text:
    A02A1077.
    HORNER v. THE STATE.
    (570 SE2d 94)
   Blackburn, Chief Judge.

Following a jury trial, Norris Franklin Horner a/k/a Ricky Wayne Stillwell appeals his conviction of theft by taking an automobile, contending that the trial court erred in (1) denying Horner’s motion for a directed verdict and his motion for judgment notwithstanding the verdict alleging the insufficiency of the evidence; (2) admission of prior convictions from North Carolina; (3) admission of evidence of a separate auto theft in Newnan, Georgia; and (4) allowing witness identification of a booking photo. Horner also asserts that he received ineffective assistance of trial counsel. For the reasons set forth below, we affirm.

On appeal, we view the evidence in a light most favorable to the verdict, and an appellant no longer enjoys a presumption of innocence. This court determines whether the evidence is sufficient under the standard of Jackson v. Virginia and does not weigh the evidence or determine witness credibility. Conflicts in the evidence are for the jury to resolve.

(Citations omitted.) Payne v. State.

So viewed, the record shows that, on or about July 6, 1999, Horner, using his Stillwell alias checked into the Crest Motel in Cov-ington, Georgia, driving an old, beat-up Chevy Malibu. The clerk saw and spoke with Horner a number of times over the next few days. On July 15, 1999, the clerk saw Horner put the license plate from the Malibu on a red car, abandon the Malibu in the motel parking lot, and drive away. On that same day, Reba Landress reported to the Covington police that her 1989 red Toyota Corolla station wagon had been stolen about a half-mile from the Crest Motel.

Three days later, on July 18, 1999, a hit and run accident involving the 1989 red Toyota Corolla station wagon stolen in Covington occurred in Newnan, Georgia. The vehicle identification number matched that of the red Toyota. The license plate affixed to the Toyota was determined to belong to a 1983 Chevy registered in North Carolina. Two traffic citations issued to Ricky Wayne Stillwell, Horner’s alias, were found inside the red Toyota by Newnan police officers. The citations reflected that the tag found on the red Toyota had been on the 1983 Chevy at the time the tickets had been issued in South Carolina. That same day, about two miles from the scene of the hit and run accident, a 1985 blue Dodge Diplomat was reported stolen from a convenience store.

On July 27,1999, Horner failed to pay for his meal at the Golden Corral restaurant in Cordele, Georgia, and jumped into a blue car and drove away. The restaurant manager called police and gave them the blue car’s license plate number. Both Horner and the blue Dodge Diplomat were discovered at a local hotel. The tags matched the Dodge Diplomat stolen in Newnan. The police escorted Horner back to the restaurant, where both the manager and a waitress identified him, and he was arrested. Horner represented himself to be Ricky Stillwell to the police officers at this time. Numerous papers located in the blue Dodge bore the name Ricky Stillwell. Through further investigation, the police determined that the defendant was Norris Homer, and that Ricky Stillwell was an alias he used.

1. We first address Horner’s contention that the trial court erred in overmling his motion in limine to exclude proof of the Newnan auto theft because it was highly prejudicial to Homer, and because the theft was a similar transaction which required a hearing under Uniform Superior Court Rule 31.3, and its prejudice to the defendant outweighed its probative value. He further contends that the trial court gave no appropriate limiting instructions.

This argument is without merit, as the Newnan auto theft was not a similar transaction, but was, rather, a relevant part of Homer’s criminal scheme. In Igidi v. State, we held that “ ‘[t]he state is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial.’ ” Id. at 583 (1). The Newnan auto theft established a relevant link between Homer’s presence in Covington at the time of the crime and his ultimate arrest in Cordele.

The blue Dodge was stolen in Newnan near in time and place to the location where the red Toyota stolen in Covington was recovered; Horner was arrested after being observed driving away from the Cordele restaurant in the blue car; and documents bearing Homer’s alias were recovered in both the blue car and the Toyota. “ ‘Acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense.’ ” Stirrat v. State.

“Moreover, as this evidence was admissible as circumstances of the arrest and as part of a continuing criminal enterprise, it is not objectionable on grounds that it was a ‘similar transaction’ for which compliance with Superior Court rules ... is required.” Shakim v. State. In light of the foregoing, this enumeration of error is without merit.

2. Horner argues that the police incident reports of the Newnan hit and run incident and the theft of the blue Dodge and the police officer’s testimony about the Cordele restaurant waitress’s identification of Horner were inadmissible hearsay and had no probative value even if admitted without objection. While our Supreme Court has held that narrative portions of police reports are not admissible, police reports which do not contain narrative material may be admissible under the business record exception to hearsay. Brown v. State; Johnson v. State. The two Newnan reports contained no narrative portions and are admissible as an exception to the hearsay rule. In Holt v. State, we held that “ ‘[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection.’” Therefore, the Cordele officer’s testimony that the waitress identified the defendant as the man who failed to pay for his meal was also admissible under this exception to the hearsay rule. Contrary to Horner’s contentions, evidence which is admissible as an exception to the hearsay rule has probative value and may be relied upon to prove the fact asserted. Eubanks v. State; Moore v. State.

In any event, Horner never objected to any of the hearsay testimony and documents. “Issues which were not raised in the trial court cannot be raised for the first time on appeal.’ ” Mincey v. State. Moreover, even absent the hearsay evidence, there was sufficient evidence upon which the jury could find beyond a reasonable doubt that the defendant was the man known as Ricky Stillwell and was guilty of the offense charged.

3. Homer also asserts that, at his sentencing hearing, the trial court erred by considering two prior convictions from North Carolina because the records were not properly authenticated, they were incomplete because they did not include the indictments, and no showing was made of the validity of the guilty pleas therein. These records were served on defense counsel prior to the swearing-in of the jury.

Although Horner contends on appeal that the trial court improperly considered his prior convictions in imposing sentence, this objection was not raised at the sentencing hearing and was thereby waived. Moody v. State.

We note that this contention is without merit in any event. First, the records were adequately authenticated. “Our Code provides: ‘The certificate or attestation of any public officer . . . shall give sufficient validity or authenticity to any copy or transcript of any record, document, paper of file, or other matter or thing in his respective office, or pertaining thereto, to admit the same in evidence.’ . . . OCGA § 24-7-20.” (Emphasis omitted.) Whitlock v. State. In this case, the records identified the court, contained a filed and date stamp, certified that each record is “[a] true copy of the original filed in this office” under the signature of the clerk of superior court whose authority was indicated by the initials following the clerk’s signature, and contained the raised seal of the clerk. Accordingly, the North Carolina convictions were properly authenticated.

Horner, next, mistakenly asserts that Watson v. State requires the inclusion of the indictments before the convictions may be admitted. Watson is factually distinguishable. In Watson, the defendant sought to impeach his ex-wife by introducing a cocaine possession conviction. In order to conceal his own name, he redacted it from the indictment. The State challenged the admission of the conviction because the indictment was not a true and correct copy of the original. This Court held that under these circumstances, it was not an abuse of discretion for the trial court to require inclusion of the original indictment as a part of the record of conviction.

Lastly, Horner argues that the State had the burden of proving that the guilty plea, in one of the North Carolina convictions, was valid. In Rose v. State, our Supreme Court held that in admitting a prior guilty plea, the State has the burden of proving that the defendant was represented by counsel. Once shown, the defendant must then show any infringement of rights or procedural irregularities. Here, the North Carolina judgment presented at the sentencing hearing shows that Horner was represented by counsel at the entry of his guilty plea. This argument is without merit.

4. Horner contends that the admission of the booking photo was error, because it was irrelevant and so impermissibly suggestive that there was a substantial likelihood of mistaken identification in violation of the due process clause of the Fourteenth Amendment of the U. S. Constitution and Article I, Section I of the Georgia Constitution. At the trial, conducted approximately 14 months after the clerk of the Crest Motel in Covington had seen Horner, he was unable to positively identify him as the person he was testifying about because of his changed appearance. The clerk testified that although he was similar in height, Horner’s appearance was different at trial. Horner had grown a beard and a long ponytail and was heavier than at the time of the incident. He was also dressed completely differently. The clerk, who had vision difficulty, also testified that he had broken his glasses shortly before trial. The State then asked the trial court to allow the clerk to view the booking photograph of Horner made shortly after his arrest in Cordele. Defense counsel objected on the basis that the photograph, which was taken approximately two weeks after the clerk had seen Horner, put Horner’s character into evidence and its prejudicial effect outweighed its probative value. The court overruled the objection, and the clerk identified the person in the photograph.

The trial court did not err in admitting the photograph into evidence over Horner’s objection. “The photograph was relevant to identify appellant [Horner] and to show how he appeared at the time of the crime. . . . Since booking photographs have been held not to inject character into evidence because they do not suggest that the defendant has committed previous crimes, appellant [Horner] has failed to demonstrate how the admission of the photograph prejudiced him.” Rittenhouse v. State. See also Duckworth v. State (mug shot was crucial to compare with witness description of perpetrator); Pickett v. State (mug shot admissible to show the defendant looked different at the time of arrest).

Horner also asserts that allowing the clerk to use the booking photo for identification purposes was error because the single booking photo was impermissively suggestive. Horner waived this ground for objection since it was not raised at trial. “Enumerated errors which raise issues for the first time in a motion for new trial or on appeal present nothing for review.” Williamson v. Harvey Smith, Inc. See also Sharpe v. State.

