text:
    A94A1182.
    THOMPSON v. THE STATE.
    (449 SE2d 364)
   McMurray, Presiding Judge.

Defendant Thompson appeals his conviction of two counts of the fense of armed robbery, five counts of the offense of aggravated as-mlt, and one count of the offense of possession of a sawed-off shot-in. Held:

1. The first enumeration of error alleges violations of the holding Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) permitting two police detectives to testify concerning statements ven by co-defendant Earl, who was tried along with defendant but lose not to testify at trial. However, this issue was not preserved for ipellate review by motion or objection at trial. Consequently, we are ecluded from reviewing this contention raised for the first time on ipeal. Robinson v. State, 173 Ga. App. 260, 261 (3), 262 (325 SE2d 52); Altman v. State, 156 Ga. App. 185, 186 (3), 187 (273 SE2d 923).

2. In his second enumeration of error, defendant maintains that e trial court erred by not requiring the State to properly measure e shotgun as required by law. OCGA § 16-11-121 (5) defines a sawed-off shotgun as a shotgun or any weapon made from a shotgu: with a barrel less than 18 inches in length or overall length of les than 26 inches. A police detective used a yardstick to measure th length of the barrel of the shotgun in question at less than 13 inchei

Defendant submits Wiley v. State, 204 Ga. App. 881 (420 SE2 783) as authority that the weapon should have been measured in com pliance with the policy and procedures of the “Department of Alee hoi, Tobacco and Firearms.” However, as in Wiley the defendant ha failed to present evidence as to what those policies and procedure may be and did not mention this issue at trial other than in th course of colloquy concerning the jury charge. As no action or rulin was requested of the trial court, this enumeration of error raises i most a question as to the sufficiency of the evidence concerning th offense of possession of a sawed-off shotgun. We agree with the con ments of the trial court that, where it is not a close question, gres precision or specific methodology in the measurement of the dimei sions of the weapon are not necessary to authorize conviction. As tl measurement in the case sub judice indicates that the barrel of tl shotgun was at least five inches shorter than permitted, the methodo ogy used by the witness was sufficient to establish that the weapon i issue was a sawed-off shotgun. We also note that the shotgun in quei tion having been introduced into evidence, the issue of its dimensioi was one properly for resolution by the jury. Carson v. State, 241 Ga. 622, 625 (3) (247 SE2d 68). The evidence was sufficient to authorize rational trier of fact to find defendant guilty beyond a reasonab doubt of the offense of possession of a sawed-off shotgun. Jackson Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

3. In his final enumeration of error, defendant contends that tl trial court erred in conditioning the probated portions of his sentem upon the payment of restitution for the fee of his court-appointt attorney without conducting a hearing to determine his ability to pa “ ‘OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and sp cific written findings by the court in determining whether it will ord restitution and, if so, the amount thereof.’ (Citation and punctuatk omitted.) Bridges v. State, 208 Ga. App. 555, 556 (1) (431 SE2d 16 (1993). Section 17-14-10 sets forth the factors to be considered by tl court in determining the nature and amount of restitution, include the offender’s present financial condition and future earning capaci and the amount of damages suffered by the victim. The trial court d not hold a restitution hearing, and the only mention of restitution the sentencing hearing was the order itself. The court further did n enter specific written findings under OCGA § 17-14-[8].” Fonseca State, 212 Ga. App. 463, 464 (2) (441 SE2d 912). Accordingly, tl case is remanded for a hearing and specific written findings pursual to OCGA § 17-14-10. Fonseca, supra at 465. I

Decided October 19, 1994.

Mitchell D. Durham, for appellant.

Thomas J. Charron, District Attorney, D. Victor Reynolds, )ebra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for ppellee.

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

*ope, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A94A1261.
    EARL v. THE STATE.
    (449 SE2d 361)
   McMurray, Presiding Judge.

Defendant Earl appeals his conviction of two counts of the of-mse of armed robbery, five counts of the offense of aggravated as-lult, and one count of the offense of possession of a sawed-off shot-un. Held:

1. Defendant challenges the sufficiency of the evidence to author-:e his conviction and maintains that no evidence was presented hich corroborates the testimony of an accomplice concerning de-mdant’s participation in the crimes of which he was convicted, inhere an accomplice is the sole witness upon whose testimony the tate relies, a felony conviction is not to be had unless the testimony f the accomplice is corroborated by some slight evidence from an xtraneous source identifying the accused as a participant in the riminal act. Kesler v. State, 249 Ga. 462, 465 (2) (291 SE2d 497); Morris v. State, 204 Ga. App. 437, 438 (2) (419 SE2d 733); Williams State, 198 Ga. App. 725 (1), 726 (402 SE2d 796).

All of the offenses arise from two incidents which occurred min-tes apart during the early morning hours of August 23, 1992. The rst incident occurred when four victims leaving a nightclub in Mari-tta were approached outside the club by three armed black males ho threatened and ordered the victims to get down on the ground, ad took the wallet of one victim. A short time later the second indent occurred in the City of Smyrna when a single victim walking ome from a party was robbed at gunpoint and beaten by five black tales who emerged from a passing car. Defendant was indicted along ith four alleged accomplices. Two of the accomplices pled guilty rior to trial and one of these individuals testified for the State at ial. The accomplice stated that during the Marietta robbery, de-mdant and one other accomplice waited in the car, that the car was sfendant’s, and that after the Marietta robbery they went to Smyrna where the second robbery occurred. The accomplice's description o the events suggested that defendant was an active participant in th< robberies. None of the victims was able to identify any of the perpe trators.

On the same day as the robberies, while being questioned on ai unrelated charge, defendant volunteered that he had knowledge o both robberies in this case and told police where to find the gun use< in the robberies. He also admitted to an investigator that he drov the car to the scene of the first robbery, stayed in the car during tb robbery, and heard the discharge of the shotgun during the robbery The victim of the second or Smyrna robbery provided a description o the car driven by the robbers which corresponded with defendant' car, in which defendant and a co-defendant were stopped by polic later during the day of the robberies.

“ ‘On appeal of a criminal conviction, the appellant is no longe indulged with the presumption of innocence, for the jury has ren dered its verdict; (this court does) not weigh the evidence or deter mine the witness’ credibility but construe(s) the evidence to uphoL the verdict. (Cit.)’ Clark v. State, 197 Ga. App. 318, 320 (1) (398 SE2 377) (1990). ‘In Georgia, the testimony of an accomplice used to con vict the accused of a crime must be supported by independent coi roborating evidence as to the identity and participation of the accused tending to connect him to the crime or leading to the inferenc that he is guilty. (Cit.) Slight evidence of a defendant’s identity an participation from an extraneous source is all that is required to coi robórate the accomplice’s testimony and thus support the verdic (Cit.) The necessary corroboration may be by circumstantial evidenci (Cit.)’ Harris v. State, 180 Ga. App. 56, 57 (1) (348 SE2d 476) (1986 Also, ‘ “(guilty) knowledge or scienter may be proved, like any othe fact, by circumstantial evidence.” ’ Garrett v. State, 160 Ga. App. 877, 878 (1) (288 SE2d 592) (1982). See also Cobb v. State, 125 Ga. App. 556 (1) (188 SE2d 260) (1972). ‘ “While mere presence at the scene < the commission of a crime is not sufficient evidence to convict one < being a party thereto, ‘ “presence, companionship, and conduct befoi and after the offense are circumstances from which one’s particip; tion in the criminal intent may be inferred.” ’ (Cit.)” (Cits.)’ Butler State, 194 Ga. App. 208, 209 (2) (390 SE2d 278) (1990).” Bennett State, 202 Ga. App. 699 (415 SE2d 310). The evidence adduced ; trial authorized a rational trier of fact to find proof beyond a reason; ble doubt of defendant’s guilt of the offenses of which he was coi victed. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560 Tucker v. State, 205 Ga. App. 683, 684 (423 SE2d 422).

2. Defendant contends the trial court erred in instructing the jui regarding the State’s burden of proof in that the charge given did n< accurately convey to the jury the concept of reasonable doubt becaui it included this language: “Moral and reasonable certainty is all that san be expected in a legal investigation.” However, while the Supreme Dourt of Georgia has stated that the better practice is to omit this phrase from a jury charge, it has also held that it is not reversible srror when considered in the context of a correct charge on reasonable ioubt. Marion v. State, 263 Ga. 358, 359 (2) (434 SE2d 463). The trial jourt having given a full and accurate charge on reasonable doubt, we find no reversible error.

Decided October 19, 1994.

Edwin J. Wilson, for appellant.

Thomas J. Charron, District Attorney, D. Victor Reynolds, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for tppellee.

3. Defendant contends the trial court erred in conditioning the probated portions of his sentence upon the payment of restitution for ;he fee of his court-appointed attorney without conducting a hearing ;o determine his ability to pay. “ ‘OCGA §§ 17-14-8 through 17-14-10 contemplate a hearing and specific written findings by the court in ietermining whether it will order restitution and, if so, the amount ;hereof.’ (Citation and punctuation omitted.) Bridges v. State, 208 Ga. App. 555, 556 (1) (431 SE2d 164) (1993). Section 17-14-10 sets forth the factors to be considered by the court in determining the lature and amount of restitution, including the offender’s present fi-íancial condition and future earning capacity and the amount of lamages suffered by the victim. The trial court did not hold a restitu-;ion hearing, and the only mention of restitution at the sentencing rearing was the order itself. The court further did not enter specific vritten findings under OCGA § 17-14-[8].” Fonseca v. State, 212 Ga. App. 463, 464 (2) (441 SE2d 912). Accordingly, the case is remanded ’or a hearing and specific written findings pursuant to OCGA § 17-.4-10. Fonseca, supra at 465.

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

Dope, C. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A94A1824.
    HAYES v. THE STATE.
    (449 SE2d 360)
   Smith, Judge.

This is the second appearance of this case before this court. In Hayes v. State, 211 Ga. App. 801 (440 SE2d 539) (1994) (Hayes 7), we ffirmed Hayes’s conviction of aggravated assault. We found, however, that he had not been afforded a presentence hearing as required by OCGA § 17-10-2, before being sentenced to 20 years in prison. We remanded the case to the trial court for resentencing. Hayes, supra at 804-805.

