author: Eldridge, Judge.

text:
    A99A2196.
    EBERHART v. THE STATE.
    (526 SE2d 361)
   Eldridge, Judge.

Gary Dean Eberhart challenges his convictions on two counts of simple battery. We affirm.

When this Court reviews a conviction on appeal, “the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In evaluating the sufficiency of the evidence, “the relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in such light, the evidence showed that, at approximately 12:30 a.m. on June 30, 1998, Eberhart was intoxicated when he arrived at his Clarke County home. His wife and their infant daughter were asleep on the floor. Eberhart kicked his wife “all over” and told her to “get up” because he wanted to play cards. When she refused, Eberhart stepped on her head, kicked her again, grabbed her right arm, “yanked” her up off the floor, and slapped her repeatedly. Mrs. Eberhart attempted to leave the apartment while holding the child. Eberhart put his arms around her to prevent her from leaving. He threatened to kill her if she had him put in jail. Mrs. Eber-hart cried out for someone to call 911, slapped Eberhart, and ran from the apartment. As she ran down the street, Eberhart chased her on his bicycle. Mrs. Eberhart went to the nearby Athens Regional Medical Center emergency room.

Police officers responded to a 911 call and found Eberhart walking down the middle of the street. He appeared to be intoxicated and had a scratch underneath one eye, and his shirt was torn. After one of the police officers questioned Eberhart at the scene, the officer went to the emergency room and found Mrs. Eberhart. She was “visibly shaken and crying and very upset.” Mrs. Eberhart was barefoot and wearing pajamas. She had a “grab mark” on her right arm and a mark on her left knee. The entire left side of her face was very red. Based upon his investigation, the officer determined that Eberhart was the primary aggressor in a domestic dispute and returned to the scene, where he arrested Eberhart for simple battery.

Eberhart was tried by a jury in November 1998. In addition to the above evidence, the State showed that Eberhart is 6' tall and weighs 200 pounds, while Mrs. Eberhart is 5'2" tall and weighs 110 pounds. The State also presented evidence of a similar transaction occurring on August 11, 1997, when Mrs. Eberhart was seven and one-half months pregnant. During that incident, Eberhart struck Mrs. Eberhart in the stomach. The resulting bruise caused her to seek medical treatment in order to ensure the safety of her pregnancy.

After his conviction on both counts, Eberhart filed a motion for new trial. He appeals from the denial of that motion. Held:

1. In his first enumeration, Eberhart contends that the evidence was insufficient to support his conviction on the first count of simple battery, i.e., intentionally causing the victim physical harm. OCGA § 16-5-23 (a) (2). Specifically, he argues that the circumstantial evidence of his intent to commit the battery was insufficient, because it did not exclude the possibility that he did not intend to harm his wife. This argument is without merit.

“The intention with which an act is done is peculiarly for the jury.” (Citations and punctuation omitted.) Haney v. State, 234 Ga. App. 214, 216 (1) (507 SE2d 18) (1998). See also Grimsley v. State, 233 Ga. App. 781, 784 (1) (505 SE2d 522) (1998). It is often difficult to prove with direct evidence an individual’s intent as it existed at the time of the act for which they are being prosecuted. See Johnson v. State, 158 Ga. App. 183, 184 (1) (b) (279 SE2d 483) (1981); Davis v. State, 53 Ga. App. 325, 326 (185 SE 400) (1936). Therefore, it is often necessary to prove such intent through the use of circumstantial evidence. See Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993); Davis v. State, supra at 327. “Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6.” (Citations and punctuation omitted.) Grimsley v. State, supra. A jury may infer that a person acted with criminal intent after considering the “words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. See also Thrasher v. State, 225 Ga. App. 717, 718 (1) (484 SE2d 755) (1997); Nichols v. State, 210 Ga. App. 134, 138 (7) (435 SE2d 502) (1993). In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. OCGA § 24-4-6; Haney v. State, supra; Harris v. State, 222 Ga. App. 56, 58 (473 SE2d 229) (1996); Nichols v. State, supra. Whether a hypothesis is reasonable is a question for the jury, and such finding will not be disturbed on appeal unless the guilty verdict is insupportable as a matter of law. Wehunt v. State, 270 Ga. 456, 459 (511 SE2d 163) (1999); Harris v. State, supra; Williams v. State, 204 Ga. App. 43, 44 (418 SE2d 387) (1992).

In this case, the evidence demonstrated that Eberhart repeatedly made contact with his wife by kicking, slapping, and grabbing her, as well as holding her against her will. Eberhart admitted during his testimony that he intentionally “held [his wife] by her arms” to keep her from leaving the apartment, even though she asked him to let her leave. During his questioning by police officers, Eberhart admitted that he “grabbed” his wife’s arms. During his investigation, the police officer noticed that Mrs. Eberhart had a red “grab mark” on her arm, in addition to marks on her leg and face. Finally, the State presented evidence that Eberhart had struck his wife and inflicted a separate injury 11 months earlier.

Although Eberhart claimed at trial that he did not “intend” to hurt Mrs. Eberhart when he “nudged” and “grabbed” her, the jury also heard extensive evidence of both the acts and the resulting harm. The jury obviously found that Eberhart’s testimony lacked credibility and that his explanation was unreasonable. Such determination is solely within their power as factfinders. OCGA § 24-9-80; see also Bryant v. State, 226 Ga. App. 135, 136 (1) (486 SE2d 374) (1997); Thrasher v. State, supra at 717-718 (1); Parham v. State, 166 Ga. App. 855, 856 (1) (305 SE2d 599) (1983).

As such, the evidence was sufficient for the jury to find that Eberhart intentionally harmed his wife and was, therefore, guilty beyond a reasonable doubt of simple battery. See Jackson v. Virginia, supra.

2. In his second enumeration, Eberhart contends that the circumstantial evidence presented was insufficient to support his conviction for the second count of simple battery, i.e., intentionally making physical contact of an insulting and provoking nature with the victim. OCGA § 16-5-23 (a) (1). We disagree.

As noted above, there was extensive evidence presented to show that Eberhart repeatedly kicked, slapped, and grabbed his wife. Eberhart testified at trial that he made the first, unprovoked contact with his sleeping wife when he “nudged” her with his foot to wake her up. He also admitted trying to “control” her by grabbing her arms and keeping her from leaving.

As such, the undisputed evidence demonstrated that Eberhart intentionally made contact with Mrs. Eberhart. Whether or not such contact was “insulting and provoking” was a factual issue to be decided by the jury. Such finding will not be disturbed on appeal as it was supported by competent evidence and, therefore, was not clearly erroneous. See Thrasher v. State, supra at 718 (1). The evidence presented was sufficient to find Eberhart guilty beyond a reasonable doubt on the second count of simple battery. See Jackson v. Virginia, supra.

Judgment affirmed.

Blackburn, P J., and Barnes, J., concur.

Decided November 30, 1999.

Finch & Finch, Debra M. Finch, for appellant.

Kenneth W. Mauldin, Solicitor, Phillip C. Griffeth, Karl D. Cooke, Jr., Assistant Solicitors, for appellee.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A2382.
    ROUSE v. THE STATE.
    (526 SE2d 360)
   Barnes, Judge.

Jerome Rouse appeals his conviction for possession of cocaine. He contends the trial court erred by denying his motion to suppress cocaine seized from his person because it was the product of an illegal search. Because we find that the motion did not comply with OCGA § 17-5-30, however, we must affirm the trial court’s dismissal of the motion.

The record and transcript show that Rouse personally filed a handwritten motion to suppress without the assistance of counsel on September 30, 1996. This motion, however, was untimely because it was filed after Rouse, with the assistance of counsel, waived formal arraignment on September 13, 1996. Uniform Superior Court Rule 31.1. Further, the motion contained conclusions rather than facts, e.g., “no valid arrest,” “search . . . without any valid constitutional basis,” and referred to a search of both Rouse’s car and his person.

Later, the trial court permitted Rouse’s counsel to file a written amendment to the motion to suppress, but the amended motion, prepared and filed by counsel, also contained conclusions only. It stated:

Comes now defendant Jerome Rouse and moves to dismiss indictment and suppress evidence (drugs) for following reasons: Defendant on August 11, 1996 defendant [sic] was not violating any law at 229 Holloway Drive. Officers conducted a Terry frisk without a reasonable and articulable facts or suspicion [sic]. Defendant relies upon State v. Banks, 223 Ga. App. 838 (1996).

Consequently, neither the original motion nor the amended motion complied with the requirement of OCGA § 17-5-30 (b) that the “motion shall be in writing and state facts showing that the search and seizure were unlawful.”

The State moved to dismiss Rouse’s motion because of these procedural deficiencies, but the trial court denied the State’s motion, reserving the right to dismiss Rouse’s motion after hearing it. After hearing evidence and argument of counsel on the motion to suppress, the trial court ruled it would “deny and/or dismiss” the motion..

