author: Eldridge, Judge.

text:
    A98A1610.
    JACKSON v. THE STATE.
    (504 SE2d 505)
   Eldridge, Judge.

Seventeen-year-old Ezekiel Jackson was stopped for speeding on South Cobb Drive at 11:30 p.m. on September 9, 1995. There were two other young people in the car with Jackson. The patrol officer smelled a strong odor of alcohol emanating from the vehicle and asked Jackson to exit the car. The officer then detected a strong odor of alcohol emanating from Jackson. Field sobriety tests were performed, including an alco-sensor test. Based on the results thereof, Jackson was arrested and transported to the Smyrna Police Department where implied consent warnings were given, consent to a breath test was received, and a breathalyzer test was administered. Jackson registered .12 on the Intoximeter 5000.

Jackson was charged with DUI — less safe driver; DUI — .10 or above; speeding; and under-age possession of alcohol. As a part of the State’s case, a Cobb County jury heard testimony from the arresting officer, who also conducted the Intoximeter 5000 test, and viewed a videotape of the traffic stop, which included Jackson’s performance of the field sobriety tests. The jury found Jackson guilty as charged. He appeals the conviction, and we affirm.

1. In his first enumeration of error, Jackson contends that the results of the post-arrest breath test performed on the Intoximeter 5000 should have been suppressed because he was not given warnings pursuant to Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), prior to the test’s administration.

“Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court. It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Citations and punctuation omitted.) Hale v. State, 220 Ga. App. 667, 670 (469 SE2d 871) (1996). In the court below, Jackson raised the issue of Miranda only as it relates to the admissibility of the field sobriety test results, because said tests allegedly occurred during the “functional equivalent of arrest.” Miranda was not raised in relation to the admissibility of the Intoximeter 5000 breath test. Accordingly, we will not consider this enumeration of error.

2. Next, citing Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997) (“Brown”), Jackson alleges that the State failed to lay a proper foundation under the “business records hearsay exception,” OCGA § 24-3-14, so as to permit the introduction of the certificate of inspection for the Intoximeter 5000 on which his breath test was performed; thus, Jackson contends that the trial court erred in admitting the results of the test. The State, however, argues that a certificate of inspection for a breath test machine is “self authenticating” pursuant to OCGA § 40-6-392 (f) and thus, is properly admitted absent such business records foundation. Accordingly, we are, for the first time, squarely confronted with the self-authentication provision of OCGA § 40-6-392 (f) in relation to the Supreme Court of Georgia’s holding in Brown. In considering the issues raised, we find merit in the State’s position.

(a) OCGA § 40-6-392 (fi provides that “[e]ach time an approved breath-testing instrument is inspected, the inspector shall prepare a certificate which shall be signed under oath by the inspector and which shall include the following language:

“ ‘This breath-testing instrument (serial no._) was thoroughly inspected, tested, and standardized by the under-signed on (date_) and all of its electronic and operating components prescribed by its manufacturer are properly attached and are in good working order.’

“When properly prepared and executed as prescribed in this subsection, the certificate shall, notwithstanding any other provision of law, be self authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of [OCGA § 40-6-392 (a) (1) and OCGA § 40-5-67.1 (g) (2) (F)].” (Emphasis supplied.)

Clearly, then, the statute on its face contains a “self authentication” provision which provides the procedure for the admission of the certificates. Moreover, and contrary to Jackson’s position, the Supreme Court of Georgia’s decision in Brown does not impact on such procedure. That decision addressed whether certain documents are admissible into evidence at all, and not the method by which otherwise admissible documents are tendered for admission. In law, the admissibility of evidence and the procedures for admission are two different issues.

In Brown, the Supreme Court of Georgia examined the admissibility of a certificate of inspection of a breath test machine in relation to the Confrontation Clause of the Constitution. The Supreme Court found that the constitutional infirmities addressed by the Court in its decision in Miller v. State, 266 Ga. 850 (472 SE2d 74) (1996) (“Miller”), were not present with regard to the admissibility of such certificate of inspection. This finding was due primarily to two distinguishing factors.

First, the Court recognized in Brown that “in reality the witness against the defendant, the source of the crucial and incriminating evidence, is not the analyst, but the machine itself. The certificate in issue here [unlike in Miller] addresses only the performance of the breath-testing device in calibration tests conducted to ensure its accuracy when it is subsequently used to analyze a person’s alcohol concentration level and in no manner represents or substitutes for the analysis itself.” (Citations and punctuation omitted.) Id. at 79. In that regard, “[o]rdinarily, a witness is considered to be a witness ‘against’ a defendant for purposes of the Confrontation Clause only if his testimony is part of the body of evidence that the jury may consider in assessing his guilt!’ (Emphasis supplied.) Cruz v. New York, 481 U. S. 186, 190 (107 SC 1714, 95 LE2d 162) (1987). A purely foundational witness is unable to testify as to any element of the charged offense and thus is not considered a witness “against” a criminal defendant for purposes of traditional Confrontation Clause analysis.

Second, the Court determined in Brown that a certificate of inspection of a breath test machine does not violate the Confrontation Clause because such certificate falls within the “firmly rooted” business records exception to the hearsay rule. The Court noted that “[o]ut-of-court statements which fall within a firmly-rooted hearsay exception are deemed to satisfy the constitutional requirement of reliability usually provided by a witness’s oath-taking and subjection to cross-examination because of the judicial and legislative experience assessing the trustworthiness of that type of out-of-court statement.” (Citation and punctuation omitted.) Id. at 77; see also Livingston v. State, 268 Ga. 205, 210 (486 SE2d 845) (1997).

Consequently, as it relates to the Confrontation Clause, the Court in Brown found that a certificate of inspection is simply a record made in the regular course of business, which includes the keeping of records of departmental compliance with OCGA § 40-6-392. Id. at 78. Further, such certificate of inspection does not contain the “opinion” of a third party, but instead, constitutes factual statements that the breath test device complies with the requirements of the statute and can thus continue to be used. Id. at 79. The Court held that “breath testing device certificates are routinely promulgated and maintained. They uncontrovertedly are not made in response to litigation against any one particular individual, unlike the certificate in Miller setting forth lab results conducted on specific substances seized from, particular individuals and for use only in litigation against those individuals. We therefore conclude that, in the usual circumstance, breath-testing device certificates are records made within the regular course of business within the meaning of OCGA § 24-3-14 and may, upon the proper foundation being laid, be introduced into evidence under the business record exception to the hearsay rule.” (Emphasis supplied.) Id. at 80-81.

So, per Brown, a certificate of inspection of a breath test instrument does not impact on the Confrontation Clause of the Constitution because the declarant is not a witness “against” a criminal defendant within traditional constitutional analysis, and because the certificate of inspection falls within a well-recognized exception to the hearsay rule.

However, in finding that a certificate of inspection is admissible, the Court’s decision in Brown did not address the procedures for admission. It was not an issue in that case. Thus, while recognizing that a “proper foundation” must be established, the Court in Brown did not hold that the foundational provisions of OCGA § 24-3-14 for the admission of business records is the only method by which a “proper foundation” for the admission of a certificate of inspection can be supplied. Specifically, the Court in Brown did not address the self-authenticating provision of OCGA § 40-6-392 (f) with regard to the establishment of a “proper foundation.” We do so now.

(b) In the law of evidence, authentication is “the act or mode of giving authority or legal authenticity to a statute, record, or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence.” Black’s Law Dictionary, 5th ed., p. 121. In addition, “self-authentication” may be provided for by statute and refers to “certain classes of writings [which] shall be received in evidence ‘without further proof.’ ” Id. In fact, our legislature has provided for many instances of “self authentication” wherein the document at issue is capable of admissibility by certification alone and “without further proof.”

Most importantly, the “rule against hearsay” does not bar self-authentication procedures contained in a statute. “[T]he method of introduction of the document would not change the law regarding the admissibility of its contents[.]” Dennis v. Adcock, 138 Ga. App. 425, 429 (226 SE2d 292) (1976). As addressed above, the rule against hearsay bars the admissibility of the contents of a document in the first place. Once, as here, a document fits within a recognized hearsay exception, the legislature’s method of authenticating the document, which is otherwise admissible, does not impact on the hearsay rule. Moody v. State, 244 Ga. 247, 249 (4) (260 SE2d 11) (1979); Dennis v. Adcock, supra; see also McGaha v. State, 221 Ga. App. 440, 441 (471 SE2d 533) (1996) (statutes merely pertaining to evidentiary authentication of documents do not affect hearsay considerations).

Self-authenticating language in a statute cannot be ignored, and this Court must construe such provision in order to give meaning to the legislative intent. “It is, of course, fundamental that the cardinal rule to guide the construction of laws is, first, to ascertain the legislative intent and purpose in enacting the law, and then to give it that construction which will effectuate the legislative intent and purpose. Although the legislative intent prevails over the literal import of words, where a constitutional provision or statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms.” (Citations and punctuation omitted.) Leota Properties v. Banc One Lexington, 212 Ga. App. 508, 509 (441 SE2d 920) (1994).

In that regard, OCGA § 40-6-392 (f), by legislative fiat, specifically provides a foundation for the admission of a certificate of inspection. The general assembly determined that, “notwithstanding any other provision of law” (which, by definition, would include the business record foundation requirements of OCGA § 24-3-14), a certificate of inspection is self authenticating when it is “prepared and executed, as prescribed in this subsection.” Id. Under the statute, the “foundation” for the admission of such certificate is: (1) the certificate is signed under oath by the inspector; and (2) the certificate contains the requisite language of OCGA § 40-6-392 (f). Once completed as specified under the statute, the certificate “is admissible in any court of law,” without further proof.

