text:
    A94A2433.
    THOMAS v. THE STATE.
    (451 SE2d 516)
   Blackburn, Judge.

Following a trial by jury, the appellant, Paul R. Thomas, Eddie L. Thomas and Vanessa Walker were found guilty of conspiracy to defraud the state and appellant was acquitted on the charge of criminal attempt to commit theft. On appeal, the appellant asserts that the evidence was insufficient to support his conviction of conspiracy in that: (1) the jury could not find him guilty of conspiracy because he was acquitted of the single overt act that he was alleged to have committed in furtherance of the conspiracy; and (2) the state failed to prove venue beyond a reasonable doubt. We disagree.

The record reflects that in November 1992, at a time they were living together at a Cobb County address, Thomas and his co-conspirators submitted W-2 wage and tax forms to C. L. Nebb, a tax preparer, for his use in preparing their 1991 Georgia tax returns. The forms reflected that taxes had been withheld for each defendant, $10,000, for appellant. Nebb’s office was located in Cobb County. The W-2 forms were purported to have been issued by Mark Anthony & Associates, Inc., an Atlanta-based limousine service that had employed Thomas, his brother, and Walker as independent contractors for portions of 1991. The evidence indicated that Mark Anthony had in fact, provided defendants, as independent contractors, with miscellaneous income 1099 forms, which reflected no taxes had been withheld.

Finally, although Thomas was found not guilty of the charge involving the single overt act alleged against him, criminal attempt to commit theft, the jury found his co-conspirators guilty of charges involving overt acts in furtherance of the conspiracy. Walker admitted calling the Georgia Department of Revenue to check on the status of her refund and Thomas’ brother took Georgia tax monies by presenting his wrongfully received refund check for payment in Cobb County. When individuals engage in a conspiracy, any act done in furtherance of the conspiracy is legally the act of each of the conspirators. Brown v. State, 177 Ga. App. 284, 295 (9) (339 SE2d 332) (1985).

“One commits a conspiracy when he together with one or more persons conspires to commit a crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” (Citation and punctuation omitted.) Raftis v. State, 175 Ga. App. 893, 895 (1) (334 SE2d 857) (1985). Moreover, in Georgia venue may be properly laid in the county in which the conspiratorial agreement was reached or in any county in which an overt act occurred. Caldwell v. State, 142 Ga. App. 831, 832 (2) (237 SE2d 452) (1977). Accordingly, that the jury found Thomas not guilty of the charge involving the overt act alleged against him, did not foreclose a finding of guilty based upon the conspiracy where, as here, there was sufficient evidence of the commission of overt acts by others in furtherance of the conspiracy.

The overt acts proved in the instant circumstances occurred in Cobb County and venue was proper. The jury was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find the appellant guilty beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Decided December 7, 1994.

Jenkins & Eells, B. Emory Potter, Nicholas Pagano, for appellant.

Michael J. Bowers, Attorney General, Harrison W. Kohler, Senior Assistant Attorney General, for appellee.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A94A2654.
    THE STATE v. FOWLER et al.
    (451 SE2d 124)
   Blackburn, Judge.

The State appeals the trial court’s grant of defendants’ motions to suppress. James D. Fowler, Derek A. Burnett, and James Wilson were each indicted on one count of possessing cocaine. Burnett was indicted on a second count of possessing marijuana. On appeal, the State asserts that the trial court erred by granting the defendants’ motions to suppress based upon the lack of an articulable suspicion of criminal activity to justify the stops made of them.

The evidence at the suppression hearing reflects that on April 1, 1993, a police surveillance for Fowler, Burnett, and Wilson was established at a roadside convenience store because they had previously been seen in the parking lot. During the course of the surveillance, two officers, Lieutenant Roland and Trooper Rozelle, observed Burnett and Wilson arrive in a car driven by Burnett. Both then saw Wilson make a telephone call. Shortly thereafter, Fowler arrived and Wilson joined Fowler in the front seat of Fowler’s car. The officers observed what they described as back and forth motions between the two men and they concluded that a drug transfer had occurred, even though they had seen nothing change hands and indeed, they could not even see the hands of the two men. Wilson returned to the car driven by Burnett, and the cars departed the convenience store in different directions. Wilson was empty-handed as he walked back to the car. Roland and Rozelle radioed police that a drug transfer had occurred, and the police subsequently stopped the vehicles for that reason alone. Cocaine was seized from the vehicles immediately following the stops. The defendants dispute the officer’s contention that the searches were consensual.

“Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct.” (Citations and punctuation omitted.) Burdette v. State, 210 Ga. App. 471, 472 (436 SE2d 502) (1993). “ ‘ “What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. . . .” ’ ” State v. Holton, 205 Ga. App. 434, 436 (422 SE2d 295) (1992).

Decided December 7, 1994.

Douglas C. Pullen, District Attorney, Peter B. Hoffman, Assistant District Attorney, for appellant.

Richard L. Montgomery, Garner, Reynolds & Pruitt, Michael E. Garner, Richard A. Bunn, for appellees.

Critical to the determination of the validity of a stop is whether the officer making it possessed particularized and objective reasons for suspecting the person stopped of criminal activity. Postell v. State of Ga., 264 Ga. 249, 250 (443 SE2d 628) (1994); McKinley v. State, 213 Ga. App. 738, 740 (445 SE2d 828) (1994). See State v. Brown, 212 Ga. App. 800, 801 (442 SE2d 818) (1994).

In the instant circumstances, it is uncontroverted that the stops were effected upon Lieutenant Roland’s and Trooper Rozelle’s radioed reports indicating that a drug transfer had occurred. Roland testified that his conclusion that a drug deal had occurred and his subsequent radioing of this conclusion were based simply on his suspicion, not on anything specific that he observed. Neither Roland nor Rozelle observed any transaction occur on the subject evening.

“The trial court’s findings on questions of fact and credibility at a suppression hearing must be accepted on appeal unless clearly erroneous. Harris v. State, [205 Ga. App. 813, 814 (423 SE2d 723) (1992)].” State v. Barnes, 210 Ga. App. 654 (436 SE2d 798) (1993); Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989).

The trial court held that there was no appropriate factual basis for the officer’s conclusion that a drug deal had occurred. That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network.

In light of the foregoing, we cannot say that the trial court erred in granting defendants’ motions to suppress.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2708.
    PHILLIPS v. THE STATE.
    (451 SE2d 517)
   Blackburn, Judge.

Following a trial by jury, the appellant, David Lee Phillips, was found guilty of possession of cocaine with intent to distribute and of driving on a suspended operator’s permit. Phillips was sentenced to life imprisonment on the violation of the Georgia Controlled Substances Act and 12 months confinement on the suspended license charge. This appeal followed the denial of his motion for new trial.

On December 8, 1993, Officer Miller of the Special Duty Unit of the Moultrie Police Department received an anonymous telephone call advising him that Phillips was driving a blue Cutlass Calais, that Phillips’ license had been suspended and that Phillips had contraband in the vehicle. Officers Bryant and Lovett, who were with Miller when the call was received, had arrested Phillips for driving without a license the previous month.

Miller, Bryant, and Lovett later sighted Phillips’ car and turned on their blue lights. As Phillips made a right-hand turn before coming to a stop, Officer Miller recognized him as his son’s uncle, a man he had known for years. Phillips was placed under arrest when he was unable to produce his driver’s license. Thereafter, the vehicle was inventoried, and Officer Lovett found a Tylenol bottle with a red cap on the driver’s side under the center portion of the front seat. The bottle contained 100 rocks (4.2 grams) of cocaine, an amount having a value of at least $1,000 and large enough in the experience of Officers Bryant and Lovett to indicate possession for resale.

1. Phillips first enumerates the general grounds in challenging the sufficiency of the evidence to support his convictions. We have reviewed all evidence of record and conclude that the jury was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find Phillips guilty beyond a reasonable doubt.

2. Phillips next asserts that the indictment was insufficient to enable him to prepare a defense. In this regard, Phillips contends that the indictment was defective because it failed to plead whether the possession was constructive, joint, or otherwise. We disagree.

“ ‘It is not the name, but the description of the crime, which characterizes the offense charged.’ Lipham v. State, 125 Ga. 52 (1) (53 SE 817) (1906). An indictment in which the allegations track the language of the applicable Code section is good as against a general demurrer. OCGA § 17-7-54 (a); Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993); Camp v. State, 3 Ga. 417 (1) (1847). An alleged variance between the offense as named or the Code section cited and the allegations specified in the indictment goes only to the form of the indictment. State v. Eubanks, 239 Ga. 483, 489 (238 SE2d 38) (1977). ‘Where the accused desires to take exception to the form of an indictment . . . , it is essential that he should do so by a demurrer or motion to quash, made in writing and before (entering a) pleading to the merits.’ Gilmore v. State, 118 Ga. 299 (1) (45 SE 226) (1903); Uniform Superior Court Rule 31.1.” Bentley v. State, 210 Ga. App. 862 (438 SE2d 110) (1993). Phillips waived all claims of error to the form of the indictment by failing to object to them in writing before entering a plea on the merits. Dunbar, supra.

3. Phillips next challenges, as impermissible hearsay, Officer Miller’s testimony regarding the anonymous telephone call he received advising him that Phillips was operating a motor vehicle without a license and selling cocaine.

