author: Barnes, Judge.

text:
    A99A1060.
    A99A1310.
    CUNNINGHAM v. THE STATE. BUSSEY v. THE STATE.
    (522 SE2d 684)
   Barnes, Judge.

A jury convicted Maurice Cunningham and Almondo Bussey of two counts of aggravated sodomy and two counts of aggravated child molestation. After finding the child molestation counts merged with the aggravated sodomy counts, the trial court sentenced each defendant to fifteen years, to serve ten years in prison. The trial court denied their subsequent motions for new trial, and they appeal.

In Case No. A99A1060, Cunningham argues the trial court erred in granting the State’s motions in limine to keep out evidence regarding a threatened civil suit and the alleged victim’s subsequent delinquency adjudication. For the reasons that follow, we reverse the convictions against Cunningham.

In Case No. A99A1310, Bussey argues the trial court erred in denying his motion to sever his trial from his co-defendant’s, in allowing a redacted version of the co-defendant’s statement to be read to the jury, in instructing the jury that consent is not a defense to the charges against him, and in finding the evidence sufficient to sustain his convictions. For the reasons that follow, we also reverse the convictions against Bussey.

Construed to support the verdict, the evidence at trial showed that Cunningham, Bussey, and the victim were all juveniles being held at the DeKalb Regional Youth Detention Center. Cunningham was 14, Bussey was 16, and the victim was 15. The three teenagers shared a room, and in February 1996, the victim reported that Cunningham and Bussey forced him to perform oral sex on them, after which Cunningham anally sodomized him. A subsequent medical examination of the victim found evidence consistent with his allegations of anal sodomy within the previous 24 hours.

Case No. A99A1060

1. Cunningham asserts he should have been allowed to ask the victim about the ante litem notice his lawyer served on the State of Georgia, which threatened a civil suit against the State as a result of the incidents that underlie this criminal action. At the start of the trial, the State noted that the victim’s family contemplated suing the State and moved to “prevent any mention of any lawsuit or financial gain which may result from any civil case associated with this [case].” The State cited no authority for this proposition. Cunningham, however, correctly argued that it was relevant because such evidence “goes to the victim’s bias or interest in the case.” In response, the State contended that such evidence would not be relevant because the lawsuit would be against the State and not the two defendants. The trial court agreed with the State’s argument and granted the motion in limine.

A party is entitled to a “thorough and sifting cross-examination” of the witnesses against him. OCGA § 24-9-64. “ ‘Evidence tending to show motive is always relevant and admissible.’ ” (Citations omitted; emphasis in original.) Letlow v. State, 222 Ga. App. 339, 342 (2) (474 SE2d 211) (1996). Further, a witness’s financial interest in the outcome of a trial is always a proper subject for cross-examination. Claxton Poultry Co. v. City of Claxton, 155 Ga. App. 308, 312 (3) (271 SE2d 227) (1980).

(a) The State argues first that the trial court did not err in granting the motion in limine because it was the victim’s mother rather than the victim who had served the ante litem notice in contemplation of a civil suit. This argument is not supported by the record. After granting the State’s motion in limine, the trial court allowed Cunningham’s lawyer to state in his place what the evidence would show. In his proffer of evidence, Cunningham’s lawyer stated that the victim, not his mother, had hired a civil lawyer, that the victim was contemplating a lawsuit against the State, and that the victim’s lawyer provided the State with an ante litem notice of the victim’s contemplated lawsuit. Since the State made no objection to this proffer, no evidence of record supports its argument that the evidence should have been excluded because the ante litem notice was sent on behalf of the victim’s mother.

Even if the evidence did show it was the mother’s ante litem notice, we would still find no merit in the State’s argument because it overlooks the fact that the victim in this case is a minor. In Georgia, lawsuits for personal injuries to a minor are filed on their behalf by a “next friend” who is typically a parent. See OCGA § 9-11-17; Weldon v. Williams, 170 Ga. App. 589, 591-592 (3) (317 SE2d 570) (1984).

We have previously found reversible error because the trial court did not allow the defendant to cross-examine the victim’s parent about a civil suit filed as a result of the victim’s injuries. In Lloyd v. State, 40 Ga. App. 230 (149 SE 174) (1929), the victim’s parent had filed a civil action arising out of the same incident at issue in the criminal case, and we reversed because the trial court did not allow the defendant to explore that issue. In this case, the victim would have a financial interest in the outcome of any case his mother might bring on his behalf. As a result, we reject the State’s argument that a defendant cannot cross-examine a minor about an ante litem notice simply because it was sent by his mother.

(b) We also reject the State’s argument that the exclusion was proper because the action would be against the State rather than the defendants. We have consistently held that trial courts should admit evidence of civil cases when they are “based upon the same transaction” as the criminal trial, Lloyd, supra, 40 Ga. App. at 231, or “based on the same facts involved in the criminal case.” Boggs v. State, 195 Ga. App. 605, 606 (394 SE2d 401) (1990). The financial interest of the witness, which provides the basis for the inquiry on cross-examination, is not diminished by the fact that the defendant is someone other than the criminal defendant. Thus, there is no requirement that the defendant in the criminal action must also be a defendant in the civil action.

(c) The fact that the victim served an ante litem notice on the State and had a financial interest as a result of this threatened civil suit, was a proper subject for cross-examination, and the trial court erred in granting the State’s motion in limine regarding this subject. We must now consider whether this error was harmless, because the defendant must show harm as well as error to prevail on appeal.

Under the standards set out by the Supreme Court of Georgia, the “highly probable” test makes “ ‘affirmance conditional on high probability that error did not affect the judgment. The test compels a judge . . . 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).

The State argues that any error was not harmful because the evidence did not conflict, relying on Chancellor v. State, 165 Ga. App. 365, 372 (23) (301 SE2d 294) (1983) and Carter v. State, 150 Ga. App. 119 (2) (257 SE2d 11) (1979). The evidence did not conflict, according to the State, because Cunningham and Bussey did not testify. First, the evidence did conflict. The State introduced, through its witness, Cunningham’s statement in which he exonerated himself and implicated Bussey.

Second, the State misinterprets our holdings in the cases cited above. Conflicting evidence can be used to demonstrate reversible error; it is not, however, the only way to do so. The real test, as described in Johnson, supra, is whether it was highly probable the error affected the judgment.

In considering whether the error was harmful, we note that a defendant’s right on cross-examination to discredit the victim’s testimony by showing an improper motive has a long history. “To refuse to permit the defendant to show that such is the case is error, and in a close case is ground for a new trial.” Billings v. State, 8 Ga. App. 672, 673 (2) (70 SE 36) (1911). Further, “[i]n criminal cases, it is reversible error where there is conflicting evidence to refuse to permit the State’s witness on cross-examination to testify that he has a damage suit pending based on the same facts involved in the criminal case.” (Citation and punctuation omitted.) Spitzberg v. State, 233 Ga. App. 848, 849 (1) (506 SE2d 143) (1998); see also Boggs v. State, supra, 195 Ga. App. at 606; Quinn v. State, 132 Ga. App. 395, 396 (2) (208 SE2d 263) (1974).

Here, the State’s case against Cunningham hinged on the victim’s credibility. No witnesses came forward. No DNA or other physical evidence linked Cunningham to the assault. Although evidence of physical injury is consistent with the victim’s testimony, the physician who examined the victim testified that he relies on what the patient tells him to determine whether the injury is consistent with the history given. The victim did not report the assault until the next morning, even though a guard testified that a monitor in the ceiling of the room allowed the guards to hear what transpired in the room at all times.

Since the victim’s credibility was crucial to the State’s case against him, Cunningham’s defense focused on inconsistencies in his story. By excluding evidence of the threatened civil suit, the trial court took away Cunningham’s argument that this threatened lawsuit provided a motive for the victim to fabricate an assault. Under these circumstances, we cannot hold harmless the trial court’s error in excluding evidence of a threatened civil suit involving the same facts as the criminal action.

2. Cunningham also argues that the trial court erred in granting the State’s motion in limine to exclude evidence of the victim’s delinquency adjudication subsequent to the events at issue here. While he cites to the record when directing this Court to his preservation of error, no such ruling or objection appears on the page cited. Instead, the trial court reserved ruling on the motion before trial. Although it appears the court may have addressed the issue at a bench conference during Cunningham’s cross-examination of the victim, that conference and any resulting ruling are not in the record. Therefore, Cunningham has waived the right to argue this issue on appeal. See Holland v. State, 176 Ga. App. 343, 344 (3) (335 SE2d 739) (1985).

Case No. A99A1310

3. Bussey contends the trial court erred in denying his motion to sever his trial from his co-defendant’s and in allowing an investigator to read to the jury a redacted version of Cunningham’s statement. Bussey sought the severance because he did not want Cunningham’s redacted statement to be introduced at his trial.

The State responded to the motion to sever by arguing that “the statement could be redacted and we could use words like some other guy or something generic in place of the name of Mr. Bussey, and that is certainly a procedure which has been approved of by many different courts, including the United States Supreme Court.” The trial court denied the motion to sever and allowed the State to introduce the redacted statement.

