author: Eldridge, Judge.

text:
    A00A1198.
    SYMS v. THE STATE.
    (534 SE2d 502)
   Eldridge, Judge.

Leroy Syms filed this appeal from the Chatham County Superior Court’s denial of his November 1999 motion to vacate an allegedly void sentence. The procedural history of Syms’ underlying convictions can be found in Syms v. State, 240 Ga. App. 440 (523 SE2d 42) (1999). See also Syms v. State, 232 Ga. App. 724 (502 SE2d 741) (1998).

In this appeal, Syms contends that his prison sentence is void for numerous reasons. We agree in part. As an initial matter:

in order for a trial court to have the power to exercise the subject matter jurisdiction to correct [a] judgment outside [a] term of court, the judgment must be, in fact, void. If the judgment is not void, a trial court has no further subject matter jurisdiction outside the term of court and the petition must be dismissed.

(Emphasis in original.) Barber v. State, 240 Ga. App. 156, 157 (1) (b) (522 SE2d 528) (1999). See also Manry v. State, 226 Ga. App. 445, 446 (487 SE2d 80) (1997).

In this case, following plea negotiations, during which Syms was represented by counsel, Syms pled guilty to an indictment which charged eight counts of forgery and eight counts of theft by receiving stolen checks. Syms also pled guilty to one count of theft by receiving stolen credit cards and one count of financial transaction (credit) card theft under OCGA § 16-9-31.

1. Following his guilty pleas, Syms was sentenced to concurrent terms of ten years, eight to serve, on the eight forgery counts and concurrent twelve-month terms on the eight counts of theft by receiving stolen checks. Such sentences are not void. When Syms pled guilty to an indictment which listed on its face 16 separate crimes, he admitted that he committed those specific crimes as charged against him. Manry v. State, supra at 446, citing United States v. Broce, 488 U. S. 563 (109 SC 757, 102 LE2d 927) (1989). As such, he is estopped from claiming now that any combination of the crimes constituted, in fact or law, a single offense. Manry v. State, supra; see also OCGA §§ 16-1-6; 16-1-7. Under the circumstances, the sentences on the 16 forgery and theft by receiving stolen check counts are not subject to collateral attack. Manry v. State, supra.

Therefore, since the sentences were not void, the trial court lacked subject matter jurisdiction over Syms’ motion to vacate such sentences. To the extent that the trial court’s order denied Syms’ motion to set aside the 16 theft and forgery sentences, such order was, itself, null and void. OCGA § 17-9-4; Manry v. State, supra at 447. We remand this case back to the trial court with direction to dismiss for lack of subject matter jurisdiction the portion of Syms’ motion to set aside the 16 sentences for forgery and theft by receiving stolen checks.

2. Syms also challenged, however, his sentences of twelve months for theft by receiving stolen credit cards and three years for credit card theft, each sentence to run concurrently with the ten-year forgery sentences. According to the indictment, the two credit card theft counts involved the theft of the same credit cards. Under these facts, Syms could not be guilty both of theft by taking the credit cards and theft by receiving the same credit cards after they were stolen by someone else. Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). Therefore, as a matter of law, the crimes are mutually exclusive, and Syms could not be sentenced on both crimes, even if he pled guilty to both. Id. Since such sentences were void ab initio, the trial court had both the jurisdiction and the obligation to grant Syms’ motion to vacate the sentences. See Manry v. State, supra.

We reverse the trial court’s order to the extent that it denied Syms’ motion to vacate the two credit card theft sentences and remand the case with direction that the trial court vacate such sentences. In its discretion, the trial court may then resentence Syms on one — but not both — of the credit card theft charges. Bryant v. State, 229 Ga. App. 534, 536 (1) (494 SE2d 353) (1997).

3. Syms also claims that the order to pay restitution in the amount of $1,571.74 is void due to the trial court’s failure to conduct a separate hearing or issue a written order. See Cannon v. State, 246 Ga. 754, 756 (3) (272 SE2d 709) (1980); Westmoreland v. State, 192 Ga. App. 173, 176 (384 SE2d 249) (1989). The record showed that Syms participated in a sentencing hearing during which evidence was presented regarding the amount of restitution owed; the transcript of such hearing is not a part of the record on appeal. A few weeks after sentencing, however, Syms apparently had “second thoughts” and petitioned the trial court for a modification of his sentence. In denying the petition, the trial court expressly found that Syms:

Decided May 4, 2000

Reconsideration denied May 16,2000

Leroy Syms, pro se.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

was fully advised of his rights and that he freely and voluntarily entered into the negotiated plea. Furthermore, a factual basis for the plea and the amount of restitution was before the court. Lastly, [Syms] signed a plea agreement which fully set out the sentence, the amount of restitution and the counts to which he was pleading guilty. He had the opportunity to reject the terms of the plea, but instead he embraced it.

Therefore, having acquiesced to the amount of restitution by agreeing to the terms of the negotiated plea, Syms cannot now challenge the validity of such terms. See Westmoreland v. State, supra at 177.

As the restitution order was not void, the trial court lacked jurisdiction to consider Syms’ motion to vacate that portion of his sentence. See Division 1, supra. We vacate the trial court’s order denying Syms’ motion to vacate the restitution order and remand for entry of an order dismissing that portion of Syms’ motion for lack of subject matter jurisdiction.

Judgment reversed in part, vacated in part and remanded with direction.

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


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A0666, A99A0667.
    BRIGHT v. THE STATE (two cases).
    (535 SE2d 14)

       The affirmation of the judgment in Case No. A99A0666 by Bright v. State, supra, is not affected by our decision herein.

   Andrews, Presiding Judge.

In Bright v. State, 238 Ga. App. 876 (520 SE2d 48) (1999), we affirmed the two judgments entered on Dudley Glen Bright’s multiple convictions for, among other charges, three counts of aggravated sodomy against K. A., a minor who was seven at the time of the acts (Case No. A99A0667). Pursuant to the grant of certiorari and remand to this Court by the Supreme Court, we consider the judgment entered on the convictions of aggravated sodomy in light of Brewer v. State, 271 Ga. 605 (523 SE2d 18) (1999).

So doing, we vacate Division 1 of our opinion and substitute the following:

Case No. A99A0667

1. Bright’s fifth enumeration, that the trial court erred in denying his motions for directed verdict at the close of the State’s case and the close of all the evidence, challenges the legal sufficiency of the evidence and will be considered first. With regard to the aggravated sodomy counts, Bright argued that there was insufficient evidence that the acts were committed “forcibly and against the will of said child.”

Viewed in the light most favorable to the jury’s verdict, Wilson v. State, 233 Ga. App. 327, 328 (1) (503 SE2d 924) (1998), the evidence was that Bright was the first cousin of Philip Adams and Adams had brought Bright to live with him, his wife and two children so that Bright could get his life in order. Bright and Adams also began an exotic snake breeding business, which they conducted in a building behind the residence, referred to as the snake house. In addition to the Adams children, Matthew, age two, and K. A., age seven, Mrs. Adams’ niece, H. L., age ten, was staying with the Adams family during the summer of 1996.

The house had two bedrooms upstairs, occupied by Mr. and Mrs. Adams, their children, and H. L. Bright slept on a hide-a-bed in the living room downstairs.

On September 6, 1996, Mrs. Adams had allowed K. A. and H. L. to stay up late and watch television in the living room with Bright. Bright assured Mrs. Adams it was fine with him and he would be with them. Around midnight, when the girls had not come to bed, Mrs. Adams went to check on them and found K. A. asleep on the floor and H. L. sitting in Bright’s lap, wearing only the large t-shirt in which she slept. Both H. L. and Bright acted surprised.

The next morning, Mrs. Adams asked H. L. what they had been doing, and she initially said nothing. Asked if Bright touched her anywhere, H. L. said he had touched her on her private between her legs. H. L. also said that Bright had improperly touched K. A. in her presence, and K. A. affirmed this.

K. A. and H. L. were initially interviewed by Officer O’Brien on September 7 and indicated that Bright had touched them only with his hand on their privates. On September 16, Department of Family & Children Services supervisor Dooley interviewed K. A. again, with Officer O’Brien present and her parents watching from behind a two-way mirror. During that interview, K. A. said that Bright touched her and H. L. on their privates while they were under a tent formed by a blanket while they sat on the couch watching television. This sometimes happened when K. A.’s parents were also in the room but could not see because of the blanket. Additionally, K. A. revealed that Bright had made her suck his penis, both in the house on the sofa and in the snake house when only she, he, and H. L. were present. When she did this, “water” came out of his penis. On at least one occasion, Bright also licked her private.