Decided October 19, 1994.

Lewis R. Lamb, for appellant.

Britt R. Priddy, District Attorney, Kenneth B. Hodges III, Assis :ant District Attorney, for appellee.

Following the remand, the trial court scheduled a hearing for March 24, 1994. Hayes learned three days before the hearing that he had been brought back to the local jail because he was to be resen-tenced on March 24, and he notified his counsel. Counsel stated in his place, however, that he could not prepare for the hearing because he was preparing for a murder trial that had been specially set for the next week.

Defense counsel informed the court that he had received no notice of the hearing from the court, the district attorney, or the clerk, and requested a continuance so that he could meet with his client and interview witnesses. The trial court denied the motion for continuance. The hearing proceeded without the participation of the defense and the trial court resentenced Hayes to 20 years in prison.

Hayes contends the trial court erred in conducting the hearing when neither he nor his counsel was given sufficient notice of the date and time of the hearing to allow counsel to prepare or subpoena witnesses. We do not agree.

We do agree with Hayes that it is certainly better practice for the court to ensure that notice of all scheduled hearings is provided t( counsel in some manner, and we are not unsympathetic to his plight Nevertheless, motions for continuances are addressed to the sounc discretion of the court. OCGA § 17-8-22. This court will not interferí with the ruling of a trial court on such a motion unless it is clearh shown that the trial court abused its discretion. Gignilliat v. State 196 Ga. App. 773 (2) (397 SE2d 52) (1990).

Under the very statute upon which Hayes relied in obtaining th< remand in Hayes I, supra, the presentence hearing could have beei held immediately after the jury returned its verdict of “guilty.” Coun sel was aware of this court’s decision remanding this case for a hear ing, and a party requesting a continuance must show he has exercisec due diligence. OCGA § 17-8-20. Under these circumstances, we can not say the trial court abused its discretion in denying the motion fo continuance in this case and requiring counsel to go forward with th hearing.

Judgment affirmed.

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


text:
    A94A1262.
    HODO v. BASA.
    (449 SE2d 523)
   Smith, Judge.

This is the second action arising out of an incident at Humana dospital-Newnan in which Inez Hodo was injured. We conclude that ;he dismissal of Hodo’s first action for failure to file an affidavit pursuant to OCGA § 9-11-9.1 is res judicata here, and we affirm the trial :ourt’s grant of summary judgment on that basis.

During a physical therapy session conducted by Elijah Basa at he hospital, Hodo fell and was injured. She brought suit in Fulton bounty State Court against Humana Hospital-Newnan, alleging negligence on the part of the hospital in conducting the physical therapy, ^s the action progressed, it became apparent that Hodo was alleging negligence on the part of Elijah Basa and seeking to hold the hospital iable through the doctrine of respondeat superior. The hospital noved for summary judgment on three grounds: first, that Hodo ailed to comply with the affidavit requirement of OCGA § 9-11-9.1; iecond, that Hodo failed to show negligence on the part of the physi:al therapist; and third, that Hodo had failed to show causation.

The trial court granted the hospital’s motion in a brief order. On notion for reconsideration, the trial court clarified its original order, toting that Hodo’s claim was based on the alleged professional negli;ence of Basa and an affidavit therefore was required under OCGA ¡ 9-11-9.1. The court also noted there was undisputed testimony that Basa complied fully with the appropriate standard of care. Hodo ap-pealed to this court. In Hodo v. Gen. Hosps. of Humana, 211 Ga. App. 6 (438 SE2d 378) (1993), this court affirmed on the basis of iodo’s failure to comply with the affidavit requirement, treating the >rder as a dismissal for failure to state a claim under OCGA § 9-11-M. The opinion notes that the claim was based upon Basa’s exercise >f professional judgment. 211 Ga. App. at 8.

While the first action was on appeal, Hodo brought another ac-ión in the Superior Court of Floyd County, naming Basa as the sole lefendant and alleging negligence in providing physical therapy. Basa noved for summary judgment on the basis of res judicata and collateral estoppel, and the trial court granted his motion in a comprehenive and well-reasoned order. This appeal followed.

1. Hodo contends the trial court erred in granting summary judg-nent to Basa on the basis of res judicata. “[U]nder the doctrine of res udicata, a judgment on the merits in a prior suit bars a second suit nvolving the same parties or their privies based on the same cause of action.” (Citations and punctuation omitted.) Sorrells Constr. Co. v. Chandler Armentrout &c., P. C., 214 Ga. App. 193 (447 SE2d 101) (1994). This doctrine will bar a second action “if the plaintiff has brought another action based on the same subject matter, the plaintiff had a full and fair opportunity to litigate the other action, the other action resulted in an adjudication on the merits, and the othei action was against the same defendant or its privy. [Cit.]” Id. at 194.

Hodo’s claims in both actions obviously involve the same subject matter and the same cause of action. She had a full and fair opportunity to litigate the controlling issues in the original action, botl before the trial court and this court. She argues, however, that the dismissal of her first action for failure to file an affidavit under OCGA § 9-11-9.1 was not an “adjudication on the merits” for purposes of res judicata. This contention was decided adversely to Hodo in her first appeal. See 211 Ga. App. at 8.

Contrary to Hodo’s contention, Lutz v. Foran, 262 Ga. 819, 824 (4) (427 SE2d 248) (1993), decided after Hodo filed her original com plaint, does not require a remand here. With respect to the issue o: whether a final adjudication on the merits had occurred, Lutz did no establish any new rule of law limited to prospective application. I merely restated existing principles. The Code section itself clearb states that a dismissal under OCGA § 9-11-9.1 is a dismissal for fail ure to state a claim, and the complaint cannot be renewed o amended without a judicial determination that the affidavit was avail able but not filed due to mistake. See OCGA § 9-11-9.1 (e), (f). Th< Georgia Supreme Court noted as early as 1976 that “the sustaining o a motion to dismiss for failure to state a claim is res judicata on tb merits of the claim.” Dillingham v. Doctors Clinic, P. A., 236 Ga. 302 (223 SE2d 625) (1976). The dismissal of Hodo’s first action was a fina adjudication on the merits.

Hodo also contends that the first action was not res judicata be cause of an absence of privity between the hospital, the sole defend ant in the first action, and Basa, the sole defendant in the secon< action. Generally, a servant is not in privity with his master so as t be able to claim the benefit of an earlier adjudication in the master’ favor. Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842 (1975). “However, in McNeal v. Paine, Webber, Jackson & Curtis Inc., 249 Ga. 662 (2) (293 SE2d 331) (1982), the Court held that thi rule applies only in cases, such as Gilmer, where there are defense which are available to the master but not available to the servanl Where the master is sued under the doctrine of respondeat superio for actions of the servant within the scope of the servant’s authority, and there are no defenses available to the master which are not available to the servant, the action adjudicating the master’s liability is res judicata and bars a subsequent action against the servant.” Brinson v. First American Bank, 200 Ga. App. 552, 555-556 (4) (409 SE2d 50) (1991).

Decided October 5, 1994

Reconsideration denied October 20, 1994 —

Cuffie & Smith, Rufus Smith, Jr., for appellant.

Smith, Gambrell & Russell, David M. Brown, S. David McLean, Jr., for appellee.

The first action was based on the alleged negligence of Basa in performing his duties as a physical therapist employed by the hospital. While the complaint did not explicitly allege the doctrine of re-spondeat superior, it asserted liability on the part of the hospital for Basa’s negligence. Moreover, Hodo has acknowledged in this action that the earlier action was brought under the theory of respondeat superior. In its answer, the hospital did not raise a defense of lack of authority or that Basa was acting outside the scope of his employment. It simply asserted that no agent, employee, or representative of the hospital caused any injury alleged by Hodo. Because the earlier action which resulted in judgment for the hospital was based on the alleged negligence of Basa, Hodo could not relitigate “this actually itigated and necessarily decided issue.” Sorrells, supra at 194. The trial court did not err in granting Basa’s motion for summary judgment on the basis of res judicata.

2. In view of the holding in Division 1, Hodo’s remaining enumerations of error are rendered moot.

Judgment affirmed.

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

        Lutz established a new rule including harbor pilots within the scope of OCGA § 9-1: 9.1, although they were not “professionals” as defined in Gillis v. Goodgame, 262 Ga. 11 (414 SE2d 197) (1992).


author: Beasley, Presiding Judge.

text:
    A94A1502.
    STATE OF GEORGIA v. CANNON et al.
    (449 SE2d 519)
   Beasley, Presiding Judge.

The pivotal question in this forfeiture case is whether the docu-nent filed by the claimant is sufficient for the purpose of meeting the i0-day requirement for the filing of claims in subsection (n) of OCGA : 16-13-49, the criminal forfeiture statute.

The State seized $405 and a car, both of which were in the pos-ession of claimant when he was arrested for, among other things, iossession of cocaine with intent to distribute. OCGA § 16-13-30. The State proceeded to effect forfeiture by the procedure specified in OCGA § 16-13-49 (n). Notice was posted on October 12, 1993, and duly published.

A document titled “Notice of Ownership Claim of Seized Property” was sent by certified mail to the seizing law enforcement agency and to the district attorney on October 26. Although it was captioned in the superior court, it was not filed there. The State did not file a complaint for forfeiture, which is required within 30 days of the actual receipt of a claim. OCGA § 16-13-49 (n) (5). Instead, more than 30 days after it received the purported claim document, the State moved to strike the document which had been received, as insufficient for failure to comport with the requirements of subsection (n) (4). Viewing the document as invalid to constitute a claim, the State sought judgment of forfeiture and the right to dispose of the property, as provided in subsection (n) (6).

After the hearing on the motion was set and continued, the claimant filed a motion for judgment. He took the position that his claim was valid, so that the State’s failure to file a complaint within 30 days of receiving it terminated the condemnation procedure and entitled him to return of the property, pursuant to State v. Henderson, 263 Ga. 508 (436 SE2d 209) (1993). Thereafter, and just two days prior to the hearing set for the State’s motion, claimant filed with the court an “Amended Notice of Ownership Claim of Seized Property,” with service on the district attorney but not on the seizing law enforcement agency. The court granted the claimant’s motion for judg-i ment after concluding that the document originally sent was sufficient! to trigger the State’s obligation to file a complaint for forfeiture within 30 days, which it had not done.

