author: Blackburn, Chief Judge.

text:
    A02A0422.
    WILLIAMS v. THE STATE.
    (566 SE2d 477)
   Blackburn, Chief Judge.

Following a jury trial, Bobby Williams appeals his conviction for illegally entering an auto, contending that the trial court erred by charging the jury on this crime as a lesser included offense of theft by taking, the only crime for which he was indicted. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, during the early morning hours of October 29, 2000, Williams and several others were involved with stealing two cars and looting their contents. The cars were moved to another location where police responded when notified by a suspicious citizen. At the scene, Williams admitted to police that he entered one of the autos and took speaker wire from it. When he was apprehended, the speaker wire was found in Williams’ pocket. Recent unexplained possession is sufficient to support a theft charge. Brown v. State. During trial, the mother of one of the other participants testified that her son had told her that Williams had stolen one of the cars involved in the crime. In rebuttal, her son had denied making this statement when he testified.

Williams was indicted for two counts of theft by taking “in that [Williams] . . . did unlawfully take a motor vehicle.” The trial court charged the jury, over objection, on entering an automobile as a lesser included offense of theft by taking which was also charged. Williams appeals this instruction.

One crime may be a lesser included offense of another crime as a matter of law or as a matter of fact. OCGA § 16-1-6 provides:

An accused may be convicted of a crime included in a crime charged in the indictment or accusation. A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

There is no question that entering an automobile is not a lesser included offense of theft by taking as a matter of law. OCGA § 16-8-2 provides: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” In turn, OCGA § 16-8-18 states: “If any person shall enter any automobile or other motor vehicle with the intent to commit a theft or a felony, he shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one nor more than five years, or, in the discretion of the trial judge, as for a misdemeanor.” The proof required to establish these crimes may be vastly different. For example, theft by taking does not have to involve an automobile at all. Accordingly, as a matter of law, entering an automobile is not established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of theft by taking.

Decided June 13, 2002

Benjamin A. Davis, Jr., for appellant.

In this case, on the other hand, entering an automobile is a lesser included crime of theft by taking as a matter of fact.

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations, punctuation and emphasis omitted.) Strickland v. State.

Here, the facts used to establish the theft by taking charge, namely that Williams entered the auto and stole it, was enough to establish the offense of entering an auto as well. Under both scenarios, the facts adduced at trial would support a finding that Williams entered the auto with the intent to commit a felony therein. Accordingly, the trial court did not err in charging the jury on entering an auto as a lesser included offense of theft by taking under the specific facts of this case.

Judgment affirmed.

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

J. Gray Conger, District Attorney, Roger H. Anderson, Crawford L. Seals, Assistant District Attorneys, for appellee.

        Brown v. State, 236 Ga. App. 478, 480 (1) (512 SE2d 369) (1999).

        Strickland, v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996).


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0509.
    THOMAS v. THE STATE.
    (567 SE2d 72)
   Johnson, Presiding Judge.

Curtis Thomas was convicted of aggravated assault, possessing marijuana, reckless driving, fleeing from a police officer, driving with a suspended license, driving with no proof of insurance, and failing to report a collision with an unattended vehicle. He appeals, challenging the sufficiency of the evidence supporting the aggravated assault conviction, the court’s denial of his request for a continuance in order to hire an attorney to replace his appointed counsel, and the court’s imposition of a felony sentence for the indicted misdemeanor of fleeing from an officer. Thomas’ challenges to the sufficiency of the evidence and the denial of a continuance are without merit. But his challenge of the felony sentence for the misdemeanor offense of fleeing from an officer is meritorious. We therefore affirm Thomas’ convictions, but vacate his sentence for the fleeing from an officer conviction, and remand the case with direction that he be resentenced on that misdemeanor conviction.

Construed in favor of the jury’s verdict, the evidence shows that on September 30, 2000, a police officer was on patrol in Columbus. He saw a car with two occupants run through a stop sign. The officer activated the blue lights and siren on his police car and pursued the vehicle. Initially, the driver of the car did not stop, but eventually he pulled the car over on a dead-end street.

The officer stopped behind the car and got out of his patrol car. The officer told the driver to turn off the car and told both the driver and his passenger to put their hands on the car roof. Neither of the car occupants complied with the order to put their hands up, and the driver refused to turn off the car. The driver then quickly turned the car around and accelerated toward the officer at a high rate of speed. The officer ran behind his patrol car to avoid being hit.

As the car sped away, the officer got back into his car, called for help, and chased the vehicle. Other police officers joined the chase, during which the driver of the fleeing vehicle ignored several traffic lights and reached speeds of 50 mph. He eventually drove into a parked car and careened into a tree.

The two occupants of the wrecked car fled on foot. After a brief chase, officers captured the driver, who was later identified as Thomas. The officer who first stopped Thomas searched him and found six small bags of marijuana in his pants pocket. The officer also discovered through a computer check that Thomas’ driver’s license was suspended, and Thomas could not produce proof of insurance.

1. A person commits aggravated assault when he assaults with a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to result in serious bodily injury. While an automobile is not per se a deadly or offensive weapon, it may become one depending on the manner in which it is used. The question of whether an automobile has been used in such a manner so that it constitutes a deadly or offensive weapon is a matter for the jury’s determination.

In the instant case, the officer testified that Thomas drove the car toward him at a high rate of speed, that he ran to the back of his patrol car to get out of the way of the oncoming vehicle, and that if he had not gotten out of the way, the car would have hit him. Based on this evidence, the jury was authorized to determine that Thomas intentionally used the car in such a manner that it became a deadly or offensive weapon. Having reviewed the evidence in the light most favorable to the verdict, we find sufficient evidence from which the jury could have found Thomas guilty beyond a reasonable doubt of aggravated assault.

2. Thomas complains that the court should have granted him a continuance so he could hire an attorney to replace his appointed counsel. His complaint is not supported by the record, which reveals that Thomas applied for an appointed attorney because he could not afford to hire one. On October 31, 2000, the court granted the application, finding that Thomas was indigent and ordering that the Public Defender of Muscogee County represent him. On November 17, 2000, an attorney from the public defender’s office filed numerous discovery requests and motions on behalf of Thomas and later filed his entry of appearance as the attorney of record.

The case was called for trial on March 7, 2001, and Thomas appeared with his appointed counsel. Thomas initially told the court that he was satisfied with the way his attorney was representing him. But then just before the trial was to begin, he told the court he needed another attorney and that his mother said she would get him one. The judge, noting that Thomas had failed to hire a private lawyer during the six months prior to trial, denied a continuance for that purpose.

A criminal defendant is not entitled to a continuance for the purpose of replacing his appointed counsel with private counsel if he is represented by a competent appointed attorney when his case is called for trial, and he has had an adequate opportunity to secure private counsel in place of his appointed attorney prior to trial. In the current case, Thomas has not claimed, let alone shown, that his appointed attorney was incompetent. On the contrary, it is apparent from the record that Thomas was represented by competent counsel who filed motions, objected to evidence at trial, cross-examined witnesses, and argued on Thomas’ behalf. In fact, Thomas confirmed his counsel’s competence when he told the court before trial that he was satisfied with his attorney’s representation.

Not only was Thomas represented by competent appointed counsel, but he also had ample opportunity to secure private counsel during the many months prior to his trial. Because Thomas failed to take advantage of that opportunity and because he was represented by competent appointed counsel when the case was called for trial, the court did not err in refusing to grant a last-minute continuance so Thomas could hire a different lawyer.

3. The trial court gave Thomas a felony sentence of five years on his conviction of fleeing from an officer. Thomas correctly asserts that this sentence is improper because he was indicted for, and found guilty of, only a misdemeanor offense of fleeing from an officer.

