SE2d 698) (1979).

        State v. Williamson, 247 Ga. 685, 686 (279 SE2d 203) (1981).


text:
    A01A1123.
    TUTU v. THE STATE.
    (555 SE2d 241)
   Blackburn, Chief Judge.

Following a bench trial, Claudia Olympia Tutu appeals her convictions for possession of cocaine and marijuana, contending that the trial court should have suppressed all evidence of the illegal drugs because: (1) the police improperly searched her truck incident to the arrest of her passenger and (2) the police improperly searched her purse which was lying on the floorboard of the truck. For the reasons Set forth below, we affirm.

On appeal from a denial of a motion to suppress, this Court must construe the evidence most favorably to uphold the ruling of the trial court. State v. Winnie. Furthermore, the trial court’s application of law to facts which are undisputed is subject to de novo review. Id.

Viewed in the light most favorable to the trial court’s ruling, the evidence shows that Officer Brian Ray stopped Tutu in a high-crime area for failure to have the license plate on her truck properly illuminated. Officer Ray approached the truck and asked Tutu for her driver’s license and insurance card, which she pulled from one of two purses resting on the floorboard. Officer Ray also asked Tutu’s passenger, Billy Wade Sanders, for his name and birth date.

After gathering this information, Officer Ray returned to his police car to do a computer check to see if Tutu or Sanders was subject to any outstanding charges or warrants. While awaiting a search response, Officer Ray noticed that Sanders was moving around in the cab of the truck, appearing to place something under the passenger’s seat and behind the driver’s seat. Officer Ray surmised that Sanders might be attempting to conceal either weapons or drugs. Moments later, Officer Ray received an indication that Sanders had an outstanding warrant for escape. The warrant was from Grundy County, Tennessee, and the underlying offense related to drug charges. Based on this warrant, Officer Ray arrested Sanders, took him to his patrol car, and then began to search Tutu’s car incident to Sanders’ arrest.

Behind the driver’s seat where Sanders had been reaching, Officer Ray found two film canisters containing marijuana and marijuana residue. Officer Ray then asked Tutu whether the marijuana belonged to her or to Sanders, and she replied that it belonged to her. Following Tutu’s affirmative response, Officer Ray searched the purse from which Tutu had retrieved her license, and he found more marijuana and some crack cocaine as well. At that time, Officer Ray arrested Tutu for possession of marijuana and cocaine.

1. Tutu contends that the search of her truck incident to Sanders’ arrest was improper, arguing that the search was unnecessary to ensure Officer Ray’s safety because Sanders had been handcuffed and removed from the vehicle. We disagree.

The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. ... [A] search incident to the .arrest requires no additional justification.

United States v. Robinson.

The United States Supreme Court has addressed the issue of searches incident to the lawful arrest of the occupant of a motor vehicle. In New York v. Belton, the police found cocaine in the pocket of a jacket found on the backseat of an automobile after the occupants had been arrested and removed from the vehicle. Id. at 456. The Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” (Footnotes omitted.) Id. at 460. This is true even “after the arrestees are no longer in it.” Id. at 459. In so holding, the Supreme Court reversed the decision of the New York Court of Appeals, which had held that the search of the jacket was not incident to a lawful arrest when the automobile was no longer accessible to the occupants. Id. at 456.

Scoggins v. State.

Tutu further contends that, even if a search incident to Sanders’ arrest was appropriate, it was too broad in scope. In essence, Tutu maintains that the search should not have reached the driver compartment of the truck or the containers located therein. In Vega v. State, however, this Court held that, when a driver is lawfully arrested, a search incident to the driver’s arrest may include the passenger compartment. We held that

[s]ince [the driver] was lawfully arrested . . . , [the officer] did not exceed the permissible scope of a search incident to arrest under the Fourth Amendment, the Georgia Constitution or OCGA § 17-5-1. To this extent, we must recognize the broad scope of authority granted to police officers in conducting searches of automobiles pursuant to the search incident to arrest exception. In this situation, the authority to search extends to the entire passenger compartment of the automobile and any closed containers therein.

(Citation and punctuation omitted.) Id. Likewise, these same principles should apply in the converse; when a passenger is lawfully arrested, the search incident to arrest may extend to the driver compartment of the automobile and all containers therein.

Moreover, in this case, Officer Ray observed Sanders reaching behind the driver’s seat in Tutu’s truck, possibly attempting to conceal something. And, Officer Ray expressed a valid concern that Sanders was attempting to secrete weapons or other evidence. This is exactly the sort of situation in which a search incident to arrest is necessary to protect police officers and ensure the viability of their investigations.

