author: Andrews, Judge. Ruffin, Judge,

text:
    A99A0210.
    BASS v. THE STATE.
    (519 SE2d 294)
   Andrews, Judge.

Carson Jackson Bass, Jr. appeals from denial of his motion for new trial after conviction of driving under the influence to the extent he was less safe to drive, contending that venue was not proven and that admission of the results of his alco-sensor and Intoxilyzer 5000 tests was error. For the reasons which follow, we affirm.

1. Viewed with all inferences in favor of the jury’s verdict, the evidence was that, on Sunday, August 31, 1997, Labor Day weekend, uniformed Officer Wright of Leslie, Georgia, was patrolling within the city limits in a marked patrol car. As he reached the city limits and was preparing to make his normal turnaround, he noticed a Ford pickup being driven by Bass on Highway 280 at 70 mph, in excess of the speed limit. Because the speeding occurred outside his jurisdiction, Wright made his usual turnaround and started back into Leslie, following the truck which slowed down as it entered the city limits. Wright continued behind the truck as it turned left onto Seabord and then left onto Bailey Avenue. Wright noticed no traffic violations to this point. As the truck turned right onto Allen Street, a two-lane road which is also Highway 118, however, it swung wide and into the oncoming traffic lane where it remained for 150 to 200 yards. At this point, Wright activated his blue lights and pulled Bass over for the improper turn at approximately 8:45 p.m.

Bass produced his license and followed Wright to the rear of his truck where Wright noticed that Bass was “more nervous than what I thought would be appropriate.” Bass was talking very fast, and his eyes were quite red. As the two talked, Wright noticed the odor of alcohol on Bass’ breath.

At this point, Wright decided to administer an alco-sensor test. Prior to doing so, he read the implied consent notice required by OCGA § 40-5-67.1 (b) (2). The alco-sensor was positive for alcohol. After waiting ten minutes, with Bass seated in his patrol car, Wright administered the test a second time to be sure it was not mouth alcohol that was registering. Bass was then transported the ten to fifteen minutes it took to get to Americus and the Sumter County Sheriff’s Office. There, Sumter County Deputy Bryant conducted the Intoxilyzer 5000 test on Bass’ breath, resulting in sequential readings of .127 and .130 at 9:29 and 9:32 p.m., respectively.

After being told of the test results, Bass did not immediately request an independent test. Approximately fifteen to twenty minutes later, however, while being booked, Bass indicated that he wanted one. Officer Wright then called Sumter Regional Hospital to inquire and informed Bass that a blood test was $120 and a urine test was $80.

Bass said he wanted a urine test, but did not have $80. A phone was available to prisoners at the sheriff’s department, and they were not limited as to the number of calls which they could make. Although Bass did make phone calls, he never told Wright that he had an ATM card or that someone could meet him at the hospital with the money and made no further mention of an independent test.

Bass was then transported back to Leslie by Officer Wright. Someone met Bass at the Leslie Police Department and posted his bond.

Bass, a landscaper in Americus, testified that he had worked outside all day clearing land that Sunday and that might have accounted for his red eyes. He then attended a dinner party by the river. While there, he drank two vodka and orange juices, each containing about four ounces of vodka. He ate a full meal and left the party around 8:30 p.m. and opined that he “shouldn’t have been drunk.”

In rebuttal, the State presented Georgia Bureau of Investigation analyst Hargett who opined that, if in fact Bass had had only the two drinks to which he testified, his blood alcohol should have been .04 when it was tested.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gilbert v. State, 262 Ga. 840 (1) (426 SE2d 155) (1993).

2. Bass contends that the State failed to prove venue in Sumter County beyond a reasonable doubt, based primarily on Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998).

While Graves does state that the filing of a not guilty plea preserves a defendant’s appellate challenge to venue,

that case also recognizes the general rule that “when the evidence is not conflicting and when no challenge to venue is raised at trial,” slight evidence will be sufficient to prove venue. Id. at 773. See also Minter v. State, 258 Ga. 629 (373 SE2d 359) (1988); Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998).

Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999).

Here, as in Frisbey, other than the entry of a not guilty plea, Bass did not contest venue in Sumter County, and there was sufficient circumstantial evidence of venue. Officer Wright, while a city officer, upon stopping any suspect, including Bass, radioed to the Sheriffs Office to let them know his location in case of trouble. Officer Wright took Bass to Americus to the Sumter County Sheriff’s Office for administration of the Intoxilyzer 5000 test, a trip of ten to fifteen minutes from the location of the stop. Sumter County Deputy Bryant administered the Intoxilyzer. When Bass indicated an interest in an independent test, Officer Wright contacted the Sumter Regional Hospital to make inquiries. This evidence of venue was sufficient. Busch v. State, 234 Ga. App. 766 (507 SE2d 868) (1998).

3. Bass contends that the trial court’s admission of the Intoxilyzer 5000 results was error because the implied consent notice was read before he was placed under arrest and not in the exact language of the statute.

(a) With regard to the latter, since the trial court’s ruling,

the legislature has amended OCGA § 40-5-67.1 (b) so that it plainly does not require a verbatim reading of the implied consent notice. In passing the amendment, the General Assembly declared, but did not codify, “that while suspects in (DUI) cases should be informed of their rights regarding the administration of chemical testing, no such suspect is entitled to a notice which tracks the exact language of the implied consent statute, so long as the substance of the notice remains unchanged.” Ga. L. 1998, p. 210, § 1. The amended OCGA § 40-5-67.1 (b), effective March 27, 1998, provides that the implied consent notice “shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.”

State v. Levins, 234 Ga. App. 739-740 (2) (507 SE2d 246) (1998).

The statute is to be applied retroactively and is applicable to the present case. See, e.g., Sheridan v. State, 236 Ga. App. 350 (511 SE2d 908) (1999).

None of the deviations complained of by Bass in any way changed the substance of the notice, and there was no error in denying the motion to suppress on this ground.

(b) Regarding the timing of the notice, Bass argues that, since Officer Wright read him the implied consent notice after he smelled alcohol on his breath but before administering the alco-sensor, he was not yet under arrest and the notice was “premature.”

Prior to trial, the trial court held a hearing on Bass’ motion in limine and to suppress regarding the Intoxilyzer and alco-sensor tests. Having heard the testimony of Officer Wright, the trial court ruled that Bass was not free to leave even before the administration of the alco-sensor tests and, therefore, the reading of the notice was done at the “time of the arrest” as required by OCGA §§ 40-5-55, 40-5-67.1 (a), and 40-6-392 (a) (4) and not before arrest.

In reviewing the trial court’s denial of Bass’ motion, we construe the evidence on the motion in favor of the trial court’s findings and judgment and adopt the trial court’s findings on disputed facts and credibility unless those findings are clearly erroneous. Frisbey, supra at 883-885 (1). Here, although Bass contends that he did not understand the trial court’s factual ruling and argues for a different factual conclusion as to the time of arrest, we do not find the trial court’s conclusion in this regard clearly erroneous. Therefore, there is no basis for this Court to reverse the trial court’s conclusion, and the Intoxilyzer results were properly admitted.

4. Finally, Bass contends that the trial court erred in allowing evidence of the alco-sensor test results because the proper foundation was not laid, based on Gray v. State, 222 Ga. App. 626, 628 (1) (476 SE2d 12) (1996).

In order to lay the foundation for admission of the alco-sensor results, the prosecutor asked Officer Wright if, by training and experience, he knew that the design of the alco-sensor had been approved by the Division of Forensic Sciences of the GBI for use in detecting the presence of alcohol in a person’s body. He responded, “As far as I know, yes, because every patrol car and every officer that I know uses an Alcosensor.”

Assuming, without deciding, that this answer was insufficient to prove the required foundation, we find, given the totality of the evidence, it is highly probable that this did not affect the jury’s verdict and it does not constitute reversible error. Mealor v. State, 233 Ga. App. 193 (1) (504 SE2d 29) (1998); Knapp v. State, 229 Ga. App. 175, 179 (5) (493 SE2d 583) (1997).

Judgment affirmed.

Johnson, C. J., McMurray, P. J., Pope, P. J., Smith and Eldridge, JJ, concur. Ruffin, J., concurs in part and dissents in part.

Ruffin, Judge,

concurring in part and dissenting in part.

I concur in the Court’s opinion, except for its holding in Division 2. Venue is an essential element that must be proved by the prosecution beyond a reasonable doubt. Graves v. State, 269 Ga. 772, 773 (1) (504 SE2d 679) (1998). I remain steadfast in my belief that the testimony of the arresting officer regarding the county in which he works is not sufficient to prove venue beyond a reasonable doubt. See Frisbey v. State, 236 Ga. App. 883, 886 (514 SE2d 453) (1999) (Ruffin, J., dissenting); Joiner v. State, 231 Ga. App. 61, 63 (497 SE2d 642) (1998) (Ruffin, J., dissenting); Brinkworth v. State, 222 Ga. App. 288, 289 (474 SE2d 9) (1996) (Ruffin, J., dissenting). Accordingly, I respectfully dissent.

Decided June 10, 1999 — Cert. applied for.

Hagler, Hyles, Adams & Hix, Clark C. Adams, Jr., for appellant.

Howard S. McKelvey, Jr., Solicitor, for appellee.

       Bass was also convicted of DUI for having more than .10 grams of blood alcohol, but he was sentenced only on the less safe to drive count.

       There was no equipment at the hospital for doing a breath test.

       Even assuming that the notice was read before Bass was placed under formal arrest, it is unclear what harm befell him as a result. Harm as well as error must be shown. See Parsons v. State, 190 Ga. App. 803 (380 SE2d 87) (1989).


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A99A0268.
    MAYS v. THE STATE.
    (519 SE2d 290)
   Barnes, Judge.

Willie Clarence Mays was tried in 1984 and convicted of kidnapping, theft by taking, armed robbery, and escape. Although Mays filed a timely motion for new trial, for reasons apparently caused by his original defense counsel, the motion was never heard and was dismissed upon the prosecution’s motion. Thirteen years later, the court considering Mays’ habeas corpus petition determined in 1997 that Mays was denied his right to appeal his conviction because of the ineffective assistance of counsel and remanded the case to the trial court for appointment of counsel, if warranted, and an out-of-time appeal.