Inasmuch as the statement was admitted into evidence simply to establish the basis upon which Phillips was stopped by the police, rather than as proof of the truth of the matter stated, Officer Miller’s testimony was properly admitted into evidence as an exception to the hearsay rule. Ross v. State, 210 Ga. App. 455, 456 (1) (436 SE2d 496) (1993). Moreover, we note that the trial court gave an immediate instruction as to its use. This enumeration of error is without merit.

4. Phillips also enumerates that the trial court erred by admitting evidence of a similar transaction. In particular, he argues that the evidence of a similar offense improperly put his character in issue. The record shows that the State gave written notice of its intent to introduce similar transaction evidence, and the trial court conducted the required Uniform Superior Court Rule 31.3 (B) admissibility hearing. In common with the instant cocaine possession charge, Phillips’ prior conviction involved a Tylenol bottle with a red cap and a similar quantity of cocaine, 168 rocks. Both offenses arose out of vehicle stops made in the southwest Moultrie area during the month of December. The trial court concluded, as we do, that the evidence was admissible. In this regard, the State satisfied its burden under Williams v. State, 261 Ga. 640, 642 (2b) (409 SE2d 649) (1991), and the trial court found that the State’s need for the similar transaction evidence outweighed the prejudice inherent to the defendant and admitted such evidence. See Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993). In any event, when the evidence was offered at trial, Phillips failed to object and thereby waived any claim of error related thereto. See White v. State, 213 Ga. App. 429 (1) (445 SE2d 309) (1994).

5. Phillips next enumerates that the trial court erred by denying his motion to suppress for lack of an articulable suspicion warranting the stop.

“Reasons for brief investigatory stops need not rise to the level of probable cause to make an arrest, but merely to the level of articulable suspicion that the law was being violated. What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. The trial court’s findings on questions of fact and credibility at a suppression hearing must be accepted on appeal unless clearly erroneous.” (Citations and punctuation omitted.) State v. Barnes, 210 Ga. App. 654 (436 SE2d 798) (1993).

Phillips argues that he was stopped on the basis of an anonymous telephone tip alone. The record, however, reveals that there was more. In particular, Officers Miller and Lovett knew that Phillips’ license had been suspended. Phillips himself acknowledged that the officers had previously arrested him for driving without a license. Under these circumstances, we find that the officers articulated a sufficiently particularized basis for stopping the car driven by Phillips. Accordingly, the inventory of the vehicle which followed was valid, and the trial court properly denied the motion to suppress.

6. Phillips next claims that the jury’s verdict was inconsistent with the evidence showing that others had equal access to the cocaine which was seized. We disagree. Equal access evidence was before the jury. That the jury chose not to believe it does not constitute error.

“The determination of a witness’ credibility ... is within the exclusive province of the jury. [Cit.]” Norris v. State, 258 Ga. 889, 890 (1) (376 SE2d 653) (1989). Moreover, on appeal, we must view the evidence in the light most favorable to the verdict; the appellant no longer enjoys the presumption of innocence; and, rather than weighing the evidence or determining the credibility of witnesses, this court determines evidentiary sufficiency. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

7. Phillips next enumerates that the trial court erred by excluding testimony concerning the past criminal record of an individual not present in court. In this regard, Phillips contends that the trial court denied him a fair trial by not allowing him to cross-examine Officer Bryant to show that Adrian Zeigler, one of his passengers at the time of the arrest, was a convicted felon with two prior drug offenses.

Neither party to the trial subpoenaed Zeigler as a witness. Even had they done so, cross-examination relative to Zeigler’s prior criminal record would have been relevant only for purposes of impeachment and could not have been introduced into evidence absent compliance with applicable procedure. See Love v. State, 199 Ga. App. 482, 483 (405 SE2d 308) (1991). The appellant testified that Zeigler trafficked in drugs, and the evidence otherwise adequately established appellant’s guilt of the offenses charged beyond a reasonable doubt. See Division 1. Accordingly, this claim of error is without merit.

8. Phillips last enumerates as error that he was denied the effective assistance of counsel below. The claim of ineffectiveness is raised for the first time on appeal and by appellate counsel who had no participation in the motion for new trial. We therefore remand the case for a hearing by the trial court to consider the appellant’s assertion of ineffective assistance of counsel. Duitsman v. State, 212 Ga. App. 348, 350 (441 SE2d 888) (1994).

Decided December 7, 1994.

Richard T. Kent, for appellant.

H. Lamar Cole, District Attorney, A. Scott Gunn, Charles M. Stines, Assistant District Attorneys, for appellee.

Judgment affirmed and case remanded with direction.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2766.
    UPSHAW v. THE STATE.
    (451 SE2d 125)
   Blackburn, Judge.

Following a trial by jury, Joseph Lynn Upshaw was convicted of burglary, two counts of aggravated assault, two counts of aggravated sodomy, and rape. Upshaw appeals his conviction asserting several enumerations of error.

1. In his first enumeration of error, Upshaw contends the evidence was insufficient to support his convictions. We disagree.

The victim testified that Upshaw (her former son-in-law), entered her home without permission through the back door. Upshaw held a big knife in his hand. Upon the victim’s refusal to give him her daughter’s address, Upshaw grabbed her by the hair and put the knife to her throat. Upshaw told the victim that he was going to kill her. Upshaw beat the victim about the head, forced her to commit oral sodomy twice, and raped her. Upshaw required the victim to tell him it was “good.” Medical evidence indicated multiple bruises, scratches, and abrasions on the victim.

The evidence viewed in the light most favorable to the jury’s verdict supports Upshaw’s convictions. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Upshaw contends the trial court erred in admitting evidence of a similar transaction. Evidence of similar crimes is admissible upon proof “the defendant was the perpetrator of the independent crime, there is a sufficient similarity or connection between the independent crime and the crime charged so that proof of the former tends to prove the latter, and the evidence of the independent crime is offered not to raise an improper inference as to the accused’s character, but for some permissible purpose regarding an issue in the case. Stephens v. State, 261 Ga. 467, 468 (6) (405 SE2d 483) (1991); Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991).” Moore v. State, 207 Ga. App. 412, 414 (427 SE2d 779) (1993).

After a hearing pursuant to Uniform Superior Court Rule 31.3 (B), the trial court allowed the admission of evidence regarding one of the similar transactions the State sought to use. Upshaw’s sister, Beverly, testified that Upshaw put a knife to her throat, raped her, committed anal sodomy, and required her to commit oral sodomy. Beverly testified that Upshaw required her to tell him “how much [she] liked it.” Upshaw threatened to kill Beverly if she told anyone about the rape.

“Where forcible sexual assaults are involved, there is at least much sociological evidence to support the conclusion that this type of deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other. There are exceptions to this [similar transaction] rule, and these exceptions have been rather liberally extended in cases of sexual crimes.” (Citations and punctuation omitted.) Moore, supra at 415. Furthermore, “ ‘[t]here is no requirement that a previous offense be absolutely identical to the one being prosecuted so as to make it admissible.’ ” Gonzales v. State, 213 Ga. App. 667, 668 (445 SE2d 769) (1994).

In the present case, the incidents were sufficiently similar. The trial court did not err in allowing the testimony of the similar transaction.

3. In his final enumeration of error, Upshaw contends his trial counsel was ineffective.

“The bench mark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result. In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) that counsel’s performance was deficient, i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this deficient performance prejudiced the defense, i.e., that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. The complaining defendant must make both showings.” (Citation and punctuation omitted.) Hampton v. State, 215 Ga. App. 57 (449 SE2d 654) (1994).

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous.” (Citations and punctuation omitted.) Gibbs v. State, 213 Ga. App. 117, 118 (443 SE2d 708) (1994). In the present case, Upshaw contends his trial counsel did not spend enough time preparing the case; that counsel failed to examine two witnesses concerning supposedly helpful testimony; and that counsel prevented him from testifying.

Decided December 7, 1994.

L. Elizabeth Lane, for appellant.

Charles H. Weston, District Attorney, Thomas J. Mathews, Assistant District Attorney, for appellee.

Upshaw’s trial counsel testified at the motion for new trial hearing that he had met with Upshaw 21 times prior to trial. Each meeting lasted from a few minutes to an hour. Upshaw agreed that his trial counsel had met with him that number of times, but he did not agree as to the length of the meetings. Furthermore, Upshaw’s trial counsel testified that he followed Upshaw’s suggested lines of impeachment except when they were irrelevant. At trial, Upshaw informed the trial judge that his counsel had explained his right to testify and that he did not wish to do so.

“There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” (Citations and punctuation omitted.) Id. The trial court’s denial of Upshaw’s motion for new trial based upon ineffective assistance of counsel was not clearly erroneous.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A2802.
    JARAYSI v. SOLOWAY et al.
    (451 SE2d 521)
   Blackburn, Judge.

This is a legal malpractice case in which the trial court granted summary judgment to appellees/defendants Christopher J. McFadden, David N. Soloway, and the law firm of Frazier, Soloway & Poorak (hereinafter referred to as the law firm). The appellant/plaintiff, Lee F. Jaraysi, also appeals the trial court’s denial of his cross-motion for summary judgment.

Soloway handled the trial of a breach of contract action on behalf of Jaraysi. Jaraysi received a judgment in that action; however, he sought to appeal it as insufficient. Although Soloway and the law firm did not represent Jaraysi in his appeal, Soloway did prepare and provide him with a notice of appeal and written instructions on filing an appeal pro se. Soloway also referred Jaraysi to McFadden for assistance with the appeal. Neither Soloway nor McFadden informed Jaraysi that a discretionary application was required pursuant to OCGA § 5-6-35 (a) (6). On December 23, 1991, Jaraysi, pro se, filed a direct appeal of the jury’s verdict to this court, and the appeal was subsequently dismissed on January 19, 1993, based upon Jaraysi’s failure to file a discretionary application since the judgment entered thereon was less than $10,000. See OCGA § 5-6-35 (a) (6).

