author: ELDRIDGE, Judge.

text:
    A02A1164.
    KRIEGER v. SPEIR et al.
    (564 SE2d 493)
   ELDRIDGE, Judge.

On August 4, 1999, appellant-plaintiff Craig David Krieger filed in the Superior Court of Clayton County the instant “Equitable Petition to Set Aside Fraudulent Conveyances and for Other Relief” against appellees-defendants Thomas Lee Speir (“Speir”), Rebecca Speir Merry, the estate of Eleanor Cotton Speir, Jeffrey Edward Merry, Jr., Jonathan Lee Merry, Joshua Speir Merry, Thomas Lee Speir III, Angela Dawn Speir, Carlene H. Speir, the Speir Family Partnership, L.P., Oakpark Management Company, Inc., and Jeffrey E. Merry. In doing so, Krieger sought satisfaction of the Clayton County Superior Court’s 1997 judgment upon a suit in equity awarding him treble damages in the amount of $771,444 against Speir, McFrugal Auto Rental, Inc., and others arising out of injuries Krie-ger sustained in a 1993 automobile accident when the vehicle he drove was hit by the driver of a car rented from McFrugal. The progression of the litigation which followed the accident through multiple courts to the entry of the unpaid judgment of the Clayton County Superior Court is detailed in Speir v. Krieger, 235 Ga. App. 392 (509 SE2d 684) (1998), which noted that the Fulton County Superior Court had correctly determined that Krieger had pierced the corporate veil and held, among other things, that McFrugal’s “repeated sale to unsuspecting Georgia consumers of non-existent [automobile] insurance is the very essence of [OCGA § 16-14-1 et seq., civil RICO], amounting to theft by deception. [Cits.]” Id. at 401 (5) (b).

By the instant petition, Krieger appeals from the Clayton County Superior Court’s grant of partial summary judgment to Speir and his second wife, Carlene H. Speir, declining to set aside as a fraudulent conveyance the September 21, 1995 transfer to her of the Henry County property which the Speirs first lived in as a married couple, 125 Oakpark Terrace (“125 Oakpark” or “property”), McDonough, and relieving her of potential liability associated with the subsequent sale of the property and reinvestment of the proceeds thereof in a second marital home in Jonesboro. Krieger challenges the grant of partial summary judgment to the Speirs. Finding such claim of error to be without merit, we affirm. Held:

OCGA § 18-2-22 renders null and void

(1) Every assignment or transfer by a debtor, insolvent at the time, of real or personal property or choses in action of any description to any person, either in trust or for the benefit of or on behalf of creditors, where any trust or benefit is reserved to the assignor or any person for him; (2) Every conveyance of real or personal estate, by writing or otherwise, and every bond, suit, judgment and execution, or contract of any description had or made with intention to delay or defraud creditors, where such intention is known to the taking party; a bona fide transaction on a valuable consideration, where the taking party is without notice or ground for reasonable suspicion of said intent of the debtor, shall be valid; and (3) Every voluntary deed or conveyance, not for a valuable consideration, made by the debtor who is insolvent at the time of the conveyance.

It is undisputed in the record that Speir never owned the 125 Oakpark property. Instead, as the superior court correctly ruled, the property passed as remainder property under the will of Speir’s first wife, Eleanor Cotton Speir, which established a trust for Speir’s benefit and named appellee-defendant Rebecca Speir Merry, Eleanor Speir’s daughter by her marriage to Speir, as executrix and Speir’s trustee. Pertinently, Eleanor Speir died in March 1994. Rebecca Merry, as her mother’s executrix and her father’s trustee, purchased the 125 Oakpark property later that month upon a real estate contract to purchase the property which Eleanor Speir initialed in February 1994. In September 1995, Rebecca Merry, again as executrix and trustee under her mother’s will, sold the 125 Oakpark property to Carlene Speir for love and affection in that Carlene Speir had entered into an antenuptial agreement with Speir, agreed to become his second wife and forfeited a Fulton County pension in consideration of the transfer of the property to her in fee simple.

While Krieger correctly argues that the antenuptial agreement referred to the 125 Oakpark property as belonging to Speir, he provided no evidence to this effect. Krieger further argues that the superior court should have ruled the transfer of the 125 Oakpark property fraudulent as a matter of law in that damages for fraud had been awarded against him in the underlying litigation. However, “[t]he mere reargument of a party’s case or the denial of an opponent’s allegations will be disregarded in considering a motion for summary judgment where no competent evidence has been submitted to raise a material issue of fact.” Heard v. Neighbor Newspapers, 190 Ga. App. 756, 757 (1) (350 SE2d 279) (1989), rev’d on other ground, 259 Ga. 458 (383 SE2d 553) (1989); Thrash v. Ga. State Bank, 189 Ga. App. 21, 24 (375 SE2d 112) (1988). Krieger has submitted no such evidence in this case. In any event, this reference to the property did not unreasonably characterize the nature of the future interest Speir held therein for the broad powers Eleanor Speir conferred by her will upon Rebecca Merry, as Speir’s trustee. These included the power: (1) to sell, exchange, or otherwise dispose of trust property, (2) to pay “to [Speir] or for his benefit from the principal or income such amounts, if any, as the Trustee in her sole discretion deems necessary or advisable for [Speir’s] care, comfort or support,” and (3) “to encroach upon the principal or income of the trust in such amounts as she may deem necessary in her sole judgment to provide [for Speir], including paying over the entire trust.” Beyond the foregoing, the will required Rebecca Merry, as Speir’s trustee, to disburse any residue remaining in the trust to Speir upon his sixty-fifth birthday, August 7, 1998.

Decided April 15, 2002

S. Robert Hahn, Jr., for appellant.

Gambrell & Stolz, Gary A. Barnes, John Hinton IV, Seaton D. Purdom, for appellees.

In moving for summary judgment as to the 125 Oakpark property, Speir and his second wife, Carlene, had the initial burden to make a prima facie showing of their entitlement to summary judgment as a matter of law. On doing so, as they did in this case, the burden shifted to Krieger to come forward with rebuttal evidence. Speir v. Krieger, supra at 397 (2). This he failed to do. OCGA § 18-2-22 by its own terms is applicable only “to a conveyance made by one of his own property, with such intention known to the taker.” Jones v. Foster, 150 Ga. 277 (1) (a) (103 SE 491) (1920). Given Jones and in the absence of rebuttal evidence on the issue of ownership, it follows that the superior court did not err in granting the Speirs summary judgment upon “finding] there to be no genuine issue of material fact whether the transfer of the 125 Oakpark property to Carlene Speir was a fraudulent conveyance because the property was never legally owned by [Speir] and the transfer was made by Rebecca Merry under her power as trustee over the property so that her [father] could marry Carlene Speir.”

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

       This chapter may he cited as the Georgia Racketeer Influenced & Corrupt Organizations Act (RICO). OCGA § 16-14-1.

       In addition to its grant of summary judgment to Speir and Carlene H. Speir as here in issue, the superior court, noting that Krieger dismissed Joshua Speir Merry, Angela Dawn Speir, and Thomas Lee Speir III from the lawsuit on March 22, 2001, granted and denied summary judgment to the remaining appellees-defendants as to the transfer of a note, a mobile home, a marital residence, and certain personal property.

       Item 5 of the antenuptial agreement provided:
      Within thirty days after the solemnization of the marriage between the parties, SPEIR shall deed his property located at 125 Oakpark Terrace, McDonough, Georgia, 30253, to [Carlene] Hanes, solely and in fee simple, but subject to the covenant and agreement of the parties as shall be stated in Item 5.
      (Emphasis supplied.)


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A02A0005.
    TATE v. THE STATE.
    (564 SE2d 495)
   Johnson, Presiding Judge.

Quanton Tate appeals from his armed robbery conviction, challenging the sufficiency of the evidence to support the conviction, and arguing that the trial court erred in denying his motion for mistrial after the state allegedly placed his character in evidence. Because the evidence was sufficient and Tate’s character was not placed in evidence, we affirm his conviction.

1. Tate contends that the state failed to prove his guilt because the victim’s identification of him as one of the three armed robbers was not reliable. Specifically, Tate says that the victim told police that the third robber was 4'7" tall, 16 years old, and wore braids, when Tate claims that the evidence at trial shows he is 5'7" tall, appears to be 22 years old or older, and has never worn braids.

On appeal, a defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. We do not weigh the evidence or determine witness credibility. Instead, an appellate court determines whether the evidence is sufficient to convict the defendant beyond a reasonable doubt. Conflicts in witness testimony are a matter of credibility for jury resolution. And as long as some competent evidence is presented to support every fact necessary to make out the state’s case, even though contradicted, we will not disturb the jury’s verdict.

Viewed in a light most favorable to the verdict, the evidence shows that the victim was a deliveryman who went to the Baker Village apartment complex to deliver pizza. While walking down a path to apartment 26, the victim saw three men sitting on the stoop of apartment 25. He passed within about two to three feet of the men and spoke to them. Upon discovering that apartment 26 was vacant, the victim turned to leave. The men approached the victim and demanded that he drop the pizzas and money. The victim asked: “for what? . . . you’re going to shoot me over pizza and hot wings?” The men told the victim they were serious, and all three men pulled out handguns and ordered the victim to lie down. The victim refused to cooperate. The men reminded the victim that they were not “playing” and that they would shoot him. Although “[i]t took them a long time to get [him] to get on the ground,” the victim eventually complied with the gunmen’s requests. The men took the victim’s wallet from his pocket and ran.