Decided November 30, 1999.

Martin C. Puetz, for appellant.

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

As all motions to suppress must state facts and not merely conclusions (Boatright v. State, 192 Ga. App. 112, 118 (8) (385 SE2d 298) (1989)), and no facts were stated in these motions, the trial court did not err by dismissing Rouse’s motion. Taylor v. State, 197 Ga. App. 678, 679 (1) (399 SE2d 213) (1990).

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

Eldridge, J., concurs. Blackburn, P. J., concurs in the judgment only.


author: Ruffin, Judge.

text:
    A99A1528.
    SALAHUDDIN v. THE STATE.
    (525 SE2d 422)
   Ruffin, Judge.

Four bystanders were shot during a gun battle in the crowded parking lot of a Fulton County nightclub. Elijah Salahuddin, one of the gunmen, was charged with four counts of aggravated assault and was convicted on three of those counts. He asserts numerous errors on appeal, all of which we reject.

1. First, Salahuddin contends that the trial court’s jury instruction on aggravated assault erroneously apprised the jury that the crime could be committed in a manner different from that charged in the indictment. The indictment charged Salahuddin with assaulting each of the four victims by shooting them with a pistol. The contested jury charge was as follows:

I charge you that an assault is an attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of immediately receiving a violent injury. I charge you that a person commits aggravated assault when he assaults another person with a deadly weapon. ... I charge you that deliberately firing a gun in the direction of a human being raises no issue of accident or misfortune when the charge is aggravated assault. I charge you that intent to injure is not an element of aggravated assault with a deadly weapon.

According to Salahuddin, the charge allowed the jury to conclude that he was guilty of aggravated assault even though he may have only shot at the victims, without actually hitting them. Thus, Salahuddin contends that the jury charge impermissibly expanded the indictment. The error was particularly prejudicial, according to Salahuddin, because one of his defenses at trial was that someone else’s bullets — and not his — struck the victims. Although we agree with Salahuddin that part of the trial court’s jury instruction was unnecessary and potentially confusing, we find no error in the charge as a whole.

Under Georgia law, a due process violation may occur when an indictment charges the defendant with committing a crime in a specific manner, but the trial court instructs the jury that the crime may be committed in a different manner. If there was evidence at trial to support a conviction on the manner of committing the crime not stated in the indictment, and the trial court did not instruct the jury to limit its consideration to the manner alleged in the indictment, then the defendant’s conviction must be reversed.

The crime of aggravated assault consists of an assault coupled with a statutory aggravating factor. Under OCGA § 16-5-21 (a), an aggravated assault occurs when a person commits an assault either (1) with the intent to murder, rape, or rob; (2) with a deadly weapon; or (3) by discharging a firearm from within a moving vehicle toward a person. Here, the indictment charged Salahuddin with aggravated assault by the second method — i.e., “shooting,” or using a deadly weapon — and the trial court instructed the jury on that same method. But the jury charge also included the definition of simple assault, which is either (1) an attempt to commit a violent injury to the person of another or (2) an act that places another in reasonable apprehension of immediately receiving a violent injury.

The simple assault instruction was superfluous and potentially misleading. “[T]he meaning of ‘assault’ in aggravated assault is not at all equivalent to the definition of simple assault” in OCGA § 16-5-20 (a). This is particularly true where, as here, the indictment alleges a completed act of violence. Salahuddin was charged with actually shooting the victims, not with merely attempting to shoot them or with placing them in fear of being shot. Thus, the State had to prove that Salahuddin actually shot the victims. The trial court’s simple assault instruction, however, suggested that Salahuddin could be found guilty even if he did not shoot the victims, as alleged in the indictment, but merely tried to shoot them or placed them in fear of being shot.

Despite this improper suggestion, the jury charge as a whole was not erroneous. At the beginning of the jury instructions, the trial court read the indictment to the jurors verbatim. Later, the court told the jury that “[t]he State must prove beyond a reasonable doubt that the alleged offense or offenses were committed in the manner charged in the indictment.” (Emphasis supplied.) This limiting instruction informed the jury that the State had to prove that Salahuddin actually shot the victims, as charged in the indictment, and thereby cured the problem with the simple assault charge.

2. Salahuddin also contends that the discrepancy between the indictment and the aggravated assault charge violated his federal constitutional rights. The State did not address this argument in its brief. Although federal law on this point differs from Georgia law, we find no federal due process violation either.

Because a defendant may be convicted only for a crime charged in the indictment, the federal due process clause prohibits the constructive amendment of an indictment to broaden the possible bases for conviction beyond what is contained in the indictment. A jury instruction that constructively amends an indictment “constitutes per se reversible error because such an instruction . . . creates the possibility that the defendant may have been convicted on grounds not alleged in the indictment.”* There is no federal due process violation, however, where the indictment simply alleges facts in excess of the elements needed to prove the charged offense. Thus, for example, in United States v. Caldwell, the United States Court of Appeals for the Sixth Circuit found no error where the indictment alleged that the defendant manufactured more than 1,000 marijuana plants, but the trial court instructed the jury that the government did not need to establish exactly how much marijuana the defendant had grown. That is because drug quantity was not an element of the charged offense. Likewise, in this case, actual injury is not an essential element of aggravated assault under Georgia law. Thus, the trial court’s failure to explicitly charge the jury that it had to find that Salahuddin shot the victims was not error under federal law.

3. Next, Salahuddin challenges the trial court’s charge to the jury that “it is not essential for the state to locate bullet, bullet holes, or expended shells to establish the crime of aggravated assault.” According to Salahuddin, this charge improperly commented on the evidence in violation of OCGA § 17-8-57 because it told the jurors to disregard the State’s failure to properly collect evidence at the scene. We squarely rejected this argument in Willis v. State, holding that the exact instruction challenged here simply charged a point of law and was not an impermissible comment on the evidence. Thus, this enumeration lacks merit.

4. Salahuddin contends that the trial court erred in denying his motion for a mistrial after the prosecutor improperly commented on his right to remain silent. At trial, the arresting officer testified that he spoke with Salahuddin after reading him his Miranda rights. The prosecutor asked the arresting officer the following question: “At any point during that conversation did he say anything to the effect if he was acting in self-defense or if someone was shooting at him, did he say anything to you like that that night?” Before the officer could answer the question, Salahuddin’s attorney requested a bench conference. Defense counsel then moved for a mistrial, arguing that it was prejudicial for the prosecutor to ask if Salahuddin had come forward with information. The trial court denied the motion for mistrial, but instructed the jury to disregard the question and then asked if any of the jurors would be unable to do so. None of the jurors indicated that they would have a problem disregarding the question, and one juror asked what the question was. Salahuddin then renewed his motion.

Pretermitting whether the prosecutor’s unanswered question constituted an improper comment on Salahuddin’s post-arrest silence, we find that the trial court did not abuse its discretion in refusing to grant a mistrial. We have held that “[improper reference to a defendant’s silence does not automatically require reversal.” Here, the arresting officer did not even answer the allegedly improper question, diminishing greatly the possibility of any prejudice to Salahuddin. The trial court promptly gave a curative instruction to the jury and questioned them as to their ability to disregard the question. None of the jurors indicated that they could not do so. Under these circumstances, we find no error.

Decided November 17, 1999

Reconsideration denied December 1, 1999

5. Finally, Salahuddin argues that reversal is required because the trial court improperly charged the jury that they had to reach a unanimous verdict on the aggravated assault charges before they could consider whether he was guilty of any lesser included offenses. The trial court charged the jury as follows:

Should you find the defendant not guilty of aggravated assault in Count 1 or should you have a reasonable doubt as to his guilt of that offense, then you would be authorized to determine under the evidence whether or not the defendant is guilty of the lesser included offense of reckless conduct or pointing a pistol at another. . . . Now, the same thing I’ve said about Count 1 applies to Counts 2, 3, and 4.

We reject Salahuddin’s contention that this was an improper sequential charge.

Our Supreme Court has held that it is error for a trial court to require unanimity on a greater offense before the jury can vote on a lesser included offense. This rule is based on the principle that a verdict of guilty on a lesser included offense operates as an acquittal on the greater offense. Here, however, the trial court did not instruct the jury that it had to reach a unanimous verdict on aggravated assault before it could consider the lesser included offenses. The court merely suggested the order in which the offenses should be considered. This was not error.

Judgment affirmed.

McMurray, P. J, concurs. Andrews, P. J., concurs in the judgment only.

Brian Steel, for appellant.

Paul L. Howard, Jr., District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.

        Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

       Id.; Dukes v. State, 265 Ga. 422, 424 (457 SE2d 556) (1995).