Even had Horner not waived his rights as to this issue, this argument is without merit. We have held that a witness’s in-court identification of the actual person based on the witness’s personal observations of the defendant was not error even when a pre-trial identification had been excluded as suggestive. Gardner v. State. Here, the photographic identification was no more suggestive than any other in-court identification procedure when the defendant may be almost the only logical person in the courtroom from which to choose. Ralston v. State. In this case, the visually challenged witness was unlikely to make a positive in-court identification, particularly in light of the changes in Horner’s appearance. Further, “the occurrence of a one-on-one show-up, without more, does not necessarily require suppression of in-court identification. . . . The primary evil to be avoided is the ‘substantial likelihood of irreparable misidentification.’ ” Lindsey v. State.

In this case, there were a number of safeguards not present in pre-trial identifications. The clerk’s identification was conducted in the presence of counsel and the jury. Counsel had the opportunity to cross-examine the witness as to his identification, and the jurors could weigh the clerk’s credibility and view the photograph themselves to compare it with the actual defendant at trial to determine if Horner was the same man. Horner contends that the photograph is inadmissible, citing DeCastro v. State, a case which is factually distinguishable. In DeCastro, the photo admitted showed the defendant with wild dreadlocks. The trial court held it was prejudicial. The photo was not relevant to any issue in the case. Here, the defendant had grown long hair and a beard by the time of trial and made it difficult for the clerk to identify him with his changed look from the time of contact. Viewing the booking photograph which indisputably was Horner gave the clerk the opportunity to see the defendant as he had been at the time of their contact. Viewing the photograph also gave the jury the opportunity to assess for itself the physical changes in Horner from a time close to the point when he was seen by the clerk. Further, the motel clerk’s identification met several of the factors set out by the U. S. Supreme Court in Neil v. Biggers for evaluating the likelihood of misidentification: the witness had the opportunity over several days to view and speak with the defendant; his description of the defendant’s appearance was substantially accurate; and he was certain of his identification. Under these circumstances, the trial court did not err in admitting the photographic identification of Horner.

5. Horner enumerates as error the trial court’s denial of his motions for new trial and j.n.o.v. contending that the State’s evidence was insufficient as a matter of law to sustain appellant’s conviction without certain improperly admitted hearsay testimony and documents. We disagree.

Horner’s argument that the evidence was circumstantial and therefore was insufficient to warrant a conviction is without merit. This Court has held that

circumstantial evidence need not exclude every hypothesis of [Horner’s] guilt but only reasonable ones. If the evidence meets this test, circumstantial evidence is as probative as direct evidence. Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence, and where the jury is authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of guilt, this court will not disturb that finding unless the verdict of guilty is insupportable as a matter of law.

(Citation omitted.) Moore v. State. The verdict in this case was supported by the evidence. Given our rulings on the alleged errors in the admission of evidence, the evidence was sufficient under the standards of Jackson v. Virginia, supra, and this enumeration is without merit.

6. Horner asserts that his trial counsel provided ineffective assistance of counsel in failing to object to evidence admitted at trial, including prior convictions, police reports, hearsay testimony, and photographic identification. The two-prong test set out in Strickland v. Washington requires that Horner “show that (1) counsel’s performance was deficient and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency.” Jackson v. State.

The evidentiary issues, relating to the photographic identification, prior convictions, and police reports, have been addressed.in the previous Divisions, and we held that such objections were without merit. Further we found that the evidence in the case was sufficient to support Horner’s conviction. Ineffectiveness of trial counsel cannot be based on a failure to make meritless objections. Horner has failed to demonstrate error by the trial court in holding that trial counsel’s services were effective. We note that appellate counsel was not the counsel at trial.

Judgment affirmed.

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

Decided August 9, 2002.

John T. Strauss, for appellant.

W. Kendall Wynne, Jr., District Attorney, Alan A. Cook, Assistant District Attorney, for appellee.

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

        Payne v. State, 248 Ga. App. 158, 159 (1) (545 SE2d 336) (2001).

        Igidi v. State, 251 Ga. App. 581 (554 SE2d 773) (2001).

        Stirrat v. State, 226 Ga. App. 350, 353 (2) (b) (486 SE2d 640) (1997).

        Shakim v. State, 211 Ga. App. 199, 202 (3) (438 SE2d 673) (1993).

        Brown v. State, 274 Ga. 31, 33-34, n. 2 (549 SE2d 107) (2001).

        Johnson v. State, 247 Ga. App. 660, 663 (3) (544 SE2d 496) (2001).

        Holt v. State, 210 Ga. App. 81 (2) (435 SE2d 288) (1993).

        Eubanks v. State, 180 Ga. App. 355 (349 SE2d 244) (1986).

        Moore v. State, 154 Ga. App. 535, 538 (268 SE2d 706) (1980).

        Mincey v. State, 186 Ga. App. 839, 841 (4) (368 SE2d 796) (1988).

        Moody v. State, 206 Ga. App. 387, 391 (6) (425 SE2d 397) (1992).

        Whitlock v. State, 174 Ga. App. 5 (329 SE2d 286) (1985).

        Watson v. State, 230 Ga. App. 79, 81 (4) (495 SE2d 305) (1998).

       The judgment on the other conviction shows that Horner was convicted by a jury, rather than by entering a guilty plea.

        Rose v. State, 275 Ga. 214 (563 SE2d 865) (2002).

        Rittenhouse v. State, 272 Ga. 78, 79-80 (3) (526 SE2d 342) (2000).

        Duckworth v. State, 246 Ga. 631, 635 (6) (272 SE2d 332) (1980).

        Pickett v. State, 226 Ga. App. 743, 746 (2) (487 SE2d 653) (1997).

        Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 748 (2) (542 SE2d 151) (2000).

        Sharpe v. State, 272 Ga. 684, 689 (7) (531 SE2d 84) (2000).

        Gardner v. State, 263 Ga. 197,199 (6) (429 SE2d 657) (1993).

        Ralston v. State, 251 Ga. 682, 684 (2) (309 SE2d 135) (1983).

        Lindsey v. State, 182 Ga. App. 10, 13-14 (2) (354 SE2d 650) (1987).

        DeCastro v. State, 221 Ga. App. 83 (470 SE2d 748) (1996).

        Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

        Moore v. State, 242 Ga. App. 208, 210 (1) (529 SE2d 210) (2000).

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

        Jackson v. State, 248 Ga. App. 7, 10 (4) (545 SE2d 148) (2001).


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A1090.
    DIX v. KROGER COMPANY.
    (570 SE2d 89)
   Blackburn, Chief Judge.

In this slip and fall action, Willie Mae Dix appeals the trial court’s grant of summary judgment to the Kroger Company, contending that the trial court erred in finding no genuine issue of material fact as to whether Kroger had constructive knowledge of a grape on the floor. For the reasons discussed 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). 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.

Viewing the evidence in this light, the record shows that, on Sunday, July 12, 1998, Dix went into a Kroger store to purchase groceries. She walked through the produce department without making any selections and continued her shopping throughout the store. After completing the rest of her shopping, she returned to the produce department where she slipped and fell on a grape. As a result of her fall, she sustained serious injuries.

After her fall, Dix observed the remnants of a grape stuck to the side of her shoe. Dix testified that she did not know how long the grape had been on the floor before her fall. She also testified that she did not see any employees in the produce department at the time of her fall. She was accustomed to seeing employees cleaning the area on other occasions.

Lisa Knight, the manager on duty, testified that from her vantage point at the customer care counter, some 20-25 feet away, she saw the plaintiff fall. The fall occurred less than five minutes after a Kroger employee had purportedly walked the floor and inspected the premises. Knight and two other employees at the customer care counter had an unobstructed view of the area where the fall occurred. Knight testified that she was unsure whether she would have been able to see a grape on the floor, but that it was possible. Knight identified muscadine grapes on the floor near where Dix fell from photographs of the area, taken immediately after the incident. Knight was unsure of when or whether the maintenance clerk performed sweeping duties, and the store did not keep sweep cards. We have held recently that the adequacy of inspection and cleaning procedures is a jury question. Hall v. Bruno’s, Inc. See also Burnett v. Ingles Markets.

OCGA § 51-3-1 provides that where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.

In Robinson v. Kroger Co., our Supreme Court examined the history of Georgia “slip and fall” case law. It noted that following the 1980 decision in Alterman Foods v. Ligon, summary adjudications in “slip and fall” cases increased sharply. The Robinson court pointed out that “by routinely adjudicating as a matter of law questions of the plaintiffs and defendant’s negligence, proximate cause, and the exercise of ordinary care, these decisions have made commonplace what is, in reality, an unusual circumstance in tort law.” Robinson, supra at 739. The Court stated that “routine” issues of premises liability “are generally not susceptible of summary adjudication, and that summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Id. at 748.

To establish the defendant’s negligence, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the dangerous condition and (2) that the plaintiff lacked knowledge of the dangerous condition despite the exercise of ordinary care or was prevented from discovering it by the defendant. Robinson, supra.

