text:
    A02A1600.
    THE STATE v. WILSON.
    (570 SE2d 409)
   Blackburn, Chief Judge.

The State appeals the trial court’s grant of defendant Kit Wilson’s motion to suppress his statements in his criminal prosecution on felony charges of aggravated child molestation, child molestation, and cruelty to children — first degree, and on a misdemeanor charge of sexual battery. The State contends that the trial court erred in (1) concluding that because Wilson was in custody at the time of his interrogation, he should have been advised of his Miranda rights and (2) finding that Wilson’s statement was not voluntary because he was interrogated for approximately three hours after twice inquiring about the necessity of counsel, and being advised by the police that he did not need counsel. We affirm.

An appellate court reviewing a trial court’s order on a motion to suppress evidence must accept the trial court’s decisions with regard to questions of fact and credibility unless they are clearly erroneous. The reviewing court must also construe the evidence most favorable to the upholding of the trial court’s findings and judgment and must not disturb the findings of the trial judge unless no evidence exists to support them.

Barraco v. State.

In its excellent order granting Wilson’s motion to suppress on November 9, 2001, the trial court held inter alia:

On November 8, 2001, this Court held a Jackson-Denno hearing on the Defendant’s Motion for Exclusion of Involuntary Admissions and Confessions. In his Motion, the Defendant sought to suppress and exclude from evidence any comments or purported confessions that ... he made at the time of his arrest for child molestation. During this hearing, the Court listened to several witnesses and received various other items of evidence, including the tapes and transcript from the Defendant’s meeting with police. After giving due consideration to the evidence submitted by both parties, and after considering the relevant case law, this Court hereby grants Defendant’s Motion. In so doing, the Court finds as follows:
The testimony presented to this Court revealed the following. On June 1, 2001, police officers from the City of Monroe phoned the Defendant at home, and requested a meeting with him. They told him that they would be sending an officer to his house to pick him up and bring him to the police station. Defendant waited for the police, but no one came to his house. He then decided to travel to the police station on his own. Daniel Moon, his half-brother, and another man drove him to the police station.
At the station, the Defendant was met by Officers Jack Vickery and Tony Lafreniere. When questioned by the Court, Vickery admitted that the Defendant was in fact their prime suspect at that time. According to the testimony of Moon, the Defendant, upon arrival, asked whether he was in any trouble, and whether he needed to get an attorney. Moon stated that the Defendant was told by the police that they merely had some routine questions, and that he did not need an attorney. Officer Vickery testified on direct examination that the Defendant never inquired as to whether he needed an attorney. However, when called on by the prosecution to rebut the testimony of Moon, Officer Vickery acknowledged the possibility that the Defendant might have asked him whether he needed counsel.
From the police station, the Defendant and the two officers proceeded to the Department of Family and Children Services (“DFACS”), where they met with DFACS employee Penny Shirley. Again, the Defendant was driven by his half-brother and another man. Moon testified that he and the other man were told by the officers that they could not enter the building.
With Shirley present, the police began speaking with the Defendant around 7:30 p.m. The conversation was tape recorded. The Defendant, whose employment requires him to work the “late” shift, informed the officers that he had been up since 3:00 a.m., that he had just been released from the hospital a few days earlier after a bout of pneumonia, and that he had not eaten anything the entire day. The officers and Shirley proceeded to question him for nearly three hours. At some point after two hours of questioning, the tape recording ended. According to Officer Vickery, a span of approximately 10 to 15 minutes elapsed between the time that the tape ended and the time that a new tape began. The last tape was the third tape used by the police during their meeting. Although the officers allowed the second tape to just run out, the transcript showed that, between the first and second tape, the officers were cognizant of when the tape would end and stopped the interview to change the tape. Almost immediately after the third tape recording began, the Defendant made various statements that the prosecution contends are confessions and/or admissions. At that point, the Defendant had been awake for over 18 hours. Questions continued for several more minutes after this point. The police admitted that at no point prior to or during this meeting did they advise the Defendant of his Miranda rights.
The transcript from that meeting was offered into evidence by the State. This transcript reveals that the Defendant was aware that the reason the police wanted to talk with him was because of bruises he had left on the buttox [sic] of the alleged victim. See Transcript from Meeting with Kip Wilson on June 1, 2001] (hereinafter “Meeting”) at p. 4-5, 21. The Defendant was aware that the victim’s physician had told the victim’s mother that he had called DFACS because of those bruises, and advised her to fill out a police report. See Id. at p. 5. The police informed him that there was “a problem” when there was “substantial bruising like she had.” Id. at p. 6. The Defendant stated that the child’s mother was “highly upset” with him and questioned him about whether he had spanked her. Id. at p. 5-8. Early in the interview, Officer Vickery directly questioned him about whether he was responsible for the injuries to the child. See Id. at p. 12.
Later in the interview, Officer Lafreniere informed the Defendant that he was “not gonna sugarcoat this anymore. . . . I’m not gonna make this sound like it’s ... we know (inaudible). We know the reason why we are here is pretty serious.” Id. at p. 20. He proceeded on to say that “I will say that the bruises are substantial on ... on that young girl. Okay and criminal charges can be filed on you. Okay for child abuse. It’s a felony in the State of Georgia. Okay. Have you ever been in trouble with the law before?” Id. The Defendant told the officers that he was pretty upset when he told his friends about why they needed to give him a ride to the police station. See Id. at p. 21. When asked by the officers whether they knew why he was there, the Defendant stated that he told his friends “the part about the bruises and where they were.” Officer Lafreniere then asked, “did you tell him about the part about the penetra- . tion of the anus?” Id. at p. 21.
Officer Vickery went on to tell the Defendant that he was: “trying to get to the truth. But we [are] also trying to get the person that did this the opportunity to help them lose some of that weight. Take off some of that pressure. . . . Yeah this person admits that he’s wrong. Yeah, this person’s responsible enough to come forward and take responsibility for it and wants to come forward and take responsibility for it and wants to come forward and get what help he can in order to help him get back on the right track.” Id. at p. 31.
Near the end of this three hours interview, the police informed the Defendant that he was going to be charged with this crime. See Id. at p. 41. Although the police spoke at length with the Defendant after this point, they still did not inform him of his Miranda rights. The following exchange with the Defendant, which occurred after they had informed him he would be charged with a crime, was perhaps as close as they came to doing so:
Wilson: How long do you think it will take?'
Lafreniere: What?
Wilson: Just to go to court.
Lafreniere: I would say a couple of months.
Vickery: Before it goes to court.
Lafreniere: You’ll get a letter in the mail.
Wilson: Mm-hmm.
Lafreniere: Okay. That’s a couple of weeks. We’re pretty good about that. Uh . . . your letter will state something to effect if you want an um . . . attorney, this that and the other thing, then people have their rights. You have the right to an attorney. If you can’t afford an attorney, one will be appointed for you free of charge. It’s true. But not everybody . . . qual. . . (clears throat) for an attorney.
Vickery: You have to. . . .
Lafreniere: Depending on how much income. (Inaudible.) You don’t qualify for an attorney, if you want one. (Inaudible.)
Vickery: We don’t know your financial situation. We are not the ones who are here to determine if you can afford an attorney.
Id. at p. 45.
The prosecution contends that the Defendant was not in a custodial setting when he spoke with the police, and that the Defendant’s statements were entirely voluntary. This Court, quite simply, cannot agree. Regarding custodial interrogations, the Georgia Court of Appeals has stated: Under Miranda, persons must be advised of their rights against self-incrimination after being taken into custody or otherwise deprived of their freedom of action in any significant way. Reinhardt v. State. In distinguishing between custodial and non-custodial interrogation, several factors may be utilized. State v. Hendrix. These include: probable cause to arrest, subjective intent of the police, subjective belief of the defendant, and the focus of the investigation. Id. Hadley v. State.
“All of these factors are significant elements to be weighed in determining the ‘custody’ issue.” [(Punctuation omitted.) Hendrix, supra.]
In analyzing the facts of this case to these factors, it appears clear to this Court that the meeting between the police and the Defendant was a custodial interrogation. The police would have had probable cause to arrest the Defendant after the mother filed a police report alleging child abuse against the Defendant. The police admitted in the hearing that the Defendant was the focus of their investigation, saying in fact that he was their prime suspect at that time. While it is true that “whether a police officer focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes,” Hodges v. State (emphasis added), the meeting transcript shows that the officers clearly conveyed their suspicions about the Defendant to him. The Defendant’s testimony demonstrates his awareness that he was being interviewed because the police believed he had done something wrong. The interview took place, at the request of the police, away from the Defendant’s home at DFACS, and went on for nearly three hours. Accordingly, this Court finds that the Defendant was deprived of his freedom in a significant way.
Moreover, this Court finds that the Defendant’s statements to the police were not voluntary. Regarding whether a statement is voluntary, the Georgia Supreme Court has said: Whether a waiver of rights and a subsequent statement have been voluntary and knowing depends upon the totality of the circumstances. The totality of the circumstances is determined through a consideration of nine factors: (1) age of the accused; (2) education of the accused; (3) knowledge of the accused as to both the substance of the charge and the nature of his right to consult an attorney and remain silent; (4) whether the accused is held incommunicado or allowed to consult with relatives, friends, or an attorney; (5) whether the accused was interrogated before or after formal charges [had been] filed; (6) methods used in interrogation; (7) length of interrogation; (8) whether or not the accused refused to voluntarily give statements on prior occasions; and (9) whether the accused has repudiated an extrajudicial statement at a later date. (Citations omitted.) [Reinhardt, supra at 115 (3) (b).] The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. Factual and credibility determinations of this sort made by a trial judge after a voluntariness hearing must be accepted by appellate courts unless such determinations are clearly erroneous. Kunis v. State.
There was no evidence presented at trial to show that the Defendant knew he had a right to consult an attorney or remain silent prior to the meeting. Indeed, the testimony of the Defendant’s half-brother, which this Court deemed credible, showed that the Defendant inquired about whether he needed an attorney and was specifically told that he did not. The Plaintiff’s half-brother was told that he was not allowed to enter the building with his brother. Despite knowing that the Defendant had been up since 3:00 a.m., was recovering from pneumonia, and had not eaten that day, two police officers and a DFACS worker peppered their prime suspect with questions for nearly three hours, never once informing him of his Miranda rights.
Even more disturbing to this Court was how the police conveniently forgot to put a new tape in just before the Defendant made the allegedly incriminating statements. There was no evidence presented to show what occurred during that lapse in recording, how long the lapse was, nor was it memorialized (i.e. police notes etc.) in any way. Although Officer Vickery testified that it lasted only 10 to 15 minutes, that is not confirmed on the transcript. Even if it was only that long, 10 to 15 minutes is quite a long time to speak with your prime suspect, especially in view of the fact that he immediately thereafter “confessed.” Moreover, Vick-ery initially testified that the Defendant never asked for an attorney, but later acknowledged the possibility that the Defendant had inquired about counsel. Accordingly, the credibility of this entire interrogation was greatly damaged.