After new counsel was appointed, Mays filed a motion for new trial or in the alternative for leave to file an out-of-time appeal. This motion, however, did not assert that Mays was denied the effective assistance of counsel during the trial of his case. Although a new trial was denied, permission for an out-of-time appeal was granted. Thereafter, Mays filed a notice of appeal and did not file a motion for new trial challenging the effectiveness of his defense counsel during the trial.

In this appeal, Mays contends the trial court erred by admitting testimony from the victim of a prior robbery and kidnapping, by admitting a photo lineup in evidence, by denying his motion to sever his case from his co-defendant’s, by denying his motion for a continuance, and by denying his motion for a new trial. He also alleges that he was denied the effective assistance of counsel. We find no merit in these contentions and affirm.

Viewed most favorably to the guilty verdict, the evidence shows that the manager of a grocery store was abducted at gunpoint by Mays’ co-defendant from the parking lot of the store and forced to drive around the area until they stopped to pick up Mays. After Mays took the manager’s watch and ring, the manager was forced to return to the store and open the safe. While Mays’ co-defendant took about $5,000 from the safe, Mays tied up the manager with tape. The manager was left at the store, and the robbers drove off in the manager’s car. During the trial, the manager positively identified Mays as one of the robbers.

Sheriff’s deputies from the jail testified that while he was lawfully confined pursuant to the sentence for an earlier armed robbery and kidnapping, Mays escaped from jail. Also, while testifying Mays admitted that he escaped from the jail. For additional information see Laster v. State, 196 Ga. App. 854 (397 SE2d 191) (1990), which affirms the conviction of Mays’ co-defendant.

1. Although Mays alleges that his trial defense counsel was ineffective, we cannot consider that claim because it was not raised at the earliest practicable moment. See Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986).

[T]he proceeding in which an out-of-time appeal is sought is the proper time to raise the issue of ineffective assistance of counsel. When an out-of-time appeal is sought by means of a motion in the trial court, allegations of ineffective assistance of counsel are germane only insofar as they involve the denial of the defendant’s right to appeal, that being the only issue before the trial court. Should the trial court grant the motion, however, the allegations of ineffectiveness become germane to whatever post-conviction relief is sought. . . . [T]he grant of an out-of-time appeal constitutes permission to pursue appropriate post-conviction remedies, including a motion for new trial. It follows from that holding and from the requirement that a claim of ineffective assistance of counsel be determined by means of an evidentiary hearing at the earliest practicable moment, that a claim of ineffective assistance of counsel may not be asserted in an out-of-time appeal unless appellate counsel pursues a motion for new trial, subsequent to the grant of the out-of-time appeal, in which the issue is raised and resolved by means of an evidentiary hearing.

Ponder v. State, 260 Ga. 840, 841-842 (400 SE2d 922) (1991). Accordingly, as Mays did not raise the ineffectiveness of his trial defense counsel in the trial court during the proceedings concerning his out-of-time appeal, the issue is waived. Ball v. State, 233 Ga. App. 859 (1) (506 SE2d 149) (1998).

2. Mays also contends the trial court erred by admitting in evidence the testimony of the victim of an earlier armed robbery and kidnapping of which Mays was convicted. He contends this testimony improperly placed his character in issue so as to prejudice the jury against him and also contends there was no compliance with the procedural safeguards required in these cases.

Since this trial was held well before the effective date of Uniform Superior Court Rule 31 and the announcement of the protections set forth in Stephens v. State, 261 Ga. 467, 468-469 (6) (405 SE2d 483) (1991), and Williams v. State, 261 Ga. 640, 642 (2) (409 SE2d 649) (1991), those procedures could not apply to this case. Thus, Mays’ reliance on those authorities is misplaced.

Mays further contends that the prejudicial nature of this testimony outweighs its probative value. We disagree. First, this evidence was admitted to show that Mays was lawfully confined when he escaped and also to show that he committed the armed robbery and kidnapping for which he was incarcerated. Thus, this evidence is not rendered inadmissible merely because it also may have incidentally placed Mays’ character in issue. Greer v. State, 199 Ga. App. 106, 107 (1) (403 SE2d 825) (1991). “Proof of crimes which are similar or are closely connected to the crime charged does tend to establish the crime charged.” (Emphasis in original.) State v. Johnson, 246 Ga. 654, 655 (272 SE2d 321) (1980); King v. State, 230 Ga. App. 301, 303 (1) (496 SE2d 312) (1998).

Mays also argues that evidence of the earlier transaction should not have been admitted because the crimes were not unique. The test for admissibility of evidence of other criminal acts, however, is not the number of similarities between the two, but rather whether the evidence is to be admitted for some purpose other than to show a probability that Mays committed the crime on trial because he is a man of criminal character. Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989).

Because the evidence of Mays’ participation in the previous armed robbery and kidnapping and the manner in which that crime was committed was relevant to show that Mays was guilty of this armed robbery and kidnapping as well as to establish an element of the escape charge, the trial court did not err by admitting this evidence.

3. Mays further contends the trial court erred by admitting the photographs of his photo lineup in evidence because they were unnecessarily suggestive. Pretermitting whether it was error to admit copies of all the photographs used in the photo lineup into evidence, we find that doing so was harmless because Mays did not object to the witness’s in-court identification of him and did not object to the witness’s testimony that he identified Mays from the photographs in the photo lineup. Under these circumstances, introducing copies of the photographs was harmless. See Scott v. State, 206 Ga. App. 23, 26 (1) (c) (424 SE2d 328) (1992).

4. Mays’ allegation that the trial court erred by denying his motion for a new trial is without merit. The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the appropriate one to use when the denial of a motion for new trial is challenged because of the alleged insufficiency of the evidence. Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). Accordingly, based upon the evidence discussed above, we conclude that a rational trier of fact could have found Mays guilty of the crimes for which he was convicted beyond a reasonable doubt. Jackson v. Virginia, supra.

5. The trial court did not err by denying Mays’ motion to sever his trial from that of his co-defendant. Mays’ argument was that he was innocent of these crimes and he intended to defend himself against these charges as vigorously as the law permitted; evidence might be admitted at a joint trial which would not be admitted if he were tried separately; and he would receive a fairer and more impartial trial if he were tried alone.

Whether to grant a severance motion is within the discretion of the trial court. Freeman v. State, 205 Ga. App. 112 (421 SE2d 308) (1992). To be entitled to a severance, Mays was required to do more than raise the possibility that a separate trial would have given him a better chance of obtaining an acquittal. He was required to make a clear showing of prejudice sufficient to establish a denial of due process. Barnett v. State, 204 Ga. App. 491, 495 (2) (b) (420 SE2d 43) (1992); Emmett v. State, 199 Ga. App. 650, 652 (4) (405 SE2d 707) (1991). As he failed to make such a showing, the trial court did not abuse its discretion by denying a severance.

6. Finally, Mays contends the trial court erred by denying his motion for a continuance. The motion, made the morning the trial was to commence, asserted that defense counsel was unable to properly prepare for trial because of limited contact with Mays and his inability to contact potential alibi witnesses. Applications for continuance are addressed to the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. OCGA § 17-8-22; Murphy v. State, 212 Ga. App. 153, 155 (3) (442 SE2d 2) (1994). Further, Mays was obliged to show that he used due diligence before he would be entitled to a continuance. OCGA § 17-8-20.

Based on Mays’ limited showing in support of his motion and the facts that defense counsel had been appointed months earlier and two earlier continuances had been granted (see Laster, 196 Ga. App. at 854), we cannot say the trial court abused its discretion in denying a motion for continuance made the day of trial. Id. at 855 (1).

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.

Decided June 10, 1999.

Daniel L. Britt, Jr., for appellant.

William T. McBroom III, District Attorney, Daniel A. Hiatt, Assistant District Attorney, for appellee.


text:
    A99A0440.
    A99A0441.
    CURRY v. THE STATE. DANIELS v. THE STATE.
    (519 SE2d 269)
   Barnes, Judge.

In these companion cases, Andre Daniels and Kermit Curry appeal their convictions for selling cocaine (OCGA § 16-13-30) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). Daniels and Curry were represented by the same counsel in a joint trial. In Daniels’ appeal, he asserts there is insufficient evidence to support his convictions and that the trial court erred by (1) reseating six jurors peremptorily struck, by the defense; (2) denying his motion to reseat four jurors who were peremptorily struck by the State; and (3) denying his motion for new trial based upon ineffective assistance of counsel. Curry asserts that he also received ineffective assistance of counsel and that the trial court erred when it reseated four jurors who were peremptorily struck by the defense.

The record shows that Curry and Daniels were arrested at an Amoco station after undercover police officers observed an informant obtain 21.1 grams of crack cocaine. The sale and delivery of the crack cocaine were arranged through two back-to-back telephone calls between the informant and Daniels which were recorded by and in the presence of Officer Taylor. In these conversations, the informant and Daniels agreed to meet at the Amoco station approximately 45 minutes after the end of their second conversation. The informant also advised Daniels that his “girlfriend,” who was actually an undercover police officer, would be with him.

Officer Moten, the undercover officer posing as the informant’s girlfriend, testified that she drove to the Amoco station with the informant. When they arrived, the informant, who was wearing a wire, “spotted” Daniels at a pay phone, got out of the car, walked up to Daniels, and talked with him.

Officer Taylor was parked nearby and had a receiver that allowed him to hear the conversations of the informant through the wire worn by the informant. Officer Taylor testified that, through this receiver, he heard the informant tell Officer Moten that Daniels was standing at the pay phone. When the informant walked over to Daniels, Taylor heard Daniels tell the informant, “You can get it from the guy in the car.” Officer Taylor then saw the informant and Daniels walk toward Daniels’ car, where Curry handed the informant a brown paper bag. After taking the brown paper bag from Curry, the informant walked back to Officer Moten’s car and handed her the bag.

Officer Moten testified that she looked into the bag and saw that it contained crack cocaine in a clear plastic bag. After verifying that the bag contained crack cocaine, Officer Moten gave the informant cash for the purchase of the cocaine and he started walking back toward Daniels’ car. At the same time, she gave the code word, and Officer Taylor, as well as other officers, moved in to arrest Daniels and Curry. The officers arrested Daniels and Curry before the informant returned to them because they did not want to give Daniels, who was sitting in the driver’s seat of his car, an opportunity to drive away and escape with the money. When the police searched Daniels’ car after arresting him, they found a .25 caliber, semi-automatic pistol in the console between the driver and front passenger seat, which would have been within arm’s reach of both Daniels and Curry when they were sitting in the car.