Therefore, OCGA § 40-6-392 (f), itself, contains the “proper foundation” for admission of a certificate of inspection. After this proper foundation has been satisfied, the document may be admitted. A further foundation under the “business records exception,” OCGA § 24-3-14 (b), is rendered unnecessary by legislative enactment. It does not follow that simply because a certificate of inspection falls within the business records exception to the hearsay rule so as to make it admissible under the auspices of that exception, the legislature cannot statutorily provide a different foundational requirement for its admission than that generally found under the exception.

Decided July 9, 1998

Reconsideration denied July 27, 1998

James H. Carter, Jr., for appellant.

Barry E. Morgan, Solicitor, Alice B. Kamerschen, Assistant Solicitor, for appellee.

In this case, a certificate of inspection for the Intoximeter 5000 upon which Jackson’s breath test was conducted was tendered by the State. It was identified by the arresting officer, and the certificate met the foundational requirements of OCGA § 40-6-392 (f). The trial court admitted the document without further proof. We find that the trial court did not err in such admission.

3. We have examined Jackson’s two remaining enumerations of error and find them meritless. Our decision in Divisions 1 and 2 above renders Jackson’s contentions regarding a directed verdict moot. Further, pursuant to discovery, the State was not required to “disclose” to Jackson a witness that Jackson himself had subpoenaed as a witness for the defense. OCGA § 17-16-10.

Judgment affirmed.

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

       Compare our decisions in Mullinax v. State, 231 Ga. App. 534 (499 SE2d 903) (1998); Hamilton v. State, 228 Ga. App. 285 (491 SE2d 485) (1997); and Daniel v. State, 227 Ga. App. 92 (488 SE2d 129) (1997), wherein the issue was the sufficiency of testimony which attempted to establish a business records foundation.

       In Miller, the Supreme Court of Georgia struck down a provision of the Code that attempted to “short cut” certain criminal drug prosecutions by authorizing the admission into evidence of a sworn certificate by the employee of the GBI crime laboratory who analyzed the drug at issue in the trial; such was determined to be a violation of a criminal defendant’s constitutional right to confront the witness against him. Id. at 851.

       See, e.g., OCGA §§ 34-8-194 (admissibility of lab test results in unemployment benefits dispute); 7-1-95 (admissibility of documents of Department of Banking and Finance); 40-5-2 (admissibility of records of application for licenses); 42-5-36 (admissibility of inmate information from Department of Corrections); 48-5-306 (admissibility of notice as to changes in taxpayer’s return); 53-3-43 (admissibility of foreign will); 24-3-17 (admissibility of copies of any record of the Department of Public Safety or comparable agency); 24-7-8 (admissibility of medical records); 24-7-20 (admissibility of certified public records); 24-7-27 (admissibility of records of Department of Corrections); 24-7-25 (admissibility of nonjudicial records); 24-7-26 (admissibility of foreign judgments); and 24-7-21 (admissibility of judicial records).

       The legislative intent is made manifest within the caption of the 1995 amendment to Title 40 of the Official Code of Georgia, which created OCGA § 40-6-392 (f). A primary purpose for the amendment was in order “to provide for the admissibility of [ ] breath samples” taken for the purpose of determining whether a person is driving under the influence of alcohol or drugs. Ga. L. 1995, p. 1160.

       Several decisions of this Court have recognized the self-authentication provision of OCGA § 40-6-392 (f). See, e.g., Caldwell v. State, 230 Ga. App. 46 (495 SE2d 308) (1997) (certificates are self-authenticating and satisfy the State’s requirement of proof); Chastain v. State, 231 Ga. App. 225 (498 SE2d 792) (1998) (statute provides that a properly prepared certificate of inspection shall be self-authenticating and admissible in court); Kollman v. State, 231 Ga. App. 630 (498 SE2d 745) (1998) (referencing certificate of inspection as self-authenticating); see also Evans v. State, 230 Ga. App. 728 (497 SE2d 248) (1998) and Sisson v. State, 232 Ga. App. 61 (499 SE2d 422) (1998) (mere identification of the certificate by nondeclarant testing officer sufficient to authorize admission under the statute).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1084.
    MARSHALL v. THE STATE.
    (504 SE2d 764)
   Ruffin, Judge.

A jury found Valerie L. Marshall guilty of theft by taking. Marshall appeals, asserting that the evidence was insufficient to convict her, that a pre-trial photographic lineup and showup were impermissibly suggestive, and that the trial court erred in denying her motion to dismiss the charge against her. For the following reasons, we affirm.

1. “ ‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in a light most favorable to support the verdict, the evidence reveals that on Sunday, July 16, 1995, Katherine Stevens, while working at South Atlanta Leisure, sold patio furniture to a “black female.” The customer paid for the furniture,valued at over $1,000, with a check that bounced. According to Stevens, the customer said she needed the furniture quickly and did not care that the store did not have a full set of matching cushions for the furniture. Stevens said that she “chatted a good bit” with the customer, including discussing the customer’s weight problem, diets, and the difficulty of losing weight. When the check was returned to the store, Stevens contacted Marshall, whose name was listed on the check. According to Stevens, Marshall said that her purse or wallet had been stolen and that checks had been written against her account. Stevens gave a description of the customer to the Fayette County Police Department. The police officer who investigated the matter obtained a photograph of Marshall and placed it in a photographic lineup. Stevens identified Marshall as the customer who purchased the furniture with the bad check. Stevens testified regarding this identification at trial.

The police officer testified that several days after the lineup, he went to Marshall’s house and, from a road adjacent to the house, took photographs of patio furniture located in Marshall’s backyard. The officer stated that Stevens had given him a piece of cloth matching the pattern of the cloth on the cushions purchased with the bad check. This piece of cloth matched the cloth on the furniture cushions in Marshall’s backyard. Stevens subsequently identified the furniture from the photographs as the furniture she sold on July 16, 1995.

The officer returned to Marshall’s house with a warrant in order to confiscate the furniture, which was now in Marshall’s shed. Stevens accompanied him to Marshall’s home. The officer spoke with Marshall’s husband, who first stated that the furniture came from Biloxi, Mississippi, but then said it was from Birmingham, Alabama. The husband changed his story a third time, saying the furniture was purchased at a yard sale in Montgomery, Alabama. The officer identified Marshall at trial as the” person he arrested for theft by taking the patio furniture.

After the State rested, the trial court refused to direct a verdict on the basis that Stevens did not identify Marshall at trial. The failure or inability of a witness “to make a positive identification at trial affects the weight of the evidence and the credibility of the witness, which are jury questions.” Harper v. State, 213 Ga. App. 444, 445-446 (1) (445 SE2d 303) (1994).

We find there is competent evidence to support each fact necessary to make out the State’s case and for a rational trier of fact to find Marshall guilty beyond a reasonable doubt of the crime charged. Howard, supra; Jackson v. Virginia, supra.

2. Marshall asserts that the pre-trial lineup and showup were impermissibly suggestive and should not have been admitted at trial.

(a) The test for admitting evidence of a photographic lineup “ ‘is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.’ [Cit.]” Green v. State, 219 Ga. App. 878, 881 (4) (467 SE2d 203) (1996). “If, under the totality of the circumstances, there was no substantial likelihood of irreparable misidentification, the witness’ pre-trial identification would be admissible notwithstanding any suggestiveness in the procedure itself. [Cits.] The factors to be considered in evaluating the substantial likelihood of irreparable misidentification include: the opportunity of the witness to view the perpetrator at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the perpetrator; the level of certainty demonstrated by the witness at the time of identification; and, the length of time between the crime and the identification. [Cit.]” Nicholson v. State, 265 Ga. 711, 712-713 (2) (462 SE2d 144) (1995).

In this case, Marshall argues that the photographic lineup was impermissibly suggestive because her photograph was not a jail identification photograph but her driver’s license photograph. Marshall pointed out that the other five photographs in the array contained height measurement lines while the height measurement lines in her photograph were drawn on. Furthermore, Marshall maintains that the other photographs depicted dark-skinned African-American females with medium and long hair, while she is a light-skinned African-American with short hair.

After review of the array, we find that the hair lengths of all the women depicted are similar, and Marshall’s skin color does not appear to be markedly different from the other women. As for the measurement lines, the difference between Marshall’s photograph and the other women is only apparent after very close scrutiny of the lines. And, we do not see how the slight difference in the lines would have in any way suggested to Stevens that Marshall’s photograph was the one to choose. Accordingly, we do not find that the array was impermissibly suggestive. See Cheeves v. State, 157 Ga. App. 566 (1) (278 SE2d 148) (1981) (facts that the backgrounds in some of the photographs in a photographic array were different, some of the photographs were slightly smaller than the others, the ages of the suspects were different, and several of the men depicted were wearing hats did not make array impermissibly suggestive); Brewer v. State, 219 Ga. App. 16, 20 (6) (463 SE2d 906) (1995) (defendant’s contention that shading and tone of his photograph in array made lineup impermissibly suggestive was without merit).

Even if the lineup was found to be suggestive, there is no evidence of irreparable misidentification. See Nicholson, supra. The lineup occurred on August 25, 1995, less than six weeks after the purchase of the furniture on July 16,1995. And, it was clear that Stevens had a good opportunity to view the customer, as she “chatted a good bit” -with the customer about their weights and dieting. See id.

