author: Andrews, Judge.

text:
    A95A1097.
    PLESS v. THE STATE.
    (462 SE2d 472)
   Andrews, Judge.

Pless, convicted by a jury of one count of possession of cocaine, OCGA § 16-13-30, appeals from the trial court’s denial of his motion for new trial, contending that the court’s earlier denial of his motion to suppress the crack pipe found in his pocket and containing cocaine residue was error.

1. “ ‘In reviewing a trial court’s decision on a motion to suppress . . . , our responsibility is to ensure that there was a substantial basis for the decision. In so doing, we may consider all relevant evidence of record, wherever located, including evidence introduced at a suppression hearing and that introduced at trial, we construe the evidence most favorably to uphold the findings and judgment, and must adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. Further, since the trial court sits as the trier of facts, its findings will not be disturbed if there is any evidence to support them.’ (Citations omitted; emphasis supplied.) Gray v. State, 207 Ga. App. 648, 650 (2) (428 SE2d 663) (1993).” State v. Brodie, 216 Ga. App. 198, 199 (1) (c) (453 SE2d 786) (1995).

So viewing the testimony of Officers Fowler and Kelker at the trial as well as numerous hearings on the case at which either or both testified, the evidence was that Fowler and Kelker were both assigned to the Marietta drug interdiction unit. Their responsibility was to patrol, in uniform and marked cars, areas for which they had reports of recurrent drug activity, i.e., a “hot” area, in an effort to slow or deter such activity. The officers had been patrolling the area of Roosevelt Circle, which had such a reputation. Between 11:30 p.m. on the evening of February 2, 1994 and the officers’ encounter with Pless near 1:00 a.m. on February 3, 1994, Officer Kelker had seen Pless twice approach passersby on the street, have hurried conversations while huddled close to the other person, and then depart. Drug deals are usually conducted furtively and quickly, with both participants keeping a lookout for any police activity and scattering at the sight of an officer.

On the third occasion Pless was seen, he was with Hester, a known drug seller. Again, the two men were in close conversation and, when the police car approached them, they appeared startled and quickly broke away from each other and walked in opposite directions. Officers Kelker and Fowler stopped their car and went to investigate. Kelker approached Hester and Fowler called to Pless and told him to come to him. As Fowler testified, “[a]s I called to him, he made a pitching motion with his right hand.” In such areas, when approached by officers, it was not uncommon for sellers and users to pitch their contraband. Fowler then did a Terry patdown of Pless which revealed no weapons. Fowler handcuffed Pless in order to protect both officers and briefly detain Pless while Fowler went to look for any tossed material approximately 20 to 40 feet away. Fowler took Pless around the patrol car and left him standing close to Officer Kelker who was talking to Hester. Fowler then returned to the spot where he had seen Pless make his pitching motion. In the interim, Kelker had completed his preliminary questioning of Hester and allowed him to leave, since both officers were familiar with him from prior cases and believed they could locate him later if necessary and they did not believe they had any further cause to restrain him.

Officer Fowler found numerous pieces of a white material, cut up or broken to look like pieces of crack cocaine, in the area of Pless’ toss. At this point, Officer Kelker testified Fowler indicated he saw something or found something which could be drugs. Kelker then did a full search of Pless’ person and found a “crack pipe” made from a car antenna stuffed with a piece of Brillo pad in Pless’ front pocket. The pipe contained cocaine residue and was the basis for the charge against Pless. The material found by Fowler was chalk, which drug users sometimes sell to unsuspecting drug purchasers in an effort to get money to fuel their own drug habit.

The court’s order denying the motion to suppress found that “Pless was observed loitering at a late hour on February 3, 1994, in a high crime area known for drug activity; and it further appearing that Robert Pless was acting in a suspicious manner with a known drug dealer when the two Marietta Police officers came upon him and that Pless and the drug dealer quickly walked away from each other at the sight of the police; and it also appearing that Pless made a pitching motion with his hand and arm, and that Officer Fowler subsequently found some cut up pieces of chalk in the area where Pless made the pitching motion; . . .” the motion was denied.

2. There is no question that, at the point where the officers made their initial approach to Pless and Hester, they had “reasonable and articulable suspicion” upon which to initiate the contact based upon their observation of actions consistent with drug activity. Jones v. State, 216 Ga. App. 449 (454 SE2d 631) (1995); Goodman v. State, 210 Ga. App. 369, 370 (436 SE2d 85) (1993); State v. Billoups, 191 Ga. App. 834 (383 SE2d 198) (1989); Hudgins v. State, 188 Ga. App. 798, 799 (1) (374 SE2d 566) (1988).

The next inquiry is whether, by handcuffing Pless while he continued his investigation, Fowler was required to have probable cause at that moment that would support a full arrest, or was further detention in order to protect the officers justified under Terry as a momentary “seizure” which did not rise to the level of an arrest. State v. Corbett, 205 Ga. App. 554, 556 (423 SE2d 38) (1992). “Terry carefully notes that the limitations placed upon a brief investigatory stop depended on the facts and circumstances. They would have to be developed on a case-by-case basis, with the touchstone being always the reasonableness of the officer’s conduct. Noting that the officer remains particularly vulnerable during such a stop precisely because a full custodial arrest has not been effected, the officer must make quick decisions as to how to protect himself and others from possible danger. [Cit.] In determining whether an officer’s conduct during an investigatory stop was proper, the inquiry is not whether the officer could validly have acted similarly but whether under the same circumstances a reasonable officer would have done so. [Cit.]” White v. State, 208 Ga. App. 885, 888 (2) (432 SE2d 562) (1993).

Here, two officers were investigating two suspects, one a known drug dealer, in a known drug area at 1:00 a.m. In order to complete the investigation, Officer Fowler secured Pless and moved away from the two suspicious men and Officer Kelker to see what had been thrown. Under similar factual circumstances, this Court has found that placing a person in the rear seat of a patrol car which has no interior door handles and from which there is no exit without the officer’s opening the door is not an arrest, but a justifiable momentary detention which is reasonable under the circumstances. Goodman v. State, supra at 371 (placing drug suspect in back of police car while checking driver’s license and waiting for accomplice to return found reasonable); Corbett, supra at 556; see Arena v. State, 194 Ga. App. 883, 885 (1) (392 SE2d 264) (1990). We see no difference in momentarily handcuffing a suspicious person while leaving him outside the police car. See White, supra (suspect handcuffed and placed in back of patrol car and returned to store before probable cause was established, detention found reasonable).

Decided September 28, 1995.

Henderson, Weinberg, Cohen & Hart, Daniel L. Henderson, for appellant.

Thomas J. Charron, District Attorney, Bruce D. Hornbuckle, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

At the point at which the chalk was found, even assuming that the officer knew immediately that it was chalk, the officers had probable cause to believe that Pless was possessing with intent to distribute a “counterfeit substance” in violation of OCGA §§ 16-13-78.2 and 16-13-79.

Therefore, the denial of the motion to suppress was not error, nor was the denial of the motion for new trial on this ground.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       The arrest occurred on February 3, 1994, a probable cause hearing was held on April 20, 1994, a probation revocation hearing on June 8, 1994, and a motion to suppress hearing on June 30, 1994. Trial was conducted on August 29, 1994.

       A police officer lacking probable cause may momentarily detain a suspicious individual in order to maintain the status quo pending further investigation. Id.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A95A2287.
    MILLER v. THE STATE.
    (462 SE2d 630)
   Blackburn, Judge.

Gary R. Miller appeals his conviction of felony obstruction of an officer, driving under the influence as a less safe driver, driving a vehicle without a driver’s license in possession, giving a false name to a law enforcement officer, and operating a vehicle without proof of insurance. Miller was arrested after he was found exiting a vehicle involved in a single car crash.

1. Miller contends insufficient evidence was presented to support his conviction of felony obstruction of a law enforcement officer. At trial, Officer Mitchum with the Laurens County Sheriff’s Department, testified that after he arrested Miller for DUI, he put Miller in the back seat of his patrol car. Officer Mitchum then directed traffic while the wrecker positioned itself to pull Miller’s car from the ditch. The wrecker driver needed the car keys in order to tow the car. Miller denied having possession of the car keys; however, Officer Mitchum noticed the imprint of keys in the front pocket of Miller’s pants. As Officer Mitchum attempted to get the car keys from Miller’s pocket, Miller grabbed his arm and pulled him toward the car causing him to strike his head on the roof of the car. Miller then struck Officer Mitchum and attempted to get out of the car. Officer Mitchum subdued Miller by spraying him with Bodyguard Mace.

OCGA § 16-10-24 (b) defines felony obstruction of a law enforcement officer as “knowingly and willfully resist [ing], obstructing], or opposing] any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer.” On appeal, Miller asserts that no evidence was presented that Officer Mitchum was “in the lawful discharge of his official duties” when the officer attempted to reach into Miller’s pocket to obtain the car keys. Miller contends that the officer was finished directing traffic and no evidence was presented that the officer’s duties included assisting a wrecker in removing a vehicle that was not blocking or hindering traffic.

“[A]ll who are proved to have acted as law enforcement officers, whether in uniform or not, are presumed to have been duly appointed as such and to have authority as such until the contrary appears. Proof that one acted as a law enforcement officer is prima facie evidence that he is such officer; and is lawfully discharging his official duties.” (Punctuation omitted.) Logan v. State, 136 Ga. App. 567, 568 (222 SE2d 124) (1975). In the present case, Officer Mitchum testified that he was on duty and was lawfully discharging his duty. Miller did not present any evidence to contradict Officer Mitchum’s testimony. Therefore, Miller’s enumeration of error is without merit. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Miller contends that insufficient evidence was presented to support his conviction of the remaining crimes as charged. Miller argues that no direct evidence was presented that he drove a vehicle. Evidence was presented that the car had run over a road sign prior to stopping in a ravine off the shoulder of the road. Officer Mitchum testified that as he arrived on the scene he saw Miller getting out of the car from the driver’s side of the vehicle.

