text:
    A01A2308.
    HCP III WOODSTOCK, INC. et al. v. HEALTHCARE SERVICES GROUP, INC. et al.
    (562 SE2d 225)
   Johnson, Presiding Judge.

HCP III Woodstock, Inc. d/b/a Meadowbrook Manor of Woodstock, its insurer, and several nursing home residents (collectively Meadowbrook) appeal the trial court’s grant of summary judgment to defendant Healthcare Services Group, Inc. (Healthcare) in this sub-rogation action for negligence and breach of contract for property damage caused by a fire at Meadowbrook Manor nursing home. The only issue before us in this appeal is whether a statement given by one of Healthcare’s employees to an insurance adjuster is admissible evidence which establishes a jury issue concerning Meadowbrook’s negligence and breach of contract claims. We hold that the statement is inadmissible and therefore affirm the judgment of the trial court.

Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins. When ruling on a motion for summary judgment, the party opposing the motion should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.

The record reveals that at approximately 2:30 a.m. on December 3, 1993, there was a fire at Meadowbrook Manor nursing home. Although the exact cause of the fire is disputed, the evidence shows that the fire originated in the laundry room in or near one of the two clothes dryers. Healthcare was contractually obligated to provide housekeeping and laundry services for Meadowbrook, though none of its employees were working in the laundry room at the time of the fire. A Meadowbrook nursing assistant was the last person to use the clothes dryers prior to the fire.

Meadowbrook filed suit in May 1996 for negligence, breach of contract, and breach of warranty naming as defendants Healthcare (the dryers’ owner), Southeastern Laundry Equipment Sales, Inc. (the dryers’ installer), Emerson Electric Company (the dryers’ motor manufacturer), and American Dryer, Inc. (the manufacturer of one of the dryers). The complaint alleged that while Healthcare had notice of abnormalities with the dryers which could indicate a fire risk, it nonetheless failed to correct the problem. And, as a result of its failure, the fire occurred.

Healthcare moved for summary judgment asserting that there was no admissible evidence that it had notice of the potential fire hazard with regard to one of the dryers. In response to Healthcare’s motion, Meadowbrook presented evidence purportedly indicating that Healthcare had notice of the potential fire hazard posed by one of the dryers and that Healthcare breached its implied duty under the service contract. Specifically, Meadowbrook pointed to an insurance adjuster’s summary of a statement made by Brian Wakefield, a Healthcare employee who worked in the nursing home laundry room. The summary was attached to the deposition of the insurance adjuster, Douglas White, who was hired to adjust the loss on behalf of Federated Insurance, Healthcare’s property insurer. According to the adjuster’s summary, Wakefield told him that when the problem dryer would not start, a small flame would shoot out of the back of the dryer. Wakefield also told the adjuster that the problem with the dryer was reported to the laundry room supervisor who then called to have the dryer serviced.

The trial court granted Healthcare’s motion, finding that there was no evidence of breach of contract or negligence by Healthcare. The court held that there was no evidence of a breach of duty by Healthcare because the statement allegedly made by Wakefield, which was the only evidence put forward to show notice of a potential fire hazard, was inadmissible hearsay. We agree that the statement was not admissible.

In its sole enumeration of error, Meadowbrook contends that the trial court erred in finding that the statement by the Healthcare employee was inadmissible hearsay. According to Meadowbrook, the statement was the admission of a party opponent and therefore admissible under OCGA § 24-3-31.

[A] movant for summary judgment who will not have the burden of proof at trial need not conclusively disprove the non-moving party’s case. Instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmov-ing party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is not admissible and is without probative value unless it comes within a recognized exception to this rule.

Although Meadowbrook contends that the summary of Wake-field’s statement is admissible under OCGA § 24-3-31, admissions by persons not a party to an action are admissible in evidence only where the party making the admission is the real party in interest, although not a party to the record, or where a party to the record refers another to such third party for information, or where there is an admission by a third person against his interest as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause.

Meadowbrook does not argue that Wakefield’s statement falls within one of these exceptions. Instead, it asserts that because Healthcare is a party to the lawsuit, Wakefield, because of his status as Healthcare’s employee, is a party to the record. Therefore, it maintains, Wakefield’s statement is an admission of a party to the record.

While the record does reflect that Wakefield was employed by Healthcare as a laundry room worker at Meadowbrook Manor, he was but a mere employee. And, as a “mere employee [he has] no authority to bind [Healthcare] by his statement.” While an extrajudicial statement by an employee can be introduced in evidence for the purpose of charging the employer with the plaintiff’s damage if the statement is made as a part of the res gestae, Meadowbrook does not argue that the statement was made as part of the res gestae of the underlying controversy.

Meadowbrook also contends that White, the insurance adjuster, was Healthcare’s agent at the time he took Wakefield’s statement. It does not, however, offer any argument as to the relevance of this assertion but simply posits Mulherin v. Globe Oil Co. as authority for its contention. In that case, however, this court found that the out-of-court statement made by an agent of the defendant corporation concerning a defamatory letter was part of the res gestae of the transaction in controversy. Even assuming, without deciding, that White, in his capacity as an independent adjuster for the claim, was Healthcare’s agent, the statement was not made by him, but rather to him. Furthermore, OCGA § 24-3-33 states: “Admissions by an agent or attorney in fact, during the existence and in pursuance of his agency, shall be admissible against the principal.” And, under OCGA § 10-6-64: “The agent shall be a competent witness either for or against his principal. His interest shall go to his credit. The declarations of the agent as to the business transacted by him shall not be admissible against his principal unless they were a part of the negotiation constituting the res gestae, or else the agent is dead.” The Code sections are construed together with the second effectively limiting the scope of the first.

Decided March 13, 2002.

Drew, Eckl & Farnham, Harold M. Bagley, Karen K. Karabinos, for appellants.

Hawkins & Parnell, Charles R. Beans, Carter & Ansley, Burke B. Johnson, Swift, Currie, McGhee & Hiers, Mark T. Dietrichs, Erik S. Rodriguez, for appellees.

While Meadowbrook asserts that White was Healthcare’s agent, again it does not argue that the statement is part of the res gestae of the controversy. Under OCGA § 24-3-3, “[declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” To fall within the res gestae, a statement must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design. Wakefield’s statement was made to White 13 days after the fire as part of an investigation and, accordingly, cannot be said to be voluntary or free of all suspicion or afterthought.

The trial court did not err in finding that the statement made by Wakefield was hearsay and did not come within a recognized exception to the hearsay rule. Therefore, Meadowbrook failed to establish a jury issue as to Healthcare’s liability, and summary judgment was proper.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       OCGA § 9-11-56 (c).

       261 Ga. 491 (405 SE2d 474) (1991),

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988).

        Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997).

       In December 2000, Meadowbrook voluntarily dismissed the breach of warranty claim against Healthcare and dismissed its claims against Emerson Electric Company and American Dryer, Inc.

       OCGA § 24-3-31 provides that the admission by a party to the record shall be admissible in evidence when offered by the other side, except in the following cases:
      (1) Admissions of a mere nominal party or naked trustee; (2) Admissions of one of several parties with no joint interest, unless the issue is of such a character that the effect of the admission can be confined to the one party alone; (3) Admissions of a trustee before he is clothed with the trust; [and] (4) Admissions of defendants in execution in claim cases, after the pendency of litigation.

       (Citation and punctuation omitted.) Harrison v. Golden, 219 Ga. App. 772, 774 (2) (a) (466 SE2d 890) (1996).

        Hall v. Cracker Barrel &c., 223 Ga. App. 88, 92 (476 SE2d 789) (1996).

        Barich v. Cracker Barrel &c., 244 Ga. App. 550, 551 (1) (536 SE2d 221) (2000).

        Cobb v. Garner, 158 Ga. App. 110, 112 (3) (279 SE2d 280) (1981).

        Sutton v. Winn Dixie Stores, 233 Ga. App. 424, 426 (504 SE2d 245) (1998).

       A. K. Adams & Co. v. Homeyer, 87 Ga. App. 301 (73 SE2d 581) (1952).

       173 Ga. App. 790 (328 SE2d 406) (1985) (physical precedent only).

       See id.

        Hagan v. Goody’s Family Clothing, 227 Ga. App. 585, 586 (490 SE2d 107) (1997).

        Quiktrip Corp. v. Childs, 220 Ga. App. 463, 466 (3) (469 SE2d 763) (1996).

       See Brooks v. Kroger Co., 194 Ga. App. 215, 216 (2) (390 SE2d 280) (1990) (declarations made three days after the accident would not be part of the res gestae).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A2361.
    DEKALB COUNTY v. C. W. MATTHEWS CONTRACTING COMPANY, INC.
    (562 SE2d 228)
   Phipps, Judge.

DeKalb County sued C. W. Matthews Contracting Company, Inc. (Matthews) to recover expenses it incurred in repairing one of its sewer pipes that Matthews had punctured. The trial court held that the action was barred by the statute of limitation and granted summary judgment to Matthews. DeKalb County appeals. We vacate the judgment as premature and remand for consideration of whether the. statute of limitation was tolled by any fraudulent concealment by Matthews.