When the State called a forensic chemist from the Georgia Bureau of Investigation Crime Lab and asked the court to qualify her as an expert witness, defense counsel made no objection to her qualifications and stipulated that 21.1 grams of cocaine was obtained from the confidential informant. The transcript of the jury selection process shows that after prospective jurors were excused for cause, the jury panel consisted of nineteen whites and ten blacks. After peremptory strikes by the defendants and the State, the jury panel consisted of six whites and six blacks. Because Daniels and Curry, who are black, used all of their 12 peremptory strikes jointly against white prospective jurors, the State objected under Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992). After hearing an explanation for the strikes from defense counsel and further argument from the State, the trial court reseated six of the white jurors struck by the defense.

Pursuant to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the defense objected to the State’s use of five of its six peremptory strikes against black jurors. Following the State’s explanation for the strikes and additional argument from defense counsel, the trial court re-seated one of the black jurors struck by the State. The makeup of the jury that convicted the defendants was seven whites and five blacks.

Case No. A99A0441

1. Daniels asserts the trial court erred when it reseated prospective juror nos. 3, 4, 13, 22, 26, and 28 after the State objected to defense counsel’s use of 12 peremptory strikes against white jurors.

In McCollum, supra, the United States Supreme Court “held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges.” Chandler v. State, 266 Ga. 509, 510 (2) (467 SE2d 562) (1996). When a McCollum or Batson objection is raised, the trial court must engage in a three-step process to determine if peremptory challenges were used in a racially discriminatory manner. Chandler, supra, 266 Ga. at 510 (2).

First, the opponent of the strike must make a prima facie showing of racial discrimination. Chandler, supra, 266 Ga. at 510 (2). Then, “the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of its strikes.” Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998).

An explanation is not race-neutral if it is based on a characteristic that is peculiar to any race or on a stereotypical belief. At this point, the proponent of the strike need not offer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially race-neutral.

(Footnotes omitted.) Id. In the final step,

[t]he trial court must . . . determine, considering the totality of the circumstances, whether the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes. The opponent of the strikes may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck or that the proponent’s race-neutral reason for [the] strike is “so implausible or fantastic that it renders the explanation pretextual.” A trial court’s findings on whether the opponent of the strike has met his burden of persuasion [are] entitled to great deference and will be affirmed unless clearly erroneous.

(Footnotes omitted.) Id. “[T]he burden of persuading the trial court that the strikes were racially motivated rests with, and never shifts from, the opponent of the strike.” Malone v. State, 225 Ga. App. 315, 318 (1) (484 SE2d 6) (1997).

To safeguard against an improper shift of the burden of persuasion to the proponent of the strike, the trial court must separately consider each of the three parts of the Batson-McCollum analysis. Malone, supra, 225 Ga. App. at 318 (1). See also Jackson v. State, 265 Ga. 897, 899 (2) (463 SE2d 699) (1995). If steps two and three of the analysis are combined by a trial court, it will prematurely evaluate the persuasiveness of the proponent’s explanation and erroneously place the ultimate burden of persuasion on the proponent of the strike. Id.

Daniels argues the trial court erred for two reasons when it reseated the six jurors struck by his counsel. First, the trial court did not properly apply the three-step analysis because it did not make explicit findings about whether his counsel’s explanations for the strikes were race-neutral at the conclusion of step two. Second, the State then failed to fulfill its burden of persuasion because it offered no “evidence” demonstrating that his counsel’s explanations were pretextual during step three of the analysis. We find no merit in these arguments.

(a) The transcript shows that after the State asserted its McCollum objection, the trial court found a prima facie showing of racial discrimination. It then asked defense counsel to explain its basis for each peremptory strike. After hearing defense counsel’s explanations, the trial court asked for a response from the State. At the conclusion of the State’s response, the trial court allowed additional argument requested by defense counsel before reseating six of the twelve jurors struck by defense counsel.

This record is sufficient to establish that the trial court accepted defense counsel’s “explanations as race-neutral under the second step of the test, but at the third step chose to disbelieve them following the state’s response.” Crawford v. State, 233 Ga. App. 323, 325 (2) (504 SE2d 19) (1998). Thus, the record does not establish that the trial court improperly combined steps two and three. Contrary to Daniels’ assertions, it is not necessary for the trial court to make an explicit finding that the offered explanation is valid at the conclusion of step two in the analysis. Id.; see also Richardson v. State, 233 Ga. App. 233, 234-235 (1) (504 SE2d 65) (1998); Wilburn v. State, 230 Ga. App. 619, 623 (2) (497 SE2d 380) (1998) (physical precedent only).

(b) Daniels argues that, during step three of the analysis, the opponent of a strike must offer evidence to show that the proponent’s reason for the strike is merely a pretext for discrimination. We find no merit in this argument.

The opponent of a strike is not required to submit evidence which proves discriminatory intent during step three. Instead, the opponent may carry its burden of persuasion by reference to the facts and circumstances surrounding the proponent’s use of its peremptory strikes. For example, the fact that similarly situated jurors of another race were not struck could be brought to the trial court’s attention. See, e.g., Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263) (1996). However, this is not the only means by which an opponent of a strike may carry its burden of persuasion.

It is well established that a trial judge, who has the opportunity to evaluate the demeanor and credibility of the proponent of a strike, may choose to disbelieve implausible or fantastic justifications for a strike during step three of the analysis. See, e.g., Jackson, supra, 265 Ga. at 899; McKenzie v. State, 227 Ga. App. 778, 779 (1) (490 SE2d 522) (1997). Thus, the opponent of a strike could carry its burden of persuasion by arguing, as in this case, that the reasons offered for a strike are implausible and urge the court to find that they are a pretext for racial discrimination. See Barnes, supra, 269 Ga. at 349; McKenzie, supra, 227 Ga. App. at 779.

2. Daniels contends the trial court erred when it refused to reseat juror nos. 8, 9, 21, and 24 after he objected to the State’s use of five of its six peremptory strikes against black jurors. In support of this contention, Daniels claims the trial court failed to follow the three-step approach for evaluating a Batson objection. He further claims, with regard to jurors no. 8 and 21 only, that the trial court improperly determined that the State’s explanation for striking these jurors was valid.

(a) The transcript shows that after defense counsel’s Batson objection, the State did not dispute that a prima facie case of discrimination existed. The State then provided explanations for each peremptory strike. After hearing the State’s explanations, the trial court asked for and received a response from defense counsel. At the con-' elusion of defense counsel’s response, the trial court allowed additional argument from the State before reseating one of the five black jurors struck by the State. We find this record sufficient to establish that the trial court properly employed the three-step analysis. Crawford, supra, 233 Ga. App. at 325; Richardson, supra, 233 Ga. App. at 234-235.

(b) Daniels claims the trial court erred by accepting the State’s explanation for striking juror no. 8 as a valid, race-neutral reason for the strike. The prosecutor told the trial court that he struck this juror because he was a butler for the mother of a defendant in a large timber case, and the prosecutor feared that the juror’s relationship with this defendant or his mother might cause him to hold a grudge against the prosecutor. The prosecutor further explained that he did not question the juror about this during voir dire because he did not want to offend him and “if he was not mad at me, he might be mad once I asked him the question.” Defense counsel responded by summarizing the prosecutor’s reasoning and stating, “clearly we believe, Your Honor, that is not a race-neutral reason.” After hearing defense counsel’s argument, the trial court stated, “I will accept that a [sic] valid race-neutral reason for striking Juror Number Eight.”

In determining whether a strike was in fact racially motivated, the trial court sits as the trier of fact, and its findings “are entitled to great deference and will be affirmed unless clearly erroneous.” Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). Under this deferential standard of review, we cannot say the trial court’s determination was clearly erroneous. See Byron v. State, 229 Ga. App. 795, 797-798 (5) (495 SE2d 123) (1997) (affirming denial of defendant’s Batson motion when State struck jurors “because they had familial or other relationships with individuals who had been prosecuted for various offenses”).

(c) Daniels claims the trial court also erred by accepting the State’s explanation for striking juror no. 21. The prosecutor explained that he struck juror no. 21 because he recently prosecuted • a young man named Adrian Willis for murder. The last name of juror no. 21 was also Willis, and both she and Adrian Willis lived in Waverly Hall. The prosecutor further explained that Waverly Hall is a “rather small town” and he was afraid this juror might be related to Adrian Willis or his mother and hold a grudge against the prosecutor. The prosecutor “didn’t want to ask her about that directly because [he] felt like that might foster a grudge if she didn’t hold one. . . .”

Relying upon our recent decision in Ridley v. State, 235 Ga. App. 591, 592 (1) (510 SE2d 113) (1998) (physical precedent only), Daniels argues that it is improper for the State to strike a juror when she has the same last name as a defendant in another prosecution without establishing a relationship between the juror and the defendant in the other case. In Ridley, we distinguished the Supreme Court’s decision in Trammel v. State, 265 Ga. 156 (454 SE2d 501) (1995) and found the trial court erred by not reseating two jurors who were struck by the prosecutor because they had the same last name as many other individuals prosecuted by the district attorney’s office. Ridley, supra, 235 Ga. App. at 592-594.

The outcome of this case is governed by Trammel and not Ridley. First, Ridley is non-binding, physical precedent because one judge on the three-judge panel concurred in the judgment only. Second, the facts of this case are closer to those at issue in Trammel than to the facts of Ridley.

In Trammel, the prosecutor’s sole reason for striking the juror was that the juror had the same last name as at least 13 other people prosecuted by the district attorney’s office and came from the same small town as the majority of those 13 previously prosecuted persons. The prosecutor explained that, “given the small size of the town, she was concerned there might be some relationship and possible ill-feeling on the part of the juror toward the district attorney’s office.” Trammel, supra, 265 Ga. at 157. As in this case, the prosecutor did not ask during voir dire whether the juror was related to any of the defendants in the other cases. Applying the required deferential standard of review, the Supreme Court found the trial court was authorized to conclude that there was no intentional racial discrimination in the prosecutor’s exercise of this peremptory strike. Id. at 158.