In the instant action, Jaraysi brought suit against Soloway, McFadden, and the law firm, asserting that they were negligent in failing to discover Soloway’s failure to inform him of the appropriate appellate procedure, that Soloway negligently drafted the promissory note in 1987 (the subject of Jaraysi’s breach of contract suit), and that McFadden negligently failed to inform him that his appeal was subject to dismissal for the failure to file a discretionary application.

1. Initially, Jaraysi maintains that the trial court erred in granting summary judgment in favor of McFadden, Soloway, and the law firm, and in denying his motion for summary judgment because he would have been successful on appeal in obtaining a reversal of the lower court’s judgment.

“In a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery. In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to [properly advise a client on] fil[ing] or perfecting] an appeal, proximate cause may be established by showing that the appellate court would have reversed and that upon remand to the lower court the client would have obtained a more favorable result.” (Citations and punctuation omitted.) Fine & Block v. Evans, 201 Ga. App. 294, 295 (411 SE2d 73) (1991). A determination of whether an appeal to this court would have been successful is a question of law, and hence, proper for summary adjudication. Id.

In the underlying breach of contract action, Jaraysi had obtained the services of Soloway to draft all the documents associated with the sale of his gasoline and convenience store business and the lease of the property on which the business was located. The purchasers made a $25,000 down payment on the $135,000 purchase price for the business, and promised to pay Jaraysi the remaining $110,000 balance in monthly installments over a 15-year period as provided in the promissory note. The promissory note was executed by the purchasers in exchange for “value received.” They further agreed to lease the premises starting at $2,500 per month for a 15-year period. The purchasers failed to make the first scheduled payment on the promissory note and it was declared in default. Two months later, the commercial building leased to the purchasers of the business was destroyed by fire. The purchasers had made payments pursuant to the lease agreement until the time of the fire.

Jaraysi contends that the trial court erred in failing to rule that the subject promissory note was an unconditional contract as a matter of law, and therefore, its terms could not be altered by parol evidence. We cannot agree. The record viewed in the light most favorable to Jaraysi as the nonmovant shows that the promissory note, the contract for the sale of the business, and the commercial lease of the premises, were executed simultaneously. Under Georgia’s Uniform Commercial Code, an instrument may be modified or affected by any other written agreement executed as a part of the same transaction. OCGA § 11-3-119 (1). See also Hunter v. McLelland, 143 Ga. App. 746 (1) (240 SE2d 153) (1977). The promissory note is not complete on its face and is ambiguous as it does not specify the consideration received by Jaraysi in exchange for the note.

Paragraph 7 of the lease agreement provided that the purchasers were responsible for maintaining the leased premises in good order and repair. Jaraysi was responsible for “any repairs of a major structural nature.” The lease did not otherwise address the reconstruction of the property if destroyed by fire. Jaraysi did not repair the leased building after it was destroyed by fire and an expert who testified on Jaraysi’s behalf at trial opined that the major structural damage to the building was irreparable. However, the purchasers maintained that Jaraysi was obligated to repair the building after it was destroyed by fire, and his failure to do so was an absolute defense to payment under the promissory note. In Hunter, this court held that failure of the party to satisfy a condition precedent of a sales contract for the purchase of realty would be a complete defense for a note executed in the same transaction for extending the date of the closing transaction.

The evidence produced at trial presented an issue of fact which was resolved by the jury as to whether Jaraysi breached the lease and whether there was a failure of consideration for the lease agreement warranting an off-set of any payments due under the promissory note. As the trial court noted, the purchasers would not have purchased the business and executed the note if they could not operate the business after the commercial property in which the business was located was destroyed by fire. Pursuant to the terms of the lease, the parties contractually agreed to their respective obligations in terms of repairing the property, with Jaraysi maintaining responsibility for repairing items of a major structural nature. We cannot say as a matter of law that Jaraysi was obligated to rebuild the commercial building after it was destroyed by fire. However, there is nothing in the lease which would place the responsibility on the purchasers to rebuild the leased premises after its destruction by fire, and such reconstruction could not logically be considered a minor repair. See Sadler v. Winn-Dixie Stores, 152 Ga. App. 763, 764 (264 SE2d 291) (1979). In addition, there was evidence presented at trial which provided a reasonable basis for the action of the jury in off-setting the monies due under the contract after the fire. See Toole v. Brownlow & Sons Co., 151 Ga. App. 292 (259 SE2d 691) (1979).

Decided December 7, 1994.

Edward J. Sullivan, Michael 0. Crain, for appellant.

Troutman Sanders, Daniel S. Reinhardt, Herbert D. Shellhouse, Christopher J. McFadden, Hertz & Link, Houston D. Smith III, for appellees.

Consequently, in reviewing the transcript of the trial below, we conclude that an appeal would not have been successful. Evans, supra. Therefore, Jaraysi has not shown that any action of Soloway, McFadden, and the law firm in connection with his dismissed appeal proximately caused him any harm. Id. Accordingly, the trial court did not err in granting summary judgment in favor of McFadden, Solo-way, and the law firm in connection with the unperfected appeal, and in denying Jaraysi’s cross-motion for summary judgment.

2. In addition, the trial court did not err in granting summary judgment in favor of Soloway and the firm on Count 2 of the complaint in which Jaraysi asserted a cause of action based upon Solo-way’s allegedly negligent preparation of the promissory note on or before October 30, 1987. “It has long been the law in this state that a cause of action for legal malpractice, alleging negligence or unskillfulness, sounds in contract (agency) and, ... is subject to the four-year statute of limitation in OCGA § 9-3-25. Such a cause of action can also sound in tort and, thus, be subject to the one-year and/or two-year limitation of OCGA § 9-3-33.” (Citations and punctuation omitted.) Coleman v. Hicks, 209 Ga. App. 467, 468 (1) (433 SE2d 621) (1993). Since this legal malpractice action stems from the breach of a duty imposed by the attorney-client contract of employment, the four-year statute of limitation is applicable. Arnall, Golden & Gregory v. Heath Svc. Centers, 197 Ga. App. 791 (1) (399 SE2d 565) (1990). Jaraysi filed the instant action on November 23, 1993, outside the applicable statute of limitation. However, unlike in Arnall, Golden & Gregory, Jaraysi has not alleged and the evidence does not show that Soloway and the law firm concealed or misrepresented any negligence in the preparation of the promissory note warranting the tolling of the limitation period.

3. Based upon our decision in Divisions 1 and 2 above, Jaraysi’s remaining enumerations of error are rendered moot.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Johnson, Judge.

text:
    A93A2098.
    PAULIN et al. v. OKEHI et al.
    Decided December 8, 1994.

      Sutton & Associates, Berrien L. Sutton, Hallman & Stewart, Ronald W. Hallman, for appellants.

      Knight & Fisher, Joy H. Fisher, for appellees.
   Johnson, Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994), our decision in Paulin v. Okehi, 211 Ga. App. 752 (440 SE2d 486) (1994), is hereby vacated and the judgment of the Supreme Court is made the. judgment of this court.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.


author: Pope, Chief Judge.

text:
    A94A0924.
    McGUGAN v. THE STATE.
    (451 SE2d 460)
   Pope, Chief Judge.

Following a bench trial, defendant Rodney Nicholas McGugan was convicted of trafficking in cocaine. He appeals, enumerating as error the denial of his motion to suppress.

The record and transcripts reveal the following: Agents with the Northeast Georgia Narcotics Task Force obtained a warrant to search the person and residence of Anthony Eugene Crane based on the belief that cocaine was being sold out of and used on the premises. Although the affidavit used to procure the warrant requested that the warrant include an “any other persons” clause, the warrant which was issued pertained only to Crane and the premises.

The warrant was executed on January 12, 1993. Deputy Richard Jewell of the Habersham County Sheriff’s Department was stationed outside the premises to secure the scene while the search was being conducted. Deputy Jewell observed defendant drive by the residence and then back into the driveway. Deputy Jewell approached defendant’s vehicle, identified himself as a law enforcement officer, informed defendant a search of the premises was in progress and instructed defendant to step out of his vehicle. Deputy Jewell testified “[defendant] became very nervous and started looking around, and at that point because of his actions, I advised him again to step out of the vehicle.” When the defendant did not comply with the deputy’s second request to exit the vehicle, Deputy Jewell opened the door and for the third time instructed defendant to step out of the vehicle. Defendant complied, and although defendant tried to pull away, Deputy Jewell placed defendant against the vehicle and proceeded to frisk him for weapons. Testimony was presented that while patting down defendant, Deputy Jewell felt a “rather large,” hard object inside defendant’s left inside jacket pocket and asked defendant to identify the object. Defendant did not respond to the request and Deputy Jewell reached inside defendant’s pocket and removed a plastic bag containing a substance subsequently identified as approximately two ounces of cocaine. Deputy Jewell testified the reason he retrieved the object from defendant’s pocket was because defendant failed to respond to his request to identify the object.

Defendant challenges the denial of the motion to suppress, arguing that the search of an individual such as the defendant who is not named in the search warrant but is merely on the premises during the execution of the warrant is illegal absent independent justification. The State concedes that defendant was not named in the search warrant but argues the search was proper under the authority contained in OCGA § 17-5-28.