Moments later, the victim went to the police station and reported the crime, giving detailed descriptions of each man’s clothing, height, weight, complexion, and hair, as well as descriptions of their weapons. The victim testified that he was able to describe the assailants in such detail because he recognized them from previous deliveries to the apartment complex and he walked within two to three feet of them in a well-lit area. The victim testified that he did not describe any of the assailants as 4'7", but described the shortest of the three individuals as 5'8" to six feet tall. When the detective showed the victim an array of photographs of suspects about four days after the incident, the victim told him that his assailants were not pictured. The same thing happened at a second lineup. At a third photographic lineup about two weeks after the incident, though, the victim immediately picked Tate’s photograph out of the group, without any hesitation or equivocation. This was the only lineup which contained Tate’s photograph. And, at trial, the victim testified that he was ‘TOO percent sure” that Tate was one of the men who robbed him. As they were authorized to do, the jurors in this case chose to believe the victim’s testimony identifying Tate as one of the men who committed the armed robbery.

We point out that the jury was free to disbelieve the testimony of Tate’s cousin that Tate was with him at the time of the robbery. Moreover, despite the defense’s testimony that the area was too dark for the victim to see his assailants, the jury was authorized to believe the victim’s testimony that the area was sufficiently lit and he was close enough that he could see them clearly; and the jury was authorized to believe that the victim’s identification was aided by the fact that he had seen the men before. Reviewing the evidence in the light most favorable to the jury’s verdict and leaving evidentiary weight and witness credibility to the jury, we find that a rational trier of fact could have found Tate guilty beyond a reasonable doubt of the crime of armed robbery.

2. Tate contends that the trial court should have declared a mistrial because his character was improperly placed in evidence during the state’s examination of the police detective. At issue is the following colloquy:

[STATE:] And what did you do in relations to [your investigation]?
[WITNESS:] I went and started my investigation. I personally maintain a working file of photos of people that we’ve had dealings with in the past for armed robberies or people suspected of armed robberies. I don’t know maybe 150 folks in there.
[STATE:] Okay.
[WITNESS:] And I had took a photo lineup, the first one did not include the defendant, went to the victim, this was around the first of March, second of March. He did [sic] identify anybody. I went back —.

Defense counsel moved for a mistrial, claiming the detective’s testimony indicated that Tate had been suspected in or convicted of other robberies. In denying the motion for mistrial, the trial court stated that the testimony did not indicate that Tate’s photograph was in the detective’s file or that Tate had committed a prior robbery. A mistrial was not required.

Our courts have previously held that a defendant’s character is not improperly placed into evidence by a police officer’s testimony that he took the defendant’s picture “ ‘from our [police] file,’ ” by a detective’s testimony that a defendant’s picture used in a photographic lineup was “ ‘the arrest photo on file,’ ” or by an officer’s testimony that the defendant’s relatives alerted him to the fact that the defendant “ ‘had been arrested before for a similar incident.’ ” Nor is a defendant’s character impugned by an officer’s testimony that he displayed a lineup of ‘‘jail photographs” to a witness, where the officer never intimated that the defendant’s picture was in that group. Here, the detective’s testimony did not place Tate’s character at issue.

The cases relied on by Tate do not require a contrary result. The facts in this case are unlike in Anderson v. State, where a mistrial was required because an officer’testified that he knew the defendant because his name was on a list of suspected drug dealers. The detective here did not say that Tate was in his file of suspected armed robbers. And, unlike in Jinks v. State, the evidence at issue did not show that the defendant had prior arrests. Instead, the detective here simply testified that he maintained a file of photographs of people with whom the police had dealt regarding armed robberies, or whom the police had suspected of armed robbery, that he took a photo lineup (which did not include Tate) to the victim, and that the victim identified no one at that time. The detective eventually testified that the victim picked Tate’s photograph out of a third array ten days later. The detective never testified that Tate’s picture was in the file of people the police “had dealings with in the past” or suspected of armed robberies. In fact, the detective did not indicate where Tate’s photograph came from. The trial court did not abuse its discretion in refusing to grant mistrial.

Decided April 16,2002.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Moten v. State, 252 Ga. App. 222 (1) (554 SE2d 553) (2001).

       See DeLoach v. State, 272 Ga. 890, 891 (1) (536 SE2d 153) (2000).

       See generally Thorne v. State, 246 Ga. App. 741 (1) (542 SE2d 157) (2000).

       See White v. State, 244 Ga. App. 54, 56 (2) (537 SE2d 364) (2000).

        Woodard v. State, 234 Ga. 901, 902 (2) (218 SE2d 629) (1975); see Taylor v. State, 179 Ga. App. 676, 677 (347 SE2d 363) (1986).

        Johnson v. State, 247 Ga. App. 157, 165-166 (14) (543 SE2d 439) (2000).

       Id.

        Taylor v. State, 272 Ga. 559, 561 (2) (b) (532 SE2d 395) (2000).

       252 Ga. 103 (312 SE2d 113) (1984).

       229 Ga. App. 18, 19 (2) (493 SE2d 214) (1997) (mistrial required where court admitted defendant’s fingerprint card showing arrest years earlier - complete with date and charges).

       See Johnson, supra at 166 (14).


text:
    A02A0086.
    SWEARINGEN v. THE STATE.
    (564 SE2d 498)
   Johnson, Presiding Judge.

William Swearingen, Jr. was convicted of driving under the influence of alcohol. On appeal, he challenges the denial of his motion to suppress evidence seized from what he alleges was an illegal traffic stop. He also challenges the trial court’s refusal to give jury instructions pertaining to the legality of the traffic stop and the requirement that illegally obtained evidence must be suppressed. Because the trial court was not required to give the requested jury charges and because the trial court did not err in denying his motion to suppress, we affirm Swearingen’s conviction.

In reviewing the denial of a motion to suppress, we construe the evidence in a light most favorable to uphold the ruling and judgment of the trial court. So viewed, the evidence shows that a City of Atlanta police officer was working off-duty on a traffic detail at Lenox Square Mall. The parking lot at the mall was heavily congested with cars and pedestrians. The officer, who was wearing his official police uniform and badge, directed a limousine driver to turn left into a valet parking area. The vehicle’s driver had to make several maneuvers to try to accomplish the turn. Swearingen, whose car was behind the limousine, honked his horn continuously. The officer explained to Swearingen what he was trying to do and asked him to calm down, but Swearingen shouted obscenities at the officer. When the officer asked Swearingen to pull over, he shouted more obscenities. Swearingen left the parking lot in an erratic fashion, driving between cars and through heavy pedestrian traffic. The officer got into his police car and pursued Swearingen. Swearingen pulled over a few blocks away.

The officer approached Swearingen and asked him for his license and insurance information. Swearingen’s eyes were bloodshot, his face was flushed, he was aggressive, and he emitted an odor of alcohol. After having Swearingen step out of the car, the officer administered several field sobriety and breath tests, which Swearingen failed. During the arrest, police discovered an open bottle of beer under his seat. Swearingen was charged with driving under the influence of alcohol, eluding an officer, obstruction of an officer, reckless driving, and possessing an open container of alcohol. The jury found him not guilty of all except the DUI charge.

1. Swearingen contends that evidence obtained during the traffic stop should have been suppressed because the officer lacked reasonable suspicion that he had committed any crime when the officer told him to pull over in the mall parking lot. He relies on the fact that the jury acquitted him of all offenses which formed the basis of the officer’s stop.

The police officer testified that Swearingen was being disorderly and driving between vehicles and through heavy pedestrian traffic. Even assuming, arguendo, that the cursing and honking did not give the officer grounds to momentarily stop Swearingen, Swearingen’s manner of weaving and speeding through the pedestrian-filled parking lot certainly created in the officer a legitimate concern for public safety. The fact that Swearingen was eventually acquitted of all but one offense does not require a finding that the officer lacked authority to stop him. If an officer in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the conduct observed was not a crime. The officer had specific and articulable facts which justified his stop of Swearingen. Therefore, the trial court did not err in denying Swear-ingen’s motion to suppress.

2. The trial court did not err in refusing to instruct the jury on probable cause and suppression issues which had already been resolved by the trial court.

Judgment affirmed.

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

Decided April 16, 2002.

Zimmerman & Associates, Keith F. Brandon, for appellant.

Joseph J. Drolet, Solicitor-General, Andrea D. McGee, Assistant Solicitor-General, for appellee.

        Norred v. State, 253 Ga. App. 379 (559 SE2d 125) (2002).

       See State v. Armstrong, 223 Ga. App. 350, 351-352 (2) (477 SE2d 635) (1996).

       See id. at 353 (2).

       See Sims v. State, 165 Ga. App. 881, 884 (6) (303 SE2d 60) (1983).


text:
    A02A0228.
    LEE v. THE STATE.
    (564 SE2d 503)
   Johnson, Presiding Judge.

Yung Lee was charged with cruelty to children in the first degree for beating her 17-year-old stepdaughter with a stick. Lee denied the charge and was tried before a jury, which returned a guilty verdict. Lee moved for a new trial, but the trial court denied the motion. Lee appeals, arguing that there is insufficient evidence that she acted maliciously. Contrary to Lee’s argument, there is sufficient evidence of malice.

OCGA § 16-5-70 (b) provides that a person commits cruelty to children in the first degree when she maliciously causes cruel or excessive physical or mental pain to a child under the age of 18. Under this Code section, malice means the absence of justification or excuse and the presence of an intent to cause the harm produced or the wanton and wilful doing of an act with awareness of the likelihood that such harm may result. Intent is a question of fact to be determined from the circumstances surrounding the act, including words, conduct, demeanor and motive.