1. The State argues that Wilson was not entitled to be advised of his Miranda rights because he was not in custody during the interview, and, therefore, the trial court erred in suppressing Wilson’s admission. “Under Miranda, persons must be advised of their rights with respect to interrogation after being taken into custody or otherwise deprived of their freedom of action in any significant way.” Reinhardt, supra at 114 (3) (a). In Stansbury v. California, the United States Supreme Court stated that the basis for the court’s imposition of the Miranda requirements was the compulsive aspect of custodial interrogation. It further stated that to determine whether an individual was in custody, the court must examine all the objective circumstances surrounding the interrogation. Id. In this case, the trial court found that the meeting between Wilson and the police was a custodial interrogation because Wilson was deprived of his freedom in a significant manner. In its analysis of the facts, the trial court relied upon the four factors which we outlined in Hendrix, supra, for distinguishing between custodial and noncustodial interrogation. See also Hadley, supra. The four factors are (1) probable cause to arrest, (2) the subjective intent of the police, (3) the subjective belief of the defendant, and (4) the focus of the investigation.

Using these four factors to assess this case, the trial court found that the police had probable cause to arrest prior to Wilson’s interrogation based upon the mother’s report to police alleging child abuse. Secondly, the subjective intent of the police was demonstrated by the fact that the officers admitted that Wilson was their prime suspect and they had conveyed, their suspicions to Wilson. See Stansbury v. California, supra at 325 (II) (“[a]n officer’s knowledge or beliefs may bear upon the custody issue if they are conveyed by word or deed, to the individual being questioned”). As to the third and fourth factors, the trial court determined that Wilson’s testimony showed that he was aware that the police believed he had done something wrong and was the focus of the police investigation.

Moreover, the trial court found that the interview took place at the request of police, away from the defendant’s home, and went on for nearly three hours during which Wilson did not leave the interrogation room. His half-brother and a friend, who accompanied Wilson to the interview, were not allowed in the building where the interview was conducted, but were required to wait in the parking lot.

At no time did the officers inform Wilson of his Miranda rights even after they told him he was going to be charged. The trial court’s order reflects his doubt as to the credibility of the police officers for the reasons stated therein. A review of the subject order shows that the trial court followed a proper analysis, and the record supports his factual findings. Therefore, we find no error in the trial court’s holding that Wilson was in custody during his interrogation, that he should have been advised of his Miranda rights, and that his statements were not voluntary and were thus suppressed. Turner v. State.

Decided August 21, 2002.

W. Kendall Wynne, Jr., District Attorney, Marcy H. Gonzalez, Assistant District Attorney, for appellant.

David J. Farnham, for appellee.

2. The State also contends that the trial court erred in finding that Wilson’s statement was not voluntary. For the reasons stated in Division 1, we find no error in the trial court’s holding that Wilson’s statement was not voluntary and was thus inadmissible.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Barraco v. State, 244 Ga. App. 849 (537 SE2d 114) (2000).

        Reinhardt v. State, 263 Ga. 113, 114 (3) (a) (428 SE2d 333) (1993).

        State v. Hendrix, 221 Ga. App. 331, 333 (1) (471 SE2d 277) (1996).

        Hadley v. State, 235 Ga. App. 737, 738 (510 SE2d 569) (1998).

        Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) (1995).

        Kunis v. State, 238 Ga. App. 323 (518 SE2d 725) (1999).

        Stansbury v. California, 511 U. S. 318, 323 (114 SC 1526, 128 LE2d 293) (1994).

        Turner v. State, 233 Ga. App. 413, 414 (1) (a) (504 SE2d 229) (1998).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A1670.
    FREEMAN v. THE STATE.
    (570 SE2d 414)
   Blackburn, Chief Judge.

Following a jury trial, Robert Freeman appeals his conviction of theft by receiving a stolen truck and possession of a firearm by a convicted felon. Freeman contends that the trial court erred in admitting similar transaction evidence of a prior car theft. For the reasons set forth below, we affirm.

Construed in a light most favorable to the verdict, the record shows that, on September 21, 1999, a 1995 red Dodge Ram pickup truck was stolen from a gas station as the owner entered the station to pay for his gas. The keys were on the truck seat. The following day, a police officer in west Atlanta responded to a call concerning a red Ram pickup from which stolen cigarettes were being sold. Upon the officer’s approaching the truck, Freeman drove away, accelerating to a very high speed and ignoring traffic signals until he crashed into a tree. The officer observed Freeman drop a loaded brown handgun as he exited the truck. Freeman was apprehended after a foot chase. The truck’s tag matched the vehicle stolen at the gas station. Freeman was indicted and tried on the above counts.

A bifurcated trial was conducted after a hearing on the admissibility of similar transaction evidence under Uniform Superior Court Rule 31.1. The trial court admitted similar transaction testimony about Freeman’s theft of a 1985 Cadillac Eldorado from an apartment building in Atlanta on February 16, 1999. The jury was instructed as to the limited purpose of the evidence.

Thereafter, on March 11, 1999, officers working a roadblock checking licenses and insurance in east Atlanta observed the Cadillac approach the roadblock, and they motioned for it to come forward. After stopping a distance away from the roadblock, the driver turned around and drove away. Officers pursued the car and observed Freeman pull over and exit the car. The police apprehended Freeman as he was walking away from the Cadillac.

“The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.” Avery v. State. Before similar transaction evidence is admitted, the State must generally show three things.

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection [or] similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Dunbar v. State.

Freeman limits his argument on the similar transaction to his contention that the theft of the Cadillac was not sufficiently similar to the theft of the Dodge Ram pickup, and, therefore, it should have been excluded as being more prejudicial than probative. We disagree.

Although Freeman points to a number of differences between the two thefts, our Supreme Court has held that “[t]he proper focus is on the similarity, not the differences, between the separate crime [ ] and the crime in question.” Wayne v. State. In both instances, Freeman was driving a stolen car, he was apprehended in the City of Atlanta, and he avoided confrontation with the police by fleeing both in the vehicle and on foot. The events happened within six months of each other. Given these similarities, the trial court did not abuse its discretion in admitting the evidence. Freeman does not argue his conviction of possession of a firearm by a convicted felon, and we will consider same as having been abandoned.

Decided August 21, 2002.

Carl P. Greenberg, for appellant.

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

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Avery v. State, 244 Ga. App. 177, 179 (1) (534 SE2d 897) (2000).

        Dunbar v. State, 228 Ga. App. 104, 107-108 (2) (491 SE2d 166) (1997).

        Wayne v. State, 269 Ga. 36, 39 (3) (495 SE2d 34) (1998).


author: Johnson, Presiding Judge.

text:
    A02A0840.
    BAEZ v. THE STATE.
    (570 SE2d 352)
   Johnson, Presiding Judge.

As Roberto Baez states in his brief, this case has a “tortured history,” which includes a series of pro se appearances before Georgia’s appellate courts. His latest challenge to the sentence imposed by the trial court is without merit, so we affirm that court’s judgment denying his motion for a new and valid sentence.

In November 1994, a jury found Baez guilty of trafficking in cocaine in that he knowingly possessed 28 grams or more of cocaine. He was sentenced to serve 20 years in prison and to pay a $200,000 fine. Baez appealed from his conviction, but the conviction was affirmed.

In December 1998, he moved to modify the sentence, claiming it was “harsh, barbaric, excessive and disproportionate to the crime,” and that it violated his constitutional rights as well as the sentencing guidelines set out in OCGA § 16-13-31 (a) (1) (A). The trial court denied the motion in December 1998.

In February 1999, Baez appealed from the denial of his motion to modify the sentence. We dismissed his appeal because the notice of appeal was not timely filed. In our order of dismissal, we advised Baez that a sentencing court cannot modify a sentence that is within the applicable statutory limits after the term in which that sentence was imposed.

In September 2001, Baez filed what he termed a “Motion for New and Valid Sentence.” In this motion, he alleged that the sentence imposed was “extremely harsh, excessive, and unreasonable,” and that it exceeded the ten-year limit set forth in OCGA § 16-13-31 (a) (1) (A). The newer motion raised the same arguments as the earlier one, except that in the most recent motion he argued that his sentence was void because it exceeded the statutory guidelines; a void sentence can be challenged at any time. The trial court denied the motion, noting that the 20-year prison sentence was within the statutory guidelines of 10-30 years and so was not void as a matter of law.