“In the execution of a search warrant the officer executing the same may reasonably detain or search any person in the place at the time to protect himself from attack. OCGA § 17-5-28 (1). Under this Code section, the frisk of an individual who is a visitor on the premises and who is not named in the warrant must be justified by the officer’s reasonable belief that it is necessary. Ybarra v. Illinois, 444 U. S. 85 (100 SC 338, 62 LE2d 238) (1979); Wyatt v. State, 151 Ga. App. 207, 209 (1a) (259 SE2d 199) (1979). It appears that the warrant that was issued in the instant case authorized a search for drugs. It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed. See Hayes v. State, 202 Ga. App. 204 (414 SE2d 321) (1991) (knowledge of officers that firearms are tools of the drug trade). See also State v. Hawkins, 187 Ga. App. 826, 828 (2) (371 SE2d 668) (1988) (applying OCGA § 17-5-28 (1) in the context of execution of a search warrant for drugs). Moreover, appellant arrived on the scene in a [vehicle]. See Hayes v. State, [202 Ga. App.] at 205 (noting that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. (Cit.)). Compare Ybarra v. Illinois, supra.” (Punctuation omitted.) Condon v. State, 203 Ga. App. 163, 164 (416 SE2d 802) (1992). Moreover, in addition to the foregoing, the defendant’s behavior in refusing to exit the vehicle and then resisting the officer’s efforts to place him against the vehicle also warranted a reasonable belief by the officer that he might be in danger. Under these circumstances, the officer was clearly authorized to direct that defendant step from his vehicle and submit to a minimally intrusive pat-down to determine if he was armed. Id.; Hayes v. State, 202 Ga. App. 204.

Decided October 4, 1994

Reconsideration denied December 12, 1994.

Cook & Palmour, Bobby Lee Cook, Mitchell M. Shook, for appellant.

Michael H. Crawford, District Attorney, for appellee.

Defendant argues, however, that even if the officer was authorized to frisk for weapons, he exceeded the permissible scope of the limited pat-down search by reaching into defendant’s pocket and retrieving what was subsequently identified as a packet of cocaine. The officer did not immediately retrieve the object from defendant’s pocket, but gave defendant an opportunity to identify the object. It was only when defendant refused the officer’s request to identify the object that Deputy Jewell reached inside the pocket and discovered the contraband. Defendant’s refusal to identify the object, coupled with his earlier behavior in refusing to exit his vehicle upon request by the officer and resisting the officer’s attempt to place him against the vehicle so that he could be frisked did, in our opinion and as found by the trial court, “create [ ] a reasonable suspicion that the defendant was armed and justified a minimally intrusive act by the officer in placing his hand in defendant’s pocket to remove the hard bulge in his pocket. . . .” As the record makes clear, Deputy Jewell had no investigatory purpose, but was merely trying to determine whether appellant was armed. Hayes at 204. “The officer’s actions were a proportionate response to those of [defendant] and, accordingly, the denial of [defendant’s] motion was proper.” Hayes at 207. Cf. Smith v. State, 139 Ga. App. 129 (3) (227 SE2d 911) (1976) (officer retrieved object after clearly determining that it was not a weapon).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Ruffin, Judge.

text:
    A94A0968.
    DOMINY v. NATIONAL EMERGENCY SERVICES, INC.
    (451 SE2d 472)
   Ruffin, Judge.

Appellee National Emergency Services, Inc. commenced this action against appellant Dr. Dale Dominy, alleging breach of a non-competition provision in a 1980 employment agreement in which appellant agreed to perform emergency medical services in hospitals contracting with appellee. In 1981, appellee assigned appellant to the emergency room at Memorial Hospital and Manor (“MHM”) in Bainbridge, Georgia, where he was working in 1987 when that hospital terminated its contract with appellee and contracted with another provider, Coastal Emergency Services (“Coastal”), for emergency room physicians. Appellant continued to perform emergency medical services at MHM under contract with Coastal until 1989. The trial court granted summary judgment for appellee, and this appeal followed.

1. Appellant contends that the trial court erred in granting summary judgment for appellee because the agreement expired in 1983 and thereafter he was an employee at will. We disagree.

The contract provided: “The period of this Agreement shall be for one (1) year from the date hereof, automatically renewable for a like period upon each expiration thereof. ...” The only reasonable construction of this provision was that the parties intended to contract for the appellant’s employment for automatically renewable one-year terms upon the mutual assent of the parties. See Heyman v. Fin. Prop. Dev., 175 Ga. App. 146, 147 (332 SE2d 893) (1985). The fact that the agreement did not set out the mechanics by which mutual assent may be communicated does not invalidate the contract. Nikas v. Hindley, 99 Ga. App. 194, 198 (1) (108 SE2d 98) (1959).

The record reveals no attempt by either party to terminate the contract, and it is undisputed that appellant received payment for his services at MHM and other benefits from appellee consistent with the agreement until the hospital terminated its contract with appellee. By their conduct the parties assented to each of the contract’s yearly renewals. American Honda Motor Co. v. Williams & Assoc., 208 Ga. App. 636, 644 (5) (431 SE2d 437) (1993). Accordingly, the trial court properly granted summary judgment to the appellee.

2. Appellant challenges the contract’s non-competition clause as overly restrictive. The reasonableness of an employment contract’s covenant not to compete is determined by “analyzing it in terms of time, territorial effect, and the business interest of the employer sought to be protected. [Cit.]” Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985). This test of “duration, territorial coverage, and scope of activity” is not “an arbitrary rule,” but a “helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” Id. at 673.

The covenant in this case provides, in pertinent part: “for a period of two (2) years after the termination of this Agreement, however the same may be terminated, Physician shall not directly or indirectly solicit a contract to perform nor perform nor have any ownership or financial interest in any corporation, partnership, or other entity soliciting or contracting to perform emergency medical service for any medical institution at which Physician has performed the same or similar services under this Agreement or any prior Agreement be tween Physician and Corporation.” (Emphasis supplied.) This restriction only prohibits appellant from performing emergency medical services in Memorial Hospital and Manor in Bainbridge, Georgia, where he worked pursuant to a contract with appellee, and from having an ownership or financial interest in an entity contracting to provide emergency medical services to that one hospital. He is not precluded from all practice of medicine, with staff privileges at MHM, nor is he prohibited from providing emergency medical services, directly or under contract to a provider of such services, to other hospitals in the immediate vicinity. We find such a restriction is reasonably limited in duration and territorial effect while it protects appellee’s interest in preventing appellant from becoming its competitor immediately after termination of its contract with MHM.

3. Appellant also maintains that the contract’s $10,000 liquidated damages provision constitutes an unenforceable penalty. “[A] contract provision will be treated as one for liquidated damages only if all of the following questions are answered affirmatively: first, was the injury caused by the breach difficult or impossible of accurate estimation; second, did the parties intend to provide for damages rather than a penalty; and third, was the stipulated sum a reasonable preestimation of the probable loss from the breach. In determining whether a designated sum that is to be paid to one party in the event that the other breaches the contract is a penalty, we must ascertain whether it was inserted for the purpose of deterring the party from breaching the contract, and of penalizing him in the event he should do so, or whether it was a sum which the parties in good faith agreed upon as representing those damages which would ensue if the contract should be breached.” (Citations and punctuation omitted.) Roswell Properties v. Salle, 208 Ga. App. 202, 205 (3) (c) (430 SE2d 404) (1993).

At the time the parties entered into the contract, they limited appellee’s consequential damages to $10,000 for any breach of the following non-competition provisions: whether appellant forms a competing corporation to provide physicians to the hospital, or individually performs emergency medical services for a hospital where he had worked under contract with appellee. According to appellee, $10,000 represents the estimated cost of locating and verifying the credentials of a replacement for the breaching party rather than merely reassigning him to another client hospital in continuation of his contract with appellee.

The contract entitles appellee to liquidated damages “in addition to any and all remedies available to Corporation under any and all other agreements, and under this Agreement. . . .” Retention of the right to seek injunctive relief and other remedies for other breaches of the contract does not render the liquidated damages provision a penalty. Fortune Bridge Co. v. Dept. of Transp., 242 Ga. 531, 533 (250 SE2d 401) (1978). Accordingly, the provision for liquidated damages is enforceable.

Decided October 27, 1994

Reconsideration denied December 12, 1994

Dale Dominy, pro se.

Wetzel & Carroll, Michael L. Wetzel, Edward F. O’Connor, for appellant.

Brown, Katz, Flatau & Hasty, S. Phillip Brown, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1096.
    JENKINS v. THE STATE.
    (451 SE2d 457)
   Pope, Chief Judge.

Defendant Willie Dexter Jenkins was convicted by a jury of armed robbery and aggravated assault. He appeals following the denial of his motion and amended motion for new trial.

Construed so as to support the verdict, the evidence adduced at trial shows the following: On March 14, 1992 defendant entered Skinny’s convenience store in Fulton County. The cashier, Cynthia Kennedy, testified that defendant immediately walked behind the counter upon entering the store. Kennedy informed defendant he was not allowed behind the counter and defendant ordered her to open the register and give him money. Kennedy opened the register, and defendant reached inside and removed money with his left hand while holding a knife in his right hand. Kennedy testified defendant had the knife in her face and when she attempted to shove it away he grabbed her head and placed the knife against her forehead. Allen Chandler, another clerk at Skinny’s, testified he was also in the store at the time of the robbery. Chandler testified that when he realized a robbery was in progress, he drew his pistol and that he then saw the knife in defendant’s hand, which he described as being about eight or ten inches long. Chandler testified defendant was holding the knife in a dagger position and he saw defendant stab at Kennedy with the knife. Chandler fired at the defendant, striking him in the right torso area. Chandler testified that as soon as he fired, he ran around the end of the counter to assist Kennedy, who was struggling with the defendant. Defendant threatened to kill Kennedy if Chandler fired at him again. Defendant kicked the pistol out of Chandler’s hand, and rushed past him, striking out at him with the knife and grazing Chandler’s forehead with the butt of the knife. Defendant and Chandler collided as defendant rushed past Chandler and Chandler fell down two steps, breaking three ribs in the process. Defendant then ran out of the store.