2. In her second enumeration of error, Tutu argues that the search of her purse was improper, contending that a purse is an item of property so personal to the owner that it cannot be treated like other containers found in cars. Again, we disagree.

Tutu argues that, because a purse is a highly personal piece of property, it generally cannot be searched without the owner’s consent, unlike other containers found within a vehicle. This argument, however, has recently been rejected by the United States Supreme Court in Wyoming v. Houghton. In this case, the United States Supreme Court allowed a police officer to search the purse of a passenger in a car after noticing drug paraphernalia in the driver’s shirt pocket. The Supreme Court explained that

[w]hen there is probable cause to search for contraband in a car, it is reasonable for police officers ... to examine packages and containers without a showing of individualized probable cause for each one. A passenger’s personal belongings, just like the driver’s belongings or containers attached to the car like a glove compartment, are “in” the car, and the officer has probable cause to search for contraband in the car.

(Emphasis omitted.) Id. at 302.

“Passengers, no less than drivers, possess a reduced expectation of privacy with regard to the property that they transport in cars which ‘travel public thoroughfares.’ Cardwell v. Lewis. ” Wyoming, supra at 303.

Here, Officer Ray discovered marijuana behind the driver’s seat of Tutu’s truck, and Tutu admitted to the ownership of the drugs. At this point, Officer Ray had direct evidence that Tutu possessed illegal contraband, and he had probable cause to search Tutu’s truck, independent of the search incident to Sanders’ arrest. As such, Officer Ray, at that point in time, could search every part of Tutu’s truck, including all containers located therein which might also hold contraband. Wyoming, supra.

Decided October 12, 2001.

Glyndon C. Pruitt, for appellant.

Daniel J. Porter, District Attorney, Shampa Banerji, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        State v. Winnie, 242 Ga. App. 228, 229 (529 SE2d 215) (2000).

        United States v. Robinson, 414 U. S. 218, 235 (94 SC 467, 38 LE2d 427) (1973).

        New York v. Belton, 453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981).

        Scoggins v. State, 248 Ga. App. 1, 2 (545 SE2d 19) (2001).

        Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999).

        Wyoming v. Houghton, 526 U. S. 295 (119 SC 1297, 143 LE2d 408) (1999).

        Cardwell v. Lewis, 417 U. S. 583, 590 (94 SC 2464, 41 LE2d 325) (1974).


text:
    A01A1190.
    JACKSON v. THE STATE.
    (555 SE2d 240)
   Blackburn, Chief Judge.

Following a jury trial, Martino Jamar Jackson appeals his convictions for child molestation, aggravated child molestation, and sodomy, contending that: (1) the trial court erred by failing to merge the convictions for aggravated child molestation and sodomy and (2) there was a fatal variance between the indictment for aggravated child molestation and sodomy and the evidence presented on those charges. Because Jackson waived these arguments for purposes of appeal, we affirm.

1. Jackson first contends that the trial court should have merged his convictions for aggravated child molestation and sodomy as a matter of fact. Jackson further contends that, because of this error, he was improperly sentenced. Jackson, however, “did not object in the trial court to the sentences imposed nor contend that the offenses merged. Thus, the matter was not preserved for appellate review.” (Punctuation omitted.) Wright v. State. See also Heard v. State.

2. Jackson contends that the indictment regarding the counts of aggravated child molestation and sodomy brought against him contained a fatal variance. Once again, however, Jackson has waived this error.

Because the record fails to demonstrate that [Jackson] raised the fatal variance issue on his [aggravated child molestation and sodomy] conviction[s] in the trial court, we may not address it here. Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

Decided October 12, 2001.

Glaze, Glaze, Harris & Arnold, Emmett J. Arnold, for appellant.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

(Punctuation omitted.) Freeland v. State.

Judgment affirmed.

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

        Wright v. State, 233 Ga. App. 358, 362 (4) (504 SE2d 261) (1998).

        Heard v. State, 232 Ga. App. 405, 406 (2) (501 SE2d 884) (1998).

        Freeland v. State, 223 Ga. App. 326, 327 (2) (477 SE2d 633) (1996).


text:
    A01A1300.
    FEDERAL INSURANCE COMPANY v. FARMER’S SUPPLY STORE, INC.
    (555 SE2d 238)
   Blackburn, Chief Judge.

In this negligence action, Federal Insurance Company appeals the trial court’s grant of summary judgment to Farmer’s Supply Store, Inc. Federal Insurance contends that Farmer’s Supply failed to exercise ordinary care when it undertook to demonstrate the operation of a portable electric generator. For the reasons set forth below, we affirm.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

(Emphasis omitted.) Lau’s Corp. v. Haskins. Further, this court conducts a de novo review of the law and evidence. Supchak v. Pruitt.