“Circumstantial evidence may be used in establishing guilt when the accused is charged with driving under the influence. The credibility of the witnesses is solely a question for the trier of fact. We find from the evidence that a rational trier of fact could find the appellant guilty beyond a reasonable doubt.” (Citations omitted.) Boose v. State, 185 Ga. App. 728 (365 SE2d 534) (1988).

As to the crimes other than driving under the influence, Miller admitted under cross-examination that he did not possess a valid driver’s license; that he gave his brother’s name to the officer rather than his own; and that he did not have proof of insurance.

3. In his final enumeration of error, Miller contends the trial court erred in denying his motion for mistrial which was based on the State’s closing argument regarding Miller’s failure to produce witnesses to the facts he asserted in his defense.

Miller testified that his niece was driving the car; that he passed out; but when he woke up, he was alone in the car and did not know where anyone else was. During the State’s closing argument, the prosecutor commented on the fact that neither Miller’s niece nor any member of the family testified. Miller contends this case falls outside the general rule which allows a prosecutor to comment on the defendant’s failure to produce certain witnesses because the prosecutor was aware Miller had requested a continuance due to the failure of his witnesses to come to court. The trial court denied Miller’s motion for continuance due to his failure to subpoena the witnesses prior to trial, and Miller does not appeal the trial court’s ruling on this motion.

Decided September 13, 1995

Reconsideration denied September 29, 1995

Morris S. Robertson, for appellant.

Gary R. Miller, pro se.

Ralph M. Walke, District Attorney, L. Craig Fraser, Jeff J. Conner, Assistant District Attorneys, for appellee.

We do not agree an exception to the general rule is required under the facts of this case. The proper foundation for the State’s argument was laid by the defendant’s testimony; therefore, the trial court correctly denied Miller’s motion for a mistrial. See Blige v. State, 263 Ga. 244 (430 SE2d 761) (1993).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1362.
    WHATLEY v. THE STATE.
    (462 SE2d 779)
   Andrews, Judge.

This case is before us on an out-of-time appeal to determine whether the trial court erred in denying a motion to suppress evidence seized under a warrant for electronic surveillance. We hold that it did not.

This is the second appearance of this case in our court and the procedural history is an involved one. On December 9, 1989, Whatley was convicted in the Superior Court of Floyd County of conspiracy to traffick in cocaine, trafficking in cocaine, and illegal use of a communications facility. Whatley appealed the conviction and sentencing. This Court reversed as to conspiracy to traffick in cocaine, but affirmed on the remaining counts. We also determined that Whatley’s enumeration of error regarding the trial court’s denial of the motion to suppress had been abandoned for failure to cite or argue authority on appeal. Whatley v. State, 197 Ga. App. 489 (398 SE2d 807) (1990). Whatley’s trial counsel also represented him on appeal.

On January 11, 1991, Whatley filed a petition for a writ of habeas corpus in the Superior Court of Bibb County, alleging five grounds for relief: (1) the trial court erred and violated Whatley’s constitutional rights by improperly charging on constructive and actual possession; (2) counsel was ineffective on appeal; (3) counsel was ineffective at trial; (4) the trial court erred in failing to grant a motion to suppress electronic surveillance evidence; and (5) the evidence did not support the verdict.

On April 23 and May 15, 1991, the habeas court held evidentiary hearings, and on July 17, 1992, the court entered an order holding grounds one, three, and five to be without merit. However, the court granted habeas corpus because it found that counsel was ineffective on appeal based on trial counsel’s testimony at the evidentiary hearing that he believed the enumeration of error on appeal regarding the trial court’s denial of a motion to suppress electronic surveillance evidence was not worth pursuing. Thus, the habeas court remanded to the trial court to appoint counsel for the appeal on the issue of the trial court’s denial of the motion to suppress the electronic surveillance evidence.

On September 22, 1992, the State filed an appeal of the habeas corpus order on the grounds that the habeas court erred in granting an out-of-time appeal to pursue the issue of the trial court’s denial of the motion to suppress. The Supreme Court held that the habeas court had no authority to remand to another superior court and thus remanded the case to the habeas court to consider the ineffectiveness of counsel claim. Jones v. Whatley (Case No. S92A1499, December 2, 1992).

On September 7, 1994, the case was heard on remand to the habeas court. The court adopted its earlier order of July 17, 1992, in which it concluded that Whatley received ineffective assistance of counsel on appeal. The order stated that if the State did not file an appeal to the Supreme Court within 30 days, Whatley would then be entitled to a direct out-of-time appeal to the Court of Appeals of his conviction and sentence on the issue of the trial court’s failure to grant the motion to suppress.

The State did not appeal and on November 3, 1994, Whatley, with new counsel, filed a notice of appeal to the Court of Appeals in the Superior Court of Floyd County, alternatively labeled as a notice of application for an out-of-time appeal, and included a motion for a new trial. Whatley sought authorization to appeal on all grounds, not just on the trial court’s failure to suppress. On February 1, 1995, the Superior Court of Floyd County issued an order finding that the enumeration regarding ineffectiveness of counsel at trial was res judicata and denied Whatley’s motion for a new trial. The court also found that the habeas court failed to use the proper two-pronged analysis as to the effectiveness of counsel on appeal, but determined that “this court, (the trial court), will not act in derogation of said standing Habeas Court Order and will authorize said appeal ‘out-of-time.’ ” The court further authorized Whatley to file an amended notice of appeal, allowing him “to raise all issues on appeal before the Court of Appeals as may exist on this case including the issue of ineffective assistance of counsel at trial.” Accordingly, on February 16, 1995, Whatley filed an amended notice of appeal on all issues.

1. The central issue in this out-of-time appeal is whether the trial court erred in denying Whatley’s motion to suppress. Whatley contends that the trial court erred in not granting his motion to suppress because the affidavit upon which the pen register warrant and all the other surveillance and seizure warrants were issued contained false information and, therefore, failed to establish probable cause for the warrant. Specifically, Whatley claims that the statements in the affidavit concerning the confidential informant are false.

“The standard of probable cause for a wiretap authorization is the same as the standard for a regular search warrant.” (Citations omitted.) Ayers v. State, 181 Ga. App. 244, 248 (351 SE2d 692) (1986). In a search warrant based primarily on information from a confidential informant, the test is whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of persons supplying the information, there is a fair probability that evidence will be found in a particular place. State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984). Further, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for determining probable cause existed. Stephens, supra. In situations where the court has determined that the affidavit contains a false statement, the false statement should be deleted, any omitted truthful material should be included, and the affidavit reexamined to determine whether probable cause exists. Peters v. State, 213 Ga. App. 488, 489-490 (445 SE2d 290) (1994).

After a review of the evidence submitted, the State’s exhibits, and the transcript in the Cook case, the trial court determined that the reliability of the informants was properly considered by the Magistrate and was adequately supported by the evidence. The trial court concluded, therefore, that the warrant was supported by probable cause.

“On motion to suppress evidence, the trial judge sits as the trior of the facts, hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it.” (Citations omitted.) Dimick v. State, 178 Ga. App. 60, 61-62 (341 SE2d 914) (1986). In reviewing the record and the affidavit of Sgt. Shiflett, we find there was sufficient evidence to support the trial court’s denial of the motion to suppress.

Whatley’s contention that there was no probable cause to issue the warrant is based on a statement in the affidavit of Sgt. Shiflett stating that the confidential informant giving information had previously provided reliable information used in the arrest and conviction of one Anthony Cook. Whatley claims that the transcript of the Cook case shows that no confidential informant was involved and, therefore, this statement is false. But, it does not follow that the statement is false simply because there is no mention of a confidential informant in the Cook transcript. The state contends that Whatley’s trial counsel, who also represented Cook, objected to the introduction of this evidence on the grounds that it was hearsay. The Court sustained that objection, and therefore, there is no mention of the informant in the transcript.

Even assuming this statement to be false and deleting it from the affidavit, there was still probable cause to issue the warrant. Sgt. Shiflett’s affidavit is 22 pages of very detailed information gathered from many different sources. The information received from the confidential informant in the Cook case is just one small part of the affidavit taken as a whole. The affidavit also lists information received from another confidential informant in the case. At the suppression hearing, Sgt. Shiflett gave examples of numerous incidences in which he had corroborated information received from informant No. 2 and the information was always reliable. In addition, the affidavit shows that information obtained from other sources, confidential informants Nos. 4 and 5, was also used to establish probable cause.

Thus, for the reasons stated above, we find the Magistrate had a substantial basis of evidence from which to determine probable cause existed. Therefore, there is sufficient evidence to support the trial judge’s denial of the motion to suppress. Accordingly, this enumeration of error is without merit.

2. As previously discussed, the Superior Court’s order allows Whatley to raise any and all issues in the case in this appeal and does not limit the appeal to the denial of the motion to suppress. However, enumerations of error 2, 4, 5 and 6 have already been considered by this Court and found to be without merit. See Whatley v. State, 197 Ga. App. 489 (398 SE2d 807) (1990). Any issue that was raised and resolved in an earlier appeal is the law of the case and is binding on this Court. Moore v. American Suzuki Motor Corp., 211 Ga. App. 337, 340 (439 SE2d 43) (1993); Parker v. State, 76 Ga. App. 238 (45 SE2d 692) (1947).