An investigator with the Georgia Department of Children & Youth Services testified that he recorded a statement from Cunningham two days after the incident, a transcript of which he read to the jury. Before his testimony, the trial court ruled the statement would be admissible if the investigator substituted “another guy” for Bussey’s name. The investigator then read Cunningham’s statement to the jury, redacting Bussey’s name as follows:

[Graves]: All right. Maurice, tell me what happened on Wednesday.
Mr. Cunningham: We was in the room playing. We was playing with [the victim].
Graves: Who was we?
Mr. Cunningham: Me and another guy. . . . We was playing with him and another guy said [to the victim], “you done got my thing all hard. Now you going to have to do something.”
And [the victim] said, “Man, I ain’t like that.” He said, “If you ain’t going to do nothing, I’m going to take your bed.”
... He told him to open his mouth and [the victim] started sucking his thing, man.
Graves: Did you hear [the victim] when he said he didn’t want to do it?
Mr. Cunningham: Yeah.
Graves: What did another guy say to him?
Mr. Cunningham: “[Victim], you done got my thing hard. You’re going to have to do something to it. And he told him to sit right there and open his mouth. . . .”

Following the lead of the U. S. Supreme Court, the Supreme Court of Georgia has held that

unless the statement is otherwise directly admissible against the defendant, the Confrontation Clause is violated by the admission of a nontestifying co-defendant’s statement which inculpates the defendant by referring to the defendant’s name or existence, regardless of the existence of limiting instructions. ... A co-defendant’s statement meets the Confrontation Clause’s standard for admissibility when it does not refer to the existence of the defendant and is accompanied by instructions limiting its use to the case against the confessing co-defendant.

(Emphasis supplied.) Hanifa v. State, 269 Ga. 797, 803 (2) (505 SE2d 731) (1998).

Here, we find that Cunningham’s statement, even substituting “another guy,” clearly inculpated Bussey and its admission violated the rule outlined in Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968), and refined in Richardson v. Marsh, 481 U. S. 200, 211 (107 SC 1702, 95 LE2d 176) (1987), and Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 1155, 140 LE2d 294) (1998). Bussey was the only other defendant, and the victim testified that he was assaulted by Cunningham and Bussey and that only the three of them were in the room when he was assaulted.

In its brief the State points out that this case was tried before Gray and Hanifa were decided. But this statement was inadmissible even under the rules outlined in Bruton, decided as early as 1968. Further, we addressed this precise issue in 1994, holding that “the mere substitution of the phrase ‘another person’ for [the non-testifying co-defendants’] names did not satisfy Bruton because it was apparent to whom the statements were referring.” Kesler v. State, 215 Ga. App. 553, 555 (1) (451 SE2d 496) (1994), questioned on other grounds, Hanifa, supra, 269 Ga. at 803. We note the State cited Kesler at trial, but not in its brief. Cunningham’s statement only incriminated Bussey and exculpated Cunningham. Admission of the redacted statement into evidence was error. Id.

“To be harmless, a Bruton error must be harmless beyond a reasonable doubt. Schneble v. Florida, 405 U. S. 427 [(92 SC 1056, 31 LE2d 340)] (1972).” Munford v. Seay, 241 Ga. 223, 224 (1) (244 SE2d 857) (1978). “Where overwhelming evidence of a defendant’s guilt exists apart from the statement of the co-defendant, then any violation of Bruton is harmless beyond a reasonable doubt.” Adorno v. State, 236 Ga. App. 588, 592 (3) (512 SE2d 703) (1999). In this case, the evidence was not so overwhelming that it rendered the trial court’s error harmless. Hamilton v. State, 162 Ga. App. 620-621 (1) (292 SE2d 473) (1982). Without the improperly redacted statement of his co-defendant that the investigator read to the jury, the only other evidence against Bussey consisted of the victim’s testimony. As discussed previously, the victim’s credibility was crucial to the State’s case, and Cunningham’s statement was the only other evidence that corroborated the victim’s version of his assault by Bussey. Under these circumstances, we cannot say the error was harmless and must therefore reverse Bussey’s conviction.

4. Bussey also argues that insufficient evidence supports his convictions on the aggravated sodomy and aggravated child molestation charges based on the anal sodomy, because the victim testified that only Cunningham had forced him to submit to anal sex. Because this enumeration is relevant to Bussey’s retrial, we will address it. “[0]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Bussey makes three arguments in support of this enumeration: (a) he was not a party to the crime; (b) the circumstantial evidence did not exclude every other reasonable hypothesis except his guilt; and (c) he abandoned the crime.

(a) The trial court charged the jury under OCGA § 16-2-20 as follows: “Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime” if he “[i]ntentionally aids or abets in the commission of the crime” or “encourages . . . another to commit the crime.” Bussey argues that after the victim performed oral sodomy on him, he went to bed while Cunningham committed anal sodomy, and therefore did nothing to aid, abet or encourage the latter crime.

To the contrary, the evidence showed that Bussey initiated the assault and ordered the victim to perform oral sodomy. When the vietim refused, Bussey knocked him to the floor and threatened to hit him in the face until the victim complied with Bussey’s demand to sodomize him orally. Then, Cunningham orally sodomized the victim, said “that wasn’t working,” and anally sodomized the victim. The defendants worked together to terrorize and assault the victim, and the acts of each are imputed to the other. See Ward v. State, 205 Ga. App. 504, 505 (1) (423 SE2d 288) (1992).

(b) Bussey argues that, because the only evidence against him was circumstantial, that evidence was insufficient to exclude every other reasonable hypothesis but his guilt as required by OCGA § 24-4-6. He argues it was possible that he had “no knowledge or participation in an act of any sex between Cunningham” and the victim. However, the State’s case against Bussey was not based entirely on circumstantial evidence; it was also based on the victim’s testimony that Bussey committed the crimes. The Supreme Court of Georgia illustrated the difference between direct and circumstantial evidence as follows: “Suppose, for example, an eyewitness testified that he saw the defendant commit the crime. There can be no doubt that such testimony is direct evidence because it immediately points to the question at issue — whether the defendant committed the crime.” Stubbs v. State, 265 Ga. 883, 885 (463 SE2d 686) (1995).

(c) Finally, Bussey argues that insufficient evidence supported the anal sodomy convictions because he abandoned his participation in that act. He argues that he did not restrain or help Cunningham restrain the victim, but went to bed. OCGA § 16-4-5 provides that when conduct would otherwise be a crime, it is a defense that a defendant “abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose.” However, “a mere disinterest in the subsequent proceedings inside the [room] which did not constitute a disavowal of the criminal enterprise, especially in light of the fact that the appellant withdrew only as far as the [nearby bed],” does not establish abandonment. Lobdell v. State, 256 Ga. 769, 772 (1) (353 SE2d 799) (1987).

We conclude the evidence was sufficient for a rational trier of fact to find Bussey guilty beyond a reasonable doubt of the aggravated sodomy and aggravated child molestation charges that alleged anal sodomy. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. Bussey contends his trial counsel erred in failing to move for a directed verdict of acquittal once the State rested. After Bussey’s trial defense counsel filed a motion for new trial, new appellate counsel was appointed at Bussey’s request to allow the new counsel to assert claims of ineffectiveness of counsel against the trial defense counsel. The new appellate counsel, however, did not amend the motion for new trial to assert claims of ineffectiveness of counsel as Bussey requested. Instead, he requested that the trial court rule on the pending motion, and after the motion for new trial was denied, he filed the notice of appeal. Under these facts, Bussey cannot assert his ineffectiveness claim for the first time in this appeal. Glover v. State, 266 Ga. 183 (2) (465 SE2d 659) (1996).

Decided September 20, 1999.

Elliott A. Shoenthal, for appellant (case no. A99A1060).

James S. Lewis, for appellant (case no. A99A1310).

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

6. In his final enumeration of error, Bussey challenges the constitutionality of the statutory framework under which he was charged and convicted. However, trial counsel failed to challenge the statutes’ constitutionality below, and therefore this argument is waived. Morton v. State, 206 Ga. App. 413, 414 (1) (425 SE2d 336) (1992). Further, as appellant again failed to raise this issue at the earliest opportunity, he cannot now raise it for the first time on appeal. Id.

Judgments reversed.

Blackburn, P. J., and Ellington, J., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1173.
    BOYER v. BROWN.
    (522 SE2d 692)
   Miller, Judge.

Jennifer Boyer sued Judy Brown for damages caused by a collision between their two cars at an intersection controlled by a stoplight. Each maintained the other ran the red light. On grounds of relevancy, Boyer moved in limine to exclude evidence that she had been holding a glass of wine at the time of the collision. She argued no evidence showed that she was intoxicated at the time of the collision or that the glass of wine was linked to the cause of the collision. The court denied the motion and, over Boyer’s objection, instructed the jury that a violation of Georgia’s “Open Container” law (OCGA § 40-6-253) constituted negligence per se.

Following a defense verdict, Boyer appealed, enumerating as error the admission of the evidence related to the glass of wine and the giving of the “Open Container” charge to the jury. We discern no error.