The evidence at trial showed that Lee beat her stepdaughter with a three-foot-long wooden stick for having holes in a pair of overalls. The girl testified that Lee forced her to kneel in the living room and then hit her on the arms, legs and head with the stick more than 30 times. Lee stopped the beating and had the girl go wash her face because she was crying and her nose was running. When the girl came back from the bathroom, Lee resumed the beating and said that she wished the girl would die.

The stepdaughter reported the incident to a school counselor. The police were notified, and they obtained a search warrant for the Lee house: In the house, the police found the stick Lee used to hit the girl.

The doctor who examined the girl testified that the she had multiple contusions on her right shoulder, arm, thigh and buttocks and also had bruising on the left side of her body. According to the doctor, the girl appeared to be in great pain, and the contusions on her body were consistent with having been hit with the stick found by the police. He estimated that the girl had been struck at least 20 times.

Decided April 16, 2002.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Lee admitted at trial that she had hit her stepdaughter with the stick because of the girl’s torn clothing. But she claimed that she had struck the girl only about ten times. Lee testified that she was trying to educate the girl and did not mean to hurt her.

Having reviewed the evidence in the light most favorable to the verdict, we find sufficient evidence from which the jury could have found beyond a reasonable doubt that Lee maliciously caused excessive physical pain to her stepdaughter. Because there is sufficient evidence of malice, Lee’s appeal is without merit and the conviction is hereby affirmed.

Judgment affirmed.

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

        Hill v. State, 243 Ga. App. 614, 616 (533 SE2d 779) (2000).

       Id.

       Id. at 614.

       See Green v. State, 266 Ga. 550, 551 (1) (468 SE2d 365) (1996); Nunez v. State, 237 Ga. App. 808, 809-810 (1) (516 SE2d 357) (1999).


text:
    A02A0472.
    MORENO v. THE STATE.
    (564 SE2d 505)
   Johnson, Presiding Judge.

A jury found Jose Moreno guilty of three counts of child molestation. Moreno argues that the state failed to prove venue beyond a reasonable doubt and that his sentence was not within the statutory limits prescribed for the offense of child molestation. Because the record shows that venue was proven beyond a reasonable doubt, we affirm Moreno’s convictions. However, because the trial court’s sentence is confusing, we remand the case for resentencing.

1. In his first enumeration of error, Moreno contends the state failed to prove venue beyond a reasonable doubt. However, the record belies this contention. The record shows that in the fall of 1998, the two victims, their mother, and Otis Wilson, their mother’s boyfriend, moved into Moreno’s home. Wilson testified that Moreno’s house, where the offenses took place, was located “[o]n the Gwinnett/DeKalb line on Buford Highway, north of 285 about three or four miles.” He was then asked, “And do you know what county it was actually in?” and he responded, “It was in Gwinnett.” This testimony is sufficient to prove venue. Contrary to Moreno’s contentions, a police officer was not required to testify regarding venue.

Decided April 16, 2002.

John R. Burdges, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

2. Moreno next asserts that the trial court erred in sentencing him. According to the record, Moreno was convicted of three counts of child molestation, and the trial court sentenced him to a total of “35 yrs. (serve 25 yrs.) concurrent. After 25 yrs. in confinement, defendant shall be subject to deportation.” OCGA § 16-6-4 (b) provides that a person convicted of a first offense of child molestation shall be punished by imprisonment for not less than five nor more than twenty years, and a second or subsequent conviction shall be punishable for not less than ten years nor more than thirty years or by imprisonment for life.

The state, while arguing that the sentence was within the statutory limits, admits that separate, individual sentences should have been imposed. Because the sentence is, indeed, confusing, we remand the case for resentencing consistent with OCGA § 16-6-4 (b).

Judgment affirmed and case remanded for resentencing.

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

       OCGA § 24-4-8 (testimony of a single witness generally sufficient to establish a fact).

       See Rogers v. State, 247 Ga. App. 219, 221 (2) (543 SE2d 81) (2000); Miller v. State, 212 Ga. App. 193, 194 (1) (441 SE2d 443) (1994).


author: Eldridge, Judge.

text:
    A02A1206.
    MORRISON v. DERDZIAK.
    (564 SE2d 500)
   Eldridge, Judge.

This is an appeal from the dismissal of Abraham Morrison’s appeal to a jury in the Superior Court of Marion County with regard to Mildred Gail Bulloch Derdziak’s petition for a right-of-way across Morrison’s property. The facts are as follows.

On May 27, 1999, an evidentiary hearing was held in superior court on Derdziak’s petition. Therein, Derdziak declared and put forward evidence showing that necessity required the granting of a right-of-way across Morrison’s property as such was allegedly the only method of egress from and ingress to Derdziak’s property. Morrison put forward evidence showing that Derdziak had long used an alternate means to reach her property, i.e., an approximately three-mile-long dirt road that connected her property to Highway 41, and thus a right-of-way across Morrison’s property was not a matter of necessity.

On July 1, 1999, the superior court filed an order approving Derdziak’s petition for right-of-way and specifically naming two assessors to determine the issue of compensation for such right-of-way. However, on July 6, 1999, the parties and the assessors reached an agreement that $1,500 was an appropriate award for the property, because “it wasn’t worth arguing about.” No findings were made by the assessors reflecting $1,500 as appropriate compensation for the right-of-way, and no award was filed and recorded in the superior court. Notwithstanding, on July 5, 1999, Derdziak paid $1,500 into the court’s registry and constructed the roadway with a locked gate on Morrison’s property.

Morrison learned that the roadway had been constructed on his property. On July 30, 1999, Morrison filed his notice of appeal to a jury with regard to the court’s July 1, 1999 order authorizing a right-of-way out of necessity and naming assessors. Derdziak filed a motion to dismiss, contending that the evidentiary hearing held in the superior court was a bench trial, and the court’s finding that the petition authorized a right-of-way by necessity was a final judgment capable of direct appeal; Derdziak thus claimed that any issues with regard to the necessity of a right-of-way were res judicata in superior court. The court below agreed, finding, “the decision of the Superior Court of Marion County in this case regarding the necessity of the private way across the lands of the condemnee is res judicata and is not subject to appeal to the Superior Court of Marion County.” Accordingly, the court dismissed Morrison’s appeal to a jury. Held:

1. The evidentiary hearing in superior court to determine whether a right-of-way through Morrison’s property was authorized by necessity was not a “bench trial.” And, contrary to Derdziak’s contentions, simply because the title page of the transcript identifies such as a “bench trial,” and the court below once used the word “trial” does not change the nature of the proceeding as prescribed by statute. The procedures for obtaining “a private way over the land of a stranger, . . . provided by the Code, § 85-1401 [now OCGA § 44-9-1] from 'compulsory purchase, and sale through the [superior court]’ under the procedure of §§ 83-101 et seq. [now OCGA § 44-9-40 et seq.]” are in derogation of common law “and must be strictly limited to the meaning of the language used, and not extended beyond the plain and explicit statutory terms.” As such, under the plain language of the statute, the hearing held in superior court was a show cause hearing wherein the burden was on the respondent to show why a right-of-way should not be granted based on the declaration of necessity put forth in the petition.

Upon the filing of the petition for condemnation, the judge of the superior court, after taking into consideration the requirements of service provided for in Code Section 44-9-41, shall make and enter up an order requiring the owner or owners of the property to show cause before him on a day certain as to why the easement for private way should not be condemned.

When — according to the superior court — Morrison failed to show that a right-of-way should not be granted out of necessity, the court correctly submitted the issue of compensation for such private way to a board of assessors named in the court’s order. Thereafter, perhaps because an agreement was reached on the numeric value of the compensatory award, no notice of findings was made by the assessors, and no award was filed and recorded in the office of the clerk of the superior court. But even in the face of an “agreement” as to the amount of the assessors’ award, these statutorily mandated actions must be taken before a right-of-way may be granted. And it is from the assessors’ award, properly filed and recorded with the clerk of court, that an appeal to a jury in superior court lies: “Either party shall have the right to appeal from the award of the board of assessors to a jury in the superior court.” Absent the filing and recording of the assessors’ award, the time is not ripe for the filing of an appeal under OCGA § 44-9-44 in that such appeal must be filed within ten days of the filing and recording of the award.

Accordingly, the court below did not err in dismissing Morrison’s notice of appeal to a jury in superior court, although not for the reasons stated in the court’s order. Instead, Morrison’s notice of appeal was premature as filed prior to the filing and recording of the vehicle by which such appeal may lie, i.e., the award of the assessors. We remand this case for the filing and recording of the assessors’ award pursuant to OCGA §§ 44-9-43, 22-2-64, and 22-2-65. We note as we do so that a notice of appeal to a jury in superior court filed by Morrison within ten days of the filing and recording of the assessors’ award would be timely.

2. In the event an appeal is filed following the entry and recording of the assessors’ award in this case, it is important to recognize that the statutory scheme permitting an appeal to a superior court jury from a right-of-way award also contemplates that “If an issue is made by pleadings filed by any defendant regarding the condemnor’s right to have a private way established . . . , such issues shall likewise be determined by the jury.” Thus, the legislature intended that the jury in a right-of-way appeal should consider more than simply “value.” Clearly, OCGA § 44-9-46 on its face permits a jury to also determine whether a petitioner has a legal right to have a private way. “[U]nder Title 44, the width or location of the private way can be altered or even the necessity of the private way can be denied by the jury on appeal.”