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. 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.

The parties stipulated to the following facts. Matthews was a contractor on a Georgia Department of Transportation construction project that involved improving a section of Interstate 285 in DeKalb County. During the construction, Matthews punctured one of DeKalb County’s sewer pipes. The project was substantially completed in June 1994. In November 1997, DeKalb County discovered that the sewer pipe had collapsed and incurred expenses in the amount of $284,738.40 to repair it.

In September 1999, DeKalb County sued Matthews, alleging negligence and fraudulent concealment. Matthews moved for summary judgment on the ground that the complaint was time-barred by OCGA § 9-3-30, which provides that all actions for damage to realty must be brought within four years after the right of action accrues. An action under OCGA § 9-3-30 accrues when the project is substantially completed, and ignorance of the damage does not toll the time period. Determining that DeKalb County filed its complaint more than a year after its right to bring an action had expired pursuant to OCGA § 9-3-30, the trial court granted Matthews summary judgment.

1. DeKalb County contends that its sewer line is personalty, not realty, and that therefore OCGA § 9-3-31 provides the applicable statute of limitation. But even assuming that OCGA § 9-3-31 is the controlling statute, DeKalb County’s complaint remains subject to a four-year time limitation.

OCGA § 9-3-31 provides that “[a]ctions for injuries to personalty shall be brought within four years after the right of action accrues.” Within the meaning of that Code section, a cause of action accrues at the time of injury. Here, DeKalb County’s injury occurred when the pipe was pierced, which the parties stipulated occurred during the construction that was substantially completed in June 1994. Although DeKalb County urges that it did not discover that its pipe had been punctured until its November 1997 investigation revealed that the pipe had collapsed, ignorance of facts constituting a cause of action does not prevent the running of the statute of limitation. Accordingly, DeKalb County’s reliance upon the discovery rule is misplaced.

DeKalb County cites Atlanta Gas Light Co. v. City of Atlanta and argues that the statute of limitation did not begin to run until the pipe actually collapsed. That case concerned property damage caused by an explosion because of a defect in the installation of equipment owned and maintained by third parties. This court held that because the plaintiff had suffered no immediate property damage from the defect, the four-year limitation period did not begin to run until the subsequent explosion, when the plaintiff did suffer property damage. Here, DeKalb County’s property was damaged when its pipe was punctured, which, as the parties stipulated, occurred no later than June 1994. Atlanta Gas Light Co. does not require a finding in DeKalb County’s favor.

2. DeKalb County contends that the trial court erred in granting summary judgment to Matthews without considering whether the statute of limitation was tolled by OCGA § 9-3-96. We agree. The transcript of the hearing on DeKalb County’s motion for summary judgment shows that each party stated that it was not prepared to address the issue of fraudulent concealment and that additional discovery on that issue was required. The trial court stated that the issue would be addressed at a later time. Accordingly, we vacate the trial court’s ruling that DeKalb County’s action is time-barred as premature and remand for consideration of whether any fraudulent concealment by Matthews tolled the four-year statute of limitation.

Judgment vacated and case remanded.

Smith, P. J., and Barnes, J., concur.

Decided March 13, 2002.

Miles, McGoff & Moore, Dana B. Miles, Joan F. Roach, Daniel S. Digby, for appellant.

Moore, Ingram, Johnson & Steele, William R. Johnson, for appel-lee.

       OCGA § 9-11-56 (c).

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

        Corp. of Mercer Univ. v. Nat. Gypsum Co., 258 Ga. 365, 366 (1) (368 SE2d 732) (1988).

       Id. (discovery rule is confined to cases of bodily injury).

       Compare City of Arlington v. Smith, 238 Ga. 50 (1) (230 SE2d 863) (1976) (sewer laid in public road for private use became part of realty), with Mayor &c. of Gainesville v. Dunlap, 147 Ga. 344-345 (4) (94 SE 247) (1917) (where city laid a water main through the lands of others to reach the reservoir under a lease or parol license that was silent as to the right of removal of the pipes, the laying of the pipes not being for the improvement of the realty but for city’s use to operate its waterworks, the pipes are in the nature of trade fixtures); see 1 Hinkel, Pindar’s Ga. Real Estate Law (5th ed. 1998), § 10-28, p. 505.

        Hanna v. McWilliams, 213 Ga. App. 648, 650 (2) (b) (446 SE2d 741) (1994).

        See Autumn Trace Homeowners Assn. v. Brooks, 238 Ga. App. 107, 108 (517 SE2d 836) (1999); Corp. of Mercer Univ., supra.

        See Autumn Trace Homeowners Assn., supra; Corp. of Mercer Univ., supra.

       160 Ga. App. 396 (287 SE2d 229) (1981).

       Id. at 398 (1) (a).

       See Travis Pruitt & Assoc. v. Bowling, 238 Ga. App. 225, 226 (1) (518 SE2d 453) (1999) (a cause of action in negligence accrues and the statute of limitation begins to run when there is a negligent act coupled with a proximately resulting injury).


text:
    A01A2435.
    BUCHANAN v. THE STATE.
    (562 SE2d 216)
   Phipps, Judge.

Michael Whitney Buchanan was convicted of armed robbery, possession of a firearm during the commission of a felony, and theft by receiving stolen property (motor vehicle). On appeal, he contends that the evidence was insufficient to support the verdict, that the trial court improperly advised the jury that his co-indictee had pled guilty to some of the same charges he was facing, that the trial court erred in refusing to reopen the evidence, that the trial court improperly emphasized a jury instruction on recharge, and that he was denied effective assistance of counsel. We reverse Buchanan’s conviction for theft by receiving stolen property because there was not sufficient evidence to support that conviction. But we affirm his convictions for armed robbery and possession of a firearm during the commission of a felony.

1. Buchanan contends that the evidence was insufficient to support the verdict. On appeal, we do not weigh the evidence or assess the credibility of witnesses but only determine whether the evidence, viewed in a light most favorable to the verdict, was legally sufficient under the standard of Jackson v. Virginia.

Viewed in this light, the evidence showed that at approximately 10:00 p.m. on October 13, 1996, two masked men entered a McDonald’s restaurant and demanded money at gunpoint. One man was wearing all dark clothing, and the other was wearing a patterned shirt and jeans. After taking money from the safe and registers, the robbers headed to the parking lot as the police were arriving at the scene. The robbers ran to a parked Firebird automobile, but were unable to open the car door. They dropped the gun and the money and then ran into a wooded area behind the restaurant. Police, including a K-9 unit, gave chase. The robbers began shedding their masks and articles of clothing. The police dog led officers to a creek, where Leondo Jones was found hiding. Near the creek, officers found a white athletic sock with “Mike Buchanan” written on it, a black sweatshirt that was consistent with an eyewitness’s description of what one of the robbers wore, and a black t-shirt with a white t-shirt inside it. The police dog then led officers to Buchanan, who was hiding in the crawl space of a house and wearing only boxer shorts. Police recovered a pair of jeans from the crawl space.

Back at McDonald’s, police recovered the gun and a bag of money. In the parking lot, police found a second white athletic sock with the words “Mike Buchanan” written on it. They also discovered an unoccupied, stolen Bonneville automobile parked there with the engine running. The driver’s door lock had been damaged, and the steering column had a hole in it that exposed the ignition. Inside the car were several items of clothing, including a shirt that Buchanan claimed as his own. He also admitted that he had worn the shirt earlier on the day of the robbery.

Buchanan challenges the sufficiency of the evidence by pointing to what he claims are inconsistencies and weaknesses in the evidence. But conflicts in the testimony of the witnesses are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we will uphold the jury’s verdict. We find that the evidence here was sufficient to authorize the jury’s verdict of guilty for the charges of armed robbery and possession of a firearm during the commission of a felony.

We do not, however, find sufficient evidence to sustain the conviction for theft by receiving the stolen Bonneville. A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property that he knew or should have known was stolen. “ ‘Receiving’ means acquiring possession or control ... of the property,” that is, that the person had “the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.” Here there is no evidence that Buchanan possessed or controlled the stolen car.

The evidence shows that after the armed robbery, Buchanan and Jones ran to the parking lot where the stolen car was parked, unoccupied, with the engine running, and with Buchanan’s shirt inside. While this may show that Buchanan had some recent contact with the stolen car, “[m]ere proximity to stolen property is insufficient to establish possession or control. [Cit.]” The lack of evidence that Buchanan ever possessed or controlled the stolen car or affirmatively acted as a party to the crime requires that his conviction of theft by receiving a motor vehicle be reversed.

2. Buchanan contends that the trial court erred by advising the jury that his co-indictee, Jones, had pled guilty to armed robbery, possession of a firearm during the commission of a felony, and theft by taking the Bonneville. However, in a pretrial conference, Buchanan’s attorney requested the trial court to inform the jury of Jones’s guilty plea after opening statements and to direct them to consider only the guilt or innocence of Buchanan. Buchanan’s attorney further stated that she “was planning to mention it” in her opening statement. The trial court thereafter informed the jury of Jones’s pleas of guilty, although it did not instruct the jury to limit their consideration to Buchanan’s guilt or innocence. But when the trial court asked the prosecutor and defense counsel whether any other instruction was necessary, both replied that it was not.