It is a misdemeanor for a driver to flee, elude, or fail to stop when a police officer signals the driver to stop. But a driver commits a felony only if he flees from an officer in an attempt to escape arrest for a felony and he drives more than 30 mph over the speed limit, collides with another vehicle or pedestrian, flees in traffic conditions which place the general public at risk of serious injuries, or leaves the state. In the instant case, Thomas was indicted for the misdemeanor offense of fleeing from an officer in that he refused to stop his car after the officer signaled him to stop and he committed this offense while trying to escape arrest for a felony. Count 6 of the nine-count indictment specifically alleges:

And the GRAND JURORS, aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse Curtis Thomas with the offense of Fleeing or Attempting to Elude a Police Officer in that the said accused, in the State of Georgia and County of Muscogee, on the 30th day of September, 2000, the defendant refused to bring his vehicle to a stop while being pursued by a police vehicle after having been given a visual or audible signal to stop. The state further alleges that the defendant committed this offense while attempting to escape arrest for a felony, to-wit: possession of marijuana with intent to distribute, contrary to the laws of said State, the good order, peace and dignity thereof.

Decided June 13, 2002.

John R. Mobley II, for appellant.

The state concedes in its brief that this count of the indictment does not contain all the elements needed to establish the felony offense of fleeing from an officer because it fails to allege that Thomas drove more than 30 mph over the speed limit, collided with another vehicle or a pedestrian, fled in traffic conditions which placed the general public at risk, or left the state. Nevertheless, the state argues that the omission of language which elevates a fleeing offense from a misdemeanor to a felony did not prejudice Thomas.

The state’s lack of prejudice argument is unpersuasive given that Thomas has been ordered to serve a felony sentence for a misdemeanor offense. Moreover, the state has not cited any law to support its position that a person can be indicted for a misdemeanor, tried under that misdemeanor indictment, found guilty of that charged misdemeanor offense, and then be sentenced for a felony rather than a misdemeanor.

On the contrary, a conviction under a simple misdemeanor indictment cannot be turned into a felony at the sentencing stage of the trial. Since Thomas was indicted only for a misdemeanor offense, the trial court erred in imposing a felony sentence of five years for an offense that carries a maximum sentence of twelve months. Accordingly, the felony conviction on the charge of fleeing from an officer is hereby vacated, and the case is remanded to the trial court with direction that it resentence Thomas for the misdemeanor offense.

Judgment affirmed in part, vacated in part and case remanded with direction.

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

J Gray Conger, District Attorney, Melvin E. Hyde, Jr., Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (a) (2).

        Spaulding v. State, 185 Ga. App. 812, 813 (1) (366 SE2d 174) (1988).

       Id.

        Durrance v. State, 250 Ga. App. 185, 187 (2) (549 SE2d 406) (2001).

        Hose v. State, 161 Ga. App. 401, 402 (288 SE2d 675) (1982).

       See Stocks v. State, 224 Ga. App. 433, 434-435 (2) (481 SE2d 230) (1997) (criminal defendant not permitted to discharge counsel and employ another as tactic to delay trial).

       OCGA § 40-6-395 (a); State v. Tiraboschi, 269 Ga. 812 (504 SE2d 689) (1998).

       OCGA § 40-6-395 (b) (5) (A); State v. Tiraboschi, supra at 812-813.

        Darty v. State, 188 Ga. App. 447, 448 (373 SE2d 389) (1988).

       OCGA § 40-6-395 (b) (1).


text:
    A02A0527.
    PRILLAMAN v. SARK et al.
    (567 SE2d 76)
   Blackburn, Chief Judge.

Megan Prillaman appeals the trial court’s grant of summary judgment in favor of C. Erik Sark, Matt Cremers, and Southern Cheerleading Academy, Inc. in her negligence action arising from a cheerleading class accident. Prillaman contends that: (1) the trial court erred in determining she assumed the risk of injury and (2) there were genuine issues of fact to be decided by a jury. For the reasons set forth below, we reverse.

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). . . . Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

Herron v. Hollis.

Viewed in this light, the record shows that Prillaman was taking a cheerleading stunt class at Southern Cheerleading Academy. During the class, the instructors were teaching a stunt known as a “basket toss.” In the basket toss, a cheerleader is catapulted up to a height of about 15 or 20 feet, executes a maneuver, and is caught by several partners. During class, the instructor, Sark, chose to practice the basket tosses on the asphalt outside the gym because the facility was too low to accommodate the stunt. Sark was certified by the American Association of Cheerleading Coaches & Advisors (AACCA), was familiar with the AACCA safety guidelines, and considers AACCA as an authoritative resource in the cheerleading field. The AACCA manual recommends that all cheerleading stunts be done on a matted surface. Although Prillaman expressed concern about performing over the blacktop surface, Sark assured her, several times, that it was fine.

At the time of the injury, although Prillaman had been involved in gymnastics and cheerleading, she had never attempted full basket tosses prior to the day of her injury or any other stunt with more than one partner. Her instructor, Sark, testified that there should be a natural progression of skills before more difficult stunts, such as the basket toss, should be attempted. Prillaman performed only two basket tosses and had never performed the back flip body layout toss prior to the injury. Prillaman was underrotated, her foot slipped through the arm of one of her partners, and she injured her heel when it hit the asphalt as she came down from the toss.

Assumption of the risk is a complete defense in a negligence action if (1) the plaintiff had some actual knowledge of the danger, (2) she understood and appreciated the risk, and (3) she voluntarily exposed herself to the risk. Desai v. Silver Dollar City.

For the defense of assumption of the risk of danger to apply, Sark must show that Prillaman had “a full appreciation of the danger involved and without restriction of [her] freedom of choice either by the circumstances or by coercion, deliberately [chose] an obviously perilous course of conduct.” (Punctuation omitted.) Rubin v. Cello Corp.

The knowledge requirement does not refer to a comprehension of general, non-specific risks. Rather, the knowledge that a plaintiff who assumes the risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. Whether a party assumed the risk of his injury is a jury question that should not be decided by summary adjudication unless the defense is conclusively established by plain, palpable and undisputed evidence.

(Citations and punctuation omitted.) Id.

The record does not demonstrate that Prillaman fully understood and appreciated the risk associated with the basket toss stunt. The record shows that although Prillaman took cheerleading partner stunting classes for two years prior to her injury in the fall of 1997, she had learned to do only various single partner tosses which would be only four to five feet in the air. Prillaman had not suffered any previous injuries doing cheerleading stunts. Although she knew that there was a possibility of injury if she participated in stunting, she had never seen anyone injured in basket tosses. She had not performed full basket tosses before the day of the injury and had never done the particular back flip body layout toss. Prillaman was in a student-teacher relationship, she was not a member of AACCA, and was not aware of its safety guidelines or the proper progression of skills learning necessary for performing the basket toss stunt. She relied on her instructor’s knowledge and expertise to determine her progress and safety to her detriment.

In contrast, Sark had a superior knowledge of the risks of the basket toss. Sark permitted the class to perform the basket tosses on the asphalt surface in clear violation of the AACCA recommendations. He was familiar with the standards, but there is evidence that he failed to comply with recommendations for safety and progression of skills that were industry standards. Evidence of industry safety standards and the failure to comply with such standards may be considered in gauging whether the defendant exercised a reasonable standard of care or was negligent. See Little Ocmulgee Elec. Membership Corp. v. Lockhart.

In fact, Sark pressured Prillaman to attempt the stunt despite her reservations. Prillaman testified that “you need to have 100 percent trust in your stunt partner or you can’t perform; and I had that in [Sark].” On the day of her injury, Prillaman expressed her concern to Sark about the asphalt surface after the class moved to it to find an even surface. She testified he told her, “It will be fine. We will catch you; I promise.” She testified, based on his assurances, she then felt relatively comfortable with the stunt. Before her first basket toss, Prillaman testified she mentioned the blacktop to Sark again and he told her to “be quiet. Get in the basket. It will be fine.”