Viewed in the light most favorable to Federal Insurance, the record shows that in October 1995, Carl C. Tait lost electrical service to his residence after Hurricane Opal passed through LaGrange. Tait told his employee, Danny East, to purchase a portable electric generator from Farmer’s Supply. East spoke with the owner of Farmer’s Supply about the generator. An employee of Farmer’s Supply selected a generator, removed it from its box, and demonstrated to East how to start and stop the generator, add oil and gasoline, and attach the appropriate extension cords. This was the extent of the demonstration, which the employee told East was all he needed to know, and East was not told by any representative of Farmer’s Supply that vibrations could cause the operating generator to shift location. There was no evidence that the demonstrating employee knew about this hazard, and the owner of Farmer’s Supply affirmed that he did not know of the tendency of the generator to shift and that he knew East to be a good mechanic.

East set up the generator about two to three feet from the side of Tait’s house. He turned the generator on about 3:00 p.m., returned to check the generator at 5:00 p.m., and noticed that the generator had shifted about two inches toward Tait’s residence. East moved the generator back to its original position and left. Tait’s residence caught on fire later that evening, and the fire chief concluded that the generator had moved next to the house and ignited the fire.

Federal Insurance paid Tait’s fire insurance claim and then pursued this action against Farmer’s Supply and the manufacturers of the generator as Tait’s subrogee. Federal Insurance’s claim against Farmer’s Supply is based solely on ordinary negligence.

Federal Insurance maintains that the trial court erred because Farmer’s Supply undertook to instruct East in the proper operation of the generator and that, having assumed this duty, Farmer’s Supply was negligent in its instructions. Federal Insurance relies on Blossman Gas Co. v. Williams. Blossman Gas, a propane retailer, agreed to distribute copies of a heater manufacturer’s recall notice in its customer bills. Blossman Gas never sent out the recall notices. When a gas heater exploded and the injured party sued Blossman Gas in a negligence action, we found that it was a jury question whether Blossman Gas undertook the duty to distribute the recall notice and whether it carried out the duty with reasonable care.

Blossman Gas involved a retailer’s failure to carry out an assumed duty, but the evidence there showed the duty was not carried out at all. In contrast, here, there is no evidence that Farmer’s Supply’s instruction to East with regard to operating the generator was not correct. Federal Insurance claims that Farmer’s Supply was nevertheless negligent in failing to warn East about the tendency of the generator to “walk” or shift positions on its own when it was operating. A retailer, however, has no duty to disclose a latent product defect of which it has no knowledge.

It is the general rule that a vendor or dealer who is not the manufacturer is under no obligation to test an article, purchased and sold by him, for the purpose of discovering latent or concealed defects, but that when he purchases and sells an article in common and general use, in the usual course of trade, without knowledge of its dangerous quality, and with nothing tending reasonably to call his attention thereto, he is not negligent in failing to exercise care to determine whether it is dangerous or not. In such a case he may assume that the manufacturer has done his duty in properly constructing the article and in not placing upon the market a commodity which is defective and likely to inflict injury.

King Hardware Co. v. Ennis.

A retailer’s lack of duty to discover and disclose latent defects is more strongly established when the retailer sells a sealed product from a reputable manufacturer. See Davis v. Williams, Although Farmer’s Supply opened the box to demonstrate how to operate the generator, we do not find that the act of removing the unit and showing the basics of its operation imposed on the retailer a general duty to discover and disclose every hazard inherent in operating the machine. And Federal Insurance has not come forward with evidence which would support a finding that Farmer’s Supply owed a duty to discover and disclose the particular hazard which caused the loss. Furthermore, East’s affidavit shows that he became aware that the generator shifted during actual operation. Federal Insurance has not shown a duty on the part of Farmer’s Supply to discover and disclose the tendency of the generator to shift in operation or knowledge of this tendency. East, however, had actual knowledge that the generator did shift while in operation. East had this knowledge prior to the time the generator moved next to the house and caused the fire. The trial court was correct in granting summary judgment to Farmer’s Supply.

Decided October 12, 2001.

Mozley, Finlayson & Loggins, Wayne D. Taylor, Richard D. Hall, for appellant.

Cobh, Grabbe, Spillers & Irwin, R. Chris Irwin, Sharon C. Barnes, for appellee.

Judgment affirmed.

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

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Supchak v. Pruitt, 232 Ga. App. 680, 682 (503 SE2d 581) (1998).

        Blossman Gas Co. v. Williams, 189 Ga. App. 195 (375 SE2d 117) (1988).