Decided September 29, 1995

Smith, Price & Wright, C. Gregory Price, for appellant.

Stephen F. Lanier, District Attorney, for appellee.

3. In enumeration of error 3, Whatley raises the issue of ineffective assistance of trial counsel. The issue of ineffective assistance of trial counsel was decided adversely to Whatley in the habeas court’s order of July 17, 1992. The judgment of the habeas court is conclusive on this issue. Hunter v. State, 260 Ga. 762 (399 SE2d 921) (1991).

4. In enumeration of error 7, Whatley claims that the trial court erred in admitting into evidence items seized after the dates alleged in the indictment. Whatley contends that since the prosecutor specified certain dates in the indictment he was limited as to proof to those dates. That is not the law in Georgia. “The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” (Citations and punctuation omitted.) Martin v. State, 196 Ga. App. 145, 146 (395 SE2d 391) (1990). It does not appear, and Whatley does not claim, that the dates listed are material allegations of the indictment. Therefore, the court did not err in admitting into evidence items seized after the dates specified in the indictment.

5. In his eighth enumeration of error, Whatley argues that because several portions of the record have been sealed and are unavailable to his present counsel, there may be errors of law which counsel is unable to discover. Whatley requests either that this Court order the record unsealed so that his counsel may review it for any errors or that this Court review the record and determine whether there was any error of a constitutional magnitude.

We have reviewed the sealed portion of the trial transcript and find no errors of a constitutional magnitude. Further, the record does not show that Whatley’s trial counsel objected to any evidence contained in the sealed portions of the record; therefore, no issues have been preserved for appeal. Since the habeas court found that Whatley received effective assistance of counsel at trial, there is nothing for this Court to review.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       In light of the above and after a careful review of the affidavit, we also affirm the trial court’s finding that the Magistrate, in issuing the warrant, complied with the procedural mandates of OCGA § 16-11-64 (b) by determining that Sgt. Shiflett either had personal knowledge of the facts as set out or had been informed of these facts by a reasonably trustworthy source.


text:
    A95A1315.
    STEPHENSON v. THE STATE.
    (462 SE2d 767)
   Andrews, Judge.

Stephenson appeals from the denial of his motion for new trial on his conviction of burglary.

1. The eighth enumeration of error addresses the alleged insufficiency of the evidence and is addressed first.

“On appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

So viewing the evidence, it was that Henry owned book stores which specialized in paperbacks and collectible comic books. On the evening of Sunday, November 23, 1986, he closed and locked his Clayton County store for the evening around 8:00 p.m. In anticipation of the upcoming holiday season, he had ordered a $40,000 inventory of comic books which he had recorded for his records. In a glass display case he had arranged 400 comic books valued at approximately $10,000. When he arrived on Monday to open the store around 8:00 a.m., the front door was slightly ajar. The glass door, which had metal edging and handle, was missing the cylinder out of the lock. The discarded cylinder was later found outside on the sidewalk and was reinstalled by a locksmith who was able to rescrew it into its seat since it had not been damaged when removed. Inside, he discovered that the comic books in the display case, two valuable collectible toys, and $150 in cash were missing.

He called four other stores in the metro area which handled such merchandise and reported the missing items. Because of the nature of the comic book collectibles industry, books can be recognized by their condition, such as a crease or altered staple, as well as their titles. On Tuesday, Henry had one of his employees contact the fifth such store in Smyrna, which had been closed on Monday. Davis, owner of that store, spoke with her and made note of certain very unusual comics among those stolen, such as Green Hornet and X-Men comics, as well as several runs or complete series of some titles. In his 11 years in business, he had never seen a Green Hornet or X-Men comic book.

On Tuesday, November 25, around 3:30 p.m., Stephenson came into Davis’ store with a box of comic books, inquiring as to their worth. Davis looked through the books, locating a Green Hornet and other suspicious comics. He told Stephenson that some were similar to some stolen ones and he wanted to check on it. Stephenson told him that an uncle, either “Jim” or “Tom,” had given them to him and asked if he could use Davis’ phone. Davis, standing close by, heard Stephenson say that “they were giving him trouble.” After getting off the phone, Stephenson said he was going to get written proof and declined to stay with Davis until Henry or one of his employees arrived to check the comics. Stephenson did, however, agree to leave the box of comics, which Davis opined was unusual, considering their apparent value. One of Davis’ customers noted the license number of the car, which was reported to the police. Stephenson never returned to the store, and Davis picked his photo from a photo spread. Upon arriving, Henry’s employee identified the nearly 200 comics as Henry’s and returned them to him for sale during the holiday season.

On November 17, 1986, Stephenson rented a car from a local rental agency. While doing so, he talked to the clerk and told her he was a locksmith with Lock Surgeon and had done some work that day for her company in another office, which was true. He saw her floor safe and commented that, if she would lock it, he could open it in a couple of minutes. The car was not returned by him until December 2, 1986. The clerk verified that the license number recorded by Davis’ customer was that of the car Stephenson rented.

In early December, two Newberry brothers and their father were doing a three-day roofing job on an apartment complex off Six Flags Road near Austell. J. A. Newberry, one of the brothers and boss of the roofing crew, testified that on the last day, his father and other laborers were cleaning up on the job and he saw his father bring a large number of comic books back to their truck. No one in the truck had any comic books prior to this. Also, J. A. said that he had seen Stephenson around the apartments every day of the three they were working there.

On December 11, 1986, on the way to another job, the Newberry brothers took the comic books into Henry’s College Park store to see how much they were worth. Told by Henry that they were the other missing 202 comic books, the Newberry brothers waited for the police to come and interview them. Asked why they waited, J. A. said because they had not done anything. The father, who drifted and apparently was homeless, could not be located.

Stephenson testified that he had rented the car and he was a master locksmith. He denied entering the store, stating that on Tuesday after the burglary a friend named Arnold Kimmons, another locksmith, had offered to trade him the comic books for five deadbolt locks which Kimmons needed for a job but could not get wholesale due to his bad credit. The five locks which Stephenson traded Kimmons cost Stephenson $85.

Stephenson admitted taking the books to sell them. He denied telling Davis an uncle gave them to him, stating he said Arnold Kimmons had. He testified that he called Arnold from the store and asked if they were stolen. Kimmons, according to Stephenson, responded they “might be a little warm.” Stephenson said he left and returned to his Austell apartment where he had left the remaining comics on the back porch, but they were gone.

Stephenson had no address for Kimmons, no phone number other than one which was supposedly displayed on Kimmons’ car for his “mobile” locksmith service, and had been unable to reach him or give his whereabouts.

We find the evidence legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Bolar v. State, 216 Ga. App. 195, 197 (4) (453 SE2d 790) (1995).

2. Enumerations four and five deal with the court’s charge on flight and are considered together. Four alleges that the evidence was insufficient because that issue was not raised by the evidence. We disagree. Renner v. State, 260 Ga. 515, 517 (3) (a) (397 SE2d 683) (1990).

Five contends that the court erred in charging on flight “when the court failed to notify counsel during the charge conference that this charge would be given.” First, we note that the giving of the charge in a case where the evidence justified it was not error when this case was tried in 1987. Renner, supra. Secondly, there is no recorded charge conference, and this Court will not assume error where none appears. Stephenson has failed to carry his appellate burden as to this issue. Ross v. State, 214 Ga. App. 385 (448 SE2d 52) (1994). We note that the record does reflect that neither the State nor Stephenson filed any written requests to charge.

3. The third enumeration is that the court erred in including the phrase “moral and reasonable certainty” in its charge on reasonable doubt.

Although disapproved by the Supreme Court in Vance v. State, 262 Ga. 236, 238, fn. 5 (416 SE2d 516) (1992), even if given, such a charge is not reversible error if the charge, as a whole, repeatedly and accurately conveyed to the jury the concept of reasonable doubt. Id.; Moore v. State, 212 Ga. App. 497, 498 (2) (442 SE2d 311) (1994). The charge here did so.

4. The first and second enumerations deal with claimed errors in the sentencing of Stephenson and are considered together.

Stephenson’s indictment, which was redacted when given to the jury for its deliberations, contained notice that he was being indicted as a recidivist under OCGA § 17-10-7 (a) for two prior felonies, a burglary in Gwinnett County and a theft by taking conviction in Clayton County. Thereafter, in May 1987, Stephenson was convicted in Fulton County of rape, aggravated assault, and kidnapping. By amended notice dated June 9, 1987, the day this burglary trial began, the Fulton conviction was included as a third felony.

At the sentencing hearing on June 10, trial counsel for Stephenson objected to the consideration of the Fulton conviction on the ground that it was not final since the 30 days for appeal had not yet lapsed, although no notice of appeal had been filed to date. The court overruled this objection without comment.

The sentence, as entered, was that Stephenson be sentenced to 20 years to be served consecutively to the sentence he was then serving and that “[t]he Court finds prior to having committed the above offense the defendant had previously been found guilty of the following felonies, to wit: [the Gwinnett County burglary and the Clayton County theft by taking]. This sentence is imposed under OCGA § 17-10-7.”

OCGA § 17-10-7 (a) provides that any person “convicted of a felony offense in this state . . . and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he . . . stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his . . . discretion, probate or suspend the maximum sentence prescribed for the offense.” (Emphasis supplied.)

The first enumeration is that the court erred in considering the Fulton conviction, which was not yet final. This is correct. Mitchell v. State, 202 Ga. App. 100, 101 (2) (413 SE2d 517) (1991); Dunn v. State, 208 Ga. App. 197, 198 (4) (430 SE2d 50) (1993). This alone, however, does not merit a resentencing proceeding as requested by Stephenson.