This case is distinguishable from the facts in Young v. Brandt. In Young, an experienced horsewoman, Brandt, expressed concern about riding a stallion with a particular type of tack and was reassured, “ "You’ll be fine,’ ” by her riding instructor, Young. Id. at 890. The horse bucked; Brandt fell and was kicked by the horse. Brandt testified she relied on Young’s knowledge of both the horse and her own riding skills. This Court held that the trial court had erred in denying a directed verdict to Young because, based on the facts of the case, Brandt had assumed the risk of her injury.

This Court pointed out that Brandt was a highly capable horsewoman, had been riding for years, knew stallions were unpredictable, received instruction three to five times a week, taught beginning and intermediate riders herself, had the third highest ranking, a “B” rider, in the Pony Club, had ridden this particular horse as many as twenty times, and had participated the day of the injury in putting the tack on the stallion. Young, supra, involved the actions of an animal and Brandt’s knowledge of its temperament. Through knowledge, experience, and training, Brandt was well qualified to make the choice of riding the stallion, and thus assumed the risk. Unlike Brandt, Prillaman was not experienced in cheerleading stunts other than single partner stunts, had not performed the full basket toss prior to the day of her injury, was not a member of the AACCA, and was not knowledgeable about the AACCA safety guidelines or appropriate progression of skills necessary to perform the basket toss safely.

Decided June 13, 2002.

Jeffrey H. Dover, for appellant.

Hicks, Casey & Barber, William T. Casey, Jr., Lisa K. Whitfield, for appellees.

Based on the evidence set forth above, there is a genuine issue of material fact as to whether Prillaman clearly understood the risk of the basket toss on the blacktop and “whether [she] voluntarily and without coercion chose a perilous course of conduct.” Styles v. Mobil Oil Corp. We reverse the judgment in this case.

Judgment reversed.

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

        Herron v. Hollis, 248 Ga. App. 194 (546 SE2d 17) (2001).

        Desai v. Silver Dollar City, 229 Ga. App. 160, 164 (3) (493 SE2d 540) (1997).

        Rubin v. Cello Corp., 235 Ga. App. 250, 252 (1) (b) (510 SE2d 541) (1998).

        Little Ocmulgee Elec. Membership Corp. v. Lockhart, 212 Ga. App. 282, 283 (1) (441 SE2d 796) (1994).

        Young v. Brandt, 225 Ga. App. 889 (485 SE2d 519) (1997).

         Styles v. Mobil Oil Corp., 218 Ga. App. 48 (1) (459 SE2d 578) (1995).


text:
    A02A0588.
    HAZELRIGS v. THE STATE.
    (567 SE2d 79)
   Blackburn, Chief Judge.

Following a jury trial, Charles Hazelrigs was convicted of five counts of aggravated assault and two counts of cruelty to children in the second degree. Hazelrigs appeals from the denial of his motion for new trial on the basis of ineffective assistance of counsel, asserting that: (1) defense counsel did not have a theory of defense as evidenced by the opening statement and closing argument; (2) defense counsel did not cross-examine two of the State’s witnesses as to the events to which they testified; (3) a potential favorable witness for the defense was not called to testify; and (4) neither the defendant’s testimony nor any witnesses for the defense were presented. We affirm.

Viewing the evidence in the light most favorable to the verdict shows that Hazelrigs’s girlfriend, Debra Huston, telephoned her relatives to ask them to pick up her children from her residence because she believed Hazelrigs was on the way to harm them. When Hazelrigs confronted his girlfriend’s brother, sister-in-law, and father at Huston’s home, he retrieved a shotgun from inside and attempted to shoot the family members. Thereafter, in the yard of the home, Hazelrigs struck the relatives with a rake and a two-by-two board. The girlfriend’s children were present in the residence at the time of the altercation. Hazelrigs did not testify at trial, and no witnesses were presented by the defense.

The standard by which effectiveness of counsel is measured is the test set out in Strickland v. Washington. Hazelrigs must show “both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” Bolick v. State. “In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy.” Id.

Whether an attorney’s trial tactics are reasonable “is a question of law,” not fact. The test for reasonable attorney performance has nothing to do with what the best lawyers would have done. Nor is the test even what most good lawyers would have done. We ask only whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . . (W)e are not interested in grading lawyers’ performances; we are interested in whether the adversarial process at trial, in fact, worked adequately.

Holland v. State.

1. Hazelrigs’s claim that his defense counsel did not set out a theory of defense in his arguments and was, therefore, ineffective, is without merit. Although the defense counsel’s opening statement might be considered unconventional, he did indicate to the jurors they should listen to the evidence that would be presented and do what they thought was right. The trial transcript shows that defense counsel’s closing argument did contain a number of defense theories including: (1) the State had not met the burden of proof beyond a reasonable doubt; (2) there were issues of inconsistency and credibility in the testimony of the State’s witnesses; (3) there were deficiencies in the manner the sheriff and the district attorney handled the evidence in the case; and (4) the subject events constituted a domestic argument in which the defendant was the primary victim. Therefore, we find no merit to this claim of ineffectiveness of counsel. Moreover, argument of counsel is not evidence to be considered by the jury. Thus, Hazelrigs cannot show that there is a reasonable probability that the outcome of the trial would have been different if counsel had argued differently to the jury. Moody v. State.

2. Hazelrigs asserts that defense counsel provided ineffective assistance because he limited his cross-examination of two of the State’s witnesses. Huston’s brother and sister-in-law testified on direct examination that the defendant pointed a rifle at both of them and her father and pulled the trigger, but the rifle failed to fire. Thereafter, Hazelrigs grabbed a rake and struck the brother and sister-in-law. Later he attacked them with a two-by-two board. Although defense counsel did not conduct an extensive cross-examination of these witnesses as to the facts surrounding these events, defense counsel did ask questions seeking to discredit these witnesses. He elicited a prior conviction for child molestation in the cross-examination of the brother. He questioned the sister-in-law concerning her hesitation in removing the children immediately from the girlfriend’s house, attempting to cast doubt on the danger defendant posed to the children. Furthermore, defense counsel testified that he felt that “[the witnesses] had made up their minds, and cross-examining them was not going to do us any good. They were not going to be flexible. All we could do was try to discredit them.” Also, defense counsel did cross-examine the other eyewitness to the events and officers called to the scene.

Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that [appellant] and his present counsel disagree with the decisions made by trial counsel does not require a finding that [Hazelrigs’s] original representation was inadequate.

(Punctuation omitted.) Evans v. State. We find no error by the trial court.

Hazelrigs also challenges counsel’s failure to call his girlfriend’s son as a witness. The son informed defense counsel prior to trial that his statement to the police was a lie. He stated that he had not seen Hazelrigs with the rifle and that his uncle started the altercation with Hazelrigs. Defense counsel testified at the motion hearing that the child’s expected testimony, although likely to be more favorable to Hazelrigs, would still expose material potentially harmful to the defense, that is, that he had unloaded the rifle when he knew that Hazelrigs was coming to the house. Based on that information and the fact that the witness had changed his testimony before, defense counsel chose not to use the witness’s testimony and preserve the final closing argument. Deciding on which defense witnesses to call is a matter of trial strategy and tactics which do not constitute ineffective assistance of counsel. Williams v. State. Also, declining to present evidence so as to preserve the final word in closing argument is a well-recognized trial tactic. Id. Therefore, we reject Hazelrigs’s argument that he was denied effective assistance.