Marshall argues that Stevens’ pre-trial identification was not reliable because Stevens’ prior description of the customer as a “dark-skinned” African-American female weighing 175 pounds was inconsistent with Marshall’s claim that she is a “light-skinned, thin-set female.” First, we note that Marshall’s weight was not an issue in making the pre-trial identification via the photographic lineup as the photographs only showed the faces of the women. Furthermore, it is possible that Marshall may have lost weight in the two years from the time of the crime and the trial. Regarding Marshall’s skin color, Stevens explained at trial that she used the phrase “dark-skinned” as an alternative description to “black female” and did not intend to use the phrase in conjunction with “black female.” That is, she did not mean to describe Marshall as an African-American with dark skin.

Even if Stevens’ description of Marshall was not entirely accurate as to weight and skin color, we find these discrepancies insufficient to conclude that a substantial likelihood of irreparable misidentification exists. See Nicholson, supra. Rather, such discrepancies go to the credibility the jury afforded to Stevens’ testimony. See Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281) (1974) (“ Identity is a question for the trior of fact, and where a witness identifies a defendant . . . the credibility of the witness making such identification is not to be decided by this court. [Cits.]’ [Cit.]”).

Decided July 27, 1998.

Edward R. Downs, Jr., for appellant.

William T. McBroom III, District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

(b) Marshall asserts that Stevens’ identification of her at her house when Stevens accompanied the police officer to retrieve the furniture constituted an impermissibly-suggestive showup. However, there is no evidence that Stevens identified Marshall as the perpetrator at that time or that the State attempted to introduce the evidence for identification purposes. Accordingly, we find this assertion without merit.

3. Marshall claims that the trial court erred in denying her motion to dismiss the charge against her since she did not have proper notice of it. However, the transcript reveals that Marshall did not specifically move to dismiss the charge on the grounds she raises on appeal. Prior to trial, Marshall’s counsel stated that “there is a difference, Your Honor, between the accusation and what has been set forth in this Court as being what shall be proven. The accusation sets forth that greater than $500 in currency is the item that was taken, when in fact this case is about patio furniture that was supposedly taken after a check was written for it. We submit that there is no way to rectify . . . those two factual points, and . . . that this case should be dismissed with prejudice.” In requesting a dismissal, Marshall’s attorney was asserting that there was a fatal variance between the evidence to be presented and the crime charged. See Bell v. State, 220 Ga. App. 293 (1) (469 SE2d 714) (1996).

The State clarified the situation, noting that an amended accusation had been filed listing the property rather than the currency. After this clarification, Marshall’s counsel did not renew his motion or assert a new motion to dismiss based on the fact he had not seen the amended accusation. Rather, he merely stated “[w]ell, of course, then we’ve not seen the new accusation, which I think we at least need to see. Thank you, Your Honor.” Immediately prior to the State calling its first witness, defense counsel again pointed out that he had never seen the accusation, but did not specifically move to dismiss on this ground. “As this is a court for the correction of errors, we will not consider any issues raised, on appeal that were not raised and preserved in the trial court. [Cit.]” Cheesman v. State, 230 Ga. App. 525, 526 (2) (497 SE2d 40) (1998).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

       The investigating officer testified that Marshall was light-skinned and appeared at trial to weigh only 135 to 140 pounds.


author: Beasley, Judge.

text:
    A98A1128.
    ECHOLS v. THE STATE.
    (505 SE2d 55)
   Beasley, Judge.

Emmanuel Echols pled guilty to theft by receiving stolen property (OCGA § 16-8-7) and was sentenced to five years to serve six months. The judge allowed Echols an alternative to serving the six months by “commuting” the six months to time served upon completion of the diversion center program, with the balance of the sentence (four and one-half years) probated. Conditions of probation included that he not violate other criminal laws and that he report to the probation supervisor as directed.

While at the diversion center, Echols was allowed to leave for work, but he did not return one evening as directed. He was found and arrested a month later. Following a hearing, the court revoked his probation and ordered service of four of the original years, balance suspended.

Echols asserts that the court had power to revoke only the six-month portion of his sentence because only this portion of the sentence was conditioned on him completing the diversion program. He further contends that, even if completion of the diversion portion were considered a condition of his probation, under OCGA § 42-8-34.1 (b) the court at most could have revoked only two years.

Echols is correct that failure to complete the diversion program forfeited only the opportunity to avoid the six-month incarceration ordered in the original sentence. Had this been the only issue, then the court could only require that he serve the remainder of the six months. But Echols did more than just choose to abandon the diversion program; he committed a felony.

Under OCGA § 16-10-52 (a) (5), not reporting back to a diversion center constitutes the felony offense of escape. “[A] person commits the offense of escape when he . . . [intentionally fails to return as instructed ... to any residential facility operated by the Georgia Department of Corrections after having been released on the condition that he . . . will so return. . . ” The very first condition of probation was: “Do not violate the criminal laws of any governmental unit.”

OCGA § 42-8-34.1 (c) provides that if defendant commits a felony offense, “notwithstanding any other provision of law, the court may revoke no more than the lesser of the balance of probation or the maximum time of the sentence authorized to be imposed” for the felony. Because the crime of escape carries a possible sentence of ten years, the court was authorized to revoke four years of Echols’ probation for failure to abide by the terms of diversion and the general conditions of probation.

Decided July 27, 1998.

Elizabeth L. Markowitz, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Chandler v. State, a 3-1-3 decision holding that a probationer who failed to return to a diversion center as instructed could only have his probation revoked and could not be guilty of the felony offense of escape, predates the 1989 amendment to OCGA § 16-10-52 stating otherwise.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       See OCGA § 42-8-35 (3), (11).

       See Cockrell v. Brown, 263 Ga. 345 (433 SE2d 585) (1993) (violation of probation other than by commission of felony limits revocation to two years).

        Ashton v. State, 217 Ga. App. 337, 338 (457 SE2d 226) (1995).

       OCGA § 16-10-52 (a) (5). The statute was amended on April 22, 1997 to add subsections and to make minor revisions not relevant to this case. Ga. L. 1997, pp. 1064, 1070-1071, § 10. At the time of the offense this language was found in OCGA § 16-10-52 (a) (3).

       See Manville v. Hampton, 266 Ga. 857, 858-859 (2) (471 SE2d 872) (1996) (commission of felony is violation of probation); Gearinger v. Lee, 266 Ga. 167, 169 (2) (465 SE2d 440) (1996) (same); Layson v. Montgomery, 251 Ga. 359, 360-361 (1) (306 SE2d 245) (1983) (felony of escape is a violation of probation even if probated part of sentence has yet to be served).

       OCGA § 16-10-52 (b).

       257 Ga. 775 (364 SE2d 273) (1988).

       See Ga. L. 1989, pp. 329, 330, § 1; OCGA § 16-10-52 (a) (5), (a.l); Ashton, supra, 217 Ga. App. at 338.


author: McMurray, Presiding Judge. Eldridge, Judge,

text:
    A98A0346.
    MURPHY v. THE STATE.
    (504 SE2d 484)
   McMurray, Presiding Judge.

Defendant Travis Santel Murphy was charged in an indictment with murder (Count 1); felony murder (Counts 2 and 3); aggravated assault (Count 4); armed robbery (Count 5); and theft by taking (motor vehicle) (Count 6). The jury found him guilty of two counts of voluntary manslaughter as lesser offenses included within the indicted charges of murder and felony murder and also found him guilty of one count of aggravated assault, arising from the same incident in which the victim, Willie Harrison III, was shot and killed by a shotgun blast at close range. The charges were merged, and defendant was sentenced to 20 years on Count 1. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. In his first enumeration, defendant contends the trial court erred in failing to give his requested charge regarding a criminal defendant’s election not to testify. Defendant did not testify at trial. He submitted a written request (defendant’s No. 15) to charge the substance of the pattern jury instruction, explaining his right to remain silent and prohibiting the jury from drawing any adverse inference from his exercise of this right. See Council of Superior Court Judges, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, Part 3 (N) (1991). From our review of the transcript of the charge conference, it appears the trial court indicated it would include defendant’s Request Nos. “11, 12, 13 and 14, 15 and 16 [in its instructions to the jury because they] are pattern.” But the charge as given failed to include the promised language of defendant’s Request No. 15. In the face of direct inquiry by the court, defendant reserved his exceptions to the charge.

(a) The State maintains this enumeration lacks merit because defendant’s requests to charge were not timely submitted. We disagree.

Defendant’s requests were stamped by the clerk of the trial court as having been filed at 4:37 p.m. on December 5, 1995, which the State characterizes as being at the conclusion of the second day of trial. Defendant responds that the requests were presented to the trial court on the morning of December 5, 1995, prior to counsel’s opening statements and subsequently file stamped by the clerk of the trial court.

It is not necessary to determine the precise filing time of this particular request to charge, insofar as there is no contention it was not filed until after the jury returned its verdicts. Uniform Superior Court Rule 10.3 generally requires that all requests to charge be submitted to the trial court at the commencement of trial. But that rule contains the express proviso “that additional requests may be submitted to cover unanticipated points which arise thereafter.” The decision whether to testify is a tactical one made by the accused himself after consultation with counsel. Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83). There is no requirement that defendant make this decision until after he has heard the State’s case. Consequently, a written request to charge premised on defendant’s tactical decision not to testify cannot be untimely if submitted seasonably after that decision is reached during trial and before the case is submitted to the jury. Moreover, this is not a case where the trial court ruled the requests were untimely submitted and declined to consider them. Compare Walker v. State, 213 Ga. App. 407, 413 (8) (444 SE2d 824); Dortch v. State, 204 Ga. App. 822, 823 (4) (420 SE2d 778); Webb v. State, 184 Ga. App. 89, 90 (2) (360 SE2d 643). Instead, the trial court in the case sub judice considered the merits of defendant’s requested instructions and incorporated many of defendant’s requests into the charge. Applying the presumption of regularity attached to the actions of the trial court, we hold that defendant’s written requests to charge were in fact timely submitted.