The purported claim document was patently deficient in that il did not fulfill the requirements of OCGA § 16-13-49 (n) (4). It was not signed by the owner or interest holder under penalty of perjury as the legislature provided “must” be done, but only by claimant’s attorney. It did not provide any of the information which the legislature provided “must be set forth.” It merely stated that Stanley Cannor claimed “ownership” in the two items of property and identified then as having been seized on a certain date at a certain location by a certain police officer. This did not meet the plain mandate of the legisla ture, which was particularized so as to assure some degree of legiti macy to the claim and to elicit supportive factual information so as t< expedite the proceeding; it simply did not serve the purposes fo which it is designed.

Analogous to the procedure in subsection (o), which figured h the case of State v. Henderson, supra, the requirement on the State “is conditioned on the filing of a timely and sufficient [claim].” Id. al 509, fn. 2. “[T]he plain meaning of ‘must’ is a command, synonymoul with ‘shall.’ ” Id. at 510. As in State of Ga. v. Alford, 264 Ga. 243 (2) (444 SE2d 76) (1994), so here: the insufficient claim put no burden on the State to take the next procedural step required when a claim is filed. In that case, the answer to the complaint filed under subsection (o) (3) was required to contain the same information and verification as that required for the claim under subsection (n) (4). The rationale applied in that case cannot be distinguished. The failure of the purported claim rendered it ineffective as a trigger to require the district attorney to file a complaint under OCGA § 16-13-49 (n) (5) in response to it.

Decided September 26, 1994

Reconsideration denied October 20, 1994.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellant.

Timothy T. Herring, for appellees.

To the extent that State of Ga. v. Adams, 212 Ga. App. 881, 882 (2) (443 SE2d 517) (1994), is inconsistent with this opinion, it is overruled. We note that Adams had relied on Alford v. State of Ga., 208 Ga. App. 595 (431 SE2d 393) (1993), which was reversed in part by the Supreme Court as cited above.

The question of whether the claim could be amended under the Civil Practice Act, OCGA § 9-11-15, is not before us, because the trial court faulted the State for not filing a complaint after receipt of the deficient and defective claim, not after the amended claim.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


author: Andrews, Judge.

text:
    A94A1516.
    HALE v. THE STATE.
    (449 SE2d 520)
   Andrews, Judge.

Harry Hale appeals from the judgment entered on his conviction for the offense of financial transaction card fraud.

The State indicted Hale for financial transaction card fraud under OCGA § 16-9-33 alleging that, with the intent to defraud a provider of services, the Comfort Inn, Hale represented, without the consent of the cardholder, that he was the holder of a Master Card issued to Christoph Zahn. In support of these allegations, the State presented testimony from a GBI agent who investigated the fraud. The agent testified that his investigation showed that a credit card issued to Christoph Zahn, who was reported missing, had been used to obtain a room at the Comfort Inn in Villa Rica. The State introduced Comfort Inn records showing that one person registered for room number 131 using Zahn’s name and credit card. The Comfort Inn registration card and the Master Card credit slip, both of which had been signed in Zahn’s name, were introduced into evidence. The State produced a handwriting expert, who compared samples of Hale’s known handwriting to the signature of Zahn’s name on the Comfort Inn registration and the credit card slip charging for the room. The expert testified that, in his opinion, Zahn’s name was signed by Hale.

The State also introduced the Comfort Inn telephone log for room number 131 showing the telephone numbers called from the room during the period the room was occupied in Zahn’s name. In connection with the telephone records, the State produced two high school students, who testified that Hale approached them at a local shopping mall, identified himself as a Swiss diplomat named Chris-toph, and obtained the telephone number of one of the students for the alleged purpose of later contacting the student about attending college in Switzerland. The Comfort Inn telephone log showed thaf one of the numbers called from room 131 was the telephone number given by the high school student to Hale.

Finally, the State introduced testimony from the bondsman whc posted Hale’s bond on the present charge. After Hale’s bond was posted and he was released from jail, the bondsman testified that, ai Hale’s request, he gave Hale a ride to Atlanta. During the ride, the bondsman testified that he asked Hale how he wound up in jail ir Carroll County and that Hale responded that “he had made a foolisl mistake, that he had used someone else’s credit card.” The bondsmar further testified that Hale said the credit card he used belonged to ai exchange student and that “he had met this guy and that they wers traveling together sharing expenses and the guy had left in [Hale’s^ automobile to take pictures of the area or whatever, he hadn’t corns back and that he used his credit card.” Hale did not testify or presen any evidence in his defense.

1. In his first enumeration of error, Hale contends the evidencs was not sufficient to support the conviction. He contends: (1) tha there was insufficient evidence to prove he was the person whs presented Zahn’s credit card at the Comfort Inn; (2) that even if then was sufficient evidence he presented Zahn’s credit card, the Stat< failed to prove he did so without Zahn’s permission; and (3) tha there was no proof that the Comfort Inn suffered any monetary loss

The indictment charged Hale with a type of financial transactioi card fraud set forth by OCGA § 16-9-33 (a) (2) (A), in that, with th< intent to defraud a provider of services, to wit: the Comfort Inn, hi obtained valuable services from the Comfort Inn by representing without the consent of the cardholder, that he was the holder of ; Master Card issued in the name of Christoph Zahn. The “cardholder” in this case was Christoph Zahn, whose name appeared on the face of the card and for whose benefit the card was issued. OCGA § 16-9-30 (3).

Contrary to Hale’s contention, there was ample evidence from which the jury could conclude that Hale obtained valuable services from the Comfort Inn by presenting Zahn’s Master Card. Hale argues that the State failed to prove the Comfort Inn suffered a monetary loss as a result of the transaction and, therefore, the evidence was insufficient to sustain the conviction. Although there was evidence that Master Card honored the transaction and paid Comfort Inn for the charge on the room, there was no requirement under the circumstances to show that the Comfort Inn sustained a monetary loss. It was sufficient to prove that, by use of the credit card, Hale obtained valuable services from the Comfort Inn.

The gravamen of the present offense was that, in using Zahn’s credit card to obtain the services, Hale did so with the intent to defraud the Comfort Inn and without Zahn’s permission. These elements may be proved by circumstantial as well as direct evidence. See Thomas v. State, 176 Ga. App. 771, 774 (337 SE2d 344) (1985); Harris v. State, 166 Ga. App. 202, 203 (303 SE2d 534) (1983). The State presented evidence that Hale signed Christoph Zahn’s name on the room registration card and the credit card transaction for the room and that he falsely represented himself to others as Christoph. Hale’s statement to the bondsman was additional evidence that he used the credit card without Zahn’s permission. The evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Hale used the credit card without Zahn’s permission with the intent to defraud the Comfort Inn. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hale claims the trial court erroneously admitted, over his objection, hearsay testimony given by the GBI agent showing that Zahn could not be located and, therefore, could not be produced to testify in the case.

The agent testified that he could not locate Zahn; that during his investigation he discovered that Zahn had been reported missing to the Atlanta Police Department, and that the last known contact from Zahn was with his travel agent a few days before the present incident. The agent’s testimony that he could not locate Zahn was derived from ;he agent’s personal knowledge and was not hearsay. Even if the renaming statements as to Zahn’s whereabouts were not derived from ;he agent’s personal knowledge, we conclude this testimony was not íearsay but admissible as original evidence under OCGA § 24-3-2.

When the conduct and motives of an officer are relevant to issues m trial, then “conversations, letters and replies, and similar evidence known to the [officer] are admissible [under OCGA § 24-3-2] to ex plain the [officer’s] conduct. [Cits.]” Momon v. State, 249 Ga. 865, 867 (294 SE2d 482) (1982); see Teague v. State, 252 Ga. 534 (31 SE2d 910) (1984). In this case, the conduct of the agent in attemptin to locate Zahn was relevant to explain the absence of any testimon from Zahn on the critical issue of whether or not he gave Hale pei mission to use his credit card. Under these circumstances, the agent efforts to locate Zahn needed to be explained. “Otherwise a jury ma be unable to assess the evidence fairly and may find police behavic so inexplicable, highhanded, or even illegal, as to cast unwarrante doubt on the prosecution.” Boss v. State, 210 Ga. App. 455, 456 (43 SE2d 496) (1993). There was no error in admitting the testimony.

3. Lastly, Hale contends the trial court erred by denying his me tion for a mistrial on the basis that the State impermissibly placed h character into evidence by implying that Hale may have murdere Zahn.

In response to a question from the prosecutor as to what effor had been made to locate Zahn, the GBI agent responded that: “The: have been tremendous efforts launched to locate Christoph Zahn c the body.” Although defense counsel objected without giving any bi sis for the objection, the character issue was preserved for appellai review by the trial court’s denial of Hale’s pre-trial motion in limin Harley-Davidson Motor Co. v. Daniel, 244 Ga. 284 (260 SE2d 2( (1979). Without specifically ruling on the objection, the trial cou reprimanded the witness for implying that Zahn may be dead ar stated in the presence of the jury that there was no evidence as what may have happened to Zahn and that the only relevant matt before the jury was the current charge. Defense counsel moved for mistrial on the basis that the curative instructions were not sufficier The trial court denied the motion and further instructed the jury disregard the agent’s comment with respect to efforts to locate Zahr body. Defense counsel renewed the motion for mistrial and the tri court denied the renewed motion.

Assuming arguendo that the agent’s response placed Hale’s cha acter into issue, and that the trial court tacitly considered the obje tion and motion for mistrial on the basis that Hale’s character w implicated, the instructions given to the jury were an adequate cc rective measure and the trial court did not abuse its discretion 1 denying the motion for a mistrial. Stanley v. State, 250 Ga. 3, 4 (29 SE2d 315) (1982).

Judgment affirmed.

Beasley, P. J., and Johnson, J., concur.

Decided October 5, 1994

Reconsideration denied October 20, 1994 —

Word & Flinn, Gerald P. Word, Candace E. Rader, for appellant.