       See King v. State, 178 Ga. App. 343, 344 (1) (343 SE2d 401) (1986).

       See Rushin v. State, 180 Ga. App. 276 (1) (348 SE2d 910) (1986) (indictment alleging aggravated assault by “shooting” charged defendant with violating OCGA § 16-5-21 (a) (2) — assault with deadly weapon).

       OCGA § 16-5-20 (a).

        Zachery v. State, 158 Ga. App. 448, 450 (3) (280 SE2d 860) (1981).

       See Elrod v. State, 238 Ga. App. 80, 82 (2) (517 SE2d 805) (1999) (all averments in indictment “must be proved as laid” to sustain conviction).

       See Ceasar v. State, 239 Ga. App. 752 (521 SE2d 866) (1999) (“Jury instructions must be read and considered as a whole in determining whether a charge contained error.”).

       See Robinson v. State, 268 Ga. 175, 176-177 (2) (486 SE2d 156) (1997). In the argument portion of his brief, Salahuddin complains that the State failed to prove that he actually shot the victims. As he did not include this argument in his enumeration of errors, we are not obligated to consider it. See, e.g., Mackey v. State, 235 Ga. App. 209, 210 (1) (509 SE2d 68) (1998). Having reviewed the transcript, however, we are satisfied that the evidence was sufficient for the jury to infer that Salahuddin’s bullets hit the victims. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        United States v. Keller, 916 F2d 628, 633 (11th Cir. 1990).

        United States v. Cancelliere, 69 F3d 1116, 1121 (11th Cir. 1995).

       Id.; see also United States v. Miller, 471 U. S. 130, 136 (105 SC 1811, 85 LE2d 99) (1985).

       176 F3d 898 (6th Cir. 1999).

       See, e.g., Gilbert v. State, 209 Ga. App. 483, 484 (1) (433 SE2d 664) (1993).

       214 Ga. App. 479, 481 (5) (448 SE2d 223) (1994).

       (Punctuation omitted.) Ledford v. State, 221 Ga. App. 238, 242 (4) (470 SE2d 796) (1996).

       See id.; Sims v. State, 213 Ga. App. 151, 152-153 (2) (444 SE2d 121) (1994).

        Cantrell v. State, 266 Ga. 700, 702 (469 SE2d 660) (1996).

       See Suits v. State, 270 Ga. 362, 366 (6) (507 SE2d 751) (1998); Brewer v. State, 224 Ga. App. 656, 658 (3) (481 SE2d 608) (1997); Harper v. State, 157 Ga. App. 480, 481 (2) (278 SE2d 28) (1981). Compare Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998) (finding error where trial court charged that if jury found defendant not guilty of greater offense, “then and only then” could jury consider lesser included offense).


author: McMurray, Presiding Judge.

text:
    A99A1660.
    MERCHANT v. MITCHELL et al.
    (525 SE2d 710)
   McMurray, Presiding Judge.

Appellant-plaintiff, pro se, Hubert W. Merchant, Jr. brought the instant renewal action for abusive litigation against appellees-defendants Marshall Lynn Mitchell, Daveeta C. Johnson, the Southeast Atlanta Resource Center for Housing (“SEARCH”), a nonprofit corporation, Joe A. Weeks, an attorney, and Joe A. Weeks, P.C. The record reflects that Mitchell, represented by Weeks, sued plaintiff in a 1993 action for libel and slander upon ethics charges plaintiff purportedly made against Johnson in running for her seat on the Atlanta City Council. Mitchell then served as Johnson’s campaign manager.

Plaintiff appeals principally from the superior court’s orders: (a) granting summary judgment to Johnson dismissing her from the instant action and finding plaintiff’s claims against Johnson barred by the doctrine of res judicata, (b) granting SEARCH’S motion to dismiss for failing to state a claim for which relief can be granted upon finding that plaintiff “failed to allege any specific acts committed against him by . . . SEARCH or identify any injury that he suffered as a result of any conduct by SEARCH whatsoever,” and (c) granting summary judgment to attorney Weeks and Joe A. Weeks, P.C., dismissing each from this action because plaintiff failed to comply with the notice provisions of OCGA § 51-7-84 requiring notification to them by letter of his intent to pursue a claim of abusive litigation against them personally. Held:

1. Plaintiff contends that the superior court erred in dismissing attorney Weeks and Joe A. Weeks, P.C. from this action for giving insufficient notice of abusive litigation under OCGA § 51-7-84. The record shows that plaintiff gave written notice of this action for abusive litigation to Mitchell alone in December 1993, rather than to attorney Weeks and Joe A. Weeks, P.C. A second letter, dated June 20, 1994, gave attorney Weeks notice that plaintiff’s action was directed against him personally, but this letter is immaterial as it was sent a month after the complained-of action for libel and slander had been dismissed. Accordingly, we conclude that the superior court properly dismissed attorney Weeks and Joe A. Weeks, P.C. as defendants in the instant action for plaintiff’s failure to give written notice that he intended to sue them for abusive litigation personally. OCGA § 51-7-84 (a); Payne v. Kanes, 234 Ga. App. 524, 527 (1) (507 SE2d 266); Talbert v. Allstate Ins. Co., 200 Ga. App. 312, 313 (2) (408 SE2d 125).

2. In several enumerations of error, plaintiff contends that the superior court erred: (a) in granting SEARCH’S motion to dismiss for failing to state a claim for which relief can be granted, (b) in failing to stay the instant action during the pendency of SEARCH’S bankruptcy, and (c) in denying his motion to disqualify attorney Weeks for his status as SEARCH’S attorney and as Mitchell’s “alter ego” in the action against plaintiff for libel and slander.

The superior court granted SEARCH’S motion to dismiss for failure to state a claim for which relief may be granted, finding that the plaintiff “failed to allege any specific facts committed against him by [SEARCH] or identify any injury that he suffered as a result of any conduct by [SEARCH] whatsoever.” Plaintiff’s complaint neither alleges facts specifying acts of commission or omission committed against him by SEARCH nor of resulting injury inuring to his detriment. We conclude that the trial court properly dismissed SEARCH from this action. OCGA § 9-11-52 (a trial court’s findings of fact will not be set aside on appeal unless clearly erroneous). In light of the foregoing, the superior court properly denied as moot plaintiff’s motion to disqualify attorney Weeks as SEARCH’S attorney herein, and there was no requirement to stay the proceedings upon SEARCH’S alleged bankruptcy. Under these circumstances, the foregoing claims of error are deemed to be without merit.

3. In four enumerations of error, the plaintiff complains of superior court orders: (a) denying him fees for expenses of litigation, (b) directing the parties to file no further pleadings, (c) denying his motions to compel discovery, and (d) denying as moot his motion to disqualify the attorney provided to Johnson by the City of Atlanta. Inasmuch as these allegations of error arose in the action plaintiff voluntarily dismissed before filing the instant renewal action, they are not before us on appeal. OCGA § 5-6-38 (a); Jarrard v. Copeland, 205 Ga. App. 20, 21 (421 SE2d 84). Accordingly, these claims of error are without merit.

4. Further, plaintiff contends that the superior court erred in granting Johnson summary judgment and dismissing her as a defendant in this action based upon the doctrine of res judicata.

Res judicata lies upon satisfaction of three prerequisites: “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5). In the case sub judice, plaintiff avers that “[a]ll parties are the same. The allegations are substantially the same.” In this regard, it is undisputed that plaintiff did not appeal from the order dismissing Johnson as a defendant before his voluntary dismissal of the underlying action. OCGA § 5-6-38 (a); Askren v. Allen, 132 Ga. App. 292, 293 (1) (208 SE2d 165). Further, in dismissing Johnson from this action upon grant of summary judgment, the superior court at Johnson’s request directed “entry of final judgment as to Defendant Johnson upon the express determination that there is no just reason for delay.” Such order constituted a final adjudication upon the merits thereof. OCGA § 9-11-41 (b) (2). See also OCGA § 9-11-54 (b); Culwell v. Lomas &c. Co., 242 Ga. 242, 243 (248 SE2d 641). Plaintiff concedes that the order was issued by a court of competent jurisdiction, and the finality of the order was unaffected by plaintiff’s action voluntarily dismissing the lawsuit. Guillebeau v. Yeargin, 254 Ga. 490, 492 (1) (330 SE2d 585).

Decided November 18, 1999

Reconsideration denied December 1, 1999

Hubert W. Merchant, Jr., pro se.

Joe A. Weeks, pro se.

Bernard R. Thomas, Sr., Lemuel H. Ward, Susan P. Langford, for appellees.

There thus being identity of the parties, identity of the subject matter, and final adjudication on the merits by a court of competent jurisdiction, the defense of res judicata lies. Accordingly, this claim of error is without merit.