Defendant also testified at trial, and denied committing the armed robbery and aggravated assault. Defendant acknowledged he received a gunshot wound on the night of the incident, but testified that the shooting occurred during an attempted drug buy.

1. Defendant first contends that the trial court erred in refusing to admit certain evidence pertaining to Chandler’s criminal record, and that the refusal to admit the evidence denied him his right to a thorough and sifting cross-examination of the witness. Specifically, defendant argues that in addition to questioning the witness about his criminal convictions he should have also been allowed to question the witness about his prior arrest record and certain crimes for which he was tried and acquitted.

(a) Relying on OCGA § 24-9-68, defendant argues that evidence of the witness’ criminal record should have been admitted to show that the witness may have been motivated to testify favorably for the State in order to “please” the police. Although it is true that “[t]he state of a witness’s feeling towards the parties and his relationship to them may always be proved for the consideration of the jury,” OCGA § 24-9-68, other than the argument of counsel, there is nothing in the record to support the contention that the witness’ past criminal record may have motivated the witness to be untruthful or to “shade” his testimony in favor of one side over the other. The witness’ apparent “trouble” with law enforcement occurred in the past, and there were no outstanding criminal charges against the witness at any time relevant to the incident here. The cases relied on by defendant are thus inapposite. Owens v. State, 251 Ga. 313 (1) (305 SE2d 102) (1983); Hines v. State, 249 Ga. 257 (2) (290 SE2d 911) (1982).

(b) Contrary to defendant’s argument on appeal, the State’s attorney did not open the door to the admission of this evidence on redirect examination of the witness. Our review of the transcript shows that the State merely sought to rebut the testimony and implications arising from the testimony elicited by the defendant on cross-examination.

(c) Finally, defendant argues he should have been able to introduce Chandler’s DUI arrests to demonstrate how his long-term drinking may have affected his memory and perception of the incident in the case at bar. However, defendant has presented no expert evidence that the witness suffered memory or perception problems related to prior alcohol use. In sum, we find no evidence in the record before us to show that the witness’ previous arrests for DUI were admissible for any of the purposes posited by defendant, or that this evidence was in any way relevant or material to the issues being tried.

2. Defendant next contends that the pre-trial photographic procedure was tainted and impermissibly suggestive and thus the trial court erred in refusing to strike the testimony concerning the identification of defendant by Chandler. Defendant’s motion at trial pertained to both the in-court and out-of-court identification of defendant by the witness. In support of his contention, defendant points to the fact that of the six pictures shown, he was the only individual seated, and, furthermore, he was seated on a hospital bed and the witness knew he had been shot. Defendant also contends that of the six photographs displayed, he was the only individual with a narrow or oval shaped face.

A “conviction based on eyewitness identification at trial following a pretrial identification [procedure] will be set aside only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citation and punctuation omitted.) Taylor v. State, 203 Ga. App. 210, 211 (416 SE2d 554) (1992).

Our review of the copies of photographs contained in the record on appeal, as well as the testimony relating to the identification procedure, shows that the photographs were not impermissibly suggestive. Defendant’s facial shape does not appear distinctive or unusual compared to the other men. Also, the fact that he is seated on a hospital bed is not readily apparent, and probably would not have been ascertained by Chandler in the short time he viewed the photographs before almost immediately identifying defendant. Moreover, the photograph of a shirtless man standing in a doorway is even more “eye-catching” than defendant’s.

Additionally, even if the procedure was impermissibly suggestive, exclusion is mandated only if there was also a substantial likelihood of irreparable misidentification. E.g., Widner v. State, 203 Ga. App. 823, 824 (1) (418 SE2d 105) (1992). “ ‘(T)he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.’ Neil v. Biggers, [409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972)].” Morgan v. State, 197 Ga. App. 823, 824 (1) (399 SE2d 578) (1990).

Applying the foregoing, we are satisfied from our review of the record that the identification procedure used in the instant case did not result in a substantial likelihood of misidentification. “Furthermore, even if a pre-trial identification is tainted, an in-court identification is not constitutionally inadmissible if it does not depend upon the prior identification but has an independent origin.” (Punctuation omitted.) Taylor, 203 Ga. App. at 211. The witness testified that he walked past defendant when he entered the store and observed defendant during the robbery and the attack on Kennedy, and the defendant then ran past him again as he was leaving the store. Both Chandler and Kennedy testified at trial that they were 100 percent certain of defendant’s identity as the perpetrator of the offense. Although Chandler’s description of defendant to the police was not accurate, we are satisfied, considering the totality of the circumstances, the trial court did not err in denying defendant’s motion to exclude the in-court and pre-trial identification of defendant.

3. Defendant next argues that the trial court erred in allowing one of the investigating officers to testify, over objection, during rebuttal about an oral statement made by the defendant because the statement had not been provided to defendant in response to his request pursuant to OCGA § 17-7-210. The record shows that defendant testified at trial that he was shot during an attempted drug buy. The rebuttal witness testified that defendant told him he had been shot on the way to the store to buy cigarettes. Viewed in isolation and from the point in the proceedings at which the OCGA § 17-7-210 request was made, we agree with the State that the statement was not incriminating and inculpatory. Holland v. State, 190 Ga. App. 169 (1) (378 SE2d 513) (1989); cf. Davis v. State, 198 Ga. App. 375 (1, 2) (401 SE2d 581) (1991) (in which this court found inculpatory a statement by a defendant who was charged with theft by receiving which admitted control of the property in question). Moreover, since we conclude that it is highly probable that even if wrongly admitted the evidence complained of did not contribute to the verdict, reversal is not required. Wallin v. State, 248 Ga. 29, 32 (5) (279 SE2d 687) (1981); Dickey v. State, 179 Ga. App. 383, 385 (1) (346 SE2d 864) (1986); cf. Davis v. State, 198 Ga. App. at 375 (2).

Defendant’s “fall back position” both on appeal and at trial was that if the statement was not inculpatory, then it was exculpatory and should have been provided to him pursuant to his Brady request. There clearly was no Brady violation in this case. The statement here was made by the defendant and Brady “applies only to exculpatory material unknown to the defendant.” (Citations and punctuation omitted.) Bradford v. State, 205 Ga. App. 383, 384 (422 SE2d 74) (1992).

4. We find no merit to defendant’s contention that a mistrial should have been declared because of certain remarks made by the State’s attorney during closing argument. See, e.g., Brown v. State, 264 Ga. 48 (2) (441 SE2d 235) (1994); Alexander v. State, 263 Ga. 474 (2) (435 SE2d 187) (1993); cf. Bell v. State, 263 Ga. 776 (439 SE2d 480) (1994). Moreover, “considering the entire closing argument, as well as the abundance of evidence against [defendant], ... we are convinced that it is ‘highly probable’ that the jury would have reached the same verdict had these statements not been made. See Johnson v. State, 238 Ga. [59, 61-62 (230 SE2d 869) (1976)].” Alexander v. State, 263 Ga. at 478.

Decided September 27, 1994

Reconsideration denied December 12, 1994

Derek H. Jones, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Anita T. Wallace, Frances E. Cullen, Assistant District Attorneys, for appellee.

5. Defendant’s final enumeration assigns error to the jury charge. The record shows that the defendant requested charges on both alibi and misidentification. The trial court instructed the jury on both defenses but listed only six factors for the jury to consider in assessing the evidence concerning identification instead of the seven listed by the defendant in his request. The court, however, indicated that the factors listed were just “some of the factors you may consider in assessing reliability of identification” and thus did not preclude the jury from considering any factor raised by the evidence which pertained to the identification of the defendant. Having considered the charge in its entirety, we do not find the omission complained about here constituted harmful error under the facts of this case.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1145.
    BROWN v. THE STATE.
    (451 SE2d 787)
   Pope, Chief Judge.

Defendant Carlos Brown appeals from his conviction for aggravated assault, OCGA § 16-5-21 (a) (2).

Viewed in a light most favorable to the verdict, the evidence showed that defendant was living at the home of his aunt and the victim, Willie Glass. Defendant’s aunt and Glass were sitting on the front porch when defendant came home from work and went inside. Defendant came back out and walked behind the building. A few minutes later, defendant returned with a baseball bat shouting at Glass, “Where’s my sb_?” Defendant and Glass exchanged words and, as Glass was attempting to walk away, defendant hit him in the head with the bat.

Defendant testified that Glass pulled a knife on him as he was questioning Glass about $500 missing from his room and that he swung the bat at Glass in self-defense.

1. Defendant argues the trial court erred in refusing to allow him to impeach Glass with a certified copy of an indictment showing Glass’ guilty plea to burglary. The trial court allowed defendant to impeach Glass with a certified copy of his conviction for involuntary manslaughter. However, when defendant also attempted to impeach Glass with a certified copy of his plea to burglary, the prosecutor objected oh the ground that no sentencing sheet was attached to the certified copy of the indictment and plea. The trial court sustained the objection, finding a certified copy of the conviction or judgment was necessary.