For the same reasons, the decision not to call any other witnesses or have the defendant testify does not constitute ineffectiveness of counsel. There is evidence that defense counsel informed the defendant and his family during a trial recess that he would not put Hazelrigs on the stand and explained his reasoning. Additionally, counsel stated reasonable tactical reasons for this decision including: (1) he was concerned the defendant could not maintain his composure on the stand and, therefore, the defendant’s prior record might be exposed and (2) the cross-examination of the witnesses had raised doubts as to the strength of the State’s case. Strategic decisions regarding what witnesses to call after consultation with the client do not amount to ineffective assistance. Peterson v. State.

3. Hazelrigs’s final contention appears to be an argument that the evidence presented at trial was insufficient to convict. However, in light of the error alleged, we interpret counsel’s argument to be that defense counsel should have asked for a directed verdict as to the alleged failures in the evidence. To be successful here, the appellant must show that the evidence was insufficient to support the conviction under Jackson v. Virginia. This argument is without merit.

“The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the (standard) of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that [Hazelrigs] was guilty of the charged offense.” (Footnote omitted.) Gonzales v. State. Accordingly, we must view the evidence in the light most favorable to support the verdict, and Hazelrigs no longer enjoys the presumption of innocence. Strickland, supra at 687.

Hazelrigs alleges that one of the required elements of the crime of cruelty to children was not proven because there was no evidence that the children were present and could see or hear what occurred between their uncle and Hazelrigs. There was testimony from the sister-in-law which indicated that the children were in a position to see and hear what occurred between Hazelrigs and the victims. Hazelrigs also argues that no evidence was presented to support the charge that he committed aggravated assault on the sister-in-law by means of striking her with a rake. Testimony was presented that the sister-in-law was indeed struck with a rake. This evidence was sufficient to support the trial court’s decision to deny the directed verdict, and, therefore, Hazelrigs fails to show that the outcome of the trial would be different but for defense counsel’s failure to act. Therefore, we cannot say that the defendant received ineffective assistance.

Decided June 13, 2002.

Fanning & Hudson, Steven E. Fanning, for appellant.

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

Judgment affirmed.

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

        Strickland, v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Bolick v. State, 244 Ga. App. 567, 569 (1) (536 SE2d 242) (2000).

        Holland v. State, 250 Ga. App. 24, 25-26 (550 SE2d 433) (2001).

        Moody v. State, 206 Ga. App. 387, 389 (1) (c) (425 SE2d 397) (1992).

        Evans v. State, 207 Ga. App. 358, 360 (2) (427 SE2d 837) (1993).

        Williams v. State, 253 Ga. App. 453, 455 (1) (a) (559 SE2d 512) (2002).

        Peterson v. State, 253 Ga. App. 390, 394 (5) (b) (559 SE2d 126) (2002).

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

        Gonzales v. State, 252 Ga. App. 476, 477 (1) (556 SE2d 183) (2001).

       OCGA § 16-5-70 (c) provides that “Any person commits the offense of cruelty to children in the second degree when:... (2) Such person, who is the primary aggressor, having knowledge that a child under the age of 18 is present and sees or hears the act, commits a forcible felony, battery, or family violence battery.”


author: Pope, Presiding Judge.

text:
    A02A0600.
    BLOUIN v. THE STATE.
    (567 SE2d 39)
   Pope, Presiding Judge.

John Daryl Blouin was tried by a jury and convicted of selling cocaine. He contends his trial counsel was ineffective because he did not attempt to introduce the transcript of a co-indictee’s former testimony, which contained exculpatory evidence.

At trial, the State introduced only two witnesses, one of whom simply identified the contraband as cocaine. The State’s main witness, Officer Todd Henderson, testified to the facts of the sting operation. He testified that he was riding in the backseat of a car driven by an unidentified, confidential informant and that a second informant, also unidentified, occupied the passenger seat. They pulled into a gas station where three men were standing, including Blouin, and Henderson told Blouin that he needed to buy some crack cocaine. Blouin spoke to Jesse Withers (a/k/a Jesse Williams) and the third man. Blouin then got into the back of the car next to Officer Henderson and directed the driver to go across the street to some apartments. Withers and the other man crossed the street on foot and went behind a toolshed. After the informant parked the car, Blouin got out and also went behind the shed. A short time later, Withers reappeared and sold Henderson some crack cocaine. Henderson then radioed for help, and agents arrested both Withers and Blouin; the third man was not apprehended.

Blouin testified in his own defense and asserted that, although present, he was not involved in the sale. He admitted that a car approached him at the gas station and that he heard someone in the car say something. But, according to Blouin, Withers then entered the car on the opposite side, and the car drove off. After that, Blouin testified, he spoke with the third man about a woman for whom Blouin was looking. Blouin and the man walked toward the apartments where an acquaintance lived who, they believed, knew the whereabouts of the woman. While Blouin waited outside for the other man to get information, he again saw Withers. The third man came out without any information, and Blouin began walking back toward the gas station, when, suddenly, he was arrested. The officers did not find any drugs or drug-related objects on Blouin.

Sometime after his arrest, Withers pleaded guilty to the sale of cocaine. At the time of Blouin’s arrest, Blouin was on probation arising out of another matter. At Blouin’s ensuing probation revocation hearing, Withers testified under subpoena that he sold the cocaine and that it was he, not Blouin, who got in the car with Henderson and led Henderson to the apartments. He admitted that Blouin was at the gas station but said that Blouin had nothing to do with the drug sale.

Withers did not testify at Blouin’s trial, and Blouin’s attorney did not attempt to introduce the transcript of the probation revocation hearing. Consequently, the jury never heard the exculpatory evidence. Blouin contends that his attorney’s failure to introduce the transcript constitutes ineffective assistance of counsel and that he was harmed as a result.

“To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense.” (Footnote omitted.) Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000). See also Strickland v. Washington, 466 U. S. 668, 691 (III) (B) (104 SC 2052, 80 LE2d 674) (1984). The issue is a mixed question of law and fact; therefore, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs, 272 Ga. at 88 (4).

Blouin’s trial counsel testified at the motion for new trial hearing that he had kept up with Withers’ location in order to subpoena him to testify, but that, six days before trial, he learned that Withers had absconded after being released from prison and placed on parole. Blouin’s attorney testified that there was a warrant for Withers’ arrest and that he had no other information about Withers’ whereabouts. He testified that he was aware that Withers had given the exculpatory statement at the probation revocation hearing, but that he “just didn’t think about” introducing the transcript of that testimony at Blouin’s trial. He admitted that not using the transcript was not a part of his trial strategy. He said that he could have gotten the transcript from the hearing but that he did not consider it.

The trial court held:

Counsel’s failure to utilize the transcript of the probation revocation hearing may have been an error on his part; however, the court finds that this does not fall outside of the wide range of reasonable professional conduct, and there is no reasonable probability that it would have produced a different result due to the evidence against Defendant.

Blouin’s sole defense was that he was not in the car involved in the transaction, but rather outside of the car and uninvolved. Officer Henderson was the only witness to testify that Blouin was the person who got in the car. Withers’ testimony was easily available evidence that could corroborate Blouin’s sole defense that he was not that person. Blouin’s attorney was aware that Withers had absconded. He was also aware of the testimony from the earlier hearing but simply did not consider obtaining it. Withers’ testimony was directly relevant and directly supported Blouin’s defense. The attorney’s failure was the equivalent of simply forgetting to call a key witness. We hold that this failure falls below the standard of care. Although the range of professional assistance considered reasonable is wide, this failure falls outside of that range.