K. A. did not tell her parents any of this because Bright had told her not to and she was afraid of him. K. A. also told her mother that Bright said that if she told, he would “come after [her] mama and [her] daddy.” K. A. testified that she did not tell Bright “no” when he asked her to do these acts because she was scared of him. H. L. testified that Bright repeatedly touched her private part with his hand while she, he, and K. A. were on the sofa. She also witnessed Bright put his mouth on K. A.’s private part and saw him place his penis in K. A.’s mouth. She also did not tell about these events because Bright had told her not to. H. L. refused to let Bright put his mouth on her vaginal area but was present when he did that to K. A., even though H. L. had told K. A. not to let him do it.

In Brewer v. State, supra, the Supreme Court concluded that merely proving that an act of sodomy was committed on a victim under the legal age of consent did not automatically prove that it was perpetrated “with force and against the will.” “Force” or “forcibly” was defined in Brewer as “acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation.” Id. at 607.

In Brewer, however, unlike the situation here, the victim, who was 11 at the time of the act, “repeatedly denied every suggestion of physical force, threats, and intimidation.” Id.

As set out above, there was evidence of intimidation of K. A. by Bright, including threats to harm her parents, and she was afraid of him. We believe that this evidence was sufficient to prove the necessary force required for aggravated sodomy and denial of the motion for directed verdict on this basis was not error.

Judgment affirmed in Case No. A99A0667.

Ruffin, J, and McMurray, Senior Appellate Judge, concur.

Decided May 16, 2000.

Virgil L. Brown & Associates, Bentley C. Adams III, for appellant.

N. Stanley Gunter, District Attorney; Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

       In Case No. A99A0667, Bright was convicted of the following: Count 1, aggravated sodomy on K A. by placing his mouth on her vagina; Counts 2 and 3, aggravated sodomy by placing his penis in K. A.’s mouth on two occasions; Count 4, child molestation by fondling K. A.’s vagina; Count 5, child molestation by fondling H. L.’s vagina; and Count 6, aggravated child molestation by placing his mouth on K A.’s vagina in the presence of H. L. All acts were alleged to have occurred between March 1, 1996 and September 7, 1996, except for Count 5, alleged between August 1 and September 7, 1996.


author: Blackburn, Presiding Judge.

text:
    A00A0011.
    WILLIAMS v. THE STATE.
    (535 SE2d 8)
   Blackburn, Presiding Judge.

Mary Williams appeals her conviction, following a jury trial, for felony theft by shoplifting, contending that: (1) there was insufficient evidence to support the indictment against her; (2) the trial court erred by allowing the State to place Williams’ character into evidence; and (3) the trial court erred by failing to charge the jury regarding the value of the items shoplifted. For the reasons set forth below, we affirm.

Viewing the evidence in the light most favorable to the verdict, the record shows that, on January 4, 1998, Williams approached the check-out at a Wal-Mart store with a cart full of numerous items. As she was ringing up Williams’ purchase, the cashier noticed that something was concealed beneath a case of canned colas. When the case was moved, the cashier discovered a Sony telephone, and, when asked about the phone, Williams stated that it was already in the cart when she started shopping and that she did not wish to purchase it. After completing her purchase of several small items, Williams proceeded toward the exit of the store. A cart filled with items returned to the store had been left by the exit, and Williams, after placing the few items she had purchased into the cart, took the cart and the entirety of its contents with her as she left. Williams was stopped just outside Wal-Mart, and she was arrested for shoplifting. The value of the returned items in the shopping cart was $121.86. Williams was later indicted on one count of felony shoplifting.

1. Williams contends that the value of the merchandise taken by her was less than $100 and, as such, the indictment against her should have been dismissed or quashed due to insufficient evidence of felony shoplifting. We disagree.

At, the time of Williams’ crime, OCGA § 16-8-14, which defines the crime of theft by shoplifting, stated that a person who shoplifted merchandise valued in excess of $100 was guilty of a felony. If, however, the merchandise did not exceed $100, the crime would be treated as a misdemeanor. Williams now argues that, because there was conflicting evidence regarding the value of the shoplifted goods, the evidence does not support her indictment for a felony rather than a misdemeanor.

Generally, with regard to the efficacy of an indictment, “no inquiry into the sufficiency or legality of the evidence is indulged.” Summers v. State, 63 Ga. App. 445, 449 (3) (11 SE2d 409) (1940). Under appropriate circumstances, however, “an indictment will be quashed where it is returned on wholly illegal evidence.” Felker v. State, 252 Ga. 351, 366 (2) (a) (314 SE2d 621) (1984). Williams has made no argument and has provided this Court with no proof whatsoever that the indictment against her was based on wholly illegal evidence. Therefore, Williams’ enumeration has no merit.

2. Williams contends that the trial court erred by allowing the prosecutor, on cross-examination, to question her about a former conviction for possession of heroin because it improperly placed her character into evidence. At the time of the admission of this evidence, however, Williams’ only objection to its introduction was based on its relevance, and “[b]ecause [Williams] failed to specifically object to the evidence on the ground that it impermissibly placed [her] character in issue, [she] may not raise that objection for the first time on appeal.” (Punctuation omitted.) Howard v. State, 233 Ga. App. 724, 729 (5) (505 SE2d 768) (1998). Moreover, following the admission of the evidence about which Williams now complains, the trial court gave the jury curative instructions on how to appropriately consider it, and Williams neither made further objections nor a motion for a mistrial. Therefore, she waived the right to argue about the admission of the evidence of her prior conviction here. Ford v. State, 269 Ga. 139, 141 (3) (498 SE2d 58) (1998).

3. Finally, Williams contends that the trial court erred by failing to give the jury an instruction regarding the value of the shoplifted goods specifically relating to her defense that they were worth less than $100. Williams, however, did not raise any objection to the trial court’s charge or reserve objections. In fact, she indicated that she had no objections to the charge when asked. Furthermore, she failed to submit a written request to charge on the issue of value. Thus, Williams has waived her right to raise this argument on appeal. Looney v. State, 232 Ga. App. 828, 829 (3) (503 SE2d 79) (1998). Moreover, a review of the trial court’s charge shows that the jury was appropriately instructed regarding the necessary value of the shoplifted goods in order to constitute a felony.

Decided May 16, 2000.

Lawrence E. Madison, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       Effective July 1, 1998, a person must shoplift merchandise valued at more than $300 to be guilty of a felony.


text:
    A00A0361.
    MILLS v. THE STATE.
    (535 SE2d 1)
   Blackburn, Presiding Judge.

Jaycin Mills appeals his conviction, following a jury trial, for robbery by intimidation. Mills contends that the trial court erred (1) by charging the jury on robbery by intimidation because the indictment brought against him alleged only armed robbery and (2) by denying his motion for a directed verdict on the charge of armed robbery. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that Mills and several accomplices planned to rob the residence of Sean Tomlinson. At the time of the robbery, Mrs. Tomlinson was at home. She testified that one of the robbers was carrying a knife. Three of Mills’ accomplices testified that he was involved in the robbery.

Mills was subsequently indicted for, among other things, armed robbery committed with the use of a knife. The indictment did not separately set out a count of robbery by intimidation. During trial, Mills made a motion for a directed verdict on the charge of armed robbery, arguing that there was insufficient evidence to show that he was carrying a knife at the time of the robbery. Citing Mrs. Tomlin-son’s testimony that she witnessed one of the robbers carrying a knife, the trial court denied Mills’ motion. At the State’s request, the trial court charged the jury on robbery by intimidation, a lesser included offense of armed robbery. Mills was then found guilty of robbery by intimidation.

1. Mills contends that the trial court erred by charging the jury on the lesser included offense of robbery by intimidation when he was indicted only for armed robbery. We disagree.

The rules in this area were set forth in State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). There, our Supreme Court explained:

The trial judge must charge the jury on each crime specified in the indictment or accusation, unless the evidence does not warrant a conviction of such crime, or unless the state has affirmatively withdrawn a crime or stricken it from the indictment or accusation. . . . The trial judge also may, of his own volition and in his discretion, charge on a lesser crime of that included in the indictment or accusation. However, his failure to do so, without a written request by the state or the accused, is not error. . . . The state or the accused may, by written application to the trial judge at or before the close of the evidence, request him to charge on lesser crimes that are included in those set forth in the indictment or accusation, and his failure to so charge as requested, if the evidence warrants such requested charge or charges, shall be error. . . . An erroneous charge on a lesser crime to that set forth in the indictment or accusation does not rise to the level of reversible error, unless such charge was harmful to the accused as a matter of law.

Robbery by intimidation is a lesser included offense of armed robbery. OCGA § 16-8-41 provides:

A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.