We agree with defendant that the trial court erred in refusing to allow him to impeach Glass with a certified copy of the indictment showing Glass’ guilty plea to burglary. Numerous cases of both this court and the Supreme Court have held that a certified copy of a witness’ plea of guilty to a crime involving moral turpitude is a permissible method of impeachment. Hicks v. State, 169 Ga. App. 542 (1) (314 SE2d 113) (1984); see also Gardner v. State, 263 Ga. 197, 199 (5) (429 SE2d 657) (1993); Favors v. State, 234 Ga. 80, 87 (3) (214 SE2d 645) (1975) ; Woodward v. State, 197 Ga. 60, 70 (8) (28 SE2d 480) (1943); Sloan v. Glaze, 72 Ga. App. 415, 418 (4) (33 SE2d 846) (1945). However, in view of the fact that defendant was allowed to impeach Glass with his conviction for involuntary manslaughter and that, in any event, defendant’s aunt corroborated entirely Glass’ version of the events, we find it “highly probable that the error did not contribute to the judgment.” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

2. In light of our holding in Division 1 above, we need not address defendant’s argument that the trial court erred in denying his request for a continuance to allow him to obtain a certified copy of the sentencing sheet for Glass’ burglary conviction.

3. In his last two enumerations, defendant argues the trial court erred in instructing the jury that each element of the crime must be “proven beyond a reasonable doubt and to a moral and reasonable certainty” and that “[m]oral and reasonable certainty is all that can be expected in a legal investigation.” Specifically, defendant argues that these charges effectively reduced the State’s burden of proof and denied him his due process rights. While the Georgia Supreme Court in Vance v. State, 262 Ga. 236 (2), 238 (416 SE2d 516) (1992), criticized a virtually identical charge to that given here, it held that “use of the words ‘moral and reasonable certainty’ created no reversible error when ‘considered in the context of the charge as a whole.’ ” Furthermore, “[n]o Georgia court has determined that the charge given herein is constitutionally deficient so as to warrant reversal. [Cits.]” Davis v. State, 213 Ga. App. 113, 114 (1) (443 SE2d 638) (1994). We thus find this enumeration to be without merit.

Decided September 29, 1994

Reconsideration denied December 12, 1994.

Megan C. De Vorsey, Ronald J. Scholar, for appellant.

Lewis R. Slaton, District Attorney, Jamie L. Mack, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Defendant next argues that the United States Supreme Court’s decisions in Cage v. Louisiana, 498 U. S. 39 (111 SC 328, 112 LE2d 339) (1990), and Sullivan v. Louisiana, 508 U. S. - (113 SC 2078, 124 LE2d 182) (1993), require that we find the trial court’s charge constituted reversible error. We previously addressed this argument in Davis and found it to be without merit. Specifically, we noted that the charge in Cage was distinguishable from the one given here and thus found the holding in Sullivan that the Cage charge cannot be harmless error to be inapplicable. Davis, 213 Ga. App. at 114; see also Ruff v. State, 212 Ga. App. 245, 246 (2) (441 SE2d 534) (1994).

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A1226.
    PALMER v. TAYLOR.
    (451 SE2d 486)
   Ruffin, Judge.

This appeal arises out of a $20,000 jury verdict that appellee, Effie Taylor, received in an action for personal injuries against appellant Edward Palmer. Taylor alleged that Palmer caused her to have a heart attack by inflicting emotional distress when she attempted to deliver her grandchildren to her former daughter-in-law, Wendy Palmer, after a weekend visit and that he physically assaulted her during the incident.

1. Palmer enumerates as error the trial court’s denial of his right to cross-examine Taylor’s son as to the whereabouts of Wendy Palmer, a key eyewitness to the incident, and why Taylor had not subpoenaed Mrs. Palmer to trial. We disagree. After a long colloquy on the subject in the presence of the jury, the trial court held that who was present and who was absent from the trial was irrelevant to the case as was the issue of whether an individual knew the whereabouts of a witness who had not been subpoenaed. “ ‘Regulation of the scope of cross-examination is within the sound discretion of the trial court and this discretion will not be controlled unless it is manifestly abused. (Cit.)’ [Cit.]” Yuscavage v. Jones, 213 Ga. App. 800, 802 (3) (446 SE2d 209) (1994). The trial court found that the subject matter of the cross-examination was irrelevant to the issues being tried, and thus its exclusion was not error. See Russell v. Wickes Lumber, 190 Ga. App. 16 (2) (378 SE2d 148) (1989) (trial court did not err in excluding evidence that did not bear directly upon the issues being tried).

2. Appellant also enumerates that the trial court erred in restricting his cross-examination of Taylor and her son as to whether they had attempted to intimidate an eyewitness to the incident, Wendy Palmer, in order to prevent her from testifying at trial. Appellant Palmer’s attorney stated outside the presence of the jury, that Effie Taylor kept Wendy Palmer’s children and that Wendy Palmer had called Edward Palmer to say that she did not wish to jeopardize her ability to see her children by coming to testify and aggravating Mrs. Taylor. The trial court considered the basis of the intimidation claim but determined that Wendy Palmer “simply did not want to come and testify,” and restricted further inquiry.

Under OCGA § 24-9-62, the right of a witness to be protected from improper questions must be balanced against the right under OCGA § 24-9-64 to a thorough and sifting cross-examination. “This is within the trial judge’s discretion and it will not be curtailed unless clearly abused. [Cit.]” Carco Supply Co. v. Dick Clem, Master Plumber, 194 Ga. App. 566, 567 (5) (391 SE2d 134) (1990). We can discern nothing in the colloquy that suggests an attempt to intimidate Wendy Palmer (see Simmons v. State, 155 Ga. App. 716, 717 (1) (272 SE2d 506) (1980)), and no abuse of discretion occurred here.

3. At trial, Palmer attempted to advance the theory that Taylor had fabricated the allegations against him in retaliation for his having instigated criminal charges against her son. He contends in two enumerations of error, that the trial court erred in instructing the jury that the accusation filed before a magistrate in another county had nothing to do with the case before them and in prohibiting him from cross-examining Taylor and her son as to whether the motive for bringing the instant suit was to retaliate for the prior criminal charges against her son. We disagree. The record establishes that the trial court gave Palmer sufficient latitude in this area. Palmer was allowed to ask Taylor what her motives were with regard to the case being tried, but was instructed by the court that he could not bring up the charges brought against her son in a separate court proceeding. “The right to cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. [Cit.]” Prince v. Kujawa, 178 Ga. App. 828, 830 (2) (344 SE2d 680) (1986).

4. The enumeration concerning cross-examination of Mrs. Taylor’s husband as to what caused her heart attack has not been argued on appeal, and is thus deemed abandoned. Court of Appeals Rule 15 (c) (2).

5. Palmer contends the trial judge erred in prohibiting his cross-examination of Taylor’s husband to elicit prior inconsistent statements made to the husband by their son that contradicted the son’s trial testimony. Review of the trial transcript reveals no error. The trial court sustained Taylor’s hearsay objection to Palmer’s question as to what the son told the husband. Since the testimony objected to was hearsay and came under no exception to the hearsay rule, it was properly excluded from evidence. See Ballard v. Clayton County Hosp. Auth., 211 Ga. App. 300, 301 (1) (439 SE2d 672) (1993).

6. Relying on OCGA § 24-3-10, Palmer also contends that because Wendy Palmer was unavailable as a witness, the trial court should have permitted him to introduce her testimony into evidence from a former trial to contradict the testimony of Taylor and her son. “ ‘Before former testimony can be admitted the party offering it must show that the witness is inaccessible; and the question of inaccessibility is one for the determination of the trial court in the exercise of a sound discretion and the trial court’s ruling will not be disturbed unless a manifest abuse of discretion has been shown.’ [Cit.] The primary consideration on appeal is not whether this court agrees with the trial court’s finding, but whether that finding constitutes an abuse of discretion. [Cit.]” Kesler v. Veal, 165 Ga. App. 475, 477-478 (4) (300 SE2d 217) (1983). We hold as we did in Kesler, that “[although the evidence would have authorized the contrary conclusion, we cannot state that the trial court abused its discretion. . . .” Id. at 478.

7. Palmer enumerates as error the trial court’s denial of his motion for directed verdict. We disagree. “On appeal of a jury verdict and judgment, the party alleging error has the burden to show error affirmatively by the record, and when the burden is not met, the judgment is assumed to be correct and must be affirmed. [Cit.] A directed verdict is authorized only where there is no conflict in the evidence, and the evidence and all reasonable deductions therefrom demand a certain verdict (OCGA § 9-11-50 (a)). . . .” (Emphasis in original.) Dick ‘n Dale Systems v. Danwil Intl. Trading Co., 199 Ga. App. 840, 841 (406 SE2d 270) (1991). As the appellant has not met his burden of showing error affirmatively by the record and the evidence presented in this case was almost entirely conflicting, a directed verdict was not authorized.

8. Taylor has filed a motion for imposition of ten percent damages for a frivolous appeal pursuant to OCGA § 5-6-6. We cannot say the appeal is so patently without merit that it can be concluded it was filed only for purposes of delay, and we therefore deny the motion.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 22, 1994

Reconsideration denied December 12, 1994

James N. Finkelstein, for appellant.