        King Hardware Co. v. Ennis, 39 Ga. App. 355, 360 (147 SE 119) (1929).

        Davis v. Williams, 58 Ga. App. 274, 279 (198 SE 357) (1938).


author: Miller, Judge.

text:
    A01A1306.
    GATES v. THE STATE.
    (555 SE2d 494)
   Miller, Judge.

Following a bench trial, the trial court found Jarmenn Gates guilty of possession of cocaine with intent to distribute. On appeal Gates raises four issues: (1) prosecutorial misconduct, (2) ineffective assistance of counsel, (3) his failure to knowingly and intelligently waive his right to a jury trial, and (4) the insufficiency of the evidence. For the reasons set forth below, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that police officers executed a search warrant on a house in LaGrange following a cocaine purchase at the address. The officers found a man and a juvenile, C. H., on the front porch. Gates was in the living room when the officers arrived, and he ran toward the back door. Police seized Gates in the kitchen and found five bags of crack cocaine on the floor in the path Gates had taken to flee. C. H. told police that more cocaine was hidden outside. In the woods behind the house, police found a container with crack cocaine packaged in baggies similar to those found inside. C. H. told police that the crack cocaine hidden outside in the woods belonged to Gates.

1. Gates claims the prosecution committed misconduct by allowing peijured testimony. At the bench trial, Officer Mickle testitied: “Q. And what was the probable cause to obtain the search warrant? A. I made two probable cause purchases of crack cocaine from the residence.”

Contrary to this testimony, it appears from the search warrant and testimony given at Gates’s hearing on motion for new trial that Officer Mickle did not personally purchase cocaine at the residence. Instead, these purchases were made by a confidential informant. Gates argues that Officer Mickle’s trial testimony regarding the prior purchases at the residence was perjury knowingly solicited by the prosecutor. If Gates can show his conviction was secured with the aid of peijured testimony knowingly used by the prosecution, a reversal must follow. “Conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused’s Fifth and Fourteenth Amendment rights to due process of law.” Nevertheless, the evidence does not demand a finding that the prosecution suborned perjury. “A charge of prosecutorial misconduct is a serious charge and is not to be lightly made; having raised it, appellant has the duty to prove it by the record and by legal authority.”

At the hearing on motion for new trial, Officer Mickle testified that he did not intend to mislead the court and that he had “made the buy” by causing it to occur. Perjury requires “both the intent to testily falsely and the act of false testimony,” as opposed to “swearing rashly or inconsiderately, according to belief.” The trial court heard the initial testimony of the officer at the bench trial and his explanation afterward and was in the best position to determine if Officer Mickle’s trial testimony rose to the level of perjury. Furthermore, the evidence did not demand a finding that the prosecution knowingly solicited false testimony. The trial court did not abuse its discretion in failing to grant Gates’s motion for new trial on the basis of prosecutorial misconduct.

Relying on Lowe v. State, Gates also argues that Officer Mickle’s false testimony with regard to the drug buys was hearsay testimony that improperly put his character in issue. The basis for the reversal in Lowe was that the hearsay testimony establishing a basis for the search warrant referred to an unrelated drug deal involving the defendant. Here, the testimony regarding the previous purchase of cocaine at the residence does not identity Gates as the seller.

Officer Mickle also testified that he received advance information that Gates was the occupant of the house to be raided. Gates contends that this testimony improperly put his character into evidence. However, defense counsel made no objection to this testimony at trial. Failure to object to testimony waives the issue on appeal. We note that although Gates groups his argument with regard to this portion of Officer Mickle’s testimony under his prosecutorial misconduct enumeration, we find no basis for characterizing a question that elicits a hearsay response as prosecutorial misconduct. “The contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.”

2. Gates claims he received ineffective assistance of counsel because his counsel failed to object to certain hearsay and perjured testimony. He specifically complains of his counsel’s failure to object to testimony regarding statements made by the juvenile C. H. Officer Mickle testified that C. H. told him that there was a stash of cocaine hidden in the yard belonging to Gates. Sergeant Hilderbrand later read from a statement that he testified was given to him by C. H.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, Gates must show both that counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Gates’s trial counsel testified at the motion for new trial that he did not object to the officers’ testimony because he planned to call C. H. and portions of C. H.’s out-of-court statements were helpful to the defense. Tactical decisions are not a basis for finding counsel’s performance deficient. In fact, C. H. did testify favorably to Gates and maintained he did not make certain statements that the police claimed he made. The trial court did not clearly err in finding that Gates did not meet his burden of showing deficient performance.