In this case, the State requested that the trial court instruct the jury on robbery by intimidation. Although no written request to charge was submitted, the trial court, of its own volition, was authorized to charge the jury on this offense. Stonaker, supra. Therefore, there was no error in the court’s instructions to the jury.

2. Mills contends that the trial court erred by denying his motion for a directed verdict on the charge of armed robbery. This enumeration is meritless.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Mills] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

Decided May 16, 2000.

Robert M. Gardner, Jr., for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Richard K. Bridgeman, Assistant District Attorneys, for appellee.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

As discussed above, Mrs. Tomlinson testified that one of her assailants was carrying a knife during the commission of the robbery. Therefore, there was evidence sufficient to support a conviction for armed robbery, and the trial court appropriately denied Mills’ motion for a directed verdict and allowed the issue to go to the jury.

Moreover, contrary to Mills’ contention, even if we were to find that the trial court should have granted Mills’ motion for a directed verdict on armed robbery, the lesser included charge of robbery by intimidation would have still reached the jury. Mills’ indictment for armed robbery put him on notice that he might be convicted of the lesser included offense as set forth in OCGA § 16-1-6. This statute provides: “An accused may be convicted of a crime included in a crime charged in the indictment or accusation.” Therefore, Mills’ contention lacks merit, and the jury appropriately considered the charge of robbery by intimidation.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0438.
    DEERING v. THE STATE.
    (535 SE2d 4)
   Blackburn, Presiding Judge.

Following a jury trial, William Barry Deering appeals his convictions for possession of a firearm by a convicted felon, driving under the influence, driving without a valid license, driving with an open container of alcohol, and carrying a concealed weapon. Deering contends that the evidence was insufficient to support the verdicts against him. For the reasons set forth below, we affirm.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Deering] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the evidence in this light, the record shows that Officer Mason Brewer responded to an early morning call from a citizen who stated that a man was standing outside a home firing a gun. When Officer Brewer arrived at the scene, he found a blue Ford Crown Victoria blocking the driveway, and Deering was sitting in the driver’s seat with his torso slumped over to the passenger’s side. Officer Brewer noticed that the car’s engine was running, and it appeared to him that the car had just been parked. There were no other people in the vicinity at the time Officer Brewer arrived at the scene.

Officer Brewer then pulled his car alongside Deering, who started cursing and screaming. Officer Brewer noticed that Deering’s hair and clothing were disheveled, there was the smell of an alcoholic beverage on his breath, and his eyes were red and glassy. Deering’s demeanor was aggressive and agitated, and, because of this fact, Officer Brewer requested that Officer Franklin come to the scene to provide backup. When Officer Franklin arrived at the scene, he searched Deering’s vehicle and found a loaded pistol wedged between the front- seats of the car. In addition, Officer Brewer subsequently found an open can of beer on the floor of the car. Although Deering refused to take a test to determine whether he had been drinking, he later admitted that he had consumed a beer earlier in the evening.

1. Deering contends that his convictions for driving under the influence, driving with an open container, and driving without a valid license must be reversed because the State failed to provide sufficient evidence that he actually drove the car in which he was found. We disagree.

Appellant is correct that to be guilty of the offense of driving under the influence one must drive or be in actual physical control of a moving vehicle while under the influence of alcohol. Carr v. State, 169 Ga. App. 679 (2) (314 SE2d 694) (1984). However, “ ‘(i)t is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence.’ (Cits.)” Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987). “ ‘In order to sustain the judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.’ (Cit.)” Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988).

(Emphasis in original.) Johnson v. State, 194 Ga. App. 501 (1) (391 SE2d 132) (1990).

In this case, Deering was found in the driver’s seat of a car with its engine running. In addition, the arresting officer testified that the car appeared to have been recently parked and no other persons who could have driven the car were on the scene. At the time that he was confronted, Deering was unkempt, his eyes were glassy, and he smelled of an alcoholic beverage. Deering could produce no valid driver’s license, and an open container of beer was found in the car.

Although [Officer Brewer] did not see the car moving, he observed circumstances from which a jury could infer that [Deering] was in actual physical control of the car when it was moved to the location where the officer found it, and that [Deering] was intoxicated [, without a valid license, and possessing an open container of alcohol] while moving it there.

Johnson, supra at 502. See also Jenkins v. State, 223 Ga. App. 446 (1) (478 SE2d 143) (1996). Furthermore, the circumstantial evidence of Deering’s physical appearance and demeanor was sufficient for the jury to determine that Deering was less safe to drive in his condition. See Lewis v. State, 149 Ga. App. 181, 182 (2) (254 SE2d 142) (1979).

Although Deering vigorously argues contradictions in his own testimony and that of Officer Brewer, it is the role of the jury, not this Court, to judge the credibility of witnesses. See Jackson, supra.

2. Deering contends that his convictions for possession of a firearm by a convicted felon and carrying a concealed weapon must be reversed because the State provided insufficient evidence to show that he was in actual possession of the firearm. Again, we disagree.

“The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.”

Simpson v. State, 213 Ga. App. 143, 144-145 (1) (444 SE2d 115) (1994). Constructive possession is sufficient to prove possession of a firearm by a convicted felon. Cantrell v. State, 204 Ga. App. 330, 331-332 (419 SE2d 141) (1992).

Decided May 16, 2000.

W. Eugene Jessup, for appellant.

Herbert E. Franklin, Jr., District Attorney, Bruce E. Roberts, Assistant District Attorney, for appellee.

In this case, Deering was the sole occupant of the vehicle. The gun, which was cocked, loaded, and placed between the front seats of the car, was within his reach and, therefore, subject to his control. There were no other individuals in the area, and a call had been received that an unknown man at that address had been firing a weapon. This evidence, although circumstantial, was sufficient to support the jury’s conclusion that Deering was in possession of the gun found by Officer Franklin. Jackson, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0836.
    A00A0837.
    DAVIS v. THE STATE. ROGERS v. THE STATE.
    (535 SE2d 10)
   Blackburn, Presiding Judge.

Co-defendants Marvin Davis and Billy Mack Rogers appeal their convictions for one count and two counts of the sale of cocaine, respectively. Because their appeals arise from the same trial, they have been consolidated in this opinion. For the reasons set forth below, we affirm the convictions.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Davis and Rogers] no longer [enjoy] a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The . . . verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewing the facts in this light, the record shows that, on February 25, 1998, Officer Rodriguez Rice, acting undercover, purchased crack cocaine from Reginald Heard and Rogers. That evening, Heard and Rogers arrived at a location in front of an apartment complex, and a confidential informant approached them about purchasing crack cocaine. The confidential informant then called Rice over to Heard’s car, and Rice told Heard that he wished to purchase $200 worth of crack cocaine. Rogers then stated to Heard: “[Y]ou can make the deal but I’m going to be outside with this but it’s on you to do whatever you want to do.” Heard, Rogers, and Rice then entered Heard’s car, and Heard provided Rice with a number of small baggies of cocaine in return for cash. Rice had no direct conversation with Rogers. Rogers never held the contraband or accepted the money for its purchase.

On April 8, .1998, Rice and a fellow officer traveled to Rogers’ house to make a second purchase of cocaine which had been orchestrated by the same confidential informant. Rice met Davis on the porch of Rogers’ house, and Davis escorted Rice and the confidential informant inside. Rogers was sitting on his bed in his bedroom when Rice asked for $500 worth of crack cocaine. Rogers immediately became irate and accused Rice of being a police officer. According to Rice, Rogers stated: “[Y]ou must be the police, and, no, we’re not doing this; I ain’t selling you no [crack].” Rice then started to leave, but, shortly thereafter, Davis called him back into the house. Then, Davis put the cocaine on a table and took the cash from Rice. Rogers then told Rice that, the next time he returned to make a purchase, it would be fine and he would not have a problem.

Case No. A00A0836

On appeal, Davis contends that: (1) the evidence was insufficient to support the verdict against him; (2) the trial court erred by introducing a “mug shot” of him into evidence; and (3) he should have been allowed to strike a biased juror for cause.

1. Viewed in the light most favorable to the verdict, the facts of record, as set out above, were sufficient to support Davis’ conviction. Jackson, supra.

2. At trial, Davis objected to the introduction of a photograph which Rice used to identify him. Specifically, Davis argued that the photograph was a “mug shot” suggesting that Davis had a prior criminal history. The record, however, reveals that this enumeration is patently erroneous. The photograph, in fact, made no reference to and provided no information as to its origins. Therefore, the trial court properly overruled Davis’ specious objection to the admission of the photograph into evidence.