(b) “If a defendant in a criminal case wishes to testify and announces in open court his intention to do so, he may so testify in his own behalf. . . . The failure of a defendant to testify shall create no presumption against him, and no comment shall be made because of such failure.” OCGA § 24-9-20 (b). See also Bennett v. State, 86 Ga. 401 (12 SE 806). “[A] state trial judge has the constitutional obligation, upon proper request, to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify.” Carter v. Kentucky, 450 U. S. 288, 305 (III) (101 SC 1112, 67 LE2d 241). “It necessarily follows, as a matter of logical reasoning, that when a proper charge on this subject is timely requested by the defendant, it is error for the trial judge to fail to give it.” Clay v. State, 236 Ga. 398, 399 (224 SE2d 14). Accord Culbertson v. State, 193 Ga. App. 9, 11 (6) (386 SE2d 894). Compare Woodard v. State, 234 Ga. 901, 903 (7), 905 (7) (b), 906 (218 SE2d 629) (no error in failing to so charge, in absence of a timely written request).

(c) All charging errors are presumed to be prejudicial and harmful, and this Court will so hold, unless it appears from the entire record that the error was harmless. Foskey v. Foskey, 257 Ga. 736 (2), 737 (363 SE2d 547); Austin v. State, 218 Ga. App. 90, 91 (2) (460 SE2d 310). While the trial court did charge on presumption of innocence and burden of proof, those “other trial instructions and arguments of counsel . . . were no substitute for the explicit instruction that [defendant’s] lawyer requested. . . . Without question, the Fifth Amendment privilege and the presumption of innocence are closely aligned. But these principles serve different functions. . . .” Carter v. Kentucky, 450 U. S. at 304 (II) (C), supra. Nevertheless, in our view of the case sub judice, the erroneous omission constitutes harmless error. Due to the overwhelming evidence of defendant’s guilt, it is highly probable that defendant’s failure to testify did not contribute to the verdict. The failure to give defendant’s timely requested and proper instruction, under the particular circumstances of this case, was not error requiring a new trial. Cauley v. State, 130 Ga. App. 278, 286 (2) (a), 288 (203 SE2d 239). Compare Clay v. State, 236 Ga. 398, 399, supra.

2. The trial court did not err in denying the motion of defendant, who was 13 years of age at the time of the shooting, to transfer the case to the juvenile court. This motion was based on an equal protection challenge to OCGA § 15-11-5 (b), an issue which was determined adversely to defendant’s contentions by the Supreme Court of Georgia in the recent decision of Bishop v. State, 265 Ga. 821, 823 (3) (462 SE2d 716). Moreover, defendant was charged with murder, for which the superior court had exclusive jurisdiction pursuant to OCGA § 15-11-5 (b) (2) (A) (i), and consequently, “those statutory rights accorded juveniles in juvenile court procedures no longer appl[ied].” Appling v. State, 221 Ga. App. 162 (1), 163 (470 SE2d 761). Nor, in our view, did the superior court err in refusing to transfer the case to juvenile court for sentencing after defendant was convicted of an offense in which the courts would share jurisdiction. Reynolds v. State, 266 Ga. 235, 236 (1) (466 SE2d 218). The fourth and fifth enumerations are without merit.

3. After the close of the evidence, the trial court recessed for the charge conference. During this recess, two jurors sent out notes indicating they were already deliberating the case, even before closing arguments and the charge of the court. The trial court informed them that “[mjost of the questions presented in [the] notes will be answered by the charge,” and promptly instructed the jury “not [to] begin any deliberations until you hear the closing arguments and the charge of the Court as to the law.” Defendant’s second and third enumerations claim a mistrial was demanded because of the premature deliberations, complicated by the presence of the alternate jurors during those deliberations. But no such motion was made to the trial court, nor any contemporaneous objection interposed. Consequently, the errors alleged in these enumerations were not. preserved for appellate review. Peterson v. State, 212 Ga. App. 31, 32 (2) (441 SE2d 267).

4. The trial court admitted into evidence á transcript of defendant’s recorded call to the emergency 911 service, wherein defendant identified himself as “the shooter,” admitting he shot his cousin Willie Harrison because the victim “kept provoking . . . and provoking . . . and provoking [defendant].” According to this transcribed call, the victim “spit on [defendant] the other night. He pushed [and] punched defendant, [and] had knives at [defendant] the other night.” Then, defendant noticed the police approaching and was persuaded to surrender himself into police custody without further incident. Defendant moved to suppress this recording contending it amounted to custodial interrogation without proper cautioning of his rights. The denial of this motion is enumerated as error.

The only incriminating statement defendant made in this call was the statement “I’m the shooter.” This was volunteered by defendant in response to the 911 operator’s query, “Okay, who is this?” The trial court correctly admitted this evidence over defendant’s objection that no warnings as prescribed by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) preceded his volunteered statement. Leatherwood v. State, 212 Ga. App. 342, 343 (2) (441 SE2d 813). See also Jenkins v. State, 219 Ga. App. 339, 340 (1) (465 SE2d 296).

5. Investigator Jeffrey Richards of the Carroll County Sheriff’s Office testified at trial that, after the charges were upgraded to murder, he explained to defendant he would be tried as an adult “and advised him of his Miranda rights, [after which defendant] said that he and the victim had been arguing for a few weeks and that he [defendant] had gotten the shells to the gun sometime last week and put them in his bedroom. [Defendant] stated the victim was a bully and had been hitting on him and had spit in his face the other day. [Defendant] stated that when the argument happened [the day of the shooting] the victim had been slapping him in the face and that when [defendant] went and got the gun that the victim told [defendant] to go ahead and shoot. . . but that [defendant] thought about it and put the gun down and the argument continued. During one of the next times that [defendant] picked up the gun the victim took it away from him and held it for a while and then handed it back to [defendant] and said shoot me. During the last time that [defendant] had the gun the victim pushed [defendant] onto the couch and this caused . . . [defendant] to jerk and the gun went off.”

Defendant moved to suppress this statement. At the voluntariness hearing, only Investigator Jeff Richards of the Carroll County Sheriff’s Office testified, and his evidence authorized the following facts: Investigator Richards investigated “the scene of the shooting incident [and] knew there was a dead person. . . .” His first contact with defendant was at the station, where defendant was already in custody. The following chronology is undisputed: Defendant was in the custody of the Carrollton Police Department “around 3:00 p.m. or about ten minutes after.” At approximately 4:30 p.m., custody of defendant was transferred from the Carrollton Police Department to the Carroll County Sheriff’s Department. He was permitted to telephone his mother between “4:30 and 4:45 p.m.” At 5:30 p.m., Investigator Richards contacted the juvenile court intake officer. At 6:15 p.m., Investigator Richards explained defendant’s rights to him but then decided against taking a statement. But defendant persisted.

In the presence of Investigator Richards and Sergeant Howard Lee, defendant “told his mother that he had in fact shot [the victim], that [the victim] had been spitting on him. That [the victim] had taken [defendant’s] [Nintendo game because the victim had accused the Defendant of taking some of his money.”

Subsequently, “when the charge had been upgraded to murder [defendant] had heard a conversation between the assistant district attorney and [Investigator Richards] and said, you know, that’s not the way it happened. I [defendant] want to tell my side. [Investigator Richards] prepared a Miranda form, read [defendant] his Miranda rights and was about to have him execute it [when Investigator Richards] decided at that point [and] said, I’m not going to have you [defendant] sign it [the waiver of rights form], I don’t want to take your statement^] you’re better off not making a statement. . . . [But defendant] continued on and eventually gave a statement. Not a question/answer type thing, he just went through a statement, a brief synopsis of what had happened.” Despite deciding not to have defendant sign a waiver of his rights, Investigator Richards “asked a couple of questions clarifying what he had said . . . but not what [Investigator Richards considered] an outright interrogation or [else he] would have most likely tape recorded it.” Defendant never “wanted to not make a statement, [nor] wanted to stop making a statement.”

Applying the nine factors enumerated in Riley v. State, 237 Ga. 124, 128 (226 SE2d 922), the trial court determined that the age of the accused was thirteen at the time of the incident; he was in the seventh grade; and he had knowledge of the nature of the charges against him at the time he made his initial statement to his mother on the telephone and also when he made his subsequent statement to Investigator Richards. Defendant was permitted to talk to his mother in Ohio and was not interrogated at that time. The length of the subsequent interrogation was very brief. From this the trial court concluded that defendant’s initial statements to his mother were spontaneous and not in response to any custodial interrogation and that his subsequent statement to Investigator Richards was voluntary.

On appeal, defendant objects to these evidentiary rulings, contending that his statements were not spontaneous or voluntary, and further objecting because defendant was detained and interrogated without any showing of compliance with OCGA § 15-11-19 (a) (1) through (4).