“A defendant will not be allowed to induce an asserted error, sit silently hoping for acquittal, and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal.”

3. Buchanan contends that the trial court erred by giving a recharge that placed too much emphasis on “party to a crime” and that the court instead should have recharged the jury on the entire original charge. During deliberations, the jury sent out the question, “Do we have to know for sure that he held the weapon to find him guilty of armed robbery and possession of firearm or is he guilty by being party to a crime in which a weapon is used?” The jury also asked, “Do we have to know for sure he was in the car to find him guilty of theft by receiving stolen property or is he guilty by being party to a crime that was committed with the intent to use stolen property?” After conferring with defense counsel and the prosecutor, the trial court recharged on parties to a crime and theft by receiving and then instructed the jury to consider the charge as a whole and to consider as equally important the initial charge.

Generally, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court. And when the jury requests a recharge on a particular question, the trial court has discretion in whether to give additional instructions. In considering whether the recharge was in error, we examine not only the recharge but also the original charge, and where the charge as a whole substantially presented issues in a way not likely to confuse the jury, we will not disturb a verdict authorized by the evidence. Examining the charge and recharge in their entirety and in light of our reversal of Buchanan’s conviction for the offense of theft by receiving stolen property, we find no reversible error.

4. Buchanan contends that the trial court abused its discretion by refusing to reopen the evidence. Whether to reopen the evidence is a matter resting within the sound discretion of the trial court and will not be reversed absent an abuse of that discretion. We consider the totality of the circumstances in determining whether there has been an abuse of discretion.

After the charge conference, the State moved to prohibit defense counsel from displaying during closing argument a shirt which had not been introduced into evidence. Defense counsel then asked to reopen the evidence to tender the shirt. The court noted that the shirt displayed the words “The Hardy Family Reunion,” which had not been described to the jury, and defense counsel conceded that she knew of no significance to the shirt’s wording. The court denied defense counsel’s motion to reopen the evidence, but instructed defense counsel that she was not prohibited from commenting on any testimony regarding the shirt. Considering all the circumstances, we conclude that the trial court did not abuse its discretion in declining to reopen the evidence.

5. Buchanan’s contention that he received ineffective assistance of trial counsel is procedurally barred. Buchanan’s trial counsel initially served as his post-trial counsel and filed a motion for new trial, which did not include an ineffectiveness claim. She later requested to withdraw so that Buchanan could pursue a claim of ineffectiveness. Buchanan’s new post-trial counsel was appointed on November 2, 2000, but did not file an amended motion for new trial raising the issue of ineffective assistance of trial counsel. On July 2, 2001, Buchanan’s motion for new trial was heard and denied. The record does not contain a transcript of the hearing on the motion for new trial, and therefore, appellate counsel has failed to perfect the record on whether the ineffectiveness issue was raised.

Decided March 13, 2002.

Robert R. McNeill, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

An ineffectiveness claim must be raised at the earliest practicable moment. There is no indication that this was done here. Appellate counsel had ample opportunity to amend the motion for new trial to add a claim of ineffective assistance of trial counsel before the ruling of the trial court on the motion precluded such amendment. Consequently, this claim of error was waived.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Barnes, J., concur.

       The trial court directed a not guilty verdict on a fourth charge of theft by taking (motor vehicle).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); McKay v. State, 251 Ga. App. 115, 116 (553 SE2d 672) (2001).

        McKay, supra.

       Id. at 116-117.

       See Toney v. State, 253 Ga. App. 231, 234 (2) (558 SE2d 780) (2002); Hayes v. State, 249 Ga. App. 857, 859-860 (1) (549 SE2d 813) (2001); Howze v. State, 201 Ga. App. 96, 97-98 (410 SE2d 323) (1991).

       OCGA § 16-8-7 (a); see also Harris v. State, 247 Ga. App. 41, 42 (543 SE2d 75) (2000).

       OCGA § 16-8-7 (a); Harris, supra.

       (Citations omitted.) Harris, supra.

        In the Interest of C. W., 226 Ga. App. 30, 31 (485 SE2d 561) (1997).

        Harris, supra at 42-43, and cases cited therein; In the Interest of C. W., supra at 31-32, and cases cited therein.

       (Citations, punctuation and footnote omitted.) Brison v. State, 248 Ga. App. 168, 169 (3) (545 SE2d 345) (2001).

       (Emphasis in original.)

       (Emphasis in original.)

        Miller v. State, 221 Ga. App. 718, 719 (1) (472 SE2d 697) (1996).

       Id.

       Id. at 719-720.

       See Igidi v. State, 251 Ga. App. 581, 586-587 (5) (554 SE2d 773) (2001); Cloyd v. State, 237 Ga. App. 608, 610 (3) (516 SE2d 103) (1999); see Miller, supra at 718-720 (1).

        Peeples v. State, 234 Ga. App. 454, 458 (5) (507 SE2d 197) (1998).

       Id.

       See Landers v. State, 236 Ga. App. 368, 370 (3) (511 SE2d 889) (1999).

       Id.

       See id.


author: Blackburn, Chief Judge.

text:
    A01A2496.
    GARR v. THE STATE.
    (562 SE2d 215)
   Blackburn, Chief Judge.

Following a jury trial, Vetena Garr appeals her conviction for armed robbery, aggravated assault, and false imprisonment, contending that her trial counsel rendered ineffective assistance of counsel by failing to tender an allegedly threatening letter written by her co-defendant into evidence. For the reasons set forth below, we affirm.

In order to establish ineffective assistance of counsel, [Garr] must show that [her] trial counsel’s performance was deficient and establish a likelihood that the deficient performance prejudiced [her] defense. Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel’s performance must be highly deferential. Counsel’s decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.

Decided March 13, 2002.

Ruth L. Rocker, for appellant.

(Punctuation and footnotes omitted.) Robertson v. State. See also Strickland v. Washington.

The record in this case shows that Garr was convicted for the armed robbery of a convenience store. The robbery was committed with several other co-defendants, including Abdullah Rasheed. Garr admitted that she participated in the robbery, but she alleged that she did so only because she had been coerced into it by Rasheed. Throughout her trial, Garr’s trial attorney ably set forth Garr’s defense of coercion, bringing out in direct and cross-examination evidence that Rasheed was a manipulator, bully, and ringleader who attempted to intimidate Garr. The jury, however, chose not to believe Garr’s contention of coercion.

Despite her trial attorney’s efforts, Garr now contends that her trial counsel was ineffective because she did not introduce into evidence an unsigned letter allegedly written by Rasheed. Garr argues that this letter would have supported her defense theory of coercion and, as such, it should have been tendered.

As an initial matter, we point out that the letter which forms the basis of Garr’s argument was not introduced into evidence at her motion for new trial and does not appear in the record. We have no way, therefore, to review its contents. Nonetheless, the record is clear that Garr’s trial attorney was not ineffective by choosing not to tender the letter. Instead, in order to preserve her right to give the final closing argument in the case, Garr’s trial attorney brought out the substance of the letter in direct examination of Garr and cross-examination of other witnesses. Accordingly, the jury actually had the information which Garr now complains that it did not. Moreover, Garr’s trial counsel testified that the contents of the letter were not overtly threatening and that she believed that the oral testimony about the letter would more effectively support Garr’s coercion theory than the letter itself. These are clearly matters of tactic and strategy which appear to be unquestionably reasonable. Accordingly, Garr’s spurious claims on appeal must fail. Strickland, supra.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Elisabeth G. Macnamara, Robert M. Coker, Assistant District Attorneys, for appellee.

        Robertson v. State, 245 Ga. App. 649, 651-652 (2) (538 SE2d 755) (2000).

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


author: Smith, Presiding Judge.

text:
    A01A2459.
    FOSTER v. THE STATE.
    (562 SE2d 191)
   Smith, Presiding Judge.

Hamilton Earl Foster was indicted by a Fayette County grand jury on one count of aggravated child molestation upon his two-year-old daughter. A jury convicted him of the lesser included offense of child molestation, and he appeals from the judgment of conviction and sentence, alleging five enumerations of error. Finding no error, we affirm.

1. Foster raises the general grounds. The trial court admitted the victim’s statements to the examining physician under OCGA § 24-3-16, the Child Hearsay Statute. In that statement, the victim angrily and explicitly described acts of anal sodomy performed upon her by Foster. At trial, however, the victim was very hesitant in testifying and stated only that her “bad daddy hurt me . . . [w]ith his hands” on “my bottom.” The examining physician testified to abnormalities in the victim’s anal area consistent with anal penetration or “something having interfered with” the anal area.