3. Davis contends that the trial court erred by not disqualifying a juror whose uncle was a drug dealer, arguing that the juror was biased against him. However,

[b]efore a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

(Punctuation omitted.) Whatley v. State, 270 Ga. 296, 298 (2) (509 SE2d 45) (1998). In this case, the juror in question indicated that, despite his feelings toward his uncle, he could set his experiences aside and fairly decide the case based upon the evidence before him. “Therefore, the trial court did not abuse its discretion by refusing to strike this juror for cause.” Id.

Case No. A00A0837

4. In his sole enumeration of error, Rogers contends that the evidence was insufficient to support either the conviction against him for participating in the drug sale on February 25, 1998, or the conviction relating to the sale on April 8, 1998. Both of Rogers’ convictions depend upon his participation in the sales as a party to a crime.

Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that a defendant is a party to a crime. However, criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) McGhee v. State, 229 Ga. App. 10, 11 (492 SE2d 904) (1997). Furthermore, “presence at the scene of the crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. Even approval of the act, not amounting to encouragement, will not suffice.” (Citations and punctuation omitted.) Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1993).

Decided May 16, 2000.

Gregory S. Dickson, for appellant (case no. A00A0836).

Ann C. Stahl, for appellant (case no. A00A0837).

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

With regard to the sale of cocaine which occurred on April 8, 1998, it is clear that Rogers was an active participant in the sale, despite the fact that he never handled the drugs or the money. When Officer Rice first requested to buy drugs, Rogers, acting as if he were in charge of the sale, accused Rice of being a police officer and responded: “[Y]ou must be the police, and, no, we’re not doing this; I ain’t selling you no [crack].” Then, after the sale took place, Rogers told Rice that, the next time he returned to make a purchase, it would be fine and he would not have a problem. From this evidence, the jury could reasonably infer that Rogers not only participated in the sale but, in fact, controlled the transaction. Rogers’ conviction for the sale of cocaine on April 8, 1998, was supported by the evidence.

The conviction for the earlier sale of cocaine on February 25, 1998, was also supported by the evidence. While the evidence surrounding this sale showed that Rogers never handled the money or contraband or made incriminating remarks, the jury could consider the transaction on April 8, 1998, to determine Rogers’ intent to be an active participant in the earlier sale, not merely a bystander. Reviere v. State, 231 Ga. App. 329, 334 (6) (498 SE2d 332) (1998). As such, there was sufficient evidence to support the jury’s determination that Rogers was a participant in the sale of crack cocaine on February 25, 1998.

Judgments affirmed.

Eldridge and Barnes, JJ, concur.

       Heard was also tried with Davis and Rogers, but he is not a party to either of the appeals now before this Court.


text:
    A00A0201.
    ATLANTA CASUALTY COMPANY v. BOATWRIGHT et al.
    (534 SE2d 516)
   Blackburn, Presiding Judge.

Atlanta Casualty Company appeals the trial court’s order denying its motion for summary judgment and granting the defendants’ motions for summary judgment. In the underlying declaratory judgment action, Atlanta Casualty sought to avoid coverage on an automobile policy issued to defendant Daryl McPherson on two grounds: (1) its cancellation of the insurance contract; and (2) the tortfeasor’s failure to notify it of the claim or to cooperate, thereby breaching the insurance contract. Because questions of fact remain as to whether Atlanta Casualty properly canceled the insurance contract, we affirm the trial court’s denial of Atlanta Casualty’s motion for summary judgment and reverse the trial court’s grant of the defendants’ motions for summary judgment.

We review de novo a trial court’s grant of summary judgment. Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995). To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court' that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. The burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

(Punctuation omitted; emphasis in original.) Jackson v. Post Properties, 236 Ga. App. 701 (513 SE2d 259) (1999).

So viewing the evidence, Atlanta Casualty issued an automobile insurance policy to McPherson on March 22, 1995, with effective dates from March 20, 1995 through September 20, 1995. The total premium for the insurance policy was $752. McPherson paid an initial premium payment of $249, and the remaining balance was to be paid in installments. On May 19, 1995, a payment of $132.75 was made, and on June 17, 1995, a payment of $142.75 was made. On July 3, 1995, Atlanta Casualty sent a notice of cancellation to McPherson indicating that the policy would be canceled, effective July 18, 1995, for failure to pay past due amounts and billing fees in the amount of $142.75. The notice indicated that payment would reinstate the policy if received prior to the date of cancellation. On August 25, 1995, the covered automobile was involved in a collision. This action arose to determine whether Atlanta Casualty’s policy was still effective and whether it covered the collision. The trial court determined that Atlanta Casualty had not properly canceled the insurance contract, and it denied Atlanta Casualty’s motion for summary judgment and granted the defendants’ motions for summary judgment on that issue.

1. When an insurer cancels a policy for failure to pay a premium, Georgia law requires the insurer to give its insured appropriate notice of the cancellation.

When a policy is canceled for failure of the named insured to discharge when due any of his obligations in connection with the payment of premiums for a policy or any installment of premiums due, . . . the notice requirements of this Code section may be satisfied by delivering or mailing written notice to the named insured ... at least ten days prior to the effective date of cancellation.

(Emphasis supplied.) OCGA § 33-24-44 (d). “The notice requirements of the statutes regarding cancellation of insurance policies are mandatory and require strict compliance and failure to adhere to the requirements results in noncancellation of the policy.” Penn. Nat. &c. Ins. Co. v. Person, 164 Ga. App. 488, 490 (1) (297 SE2d 80) (1982). Additionally, this Court has determined that notice of cancellation for failure to pay premiums, sent before the premium is actually due, is not sufficient to effect a cancellation. See id. In Person, the insurance company mailed a notice of cancellation prior to the date the premium was due. This Court determined that under such circumstances, “[a] notice of cancellation which states that a policy will be cancelled on a specified date unless premiums due are paid prior to that date[ ] is not a notice of cancellation, but merely a demand for payment.” Id. at 489.

In the present case, Atlanta Casualty does not keep copies of premium notices sent to its insureds; however, it did provide evidence of its usual business practices and of McPherson’s payment history in its computer-generated reports which indicated a premium arrearage. Atlanta Casualty’s representative also deposed, however, that McPherson’s coverage was paid in full on the day the notice of cancellation was mailed. The trial court determined that because Atlanta Casualty did not produce a copy of an actual premium notice sent to McPherson, it cannot establish that McPherson failed to pay a premium when due. We cannot agree.

Decided May 4, 2000

Reconsiderations denied May 17, 2000

Webb, Carlock, Copeland, Semler & Stair, Kimberly K. Nagy, Frederick M. Valz III, for appellant.

McLarty, Robinson & Van Voorhies, John E. Robinson, Gregory H. Blazer, Swift, Currie, McGhee & Hiers, Kristine J. Moschella, Ste phen L. Cotter, Ronald A. Lowry, William P. Tinkler, Jr., Karsten Bicknese, for appellees.

Atlanta Casualty has presented conflicting evidence as to whether a premium was actually due when the purported notice of cancellation was sent. Atlanta Casualty’s computer records show an arrearage, and the cancellation notice itself indicates that certain amounts were “past due.” This is some evidence that McPherson was not current on his premiums. However, Atlanta Casualty’s representative deposed that McPherson’s premiums were paid on the date the notice of cancellation was mailed. Additionally, no evidence was produced establishing when McPherson’s premium was actually due. Therefore, a jury’s determination is required as to whether McPherson failed to pay premiums when due and whether Atlanta Casualty sent notice of cancellation after premiums were due. The trial court properly denied Atlanta Casualty’s motion for summary judgment and erred in granting the defendants’ motions for summary judgment. Neither the trial court nor this Court can resolve issues of fact. See Jackson, supra.

2. Because Atlanta Casualty’s complaint contained assertions regarding the tortfeasor’s failure to notify it of the claim or to cooperate and no defendant addressed them in their motions for summary judgment, such issues also remain pending in the trial court for a jury’s determination.

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ, concur.

       The defendants include: Jeffrey Scott Palmer; Daryl Wayne McPherson, individually and as administrator of the estates of Stacy Lynn McPherson, deceased and Kelley Tyler McPherson, deceased; John Angel, individually and as next friend and guardian of Jessica Angel, deceased; AT&T Automotive Services, Inc.; Bonita Sykes; American Hermetics of Georgia, Inc.; Theresa Boatwright, individually and as next friend and guardian of Heather Boatwright; Murrill J. Hiers; Federal Insurance Company; Southern Guaranty Insurance Company of Georgia; and State Farm Mutual Automobile Insurance Company. These defendants will he referred to collectively as defendants unless specifically set forth otherwise.