(a) The trial court’s determination that defendant’s statements on the telephone to his mother were spontaneous and not in response to custodial interrogation is supported by the evidence, is not clearly erroneous, and consequently is affirmed. Leatherwood v. State, 212 Ga. App. 342, 343 (2), supra.

(b) “A child charged with a delinquent act need not be a witness against or otherwise incriminate himself. An extrajudicial statement obtained in violation of this article [Article 1, Juvenile Proceedings, OCGA §§ 15-11-1 through 15-11-66] or one which would be constitutionally inadmissible in a criminal proceeding shall not be used against such child.” OCGA § 15-11-31 (b). “OCGA § 15-11-19 (a) requires a person taking a child into custody ‘with all reasonable speed and without first taking the child elsewhere’ to (1) release the child without bond to his custodian; (2) take the child to a medical facility when applicable; (3) bring the child immediately before the juvenile court or promptly contact a juvenile court intake officer; or (4) bring a child suspected of a delinquent act before the superior court.” Lattimore v. State, 265 Ga. 102, 103 (2) (b), 104, n. 2 (454 SE2d 474). Inasmuch as Investigator Richards substantially complied with OCGA § 15-11-19 (a) (3) by promptly contacting the juvenile court intake officer (when the most serious charge was aggravated assault), the contention that defendant’s spontaneous statements were obtained during the violation of applicable juvenile code procedures is without merit. Compare Bussey v. State, 144 Ga. App. 875 (1) (243 SE2d 99).

(c) As we have held in Division 2, supra, once the victim died and the charge was upgraded from aggravated assault to murder, the superior court was vested with exclusive jurisdiction under the express provisions of OCGA § 15-11-5 (b) (2) (A) (i). The juvenile code provisions no longer applied. Appling v. State, 221 Ga. App. 162 (1), 163, supra. Consequently, the trial court correctly determined the voluntariness of defendant’s subsequent custodial statement to Investigator Richards under the criteria of Riley v. State, 237 Ga. 124, supra, and without regard to any alleged violation of OCGA § 15-11-19 (a). On the merits, “[t]he evidence in its entirety supports the determination that [defendant] knowingly and intelligently waived his constitutional rights. Thus, there was no error in the court ruling in favor of admissibility. Yorker v. State, 266 Ga. 615, 617 (4) (469 SE2d 158) (1996).” Berry v. State, 267 Ga. 605, 610 (8), 611 (481 SE2d 203).

6. Defendant’s eighth enumeration, regarding alleged improprieties in the jury instructions on involuntary manslaughter, is without merit. Conviction of the greater offense of voluntary manslaughter renders harmless any error, although we find none, in the charge as given for the lesser offense. Rodriguez v. State, 211 Ga. App. 256 (1), 257 (439 SE2d 510); Smith v. State, 8 Ga. App. 680, 682 (2) (70 SE 42). As to the tenth enumeration, the trial court’s charge on justification, when read as a whole, was a correct statement of the law. Any verbal slip could not reasonably have misled the jury. Daniel v. State, 224 Ga. App. 673, 675 (4) (482 SE2d 409). Nor did such verbal slip amount to an improper comment on the evidence. Dukes v. State, 224 Ga. App. 305, 310 (6), 311 (480 SE2d 340).

7. Defendant next contends the trial court erred in excluding evidence of the victim’s prior acts of violence at school based on the administrative disposition of those incidents rather than considering the underlying facts. We disagree.

Randy Stapler was the assistant principal of Temple High School, in charge of discipline. He described Level I-type incidents as “[disruption in the classroom or lunchroom,” whereas Level II-type incidents involved “fighting and threatening.” The trial court admitted evidence of incidents “that reached Level II [but excluded] Level I because . . . they were not acts of violence.”

Evidence of specific acts of violence by a victim against a third party shall be admissible where the defendant claims justification. Chandler v. State, 261 Ga. 402, 407 (3) (b) (405 SE2d 669). “[T]he burden rests on the defendant to show that the prior crimes [or incidents] involved violence and were therefore relevant to a claim of justification.” Bennett v. State, 265 Ga. 38, 40 (3), 41 (453 SE2d 458). “[A] prior bad act need not result in a criminal conviction in order to be used as a similar transaction. [Cits.] It is the similarity of the facts of the defendant’s prior conduct to the facts of the case being tried that is the critical element of this type of evidence, not the adjudication of any charges which might have been brought as a result of the earlier conduct. [Cit.]” Davis v. State, 269 Ga. 276, 277 (2), 278 (496 SE2d 699). It is clear that the trial court in the case sub judice considered the underlying facts in its ruling, rather than the administrative disposition. “Because the [excluded incidents] do not entail any specific act of violence, they [were] not admissible under either Chandler [v. State, 261 Ga. 402, 407 (3), supra,] or Wells [v. State, 261 Ga. 282, 283 (4) (404 SE2d 106)]” Bennett v. State, 265 Ga. 38, 40 (3), 41, supra. This enumeration is without merit.

8. Defendant challenges the sufficiency of the evidence to support his conviction for voluntary manslaughter, contending the State did not meet its burden to rebut his claim of justification.

Ten-year-old Adrian Tremonte Harrison testified that defendant and the victim were arguing, “just yelling at each other,” and not pushing or engaging in fisticuffs. Adrian Harrison saw defendant “open the closet and go in.” The victim was neither “beating on [defendant, nor] [w]as he pushing him.” They were no longer yelling at each other at that time. But the yelling resumed, and when Adrian Harrison looked out of his room a second time, defendant had a gun in his hands. The barrel was pointed to the ground. Then defendant “pointed it at Breeze [the victim].” The victim was not hitting or pushing defendant and did not try to get the gun away from him. “They were just sitting there for a minute[, and then defendant] pulled the trigger.” The victim did not have hold of the gun and was not swinging at defendant.

According to the forensic pathologist, Thomas Young, M.D., “[b]ecause of the fact that there is a mostly circular defect [to the abdomen] the shotgun was fired at close range.” In Dr. Young’s medical opinion, the pattern of the wound indicated “that the shotgun blast was directed from the front part of the body to the back part of the body[, with no] evidence that the shot was fired up into the abdomen [or] chest cavity.”

(a) On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Hawkins v. State, 230 Ga. App. 627, 629 (3), 630 (497 SE2d 386). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

(b) “A person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person. . . .” OCGA § 16-5-2 (a).

“ “Wherever a homicide is neither justifiable nor malicious it is manslaughter.’ Mixon v. State, 7 Ga. App. 805 (4), 807 (67 S. E. 699). The jury, whose peculiar province it is to pass upon the facts, have said by their verdict[s] that this homicide was neither justifiable nor malicious. Then, was it intentional?” Conley v. State, 21 Ga. App. 134, 135 (5) (94 SE 261). Whether an act is committed with the requisite criminal intent is a question for the jury “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” OCGA § 16-2-6. In the case sub judice, the testimony of the eyewitness, Adrian Harrison, the forensic evidence, as well as defendant’s reliance on justification in the face of alleged provocation, are sufficient under the standard of Jackson v. Virginia, 443 U. S. 307, supra, to authorize the inference that the shooting to which defendant admitted was intentional and without justification. The general grounds are without merit.

Judgment affirmed.

Eldridge, J., concurs and concurs specially. Blackburn, J., concurs in the judgment only.

Eldridge, Judge,

concurring specially.

I concur fully with the majority’s opinion. I write separately because the “harmless error” analysis in Division 1 of the majority opinion is incomplete. Such analysis turns on the omission to charge in relation to “the trial record as a whole.” Bridges v. State, 268 Ga. 700, 703 (492 SE2d 877) (1997). Further, the “highly probable” standard used to evaluate the error in Division 1 is the wrong standard for the evaluation of error that has constitutional dimension. Here, the verdict was demanded as a matter of law, thus, there is no reasonable possibility that the error could have contributed to such verdict.

In most failures/refusals to charge a particular evidentiary principle (whether by ruling — or by inadvertence as in the instant case), the remaining jury charges do not “substitute for the explicit instructions that [defendant’s] lawyer requested” and which the court omits/ declines to give. However, the inquiry does not end there.

A harmless error inquiry “ ‘compels a judge to go beyond a first glance for affirmance or a fleeting glimpse for reversal. It compels him to exercise his mind in the exercise of his discretion, to go beyond the appearances of the result to an examination of what causal links there may be between error and the judgment.’ ” Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976).

In that regard, “erroneous jury instructions are not judged in isolation, but rather are considered in the context of the entire jury charge and the trial record as a whole. . . . [A]n erroneous jury charge is not reversible unless it causes harm.” (Emphasis supplied.) Bridges v. State, supra at 703.

Moreover, while the failure to charge the principle in the omitted charge at issue has constitutional dimensions, the decision in Chapman v. California, 386 U. S. 18 (87 SC 824, 17 LE2d 705) (1967) rejected the contention that all such errors must always be considered harmful. “The court stated that there may be some constitutional errors which are so insignificant within the context of the factual situation of the particular case as to render the error harmless, not requiring the automatic reversal of a conviction.” (Emphasis supplied.) LaRue v. State, 137 Ga. App. 762, 764 (224 SE2d 837) (1976); Little v. State, 230 Ga. App. 803 (498 SE2d 284) (1998). “ ‘The question is whether there is a reasonable possibility that the [error] complained of might have contributed to the conviction.’ ” (Citation and punctuation omitted.) LaRue v. State, supra at 764; see also Johnson v. State, supra at 60; Baker v. State, 202 Ga. App. 892 (416 SE2d 295) (1992).