Although the court overruled the objection to the certified copy of the Fulton conviction, the Clayton and Gwinnett convictions were also tendered. After sentencing Stephenson to the full 20 years for burglary, consecutive, the court stated “I might add to the record that this indictment is brought under the Habitual Criminal Act. Now you are found to be an habitual criminal with two prior convictions, this sentence is imposed under that act.” (Emphasis supplied.)

Since there were two other valid felonies for the court’s consideration, Stephenson has failed to show harm from any error in the allowance of the Fulton conviction.

The second enumeration is that the court “failed to exercise its discretion in sentencing . . . because the court failed to consider sentencing Appellant to a period of probation and less than the maximum to serve. . . .”

We cannot assume, from the record before us, that the court failed to exercise the discretion which is allowed but not required to be exercised by OCGA § 17-10-7 (a). This is what Stephenson’s argument, made without citation of authority, would require us to do. Since the sentence is within the statutory limits of OCGA § 17-10-7 (a), there is nothing for us to review. Dryer v. State, 205 Ga. App. 671, 673 (4) (423 SE2d 297) (1992) (physical precedent).

5. The sixth enumeration is that the court erred in allowing “the hearsay identification testimony by Mr. Newberry, Jr. [J. A.], that his father told him that he obtained the comic books from [Stephenson].” Trial counsel’s hearsay objection to this testimony, albeit made several questions after the statement was made, was sustained by the trial court. This enumeration raises nothing for us to consider.

6. Finally, appellate counsel contends that the trial court’s denial of the motion for new trial on the ground of ineffective assistance of counsel was error.

This issue was raised below by the post habeas corpus motion for new trial, and trial counsel testified, although some seven years after the trial. The trial court denied the motion.

“ ‘ “The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” [Cit.] In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) “that counsel’s performance was deficient,” i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this “deficient performance prejudiced the defense,” i.e., that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” [Cit.] “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” [Cit.] The complaining defendant must make both showings.’ Ford v. State, 255 Ga. 81, 85 (8) (335 SE2d 567) (1985).” Richardson v. State, 194 Ga. App. 358 (390 SE2d 442) (1990).

The 85-page transcript of the motion for new trial hearing is included in the record, and Stephenson’s trial counsel testified extensively about his actions, claimed lack of action, and strategy. The trial court concluded that the claimed ineffective assistance claim was meritless. The trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. Smith v. State, 216 Ga. App. 415, 416 (3) (454 SE2d 615) (1995). Having examined this transcript, the ruling was not clearly erroneous.

Decided September 14, 1995

Reconsideration denied October 2, 1995

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Stephenson was tried and sentenced in June 1987 while represented by counsel. He filed an untimely pro se request for sentence review and a pro se motion for out-of-time appeal, the former of which was dismissed, the latter denied. On April 5,1994, after a habeas corpus hearing, he was granted an out-of-time appeal.

       The publication date of Renner was January 10, 1991.

       The conviction was later affirmed by this Court. Stephenson v. State, 191 Ga. App. 877 (383 SE2d 363) (1989).


author: Birdsong, Presiding Judge.

text:
    A95A0887.
    RAMEY et al. v. HOSPITAL AUTHORITY OF HABERSHAM COUNTY et al.
    (462 SE2d 787)
   Birdsong, Presiding Judge.

This is a medical malpractice case arising from the death of Rebecca Leigh Ramey during childbirth. Dr. Sheldon E. Baum, Ramey’s attending physician, is alleged to have issued instructions regarding blood typing and matching and to have delayed necessary surgery that caused Rebecca Ramey to go into shock and die because of blood lost during a cesarean section. Casey Matthew Ramey, a minor child, by Ruthann Kinney, individually, and as administratrix of the estate of Rebecca Leigh Ramey, filed this action against Dr. Baum, the Hospital Authority of Habersham County d/b/a Habersham County Medical Center (“the hospital authority”), the medical staff of the Haber-sham County Medical Center (“the medical staff”), David A. Bray, M. D., and Lawrence Grench, M. D. Subsequently, the medical staff and Dr. Bray moved to dismiss the action against them because, as the medical staff and the chief of staff, they were not capable of being sued independently from the hospital authority, but if they were, they were entitled to charitable immunity.

The issues in this appeal are whether the medical staff and the chief of staff of the hospital were properly dismissed from the action because a medical staff and a chief of staff are not separate legal entities, apart from the hospital, which could be sued, and if they could be sued, whether they were entitled to charitable immunity. The trial court found that although the hospital staff and the chief of staff were entities capable of being sued, Ramey could not maintain the action because these parties were nevertheless entitled to charitable immunity. Pursuant to the trial court’s certification of its dismissal under OCGA § 9-11-54 (b), this action was appealed to this Court. Held:

1. Under OCGA § 9-2-25 (a) “[a]ctions may be maintained against and in the name of any unincorporated organization or association for any cause of action for or upon which the plaintiff therein may maintain such an action against the members of the organization or association.” Thus, our initial consideration is whether the medical staff is an unincorporated organization or association that may be sued under this Code section.

Inherent in this consideration is the question whether the medical staff is a separate entity so that an action may be maintained against the medical staff independently of an action against the medical center. Under the rules and regulations promulgated by the Georgia Department of Human Resources governing hospitals, hospitals are under the control of a governing body. Ga. Comp. R. & Regs. §§ 290-5-6-.01 (1); 290-5-6-.02 (f). In accordance with these rules, the professional staff is organized under and is responsible to the governing body of the hospital and is responsible for the quality of the care provided in the hospitals and for the ethical and professional practices of the members of the professional staff. Ga. Comp. R. & Regs. § 290-5-6-.01 (7). Nevertheless, these rules and regulations provide that it is the governing body which is responsible for compliance with all applicable laws and regulations and for the ethical and professional practices of the professional staff. Ga. Comp. R. & Regs. § 290-5-6-.01 (9). Further, under the law of this state, the hospital authority, and not the medical staff, is responsible for selecting staff members. Mitchell County Hosp. Auth. v. Joiner, 229 Ga. 140, 142 (189 SE2d 412); Joiner v. Mitchell County Hosp. Auth., 125 Ga. App. 1 (186 SE2d 307). In this case, the relationship between the hospital authority and the medical staff is further controlled and defined through the bylaws. Under these bylaws, the medical staff is clearly subordinate to and dependent upon the hospital authority. Significantly, the bylaws provide that the “staff is an integral part of the Medical Center and is not a separate legal entity.”

Therefore, we find that as a matter of fact and law, the medical staff and its chief of staff are not separate, independent entities capable of being sued independently of the hospital authority. Although we find that the trial court erred on this point, we need not reverse the trial court because the trial court dismissed the complaint against these defendants based on the charitable immunity doctrine. A correct decision of a trial court will not be reversed, regardless of the reasons stated. Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268).

2. Because we have determined that the medical staff and the chief of staff cannot be sued as separate entities, we need not address the other enumerations of error challenging the trial court’s other bases for dismissing the action against these defendants.

Decided October 2, 1995

Smith, White, Sharma & Halpern, Larry J. White, Toliver & King, A. Leroy Toliver, for appellants.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, Sullivan, Hall, Booth & Smith, Terrance C. Sullivan, David V. Johnson, for appellees.

Alston & Bird, Jack S. Schroder, Jr., Kimberly A. Ackourey, amici curiae.

Judgment affirmed.

Johnson and Smith, JJ., concur.


author: Ruffin, Judge.

text:
    A95A1236.
    TENANT v. THE STATE.
    (462 SE2d 783)
   Ruffin, Judge.

John Ray Tenant was charged in a five-count indictment with false imprisonment, aggravated sodomy, and rape against one female victim on July 10, 1993, and with kidnapping and criminal attempt to commit aggravated sodomy against another female victim on October 22, 1993. The two incidents were severed for trial, and the latter charges, at issue in this appeal, were tried first. The jury acquitted Tenant of kidnapping but convicted him of criminal attempt to commit aggravated sodomy. Tenant appeals following the denial of his motion for new trial. For reasons which follow, we affirm.

The evidence at trial showed that one evening, as the victim was walking home, Tenant grabbed her and threw her into his car. Tenant began hitting the victim in the face and telling her she was going to perform oral sex on him and that they were going to have anal intercourse. Tenant started driving and at some point tore the victim’s dress from her. When he stopped the car, the victim saw the lights of a police car behind them. The victim then got out of the car and ran back to the police car screaming “rape.”

At trial, the State presented the other victim’s testimony as evidence of a similar transaction. At a pretrial hearing on the admissibility of the similar transaction, the presiding judge stated that the evidence might be admissible but did not make a final ruling. Immediately before the trial began, the trial court again addressed the admissibility of the similar transaction, and after a proffer of the testimony, the court ruled it admissible.

1. In his first three enumerations of error, Tenant contests the sufficiency of the evidence. Tenant argues that because there were inconsistencies in the victim’s statements to the arresting officer, no rational trier of fact could have found him guilty of criminal attempt to commit aggravated sodomy.

“Appellate courts do not weigh the evidence or determine the credibility of the witnesses, for the jury has already done that; on appeal, we construe the evidence in favor of the jury’s findings and determine only whether the evidence is sufficient to support the verdict. The evidence is amply sufficient to enable a rational trier of fact to find [Tenant] guilty of the offense charged beyond a reasonable doubt. [Cits.]” Hooks v. State, 212 Ga. App. 878, 879 (3) (443 SE2d 532) (1994) (citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)).