       The representative’s testimony does not indicate whether the date the cancellation notice was sent was the actual due date for a premium. See Timely Entertainment Intl. v. State Farm &c. Co., 208 Ga. App. 467, 469 (430 SE2d 844) (1993) (notice of cancellation found to be effective when sent on date premium was due).


author: Smith, Presiding Judge.

text:
    A99A0015.
    GRANT v. THE STATE.
    (535 SE2d 24)
    Decided May 17, 2000.

      L. Elizabeth Lane, for appellant.

      Charles H. Weston, District Attorney, Wayne G. Tillis, Howard Z. Simms, Assistant District Attorneys, for appellee.
   Smith, Presiding Judge.

In Grant v. State, 272 Ga. 213 (528 SE2d 512) (2000), the Supreme Court reversed our decision in Grant v. State, 237 Ga. App. 892 (515 SE2d 872) (1999), in which we affirmed the trial court’s denial of Grant’s motion to set aside his conviction based on Grant’s failure to show affirmatively by the record that the jury was not sworn. Accordingly, our opinion is vacated, and the judgment of the Supreme Court is made the judgment of this Court. Grant’s conviction is reversed, and his case is remanded for retrial.

Judgment reversed and case remanded.

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


author: Miller, Judge.

text:
    A00A0217.
    BRINSON v. THE STATE.
    (537 SE2d 370)
   Miller, Judge.

A jury rejected Kelvin Brinson’s coercion defense and found him guilty of robbery by intimidation and kidnapping, as a lesser included offense to armed robbery, while acquitting him of separate charges of armed robbery and kidnapping. On appeal, his sole enumeration of error urges the general grounds. We affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient.

Viewed in such light, the evidence shows that Brinson entered a Miami Subs restaurant around 9:45 a.m. on a Sunday, under the pretense of desiring to fill out a job application. After returning the application to the manager, Brinson pulled out a firearm and forced the manager and two employees to the back of the store where, at Brinson’s demand, the manager removed money from the safe and put it in a bag. After forcing the three into the restaurant’s cooler and walk-in freezer, Brinson exited the restaurant with approximately $2,500.

Brinson argues that the evidence was insufficient to sustain his convictions because he presented evidence of coercion. Under OCGA § 16-3-26, a person cannot be guilty of any crime except murder “if the act upon which the supposed criminal liability is based is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” “The danger must not be one of future violence, but of present and immediate violence, at the time of the commission of the forbidden act.” Coercion is an affirmative defense, and the burden rests with the State to disprove coercion beyond a reasonable doubt.

Brinson testified that Dwight Arnold was upset with him because Brinson had sex with Arnold’s stepdaughter. Pulling a gun, Arnold made Brinson ride with him, and the two drove to Miami Subs. Arnold gave Brinson another gun, unloaded, and told him to pretend that he was “Randy,” go into the restaurant to fill out a job application, and then rob the store. Brinson also testified that Arnold warned him that if he did not return in five or ten minutes, Arnold would go “straight to [Brinson’s] house,” where Brinson knew “what’s gonna happen.” That is, Arnold would “‘F’ [him] up.” Arnold also mentioned that he knew who Brinson’s mother was and where she lived.

To disprove Brinson’s coercion defense, the State offered the testimony of Arnold’s mother who stated that Brinson and Arnold knew each other and that while Arnold was incarcerated prior to this incident, she would call Brinson and, staying on the line, connect the two on the phone. She explained that in none of the five to ten conversations did she hear Arnold ever threaten or intimidate Brinson. Also, the victims did not see a car or anyone waiting for Brinson, nor did Brinson appear to look for anyone during the robbery.

Decided May 17, 2000.

Franklin & Hubbard, Stacy S. Levy, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Assistant District Attorney, for appellee.

The State also adduced evidence that Brinson was willing to “take the heat” for Arnold. In a previous investigation of Arnold involving a stolen automobile and a firearm, Brinson, then a tenth grade student, gave the police the improbable statement that he bought the gun from a junkie for $30 and that he bought the car from another junkie for $10 and gave or loaned them to Arnold. Brinson’s apparent motive for this could be viewed as friendship rather than fear. Whether the State met its burden of disproving coercion “is solely within the purview of the jury and will not be disturbed by this Court, as it is supported by sufficient evidence.” “[A]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Here, the conflicting evidence and antithetical inferences authorized the jury to find, beyond a reasonable doubt, that Brinson in fact was not coerced.

Moreover, “[c]oercion is a defense only if the person coerced has no reasonable way, other than committing the crime, to escape the threat of harm.” Even if the jury had believed Brinson’s testimony regarding the coercive threats, they still would have been authorized to find that Brinson had ample opportunity to take both himself and his mother out of harm’s way. Thus, we affirm the convictions for robbery by intimidation and kidnapping.

Judgment affirmed.

Pope, P. J, and Smith, P. J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Aleman v. State, 227 Ga. App. 607 (1) (489 SE2d 867) (1997).

       OCGA § 16-3-26; see Graham v. State, 239 Ga. App. 429, 431 (1) (b) (521 SE2d 249) (1999).

        Burns v. State, 89 Ga. 527, 528, hn. 5 (15 SE 748) (1892).

        Graham, supra, 239 Ga. App. at 432 (1) (b); Davis v. State, 232 Ga. App. 882, 883 (1) (502 SE2d 779) (1998).

       We do not decide whether the defense of coercion is available where the defendant reasonably believed the threat of imminent death or great bodily injury is directed at a close family member in order to compel the defendant to act.

       (Citations omitted.) Graham, supra, 239 Ga. App. at 432 (1) (b); see Davis, supra, 232 Ga. App. at 883-884 (1); Manning v. State, 231 Ga. App. 584, 585 (3) (499 SE2d 650) (1998).

       (Citation and punctuation omitted.) Davis, supra, 232 Ga. App. at 883 (1).

       (Citation omitted) Stitt v. State, 190 Ga. App. 58, 59 (378 SE2d 168) (1989).

       Cf. id.

       Under OCGA § 16-8-41 (a),
      [a] person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon. The offense of robbery by intimidation shall be a lesser included offense in the offense of armed robbery.

       OCGA § 16-5-40 (a) explains that a “person commits the offense of kidnapping when he abducts or steals away any person without lawful authority or warrant and holds such person against his will.”


text:
    A00A0225.
    E-Z SERVE CONVENIENCE STORES, INC. v. CROWELL.
    (535 SE2d 16)
   Blackburn, Presiding Judge.

Following a jury trial, E-Z Serve Convenience Stores, Inc. appeals the verdict against it and in favor of an ex-employee, Jimmie Davis Crowell, for $350,000 in compensatory damages and $350,000 in punitive damages. E-Z Serve contends that (1) the trial court erred by allowing Crowell’s claims for infliction of emotional distress, fraud, and punitive damages to go to the jury and (2) that the jury’s verdict was excessive. For the reasons set forth below, we affirm.

1. E-Z Serve contends that the trial court should have granted its motions for a directed verdict on the issues of emotional distress, fraud, and punitive damages.

The standard of review of a trial court’s denial of a motion for a directed verdict is the any evidence standard, and the evidence is construed most favorably toward the party opposing the motion. Accordingly, this standard of review requires [E-Z Serve] to show that there was no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demanded the verdict sought.

(Citation and punctuation omitted.) Wheat Enterprises v. Redi-Floors, 231 Ga. App. 853, 854 (501 SE2d 30) (1998).

Construing the evidence most favorably to Crowell, as we must, the record shows that, on February 18, 1997, Crowell, in his capacity as a manager of an E-Z Serve store on Camp Creek Parkway, was issued a citation by the City of East Point for violation of a city ordinance imposing a fine on entities whose alarm systems exceeded a set number of false alarms. Although E-Z Serve had previously been notified that it owed fines for violation of this ordinance, and Crowell had passed these notifications on to his supervisor, Louis Cain, on at least three occasions, the fines were not paid. The citation issued to E-Z Serve indicated that the charges regarding the false alarms would have to be answered in court on April 28, 1997, unless the accompanying fines had been paid.

On the day that Crowell received and signed the citation in his managerial capacity, he gave it to Cain. Crowell explained to Cain that the officer who delivered the citation told him that the fines needed to be paid, and Cain replied: “I’ll take care of it. I’ll handle it. Don’t worry about it.” Shortly thereafter, on February 21, 1997, Crowell was transferred to another store in Jonesboro, and his duties with the Camp Creek Parkway store ended. Crowell later terminated his employment with E-Z Serve and began working for another company on April 28, 1997.