In Ridley, we distinguished Trammel based upon factors not present in this case. First, the State’s strikes in Ridley resulted in every black person being excluded from the panel; in this case, six blacks remained on the jury panel after the State used its peremptory strikes. Second, the prosecutor in Ridley, unlike this case, did not express concern about a possible relationship between the juror and the other defendants due to the small size of the town in which they resided; the record showed only that the jurors lived in the same small county in which the other persons were prosecuted. Finally, in Ridley, the prosecutor used the “same last name” reason to explain why he struck four jurors; in this case, the prosecutor cited it as a reason for only one juror.

Based upon the Supreme Court’s decision in Trammel, supra, and the deferential standard of review, we find the trial court did not clearly err when it denied the defendants’ Batson motion with regard to juror no. 21.

3. Daniels claims he received ineffective assistance of counsel because his trial counsel (a) also represented his co-defendant Curry despite potential and real conflicts between them, (b) failed to take steps to locate and subpoena the informant who was an eyewitness, (c) stipulated that the alleged contraband was in fact cocaine, (d) failed to advise the defendant not to testify despite trial counsel’s opinion that the voice on the audiotape sounded like Daniels’ voice, (e) failed to make a foundation objection to the playing of an audiotape on the ground that the State failed to show that one of the parties to the conversation consented to the recording, and (f) failed to object to the hearsay statements of the informant and a female in the audiotape.

“The Sixth Amendment to the U. S. Constitution guarantees a criminal defendant the right to effective assistance of counsel.” Ross v. Kemp, 260 Ga. 312, 313 (393 SE2d 244) (1990).

In order to show ineffective assistance of counsel, [appellant] must show that counsel’s action fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1989); Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990).

Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993).

A court addressing a claim of ineffectiveness of counsel is not required to address the performance portion of the inquiry before the prejudice component “or even to address both components if the defendant has made an insufficient showing on one.” Lajara, supra, 263 Ga. at 440 (3). Finally, a trial court’s finding of effectiveness must be upheld unless clearly erroneous. Cammon v. State, 269 Ga. 470, 472 (4) (500 SE2d 329) (1998).

(a) We find no merit in Daniels’ claim that dual representation caused actual and potential conflicts which resulted in ineffective assistance of counsel.

“Single representation of multiple defendants raises no per se presumption of conflict of interest or prejudice. [Cit.]” Hamilton v. State, 255 Ga. 468, 470 (2) (339 SE2d 707) (1986).

In order to prevail on a claim of ineffective assistance of counsel due to a conflict of interest on the part of . . . trial counsel, a defendant who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his attorney’s performance. Cuyler v. Sullivan, 446 U. S. 335, 348 (100 SC 1708, 64 LE2d 333) (1979).

Meyers v. State, 265 Ga. 149, 150 (2) (454 SE2d 490) (1995).

Daniels claims that an actual conflict existed based on his testimony during cross-examination by the State that he did not know whether Curry had contraband on his person immediately before their arrest because he “didn’t strip-search him.” According to Daniels, his trial counsel should have advised him to concede that “Curry may have delivered contraband but deny that he himself had any involvement in the illegal enterprise, if that were the truth.”

This argument inaccurately characterizes Daniels’ testimony. Daniels never testified that he did not know if Curry had cocaine on his person. Instead, he testified to the contrary: “Q. Do you know whether or not [Curry] brought some cocaine to the Amoco station? A. I didn’t strip search him, I didn’t — but, no, he didn’t.” We fail to see how this testimony demonstrates an actual conflict of interest for defense counsel that adversely affected his performance. Both defendants testified and denied any involvement in a drug transaction at the Amoco station. As in Stephens v. State, 214 Ga. App. 183, 187 (9) (b) (447 SE2d 26) (1994), “the testimony of both co-defendants was wholly exculpatory of the other.” Because Daniels has failed to demonstrate an actual conflict that adversely affected his trial counsel’s representation of Curry, the trial court did not err when it denied Daniels’ motion for a new trial on this ground.

(b) Daniels claims his attorney was also ineffective because he failed to take steps to locate and subpoena the informant. According to Daniels, the informant was crucial to his defense because he was the only eyewitness to the alleged drug transaction other than law enforcement officers and the defendants. Daniels acknowledges in his brief that his lawyer could have made a strategic decision not to call the informant, but claims his lawyer’s failure to try to locate the witness cannot be justified.

The record shows that Daniels’ trial counsel was not the first attorney jointly hired by the defendants. Another attorney represented them after their indictment in May 1995 and until he was fired in September 1997. The attorney who represented the defendants at trial filed an entry of appearance on October 2, 1997, and the defendants’ trial started on December 8, 1997.

In the motion for new trial hearing, defendants’ trial counsel testified that he obtained the name of the confidential informant from both the defendants and the State. He further testified that the defendants told him they could not locate the informant. After the State also provided trial counsel with the confidential informant’s name, defendants’ trial counsel contacted the district attorney handling the case and learned they did not plan to call the informant because they could not locate him. According to trial counsel, “since the case was so old, they [the district attorney’s office] had no idea where he was or anybody that was associated with him.” Finally, trial counsel testified that there was a risk his defense strategy of trying to discredit the testimony of the police officers would have been undermined if the confidential informant had testified at trial. In his opinion, the informant was likely to support the police officer’s version of the drug transaction.

Because the confidential informant did not testify at trial or at the motion for new trial hearing, there is no evidence in the record supporting Daniels’ claim that this witness was crucial to his defense or that this witness could have been located. Thus, even if we were to assume that trial counsel should have taken additional steps to locate and interview this witness, Daniels has failed to show how this failure prejudiced his defense. See Letson v. State, 236 Ga. App. 340, 342 (2) (512 SE2d 55) (1999); Polk v. State, 225 Ga. App. 257, 259 (1) (c) (483 SE2d 687) (1997). As a result, the trial court did not clearly err when it denied this portion of Daniels’ claim that his counsel was ineffective.

(c) We cannot consider Daniels’ claim that his counsel was ineffective because he stipulated that the alleged contraband was cocaine. This argument was not made in Daniels’ motion for new trial which alleged his trial counsel was ineffective for other reasons. Likewise, Daniels did not make this argument during the hearing on his motion for new trial. Since Daniels failed to make this argument at the earliest practical opportunity, it is waived. Seese v. State, 235 Ga. App. 181, 183-184 (3) (509 SE2d 94) (1998).

(d) Daniels asserts his trial counsel was ineffective for failing to advise Daniels that he should not testify because the voice on the audiotape sounded like Daniels’ voice. The record shows that Daniels’ attorney did advise Daniels not to testify, but did not tell him he thought the voice on the tape sounded like Daniels. Trial counsel testified that after he listened to the tape with Daniels, he asked Daniels if it was his voice on the tape and Daniels denied that it was. Trial counsel explained that he did not tell Daniels he thought the voice on the tape sounded like Daniels because Daniels had denied that it was his voice on the tape, and he “took him at his word.”

Because Daniels did not testify during the motion for new trial hearing, there is no evidence in the record showing he would have followed his trial counsel’s advice not to testify if he had been told that his voice sounded like the voice on the tape. Moreover, both in the trial court and in this Court, Daniels made no argument or showing that the outcome of his trial would have been different had he not testified. Since Daniels has failed to show how he was prejudiced by this alleged deficiency of his trial counsel, the trial court did not err when it denied this portion of Daniels’ new trial motion.

(e) Both of Daniels’ remaining claims of ineffective assistance of counsel relate to the admission of the recorded telephone conversations between Daniels and the informant. He argues that his trial counsel (1) improperly allowed the tape to be played to the jury because the State failed to lay a proper foundation for admission of the tapes, and (2) failed to object to portions of the audio recording which were hearsay.

Daniels claims there was no proper foundation for admission of the recorded conversations because there was no evidence showing that the informant and Daniels made the statements in the recorded conversation freely and voluntarily. See Central of Ga. R. Co. v. Collins, 232 Ga. 790, 793-794 (3) (209 SE2d 1) (1974); Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211 (3) (88 SE2d 167) (1955). The record shows that Daniels’ trial counsel did object to the admission of the tapes on the grounds that no showing had been made that the informant made the statements on the tape freely and voluntarily. Trial counsel withdrew this objection after the police officer testified that he did not ask the informant to place the telephone calls which were recorded, that he did not threaten the informant in any way to get him to place the calls, that the informant freely and voluntarily agreed to place the calls, and that the informant knew the conversations were being taped. Since this testimony is adequate to establish that the informant freely and voluntarily made the statements in the telephone conversations, the withdrawal of trial counsel’s objection did not render his performance deficient. See Ramsey v. State, 165 Ga. App. 854, 857 (3) (303 SE2d 32) (1983).

Likewise, given the facts and circumstances of this case, trial counsel’s failure to request a Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), hearing on the voluntariness of Daniels’ alleged statements in the telephone conversations did not render his performance deficient. The recorded conversations do not reveal a lack of voluntary participation in the telephone calls, and Daniels denied that he was the person talking with the informant in these conversations. Since Daniels denied participating in these phone calls, it would have been inconsistent to assert that he made these statements, but did not do so voluntarily. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. Trial tactics and strategy do not equal ineffectiveness. Key v. State, 230 Ga. App. 359, 360 (1) (496 SE2d 497) (1998).

We find no merit in Daniels’ claim that his trial counsel was ineffective because he did not raise a hearsay objection to the statements of the informant throughout the recorded conversations, as well as the statements of a female who answered the phone and advised “Andre” the call was for him. The statements of the informant were admissible and not subject to a valid hearsay objection. Brundage v. State, 265 Ga. 813, 814 (2) (462 SE2d 719) (1995). Assuming, without deciding, that the female’s statements might have been subject to a valid hearsay objection, Daniels has failed to show how he was harmed by her statements, which were cumulative of other testimony at trial. See Key, supra, 230 Ga. App. at 360. Daniels admitted that he lived with his grandmother at 975 Nelson Road. Telephone books used during cross-examination of Daniels at trial showed that his grandmother’s telephone number for this location was the same number dialed in the recorded conversations. Additionally, Officer Taylor testified that when he overheard Daniels speak to the informant at the Amoco station, he recognized his voice as the same one he had heard in the recorded conversations approximately 40 minutes earlier.