2. Tenant contends the trial court erred in allowing the similar transaction evidence because it was ruled inadmissible at the pretrial hearing. Tenant argues he was prejudiced by the State’s failure to give written notice of its intent to have the trial court reconsider its initial ruling. However, the record does not support Tenant’s underlying assertion that the trial court initially held that the testimony was inadmissible. Rather, it appears that a presiding judge initially reserved ruling on the evidence. At the second hearing before the judge to whom the case was assigned for trial, Tenant even acknowledged that at the first hearing the presiding judge said he would leave the decision to the trial judge.

Furthermore, “[t]he purpose of [Uniform Superior Court] Rule 31.3 ‘is to provide a criminal defendant with fair and adequate notice of the State’s intention to utilize evidence of prior similar transactions so that questions as to the admissibility of such evidence can be resolved before trial.’ [Cit.]” James v. State, 209 Ga. App. 182 (1) (433 SE2d 132) (1993). Because it is undisputed that prior to the first hearing Tenant had notice of the State’s intention to use the evidence and he was fully aware of how the court intended to address the State’s motion, Tenant was not harmed by the lack of any subsequent notice. See id.

Finally, Tenant never objected to not having notice of the second hearing, did not object to the trial court’s ruling of admissibility, and did not object when the evidence was offered at trial. Under these circumstances, Tenant waived any claim of error. See Phillips v. State, 215 Ga. App. 526, 527 (4) (451 SE2d 517) (1994).

3. Tenant contends the trial court improperly charged the jury that he was accused of criminal attempt to commit sodomy instead of criminal attempt to commit aggravated sodomy. The record shows that at the beginning of the court’s charge, the trial judge stated as follows: “What we have been trying today is a case that was indicted by the Grand Jury of this County where the State charged Mr. John Ray Tenant with the charges of kidnapping and criminal attempt to commit sodomy.” It is upon this sole inaccuracy that Tenant bases his assertion of error. The record shows however, that subsequent to that initial statement, the judge read the indictment, correctly stating that Tenant was accused of criminal attempt to commit aggravated sodomy, and that all subsequent references to the charged offense were correctly stated.

“A mere verbal inaccuracy in a charge resulting from a palpable ‘slip of the tongue,’ which clearly could not have misled or confused the jury, is not reversible error. A mere slip of the tongue is considered harmless when considered in the light of the entire charge.” (Citations and punctuation omitted.) Sanders v. State, 257 Ga. 239, 243 (6) (357 SE2d 66) (1987). Considering the fact that the court correctly and repeatedly instructed the jury that Tenant was charged with criminal attempt to commit aggravated sodomy and the fact that the trial judge sent the indictment out with the jury, we conclude that the court’s misstatement was harmless. Moreover, sodomy is a lesser specie of the offense than aggravated sodomy; hence, Tenant was not prejudiced.

4. Tenant contends he was denied effective assistance of counsel in that his attorney (a) failed to make an opening statement; (b) failed to move for a mistrial after a prosecution witness stated Tenant was on parole; (c) failed to make certain inquiries during cross-examination; (d) failed to move for a directed verdict of acquittal; (e) failed to request jury charges; (f) failed to investigate the case; and (g) had a conflict of interest.

“In order to demonstrate ineffective assistance of counsel, a criminal defendant must show that trial counsel’s performance was deficient, and that the deficient performance prejudiced the defense, i.e., that there was a reasonable probability that, but for trial counsel’s unprofessional errors, the outcome of the case would have been different. [Cits.] Trial strategy and tactics do not equate with ineffective assistance of counsel. [Cit.]” Hayes v. State, 211 Ga. App. 801, 802 (1) (440 SE2d 539) (1994) (citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)). However, we will address each assertion individually.

(a) “Waiver of opening statement is a matter of trial strategy that does not equate to ineffective assistance. [Cit.]” Sanders v. State, 211 Ga. App. 859, 862 (1) (440 SE2d 745) (1994).

(b) The record shows that a prosecution witness stated that Tenant was on parole, Tenant’s trial counsel objected to the statement, and the trial court sustained the objection. However, because Tenant’s trial counsel did not testify at the hearing on the motion for new trial, we cannot conclude that the failure to move for a mistrial was not a matter of trial strategy. Trial counsel may have felt that no harm was done to Tenant in the context of the testimony and that after the court sustained his objection, it was in Tenant’s best interest for the trial to go forward without any further mention of the incident to the jury. See Sutton v. State, 238 Ga. 336 (232 SE2d 569) (1977). Furthermore, any resulting error from the failure to request a mistrial was harmless in light of the other evidence in the case and the fact that the jury had before it properly admitted evidence of a previous rape conviction. See id.

(c) Decisions on whether and how to conduct cross-examination were strategic and tactical decisions within the exclusive province of trial counsel, and Tenant has failed to show how this tactical decision on the part of his counsel could have changed the outcome of the case. See Wright v. State, 211 Ga. App. 474 (5) (440 SE2d 27) (1993). Accordingly, this contention is without merit.

(d) Tenant’s assertion that his trial counsel was ineffective because lie failed to move for a directed verdict is without merit. Because we concluded in Division 1 that there was sufficient evidence to sustain Tenant’s conviction, “a motion for directed verdict of acquittal would have been futile, and the failure to do so in no way constituted a deficient performance.” Hayes, supra at 803.

(e) Neither can trial counsel’s failure to request jury charges be considered ineffective assistance. Tenant has not shown that the charges given to the jury were deficient or that the failure to request specific charges prejudiced his defense. See Davis v. State, 209 Ga. App. 187, 190 (6) (433 SE2d 366) (1993). Thus, we find no merit in this contention.

(f) Tenant’s assertion that his trial counsel failed to investigate the case is not supported by the record. Considering the totality of the representation provided by counsel, including the fact that he obtained an acquittal on the kidnapping charge, we find nothing, and Tenant has pointed to nothing, supporting this assertion. See id.

(g) Finally, the record fails to establish that Tenant was denied effective assistance of counsel due to a conflict of interest. “ ‘When conflict of interest is raised in a post-conviction proceeding, the petitioner must show actual conflict which caused his counsel’s performance to be adversely affected. [Cits.]’ [Cit.]” Young v. State, 217 Ga. App. 144,148 (2) (456 SE2d 733) (1995). The record shows that at the presentence hearing, Tenant told the court that trial counsel “was representing one of my sisters in litigation against me. That’s what I been trying to get him, you know, that I just don’t feel he represented me adequate [sic].” Trial counsel responded that the matter at issue involved the estate of Tenant’s mother and that he represented Tenant’s sister in a case against the administrator of the estate. The trial court found no conflict. Under these circumstances, Tenant has not shown that any actual conflict existed. Moreover, there is absolutely nothing to indicate that any potential conflict adversely affected his trial counsel’s performance. Accordingly, this enumeration is without merit.

Decided October 2, 1995.

Jeffrey S. Bowman, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Beasley, Chief Judge.

text:
    A95A1239.
    STUTTS et al. v. MOORE et al.
    (463 SE2d 30)
   Beasley, Chief Judge.

In this dispute about the right to use a 420-foot portion of a farm road, which is now the border between the property of defendants John C. Stutts and Audrey P. Stutts (the “Stuttses”) and that of defendant Stuttson, Inc., all defendants appeal the denial of their motion for summary judgment and the grant of summary judgment to plaintiffs Buron P. Moore, Jr. and Clyde Allen Moore (the “Moores”). Although the material facts are not in dispute, the parties are at odds concerning the legal consequences which attend those facts in composite.

1. The threshold issue we confront is whether jurisdiction of this case lies in this Court. That depends on its nature.

This case began with plaintiffs filing a petition in superior court alleging defendants had blocked a farm road plaintiffs had been using to reach their property and seeking to remove the obstruction. Plaintiffs alternatively alleged they had a prescriptive easement in the road or that it was a public road. The superior court determined the case was basically an action for removal of an obstruction of a private way pursuant to OCGA § 44-9-59 and transferred the case to the probate court. After a hearing, the probate court observed that the Moores failed to introduce evidence to show: (1) notice to the owner of the two-acre tract (Stuttson’s predecessor Robertson and then Stuttson) at any time since 1946 that the Moores were using the road adversely, and (2) that the Moores had no other means of access to their property. It dismissed the complaint on concluding that Leona Hunt, Buron Moore’s grandmother and the common grantor, could not have impliedly reserved an easement and the Moores failed to prove they had a prescriptive easement.

Plaintiffs Moores appealed to the superior court and amended their petition to allege alternatively that they owned the farm road. The court temporarily enjoined all defendants from the blockage. Both sets of parties moved for summary judgment. The Moores argued that Robertson, Stuttson’s predecessor, never owned the road at issue. In support, they offered Robertson’s deposition testimony that she did not acquire the road from her mother or intend to convey it to Stuttson. The defendants contended that the Moores’ use of the road was permissive, not prescriptive, and Stuttson had a fee simple interest in the road because it was given as a boundary in the deed to Robertson.

The superior court ruled that the Moores did not own fee simple title to the road but did have an easement in it for ingress and easement as successors in title to Hunt and Mrs. B. P. Moore, Sr., based upon the express reservation of the easement in the 1979 deed from Mrs. Moore to Ryder Truck Rentals and the legal principles in Johnson & Co. v. Arnold, 91 Ga. 659 (18 SE 370) (1893). It granted the Moores’ motion and permanently enjoined the Stuttses and Stuttson from interfering with the Moores’ property interest in the road.

Defendants appealed to this Court, and plaintiffs did not cross-appeal the ruling that they did not own fee simple title to the road. Had they done so, jurisdiction would probably lie in the Supreme Court. Ga. Const., Art. VI, Sec. VI, Par. Ill (1).