E-Z Serve failed to pay the fines levied against it which resulted in the issuance of the February 18 citation, and no representative of the company showed up in court to answer the charges. As a result of this failure to appear, a bench warrant was issued for Crowell’s arrest because he had signed the false alarm citation. On the evening of August 8, 1997, police officers responded to a domestic call at Crowell’s home and, after running a routine check of his license, discovered the existence of the outstanding warrant. Crowell was then arrested, handcuffed, and taken to jail where he was ultimately detained for over 24 hours.

Once at the jail, Crowell called the Camp Creek Parkway store and asked the employee on duty, Belle Strickland, to call Cain so that he could post bail and clear up the matter. Strickland left a message for Cain which he received the following morning. Cain then called John Marshal, the manager of a store near the jail, and asked him to find out what was happening to Crowell. Marshal reported that Crowell was being held for the false alarm charge. After receiving this notice, Cain called his supervisor, Brad Williams, who, in turn called Ed Lambert, vice-president and corporate counsel for E-Z Serve. Williams then called Cain back and instructed him to have the false alarm fines paid. After discovering that the fines could not simply be paid at that point, no one from E-Z Serve took any action to assist Crowell. On the evening of the following day, Crowell got in touch with his child’s grandmother who came to the jail and posted bail.

After getting out of jail, Crowell received a notice from the Department of Public Safety that his license had been suspended for failure to pay fines on the false alarm charge. Crowell then retained an attorney to represent him at a hearing regarding the citations on October 16, 1997. At this hearing, the judge determined that, because he signed the citation, Crowell had to pay a fine for failing to appear in court on April 28, 1997, although he was not ultimately responsible for the false alarm charge. In addition, Crowell was required to pay a separate fine to have his license reinstated. Crow-ell’s license was subsequently reinstated on November 10, 1997.

It is undisputed that Crowell had no obligation or authority to ensure that E-Z Serve paid its bills and other obligations. His only responsibility was to pass the notice of such obligations along to his supervisor.

(a) E-Z Serve contends that the trial court erred by denying its motion for directed verdict regarding Crowell’s claim for intentional infliction of emotional distress. We disagree.

[W]hen the claim is for intentional misconduct, damages for mental distress may be recovered without proof of physical injury. Tuggle v. Wilson, 248 Ga. 335, 337 (282 SE2d 110) (1981). That principle has its corollary in this: reckless and wanton disregard of consequences may evince an intention to inflict injury. Carr v. Woodside Storage Co., 217 Ga. 438, 443 (1) (123 SE2d 261) (1961). “(I)t is equally well established that for a reckless disregard of the rights of others, equivalent to an intentional tort by the defendant, the injured party may recover for the mental pain and anguish suffered therefrom.” Pollard v. Phelps, 56 Ga. App. 408 (1) (193 SE 102) (1937), quoted with approval in McCoy v. Ga. Baptist Hospital, 167 Ga. App. 495, 498 (306 SE2d 746) (1983).

Hamilton v. Powell, Goldstein, Frazer &c., 252 Ga. 149, 150 (311 SE2d 818) (1984). “[T]hat entire want of care which would raise the presumption of a conscious indifference to consequences . . . relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” Gilman Paper Co. v. James, 235 Ga. 348, 351 (219 SE2d 447) (1975); accord Bowen v. Waters, 170 Ga. App. 65, 67 (2) (316 SE2d 497) (1984); Skil Corp. v. Lugsdin, 168 Ga. App. 754, 755 (1) (309 SE2d 921) (1983).

In this case, there is some evidence that E-Z Serve showed a conscious indifference toward Crowell which precipitated his injuries. After being informed of the false alarm citation, Cain warranted to Crowell that he would take care of it; however, he did nothing to ensure that the fines were paid. Then, after he had been informed that Crowell had been arrested as a result of the false alarm charge, neither he nor any other employee of E-Z Serve acted to assist Crow-ell in getting out of jail. Accordingly, the issue of E-Z Serve’s intentional infliction of emotional distress was properly sent to the jury for determination.

E-Z Serve also contends that the jury was allowed to consider a claim for the negligent infliction of emotional distress, despite the fact that it is not a viable cause of action in Georgia. The record, however, shows that this contention is wholly without merit. In the closing charge to the jury, the trial court explicitly stated: “There is no recognizable cause of action in this state for negligent infliction of emotional distress.”

(b) E-Z Serve contends that the trial court erred by denying its motion for directed verdict regarding Crowell’s claim that he was defrauded.

“Except in plain and indisputable cases, [however,] questions of fraud and whether a plaintiff could have protected himself through the exercise of ordinary diligence are questions for a jury. [Cit.]” Lester v. Bird, 200 Ga. App. 335, 338 (1) (408 SE2d 147) (1991). An actionable claim of fraud exists when: (1) the defendant makes a representation, (2) with the knowledge it was false, (3) with the intention to deceive the plaintiff; (4) the plaintiff reasonably relies upon the representation by the defendant; and (5) the plaintiff suffers a loss as a proximate result of the representation. Simpson Consulting v. Barclays Bank, 227 Ga. App. 648, 650 (1) (490 SE2d 184) (1997).

Fraud, though, does not have to be committed solely by wilful misrepresentation. Instead, it “is subtle and can be accomplished in an infinite number of ways including signs and tricks and even, in some instances, by silence. [Cits.]” Stanford v. Otto Niederer & Sons, Inc., 178 Ga. App. 56, 57-58 (1) (341 SE2d 892) (1986). Here, due to Cain’s history of ignoring false alarm notifications, the jury could have concluded that, at the time he informed Crowell that he would take care of the citation, he had no real intention to do so. Accordingly, the issue of fraud was properly sent to the jury.

(c) E-Z Serve contends that the trial court erred by denying its motion for a directed verdict on Crowell’s claim for punitive damages.

Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences. OCGA § 51-12-5.1 (b). “(Conscious indifference to consequences) relates to an intentional disregard of the rights of another, knowingly or wilfully disregarding such rights.” (Punctuation omitted.) John H. Smith, Inc. v. Teveit, 175 Ga. App. 565, 568 (1) (b) (333 SE2d 856) (1985). “(R)ecovery of punitive damages may be authorized where the circumstances of the tort show an entire want of care and an indifference to consequences. Wilful and intentional misconduct is not essential.” Hoffman v. Wells, 260 Ga. 588 (1) (397 SE2d 696) (1990).

CSX Transp. v. West, 240 Ga. App. 209, 210 (2) (523 SE2d 63) (1999).

Decided May 17, 2000.

Newman, Sapp & Davis, Alan L. Newman, Michele L. Davis, for appellant.

Middleton, Mathis, Adams & Tate, Charles A. Mathis, Jr., David F. Walbert, Herald J. A. Alexander, for appellee.

As discussed in Division 1 (a), the evidence supports a finding that E-Z Serve acted with reckless disregard of Crowell’s welfare by allowing him to sit in jail as a result of E-Z Serve’s failure to pay its own charge for false alarms. Therefore, the jury in this case appropriately considered the issue of punitive damages.

2. Finally, E-Z Serve contends that the jury’s verdict of $350,000 in compensatory damages and $350,000 in punitive damages was excessive. We cannot agree.

In general,

the jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to shock the conscience. Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.

(Punctuation omitted.) Consolidated Freightways Corp. &c. v. Futrell, 201 Ga. App. 233, 234 (2) (410 SE2d 751) (1991).

In this case, due to the evidence of E-Z Serve’s conscious disregard for Crowell’s hardships caused by its own failure to handle its false alarm citation, we cannot say that the jury’s verdict is so flagrant as to shock the conscience, and E-Z Serve has provided us with no compelling evidence to overturn the jury’s verdict.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       According to the city ordinance, a $50 fine was imposed on an organization for the second false alarm it received, and each consecutive false alarm would increase the fine by $50. False alarm reports were issued to the Camp Creek Parkway store on July 19,1996, August 27, 1996, September 8, 1996, November 3, 1996, January 11, 1997, January 23, 1997, and March 6, 1997.

       These notifications were placed in envelopes set aside for important correspondence and sent to Cain, as Cain had instructed. Cain, however, admitted that he did not look at all the documents he received.


author: Johnson, Chief Judge.

text:
    A00A0264.
    SOUTHERN WATERS DEVELOPMENT, INC. et al. v. THOMAS R. HOPSON-BROKER, INC.
    (535 SE2d 20)
   Johnson, Chief Judge.

Thomas R. Hopson-Broker, Inc. (“Hopson-Broker”) sued Southern Waters Development, Inc. and its president, Alphonso Waters, Jr., (collectively “Southern Waters”) for breaching an open account agreement. Hopson-Broker moved for summary judgment, presenting evidence that Southern Waters purchased and failed to pay for building materials totaling $33,534. In response, Southern Waters admitted owing money under the agreement but claimed that it owed only approximately $23,700. The trial court granted summary judgment to Hopson-Broker, and Southern Waters appeals.