Foster also argues that he presented evidence contradicting the testimony of the examining physician. But “[d]etermining the credibility of witnesses and resolving conflicts [go] to the weight of the evidence and [are] for the jury’s consideration. This court determines only the legal sufficiency of the evidence.” (Citations and punctuation omitted.) Foster v. State, 203 Ga. App. 328, 330 (416 SE2d 855) (1992). While the evidence was in conflict regarding the acts committed by Foster, the jury weighed the evidence and testimony and made its determination. The testimony of the victim alone was sufficient to authorize the jury to find Foster guilty of the lesser included offense of child molestation under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In two enumerations of error, Foster contends the trial court erred in charging the jury on the lesser included offense of child molestation.

A trial court is authorized to charge the jury on a lesser included offense so long as the charge is supported by the evidence, and the indictment sufficiently places the defendant on notice of the crimes which he must defend. Child molestation is necessarily a lesser included offense of aggravated child molestation. The difference between child molestation and aggravated child molestation is that aggravated child molestation includes an act of child molestation which injures the child or involves sodomy. OCGA § 16-6-4 (c). The indictment charges [appellant] with aggravated child molestation which includes the elements required to prove the lesser crime of child molestation. The indictment afforded [appellant] sufficient notice of the conduct which he must defend at trial.

(Citations and footnote omitted.) Brownlow v. State, 248 Ga. App. 366, 369-370 (3) (a) (544 SE2d 474) (2001). This contention is without merit.

Foster also contends the charge was error because the State did not submit a request to charge “at the commencement of trial” as required by Uniform Superior Court Rule 10.3. But Foster quotes only a portion of that rule; the next clause states: “provided, however, that additional requests may be submitted to cover unanticipated points which arise thereafter.” The victim’s testimony at trial omitted her earlier accusations of sodomy, and the change appeared to be unanticipated by the State. Moreover,

[a] trial court, sua sponte, may charge a jury on a lesser included offense if the evidence justifies it. The trial court need not inform counsel in advance if it decides to make an unrequested jury charge. Because the trial court has the inherent power to charge the jury on a lesser included crime, so long as the charge is supported by the evidence, it is neither error nor reasonably unexpected for the trial court to charge the jury on a lesser included crime solely because the charge was not requested at the commencement of trial [as required by Rule 10.3].

(Footnotes omitted.) Gagnon v. State, 240 Ga. App. 754, 755-756 (1) (525 SE2d 127) (1999).

3. Foster contends the trial court erred in admitting evidence of a similar transaction. He contends evidence of his earlier guilty plea to three counts of child molestation of his older daughter was not sufficiently similar to the offense alleged here. But while Foster objected to the introduction of this evidence during the pretrial hearing conducted pursuant to USCR 31.3 (B), he failed to object to the testimony of the witness at trial and therefore has failed to preserve his objection for review. Young v. State, 269 Ga. 478, 479 (3) (499 SE2d 60) (1998); White v. State, 225 Ga. App. 74, 75 (2) (483 SE2d 329) (1997). “[T]he rule requiring a trial objection on similar transaction evidence is firm in Georgia jurisprudence, and we are bound to follow it.” (Footnote omitted.) McClarity v. State, 234 Ga. App. 348, 350 (2) (506 SE2d 392) (1998) (full concurrence on this issue).

In any event, the similar transaction evidence was admissible under the standard of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Foster argues that the incidents are dissimilar because his older daughter was 15 years old at the time she reported the molestation to police, and because the details of the alleged acts were different.

No requirement exists, however, that similar transactions be absolutely identical to the charged crime. The rule allowing similar transaction evidence to be admitted is most liberally applied when the charged crimes are sexual offenses. This Court has held that the sexual molestation of young children or teenagers, regardless of the gender of the victim or the type of act, is sufficiently similar to be admissible as a similar transaction in such cases. [Cit.]

Perkins v. State, 224 Ga. App. 63, 66 (3) (479 SE2d 471) (1996).

4. Finally, Foster contends the trial court erred in improperly limiting his voir dire examination of prospective jurors. After voir dire of one jury panel, the trial court prohibited Foster’s counsel from inquiring about prospective jurors’ prior jury service.

The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. The control of the pursuit of such determination is within the sound legal discretion of the trial court, and only in the event of manifest abuse will it be upset upon review.

(Citations and punctuation omitted.) Kirkland v. State, 206 Ga. App. 27, 28 (4) (424 SE2d 638) (1992). Refusing to allow a defendant to question prospective jurors about prior jury service has been held not to be error. Wiggins v. State, 252 Ga. 467 (1) (314 SE2d 212) (1984); Frazier v. State, 138 Ga. App. 640, 642-643 (2) (b) (227 SE2d 284) (1976). The trial court did not abuse its discretion in limiting Foster’s voir dire examination.

Decided February 19, 2002

Reconsideration denied March 14, 2002

Patricia A. Buttaro, for appellant.

William T. McBroom III, District Attorney, James E. Hardin, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       The older daughter testified at trial that Foster began fondling her when she was “about five,” but this was not part of the State’s proffer. We need not reach the issue of whether additional evidence presented at trial may be considered in reviewing the admissibility of a similar transaction, because the proffer as submitted was adequate to support the trial court’s ruling.


author: Mikell, Judge.

text:
    A01A2512.
    STANLEY et al. v. HART et al.
    (562 SE2d 186)
   Mikell, Judge.

In this appeal, we affirm a judgment confirming an arbitration award. The relevant facts follow.

This litigation stems from a settlement agreement entered into in 1996 by Stephen Leigh Hart d/b/a S & H Luigi’s Pizza, Inc., then a debtor in bankruptcy, and Dennis R. Stanley, a creditor. The agreement required Hart to pay Stanley $57,500, which was secured by the restaurant’s assets. Hart made monthly payments totaling approximately $31,500 until August 1998, when his check for $1,000 was returned for insufficient funds. Stanley sent Hart a certified letter on September 12, 1998, stating that “continued late payments will not be tolerated.” The letter did not purport to accelerate the balance due or threaten foreclosure.

On October 23, 1998, Stanley filed a petition for a writ of immediate possession pursuant to OCGA § 44-14-261, averring that Hart “justly and truly” owed him $57,500 and that Hart had ceased operating the restaurant and might convert or remove the secured property from the court’s jurisdiction unless the writ was issued. The trial court issued the writ. The business was padlocked on that date. Although it is unclear from the record, it appears that Stanley abandoned the restaurant.

The writ was served on November 17. On December 9, Hart filed an answer and counterclaim, asserting that his payments under the agreement had been current and that he had been wrongfully deprived of his livelihood. Hart sought $75,000 in compensatory damages and $150,000 in punitive damages. Hart also moved to dissolve the writ of possession pursuant to OCGA § 44-14-268, claiming that Stanley had failed to provide him with notice of default or time to cure it, as required by the agreement.

The court held a hearing on Hart’s motion on February 11, 1999; however, no transcript of that hearing appears in the record. On April 9, 1999, the trial court vacated the writ of possession, ruling that Stanley had violated the notice and cure provisions of the agreement and had misrepresented material facts to the court in his petition for the writ. Stanley filed an appeal, which this Court dismissed for lack of jurisdiction based on the untimely filing of the notice of appeal.

The parties readied for trial. A pretrial order entered on August 7, 2000, listed as issues for jury determination whether Hart defaulted on the agreement, whether Stanley had the right to possession of the secured property, and whether Hart was entitled to damages on the counterclaim. Alleging that the court’s order vacating the writ precluded Stanley from raising the issue of the right of possession, Hart filed a motion in limine to exclude that issue from trial. The court granted the motion, ruling that only the issues raised in Hart’s counterclaim remained to be decided. The parties then entered into a consent order agreeing to submit those issues to binding arbitration.

The arbitration hearing was held on the counterclaim on December 18, 2000. Based on the evidence, the arbitrator concluded that Stanley’s motives in closing the restaurant were not financial, as he had abandoned the business and derived no financial benefit from it. The parties stipulated that Hart had paid Stanley $34,500 under the security agreement, leaving a balance of $23,000, which would be set off from any damages awarded to Hart. The arbitrator awarded Hart a net total of $61,578, including $31,200 in lost profits, $38,978 for converted inventory and equipment, $4,500 for rent and utilities, and $10,000 in attorney fees, less the $23,000 Hart owed Stanley. The trial court struck the award of attorney fees, holding that the parties had not agreed to submit that issue to arbitration, and entered judgment for $51,578. Significantly, Stanley did not move to vacate the award. Instead, he posted a supersedeas bond and filed this appeal.

1. Stanley argues that the trial court erred in vacating the writ of possession. Hart claims appellate review of the trial court’s order is precluded by this Court’s dismissal of the interim appeal for lack of jurisdiction. That is incorrect.

Under OCGA § 9-11-54 (b), a judgment as to one or more but fewer than all of the claims is not a final judgment and lacks res judi-cata effect unless the trial court expressly directs the entry of a final judgment. Roth v. Gulf Atlantic Media &c., 244 Ga. App. 677, 679 (1) (536 SE2d 577) (2000). As the court’s order vacating the writ decided only the issue of possession and the counterclaim remained pending, the order was interlocutory. Flagg v. Remco Enterprises, 194 Ga. App. 473 (390 SE2d 895) (1990). Stanley’s defective attempt to seek appellate review of that order does not preclude our consideration of the issue in this appeal. Id.