Baez appeals from the denial of his motion, arguing that under OCGA § 16-13-31 (a) (1) (A) a conviction for possessing twenty-eight grams or more but less than 200 grams of cocaine warrants no more than a ten-year prison sentence, so his sentence is void.

Looking to the substance of Baez’s motion for a new and valid sentence rather than the nomenclature, the motion is essentially a rehash of the motion to modify sentence already considered by this Court. Of course, if it is the same motion, our decision in the earlier case controls.

Nonetheless, even if we give Baez the benefit of the doubt and find that his latest motion is a distinct, independent motion, the denial of which this Court has not yet considered, the appeal has no merit. The 20-year sentence imposed by the trial court is within the minimum and maximum sentences prescribed by law as the punishment for the crime. Accordingly, the sentence was not void, and the trial court did not err in denying the motion.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

Decided August 12, 2002

Reconsideration denied August 22, 2002

Roberto Baez, pro se.

Robert E. Keller, District Attorney, Nancy Trehub, Clifford A. Sticker, Assistant District Attorneys, for appellee.

        Baez v. State, 217 Ga. App. 511 (458 SE2d 658) (1995); see also Baez v. State, 231 Ga. App. 375 (500 SE2d 339) (1998) (appealing denial of post-conviction motion for return of property confiscated by police); Baez v. Lemacks, 264 Ga. 808 (452 SE2d 491) (1994) (appealing denial of his habeas corpus petition).

       The statute provides that a person possessing at least twenty-eight grams but less than 200 grams of cocaine shall be sentenced to a mandatory minimum, term of imprisonment of ten years and shall pay a fine of $200,000.

        Baez v. State, Case No. A99A1342 (decided March 23, 1999); see Eddleman v. State, 247 Ga. App. 753 (2) (545 SE2d 122) (2001) (trial court’s authority to modify a judgment ends with the expiration of the term of court in which the judgment was entered, except when the sentence is one that the law does not allow).

       See Burruss v. State, 242 Ga. App. 241, 242 (1) (529 SE2d 375) (2000) (if the sentence imposed was a void sentence, then a new and valid sentence can be imposed at any time).

       OCGA § 16-13-31 (a) (1) (A); OCGA § 16-13-31 (g) (conviction for trafficking in cocaine punishable by maximum of 30 years in prison).

       See Baez, 231 Ga. App. at 377; Baez, Case No. A99A1342 (decided March 23, 1999); Day v. State, 242 Ga. App. 899, 900 (1) (531 SE2d 781) (2000).

       See Worley v. State, 265 Ga. 251, 252 (1) (454 SE2d 461) (1995) (trial judge is authorized to sentence a defendant within limits prescribed by applicable criminal statute); OCGA § 16-13-31 (a) (1) (A), (g).

       See generally Day v. State, 216 Ga. App. 29 (1) (453 SE2d 73) (1995).


text:
    A02A1185.
    MASSEY v. SEAY et al.
    (570 SE2d 346)
   Blackburn, Chief Judge.

Christi Massey, plaintiff below, appeals the trial court’s grant of summary judgment to Willis and Dian Seay, defendants below, contending that there are genuine issues of material fact in this slip and fall action. We affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Massey was injured on December 29, 1998, when she fell while recrossing a small footbridge on the Seays’ property upon completion of her duty to feed the Seays’ dogs while they were on vacation. Massey had fed the Seays’ dogs for two to three years during spring and Christmas school break. She fell on the final day of caring for the dogs during the subject Christmas break. Massey had crossed the footbridge to feed the dogs and was returning over the bridge at the time of the fall. Massey was required to enter a large dog pen, cross the wooden, arched, footbridge without rails, feed the dogs, and then exit over the same path. Massey testified that it was misting on the day of the fall. She sustained a severe broken ankle as a result of the fall.

The trial court granted defendants’ motion for summary judgment in the negligent tort action that followed. In its excellent order, the trial court noted the following additional facts: Massey had walked across the bridge more than twice before; she did not notice any substance or defect that would have caused her fall; she did not see what caused her fall nor does she now know what caused her fall; there was no ice or standing water on the ground; and there was no ice on the bridge. The court further observed that although Massey said the bridge was “ ‘slimy’ and overrun with moss, or ‘things like that growing on the top,’ ” she is not sure that she saw moss on it. When asked if it was possible that it was “ ‘kind of slick because it had been misting,’ ” Massey replied, “ ‘I’m not sure.’ ” Massey stated that she got to the bridge, her right foot slipped, caught on something, and she fell. She was wearing “duck boots” with thick rubber soles. See order granting summary judgment to defendants.

Plaintiff’s husband, John Massey, was with her when she fell. He testified that it was not raining or icy at the time of the fall and the ground was not wet. He also testified that he and his wife did not have trouble walking over the footbridge the first time that day. According to John Massey, he and his wife had walked over the footbridge at least five or six times previously without concern about the footbridge being dangerous. He also testified that his wife had traversed the footbridge for seven to ten days in a row before the fall.

Neither of the Masseys inspected the bridge after the fall to try to determine the cause of the fall. Mr. Massey did not note any moss or any substance that she slipped on upon the bridge. Mr. Massey did comment on the buildup of moisture from the air in the wood of the footbridge. He qualified the statement, however, by testifying that he saw “nothing that seemed out of the ordinary at all” that would have caused her to fall, either before or after the incident. He could not say for sure what caused his wife’s fall.

This case is similar to Anderson v. Reynolds in which we held that denial of a summary judgment motion was error. In Anderson, a neighbor entered the homeowners’ property for the purpose of caring for their outdoor plants while the homeowners were on vacation. Although the neighbor had successfully handled the same task for two days, she slipped and fell on wet rocks where the water spigot and plants were located. We held that the neighbor failed to show that the homeowners’ constructive knowledge of the potential hazard was superior to her knowledge.

In Hardeman v. Spires, a rainy day case, we upheld the trial court’s granting of summary judgment to Spires when Hardeman fell on the slippery tile flooring of Spires’ porch while making a pizza delivery to the home. We found that Hardeman had equal knowledge of the hazard because she had previously crossed the area where she fell.

Three elements are needed to prove liability based on negligence: (1) the defendant had a legal duty to protect the plaintiff from a foreseeable risk of the alleged harm; (2) the defendant’s act or omission breached this duty; and (3) there exists a causal connection between the defendant’s conduct and the alleged injury sufficient to show that the conduct proximately caused the injury. See Fitzgerald v. Storer Cable Communications.

As the trial court stated in the present case:

Summary judgment is appropriate when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law. Defendants are entitled to summary judgment in this case. It would be highly speculative to find that the Defendants committed any negligent act in this case, or that the condition of the bridge at the time of the accident proximately caused the injury of which Plaintiff complains. Such guesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment. Brumbelow v. City of Rome. Plaintiff has not established that a hazard existed in this case, nor that Defendants committed any act of negligence.

Trial Court Order, October 1, 2001, granting summary judgment.

Massey was familiar with the bridge, had at least equal knowledge to that of the Seays of any potential hazard, and had successfully traversed the same area numerous times including immediately before she fell. Accordingly, Massey failed to carry her burden of proof that the Seays had breached any duty to her, that any hazardous condition existed, or that the Seays had superior knowledge of any such hazard. Under the circumstances, there was no genuine issue of material fact concerning the Seays’ liability, and the trial court did not err in granting summary judgment to the Seays.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

Decided August 9, 2002

Reconsideration denied August 22, 2002

John G. Barksdale III, for appellant.

Shivers & Associates, Christopher M. Howlette, for appellees.

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

        Anderson v. Reynolds, 232 Ga. App. 868 (502 SE2d 782) (1998).

        Hardeman v. Spires, 228 Ga. App. 723, 724 (2) (492 SE2d 532) (1997).

        Fitzgerald, v. Storer Cable Communications, 213 Ga. App. 872, 873 (446 SE2d 755) (1994).

        Brumbelow v. City of Rome, 215 Ga. App. 321 (450 SE2d 345) (1994).


author: Ruffin, Judge. POPE, Presiding Judge,

text:
    A02A1112.
    GIBSON v. THE STATE.
    (570 SE2d 437)
   Ruffin, Judge.

Tracy Ray Gibson entered a negotiated guilty plea to one count of robbery by intimidation. The trial court sentenced him to ten years in the State Penal System, but provided that Gibson could serve the final five years on probation. Gibson appeals, asserting that the trial court erroneously sentenced him without ascertaining his criminal history or considering treatment under the First Offender Act (“the Act”). For reasons that follow, we affirm.

The record shows that Gibson pled guilty to robbery by intimidation on December 4, 2001. At the guilty plea hearing, the trial court informed Gibson of his rights, questioned him about his plea, and determined that the plea was free and voluntary. The trial court also asked Gibson whether he was satisfied with his counsel’s representation, and Gibson responded, “[y]es.” After the trial court accepted the plea, the State offered its sentencing recommendation of ten years, with five to serve in confinement. The trial court followed the State’s recommendation, sentencing Gibson to ten years in the penitentiary, but probating the final five years.

1. In his first enumeration of error, Gibson argues that the trial court erred in sentencing him “without knowing . . . whether or not [his] criminal history contained any prior felonies.” We find no error.

During sentencing, the prosecutor informed the trial court that, although Gibson’s criminal history showed various “holds” and charges, she could not determine whether he had any prior felony convictions. The prosecutor further indicated that, according to Gibson, he had not previously been convicted of a felony. Because the State failed to present evidence of Gibson’s criminal record, the trial court specifically stated that it was “not taking into consideration any prior record” that Gibson may have had. The trial court then imposed the State’s recommended sentence.