Peter J. Skandalakis, District Attorney, Lynda S. Engel, Assis-ant District Attorney, for appellee.


author: Pope, Chief Judge.

text:
    A94A1002.
    McLAIN BUILDING MATERIALS, INC. v. HICKS.
    (449 SE2d 369)
   Pope, Chief Judge.

This is the third appearance in this court of a dispute arising out of Mr. and Mrs. Hicks’ purchase of building supplies from McLain Building Materials, Inc. We granted McLain’s application for discretionary appeal from the trial court’s grant of attorney fees for Mrs. Hicks, and now reverse.

Mrs. Hicks first sued McLain in Rockdale County, alleging that McLain had fraudulently filed liens against her property and made fraudulent misrepresentations on her bills. (The property was in Mrs. Hicks’ name only.) McLain then filed a breach of contract action in Fulton County against both Mr. and Mrs. Hicks, and also filed a counterclaim for breach of contract in the Rockdale suit. In McLain Bldg. Materials v. Hicks, 205 Ga. App. 767 (1, 2) (423 SE2d 681) (1992) (“McLain I”), we held that McLain’s breach of contract claim against Mrs. Hicks was a compulsory counterclaim which had to be pursued in the Rockdale action, and thus could not be prosecuted in the Fulton suit at the same time. See OCGA § 9-2-5 (a). McLain’s breach of contract claim against Mr. Hicks only was allowed to proceed in Fulton County, however. See McLain I, 205 Ga. App. at 768-769.

The trial court in Rockdale then granted summary judgment for McLain on Mrs. Hicks’ fraud claims, and Mrs. Hicks appealed. We affirmed in Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191 (433 SE2d 114) (1993). In the meantime, however, McLain voluntarily dismissed its counterclaim in the Rockdale suit and moved to add Mrs. Hicks in the still pending Fulton action. This motion was denied. Mrs. Hicks moved for attorney fees pursuant to OCGA § 9-15-14, alleging that McLain’s motion to add her was not only frivolous but in “direct defiance” of McLain I. The trial court granted Mrs. Hicks’ motion for attorney fees without findings or explanation.

1. We first note that since the trial court’s order did not include findings of conduct authorizing an award under OCGA § 9-15-14, the order must at least be vacated. See Porter v. Felker, 261 Ga. 421 (3) (405 SE2d 31) (1991). In the interest of judicial economy, however, we proceed to address the question of whether attorney fees should have been awarded.

2. McLain argues that its motion to add Mrs. Hicks was not frivolous and thus that the award of attorney fees under OCGA § 9-15-14 was not warranted. We agree. Contrary to Mrs. Hicks’ assertion, we did not hold in McLain I that she could never be a party to the Fulton action; we merely held that McLain could not prosecute its action against her in Fulton while the Rockdale suit was being prosecuted. See OCGA § 9-2-5 (a). Nor did we hold, as Mrs. Hicks contends, that joint obligors who are jointly and severally liable are not “necessary” parties to be joined if feasible; instead we held that they are not “indispensable” parties without whom the action cannot proceed if joinder is not feasible. See OCGA § 9-11-19.

A party may not prosecute the same cause of action against the same party in two courts at the same time. OCGA § 9-2-5 (a). At the time McLain moved to add Mrs. Hicks in Fulton, the trial court’s action in Rockdale had terminated with the grant of summary judgment for McLain, but Mrs. Hicks had appealed. The determinative question, then, is whether the Rockdale action was still being “prosecuted” for purposes of OCGA § 9-2-5 (a) after summary judgment was entered but while the appeal was pending. If so, McLain still could not prosecute its action against Mrs. Hicks in Fulton; if not, joinder of Mrs. Hicks would have been proper. Neither party cites law on the answer to this question, and it has evidently not been clearly answered. And because McLain did not appeal the denial of its motion to add Mrs. Hicks, we need not answer it here. But in light of this uncertainty, McLain’s motion to add Mrs. Hicks was not frivolous and Mrs. Hicks’ motion for attorney fees should have been denied.

Decided October 20, 1994.

James B. Gurley, for appellant.

Clifford H. Hardwick, for appellee.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.

       McLain suggests it should not matter if the Rockdale case was still being “prosecuted” while on appeal because McLain had voluntarily dismissed its breach of contract counterclaim in Rockdale. As we explained in McLain I, however, a compulsory counterclaim is considered a part of the main action for purposes of OCGA § 9-2-5 (a) and is deemed to be “prosecuted” as soon as and as long as the main action is prosecuted, even if it has not been filed or has been dismissed.


author: Ruffin, Judge.

text:
    A94A1421.
    COVIN v. THE STATE.
    (449 SE2d 550)
   Ruffin, Judge.

The appellant, Tommy Lee Covin, was convicted of burglary of the Leesburg City Hall. His sole contention on appeal concerns the trial court’s denial of his challenge to the State’s exercise of its peremptory strikes pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

The State exercised four of six peremptory strikes to exclude black jurors. The prosecutor explained that the reasons for striking three of the jurors in question included lack of intelligence, relationship to the appellant, or long-time acquaintance with the appellant. The appellant does not contest the legitimacy of the State’s explanations for those three strikes.

However, the appellant attacks the sufficiency, of the State’s explanation for excluding the fourth juror. The prosecutor’s reasons for this strike included (1) the fact that the juror, as the former mayor of a nearby town, was too familiar with city government; (2) the prosecutor did not feel comfortable with the juror; (3) the prosecutor preferred other jurors further down the list, which required striking others in order to reach them; and (4) the sheriff of Lee County recommended striking the juror.

The prosecutor concluded his explanation by stating that “there’s something about [the juror] that just — I didn’t care for. ... All I can say, on the record or anywhere else, it’s got nothing to do with race.” The trial judge accepted the prosecutor’s explanation, but nevertheless expressed lingering concern about the explanation, mindfiil of Batson (the Batson challenge), and admitted that “I don’t feel like I can explain [the prosecutor’s] reasons for striking him.”

For reasons which follow, we reverse.

We need not concern ourselves with whether the defendant made a prima facie case below. “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant made a prima facie showing becomes moot.” Hernandez v. New York, 500 U. S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991); Lewis v. State, 262 Ga. 679 (2) (424 SE2d 626) (1993). Accordingly, we need only concern ourselves with the sufficiency of the State’s proffered reasons for the exercise of the peremptory challenge in question.

As we scrutinize the sufficiency of the State’s reasons, we are ever mindful that “[t]he explanation ‘need not rise to the level justifying exercise of a challenge for cause,’ but it must be ‘neutral,’ ‘related to the case to be tried,’ and a ‘ “clear and reasonably specific,” explanation of his “legitimate reasons” for exercising the challenges.’ [Cit.]” Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). Also, we must be mindful that the trial judge’s findings must be accorded great deference, and they cannot be reversed unless clearly erroneous. Lingo v. State, 263 Ga. 664 (1) (b) (437 SE2d 463) (1993). In accommodating these dual concerns, Batson, and to a lesser extent Gamble, remains the compass by which we are guided.

We will examine the State’s reasons seriatim. One reason proffered by the State was that [the juror] is a former mayor of a small town in another part of Lee County. While it strains one’s credulity why the State would want to strike such a juror in these circumstances, the proffered reason is racially-neutral, although its application is suspect. We defer to the trial judge’s finding in this regard, and we find no Batson violation.

The prosecutor also stated that he was “not comfortable” with the excluded juror. We do not deem it appropriate to deal with the prosecutor’s level of comfort other than to say that such is too vague, too subjective, is non-specific, is non-case related, and as such fails to meet Batson’s requirement of “ ‘clear and reasonably specific.’ ” Batson, supra at 98, n. 20. See also Gamble, supra at 327-328. Accordingly, we hold that a prosecutor’s discomfort, without more, violates the commands of Batson on this record.

The prosecutor also proffered as a reason for exclusion that he wanted to strike the particular juror in order to get to other jurors further down the jury list. Again, while this appears to be racially-neutral, only in the context of application can we determine whether such an explanation is in fact racially-neutral.

As our Supreme Court noted in Gamble, “ ‘rubber stamp’ approval of all nonracial explanations, no matter how whimsical or fanciful, would cripple Batson’s commitment to ensure that no citizen is disqualified from jury service because of . . . race.” (Citations and punctuation omitted.) Id. at 327. Moreover, there is a three-way proscription in Batson: “ ‘[A] prosecutor may not strike a black juror solely because of his race, nor may he strike on the basis of an assumption which arises “solely from the jurors’ race,” nor may he strike “to exclude . . . veniremen from the petit jury on account of their race.” [Cit.]’ . . . [Cit.]” Mincey v. State, 257 Ga. 500, 502-503 (4) (360 SE2d 578) (1987). See also Ford v. State, 257 Ga. 661 (362 SE2d 764) (1987).

Finally, the State, through the prosecutor, offered as a reason that he struck the juror in question because the sheriff suggested it. In this regard, Lewis v. State, supra, is instructive: “Although the prosecuting attorney acts responsibly when he solicits or accepts input from colleagues, prosecuting witnesses, victims, and victims’ family members concerning the exercise of peremptory challenges, the State does not fulfill its burden to provide racially-neutral reasons by stating that its peremptory challenges were exercised in deference to the wishes of an individual concerned about the case. In such a situation, the State must set forth a racially-neutral, case-related reason underlying the decision of the person to whom the prosecutor deferred.” (Footnote omitted.) Id. at 681. Accordingly, deference to another in the instant case no more meets the commands of Batson than deference to another in Lewis.

Moreover, the record shows that the prosecutor had at least some realization that his striking of the juror was unlawful. He stated: “There is an additional reason for striking — that I struck . . . [the juror], and if memory serves, there is a case which says that ain’t a good enough reason, but I did so also on the recommendation of the High Sheriff of Lee County, . . . the Sheriff suggested that . . . [the juror] would not make us a good juror. He did not go any farther [sic] than that, and I don’t know what the Sheriff’s reasons were and didn’t inquire into them.” (Emphasis supplied.)