Dix contends that there is a genuine issue of material fact as to whether Kroger had constructive knowledge of the dangerous condition in its store. Constructive knowledge may be established by evidence that: (1) an employee of Kroger was in the immediate vicinity and easily could have seen and removed the hazard or (2) the substance had been on the floor long enough that (a) it would have been discovered if Kroger had exercised reasonable care in inspecting its premises and (b) it would have been removed if Kroger had exercised reasonable care in inspecting and cleaning its premises. See, e.g., Matthews v. The Varsity; Lovins v. Kroger Co.

In McConnell v. Smith &c. Mgmt. Corp., we held that two employees, who were in the immediate vicinity and who were preoccupied cashiering and bagging, were physically capable of seeing the loose grape “had they looked.” Id. We distinguished these facts from Coffey v. Wal-Mart Stores (where the defendant’s employee did not have a reasonable opportunity to discover the clear, colorless substance) and Mitchell v. Food Giant (where the site of the plaintiff’s fall “was separated from the line of sight of the store employees by an aisle divider”).

Here, Knight has testified that she had an unobstructed view of the spot where Dix fell 20-25 feet away, and that two other employees had the same viewpoints. She testified that in the five-minute interval between the time of a store inspection and the incident, she noticed customers eating fruit near the front of the store. In view of her testimony of her observation of some customers eating fruit, her admission that she could have seen the muscadine, and her vantage point and proximity along with two other employees, a jury could conclude that Kroger had constructive knowledge of a dangerous condition. This is especially true given the fact that this incident occurred in the produce department where the majority of such incidents occur. The jury would also be free to consider whether or not Kroger was negligent in conducting its inspection and to determine the credibility of the witnesses.

As to the second prong of proof of constructive knowledge, we have held that an adequate inspection shortly before an incident may be sufficient to support a summary adjudication as a matter of law where there is no evidence of employees in the vicinity of the fall or other evidence creating a fact issue. See, e.g., Coffey, supra; Lee v. Food Lion; Roberson v. Winn-Dixie Atlanta. Here, the manager and two other employees were in the immediate vicinity and could easily have removed the hazard had they seen it. This creates an issue of material fact which must be resolved by a jury. McCullough v. Kroger Co.

Decided August 9, 2002

John C. Tyler, for appellant.

Carlock, Copeland, Semler & Stair, Douglas A. Wilde, Ryan B. Wilhelm, for appellee.

The trial court erred in granting Kroger’s motion for summary judgment.

Judgment reversed.

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

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

        Hall v. Bruno’s, Inc., 253 Ga. App. 739 (560 SE2d 326) (2002).

        Burnett v. Ingles Markets, 236 Ga. App. 865 (514 SE2d 65) (1999).

        Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997).

        Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

        Matthews v. The Varsity, 248 Ga. App. 512, 513 (546 SE2d 878) (2001).

        Lovins v. Kroger Co., 236 Ga. App. 585, 586 (512 SE2d 2) (1999).

        McConnell v. Smith &c. Mgmt. Corp., 233 Ga. App. 447, 448 (1) (504 SE2d 526) (1998).

        Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 828 (2) (482 SE2d 720) (1997).

        Mitchell v. Food Giant, 176 Ga. App. 705 (337 SE2d 353) (1985).

        Lee v. Food Lion, 243 Ga. App. 819, 822 (534 SE2d 507) (2000).

        Roberson v. Winn-Dixie Atlanta, 247 Ga. App. 825, 826 (544 SE2d 494) (2001).

        McCullough v. Kroger Co., 231 Ga. App. 453, 454 (498 SE2d 594) (1998).


author: Miller, Judge.

text:
    A02A1127.
    In the Interest of Q. M. L., a child.
    (570 SE2d 92)
   Miller, Judge.

Fourteen-year-old Q. M. L. admitted that she stabbed a schoolmate with a knife but claimed she did so in self-defense. Evidence showed that the weaponless victim hit Q. M. L. from behind while Q. M. L. sat in the school bus, in response to which Q. M. L. elbowed the victim, stood up, turned around, and stabbed the victim with a knife that she had hidden in her school bus seat. The question on appeal is whether this evidence sufficed to sustain the juvenile court’s finding that Q. M. L. without justification committed aggravated assault, leading to the court’s adjudication of delinquency. We hold that the evidence supports the finding, and we therefore affirm.

Construed in favor of the juvenile court’s ruling, the evidence showed that Q. M. L. and the victim had a history of confrontation. Q. M. L. heard from others that the victim intended to fight and possibly stab Q. M. L. on a particular day, and therefore Q. M. L. secreted a knife between her school bus seat cushions on the morning of that day. On the way home on the school bus, the victim, who had no weapon, approached Q. M. L. from behind and hit her. Q. M. L. elbowed the victim, knocking her onto a boy. The boy pushed the victim off him. Q. M. L. stood up, turned around, and — even though she saw no weapon on the victim — stabbed the victim in the stomach area (piercing her liver) with the knife retrieved from the seat cushions. Q. M. L. tried to stab the victim again, but the victim grabbed and held the knife away. Others then held Q. M. L., who said that she wanted to be let go so that she could “kill” the victim. The confrontation ended, with the victim unconscious and bleeding.

Q. M. L. was charged with aggravated assault and with carrying a weapon on a school bus. She pled self-defense, claiming that she believed the victim had a knife because of the victim’s arm position at the time of the incident and because of the pre-incident rumors about the victim intending to stab Q. M. L. The court found otherwise, noting that.Q. M. L. saw no weapon when she turned around before stabbing the victim. Adjudicated delinquent, Q. M. L. appeals on the grounds that the weight of the evidence was against the court’s finding, that the court misapplied the law of self-defense, and that the evidence was insufficient to sustain the court’s findings.

1. Q. M. L. claims that the adjudication was strongly against the weight of the evidence. “However, this Court determines only the sufficiency of evidence, not its weight. [Cit.]” In the Interest of R. L. W., 225 Ga. App. 253, 254 (1) (483 SE2d 361) (1997).

2. The next two enumerations focus on the sufficiency of the evidence to sustain the court’s finding that Q. M. L. used excessive force in defending herself. As there was evidence to support the court’s findings, we sustain its judgment.

“In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.” (Citations and punctuation omitted.) In the Interest of T. T., 236 Ga. App. 46 (1) (510 SE2d 901) (1999). Conceding the essential elements of the charged crimes, Q. M. L. admitted that she brought a knife onto a school bus and that she used that knife to stab the victim. See OCGA §§ 16-5-21 (a) (2); 16-11-127.1 (b). Thus, her only defense to the charge of aggravated assault was one of justification under OCGA § 16-3-21 (a), which provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

Evidence showed that Q. M. L.’s use of the knife to stab the victim was intended or likely to cause death or great bodily harm. Thus, the use of the knife was justified only if Q. M. L. reasonably believed such was necessary to prevent imminent death or great bodily injury to herself. See Coley v. State, 201 Ga. App. 722 (1) (411 SE2d 804) (1991). Furthermore, her attack would not have been justified “if the degree of force used . . . exceed [ed] that which a reasonable person would believe necessary to defend against the victim’s unlawful actions. [Cits.]” Harris v. State, 274 Ga. 422, 423 (1) (554 SE2d 458) (2001); see Clark v. State, 271 Ga. 27, 29 (2) (518 SE2d 117) (1999). Where the defendant presents evidence of justification, the State bears the burden of disproving the defense, which is a question for the trier of fact to resolve. Hall v. State, 235 Ga. App. 44-45 (1) (508 SE2d 703) (1998). This depends greatly on the credibility of the witnesses and on whether the circumstances would excite the fears of a reasonable person that she had to use deadly force to prevent the use of deadly force against her. Young v. State, 272 Ga. 17, 18-19 (524 SE2d 233) (2000). The factfinder may believe or disregard parts or all of the defendant’s testimony. Blackford v. State, 251 Ga. App. 324, 325-326 (1) (554 SE2d 290) (2001).

Decided August 9, 2002.

Valerie Brown-Williams, for appellant.

Ample evidence supported a finding by the trier of fact that a reasonable person would not have believed that deadly force from the victim was imminent. Although struck from behind with the victim’s hands, Q. M. L. immediately repelled the attack by elbowing the victim and causing her to fall onto a nearby student. Q. M. L. was not attacked with a knife or any other weapon. Q. M. L. then stood up and turned around to face the victim, so she could see that the victim had no weapon, which dispelled the rumors of an anticipated knife attack from the victim. The trier of fact was authorized to conclude that Q. M. L.’s belief that her life was in danger was a mere unreasonable apprehension or suspicion of harm, which is insufficient to justify use of deadly force. See Young v. State, 160 Ga. App. 51-52 (286 SE2d 54) (1981). Other evidence supporting a finding that Q. M. L. was not acting to fend off a deadly attack or was acting unreasonably was that she continued to attempt to stab the victim after the initial stab to the victim’s stomach (see Harris, supra, 274 Ga. at 423 (1) (multiple stabbings show excessive force)) and that she struggled to be released from those holding her so she could “kill” the victim — even though she was not being attacked by the victim at that time.

Thus, the juvenile court did not err or misapply the law when it found in light of this evidence that Q. M. L. used excessive force in turning around and stabbing the victim without Q. M. L. ever seeing a weapon. The court as factfinder was authorized to find that being struck by another’s fists does not justify using a knife to stab that person. See In the Interest of A. M., 248 Ga. App. 241, 242 (1) (545 SE2d 688) (2001).