However, the fact that Stanley’s appeal of the order is not procedurally barred affords him no relief. The absence of a transcript of the evidentiary hearing held on the motion to vacate the writ requires that we affirm the trial court’s ruling. Bank South v. Zweig, 217 Ga. App. 77 (456 SE2d 257) (1995).

The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where the transcript is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

(Citation and punctuation omitted.) Id. at 79 (2).

In the case sub judice, resolution of the issues raised at the hearing required the trial court to decide questions of law and questions of fact. The only ruling we are able to review without a transcript is the court’s determination that the agreement required notice of default to be sent to Hart at an address in Douglasville. Although Stanley contends otherwise, that ruling is correct. Paragraph 16 (f) mandates that any notice required by the agreement be sent to that address. Stanley’s letter was sent to Hart’s business address instead. As the court held, the notice was improper, and Hart was not given 15 days to cure the default, as the agreement required. In addition, the trial court found that Stanley obtained the writ of possession by misrepresenting to the presiding judge that Hart had ceased operating the restaurant. Without a transcript, we must assume that the evidence presented at the hearing supports the trial court’s finding. The order vacating the writ is affirmed.

2. Stanley next contends that the trial court erred in granting the motion in limine, thus effectively denying his right to a trial on the issues of his right of foreclosure, default, adequacy of notice, and amounts due him under the agreement. As we held in Washington State Employees Credit Union v. Robinson, 206 Ga. App. 782, 783 (2) (427 SE2d 15) (1992), and Ward v. Charles D. Hardwick Co., 156 Ga. App. 96 (274 SE2d 20) (1980), the court’s sole inquiry when deciding whether to vacate a writ for immediate possession is whether the plaintiff had proved that it was entitled to immediate possession because the property was subject to waste or concealment. If the court dissolves the writ, then “the action shall proceed on the petitioner’s claim as if no writ had issued; and any issue requiring trial shall be had in accordance with the procedure prescribed for civil actions in courts of record.” OCGA § 44-14-268 (b). It follows that the trial court erred in granting the motion in limine because at that juncture, Stanley was entitled to a final trial on the merits. But Stanley voluntarily relinquished this right and opted for binding arbitration instead. The error was thus harmless.

Stanley argues that he agreed to arbitrate only the issues raised in the counterclaim, thus preserving other issues for trial. We do not agree. According to the arbitration decision, the parties stipulated that Hart owed Stanley $23,000, and they agreed that this sum would be set off from any damages awarded to Hart “in the interest of judicial economy and to end this litigation.” “A stipulation by the parties upon which a resolution of some issue is to be made is binding. . . . Evidence contrary to the stipulation is not admissible; since it is binding, it may not be disproved.” (Citations and punctuation omitted.) Crawford v. Crump, 223 Ga. App. 119, 122 (2) (476 SE2d 855) (1996). Stanley is bound by the stipulation and may not contest the balance due under the agreement. Moreover, the issues of sufficiency of the notice of default and of the timeliness of Hart’s payments under the agreement were raised in the counterclaim. Those issues may not now be resurrected. See Division 3, infra.

3. Stanley’s appeal from the judgment entered on the arbitration award presents nothing for this Court’s review. A party challenging an arbitration award must file an application in the trial court to vacate it pursuant to OCGA § 9-9-13. Stanley failed to do so and is therefore precluded from contesting the award on appeal. Moreover, an arbitration award may be vacated only if one or more of the four statutory grounds set forth in OCGA § 9-9-13 (b) are found to exist, none of which are asserted here.

On appeal, as well as below, [Stanley] has not claimed corruption, fraud or misconduct, and he also has not claimed the arbitrator! ] [was] not impartial, or that the arbitrator! ] overstepped this] authority or failed to follow proper procedures. . . . Accordingly, [Stanley] cannot avoid the consequences of his agreement to the consent order.

Decided January 30, 2002

Reconsideration denied March 14, 2002.

Ted Marcus, Steven J. Strelzik, for appellants.

Winn, Price & Winn, Barry R. Price, Barbara B. Stalzer, for appellees.

(Citations omitted.) Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 703-704 (1) (463 SE2d 152) (1995).

4. Hart’s motion for the imposition of frivolous appeal damages under OCGA § 5-6-6 is denied. Damages will not be awarded under this Code section unless the Court is “fully satisfied that the cause was taken up for delay only. . . .” (Citation and punctuation omitted.) Warnock v. Davis, 267 Ga. 336 (2) (478 SE2d 124) (1996). In this case, we do not find that Stanley pursued the appeal only for the purpose of delay. Accordingly, we decline to impose a frivolous appeal penalty.

Judgment affirmed.

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

       The ultimate disposition of the assets is also unclear.

       In an unpublished order (Case No. A99A2230, July 21, 1999), we held that the appeal was governed by OCGA § 44-7-56, which requires judgments on writs of possession in landlord-tenant disputes to be appealed within seven days. As Stanley’s appeal was brought within 30 days after the trial court’s judgment, we dismissed it as untimely. However, OCGA § 44-14-235 governs appeals from orders on writs of possession issued in actions to foreclose a security interest in personal property. That Code section does not require an appeal to he filed within seven days. Nevertheless, the result would have been the same, as the trial court’s order was not a final judgment, and Stanley did not follow the interlocutory appeal procedure.


text:
    A02A0118.
    YOUNG v. THE STATE.
    (562 SE2d 231)
   Phipps, Judge.

After pleading guilty to one count of aggravated assault, Glen-ward Young filed a motion to withdraw the plea or, in the alternative, for a lighter sentence, arguing that he had received ineffective assistance of counsel. The trial court denied the motion, finding that counsel was effective and that Young’s guilty plea was entered knowingly and voluntarily. Young appeals, but we affirm because the trial court did not err.

Young was charged with aggravated assault for stabbing his wife with a knife. With the assistance of appointed counsel, he entered a nonnegotiated plea of guilty. The trial court sentenced Young to the maximum sentence of 20 years in prison after considering his multiple prior convictions for crimes of domestic violence. Young obtained new counsel and filed a “Motion to Withdraw Guilty Plea or Alternatively for Reduction of Sentence,” arguing that his appointed counsel had been ineffective by misrepresenting the terms of his guilty plea. After an evidentiary hearing, the trial court denied the motion.

Young then filed a timely pro se notice of appeal. For reasons that are not clear from the record, the case was not transmitted to or docketed in this court. Young filed additional documents in the trial court, including a pro se extraordinary motion for new trial which again sought to withdraw his guilty plea, this time arguing that he was innocent of the charge to which he had pled guilty.

At the hearing on the extraordinary motion for new trial, the prosecutor reminded the trial court that Young had filed a notice of appeal. The court ruled that the notice of appeal divested it of jurisdiction and declined to entertain the motion. Young’s appeal from the denial of his motion to withdraw the guilty plea was then docketed in this court.

1. Young claims that his guilty plea was not intelligently and voluntarily entered because his trial counsel misled him about the consequences of the plea. To prevail on this claim, Young must show that counsel’s performance fell below an objective standard of reasonableness and that, but for the deficiency, he would not have pled guilty. We will not disturb a trial court’s finding that counsel’s performance was not deficient unless it is clearly erroneous.

The evidence at the hearing on the motion to withdraw the guilty plea showed that the prosecutor made Young an offer, through his attorney, to accept a guilty plea in exchange for a sentence of twenty years, with ten to serve. Dissatisfied with this offer, Young asked his attorney if there was “any way around” the prosecutor. According to Young, his attorney told him he could do a “blind plea,” in which he would plead guilty and receive a sentence from the judge, without a recommendation from the prosecutor. Young testified that his attorney promised him that if he obtained certain “paperwork” showing his eligibility for drug treatment, the judge would sentence him to time served plus probation, and he would be released to a rehabilitation program. Young testified that he had not understood that the judge could sentence him to 20 years.

The prosecutor impeached Young with the waiver of rights form that he had signed in connection with his guilty plea, which stated that he knew he could receive a sentence of up to 20 years. The prosecutor also impeached Young with the transcript of his guilty plea hearing, at which he had said that he understood that his sentence would be determined by the judge and that he faced a possible punishment of 20 years in prison. In addition, Young’s trial counsel testified that although she had not expected Young to receive the maximum sentence, she never promised him he would receive any particular sentence in exchange for his guilty plea. The trial court found that Young had had no realistic belief that he would avoid prison time by pleading guilty and that his attorney had not misled him as to the sentence he would receive.

The trial court obviously did not believe Young’s testimony that he was deceived, and we cannot say that this credibility determination was clearly erroneous. Young failed to show ineffective assistance of counsel.