Decided April 16, 2002.

Dock H. Davis, for appellant.

Tyron C. Elliott, John W. Johnson, for appellee.

Contrary to Derdziak’s contentions, because the evidentiary hearing held before the superior court was a show cause hearing and not a trial culminating in a final judgment, there is no issue of res judicata and the court’s findings therein were not susceptible to direct appeal as a “final judgment.” A final judgment with regard to a petition for right-of-way is entered after the assessors’ award is returned, appeals have been exhausted, and compensation is paid: “a final judgment cannot be entered until all appeals are completed and compensation has been paid.” Indeed, “we hold that no property right is taken from a property owner, nor vested in a private way petitioner, until after all of the rights have been finally established, the compensation is paid and the court makes such a ‘grant’ by final judgment,” and “the granting of a private way does not occur until appeals have been exhausted.”

Judgment vacated and case remanded for proceedings not inconsistent with this opinion.

Smith, P. J., and Ellington, J., concur.

       The petition was originally filed by James O. Bulloch who died during the pendency of this action; Ms. Derdziak, the administrator of Mr. Bulloch’s estate, was substituted as con-demnor. For consistency, Derdziak’s name has been substituted for Bulloch’s throughout this opinion.

       (Citations omitted.) Calhoun v. Ozburn, 186 Ga. 569, 571-572 (3) (198 SE 706) (1938).

       (Citation omitted.) Kirsch v. Meredith, 211 Ga. App. 823, 825 (440 SE2d 702) (1994).

       See OCGA § 44-9-40 (b) (“The filing of the petition shall be deemed to be the declaration of necessity.”).

       OCGA § 44-9-43.

       OCGA §§ 44-9-42; 44-9-43.

       See OCGA § 44-9-43 (with regard to establishing compensation for a right-of-way, “the hearing before the board of assessors, together with the assessment of damages by them, shall be as is provided for in Part 4 of Article 1 of Chapter 2 of Title 22”). In that regard, see OCGA §§ 22-2-64 (entry of notice of findings by assessors); 22-2-65 (assessors’ award shall be filed and recorded in the office of the clerk of the superior court).

       Derdziak by brief asserts that such agreement was a “stipulation”; however, the record contains no distinct and formal admission that $1,500 was indeed a correct compensatory amount so as to be considered a “stipulation” of such fact. Instead, it appears that an agreement was reached in order to avoid argument and expedite an appeal to the jury with regard to the award and the necessity of such.

       OCGA § 44-9-44; Cline v. McMullan, 263 Ga. 321 (431 SE2d 368) (1993).

       See OCGA § 44-9-44 (appeals as to assessors’ award in right-of-way cases controlled “by Part 5 of Article 1 of Chapter 2 of Title 22”). In that regard, see OCGA § 22-2-80 (an appeal from the assessors’ award must be filed ten days from the time the award is filed); Cline v. McMullan, supra at 322 (appeal from assessors’ award in right-of-way cases must be made within ten days from the time the award is filed).

       Morrison’s filing of a notice of appeal prior to the return of the assessors’ award in superior court was as premature as Derdziak’s building of a road on Morrison’s property prior to a final judgment granting a right-of-way thereon.

       See Landers v. Ga. Public Svc. Comm., 217 Ga. 804, 810 (4) (125 SE2d 495) (1962) (OCGA § 22-2-65 requiring the filing of an assessors’ award within ten days of its making is directory only and delay in recordation does not affect the validity of the award).

       Although Derdziak already tendered $1,500 into the court’s registry pursuant to the award “agreement,” such will not affect Morrison’s right to appeal from a properly filed and recorded award. OCGA § 22-2-82 (tendering an award to the court shall not prevent either party from prosecuting an appeal).

       (Emphasis supplied.) OCGA § 44-9-46.

       Compare, e.g., City of Savannah Beach v. Thompson, 135 Ga. App. 63, 65 (2) (217 SE2d 304) (1975) (in condemnation award under Title 22, an appeal to the superior court jury is on the issue of value and damages alone).

        Cline v. McMullan, supra at 324 (2).

         Id. at 323 (2).

       Id. at 324 (2).

       Id.


author: Ruffin, Judge.

text:
    A02A0036.
    In the Interest of C. F., a child.
    (564 SE2d 524)
   Ruffin, Judge.

The Juvenile Court of Upson County adjudicated C. F. delinquent and subsequently dismissed his appeal, finding he unreasonably delayed the filing of the trial transcript. C. F. appeals the dismissal order, and for reasons that follow, we affirm.

The record shows that, on February 23, 2001, C. F. timely filed a notice of appeal from the juvenile court’s order adjudicating him delinquent. The delinquency proceedings were tape recorded, and C. F. wanted to include a transcript of the tape in the record for appeal. On April 30, 2001, the State moved to dismiss C. F.’s appeal, arguing, among other things, that he had inexcusably delayed filing a transcript. The trial court scheduled the motion for hearing on May 9, 2001. On the date of the hearing, C. F.’s counsel moved for an extension of time to file the transcript, asserting that the continuing delay had been caused by his office being “overburdened with other matters at this time, and the transcript was given to another person to prepare and that person has advised that it is not ready at this juncture due to scheduling conflicts and matters uncontrollable to appellee [sic] or his attorney.”

On June 2, 2001, the juvenile court denied C. F.’s motion for an extension and granted the State’s motion to dismiss. The court found that, as of the hearing date, 75 days had elapsed since C. F. filed the notice of appeal, and he had still not filed the transcript. The court gave little credence to C. F.’s assertion that the delay was outside his control, finding that he showed only that he received a copy of the tape on April 12, 2001, “submitted [it] ... to persons unknown for transcription” and offered “nothing further of substance ... to show that the appeal is in the process of proceeding.” C. F. subsequently filed this appeal.

1. C. F. argues that the juvenile court abused its discretion in dismissing the appeal because there was no evidence showing that his failure to file the transcript was unreasonable and inexcusable. We disagree.

C. F.’s obligation to file the transcript is governed in part by OCGA § 5-6-42, which requires an appellant who wants to include a transcript in the appellate record to cause the transcript to be prepared and filed “within 30 days after filing of the notice of appeal [,]

. . . unless the time is extended as provided in Code Section 5-6-39.” That section permits a court to grant additional time for filing the transcript, but requires the moving party to request the extension “before expiration of the period for filing as originally prescribed or as extended by a permissible previous order.” Although “failure to timely request an extension, standing alone, is not sufficient to justify dismissal of [an] appeal,” a court nonetheless has discretion to dismiss an appeal if it finds, “after notice and opportunity for hearing, . . . [that] there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” On appeal, we will not disturb such ruling absent an abuse of discretion.

The trial court did not abuse its discretion here. C. F. was required to file the transcript within 30 days of the time he filed his notice of appeal. Considering that he failed to file the transcript in 75 days and offered no assurances of when it might be filed, the appellate process had been indefinitely postponed, and the trial court was authorized to find that the delay was unreasonable. The trial court was also authorized to find that the delay was inexcusable and caused by C. F. Indeed, as found by the juvenile court, although C. F. generally complained about being overburdened by other work and about unspecified scheduling conflicts suffered by the unidentified person who was preparing the transcript, he offered nothing of substance to account for the continued, indefinite delay in filing the transcript. Furthermore, even if the initial delay in obtaining the tape from the clerk was not attributable to C. F., “[that] does not excuse the filing delay, in the absence of a proper request by [C. F] for an extension of time.” Accordingly, the trial court did not abuse its discretion in dismissing the appeal on these grounds.

Decided April 17,2002.

William A. Adams, Jr., for appellant.

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

2. C. F. also asserts that the trial court erred in dismissing his appeal based, in part, on his failure to pay costs. Assuming without deciding that this assertion has any merit, the court obviously dismissed the appeal due to C. F.’s failure to file the transcript, as it was authorized to do, and “[a] judgment right for any reason will be affirmed on appeal.”

Judgment affirmed.

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

       See OCGA § 5-6-39 (a) (3).

       OCGA § 5-6-39 (d).

        Burns v. Howard, 239 Ga. App. 315, 316 (520 SE2d 491) (1999).

       OCGA § 5-6-48 (c). Accord Burns, supra; Harmed v. Hall, 234 Ga. App. 890, 891-892 (1) (508 SE2d 680) (1998).

       See Teston v. Mills, 203 Ga. App. 20 (416 SE2d 133) (1992).

       See OCGA § 5-6-42.

       See Harmed, supra (72-day delay unreasonable); Dept. of Human Resources v. Patillo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990) (finding that “appellant made no effort to discover when the transcript would be timely filed”).

        In re G. W. H, 168 Ga. App. 845, 846 (310 SE2d 573) (1983).

       See Harmed, supra; Patillo, supra.

        Corner v. State, 223 Ga. App. 353, 355 (477 SE2d 593) (1996).


author: Ruefin, Judge.

text:
    A02A0117.
    PLESS v. THE STATE.
    (564 SE2d 508)
   Ruefin, Judge.

A jury found Perry Pless guilty of aggravated assault upon a police officer and simple battery. Pless appeals, asserting error in the court’s jury charge. For the following reasons, we find the appeal untimely, and it is, accordingly, dismissed.

Decided April 17, 2002

Dennis T. Blackmon, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

The record shows that Pless was represented by counsel at trial. The trial court entered judgment on the jury’s guilty verdict on April 26, 1994. On May 5, 1994, Pless filed a pro se motion for new trial. Six days later, Pless filed another pro se motion for new trial. The record shows, however, that Pless was still represented by counsel when he filed both pro se motions. No other motions for new trial were filed, and the trial court denied Pless’s pro se motions in an order dated March 2, 1999. Pless filed his notice of appeal on March 5, 1999.