Judgment affirmed.

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

Kenneth B. Hodges III, District Attorney, Heidi M. Silcox, Assistant District Attorney, for appellee.


text:
    A02A1209.
    PARKS v. THE STATE.
    (570 SE2d 350)
   Miller, Judge.

Antavious Parks challenges his conviction for armed robbery on two grounds: the evidence was insufficient, and the court erred in allowing the jury to rehear certain testimony. Since the victim identified Parks as the robber, and since Georgia has long allowed juries to rehear certain testimony, both grounds fail. Therefore, we affirm.

1. “On appeal of a criminal conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation and punctuation omitted.) Jenkins v. State, 230 Ga. App. 166, 169 (2) (495 SE2d 647) (1998); see Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). OCGA § 16-8-41 (a) provides that a person commits armed robbery when he with the intent to steal takes another’s property from the person by use of an offensive weapon.

Construed in favor of the prosecution, the evidence showed that the victim had just pulled into the parking lot of his employer when a man pointed a gun at him and demanded his wallet. The victim gave up the wallet (which contained a credit card), and the robber also reached into the victim’s vehicle and took the victim’s car keys and checkbook. The robber escaped on foot.

At trial, the victim positively identified Parks as the robber. The victim’s employer also identified Parks to police from a photo array as the man who was around the business at the time of the robbery. Parks’s brother testified that Parks confessed to the robbery to him, and a girlfriend of the brother testified that within hours after the robbery, Parks tried to use the victim’s credit card in a shopping trip.

Parks challenges the veracity of the victim’s identification. “The determination of a witnesses] credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury.” (Citation and punctuation omitted.) Jenkins, supra, 230 Ga. App. at 169 (2). This Court neither weighs the evidence nor determines witness credibility. Id. The jury resolves any conflicts in the evidence. Jaber v. State, 243 Ga. App. 562, 563 (533 SE2d 767) (2000). “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

Moreover, béyond the victim’s identification, Parks’s confession, his presence near the crime scene, and his possession of the credit card were evidence of guilt. The evidence sufficed to sustain the armed robbery conviction.

Decided August 9, 2002.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Troy E. Golden, Assistant District Attorney, for appellee.

2. Parks also complains that in response to their question during deliberations, the jury was allowed to rehear the contents of Parks’s statement to police. He claims that the evidence was closed and that the reading of his statement unduly prejudiced the jury. This argument is without merit.

During trial, an officer testified about the contents of a written statement Parks made to him. In the statement, Parks admitted to the shopping trip with his brother’s girlfriend. Though admitted, the written statement was not allowed in the jury room. During their deliberations, the jury requested that they be allowed to see the written statement. The judge reread the statement to the jury but did not allow them to have the statement.

The trial court did not err. “It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.” (Citation and punctuation omitted.) Nobles v. State, 233 Ga. App. 63, 65 (4) (503 SE2d 321) (1998). As in Nobles, the judge here cautioned the jury not to accord the rereading of the testimony any special weight or importance. Id. And as in Nobles, we discern no error. Id.

Judgment affirmed.

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


text:
    A02A1327.
    VESTER v. BANKS.
    (570 SE2d 586)
   Miller, Judge.

Banks (a developer) recorded covenants and restrictions relating to a subdivision, one of which prohibited the construction of “modular” homes. After the covenants were filed, Vester purchased a lot in the subdivision from his ex-wife. Vester then purchased a “manufactured home” from Tomorrow Homes and began construction on the lot. He poured the foundation of the basement and had a flatbed trailer parked on the street, on which lay the prefabricated units to be used to construct the house.

A neighborhood restrictive covenant prohibited the construction of “modular” homes. One landowner poured a concrete basement and foundation and had preconstructed units or segments such as finished walls or rooms trucked in on trailers to be placed on top of the foundation and attached. We hold that the restrictive covenant is not unenforceably vague and that it prohibited the construction of the prefabricated home brought in on the trailers. Accordingly, we affirm the trial court’s injunction enjoining construction of the home.

On July 7, 2001, Banks filed an action against Vester for violation of the restrictive covenants. The court issued a temporary restraining order against Vester, enjoining farther construction of the structure. At the interlocutory injunction hearing, Vester claimed that his home was an industrialized building, not a modular home. He testified that the salesman at Tomorrow Homes told him that the home was not “modular” but was a “systems built” home and legally defined as “industrialized housing.” However, the trial court held that the language of the covenants prohibiting “modular homes” from the subdivision included “industrialized buildings,” and specifically included Vester’s home. Vester appeals the grant of the interlocutory injunction, contending that “modular” is unenforceably vague and in any case does not include industrialized buildings.

OCGA § 8-2-111 (3) describes an industrial building as “any structure or component thereof which is wholly or in substantial part made, fabricated, formed, or assembled in manufacturing facilities for installation or assembly and installation on a building site. . . .” Hill v. Duncan, 249 Ga. App. 342 (548 SE2d 83) (2001), used the two terms “modular” and “industrialized” interchangeably to refer to a prefabricated structure similar to that being constructed here. The developer had a restrictive covenant against “mobile homes” and tried to use it to prohibit the home from being constructed. The court held that the prefabricated modular home was “industrial,” not mobile, and was therefore not prohibited by the covenant. Attorney General Opinion 84-4 similarly makes the distinction between “mobile homes” and “modular or industrialized homes,” indicating that Part 1 (OCGA §§ 8-2-110 through 8-2-119) deals with “manufactured or modular” and that Part 2 (OCGA §§ 8-2-130 through 8-2-143) has been limited to “mobile.”

Vester asserts that the term “modular” is vague and ambiguous and therefore unenforceable. The dictionary defines “module” as “any of a set of units to be variously fitted together. . . .” Webster’s New World Dictionary (3rd ed. 1990), p. 380. In the building context, therefore, a modular home consists of a number of prefabricated units, to be fitted together.

Enforcing similar restrictive covenants, other states have applied the same definition. In Arnoti v. Lukie, 350 S.C. 177 (564 SE2d 691) (App. 2002), for example, the court held that the home being constructed was a “modular” home and was therefore prohibited by the neighborhood’s restrictive covenant. Id. at 180. Similar to Banks’s covenant, the covenant in Arnoti prohibited “modular homes or mobile homes.” Id. at 178. Arnoti defined “modular” as a structure “built elsewhere and then transported to the owner’s lot, where it is installed on top of a foundation that is poured at the home site.” Id. at 179, n. 1.

We hold that similar to an industrialized building, a modular home is a factory-fabricated, transportable structure, consisting of units that are brought in on a trailer, to be constructed on top of a permanent foundation at the site for residential use. This is not so vague or indefinite as to be unenforceable. See White v. Legodais, 249 Ga. 849-850 (1) (295 SE2d 99) (1982). Since Vester’s home unquestionably meets this description, the restrictive covenants prohibit it, and the trial court did not err in enjoining Vester from constructing the house.

Judgment affirmed.

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

Appendix.

City of Ashburn Code of Ordinances, Appendix A Zoning, §§ 2-22A; 2-29A; Athens-Clarke City and County Code of Ordinances § 9-2-1; Camden County Code of Ordinance, Appendix B Zoning Ordinance, § 302 (37); Clarkston City Code of Ordinances, Appendix A Zoning, Article III; Cobb County Code of Ordinances § 134-1; Dalton City Code of Ordinances §§ 70-1; 70-4; DeKalb County Code of Ordinances § 27-31; Fayetteville City Code of Ordinances § 94-3 (c); Forest Park City Code of Ordinances § 8-8-2 (25) (c); Fulton County Code of Ordinances, Appendix B Zoning Resolution, § 3.3.13 (M); Garden City Code of Ordinances § 90-5 (b); Hall County Code of Ordinances § 17.20.750; Jonesboro City Code of Ordinances § 86-1 (b); Kennesaw City Code of Ordinances, Appendix A Zoning, §§ 410.89; 410.90; Lee County Code of Ordinances § 42-4; Marietta City Code of Ordinances, Zoning Ordinance, § 724.02; Norcross City Code of Ordinances § 106.5; Putnam County Code of Ordinances § 66-4 (c); Sandersville City Code of Ordinances § 8-3-5 (9); Smyrna City Code of Ordinances, Appendix A Zoning, § 402.45; Snellville City Code of Ordinances, Appendix B Zoning Ordinance, § 6.2; Spalding County Code of Ordinances, Appendix IV Zoning, § 203 (z); St. Marys City Code of Ordinances § 110-8 (b); Sumter County Code of Ordinances § 42-31; Suwanee City Code of Ordinances, Appendix A Zoning, Article III; Sylvania City Code of Ordinances, Appendix B, § 8-3002-2; Warner Robins City Code of Ordinances, Appendix Z Zoning Ordinance, § 32.64.

Decided August 9, 2002

Donald W. Huskins, for appellant.

Rich & Smith, Randolph G. Rich, for appellee.

       Attorney General Opinion 84-4 also states “that Congress also intended [a] review of these units under the state industrialized building or modular home statutes.”