3. Gates claims the trial court erred in denying his motion for a new trial because he did not knowingly and intelligently waive his right to a jury trial. “While the defendant must personally and intelligently participate in the waiver of the right to trial by jury, there is no legal precedent which requires that waiver be done in court.” Gates’s trial counsel testified at the motion for new trial hearing that Gates, against counsel’s advice, insisted on a bench trial. This enumeration fails.

Decided October 12, 2001.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Charles P. Boring, Assistant District Attorney, for appellee.

4. Finally, Gates argues that the evidence was insufficient to support his conviction. Even if we treat the out-of-court statements of C. H. as hearsay and so without probative value, and also disregard the statements of Officer Mickle with regard to the previous drug buys at the residence, the evidence shows that Gates was the only person in the house when the police entered, that he ran from the police, and that packets of cocaine were found in the path of Gates’s flight. Additional cocaine, packaged similarly to the cocaine found on the floor of the residence, was found in the backyard. We find the evidence was sufficient for a rational trier of fact to find Gates guilty beyond a reasonable doubt of a violation of the Georgia Controlled Substances Act.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       (Citations omitted.) Kitchens v. State, 160 Ga. App. 492, 493 (1) (287 SE2d 316) (1981).

        Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993).

       (Citations and punctuation omitted.) West v. State, 228 Ga. App. 713, 716 (3) (492 SE2d 576) (1997).

       208 Ga. App. 49, 52 (2) (430 SE2d 169) (1993), overruled on other grounds, Kelly v. State, 212 Ga. App. 278, 282 (2) (442 SE2d 462) (1994).

        Lowe, supra, 208 Ga. App. at 52-53 (2).

        Allen v. State, 272 Ga. 513, 515 (3) (530 SE2d 186) (2000); Stephens v. State, 245 Ga. App. 823, 825 (3) (538 SE2d 882) (2000).

       (Citations and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (4) (458 SE2d 671) (1995).

       466 U. S. 668, 687 (III) (104 SC 2052, 80 LE2d 674) (1984).

        Jackson v. State, 243 Ga. App. 289, 291 (3) (531 SE2d 747) (2000).

       See Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999).

       See Capelli v. State, 203 Ga. App. 79-80 (2) (416 SE2d 136) (1992).

       (Citations, punctuation and emphasis omitted.) Cooper v. State, 189 Ga. App. 286, 287 (2) (375 SE2d 505) (1988).

       See Livingston v. State, 268 Ga. 205, 209 (486 SE2d 845) (1997).

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


text:
    A01A1311.
    MOSES v. THE STATE.
    (555 SE2d 246)
   Blackburn, Chief Judge.

Following a jury trial, Keith Moses appeals his conviction for six counts of selling cocaine, arguing that the evidence was insufficient to support his convictions. We find that the evidence was sufficient and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Jackson v. Virginia; Grant v. State. So viewed, the evidence shows that the Oconee Drug Task Force sent two confidential informants into Hawkinsville with instructions to purchase drugs from anyone who would sell them. Task force agents equipped the car that the informants were to use with a recorder and hidden videocamera. The first informant testified that, on February 23, 1998, he purchased crack cocaine from Moses during two separate transactions. Over the course of the next few weeks, the informant testified that he purchased crack cocaine from Moses during three additional transactions: February 26, 1998, April 15, 1998, and April 16, 1998. At trial, the jury viewed videotapes of all five of these sale transactions.

Decided October 12, 2001.

Straughan & Straughan, Mark W. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

On April 20, 1998, a different informant purchased crack cocaine from Moses in front of Moses’ house. This informant testified that he had known Moses for two years and knew where Moses lived. A videotape of this transaction was also presented to the jury. This informant identified Moses as the seller of the cocaine. During its deliberations, the jury was allowed to view all of the videotapes a second time.

Moses argues that the State’s evidence was insufficient to identify him as the person selling the cocaine. However, both confidential informants identified Moses as the seller. Although the first confidential informant testified on cross-examination that he based his testimony on the videotapes, he also testified that he recognized Moses when he came into court to testify. The second informant admitted to using illegal drugs over a period of years while he was acting as an informant. However, he had known Moses for approximately two years. The cross-examination of the two confidential informants may have introduced some question regarding their credibility, but witness credibility is the jury’s province, and from the evidence presented, the jurors were authorized to believe the informants’ identification testimony. See Grier v. State. Furthermore, the jury had access to the videotapes of the transactions, viewed them twice, and could determine the identity of the persons shown therein. We find that a rational trier of fact could have found Moses guilty of the counts of sale of cocaine for which he was convicted. See Jackson v. Virginia, supra. Moses’ enumeration is without merit.

Judgment affirmed.