On appeal, Gibson contends that the trial court should have confirmed that he had no prior felony convictions and, given that fact, probated a greater portion of his sentence. Gibson, however, negotiated a plea agreement with the State, and the sentence recommended by the prosecutor apparently conformed to the agreement. Both Gibson and his attorney acknowledged at the hearing that the State’s recommendation was the sentence they had “anticipated.” Moreover, neither objected to the length of the overall sentence or the probation.

“[W]hen a person knowingly and voluntarily enters into a negotiated plea agreement and accepts the conditions of his . . . [sentence], in open court, he or she waives the right to challenge the issue on appeal.” Furthermore, a negotiated plea agreement “is in the nature of a contract.” Where the State upholds its side of the bargain, the trial court does not err in requiring the defendant to honor his obligations. Pursuant to its agreement with Gibson, the State recommended a sentence of ten years, with five years to be served on probation. Gibson did not object to this recommendation at sentencing. Thus, he cannot now claim that the trial court erred in accepting the recommended sentence.

2. Gibson also argues that the trial court erred in “not considering or offering to consider sentencing [him] under the provisions of the First Offender Act.” The record shows that Gibson did not inquire at sentencing whether he was eligible for first offender treatment or request that he be sentenced under the Act. In fact, neither the parties nor the trial court referenced the Act at the hearing.

Pretermitting whether Gibson qualified for first offender treatment, we find no error in the trial court’s sentence. Gibson contends that the trial court should have informed him of the Act’s provisions, and its failure to do so renders his sentence void. In Griffin v. State, however, we decided this issue adversely to Gibson. We noted in Griffin that “[n]othing in the First Offender Act specifically requires that a trial court consider first offender status in the absence of a request by the defendant.” The Act also does not impose a duty on the trial court to advise a defendant that he might be eligible for such status. We concluded, therefore, that a trial court need not consider sua sponte whether to treat a defendant as a first offender.

Decided August 22, 2002.

David E. Morgan III, for appellant.

Denise D. Fachini, District Attorney, for appellee.

Gibson did not request — or even mention — first offender treatment at his guilty plea hearing or sentencing. And, under Griffin, the trial court had no duty to raise this issue on its own. Accordingly, the trial court did not err in failing to consider or inform Gibson about the Act’s possible application in this case.

3. Finally, to the extent Gibson claims that his sentence is excessive, he presents no question for review. Gibson’s ten-year sentence falls within the statutory limits established by OCGA § 16-8-40 (b), and we “ ‘cannot review a sentence which is within the statutory limits.’ ”

Judgment affirmed.

Barnes, J., concurs. Pope, P. J., concurs specially.

POPE, Presiding Judge,

concurring specially.

I fully concur in all of the opinion.

Nevertheless, I write separately to emphasize the importance of assuring that a defendant is fully informed of the provisions of the First Offender Act during negotiations regarding a guilty plea, or after conviction at trial. As the opinion correctly notes, in Griffin v. State, 244 Ga. App. 447 (535 SE2d 783) (2000), this court determined that in the absence of a request by the defendant there was no requirement that the trial court inform the defendant of the provisions of the First Offender Act. Thus, it is advisable that defendant’s counsel explain first offender treatment to the defendant before the court determines the sentence.

In the instant case, it is not clear from the record before us whether Gibson was even eligible for first offender treatment. Furthermore, Gibson does not claim that his trial counsel was ineffective for failing to inform him of the provisions of the Act; it is unclear from the record whether defense counsel imparted this information to Gibson. Because this case does not squarely present the issue regarding defense counsel’s responsibility, my concern here is solely to emphasize that the defense attorney should thoroughly present this information to his client.

       OCGA § 42-8-60 et seq.

       (Punctuation omitted.) Phillips v. State, 236 Ga. App. 744, 746 (1) (512 SE2d 32) (1999). See also Syms v. State, 244 Ga. App. 21, 23 (3) (534 SE2d 502) (2000) (“[H]aving acquiesced to the amount of restitution by agreeing to the terms of the negotiated plea, [the defendant] cannot now challenge the validity of such terms”).

        Gilbert v. State, 245 Ga. App. 544, 546 (1) (538 SE2d 104) (2000).

       See id.

       See id.; Phillips, supra.

       244 Ga. App. 447 (535 SE2d 783) (2000).

       Id. at 448.

       See id. at 448-449.

       See id. at 449.

       See id.

       See Broadwell v. State, 224 Ga. App. 193, 195 (4) (480 SE2d 215) (1997).

       Id.


text:
    A02A1114.
    REECE v. THE STATE.
    (570 SE2d 424)
   Blackburn, Chief Judge.

Following a bench trial, Wesley Terry Reece appeals his conviction on two counts of possession of a firearm by a convicted felon as well as the contemporaneous revocation of his probation, contending that: (1) the evidence was insufficient to support either the conviction or the revocation; and that the trial court erred by (2) finding that his arrest was the result of a lawful search pursuant to a prior waiver of Fourth Amendment rights as a condition of probation; and (3) finding that certain statements were not inadmissible due to a Miranda violation. For the reasons set forth below, we affirm.

1. Reece, an admitted felon, contends that the evidence was insufficient to support either (a) his conviction for possession of a firearm by a convicted felon or (b) the corresponding revocation of his prior probation. We disagree.

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

(Punctuation omitted.) Kovacs v. State. See Jackson v. Virginia.

(a) Viewed in this light the record shows that, following a guilty plea for possession of marijuana with intent to distribute, Reece was sentenced to six years probation on June 18, 1998. In a later, unrelated incident, Reece pled guilty to possession of amphetamines, and, on March 14, 2000, Reece was sentenced to eight years probation. As conditions of both probation sentences, Reece agreed to submit to random drug testing, waive his Fourth Amendment rights, and avoid alcohol and narcotics, among numerous other conditions.

On April 4, 2001, Reece reported to his probation officer, Anthony Cantrell. Cantrell immediately noticed that Reece.was slurring his words and weaving as he walked. Suspicious that Reece was under the influence of drugs or alcohol, Cantrell told him that he wanted him to submit to a drug test and requested a urine sample. Reece refused, stating that he was not able to urinate at thát time. Cantrell then led Reece to a waiting room and told him to stay there until he was able to cooperate. Instead, Reece fled the premises and did not return.

On July 18, 2001, Cantrell learned that another probationer, Sandy Hawkins, was presently staying at Reece’s home. Sandy Hawkins’ ex-husband also stated that she had been using illegal drugs at his home where he had found hypodermic needles used by Sandy. Hawkins also stated that Sandy was living at Reece’s home. Acting on this information and their knowledge that Reece had appeared drugged on his last report date, probation officers and police entered Reece’s home to conduct a search for drugs pursuant to Reece’s previous consent to search.

Once inside, the police officers found Reece in his bed and restrained him for their safety by handcuffing him. Prior to conducting the search, one of the officers asked Reece if there was “anything in the house which shouldn’t be [there].” Reece responded affirmatively. The officer immediately thereafter read Reece his Miranda rights, and Reece volunteered that there was a shotgun under the bed and a loaded handgun between the mattresses. The police also found two baggie corners in a trash can next to the bed which was consistent with the use of methamphetamines. The baggies were too small for medical testing.

In this case, the evidence shows that Reece, an admitted convicted felon, had actual knowledge of and direct access to two weapons concealed in his bedroom. This evidence is sufficient to support his conviction for possession of a firearm by a convicted felon.

OCGA § 16-11-131 (b) provides:

Any person who . . . has been convicted of a felony by a court of this state or any other state; by a court of the United States including its territories, possessions, and dominions; or by a court of any foreign nation and who receives, possesses, or transports any firearm commits a felony and, upon conviction thereof, shall be imprisoned for not less than one nor more than five years; provided, however, that if the felony as to which the person is on probation or has been previously convicted is a forcible felony, then upon conviction of receiving, possessing, or transporting a firearm, such person shall be imprisoned for a period of five years.

Reece’s argument that there was insufficient evidence to prove that the weapons in question were actual firearms and not toys is unavailing. In this case, although the police officer initially testified only that the weapons “appeared to be in working order,” he went on to explain that he had examined the .38 caliber pistol and found that its chamber was loaded. This evidence was sufficient to allow the jury to infer that the pistol was not a toy. With regard to the shotgun, Reece’s son, who claimed ownership of the shotgun, stated that he had originally placed it in his father’s bedroom to be used'as protection from dangerous intruders. The credibility of witnesses is for the trier of fact. It is the possession, not the ownership, of the weapon by a convicted felon which constitutes a criminal violation. The jury could appropriately infer that the shotgun was in Reece’s possession and was in working order. See generally Jolly v. State.

(b) The evidence described above was also sufficient to support the revocation of Reece’s probation, which requires proof of commission of the crime only by a preponderance of the evidence. OCGA § 42-8-34.1 (a). Moreover, Reece’s refusal to submit to a urinalysis on April 4, 2001, served as an independent ground for revocation of his probation, and, although Reece attempts to discredit Cantrell’s testimony in this regard, issues of credibility are for the trier of fact, not this Court. Kovacs, supra.

2. Reece contends that his conviction and probation revocation must be reversed because the evidence upon which they were based should have been suppressed as the product of an illegal search. Specifically, Reece argues that: (a) the State failed to show that Reece’s prior waivers of his Fourth Amendment rights were knowing and voluntary and (b) the State conducted the search in bad faith, in that the target was actually Sandy Hawkins.