       We cannot take judicial notice of city or county ordinances, see Childers v. Richmond County, 266 Ga. 276, 277 (467 SE2d 176) (1996), but we do acknowledge that numerous such ordinances in Georgia frequently use and define the term “modular homes” as a factory-fabricated, transportable structure, consisting of units designed to be incorporated at a building site on a permanent foundation into a structure to be used for residential purposes. See Appendix. Although this acknowledgment is not a basis for our decision, neither is it inconsistent therewith.

       See Carr v. Michael Motors, 210 W. Va. 240, 246 (557 SE2d 294) (2001) (citing the National Manufactured Housing Construction and Safety Standards Act of 1974, the court states that a two-story single-family dwelling assembled from segments transported on trailers was a “modular” home); Howell v. Hawk, 750 NE2d 452 (Ind. App. 2001) (stating that the prefabricated house, which was identical in appearance to other homes in the subdivision and had a permanent foundation, was still a “modular” or “manufactured” home); Briggs v. Rankin, 127 N.C. App. 477, 480-481 (491 SE2d 234) (1997) (setting out five factors to determine what type of home exists: (1) the consistency with HUD’s national regulations, or with the Building Code; (2) whether the structure is attached to a permanent foundation; (3) whether, after constructed, the structure can easily be moved or has to be moved like a site-built home; (4) whether title to the home is registered with the Department of Motor Vehicles; and (5) how the structure is delivered to the home site).


text:
    A02A1513.
    BROWN v. THE STATE.
    (570 SE2d 349)
   Miller, Judge.

Laticia Brown pled guilty to armed robbery and was sentenced to 11 years. Acting pro se, she now appeals, claiming (1) her attorney and the judge coerced her into the plea, (2) she did not enter-the plea with an understanding of the consequences, and (3) the sentence was excessive and harsh. Discerning no error, we affirm.

1. Brown cites to no evidence in the record demonstrating coercion. To the contrary, the record reflects that the court was careful to establish, by thoroughly questioning Brown, that she was not coerced in any way into entering the plea and that she was satisfied with her attorney. Brown’s argument that the judge and her attorney threatened her with other charges if she did not plead guilty is not supported by the record. The judge merely explained that under the proposed plea, the State would be nolle prossing six of the seven counts for which Brown had been indicted, with only the armed robbery count surviving. The judge further explained that the decision whether this was acceptable was completely up to Brown. No threats of additional charges, implied or express, were made.

Decided August 9, 2002.

Laticia Brown, pro se.

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

2. Brown claims that she did not enter the plea voluntarily in that she did not understand the nature of the charge and the consequences of the plea. Once again, Brown cites to no evidence in the record that supports this assertion. Indeed, the record reflects otherwise, for the prosecutor explained to Brown on the record the nature and circumstances of the armed robbery charge, and the judge twice set forth the consequences (including potential sentences) of pleading guilty. Brown affirmed on the record that she was entering the plea freely and voluntarily with a full understanding of the circumstances.

3. The sentence of 11 years fell within the statutory limits set forth in OCGA § 16-8-41 (b) for armed robbery. “We will not review for legal error any sentence which is within the statutory limits.” (Citations and punctuation omitted.) Brown v. State, 242 Ga. App. 347, 350 (3) (529 SE2d 650) (2000).

Judgment affirmed.

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


text:
    A02A1821.
    JOHNSON v. THE STATE.
    (570 SE2d 344)
   Blackburn, Chief Judge.

Patrick Johnson appeals his conviction by a jury of aggravated child molestation, aggravated sexual battery, and two counts of child molestation. He contends that his trial counsel’s failure to put his Sunday work schedule records into evidence rendered his assistance ineffective. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that C. H., a nine-year-old girl, told her biological father, Bel-ton, that Johnson,'her stepfather, had put his finger and penis in her anus. On more than one occasion, when her mother was not at home, C. H. was told by Johnson to go upstairs to the bedroom, take her clothes off, and get in bed. After that, Johnson inserted his finger and penis into her anus causing her pain. Later, C. H. found a wet place on her leg, cleaned herself, and went back downstairs to watch television. The physician who examined the child found that her passive and immodest behavior during the examination was consistent with molestation.

In investigation and preparation of the case, Johnson’s trial counsel examined witnesses’ statements and official reports, reviewed the victim’s videotape with the defendant, and met with the defendant several times to discuss trial strategies, his right to testify or remain silent, plea negotiations, and jury selection. He also discussed the case with the defendant’s wife.

“ ‘To establish a claim of ineffective assistance of counsel, [Johnson] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency.’ ” Willingham v. State, citing Strickland v. Washington. “ ‘[T]here is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment.’ ” Craft v. State. Moreover, “[a] trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” Garrett v. State.

1. Johnson argues that trial counsel’s representation was deficient because he failed to present testimony essential to show that Belton, the biological father, had a motive to contrive allegations of abuse against Johnson. At the hearing on his motion for new trial, Johnson presented the testimony of William Jenkins, an attorney formerly employed by his wife. Jenkins stated that there were problems between Belton and Johnson’s wife concerning visitation and support of the victim, and that Belton was antagonistic toward Johnson’s wife. The trial court held that Jenkins’ testimony was cumulative, and we agree. See Pilcher v. State (holding that defense counsel’s failure to subpoena additional alibi witnesses was not ineffective assistance of counsel because it was merely cumulative of testimony of other witnesses introduced at trial).

Johnson relies upon Lee v. State and Humphrey v. State to argue that Jenkins’ evidence was not cumulative. Those two cases are factually distinguishable. The issue on appeal in those cases was not ineffective assistance of counsel, but newly discovered evidence.

In Green v. State, a sexual battery case, we held that the trial court did not err in excluding the testimony of a witness about the victim’s relationship with her fiancé since the evidence was cumulative of testimony by the victim, fiancé, and defendant. Trial counsel’s failure to present cumulative evidence was trial strategy and does not constitute ineffective assistance.

Johnson’s reliance on Banks v. State is misplaced. In Banks, the testimony of a passing motorist provided the only corroboration of the defendant’s statement to police. Here, however, Johnson was not the only witness that testified about the nature of the relationship between the victim’s father and Johnson and his wife. Defense counsel’s direct examination of Johnson’s wife was corroborative, showing a history of litigation over support and visitation. On cross-examination, Belton testified that there had been problems between him and the mother, and that there had been litigation involving the victim. Jenkins’ testimony was not distinctively different from that of the other witnesses and parties. Therefore, Jenkins’ testimony was cumulative and not of a higher grade or quality than evidence that was produced at trial. See Lee, supra. Moreover, “a trial court is authorized to find the decision not to call certain individuals as witnesses a reasonable defense strategy.” Webb v. State. Johnson has failed to meet his burden in proving this aspect of his claim of ineffective assistance of counsel.

2. Johnson further asserts that trial counsel was ineffective because of his failure to introduce his work records at trial. He contends that the records showed that he was working during the time the alleged abuse occurred. The child was asked, at trial, where her mother was when the abuse occurred, and she replied, “I think she was at church.” During the hearing on the motion for new trial, Johnson produced time sheets from his workplace to show he had been at work from 10:00 a.m. each Sunday to 9:00 a.m. Monday during the months when the abuse was alleged to have occurred. He testified that his attorney was aware of his Sunday work schedule. Viewing the evidence in a light most favorable to support the verdict, the record shows that Johnson’s wife testified that Johnson had been alone with the children at least a few times while she was at church or at the store. Further, she stated that she did not attend church every Sunday and that, occasionally, on Saturdays, she left the children alone with Johnson.

Trial counsel testified that he knew of Johnson’s job, but had not inquired about the exact hours, relying on the statements of Johnson and his wife that on at least a few occasions, Johnson had been alone with the children. Some of these occasions were on a Sunday. Moreover, on the videotape, the victim stated that the abuse occurred either when her mother was at church or at the store.

Decided August 9, 2002

August F. Siemon III, for appellant.

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

We have held that trial counsel did not render ineffective assistance by failing to present an alibi witness where the witness’ testimony would not have provided an airtight alibi. See Jackson v. State; Johnson v. State Here, the work records would not have constituted an “airtight” alibi. The videotape of the victim and the admissions of Johnson and his wife establish that there was an opportunity, on at least a few occasions, for the offenses to have occurred as charged. Accordingly, Johnson has not carried his burden of showing that the result of the trial would have been different had trial counsel introduced the time sheet documénts, or that the assistance of counsel was ineffective.

Judgment affirmed.

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

        Willingham v. State, 241 Ga. App. 509 (2) (527 SE2d 232) (1999).

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

        Craft v. State, 254 Ga. App. 511, 520-521 (13) (563 SE2d 472) (2002).

        Garrett v. State, 196 Ga. App. 872, 874 (1) (397 SE2d 205) (1990).

        Pilcher v. State, 170 Ga. App. 869, 871 (4) (318 SE2d 640) (1984).

        Lee v. State, 146 Ga. App. 189,193 (III) (245 SE2d 878) (1978).

        Humphrey v. State, 207 Ga. App. 472, 474 (1) (428 SE2d 362) (1993).

        Green v. State, 218 Ga. App. 648, 650 (2) (463 SE2d 133) (1995).

        Banks v. State, 235 Ga. 121 (218 SE2d 851) (1975).

        Webb v. State, 249 Ga. App. 214, 216-217 (2) (547 SE2d 767) (2001).