Thus, in light of the trial court’s error in omitting Murphy’s request to charge, the question in this case is whether there is a reasonable possibility that the jury gave “ ‘evidentiary weight to [Murphy’s] failure to testify’ ” so that such contributed to the verdict in the instant case. (Emphasis supplied.) Teague v. State, 160 Ga. App. 774, 776 (2) (287 SE2d 111) (1982), citing Carter v. Kentucky, 450 U. S. 288 (101 SC 1112, 67 LE2d 241) (1981). After a review of the evidence in this case in relation to the error, the answer is no.

Travis Murphy was indicted for murder after he shot and killed his cousin, Willie Harrison, with a J. C. Higgins 12-gauge pump action shotgun. The jury convicted Murphy of voluntary manslaughter. Murphy’s defense was justification and accident, and the trial court charged on both.

In support of his defense, Murphy called six defense witnesses, four of whom testified regarding two acts of aggression on the part of the victim. One of these witnesses testified that the victim picked up a knife during an argument with his stepmother. These witnesses did not testify as to the incident that led to the victim’s death, nor did they testify regarding acts of aggression by the victim toward Murphy. However, the defense also called a DFCS caseworker] who was permitted to testify extensively as to what Murphy told her about the shooting immediately after it happened: “He [Travis Murphy] told me that he was in the house playing a video game and his cousin came in and started screaming and yelling at him that he stole his eight dollars. Travis told him he did not steal the eight dollars. His cousin kept yelling and screaming, told Travis he was going to take the video game that Travis was playing and Travis told him, no, he wasn’t. At that point the cousin jerked Travis up and started pitching him around. There was some little kids in the room. Travis told the kids to leave the room. The cousin kept pushing Travis. At that point somehow Travis got a gun. He told the cousin to stop. The cousin kept coming towards him. He told him to stop or he would shoot and at that point the cousin told him, said, you better shoot to kill — you better shoot me and kill me because if you don’t I’m going to kill you or shoot you, something to that effect.” The DFCS worker testified that appellant Travis Murphy told her he was “scared” of the victim, because the victim was going to “get the gun away from him [Murphy] and shoot him.” The witness testified that Murphy “didn’t want to do it [shoot], but he [the victim] kept coming towards him.” (Emphasis supplied.)

During the State’s case-in-chief, Murphy’s statement to the police also was introduced: “[H]e said that he and the victim had been arguing for a few weeks and that he had gotten the shells to the gun sometime last week and put them in his bedroom. He stated the victim was a bully and had been hitting on him and had spit in his face the other day. He stated that when the argument happened today that the victim had been slapping him in the face and that when he, Mr. Murphy, went and got the gun that the victim told Mr. Murphy to go ahead and shoot him but that he, Mr. Murphy, thought about it and put the gun down and the argument continued. During one of the next times that Mr. Murphy picked up the gun the victim took it away from him and held it for awhile and then handed it back to the offender, Mr. Murphy and said shoot me. During the last time that Mr. Murphy had the gun the victim pushed him onto the couch and this caused the gun — caused Mr. Murphy to jerk and the gun went off.” (Emphasis supplied.)

The State also introduced Murphy’s statements to his mother made while he was on the telephone at the police station: “[H]e told his mother the he had in fact shot Travis [sic], that Travis [sic] had been spitting on him. That he had taken his [Nintendo game because the victim had accused the Defendant of taking some of his money.”

In addition, an eyewitness, a ten-year-old relative of both Murphy and the victim, testified regarding the shooting. The boy testified that Murphy and the victim were arguing. There was no pushing, shoving, or fist fight — “[t]hey were just yelling at each other,” Murphy left the living room and entered a bedroom closet to get the shotgun. When he returned to the living room with the shotgun, Murphy pointed it at the victim’s “middle” and shot him. There was no physical contact between the two. In that regard, the pathologist testified that the victim’s wound went from the middle of the abdomen to the back, as State’s Exhibit 4 also shows; the doctor testified that there was no evidence of upward movement of the weapon’s blast into the abdomen or chest cavity so as to support the idea that the weapon was fired from a sitting position on the couch into the victim who was standing above.

1. Here, Murphy did not “fail to testify” so as to make the omission of the challenged jury instruction reversible error. Indeed, Murphy was permitted to put his own testimony before the jury during the defense case-in-chief through the testimony of the DFCS caseworker], Further, he did not have to be cross-examined with regard thereto. The jury heard Murphy’s “side of the story” through Murphy’s own statement, introduced by Murphy. In such a scenario, there is no “ ‘danger that the jury [gave] evidentiary weight to [Murphy’s] failure to testify.’ ” (Emphasis supplied.) Teague v. State, supra at 776 (2).

2 .As a matter of law, the evidence demanded a verdict of guilty of homicide: (a) The evidence as presented by the State and the defense failed to establish the elements of a justification defense, and (b) the State’s evidence overwhelmingly established the elements of homicide.

OCGA § 16-3-21 (a) states: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” “Two elements must be present before the use of deadly force is justified under [OCGA § 16-3-21]: (1) the danger to either the actor or a third person must be imminent; and (2) the actor must reasonably believe that such force is necessary to prevent death or great bodily injury to himself or a third person.” (Emphasis supplied.) Coley v. State, 201 Ga. App. 722 (1) (411 SE2d 804) (1991).

Further, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” OCGA § 16-2-2.

(a) As a matter of law, the evidence presented by the State and the defense failed to establish the elements of self-defense or accident as a justification for the homicide.

(i) Under the evidence from both the State and the defense, Murphy’s ability to withdraw from the argument with his cousin, leave the living room in order to obtain the shotgun, and return to the living room in order to pick up the argument and ultimately shoot the victim precludes as a matter of law the notion that the shooting was “necessary,” an essential element of self-defense. Veasley v. State, 142 Ga. App. 863, 866 (237 SE2d 464) (1977); see also Love v. State, 194 Ga. App. 601 (391 SE2d 447) (1990).

(ii) Murphy’s statement to the DFCS worker, introduced by the defense, attempted to establish self-defense as a justification for the homicide of the victim. However, the statement as a matter of law failed to establish the elements thereof, i.e., that Murphy “reasonably believed” that he was in “imminent danger of death or receiving great bodily injury” so as to justify the homicide of the victim.

Murphy told the DFCS worker that the initial physical altercation between the two men consisted of yelling and “the cousin kept pushing Travis” because “[the cousin] told Travis he was going to take the video game that Travis was playing and Travis told him, no, he wasn’t.” Notably, at that point, Murphy never stated that he felt he was in imminent danger of death or receiving serious bodily harm from the victim’s actions, the essential elements of self-defense. Instead, at that point, Murphy was angry because the victim was pushing him around in an attempt to take his video game; justification goes to defense of self or others, not video games. “[S]elf-defense is not authorized unless the circumstances were such as to excite the fears of a reasonable man that his life was in imminent danger.” (Emphasis supplied.) Crawford v. State, 267 Ga. 543, 544 (480 SE2d 573) (1997).

In fact, Murphy’s statement to the DFCS worker shows that his fear of being in “imminent danger of death or receiving serious bodily injury,” the essential elements justifying the use of deadly force, arose only after Murphy got the shotgun to stop the victim from getting his video game. In Murphy’s statement to the DFCS worker, the “necessity” for deadly force arose only because Murphy was “scared” that the victim would take the shotgun that Murphy brought into the argument over the video game and shoot Murphy with it. Thus, Murphy, himself, created any necessity for use of deadly force. Moreover, the victim’s verbal threats to kill Murphy came only after Murphy got the shotgun and thus could not provide a basis for Murphy to obtain the weapon.

“A person is not justified in using force under the circumstances specified in subsection (a) of this Code section if he . . . (2) [i]s . . . committing ... a felony.” (Emphasis supplied.) OCGA § 16-3-21 (b).

Under Murphy’s statement to the DFCS worker, the essential elements of self-defense, i.e., imminent fear of death or receiving great bodily injury, arose only after Murphy obtained the shotgun for use on the victim. Thus, Murphy created the necessity for use of deadly force during the commission of a felony on the victim, i.e., aggravated assault by obtaining and using a shotgun against the victim, thereby putting the victim in reasonable apprehension of receiving an immediate bodily injury. Under the law, Murphy’s statement to the DFCS worker — introduced by the defense — does not establish the elements of self-defense as justification for the homicide of the victim.

(iii) Murphy’s statement to the police, on the other hand, attempted to establish the defense of “accident,” the other justification defense charged by the trial court. Murphy claimed in his police statement that the shotgun for which he had bought shells earlier; that he loaded; that he retrieved during the argument; and that he pointed at the victim just “went off” when the victim pushed him onto the couch.

However, “[t]he defense of ‘accident’ is defined in OCGA § 16-2-2 as the absence of a criminal scheme or undertaking, intention, or criminal negligence. ‘Cocking and aiming a gun ... at (another). . . is an utter disregard for the safety of that person and constitutes criminal negligence,’ rendering the defense of accident inapplicable. New v. State, 260 Ga. 441, 442 (396 SE2d 486) (1990).” Stiles v. State, 264 Ga. 446, 448 (2) (448 SE2d 172) (1994).