5. Plaintiff does not support his second and fifth enumerations of error by citation of authority or argument. Accordingly, these claims of error are deemed abandoned. See Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       Plaintiff’s complaint also alleged a pattern of threats and assaults against Mitchell and conspiracy to defraud the public against both Mitchell and Johnson.


author: Johnson, Chief Judge.

text:
    A99A1698.
    A99A1699.
    KAZEEM v. THE STATE. ARAMOLATE v. THE STATE.
    (525 SE2d 437)
   Johnson, Chief Judge.

After a joint bench trial, Taofik Kazeem was convicted of financial transaction card theft, and his co-defendant, Ajibola Aramolate, was convicted of forgery and giving a false name. Because the men raise similar issues on appeal, we have consolidated their appeals.

1. Kazeem and Aramolate contend the trial court erred in denying their motions to suppress evidence seized from Kazeem’s car and from Aramolate’s wallet found in the car. They complain that the state failed to prove that the officers who stopped them had a reasonable articulable suspicion justifying the stop. We agree that the evidence presented during the hearing and trial does not support the trial court’s determination that the detention was lawful. Therefore, we reverse.

Our responsibility in reviewing a trial court’s decision on a motion to suppress is to ensure that there was a substantial basis for the decision. On appeal, we construe the evidence most favorably to uphold the judgment of the trial court.

So construed, the evidence shows that the branch manager of Regent Bank was watching for suspicious people because two of the bank’s other branches had been robbed recently. She saw Aramolate walk toward the rear of the bank from a car parked behind some trees in a grocery store parking lot. She thought this was odd because parking was available at the bank and people rarely walked that route. Aramolate entered the bank and picked up dozens of bank pamphlets and credit applications. The bank manager testified that Aramolate paid little attention to the papers he was gathering and instead looked mostly at the employees, customers, and security cameras. When bank employees asked him if he needed help, he said he did not. Aramolate left the bank and walked back to the car. The bank manager watched as Kazeem drove the car away. She immediately called 911 and told the dispatcher that there had been a suspicious person in the bank. She gave the dispatcher descriptions of Aramolate and the car and the direction in which the car had traveled.

The manager testified that the car returned a few minutes later, traveled through the bank parking lot and parked in the grocery store parking lot. This time Kazeem got out of the car and walked to the bank, using the same route as Aramolate. Once inside, Kazeem asked about other branch locations. The manager gave him a brochure, and he left. The manager called the police again, told them there was a second man involved, and described Kazeem. When asked what-information she gave police in her 911 calls, she testified that she only said there was a suspicious person, described the first man, said which way he exited the bank and, in a later call, described the second man. She apparently did not convey in her phone calls most of the details included in her testimony.

A police officer testified that he heard police radio broadcasts stating that a man had come into the bank, requested information about opening an account and was picking up brochures at random without paying attention to what he was picking up. The transmission included information that the man was watching bank employees and customers, that he had left, and was now returning. The officer did not recall hearing that the man looked at security cameras and did not mention hearing any other details in the radio broadcast.

When the officer arrived at the grocery store parking lot, he saw that two fellow officers had already stopped Kazeem and Aramolate. The officer testified that he arrived a couple of minutes after the other two officers. At that time, Kazeem was standing beside a police car, and Aramolate was sitting in Kazeem’s car. The other two officers were questioning the men, and according to the third officer, the men were not free to leave at that time. The third officer did not question the men, but “[kjind of stood by.” The officer overheard the detaining officers request and obtain consent from Kazeem to search the car.

In searching the car, police found a gas credit card in the name of “Mark Abraham,” and Aramolate’s wallet containing a driver’s license bearing his photograph and the name “Kevin Soderholm.” Police charged Kazeem with theft of the credit card, and Aramolate with forging the driver’s license and giving officers a false name.

We hold that, because it is unclear what facts the officers who initiated the stop had before they made the stop, the evidence should have been suppressed. “Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” The totality of the circumstances is taken into account in determining whether the detaining officer has a particularized and objective basis for suspecting the person stopped of criminal conduct. The legality of the stop depends upon what information police officers had prior to making the stop.

Here, the two officers who actually initiated the stop and detained Kazeem and Aramolate did not testify at the motion to suppress hearing or at trial. The only police officers called as witnesses were: (1) the third officer, who arrived on the scene minutes after the stop occurred; (2) an off-duty officer who heard the radio broadcast regarding a “suspicious person” or “suspicious vehicle” from inside the grocery store and notified police that the car was still in the store parking lot; this officer “barely heard” the transmission and could not recall any details of the broadcast; and (3) a detective who arrived later to investigate the incident. The state has not offered any explanation for its failure to call as witnesses the officers who actually made the stop. Without the testimony of the officers who stopped and detained Aramolate and Kazeem, we do not know what information those officers had before making the stop and whether they had an objective and particularized basis for stopping the men. Therefore, the state has not met its burden of showing that the stop was justified.

The fact that the bank manager may have had specific facts supporting her suspicion that the men were “casing” the bank does not make the stop lawful. As we held in Oboh, the bank employee must communicate to the police a factual basis for her suspicion. Although the bank manager’s testimony at the hearing and trial regarding her suspicions was specific, her call to police before the stop occurred was not so detailed.

Nor is the stop justified by the fact that officers other than the two making the stop had heard some of the facts relied upon by the bank manager. It is true that information which police transmit to one another can create an articulable suspicion justifying a stop. A detaining officer is entitled to rely on information given him by fellow officers in forming an articulable suspicion. However, assuming the information contained in the radio transmission was sufficient to give rise to a reasonable suspicion of criminal conduct, there is no evidence that the officers who stopped the men heard the broadcast. The burden of proving that the men were not stopped illegally rests upon the state.* Because there is no evidence that the detaining officers had a reasonable suspicion that Kazeem and Aramolate were, or were about to be, engaged in criminal activity, the stop and detention were illegal. The trial court’s denial of the motions to suppress must be reversed.

2. Based on the foregoing, we need not consider the remaining enumeration of errors.

Judgments reversed.

McMurray, P. J., and Phipps, J., concur.

Decided November 18, 1999

Reconsideration denied December 1, 1999.

H. Glenn Fogle, Jr., for appellant (case no. A99A1698).

Barry M. Hazen, for appellant (case no. A99A1699).

Ajibola Aramolate, pro se.

Patrick H. Head, District Attorney, Michael S. Moody, Ann B. Harris, Assistant District Attorneys, for appellee.

        State v. Wesson, 237 Ga. App. 789, 790 (516 SE2d 826) (1999).

       Id.

       (Citation and punctuation omitted.) Attaway v. State, 236 Ga. App. 307, 308 (511 SE2d 635) (1999).

       Id.; Bonner v. State, 233 Ga. App. 215, 216 (504 SE2d 27) (1998).

        Oboh v. State, 217 Ga. App. 553, 555 (458 SE2d 177) (1995).

       See generally Barnes v. State, 228 Ga. App. 44, 46 (491 SE2d 116) (1997).

       Supra at 555-556.

        Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896) (1990).

        Fritzius v. State, 225 Ga. App. 642, 646 (484 SE2d 743) (1997).

       Compare Hestley v. State, 216 Ga. App. 573 (1) (455 SE2d 333) (1995).

        State v. Holler, 224 Ga. App. 66, 69 (2) (479 SE2d 780) (1996).

       See Tarwid v. State, 184 Ga. App. 853, 856 (363 SE2d 63) (1987).


text:
    A99A1951.
    HAYNES et al. v. FINCHER et al.
    (525 SE2d 405)
   Johnson, Chief Judge.

The central issue in this case is whether an arbitration provision contained in a builder’s warranty is enforceable. We find that the provision is enforceable and therefore affirm the trial court’s grant of summary judgment to the builder.

In March 1995, William and Annie Haynes contracted to buy a house to be built by Donald Fincher. Among other things, the contract provided that a builder’s warranty from the Residential Warranty Corporation would be delivered to the Hayneses at the closing of the sale of the house. Fincher built the house, and the closing was held in November 1995. At the closing, the Hayneses applied for the builder’s warranty, which Residential eventually issued. The Hayneses’ signed application provides that the warranty consists of that application and the warranty program booklet. The application further states that by signing the application the Hayneses acknowledged that they had read the booklet.

The introduction to the booklet stresses that the warranty program provides for the settlement of disputes by binding arbitration. And a subsequent section in the booklet establishes that any disputes the buyers have with the builder may be submitted to binding arbitration governed by the procedures of the Federal Arbitration Act.

About eight months after the closing, the Hayneses initiated arbitration proceedings against Fincher under the warranty program, claiming numerous defects in their newly constructed home. An arbitrator was appointed and a hearing was held at which the parties presented their evidence and arguments. The arbitrator then issued a final award, finding the builder responsible for some, but not most, of the claimed defects. The Hayneses did not appeal that award pursuant to the arbitration appeal procedures allowed by the warranty program.