As a consequence of Pless’s representation by counsel, his pro se motions are void. In Georgia, “[a] criminal defendant no longer has the right to represent himself and also be represented by an attorney. ... As [Pless] was represented by counsel when he filed the pro se [motions, those motions were] of no legal effect whatsoever.”

Although Pless, represented by new counsel, filed his notice of appeal within 30 days after the trial court denied his pro se motions for new trial, his “void motion [s] for new trial did not toll the 30-day limit within which he was required to file a notice of appeal from the underlying judgment and sentence.” Accordingly, notwithstanding the merits of Pless’s appeal, it is dismissed as untimely.

Appeal dismissed.

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

       The record is silent about the almost five-year lapse of time between Pless’s filing the motions and the trial court’s ruling.

       (Punctuation omitted.) Daniels v. State, 235 Ga. App. 296, 298 (2) (509 SE2d 368) (1998) (addressing pro se motion for speedy trial filed by represented defendant). See also Johnson v. State, 266 Ga. 775, 778-779 (9) (470 SE2d 637) (1996) (holding that trial court erred in considering pro se motion for new trial filed when defendant was represented by counsel); Beattie v. State, 240 Ga. App. 327 (1) (523 SE2d 389) (1999) (because defendant was represented by counsel, trial court properly denied his pro se motion for continuance); Schaefer v. State, 238 Ga. App. 594 (1) (519 SE2d 248) (1999) (pro se motion for speedy trial void where defendant represented by counsel).

        Keller v. State, 252 Ga. App. 813, 815 (1) (558 SE2d 5) (2001).

       See id.


text:
    A02A0137.
    GRIFFIN v. THE STATE.
    (564 SE2d 530)
   Johnson, Presiding Judge.

Ronald Griffin was indicted on three counts of armed robbery committed by using an offensive weapon or an object having the appearance of an offensive weapon, to wit: a toy handgun. He pled not guilty to the charges and was tried before a jury, which found him guilty on all three armed robbery counts. He appeals, arguing that the trial court erred in not charging the jury that the state had to prove that the robberies were committed by use of a toy gun. The argument is without merit because the court properly charged the jury, and we therefore affirm Griffin’s convictions.

The evidence shows that Griffin and two other men robbed three men who had stopped at an automatic teller machine in Savannah. During the robbery, Griffin held what appeared to be a handgun, and one of the other robbers held a knife. They took money and a cellular phone from the victims.

A videotape from the ATM robbery, as well as a still photograph from that tape, shows Griffin holding what appears to be a handgun. One of the victims testified that he told the police the gun was a black revolver, but he was not sure if it was a real gun. Another victim testified that he did not get a good look at the weapon. And the third victim said that he originally thought it was a starter pistol, but then decided it was a real gun. There was also testimony that shortly after the robbery, a police officer chased a car matching the robbers’ getaway car, and a toy gun was thrown out of that car.

The trial judge instructed the jurors that they would have the indictment with them to consult during their deliberations. The judge charged the jury that the state had the burden of proving beyond a reasonable doubt every material allegation, and each essential element of the offenses charged, in the indictment. And the judge then gave the jury the statutory definition of armed robbery: that a person commits armed robbery when he takes property of another from the person or immediate presence of another by use of an offensive weapon or any replica, article or device having the appearance of such weapon.

Having reviewed the charge in its entirety, we find no error. The court fully and accurately charged the jury on the applicable law, including the state’s burden of proof and the crimes with which Griffin was charged. Given the instructions and the evidence adduced at trial, the jury could not have been misled into convicting Griffin of armed robbery by any means other than that charged in the indictment — by using a weapon or an object appearing to be a weapon.

Decided April 17, 2002.

Caleb B. Banks, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See OCGA § 16-8-41 (a).

       See Prins v. State, 246 Ga. App. 585, 588 (2) (539 SE2d 236) (2000).

       See Mattison v. State, 215 Ga. App. 635 (1) (451 SE2d 807) (1994).


author: Mikell, Judge.

text:
    A02A0182.
    OW v. THE STATE.
    (564 SE2d 512)
   Mikell, Judge.

In a two-count indictment, Benedict Leng Chee Ow was charged with felony obstruction of an officer and speeding. At trial, the state declined to prosecute the speeding charge, and the jury found Ow guilty of misdemeanor obstruction. On appeal, Ow contends that his conviction cannot stand because the trial court erred in excluding an audiotape from evidence and in charging the jury that the speeding offense was irrelevant to the obstruction charge. We disagree and affirm.

The evidence relevant to the disposition of this appeal shows that Ow was stopped for speeding on 1-75 in Monroe County. Ow exited his vehicle and immediately demanded to see the officer’s laser device. Ow repeated this demand between 25 and 30 times. The officer, Sergeant William Bradford Freeman III, testified that he had been unable to lock in Ow’s speed on the device. However, Sergeant Freeman took Ow over to his vehicle and pointed to the device. Ow kept demanding to see the unit, but finally stood quietly while Sergeant Freeman wrote him a traffic citation.

Sergeant Freeman further testified that before asking Ow to sign the citation, he explained that Ow’s signature would not constitute an admission of guilt. Ow told the officer he was “not coming back to court.” The officer explained that Ow could appear through counsel. Sergeant Freeman then handed Ow the citation book and asked him to sign the ticket. Ow refused. Sergeant Freeman told Ow he would have to come to the sheriff’s office to post a bond. When Ow started to walk with Sergeant Freeman, he told Ow to get in his vehicle and follow the officer.

Sergeant Freeman next testified that he turned to walk away and noticed that Ow was walking toward him very quickly. Sergeant Freeman put his hand up and shouted for Ow to get back. Ow continued to move forward, and Sergeant Freeman’s hand “brushed” Ow’s chest. Sergeant Freeman told Ow that he was under arrest and tried to grab Ow’s hand. Ow tried to knock the officer’s hand away, and a scuffle ensued. Sergeant Freeman managed to pin Ow against his vehicle and called for assistance. A state trooper arrived and subdued Ow.

During direct examination, Ow testified that he thought he was supposed to follow Sergeant Freeman to the patrol car. According to Ow, he saw that Sergeant Freeman was very angry, and Ow said, “I’m sorry, let me sign the ticket.” Ow testified that he extended his hand, and Sergeant Freeman “turn around real fast and he slammed his hand with his palm into my chest and he say it’s too late now.”

1. During his cross-examination of Sergeant Freeman, defense counsel sought to introduce into evidence an audiotape, on which the officer attempted to take a statement from Ow and his passenger. Defense counsel tendered the tape for the purpose of showing the demeanor of Ow and the officer and to impeach the officer. The court informed defense counsel that if he wished to introduce the tape for the purpose of impeachment, then counsel would have to lay the foundation. The court instructed counsel on the proper manner in which to lay the foundation. The court then ruled it would not permit the tape into evidence to bolster a witness’s testimony. Finally, the court stated: “But if it was for the purpose of impeachment, after a proper foundation, I would certainly admit it at that time.” This ruling is enumerated as error.

The requirements for impeaching a witness with a prior inconsistent statement are well settled: “First, the prior statement must contradict or be inconsistent with the witness’s in-court testimony; second, the prior statement must be relevant to the case; and, third, the examining attorney must lay the proper foundation with the witness.” The third requirement, laying the foundation, is codified in OCGA § 24-9-83: “Before contradictory statements may be proved against [a witness], . . . the time, place, person, and circumstances attending the former statements shall be called to his mind with as much certainty as possible.”

These foundation requirements are necessary to allow the witness to explain or deny the prior inconsistent statement. In this regard, the cross-examiner will ask the witness whether he made the alleged statement, giving its substance, and naming the time, the place, and the person to whom made. If the witness denies the making of the statement, or fails to admit it, then the requirement of “laying the foundation” is satisfied and the cross-examiner, at his next stage of giving evidence, may prove the making of the alleged statement.

Applying the foregoing standards, we hold that the trial court did not err in ruling that defense counsel failed to lay the proper foundation for the admission of the audiotape. Counsel asked Sergeant Freeman the following questions concerning statements he made on the tape:

Q: And you were mad with Ben because he wouldn’t sign the ticket that day, isn’t that true?
A: I wouldn’t use the word mad. I was perplexed but not mad.
Q: And you just didn’t understand why he wouldn’t sign that ticket, did you?
A: That’s correct.
Q: And you kept telling him that because he didn’t sign the ticket he bought himself a felony obstruction charge?
A: I believe at points I told him that he turned a simple speeding citation into a felony charge.

Sergeant Freeman made no statement on the audiotape that differed materially from his in-court testimony. On the tape, Ow denied that he was speeding. Sergeant Freeman replied:

Sir I’m not going to argue with you about the speed, okay. You’ve got a ticket for speeding. Now you’re buying some charges for obstruction of an officer. All you had to do was sign that ticket. I explained to you several times that you could sign that ticket and be on your way. But you refused to sign the ticket. I handed you the ticket book. I handed you the pen. I asked you to sign it several times. I explained to you that you were not admitting to guilt, did I not?