In light of Murphy’s statement to the police that he obtained the shotgun shells “earlier last week” because of arguments with the victim; that he left the living room in order to obtain the loaded weapon; and that “at the time the gun was discharged[, he] was using it in [an] effort to [dissuade] the victim, the resulting homicide [did not constitute] accident.” Stiles v. State, supra at 448 (2). “Where, as in the instant case, it is shown by the evidence, and admitted in the defendant’s statement, that the homicide occurred by the discharge of a gun held by the accused which placed another in reasonable apprehension of immediately receiving a violent injury, even if the discharge of the gun was unintentional, the offense is murder; and in no view of such facts does it involve accident.” (Punctuation omitted; emphasis supplied.) Id. at 447-448 (2), citing Ford v. State, 202 Ga. 599, 602 (3) (44 SE2d 263) (1947); see also Grude v. State, 189 Ga. App. 901, 902 (377 SE2d 731) (1989). Accordingly, as a matter of law, Murphy’s statement to the police does not establish the elements of accident as a justification for the homicide of the victim.

Decided July 7, 1998

Reconsideration denied July 28, 1998

Thomason & Blackmon, Valerie C. Thomason, for appellant.

(iv) Finally, Murphy’s statement to his mother does not establish the elements of either self-defense or accident. Murphy did not tell his mother that he was afraid of the victim; that he thought he was in danger from the victim; that the victim pushed or hit him; or that the shotgun “went off.” Murphy’s statement to his mother was that Murphy deliberately shot the victim solely because the victim spit on him and took his video game.

Thus, even taking as true the evidence introduced by the State and the defense, as a matter of law, this evidence did not establish the elements of either self-defense or accident so as to justify the homicide of the victim.

(b) The State’s evidence of the elements of homicide was overwhelming. The State introduced eyewitness testimony that Murphy deliberately obtained a shotgun and shot the victim without any physical provocation or threats. The State introduced expert testimony from the doctor who performed the autopsy and the firearms expert which negated the possibility that the shotgun just “went off” as recounted by Murphy to the police. Further, the State introduced Murphy’s statements to his mother and the police in which Murphy admitted to the shooting but in which the elements of justification for the shooting were not established. Accordingly, the State’s evidence demanded a verdict of guilty of homicide, as a matter of law.

(c) Accordingly, in light of the above, the jury could not have given “evidentiary weight” to Murphy’s failure to testify so as to effect a verdict which was demanded as a matter of law. The failure to give the omitted jury charge, while error, was harmless.

Peter J. Skandalakis, District Attorney, Kevin W. Drummond, Assistant District Attorney, for appellee.

       Voluntary manslaughter is a homicide mitigated by passion. Accordingly, such crime demonstrates the elements of what “would otherwise be murder” if not for the additional presence of “serious provocation sufficient to excite ... passion in a reasonable person.” See Title 16, Article 5, Homicide; OCGA § 16-5-2.

       After three days of trial, the jury deliberated one hour before returning its verdict in the instant case.


author: Pope, Presiding Judge.

text:
    A98A0654.
    CINCINNATI INSURANCE COMPANY v. KASTNER et al.
    (504 SE2d 496)
   Pope, Presiding Judge.

This lawsuit was filed by Rhonda and Thomas Kastner to recover insurance benefits under their homeowner’s insurance policy with Cincinnati Insurance Company (“Cincinnati”) from a claim arising out of a burglary. The case was tried without a jury, and the court ruled in favor of the Kastners, finding coverage under the policy and awarding the Kastners bad faith damages and attorney fees. Cincinnati appeals, and for the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, the Kastners obtained a homeowner’s insurance policy with Cincinnati in 1993, which policy protected them from several perils, including property loss “when it is likely that the property has been stolen.” The policy excluded losses by theft “committed by an insured.”

During the weekend of March 4-6, 1995, the Kastners moved from a townhouse which they had been renting, located on West Gordon Street, to another residence. At the time of the move, Mr. Kastner was the chairman of the architecture department at Savannah College of Art & Design where Ms. Kastner was a full-time professor. The movers arrived on March 4.

After spending the night in their new residence, the Kastners returned to their West Gordon Street home on March 5 and found the door on the ground floor standing wide open. They discovered that the contents of boxes had been heaped on the floor and the house appeared to have been ransacked. The Kastners also discovered that items of personal property covered by the insurance policy had been stolen. Although there was no evidence of forced entry, the Kastners eventually found five doors open which had previously been locked with deadbolt locks and which could be opened only with a key. The Kastners testified that they had left the doors locked the previous night.

Upon discovering the theft, the Kastners immediately telephoned the police and reported the burglary. The following day the Kastners reported the loss to their local insurance agent, who forwarded notice of the burglary to Cincinnati.

The Kastners sent Cincinnati a sworn proof of claim with a list of the items that they could recall which had been stolen. Later, the Kastners gave lengthy sworn statements to the company. After some investigation, Cincinnati denied coverage, claiming that: (1) it had not been provided sufficient information to establish that a covered loss had occurred; (2) it had determined that no burglary of the premises had occurred; and (3) the Kastners had made material misrepresentations in their sworn statements about the burglary.

The Kastners filed suit against Cincinnati, seeking the applicable insurance policy limit, in addition to penalties and attorney fees under OCGA § 33-4-6. The case came on for a bench trial, and after hearing the evidence, the trial court entered judgment in favor of the Kastners for $84,538.25 — consisting of $47,630.60 in insurance proceeds, $11,907.65 for bad faith penalties and $25,000 in attorney fees. In its 17-page judgment, the trial court stated that though there was no bad faith in Cincinnati’s initial handling of the claim, the insurer’s intransigence in handling the claim later became bad faith. The court stated: “as the investigation proceeded, it appears that Defendant’s investigators allowed mistaken preconceptions and distaste for personal dealings with the upset Kastners to taint their investigation and to overshadow the lack of evidence to support their theory that the Kastners had staged the burglary.” The court further noted that Cincinnati had failed to follow important investigative leads which would have supported the Kastners’ claim that an unauthorized person had taken their belongings.

1. Cincinnati claims that the trial court erred as a matter of law when it found that the Kastners were entitled to damages for bad faith under OCGA § 33-4-6. Cincinnati argues that the evidence established at least 73 facts showing that no burglary ever occurred, including: that the Kastners were facing future financial difficulty; that there was no evidence of forced entry; that all of the keys had been accounted for by the Kastners; that the Kastners’ conduct was inconsistent with a burglary; that Ms. Kastner did not initially report her engagement and wedding rings as missing, but later claimed that they were; that an investigating detective believed that the evidence was not completely consistent with the Kastners’ claim; and that the Kastners’ reports of loss varied several times.

“In determining whether the evidence is sufficient to support the verdict, the proper rule is that the judgment should be affirmed if there is any evidence to support it unless it can be said as a matter of law that there was a reasonable defense which vindicates the good faith of the insurer.” (Citations and punctuation omitted.) Massachusetts Bay Ins. Co. v. Hall, 196 Ga. App. 349, 356 (3) (395 SE2d 851) (1990); see also Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979). “To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it[ ] would vindicate the good faith of the company as effectually as would a complete defense to the action.” (Citations and punctuation omitted.) Southern Fire &c. Ins. Co. v. Northwest Ga. Bank, 209 Ga. App. 867 (2) (434 SE2d 729) (1993).

Furthermore, “it is the very fact that certain factual issues regarding the merits of a claim are in genuine conflict that causes there to be no conflict, as a matter of law, whether an insurance company had reasonable grounds to contest a particular claim. In reaching this determination a court should carefully scrutinize any claim of a contest in facts to preclude the reliance by an insurance company oh fanciful allegations of factual conflict to delay or avoid legitimate claims payment.” (Emphasis supplied.) Rice v. State Farm &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993).

In the instant case, we have carefully scrutinized the evidence, and we cannot conclude that, as a matter of law, Cincinnati had a reasonable defense which vindicates its good faith. Compare Grange Mut. Cas. Co. v. Law, 223 Ga. App. 748, 750 (2) (479 SE2d 357) (1996). It appears that Cincinnati’s refusal to pay was based, in large part, on the fact that there had been no forced entry and that the Kastners’ accounts of the missing items and of the location of the keys to the deadbolt doors were somewhat inconsistent. Nevertheless, the inconsistencies in the Kastners’ accounts upon which Cincinnati relies were minor. On the other hand, there was evidence that access to the West Gordon Street residence from the townhouse next door was relatively easy and that the Kastners’ neighbor had seen a stranger in the courtyard of the townhouse on the afternoon of March 4. There was evidence that the West Gordon townhouse was for sale and that various people, including the movers, had recently been allowed access to the house. There was no evidence that the Kastners had facilitated or staged the burglary nor was there evidence that the Kastners were in possession of the items they claimed had been stolen. We find no error in the court’s judgment.

2. Citing its policy provision regarding misrepresentations, Cincinnati argues that the trial court erred in determining that the Kastners did not make material misrepresentations during its investigation which voided the policy. This enumeration is also without merit. See generally Nationwide Mut. Fire Ins. Co. v. Wiley, 220 Ga. App. 442 (1) (469 SE2d 302) (1996).

3. Finally, Cincinnati contends that the court erred in concluding that the Kastners’ testimony was not impeached and should not have been disregarded under OCGA § 24-9-85 (b). Contrary to Cincinnati’s contentions, we find no error.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Decided July 7, 1998

Reconsideration denied July 28, 1998

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Tracy M. Culver, Ernest R. Bennett, Jr., for appellant.

Weiner, Shearouse, Weitz, Greenberg & Shawe, N. Harvey Weitz, Edwin R. Byck, for appellees.


text:
    A98A0676.
    STALEY v. THE STATE.
    (505 SE2d 491)
   Beasley, Judge.