Instead, several months after the arbitrator’s award, the Hayneses sued Fincher and his company, Tara Construction Company, as well as the company of his former building partner, for breach of contract, negligence and fraud. Fincher and Tara moved for summary judgment, asserting that the warranty provided for binding arbitration which had already been held. The trial court granted the motion. The Hayneses appeal from the grant of summary judgment to Fincher and Tara.

1. The Hayneses argue that the binding arbitration provision contained in the warranty program is not an enforceable agreement because neither they nor Fincher initialed it as required by OCGA § 9-9-2 (c) (8). The argument is without merit because that Code section requires parties to initial arbitration clauses only in home sale or loan contracts. The builder’s warranty which the Hayneses obtained from Residential is not a home sale or loan contract, and therefore OCGA § 9-9-2 (c) (8) does not apply to that warranty. Consequently, the absence of the parties’ initials beside the warranty’s arbitration provision is not fatal to that provision.

The Hayneses’ attempt to avoid their agreement to be bound by the warranty’s arbitration provision is unpersuasive. It is undisputed that the Hayneses applied for the warranty; the face of their application plainly states that the warranty consists of the application and the warranty program booklet, and that by signing the application they acknowledge having read the warranty booklet; the booklet clearly provides that disputes may be resolved by binding arbitration under the Federal Arbitration Act; the Hayneses sought the benefit of such dispute resolution by requesting arbitration pursuant to the warranty program; they participated in the arbitration which they had started; and they obtained a final arbitration award that they did not challenge under the arbitration appeal procedures.

Based on these facts, there is no question that the Hayneses agreed to the warranty program’s binding arbitration provision. And contrary to the Hayneses’ arguments, such an agreement is valid and enforceable. The Hayneses have shown no error.

2. The Hayneses contend that the arbitration provision in the warranty program is unenforceable because Fincher fraudulently misrepresented to them his ability to procure the warranty. The contention is without merit because even if we assume there is some evidence that Fincher misrepresented his ability to get the warranty, the warranty was in fact procured and is in effect. In order to establish fraud, plaintiffs must show that they have been damaged by the alleged misrepresentation. Because the warranty was actually issued, the Hayneses have shown no harm from the alleged misrepresentation and no basis for reversing the summary judgment ruling.

3. The Hayneses enumerate that the court erred in granting summary judgment because some of the matters raised in this lawsuit fall outside the scope of the arbitration agreement. The Hayneses have failed, however, to indicate exactly what matters are outside the scope of the arbitration award that they sought and obtained pursuant to the arbitration agreement. It is not the function of this court to cull the record and speculate as to what matters possibly support the Hayneses’ enumerated error. Their failure to articulate the specific bases for the alleged error amounts to a failure to show a genuine issue of material fact requiring reversal of the summary judgment ruling.

4. The Hayneses’ contention that the warranty provision for arbitration is void as against public policy is specious. The General Assembly’s adoption of the Georgia Arbitration Code establishes a clear public policy in favor of arbitration.

5. The Hayneses correctly note that the contract for the construction and sale of the home does not contain an enforceable arbitration agreement. The arbitration clause in that contract expressly states that if it is not initialed by both parties, then it is unenforceable. There is no dispute that although the Hayneses initialed the arbitration clause, Fincher did not initial it. Thus, as Fincher concedes, by its own terms the arbitration clause in the home construction and sale contract is not enforceable.

Nevertheless, the unenforceability of that clause is not a basis for reversing the trial court’s grant of summary judgment to Fincher and Tara because the binding arbitration in question was not conducted pursuant to the home construction and sale contract. Rather, it was conducted, at the Hayneses’ request, pursuant to the binding arbitration provision contained in the home warranty program, which, as discussed above, is a valid and enforceable agreement.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.

Decided November 17, 1999

Reconsideration denied December 1, 1999

Charles R. Floyd, Jr., Deborah M. Floyd, for appellants.

Alfred L. King, Jr., for appellees.

       OCGA § 9-9-2 (c) (8); Pinnacle Constr. Co. v. Osborne, 218 Ga. App. 366, 367-368 (3) (460 SE2d 880) (1995).

       See Primerica Financial Svcs. v. Wise, 217 Ga. App. 36, 37 (1) (456 SE2d 631) (1995); Tigner v. Shearson-Lehman Hutton, 201 Ga. App. 713, 714 (411 SE2d 800) (1991).

        Longino v. Bank of Ellijay, 228 Ga. App. 37, 39 (1) (491 SE2d 81) (1997); Brooks v. Dime Sav. Bank of New York, 217 Ga. App. 441, 442 (1) (457 SE2d 706) (1995).

       See id.

       See Collins v. Newman, 237 Ga. App. 861, 862 (1) (517 SE2d 100) (1999).

       OCGA § 9-9-1 et seq.

        St. Paul Fire &c. Ins. Co. v. Barge, 225 Ga. App. 392, 396 (5) (483 SE2d 883) (1997); Weyant v. MacIntyre, 211 Ga. App. 281, 282 (1) (438 SE2d 640) (1993).


author: Blackburn, Presiding Judge.

text:
    A99A2385.
    MOSLEY v. LOAN SERVICING ENTERPRISE.
    (525 SE2d 381)
    Decided November 16, 1999
    Reconsideration denied December 1, 1999.
    Brenda Mosley, pro se.

      Philip L. Rubin, for appellee.
   Blackburn, Presiding Judge.

Acting pro se, Brenda Mosley appeals, following a bench trial, from the judgment in favor of Loan Servicing Enterprise on her counterclaim alleging breach of contract, intentional infliction of emotional distress, trespass, and tortious assault. Although Mosley contends the trial court did not address her counterclaim, it is apparent from the order that her counterclaim was considered by the trial court. Since no transcript of the trial was filed by Mosley, we must presume that the trial court’s findings were proper and supported by competent evidence. The burden is on the appellant to prepare a copy of the transcript for inclusion in the appellate record. See Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 871 (3) (506 SE2d 145) (1998).

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Mosley does not appeal from the trial court’s finding that she was in default under a bill of sale to secure debt.


text:
    A99A2456.
    LEE v. THE STATE.
    (525 SE2d 426)
   Johnson, Chief Judge.

Jonathan Lee appeals from his conviction of statutory rape of a 12-year-old girl.

1. Lee argues that the court improperly limited his right to cross-examine Detective Donna Brandenburg about whether the victim’s stepfather told her that someone had told him that the victim was pregnant. Lee asserts that the attempted cross-examination was relevant to the defense theory that the victim had gotten pregnant by another man and she was trying to explain her pregnancy by concocting the story that Lee had raped her.

We note that appellate counsel did not represent Lee at trial, and that this assertion regarding the relevance of the alleged pregnancy was not an argument made by trial counsel when the state objected on hearsay grounds to the attempted cross-examination of the detective. Rather, trial counsel argued that the proffered question was not seeking to elicit hearsay testimony from the detective about the stepfather’s statement, but was being offered to explain the detective’s conduct. Further, trial counsel claimed that the sought-after testimony was relevant because the victim had not, in fact, been pregnant. So if she had erroneously told her stepfather that she was pregnant, counsel reasoned, such a false statement would go to her credibility.

Contrary to these arguments of Lee’s trial counsel, the trial court correctly prohibited Lee’s attempt to elicit testimony that was both double hearsay and irrelevant. Moreover, because the assertion now made on appeal concerning the relevance of the alleged pregnancy to the defense theory was not made in the trial court, we cannot consider it.

2. Lee challenges the court’s admission of similar transaction evidence in the form of his Army court-martial conviction for raping a 15-year-old girl. Lee argues that the state failed to show that the prior rape is similar to the instant rape because the state introduced only certified copies of his court-martial conviction and no other evidence. But contrary to Lee’s argument, in child sexual abuse cases, a certified copy of a prior conviction for a sex crime against a child may, with no other evidence, sufficiently prove that the prior crime is similar to the current crime.

Here, the certified copies of Lee’s court-martial conviction show that he was found guilty of raping a girl under the age of 16. Given the liberal admission of similar transaction evidence in cases of sex crimes against children, we find that the certified copies of Lee’s court-martial conviction adequately proved the similarity of that rape of a teenage girl to the rape of the 12-year-old victim in this case.

Lee’s additional claim that a military court-martial judgment of guilt does not amount to a criminal conviction, and thus is not provable merely by certified documents, is also without merit. A court-martial is a lawful military court convened for the trying and punishing of armed forces members who commit criminal offenses. “There is a ‘conviction’ in a court-martial case when a sentence has been adjudged.” And in at least one case the Supreme Court of Georgia has implicitly determined that a court-martial finding of guilt is a conviction by noting: “The appellant was court-martialed and found guilty of the murder of Irene Thirkield. The conviction was, however, reversed on appeal, and he was not retried.”