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

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

        Grier v. State, 206 Ga. App. 93, 94 (1) (424 SE2d 358) (1992).


text:
    A01A1463.
    BARRACO v. THE STATE.
    (555 SE2d 244)
   Blackburn, Chief Judge.

In his second appeal before this Court, Michael Barraco contends that, during sentencing, the trial court misapplied OCGA § 15-21-73 (a) (1), thereby imposing an excessive penalty on him and entering an improper sentence. Because we find that the penalty imposed on Barraco exceeds the penalty cap set forth in OCGA § 15-21-73 (a) (1), we reverse.

Following remittitur, Barraco filed a motion for the trial court to enter a valid judgment of sentence, claiming for the first time that the penalty imposed as part of his sentence was unlawful under OCGA § 15-21-73 (a) (1). The trial court denied Barraco’s motion, concluding that the penalty was properly applied. Barraco brought this appeal. “As this case involves the interpretation of a statute as a matter of law, our review is de novo.” In re Estate of Donald.

OCGA § 15-21-73 (a) (1) provides: “In every case in which any state court... in this state shall impose a fine, which shall be construed to include costs, for any offense against a criminal or traffic law of this state or political subdivision thereof, there shall be imposed as an additional penalty a sum equal to the lesser of $50.00 or 10 percent of the original fine.” Barraco argues that OCGA § 15-21-73 (a) (1) limits the penalty to the lesser of $50 or ten percent of the sum of the fine and costs imposed by the sentencing judge. In this case, the court imposed the penalty on the fine and costs as separate components of Barraco’s sentence (i.e., $50 on the $1,000 fine and $25 on the $250 costs), arriving at a penalty of $75. Therefore, Barraco contends that the fine exceeds the $50 statutory limit and, as a result, the fine is unlawful and his sentence is void. We agree.

“[J]udicial construction is necessary only when a statute is ambiguous; in fact, when the language of a statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden.” Fleming v. State. The plain language of the statute provides that a penalty is to be applied to criminal or traffic fines imposed by the trial court and these fines “shall be construed to include costs.” (Emphasis supplied.) OCGA § 15-21-73 (a) (1). Therefore, we hold that the penalty contemplated by OCGA .§ 15-21-73 (a) (1) is to be calculated based on the lesser of $50 or ten percent of the sum of the fine and costs imposed by the sentencing court. Had the legislature intended for courts to apply the statutory penalty separately to both fines and costs, it could have so provided. As written, however, costs are included with fines for purposes of the penalty calculation.

Decided October 12, 2001.

Gilbert J. Murrah, for appellant.

Ben Kirbo, Solicitor-General, for appellee.

The State argues that Barraco’s appeal should be dismissed as moot because Barraco waived the penalty issue by failing to raise it during his first appeal. However, the State fails to consider that a trial court may resentence a defendant at any time when the sentence is contrary to law. Crumbley v. State; Daniels v. State. Therefore, this argument fails. We also reject the State’s argument that Barraco’s only recourse is to file a mandamus action against the official responsible for assessing and collecting fines under OCGA § 15-21-73. The State cites no authority for this proposition; moreover, the trial court’s denial of Barraco’s motion to enter a valid judgment of sentence was subject to appeal to this Court. See OCGA § 5-6-34 (a).

We direct that the trial court resentence Barraco so as to comply with OCGA § 15-21-73.

Judgment reversed and remanded with directions.

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

       Barraco was convicted by a jury of misdemeanor possession of marijuana and was sentenced to 12 months of confinement and a fine of $1,000. Costs were assessed against Barraco at $250. On July 2, 1999, Barraco appealed, arguing that the trial court erred in denying his motion to suppress evidence of marijuana found during a police search. On July 7, 2000, the Court of Appeals affirmed in Barraco v. State, 244 Ga. App. 849 (537 SE2d 114) (2000).

        In re Estate of Donald, 222 Ga. App. 355, n. 1 (474 SE2d 251) (1996).

        Fleming v. State, 271 Ga. 587, 589 (523 SE2d 315) (1999).

        Crumbley v. State, 261 Ga. 610, 611 (409 SE2d 517) (1991).

        Daniels v. State, 244 Ga. App. 522 (536 SE2d 206) (2000).

       OCGA § 15-21-74 provides that the penalties imposed by OCGA § 15-21-73 “shall be assessed and collected by the court officer charged with the duty of collecting moneys arising from fines and forfeited bonds.”


text:
    A01A1514.
    ALLSTATE INSURANCE COMPANY v. SPILLERS et al.
    (555 SE2d 489)
   Miller, Judge.