In 1984 Edward Staley pleaded guilty to multiple counts of child molestation and cruelty to children and was sentenced to two consecutive twenty-year terms, the second to be served on probation subject to certain conditions which were termed “general.” They were “THAT defendant not violate any State or Federal laws to be adjudged by the Court; THAT defendant make regular reports to the Adult Probation Officer of DeKalb County as directed; THAT defendant keep the Adult Probation Officer of DeKalb County informed at all times of the defendant’s place of employment and residence address.” A specific individualized condition was also imposed, which is not material here.

Staley was released on probation after serving about six and one-half years in prison. In 1993 he signed a probation office document, as did his probation officer, detailing the conditions of probation. One was that he “Notify [his] Probation Officer immediately of any change of address [and] Obtain prior permission to move outside the jurisdiction of the Court or leave the State for any period of time.” Another was that “If permitted to move or travel to another state, [he] agree to waive extradition from any jurisdiction where [he] may be found and not contest any effort by any jurisdiction to return [him] to this state.” Although in his argument on appeal he questions the authority for this document, its enforcement and validity are not the subject of any enumeration of error.

A few months later probation was revoked for two years. After probation was resumed, it was again revoked in April 1995, this time for one year. He was returned to probation in December 1995.

In June 1997 the probation officer filed a petition for “modification/revocation” which charged that Staley “has left the state without permission of the Department of Corrections.” The petition also contained a request that the court “Further clarify the conditions of probation concerning interstate travel.” A hearing before the trial court resulted in the order submitted for review on appeal. It did not revoke probation but focused instead on travel, ruling that pursuant to the terms of the original sentence the probation office was authorized to require Staley “to submit any out of state travel plans to his probation officer so that the Probation Department may act in compliance with the Interstate Compact as it relates to interstate travel of sex offenders.” As explained in the order, the court did not view this requirement as an additional condition or as a modification of the conditions. As evident at the hearing, the court viewed it instead as a clarification of existing conditions.

Staley disagrees with the court’s characterization of its order. On appeal, Staley challenges the order, claiming that it increased his sentence. An increase in punishment after it has begun, he contends, is forbidden by both federal and state double jeopardy prohibitions, deprives him of due process rights, and violates ex post facto constitutional provisions. These valid principles were not overstepped in his case because the court did not increase his sentence or, more specifically, the conditions of probation.

OCGA § 17-10-1 (a) (1) authorizes a judge to “probate all or any part of [a] sentence under such rules and regulations as the judge deems proper.” This has been construed to give sentencing judges broad discretion in fashioning appropriate conditions of probation, tailored to the individual defendant’s circumstances as well as the interests of society and the victim. The original sentence required regular reports by defendant to the probation officer as directed, a provision with which appellant has no quarrel. And for good reason; OCGA § 42-8-35 (3) explicitly lists this term as an appropriate condition of probation. The trial court’s order can be read as simply confirming that “reports” include plans for interstate travel. The giving of information about his impending presence elsewhere, about where he may be located if he leaves Georgia’s borders, constitutes no more than reporting and does not amount to an increase in punishment. Since it is apparent that defendant did engage in out-of-state travel from time to time, it was not inappropriate for the court to make clear that reporting in advance that travel to a certain location for a particular period of time was imminent constituted part of what was embraced by the originally imposed reporting requirement. The court’s confirmation that this was necessary recognizes that the probation supervisor’s duty is to “keep informed concerning the conduct, habits, associates, employment, recreation, and whereabouts of the probationer by visits, by requiring reports, or in other ways.” OCGA § 42-8-29.

Were this considered a modification of probation, it would still be within the confines of the law. OCGA § 42-8-34 (g) empowers the judge, “in any manner deemed advisable by the judge, to modify or change the probated sentence at any time during the period of time originally prescribed for the probated sentence to run.” Of course, this has limits. The court “may not increase a sentence once the defendant begins serving it without violating the prohibition against double jeopardy in both the Georgia and Federal constitutions. [Cits.]” A change in the conditions of probation is not necessarily an increase in sentence. For example, an addition which is clearly and completely rehabilitative does not constitute an additional punishment. It is future-oriented, aimed wholly at effecting future positive behavior, rather than retrospective, principally extracting a price for past negative behavior.

“[A] person occupies a special status while on probation, during which time his private life and behavior may be regulated by the State to an extent that would be completely untenable under ordinary circumstances. The rationale for this power is basically, of course, that the person has been convicted of a crime and would be serving a sentence but for the grace of the court. He is a prima facie risk to society. It will, however, allow him the opportunity to prove himself otherwise. Nevertheless, once having shown weakness, he may not place himself in a position to be easily tempted again. Such conditions of probation as avoiding ‘undesirable people,’ abstaining from alcohol or drugs, and even holding a steady job, fall into the ‘no temptation’ category. Others, such as violating no penal laws, are self-evident. Requirements for reporting to a probation officer and remaining in the jurisdiction are basically devices for checking on the efficacy of the probation.” Even a requirement to remain in a certain geographic area may be logically related to the rehabilitative scheme of the sentence imposed.

Staley has not shown by the record that the order curtails his ability to travel to other states. It is unclear to what “Interstate Compact” the trial court referred. Staley claims the compact is the Interstate Compact for the Supervision of Parolees and Probationers, yet he provides no citation for it and it is not in the record. OCGA § 42-9-71, the Uniform Act for Out-Of-State Parolee Supervision, authorizes the Governor to execute compacts between Georgia and any other state regarding supervision of probationers and parolees who change residence from one state to another, but it does not mention monitoring those who simply travel from one state to another or provide that travel can be denied.

The trial court order refers to “the Interstate Compact as it relates to interstate travel of sex offenders.” There is federal and state legislation providing for registration of sexually violent persons. The federal law is 42 USC § 14071 and is known as the “Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Program.” It encourages states to provide for mandatory registration with law enforcement officials of persons convicted of an offense against a minor or a sexually violent offense. OCGA § 42-1-12 is the corresponding Georgia law. But it is not a compact, nor does it authorize Georgia to enter into one.

Also, the registration requirements of the Georgia law are effective only for persons convicted on or after July 1,1996, or for persons who have previously committed an applicable offense where they are released from prison or placed on parole, supervised release, or probation on or after the same date. Staley was placed on probation before that date.

Neither the federal law nor Georgia’s enactment requires advance notice of state-to-state travel. Generally speaking, the Georgia law requires registration of name and address and of any change of residence to or from another state and Georgia. Persons subject to the statute are required to register annually; violent “predators” are required to register quarterly.

The imposition of interstate travel monitoring on probationer Staley is not an abuse of discretion, for it logically relates to assuring compliance with other terms of supervisory probation and it does not increase Staley’s sentence. Further, Staley has not shown that his travel is restricted by the order. The order does not violate double jeopardy or ex post facto prohibitions or due process in either the state or federal Constitution in the manner argued by Staley because it is not additional punishment.

Farmer v. State is not contrary precedent. The State sought to revoke Farmer’s probation based on the probation officer’s assertion that Farmer violated a term of probation never prescribed by the court. Staley’s probation was not revoked; the terms of probation were merely clarified, after a hearing. No increase of sentence resulted.

Decided June 24, 1998

Reconsideration denied July 28, 1998

George M. Johnson, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Jacqueline S. Hardy, Assistant District Attorneys, for appellee.

Neither does this conclusion conflict with Harris, which involved an increase in punishment, or with Edwards, which involved a “completely rehabilitative” condition.

Staley’s remaining arguments are without merit.

Judgment affirmed.

Pope, P. J., and.Ruffin, J., concur.

On Motion for Reconsideration.

Staley’s motion for reconsideration contends that we erred because there is evidence Staley’s ability to travel is restricted by the trial court’s order, and he moves to supplement the record with his own affidavit and an exhibit purporting to show the nature of these restrictions.

Because this affidavit is not a part of the record below, it cannot now be considered. Champion Mgmt. Assn. v. McGahee, 227 Ga. App. 895, 896 (2) (490 SE2d 215) (1997); Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994); Stolle v. State Farm &c. Ins. Co., 206 Ga. App. 235, 236 (2) (424 SE2d 807) (1992).

Motion to supplement the record and motion for reconsideration denied.

       OCGA § 42-8-35 (12) lists tins as an appropriate condition of probation.

        State v. Collett, 232 Ga. 668, 670 (208 SE2d 472) (1974).

        Harris v. State, 261 Ga. 859, 860 (2) (413 SE2d 439) (1992) (restitution is punishment when ordered as part of a criminal sentence, and the trial court cannot increase punishment after sentencing); England v. Newton, 238 Ga. 534, 536 (233 SE2d 787) (1977) (“the revoking court may not increase the original sentence”).

         Edwards v. State, 216 Ga. App. 740 (3) (456 SE2d 213) (1995).

        Inman v. State, 124 Ga. App. 190, 193-194 (2) (183 SE2d 413) (1971).

        State v. Collett, supra, 232 Ga. at 670.

       Id.

       42 USC § 14071 (a) (1) (A).

       OCGA § 42-1-12 (a) (8) & (b) (1) (A).

       OCGA § 42-1-12 (b) (1) (A) (ii).

       OCGA § 42-1-12 (b) (1), (b) (3) (A) & (D), ffi.

       OCGA § 42-1-12 (d) (1) & (2).

       216 Ga. App. 515, 519-520 (5) (a) (455 SE2d 297) (1995).

        Harris v. State, supra, 261 Ga. at 860 (2).

        Edwards v. State, supra, 216 Ga. App. at 740-741 (3).