Counsel did not decide not to use the evidence, but simply forgot to consider it. This simple fact distinguishes all cases involving a strategic decision on whether to present certain witnesses or evidence. See Adams v. State, 217 Ga. App. 532, 533 (2) (458 SE2d 171) (1995) (it is only in the absence of testimony to the contrary that counsel’s actions are presumed strategic).

Finally, Blouin must show that but for counsel’s unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Strickland, 466 U. S. at 694 (III) (B). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. See also Kimmelman v. Morrison, 477 U. S. 365, 374 (II) (A) (106 SC 2574, 91 LE2d 305) (1986) (“The essence of an ineffective-assistance claim is that counsel’s unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect.”) (citations omitted).

Decided June 13, 2002.

Michael A. Zoffmann, Jay L. Palmer, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Irvan A. Pearlberg, Amelia G. Pray, Assistant District Attorneys, for appellee.

“In assessing the prejudicial effect of counsel’s failure to call a witness (whether that failure resulted from a tactical decision, negligent oversight, or otherwise), a petitioner is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.” Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995). The transcript from the probation revocation hearing was introduced at the hearing on the motion for new trial. It contains Withers’ testimony exonerating Blouin.

This case involved the simple question of whether Officer Henderson correctly identified Blouin as the person in the car. Withers testified that he was that person, not Blouin. The jury never heard that testimony. The State contends that because Withers is an admitted felon, his testimony is unreliable. But, for the purpose of determining the second prong of the Strickland test in this case, that is irrelevant. “[I]dentity is a question for the trier of fact; where a witness identifies a defendant, the credibility of the witness making that identification is not to be decided by this Court.” (Footnote omitted.) Strange v. State, 250 Ga. App. 735, 737 (552 SE2d 899) (2001). See also Walton v. State, 272 Ga. 73, 74 (3) (526 SE2d 333) (2000) (where prior testimony satisfies OCGA § 24-3-10 it is inherently reliable); Livingston v. State, 268 Ga. 205, 210 (2) (486 SE2d 845) (1997) (out-of-court statements which fall within firmly rooted hearsay exception satisfy constitutional requirement of reliability). It follows that the credibility of one contradicting an identification is also a question for the jury. We hold that there is a reasonable probability that the outcome of the trial would have been different if Withers’ testimony had been presented.

Judgment reversed.

Ruffin and Barnes, JJ, concur.

       We disagree that there is a serious question as to whether Withers would have been considered unavailable so that his prior testimony could have been admitted. See OCGA § 24-3-10.


text:
    A02A0620.
    CELESTIN v. THE STATE.
    (567 SE2d 82)
   Blackburn, Chief Judge.

Gerald Claude Celestin appeals his conviction of trafficking in cocaine following a bench trial. He argues that the trial court erred in denying his motion to suppress evidence and that the evidence was insufficient to support his conviction. For the reasons set forth below, we reverse.

1. Celestin first enumerates as error the trial court’s denial of his motion to suppress. In addressing Celestin’s contention, “we bear in mind that in a ruling on a motion to suppress, a trial court’s findings as to disputed facts will be reviewed under a clearly erroneous standard and that the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” State v. Ray.

Viewed in a light most favorable to the verdict, the evidence shows that on the morning of April 25, 1996, Officer Barry Davis and two other narcotics officers from the Richmond County Sheriff’s Department went to the Southeastern Stages bus station in Augusta as part of a drug interdiction program called Operation Jet Way. Celestin’s bus had just arrived from Miami. As part of this operation, Officer Davis boarded Celestin’s bus, identified himself, and advised the passengers of his intention to search for illegal narcotics and weapons with the assistance of a trained canine. The passengers were told that their compliance with the search would be voluntary and that they could exit the bus before the agents brought on the dog to begin the inspection. Davis announced that any passengers who wished to exit the bus were free to do so; Celestin exited the bus, carrying a blue bag.

As Celestin exited the bus, he was stopped by Officer Bolton, who asked Celestin for identification. Celestin produced his Florida driver’s license, which the police retained. As Bolton inspected the license, Davis joined them; he again identified himself as a narcotics officer and asked Celestin for permission to search his bag. Without speaking, Celestin stooped down, unzipped the bag, and began taking folded articles of clothing from it, stopping when he got to a pair of boots in the bottom of the bag. When Davis asked Celestin if he could examine the boots, Celestin repacked the articles of clothing, told the officers he needed to leave, and then began walking away.

Celestin walked to a cab; as he was talking to the cabdriver, Davis came up beside him. Davis told the cabdriver that Celestin was not free to leave, waved the cab away, and then again asked Celestin for permission to search his bag. Once again, Celestin stopped, unzipped his bag, and pulled out items, leaving the boots in the bottom of the bag. When Davis again asked if he could look inside the boots, Celestin put his clothing back into the bag and complained that Davis was harassing him. Celestin also asked that his driver’s license, which Bolton still had, be returned to him. Davis shouted to Bolton to bring the license, but at this point Celestin told Davis that they could keep his license and again began walking away.

Davis hurried back to his car, which he had left on the other side of the lot. Bolton and another officer followed Celestin in their patrol car. After a short distance, Celestin broke into a run; the officers left their car in order to pursue on foot. When the officers caught up with Celestin, he stopped, pushed them away, and again tried to flee. He was apprehended after a brief struggle and arrested for simple battery and obstruction of police officers. As the police had no probable cause to stop or search Celestin, he was free to resist their unlawful detention of his person. One is free to resist an illegal arrest. See, e.g., Evans v. State

When Davis joined Celestin and the other officers, he saw Celes-tin’s blue bag on the ground. Davis asked Celestin about the bag, but Celestin denied that the bag was his. On further questioning, he asserted repeatedly that the bag was not his, that he had not gotten off the bus, and that he had never been on the bus. Davis decided to treat the bag as abandoned property. Shortly thereafter, an officer arrived with a canine unit. When the dog alerted on the bag, Davis searched it and found over 19 ounces of a white powdery substance. The substance was later determined to be cocaine.

Celestin moved to suppress the cocaine, arguing at the hearing on the motion to suppress that he had withdrawn his consent to the search of his bag. The trial judge denied the motion, finding that Celestin had abandoned the bag before Davis searched it and that the constitutional protections of the Fourth and Fourteenth Amendments do not apply to property which has been abandoned.

Under our law, there are three levels of police-citizen encounters. In the first level, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.

State v. Banks. See also Terry v. Ohio “There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment.” (Punctuation omitted.) Barnes v. State

Some drug interdiction operations targeting passengers on buses have been found by the United States Supreme Court not to be viola-tive of the Fourth Amendment. In Florida v. Bostick, the Supreme Court considered whether, within the meaning of the Fourth Amendment, a person who is a passenger on a bus has been seized when he is approached at random by a police officer, questioned, and asked to consent to a search of his luggage. The Supreme Court noted that the “cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” (Citation omitted.) Id. at 434 (II). We note that Bostick did not involve a situation where the police had specially advised the passengers that their participation was voluntary and that they were free to depart if they wished. Here the police stopped and detained Celestin without probable cause.

Celestin’s interaction with the police in this case was a second tier encounter.

The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity. To stop a citizen, the officer must possess more than a subjective, unparticularized suspicion or hunch. The officer’s action must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion, and the officer must have some basis from which the court can determine that the detention was neither arbitrary nor harassing. “An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.”

(Citations omitted.) State v. Banks, supra at 839-840.

Celestin was free to ignore the questions of the police and walk away. Though he unpacked his bag and showed the contents to the police, he repacked his bag and walked away. No consent was given to the police to search his bag. Conley v. State. The police, however, still in possession of his driver’s license, refused to honor his decision to end contact with them, and continued to question him and seek permission to search his bag. When Officer Davis told the cabdriver that Celestin was not free to leave and waved him away, a Terry stop was initiated and Davis, at that point, had to have a particularized and objective basis for suspecting that Celestin was involved in criminal activity. “This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.” (Punctuation omitted.) Barnes v. State, supra at 46.