2. Young argues that the court should have allowed him to withdraw his guilty plea. After sentence has been pronounced, the withdrawal of a guilty plea lies within the sound discretion of the trial court, and we will not disturb the court’s decision absent a manifest abuse of discretion. The sole basis for Young’s motion to withdraw the plea was ineffective assistance of counsel. As the trial court did not err in finding no ineffective assistance, it follows that the court did not err in denying the motion to withdraw the plea.

Young also claims that he is innocent of the charge against him and that there was insufficient evidence with which to try him. But Young overlooks the fact that he pled guilty, admitting at the plea hearing that he “in fact did do the act that is described in [the] indictment” and that he was “factually guilty.” The trial court found that there was a factual basis for the plea and that Young entered it freely, voluntarily, and knowingly. Young provides no basis for disturbing these findings of the trial court and therefore no basis for withdrawing the guilty plea.

3. Young contends that the trial court erred by failing to hear argument and evidence on his extraordinary motion for new trial. The trial court correctly ruled that it could not consider Young’s extraordinary motion because he had earlier filed a notice of appeal. “A notice of appeal divests the trial court of jurisdiction to alter a judgment while [an] appeal of that judgment is pending.” Nor is Young’s extraordinary motion properly before this court, as it was filed after the notice of appeal and therefore is not encompassed in this appeal.

Even if Young’s extraordinary motion were properly before this court, he would not be entitled to relief. The trial court could not have granted him a new trial when he had never had a first one. Young’s motion was merely another attempt to undo his guilty plea, this time on the basis of alleged “newly discovered evidence” of his innocence. Young claimed that his wife had told hospital personnel at the outset that the stabbing had been accidental and that she was now repudiating any statements she later made to the contrary. But as the trial court pointed out, this evidence was not “new” because it existed at the time of the guilty plea. Moreover, Young knew about this evidence because the prosecutor told the court during the guilty plea hearing that Young’s wife initially had said the stabbing was an accident. Thus, the extraordinary motion for new trial provided no basis for withdrawing the guilty plea.

Decided March 14, 2002.

Glenward Young, pro se.

David McDade, District Attorney, for appellee.

4. Young has filed a “Motion for Contempt of This Court to Issue and Other Sanctions Against the Prosecutor for Fraud Upon the Court.” He argues that the prosecutor failed to file a timely response brief, failed to submit a victim’s affidavit as allegedly required by this court, and made “perjurious misstatements of material fact” in his brief. Having reviewed the record, we conclude this motion lacks merit, and we therefore deny it.

Judgment affirmed.

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

        Swan v. State, 251 Ga. App. 80 (1) (553 SE2d 383) (2001).

       See id.

       Young testified that he did not read the form before signing it, but his attorney testified that she had read it aloud to him.

        Wilcox v. State, 236 Ga. App. 235, 236 (1) (511 SE2d 597) (1999).

       (Citation omitted.) Peterson v. State, 274 Ga. 165, 171 (6) (549 SE2d 387) (2001).


text:
    A01A1956.
    A01A1957.
    PADRON v. THE STATE. CABRERA v. THE STATE.
    (562 SE2d 244)
   Blackburn, Chief Judge.

By interlocutory appeal, Beatriz Padrón and Orestes Cabrera challenge the trial court’s denial of their separate motions to suppress certain evidence found in their luggage during a search of the trunk of their vehicle. After review, we find that the trial court misapplied controlling law, and we reverse.

When reviewing a trial court’s decision on a motion to suppress, we must adopt the trial court’s findings of fact unless those findings are clearly erroneous and not supported by any evidence. State v. David. However, when conducting such review, we owe no deference to the trial court’s application of the law to undisputed facts. Hughes v. State.

Shortly after 9:30 p.m., while on patrol, Lowndes County Deputy Sheriff Bobby Gene Benefield stopped Cabrera’s vehicle on 1-75 for a minor traffic violation. Cabrera and his wife, Padrón, were the sole occupants of the vehicle. After informing Cabrera that he had been stopped for weaving, Benefield asked him if he was sleepy. Two or three times, the deputy asked him about his proficiency in English. About six minutes after initiating the traffic stop, Benefield told Cabrera that he intended to issue him a warning and started to write out the citation. While doing so, Benefield’s partner confirmed that Cabrera’s driver’s license was valid. Benefield returned the license to Cabrera and repeated that the citation was just a warning. While doing so, Benefield suddenly said, “[l]et me ask you this,” and inquired as to whether drugs, guns, alcohol, or large amounts of currency were in the vehicle. After Cabrera denied having any contraband, Benefield asked, “[w]ould you mind letting me search your car?” Cabrera answered, “what?” Apparently, Benefield repeated the question, and Cabrera’s response is inaudible on the videotape. Bene-field again asked, “[w]ould you give me permission to search through the car?” to which Cabrera responded, “okay.” Seeking further confirmation of Cabrera’s consent, Benefield asked Cabrera two more times, “[y]ou don’t mind?” and each time Cabrera seemed to consent. Benefield proceeded to search the vehicle. In the trunk, Benefield saw a black suitcase. Before the suitcase was opened and searched, Cabrera attempted at least three times to move closer. Each time Benefield ordered him to stand back using a stern tone of voice, plainly exercising control over Cabrera’s freedom of movement. By this show of authority, Cabrera’s freedom was obviously curtailed. Cabrera tried to protest that the luggage contained his and his wife’s clothes. During a search of the suitcase, a substance suspected to be cocaine was discovered inside it. When Cabrera denied knowing what it was, Benefield summoned backup to the scene. Field tests were positive for cocaine. Benefield then arrested the couple. The suspected cocaine was found about 20 minutes from the time the traffic stop began and about 12 minutes after Benefield sought Cabrera’s consent.

At the suppression hearing, Benefield testified that after he stopped Cabrera for the traffic violation, Cabrera seemed “very nervous.” Benefield testified that he was puzzled by the apparent nervousness of Cabrera and did not believe that Cabrera’s and Padron’s versions of their destination in Florida corresponded. Benefield testified and the videotape confirms that when he asked Cabrera for permission to search his car, Cabrera appears to agree to the search. Upon opening the trunk, Benefield saw a black suitcase. He testified, “Mr. Cabrera tried several times to walk up to me and tell me that that suitcase was his and his wife’s clothes. When I opened the suitcase I saw a white plastic bag that was tied at the top with a knot. I asked Cabrera what was in the white bag and he said it was his bag. I asked what was in the bag and he said, let me see the bag.” Bene-field testified that at no point did Cabrera ever ask him to stop searching his vehicle or ask to leave.

When asked on cross-examination, “[n]ow, after you gave him the warning ticket and the driver’s license back, was he free to leave?” Benefield responded in the negative. Benefield explained that “[d]ue to his nervousness and the confusion I had with what he was telling me, I felt there may be something criminal going on and that’s when I asked him for permission to search.” Benefield admitted that the questioning about the contents of the car occurred after he issued the warning ticket. This colloquy then ensued.

DEFENSE COUNSEL: Between the time you gave him the warning ticket and the time you asked him for consent to search you didn’t notice anything that was out of the ordinary, correct?
DEPUTY: No, I didn’t.
DEFENSE COUNSEL: So, basically, when you were asking those questions you were on a fishing expedition?
DEPUTY: I wouldn’t say a fishing expedition.
DEFENSE COUNSEL: You had a hunch that there was something going on?
DEPUTY: Yes, ma’am.

When the trial court interposed, “[h]e was just being held because you were curious?” the deputy answered, “I was trying to figure out what the confusion was and why he was so nervous, yes, sir, other than me just stopping him.”

After viewing the videotape of the traffic stop and considering the testimony offered at the suppression hearing, the trial court denied the motion to suppress. The trial court expressed concern that the deputy should have obtained an interpreter or a deputy fluent in Spanish and noted that “defendant Cabrera was not pacing and nervous but under [the] circumstances [of] standing on the interstate with vehicles going by, was calm and cooperative to the extent that he could be given the language barrier.” Nevertheless, the trial court concluded, “I do find that the consent given by Cabrera . . . was after he understood what was requested of him in terms of consent to search the car.” The trial court found that “[i]n this case the stop was valid and the consent was understood and was valid.”

Padrón and Cabrera separately appeal the trial court’s findings.

Case No. A01A1957

1. Cabrera contends that the evidence was obtained as the result of an illegal detention that lacked articulable suspicion and that exceeded the scope of a permissible investigation. We agree.

The Fourth Amendment protects a person’s right to be secure against unreasonable searches and seizures. The “ ‘touchstone of the Fourth Amendment is reasonableness.’ Florida v. Jimeno” Ohio v. Robinette. “Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” Id.

State v. Sims. In applying the Fourth Amendment in the context of a traffic stop,

if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop. This is so because “a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope.” And, “(t)he scope of the search must be ‘strictly tied to and justified by’ the circumstances which rendered its initiation permissible.”