1. Southern Waters contends that summary judgment was improper because the amount owed is in dispute and Hopson-Broker failed to proffer sufficient evidence showing that the amount sought was correct. We hold that Hopson-Broker failed to meet its burden of showing it is entitled to summary judgment in the amount of $33,354.

In support of its motion for summary judgment, Hopson-Broker submitted the affidavit of its chief financial officer. In his affidavit, the financial officer states that he has personal knowledge of and has reviewed the account and that Southern Waters owes Hopson-Broker $33,534 for materials purchased on the account. He avers that payment was requested but not received. Attached to his affidavit is a document entitled “CAROLINA BUILDERS CORP. CASH RECEIPTS INQUIRY,” which appears to be a computer printout. On the document are the numbers 2,402.10 and 26,191.12, listed under the headings “G/L” and “A/R.” The document also contains a handwritten notation beneath these figures: “PLUS BAD CHECK OF 4941.75,” which is followed by “$33,534.97.” Hopson-Broker also points to Alphonso Waters’ deposition, in which Waters admitted owing “approximately $23,700.”

In response to the motion, Southern Waters pointed to its answers to interrogatories in which it maintained that the amount sought by Hopson-Broker exceeded the amount owed and that it had made payments on the account. Southern Waters also pointed to Alphonso Waters’ deposition testimony in which Waters admitted that money is owed but asserted the amount was “approximately $23,700,” rather than the amount claimed. Because the entire deposition is not included in the record, we cannot determine whether Waters elaborated upon the statement or offered any evidence to support it.

On motion for summary judgment, the movant is required to produce evidence conclusively establishing that no issue of material fact remains and that it is entitled to judgment as a matter of law. The evidence proffered by Hopson-Broker is vague at best. It includes no details as to transactions, purchases or payments and no calculations. It does not contain even the slightest indication as to how Hop-son-Broker arrived at the amount sued upon. In fact, the figures shown on the “CASH RECEIPTS INQUIRY” do not add up to the amount sued upon. Although Southern Waters has admitted owing “approximately $23,700” on the account, there is no clear evidence in this record as to the exact amount owed — only an approximation. Indeed, the admission that it owes “approximately $23,700” leaves uncertain the amount of indebtedness.

Decided May 17, 2000.

Emmett C. Touchstone, Jr., for appellants.

Jackel, Rainey, Marsh & Busch, James C. Busch, Chad K. Reed, Richard A. Hull, for appellee.

While Hopson-Broker has shown that no genuine issue of material fact remains as to whether Southern Waters is liable on the account in some amount, it has not satisfied its burden of showing the absence of an issue as to the exact amount of the indebtedness. The trial court therefore erred in granting summary judgment to Hopson-Broker for the amount it claims is due.

2. Hopson-Broker’s motion to assess frivolous appeal damages is denied.

Judgment reversed and case remanded.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

        Trico Ins. Agencies v. Selective Ins. &c., 213 Ga. App. 138, 139 (1) (444 SE2d 119) (1994).

        Edge v. Stephens, 172 Ga. App. 759, 760 (324 SE2d 579) (1984).

        Yalanzon v. Citibank, 169 Ga. App. 961, 962 (1) (315 SE2d 677) (1984).


text:
    A00A0753.
    BARTLETT v. THE STATE.
    (537 SE2d 362)
   Miller, Judge.

Jesse Raymond Bartlett was tried before a jury and, notwithstanding his acquittal on a charge of burglary, was found guilty of aggravated assault, terroristic threats, possession of a firearm during the commission of a crime, and cruelty to children in the second degree (two counts). Bartlett appeals from the denial of his motion for new trial. In five related enumerations of error, he urges the evidence is insufficient to support any of his convictions. We affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. An appellate court does not weigh the evidence or judge the credibility of the witnesses but only determines whether the evidence to convict is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. So long as there is some competent evidence, even though contradicted, to support each element of the State’s case, the jury’s verdict will be upheld.

Viewed in the light most favorable to the jury’s verdicts, the evidence revealed that, over a four-year period, Bartlett had an adulterous relationship with Annett Land, who was married to Len Land. On the evening of October 8, 1998, after Annett Land called him to end the affair, Bartlett went to the Land residence armed with a loaded rifle and knocked loudly on the door. Len Land opened the door, and from the porch, Bartlett announced that “he was in love with [Land’s] wife and that he was going to take her for his own even if he had to kill [Land] to do it.”

Land was unarmed and noticed the rifle at Bartlett’s side but told Bartlett to “get the hell off [his] property.” Bartlett pointed the gun at Land’s chest and stepped through the door, saying “she [Annett] will have to make me leave, I will not leave.” At this point, the two Land children, ages eight and four at the time, came into the living room, saw what was happening, and started crying. Len Land picked up a telephone to dial 911, but Bartlett pointed the rifle at Land’s forehead, right between the eyes, the barrel actually touching, pulled the trigger back, and told Land: “I’ll kill you right here, you hang up the phone.” The two boys witnessed this and were “screaming to the top of their lungs please don’t kill my mom and daddy.”

When Annett Land intervened and told Bartlett to leave, he started toward the door, then put the rifle barrel in his own mouth. Annett Land started screaming, and Len Land hustled his crying children into a bedroom. Annett Land got Bartlett out of the house, and Len Land called 911. Bartlett left before police arrived. Len Land denied ever threatening Bartlett with a firearm. Bartlett’s roommate confirmed to police that Bartlett grew angry after Annett’s call and that when he left his residence, he took with him a .22 lever action Marlin. When asked why he needed a gun, Bartlett said: “[N]ot to worry about it; that he was going to take care of it.” A week or so after this incident, Bartlett asked his roommate to plant old love letters from Annett Land in the mail box, so Bartlett could complain that she was harassing him.

Decided May 17, 2000.

Lee Sexton & Associates, Robert L. Ferguson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

“The testimony of a single witness is generally sufficient to establish a fact.” Proof that Bartlett, in anger, pointed the loaded rifle at Len Land’s head and chest is sufficient under the standard of Jackson v. Virginia, to authorize the jury’s verdict that. Bartlett is guilty, beyond a reasonable doubt, of aggravated assault by use of a deadly weapon as alleged in Count 1 of the indictment. And the corroborated proof that Bartlett orally threatened to kill Len Land while pointing the rifle at him is sufficient to authorize Bartlett’s separate conviction for terroristic threats as alleged in Count 3. Proof that Bartlett used a firearm in the commission of his assault upon Land with a deadly weapon authorized his separate conviction for possession of a firearm during the commission of a crime against another person. And proof that Bartlett, knowing the two boys were present, committed a forcible felony by pointing a rifle at their father’s head while threatening to kill their father is sufficient to authorize Bartlett’s two separate convictions for cruelty to children in the second degree. The enumeration of the general grounds is without merit.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

       (Citations omitted.) Ringo v. State, 236 Ga. App. 38, 39 (510 SE2d 893) (1999).

       OCGA § 24-4-8.

       Supra.

       OCGA § 16-5-21 (a) (2); Ringo v. State, supra, 236 Ga. App. at 40. Accord Rameau v. State, 267 Ga. 261, 262-263 (1) (477 SE2d 118) (1996).

       OCGA § 16-11-37 (a); Jordan v. State, 214 Ga. App. 346, 347 (447 SE2d 341) (1994). Accord Moss v. State, 148 Ga. App. 459, 460 (1) (251 SE2d 374) (1978) (if there is competent evidence of corroboration, this Court will not go behind jury’s verdict and weigh the evidence).

       OCGA § 16-11-106 (b) (1); Walden v. State, 264 Ga. 92 (441 SE2d 247) (1994). In this regard, Bartlett’s reliance on Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996), is misplaced, as Strong was overruled by the unanimous whole court decision in Kimble v. State, 236 Ga. App. 391, 395 (1) (512 SE2d 306) (1999).

       OCGA § 16-5-70 (c) (2).


text:
    A00A0944.
    SOUTH v. MONTOYA.
    (537 SE2d 367)
   Eldridge, Judge.

On October 2, 1995, Beth Denton South was in a collision with Theresa Montoya in Chatham County, Georgia, where Montoya, the tortfeasor, lived. South filed suit against Montoya on October 2, 1997. Montoya had previously moved to North Carolina, however, and could not be found for service. South was unable to personally serve Montoya in North Carolina under the Georgia Long Arm Statute, OCGA § 9-10-90 et seq., because she never learned Montoya’s address. South obtained an order to serve Integon Insurance, Montoya’s insurer, by substituted service in North Carolina as service on Montoya. Montoya answered and raised as defenses lack of service of process, personal jurisdiction, and the statute of limitation. Montoya also filed a motion to dismiss for lack of service, lack of diligence, and the statute of limitation. On October 1, 1999, the trial court entered an order dismissing the complaint under OCGA § 9-11-12 (b) without indication whether the dismissal was in abatement under OCGA § 9-11-12 (b) (2), (4) and (5) or was on the merits under OCGA § 9-11-12 (b) (6) in bar.