4. In his final enumeration of error, Daniels argues that insufficient evidence supports his “conviction,” but he fails to identify which conviction is not supported by the evidence or explain why the evidence is insufficient. Despite these shortcomings in Daniels’ brief, we have nonetheless reviewed the evidence and find it sufficient to support both convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Case No. A99A0440

5. In his first enumeration of error, Curry contends he received ineffective assistance of counsel because his counsel also represented Daniels, failed to communicate a plea offer, and failed to move for a directed verdict of acquittal on the charge that he possessed a firearm during the commission of a crime.

(a) For the reasons stated in Division 3 (a) of this opinion, we find no merit in Curry’s claim that his counsel was ineffective as a result of his dual representation of Curry and Daniels.

(b) We find no merit in Curry’s assertion that his counsel failed to communicate a plea offer. Curry’s trial counsel testified in the motion for new trial hearing that he did advise Curry and Daniels of the State’s plea offer, but both of them insisted they were innocent and refused to consider a plea that involved any jail time whatsoever. Although Curry denied that his trial counsel told him of the plea offer, “ ‘the credibility of these witnesses was a matter for the trial court’s discretion.’ ” Ford v. State, 234 Ga. App. 301, 303 (2) (506 SE2d 668) (1998).

(c) Curry claims his counsel was ineffective for failing to move for a directed verdict of acquittal on the possession of a firearm charge. See OCGA § 16-11-106. In the motion for new trial hearing, Curry’s trial counsel explained that he did not move for a directed verdict on this count because he believed the State had presented sufficient evidence to create a jury question. Based on our review of the evidence, we agree with trial counsel’s assessment.

OCGA § 16-11-106 (b) (4) provides: “Any person who shall have on or within arm’s reach of his person a firearm . . . during the commission of. . . [a] ny crime involving the . . .selling. . .[of] any controlled substance . . . and which crime is a felony, commits a felony. . . .” (Emphasis supplied.) Since the evidence at trial showed that the gun was found in a console in Daniels’ car that was “within arm’s reach” of Curry, it was sufficient to support his conviction for violating OCGA § 16-11-106 (b) (4). See Gibson v. State, 223 Ga. App. 103 (1) (476 SE2d 863) (1996); Victrum v. State, 203 Ga. App. 377, 379-380 (3) (416 SE2d 740) (1992).

6. In his second enumeration of error, Curry contends the trial court erred when it reseated four white jurors (nos. 3, 4, 12, and 22) who had been struck by his counsel. Like Daniels, his sole argument on appeal is that the record does not show the trial court separately considered each step of the three-part Batson-McCollum analysis. We find no merit in this enumeration for the reasons stated in Division 1 (a) of this opinion.

Decided June 10, 1999.

William P. Nash, Jr., for appellant (case no. A99A0440).

Ellis C. Smith, James C. Thornton, for appellant (case no. A99A0441).

J. Gray Conger, District Attorney, Mark C. Post, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.

       After defense counsel explained the basis for the strikes, the State withdrew its objection to four of the strikes, and the trial court found that the explanation provided by defense counsel for two additional strikes was valid.


author: Smith, Judge.

text:
    A99A0639.
    JONES v. THE STATE.
    (519 SE2d 279)
   Smith, Judge.

Albert “Bones” Jones was indicted by a Thomas County grand jury for the offenses of burglary and possession of a firearm by a convicted felon. He was tried before a jury in a bifurcated trial to avoid prejudicing his trial on the burglary charge with the introduction of the evidence necessary to Count 2 showing that he was a convicted felon. The jury found him guilty of the lesser included offense of theft by receiving on Count 1 and acquitted him of the firearms charge. He appeals from the judgment of conviction and sentence entered on the jury’s verdict.

In his sole enumeration of error, Jones contends the evidence presented at trial was insufficient to prove venue in Thomas County and his conviction is therefore void. Jones argues that although the State proved that a burglary took place in Thomas County, it did not prove that he committed that burglary, and although the State proved he sold stolen property, it did not prove he did so in Thomas County. We do not agree, and we affirm the judgment.

It is axiomatic that a crime must be prosecuted in the county in which it was committed, and in a criminal case, venue is a jurisdictional fact that must be proven as part of the general case. McGee v. State, 209 Ga. App. 261, 262 (2) (433 SE2d 374) (1993). If venue is not proved, the judgment is void. Hunter v. State, 191 Ga. App. 219 (381 SE2d 525) (1989). Although the State must prove venue beyond a reasonable doubt, if venue is uncontested at trial, slight proof will suffice. Id. The issue of venue is for the jury, and if any evidence supports the jury’s decision, it may not be set aside. McGee, supra. Jones did not contest the issue of venue at trial. Slight evidence of venue was therefore sufficient to satisfy the State’s burden.

That burden was met. Construed to support the jury’s verdict, the evidence presented at trial showed that a home in Thomas County was burglarized on January 12,1997. Among the items taken in the burglary were a rifle and a shotgun. In April 1997, Jones’s brother-in-law, Terry Johnson, was arrested on unrelated theft charges and was interviewed by Sergeant Joey Blackburn of the Thomas County Sheriff’s Department, who was investigating the January 12 burglary. Blackburn testified that he inquired if Johnson had any knowledge of the January 12 burglary, and Johnson responded affirmatively. According to Blackburn, Johnson told him that “Bones had told him, Albert Jones had told him that he did do the burglary,” and that Johnson and Jones went together to a home in Grady County, where they sold the deer rifle and the shotgun. The purchaser was located, and Investigator Melvin Febres of the Thomas County Sheriff’s Department testified that he took possession of the weapons, which were identified as the weapons stolen in the January 12 burglary. The purchaser, who denied knowledge that the weapons were stolen, was acquainted with Jones, whom he knew only as “Bones,” because Jones had visited his home from time to time to look at and talk about the purchaser’s bulldogs. He identified Jones and Johnson as the two men who came to his home and sold him the guns.

Johnson testified at trial that he did not remember making a statement implicating Jones because he was under the influence of cocaine and alcohol when he was interviewed by Blackburn. Blackburn testified, however, that Johnson did not appear to be under the influence of alcohol or drugs when he made the statement and appeared to have all his mental faculties.

The State introduced Johnson’s statement not merely for purposes of impeachment but as substantive evidence under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Johnson’s statement therefore served as some evidence that Jones committed the burglary of the home in Thomas County. Although the jury apparently did not find Jones’s statement sufficient to authorize his conviction on that charge, it cannot be disputed that the statement nevertheless constituted some evidence that Jones possessed stolen property in Thomas County. This was sufficient to satisfy the evidentiary requirement for venue. “Venue for certain theft offenses, including this offense, is appropriate ‘in any county in which the accused exercised control over the property which was the subject of the theft.’ OCGA § 16-8-11.” Kennon v. State, 232 Ga. App. 494, 496 (2) (502 SE2d 330) (1998).

Jones’s argument that the jury’s acquittal of him on the firearms charge renders his conviction void is without merit. He maintains that because he conceded he was a convicted felon during the second phase of the trial, and no further evidence was presented after the jury found him guilty of theft by receiving stolen property, the only issue remaining for the jury was venue. He argues that the verdict of acquittal on the firearms charge therefore must have resulted from a jury finding that venue was improper in Thomas County.

Decided June 10, 1999.

Ronald L. Beckstrom, Terry L. Schwock, for appellant.

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

Even if the two verdicts are inconsistent, the inconsistent verdict rule has been abolished in this state as to criminal trials. Milam v. State, 255 Ga. 560, 562 (2) (341 SE2d 216) (1986). Moreover, Jones’s argument is based upon mere speculation regarding the jury’s deliberations and is unsupported by any evidence in the record. We will not undertake to guess at the reasons for jury verdicts. Smashum v. State, 261 Ga. 248, 249 (2) (403 SE2d 797) (1991). The jury’s finding of guilt is supported by sufficient evidence, and we affirm it.

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.


author: Blackburn, Presiding Judge.

text:
    A99A0242.
    BUTLER v. BIVEN SOFTWARE, INC. et al.
    (522 SE2d 1)
   Blackburn, Presiding Judge.

This is the second appearance of this case before us. In Butler v. Biven Software, 222 Ga. App. 88 (473 SE2d 168) (1996), we vacated the trial court’s order which granted appellees’ (Biven Software, Inc., Paul Harrison, Mary Harrison and Bivens, Inc.) (“Bivens”) motion for sanctions, struck Michael B. Butler’s pleadings, and entered default judgment against him. We remanded the case for a hearing on Butler’s motion to recuse the trial court judge, stemming from the trial court’s determination that Butler’s motion for summary judgment was untimely. In the present appeal, Butler contends: (1) that the trial court which heard the motion to recuse erred by failing to recuse the trial court judge; and (2) that the trial court erred by granting appellees’ motion for sanctions, striking his pleadings and entering default judgment against him. For the reasons set forth below, we affirm.

1. Appellant Michael Butler contends that the trial court which heard the motion to recuse Judge Etheridge erred by failing to find Judge Etheridge was biased. The hearing on Butler’s motion to recuse was held before the Honorable James Findley. Judge Findley denied the motion, finding that Judge Etheridge showed no prejudice or bias against Butler or in favor of Bivens. The findings of the trial court will not be disturbed on appeal absent an abuse of discretion. Head v. State, 160 Ga. App. 4 (285 SE2d 735) (1981). We find no such abuse in this instance, as the standard for recusal was not met.

The standard for recusal was set forth in Birt v. State, 256 Ga. 483 (350 SE2d 241) (1986):

In order to be disqualifying the alleged bias must stem from an extra-judicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. The alleged bias of the judge must be of such a nature and intensity to prevent the defendant from obtaining a trial uninfluenced by the court’s prejudgment.

(Citations and punctuation omitted.) Id. at 485-486 (4).

Butler argues that a “secret” oral order arising from an ex parte meeting between counsel and Judge Etheridge is evidence of Judge Etheridge’s bias towards him. At the recusal hearing the trial court properly focused on this allegation and found no evidence of bias on the part of Judge Etheridge. The record supports this finding. At a status conference in chambers with counsel for both parties present, Judge Etheridge and counsel discussed a deadline for the completion of discovery and discussed an October 30 deadline for motions for summary judgment. On appeal Butler argues his counsel had no recollection of the summary judgment deadline; however, the hearing transcript reflects that counsel recalled the deadline but disagreed with Bivens’ counsel on whether the deadline was a firm deadline or simply a target. There is no evidence of an ex parte conference or “secret order.”