(Citations omitted; emphasis in original.) Id. at 279-280. Thus, to justify additional questioning of a driver and the search of his vehicle following a routine traffic stop, an officer must have reasonable suspicion of criminal conduct. Parker v. State. To satisfy this “reasonable suspicion” standard, the officer’s investigation must be justified by specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Gary v. State of Ga. “Articulable suspicion requires a particularized and objective basis for suspecting that a citizen is involved in criminal activity.” State v. Causey. Although this suspicion need not meet the higher standard of probable cause, it must be more than mere caprice or a hunch. See Parker v. State, supra. In sum, when a traffic stop has been completed and the officer questions and detains a suspect for other reasons, he must have reasonable suspicion of other criminal activity. State v. Blair.

Here, the evidence fails to show that the investigating officer had specific, articulable facts that could constitute a particularized and objective basis for suspecting that Cabrera was involved in any criminal activity. As noted by the trial court, the videotape belies Benefield’s testimony that Cabrera seemed nervous. On the contrary, Cabrera was polite and fully cooperative. Similarly, the videotape belies Benefield’s testimony about any contradiction or confusion as to the couple’s driving destination. Cabrera says they are traveling to Hollywood, Florida, and so does Padrón. Although the deputy admittedly had a “hunch” that appears likely to have been based on ethnic profiling — a Spanish-speaking driver, originally from Cuba, and traveling southbound from Atlanta to Florida, no evidence showed the existence of a particularized and objective basis for suspecting criminal wrongdoing. See Payne v. State. After issuing the warning ticket, Benefield then began a separate and independent investigation having absolutely no connection to the traffic stop. See State v. Cunningham. The determinative issue is not whether the consent was freely given but whether the continued detention of Cabrera was based on reasonable, articulable suspicion. See id. Since the deputy’s effort to obtain consent occurred after the legitimate basis for the traffic stop had ended, and the deputy lacked a particularized and objective basis to justify continuing to detain Cabrera, the motion to suppress should have been granted. State v. Hanson

2. Cabrera argues that his consent to the deputy’s search of his vehicle was not freely and voluntarily given. He claims that in light of evidence of a language barrier or communication problems, the State failed to satisfy its burden of showing that he understood the deputy’s question and agreed to permit the search.

The videotape confirms the existence of serious communication problems. On several occasions, Cabrera did not seem to comprehend what Benefield was asking him or responded in such a way as to show that he misunderstood the question. In fact, when Benefield initially asked for consent to search the car, although Cabrera’s response is inaudible, Benefield immediately said, “no, no, no,” then had to repeat his question. Despite the availability of departmental consent to search waiver forms printed in Spanish, the deputy did not opt to use one. Only after arresting the couple did the deputy become concerned about their difficulty in understanding English, and he radioed ahead for an interpreter. In these circumstances, even had Cabrera been validly detained, the State failed to prove that Cabrera understood what was requested and validly consented to the search of the vehicle. See Harris v. State.

As a final matter, even assuming arguendo that Cabrera had initially agreed to the search, the videotape plainly shows that when the deputy began probing inside the trunk, Cabrera did not feel free to leave and go about his business or to controvert the intrusion. Instead, when Cabrera tried to approach his own car, he was sternly commanded to move back at least three separate times. See Morris v. State (once consent is legally obtained, it continues until it is revoked or withdrawn). The deputy admitted that after he issued the warning ticket, Cabrera was not free to leave. In these circumstances, it cannot be said that Cabrera did not try to revoke or withdraw his consent or to limit its scope. See Montero v. State.

Decided March 15, 2002.

John K. Edwards, Sr., Gregory A. Voyles, for appellant (case no. A01A1956).

Vernita L. Lee, for appellant (case no. A01A1957).

Case No. A01A1956

Padrón contends that her husband did not freely and voluntarily consent to the search. She claims that even if the search had otherwise been valid, it exceeded its lawful scope. Padrón argues that the trial court erred in finding that she was a mere passenger for standing purposes to contest the search. Padrón also contends that the suitcase was improperly searched because the deputy did not obtain her permission to examine it after being told that it contained clothes belonging to her and her husband.

In Case No. A01A1957, we found that the investigating officer lacked reasonable, articulable suspicion to detain and question Cabrera after the completion of his traffic investigation. Thus, the prolonged detention of Padrón and Cabrera was excessive and without legal justification. See State v. Cunningham, supra at 666. Even if Padrón had lacked standing to contest the search, she certainly had standing to challenge the seizure of her person that occurred in the form of the ensuing detention. Migliore v. State of Ga. Padron’s motion to suppress should also have been granted. State v. Hanson, supra; see State v. Duran.

Judgments reversed.

Pope, P. J., and Mikell, J., concur.

J. David Miller, District Attorney, J. Bennett Threlkeld, Assistant District Attorney, for appellee.

        State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998).

        Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998).

        Florida v. Jimeno, 500 U. S. 248, 250 (111 SC 1801, 114 LE2d 297) (1991).

        Ohio v. Robinette, 519 U. S. 33, 39 (117 SC 417, 136 LE2d 347) (1996).

        State v. Sims, 248 Ga. App. 277, 278 (546 SE2d 47) (2001).

        Parker v. State, 233 Ga. App. 616, 617-618 (1) (504 SE2d 774) (1998).

        Gary v. State of Ga., 249 Ga. App. 879, 880 (1) (549 SE2d 826) (2001).

        State v. Causey, 246 Ga. App. 829, 831 (1) (540 SE2d 696) (2000).

        State v. Blair, 239 Ga. App. 340, 341 (521 SE2d 380) (1999).

        Payne v. State, 244 Ga. App. 734, 742 (5) (536 SE2d 791) (2000).

        State v. Cunningham, 246 Ga. App. 663, 665 (541 SE2d 453) (2000).

        State v. Hanson, 243 Ga. App. 532, 534 (6) (532 SE2d 715) (2000).

        Harris v. State, 239 Ga. App. 537, 540 (2) (b) (521 SE2d 462) (1999).

        Morris v. State, 239 Ga. App. 100, 101 (1) (a) (520 SE2d 485) (1999).

        Montero v. State, 245 Ga. App. 181, 184 (537 SE2d 429) (2000).

        Migliore v. State of Ga., 240 Ga. App. 783, 787 (525 SE2d 166) (1999).

        State v. Duran, 220 Ga. App. 296, 297 (1) (469 SE2d 429) (1996).


text:
    A01A2148.
    POOLE v. THE STATE.
    (562 SE2d 239)
   Blackburn, Chief Judge.

Following his conviction on one count of rape, one count of kidnapping with bodily injury, and two counts of burglary, Larry James Poole appeals his conviction and the denial of his motion for new trial. He asserts that his Miranda rights were violated and that the evidence was insufficient to support his conviction. We affirm.

In the summer and fall of 1997, law enforcement officers in adjoining portions of Cobb and Douglas Counties received numerous complaints from older women, many of whom lived alone, about an intruder who attempted to, and sometimes did, gain entry to their homes late at night. Some of these victims reported that the intruder had not only stolen money and valuables from their homes but also had fondled or groped them as they lay in their beds. Complaints received by the police showed an escalating pattern of violent behavior and at least three women reported that they had been raped by the assailant.

Douglas County formed a task force in an attempt to solve the crimes which occurred in Lithia Springs. Members of the task force soon learned from officers in nearby Austell that that area of Cobb County was also experiencing an increase in break-ins, burglaries, and sexual assaults against older, single females. The intruder almost always gained entry to the homes by breaking glass from a rear window or door or removing the glass panes from jalousie windows. Police also suspected that the intruder lived in the area and went by foot or bicycle because no one had ever reported hearing a motorized vehicle at the time of the crimes.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” Mulvey v. State. Viewed in the light most favorable to support the verdict, the jury was authorized to find the following facts.

On August 9, 1997, J. P., a 73-year-old widow living in Lithia Springs, was awakened when the overhead light in her bedroom flashed on and then off. A light in the kitchen allowed her to see the silhouette of a person walking from her bedroom with a jewelry box which had been taken from a table near her bed. Thinking at first that it was her granddaughter, who lived with her, she called out to her, but after she realized that the person was not her granddaughter, she called for help. When the Douglas County officers arrived, they found that the screen near the back door had been torn and jalousie glass windows in her study had been removed, thus allowing the intruder to enter her house. Officers also found a bicycle in the victim’s backyard.

On August 19, 1997, N. B. suddenly awoke with the feeling that someone had touched her. As she rose from the living room couch on which she had been sleeping, she thought she saw someone go from the living room to the kitchen. Looking around, she noticed that her porch light was not on, and when she attempted to turn it on, it would not come on. She then walked from the front door to the kitchen, stopping when she noticed that the patio door curtains were being sucked outdoors. When she walked over to the door and pulled the curtains back, she was face to face with an unknown intruder who was standing in the open doorway. When the man’s hand came toward her, she grabbed the door and the intruder left. Frightened, N. B. ran next door, and her neighbor called the police. The police discovered that the intruder had gained entry by removing jalousie windowpanes. The next day, while cleaning up broken glass outside her window, N. B. found a baseball cap, rolled up and stuffed into a bush. Inside the cap were a package of crackers, some lottery tickets, and a set of keys, which she turned over to the police.