1. The court did not abuse its discretion in admitting the evidence regarding the glass of wine. The evidence consisted of testimony and exhibits that (i) a wet spot smelling like alcohol was located just outside the driver’s door of Boyer’s car, (ii) pieces of a broken wine glass were found on the dashboard, speedometer, and driver’s side floor of Boyer’s car, (iii) Boyer’s left hand was cut in the incident even though no other broken glass resulted, and (iv) wine was splattered on the windshield, steering column, driver’s side door and window, and the gear shift of Boyer’s vehicle. Boyer flatly denied having any wine in the car or holding the wine glass, maintaining instead that the wine glass had been empty and sitting in the vehicle’s cupholder to the right side of the driver’s seat at the time of the collision.

“The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.” (Citation and punctuation omitted.) Holman v. State, 236 Ga. App. 111, 114 (3) (511 SE2d 240) (1999). Here the trial court could find the evidence relevant for two reasons. First, holding a glass of wine while driving could increase the likelihood of an accident by distracting the driver and, if partially consumed, by possibly impairing the driver’s reactions and perceptions. Such possibilities explain Georgia’s strict law against driving with an open alcoholic beverage in the driver’s possession. See OCGA § 40-6-253. Second, the evidence was relevant to impeach Boyer by disproving portions of her testimony. See OCGA § 24-9-82.

Boyer cites Jones v. Ray, 159 Ga. App. 734, 735 (3) (285 SE2d 42) (1981), which held evidence of open containers found at the collision scene was inadmissible. But Jones is distinguishable in that (i) it preceded the enactment of OCGA § 40-6-253, (ii) the containers were not found in the car, and (iii) the undisputed evidence showed that the driver had not been drinking. The investigating officer’s testimony that he smelled no alcohol on Boyer’s breath did not render the matter undisputed, nor did it disprove that she was holding the glass of wine while driving.

2. Nor did the court err in instructing the jury that a violation of OCGA § 40-6-253 was negligence per se. In determining whether the violation of a statute is negligence per se as to a particular person,

it is necessary to examine the purposes of the legislation and decide (1) whether the injured person falls within the class of persons it was intended to protect and (2) whether the harm complained of was the harm it was intended to guard against.

(Citations and punctuation omitted.) Walter v. Orkin Exterminating Co., 192 Ga. App. 621, 624 (3) (385 SE2d 725) (1989); see Montgomery Ward & Co. v. Cooper, 177 Ga. App. 540, 541 (1) (339 SE2d 755) (1986).

Decided September 20, 1999.

Nelson & Smith, Ellis M. Nelson, for appellant.

Lewis & King, Francis M. Lewis, for appellee.

OCGA § 40-6-253 (b) forbids a person from possessing an open container of an alcoholic beverage while driving. This statute is apparently designed to reduce the number of vehicle accidents caused by drivers who are distracted by possessing alcoholic beverages easily consumable or who may become impaired through such consumption. The Michigan Court of Appeals has interpreted Michigan’s “Open Container” law (Mich. Comp. Laws Ann. § 257.624a) similarly, holding that the statute was designed to protect the general public from harm caused by the risk of drivers having immediate access to alcoholic beverages. Sneath v. Popiolek, 135 Mich. App. 17 (352 NW2d 331, 334-335) (1984); see generally Lover v. Sampson, 44 Mich. App. 173 (205 NW2d 69, 73-74 (2)) (1972). Brown fell within the category of persons the statute was designed to protect, and the harm caused to her was the harm the statute was enacted to prevent.

Boyer contends that the instruction was harmful because no evidence tied the glass of wine to the cause of the accident. Boyer misapprehends the meaning of a “negligence per se” instruction. “Negligence per se” means only that if a statutory violation is found, then the party at fault breached a duty; it does not mean that the breach proximately caused the damages at issue. Central Anesthesia Assoc. v. Worthy, 254 Ga. 728, 730 (1) (333 SE2d 829) (1985); see Duncan v. Randolph, 236 Ga. App. 566, 567 (512 SE2d 688) (1999); Walter, supra, 192 Ga. App. at 624 (3). Proximate cause is for the jury to decide (see Duncan, supra, 236 Ga. App. at 567), and the jury here received instructions from the court on this matter. Because the jury could infer that Boyer’s holding and possibly consuming an open glass of wine distracted if not hindered her from observing and obeying the stoplight, evidence supported a finding of proximate cause against her.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: Johnson, Chief Judge.

text:
    A99A1385.
    JENKINS v. THE STATE.
    (522 SE2d 678)
   Johnson, Chief Judge.

Gorman Jenkins was convicted of possession of cocaine with intent to distribute and misdemeanor obstruction of a law enforcement officer. Contrary to his contentions, we find that the evidence was sufficient to support the convictions, the court properly allowed expert testimony on the issue of his intent to distribute cocaine, and the court did not pressure the jury into reaching a quick decision.

1. Jenkins contends that the trial court erred in denying his motion for directed verdict of acquittal because the evidence was insufficient for a rational trier of fact to find him guilty of the crimes charged beyond a reasonable doubt. He does not elaborate, except to say that “[substantial questions” were raised regarding “the true nature of the substance alleged to be crack cocaine,” chain of custody, venue, identification, and “lack of due diligence by law enforcement.”

This court requires that appellants support enumerations of error with argument and citations to authority. Court of Appeals Rule 27 (c) (2). Mere conclusory statements such as those made here are not the type of meaningful argument contemplated by that rule. See generally Pickens v. State, 225 Ga. App. 792, 800 (7) (484 SE2d 731) (1997); Martin v. State, 179 Ga. App. 551, 555 (8) (347 SE2d 247) (1986). Assuming the enumeration of error was not abandoned, it is nonetheless without merit.

Where, as here, the sufficiency of the evidence is challenged by a motion for directed verdict of acquittal, the proper standard of review is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998); Smith v. State, 237 Ga. App. 77 (1) (514 SE2d 710) (1999). On appeal, we view the evidence in the light most favorable to support the verdict, and an appellant no longer enjoys a presumption of innocence; moreover, we determine the sufficiency of the evidence and do not weigh the evidence or determine the credibility of witnesses. Id.; Holman v. State, 236 Ga. App. 111, 113 (1) (511 SE2d 240) (1999).

So viewed, the evidence shows that narcotics agents received a tip from a reliable informant that a man would be transporting cocaine from Valdosta to the Barwick, Georgia area. He reportedly would be driving a blue Pontiac Grand Am with Georgia tag number 818 ENM.

Police officers staked out an area in Barwick and watched for the car. An officer spotted the car and radioed two other officers stationed one hundred to two hundred yards down the road. The other officers saw the car and activated their blue lights and siren. The suspect stopped his car, and the police parked their car about five to ten feet behind the car. The officers got out of their car and stood next to it. At the officers’ request, the suspect, who was the only person in the car, got out and walked to the back end of his car. After waiting there briefly, the suspect turned around and headed back toward the front of his car. The suspect then reached into his jacket pocket, lowered his pants, threw some objects down, and ran. The officers ran after him, but he escaped. Officers found a jacket on the ground which they identified as the jacket the driver was wearing when he was stopped. The jacket contained a plastic bag with suspected crack cocaine, an identification card with Jenkins’ photograph affixed, and cash. The stop of the car and the foot chase occurred in Thomas County, the county alleged in the indictment.

The officer who removed the packaged substance from the jacket testified that he gave the package to one of the other two officers at the scene. That officer testified that he took it to the police department, placed it in a large plastic bag, stapled it, sealed it with tape, labeled it and locked it in his office desk before turning it over to the evidence custodian. The evidence custodian testified that the officer gave her the package and she kept it in a locked safe in her office until she transported it to the crime lab. A crime lab chemist testified that she received the package from the evidence custodian and that the substance contained therein was in fact cocaine.

The two officers positively identified Jenkins in court as the man they stopped that night. Neither officer had any doubt that Jenkins was the suspect; The officers testified that, at the time of the stop, a streetlight and the patrol car’s headlights and emergency lights illuminated the area. Jenkins wore no mask or hat, and officers were able to see his face clearly.

A rational trier of fact was authorized to find Jenkins guilty of the crimes charged beyond a reasonable doubt. See Larkin v. State, 230 Ga. App. 129, 130 (1) (495 SE2d 605) (1998); Lester v. State, 226 Ga. App. 373, 378 (3) (487 SE2d 25) (1997).

2. Jenkins complains that the trial court erred in admitting opinion testimony that the amount of cocaine recovered evidenced an intent to distribute. Specifically, he complains that law enforcement officers should not have been allowed to give such testimony because it went to the ultimate issue in the case. He says the question of whether he intended to distribute the cocaine he allegedly possessed was for the jury to decide. This enumeration is without merit.

“Expert opinion testimony on even the ultimate issue is admissible where the conclusion of the expert is one beyond the ken of the average layman.” (Citations and punctuation omitted.) Davis v. State, 200 Ga. App. 44, 46 (2) (406 SE2d 555) (1991). The average layman does not necessarily know the amount of crack cocaine one might generally possess for personal use or the amount which might evidence an intent to distribute. Id.

In this case, one of the officers involved in the stop testified that the 17.6 grams of cocaine recovered had a street value of at least $1,700 and that, in his opinion, possessing such a quantity of cocaine indicated an intent to distribute. He testified that this was a large quantity of drugs, and that a person intending to use the drugs would buy a small amount. The officer had been a narcotics agent for Thomas County for one and one-half years, attended drug enforcement classes, worked on over one hundred drug cases, and was familiar with the distribution of cocaine. He testified that his experience has taught him the difference between a quantity of drugs consistent with mere possession versus a quantity consistent with an intent to distribute.