Again, in deferring to the sheriff, the prosecutor stated “[the Sheriff] lives here. He knows the voters in his county. He knows the people who live in his county, and if he comes to me and says, ‘You want to look real carefully at that juror,’ I’m going to listen to him. If that’s not good enough for the Court of Appeals or the Georgia Supreme Court, well, I’m sorry. They ought to have some experience in these smaller, rural counties.” The trial judge stated, “I have to agree with you. I think a number of the people who practice in rural counties agree that the Court of Appeals and [the] Supreme Court on Bat-son do not take into consideration the realities of trial work. However, that is not for me to determine. It’s been determined by the Court of Appeals and I’m bound by it. However, I will allow the Court of Appeals to review this case, and if they want to reverse it, that’s fine. . . .”

We can understand the trial judge’s frustration with a principle of law that is as controversial as Batson. However, irrespective of frustration, disagreement or the like, the commands of Batson are binding on the trial court as well as this court. Accordingly, the trial judge cannot abdicate his responsibility irrespective of his private views, his frustration or his disagreements.

Decided October 20, 1994.

W. McCall Calhoun, Jr., for appellant.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.

       When the prosecutor was asked if he had a problem with “the prima faciability of this, . . he replied, “Judge, I — quite frankly, I have never paid close attention to the Batson issue. I have never agreed with the whole thing. I’ve always thought it was a little silly. . . .”


text:
    A94A1468.
    HUGHES v. THE STATE.
    (449 SE2d 547)
   McMurray, Presiding Judge.

Defendant Vance Hughes, Jr., was jointly indicted with his son, Eric Dwayne Hughes, and charged with violation of the Georgia Controlled Substances Act (“Trafficking Cocaine”) in that they “did knowingly bring into the State of Georgia and possess more than 400 grams of cocaine. . . .” Defendant was also charged with speeding. Eric Dwayne Hughes pled guilty “to Possession of Cocaine with the Intent to Distribute” while defendant was tried before a jury. Viewed to uphold the jury’s verdict, the evidence showed Trooper Bryant McCard of the Georgia State Patrol stopped a car driven by defendant for doing 78 mph in a 65-mph zone on Interstate 75. “Eric Hughes was the passenger in the car with [defendant] [.]” Defendant told the officer “he was going to Cordele to his family.” Defendant had a valid Florida driver’s license. Trooper McCard noticed the tag on this vehicle “as being a Y tag from Florida. And tags that are issued in Florida with the letter Y beginning are rental vehicles.” Trooper McCard “asked [defendant] for his rental agreement to the vehicle and he said it was in the car, that he would have to get it out of the car.” Defendant then led Trooper McCard to the passenger side of the vehicle, where the officer spoke with Eric Dwayne Hughes. “There was no rental agreement in the car.” According to a videotape of this traffic stop, Eric Dwayne Hughes explained that a friend of his, who had a credit card, had arranged to rent the vehicle over the telephone and that he was the second driver. Eric Dwayne Hughes further advised Trooper McCard “that he was going to drop his dad off in Cordele . . . [and] that he was going to continue on to Atlanta.” Trooper McCard did not observe any bulge in Eric Dwayne Hughes’ clothing during this conversation even though he was leaning over him at the passenger window and so he inferred that Eric Dwayne Hughes “didn’t have [any] bag stuffed down inside his jacket. . . .” Subsequently, Eric Dwayne Hughes exited the car from the passenger side and walked away from the rental vehicle and away from his father and Trooper McCard. Trooper McCard repeatedly told Eric Dwayne Hughes to “come back” and also requested defendant “to ask his son to stop and tell him to come back. . . .” However, defendant “didn’t react at all. . . .” Then, “Eric Hughes dropped a white sack . . . out from under his coat. . . ,” whereupon he was forcibly arrested by Trooper McCard. Inside this white plastic shopping bag were two rectangular packages, wrapped in paper and sealed with silver duct tape.

Special Agent Aaron Graves of the Georgia Bureau of Investigation arrived at the Turner County jail and interviewed defendant. Defendant gave Special Agent Graves a statement in which he claimed to have no knowledge of the two bricks of suspected cocaine his son dropped from beneath his jacket by the side of the road. However, defendant had a “wallet full of different phone numbers, a lot of digits ...” some of which had dollar signs or cents signs in front of them and some “gun receipts.” Special Agent Graves performed a field test of the two taped bricks and each was positive for cocaine. According to Susan A. Strickland, assistant director of the Moultrie branch of the State Crime Laboratory of Georgia, the powder weight of the two packages was “1000.69 grams” and “972.0 grams,” respectively. Special Agent Graves estimated the street value of two kilograms of cocaine at anywhere “from forty-six thousand to fifty thousand dollars.” An inventory search of the vehicle yielded “two sets of clothing for one change of clothing, a radar detector . . .” as well as a pager “[i]n the glove compartment of the car.” Although no copy of the rental agreement was discovered, Special Agent Graves affirmed that the car had been rented from “Larry’s Auto Rental. . . .” Summoned to the scene as backup assistance, Deputy Roger Dale Hobby of the Turner County Sheriff’s Department recalled that defendant “acted a little nervous, but not much.”

The jury found defendant guilty of both “Trafficking Cocaine” and speeding. His motion for new trial was denied and this appeal, apparently only as to his conviction and sentence for “Trafficking Cocaine,” followed. Held:

1. OCGA § 16-13-31 (a) (1) provides: “Any person who knowingly . . . brings into this state or who is knowingly in possession of 28 grams or more of cocaine . . . commits the felony offense of trafficking in cocaine. . . .’’In his first, second, and fifth enumerations, defendant challenges the sufficiency of the evidence to convict, arguing that the State failed to prove “the essential element of knowledge under OCGA § 16-13-31 (a) (1). . . .” We agree with defendant that the evidence adduced below was insufficient to authorize a rational trier of fact to find, beyond a reasonable doubt, the elements of trafficking in cocaine as alleged in the indictment. Consequently, we reverse defendant’s conviction for that offense.

In reply to defendant’s motion for directed verdict of acquittal, the State’s attorney conceded that “the evidence against Mr. Hughes is circumstantial; and we never put — never were able to put the drugs in his hands.” However, the State relied on the circumstance that defendant was the driver as proof that “all that is in that automobile is presumed to be in his possession[,]” referring the trial court to Autry v. State, 150 Ga. App. 584, 586 (2) (258 SE2d 268). Additionally, the State relied on the following circumstances: Defendant “never [offered] proof to see that any type of documentation that any third party rented the car[;. . . there were no] clothes except a change of underwear and a T-shirt in a paper bag; [and] no luggage in the back of the car.” As further proof of defendant’s knowledge and complicity in Eric Dwayne Hughes’ actual possession, the State’s attorney argued that it is “not believable that [defendant] could drive all the way from Miami with a person in the front seat with four pounds of cocaine — this amount, Your Honor, was tucked up under [Eric Dwayne Hughes’] jacket — and not become suspicious and be aware of what it was.” Additionally, the State argued that the circumstance that defendant did not respond when Trooper McCard asked him to tell his son to come back is “the evidence that we need to connect him in and connect him up to the cocaine.”

“The general rule regarding [joint or] constructive possession was stated in Watson v. State, 93 Ga. App. 368 (1) (91 SE2d 832): ‘Where immediate and exclusive possession of an automobile, locker room, or other premises is shown, the inference is authorized that the owner of such property is the owner of what is contained therein, and this inference has been referred to as a rebuttable presumption. (Cits.)’ However, ‘(a)s to automobiles, the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access to it. Shepherd v. State, 77 Ga. App. 857 (50 SE2d 111).’ Elrod v. State, 128 Ga. App. 250, 251 (196 SE2d 360). Furthermore, ‘ “(m)erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Gee v. State, 121 Ga. App. 41, 43 (172 SE2d 480). While Gee applies to premises, the same rule appertains to automobiles. (Cit.)’ Donaldson v. State, 134 Ga. App. 755, 756 (216 SE2d 645).” Davis v. State, 146 Ga. App. 629 (2) (247 SE2d 210).

In the case sub judice, it is undisputed that only Eric Dwayne Hughes had actual possession of the cocaine and it is further undisputed that he had equal access to the rented automobile defendant was driving. “The evidence [in the case sub judice] does not show actual possession by [defendant], and to support a finding that he was in [joint or] constructive possession of the contraband the circumstantial evidence must be both consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Mitchell v. State, 150 Ga. App. 44, 46 (2) (256 SE2d 652) (1979). ‘A finding of [joint or] constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity.’ [Cit.]” Shirley v. State, 166 Ga. App. 456 (1) (304 SE2d 468). “Where it is established that other persons had equal access to the vehicle, ‘the application of a presumption of possession of any contraband found in it is not a sound, abstract principle of law and is a dangerous rule for the numerous owners [or drivers] of motor vehicles.’ . . . [Cit.]” Whipple v. State, 207 Ga. App. 131 (1), 132 (427 SE2d 101).