(a) Reece contends that the State failed to show that his prior waivers of his Fourth Amendment rights were knowing and voluntary. Reece,- however, waived this right on two occasions following guilty pleas. At his bench trial in this case, however, Reece took issue only with the waiver on March 14, 2000, arguing that, as a pro se defendant, he did not understand the waiver. Pretermitting the validity of the March 14, 2000 waiver, Reece had previously waived his Fourth Amendment rights on June 18, 1998, while represented by counsel. This prior waiver, which was never challenged, moots Reece’s argument regarding his pro se waiver. And, although Reece attempts to question the earlier waiver for the first time on appeal, he has forfeited his right to do so by not raising the argument below.

(b) Reece further contends that the State conducted the search of his home in bad faith, arguing that the State failed to show a legitimate reason for the search and that the search was really a ruse to search Hawkins.

Rather than face incarceration for possession of amphetamines, Reece agreed to certain conditions on his probation, including a Fourth Amendment waiver, as'discussed above.

By accepting this special condition of probation, and to the extent a search and seizure was not otherwise tainted without subsequent attenuation so as to compel invocation of the exclusionary rule, [Reece] waived his Fourth Amendment right. A search conducted pursuant to a special condition of probation need not be made as a routine incident of the probation supervision process. The rule is that there must be some conduct reasonably suggestive of criminal activity to “trigger” the search. It can be prompted by a good-faith suspicion, arising from routine police investigative work. Accordingly as a general rule, the police can search a probationer, who is subject to such a special condition of probation, at any time, day or night, and with or without a warrant, provided there exists a reasonable or good-faith suspicion for search, that is, the police must not merely be acting in bad faith or in an arbitrary and capricious manner (such as searching to harass probationer).

(Citations and punctuation omitted.) State v. Sapp.

In this case, the police were not acting in bad faith or in an arbitrary and capricious manner. Here, the police had a good faith suspicion that Reece was living with someone using illegal drugs and might be using them himself. This information provided a reasonable suspicion for conducting the subject search.

3. Reece contends that the trial court erred by admitting into evidence his admission that there were firearms located in his bedroom. Specifically, Reece argues that this admission was tainted by a prior statement obtained from him before he was appropriately advised of his Miranda rights.

The standard of review is threefold: (a) if there is any evidence to support those findings, we will not disturb them; (b) the court’s decisions regarding questions of fact and credibility must be accepted unless clearly erroneous; and (c) we construe the evidence to uphold the trial court’s findings. Blackford v. State.

In this case, shortly after entering Reece’s home, a police officer restrained Reece and asked him whether there was anything in his home that he should know about. Reece responded affirmatively, but, before he could elaborate, the police officer stopped Reece and informed him of his Miranda rights. After this warning, Reece voluntarily informed the officer about the location of the weapons. Because all of Reece’s answers, both before and after Miranda warnings, were voluntary, Reece’s admissions regarding the handguns were properly admitted.

Decided August 22, 2002.

Bagwell & Corso, Arturo Corso, for appellant.

Lydia J. Sartain, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

The rationale for not suppressing the fruits of a voluntary statement taken in violation of Miranda and Edwards [v. Arizona] is that these cases announced prophylactic rules designed to protect suspects’ Fifth Amendment rights, but the rules were not themselves constitutional. Referring in [Oregon v.] Elstad to the admissibility of the fruit of a Miranda-tainted statement, the Supreme Court stated, “If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself.”

(Footnote omitted.) Taylor v. State.

In this case, the evidence, construed in favor of the trial court’s findings, does not show that Reece was actually coerced into making his initial statement that there was something in his home that the police should know about. Although Reece had been placed in handcuffs, the police officer made no attempt to force Reece to incriminate himself. Instead, the police officer asked him whether there was anything in the room a single time in a nonthreatening manner. Although this question was in violation of Miranda, the resulting voluntary answer did not taint Reece’s further answers regarding the firearms in his bedroom given after a proper reading of his Miranda rights.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Kovacs v. State, 227 Ga. App. 870-871 (1) (490 SE2d 539) (1997).

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

         Jolly v. State, 183 Ga. App. 370 (358 SE2d 912) (1987).

        State v. Sapp, 214 Ga. App. 428, 431-432 (3) (448 SE2d 3) (1994).

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

        Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981).

        Oregon v. Elstad, 470 U. S. 298, 309 (105 SC 1285, 84 LE2d 222) (1985).

        Taylor v. State, 274 Ga. 269, 276 (4) (553 SE2d 598) (2001).


author: Barnes, Judge.

text:
    A02A1116.
    BRYANT v. THE STATE.
    (570 SE2d 422)
   Barnes, Judge.

Earnest Leon Bryant appeals the denial of his motion for an out-of-time appeal. Following a jury trial and proceeding pro se, Bryant was convicted in October 1995 of one count of trafficking in cocaine, two counts of violating the Georgia Controlled Substances Act for possession of cocaine and marijuana, and driving without a license. During trial he elected not to enter a plea, asserting instead that he was appearing specially “in propria persona, sui juris, not pro se, as a natural person and common law citizen, under threat and duress, to challenge the jurisdiction of this court.” The court entered not guilty pleas on all counts on Bryant’s behalf, to which Bryant objected. Bryant was thereafter advised of his right to appointed counsel, right against self-incrimination, right to remain silent, and other rights at trial. When asked if he understood these rights, Bryant said he did not and continued to challenge the trial court’s jurisdiction. Bryant refused to sit at counsel table during the proceedings, choosing instead to sit on the front row of the courtroom benches. Although Bryant refused counsel, the court instructed appointed counsel to sit in the courtroom during the trial to offer any needed assistance. At the close of State’s evidence, Bryant elected neither to present any evidence nor to testify. He did, however, make a closing argument in which he again maintained that the trial court lacked jurisdiction.

A verdict of guilty on all four counts was entered on October 24, 1995, and Bryant, through retained counsel, filed a timely motion for new trial. The motion for new trial hearing was set for January 22, 1996, and at that time Bryant’s retained counsel withdrew and the hearing was continued. A public defender was thereafter appointed to represent Bryant and a new hearing date was scheduled for February 14, 1996. On February 8, 1996, appointed counsel filed an amended motion for new trial, and the hearing on the motion was held on February 14, 1996. At that hearing Bryant refused to be represented by appointed counsel and asked the trial court for a continuance so that he could retain counsel. The court refused to grant the continuance and thereafter directed Bryant to proceed, instructing appointed counsel to stay during the hearing to offer Bryant any needed assistance. Bryant refused to proceed, and the trial court, following a review of the record and pleadings, denied the motion for new trial on the merits and advised Bryant of his right to appeal within 30 days. No appeal was filed.

On December 8, 1997, Bryant, through retained counsel, filed a habeas corpus petition seeking permission to file an out-of-time appeal of his October 1995 conviction. On April 30, 1998, Bryant was granted an out-of-time appeal which he did not pursue until November 19, 2001, when, proceeding pro se, he filed a “Motion to Invoke Appeal and for the Court to Appoint an Appellant Counsel in a Criminal Proceeding.” In his motion, Bryant claimed, among other things, that he was incompetent to stand trial, that he was riot represented by counsel at his preliminary hearing, and ineffective assistance of counsel. The thrust of the motion clearly sought relief which was not available in appellate proceedings. The trial court denied the motion, and this appeal was timely filed.

The denial of a motion for an out-of-time appeal is a matter within the discretion of the trial court, and the trial court’s decision will not be reversed absent abuse of such discretion. Dover v. State, 237 Ga. App. 797, 798 (516 SE2d 839) (1999). Whether Bryant was entitled to an out-of-time appeal was a factual determination for the trial court to make based on the circumstances surrounding the appeal. See Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996). A convicted party can forfeit his appeal, by his own conduct or by his conduct in concert with that of his attorney.

If a convicted party by his own conduct, or by his conduct in concert with that of his attorney, purposefully delays the appeal of his conviction to his own advantage, he forfeits appeal and review of his conviction on the merits by an appellate court. An out-of-time appeal is not authorized if the loss of the right to appeal is not attributable to ineffective assistance of counsel but to the fact that the defendant himself slept on his rights. .

(Citations and punctuation omitted.) Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985); Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

Here, Bryant argues that his retained counsel failed to pursue his appeal following the April 30, 1998 grant of his out-of-time appeal. He asserts that although counsel was fully compensated she “declined to [pursue the appeal], without substantial justification.” Curiously, Bryant also maintains that he filed the November 19, 2001 motion for an out-of-time appeal only after “Appellant nor the Appellant’s family heard nothing from Attorney Christine A. Van Dross, whom was to be filing the Appellants appeal.”

While Bryant argues that the trial court erred in not conducting an evidentiary hearing to ascertain who bore the ultimate responsibility for failing to file a timely appeal, given the facts of this case, we do not agree that the trial court’s failure to conduct a hearing was fatal. From our review of the record, it is evident that Bryant by his own conduct has slept on his rights. Compare Eisele v. State, 238 Ga. App. 289 (519 SE2d 9) (1999).

Given Bryant’s numerous attempts to delay trial proceedings, uncooperative behavior, repeated acceptance and rejection of appointed and retained counsel, and failure to pursue his appeal until over three years later, we find that the trial court did not abuse its discretion in denying Bryant’s motion for an out-of-time appeal. See Taylor v. State, 251 Ga. App. 769 (555 SE2d 135) (2001).

Decided August 22, 2002.

Earnest L. Bryant, pro se.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       The trial court ordered a psychological evaluation for Bryant, but Bryant refused to cooperate at the time of the evaluation.


text:
    A02A1371.
    ERICKSON et al. v. HODGES.
    (570 SE2d 420)
   Blackburn, Chief Judge.