The second officer testified that, in his opinion, the amount of crack cocaine recovered was consistent with an intent to distribute. Based on his training and experience, this was “a lot” of crack cocaine. The witness had been a police officer for over twenty years, worked drug cases for seven or eight years, underwent drug enforcement training, and saw crack cocaine “thousands” of times.

The third officer similarly testified that, in his opinion, based on the quantity and the large sizes of the pieces, Jenkins intended to distribute the drugs. He explained that drug users will normally have smaller size pieces than those recovered in this case. This officer worked as a Georgia Bureau of Investigation officer for eleven years, participated in undercover drug transactions “hundreds of times,” and took classes in drug enforcement.

Because the knowledge of these officers regarding drug use and distribution was beyond that of the average layperson, the trial court did not err in admitting the testimony. See Davis, supra; Bacon v. State, 225 Ga. App. 326, 329 (483 SE2d 894) (1997); see generally Tate v. State, 230 Ga. App. 186, 188-189 (3) (495 SE2d 658) (1998).

3. Jenkins complains that the trial court erred in informing the jury at 12:20 p.m., just before deliberations began, that another case was scheduled to be tried in the same courtroom at 2:00 p.m. He argues that by making that remark, the trial court suggested that the jury had a limited amount of time in which to deliberate. Jenkins points out that the jury returned its verdict at 2:10 p.m.

The trial court did not place any pressure on the jurors to complete deliberations by 2:00 p.m. Indeed, the transcript reveals quite the contrary. After charging the jury on the law, the court noted that it was 12:20 p.m. and that it would allow the jury to decide whether:

to start deliberating now or come back at 2:00 [p.m.] after lunch and deliberate. We’ve got another trial starting at 2:00, so we’re going to be here anyway. So, if you want to start deliberating now, that’s fine. If you want to wait and come back at 2:00 [p.m.] and start your deliberations at that time, that will be fine too.

Decided September 20, 1999.

Alexander & Vann, Marcus R. Todd, for appellant.

J. David Miller, District Attorney, Mark E. Mitchell, Assistant District Attorney, for appellee.

The trial court informed the jurors that they could wait until 2:00 to start deliberating. Moreover, Jenkins has failed to show by the record that the jurors rushed through deliberations so as to comply with an instruction to reach a verdict by 2:00 p.m. This enumeration presents no grounds for reversal. See generally Harris v. State, 263 Ga. 526, 528 (6) (435 SE2d 669) (1993); Williams v. State, 205 Ga. App. 445, 447-448 (3) (422 SE2d 309) (1992).

Judgment affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A1544.
    BRANTON v. THE STATE.
    (522 SE2d 694)
   Miller, Judge.

Convicted of trafficking in cocaine, Roscoe Branton asserts as error the denial of his motion to suppress. He argues the search warrant was not supported by probable cause. Because the search warrant was supported by probable cause, we affirm.

To determine the existence of probable cause for the issuance of a search warrant, a court applies the “totality of the circumstances” analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). The sufficiency of an affidavit should be reviewed “to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (Citation and punctuation omitted.) Id. at 238-239. The task of the issuing magistrate is to make a common sense decision whether, given all of the circumstances presented in the affidavit, including the veracity and basis of knowledge of the informant, there is a fair probability that evidence or contraband will be found in a particular place. Id. at 238; State v. Stephens, 252 Ga. 181, 182 (311 SE2d 823) (1984).

The affidavit of the investigating officer, Lt. Boyette, contained the following information: He was contacted by Lt. Tanner, who received information from Lt. Stalvey that an informant, proven to be reliable to Lt. Stalvey in the past, discovered a package between the mattresses in a hotel room. Lt. Boyette then met with the informant who told him that within the last hour, he saw an “object approximately 6X8X2 [inches] wrapped in brown paper then wrapped with white adhesive tape with one end exposed.” The informant also stated that he tasted the white powder in the package and that it tasted very bitter. Lt. Boyette noted that in his experience, the bitter taste was consistent with that of cocaine and the packaging described by the informant was consistent with the packaging of cocaine-type products. The informant gave a detailed description of the occupants of the room and volunteered to retrieve the package, but Lt. Boyette advised him that a search warrant would be needed. Lt. Boyette also noted receiving information that individuals from Jacksonville, Florida, were bringing large quantities of cocaine into the Waycross area. At the officer’s request, the informant obtained the hotel registration information, which revealed the room was registered to Branton’s wife who was driving a vehicle displaying a Florida tag.

Branton contends the statement of the informant’s reliability is hearsay and rumor because it was made by Lt. Stalvey to Lt. Tanner and adopted by the affiant, Lt. Boyette. But observations by fellow police officers in a common investigation are a reliable basis for a warrant applied for by one of their number, even if hearsay upon hearsay. Lewis v. State, 234 Ga. App. 873, 876 (1) (b) (508 SE2d 218) (1998); Deal v. State, 199 Ga. App. 184, 185 (1) (404 SE2d 343) (1991).

The statement that the informant is reliable, standing alone, is conclusory and cannot support a substantial basis for the magistrate to determine the existence of probable cause. Pailette v. State, 232 Ga. App. 274, 277 (501 SE2d 603) (1998). However, the magistrate could determine the informant’s reliability through other indicia. Clark v. State, 212 Ga. App. 486, 488-489 (441 SE2d 885) (1994) (informant demonstrated reliability by meeting with investigator and participating in controlled purchase). Other indications of this informant’s reliability or veracity included (a) his meeting face-to-face with Lt. Boyette, which showed the informant’s willingness to put himself on the line and also gave the officer an opportunity to evaluate his demeanor and credibility; (b) his willingness to retrieve the package of suspected cocaine, which reflected a strong conviction that the cocaine was in the hotel room; (c) his obtaining the registration information for Branton’s room, which showed he was not distancing himself from police and thus honestly believed in the information; and (d) Lt. Boyette’s having received information that individuals from Jacksonville were bringing large quantities of cocaine into the area, which comported with Branton’s automobile displaying a Florida tag.

Moreover, a deficiency in a showing of “veracity or reliability” may be compensated for by a strong showing as to “basis of knowledge.” Gates, supra, 462 U. S. at 233. The informant’s basis of knowledge is more than substantial. Based on what he saw within an hour of speaking to the officer, he not only described the precise location of the suspected package of cocaine, he described the approximate size of the package, how it was wrapped, and the taste of its contents. The informant also gave a detailed description of Branton and his wife.

Decided September 20, 1999.

Lane & Crowe, Grayson P. Lane, for appellant.

Richard E. Currie, District Attorney, James D. Lamh, Assistant District Attorney, for appellee.

Because of the Fourth Amendment’s strong preference for searches conducted pursuant to a warrant, the resolution of close questions on the determination of probable cause for a warrant should favor validating the warrant. Gates, supra, 462 U. S. at 236; Hand v. State, 206 Ga. App. 501, 503 (3) (426 SE2d 18) (1992); Adams v. State, 201 Ga. App. 12, 14 (2) (410 SE2d 139) (1991); Mincey v. State, 180 Ga. App. 898, 900 (1) (350 SE2d 852) (1986). Under the totality of the circumstances, evidence supported the magistrate making a common sense decision that there was a fair probability that contraband would be found in Branton’s hotel room. The trial court correctly denied the motion to suppress.

Judgment affirmed.

McMurray, P. J., concurs. Ruffin, J., concurs in judgment only.


author: McMurray, Presiding Judge.

text:
    A99A2009.
    WILLETT v. THE STATE.
    (522 SE2d 698)
   McMurray, Presiding Judge.

Following a jury trial, defendant was convicted of a single count of theft by shoplifting in violation of OCGA § 16-8-14. On appeal, she contends the trial court erred in admitting similar transaction evidence sufficiently distinguishable from the offense alleged so as to prejudice the jury against her. Held:

At-trial, the evidence pertinently revealed that defendant and an elderly man in a wheelchair entered a Wal-Mart Super Store in July 1998. Once inside, they separated, and the defendant walked to the housewares and jewelry departments where she selected a knife set packaged in a blister pack and a watch, respectively. The defendant slipped these items into her purse and departed the store without paying. After passing the check-out, she rendezvoused with the gentleman with whom she had entered the store. He leaned forward in his wheelchair, and the defendant placed her purse behind his back. After retrieving the items taken from the older man, store employees apprehended the defendant in a nearby store.

Pursuant to its rulings at a pretrial hearing conducted under Uniform Superior Court Rule 31.3 (B) and immediately before trial, the trial court also admitted evidence of two previous convictions for shoplifting upon defendant’s pleas of guilty and the testimony of store security personnel identifying the defendant as the perpetrator and describing the circumstances attendant to each. These similar transactions were admitted for the purpose of showing intent, bent of mind and modus operandi. As to the first prior offense, Officer Crane testified that in March 1998 he observed defendant enter the K-Mart store at which he worked, walk to the hardware department, slip “a supply valve, a shower head and a couple of faucet handles” into her purse and depart the store without paying. Regarding the second conviction, Dan Johnson next testified that in April 1998 he observed the defendant and a man enter the Lowe’s store where he was employed. Defendant and the man proceeded to the seasonal department. There, the man slipped a “chain saw blade and a chain saw sharpener” into defendant’s open purse held open by her, and the two separated. Defendant was thereafter apprehended on the sidewalk outside after leaving the store without paying for the items.