“[H]aving eliminated the presumption of possession, what remains [in the case sub judice is defendant’s] mere presence near hidden cocaine.” Whipple v. State, 207 Ga. App. 131, 132, supra. “[M]ere proof of the accused’s presence at the scene of the crime, without any evidence to show further participation in the commission of the crime, is insufficient to authorize a conviction. [Cits.]” Muhammad v. State, 243 Ga. 404, 405 (1) (254 SE2d 356). Even approval (not amounting to encouragement) will not make the accused an active participant or an aider and abettor. Parker v. State, 155 Ga. App. 617 (2), 618 (271 SE2d 871). “ ‘ “Neither presence nor flight, nor both together, without more, is conclusive of guilt.” ’ (Quoting Griffin v. State, 2 Ga. App. 534 (2) (58 SE 781) (1907)).” Myers v. State, 193 Ga. App. 372, 373 (387 SE2d 640). Consequently, in the case sub judice, it is not sufficient that defendant “acted a little nervous” at the scene. The additional circumstances relied upon by the State, i.e., that a pager was found in the glove compartment and that in defendant’s wallet was a list “full of different phone numbers, a lot of digits — a lot of different digits [ . . . with] dollar signs . . .” by themselves are not evidence of guilty knowledge. The State adduced no evidence to connect the pager, the phone numbers, or the digits with dollar signs to telltale signs of criminality. “As a matter of law, [defendant’s] presence [as the driver] is not enough [circumstantial evidence] to support a finding of criminal possession of the contraband beyond a reasonable doubt, to the exclusion of every other reasonable hypothesis [save the guilt of the accused as required by OCGA § 24-4-6].” Whipple v. State, 207 Ga. App. 131, 132, supra. See also Denham v. State, 144 Ga. App. 373, 374 (1, 2) (241 SE2d 295); Greeson v. State, 138 Ga. App. 572, 574 (4) (226 SE2d 769), rev’d on other grounds, State v. Greeson, 237 Ga. 193 (2) (227 SE2d 324). Compare Fears v. State, 169 Ga. App. 172 (1), 174 (312 SE2d 174). “Here, as in Whipple, supra, ‘(w)e recognize that the factfinder is usually in the best position to determine questions of reasonableness when evidence of guilt is circumstantial. (Cits.)’ [Cit.] Nevertheless, since [any] presumption of possession [was rebutted by the undisputed evidence that defendant’s passenger had an equal opportunity to commit the crime without defendant’s knowledge], we find no evidentiary basis upon which the jury could have concluded beyond a reasonable doubt that [defendant] was in knowing [joint or constructive] possession of the cocaine [that the co-indictee dropped from his person after exiting the car].” Reid v. State, 212 Ga. App. 787, 789 (442 SE2d 852). Consequently, the trial court erred in denying defendant’s motion for directed verdict of acquittal as to Count 1, violation of the Georgia Controlled Substances Act (“Trafficking Cocaine”).

Decided October 20, 1994.

Glenn Zell, Rodney S. Zell, for appellant.

C. Paul Bowden, District Attorney, M. Elizabeth McFadyen, Assistant District Attorney, for appellee.

2. The remaining enumerations have been considered and are found to be rendered moot by our reversal of the conviction for violation of the Georgia Controlled Substances Act (“Trafficking Cocaine”).

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A1779.
    GRANT v. THE STATE.
    (449 SE2d 545)
   McMurray, Presiding Judge.

Defendant and Tigris Chaurelle Lampkin were indicted for two counts of violating the Georgia Controlled Substances Act, by possession of cocaine with intent to distribute and by possession of less than one ounce of marijuana. A third count accused defendant with driving under the influence, in that he did “unlawfully drive a moving vehicle while having marijuana present in his urine [.]” The evidence adduced at a jury trial showed that Deputy John L. Smith of the Monroe County Sheriff’s Office stopped a rental vehicle driven by defendant on 1-75 South near Forsyth, Georgia, after observing the vehicle doing 82 mph in a 65-mph zone and weaving “pretty abruptly].” Defendant admitted to Deputy Smith that his Florida license was suspended and Deputy Smith placed him under arrest for driving with a suspended license. The vehicle was not rented in the name of either defendant or his passenger, Ms. Lampkin. She did not have a valid license with her so Deputy Smith ordered the vehicle towed to the Sheriff’s Office. When Ms. Lampkin exited the rental vehicle to accept a ride to the Sheriff’s Office, she left her purse open on the floor of the passenger side. Deputy Smith briefly examined the open purse for weapons and found on top of the items therein a brown paper bag containing 6.4 grams of marijuana and rolling papers, whereupon Ms. Lampkin was arrested for possession of marijuana. Defendant was then informed that he was under arrest for the additional offense of driving while under the influence of a drug. Defendant agreed to submit to a urine test, and stated to Deputy Smith that “he knew it would come back positive because he had smoked marijuana ... a couple of days before with some friends.” At the Sheriff’s Office, an inventory search of the. brown bag containing the marijuana also yielded three small packets of powder cocaine, weighing a total of 10.2 grams. Ms. Lampkin testified that the brown paper bag containing the marijuana and cocaine belonged to defendant. As the vehicle was being stopped by Deputy Smith, defendant panicked and “he told [her] to put the bag in [her] purse.” Ms. Lampkin provided a urine sample and “it came back negative for alcohol and negative for any type of drug.” Defendant’s urine “specimen was positive for metabolites of delta 9 tetrahydrocannabinol which is marijuana.”

As to defendant, the jury returned guilty verdicts as to all offenses charged, while finding him guilty of “only possession” as to the cocaine offense. Ms. Lampkin was acquitted of both charges filed against her. This appeal follows the denial of defendant’s motion for new trial. In support of his sole enumeration of error that “ [i]t was error for [the] trial court to permit the conviction of accused with the conflict in evidence, which existed in the testimony of the witnesses in this case,” defendant argues that “the testimony of the witnesses, those witnesses being the Defendant and Co-Defendant [Ms. Lampkin], was so conflicting and confusing, where it would have been impossible to ascertain the truth beyond a reasonable doubt, as to Defendant Grant and his role in sequence of events that brought him to the Court to be convicted.” Held:

“ ‘On appeal the evidence must be viewed in the light most favorable to the verdict, and appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. Robinson v. State, 194 Ga. App. 432, 433 (1) (390 SE2d 652).’ Rigenstrup v. State, 197 Ga. App. 176, 180 (4), 181 (398 SE2d 25). See also Howard v. State, 261 Ga. 251, 252 (403 SE2d 204). ‘ “Conflicts in the testimony of the witnesses, including the state’s witnesses, is a matter of credibility for the jury to resolve. . ..” Searcy v. State, 236 Ga. 789, 790 (225 SE2d 311).’ Fisher v. State, 151 Ga. App. 93 (258 SE2d 920).” King v. State, 213 Ga. App. 268, 269 (444 SE2d 381). In the case sub judice, evidence that defendant was speeding and abruptly changing lanes while there was marijuana in his system is sufficient to authorize the jury’s finding that defendant was “[u]nder the influence of any drug to the extent that it [was] less safe for [him] to drive” in violation of OCGA § 40-6-391 (a) (2), beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Griggs v. State, 167 Ga. App. 581, 584 (6) (307 SE2d 75). Compare Sparks v. State, 195 Ga. App. 589, 590 (2) (394 SE2d 407), overruled on other grounds, Green v. State, 260 Ga. 625 (1) (398 SE2d 360). Ms. Lampkin’s testimony that the bag containing the marijuana and cocaine belonged to defendant and not to her is corroborated by the scientific evidence indicating the presence of marijuana in defendant’s system and the absence of drugs in hers. The evidence is sufficient to authorize the jury’s determination that defendant was guilty beyond a reasonable doubt of possessing the marijuana and cocaine found in the vehicle. See Cannon v. State, 211 Ga. App. 835 (440 SE2d 723). Compare Reid v. State, 212 Ga. App. 787 (442 SE2d 852).

Decided October 20, 1994.

Martin & Martin, Karen K. Martin, Harold E. Martin, for appellant.

Tommy K. Floyd, District Attorney, Kelley S. Powell, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A2014.
    STINSON v. THE STATE.
    (449 SE2d 544)
   McMurray, Presiding Judge.

Defendant Stinson appeals his convictions of the offenses of armed robbery and kidnapping. Held:

1. Defendant and co-defendant Darrell Shy rented a room in the home of Sherline Collins and Curtis Collins but failed to pay any rent. Curtis Collins evicted defendant and Shy who returned later the same day with an unidentified third companion. After some argument, Shy and the unidentified third person became involved in a fight with Curtis Collins who was struck about the head with brass knuckles and his wallet taken. Meanwhile, defendant forced Sherline Collins into another room of the house where she was bound, gagged, and hit about the face.

Defendant’s first enumeration of error complains of ineffective representation by trial counsel in that he did not fully develop evidence concerning Sherline Collins’ initial description of the crime to police. We should first note that no evidence was developed, even during the hearing on defendant’s motion for new trial complaining of the alleged ineffective representation, concerning the substance of this initial statement by Sherline Collins. Nonetheless, the substance of the missing statement may be inferred from defendant’s trial counsel’s question to Sherline Collins at trial as to whether she remembered telling the investigating detective that it was Shy who had tied her up and hit her. Sherline Collins disavowed any recollection of this and other early statements to police, noting that she had had seizures and did not remember. While defendant maintains that further pursuit of this issue by trial counsel may have diminished the credibility of Sherline Collins so as to increase the possibility of an acquittal of defendant, this seems highly speculative since the statement which defendant would now emphasize is also inculpatory. Despite whatever physical maladies were suffered by the victims, including Curtis Collins’ poor eyesight and Sherline Collins’ memory problems, they both testified unequivocally concerning the crimes perpetrated upon them as well as the presence and participation of defendant. Additionally, defendant made inculpatory admissions to police shortly after the crimes. Under these circumstances the decision to abandon further inquiries concerning the early statements to police must be viewed as one within the proper scope of an attorney’s discretion concerning trial strategy. In any event, we believe it is most unlikely that a different choice on this issue would have altered the jury’s verdict. The defendant having failed to show that counsel’s performance was deficient or that deficient performance by trial counsel prejudiced the defense, we find no merit in defendant’s contention that he was denied effective assistance of counsel at trial. Smith v. Francis, 253 Ga. 782 (1), 783 (325 SE2d 362).

2. In defendant’s remaining enumeration of error, he maintains that the trial court erred in charging the jury on conspiracy since conspiracy was not charged in the indictment. “ ‘Even though a conspiracy is not charged in the indictment, the jury charge is not incorrect where the evidence supports it. Spencer v. State, 180 Ga. App. 498 (349 SE2d 513) ((1986)).’ Sabree v. State, 195 Ga. App. 135, 138 (7) (392 SE2d 886) (1990).” Bradford v. State, 202 Ga. App. 724 (1), 725 (415 SE2d 697). “ ‘Slight evidence will justify a charge even where the preponderance of the evidence tends to show the non-existence of such a fact. (Cit.) A conspiracy may be reflected by inference arising from a deduction from acts and conduct showing a common design to act together for the accomplishment of an unlawful purpose. (Cit.)’ Camp v. State, 181 Ga. App. 714, 717 (3) (353 SE2d 832) (1987).” Hicks v. State, 195 Ga. App. 887, 889 (2) (395 SE2d 341). The evidence introduced at trial supported an inference of a conspiracy. The trial court did not err in charging on conspiracy.