In this declaratory judgment action, Allstate Insurance Company (“Allstate”) appeals from the trial court’s ruling that, since Randall Spillers had implied permission to use an insured car at the time of a car accident, Allstate was obligated to provide insurance coverage to Spillers for injuries arising out of the accident. Since the incorrect legal standard was applied by the trial court, we must vacate the trial court’s ruling and remand the case for consideration under the proper legal standard.

Spillers purchased a 1987 Ford Mustang in 1995. After having his license suspended and facing various financial issues, Spillers fell behind on the car payments. In order to avoid having the car repossessed, Spillers’s father agreed to refinance the car and to take over the payments while Spillers repaid him directly. Spillers’s father believed that taking over the payments would place the title to the car in his name, but the title was never transferred and remained in Spillers’s name.

After the refinancing, the car was listed as an insured vehicle under Spillers’s grandmother’s insurance policy. The policy defined an “insured person” as “(a) you, (b) any resident, and (c) any other person using [the insured auto] with your permission.” “[Y]ou” and “your” were defined as the policyholder and the policyholder’s resident spouse. Spillers did not live with his father and grandmother, but in a nearby trailer. Spillers had his own set of keys to the car, and his father and grandmother were aware that he often drove the car from his grandmother’s house, down a public road, and to an auto shop behind his trailer in order to make repairs on the car. Spillers’s father and grandmother never expressly told Spillers that he could not drive the Mustang.

After Spillers suffered a work-related head injury in 1998, he developed a drinking problem and experienced moments of memory loss and impaired judgment. Spillers’s father and grandmother still did not tell him that he could not use the car.

On March 11,1999, Spillers drove the car on a public road in the direction of a friend’s house. Spillers had been drinking at the time and was not entirely certain where he was headed, but he believed that he was on his way to his friend’s garage where additional work could be done on the car. He became involved in a car accident about four miles from his home.

Allstate filed a declaratory judgment action, alleging that Spillers did not have permission to use the Mustang at the time of the accident. The parties agreed to a bench trial and further agreed that the court should issue its final decision based on the written records and the briefs. Reasoning that because Spillers’s father and grandmother knew that (1) Spillers had previously driven the car on a public road without having to ask for permission when he moved the car to a shop to work on it, (2) Spillers had impaired judgment but was never told not to drive the car, and (3) Spillers could have been driving the car to a friend’s house to conduct further repairs consistent with the scope of prior permission to use the car, the trial court held that “Spillers reasonably could have believed he had permission of the policy holder to drive the insured vehicle on the day in question.”

In a bench trial, factual findings of the trial court will not be set aside unless clearly erroneous, and the decision of the trial court will be affirmed if it is right for any reason. However, “[w]here it is apparent that a trial court’s judgment rests on an erroneous legal theory, an appellate court cannot affirm.” Allstate contends that the trial court erred by concluding that Spillers reasonably could have believed that his use of the insured Mustang was within the scope of permission granted by the policyholder since Spillers’s reasonable belief regarding permission was irrelevant in light of the insurance policy language. We agree that the trial court should not have based its ruling on Spillers’s reasonable belief with respect to the scope of permission and therefore vacate the trial court’s ruling and remand the case for consideration under the proper legal standard.

In a declaratory judgment action involving an insurance policy with an omnibus clause like the one at issue here, an objective inquiry is employed to determine “whether the owner or one in legal possession of the car gave the user permission” to use it. “[T]he permission to use contained in [the] omnibus clause refers to the purpose for which [the] permission was given and not to the operation of the vehicle.” This is not a case involving policy language about a driver’s “reasonable belief” as to their permission or entitlement to use the vehicle, where the inquiry would involve “a mixed objective/ subjective determination of the user’s state of mind — the reasonableness of the user’s subjective belief of entitlement.” The relevant inquiry here is not whether Spillers himself had a reasonable belief that he could use the Mustang for the purpose for which he used it, but whether a reasonable person could conclude under the circumstances that the use of the Mustang fell within the scope of the permission granted by the policyholder.

The trial court should not have framed its decision in terms of Spillers’s own subjective belief that he had permission to drive the vehicle, but only in terms of the application of an objective inquiry. Even if the evidence showed that implied permission existed in this case, “the judgment nevertheless must be vacated and the case remanded for this issue to be considered under a correct theory of law because we cannot say what the trial judge would have concluded if [the judge] had been relying on the correct theory.”

Decided October 12, 2001.

Brooks, Callaway, Braun, Riddle & Hughes, R. Kran Riddle, for appellant.

Brennan, Harris & Rominger, Mason White, James D. Kreyenbuhl, W. M. Brogdon, Jr., for appellees.