Contrary to defendant’s contentions, the trial court did not err in admitting evidence of prior similar transactions.

“Prior crime evidence is admissible when the State satisfactorily makes the three affirmative showings required by Williams v. State, 261 Ga. 640 (2) (b) (409 SE2d 649) (1991). See also Uniform Superior Court Rule 31.3 (B). ‘The independent act does not have to be identical in character to the charged offense if there is a sufficient connection between them.’ Smith v. State, 264 Ga. 46, 47 (2) (440 SE2d 188) (1994).” Spencer v. State, 268 Ga. 85, 86 (2) (485 SE2d 477) (1997).

Brundage v. State, 231 Ga. App. 478, 480 (2) (499 SE2d 408). Further, when, as here, the State is entering similar transaction evidence to prove bent of mind or course of conduct,

it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. See Harris v. State, 222 Ga. App. 52, 53 (2) (473 SE2d 232). Similar transaction evidence can be introduced to prove bent of mind when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense.

Decided September 20, 1999

Hall, Booth, Smith & Slover, James E. Looper, Jr., for appellant.

Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393).

The shoplifting charge in the case sub judice and those of which defendant was convicted approximately five months earlier involved theft by shoplifting in large retail establishments in the same geographic area, a Whitfield County Wal-Mart Super Store in the instant action and a K-Mart and a Lowe’s store in the neighboring Chattanooga, Tennessee area with respect to defendant’s shoplifting episodes in March and April 1998. In each instance, defendant selected small items, concealed them in her purse, and exited the store without paying. Only with respect to the earliest of the prior offenses is a second person not involved. These circumstances permitted the trial court’s finding that the evidence of similar transactions admitted was relevant to show defendant’s bent of mind in the case sub judice. Andrews v. State, 143 Ga. App. 791 (2) (240 SE2d 142); compare King v. State, 230 Ga. App. 301, 303 (496 SE2d 312) (similar transaction evidence inadmissible where there are “no significant similarities between . . . offenses”). The relevance of the instant similar transactions evidence and limiting instruction of the trial court properly circumscribing the purposes for which such evidence could be used sufficiently outweighed any prejudicial impact on defendant’s character. Cantrell v. State, 210 Ga. App. 218, 221 (2) (435 SE2d 737); Andrews v. State, 143 Ga. App. 791, supra. That approximately five months elapsed between the offense charged and defendant’s prior shoplifting crimes is insufficient to affect the relevance of her prior acts. See Childs v. State, 202 Ga. App. 488, 489 (1) (414 SE2d 714); see also Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252); Howard v. State, 228 Ga. App. 775, 776 (492 SE2d 683). Under these circumstances, we find no abuse of discretion in the admission of the evidence of similar transactions.

Judgment affirmed.

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

Kermit N. McManus, District Attorney, Matthew A. Rankin, Assistant District Attorney, for appellee.

       The trial court granted the State’s motion to present evidence of similar transactions at its USCR 31.3 (B) hearing on December, 4, 1998, and, on December 11, 1998, denied defendant’s motion in limine seeking reconsideration of the earlier ruling.

       The trial court charged the jury:
      [T]he [defendant] is not on trial for any prior act, and any evidence as to any such is to he considered only for the limited purpose of showing in this particular situation her motive, intent, bent of mind or her method of operation, not for any other reason.


text:
    A99A1614.
    GOOD OL’ DAYS COMMISSARY, INC. v. LONGCRIER FAMILY LIMITED PARTNERSHIP I.
    (522 SE2d 249)
   McMurray, Presiding Judge.

Appellee-plaintiff Longcrier Family Limited Partnership I (the “Partnership”) commenced this dispossessory action to obtain possession of certain real property it owned (the “Premises”) from the appellant-defendant Good OF Days Commissary, Inc. (the “Commissary”).

Title to the Premises was deeded to Jane C. Longcrier in 1957 by Lester C. Hardeman. Subsequently, Longcrier leased the Premises to her parents, William M. Cason and Ruth R. Cason, for a term of 40 years from April 1,1963, or during their lifetimes. The lease provided that “[s]hould both [the Casons] die before the expiration of the forty (40) year period of this lease, then said lease shall terminate immediately.” The lease further authorized the Casons to sublease all or a portion of the Premises.

In 1977, the Casons sublet their interest in the Premises to the Commissary, then known as P.M.A., Inc., by a document denominated “Lease Contract.” The sublease specified that the relationship between the parties was that of landlord and tenant and provided that “no estate shall pass out of Landlord. Tenant has only a usufruct, not subject to levy and sale, and not assignable by Tenant except by Landlord’s consent.”

William M. Cason died on January 23, 1981. Ruth R. Cason died approximately 16 years later on December 13, 1996. By letter dated January 15, 1997, counsel for Longcrier notified the Commissary that the Casons’ lease had terminated upon Mrs. Cason’s death, terminating the Commissary’s rights in its sublease from the Casons. The letter further provided that Longcrier was willing to discuss leasing the Premises to the Commissary directly on commercially reasonable rental terms. Negotiations followed but ended unsuccessfully 13 months later.

On or about February 5, 1998, Longcrier conveyed her interest in the Premises to the Partnership by a recorded quitclaim deed and assigned her claims against the Commissary to the Partnership by assignment agreement. Thereafter, the Partnership demanded possession of the Premises from the Commissary.

The Partnership filed the instant dispossessory action upon the ground that the Commissary had been a tenant at sufferance on the Premises from December 14, 1996, and refused to relinquish possession of the Premises despite demands to do so. The Commissary filed its answer and counterclaim which, in addition to asserting its denials, defenses, and a counterclaim for malicious use and abuse of civil process, admitted that it was in possession of the Premises and had failed and refused to deliver possession thereof.

Thereafter, the Partnership gave further demand for possession of the Premises, and without prejudice to its claim that the Commissary was its tenant at sufferance, provided the Commissary 60 days notice of termination. After such notice of termination expired, the Partnership again demanded possession of the Premises and amended its affidavit in the instant action to assert that the Commissary was continuing to hold over on the Premises as a tenant at sufferance or a tenant at will and was further indebted to the Partnership for the reasonable value of rent accrued from the date the original affidavit was filed.

The trial court granted partial summary judgment to the Partnership on the issue of possession, implicitly denying the Commissary’s oral motion to dismiss made at the hearing on the Partnership’s motion for partial summary judgment, and the Commissary appeals. Held:

1. The Commissary contends the trial court erred in granting partial summary judgment to the Partnership, arguing the Partnership, as Longcrier’s successor in interest, is not the true owner of the Premises. In this regard, the Commissary challenges the validity of the Partnership’s title in the Premises asserting: Longcrier held title to the Premises in constructive trust for the Casons only; equitable title to the Premises resided in the Casons for their unrenounced exercise of total dominion and control over the Premises; Longcrier held a reversionary estate in the Premises under OCGA § 44-6-60 in that the duration of the lease as in excess of five years “presumptively” made it an estate for years; and Longcrier held less than a life estate in the Premises because she leased the Premises to the Casons “specifically” authorizing them to sublease the Premises beyond the term of the lease, she “accepted” the Commissary’s January 1997 rental payment, ratifying a sublease of the Premises beyond the term of the lease, and she was bound to the term of the sublease under OCGA § 44-7-3 in that the Casons had entered into the sublease as her agents. These arguments are without merit. “[C]laimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under OCGA § 44-7-50 et seq. . . .” (Citations and punctuation omitted.) Dodson v. Farm & Home Sav. Assn., 208 Ga. App. 568, 569 (430 SE2d 880); see also OCGA § 44-7-9. It is not germane to a dispossessory proceeding to allege that the contract under which the plaintiff claims to derive title from the defendants is void and should be canceled. Womack v. Columbus Rentals, 223 Ga. App. 501, 503 (3) (478 SE2d 611).

The Partnership initially brought the instant summary dispossessory action asserting that the Commissary is a tenant at sufferance for having failed and refused to comply with its demand for possession of the Premises. In order to prevail thereon, the Partnership had the burden of establishing: (1) that the parties stood in the relation of landlord and tenant, Branch v. Wesav Financial Corp., 198 Ga. App. 347 (401 SE2d 569); and (2) that a demand for possession had been made of the tenant. Booker v. Trizec Properties, 184 Ga. App. 782, 783 (2) (363 SE2d 13), cert. denied, 184 Ga. App. 909.

“Although the relationship of landlord and tenant must exist before a dispossessory hearing can be held under OCGA § 44-5-50 et seq.[,] . . . the provisions of OCGA § 44-7-50 . . . are clearly satisfied when the relationship between the parties is that of legal title holder and tenant at sufferance. . . . Appellant’s legal right to possession ended when appellee became the legal title holder and appellant, as a tenant at sufferance, was subject to being summarily dispossessed.” Stevens v. Way, 167 Ga. App. 688, 690 (5) (307 SE2d 507).