Decided June 13, 2002.

Paul W. David, for appellant.

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

Officer Davis testified at the bench trial that he detained Celes-tin because of his “suspicious activity on the bus” and because Celes-tin stopped unpacking his bags when he got down to his boots. Davis’s feeling that Celestin was acting in a suspicious way does not amount to a particularized and objective basis for suspecting him of criminal activity. Beyond that, since Celestin was free both to refuse consent to a search of his luggage and also to ignore the police and walk away from them, his decision to do either cannot provide a basis for suspecting him of criminal activity. The police search of the bag after that point was tainted.

Because the stop of Celestin was illegal and in violation of the protection afforded by the Fourth Amendment, the cocaine seized by the police cannot be used as evidence against him. Wong Sun v. United States. Celestin’s conviction, therefore, must be reversed.

2. Because of our disposition of his first enumeration of error, it is unnecessary to address Celestin’s other contentions.

Judgment reversed.

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

        State v. Ray, 272 Ga. 450 (2) (531 SE2d 705) (2000).

        Evans v. State, 198 Ga. App. 551, 552 (2) (402 SE2d 323) (1991).

        State v. Banks, 223 Ga. App. 838, 839 (479 SE2d 168) (1996).

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Barnes v. State, 228 Ga. App. 44, 45 (491 SE2d 116) (1997).

        Florida v. Bostick, 501 U. S. 429 (111 SC 2382, 115 LE2d 389) (1991).

        Conley v. State, 180 Ga. App. 662, 664 (350 SE2d 45) (1986).

        Wong Sun v. United States, 371 U. S. 471 (83 SC 407, 9 LE2d 441) (1963).


text:
    A02A0662.
    SLATE v. THE STATE.
    (567 SE2d 86)
   Blackburn, Chief Judge.

Following a bench trial, Quentin Slate appeals his conviction for driving under the influence of alcohol, OCGA § 40-6-391 (a) (1), contending that the trial court erred in denying his “motion to dismiss” based on the failure of the State to prove venue. For the following reasons, we reverse.

“[V]enue in all criminal cases must be laid in the county in which the crime was allegedly committed. . . . Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.” Page v. State.

The only evidence in the record which indicates the location of the crime was provided in the testimony of a DeKalb County police officer. The officer testified he was employed by DeKalb County Police and responded as backup to a call for assistance at a vehicle accident. He testified that he observed Slate standing near a destroyed vehicle on King Road. There is no further evidence in the record that the scene of the accident on King Road is in DeKalb County. On defendant’s motion to dismiss based on a failure to prove venue, the prosecutor stated as to venue: “I always mention it. I don’t know if I mentioned it. I mean, I can’t testify to that. The court would know. Okay. That is usually my standard question.”

Our Supreme Court has held that slight evidence is no longer sufficient in a criminal case to prove venue. Where the defendant has pled not guilty to the charges against him, he has disputed every element, and the State is required to prove every element of the crime beyond a reasonable doubt. Jones v. State. Slate pled not guilty and was convicted at trial. The State has failed to prove venue beyond a reasonable doubt, and we must reverse.

The trial court stated in denying Slate’s motion that “I recall the officer said it happened on King Road and I believe that it was here in this county; however, if I am wrong the record will show that and you’ll have your . . . appeal based upon what the record shows as to venue. . . . The record will show whether I’m right or wrong on that.” A review of the record reveals that venue was not established, and the trial court’s recollection of the testimony was incorrect. We note that the court could have permitted the State to reopen its case and to address venue; however, the State did not seek this relief.

Judgment reversed.

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

Decided June 13, 2002.

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Kimberly Sanders-Bjurmark, Assistant Solicitor-General, for appellee.

        Page v. State, 250 Ga. App. 795, 796 (553 SE2d 176) (2001).

        Jones v. State, 272 Ga. 900, 902 (2) (537 SE2d 80) (2000).


text:
    A02A0738.
    SMITH v. THE STATE.
    (567 SE2d 322)
   Johnson, Presiding Judge.

After a bench trial, Damarcus Smith was found guilty of burglary and attempted burglary. He challenges the sufficiency of the evidence to support the convictions, urging that the jury should have believed his testimony that he did not knowingly participate in the crimes with his co-defendant. Smith claims that the jury should not have believed the officer’s testimony that he admitted committing the crimes and urges that the state’s case was based entirely upon circumstantial evidence. Smith’s arguments present no grounds for reversal, so we affirm his convictions.

The evidence, viewed in the light most favorable to the verdict, shows that on April 27, 2001, someone burglarized a home on Smith Chapel Road and attempted to burglarize a home on Hopewell Road. The victim of the Smith Chapel Road burglary testified that someone damaged her door to enter the home and stole a cell phone, cell phone charger, and pocket change.

When two persons attempted to break into the Hopewell Road home, the victim looked out of the door and frightened them. The perpetrators left the scene in a white Dodge pickup truck.

A police officer was dispatched to the Hopewell Road house. While en route, he encountered a white Dodge pickup truck. The officer turned his vehicle around and followed the truck, which had two occupants. He “saw them throwing some items out the window, the passenger side window.” He went to the area where the items landed and found two pairs of gloves, a cell phone, and a cell phone charger. This was approximately one mile from the Hopewell Road house. The cell phone and phone charger were later identified by the victim as the ones stolen from her Smith Chapel Road residence.

Police stopped the truck. Smith was the driver, and Tamario Jackson was the passenger. The victim of the attempted burglary was brought to the scene and identified the pickup truck as the one that had been at his house. Jackson admitted to the officer that he and Smith burglarized the Smith Chapel Road home.

The officer read Smith his Miranda rights and asked him about several burglaries he was investigating. After waiving his Miranda rights, Smith admitted that he participated in the two burglaries that day. Smith confessed that he and Jackson tried to enter the second home but were unsuccessful. Smith also stated that he wore a pair of white gloves and Jackson wore brown gloves to commit the offenses. Gloves of the type described were found near the road, next to the stolen cell phone. In a signed statement which he wrote himself, Smith gave details of the crimes. At trial, Smith recanted the statements, saying the officer lied about his verbal confession and that his written statement is being misinterpreted as including confessions, when it does not. He testified that he did not realize Jackson was committing crimes because, at the timé, Jackson gave him innocent explanations for what he was doing.

A jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt. The testimony of a single witness is generally sufficient to establish a fact. Here, the officer testified that Smith confessed to the crimes and Jackson told him that Smith participated in the crimes. Moreover, Smith’s written statement incriminated him, particularly the admissions that they ran from the scene and had to use force to enter the premises. And, officers found two pairs of gloves with the stolen items.

To support a verdict, circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of Smith’s guilt was a question for the jury. Only where the evidence is unsupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial.

Decided June 13, 2002.

Robert M. Bearden, Jr., for appellant.

Howard Z. Simms, District Attorney, Myra H. Kline, Assistant District Attorney, for appellee.

Further, Smith’s denial of all charges against him raised no more than a question of his credibility as a witness. Such a question is solely within the province of the jury as finder of fact. On appeal, we do not determine witness credibility but only determine the sufficiency of the evidence. The circumstantial evidence in this case was sufficient to enable a rational trier of fact to find Smith guilty beyond a reasonable doubt of the charged offenses.

Judgment affirmed.

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

        Singleton v. State, 231 Ga. App. 694 (1) (500 SE2d 411) (1998).