Butler also points to adverse rulings from the trial court, particularly the grant of Bivens’ motions for sanctions, as further evidence of Judge Etheridge’s bias against him. However, the trial court properly found that “mere dissatisfaction with the court’s rulings” is not a legally sufficient ground for recusal. Stephens v. Ivey, 212 Ga. App. 407, 408 (2) (442 SE2d 248) (1994).

Finally, Butler argues that the trial court erred because Judge Etheridge’s denial of the motion to recuse, in and of itself, supports recusal. Butler, citing to Isaacs v. State, 257 Ga. 126 (355 SE2d 644) (1987), contends that Judge Etheridge improperly submitted evidence contradicting Butler’s affidavit. In Isaacs, our Supreme Court held that it is inappropriate for a judge who is the subject of a recusal motion to take an active role in the hearing on the motion, including having an attorney present. Nothing even remotely similar occurred in this case. Judge Etheridge did not participate in the hearing before Judge Findley. Butler relies solely on Judge Etheridge’s order which denied the motion to recuse on the grounds that the affidavit was insufficient. Although this Court found the ruling was improper, the ruling does not show personal bias or prejudice. When a motion to recuse is presented, the judge can rule on the timeliness of the motion and the legal sufficiency of the affidavit. See Birt v. State, supra. The trial court did not err.

2. Butler contends the trial court erred by granting Bivens’ motion for sanctions, striking his pleadings and entering default judgment as a sanction for discovery abuse pursuant to OCGA § 9-11-37. “Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has. been a clear abuse of discretion.” (Punctuation omitted.) Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). This policy is peculiarly applicable in the context of allegations of discovery abuse.

The trial court found from the evidence presented at the hearing that Butler had wilfully and consciously failed to comply with court orders compelling discovery. “ ‘The trial court is the trier of fact and its finding of wilfulness from the evidence presented will not be reversed where there is any evidence to support it.’ ” Oliff v. Smith, 214 Ga. App. 358, 359 (447 SE2d 707) (1994). The hearing before the trial court showed evidence of a wilful and conscious disregard for the orders of the trial court as well as for the judicial process. Among other evidence, the record shows that Butler failed to comply with the court order of November 8, 1994, by failing to: (1) respond to a request for production of documents served in November 1993; (2) segregate all documents produced and to be produced according to the number of the request for production to which each document was responsive; (3) appear for his deposition; and (4) pay $1,500 to plaintiff for attorney fees within 15 days.

Additionally, there is evidence that the response which was finally provided to the request for production was fabricated and back-dated. Further, Butler gave the appearance of complying with the court’s order to number the documents produced and segregate and identify them in response to requests for production served in June 1993; however, he simply numbered the documents and then listed the entire range of such documents as responsive. The trial court found the documents were not responsive.

Butler’s disregard for the judicial process was further evidenced by his course of delaying the underlying case. Butler’s failure to comply with legitimate discovery requests resulted in time-consuming status conferences and sanction hearings. Furthermore, although Butler moved to add third-party defendant HBO, Inc. in 1993, he waited until January 1995 and then sought a continuance to do so. Finally, on the eve of trial, Butler filed for bankruptcy which stayed the action until the bankruptcy court allowed it to continue.

Decided May 27, 1999

Reconsideration denied June 11, 1999 — Cert. applied for.

Jones, Copeland, Lefkowitz & Greer, Taylor W. Jones, Rebecca A. Copeland, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert L. Goldstucker, Kelly E. Malone, for appellees.

Contrary to Butler’s contentions, the sanction of default is not limited to those instances where a party fails to respond at all to discovery. OCGA § 9-11-37 authorizes the court to impose the sanction of default or dismissal if a party wilfully “fails to obey an order to provide or permit discovery.” A party who intentionally fails to comply fully with a court order may be subject to the harshest of sanctions. See Joel v. Duet Holdings, 181 Ga. App. 705 (353 SE2d 548) (1987) (defensive pleadings struck where party only partially complied with court order). In this case, Butler’s conduct shows a wilful failure to comply with the trial court’s order. We cannot say the trial court erred in striking Butler’s pleadings and entering default judgment against him as sanctions for discovery abuse under the facts of this case.

Judgment affirmed.

Ruffin, J., and Senior Appellate Judge Harold R. Banke concur.

       Butler is an attorney licensed to practice in Georgia. Throughout this case, Butler represented himself alone or with co-counsel.


text:
    A99A0577.
    AXOM v. WENDY’S INTERNATIONAL, INC.
    (518 SE2d 734)
   Barnes, Judge.

Vetrina Axom appeals a jury verdict in favor of Wendy’s International, Inc. (“Wendy’s”) in her slip and fall suit. She enumerates five errors concerning jury charges and the trial court’s denial of her motion for new trial. We affirm.

1. Axom contends the trial court erred in denying her motion for new trial, in which she argued the verdict was strongly against the weight of the evidence. “On appeal, the evidence must be construed to uphold the jury’s verdict, and the sole question for determination is whether there is any evidence to authorize the verdict.” (Citations and punctuation omitted.) Kroger Co. v. Green, 190 Ga. App. 318 (1) (378 SE2d 905) (1989). “It is well settled that questions of negligence, diligence, contributory negligence, proximate cause, and the exercise of ordinary care for one’s protection ordinarily are to be decided by a jury, and a court should not decide them except in plain and indisputable cases. [Cits.]” Pique v. Lee, 218 Ga. App. 357, 358 (461 SE2d 302) (1995).

To recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard, and (2) that, despite the exercise of ordinary care, the plaintiff lacked knowledge of the hazard due to actions or conditions within the owner’s control. Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997); Lovins v. Kroger Co., 236 Ga. App. 585 (512 SE2d 2) (1999).

Construed to support the verdict, the evidence showed that Axom claimed she slipped and fell in a Wendy’s restaurant near the salad bar. She testified that an employee was tending to the salad bar as she walked by, and that her skirt was wet after she fell. She did not know where the wetness on the floor came from or how long it had been there. She further testified that the salad bar employee helped her up and a store manager took her name and phone number. A friend testified and corroborated Axom’s version of events.

The store manager testified that, on the day Axom says she fell, he recalled a woman asking for him and demanding a form to fill out “for when people fall.” The woman did not appear distressed, he said. He took some information from the woman, then visually inspected the area where she said she fell and saw no wet spots on the floor. He said he never heard from the woman again, did not recall her name, and had not personally seen anyone fall. Finally, he testified that the store’s inspection procedure was to have an employee walk through the store every 15 minutes and look at the tables, carpets, and floor to make sure they were clean and, to the best of his knowledge, that procedure was followed the day Axom said she fell. The only evidence Wendy’s submitted to the jury was the manager’s testimony.

Axom apparently proceeded on a constructive knowledge theory, as she presented no evidence that a Wendy’s employee knew of any foreign substance on the floor, but testified that an employee was refilling items in the salad bar next to where she fell. Given this evidence, the jury could have found that Wendy’s had no constructive knowledge that a foreign substance was on the floor. In fact, given the store manager’s testimony, the jury could have decided that Axom did not fall at all. We find the trial court did not err in denying Axom’s motion for new trial on the general grounds.

2. Axom contends the trial court erred in failing to charge the jury on Wendy’s burden to prove its affirmative defenses by a preponderance of the evidence. However, Axom did not request such a charge. In the absence of a timely written request, the trial court did not err in omitting a charge that defendant has the burden of proof in establishing affirmative defenses. Slutzky v. Warbington, 171 Ga. App. 621, 622 (1) (320 SE2d 623) (1984).

3. Axom next contends that Wendy’s presented no evidence showing that she could have discovered or avoided the defendant’s alleged negligence, and thus the trial court erred in charging the jury on avoidance of consequences. She correctly notes that when no evidence is presented from which a jury could find the plaintiff could have avoided the accident, it is reversible error to instruct the jury on the avoidance doctrine. See Carrandi v. Sanders, 188 Ga. App. 562, 563-564 (1) (373 SE2d 661) (1988). “But to justify a charge on any given subject, direct evidence on that point is not necessary. It is sufficient if some evidence exists from which the jury may engage in a legitimate reasoning process to reach an inference on that point. [Cit.]” Goss v. Total Chipping, 220 Ga. App. 643, 646 (4) (469 SE2d 855) (1996).

Here, Axom’s witness first testified that she saw water and ice on the floor after Axom fell, then testified that she did not see ice, only water. She confirmed that when she walked up after Axom had fallen by the salad bar, she looked down and could see wetness on the floor. Axom testified that she was not looking at the floor when she fell, and that she had seen an employee packing ice around the salad bar before she fell. Whether in exercising ordinary care for her own safety Axom should have seen ice or water on the floor, or whether she could have avoided the consequences of Wendy’s alleged negligence were questions for jury resolution. Walker v. Bruno’s, Inc., 228 Ga. App. 589, 591 (3) (492 SE2d 336) (1997). We conclude the trial court did not err in charging the jury on the doctrine of avoidance of consequences.

4. Axom also argues that the avoidance of consequences charge given was incorrect, substituting “plaintiff” for “defendant” in one place as follows:

As to avoidance of the consequences, if the plaintiff by the exercise of ordinary care could have avoided the consequences caused by the defendant’s negligence, if any, then the plaintiff is not entitled to recover. In other cases the plaintiff is not relieved even though the plaintiff may have contributed to the injury sustained.

(Emphasis supplied.)

The trial court’s reference to “plaintiff” instead of “defendant” in the charge quoted above was a mere slip of the tongue. Examining the charge as a whole, we note the court covered similar ground earlier in charging that “an invitee such as plaintiff in this case is not bound to avoid hazards not usually present on the premises in which the invitee exercising ordinary care did not observe.” We conclude that this misstatement resulted in harmless error in the context of the entire charge. Morrison v. Dept. of Transp., 166 Ga. App. 144, 147-148 (2) (303 SE2d 501) (1983) (erroneous substitution of “condemnees” for “condemnor” not reversible error in light of entire charge).