        Jackson v. State, 209 Ga. App. 217, 221 (7) (433 SE2d 655) (1993).

        Johnson v. State, 255 Ga. App. 721, 725 (4) (566 SE2d 440) (2002).


author: Phipps, Judge.

text:
    A02A1182.
    SMITH v. DEPARTMENT OF HUMAN RESOURCES et al.
    (570 SE2d 337)
   Phipps, Judge.

Lawanda Smith owned and operated an assisted living facility primarily for Medicaid recipients enrolled in a state and federally funded program known as the “Community Care Services Program” (CCSP). Following an anonymous complaint of inadequate heating and food at the facility, the Georgia Department of Human Resources (DHR) issued a directive immediately relocating all CCSP residents, and the Georgia Department of Medical Assistance (DMA) terminated Smith’s Medicaid provider status. The directive, however, was later rescinded.

Both individually and through her corporation, Smith then sued DHR, DMA, the private case manager responsible for relocating the facility’s residents, and an employee of the case manager. Smith’s primary claim is that DHR knew that the complaint of inadequate heat and food was false and unfounded, but used it as a pretext to relocate the residents in a malicious, racially motivated, and successful effort to destroy her business. Smith also complains that the government agencies implemented the decision to relocate the residents without giving her an opportunity to appeal, thereby violating her due process rights and committing a breach of contract. In addition, Smith seeks damages for a variety of torts she claims the defendants committed in their efforts to relocate the residents. By an amendment to her complaint, she invoked the Georgia Tort Claims Act (GTCA).

The trial court awarded summary judgment to the case manager and its employee on the ground that the case manager was an independent contractor doing business with the State and, therefore, not subject to being sued under the GTCA. The court dismissed Smith’s tort claims against DHR and DMA on grounds that they have immunity from suit under the GTCA. The court awarded summary judgment to DHR and DMA on Smith’s breach of contract and due process claims, finding that Smith was notified of and waived her appeal rights. We conclude that the trial court erred in granting summary judgment to the case manager and its employee under the GTCA, that the court also erred in dismissing Smith’s due process and breach of contract claims against DHR and DMA, but that the court did not err in awarding summary judgment to the latter defendants on Smith’s tort claims.

DHR operates the CCSP through its Division of Aging Services (DAS). The CCSP provides monies and services to assist in placing Medicaid recipients in community-based “personal care homes” rather than nursing homes. The CCSP is administered by private nonprofit agencies known as regional development centers, which contract with DAS. The regional development centers in turn subcontract with private for-profit case managers, who place and monitor the elderly in the homes.

In order to be a CCSP service provider, a facility must be licensed as a personal care home and certified as an authorized Medicaid provider. When those conditions are met, DMA issues a Medicaid provider number to the facility operator. If the facility is found not to be in compliance with any applicable rules or regulations, DHR may recommend that the provider number be withdrawn, and the provider’s license may be suspended. Also if DHR receives information that CCSP personal care home residents may be at risk of harm, it may recommend that they be relocated to other facilities.

The Medicaid participation agreement between DHR and providers such as Smith incorporates a policies and procedures manual that requires DHR to give written notice of its intent to suspend or terminate a provider’s participation in the Medicaid program. The provider is then given a right of administrative appeal. A request for appeal must be submitted to DHR within 20 days of the date of the notice proposing the adverse action, but this period may be shortened through written notice by the department when it determines that endangerment of health, safety, or welfare would otherwise result.

As an initial matter, the manual gives the Medicaid provider “the right to submit documents and written argument” when requesting an administrative appeal of proposed action by DHR to terminate the provider’s participation in the Medicaid program. The manual later states, however, that failure to submit documents and written argument along with the request for appeal “shall constitute a waiver by the provider of any and all further appeal rights.”

DHR sent Smith a letter dated January 30, 1998, informing her that due to failure to correct serious regulatory violations found at her facility, it would instruct CCSP personnel to relocate all their clients and would recommend that Smith’s Medicaid provider status be terminated. The letter informed Smith of requirements that “[t]o oppose/appeal this action a written request for administrative review must be received by [DAS] within 15 days of receipt of this notice” and that “[t]he request must be accompanied by any supporting documentation you wish [DAS] to consider.”

On February 16, caseworkers employed by the defendant case manager investigated Smith’s facility after an anonymous telephone caller complained to the regional development center of inadequate heat and food in the facility. The caseworkers conducting that investigation have testified by affidavit that they accurately reported to DHR that the investigation, found the complaint unfounded. Nonetheless, DHR sent Smith another letter dated February 17 informing her that it had ordered the immediate relocation of all of her CCSP clients to another facility. The reason given was that the residents were at risk due to current conditions in the facility, such as insufficient heat and food.

On February 17, Smith submitted a written request for administrative review of the department’s decision. DHR responded with a letter dated February 19 informing Smith that her request for administrative review was denied “because you failed to submit any supporting documentation for further consideration.”

1. Smith first contends that the trial court erred in awarding summary judgment to the case manager and its employee.

The court’s ruling was premised on the ground that Smith is seeking to hold these defendants liable as joint tortfeasors with the state agencies. The trial court reasoned that the case manager is an independent contractor doing business with the state and, as such, is specifically excluded from coverage under the GTCA. We cannot agree with the trial court’s reasoning or ruling.

Although Smith invoked the GTCA in her pleadings, her tort claims against the case manager and its employee are not affected by operation of this statute. Through the GTCA, the state has enacted a waiver of sovereign immunity for the torts of state officers and employees while acting within the scope of their official duties or employment. But the waiver is limited, as the GTCA provides for numerous exceptions to state tort liability. Moreover, the GTCA immunizes the state officer or employee from tort liability by requiring the government entity for which the officer or employee was acting to be named as the party defendant.

That the case manager and its employee do not fall within the coverage of the GTCA, therefore, simply means that the tort claims against them rest on the same footing as do similar claims against any other nongovernmental defendants. In other words, the GTCA provides a shield to the government agencies, but not to the case manager and its employee. As a result, the court erred in awarding summary judgment to the latter two defendants under the GTCA.

2. Smith contends that DHR and DMA are entitled neither to a dismissal nor to summary judgment.

(a) We agree that the trial court erred in awarding summary judgment to the state agencies on Smith’s breach of contract and due process claims.

In so ruling, the trial court found that Smith was notified of her right to appeal and waived it by failing to comply with the requirement of the policies and procedures manual that documentation and written argument be submitted in support of a request for appeal. We find material questions of fact on the waiver issue. DHR’s January 30 letter to Smith was worded in such a way as to indicate that the submission of supporting documentation was optional. The next written communication to Smith was the February 17 letter, which contained no mention of her right of appeal. Then, in the February 19 letter, DHR informed Smith that her request for administrative review had been denied because she failed to comply with the mandatory requirement to submit supporting documentation. Under these facts, a jury could find that any waiver by Smith of her appeal rights was tainted by misleading communications sent to her by DHR.

Decided May 30, 2002

Reconsideration denied August 14, 2002.

Leonard Danley, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Jennifer L. Dalton, Assistant Attorney General, Dock H. Davis, for appellees.

(b) DHR and DMA seek immunity from Smith’s state tort claims under two exceptions set forth in the GTCA.

One exception provides that the state shall have no liability for losses resulting from: “[inspection powers or functions, including failure to make an inspection or making an inadequate or negligent inspection of any property other than property owned by the state to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety.” The other exception immunizes the state from liability for losses resulting from: “licensing powers or functions, including, but not limited to, the issuance, denial, suspension, or revocation of or the failure or refusal to issue, deny, suspend, or revoke any permit, license, certificate, approval, order, or similar authorization.”

Clearly, the latter provision exempts the state from liability for losses sustained by Smith as a result of revocation of her approval as a Medicaid provider. Because removal of the CCSP residents from Smith’s facility constituted action by the DHR in enforcement of its decision to revoke Smith’s Medicaid authorization, the state cannot be held liable in tort for DHR’s action in this regard. Consequently, summary judgment was properly entered in favor of the state agencies on Smith’s tort claims.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Mikell, J., concur.

       See Case v. Weinberger, 523 F2d 602, 606 (2nd Cir. 1975) (Medicaid service provider entitled to due process, i.e., notice and an opportunity to be heard, before being terminated as Medicaid provider); Washington Nursing Center v. Quern, 442 FSupp. 23, 26 (S.D. Ill. 1977) (same).

       See ABC Home Health Svcs. v. Ga. Dept. of Med. Assistance, 211 Ga. App. 461, 463 (439 SE2d 696) (1993) (recognizing existence of contractual relationship between DMA and Medicaid service provider under Georgia’s Medicaid program).

       OCGA § 50-21-20 et seq.

       OCGA § 50-21-22 (7) (excluding an “independent contractor doing business with the state” from the definition of the term “state officer or employee”).

       OCGA § 50-21-23 (a).

       OCGA § 50-21-24 (1) through (13).

       OCGA § 50-21-25.

       OCGA § 50-21-24 (8).

       OCGA § 50-21-24 (9).


author: Ruffin, Judge.

text:
    A02A0843.
    GIBBS v. THE STATE.
    (570 SE2d 360)
   Ruffin, Judge.