       On Smith Chapel Road we entered the premises of a white double-wide trailer. Mr. Jackson used a tire iron to enter the house through a side door. So Mr. Jackson retrieved a cellular and battery charger. On Hopewell Road he tried to enter the premises of a beige house. Mr. Jackson tried to kick the door many times unsuccessful and tried to enter from the screen door. We left the premises by running actually into a ditch. Nothing was taken. Mr. Smith will pay for any damage caused to the victim.

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

       OCGA § 24-4-8.

        Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987); Tweedell v. State, 248 Ga. App. 187, 189 (546 SE2d 306) (2001).

        Brown v. State, 245 Ga. App. 706, 709 (1) (538 SE2d 788) (2000).

       Id.

        Johnson v. State, 251 Ga. App. 455, 456 (1) (554 SE2d 587) (2001).

       Id. at 456-457 (1).

       See Moore v. State, 242 Ga. App. 208, 210-211 (1) (529 SE2d 210) (2000); Ware v. State, 198 Ga. App. 24, 25-26 (1) (400 SE2d 384) (1990).


author: Miller, Judge.

text:
    A02A0749.
    SHREE ANNPURNA, INC. v. UDHWANI.
    (567 SE2d 42)
   Miller, Judge.

The question on appeal is whether the trial court properly entered summary judgment in favor of a lender whom the debtor had sued for refusing to cancel a security deed, where the debtor never made a written demand for liquidated damages under OCGA § 44-14-3 (c). We hold that the lack of the statutory demand for liquidated damages precludes liability and therefore affirm.

On a defendant’s motion for summary judgment, we construe the evidence in the plaintiff’s favor, giving plaintiff the benefit of all doubts and indulging all reasonable inferences in plaintiff’s favor. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is appropriate only if under the facts as so construed, judgment is required as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see OCGA § 9-11-56 (c).

So construed, the evidence showed that Shree Annpurna, Inc. purchased a motel from Gurcharansingh Udhwani. As part of the purchase price, Udhwani received from Shree a note secured by a second-in~priority security deed. For years, Shree forwarded payments on the note to Udhwani’s brothers (Jack and Mike), who were Udhwani’s agents for collecting the debt.

Three years into the note, Jack approached Shree about paying the note off early in a lump sum. Shree and Jack negotiated a lump sum of $23,000 in full payment of the note, which money Shree forwarded to Jack in a check made out to Udhwani that bore the words, “For Final Payment for Note for Shree Annpurna, Inc.” Jack received and negotiated the check in February 1997, applying it to pay the note. Despite Shree’s requests, Udhwani made no effort to cancel the second security deed, even though the now-satisfied note was the only obligation the deed secured.

In May 1998, Shree sent Udhwani a letter demanding that Udhwani cancel the second security deed. The letter contained no demand for damages, whether liquidated or otherwise. Udhwani did not respond, and when Shree began efforts to sell the motel to a third party, Shree orally asked Udhwani in December 1999 to cancel the deed and also sent him a second demand letter in January 2000 that insisted that the second security deed be cancelled and that pointed out that the debt had been paid off in February 1997. Again, the letter contained no demand for any type of damages. A third letter demanding cancellation followed in February 2000, which noted that the property had been sold to a third party earlier that month (with funds held in escrow) and which threatened suit for compensatory and punitive damages and attorney fees against Udhwani. The letter did not mention nor demand liquidated damages. Udhwani finally cancelled the deed later that month.

Two months later, Shree sued Udhwani under OCGA § 44-14-3 (c), seeking liquidated, compensatory, and punitive damages and attorney fees. Udhwani moved for summary judgment, which the trial court granted. The court concluded that the February 2000 letter contained a sufficient demand for liquidated damages but entered summary judgment on other grounds. Without considering the other grounds cited in the trial court’s ruling, we affirm on the ground that Shree never made a specific written demand for liquidated damages, an express prerequisite for any liability under the statute.

OCGA § 44-14-3 (b) (1) requires a grantee holding a security deed to cancel that deed within 60 days of the time the underlying obligation is satisfied. OCGA § 44-14-3 (c) authorizes an action against the grantee if he fails in this duty, rendering him liable, upon written demand, for $500 as liquidated damages, for compensatory damages, and for attorney fees. However, the statute expressly states: “the grantee or holder shall not be liable to the grantor unless and until a written demand for the liquidated damages is made.” OCGA § 44-14-3 (c).

Here there is no specific demand for liquidated damages in any of the three letters nor in any other writing. The February 2000 letter is the only letter to mention let alone demand damages, and even then (without citing the statute) only references “substantial claims for damages,” which it goes on to define as claims for compensatory and punitive damages and attorney fees. It does not reference nor demand liquidated damages of any sort. Accordingly, under the express terms of the statute, Udhwani is not liable to Shree. Inasmuch as we affirm the grant of summary judgment if it is right for any reason, Hot Shot Express v. Assicurazioni Generali, S.P.A., 252 Ga. App. 372, 373 (556 SE2d 475) (2001), we affirm the summary judgment here in favor of Udhwani.

Decided June 13, 2002.

James D. Hyder, Jr., for appellant.

Fortson, Bentley & Griffin, Robert N. Elkins, for appellee.

Judgment affirmed.

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


text:
    A02A0778, A02A0779.
    HEART OF TEXAS DODGE, INC. v. STAR COACH, LLC; and vice versa.
    (567 SE2d 61)
   Johnson, Presiding Judge.

Star Coach, LLC is in the business of converting sport utility vehicles and pickup trucks into custom vehicles. Star Coach performs the labor involved in installing parts supplied by other companies onto vehicles owned by dealers. Heart of Texas Dodge, Inc. purchased a new Dodge Durango from Chrysler Motors and entered into an agreement with Star Coach wherein Star Coach would convert the Durango to a Shelby SP 360 custom performance vehicle and then return the converted vehicle to Heart of Texas Dodge. The manufacturer delivered the dealer’s Durango to Star Coach, and over a period of several months, Star Coach converted the vehicle using parts supplied by another company, Performance West. Several months later, Star Coach delivered the vehicle to Heart of Texas Dodge, and Heart of Texas Dodge paid Star Coach the contract price of $15,768, without inspecting the vehicle. Two days later, Heart of Texas Dodge inspected the vehicle and concluded that the workmanship was faulty. Heart of Texas Dodge stopped payment on the check, and Star Coach filed the underlying suit. A jury returned a verdict in favor of Star Coach for the full amount of the contract. The trial court entered judgment on the jury’s verdict, but denied Star Coach’s motion for attorney fees. In Case No. A02A0778, Heart of Texas Dodge appeals. Star Coach appeals in Case No. A02A0779.

Case No. A02A0778

1. In its sole enumeration of error, Heart of Texas Dodge contends that the trial court erred in charging the jury on two provisions of the Uniform Commercial Code, because the UCC does not apply to the contract in this case. Specifically, Heart of Texas Dodge points out that Article 2 of the UCC applies only to contracts for the sale of goods and urges that the contract here was for the provision of services. This distinction matters because, as discussed below, the requirements placed upon the parties by the UCC differ substantially from those imposed by general principles of contract law.

Article 2 of the UCC is expressly limited to transactions involving the sale of goods. If a contract involves only the sale of goods, the UCC applies. If a contract involves the rendition of services, the UCC does not apply. Difficulty arises in determining whether the UCC applies where, as here, a contract involves both goods and services. When the predominant element of a contract is the sale of goods, the contract is viewed as a sales contract and the UCC applies, even though a substantial amount of service is to be rendered in installing the goods. When, on the other hand, the predominant element of a contract is the furnishing of services, the contract is viewed as a service contract and the UCC does not apply. A contract for services and labor with an incidental furnishing of equipment and materials is not a transaction involving the sale of goods and is not controlled by the UCC.