Randall Spillers, pro se.

Judgment vacated and case remanded.

Andrews, P. J., and Eldridge, J, concur.

       (Citations and punctuation omitted.) Davis, supra, 268 Ga. at 655.

        State of Ga. v. Banks, 215 Ga. App. 828, 832 (2) (452 SE2d 533) (1994).

        Municipal Elec. Auth. &c. v. City of Calhoun, 227 Ga. App. 571, 574 (3) (489 SE2d 599) (1997).

       (Citation omitted.) Gwinnett County v. Davis, 268 Ga. 653, 655 (492 SE2d 523) (1997).

        Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 713 (1) (470 SE2d 659) (1996).

        Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., 190 Ga. App. 593, 594 (1) (379 SE2d 619) (1989) (involving identical omnibus clause to the one at issue in the instant case); see also Strickland v. Ga. Cas. &c. Co., 224 Ga. 487, 489-490 (2) (162 SE2d 421) (1968).

       (Punctuation omitted.) Hurst, supra, 266 Ga. at 713 (1); see also Harding v. Ga. Gen. Ins. Co., 224 Ga. App. 22, 23 (479 SE2d 410) (1996) (applying mixed objective/subjective analysis in case involving policy language that referenced user’s reasonable belief regarding permission).

       See, e.g., Ga. Farm &c. Ins. Co. v. Allstate Ins. Co., supra, 190 Ga. App. at 594 (1).


text:
    A01A1571.
    MELTON v. THE STATE.
    (555 SE2d 488)
   Miller, Judge.

Walter Melton appeals from the trial court’s denial of his “Motion to Correct Illegal Sentence,” in which he challenged his sentence of life imprisonment for a conviction of kidnapping with bodily injury. We discern no error and affirm.

This appeal marks the fourth time that this case has come before us. The facts of this case are set forth in Melton’s first appeal in which we upheld his conviction. In his second appeal we remanded the case for resentencing on the issue of kidnapping with bodily injury. After a life sentence was imposed on remand, Melton appealed for a third time, and we affirmed his sentence. He now comes before us alleging that his sentence is illegal and void for various reasons, many of which are not properly before us or have already been decided adversely to him in his prior appeals.

1. Melton attempts to raise errors with respect to the indictment and jury charges used in his trial. However, we have previously upheld Melton’s conviction, and he cannot now raise these other issues concerning his conviction in connection with this appeal regarding an alleged illegal sentence.

Decided October 12, 2001

Walter K. Melton, pro se.

Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

2. Melton also contends that the State failed to prove venue at his trial and that OCGA § 16-5-40 (b) is unconstitutional. These issues, however, were already decided adversely to Melton in his prior appeals, and we are bound by those rulings and cannot consider these issues again.

3. Melton further argues that his sentence violates the equal protection clause. In order to prevail on such a claim, however, Melton “must prove that the decision-makers in his case acted with discriminatory purpose.” We fail to see, nor has Melton shown, any discriminatory purpose in the trial court’s issuing a sentence that is authorized by law for the crime of kidnapping with bodily injury. Melton’s contention is without merit.

4. Melton also urges that his sentence is void because OCGA § 16-5-40 (b) is duplicitous. However, “duplicity” is not a concept that relates to a statute, but is rather a “technical fault in pleading of uniting two or more offenses in the same count of an indictment.” Kidnapping with bodily injury is a single crime, and Melton was properly charged with this crime in the indictment. To the extent that Melton may be attempting to challenge the indictment at this time, the time for that challenge has long passed, and the issue would not be properly before us now.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       See Melton v. State, 204 Ga. App. 103 (418 SE2d 428) (1992).

        Melton v. State, 216 Ga. App. 215, 216 (454 SE2d 545) (1995).

        Melton v. State, 221 Ga. App. 778 (472 SE2d 547) (1996).

        Melton, supra, 204 Ga. App. at 105 (4).

        Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000).

       See Melton, supra, 204 Ga. App. at 104 (2); Melton, supra, 221 Ga. App. at 779.

        Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991).

       (Punctuation and footnote omitted; emphasis in original.) Perkins v. State, 269 Ga. 791, 794 (2) (505 SE2d 16) (1998).

       See OCGA § 16-5-40 (b).

       (Citations and punctuation omitted.) State v. Boyer, 270 Ga. 701, 703 (2) (512 SE2d 605) (1999).

       See Daniels, supra, 244 Ga. App. at 523. Cf. Holder v. State, 239 Ga. App. 821 (522 SE2d 59) (1999) (“Failure to object to . . .a defective accusation or indictment at or prior to trial waives the right to appellate review of the issue”) (citations omitted).