A jury found Bennie Frank Gibbs guilty of voluntary manslaughter. On appeal, Gibbs challenges the sufficiency of the evidence. Gibbs also asserts that the trial court erred in charging the jury. For reasons that follow, we affirm.

1. On appeal from a criminal conviction, we construe the evidence in the light most favorable to support the jury’s verdict. So viewed, the evidence shows that in the early morning of June 30, 1999, Gibbs drove a company truck to pick up his co-workers, George Jackson, Charlie Gibbs, Monroe Fair, and Walter Battle. Battle entered the truck, carrying a can of ravioli. Gibbs told Battle, who was running late, that he would leave without Battle the next time. Evidently, this angered Battle. According to Jackson, Battle told Gibbs that “if [Gibbs] stopped the truck, he was going to beat [Gibbs].” Gibbs responded, “[i]f I stop this truck, we are going to see who is going to beat one another.” Gibbs then pulled the truck over, and the two men exited the truck — Battle with his can of ravioli and Gibbs with a handgun.

After Battle picked up an oil can from the back of the truck, Gibbs fired a shot into the ground to frighten him. Battle put the oil can down and came toward Gibbs, motioning as if to throw the can of ravioli. Gibbs, who could not tell what Battle was carrying, threatened to shoot him if he raised whatever he had in his hand. Gibbs then shot Battle in the neck, fatally wounding him.

At trial, Gibbs testified that he did not intend to shoot Battle. According to Gibbs, as Battle prepared to throw something at him, he threw his hands into the air to protect himself, and the gun accidentally discharged.

Gibbs argues that this evidence is insufficient to sustain his conviction for voluntary manslaughter. We disagree. Pursuant to OCGA § 16-5-2 (a),

[a] person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person.

Decided August 14, 2002.

Robert R. McLendon TV, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

Under the circumstances, the jury was authorized to conclude that Battle provoked Gibbs into intentionally firing the second shot. Contrary to Gibbs’ contention, the jury was not required to believe his self-serving testimony that the shooting was an accident. This is especially true given the expert testimony of a firearm examiner that, to fire the gun, Gibbs would have had to cock the hammer and apply over fifteen pounds of pressure to the trigger, which is over three times the trigger pressure for the average handgun.

2. In a separate enumeration of error, Gibbs contends that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. Again, we disagree.

A trial court must give a requested jury instruction on a lesser offense if “even the slightest evidence shows that the defendant may be guilty of a lesser included offense.” However, this rule “does not obviate the necessity that the evidence actually warrant the requested charge.” Here, Gibbs testified that the shooting was accidental. Thus, the jury was authorized to conclude either that Gibbs intentionally shot Battle, in which case Gibbs is guilty of voluntary manslaughter, or that the gun discharged accidentally, in which case Gibbs is guilty of no crime. “Where the evidence shows either the commission of the completed offense as charged, or the commission of no offense, the trial court is not required to charge the jury on a lesser included offense.” It follows that the trial court did not err in refusing to charge the jury on the lesser included offense of involuntary manslaughter.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       The jury also found Gibbs guilty of felony murder and aggravated assault. As the jury also found him guilty of voluntary manslaughter, the trial court properly sentenced Gibbs only on this lesser included offense. See Edge v. State, 261 Ga. 865, 866-867 (2) (414 SE2d 463) (1992).

       See Covington v. State, 251 Ga. App. 849 (555 SE2d 204) (2001).

       The actual timing of the event is unclear. According to Fair, Gibbs fired the first shot before Battle picked up the oil can.

       See Riley v. State, 250 Ga. App. 427, 428-429 (1) (551 SE2d 833) (2001).

       See Blackford v. State, 251 Ga. App. 324, 325-326 (1) (554 SE2d 290) (2001).

        Moses v. State, 264 Ga. 313, 315 (2) (444 SE2d 767) (1994).

       Id.

       (Punctuation omitted.) Martin v. State, 268 Ga. 682, 685 (7) (492 SE2d 225) (1997).

       See id.


text:
    A02A0864.
    MULLINS v. THE STATE.
    (570 SE2d 357)
   Ruffin, Judge.

A jury found Craig Mullins guilty of armed robbery. He appeals, challenging the sufficiency of the evidence. For reasons that follow, we affirm.

On appeal from a criminal conviction, we do not weigh the evidence or determine witness credibility. “Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find [Mullins] guilty of each element of the charged offense beyond a reasonable doubt.”

Viewed in this light, the evidence shows that on August 30,1995, Dana Taylor, a Domino’s Pizza delivery man, attempted to deliver pizza to a house in LaGrange at approximately 11:30 p.m. When he arrived at the house, Taylor saw a young man standing in the driveway and asked whether he had ordered a pizza. The young man replied, “yes,” and Taylor got out of his car with a pizza warmer, which held a pizza, breadsticks, and sauce.

As Taylor approached, the young man began “to look around like he was watching for somebody.” At that point, someone walked up behind Taylor and hit him in the head with an aluminum baseball bat. The two individuals then grabbed the pizza warmer from Taylor and ran toward the rear of the house. Taylor managed to call for help from his car, and he was taken to the hospital, where he received treatment for a skull fracture.

Police located the pizza warmer, the pizza box, breadstick wrappers, and sauce on a wooded path behind the house. Further investigation led police to suspect six juveniles, including Mullins. Mullins and Charles Hurston, both 16 years old, were charged as adults with armed robbery. The other four individuals, L. C., M. C., C. C., and C. H., were charged as juveniles. All but Mullins admitted their involvement in the robbery, and each testified against Mullins at trial.

Hurston testified that after he and Mullins decided to rob a Domino’s delivery man, Mullins placed the pizza order. They then walked to the address Mullins gave Domino’s and were joined by L. C., M. C., C. C., and C. H. Hurston stayed on the front porch, Mullins “went somewhere” nearby, and L. C., M. C., C. C., and C. H. waited behind the house. At that point, Mullins had an aluminum baseball bat with him. According to Hurston, when Taylor arrived at the residence, Mullins hit him with the bat, and Hurston took the pizza from Taylor’s hands. Mullins and Hurston then ran behind the house, where they met the others. Before fleeing the scene, Mullins, Hurston, L. C., and C. H. ate the pizza and breadsticks.

According to C. H., Mullins told him, L. C., M. C., and C. C. to wait behind the house during the robbery. Although C. H. did not see the actual blow to Taylor’s head, he saw Taylor “go[ ] down.” C. H. further testified that when Taylor fell, Hurston had the pizza in his hands, and Mullins had a bat. The six boys then ran down a path behind the house, and Mullins said, “[I] tried to kill the man.” M. C. similarly testified that Mullins, who had a baseball bat, instructed him to stay behind the house during the robbery. When Mullins and Hurston appeared with the pizza, the group ran down the wooded path, and Mullins stated that “[h]e did a sweet lick.”

L. C. testified that Mullins also told him to remain behind the house. L. C., however, saw Mullins strike Taylor with a bat and flee down the wooded path with Hurston, who had the pizza. The boys then ate the pizza. Finally, C. C. testified that he saw Mullins with a bat before Taylor arrived at the house. According to C. C., Mullins stated: “I called the pizza man, y’all go on behind the house and stay.” Mullins and Hurston eventually appeared with a pizza, and C. C. ran down the wooded path with them. C. C. admitted eating the pizza with Mullins.

Mullins denied any involvement in the crime and testified that he was at home when the robbery took place. Mullins’ mother also testified that Mullins was at home that evening. Nevertheless, the jury found him guilty of armed robbery.

On appeal, Mullins argues that the State failed to present sufficient evidence to corroborate the testimony of the five accomplices who testified against him. In Mullins’ view, the evidence created only a “grave suspicion of guilt.” We disagree.

Although “[a]n accomplice’s testimony as to the identity and participation of the defendant . . . must be corroborated!,] [w]here, as here, more than one accomplice testifies at trial, the testimony of one accomplice may be corroborated by the testimony of the others.” The corroborating evidence need only be slight, and the sufficiency of that corroboration “is peculiarly a matter for the jury to determine.”

In this case, Hurston, L. C., M. C., C. C., and C. H. all testified that Mullins participated in the robbery. Both Hurston and L. C. witnessed Mullins strike Taylor with the bat, and the other three boys saw Mullins with a bat either before or immediately after the robbery. L. C., M. C., C. C., and C. H. testified that Mullins instructed them to wait behind the house, and all four stated that Mullins and Hurston appeared behind the house with a pizza. According to both M. C. and C. H., Mullins made statements indicating that he had struck Taylor with the bat. Finally, Hurston, C. C., and L. C. admitted eating the pizza with Mullins.

Decided August 14, 2002.

Peter B. Hoffman, for appellant.

Peter J. Skandalakis, District Attorney, Sarah L. Stimac, Assistant District Attorney, for appellee.

The testimony of these five accomplices corroborated each other on numerous levels. Taylor’s testimony that, after he was hit in the head with an aluminum baseball bat, two individuals stole the pizza and then fled behind the house, further corroborated the accomplices’ statements, as did the pizza warmer and food remains discovered along the wooded path. This corroborating evidence was more than sufficient to connect Mullins to the crime. In short, the State presented ample — if not overwhelming — evidence from which a jury could find Mullins guilty beyond a reasonable doubt of armed robbery. Accordingly, we affirm.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Goss v. State, 247 Ga. App. 520 (544 SE2d 206) (2001).