It appears this case is properly characterized as a petition for removal of an obstruction of a private way, since it essentially began as such in the probate court and was appealed as such to the superior court. The Supreme Court has held that jurisdiction of such cases lies in this Court. Carter v. Kinman, 231 Ga. 759 (204 SE2d 299) (1974). Consequently, we have exercised it. See, e.g., Ga. Pacific Corp. v. Johns, 204 Ga. App. 594 (420 SE2d 39) (1992); Trednick v. Kramer, 190 Ga. App. 684 (379 SE2d 633) (1989); O’Neill v. Myers, 148 Ga. App. 749 (252 SE2d 638) (1979). The underlying issue in such cases is essentially the same as here, i.e., whether the plaintiff has acquired the right to use such private way by prescription. The fact that the case also concerns whether plaintiffs had an easement likens it to other cases in which this court has addressed the issue of whether an easement for ingress and egress was created. See, e.g., Chicago Title Ins. Co. v. Investguard, 215 Ga. App. 121, 123-124 (2) (449 SE2d 681) (1994); Bruno v. Evans, 200 Ga. App. 437 (408 SE2d 458) (1991). See also Krystal Co. v. Carter, 256 Ga. 43 (1) (343 SE2d 490) (1986).

With respect to the equity issue, the Supreme Court has determined that cases in which the grant or denial of equitable relief is merely ancillary to the underlying issues of law or would be a matter of routine once the underlying issues of law are resolved are not equity cases. Beauchamp v. Knight, 261 Ga. 608 (409 SE2d 208) (1991). The controlling issue in this case was whether the plaintiffs had an easement, prescriptive or otherwise, across the defendants’ property; the question of whether the plaintiffs were entitled to injunctive relief to enforce their right, if any, is ancillary to that issue. See Pittman v. Harbin Clinic Professional Assn., 263 Ga. 66 (428 SE2d 328) (1993). Injunctive relief was granted in at least one other obstruction of private way case heard by this court which was not considered to be an equity case. See Trednick, supra at 685. Consequently, this case must be held not to fall within the category listed in the Georgia Constitution of 1983, Art. VI, Sec. VI, Par. III (2).

2. We turn to the merits.

The parties own adjoining property. Originally, Buron Moore’s grandmother, Leona Hunt, owned a nearly rectangular tract of over 95 acres, for which the road was the northern border. It has been used for over 75 years to haul timber and pulpwood from the property and as a connector between two county roads to the east and west. In 1946, Hunt conveyed her tract in two portions to her two daughters. An approximately two-acre tract, now owned by the corporate defendant Stuttson, was given by Hunt to her daughter Voncile Robertson. The deed, recorded in 1973, refers to the farm road as the tract’s northern border and states that the tract is 210 feet by 420 feet. A larger tract was conveyed to Hunt’s other daughter, Mrs. B. P. Moore, Sr., plaintiff Buron Moore’s mother. She conveyed approximately four acres in the northwest corner of her tract (bordering Robertson’s property to the west) to Ryder Truck Rentals in 1979. The deed expressly reserves an easement for ingress and egress along that portion of the road which is located on the tract’s northern border and runs to what was Robertson’s property line.

Mrs. Moore, Sr. conveyed the tract now owned by plaintiffs to them in 1987. Their deed states that it is the same property which had been conveyed in 1946 to Mrs. Moore, Sr. It also states that it is bounded on the north in part by Robertson’s land but does not refer to the road. Robertson’s tract cut a two-acre rectangle from the north side of the Moores’ much larger parcel.

The portion of the road at issue runs 420 feet along what was Robertson’s northern border. In 1990, Robertson executed a warranty deed to Stuttson which, for the land’s description, referred to a survey. The survey shows the farm road running within the boundaries of Robertson’s property which is again measured as 210 feet by 420 feet. Thus, it is the same parcel Robertson acquired from Hunt originally.

In 1992, the Stuttses, owners of Stuttson, acquired a 90-acre tract along the northern border of both the Stuttson property and the Moores’ property. Having control of both sides of the road for 420 feet, they blocked it. According to the Moores, the Stuttses subsequently offered to convey them a limited easement to allow ingress and egress for what was described as “an exorbitant price.”

The defendants enumerate as error the grant of summary judgment based on a finding that the grantor Robertson intended to retain an easement, a fact not in the record nor stipulated to by the parties. They maintain the trial court misapplied Johnson and improperly adopted the doctrine of implied reservation of an easement.

The Supreme Court in Johnson, in determining the law in Georgia that applies in this case, followed what it considered to be the better authorities. It stated, “[T]he bounding of a tract by the edge or margin of a road will pass the fee to the middle line of the road when the vendor owns the fee on both sides. Upon the like reason, if he owns the fee on one side only, and the whole road is upon the margin of his tract, the proprietor on the opposite side not having any interest in its ownership, a conveyance of the tract as bounded by the margin of the road should, and we think would, pass the fee in the whole road.” Id. at 667; see also Pindar, Ga. Real Estate Law & Procedure, § 13-10 (4th ed. 1993).

A proper application of the principles established in that case leads to the following analysis. Hunt, the original grantor in this case, owned the fee on only one side of the road, and there is no evidence or contention that the landowner on the other side had any interest in the road’s ownership. Thus, when Hunt conveyed the two-acre tract bounded by the margin of the road to daughter Robertson in 1946, Hunt passed the fee in that whole portion of the road to that daughter. Hunt did not retain ownership of it or even an easement in it. Compare Rolleston v. Sea Island Prop., 254 Ga. 183, 187 (5) (327 SE2d 489) (1985), where the predecessor in title, by express language on the document of conveyance, reserved the title and right to control the roadway area.

When Robertson conveyed her entire interest in the tract to Stuttson in 1990, she passed the fee simple title to that 420-foot portion of roadway to her grantee. That is precisely what is shown on the survey incorporated by reference in Robertson’s deed to Stuttson, which survey she did not challenge. The Moores, adjacent property owners, never acquired an interest in that portion of the road, neither as successors in title from Hunt nor in any other manner. Unfortunately for them, “[t]he real or proposed existence of a private road on a boundary does not ipso facto render it subject to the use of all who live near or by the place.” Houston v. Deal, 198 Ga. App. 335, 337 (401 SE2d 562) (1991). Further, Georgia law prohibits implied reservations of easements in favor of sellers. Farris Constr. Co. v. 3032 Briarcliff Rd. Assoc., 247 Ga. 578, 579 (277 SE2d 673) (1981); Pindar, supra, § 8-16. In addition, the absence of any evidence of the Moores’ adverse use of the road at any time forecloses the creation of a prescriptive easement. OCGA § 44-9-54; Chota, Inc. v. Woodley, 251 Ga. 678, 679-680 (309 SE2d 132) (1983).

Decided October 2, 1995.

Daniel W. Lee, for appellants.

H. J. Thomas, Jr., for appellees.

Consequently, we are constrained to conclude that no easement exists in favor of the Moores. Therefore, the Stuttses and Stuttson, not the Moores, are entitled to summary judgment. The probate court, which issued the original ruling in the case, was correct.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       There actually was no dispute about the easement along the Ryder Truck property.

       The facts stated regarding this conveyance are recited as findings in the probate court order and as undisputed fact in the superior court order. They also are expressly agreed to by both sides in their briefs on appeal. However, the deed from Hunt to Robertson in 1946 refers to what is now the Ryder Truck Rentals property as having been conveyed by Robertson to Crawford prior to the time she was granted the two acres by her mother, Hunt. This apparent discrepancy does not affect the outcome of this appeal.


text:
    A95A1952.
    McNEAL LOFTIS, INC. v. HELMEY.
    (462 SE2d 789)
   Blackburn, Judge.

McNeal Loftis, Inc. d/b/a Hillcrest Abbey West (Hillcrest), a cemetery owner, appeals the trial court’s denial of its motion for summary judgment that it had not interfered with burial rights as contended.

Margaret Helmey brought this action individually and as executrix of the estate of Sidney E. Helmey, her husband. Mr. Helmey died on October 11, 1993. The next day Hillcrest was advised that his burial would take place at 11:00 a.m. on October 13. Hillcrest was familiar with the burial location and had no indication of anything unusual that would hamper preparing the grave. Hillcrest commenced digging the grave at 9:40 a.m. the morning of the funeral, discovering that the soil was very hard and was filled with roots. It soon became apparent that the grave could not be prepared before the 11:00 a.m. funeral, and a Hillcrest representative contacted the funeral home where the memorial service was being conducted. The Hillcrest representative explained the problem and asked that the funeral party be detained until the grave could be completed. The record is silent as to why, but the funeral party was not detained and arrived at the cemetery unaware of the problem. At the grave site, they discovered maintenance men in the process of digging the grave using a dump truck and a backhoe. At plaintiff’s request, the truck and backhoe were temporarily removed and the burial service conducted. While offered the opportunity to return to the funeral home while the grave was being prepared, plaintiff and other members of the funeral party chose to remain at the cemetery until the body was interred. In addition to problems preparing the grave, the burial was further delayed when a vault plaintiff had purchased from Hillcrest as well as its replacement proved to be defective. The third vault supplied by Hillcrest proved to be suitable, and burial was concluded around 3:30 p.m.

The trial court granted Hillcrest’s summary judgment on contractual claims regarding the defective vault but denied summary judgment on the issue of whether Hillcrest interfered with the plaintiff’s right to bury her husband. We granted Hillcrest’s request for interlocutory appeal.