Decided May 28, 1999

Reconsideration denied June 11, 1999 — Cert. applied for.

Dozier, Lee, Graham & Sikes, Lester Z. Dozier, Jr., for appellant.

Jones, Cork & Miller, H. Jerome Strickland, for appellee.

5. Finally, Axom asserts the trial court erred in charging the jury on nominal damages. “Since the jury returned a verdict in favor of defendants, any error in charging the jury regarding nominal damages was harmless error. [Cit.]” Gaskins v. Taylor, 195 Ga. App. 716, 717 (3) (394 SE2d 629) (1990).

Judgment affirmed.

Blackburn, P. J., and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A99A0780.
    BODIFORD v. THE STATE.
    (517 SE2d 356)
   McMurray, Presiding Judge.

Pursuant to an order granting an out-of-time appeal, Roderick T. Bodiford appeals several convictions, including convictions for possession of cocaine and possession of marijuana with intent to distribute. We are unable to reach the merits of this case, however, because we lack jurisdiction.

It is the duty of this Court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction. The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.

Zachery v. State, 233 Ga. App. 519 (504 SE2d 466) (1998). Because Bodiford failed to timely file his notice of appeal, the appeal must be dismissed.

On September 17, 1997, following an application for a writ of habeas corpus, Bodiford obtained from the Superior Court of Chattooga County an order granting him an out-of-time appeal. Bodiford, through appointed counsel, filed his notice of appeal in the Superior Court of Mitchell County, the county of his conviction, 160 days later on February 24, 1998.

Upon obtaining from a habeas court an order granting an out-of-time appeal of his complained of conviction and sentence, the petitioner has “30 days to pursue post-conviction remedies.” Ponder v. State, 260 Ga. 840, 842 (1) (400 SE2d 922) (1991). When a habeas court grants a petitioner an out-of-time appeal, “[t]hat places the petitioner in the same posture with the same rights as a defendant who is successful in seeking an out-of-time appeal from the trial court.” Id. Thus, if the petitioner elects to directly appeal from his complained of conviction and sentence instead of pursuing a motion for new trial, he must file a notice of appeal with the trial court in the county of his conviction within 30 days of the order granting the out-of-time appeal. OCGA § 5-6-38 (a). See Rowland v. State, 264 Ga. 872, 876 (2) (452 SE2d 756) (1995); Aldridge v. State, 188 Ga. App. 729 (374 SE2d 223) (1988). If he fails to file the notice of appeal within the 30-day period, the appeal is untimely and must be dismissed. Id. Because the notice of appeal in the case sub judice was filed beyond the 30-day period, Bodiford’s appeal is untimely and must be dismissed. Id.

It does not appear that Bodiford was informed in the habeas corpus court that he had 30 days to pursue his post-conviction remedies. “While an out-of-time appeal may afford a remedy, it can be a meaningful remedy only if the defendant is aware of his right to an out-of-time appeal and how to exercise it.” (Emphasis omitted.) Reese v. State, 216 Ga. App. 773, 774 (456 SE2d 271) (1995). Whether Bodiford is entitled to another out-of-time appeal is a factual determination that must be taken up in the trial court upon a proper motion. See Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996).

In accordance with Rowland v. State, supra, defendant Bodiford is hereby informed of the following: Your appeal has been dismissed because of a failure to file a notice of appeal timely. If you decide that you no longer wish to appeal your convictions, you need not do anything more. However, if you still want to appeal, you may file a request for an out-of-time appeal in the trial court.

If, upon your application for out-of-time appeal, it be established to the trial court’s satisfaction that the appellate procedural deficiency was due to appellate counsel’s failure to perform routine duties, you are entitled to an out-of-time appeal. The trial court should appoint another attorney for you if you cannot pay for one. If the trial court grants an out-of-time appeal, you will have 30 days from the grant in which to file a notice of appeal. If the trial court denies your request for an out-of-time appeal, you may appeal that denial to this Court within 30 days of the trial court’s decision.

Decided May 4, 1999

Reconsideration denied June 11, 1999.

Ernie M. Sheffield, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, Assistant District Attorney, for appellee.

The Clerk of the Court of Appeals of Georgia is directed to send a copy of this opinion to defendant Bodiford, as well as to defendant Bodiford’s current appellate counsel with direction that appellate counsel also send a copy of the opinion to defendant Bodiford. Zachery v. State, 233 Ga. App. at 522, supra.

Appeal dismissed.

Andrews and Ruffin, JJ., concur.


text:
    A97A2505, A97A2506.
    FORD et al. v. UNIROYAL GOODRICH TIRE COMPANY et al. (two cases).
    (521 SE2d 198)
    Decided June 11, 1999.

      Smolar, Roseman, Brantley & Seifter, Yehuda Smolar, G. Grant Brantley, James I. Seifter, Antoinette D. Johnson, Gregory, Christy & Maniklal, Hardy Gregory, Jr., for appellants.

       For A. W. Birdsong, Jr., P. J., who is deceased.

       For Dorothy T. Beasley, P. J., who has resigned.

   Smith, Judge.

In Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730 (514 SE2d 201) (1999), the Supreme Court reversed the judgments of this court affirming the trial court’s grant of appellees’ motions to transfer the cases from Fulton County. Ford v. Uniroyal Goodrich Tire Co., 231 Ga. App. 11 (497 SE2d 596) (1998). Accordingly, our judgments in those cases are vacated, the judgment of the Supreme Court is made the judgment of this court, and the trial court’s orders are reversed.

Judgments reversed.

McMurray, R J., Pope, P. J., Andrews, Ruffin, Eldridge, JJ., and Senior Appellate Judge Harold R. Banke concur.

Love & Willingham, Daryll Love, Allen S. Willingham, Robert P. Monyak, for appellees.


text:
    A99A0502.
    McNAMEE et al. v. A. J. W., a minor, et al.
    (519 SE2d 298)
   Blackburn, Presiding Judge.

Upon our grant of their application for interlocutory appeal, the defendants, Don McNamee and Lynda McNamee, and their son, Steven McNamee, a minor, appeal the denial of their motion for summary judgment by the trial court. Gordon and Louisa Wiles, and their daughter, A. J. W, a minor, nine months junior to Steven, brought the underlying civil action seeking damages against Steven’s parents for negligence and furnishing alcohol to A. J. W. and against Steven for sexual battery, rape, negligence, and furnishing alcohol to A. J. W. At the time of the subject incident, both A. J. W. and Steven were in the tenth grade in high school.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Punctuation omitted.) Urban v. Lemley, 232 Ga. App. 259 (501 SE2d 529) (1998).

Construing the facts most favorably to A. J. W. and her parents, on November 26, 1996, 15-year-old A. J. W. went home after school with Steven, who had just recently turned 16 years old. Although A. J. W. told her parents that she was going to Steven’s house to study, she actually went there to drink beer and to “show everybody that [she] wasn’t such a goody two-shoes like everybody thought.” A. J. W. states that she, Steven, and Rusty, another male friend, drank alcoholic beverages and smoked marijuana. After voluntarily consuming two and one-half Zimas and taking “shotgun hits” of marijuana, A. J. W. does not remember what happened until she woke up naked in a bedroom closet. A. J. W. deposed that while she does not remember him being there, her boyfriend told her that he came over to Steven’s house while she was naked and in the closet. The record does not contain any testimony from A. J. W.’s boyfriend.

When she woke up, Steven told A. J. W. that his father had come home, taken Rusty to his alcohol/probation meeting, and returned. A. J. W. admits that rather than reporting what took place to Steven’s father, she sneaked out of the house with Steven and they walked to her home. A. J. W. was wearing Steven’s pants and his mother’s underwear. Steven agrees with A. J. W.’s version of what occurred after his father arrived home. Upon arriving home, A. J. W. did not report to her parents any of the events that had occurred. The day after the incident, Steven, Rusty, and another male friend went to A. J. W.’s place of employment and threw her panties over the counter at her. A. J. W. averred that she learned about the sexual relations with Steven when Rob Elkins called her on the telephone to tease her about losing her virginity. The record does not contain any testimony from Rob Elkins. A. J. W.’s parents found out about the incident from a parent of one of A. J. W.’s friends a week after it happened and initiated civil and criminal action.

Steven avers that A. J. W. voluntarily participated in the drinking, the smoking, and having sex with him. He contends that A. J. W. initiated oral sex and asked him to have sexual intercourse with her. He went upstairs and got a condom and asked her several times if she was sure she wanted to have sex. He avers that after they had sex, A. J. W. did not feel well and she lay down on his bedroom floor to sleep. Later, she vomited on her clothes and then took a shower before he walked her home.

Although A. J. W. deposed that she was under the impression that Steven’s father had purchased the beer for Steven, Steven averred that his parents did not know that he had alcohol in the house. Steven contends that Rusty had provided both the alcohol and marijuana, which he hid in the unfinished basement of the house. The record does not contain any testimony from Rusty.

1. The McNamees contend that as a matter of law, under the facts herein, they cannot be held civilly liable for negligence resulting from any actions of Steven against A. J. W, if proved.

It is well settled that by common law and in this state unless changed by statute, parents are not liable in damages for the torts of their minor children merely because of the parent-child relationship [;] when liability exists it is based on a principal-agent or a master-servant relationship where the negligence of the child is imputed to the parent, or it is based on the negligence of the parent in some factual situation such as allowing the child to have unsupervised control of a dangerous instrumentality. Corley v. Lewless, 227 Ga. 745 (182 SE2d 766) (1971). . . . As stated in Assurance Co. of America v. Bell, 108 Ga. App. 766 (134 SE2d 540) (1963) the true test of parental negligence vel non is whether in the exercise of ordinary care [the parent] should have anticipated that harm would result from the unsupervised activities of the child and whether, if so, [the parent] exercised the proper degree of care to guard against this result.

Hill v. Morrison, 160 Ga. App. 151 (286 SE2d 467) (1981).