Decided October 20, 1994.

William A. Dowell, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2034.
    CAMPBELL v. THE STATE.
    (449 SE2d 366)
   Birdsong, Presiding Judge.

Robert Lee Campbell appeals his judgment of conviction of burglary and his sentence. Held:

1. Appellant contends the evidence was insufficient to support his conviction of burglary, particularly as it was insufficient to exclude every reasonable hypothesis save that of his guilt. We disagree.

The vice-president of a trucking company and the operations officer of the Berth Company left the premises to obtain some building supplies. On their return they noticed a truck, which had not been parked in the area before they left, parked approximately 500 feet from the premises. At the premises they found the door of the office trailer wide open; the window rollers of the trailer had been broken and the door unlocked from the inside. A medium built, black male, about 5'10" in height who was wearing a light green hooded jacket was observed leaving the trailer. (The jury was able to compare the physical characteristics of appellant with the physical descriptions given by the witnesses.) The area was well-lighted at the time by a street light and their vehicle headlights. The police were called and, about 15 to 25 minutes later, appellant was apprehended a relatively short distance away. The vice-president and manager both made pretrial identifications of appellant, although they could not be positive as to their identifications until appellant put on the coat he was carrying when apprehended. The vice-president explained that appellant looked bigger once he put on the jacket. He also made an in-court identification of appellant; no timely objection was posed as to this identification. The vice-president testified during cross-examination that, while he could positively identify the coat, he could not identify appellant until the latter put on the coat. The operations manager observed appellant flee from the burglary scene. He too described appellant’s green coat and testified that appellant was wearing blue pants. The operations manager testified as to the circumstances surrounding his pretrial identification of appellant. When he was returned to the premises after being apprehended, appellant was wearing blue pants. When the operations manager saw appellant in police custody, he believed he was the perpetrator of the entry in the trailer, but the manager was not positive until appellant actually put on the coat. The manager believed the coat made appellant look heavier; when appellant was just in his shirt his face looked skinnier. The manager also made an in-court identification of appellant; no objection was posed to this identification. His pretrial identification was of appellant and not merely of appellant’s coat; his in-court identification was made without hesitation or doubt.

“Flight is circumstantial evidence of consciousness of guilt” and the weight to be given such evidence is for the jury to decide; the fact that a suspect flees the crime scene points to the question of guilt in a circumstantial manner. Green v. State, 206 Ga. App. 42, 44 (3) (424 SE2d 646); Horne v. State, 204 Ga. App. 81 (2) (418 SE2d 441).

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). A determination whether other hypotheses have been excluded is primarily a jury function. Murdix v. State, 250 Ga. 272, 274 (1) (297 SE2d 265). We conclude that the jury rationally could find that the evidence excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offense of which convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Appellant asserts the trial court erred in allowing the State to introduce evidence that appellant was charged with another crime, thereby placing his character into issue. Specifically, appellant objected to testimony that the truck found near the crime scene had been stolen from Newnan, Georgia, and that a bus ticket from LaGrange to Newnan subsequently was found under the mattress in appellant’s jail cell. The trial court concluded that this evidence had some relevance and admitted it. During cross-examination, appellant admitted that the bus ticket was his, claiming he had passed through Newnan by bus. The evidence in its totality linked appellant to the truck which had been recently parked near the crime scene. From this evidence the jury could reasonably infer that appellant drove in a truck to the crime scene, and that he had access to a means of transporting items from the crime scene. Admissibility of evidence is a matter which rests largely within the discretion of the trial court; unless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395). Evidence of doubtful relevancy or competency should be admitted and its weight left to the jury; where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Id. “ ‘If evidence is relevant and material to an issue in a case, it is not inadmissible because it incidentally puts the defendant’s character in issue.’ ” Id. Appellant has failed to establish that the trial court abused its discretion in admitting this evidence. Further, by giving the jury the limiting instruction requested by appellant and to which appellant thereafter took no exception nor requested additional instructions, the trial court limited the potential for prejudice of the evidence so that it did not substantially outweigh the probative value thereof.

3. Appellant contends the trial court erred in admitting prejudicial and improper evidence over appellant’s objection; thus, appellant asserts the trial court erred in admitting evidence that the truck was stolen. This evidence was relevant. See Division 2 above. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose.” Boatright v. State, 192 Ga. App. 112, 116 (6) (385 SE2d 298). Admissibility of evidence rests in the sound discretion of the trial court (Santone v. State, 187 Ga. App. 789, 792 (371 SE2d 428)); appellant has not established that the trial court abused its discretion in admitting the evidence over objection.

4. Appellant asserts his conviction should be reversed because of admission of prosecution witness testimony that previously had been excluded. Specifically, appellant contends the trial court erred in admitting his statement, made in custody and apparently without benefit of a Miranda warning, to the effect that he had driven the truck from Newnan.

The trial court initially sustained appellant’s objection to the incriminating statement and the State did not offer this evidence in its case in chief. Appellant subsequently testified in his own behalf on direct examination that he did not burglarize the trucking company, the charges against him regarding the truck had been dismissed, and he had gotten out of a friend’s car because the driver had been drinking too much and he was walking en route to an acquaintance’s house to obtain a ride when he was apprehended by the police. On cross-examination, appellant was non-responsive to a question whether the truck at the crime scene was the same truck involved in those charges, claiming he had never seen the truck before. Appellant also testified on cross-examination that if Officer Freeman claimed appellant had admitted he had “come in that truck,” Freeman would be lying. Officer Freeman was called by the State as a rebuttal witness and testified that appellant, when asked if he had come to this area in the truck parked near the crime scene, responded “yeah.” As a general rule, subject to proper foundation, a witness may be impeached by prior contradictory statements made by him as to matters relevant to his testimony in a case or by disproving the facts testified to by him. OCGA §§ 24-9-82; 24-9-83. Assuming without deciding that the incriminatory statement was obtained from appellant in violation of his Miranda rights, nevertheless “ ‘a prior incriminatory statement is admissible for impeachment purposes even if Miranda warnings had not been given.’ ” Mack v. State, 209 Ga. App. 104, 106 (1) (432 SE2d 680); compare State v. Byrd, 255 Ga. 665 (341 SE2d 455) with Cribbs v. State, 204 Ga. App. 109 (418 SE2d 405). We will not reverse the correct ruling of a trial court regardless of the reason given therefor. Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649); Ely v. State, 192 Ga. App. 203 (4) (384 SE2d 268).

Decided October 20, 1994.

Robert H. Alexander III, for appellant.

Thomas J. Charron, District Attorney, Irvan A. Pearlberg, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Appellant’s various contentions in support of his four enumerations of error are without merit.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1349.
    STEIDL v. THE STATE.
    (449 SE2d 644)
   Ruffin, Judge.

Jack Steidl appeals his conviction of first degree arson.

The State’s evidence viewed in the light most favorable to the jury’s verdict, shows the following facts. Shortly after midnight on July 28, 1991, the fire department responded to a call that Steidl’s house was on fire. Due to the rapid spread of the fire, the fire chief who was at the scene classified it as suspicious. A county fire investigator testified that he found several indications of suspicious activity, including the odor of gasoline and evidence of connected “pour patterns” down the hall of the house, leading him to the conclusion the fire was intentionally started.

The ex-boyfriend of Steidl’s daughter, Sonny Lewis Farmer, later confessed to starting the fire and implicated Steidl. At trial, Farmer testified that Steidl had given him explicit instructions of how to start the fire and threatened his life if he did not do as Steidl instructed. On the evening of the fire, Farmer entered the house and found matches that Steidl had left for him and a jug of gasoline with a wick in it that Steidl had placed in a closet. Farmer testified he lit the wick, as Steidl had instructed, and the jug erupted into a big ball of fire.

An insurance investigator for Steidl’s insurance company testified that Steidl was almost $3,000 behind on his mortgage payment and had received a letter on June 25, 1991, stating that if he did not cure the delinquency by July 26, 1991, the lender would initiate foreclosure proceedings. Furthermore, Steidl was behind on payments to numerous other creditors, and the gas company had recently disconnected service for non-payment.

Steidl’s daughter and son testified that prior to the fire, Steidl had commented that he could get out of debt with insurance money if the house were burned down. The daughter further testified that on the day of the fire, she had observed him placing newspapers and jugs containing orange liquid in the middle of the house. Finally, the daughter stated that as she and Steidl left the house that day, Steidl locked and closed the back door, then kicked it in to make it look like someone had broken in.

Steidl argues that to warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6.

Steidl’s challenge to the sufficiency of the evidence is without merit. “A person commits the offense of arson in the first degree when, by means of fire or explosive, he knowingly damages or knowingly causes, aids, abets, advises, encourages, hires, counsels, or procures another to damage . . . [a]ny building ... or other structure of another without his consent or in which another has a security interest. . . .” OCGA § 16-7-60 (a) (2). “Three elements are necessary to sustain a conviction of arson: (1) the property alleged in the indictment was in fact burned, (2) its cause was a criminal agency, and (3) the defendant was the criminal agency. [Cits.]” Campbell v. State, 169 Ga. App. 112, 114 (312 SE2d 136) (1983); Powell v. State, 171 Ga. App. 876 (1) (321 SE2d 745) (1984). “ ‘The latter may be proved by circumstantial evidence. [Cit.]’ [Cit.]” Id. at 877.

Decided October 21, 1994.

Gary N. Struletz, for appellant.

Thomas J. Charron, District Attorney, Thomas A. Cole, Kenneth T. Israel, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

“ ‘The jurors in this case heard the (witnesses), and are better qualified to judge the reasonableness of a hypothesis raised by evidence . . . than is this court which is restricted to a cold record and to issues of law. (Cit.)’ ” Id. at 878. Although Steidl denied conspiring with Farmer to burn the house down, “it is the task of the jury to weigh the evidence, determine credibility, and resolve conflicts in the testimony. This Court does not reweigh the evidence, but only determines whether it is legally sufficient.” Pitts v. State, 209 Ga. App. 47, 48 (1) (432 SE2d 643) (1993).