In his court-martial case, Lee was tried by a military judge who found him guilty of rape and sentenced him to a dishonorable discharge and seven years in confinement. The finding of guilt and the sentence were affirmed on appeal. Because Lee was found guilty of rape and sentenced for the crime, there was a conviction in his court-martial case. And the state properly introduced certified copies of that conviction to prove its similarity to the rape in this case and to show Lee’s preference for a certain type of victim, his bent of mind and his modus operandi. Lee has shown no error in the admission of the similar transaction evidence.

3. Lee enumerates that the court erred in sending out the videotape of the victim’s police interview with the jury, in telling the jury that the videotape could be viewed only in the courtroom and in sending out written copies of the charges on statutory rape and child molestation with the jury. Our review of the pages of the trial transcript cited by Lee in support of his assertion that these alleged errors were preserved for appellate review by objections in the trial court reveals that there were, in fact, no such proper objections.

When the court indicated it would send the videotape out with the jury, Lee’s lawyer did not object on any specific ground and obtain a ruling from the court on that objection, but said simply, “I don’t know that the videotape needs to go out. . . .” When an appellant fails to pose a specific objection in proper form, an appellate court is precluded from reviewing the issue.

Similarly, when the trial court said that it was going to grant the jury’s request and provide written copies of the definitions of the crimes charged, the attorney again did not object and obtain a ruling from the court, but merely stated, “Judge, I just think sending out those particular charges puts undue emphasis on those two charges.” Because Lee did not expressly and specifically object and obtain a ruling, there is nothing for us to review. Moreover, we have held that giving the jury written definitions of the crimes charged is fully within the trial court’s discretion and does not amount to reversible error.*

4. Lee complains that the trial court erred in granting the jury’s request to re-view the videotape of the victim’s police interview, while refusing to read back to the jury all of the testimony of several other witnesses. The complaint is without merit.

The jury asked to rehear all of the testimony of three of the four state witnesses and to re-view the videotape. The court informed the jurors that it was not possible for them to rehear all of the requested testimony, although it might be possible to rehear limited portions of testimony. The court told the jurors they could watch the videotape again, but instructed them not to place undue emphasis on the videotape and to consider it within the context of all the evidence. The court then replayed the videotape for the jurors, who never made a more specific request to rehear other limited portions of testimony.

It is permissible for the trial judge, in her discretion, to permit the jury to rehear requested parts of the evidence after the jury has begun deliberations. Under the circumstances of the instant case, the court did not abuse its discretion in granting the jury’s request to re-view the videotape, while denying the jury’s broad request to rehear all of the testimony of three witnesses.

5. Lee claims the court’s jury charge overemphasized the jurors’ exercise of common sense in reaching a verdict and thereby lessened the reasonable doubt standard. We disagree.

At the outset of its jury charge, the court instructed the jurors that their life experiences and common sense could assist them in deciding the issues in the case and in reaching a proper verdict. The court then informed the jury of the crimes alleged and Lee’s not guilty plea, that Lee was presumed innocent, and that the state had the burden of proving his guilt beyond a reasonable doubt. In explaining the concept of reasonable doubt, the court charged the jury that “reasonable doubt is a doubt of a fair-minded, impartial juror honestly seeking the truth. It is a doubt based upon common sense and reason.”

Decided November 18, 1999

Reconsideration denied December 1, 1999

Barnes, Browning, Tanksley & Casurella, George T. Smith, for appellant.

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

This charge on reasonable doubt has been upheld by both this court and the Supreme Court of Georgia. Moreover, the charge to the jury must be considered as a whole, and a particular instruction is not to be taken out of context in determining its correctness. Considered in the context of the entire jury charge, the court’s instructions on common sense and reasonable doubt were correct statements of the law that did not shift the burden of proof to Lee or deprive him of the benefit of reasonable doubt. We find no error in the jury charge.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       See OCGA § 24-3-1; Cobb v. State, 209 Ga. App. 708, 709 (4) (434 SE2d 513) (1993).

       See OCGA §§ 24-2-1; 24-9-62; Green v. State, 221 Ga. App. 436, 437 (472 SE2d 1) (1996).

        Swift v. State, 229 Ga. App. 772, 774 (2) (a) (495 SE2d 109) (1997); Eiland v. State, 213 Ga. App. 838, 839 (1) (445 SE2d 765) (1994); Adams v. State, 208 Ga. App. 29, 33 (430 SE2d 35) (1993) (physical precedent).

        Salters v. State, 238 Ga. App. 45, 46 (2) (517 SE2d 593) (1999); Phillips v. State, 220 Ga. App. 248 (1) (469 SE2d 292) (1996); Adams, supra at 32.

       57 CJS, Military Justice, §§ 2, 138; 6 CJS, Armed Svcs., § 166.

       (Citation omitted.) 57 CJS, Military Justice, § 402.

       (Citation and punctuation omitted; emphasis supplied.) Hance v. Kemp, 258 Ga. 649, 653, n. 4 (373 SE2d 184) (1988).

       See Salters, supra.

        Chesser v. State, 228 Ga. App. 164, 167 (2) (491 SE2d 213) (1997).

       See id.

        Jordan v. State, 207 Ga. App. 710, 712-713 (2) (429 SE2d 97) (1993).

        Havron v. State, 234 Ga. App. 413, 416 (4) (506 SE2d 421) (1998).

       See Eackles v. State, 270 Ga. 558, 563 (8) (512 SE2d 635) (1999); Rutledge v. State, 237 Ga. App. 390, 393 (5) (515 SE2d 1) (1999); Havron, supra.

       See Andrews v. State, 236 Ga. App. 152 (1) (511 SE2d 258) (1999).

        Roberson a State, 236 Ga. App. 654, 655 (1) (a) (512 SE2d 919) (1999).

       See Lovett v. State, 165 Ga. App. 379 (2) (301 SE2d 303) (1983).


author: Phipps, Judge.

text:
    A99A1398.
    CLARKE v. THE STATE.
    (526 SE2d 395)
   Phipps, Judge.

Efuru Clarke was convicted of two counts of theft by taking while engaged in telemarketing. On appeal, Clarke claims the trial court erred in numerous evidentiary rulings on matters such as other crimes evidence. Clarke also challenges the trial court’s denial of her motion for mistrial and asserts that the trial court erred in failing to instruct the jury on the definition of telemarketing. We find no reversible error but remand for a hearing on the admissibility of the other crimes evidence.

On separate occasions in November 1996, representatives of Universal Customs Direct (UCD) contacted two elderly women, Jane Schmeig and Evelyn McGinn. Schmeig and McGinn were told that they had won large prizes but that they first had to send in fees to collect the money. Schmeig sent $1,500, and McGinn sent $3,000. Neither received anything in return.

Appellant Clarke was the owner of UCD, a telemarketing company operated from her apartment. Other persons, namely Henry Key and Ernest Curry, made the calls, and Clarke handled the finances. Money sent in by persons contacted was sent to a mailbox rented by Clarke. Clarke collected the money, paid the callers, sometimes sent small gifts to the persons who sent money and kept the remainder.

1. Clarke asserts on numerous grounds that vast portions of the evidence admitted should have been excluded. Clarke references only four instances, however, where objections were posed at trial. Generally, we are limited to reviewing only objections and grounds raised at trial. The only applicable exception is where the trial court fails to conduct a hearing on other crimes evidence pursuant to Uniform Superior Court Rule 31.3 (B). We will review the court’s rulings on Clarke’s four noted trial objections and the court’s failure to conduct the Rule 31.3 (B) hearing.

(a) The first claim of evidentiary error asserted by Clarke concerns the testimony of Schmeig. Although Clarke was indicted only for her actions as owner of UCD, the State elicited testimony from Schmeig that another telemarketing company called Universal Advantage (UA) had defrauded her of $1,000. Clarke’s attorney objected on the ground that the testimony concerned an unindicted crime. The State responded that UA and UCD were essentially the same company operated under different names and perpetrating a pattern of criminal activity. The court admitted the testimony “to show any kind of practice or custom” but stated, “[T]he jury must remain clear that the only thing that Ms. Clarke is charged with is what is actually alleged in the . . . indictment.”

Before any evidence of independent offenses or acts may be admitted into evidence, the trial court must conduct a hearing pursuant to USCR 31.3 (B). At that hearing, the State must make the following three affirmative showings as to each independent offense or act it seeks to introduce: (1) “that the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility’; (2) “that there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “that there is a sufficient connection or similarity between the independent offense or act and the Crime charged so that proof of the former tends to prove the latter.”

After the [Rule] 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act. [Cit.]