       Id.

       (Citation omitted.) Hanifa v. State, 269 Ga. 797, 808-809 (7) (505 SE2d 731) (1998).

        Wilbanks v. State, 251 Ga. App. 248, 259 (8) (554 SE2d 248) (2001).

       See Hanifa, supra; Wilbanks, supra at 260.

       See OCGA § 16-8-41 (a) (defining armed robbery); Byrd v. State, 274 Ga. 58, 59-60 (1) (548 SE2d 2) (2001); Kinney v. State, 271 Ga. 877, 880 (1) (525 SE2d 91) (2000).


text:
    A02A0892.
    HARRIS v. THE STATE.
    (570 SE2d 353)
   Ruffin, Judge.

A Richmond County jury found Reginald Harris guilty of armed robbery, kidnapping, aggravated assault, and possession of a firearm during the commission of a crime. On appeal, Harris challenges the sufficiency of the evidence. He also asserts that the trial court erred in: failing to sever his trial from that of his co-defendant, Revandez Morgan; admitting certain testimony; permitting the prosecutor to ask a burden-shifting question; and instructing the jury. As Harris’s claims of error lack merit and the evidence is sufficient, we affirm.

The facts of this case were detailed in this Court’s opinion in Morgan v. State. Briefly stated, the record shows that on October 3, 2000, Harris and Morgan showed up at Michael Warner’s apartment, demanded drugs, and searched the apartment. When the two were unable to find drugs, they took Warner’s driver’s license, credit card, and $300 in cash. Harris and Morgan then drove Warner, at gunpoint, to find an individual named “Lolly.” During the drive, Harris threatened to kill Warner and fired a shot between his fingers. Eventually, Harris and Morgan checked into a motel. Warner attempted to escape from the motel at which point Morgan shot him in the leg.

During trial, Warner testified that he knew Morgan, but that he had never seen the second assailant before October 3. However, Warner was able to provide a detailed description of the man to police officers, including the fact that his assailant had a tattoo on his forearm and gold teeth. Warner subsequently identified Harris from pictures provided by the sheriff’s department. Although Harris’s picture did not show his tattoos or gold teeth, James Gordon, a sheriff’s department investigator, testified that Harris did, in fact, have gold teeth and tattoos, matching those described by Warner. Warner also identified Harris in court as one of his assailants.

1. In his first enumeration, Harris challenges the sufficiency of the evidence. Specifically, he contends that the only evidence linking him to the crime is Warner’s testimony. According to Harris, the testimony of this single witness is not sufficient to support the verdict. We disagree. Warner unequivocally identified Harris as one of the assailants, and “the testimony of a single witness is generally sufficient to establish a fact.” It follows that the evidence was sufficient to sustain Harris’s conviction.

In a related enumeration of error, Harris contends that the State failed to prove venue in Richmond County beyond a reasonable doubt. “Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged.” The State, which must prove venue beyond a reasonable doubt, may establish it by whatever means of proof available and may use both direct and circumstantial evidence.

In this case, there was ample evidence of venue. Warner testified that his apartment is in Richmond County. And, after Warner was released from the hospital, he and Investigator Gordon retraced the route from Warner’s apartment to the motel where he was shot. During trial, Gordon was asked if he had been “able to determine whether any of the events . . . actually occurred outside of Richmond County.” Gordon responded, “I don’t think any of them occurred outside of Richmond County; no, none.” Evidently, Harris believes that Gordon’s equivocation at the beginning of his response renders the remainder of his answer unworthy of belief. This, however, is not the law.

As discussed above, the State must prove venue beyond a reasonable doubt. The phrase “reasonable doubt” does not mean “beyond all doubt or to a mathematical certainty.” Here, Gordon’s testimony demonstrates that he investigated the route taken by Warner and concluded that, to the best of his knowledge, all events occurred inside Richmond County. Such testimony is sufficient to prove venue. It follows that Harris’s claim that there was insufficient evidence of venue presents no basis for reversal.

2. Harris asserts that the trial court erred in failing to sever his trial from that of Morgan, his co-defendant. This issue was raised by Harris’s co-defendant in Morgan v. State. As we noted in that case,

[i]n ruling on a motion , for severance, the trial court must consider: (1) whether the number of defendants creates confusion as to the law and evidence to be applied to each; (2) whether a danger exists that evidence admissible against one defendant might be considered against the other notwithstanding instructions to the contrary; and (3) whether the defenses are antagonistic to each other or each other’s rights.

Here, as in Morgan, we find no abuse of discretion in the trial court’s refusal to sever the trial. Although Harris contends that his and Morgan’s defenses were antagonistic, “that antagonism does not, in and of itself, require severance.” Here, Harris testified that it was a case of mistaken identity — that he was not present at the crime scene. Morgan, on the other hand, testified that the shooting stemmed from a drug deal with Warner that had gone awry. Assuming that these defenses are antagonistic, it was still incumbent upon Harris to “demonstrate a clear showing of prejudice and a consequent denial of due process in the absence of severance.”

Harris contends that the prejudice “stems from defense counsel’s inability to mount a meaningful and effective cross-examination of Morgan,” who testified that a Mr. Harris was present during the alleged drug deal. According to Harris, any attempt to question Morgan regarding his presence during the crime would have undermined his claim that he was not, in fact, present. However, the mere fact that Morgan’s testimony inculpated Harris does not require severance. Where, as here, both defendants testify and have the opportunity to fully cross-examine the other, we find no abuse of discretion in the trial court’s refusal to sever the trial.

3. Harris also argues that the trial court erred in permitting Gordon to testify as to the ultimate issue in the case — Harris’s identity as one of Warner’s assailants. Gordon testified that he was looking for a person fitting the description given by Warner, and that Harris “fit everything that Mr. Warner had described and had picked out. There was no doubt in my mind that [he] was the subject that Mr. Warner had picked out, and the subject that Mr. Warner had indicated was involved.” Assuming that this testimony was improper, we note that Harris failed to contemporaneously object. Thus, he has waived any alleged error on appeal.

4. Harris maintains that the trial court erred in allowing the State to ask him a “burden shifting question” during his cross-examination. After Harris testified that he was not with Morgan the night of October 3, the prosecutor asked, “[w]here were you?” Harris responded that he did not remember. According to Harris, the prosecutor’s question improperly implied that Harris needed to establish an alibi. However, in taking the stand, Harris was subject to cross-examination just like any other witness, except as to his general bad character or prior convictions. We find nothing improper in the prosecutor’s questioning of Harris, particularly in light of Harris’s earlier testimony that he was not with Morgan on the night the crimes took place.

5. In his final enumeration of error, Harris contends that the trial court erred in giving an overbroad jury instruction on aggravated assault. Harris was charged in the indictment with committing an assault “by discharging a firearm between [Warner’s] fingers.” In charging the jury, the trial court tracked the language of OCGA § 16-5-21 (a), informing jurors that “a person commits the offense of aggravated assault when that person assaults another person: with the intent to rob; or, with a deadly weapon; or with any object, device, or instrument, which, when used offensively against a person, is likely to, or actually does, result in serious bodily injury.”

Decided August 14, 2002.

Peter D. Johnson, for appellant.

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

“[I]t is not usually cause for [a] new trial that an entire Code section be given. This is so even though a part of the charge may be inapplicable under the facts in evidence.” In this case, at the outset of the trial, the court read the jurors the indictment, which specified the crime for which Harris was on trial. During its instruction to jurors, the trial court referenced the indictment, informing jurors that the indictment and the defendant’s plea of not guilty framed the issues to be tried. The court then instructed jurors that the State bore the burden of proving “every material allegation in this bill of indictment against the defendants beyond a reasonable doubt,” which the jurors then took with them into deliberations. Under these circumstances, the trial court’s instruction provides no basis for reversal.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       255 Ga. App. 58 (564 SE2d 467) (2002).

       (Punctuation omitted.) Hawkins v. State, 249 Ga. App. 26, 27 (1) (546 SE2d 280) (2001).

       See Morgan, supra at 59 (1).

        Jones v. State, 272 Ga. 900, 901 (2) (537 SE2d 80) (2000).

       See id. at 901-903.

       See id.

        Brown v. State, 264 Ga. 48, 49 (3) (a) (441 SE2d 235) (1994).

       Supra at 59-61 (2).

       (Punctuation omitted.) Id. at 59-60.

       Id. at 61.

       (Punctuation omitted.) Id.

       Indeed, Harris fails to acknowledge the possibility that, even if he had been tried separately, Morgan still could be called to testify.

       See Walden v. State, 170 Ga. App. 880 (1) (318 SE2d 676) (1984).

       See Herrington v. State, 243 Ga. App. 265, 266 (2) (533 SE2d 133) (2000).

       See OCGA § 24-9-20 (b).

       See Singleton v. State, 240 Ga. App. 240, 241 (6) (522 SE2d 734) (1999).

       (Citations and punctuation omitted.) Davis v. State, 209 Ga. App. 187, 189 (2) (433 SE2d 366) (1993).

       (Emphasis supplied.)

       See id.; Robinson v. State, 268 Ga. 175, 176 (2) (486 SE2d 156) (1997).