Although we found no cases specifically involving an agreement to modify a new vehicle, we agree with Heart of Texas Dodge that the facts in this case are closely analogous to repair cases. In analyzing those cases, courts look to the fundamental nature of the transaction. The primary purpose of a repair transaction is not to sell or purchase parts, but to change or improve the item and return it to the owner. In such cases, the provision of goods is incidental, and the UCC does not apply.

The predominant element of the contract in this case was the furnishing of a service, namely, the conversion of Heart of Texas Dodge’s vehicle and the return of it in a modified condition. Star Coach is in the business of performing labor, not selling parts. In fact, the dealer ordered the conversion package from a third party, Performance West, which shipped the necessary parts to Star Coach. The labor takes generally from 12 to 16 weeks. The parts which Star Coach needed to perform the conversion were incidental to the contract.

We point out that the letter Heart of Texas Dodge’s attorney wrote to Star Coach explaining the dealer’s refusal to pay for the conversion lists workmanship as the problem. Specifically, Heart of Texas Dodge complained that the front end had been improperly lowered, a loud noise emanated from the front end, the car was unstable to drive, the exhaust system had been improperly routed and burned the brake cable and shock absorber boot, the hood had a noticeable imperfection at the hood hinge, and the paint job was of extremely poor quality. With the possible exception of the “imperfection at the hood hinge,” Heart of Texas Dodge had no complaint regarding the component parts. And in its answer to Star Coach’s complaint, Heart of Texas Dodge defended on the basis that Star Coach “wholly and completely failed to perform workmanlike modification” to the vehicle as agreed. Furthermore, in the pre-trial order, Star Coach stipulated that the contract was for “conversion work” (Emphasis supplied.) This was primarily a service contract, so the UCC does not apply.

We do not agree with Star Coach’s contention that since the contract did not segregate the total price of the parts from the total price of the services to be rendered, the contract should be treated as one for the sale of goods. Whether the price of goods is segregated from the price of services is but one factor to be considered. Considering the totality of circumstances presented in this case, however, it can hardly be said that the rendition of services was merely incidental to the contract.

Star Coach’s claim that only $2,600 was for labor costs, and that therefore the balance of the contract price is attributable to the cost of parts, the implication being that the contract was predominantly one for the sale of goods, is not supported by the record. Star Coach’s citation to the record on this point is not accurate. As best we can tell from the record, the testimony upon which Star Coach apparently relies is not clear as to how the labor and material costs are allocated. Star Coach’s owner testified that of the $15,768 contract price, Star Coach would keep around $2,600 after paying expenses. However, she also testified that Star Coach subcontracted out to other companies a significant amount of the labor involved in the conversion.

Because the predominant character of the transaction was the provision of services, the UCC does not apply. Therefore, the trial court erred in instructing the jury on Heart of Texas Dodge’s duties under the UCC.

2. The trial court’s error in giving the UCC instruction was not harmless. If the contract at issue had been for the sale of goods, then Heart of Texas Dodge was required under the UCC to give Star Coach an opportunity to cure the defects before refusing to pay. If the contract was for the provision of services, Heart of Texas Dodge was not required to give Star Coach such an opportunity, and the dealership could pursue its remedies for damages under general contract law. Here, the jury was improperly instructed that Heart of Texas Dodge was obligated to provide Star Coach with a reasonable time in which to cure any defects. It is undisputed that Heart of Texas Dodge did not give Star Coach such an opportunity. Because the jury entered a verdict requiring that Heart of Texas Dodge pay Star Coach the full amount of the contract, we cannot say that the error was harmless. The judgment of the trial court must be reversed, and a new trial is required.

Decided June 13,2002.

Clifton, Sanders & Smith, Russell W. Smith, Joshua D. Huckaby, for appellant.

McClure, Ramsay, Dickerson & Escoe, Allan R. Ramsay, for appellee.

Case No. A02A0779

3. In its cross-appeal, Star Coach contends that the trial court erred in denying its request for attorney fees because Heart of Texas Dodge asserted a defense which it could not have reasonably believed would be accepted by the court. Star Coach claims that since Heart of Texas Dodge admittedly did not comply with the requirements of the UCC, it had no viable defense. For the reasons discussed in Case No. A02A0778, this argument is without merit. Moreover, Heart of Texas Dodge set forth a reasonable defense regarding whether it owed the full amount prayed for in the complaint, given its claims of poor workmanship by Star Coach. The trial court did not abuse its discretion in denying Star Coach’s request for attorney fees under OCGA § 9-15-14 (a) and (b).

Judgment reversed in Case No. A02A0778. Judgment affirmed in Case No. A02A0779.

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

       At issue are the following instructions:
      1 further charge you that a rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller. I further charge you where a buyer rejects a nonconforming tender which the seller had reasonable grounds to believe would be acceptable with or without money allowances, the seller may if he seasonably notifies the buyer, have a further reasonable time to substitute a conforming tender.

       See generally Al & Zach Brown, Inc. v. Bullock, 238 Ga. App. 246, 249 (1) (518 SE2d 458) (1999).

       OCGA § 11-2-102.

        J. Lee Gregory, Inc. v. Scandinavian House, 209 Ga. App. 285, 287 (1) (433 SE2d 687) (1993).

       Id.

       Id.

       Id.

       Id. at 287-288; Crews v. Roger Wahl, C.RA., P.C., 238 Ga. App. 892, 900 (4) (a) (520 SE2d 727) (1999).

        J. Lee Gregory, supra at 288 (1).

       See Alco Standard Corp. v. Westinghouse Elec. Corp., 206 Ga. App. 794, 795 (2) (426 SE2d 648) (1992) (autotransformers were not sold, but repaired, and any furnishing of materials necessary for the repairs was incidental to services); American Warehouse &c. v. Floyd’s Diesel Svcs., 164 Ga. App. 106, 107-108 (296 SE2d 64) (1982) (rebuilding a truck engine is a service, even though new component parts were used); Gee v. Chattahoochee Tractor Sales, 172 Ga. App. 351, 353 (2) (323 SE2d 176) (1984) (rebuilding an engine in a tractor, even though new parts are included, is not a sale since the primary purpose of the contract is to repair the vehicle, not sell the parts); Barry v. Stevens Equip. Co., 176 Ga. App. 27, 29 (1) (335 SE2d 129) (1985) (rebuilding a shearing machine, including replacing pins, is not a sale within meaning of UCC).

       See McCombs v. Southern Regional Med. Center, 233 Ga. App. 676, 677 (1) (b) (504 SE2d 747) (1998) (hospital’s installation of a cervical plate during spinal surgery involved services with incidental furnishing of materials and was not “sale of goods” within UCC); OMAC, Inc. v. Southwestern Machine &c. Works, 189 Ga. App. 42 (374 SE2d 829) (1988) (UCC did not apply where, in essence, appellee agreed to perform a service, namely, making appellant’s raw materials into the parts appellant needed).

       See D. N. Garner Co. v. Ga. Palm Beach &c. Corp., 233 Ga. App. 252, 255 (1) (504 SE2d 70) (1998).

       See generally Mingledorff’s, Inc. v. Hicks, 133 Ga. App. 27, 28 (1) (209 SE2d 661) (1974) (contract to furnish and install air conditioning systems is one for labor, with an incidental furnishing of materials); compare D. N. Garner, supra (agreement by window company to sell and install windows in housing renovation project was predominantly a sales contract).

       See Al & Zack Brown, supra.

       See OCGA §§ 11-2-602 (1); 11-2-508 (2).

       See generally Crolley v. Haygood Contracting, 201 Ga. App. 700, 702 (3) (411 SE2d 907) (1991).

       See generally OMAC, supra.

       See generally Glaza v. Morgan, 248 Ga. App. 623, 624 (548 SE2d 389) (2001).