Paul and Brenda Erickson appeal the denial of their motion for summary judgment in this personal injury action premised on the Dram Shop Act, OCGA § 51-1-40. They contend that they are entitled to judgment as a matter of law because there is no evidence that they knowingly furnished alcoholic beverages to Brian Hammock while he was in a state of noticeable intoxication, and there was no evidence that they knew Hammock would soon be driving a car at any relevant time. The Ericksons argue that there is no genuine issue of material fact as to these matters and the trial court erred in denying their motion for summary judgment. For the reasons set forth below, we vacate the trial court’s ruling and remand the matter for further action.

“[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins. Viewed in this light, the record shows that, on the evening of January 23, 1999, the Ericksons held a birthday party for Mrs. Erickson at their home with an unattended open self-service bar located in the basement. Paul Erickson invited guests by mail and telephone, and about 50 to 60 guests were at the party.

In addition to the guests they invited, the Erickson’s 23-year-old son, David, was allowed to extend invitations to his friends who were known by his parents. Arrangements were made for all of David’s guests to spend the night at the Ericksons’ home. David invited approximately eight adult friends, including Scott Hammock. Sometime during the party, and without the knowledge or consent of David or the Ericksons, Scott paged his 21-year-old brother, Brian, and invited him to the party. Brian came to the party. David Erickson only saw him sitting in the garage at one point. He did not know where he had been prior to the party or what time he left the party. David did not see Brian drinking at the party. He does not recall talking to Brian at the party. Neither David nor the Ericksons were aware of the time Brian left the party or his condition at that time. Approximately one-half mile from the Ericksons’ home, Brian’s car collided with Hodges’ car. Following this incident, Brian Hammock was charged with driving under the influence and pled guilty thereto. Hodges brought the action now before us, contending that the Erick-sons are liable for his injuries under the Dram Shop Act.

The Dram Shop Act provides that the consumption of alcoholic beverages rather than the sale of, furnishing, or serving of such beverages is the proximate cause of any injury inflicted by an intoxicated person on another except under certain circumstances as set out in OCGA § 51-1-40 (b) which states:

A person who . . . knowingly sells, furnishes, or serves alcoholic beverages to a person who is in a state of noticeable intoxication, knowing that such person will soon be driving a motor vehicle, may become liable for injury or damage caused by or resulting from the intoxication of such . . . person when the sale, furnishing, or serving is the proximate cause of such injury or damage.

The trial court’s responsibility in ruling on this summary judgment motion was to determine if, based on legal evidence having probative value, there is a genuine issue of fact as to whether: (1) the Ericksons furnished alcoholic beverages to Brian; (2) he was noticeably intoxicated at such time; and (3) the Ericksons knew Brian would soon be driving a motor vehicle.

On the issue of whether the Ericksons furnished alcoholic beverages to Brian, it is undisputed that they furnished alcohol to their party guests through an open bar. The Ericksons, however, contend that Brian was not their guest since neither they nor their son invited him to the party, and there is no evidence having probative value that Brian drank at the party. Further, in their deposition, the Ericksons stated that they would not have recognized Brian even if he had been at the party, and that they did not recall seeing anyone they did not know there. Brian was known to David, but was not invited by him. He did not request that Brian leave the party after he saw him there.

If there is at least a question of fact as to whether the Ericksons furnished alcoholic beverages to Brian, we move to the next issue to be resolved. That issue is whether Brian was in a state of noticeable intoxication at the time he was furnished alcoholic beverages. The undisputed testimony is that the Ericksons did not see Brian at the party, much less in a state of noticeable intoxication. David testified that Brian was not at the bar at the time he saw him, and he did not see him drinking. Hodges’ sole evidence concerning Brian’s conduct on the subject evening is provided by Brian’s hearsay testimony at his deposition as to what he was told about the evening by his friends and his brother Scott. Brian had a closed-head injury in the collision and has no present memory of most of the events on the evening of the party. Although Brian stated that his brother told him that he was intoxicated, drank heavily at the party, and argued with him about staying overnight at the Ericksons, this hearsay evidence is inadmissible for the consideration of the motion for summary judgment and has no probative value. Sherrill v. Stockel. A defendant may prevail at summary judgment under OCGA § 9-11-56

by showing the court. . . that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

Lau’s Corp., supra at 491. The evidence that Brian entered a plea of guilty to the DUI charge does not, standing alone, satisfy Hodges’ burden of proof or raise a question of fact as to the three necessary showings.

We note, however, that Hodges had been trying, without success, to depose Scott Hammock and discovery had been extended through October 23, 2001, and had not closed as of September 25, 2001, when the trial court issued its denial of the Ericksons’ motion for summary judgment. Apparently Scott Hammock’s deposition has now been taken, but it was not considered by the trial court and is not a part of the record before us. The ruling on the motion for summary judgment was premature, given pending discovery, and we therefore vacate same and remand the case to the trial court for further action, considering all evidence properly submitted.

Judgment vacated and case remanded.

Johnson, P. J., and Miller, J., concur.

Decided August 22, 2002.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Maren R. Frost, for appellants.

Chambers, Aholt & Rickard, Ian R. Rapaport, Curtis A. Thur-ston, Jr., James E. Holmes, for appellee.

        Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991).

        Sherrill v. Stockel, 252 Ga. App. 276, 278 (557 SE2d 8) (2001).


text:
    A02A1463.
    McNEIL v. THE STATE.
    (570 SE2d 433)
   Barnes, Judge.

A jury convicted Nachel Andrea McNeil of giving a false name to a police officer and theft by taking of a motor vehicle. She appeals, contending that the trial court erred in admitting into evidence a correctional facility identification card seized by the police at the time of her arrest on the ground that it was impermissible character evidence. She argues that as a result of this admission, she failed to receive a fair trial. Finding that the trial court properly admitted the card, we affirm.

Before trial, McNeil moved to exclude from the evidence the correctional facility identification card found at the time of her arrest arguing that it was irrelevant and unnecessarily placed her character at issue. The trial court denied the motion. “On appeal from the grant or denial of a motion to suppress or motion in limine, an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing.” (Citation and punctuation omitted.) Tanner v. State, 243 Ga. App. 640, 641 (1) (533 SE2d 794) (2000). However, “where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Punctuation omitted.) Id.

The material facts applicable to McNeil’s appeal are undisputed. On April 24, 2001, she contacted the Morrow Police Department to report her keys, money, and credit cards missing from Southlake Mall. An officer responded to the call, and McNeil identified herself as Karen Ann Murray. The officer that took the defendant’s report testified that she noticed a tow truck pull up after talking with McNeil and heard the tow truck driver ask McNeil if she was ready to go to Cobblestone Apartments. While typing her report, the officer observed the tow truck, carrying a white Ford Explorer, leave the lot with the defendant. Afterward, the officer was approached by a female who reported that her white Ford Explorer had been stolen from the mall parking lot.

Police questioned the defendant at Cobblestone Apartments concerning the stolen vehicle, and she continued to identify herself as Karen Murray, telling police that she did not have any identification. After the investigators informed McNeil that she was suspected of having stolen the Ford Explorer, she revealed her correct name. The officers placed her in custody, searched her, and found a correctional facility identification card in her purse. Also found in the purse was the number to a locksmith who testified that a woman directed him to Cobblestone Apartments after calling his office to request keys for a Ford Explorer. The locksmith’s number was identified by police as the last number dialed on the defendant’s cell phone.

The trial court denied the motion in limine, concluding that the evidence was part of the res gestae of the crime of giving a false name. We agree. OCGA § 24-2-2 stands for the proposition that any criminal trial evidence tending to show that the accused has previously committed other criminal acts is irrelevant and inadmissible as it tends to place the accused’s character into evidence. Perry v. State, 158 Ga. App. 349, 352 (2) (280 SE2d 390) (1981). However, this court has established an exception to this general rule which provides that all circumstances connected with the accused’s arrest are admissible, even though they incidentally put her character in issue. Reynolds v. State, 234 Ga. App. 884, 886-887 (2) (508 SE2d 674) (1998), citing McClung v. State, 206 Ga. 421, 423 (1) (57 SE2d 559) (1950). Therefore, the trial court did not err in ruling that the identification card was admissible.

At the same time, the use of the identification card does not necessarily place the defendant’s character in issue. In Solomon v. State, 244 Ga. App. 289, 290 (1) (534 SE2d 915) (2000), this court concluded that neither testimony that a photograph is a “mug shot” nor the photograph itself used for identification purposes necessarily places a defendant’s character in issue. McNeil argues that there were other forms of identification found as a result of the police search that would have served the same purpose as the correctional facility card. The trial court determined that the evidence was relevant in proving that defendant gave a false name to a police officer, thus overruling McNeil’s objection to its admissibility. We will not dispute its finding.

Following the trial court’s reasoning, the evidence was used to prove Count 2 of the indictment and not to prejudice the defendant. “If. . . the evidence ... is relevant for some other [reason] than to show a probability that the defendant committed the crime because he [/she] is a [person] of criminal character, [then] the evidence is admissible despite incidentally placing the defendant’s character [at] issue.” Mikell v. State, 274 Ga. 596, 598 (2) (555 SE2d 433) (2001). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

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

Decided August 22, 2002.

Patricia F. Angelí, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.


text:
    A02A1695.
    RITCHIE v. THE STATE.
    (570 SE2d 435)
   Blackburn, Chief Judge.

Following a bench trial in which he was found guilty of driving an unsafe and improperly equipped vehicle, William R. Ritchie appeals his sentence, arguing that the trial court exceeded its authority and entered an invalid judgment when it ordered restitution as part of his sentence. For the reasons set forth below, we dismiss this appeal.

On May 3, 2001, Ritchie, who had stopped his car to make a left turn, was struck from behind by another vehicle. A deputy sheriff who responded to the scene of the accident issued Ritchie a citation for failing to have operational brake lights.