Hillcrest owed plaintiff the duty not to wilfully or wantonly interfere with the burial of her husband. Habersham Mem. Park v. Moore, 164 Ga. App. 66, 678 (297 SE2d 315) (1982). A demonstration of mere negligence is not sufficient to show wilful or wanton behavior. In order to prove wilful or wanton conduct, a plaintiff must demonstrate that a defendant’s acts were “ ‘such as to evidence a wilful intention to inflict the injury, or else [were] so reckless or so charged with indifference to the consequences ... as to justify . . . finding a wantonness equivalent in spirit to actual intent.’ [Cit.]” Hawes v. Central of Ga. R. Co., 117 Ga. App. 771, 772 (162 SE2d 14) (1968). Providing every favorable inference to the plaintiff as we are required to do in evaluating a motion for summary judgment, we find she failed to make this showing. There is no indication that Hillcrest intended to interfere with Mr. Helmey’s peaceful burial. Thus, we must evaluate whether Hillcrest’s conduct was so wanton that it could serve as the functional equivalent of intentional conduct.

Hillcrest offered unrefuted evidence that its inspection of the grave’s location revealed none of the problems that were discovered once digging commenced. While plaintiff asserts that Hillcrest waited until the “last minute” to prepare the site, it offered no evidence to support this conclusion, e.g., it offered no evidence that more time is generally required to prepare a grave or that Hillcrest was lax in the way it examined the location before digging began. Further, plaintiff did not dispute Hillcrest’s claim that it contacted the funeral home upon discovering the problem so as to prevent the funeral party from coming to the cemetery until the grave had been prepared. This one act — an effort to protect the funeral party from distress albeit unsuccessful — indicates that Hillcrest had concern for the consequences of its actions and was not behaving wantonly.

Decided October 2, 1995.

Clark & Clark, Fred S. Clark, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Thomas A. Nash, Donaldson, Herndon, Bell & Metis, James C. Metts III, V. Claire Cornwell-Williams, for appellee.

As plaintiff failed to demonstrate an element necessary to recover for tortious interference with burial rights, the trial court erred in denying Hillcrest’s motion for summary judgment as to that claim.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.

       Prior cases addressing tortious interference with burial rights prior to and during a funeral evidence an element of intent not demonstrated in this case. Louisville &c. R. Co. v. Wilson, 123 Ga. 62 (51 SE 24) (1905) (defendant charged with transporting deceased, left body exposed during rainstorm despite widow’s request that it be moved under cover); Wright v. Hollywood Cemetery Corp., 112 Ga. 884 (38 SE 94) (1901) (defendant cemetery owner refused funeral procession bearing body access to family plot after grave had been prepared); Habersham Mem. Park v. Moore, supra (defendant disrupted funeral by arguing with members of the funeral party including minister as he was conducting the service); Stephens v. Waits, 53 Ga. App. 44 (184 SE 781) (1936) (defendant physically threatened those preparing grave and later delayed burial by blocking access to grave).


author: McMurray, Presiding Judge.

text:
    A95A0888.
    CROWDER v. THE STATE.
    (462 SE2d 754)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with a single count of forgery in the first degree, in that, with the intent to defraud, he knowingly possessed and uttered a check drawn on the “Wachovia Bank checking account of M. Regina Thomas, Standing Chapter 13 Trustee, payable to L. C. Crowder and Heilig Meyers in such a manner that the writing as made purports to have been made by authority of one who did not give such authority. ...” The evidence at his jury trial showed that defendant was a collections agent for Heilig Meyers. State’s Exhibit 3 is a check drawn by M. Regina Thomas, Standing Chapter 13 Trustee for the Northern District of Georgia, and made payable to the order of Heilig Meyers. Ms. Thomas testified “without exception . . ., every check is made payable either to the company itself or the attorney. . . . But other than those two methods, they are never made to agent for, or authorized agent for — never. Never.” However, someone using a different size and type of print had added: “* * * * L. C. CROWDER/LEGAL AGENT ****’’ above the name of Heilig Meyers, so as to make it appear that defendant is the ostensible payee. Defendant cashed the check at a liquor store, but the check was returned by the bank with the notation: “PAYMENT STOPPED BY ORDER OF DRAWER.” The jury found him guilty, and this direct appeal followed. Held:

1. Defendant first contends his oral motion to dismiss the accusation should have been granted because OCGA § 17-7-70.1 “is ex post facto as applied to [him]. . . .’’He argues that the trial court “improperly divested [defendant] of his right to have the grand jury determine whether there was probable cause to charge [him], by an indictment^] ”

At common law, every person charged with a felony had the right to demand an indictment or presentment by a grand jury before he was required to answer the charge. Gordon v. State, 102 Ga. 673, 683 (29 SE 444). However, the General Assembly altered the common law procedure with respect to certain designated felonies, including violations of OCGA § 16-9-1, so that where defendants have “either been bound over to the superior court or have expressly waived a commitment hearing, the district attorney shall have authority to prefer accusations, and the defendants shall be tried on such accusations according to the same rules of substantive and procedural laws relating to defendants who have been indicted by a grand jury.” OCGA § 17-7-70.1 (a). In the case sub judice, defendant waived any right to indictment by the grand jury when he entered his plea of not guilty on the accusation on August 19, 1994, without first having filed a written objection to proceeding under the accusation. See Dunbar v. State, 209 Ga. App. 97 (2) (432 SE2d 829). See also Cunningham v. State, 80 Ga. 4 (hn. 1) (5 SE 251). Moreover, OCGA § 17-7-70.1 became effective with respect to arrests made on and after July 1, 1992. See Ga. L. 1992, pp. 1808, 1810, § 2. Defendant in this case was not arrested until “July 31st, 1993.” It follows that the State’s Attorney was authorized on June 9, 1994, to prefer this accusation rather than submitting the investigation to the grand jury. In the case sub judice, the application of OCGA § 17-7-70.1 “did not alter any [existing] substantive rights conferred on [the accused] by law. As such, [OCGA § 17-7-70.1] is not an unconstitutional ex post facto law [with respect to defendant]. Todd v. State, 228 Ga. 746[, 752] (187 SE2d 831) (1972).” Livingston v. State, 264 Ga. 402, 405 (1) (e) (444 SE2d 748).

2. Defendant’s second and third enumerations challenge the sufficiency of the evidence to sustain his conviction for forgery in the first degree. Specifically, he argues the evidence is insufficient to prove his knowledge that the check was forged and his intent to defraud, as required by OCGA § 16-9-1 (a).

Both knowledge and intent to defraud may be proven by circumstantial evidence. Johnson v. State, 211 Ga. App. 151, 152 (438 SE2d 657). In the case sub judice, the jury was authorized to believe that defendant, acting without authority, altered the trustee’s check as made out to defendant’s employer, Heilig Meyers, by typing in the words: “L. C. CROWDER/LEGAL AGENT” to make it appear that he is the payee, and then cashing that altered check. “ ‘[Kjnowingly passing as genuine a forged instrument is conclusive of the intent to defraud.’ Jordan v. State, 127 Ga. 278 [(4)] (56 SE 422) (1906)[.]” Matula v. State, 264 Ga. 673, 674 (2), 675 (449 SE2d 850). In the case sub judice, the evidence is sufficient to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of forgery in the first degree as alleged in the accusation. Johnson v. State, 211 Ga. App. 151, 152, supra.

Decided August 15, 1995

Reconsideration denied October 3, 1995.

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Tom Woodward, Assistant District Attorney, for appellee.

3. In his fourth enumeration, defendant contends the trial court erred “by instructing the jury that [defendant] could be convicted of first degree forgery if he delivered a certain check.” He argues such an instruction was an “improper expansion of the accusation [in that it] authorized two ways the jury could find [defendant] guilty of first degree forgery, compared to one way that was alleged in [the] accusation.”

“ ‘Since the offense of uttering is an attempt, it is complete when the forged instrument is offered; an acceptance of it is unnecessary. . . .’” Walker v. State, 127 Ga. 48, 49 (1) (56 SE 113). While the accusation in the case sub judice alleged that defendant “possessed” and “uttered” the forged check, it was not erroneous for the trial court to charge using the additional statutory term, “delivered.” If defendant delivered or passed a forged negotiable instrument, “he uttered and published it [as alleged in the accusation]; and if he uttered and published and [delivered or] passed it, he necessarily [possessed] it.” Smith v. State, 13 Ga. App. 663, 667 (79 SE 764). Proof that defendant delivered the forged instrument to the store clerk shows the completed crime of uttering that same instrument as alleged in the accusation. Consequently, there is no fatal variance between the allegations and the proof and no error in this instruction. Compare Lattimore v. State, 265 Ga. 102, 104 (3), 106 (454 SE2d 474), where the Georgia Supreme Court reversed a murder conviction and held “the trial court improperly instructed the jury to return a verdict of guilty on a type of murder not charged in the indictment or included as an offense. ...” This enumeration is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0918.
    McKINNEY v. THE STATE.
    (463 SE2d 136)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with burglary, aggravated assault by use of a deadly weapon, and kidnapping. At defendant’s jury trial, the victim was declared “not competent to testify,” due to her feebleness, hearing impairment and the effects of Alzheimer’s disease. However, defendant’s own incriminating statements, as well as expert opinion analysis of deoxyribonucleic acid (“DNA”) evidence, showed that defendant broke into the home of the elderly victim, advanced upon her wielding a pipe and threatened her before forcing her into a bedroom, where he tied her up with sheets.