Under the facts in this case, Steven’s parents cannot be civilly responsible based solely upon his actions in having sex with a 15-year-old girl in their home, without their knowledge, while they were not home. We have previously declined to place a duty on parents to arrange for supervision of their teenagers while they are away from home. See Manuel v. Koonce, 206 Ga. App. 582, 585 (1) (b) (425 SE2d 921) (1992), rev’d on other grounds, Riley v. H & H Operations, 263 Ga. 652, 655, n. 3 (436 SE2d 659) (1993). The evidence in the record indicates that Steven’s parents had no reason to suspect that he was engaging in the activities in question while they were at work. Therefore, the trial court erred in denying Don and Lynda McNamee’s motion for summary judgment on the plaintiffs’ negligence claims.

2. The McNamees contend that they are entitled to summary judgment on the plaintiffs’ claims of serving alcohol to a minor. OCGA § 51-1-18 (a) provides: "The custodial parent or parents shall have a right of action against any person who shall sell or furnish alcoholic beverages to that parent’s underage child for the child’s use without the permission of the child’s parent.”

(a) The McNamees contend that the uncontroverted evidence establishes that Rusty Shipman purchased and delivered the alcohol. Although A. J. W. deposed that Steven said his father had purchased the beer for Steven to drink, the McNamees’ contention that A. J. W.’s testimony is hearsay is correct.

The admission by a party to the record shall be admissible in evidence when offered by the other side, except in the following cases: . .•. (2) Admissions of one of several parties with no joint interest, unless the issue is of such a character that the effect of the admission can be confined to the one party alone.

OCGA § 24-3-31.

In the case of joint defendants, the admission of one is admissible to establish the plaintiff’s case against that defendant. Moore v. McAfee, 151 Ga. 270 (7) (106 SE 274) (1920). And, upon independent proof of. a joint interest, the admissions of one party may be given in evidence to bind the other parties as well.

Kirk v. Barnes, 147 Ga. App. 423, 424 (1) (249 SE2d 140) (1978). Therefore, because the plaintiffs have brought separate causes of action against the McNamees and Steven, these defendants do not have joint interests in this litigation and Steven’s alleged remarks remain inadmissible hearsay.

(b) The McNamees contend that even if Don McNamee purchased the beer, they did not “provide” it to A. J. W. within the meaning of the statute. We agree.

It is undisputed that Steven’s parents were not at home when A. J. W. came over to their house, and they were unaware that A. J. W. would be coming to their house. Additionally, Steven and A. J. W. sneaked out of the house after Steven’s father came home.

This case is distinguishable from Eldridge v. Aronson, 221 Ga. App. 662 (472 SE2d 497) (1996), wherein we reversed the grant of summary judgment to the defendants in an action for damages pursuant to OCGA § 51-1-18. In Eldridge, Mrs. Aronson purchased beer for her son’s party, was present during the party, and also helped serve the beer to her son’s guests. Although Mr. Aronson was not present during the party this Court determined that he could be held responsible because the evidence showed that he had served alcohol to high school students on several previous occasions.

In the present case, there is no evidence that the McNamees had previously provided beer or alcohol to Steven and his friends. Additionally, there is no evidence that the McNamees “provided” alcohol to A. J. W. within the meaning of the statute. Therefore, the trial court erred in denying the McNamees’ motion for summary judgment on the plaintiffs’ claim based upon furnishing alcohol to a minor.

3. Steven contends that A. J. W.’s alleged consent can be used as an absolute defense in the present civil action against him. In determining this issue, we must keep in mind two distinguishing facts of this case: (1) that both the plaintiff/victim and defendant/offender were minors; and (2) that the action is one for monetary civil damages, not involving public policy considerations protected by criminal statutes.

The plaintiffs contend that consent can never be used as a defense for the sexual battery/rape of a person under the age of 16. Consent is not a defense to a criminal statutory rape charge under OCGA § 16-6-3. However, under Georgia law

[t]he violation of a penal statute does not automatically give rise to a civil cause of action on the part of one who claims to have been injured thereby. Although OCGA § [16-6-3] establishes the public policy of this state, nothing within its provisions purports to create a private cause of action in tort in favor of an alleged victim. Accordingly, the civil liability of [Steven] must be determined under the applicable provisions of the tort law of this state, not the inapplicable criminal provisions of OCGA § [16-6-3].

(Citations and punctuation omitted.) Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990).

OCGA § 51-11-2 provides that

[a]s a general rule no tort can be committed against a person consenting thereto if that consent is free, is not obtained by fraud, and is the action of a sound mind. The consent of a person incapable of consenting, such as a minor, may not affect the rights of any other person having a right of action for the injury.

OCGA § 51-11-2 precludes consent by a minor incapable of giving such consent, but does not preclude consent by a minor capable of consenting. Wittke v. Horne’s Enterprises, 118 Ga. App. 211, 215, n. 2 (162 SE2d 898) (1968). “A minor acquires capacity to consent to different kinds of invasions and conduct at different stages in his development. Capacity exists when the minor has the ability of the average person to understand and weigh the risks and benefits.” (Footnote omitted.) Prosser & Keeton, Torts, § 18, p. 115 (5th ed. 1984). Moreover, decisional and statutory law is replete with examples of situations in which a child over the age of 14 is deemed to have the mental capacity of an adult. See Redding v. Morris, 105 Ga. App. 152, 154 (123 SE2d 714) (1961) (“ A [child] fourteen years of age is presumptively chargeable with the same standard of diligence for his [or her] own safety as an adult.’ ”); see also OCGA §§ 19-3-2 (2) (16-year-old person can marry; no age limitation if pregnant or parents of child born out of wedlock); 53-4-10 (any individual over 14 years of age can make a will); 53-4-22 (a) (individual over age 14 competent to witness a will); 19-9-3 (a) (14-year-old person has right to select custodial parent in custody battle); 16-3-1 (individual over age 13 is responsible for criminal acts). Accordingly, in tort, A. J. W.’s alleged consent is admissible in the present action against Steven resulting from any consensual conduct between herself and Steven.

Other jurisdictions have similarly viewed the issue of consent between two minors engaging in sexual activity. See Cynthia M. v. Rodney E., 228 Cal.App.3d 1040 (279 Cal. Rptr. 94, 97) (4th Dist. 1991) (Although criminal law does not recognize consent by a person under 18 as a defense, in the civil-arena, consent is a defense. “There is no hard-and-fast rule as to the age at which a person attains the capacity to consent to bodily invasions.”); L. K. v. Reed, 631 S2d 604, 607 (La. App. 1994) (Minor girl’s consent to sexual act with minor boy was admissible in determining comparative fault. To find otherwise, “a girl could provoke a criminal prosecution against a sexual partner and recover damages from him, both as a result of her willful and voluntary actions in consenting to, or instigating, a sexual liaison.”) (emphasis omitted); Michelle T. v. Crozier, 495 NW2d 327, 329 (Wis. 1993) (despite criminal conviction for second degree sexual assault, evidence in civil case that victim had consented to the touching would defeat civil battery charge). Some courts have handled the issue differently, however, if the victim is a minor and the offender is an adult. See Doe v. Greenville Hosp. System, 448 SE2d 564, 566 (S. C. App. 1994) (16-year-old girl could not legally consent to sexual intercourse with an adult whether in criminal or civil context); Angie M. v. Hiemstra, 37 Cal.App.4th 1217 (44 Cal. Rptr. 2d 197) (1995) (a civil cause of action for unlawful seduction/sexual abuse can exist against a 48-year-old physician who engages in sexual intercourse and orally copulates with a minor female at least 30 years his junior).

Therefore, Steven’s allegation that A. J. W. consented to, and was the instigator of, the sexual acts is relevant and admissible in the present action brought by A. J. W. We must view the evidence and all reasonable inferences therefrom in the light most favorable to plaintiffs, as nonmovants. However, the totality of the evidence must be considered in determining all issues. At trial, the credibility of the witnesses and the weight of the evidence are for the jury. We cannot say that the trial court erred in denying defendants’ motion for summary judgment on this issue under the facts of this case.

4. In his final enumeration of error, Steven contends that he, as a minor, cannot be held strictly liable for a violation of OCGA § 51-1-18 because A. J. W. intended to consume the alcohol. OCGA § 51-1-18 is not a strict liability statute. See Reeves v. Bridges, 248 Ga. 600, 602-603 (284 SE2d 416) (1981). “The purpose of the statute is to prevent the furnishing of alcoholic beverages to underage children in the absence of parental consent.” (Citation and punctuation omitted.) Eldridge, supra at 663 (1).

We have no general rule of strict liability in Georgia. Ford Motor Co. v. Carter, 239 Ga. 657 (238 SE2d 361) (1977). Our statutes which have attributes of strict liability are strictly construed, and we will not read strict liability into a statute when the intent of the legislature is not perfectly clear. Also compelling is the fact that the statute which is under consideration here dates back to 1863, long before the advent of any strict liability in Georgia. [This Code section] has been found to be an action for indirect injury to the person and analogized to actions for such torts as abducting or harboring the wife of another, alienation of affection, adultery or criminal conversation, seduction of a daughter, or gaming with the minor son of another. Under the statute, selling or furnishing liquor to the minor child of another is an intentional tort.

Decided June 11, 1999.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, Christopher K. Annunziata, for appellants.

Dean, Smith & Therrell, John R. Burdges, Peter R. Roberts, for appellees.

(Citations omitted.) Reeves, supra. “Moreover, the damages recoverable under that Code section by a parent may be limited to general and special damages suffered directly by the parent (as opposed to damages the parent may have to pay to a third person).” Sutter v. Hutchings, 254 Ga. 194, 199 (2) (327 SE2d 716) (1985).

However, because the cause of action lies with A. J. W.’s parents, her consent and even willingness to drink the alcohol are of no consequence. See Eldridge, supra at 663-664 (1). See also OCGA § 51-11-2. The record indicates that Steven intended to provide alcohol to A. J. W. with knowledge that she was a minor. As there is evidence supporting a violation of the statute, the trial court properly denied Steven’s motion for summary judgment on this issue.

Accordingly, we find that the trial court correctly denied Steven’s motion for summary judgment with respect to the plaintiffs’ claims, but that the trial court erred in denying the McNamees’ motion for summary judgment.

Judgment affirmed in part and reversed in part.

Barnes, J, and Senior Appellate Judge Harold R. Banke concur.

       Consent is not a defense in criminal prosecution for statutory rape where offender is also a minor. See In the Interest of B. L. S., 264 Ga. 643 (449 SE2d 823) (1994).