Borough & Sizemore, Kermit S. Borough, Jr., for appellee.


text:
    A94A1254.
    FULLER ENTERPRISES, INC. v. HARDIN CONSTRUCTION GROUP, INC.
    (451 SE2d 483)
   Ruffin, Judge.

Fuller Enterprises,. Inc. (“Fuller”) appeals from the trial court’s order denying its motion for a protective order in an arbitration confirmation proceeding against Hardin Construction Group, Inc. (“Hardin”).

Fuller and Hardin entered into a construction contract with an arbitration clause, and during the course of performance, a dispute arose concerning the contract. The parties submitted the dispute to arbitration pursuant to the contract, and the arbitration panel returned an award in favor of Fuller. Fuller filed an application for confirmation of the award in superior court. Hardin filed an answer with affirmative defenses and contemporaneously served Fuller with discovery requests. Fuller filed a motion for a protective order arguing the information sought was irrelevant to the confirmation and appeals the trial court’s denial of the motion.

1. Fuller asserts discovery under the Civil Practice Act (“CPA”) is not permitted in arbitration confirmation proceedings under the Georgia Arbitration Code, OCGA § 9-9-1 et seq., because the confirmation is initiated by an “application” as opposed to a “complaint.” We agree.

In Vlass v. Security Pacific Nat. Bank, 263 Ga. 296 (430 SE2d 732) (1993), our Supreme Court addressed the applicability of the CPA in proceedings initiated by filing an application as opposed to a complaint. In Vlass, the issue was whether, in a foreclosure confirmation proceeding, the debtor was entitled to service of the application for confirmation in accordance with the CPA. The debtor argued that since a confirmation proceeding was a special statutory proceeding that did not expressly provide for service of the application on the debtor, OCGA § 9-11-81 required service in accordance with the CPA. OCGA § 9-11-81 provides the CPA “shall apply to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict [t] herewith are expressly prescribed by law....”

The court reasoned since OCGA § 9-11-1 provides the CPA “ ‘governs the procedure in all courts of record of this state in all actions of a civil nature. . . .’ [Under OCGA § 9-11-3] ‘[a] civil action is commenced by filing a complaint with the court.’ . . . [T]he debtor would be entitled to service of the creditor’s application for confirmation in accordance with the CPA if, but only if, that application constitutes a ‘complaint’ which initiates a ‘civil action’ in the superior court.” Vlass, supra at 296-297. The court went on to state “[i]t is clear, however, that an application for confirmation is not a ‘complaint’ which initiates a ‘civil action’ in the superior court. Even though an application to confirm a foreclosure sale is a special statutory proceeding, it is not a ‘civil suit’ in the ordinary meaning of that term.” (Citations, punctuation and indention omitted.) Id.

Although the court in Vlass reviewed the application of the CPA to foreclosure confirmations, we find its analysis applicable here as well. OCGA § 9-9-4 (a) (2) provides that an application for confirmation of an arbitration award shall be made “by motion and shall be heard in the manner provided by law and rule of court for the making or hearing of motions, provided that the motion shall be filed [and served] in the same manner as a complaint in a civil action.” (Emphasis supplied.) While an application for arbitration confirmation is filed and served in the same manner as a complaint, we do not believe that alone is sufficient to treat it as a complaint. OCGA § 9-9-4 clearly provides the application shall be treated as a motion.

Furthermore, while an arbitration award confirmation may be a special statutory proceeding, like a foreclosure confirmation, it is not a “civil suit” in the ordinary meaning of that term. Bearing in mind the merits of the dispute have been resolved in the underlying arbitration proceedings, by requiring the application to be heard in the manner provided by law and rule of court for the making or hearing of motions, we believe the legislature intended for it to be a summary proceeding.

One such rule of court is Uniform Superior Court Rule 6.3 which provides “[u]nless otherwise ordered by the court, all motions in civil actions . . . shall be decided by the court without oral hearing. . . .” If an oral hearing is not ordered, OCGA § 15-6-21 requires the trial judge to promptly decide the motion. If the court does order an oral hearing, OCGA § 9-11-78 requires that “[u]nless local conditions make it impracticable, each court shall establish regular times and places, at intervals sufficiently frequent for the prompt dispatch of business, at which motions requiring notice and hearing may be heard and disposed of. ...” (Emphasis supplied.) Allowing discovery prior to the trial court’s consideration of the motion would serve only to delay the prompt disposal of the confirmation.

All these factors indicate the legislature did not intend for an arbitration award confirmation to be treated as a civil action under the CPA. Accordingly, since the application is not a complaint initiating a civil action, under Vlass, we find Hardin is not entitled to conduct discovery under the CPA.

Decided November 22, 1994

Reconsideration denied December 12, 1994

Sonja L. Salo, for appellant.

Smith & Fleming, Robert 0. Fleming, Jr., for appellee.

2. Having determined in Division 1 that discovery is not permitted in an arbitration award confirmation proceeding, it is not necessary to decide Fuller’s other enumeration of error concerning the scope of discovery.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1334.
    POWELL et al. v. DOUGHERTY CHRISTIAN ACADEMY, INC.
    (451 SE2d 465)
   Ruffin, Judge.

Appellant Susan Powell and others (“teachers”) are former school teachers who were employed by Dougherty Christian Academy, Inc. d/b/a Riverview Academy (“Riverview”) which operated a private school in Dougherty County. The teachers were employed during the 1992-1993 school year, during which Riverview was unable to meet its payroll due to financial difficulties. As a result, in July and August 1993, the last two months of the academic year, the teachers collected unemployment benefits from the State of Georgia, Riverview subsequently sold its assets, raising sufficient funds to pay all of its debts, including back pay to the teachers. Riverview paid the teachers all sums due and owing except an amount equal to the unemployment compensation drawn by the teachers. Since Riverview is a non-profit corporation which elected to make payments to the labor commissioner in lieu of contributions pursuant to OCGA § 34-8-158, it is obligated to reimburse the state dollar for dollar for all unemployment benefits paid to its employees. Accordingly, Riverview took the position that it was entitled to reduce the amount due to the teachers by the amount it must repay the state and placed funds representing the difference in escrow. The teachers petitioned the court for declaratory judgment alleging that Riverview was not entitled to deduct unemployment benefits from the net pay it otherwise owed the teachers.

The case was tried on stipulated facts recited above. Riverview maintained that the teachers are only entitled to receive an amount equivalent to their employment contracts; therefore, payment of both unemployment benefits and the entire amount remaining unpaid under their contracts would constitute an improper windfall in an amount equal to the unemployment benefits received. The trial court agreed, and this appeal followed.

The teachers contend that Riverview is legally obligated to repay unemployment benefits paid to its covered employees and it is improper for Riverview to charge back the unemployment benefits against them. Further, to the extent that payment of unemployment benefits and sums due and owing under an employment contract creates a windfall, the teachers argue such is permitted by the law applicable to these parties. However, newly enacted OCGA § 34-8-254 (d) provides that “[a]ny person who has received any sum as benefits under this chapter and is subsequently awarded or receives back wages from any efnployer for all or any portion of the same period of time for which such person has received such benefits shall be liable to repay a sum equal to the benefits paid during the period for which such back wages were awarded. . . .” If the employer is a non-profit corporation which has elected to make payments in lieu of contributions and its employee receives back wages for any period of time for which the employee received unemployment benefits, the employer is “entitled to a setoff against the award of back wages in an amount equal to all benefits paid to the employee during the period for which such back wages are awarded or received.” OCGA § 34-8-254 (d) (2).

While we are mindful that these provisions became effective after the trial court’s ruling, “a reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right [in this State] under the prior law.” City of Valdosta v. Singleton, 197 Ga. 194, 208 (3) (28 SE2d 759) (1944); Houston v. Houston, 156 Ga. App. 47 (274 SE2d 91) (1980). Unemployed workers have no vested rights in overpayments of unemployment benefits.

Prior to the enactment of OCGA § 34-8-254 (d), there were no provisions pertaining to overpayments resulting from subsequent repayment of back wages after awards of unemployment benefits. The Employment Security Law (OCGA § 34-8-1 et seq.) was enacted to “lighten [unemployment’s] burden which so often falls with crushing force upon the unemployed worker . . . [through] the systematic accumulation of funds during periods of employment to provide benefits for periods of unemployment. . . .” OCGA § 34-8-2. It contemplates an employer providing for the payment of limited benefits based on the employee’s former wages, subject to specific conditions, for a limited duration. The law does not contemplate that the payment of such benefits will result in an individual receiving more than he earned when he was gainfully employed.

Decided October 21, 1994

Reconsideration denied December 12, 1994.

Black & Black, Eugene C. Black, Jr., for appellants.

Hodges, Erwin & Hedrick, William A. Erwin, for appellee.

Even prior to OCGA § 34-8-254 (d), OCGA § 34-8-193 (f) (1) provided for a reduction in unemployment compensation payable to the extent that an individual receives compensation from other sources for his or her previous work. Mindful that unemployment benefits comprise only a fraction of former wages, the legislature expressed its intention that an individual not receive other compensation based on his previous work and unemployment benefits based on the same work. Thus, it follows that payment of both unemployment benefits and other compensation for previous work in excess of an individual’s established benefit amount, calculated in accordance with applicable statutes, results in an overpayment of unemployment benefits to which a claimant is not entitled. Likewise, where an individual stands to receive the full measure of his back pay for the months in which he received unemployment benefits, his employment benefits should likewise be reduced. Since those benefits have already been paid in the instant case, Riverview is entitled to reduce its payment of back wages to the extent unemployment benefits were paid.