Officer Barry Williams of the Valdosta Police Department answered a robbery call at the victim’s address. There, he found the victim hysterical and shaking tremendously. He “saw blood on her.” She cried out, “ ‘They got me, they got me.’ ” Officer Williams was then permitted to relate for the jury the circumstances as related to him by the victim: The victim was talking on the telephone in her dining room when she heard a noise coming from the kitchen. As she went to investigate, she was approached by a male, “about five ten in height, wearing a brown jacket.” He had a steel pipe in his hand and told the victim, “if you yell, I’ll kill you.” The perpetrator then took the victim into the “southwest bedroom and tied her in the bed sheets and a phone cord.” Although the sheets were over her face, “she could hear him searching, running — going through her things.” The victim got loose and fought with the perpetrator, such that “he was bleeding from somewhere. . . .” She then ran out of the house and started yelling for help. The victim subsequently discovered that a diamond ring and gold wristwatch were missing from the bedroom. Officer Williams personally observed papers scattered in the dining area and a chair overturned. In the bedroom, he “found the sheets like somebody had been tied up in the sheets, and the phone cord wrapped around the sheets.” The “north side back door and one of the north windows were busted out.”

Defendant’s brother related defendant’s admission that he (defendant) had gone into their neighbor’s home, where “they tussled. ...” Defendant “had her [tied up] in the sheets but she come out.” “She scratched [defendant] and ran to the door hollering.” Defendant further admitted obtaining jewelry from the victim’s home. Geneva McLowery overheard defendant’s statement to his brother, that he “broke into the lady’s house. And he told [his brother] that he basically just — that he beat her up, he put her in a sheet and tied her up and put her in the closet, and . . . tried to kill her.” Geneva McLowery noticed that defendant “had scratches on his neck.”

George Herrin, Jr., Ph.D., the DNA Unit Supervisor in the Division of Forensic Sciences, Georgia Bureau of Investigation, testified that there was a so-called match between “the DNA banding pattern obtained from the blood identified as having come from [defendant] and the DNA banding pattern obtained from the blood stain on the [victim’s] sheet.” A “match” is a visual determination that “the position of the DNA bands on . . . test results . . . are close enough . . .” within certain testing parameters. This visual match is then confirmed with a mathematical match. The statistical frequency of this banding pattern in the population of defendant’s race “is approximately one in 200 million.” In Dr. Herrin’s opinion, defendant’s brother “could not have been the donor of the blood stain on the sheet.”

The jury found him guilty on each charge and this direct appeal followed. Held:

1. Defendant’s fifth enumeration contends the trial court erred in admitting statements “allegedly made by the victim as res gestae. ...” The record reflects that the sole ground for objection to Officer Williams’ testimony in this regard was “hearsay.”

“This testimony as to what the victim told the witness very shortly after the attack was properly admissible as part of the res gestae pursuant to OCGA § 24-3-3. Haralson v. State, 234 Ga. 406, 407-408 (3) (216 SE2d 304) (1975); Barker v. State, 144 Ga. App. 339-340 (2) (241 SE2d 11) (1977). ‘The fact that some of the statements (might have been) in reply to questions of the (witness) would not render them inadmissible. (Cits.)’ Littles v. State, 236 Ga. 651, 652 (2) (224 SE2d 918) (1976). ‘Such evidence should be admitted if it is relevant and made without premeditation. (Cit.) A trial (court’s) determination that evidence is admissible as part of the res gestae will not be disturbed unless it is clearly erroneous. (Cit.)’ Robinson v. State, 197 Ga. App. 600, 601 (2) (399 SE2d 94) (1990).” Brinson v. State, 208 Ga. App. 556 (1), 557 (430 SE2d 875). In the case sub judice, we find no error in allowing the investigating officer to relate for the jury the distraught victim’s on-the-scene description of the attack upon her, including her description of the assailant, even though this evidence is more narrative than exclamatory.

2. In his first enumeration, defendant challenges the sufficiency of the evidence to convict, but only as to “the charge of aggravated assault under Count 2 of the Indictment.” He argues that there is “no testimony of injuries received by the victim by use of [a] pipe.”

This argument confuses assault with battery. “ ‘Aggravated assault with a deadly weapon is completed when a simple assault is committed by means of a deadly weapon,’ Scott v. State, 141 Ga. App. 848, 849 (234 SE2d 685) (1977), and neither type of assault requires physical contact with the victim. . . . Physical contact is required for a simple battery but not for aggravated assault.” Tuggle v. State, 145 Ga. App. 603 (1), 604 (244 SE2d 131). See also Anderson v. State, 170 Ga. App. 634 (317 SE2d 877).

Nevertheless, defendant further argues there is no evidence of any assault because there is no evidence of a reasonable apprehension on the part of the victim. “The state of mind of the victim of an assault is a question of fact, which may be established by circumstantial evidence. McGee v. State, 165 Ga. App. 423, 425 (3) (299 SE2d 573). In the case sub judice, [Officer Williams’ res gestae] testimony that [the victim] fled in terror from [the man who broke into her home and advanced upon her with a steel pipe plus his direct testimony that she was immediately thereafter hysterical and shaking visibly] is sufficient circumstantial evidence that [defendant] placed [her] in ‘a reasonable apprehension of immediately receiving a violent injury,’ as alleged in [Count 2 of] the indictment. See Holbrook v. State, 168 Ga. App. 380, 381 (2) (308 SE2d 869).” Lewis v. State, 215 Ga. App. 161, 162 (2), 163 (450 SE2d 448). A metal pipe is capable of causing serious injury when used offensively. See Coney v. State, 209 Ga. App. 9, 12 (3) (432 SE2d 812). The evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of aggravated assault with a deadly weapon in violation of OCGA § 16-5-21 (a) (2).

3. The denial of defendant’s pre-trial motion for the appointment of an expert to conduct an independent DNA analysis is enumerated as error, on the ground that this deprived defendant of a “fair trial and equal treatment under the law because of his economic status.”

Unlike blood samples, ballistics reports, and other routine scientific analyses, defendant’s request for the appointment of an independent expert to challenge the State’s analysis of DNA band patterns arguably “involves critical evidence [within the meaning of Sabel v. State, 248 Ga. 10, 16 (6) (282 SE2d 61), overruled in part on other grounds, Rower v. State, 264 Ga. 323, 324 (5), 325 (443 SE2d 839), because forensic analysis of DNA], in light of its novelty, is likely to be the subject of varying expert opinions.” Thornton v. State, 255 Ga. 434, 435 (2) (339 SE2d 240). Assuming, but not deciding, that the trial court in the case sub judice erred in failing to appoint defendant his own expert to critique the State’s DNA evidence, we find any such error to be harmless beyond any reasonable doubt. “ ‘Scientific evidence is not “critical” where there is overwhelming evidence of defendant’s guilt.’ [Sabel v. State,] 248 Ga. [10, 16 (6)] at 18, footnote 3[, supra].” Thornton v. State, 255 Ga. 434, 435 (3), fn. 1, supra. “The defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him. The defendant is the most knowledgeable and unimpeachable source of [any incriminating] information about his past conduct, and one can scarcely imagine evidence more damaging to his defense than his own admission of guilt.” (Citations and punctuation omitted.) Sawyer v. State, 217 Ga. App. 406, 407 (1), 408 (457 SE2d 685). In the case sub judice, defendant’s incriminating statements, as related by his brother and Geneva McLowery, provided highly persuasive proof that it was defendant and not his brother who committed the burglary, aggravated assault, and kidnapping as alleged in the indictment. Consequently, the State’s DNA evidence is not “the only connecting link between [defendant] and the [crimes alleged].” Thornton v. State, 255 Ga. 434, 435 (4), supra. See also Willey v. State, 209 Ga. App. 398, 399 (2), 400 (433 SE2d 674). It follows that any error in failing to appoint an independent DNA expert was harmless in this instance.

4. The trial court did not abuse its discretion in permitting the State, over defendant’s “chain of custody” objection, to introduce testimony identifying blood samples as coming from defendant, his brother, and the victim, where the admission of such evidence was made conditional upon the State’s “connecting up” those samples with the proper chain of custody. “[T]he order of presentation of evidence is a matter that rests within the trial court’s discretion which will not be controlled unless abused. Williams v. State, 123 Ga. 138[, 140 (1)] (51 SE 322).” Brown v. State, 140 Ga. App. 198 (1), 199 (230 SE2d 349). Accord Gilstrap v. State, 261 Ga. 798, 799 (2) (410 SE2d 423). In the case sub judice, review of the entire record demonstrates that the blood samples of defendant, his brother, and the victim were drawn and handled in the normal course of testing. This is sufficient to establish the identity of each sample with reasonable assurance. Patterson v. State, 224 Ga. 197, 199 (2) (160 SE2d 815). We find no abuse of the trial court’s discretion.

5. After a period of deliberation, the jury announced that it had reached verdicts as to two of the three counts of the indictment, but that they had “not received a unanimous verdict on count three of the kidnapping; [and queried:] must we have a unanimous decision^] ” The trial court answered this in the affirmative, recharging the jury that “in order for there to be a decision, it must be unanimous.” The trial court explained that, “if the jury cannot reach a decision on that charge, after a period of time, . . . then there would be a necessity to declare a mistrial as to that particular charge.” (Emphasis supplied.) In his fourth enumeration, defendant contends the trial court’s additional instructions were prejudicial, arguing it “left the jury to believe that a mistrial would be declared as to all counts and not just to count three.” We disagree. Words are given their ordinary signification and the jury is given credit for possessing ordinary intelligence. Hightower v. State, 210 Ga. App. 386, 387 (3), 388 (436 SE2d 28); Yearwood v. State, 198 Ga. App. 389, 390 (3) (401 SE2d 558). In the case sub judice, the trial court’s recharge explaining that a hung jury would result in a mistrial for “that particular charge” meant only that particular charge and could not reasonably be interpreted as jeopardizing the jury’s existing unanimous verdicts as to the other two counts. This enumeration is without merit.

Decided October 3, 1995.

Jon W. McClure, for appellant.

H. Lamar Cole, District Attorney, J. David Miller, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.