Moreover, after the State has made the necessary showings at the Rule 31.3 (B) hearing, the trial court retains the sound legal discretion to exclude relevant similar crimes evidence on the ground that its probative value is substantially outweighed by the danger of unfair prejudice.

As to Schmeig’s testimony, the first prong for admission of similar transaction evidence was met. The court’s basis for admitting Schmeig’s testimony — to show “pattern or custom” — constituted a legitimate purpose under the circumstances of this case. .

It was not alleged here that Clarke personally participated in UA’s perpetration of telemarketing fraud on Schmeig, but the evidence did show that Clarke was one of a small group of persons who formed and operated a progression of telemarketing companies from UA to UCD. The evidence further showed that each company targeted the elderly for fraudulent prize schemes, that one company would close and transform into another to avoid police detection, and that the names of victims or persons thought to be easy prey were recorded on “mooch lists” that were carried on to the succeeding companies so they could be re-targeted. Schmeig was defrauded by both UA and UCD.

For two reasons, this case must be remanded to the trial court for a Rule 31.3 (B) hearing, however. First, the court did not make the two remaining findings critical to the admission of Schmeig’s other crimes evidence and did not consider whether the probative value of the testimony outweighed its possible prejudicial effect. Second, additional other crimes evidence was presented without appropriate findings being made. McGinn testified to being preyed upon by certain companies other than UCD; Sergeant Kessler of the DeKalb County Police testified almost exclusively about the criminal activity of UA, the companies that developed from it, and the persons involved; Henry Key and Earnest Curry testified in person about the criminal operations of these companies; and recorded testimony of Kashma Porter, another person involved, also dealt with the criminal operations of the other companies.

The trial court’s failure to conduct a Rule 31.3 (B) hearing is harmless error if the evidence “did not measurably contribute to the jury’s guilty verdict.” Clarke’s defense was that she did not know her telemarketers were perpetrating fraud. The State’s chief means of negating Clarke’s state of mind defense was the other crimes evidence. A large portion of the State’s case was aimed at showing that the telemarketing fraud was the exclusive purpose of the companies Clarke worked with and that the activity was so pervasive Clarke must have been a knowing participant in the frauds for which she was indicted. We cannot say the other crimes evidence did not measurably contribute to the jury’s verdict.

(b) The second claim of evidentiary error relates to an objection posed by Clarke’s counsel after Sergeant Kessler testified that telemarketing fraud involves stealing the pride and self-esteem of the victims in addition to stealing their money. No issue was preserved for appellate review because counsel did not state a ground for his objection.

(c) Clarke’s third claim of evidentiary error concerns the following hearsay objection made by her counsel:

Prosecutor: Okay. East West Enterprises, that company, was Mr. Hampton involved in that one also?
Sgt. Kessler: Yes. East West Enterprises was located originally off Memorial Drive and 285 in an office park behind the Circuit City. And what happened in that case was that the consumer affairs people had gotten complaints on East West, went and visited with them, that spooked them, and they closed down the East West —.
Defense Counsel: If it please the court, I object to this. This is all hearsay on the part of this — he’s talking about what somebody else did, and there’s no evidence that he was there, and it’s apparently what somebody told him.

The court ultimately ruled that Kessler would be able to testify regarding his understanding of events to explain his conduct. But the court added, “[I]f he wasn’t there, he can’t testify from being there, and I don’t think he would be able to testify to their reaction if he wasn’t involved in closing them down or whatever.” Afterwards, only limited questioning regarding East West Enterprises followed. Kess-ler testified simply that East West Enterprises opened and closed in a short period of time before UCD opened.

Clarke correctly asserts that the admission of hearsay testimony may constitute grounds for reversal. But the movant must make a timely objection,* and the evidence wrongly admitted must not be harmless. The hearsay testimony was introduced before counsel made his objection, and afterwards, the State changed its line of questioning. Clarke’s counsel did not move to strike the testimony, and the testimony was cumulative of other testimony that the UA-UCD string of companies opened and closed very quickly to avoid police detection.

(d) In her fourth claim of evidentiary error, Clarke asserts that Sergeant Kessler purposely and inappropriately inteijected bad character evidence against Clarke. The exchange began with defense counsel asking Kessler, “[I]t’s true isn’t it, that the individuals who operate these schemes make every effort to conceal their identity.” Kessler denied the proposition, and defense counsel sought to demonstrate the proposition through examples regarding Key and Curry. Defense counsel succeeded in getting Kessler to concede that Curry and Key had not opened bank accounts but instead had commonly patronized check cashing businesses. Kessler wanted to explain his answer, and defense counsel attempted to stop him. The court asserted that Kessler had a right to explain his answer, and over defense objection that Kessler was testifying unresponsively and giving conclusions, Kessler stated:

These two individuals don’t have very good character. . . . When I say that, what I mean by that, sir, is a lot of them are involved in drugs, and, when, you have drugs, you don’t have the capability, you don’t have employment, you can’t just go into a bank and open up a checking account, because you’ve got to put down references, you’ve got to have — that’s why the little check cashing places are so viable because it’s a market for people that don’t have the ability to open up a checking account to go in there, and that place takes a percentage of what the face value of the check is. So they weren’t trying to hide it. They just didn’t have the capacity to open up accounts. They didn’t have good credit references. I mean, the word I’m looking for is they didn’t have good credit. So they couldn’t go out and open up things that you and I could do legitimately. So they had to find ways to get around it. And the ways to get around it was they always asked the victims to send money orders or cash. And that’s what the victims did. And not out of hiring a detective, but just not having the means to go to a bank and, deposit it or withdraw it.

First, Kessler’s answer was not unresponsive to the series of questions asked him by defense counsel. Second, defense counsel did not object at trial on character grounds. And without addressing whether Clarke’s character was indirectly addressed by Kessler’s response, Kessler did not engage in the type of “shenanigans” we have found to be reversible error.

2. During the testimony of Key, the defense learned that Key and Curry had given audiotaped custodial statements after they were arrested for fraudulent telemarketing through their own companies, Freedom Financial and Decatur Financial. Clarke moved for mistrial, asserting the State violated the discovery rule by not providing the tapes at least ten days before trial. The Court reviewed the tapes in camera and denied the motion for mistrial on the ground that nothing in the tapes related to UCD or Clarke. The court also denied a motion by the defense to recall Key and Curry for additional cross-examination.

“A trial court has broad discretion in ruling on a motion for mistrial, and this court will not disturb the coúrt’s ruling absent a manifest abuse of discretion which requires a mistrial to preserve the defendant’s right to fair trial.” Likewise, “[t]he recalling of a witness for further examination at the instance of either party is always within the discretion of the trial judge. [Cit.]” We disagree with the trial court’s assessment that the tapes did not provide relevant material for cross-examination, but we do not find the court manifestly abused its discretion in denying the motion for mistrial, and any possible error in denying the request for further cross-examination of Key and Curry was harmless.

Curry’s and Key’s taped statements principally concern their actions and the events leading to their arrests with Freedom Financial and Decatur Financial. But both tapes contained statements at least arguably inconsistent with Curry’s and Key’s testimony regarding the “pattern or custom” of telemarketing fraud perpetrated through UA and its successors. Key’s tape is not perfectly audible, but he does arguably state on the tape that the common practice at the companies was not to offer cash prizes but instead to offer some type of promotional bonus in connection with the sale of a product. Curry enumerated telemarketing companies for which he had worked but did not include UCD or any of the companies with which Clarke was connected.

We do not find either inconsistency was significant enough to measurably contribute to the verdict, however. The essence of Key’s taped statements was the same as that of his testimony — that the UA line of telemarketing companies was designed to and did perpetrate fraud by eliciting money for remunerations that victims would never receive. Clarke admitted in her own testimony that she worked with Curry.

3. Clarke’s final enumeration of error asserts that the trial court erred in not defining telemarketing in its charge to the jury. Although Clarke did not request an instruction on telemarketing, she asserts the Court breached a “‘duty . . . , with or without request, to give the jury an appropriate instruction on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant.’ ” But “[t]erms of common usage and meaning need not be specifically defined in the charge to the jury. [Cits.]” We find that telemarketing is a term of common usage and meaning, and that the court did not err in failing to give a charge defining it.

However, we remand the case for a Rule 31.3 (B) hearing and findings on the admissibility of the other crimes evidence presented. If the trial court determines that the State’s other crimes evidence does not meet the standards of Williams v. State, or if its probative value is substantially outweighed by its prejudicial effect, a new trial is required. On the other hand, if the evidence meets the standards of Rule 31.3 (B) and Williams, a new trial is not required.

Judgment affirmed on condition, otherwise reversed.

McMurray, P. J., and Ruffin, J., concur.

Decided December 1, 1999.