Based on the foregoing, we find no error in the judgment of the trial court.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A1532.
    KESLER v. THE STATE. MATTHEWS v. THE STATE. CUZZORT v. THE STATE.
    A94A1819.
    A94A1868.
    (451 SE2d 496)
   Ruffin, Judge.

Timothy Kesler, Herbert Matthews and Thurman Cuzzort were indicted for burglary and tried jointly in a jury trial. Kesler and Cuzzort were convicted of burglary. Matthews was convicted of the lesser included offense of criminal trespass. They appeal from the entry of the judgments of conviction on the verdicts and sentences. Their cases have been consolidated on appeal.

Viewing the evidence in a light to support the verdict, the record shows that the victim was notified at work that his house trailer had been burglarized. When he returned home, he discovered pry marks around both the front and rear doors, and the front door was damaged. Inside the home, a microwave oven was on the floor beside the front door. Wallpaper was ripped in the kitchen where the microwave plug had been jerked from the wall. Cigarette butts and ashes from an ashtray which was on top of the microwave were scattered over the floor, and the cabinet doors and stereo unit doors were standing open.

Two witnesses who passed the trailer earlier that afternoon in a Ford Bronco testified they saw a shirtless man wearing blue jeans and a baseball cap jump from the back door of the trailer and run into the woods. They observed a second man standing inside the front doorway with what appeared to be a microwave oven. This man had short light brown hair and was wearing a shirt and jeans. He set the microwave down and fled to the woods. There was also a third man with shoulder length hair in the driver’s seat of a white Cavalier, parked in the driveway, who sped from the scene when he saw the Bronco. The witnesses were able to obtain the vehicle’s tag number.

Shortly thereafter, based on descriptions given to the police, an officer patrolling the area spotted and arrested two men who matched the descriptions. These men were later identified as Kesler, the shirtless man who jumped from the rear of the trailer, and Cuzzort, the man seen in the front doorway with the microwave. Approximately ten minutes after the burglary, Matthews telephoned the police and indicated that he needed to speak with someone about a probable burglary. He was advised to go to the sheriff’s department where he turned himself in later that afternoon. Matthews was identified as the' man in the white Cavalier at the scene.

All three men gave statements to the police while in custody which were read at trial in redacted form. In addition, Matthews testified at trial that he, Kesler, and Cuzzort had been riding around in his Cavalier and drinking beer on the afternoon of the burglary; that they stopped to use the rest room near the trailer; that Cuzzort walked up to the door of the trailer; that Kesler walked toward Cuzzort and urged him to come back; that Cuzzort kicked in the door of the trailer; and that when he saw the Ford Bronco, he panicked and left. Neither Kesler nor Cuzzort testified at trial.

1. Kesler, Matthews and Cuzzort each enumerate as error the admission of custodial statements made by co-defendants who did not testify at trial and the trial court’s failure to give limiting instructions. They contend the redacted statements, in which the phrase “another person” was substituted for their names, did not sufficiently prevent incrimination.

‘Bruton (v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968)) holds that the right of confrontation is violated when several co-defendants are all tried jointly, one defendant’s confession is used to implicate another defendant in the crime, and the confessor does not take the stand. The result is that the co-defendant cannot be cross examined by the non-confessing defendant. . . . (Cit.)’ [Cit.]” McDonald v. State, 210 Ga. App. 689, 690 (2) (436 SE2d 811) (1993).

In his custodial statement, Kesler stated that he and two other persons pulled into the driveway; that he got out first and was walking down the road toward the woods to get to a friend’s house; that he never went into the trailer; that another person got out of the Cavalier and went into the trailer; and that yet another person was driving. Cuzzort stated that he was riding around with two others in a white Cavalier on the afternoon of the burglary. He admitted breaking down the door of the trailer but could not remember what happened inside the trailer. When he saw the white car pull off, he ran.

We agree with appellants that the mere substitution of the phrase “another person” for their names did not satisfy Bruton because it was apparent to whom the statements were referring. However, our analysis does not end here. “[W]e will not reverse unless error is shown to be harmful.” Id. at 691. “[I]f overwhelming evidence against a defendant exists apart from the statement of the co-defendant, then any violation of Bruton can be said to be harmless beyond a reasonable doubt.” Morton v. State, 181 Ga. App. 781, 782 (1) (353 SE2d 852) (1987). Moreover, “there is no Bruton violation when the testimony presented in the co-defendant’s confession is supported by the complaining defendant’s own [statement].” Id.

First, we note that Cuzzort’s confession did not incriminate Kesler or Matthews. To the extent the statement placed them at the scene of the crime, it was supported by their own statements. Likewise, Kesler’s references to Cuzzort and Matthews were also supported by their own statements. Furthermore, the testimony of the eyewitnesses and Matthews at trial constituted overwhelming evidence of appellants’ guilt. Therefore, we find that any error occasioned by the admission of the statements was harmless error under the facts of this case. McDonald, supra; Walker v. State, 213 Ga. App. 407 (7) (444 SE2d 824) (1994).

Case No. A94A1532

2. Kesler enumerates as error the court’s charge on reasonable doubt which included the phrase “moral and reasonable certainty.” “ ‘Although the better (practice) would (be to) not include that phrase, (the Supreme Court) held in Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992) that a similar instruction created no reversible error when considered in the context of the charge as a whole.’ . . . [Cits.]” Sharpe v. State, 213 Ga. App. 280, 283 (3) (444 SE2d 600) (1994).

Kesler also contends the trial court erred in defining reasonable doubt as “a doubt founded upon reason and common sense, and for which a specific reason can be given.” (Emphasis supplied.) Kesler argues that the Suggested Pattern Jury Instructions does not include the word “specific”; that a juror is not required to articulate a “specific” reason in order to find reasonable doubt; and that such language suggests an improperly high degree of doubt for an acquittal. We disagree.

The charge given by the trial court is consistent with the suggested jury pattern charge in defining reasonable doubt as a doubt for which a reason can be given as opposed to a “vague or arbitrary notion.” Suggested Pattern Jury Instructions (July 1992). Since the charge given by the court in the instant case did not contain the “vague or arbitrary notion” language, the inclusion of the word “specific” aided the jury in understanding and applying the burden of proof. Viewing the charge in its entirety, we find no reversible error.

Case No. A94A1819

3. Matthews also contends the evidence was insufficient to support his conviction of criminal trespass because there was no proof of the dollar value of any damage done to the premises, nor was there evidence that the property was interfered with without the owner’s consent pursuant to OCGA § 16-7-21 (a). This enumeration is without merit because, as Matthews himself points out, the jury was also charged that criminal trespass could be committed as set forth in subsection (b) (1), which requires only that entry be made upon the land of another without authority and for an unlawful purpose. There was sufficient evidence to enable a rational trier of fact to find Matthews guilty of criminal trespass under the latter provision beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore, the trial court did not err in denying Matthews’ motion for new trial on this ground.

Case No. A94A1868

4. Cuzzort contends he was denied effective assistance of counsel due to his trial counsel’s failure to pursue a motion for severance based on Bruton and his failure to secure a ruling from the trial court that his confession was inadmissible.

No evidence was produced at the hearing on Cuzzort’s amended motion for new trial, there was no express request for an evidentiary hearing, and trial counsel was not heard on the issue of his representation; nonetheless, errors enumerated by Cuzzort may be resolved without such testimony by reference to evidence in the record. Dawson v. State, 258 Ga. 380, 381 (2) (369 SE2d 897) (1988); Davis v. State, 203 Ga. App. 227 (4) (416 SE2d 771) (1992).

“A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. [Cit.] [Cuzzort] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. [Cit.] ‘To establish ineffective assistance of counsel, (a defendant) must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. [Cit.]’ [Cit.] The test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. [Cit.]” Peterson v. State, 212 Ga. App. 147, 151 (4) (441 SE2d 481) (1994).

Since we have already determined in Division 1, relative to Cuzzort, that any error in the admission of Kesler’s statement was harmless, we will move to the second contention raised by Cuzzort, that trial counsel failed to have the trial court rule his confession inadmissible, specifically because the details of the confession were elicited by the investigating officer after Cuzzort asserted his right to remain silent and terminate the interrogation.

Contrary to Cuzzort’s contention that trial counsel did nothing to have the confession excluded, the record shows that counsel requested a Jackson-Denno hearing prior to the trial after which the court determined, upon hearing the testimony of the investigating officer, that Cuzzort’s statement was freely and voluntarily given after he had been advised of his Miranda rights. Pretermitting a determination of whether Cuzzort invoked his right to remain silent, even if Cuzzort did equivocally or unequivocally invoke his right to remain silent, any error in admitting his confession was harmless, as the two eyewitnesses described Cuzzort’s role in the burglary in detail. Tankersley v. State, 261 Ga. 318 (2) (b) (404 SE2d 564) (1991). The verdict was also supported by Matthews’ testimony.

Cuzzort has not shown that there is a reasonable probability that the verdict would have been different without the admission of Kesler’s statement and his confession; thus, he has not demonstrated that his defense was prejudiced under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984). Gross v. State, 262 Ga. 232 (1) (416 SE2d 284) (1992). Accordingly, the trial court did not err in denying his motion for new trial.

Judgments affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided November 29, 1994

Reconsideration denied December 12, 1994

Cook & Palmour, Bobby Lee Cook, L. Branch Connelly, for appellants.

Ralph L. Van Pelt, Jr., District Attorney, Melodie S. Bedford, Assistant District Attorney, for appellee.