In this case, it is uncontroverted that the property was burned and that the cause was a criminal agency. Moreover, the State’s theory that Steidl was the criminal agency was supported by evidence of motive. Powell, supra at 878. Therefore, the foregoing evidence was sufficient to enable the jury to find Steidl guilty of arson beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Powell, supra at 878.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A94A1954.
    ORR v. THE STATE.
    (449 SE2d 642)
   Blackburn, Judge.

Michael Orr appeals his conviction by a jury of burglary. On appeal, Orr enumerates several errors.

1. In his first enumeration of error, Orr contends that his conviction is contrary to the evidence and the law. We disagree.

The State produced the testimony of Gina Roberson who lived within 100 yards behind her parents’ house. Roberson heard the burglar alarm activated in her parents’ house around 10:00 a.m., and upon investigation, saw two individuals in the house. Roberson got a “good look” at Orr as he entered a GMC truck parked in the carport. Roberson gave the police a description of the vehicle, including a partial license plate number and a description of Orr. Later the same morning, Roberson identified Orr as the man she saw leaving her parents’ house. Roberson also identified Orr at trial. Furthermore, at the time of his arrest, Orr was in possession of a chain, later identified as missing from the burglarized house.

Orr testified that he had borrowed the vehicle the morning of the burglary and that he had returned it at 9:30 a.m. He denied being at the burglarized house until the police took him there for identification. Orr testified that he found the gold chain while cleaning an automobile a few days prior to the burglary.

“[T]he credibility of witnesses and the resolution of such conflicts are for the jury. On appeal of a conviction based on a jury verdict, this court resolves all conflicts in favor of the verdict and examines the evidence in a light most favorable to that verdict.” (Citation and punctuation omitted.) Clay v. State, 214 Ga. App. 160, 161 (447 SE2d 156) (1994). Having so reviewed the record, we conclude that a rational trier of fact could have found Orr guilty beyond a reasonable doubt for the offense for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In his second enumeration of error, Orr contends the trial court erred in allowing testimony regarding Roberson’s pretrial identification of him at a show-up.

“Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” (Citation and punctuation omitted.) Stacey v. State, 214 Ga. App. 130, 131 (447 SE2d 339) (1994).

In Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120) (1991), we determined that a show-up identification 12 days after the crime was not unnecessarily suggestive under the totality of the circumstances therein. Id. at 776. In the present case, Roberson identified Orr within a few hours of “getting a good look” at him leaving her parents’ house. Under the totality of circumstances herein, we find that Roberson’s identification of Orr was reliable.

3. Orr contends that he was not properly advised of his right to counsel prior to being questioned by police regarding his actions on the morning of the burglary. However, the facts indicate that the officer was merely making a threshold inquiry prior to arresting Orr and reading Orr his Miranda rights. See Ford v. State, 205 Ga. App. 12, 13 (421 SE2d 294) (1992). Furthermore, Orr failed to raise this issue at the trial court, leaving nothing for this court to review. See Porado v. State, 211 Ga. App. 728 (3) (440 SE2d 690) (1994).

4. In his final enumeration of error, Orr contends that he was denied effective assistance of counsel. Specifically, Orr argues that he provided his trial counsel with the names of three witnesses; however, his trial counsel refused to subpoena them to trial, and that his trial counsel did not remember reviewing an arrest warrant for sufficiency.

Decided October 21, 1994.

Meeks & Richardson, James G. Meeks, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

“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. 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citation and punctuation omitted.) Mozingo v. State, 214 Ga. App. 410, 411 (448 SE2d 23) (1994).

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 118 (443 SE2d 708) (1994). In the present case, Orr’s trial counsel testified that he interviewed the three witnesses referred to by Orr, but that the witnesses’ testimony could not help Orr’s defense, and might have hurt his case. Additionally, the record contains no arrest warrant and the testimony reflects that Orr was arrested without a warrant; therefore, Orr has failed to show any harm associated with his trial counsel’s failure to review any arrest warrant.

“There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Id. The trial court’s denial of Orr’s motion for new trial based upon ineffective assistance of counsel was proper.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2010.
    WESTMORELAND v. THE STATE.
    (449 SE2d 640)
   Birdsong, Presiding Judge.

Tony Lee Westmoreland appeals his conviction for sale of cocaine and his sentence to life imprisonment under OCGA § 16-13-31 (b) and (d). The evidence shows that immediately after an undercover agent purchased .2 grams of cocaine from appellant, he alerted backup officers to come to the area and arrest appellant. By the time those officers arrived, appellant had left the area. The undercover agent, who had carefully observed the seller during the purchase, gave a description of the seller which matched appellant. He later identified appellant from a photograph. Appellant was tried once but a mistrial was declared when the jury could not reach a verdict. At this second trial evidence of similar transactions was admitted. Held:

1. Appellant contends the trial court erred when it approved the introduction of “similar transactions” without a proper purpose being submitted by the State prior to ruling on the admissibility of the evidence. We find no factual merit in this enumeration. The State gave notice to defendant of its intention to submit evidence of similar transactions, to wit, two prior offenses of sale of cocaine. The trial court held the required pretrial hearing to determine admissibility of this evidence. See Williams v. State, 261 Ga. 640 (409 SE2d 649). Trial defense counsel objected that he was given “no opportunity to cross-examine the witness and bring out facts that may or may not indicate whether those alleged prior offenses are similar and whether or not they are, in fact, priors at all.” See, contra, McGowan v. State, 198 Ga. App. 575 (1) (402 SE2d 328). The State asserted that it was introducing the evidence to show appellant’s modus operandi and to prove identity. The trial court specifically found that identity was in issue in the former trial and held that it was admitting the evidence on the issue of identity. It cannot reasonably be asserted that the State did not submit a “proper purpose” to admit the evidence. Even assuming trial counsel made a proper objection to preserve the error as enumerated on appeal, the trial court’s ruling constitutes a finding that a proper purpose was shown by the State to authorize admission of the evidence as similar transactions. See Johnson v. State, 204 Ga. App. 453 (419 SE2d 741).

2. The trial court did not fail to limit the purpose for which evidence of similar transactions could be used by the jury.

3. Appellant contends that the sentencing under the mandatory provisions of OCGA § 16-13-30 constitutes cruel and unusual punishment. This challenge to the constitutionality of the statute is raised for the first time on appeal and therefore cannot be considered. Grice v. State, 199 Ga. App. 829 (406 SE2d 262). The Supreme Court alone has jurisdiction to determine the constitutionality of any statute and that court has already declared OCGA § 16-13-30 to be not unconstitutional. Hall v. State, 262 Ga. 596 (422 SE2d 533).

4. We have reviewed the evidence and find it sufficient to persuade a rational trier of fact of appellant’s guilt of this crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided October 21, 1994.

Suellen Fleming, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A1165.
    DEAN v. THE STATE.
    (449 SE2d 622)
   Ruffin, Judge.

The appellant, Michael Dean, was convicted of rape involving a 15-year-old friend of his daughter. He was sentenced to serve ten years in prison, followed by ten years’ probation, and this appeal followed.

On July 26, 1993, the victim attended a cookout with the appellant and his family, and afterwards went home with them to spend the night. The victim and the appellant’s daughter shared a bedroom and soon after they went to bed, the appellant entered the room and lay down between them on top of the bed. Eventually, all three got up and watched television for a while in the living room.

Later, the two girls returned to their bedroom, and the victim went to sleep but was awakened when the appellant again entered the bedroom and got in the bed with them. The victim went back to sleep, but awoke later to find the appellant on top of her having sexual intercourse. The appellant was interrupted when his daughter woke up, and he rolled over and pretended to be asleep. The victim denied encouraging or consenting to the sexual intercourse.

The victim and the appellant’s daughter then fled the house and called the appellant’s daughter’s mother, who picked them up and transported them to a local hospital. An emergency room physician’s examination of the victim revealed no evidence of trauma or semen and essentially was inconclusive as to whether the victim had had sexual intercourse. A forensic chemist with the State Crime lab, however, detected seminal fluid on the victim’s underwear and short pants.

At trial, the appellant admitted having sexual intercourse with the victim on the occasion in question. However, he claimed that she had consented to the act.

1. The appellant contends that the trial court erred in refusing to give his requested jury charges on the lesser included offenses of battery, simple battery, and sexual battery. However, where the evidence shows either the complete offense as charged or no offense at all, the trial court should not instruct the jury on lesser included offenses. Humphrey v. State, 207 Ga. App. 472 (3) (428 SE2d 362) (1993). In the instant case, inasmuch as the state’s evidence showed only the completed rape and the appellant’s evidence showed no offense at all, the trial court properly declined to give the requested jury charges on the lesser grades of the charged offense.

Decided October 4, 1994

Reconsideration denied October 24, 1994.

Karen S. Wilkes, for appellant.

Stephen F. Lanier, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

2. At trial, the appellant’s daughter and the victim testified that the appellant drank beer and allowed them to share a beer at the cookout. The two girls further recalled that some people possessed marijuana at the party, but they denied smoking or seeing the appellant smoke any marijuana. The appellant contends that the trial court erred in allowing the victim and his daughter to testify about the presence of marijuana at the cookout, on the grounds that the evidence was irrelevant and placed his character in issue. However, there having been no indication or even a suggestion that the appellant participated in that use of marijuana, any error in the admission of this evidence was harmless. Favors v. State, 180 Ga. App. 897 (2) (351 SE2d 103) (1986).

3. The appellant next contends that the trial court erred in denying his motion for mistrial when the jury announced that it could not reach a unanimous verdict. The jury informed the trial court about its deadlock after deliberating approximately two-and-one-half hours, which the trial court considered to be an insufficient amount of time in which to conclude that the jury could not reach a unanimous verdict. Under these circumstances, the trial court did not abuse its discretion in refusing to declare a mistrial. See Watson v. State, 178 Ga. App. 778 (7) (344 SE2d 667) (1986).

4. The appellant also contends that the evidence was insufficient to support his conviction. However, viewed in the light most favorable to the verdict, the evidence authorized a rational trier of fact to find the appellant guilty beyond a reasonable doubt of rape as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.