Daniel B. Kane, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

       See Holland v. State, 197 Ga. App. 496, 497 (1) (398 SE2d 810) (1990); Fletcher v. State, 199 Ga. App. 756, 757 (406 SE2d 245) (1991).

       See White v. State, 213 Ga. App. 429, 430 (1) (445 SE2d 309) (1994).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

       Id.

        White, supra at 431.

       See Durham v. State, 179 Ga. App. 636, 637 (3) (347 SE2d 293) (1986); see generally Hill v. State, 183 Ga. App. 404, 405 (1) (359 SE2d 190) (1987) (testimony concerning an independent crime may be admitted to show plan, scheme, and course of conduct).

       (Footnote omitted.) Hill v. State, 263 Ga. 37, 43 (10) (427 SE2d 770) (1993).

       See Fletcher, supra.

       James Hampton was the owner of UA.

       See, e.g., Azizi v. State, 270 Ga. 709, 712 (2) (b) (512 SE2d 622) (1999).

       See McGee v. State, 205 Ga. App. 722, 726 (9) (423 SE2d 666) (1992).

       See Azizi, supra at 712 (2) (a).

       See Jamison v. State, 164 Ga. App. 63 (4) (295 SE2d 203) (1982); Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978).

       (Citations and punctuation omitted.) Holder v. State, 194 Ga. App. 790, 793 (2) (391 SE2d 808) (1990)

        Money v. State, 137 Ga. App. 779, 780 (3) (224 SE2d 783) (1976).

       See McGee v. State, 267 Ga. 560, 564 (2) (480 SE2d 577) (1997) (harmless error equates with measurable contribution to verdict).

        Moore v. State, 235 Ga. App. 175, 176 (509 SE2d 108) (1998).

        Philpot v. State, 268 Ga. 168, 171 (3) (486 SE2d 158) (1997).

       See Hall v. State, 230 Ga. App. 741, 743 (497 SE2d 603) (1998).

       Id.


text:
    A99A1955.
    MIDDLEBROOKS v. THE STATE.
    (526 SE2d 406)
   Barnes, Judge.

Larry Rashad Middlebrooks wás convicted of hijacking a motor vehicle and sentenced to serve 15 years, consecutive to a life sentence he was already serving for armed robbery. He appeals, contending the trial judge erred in allowing the State to strike two black potential jurors; in allowing a police officer to read Middlebrooks’ custodial statement to the jury and give hearsay testimony; in charging the jury on conspiracy; in failing to charge theft by receiving a stolen motor vehicle as a lesser included offense; and in sentencing him to serve fifteen years instead of ten. We disagree and affirm.

Viewed in the light most favorable to the verdict, the evidence at trial showed that Middlebrooks was a passenger in his cousin’s car when his cousin, Antwain Harps, drove into a parking lot and stopped next to a Honda Accord. Harps got out of his car, pulled a gun on the Honda driver, and told him to get out of the car and walk away. The driver did so, and Harps drove away in the Honda while Middlebrooks drove away in Harps’ car. The two met back at their house; Middlebrooks then drove the two of them to a bank in the stolen Honda. Harps robbed a bank employee at gunpoint, and Mid-dlebrooks drove them from the scene in the Honda. They abandoned the car, divided the money, and split up. Middlebrooks was arrested later that evening and gave a statement admitting he and Harps planned the hijacking and bank robbery.

1. Middlebrooks contends that the State exercised two of its peremptory strikes in a racially discriminatory manner in violation of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). After Middlebrooks made his motion to disallow three of the State’s strikes, the State explained that it struck one juror, a black male, because he had a previous violent arrest; struck another juror, an Asian female, because her responses were clipped and cold; and struck a third juror, a black male, because he seemed reluctant to be there. The trial court granted the motion as to the last juror, but found the State’s explanations concerning the first two strikes to be sufficiently race-neutral.

Because the trial court’s findings are not clearly erroneous and Middlebrooks has failed to prove that the State acted with discriminatory intent in exercising its peremptory challenges, we conclude that there was no Batson violation. See Turner v. State, 267 Ga. 149, 153 (476 SE2d 252) (1996); Lingo v. State, 263 Ga. 664, 669 (437 SE2d 463) (1993).

2. Even though no transcript of the Jackson-Denno hearing is in the record, Middlebrooks also contends that his unrebutted testimony at the hearing established that an unidentified police officer promised him that he would be released if he told the truth. Therefore, he alleges that the trial court erred in allowing his custodial statement to be read to the jury because the statement was involuntary as it was made with the hope of benefit. Without a transcript of the Jackson-Denno hearing, however, we must assume the trial court’s findings were supported by the evidence and the trial court’s actions during the hearing were appropriate. Smith v. State, 266 Ga. 687, 688 (470 SE2d 436) (1996); Miller v. State, 219 Ga. App. 284 (1) (464 SE2d 860) (1995).

In any event, whether to admit the incriminating evidence turned solely on Middlebrooks’ credibility. The trial judge resolved this issue in favor of admissibility, and we must accept the trial judge’s factual and credibility determinations made after a suppression hearing unless they are clearly erroneous. Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974); Tucker v. State, 231 Ga. App. 210, 212-213 (1) (a) (498 SE2d 774) (1998). The judge’s determination here is not clearly erroneous, and we find no error in the admission of Mid-dlebrooks’ inculpatory statement at trial.

3. Middlebrooks asserts that the trial court erred in charging the jury on the full text of the hijacking statute and in charging them during deliberations on the conspiracy statute, because he was charged only with having completed the crime, not conspiring to commit it. Since he was not indicted for conspiracy, he argues, the court should not have given the jury the opportunity to convict him of conspiracy, either by reading the entire statute or charging them with the definition.

The hijacking statute, which the trial court read to the jury during its main charge and then recharged pursuant to a question during deliberations, provides, “A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 (b). During the charge conference, the trial court indicated it would not give the State’s request to charge on conspiracy, finding its concepts were covered in the State’s request to charge on parties to a crime. However, during deliberations the jury asked the court to elaborate on the use of the word “conspiracy” in the hijacking statute, and the court read the definition to them.

“A conspiracy may be proven and a jury charge may be given on conspiracy, even though a defendant is not indicted under that theory.” Williams v. State, 267 Ga. 308, 309 (2) (477 SE2d 570) (1996); Hamby v. State, 158 Ga. App. 265 (2) (279 SE2d 715) (1981). The specific statutory inclusion of conspiracy as a method of committing the crime of hijacking a motor vehicle does not alter the general rule that a conspiracy can be proven and charged without being indicted.

Further, while Middlebrooks contends that he was denied the opportunity to discuss conspiracy during his closing argument, “it was incumbent on him to request to reargue after the charge. Failure to do so acts as a waiver.” Hall v. State, 259 Ga. 243, 245 (4) (378 SE2d 860) (1989); Williams v. State, 176 Ga. App. 503, 505 (1) (336 SE2d 367) (1985).

Finally, the trial court charged the jury without objection on parties to a crime, which is substantially similar to the conspiracy charge. See Drane v. State, 265 Ga. 255, 258, n. 4 (455 SE2d 27) (1995) (main reason to proceed under conspiracy theory rather than party to crime is to take advantage of conspiracy exception to hearsay rule); Osborn v. State, 161 Ga. App. 132, 133 (1) (291 SE2d 22) (1982) (evidence authorized conclusion that defendant was “a party or a conspirator” to a drug sale). We find no error in the trial court’s reading of the entire hijacking statute or defining conspiracy in response to a jury question.

4. Middlebrooks argues that the trial court erred in refusing to charge theft by receiving a stolen motor vehicle as a lesser included offense of hijacking a motor vehicle. The evidence showed that Mid-dlebrooks waited in his cousin’s car while his cousin pulled a gun on the Honda owner, then drove his cousin’s car to their house. The two men met, and Middlebrooks drove the hijacked car to a bank where the two committed armed robbery, then Middlebrooks drove the hijacked car away and dumped it. “Theft by receiving is not a lesser included offense of theft by taking. . . . The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief.” (Citations omitted.) Sos-bee v. State, 155 Ga. App. 196, 197 (270 SE2d 367) (1980). We believe the same rationale applies here and conclude that theft by receiving a motor vehicle is not a lesser included offense of hijacking a motor vehicle.

5. Middlebrooks asserts that he should have been sentenced to serve no more than ten years, pursuant to OCGA § 16-4-8, the conspiracy statute. However, Middlebrooks was indicted, convicted, and sentenced under OCGA § 16-5-44.1 (c), which provides for a sentence of “not less than ten nor more than 20 years.” Therefore, the trial court did not err in sentencing Middlebrooks to serve 15 years, consecutive to his life sentence for armed robbery.

Decided December 1, 1999

Lloyd J. Matthews, for appellant.

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

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.