Browning v. Fed. Home Loan Mtg. Corp., 210 Ga. App. 115, 117 (3) (435 SE2d 450); see also Rutledge v. Colonial Financial Svcs., 173 Ga. App. 662, 663 (2) (327 SE2d 791) (“A showing that one party is the legal title holder of the property and the other party is a tenant at sufferance satisfactorily establishes [the landlord-tenant] relationship.”).

In its brief on appeal, the Commissary admits that the Partnership holds legal title to the Premises. Such title in the Premises is also established in the record by certified copies of deeds reflecting Longcrier’s acquisition of the Premises on January 18, 1957, and her later transfer thereof to the Partnership on February 5, 1997. See Bacon v. Howard, 152 Ga. 616, 617 (2) (110 SE 888).

The Commissary’s status as a tenant at sufferance is established in the record as a matter of law. The Casons’ interest in the Premises in the nature of a leasehold life estate, terminated upon Mrs. Cason’s death on December 13, 1996. Raulerson v. Smithwick, 263 Ga. 805, 806 (440 SE2d 164) (life estate granted to two persons for their joint lives terminates upon death of survivor, unless granting instrument expressly provides for earlier termination). As a subtenant of joint life tenants, the Commissary’s interest in the Premises was likewise terminated and rendered void after Mrs. Cason’s death, because, unless expressly granted such authority, the life tenant has no power to lease the property beyond his own term. Phillips v. Sexton, 243 Ga. 501, 504-505 (255 SE2d 15). Since the Commissary remained in the Premises without title or interest therein after Mrs. Cason’s death, its claim was automatically converted to a tenancy at sufferance, without any title or interest in the property. Dwyer v. McCoy, 236 Ga. App. 326, 328 (2) (512 SE2d 70); Fallin v. Rule, 194 Ga. App. 865, 866 (392 SE2d 314).

Decided September 2, 1999

Reconsideration denied September 21, 1999

Richard A. Gordon, for appellant.

The undisputed evidence is that the Partnership made demand for possession of the Premises and that the Commissary refused. Moreover, the Partnership was not obligated to make formal demand for possession of the Premises, since the Commissary’s conduct evidenced an intent not to vacate the Premises without resort to the judicial process. See Henderson v. Colony West, Ltd., 175 Ga. App. 676, 678 (2) (332 SE2d 331).

On motion for summary judgment, the burden is on the movant, [the Partnership], to establish the absence of any genuine issue of material fact and its right to recover as a matter of law. OCGA § 9-11-56 (c); [Kinney v. American Mfg. Mut. Ins. Co., 189 Ga. App. 882, 883 (377 SE2d 900)]. The party opposing the motion, [the Commissary], is entitled to all favorable inferences and the benefit of every doubt, and the evidence is construed most strongly in its favor.

Dixieland Truck Brokers v. Intl. Indem. Co., 210 Ga. App. 160, 163 (3) (435 SE2d 520).

When the undisputed material facts are viewed in the light most favorable to the Commissary, we conclude the trial court properly granted partial summary judgment to the Partnership on the issue of possession.

2. In light of our disposition of Division 1, the remaining contentions have been rendered moot. OCGA § 5-6-48 (b) (3).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

Long, Aldridge & Norman, Robert A. Bartlett, David N Stern, for appellee.

       Jane C. Longcrier has since died.

       The Partnership does not seek summary judgment as to the total amount of rents which are due and owing by the Commissary.


author: Blackburn, Presiding Judge.

text:
    A98A0480.
    FOWLER et al. v. CITY OF MARIETTA.
    (522 SE2d 711)
    Decided September 21, 1999.

      Moore, Ingram, Johnson & Steele, John H. Moore, J. Kevin Moore, for appellants.

      Haynie & Litchfield, Douglas R. Haynie, for appellee.
   Blackburn, Presiding Judge.

In City of Marietta v. Edwards, 271 Ga. 349 (519 SE2d 217) (1999), the Supreme Court reversed Division 1 of this Court’s opinion in Fowler v. City of Marietta, 233 Ga. App. 622 (504 SE2d 726) (1998). Therefore, we vacate that Division of our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Johnson, C. J., McMurray, R J., Andrews, P. J., Smith, Eldridge and Ellington, JJ, concur.


author: Phipps, Judge.

text:
    A99A0845.
    HARDY v. THE STATE.
    (522 SE2d 704)
   Phipps, Judge.

George Washington Hardy was tried before a jury and found guilty of kidnapping with bodily injury, kidnapping, armed robbery, aggravated assault (three counts) and burglary (two counts). On appeal, Hardy asserts 15 enumerations of error, including the trial court’s denial of his amended motion for new trial.

The following facts were presented at trial. On December 24, 1996, Matilde Nava was in her apartment with her three children, including Sergio (age three), and a neighbor, Santa Gonzales. At that time, she was separated from her husband, Chris Nava.

Two men came to the door of Ms. Nava’s apartment asking for Chris Nava. Gonzales told the men that Chris did not live there. The two men left and then returned ten to fifteen minutes later. Gonzales answered the door. One of the two men (whom Ms. Nava identified as Hardy) pushed his way through the door with a gdn in his hand, uttering profanities. Ms. Nava testified that Hardy put a gun to Sergio’s head and asked for money. When Ms. Nava responded that she did not have any money, Hardy took her to the bedroom where he took the money in her wallet, her bracelet from her arm, and money and a necklace from the top of the television. Hardy then returned Nava to the living room and took Gonzales into the bedroom at gunpoint.

Gonzales testified that one of the men pushed her to the bed, causing her to fall backwards on the floor and bruise her back. She stated that when she stood up he pushed her back onto the bed and removed her pantyhose and girdle. While she was lying on the bed, he said “I’m going to f— you.” The assailant backed off when Gonzales told him she had cancer, but told her “I’m going to f— your friend.”

Hardy then took Nava back to the bedroom, pushed her to the bed and demanded to see her “panocha,” a Spanish term for vagina. Nava stated that Hardy forced her legs apart, pushed her panties to the side and touched her vagina with the gun. She then kicked him “in his part.” While Hardy and Nava were struggling, the telephone rang and Nava told Hardy that it was the home alarm. At that point or shortly thereafter, both men left the apartment.

Hardy’s accomplice, who did not participate in the incidents outlined above, confirmed that Hardy pushed his way into the apartment with a gun in his hand, asked the two women for money and jewelry, and took each of the women into the bedroom separately. He did not see what went on in the bedroom between Hardy and either woman.

Hardy testified that he had given Chris Nava money to buy drugs earlier that day, and that he went to the apartment that evening to meet Chris and pick up the drugs. Hardy pulled out his gun on the way into the apartment and asked if Chris was there. When the women said no, he assumed they were lying and proceeded to search the bedroom and another room. Hardy testified that he and his accomplice left the apartment without taking any money or jewelry. He denied pointing his gun at a child, making anyone move at gunpoint or harming anyone. Hardy admitted he went to the apartment with the intent of scaring Chris Nava in order to obtain his drugs but denied any intent to scare anyone else.

Hardy testified that he spoke to a detective about the incident prior to his arrest and told him that a man named Andy must have done it so they would arrest Andy. The jury also heard a tape of Hardy’s confession, which was ruled voluntary by the trial court after a Jackson-Denno hearing was held outside the presence of the jury. On tape, Hardy admitted that the previous statement made to the detective was false. Hardy stated that he went to the apartment on December 24, 1996, to take drugs from Chris Nava and that he intended to use his gun to scare him if necessary. Hardy also stated that when he was inside the apartment, he took the women into the bedroom one at a time. He denied taking money or jewelry from the women, denied pointing a gun at a child and denied asking to see either woman’s vagina or ripping off anyone’s pantyhose.

Hardy testified that he confessed so he would be locked up because he was afraid that Chris Nava and other men were going to kill him. During the Jackson-Denno hearing, Hardy’s attorney attempted to have the confession suppressed based on Hardy’s testimony that he was intoxicated at the time and did not understand fully his Miranda rights.

We address Hardy’s separate enumerations of error as follows.

1. Hardy contends the judge abused his discretion by requiring him to wear a shock belt at trial, but did not raise the issue until the filing of his amended motion for new trial. Testimony given at the motion for hew trial hearing supports a finding that the shock belt was not visible to the jury. A shock belt is prejudicial to a defendant only when it is visible to the jury. Brown v. State, 268 Ga. 354, 359 (7) (490 SE2d 75) (1997); see Young v. State, 269 Ga. 478, 479 (2) (499 SE2d 60) (1998). Thus, the judge did not abuse his discretion by requiring Hardy to wear a shock belt at trial or in denying Hardy a new trial on this ground.

Hardy also claims ineffective assistance of counsel based on his trial counsel’s failure to object to the use of the shock belt at trial. Because we find that Hardy was not prejudiced by the use of the shock belt, this claim also fails. See Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

2. Hardy contends the judge erred by sustaining the prosecutor’s objection to a question posed by defense counsel without requiring him to state a basis on the record. Because the basis for the objection was apparent from the judge’s ruling on another objection by the prosecuting attorney immediately preceding the one at issue, we find no error.