We find no material distinction between this statement and the officer’s trial testimony that he told Ow he turned a speeding citation into a felony charge. As Freeman did not deny any statement he made, the foundation was not laid, and the audiotape was properly excluded. granted his request to admit the evidence for the purpose of showing demeanor, i.e., that Sergeant Freeman appeared to be angry with Ow. We take this opportunity to reiterate for the bench and bar that although the “admissibility of evidence is a matter which rests largely within the sound discretion of the trial court,” “Georgia courts favor the admission of any relevant evidence, no matter how slight its probative value.” However, in the instant case, we hold that error, if any, in the exclusion of the audiotape was harmless. First, the tape only recorded statements made after the scuffle, and the officer’s demeanor at that point was largely irrelevant. Second, Ow’s passenger testified that throughout the incident, the officer had been “very aggressive” and “mostly yelling.” In addition, a county commissioner testified that he had received “numerous complaints about [Sergeant Freeman’s] aggressive behavior towards people.” Therefore, the tape would have been merely cumulative of other testimony heard by the jury, and its exclusion does not warrant reversal of Ow’s conviction.

We next address Ow’s argument that the trial court should have

2. In his second enumerated error, Ow argues that the trial court erred when, in recharging the jury, the trial court explained that the speeding offense was irrelevant to the obstruction charge. We disagree.

Although the state declined to prosecute the speeding charge, that count was not redacted from the indictment. In its initial charge, the court told the jury that “you’re going to have an indictment out with you that has two charges on it.” Accordingly, the indictment that was sent out with the jury contained one count of felony obstruction and one count of speeding. However, the jury was not charged on the speeding offense; instead, it was charged on two counts of obstruction. Apparently, this confused the jury, because during deliberations, the foreperson asked the court the following question: “Is Count Number 2 a speeding violation or an obstruction of justice . . . without intent to do bodily harm?” The court responded by recharging the jury on the manner in which both felony and misdemeanor obstruction are committed. In addition, the court instructed the jury that the state was not required “to prove the underlying offense, that is the speeding charge in order to be able to proceed with the obstruction of the officer charge.” The foreperson stated that he understood. The court then added:

THE COURT: And the obstruction doesn’t have anything to do with the speeding. And you’re not here to consider Count 2, which is the speeding; it is not before you for your consideration. The evidence of that was brought out in that that was the underlying offense for why this man was stopped; do you understand that?
THE FOREPERSON: Yes, sir.
THE COURT: But the proof of the speeding charge itself is not before you. It has nothing to do with the obstruction, and the obstruction has nothing to do with it as far as the evidence is concerned for the proof of Count 1.

The foreperson then commented that the jury was required to determine whether the obstruction was committed with intent to do bodily harm or without such an intent. The court explained that the jury had a choice of one of three verdicts: not guilty, guilty of offering or actually doing violence to the officer, or “guilty of just obstruction without the offering of or actually doing physical violence.” Finally, the court reiterated that if the jury had a reasonable doubt as to Ow’s guilt of either of these offenses, it should acquit him.

Ow argues that, because the state must prove that the officer was in the lawful discharge of his official duties as an essential element of obstruction, the trial court should have informed the jury during the recharge that if it found no probable cause for Ow’s arrest for speeding, then he could not be found guilty of obstruction. We cannot agree. First, “[i]t is not necessary for the State to prove the underlying offense that causes the officers to act; it is only necessary to prove the elements of the obstruction statute, i.e., that the act constituting obstruction was knowing and wilful, and that the officer was lawfully discharging his official duties.” Second, Ow’s suggested instruction would not have responded to the jury’s question. It is clear from the transcript that the jury’s confusion arose from the fact that the speeding charge was not redacted from the indictment. The jury wanted to know whether it needed to return a verdict on that count, and the court’s recharge was appropriately tailored to answer that question. There was no inquiry as to whether the officer was lawfully discharging his duties when he cited Ow for speeding. The jury was concerned with the necessity of returning a verdict on the speeding charge, not as appellate counsel suggests, the sufficiency of the evidence to support that count. Moreover, the officer had probable cause to arrest for a traffic violation committed within his presence.

Decided April 17, 2002.

Garland, Samuel & Loeb, Edward T. Garland, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Finally in this regard, Ow argues that “[mjerely reciting the code section and instructing the jury that the state was required to prove that the officer was engaged in the lawful discharge of his duties was not sufficient.” This argument mischaracterizes the court’s charge. The trial court fully and correctly instructed the jury on the essential elements of the offense of obstruction of an officer. In connection with the misdemeanor offense, the court charged that

a person commits the offense of obstruction of an officer when that person knowingly and willfully obstructs or hinders a law enforcement officer in the lawful discharge of his official duties. Now, this offense may be committed by acts which, while not otherwise unlawful, have the effect of obstructing or hindering law enforcement officers while carrying out their duties. . . . This does not make criminal any actions which incidentally hinder an officer. The accused must have knowingly and willfully obstructed or hindered the officer. Whether or not the actions of the defendant did hinder or impede the officers in carrying out their assigned duties is for you to decide.

The charge was nearly identical to the pattern charge. The trial court also instructed the jury that the state has the burden of proving every essential element of the crime charged beyond a reasonable doubt. “It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” There was no error. This enumeration is meritless.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

       (Citation and punctuation omitted.) Wynn v. State, 272 Ga. 861, 862 (2) (535 SE2d 758) (2000).

       (Citations, footnotes and emphasis omitted.) Washington v. State, 251 Ga. App. 206, 211 (2) (553 SE2d 855) (2001).

       (Citation omitted.) Kellogg v. State, 233 Ga. App. 817, 819 (505 SE2d 794) (1998).

        Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998).

        Allen v. State, 247 Ga. App. 10, 14 (2) (543 SE2d 45) (2000).

       (Citation and punctuation omitted.) Eight v. State, 181 Ga. App. 874, 875 (1) (354 SE2d 202) (1987).

        Pinchon v. State, 237 Ga. App. 675, 676 (516 SE2d 537) (1999); Moore v. State, 234 Ga. App. 332, 334, n. 1 (506 SE2d 685) (1998).

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed.), p. 162.

       (Citations and punctuation omitted.) Brown v. State, 197 Ga. App. 365, 366 (2) (398 SE2d 424) (1990).


text:
    A02A0233.
    DORSEY v. ATLANTA BOARD OF EDUCATION et al.
    (564 SE2d 509)
   Mikell, Judge.

The undisputed facts in the record show that Brian Dorsey was hired as a science teacher by the Atlanta Board of Education (the “Board”) in September 1996, a week after the school year for teachers had already begun. Dorsey started work on September 4, 1996, and his employment contract, which was approved by the Board on September 9, was signed on September 12. Dorsey’s contract was automatically renewed for the 1997-1998 school year. The following year, Dorsey received a letter dated April 1,1998, from the Superintendent of Atlanta Public Schools informing him that his employment contract would not be renewed for the 1998-1999 school year.

Dorsey filed an action for declaratory judgment against the Board, its individual members, and the Interim Superintendent of Atlanta Public Schools seeking judicial determination that Dorsey had tenure status and thus was entitled to notice and a hearing prior to the nonrenewal of his contract. The parties filed cross-motions for summary judgment. The trial court concluded that because Dorsey was hired after the 1996-1997 school year had begun, he had not been employed for two consecutive school terms and therefore had not met the requirements for tenure provided in OCGA § 20-2-942. Accordingly, the court granted the defendants’ motion for summary judgment and denied Dorsey’s motion. Dorsey appeals the trial court’s judgment. We affirm.

1. First, Dorsey argues that the trial court erred in granting the defendants’ motion for summary judgment. In reviewing grants of summary judgment, “this [c]ourt conducts a de novo review of the law and the evidence.” (Citations omitted.) Desai v. Silver Dollar City, 229 Ga. App. 160, 163 (1) (493 SE2d 540) (1997). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Normally, a teacher must have held contracts for four consecutive school years in order to obtain tenure. OCGA § 20-2-942 (b) (1). However, according to OCGA § 20-2-942 (b) (4), a teacher who was previously tenured in another local school system and who obtains contracts for two consecutive school years from the school board by whom the teacher is presently employed is entitled to the protection afforded to tenured teachers. In this case, it is undisputed that Dorsey was previously tenured with the Fulton County Board of Education. Therefore, the only issue was whether Dorsey held contracts for two fall school years with the Atlanta Board of Education and thus achieved tenure in that position as well.

OCGA § 20-2-942 (a) (3) defines a “school year contract” as “a contract of full-time employment between a teacher and a local board of education covering a full school year.” The statute expressly provides that “[a] contract of employment for a portion of a school year shall not be counted as a school year contract, nor shall contracts of employment for portions of a school year be cumulated and treated as a school year contract.” Subsection (a) (2) of that statute explains that a “ ‘[s]chool year’ means a period of at least 180 school days,” and the Atlanta Public School Policy defines a school year for teachers as a minimum of 190 days. It is undisputed that the Board approved Dorsey’s contract on September 9, 1996, and that its effective date was September 4. Dorsey has not offered proof of precisely how many school days he worked during the 1996-1997 term; however, he would have had to have been employed by the Board from August 27, 1996, through June 17,1997, in order to have been employed for a full 190-day school year. Clearly, he had not been hired by the Board on August 27.

Although the term specified in Dorsey’s form contract was July 1, 1996, through June 30, 1997, the record shows that the Superintendent was not authorized to bind the Board for a period outside the effective date of September 4, 1996. We have previously held that a school superintendent “has no authority to obligate the . . . board of education under a contract unless he has previously obtained authorization from the board.” (Citations omitted.) Knight v. Troup County Bd. of Ed., 144 Ga. App. 634, 636 (2) (242 SE2d 263) (1978). See also State Bd. of Ed. v. Elbert County Bd. of Ed., 112 Ga. App. 840, 846 (2) (146 SE2d 344) (1965). In this case, the minutes of the September 9, 1996 Board meeting demonstrate that the Board authorized the Superintendent to hire Dorsey effective September 4, 1996, and the “beginning date of employment” provided in Dorsey’s authorization to report to work was September 4.