Ritchie appeared in traffic violation bureau court on June 6, 2001. He entered a plea of not guilty and did not post a cash bond. The case was referred to the solicitor-general, who charged Ritchie with driving an unsafe and improperly equipped vehicle. Ritchie filed a motion to quash, alleging that the accusation violated the Traffic Violations Bureau Act, OCGA § 40-13-50 et seq. The trial court granted the motion and transferred the case back to the traffic violations bureau, where it was ultimately heard.

At the conclusion of a hearing on March 4, 2002, the court found Ritchie guilty and imposed a sentence of ten days to serve, suspended upon payment, by 4:30 p.m. that afternoon, of a fine of $80 and restitution in the amount of $500 to the driver who had struck Ritchie’s car. Ritchie paid the fine and restitution by the 4:30 p.m. deadline. He filed his notice of appeal to this Court on March 29, 2002.

In his sole enumeration of error, Ritchie maintains that the trial court exceeded its authority and entered an invalid judgment when it ordered him to pay restitution as part of his sentence. Because we find that Ritchie’s appeal is moot, we dismiss.

In Gamble v. State, the appellant was found guilty of giving a false name to a police officer. The trial court sentenced her to 30 days in jail and payment of a $1,000 fine, the 30-day sentence to be suspended upon payment of the fine. The appellant paid the fine and then filed an appeal of the judgment of conviction and sentence. The State “moved to dismiss appellant’s appeal as moot, supporting its motion by evidence that appellant paid the entire $1,000 fine prior to filing her notice of appeal.” Id. This Court agreed with the State and dismissed the appeal, reasoning:

Although a court may exercise its discretion to decide a criminal case even after the sentence has been served, it is not bound to do so. Here, as in Baker v. State, if there are any adverse collateral consequences resulting from appellant’s misdemeanor conviction, she has not shown, on this record, their existence. Likewise, any question raised in the instant case is not one which can never be decided because it inevitably becomes moot prior to an appeal. This is true because appellant was not required to pay the fine so as to avoid the immediate commencement of the 30-day sentence. At no time, either before a court of inquiry, when indicted, after a motion for a new trial is made, or while an appeal is pending, shall any person charged with a misdemeanor be refused bail. OCGA § 17-6-1 (a). One convicted of a misdemeanor is entitled to bail as a matter of law. Accordingly, in the absence of any evidence of adverse collateral consequences or of inevitable mootness, we decline to exercise our discretion to reach the merits of this appeal.

(Citations and punctuation omitted.) Id.

Our decision in Gamble is dispositive of this case. Like the appellant in Gamble, Ritchie paid the fine and restitution weeks before he filed his notice of appeal.

Ritchie has also failed to show the existence of any adverse collateral consequences. An appellant proves adverse collateral consequences when he shows that he has “a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him,” and the consequences may include, for example, “potential enhancement of subsequent criminal punishment under second offender statutes,” or “the inability to engage in certain businesses, to vote, or to serve as a juror.” Rodriguez-Martinez v. State. No such consequences attend this case.

The issue raised by Ritchie on appeal is also “not one which can never be decided because it inevitably becomes moot prior to an appeal.” (Punctuation omitted.) Gamble, supra at 871. Ritchie was not required to pay the fine in order to avoid immediate commencement of the ten-day sentence. He was convicted of a misdemeanor and was entitled to bail as a matter of law. Id.

Decided August 22, 2002.

William R. Ritchie, pro se.

Richard R. Read, Solicitor-General, T. Kevin Mooney, Roberta A. Earnhardt, Assistant Solicitors-General, for appellee.

In the absence of any evidence of adverse collateral consequences or inevitable mootness, we decline to exercise our discretion to reach the merits of this appeal.

Appeal dismissed.

Johnson, P. J., and Miller, J., concur.

        Gamble v. State, 181 Ga. App. 871 (354 SE2d 174) (1987).

        Baker v. State, 240 Ga. 431, 432 (241 SE2d 187) (1978).

        Rodriguez-Martinez v. State, 243 Ga. App. 409, 410 (1) (533 SE2d 443) (2000).


text:
    A02A2038.
    MAYNOR v. THE STATE.
    (570 SE2d 428)
   Blackburn, Chief Judge.

Timothy Wayne Maynor was convicted by a jury on two counts of aggravated assault, possession of a firearm during commission of a felony, and simple battery. This appeal followed. Maynor contends that there was insufficient evidence to convict him on the aggravated assault counts because the victims did not see him fire the rifle and did not know there were gunshots until after they were fired. He also contends that he did not intend to injure anyone. Therefore, he argues, the trial court erred in denying his motion for directed verdict on all counts except simple battery. We affirm.

“The same standard of review applies to the enumeration of error for the denial of the motion for directed verdict and to the enumeration of error for the sufficiency of the evidence, so we will consider these enumerations together.” Cloyd v. State.

We view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crimes beyond a reasonable doubt. We address only the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the jury’s verdict will be upheld.

Carter v. State. See also Jackson v. Virginia.

So construing the evidence, the record reveals that on January 17, 2001, Maynor entered Warren’s Custom Sound store and after yelling that 19-year-old Robert Walden owed him some money, he punched Walden in the face and then left. Walden had formerly worked for Maynor. Maynor had also resided across the street from the home Walden shared with his father; his mother, J. B.; and his brother, Z. B., until Maynor had moved recently because of a divorce action.

The next morning, Maynor stood in the driveway of his former residence and fired four to five shots into Walden’s residence. Walden and his father were not at home, but there was a truck parked on the property and Walden’s mother and brother were at home. Both J. B. and Z. B. were fearful at the time of the attack. Z. B. was scared to leave his room, and J. B. was afraid to get out of her bed in case the shooting continued. Her fears were confirmed when she crawled into the bathroom and saw the bullet holes. The police began an investigation in response to J. B.’s call, and a slug was found in the attic and shell casings were found across the street near the former residence of Maynor. J. B. told the police that Maynor had attacked her son the previous day, and he was the only one she could think of who might have shot at her house.

Following an investigation, the police charged Maynor for hitting Walden with his fist on January 17, 2001, and for shooting at J. B.’s residence on January 18, 2001. Maynor had fled the scene after the shooting and had disposed of the .30 caliber Carbine rifle a few miles away in a wooded area. The rifle was ultimately recovered by students picking up trash along the roadway. Ballistics testing by the Georgia Bureau of Investigation confirmed that it was the rifle which had fired the shots into J. B.’s residence. Maynor acknowledged ownership of the subject rifle.

Maynor was indicted on the above counts, and at trial he admitted having struck Robert Walden with his fist and having fired gunshots into his family’s residence because he was upset with the whole family. He testified that he was drinking heavily during this period because he was upset at having gone through a divorce. He felt that the Waldens had taken advantage of him during that period by purchasing several thousand dollars worth of items for a minimal sum. He also admitted that there were bad feelings between himself and Walden’s family..

Maynor acknowledged that he had seen the truck parked next to the house at the time of the shooting. He also told Jeremy Browning about the incident, and in response to Jeremy’s inquiry as to who was home, Maynor stated, “I don’t care. I hope they were. I hope I hit them.”

We first address Maynor’s contention that the evidence was insufficient to support a conviction for aggravated assault, and that the trial court erred in denying his motion for directed verdict.

The offense of aggravated assault under OCGA § 16-5-21 has two essential elements: (1) that a simple assault under OCGA § 16-5-20 was committed on the victim and (2) that it was aggravated by (a) an intention to murder, rape, or rob, or (b) use of a deadly weapon as provided in OCGA § 16-5-21, or (c) the unlawful discharge of a firearm from within a motor vehicle toward a person as provided in OCGA § 16-5-21 (a) (3).

This case involves aggravated assault with the use of a deadly weapon. As is relevant here, OCGA § 16-5-21 (a) (2) provides that aggravated assault is complete when a simple assault is committed “[w]ith a deadly weapon . . . which, when used offensively against a person, is likely to . . . result in serious bodily injury.” See Williams v. State.

Unlike an aggravated assault committed with the intent to murder, rape, or rob, aggravated assault with a deadly weapon which is likely to result in serious bodily injury does not require a specific criminal intent; rather, it requires only a general criminal intent as defined in OCGA § 16-2-1, which in the case of simple assault under OCGA § 16-5-20 (a) (1) is a general intent to injure. See Cline v. State. General intent to injure may be proven by circumstantial evidence and is a question of fact for the trier of fact to determine. See generally OCGA § 16-2-6; Daughtry v. State.

The existence of criminal intent may be inferred by the trier of fact “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. The trier of fact may infer, if it wishes to do so, that a person of sound mind and discretion intends the natural and probable consequences of his knowing acts. Whether any such inference is made is solely a matter within the factfinder’s discretion, and any such inference is rebuttable. See Parker v. State.

Simple assault, which is an essential element of aggravated assault, is either an attempted battery type under OCGA § 16-5-20 (a) (1), which addresses a situation where one “[attempts to commit a violent injury to the person of another,” or a reasonable apprehension of harm type, under OCGA § 16-5-20 (a) (2), which addresses a situátion where one “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

The focus of an attempted battery type of simple assault under OCGA § 16-5-20 (a) (1), involving the use of a deadly weapon, is the intention of the perpetrator to seriously injure the victim, rather than the reasonable apprehension that the victim might feel. It requires only a general criminal intent to injure, as that is an element of simple assault under OCGA § 16-5-20 (a) (1). Simple battery under OCGA § 16-5-23 (a) (2) provides for the offense where one “[i]ntentionally causes physical harm to another.” See Cline, supra.

The focus of a reasonable apprehension of harm type of simple assault, under OCGA § 16-5-20 (a) (2), is on the apprehension of the victim. There is no specific intent requirement in the statute, which would indicate that only an intent to commit the act which in fact places another in reasonable apprehension of injury is required, not a specific intent to cause such apprehension.