3. Hardy contends the judge erred in allowing the prosecutor to impeach him with statements made during the Jackson-Denno hearing. Hardy objects to the prosecutor’s reference to the Jackson-Denno testimony because he contends it was not inconsistent with his other statements.

We find, however, that the Jackson-Denno testimony did include prior contradictory statements and was therefore admissible at trial. See Brown v. State, 226 Ga. App. 140 (486 SE2d 370) (1997). Hardy’s Jackson-Denno testimony that he was so drunk he did not know what he was doing contradicts his trial testimony that he purposely lied in order to be arrested. We find no error in admitting this testimony or in the failure to object to its admission.

4. Hardy contends the judge erred in failing to give curative instructions in several instances.

(a) During the trial, one of the jurors saw the criminal trial calendar, which included Count 9 (possession of a firearm by a convicted felon) as one of the charges against Hardy. Hardy contends that curative instructions should have been issued to avoid any improper influence on the jury. There is no evidence that any of the jurors knew what the ninth count was or that they discussed it substantively. In addition, the juror who saw the calendar stated during questioning outside the presence of the other jurors that his ability to be fair and impartial was not affected. As a result, the failure to give curative instructions was not error.

(b) At trial, Hardy’s counsel successfully moved to have Count 9 redacted from the original indictment. Hardy’s counsel reviewed the redacted indictment before it went to the jury and determined that it had been redacted so that he could not read any part of Count 9. Nine months later, at the motion for new trial hearing, Hardy’s trial counsel reexamined the redacted indictment and was able to read through the correction fluid by holding it up to the light.

Hardy contends the judge erred in failing to give curative instructions regarding the removal of Count 9 from the indictment. Because there is no evidence that Count 9 was visible at the time of trial, when the jury had access to the indictment, we find that no further action by the judge or trial counsel was necessary.

(c) Hardy contends the judge should have issued curative instructions regarding the shock belt. Without evidence that any of the jurors saw the shock belt, curative instructions would have only informed the jury that defendant was being restrained and thereby emphasized the alleged error. Griggs v. State, 181 Ga. App. 618, 619 (2) (353 SE2d 97) (1987).

(d) The same juror who saw the court calendar also saw Hardy in the sheriff’s patrol car one morning before trial. Hardy claims the judge should have asked the juror if he discussed seeing Hardy with any of the other jurors and should have instructed him not to let it influence his decision. Because the juror testified only that he saw Hardy in the patrol car and did not mention seeing him wearing shackles, there was no reason to inquire about discussions with other jurors. When asked if the event would cause him not to be completely fair and impartial in the case, the juror said no. No further action was required by the judge or trial counsel.

5. Hardy asserts ineffective assistance of counsel based on his trial counsel’s withdrawal of a request to charge that supplied the standard for voluntariness of post-arrest statements. At the motion for new trial hearing, Hardy’s trial counsel testified that he withdrew the request because there was no credible evidence that Hardy’s Miranda rights had been violated or that Hardy’s statements were not voluntary.

To establish ineffectiveness of trial counsel, Hardy must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Strickland, supra at 687. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Id. at 687-689. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’” (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

Because Hardy’s trial counsel had unsuccessfully attacked the voluntariness of the post-arrest statements during the JacksonDenno hearing, his belief that there was no credible evidence that the statements were not voluntary is reasonable. Under the circumstances, the decision to withdraw the charge did not amount to the deficient performance necessary to meet the Strickland standard for showing ineffective assistance of counsel.

6. Hardy contends the judge’s charge on impeachment was improper because it included a reference to impeachment by prior conviction of a crime of moral turpitude. He claims that although no proof was offered that he was a convicted felon, the front of the indictment, which he claims was improperly redacted before being presented to the jury, and the court’s calendar of cases improperly indicated that he was a convicted felon and the charge may have led the jury to believe that they were authorized to disregard Hardy’s testimony.

The jury charge included the following instruction on the methods of impeachment:

A witness may be impeached in several ways. One is by disproving the facts to which the witness testified. Another is by proof that the witness has been convicted of a crime involving moral turpitude. And, finally, by proof of contradictory statements previously made by the witness as to matters relevant to the witness’ testimony and to the case.

Immediately following this charge, the judge gave instruction on the use of good character evidence, how prior contradictory statements may be used, and how impeachment may be used to disprove facts. No further reference was made to impeachment by proof of conviction of a crime of moral turpitude.

We agree that the judge erred in including a charge on impeachment by proof of conviction of a crime of moral turpitude because Count 9, possession of a firearm by a convicted felon, was not part of this case and no certified copy of any such conviction was ever introduced into evidence at trial. See Ledesma v. State, 251 Ga. 885, 888 (4) (311 SE2d 427) (1984). But Hardy is not entitled to a new trial “simply because the charge on that method of impeachment was not authorized by the evidence and was, therefore, erroneously given in this case.” Sultenfuss v. State, 185 Ga. App. 47, 50 (5) (363 SE2d 337) (1987). Giving “an unauthorized charge on an unavailable method of impeachment is generally harmless error. [Cits.]” Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995).

The erroneous portion of the charge was no more than a passing general reference that was followed by extensive instructions regarding the two viable methods of impeachment, thus mitigating any harmful effect. Sultenfuss, supra at 51; Nunery v. State, 229 Ga. App. 246, 247 (2) (493 SE2d 610) (1997). The applicable standard for harmless error in jury instructions as applied to criminal cases is whether it is highly probable that the error did not contribute to the verdict. Id. Considering the charge as a whole, we conclude that the erroneous charge was harmless.

7. Hardy objects to the judge’s use of a preprinted verdict form, which included the following:

Possible verdicts:

(1) Guilty, or (2) Not Guilty

We, the jury, find the Defendant_.

The jury completed the form by filling in Guilty or Not Guilty under each count listed.

Hardy relies on Smith v. State, 249 Ga. 228, 232 (5) (290 SE2d 43) (1982), in which the court noted that particular attention should be given when using preprinted verdict forms, “lest the jury draw an inference, however unfounded, of pre-disposition on the part of the trial judge.” Recognizing that there was no such evidence in that case, the court stated that some jury could possibly “perceive the antecedence of the word ‘guilty’ over the words ‘not guilty’ to be expressive of the view of the court” and stated that it would be safer to omit the words guilty or not guilty entirely. Id.

Recently, in Rucker v. State, 270 Ga. 431, 435 (5) (510 SE2d 816) (1999), the Supreme Court of Georgia ruled that merely listing the option of “guilty” prior to “not guilty” on a preprinted verdict form does not render the verdict form misleading so as to constitute reversible error. The standard applied in Rucker is whether

the form would mislead jurors of reasonable understanding, or the trial court erroneously instructed the jury on the presumption of innocence, the State’s burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form.

Id. See also Harris v. State, 202 Ga. App. 618, 621 (5) (414 SE2d 919) (1992) (on its face, preprinted verdict form containing words “guilty” and “not guilty” not misleading, inaccurate or suggestive of a verdict).

Applying the Rucker standard, we find that the preprinted verdict form in this case was not misleading as it clearly set out the available options and required the jury to write in “guilty” or “not guilty” for each count. Further, there is no evidence that the trial judge erroneously instructed the jury on the presumption of innocence, the State’s burden of proof, the possible verdicts that could be returned, or how the verdict should be entered on the printed form. We therefore find no error in the trial court’s use of a preprinted verdict form.

8. Hardy contends the trial court erred in denying his amended motion for new trial on numerous grounds, most of which have been disposed of above. His only remaining claims challenge the sufficiency of the evidence as to Count 1 (kidnapping of Santa Gonzales with bodily injury), Count 2 (kidnapping of Matilde Nava), Count 3 (armed robbery of Matilde Nava), Count 4 (assault with intent to rape Matilde Nava), Count 5 (assault with intent to rape Santa Gonzales) and Count 6 (aggravated assault upon Sergio Nava).

On appeal, we do not weigh evidence or resolve conflicts in trial testimony when the sufficiency of the evidence is challenged. Dismuke v. State, 261 Ga. 254 (1) (403 SE2d 812) (1991). Instead, the evidence must be viewed in the light most favorable to the prosecution to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, we hold that the evidence was sufficient to sustain the convictions.

“A person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.” OCGA § 16-5-40 (a). Hardy contends he could not have abducted someone while allowing her to remain in her own house. However, movement for a short distance satisfies the asportation element of the crime. See Ellis v. State, 211 Ga. App. 605, 608 (2) (440 SE2d 235) (1994). In Ellis, the forcible movement of the victim from her den to her bedroom was sufficient evidence that she was forcibly abducted and held against her will. The same movement by Hardy of Nava and Gonzales at gunpoint, including the injuries sustained by Gonzales, provide sufficient evidence to support the kidnapping counts.

Decided September 21, 1999

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Gail M. Travillian, Assistant District Attorney, for appellee.

Hardy contends the armed robbery count must fail because his accomplice never saw him with the victim’s money or jewelry. Armed robbery occurs when someone, with an intent to commit theft, takes the property of another from the person or the immediate presence of another by use of an offensive weapon. OCGA § 16-8-41 (a). Nava’s testimony that Hardy took the money in her wallet, her bracelet from her arm, and money and a necklace from the top of the television in the next room is sufficient to support the verdict. Collier v. State, 232 Ga. 282, 283 (1) (206 SE2d 445) (1974).