On September 6,1997, P. F. was asleep in her ground floor apartment in Austell. She was awakened by an attacker who was on top of her, covering her mouth and smothering her with his hands and telling her not to scream. Pinning her with one hand, he removed her clothes with the other and raped her. When the attacker moved his hand from her mouth, P. F. screamed for her son, who was not there, and the attacker jumped up and went into the bedroom to see if anyone else was in the house. Eluding his grasp, she ran to her neighbor’s house, screaming for her to call the police. P. F. was taken to the hospital within minutes; a rape examination was performed by medical personnel, who were able to recover semen left by the rapist.

Early on the morning of October 18, 1997, B. H. was alone in her Lithia Springs home when her doorbell rang. She went to the carport door and attempted to turn on the light, but it was not working. She opened the door and encountered a man who claimed that he had car trouble and asked to use the telephone; he gave her a number to dial, and she dialed the number for him and handed him the telephone. He told her that the number was busy. He then asked for water; she gave him a cup of water and then shut the door. As she turned from the door, the man came through the door and grabbed her from behind, covering her nose and mouth with his hand. He then pushed her down the hall into a bedroom and covered her with pillows so that she could not see. After looking through the house, the man demanded money, and B. H. directed him to a jar which contained $300. After looking through the house again, the man returned to the bedroom and raped B. H.

After raping B. H., the attacker asked her to take him to Villa Rica; she refused, and he left. B. H. then called the police who arrived and began an investigation. The police photographed a shoe impression left on the kitchen floor by the attacker and recovered two hairs from the victim’s bed.

After the rape of B. H., Investigator Tommy Wheeler, one of the members of the Douglas County task force, began a review of all of the evidence that had been compiled in the Lithia Springs and Aus-tell cases. Wheeler determined that the lottery tickets found by N. B. in the baseball cap had been purchased at a liquor store on the county line between Lithia Springs and Austell. The tickets all played the numbers 4-2-3. Conversations with employees at the liquor store revealed that Poole, whose birthday is April 23, was routinely known to play those numbers. Wheeler drove to the home of Poole’s mother, taking with him the keys recovered along with the lottery tickets found at N. B.’s house. When he showed them to Poole’s mother, she identified them as keys she had given to Poole. One of the keys fit Mrs. Poole’s front door, and the other key fit the car parked in her driveway. Wheeler also learned that Poole usually stayed with his mother in her mobile home; that home was about 500 yards through the woods from B. H.’s house.

Wheeler brought Poole in for interrogation. Poole came in voluntarily and, after being advised of his rights, agreed to talk with the police and waived his Miranda rights.

Poole confessed to the burglary of J. P.’s home, telling Wheeler that he had taken her jewelry box. The police had actually encountered Poole near the scene shortly after the burglary of J. P.’s house. Following that burglary, the police had set up a perimeter in the vicinity of J. P.’s house. After about 30 minutes, an officer had encountered Poole coming out of a wooded area and heading away from J. P.’s house. In response to questioning, Poole had said that he had just left his uncle’s house; the officer took him to the house and released him after the uncle corroborated his story. About a month after the J. P. burglary, the victim’s jewelry box was found in bushes near the spot at which the officer had first encountered Poole. Poole admitted to Wheeler that he had previously lied to him and that he had thrown the jewelry box into the bushes just before encountering the officer on August 9, 1997. Poole also admitted that the bicycle found at J. P.’s home belonged to him. The confession and these admissions were admitted at trial without objection.

Poole did not admit to the rape of B. H. during this first of two videotaped interviews. The interview was interrupted for the processing of Poole. Poole provided hair and blood samples to the police at that time.

Later, Poole indicated that he wished to speak further with Wheeler. During this second videotaped interview, Poole admitted to Wheeler that he had committed the crimes at the home of B. H. He described to Wheeler how he had unscrewed the lightbulb on the carport, entered the home through the carport door, and then raped and robbed B. H. An independent forensic identity testing lab conducted mitochondrial DNA sequencing on the hairs recovered by the crime scene specialist in B. H.’s bed and found that the DNA sequence in the hair samples matched the DNA sequence in Poole’s blood. In addition, testimony was admitted that the pattern from Poole’s tennis shoes matched the pattern left on B. H.’s kitchen floor by the shoes of her attacker.

Poole was charged with the rape and kidnapping with bodily injury, and burglary of the home, of B. H. in Lithia Springs (Counts 1, 2, and 3) and the burglary of the home of J. R, also in Lithia Springs (Count 4). Poole was convicted on all counts.

The trial court admitted evidence of the burglary of N. B. and the rape of P. R, the Cobb County crimes, as two prior similar transactions. See McGee v. State; Williams v. State. Poole admitted to Wheeler that he had committed the burglary of N. B.’s home and that he had left behind his hat, keys, and lottery tickets. He acknowledged that he often played the lottery numbers 4-2-3. This statement was also admitted without objection.

The DNA material recovered in the rape examination of P. E was compared to Poole’s known DNA; a DNA forensic chemist for the Georgia Bureau of Investigation concluded that they matched and that the odds of someone other than Poole being the donor were one in ten billion.

1. Poole argues that the trial court erred in admitting statements he made after he asserted his right to remain silent. Before admitting Poole’s confession, the trial judge held a Jackson-Denno hearing. At that hearing, Investigator Wheeler of the Douglas County Sheriff’s Department testified that on the night of November 10, 1997, he went to the home of Poole’s mother and verified that a set of keys found at the site of one of the burglaries had been in Poole’s possession. He then drove around until he found Poole and took him to the sheriff’s office. Wheeler advised Poole of his Miranda rights, and Poole agreed to answer questions. Poole was not handcuffed or shackled during the interview, was not suffering from any injuries or illnesses, understood the questions asked him, was not threatened or intimidated in any way, and was not offered any benefit or reward, or hope of either, in exchange for his cooperation.

The first part of the interview lasted four and one-half hours. During the first few hours of the interview, Poole admitted to Wheeler that he had committed both the N. B. and the J. P. burglaries. Toward the end of the first part of the interview, Detective Martin of the Cobb County Police Department began questioning Poole. In response to a question, Martin confirmed that Poole had the right to remain silent. At this point, Martin ceased asking questions and left the interview room. Wheeler then asked Deputy Mark Williams to take Poole to processing so that he could be booked.

Shortly after Poole left the interview room, Deputy Williams returned to tell Wheeler that Poole had said that he wanted to speak further with Wheeler. When Poole returned, he began asking Wheeler questions about his situation, and within a short time he confessed that he had committed the rape and kidnapping of B. H. and the burglary of her home.

In addition to hearing testimony from Investigator Wheeler, Betty Poole, the appellant’s mother, Deputy Williams, and Poole himself, the trial judge viewed portions of the tape relevant to the issue of the voluntariness of Poole’s confessions. The trial court viewed the entire interview by Wheeler that occurred after Poole asked to speak with him.

At the Jackson-Denno hearing, the trial judge ruled that, as to the first part of the interview, Poole was appropriately and adequately advised of his Miranda rights; that he had voluntarily waived those rights and spoken with the officers; that there was no credible evidence that Poole invoked his right to counsel; and that there had been a scrupulous observation of his right to remain silent after Poole had indicated that he had a right to remain silent. As to the second part of the interview, the trial judge found that it was the result of a request by Poole to speak to the officer. As Poole had voluntarily initiated a continuation of his conversation with Wheeler, he thereby waived his right to remain silent. Poole contests only the trial judge’s ruling as to his second conversation with Wheeler. We find no error in the trial court’s ruling.

“Unless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of a confession will be upheld on appeal. [Cits.]” (Punctuation omitted.) Snipes v. State. Given this standard, it is clear that the evidence supports the trial court’s findings in favor of admitting the confession. “The right to silence is not protected by a per se rule of ‘permanent immunity’ against further police-initiated interrogation. [Cits.]” (Punctuation omitted.) Larry v. State. As the United States Supreme Court stated in Michigan v. Mosley ,

Decided March 15, 2002.

Monica T. Myles, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, for appellee.

a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity, and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.

Id. at 102.

2. Poole contends that there was not sufficient evidence to support his convictions for the rape and kidnapping of B. H. and the burglary of her home (Counts 1, 2, and 3 of the indictment).

We find ample evidence from which a rational trier of fact could have concluded beyond a reasonable doubt that Poole was guilty of the rape, kidnapping, and burglary with which he is charged in Counts 1, 2, and 3. Jackson v. Virginia.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Mulvey v. State, 250 Ga. App. 345, 346 (1) (551 SE2d 761) (2001).

        McGee v. State, 267 Ga. 560, 562-564 (2) (480 SE2d 577) (1997).

        Williams v. State, 261 Ga. 640, 641-643 (2) (409 SE2d 649) (1991).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Snipes v. State, 188 Ga. App. 366, 368 (2) (373 SE2d 48) (1988).

        Larry v. State, 266 Ga. 284, 286 (2) (a) (466 SE2d 850) (1996).

        Michigan v. Mosley, 423 U. S. 96 (96 SC 321, 46 LE2d 313) (1975).

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