Furthermore, we note that according to the Atlanta Public School Policy, “[t]he fiscal year of the school system is from July 1 of a given year to June 30 of the following year,” and that teachers are paid over 12 months. According to Ruby McDaniel, a representative of the personnel department of Atlanta Public Schools, form contracts issued to teachers routinely have the term date of July 1 through June 30. Dorsey was not paid for the period of July 1, 1996, through September 3, 1996, nor did he request such payment.

Based on the foregoing, we conclude that the trial court properly determined that Dorsey was not employed by the Board for two full school years, that he did not achieve tenure status, and that he was not entitled to notice and a hearing prior to the nonrenewal of his contract. Accordingly, we affirm the grant of summary judgment to the defendants.

2. Next, Dorsey contends that the trial court erred in considering parol evidence, because his employment contracts are clear and unambiguous. Specifically, Dorsey objects to the court’s consideration of the affidavits of McDaniel and Tuniesa Drake and the exhibits accompanying those affidavits. Contrary to Dorsey’s argument, we conclude that the court did not err in considering the evidence at issue.

The parol evidence rule applies in cases involving contract construction. OCGA § 13-2-2 (1). Essentially, “[p]arol evidence may not be considered unless the written instrument is ambiguous.” (Citation and punctuation omitted.) SunTrust Bank v. Fletcher, 248 Ga. App. 729, 732 (548 SE2d 630) (2001). However, Dorsey has not brought an action for breach of contract; rather, his complaint alleges statutory and due process claims. Dorsey’s reliance on Lyon v. Patterson, 138 Ga. App. 816 (227 SE2d 423) (1976), is misplaced, because unlike the case sub judice, that case involved a breach of contract claim by a teacher against a school board.

Finally, any ambiguity associated with Dorsey’s contract was due to the undisputed facts that he did not sign the contract, have it approved, or report for work until after the school year had begun. The court correctly applied the statutory guidelines provided in OCGA § 20-2-942 (b) (4) to the undisputed facts associated with Dorsey’s employment in order to make a determination as to whether he earned tenure status. We find no error.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

Decided April 17, 2002.

Johnson, Freeman & Perkins-Hooker, Ronald J. Freeman, Maureen M. McLeod, for appellant.

Sharron M. Pitts, Rodney G. Moore, for appellees.

       As a preliminary matter, the Board argues that by not naming the Atlanta Independent School System as a defendant, Dorsey failed to join the proper party. The Board raised this contention in its answer; however, it did not raise it in any motion and therefore never obtained a ruling from the trial court. “Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken, because one may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.” (Citation and punctuation omitted.) Darby v. State, 230 Ga. App. 32, 33 (3) (495 SE2d 146) (1997). Furthermore, because we are affirming the trial court’s grant of summary judgment to the defendants, the Board’s argument that Dorsey failed to join a proper party is moot.

       Because we affirm the trial court’s conclusion that Dorsey did not have tenure with the Atlanta Public Schools, we need not address the Board’s argument that Dorsey failed to exhaust his administrative remedies before filing suit. Even if he had requested a hearing pursuant to OCGA § 20-2-1160, he would not have been entitled to one because he was not a tenured teacher. See Dalton City Bd. of Ed. v. Smith, 256 Ga. 394, 395-396 (1) (349 SE2d 458) (1986).


text:
    A02A0257.
    MOSS v. THE STATE.
    (564 SE2d 516)
   Ruffin, Judge.

After being charged with murder, Lawrence C. Moss pled guilty to involuntary manslaughter. Moss, pro se, subsequently filed a motion for writ of error coram nobis, in which he challenged the validity of his plea. The trial court dismissed the motion, and Moss filed this pro se appeal. For reasons that follow, we reverse.

The record shows that Moss entered his plea in 1983, and the Superior Court of DeKalb County sentenced him to serve three years in prison and two years on probation. In 2001, approximately 13 years after his sentence expired, Moss filed the instant motion for writ of error coram nobis in the Superior Court of DeKalb County. Moss argued that his conviction should be vacated because he entered the plea without being informed of his rights and the court did not ensure that there was a factual basis for the plea. The record shows that, at the time he filed the motion, Moss was incarcerated in a federal prison located in Coleman, Florida. The trial court dismissed the motion, concluding that it failed to state grounds upon which a writ of error coram nobis can be granted, that Moss should have filed a petition for a writ of habeas corpus in the county where he is incarcerated, and that because he was no longer under sentence before the court, it lacked jurisdiction to hear such petition. Because we find that the court did not lack jurisdiction, we remand for further proceedings.

We agree with the trial court that Moss’ motion for a writ of error coram nobis was the wrong vehicle to challenge the validity of his prior plea. In Waye v. State, the Supreme Court of Georgia explained the nature of the writ:

[a] writ of error coram nobis lies for an error of fact not apparent on the record, not attributable to the accused’s negligence, and which, if before the court, would have prevented rendition of the judgment. . . . The writ has become obsolete, having been superseded by the modern practice of applying to the court by motion for the relief sought. . . .
[A] writ of error coram nobis is the ancestor of an extraordinary motion for new trial based on newly-discovered evidence. The prerequisites for issuing a writ of error coram nobis or for granting an extraordinary motion for new trial based on newly discovered evidence appear to be identical. Before a court authorizes either, it is generally required that the moving or petitioning party base the pleading on facts which are not part of the record and which could not by due diligence have been discovered at the time of the trial.

In this case, Moss has not pointed to any newly discovered evidence that would have authorized the court to grant the writ. Rather, Moss’ arguments concerning the validity of his plea all “deal with evidence which was known to [Moss], as well as his counsel, at the time that [he] entered his plea of guilty.” Thus, Moss could not properly challenge his plea under a writ of error coram nobis.

But that is not the end of our inquiry. In Waye, the Court elevated substance over form and concluded that the appellant’s pleading, though denominated a motion for writ of error coram nobis, was actually a petition for writ of habeas corpus. In this case, we see no reason to treat Moss’ motion differently. Moss asserted essentially the same grounds and pled for the same relief as the appellant in Waye. Thus, we conclude that Moss was actually petitioning for habeas corpus relief.

We disagree with the trial court, however, that it lacked jurisdiction to consider such petition. Accordingly, the trial court erred in dismissing Moss’ motion on the grounds that it lacked jurisdiction and that the motion failed to state a basis upon which relief could be granted. “[T]he judgment is reversed and remanded with direction that a hearing be held and that petitioner’s [motion] be considered on its merits.”

If a petitioner desires to attack what he considers a void conviction, and he is restrained by federal authorities in another state, proper jurisdiction to entertain his habeas petition is the one in which he was sentenced. ... To hold otherwise would deny the petitioner a forum to voice his complaint to an allegedly void state conviction, thereby allowing any adverse collateral consequences to remain with him during the time of his federal confinement, and after his release.

Decided April 17, 2002.

Lawrence C. Moss, pro se.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Assistant District Attorney, for appellee.

Judgment reversed and remanded.

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

       239 Ga. 871 (238 SE2d 923) (1977).

       (Punctuation omitted.) Id. at 872-873 (1).

       Id. at 874 (1).

       See id.

       See id. at 875.

       See id. at 872.

       (Citations omitted.) Craig v. State, 234 Ga. 398, 399 (216 SE2d 296) (1975).

       See id.

       Id.


text:
    A02A0544.
    WILLIAMS v. THE STATE.
    (564 SE2d 518)
   Ruffin, Judge.

A jury found Franklin Williams guilty of possessing cocaine with intent to distribute, possessing marijuana with intent to distribute, and selling marijuana. Williams moved for a new trial, raising, among other things, ineffective assistance of trial counsel. Following a hearing, the trial court denied the motion. Williams now appeals, challenging the sufficiency of the evidence, asserting that the indictment was procedurally flawed, and again claiming ineffective assistance of counsel. For reasons that follow, we affirm.

1. On appeal, we do not weigh the evidence or determine witness credibility. Rather, “we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence [was] sufficient to authorize a rational trier of fact to find [Williams] guilty of each element of the charged offenses beyond a reasonable doubt.” Viewed in this light, the record shows that on November 13, 1996, the Southeast Georgia Drug Task Force conducted an undercover narcotics operation in Ware County. As part of that operation, undercover officer Jason Dupont purchased 16 grams of marijuana at a home on Barnar Lane from an individual introduced to him as “Frank.” At trial, Dupont identified Williams as the “Frank” who sold him the marijuana.

The police did not arrest Williams following the marijuana sale. Instead, on February 5,1997, police executed a search warrant at the same Barnar Lane home. During the search, Officer John Blood-worth entered a bedroom and saw Williams and Dewitt Cates standing around a table. Bloodworth testified that, when he walked into the room, Cates was holding several small plastic bags, while Williams stuffed what was later identified as marijuana into the bags. Bloodworth handcuffed both men and discovered three vials containing twenty-nine rocks of crack cocaine in Cates’ pocket. Police also found four sets of hemostats and additional small plastic bags on the table, as well as two razor blades and inositol powder on a chest of drawers in the bedroom.