Aggravated assault occurs where a person commits an act that places another in reasonable apprehension of immediately receiving a violent injury (assault), which is aggravated by (1) an intention to rape or (2) use of a deadly weapon. OCGA §§ 16-5-20 (a) (2); 16-5-21 (a) (1), (2). Hardy contends the “intent to rape” element of this crime has not been met because sexual conquest was not his motivation and a desire to see someone’s private part is not the same as the desire to penetrate it. The evidence that Hardy held both women at gunpoint and attempted to remove or did remove some of their underclothes is sufficient to support the convictions for assault with intent to rape. See Miller v. State, 228 Ga. App. 754, 755 (1) (492 SE2d 734) (1997); Middlebrooks v. State, 156 Ga. App. 319, 320 (1) (274 SE2d 643) (1980).

Hardy claims that the evidence is insufficient to support the assault with a deadly weapon count because he testified that he did not point a gun at Sergio Nava and the child did not testify. Viewing the evidence (including testimony that Hardy put a gun to Sergio Nava’s head and asked for money) under the appropriate standard, we conclude that it was sufficient to support the conviction on this count.

Judgment affirmed.

Blackburn, P. J., and Ellington, J., concur.

       Gonzales testified that she was not able to identify Hardy at trial because he was wearing a hooded sweatshirt on the night in question.


author: Ellington, Judge.

text:
    A99A1140.
    GEORGIA-PACIFIC CORPORATION v. WILSON.
    (522 SE2d 700)
   Ellington, Judge.

The discretionary appeal in this workers’ compensation case was granted to determine if the superior court erred in reversing an award of the State Board of Workers’ Compensation. For the following reasons, we reverse.

In March 1996, after a full hearing, the administrative law judge determined that Wilson sustained a compensable injury in February or March 1994 “when the repetitive motion required by her trim saw operating job caused her to acquire [carpal] tunnel syndrome.” Notwithstanding this injury, from March 1994 to October 1994, Wilson continued to perform an unrelated part-time job with another employer in which she cleaned offices five nights per week for four hours each night. In reaching a decision to limit benefits, the ALJ noted that he did “not find credible [Wilson’s] assertions that she could not perform the job duties [offered to her by Georgia-Pacific].” Nevertheless, on March 15, 1996, the ALJ directed Georgia-Pacific to pay reasonable medical expenses and closed-end weekly benefits from February 7, 1995 through June 9, 1995, benefits attributable to corrective surgery performed on Wilson’s right wrist for carpal tunnel syndrome. The ALJ specifically found that “any continuing problem the employee has in her wrists ... is unrelated to her compensable injury.”

About a year and a half after this award, Wilson requested a change in condition hearing to seek a resumption of income benefits, beginning on and continuing from March 6, 1997. The ALJ, who heard the witnesses and sifted through the evidence, was the same judge who presided at the previous hearing. He determined that Wilson had recovered from her right wrist surgery not later than June 9, 1995. Although Wilson apparently did have reflex sympathetic dystrophy (“RSD”), the ALJ decided that the cause or origin of this RSD remained unknown. He specifically determined that there was no evidence persuasively linking the RSD to the compensable injury. The ALJ noted, “I find that none of the medical evidence has shown that the condition in the employee’s hands since the date of the last hearing is connected to her workers’ compensation injury.” The judge further determined:

I have found that the physical condition that the employee has is unrelated to her compensable injury. Thus, if her depression is caused by her physical condition, I find that it is not related to the compensable injury. I find support from Dr. Nagelberg’s credible opinion.

The ALJ found that Wilson failed to prove the requisite linkage between her original injury and the later-appearing RSD or that her psychological problems were not attributable to non-injury-related factors. Based on these findings, the ALJ refused to find a change in condition and denied the claim for medical expenses.

The appellate division examined the evidence and determined that the “findings of fact of the ALJ are supported by a preponderance of competent and credible evidence contained within the record on review.” The appellate division then adopted the award of the ALJ as its own.

Wilson appealed to the superior court. She claimed that her mental disability arose naturally and unavoidably from the carpal tunnel syndrome. She contended that she was currently disabled due to an emotional disorder which was either triggered by or exacerbated by her physical injury. She argued that the ALJ erred by failing to find that she was disabled as a result of her psychological condition and that her RSD was not related to her compensable injury.

The superior court decided that, “The fact that [her] current hand and wrist impairment has been found to be medically unrelated to her compensable injury does not establish that her current psychiatric problems were not triggered by that injury.” In examining the evidence, the court decided the question was, “whether a work-related injury was one of a series of physical mishaps which, in combination, triggered or exacerbated a mental condition that resulted in disability.” The court reversed, finding,

There is not sufficient evidence of record to sustain the administrative conclusion Appellant’s disabling emotional condition was precipitated by non-work related medical problems that affected her hands and wrists. There is uncontroverted evidence her disabling emotional condition was caused by an unbroken series of medical problems with her hands and wrists, the first of which was work related and compensable.

Enumerating three errors, Georgia-Pacific appeals that judgment.

1. Georgia-Pacific contends that the superior court erred by disregarding the “any evidence” standard of review applicable in workers’ compensation cases.

When reviewing a workers’ compensation award, the evidence must be construed in the light most favorable to the party prevailing before the appellate division. Atlas Automotive v. Wilson, 225 Ga. App. 631, 633 (1) (484 SE2d 669) (1997). When supported by any evidence, findings of fact by the Board are conclusive and binding on reviewing courts, and judges lack authority to set aside an award based on disagreement with the Board’s conclusions. Gleaton v. Hazelwood Farms, 214 Ga. App. 825, 826 (449 SE2d 170) (1994). Further, whether an employee’s inability to continue working is caused by a change in condition is a question of fact for the ALJ, and such finding of fact may not be disturbed on appeal if any evidence supports it. Columbus Intermediate Care Home v. Johnston, 196 Ga. App. 516, 518 (2) (396 SE2d 268) (1990).

As the party seeking the change in condition, Wilson bore the burden of proof on that issue. Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995); see OCGA § 34-9-104. The term “change in condition” means a subsequent “change in the wage-earning capacity, physical condition, or status of an employee” (after the date of an award). OCGA § 34-9-104 (a) (1). To obtain benefits based on a change in condition,

a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury, and has made a diligent, but unsuccessful effort to secure suitable employment following termination.

(Emphasis supplied.) Maloney, 265 Ga. at 828. Thus, Wilson bore the burden of proving that her alleged change in condition was proximately caused by her previous compensable injury, the carpal tunnel problem in her right wrist, or that the change in condition was attributable to that injury pursuant to Maloney, supra.

The ALJ found that Wilson, who had the burden of proof, failed to establish that her psychological problems arose out of an accident in which a compensable physical injury was sustained. Compare Wilson, 225 Ga. App. at 634 (1) (major depressive disorder worsened by inability to fully recover from back injury suffered at work). A psychological injury is compensable only “if it arises ‘ “naturally and unavoidably” . . . from some discernible physical occurrence.’ [Cit.]” Southwire Co. v. George, 266 Ga. 739, 741 (470 SE2d 865) (1996).

[A] claimant is entitled to benefits under the Workers’ Compensation Act for mental disability and psychic treatment which, while not necessarily precipitated by a physical injury, arose out of an accident in which a compensable physical injury was sustained, and that injury contributes to the continuation of the psychic trauma. The physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma.

Decided September 21, 1999

Howard & Whatley, Molly M. Howard, for appellant.

Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellee.

Abernathy v. City of Albany, 269 Ga. 88-89 (495 SE2d 13) (1998).

While it is undisputed that Wilson suffers from ongoing psychological problems, the ALJ found evidence that the mental condition was the result of a multitude of factors not attributable to the compensable injury. In reaching that result, the ALJ specifically relied upon an independent medical (psychological) examination conducted by Daniel Nagelberg, Ph.D. Dr. Nagelberg found:

[S]he evidently has long-standing unresolved conflicts related to her childhood. She was obviously becoming fragile and vulnerable for a number of years prior to her work-related injury (manifested by panic attacks and driving phobia). Ms. Wilson’s depression is the result of a number of factors including chronic pain, unemployment, financial distress, inability to obtain Social Security benefits, and premorbid personality characteristics.

In concluding otherwise, the superior court relied upon other medical evidence. However, the court was not authorized to reweigh the evidence or to judge the credibility of the witnesses. Bibb County v. Short, 238 Ga. App. 291, 292 (518 SE2d 484) (1999). Rather, the findings of the Board must be affirmed by this court as well as by the superior court when the ALJ and the appellate division weigh the conflicting evidence of medical experts and credit one over the other. Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995). Since the record contains some evidence which supports the finding of the ALJ that Wilson failed to sustain her burden of establishing a change in condition, the superior court erred in substituting its own judgment and by reversing the State Board’s award. Guarantee Mut. Ins. Co. v. Wade Investments, 232 Ga. App. 328, 330 (499 SE2d 925) (1998).

2. In light of the above holding, we need not reach the remaining enumerations of error.

Judgment reversed.

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