Maynor, having admitted that he fired a deadly weapon at the victims’ residence, limits his argument to the elements of simple assault. He argues that the victims were not placed in a reasonable apprehension of receiving an immediate violent injury, because they did not see him shooting the rifle, did not see any projectiles coming toward the home, and did not know that the sounds that they heard were gunshots until after the firing had ended.

Maynor relies on Motes v. State and Merrell v. State. We note that Motes, a felony murder case, cannot be properly cited as authority in this court. Motes was not a three-judge opinion, as Judge Beasley did not concur in Division 2, the relevant portion of the case on which Maynor relies. Motes is factually distinguishable in any event. Merrell is also factually distinguishable. In Merrell, supra, the victim was in her home at the time a shotgun blast injured several people outside. There was no evidence that Nellie Cruse was the targeted or actual victim of the deadly assault as required for an attempted battery assault, and the sole evidence of reasonable apprehension of violent injury was her testimony that “she heard what sounded like a shot outside but did not know that it was one.” Id. at 887 (2). This Court held that the evidence in that case was insufficient to support a reasonable apprehension of harm assault from the sound she heard and reversed the defendant’s conviction of aggravated assault.

In contrast, in the present case, the victims’ testimony clearly establishes reasonable apprehension of harm. While J. B. testified that she did not believe the first shot was a gun firing, she realized she was under attack when the shots hit her house. The mother testified that once she knew that it was gunfire, she was scared to get out of bed since she did not know whether someone might continue shooting at the house. Further, she testified that when she called her son, he would not come to her in the bathroom because he was scared. The son testified that while he was in his own bedroom, “I heard gunshots, and I heard something hit the house, which I guess I thought was a bullet.” At that point, he stated he was pretty shaken and thought that someone was shooting at the house. Clearly, the victims’ conduct in remaining in their rooms while they heard four or five gunshots, coupled with their testimony concerning their emotional states at that time, was ample evidence of reasonable apprehension of harm from the multiple gunshots.

Maynor argues that the victims were not sure that it was gunshots that they heard until the last shot hit the house, and by that time the incident had been concluded. This fact is of no consequence. The evidence clearly shows that the victims’ apprehension was a result of Maynor’s actions and was contemporaneous to those acts.

Maynor also argues that his acts were merely reckless or negligent conduct because he was unaware that anyone was inside the victims’ home when he fired the rifle and that he had no intent to harm anyone. Given the fact that he fired into the residence of an individual whom he had physically attacked the day before, with knowledge that there were several people residing there, including a child, that the shooting occurred at 10:30 a.m., with a truck parked at the residence, and given his later comment to Jeremy that “I hope I hit them,” which coupled with his admission that there were bad feelings between himself and the entire family, authorized a jury to determine that he was guilty of aggravated assault on each of the two victims who were in the home at the time of the shooting. This evidence would also authorize the jury to determine that Maynor did indeed intend to injure any family member who was in the house at the time he fired the rifle.

While Maynor correctly argues that negligence cannot substitute for criminal intent in either form of assault, the evidence here authorizes a jury determination that his acts were intentional, rather than negligent or merely reckless. The evidence further authorizes the jury to find Maynor guilty of aggravated assault upon both J. B. and Z. B. An assault committed by means of a deadly weapon requires only a general criminal intent to injure in an attempted battery type assault, as that is an element of the offense. Proof of the use of deadly force with the intention of seriously injuring the victim is sufficient to support a conviction for an attempted battery assault. Cline, supra.

Decided August 22, 2002.

Turner & Willis, Christopher W. Willis, for appellant.

Lydia J. Sartain, District Attorney, Jason J. Deal, Lindsay H. Messick, Assistant District Attorneys, for appellee.

A general intent to injure is not a necessary element in a reasonable apprehension type of simple assault. Proof of the defendant’s use of a deadly weapon which placed the victims in reasonable apprehension of immediately receiving a violent injury would be sufficient for conviction. It is the intention to commit the act of using the deadly weapon that must be shown, not the intention to make the victims apprehensive.

[P]ursuant to the express language of [OCGA § 16-5-20] (a) (2), an assault under that subsection looks to the victim’s state of mind, rather than the accused’s, to establish the elements of an assault. There is an intent of the accused that must be shown, but it is only the criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury, not any underlying intent of the accused in assaulting the victim.
Dunagan v. State.

The evidence here supported Maynor’s conviction of aggravated assault utilizing either theory of simple assault. Having affirmed Maynor’s felony convictions, it follows that his conviction of possession of a firearm during the commission of a felony was also appropriately supported by the evidence.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

       Maynor does not appeal Ms simple battery conviction.

        Cloyd v. State, 237 Ga. App. 608 (1) (516 SE2d 103) (1999).

        Carter v. State, 246 Ga. App. 891 (1) (543 SE2d 42) (2000).

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

       Maynor is not appealing the simple battery conviction which was based on this incident.

        Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993).

        Cline v. State, 199 Ga. App. 532 (405 SE2d 524) (1991).

        Daughtry v. State, 180 Ga. App. 711, 712 (1) (350 SE2d 53) (1986).

        Parker v. State, 256 Ga. 363, 365 (1) (349 SE2d 379) (1986).

        Motes v. State, 192 Ga. App. 302 (384 SE2d 463) (1989).

        Merrell v. State, 162 Ga. App. 886 (293 SE2d 474) (1982).

        Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998).


author: Miller, Judge.

text:
    A02A0962.
    MOORE v. THE STATE.
    (571 SE2d 810)
   Miller, Judge.

Following a jury trial, Jonathan Moore was convicted of possession of cocaine with intent to distribute. On appeal he contends that the trial court erred by (1) failing to grant him a directed verdict of acquittal, (2) excusing an allegedly biased juror for cause, and (3) allowing lab report evidence to go out with the jury during deliberations. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that a police officer was patrolling an area of Atlanta to investigate possible drug activity. The officer saw Moore speaking to two other people and approached them from behind. The officer observed Moore showing the two people some small bags of what the officer suspected was cocaine. When Moore turned around and saw the officer approaching, he tossed to the ground 15 small bags of what the officer believed to be crack cocaine. The officer arrested Moore and recovered the 15 bags of suspected crack cocaine that Moore had dropped. The substance in one of the bags was later tested and determined to be cocaine.

When the State asked during voir dire whether any of the potential jurors had been the victim of a crime, juror no. 33 responded that she had been the victim of discrimination at the hands of the police. Juror no. 33 also indicated that her experience with the police had been so negative that she would have difficulty being an impartial juror at trial. Even when defense counsel attempted to rehabilitate the juror through follow-up questions, juror no. 33 indicated that, although she could follow the judge’s instructions, she held a “serious bias” against police officers. The State moved to strike this juror for cause, and the court excused her. Although defense counsel argued that the juror should not be excused, he raised no objection to the court’s ruling to exclude the juror, and even affirmed to the court that he was satisfied with the method through which the final jury had been selected.

In addition to the arresting officer testifying at trial regarding the events surrounding Moore’s arrest, the officer who transported the seized drugs to the crime lab testified regarding his experience in making hundreds of drug arrests during his career with the police department. This officer also testified as to his experience in buying drugs in an undercover capacity and his familiarity with the street value of a bag of drugs packaged in the manner that the drugs obtained from Moore were packaged. In addition, the officer testified that, in his experience, drug transactions often take place with a pair or team of individuals conducting the sale, and that it is not unusual for a person who is arrested for possessing drugs with intent to distribute them to not be carrying a large amount of cash.

The lab report indicating that one of the seized bags contained cocaine was admitted at trial. The lab report went to the jury room during deliberations, and defense counsel stated affirmatively that he had no objection to the report going out with the jury.

Moore moved for a directed verdict, which was denied. The jury found Moore guilty of possession of cocaine with intent to distribute, and Moore now appeals.

1. Moore contends that the trial court erred in denying his motion for a directed verdict of acquittal, because there was insufficient evidence to show that he had any intent to distribute any cocaine that he allegedly possessed. We disagree.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001). We view the evidence in the light most favorable to the jury’s verdict,, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

“To support a conviction for possession of cocaine with intent to distribute, the State is required to prove more than mere possession.” (Citations and punctuation omitted.) Sims v. State, 213 Ga. App. 151, 153 (3) (444 SE2d 121) (1994). Intent can be inferred where the evidence establishes that the manner in which the cocaine was packaged is commonly associated with the sale or distribution of the contraband. Id. Here, based on the officer’s testimony, the amount and the packaging of the cocaine were consistent with an intent to distribute. Also, these circumstances were consistent with the manner in which drug sales involving multiple parties were conducted. Viewed in the light most favorable to the jury’s verdict, the evidence was sufficient to sustain the conviction. Id.

2. Moore argues that the trial court erred by excusing juror no. 33 for cause. However, Moore did not object to the trial court’s ruling that the juror should be excused at the time that the ruling was made (and in fact agreed with the selection process), and has therefore presented nothing for this court to review. See Blankenship v. State, 258 Ga. 43-44 (2) (365 SE2d 265) (1988); see also Cheeks v. State, 234 Ga. App. 446, 448 (2) (507 SE2d 204) (1998).

3. Moore also stated that he had no objection to the lab report evidence going out with the jury, thereby waiving any error relating to this issue on appeal. See Smart v. State, 253 Ga. App. 649, 654-655 (8) (560 SE2d 92) (2002).

Decided August 23, 2002.

Sharon L. Hopkins, for appellant.

Paul L. Howard, Jr., District Attorney, Amira S. AbuBakr, Assistant District Attorney, for appellee.

Judgment affirmed.

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