Craig Pittman, the narcotics agent in charge of the search, testified that persons involved in the narcotics trade use hemostats to hold and trim marijuana, inositol to “cut” powder cocaine, small plastic bags to package cocaine and marijuana, and razor blades to slice crack cocaine into small pieces for sale. Based on his training and seven and one-half years of narcotics experience, Pittman further testified that possession of twenty-nine pieces of crack cocaine is consistent with an intent to distribute the cocaine. Bloodworth similarly testified, based on his experience and training, that the amount of cocaine seized from Cates was consistent with distribution.

Cates testified at trial that the cocaine police found on him actually belonged to Williams, who had asked Cates to sell it for him. Cates admitted that he had stated under oath at two prior proceedings that the cocaine belonged to him. According to Pittman, however, Cates asserted on the day of the search that he was holding the cocaine for Williams.

Williams also testified. He stated that he did not live at the Barnar Lane house, but was a frequent visitor and often conducted business there, helping people with tax, Social Security, and workers’ compensation matters. He denied any involvement with the drugs found in the house on February 5, 1997, and also denied selling marijuana to Dupont on November 13, 1996. According to Williams, when the police searched the house on February 5, 1997, he was reviewing Cates’ income tax return. Pittman, however, did not recall seeing any tax forms in the area where police found Williams.

(a) Possession of Cocaine with Intent to Distribute. Williams argues that the State presented insufficient evidence to link him to the cocaine seized from Cates. We disagree.

Cates testified that the cocaine belonged to Williams and that Williams asked Cates to sell it for him. As Williams correctly points out, a conviction may not be based solely on the uncorroborated testimony of an accomplice. But “slight evidence of [Williams’] identity and participation from an extraneous source is all that is required to corroborate the accomplice’s testimony, and thus, support the verdict.” Circumstantial evidence may provide this corroboration.

When police executed the search warrant on February 5, 1997, Bloodworth saw Cates and Williams packaging marijuana into small plastic bags in a bedroom. On a dresser in that same room, officers discovered razors used in the drug trade to prepare crack cocaine for sale, a powder cocaine cutting agent, and numerous small plastic bags commonly used to package both marijuana and cocaine. The evidence further showed that Williams had sold marijuana out of the Barnar Lane house before.

From this evidence, the jury could conclude that Williams was involved in the drug trade and was packaging drugs in a room containing paraphernalia commonly used to prepare both cocaine and marijuana for sale. Although the independent evidence connecting Williams to the cocaine was slight, we find it sufficiently corroborated Cates’ testimony that the cocaine seized from his pockets belonged to Williams. Furthermore, Pittman’s and Bloodworth’s testimony that the amount of seized cocaine was consistent with distribution corroborated Cates’ statement that Williams intended the cocaine for sale.

Williams notes that Cates’ trial testimony conflicted with two prior statements he made under oath. The jury, however, “determines the credibility of witnesses, so the truthfulness of those witnesses, including that of [Cates], was for the jury to decide.” In this case, the jury obviously resolved the conflicts in the evidence against Williams. And, construed favorably to the verdict, the evidence authorized the jury to conclude that Williams had the power and intent to exercise control over the cocaine in Cates’ actual possession, giving Williams constructive possession of it. Finally, the jury could find beyond a reasonable doubt that Williams possessed that cocaine with the intent to distribute it.

(b) Possession of Marijuana with Intent to Distribute. In his appellate brief, Williams admits that the State presented sufficient evidence to sustain his conviction for possession of marijuana with intent to distribute. Accordingly, he has abandoned any challenge to the sufficiency of the evidence on that charge.

(c) Sale of Marijuana. The State also presented sufficient evidence to support Williams’ conviction for sale of marijuana. Officer Dupont testified that he purchased what was later identified as 16 grams of marijuana from Williams. Dupont’s testimony, including his in-court identification of Williams as the seller, authorized the jury’s verdict.

2. The record shows that the defense, rather than the State, called Cates as a witness at trial. Williams now asserts that his trial counsel was ineffective in calling Cates, who testified that the cocaine seized from him belonged to Williams, thus obliterating Williams’ defense. To succeed in this claim, Williams must show that counsel’s performance was deficient and that the deficient performance prejudiced him.

At the hearing on Williams’ new trial motion, trial counsel testified that in two proceedings before trial, Cates stated under oath that the cocaine belonged to him, not Williams. Given this testimony, trial counsel determined that Cates was a crucial defense witness, and Williams also believed that Cates should be subpoenaed to testify at trial. In fact, trial counsel thought it would be malpractice not to call Cates because he had previously given evidence that might exculpate Williams.

Cates agreed to testify on Williams’ behalf. One to two hours before Cates testified, trial counsel spoke with Cates, who gave counsel no reason to believe that his trial testimony would differ from that given in the two prior proceedings. At trial, however, Cates presented a different story, which shocked and surprised trial counsel.

A trial court’s conclusion that the defendant received effective assistance of counsel will be upheld unless it is clearly erroneous. We find no clear error here. As we have previously held, “[t]he decisions on which witnesses to call, what objections to make, and what defenses to pursue are strategic choices that, when made after thorough investigation, are virtually unchallengeable.” Trial counsel decided, and Williams agreed, that Cates’ testimony was crucial to the defense. Cates had testified twice before that the cocaine belonged to him, and he gave trial counsel no indication that his testimony would change on the day of trial. Furthermore, when Cates gave contradictory testimony at trial, defense counsel impeached him with his prior inconsistent statements.

Under these circumstances, the trial court did not err in rejecting Williams’ ineffective assistance claim. As the trial court noted, “that [Cates] changed his testimony cannot be laid at counsel’s feet as an indication of ineffectiveness.”

3. Finally, Williams complains about procedural irregularities in the indictment. Although his arguments are not completely clear, he apparently contends that the grand jury was not in session when the indictment was returned, that the indictment was not delivered to a bailiff for presentment, and that the indictment was not unsealed by a judge in open court.

Williams has not cited any evidence that he raised these procedural challenges prior to his motion for new trial. Accordingly, they are waived:

If the indictment was void for any reason, the question should have been raised by demurrer before pleading ... or by motion in arrest of judgment after conviction. . . . Under controlling Supreme Court authority, [Williams’] motion for new trial cannot be considered to be a viable procedural substitute for a motion in arrest of judgment. . . . Therefore, [Williams] has failed to preserve any error alleging that the indictment was void.

Furthermore, Williams has cited no evidence that the indictment was marred by procedural irregularity. At the hearing on his motion for new trial, Williams asserted that “there is no proof of a grand jury meeting,” and he complained that no one had identified the bailiff who delivered or the judge who unsealed the indictment. At that hearing, however, the assistant district attorney testified that he, in fact, presented Williams’ case to the grand jury. The prosecutor also explained that, after the grand jury votes on an indictment in Ware County, the indictment is sealed and delivered to the bailiff, who gives it to the clerk’s office for presentment in open court. And the indictment itself states that it was received in open court on April 1, 1997, which, the prosecutor testified, was the day the judge actually opened it. The evidence offered at the new trial hearing, therefore, undermines Williams’ claims of procedural irregularity.

Decided April 17, 2002.

McGee & McGee, James B. McGee III, for appellant.

Richard E. Currie, District Attorney, for appellee.

Finally, Williams complains that the State redacted two of his co-defendants’ names from the indictment after it nolle prossed the charges against them. The original indictment filed on April 1, 1997, was not redacted. The names of all four defendants appear on the face of that indictment. At some point, the State redacted the names of the two nolle prossed defendants, and the State admits that the court submitted the redacted indictment to the jury. Williams, however, has not shown that he objected to the use of the redacted indictment at trial, and the transcript reveals no objection when the trial court sent the indictment to the jury. By failing to object, Williams waived this claim of error.

Judgment affirmed.

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

       See Kier v. State, 247 Ga. App. 431 (1) (543 SE2d 801) (2000).

       Id. at 431-432 (1).

       See Leonard v. State, 241 Ga. App. 899, 900 (528 SE2d 540) (2000).

       (Punctuation omitted.) Id.

       See id.

        Rucker v. State, 272 Ga. 750, 752 (2) (534 SE2d 71) (2000).

       See McDade v. State, 251 Ga. App. 671, 672 (555 SE2d 43) (2001) (“Proving joint constructive possession requires only a showing that the defendant had the power and intent to exercise control over the contraband.”).

       See Cooper v. State, 237 Ga. App. 837, 838-839 (2) (517 SE2d 85) (1999); Morgan v. State, 230 Ga. App. 608, 609 (1) (496 SE2d 924) (1998); Bacon v. State, 225 Ga. App. 326, 327-328 (483 SE2d 894) (1997) (physical precedent only).

       See Court of Appeals Rule 27 (c) (2).

       See Day v. State, 235 Ga. App. 771, 772 (1) (510 SE2d 579) (1998); Ivory v. State, 234 Ga. App. 858, 859 (1) (508 SE2d 421) (1998).

       See Thigpen v. State, 248 Ga. App. 301 (546 SE2d 60) (2001).

       See id.

        Welch v. State, 243 Ga. App. 798, 800 (2) (534 SE2d 471) (2000). See also Thigpen, supra at 302 (b) (“[D]ecisions regarding which witnesses to call and all other trial strategies are the exclusive province of the attorney after consultation with his client”) (punctuation omitted).

       (Citation, punctuation and footnote omitted.) Parks v. State, 246 Ga. App. 888, 889 (1) (543 SE2d 39) (2000).

       See Flowers v. State, 159 Ga. App. 516, 517 (284 SE2d 32) (1981).