South’s sole enumeration of error is that the trial court erred in dismissing the complaint. We do not fully agree. Since removal of a defendant from the state tolls the running of the statute of limitation under OCGA § 9-3-94, if the trial court dismissed the action on the merits, then it was error; also, lacking personal jurisdiction, the trial court could not reach the merits of the case. However, if the trial court dismissed the case under OCGA § 9-11-12 (b) (2), (4), and (5) as a matter in abatement without prejudice, then this would be a proper disposition of the case.

1. The trial court properly dismissed the complaint for lack of service and lack of personal jurisdiction. Substituted service on a tortfeasor’s insurer is not proper service under OCGA § 9-11-4 (d) and (e) (2) or OCGA § 9-10-90 et seq. See Gould v. Latorre, 227 Ga. App. 32, 33 (1) (488 SE2d 116) (1997). Montoya, the insured, has been neither personally nor constructively served process as prescribed by such statutes for perfecting service. See Thorburn Co. v. Allied Media of Ga., 237 Ga. App. 800, 802 (1) (516 SE2d 833) (1999).

If service is perfected in accordance with statutory requirements, the date of service relates back to the date of filing, which establishes the date the action is commenced. If service is never perfected and is not waived, the court does not acquire jurisdiction over the defendant and the suit is void, since the filing of a complaint without perfecting service does not constitute a pending suit.

(Citations and punctuation omitted.) Id.

While notice of the action may have been communicated to Montoya in this fashion, service of summons of process must be perfected as prescribed by law for the trial court to acquire jurisdiction over the person of the defendant to rule on the merits of the case. Thorburn Co. v. Allied Media of Ga., supra at 802. Thus, the trial court had jurisdiction sufficient to determine its lack of personal jurisdiction over the defendant and to dismiss the complaint without prejudice when it determined such jurisdictional issues adversely to the plaintiff. Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979). Ruling on such motion does not reach the merits of the case, because they are defenses in abatement. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974); Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991).

2. Since the trial court lacked personal jurisdiction over Montoya, it then lacked the authority to decide any issues on the merits, i.e., the running or tolling of the statute of limitation. Williams v. Fuller, supra at 849 (3); Zepp v. Toporek, 211 Ga. App. 169, 172-173 (2) (438 SE2d 636) (1993); Hight v. Blankenship, supra at 745. Once the trial court determines that service has not been perfected and that there is no personal jurisdiction over the defendant, the trial court loses jurisdiction to rule on the merits of the case, including the statute of limitation and tolling of the statute. See Wilson v. Ortiz, 232 Ga. App. 191, 193-194 (1) (501 SE2d 247) (1998).

Furthermore, the statute of limitation would be tolled by Montoya’s absence from the state. See OCGA § 9-3-94. For this tolling provision to apply, the defendant must have been a resident of the state when the cause of action accrued and have left the state with the intent to change residence. Miller v. Rackley, 199 Ga. 370, 377 (3) (34 SE2d 438) (1945); Stanfield v. Hursey, 36 Ga. App. 394 (2) (136 SE 826) (1927). Temporary absence from the state does not cause the tolling to occur. Bryant v. Sanders, 139 Ga. App. 379 (228 SE2d 329) (1976). Tolling occurs only when service has become impossible to make. Railey v. State Farm &c. Ins. Co., 129 Ga. App. 875, 877 (1) (201 SE2d 628) (1973). Since service by the Long Arm Statute provides a vehicle by which a nonresident or a former resident can be served where such defendant’s residence is known, see Crowder v. Ginn, 248 Ga. 824 (286 SE2d 706) (1982), then unreasonable delay in perfecting service will give rise to laches and the running of the statute of limitation. OCGA § 9-10-90 et seq.; Gould v. Latorre, supra at 33-34 (2); Towns v. Brown, 177 Ga. App. 504 (339 SE2d 926) (1986). However, where the former resident’s foreign residence is not known outside the state, the running of the statute of limitation is tolled until such residence should reasonably be discovered. OCGA § 9-3-94; see generally Miller v. Rackley, supra; Railey v. State Farm &c. Ins. Co., supra at 880 (4); Tift v. Bank of Tifton, 60 Ga. App. 563 (4 SE2d 495) (1939). To this day, South has never learned the residence of Montoya for purposes of service. Therefore, the trial court erred in granting a dismissal on the merits.

Decided May 17, 2000.

Richard L. Roble, for appellant.

Branan, Searcy & Smith, David R. Smith, for appellee.

The judgment is vacated, and upon remand, the trial court shall enter a judgment of dismissal without prejudice under OCGA § 9-11-12 (b) (2), (4), and (5).

Judgment affirmed in part, reversed in part and remanded with directions.

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


author: McMURRAY, Senior Appellate Judge.

text:
    A00A1396.
    A00A1629.
    WHITE v. THE STATE. MOORE v. THE STATE.
    (537 SE2d 364)
   McMURRAY, Senior Appellate Judge.

A DeKalb County jury convicted co-defendants Andre White and Johnny Moore of two counts of aggravated assault. They were sentenced to concurrent sentences of 15 years to serve. Separately, they now appeal upon the superior court’s denial of their motions for new trial. Because the claims of the co-defendants arise upon the same facts, we have consolidated their cases for disposition on appeal. Held-.

Viewed in a light most favorable to the jury’s verdicts, the evidence shows that in the early morning hours of December 22, 1996, Deanthony Moore, Melvin Lowe, and Bruce Riggins were sitting in Deanthony Moore’s car at an Atlanta convenience store. As they were doing so, co-defendant Moore approached the vehicle on foot, opened the driver’s door, and shouted the words, “What’s up Mother [expletive deleted]?” at Deanthony Moore. Co-defendant Moore then began firing a handgun at the occupants of the car. Riggins ran from the scene as the shooting began. From his position standing in front of the car, White joined co-defendant Moore in the shooting, firing multiple shots into the car and, in particular, at Deanthony Moore’s head. When the shooting stopped, Deanthony Moore had been wounded six times in his legs. Lowe and Riggins escaped without injury. Deanthony Moore identified the defendants as the perpetrators in court. Investigator Geraldine Carawan testified that Deanthony Moore had earlier identified co-defendant Moore in a pretrial photographic lineup. Investigator Carawan further testified that Lowe and Riggins also identified the defendants as the perpetrators in pretrial photographic lineups she showed them separately.

Case Nos. A00A1396 and A00A1629

1. In two enumerations of error, defendants contend that the superior court erred in permitting Investigator Carawan to testify, over objection, that Lowe and Riggins identified them in pretrial photographic lineups conducted by Investigator Carawan. We disagree. Pretermitting defendants’ arguments that their Sixth Amendment right of confrontation was violated upon allowing such testimony, “ A. law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection. [Cit.]’ ” Moreover, “[a] police officer’s testimony of such identification is not hearsay and is admissible to establish the fact that an identification was made.” Accordingly, these claims of error are without merit.

2. In two enumerations of error, defendants challenge the sufficiency of the evidence to support their convictions. In a related third enumeration of error, co-defendant Moore contends that the superior court erred in denying his motion for new trial upon the general grounds. These claims of error are without merit.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. . . . Conflicts in the testimony of witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

When the “general grounds” are asserted, we proceed as in reviewing for the sufficiency of the evidence. In the cases sub judice, the co-defendants were identified as the shooters in and out of court. Reviewing the evidence in the light most favorable to the jury’s verdicts and leaving evidentiary weight and witness credibility to the jury, we find that a rational trier of fact could have found each defendant guilty beyond a reasonable doubt of the crime of aggravated assault.

Case No. A00A1629

3. Lastly, co-defendant Moore complains that the superior court erred in striking juror 28, Steven Lowe, for cause from the jury venire. On voir dire, juror Lowe testified that eight months before trial he had been surrounded by police and forced to sit on the ground after mistakenly being identified as having stolen a woman’s purse. While juror Lowe was not arrested, he testified that he could not be fair and impartial as a juror because of it. In other testimony, juror Lowe indicated that his brother was in prison for aggravated assault and that he felt victimized by the criminal justice system for having released his father’s murderer after serving only five years confinement. Although juror Lowe later stated he could serve as a fair and impartial juror, the superior court nonetheless granted the State attorney’s challenge for cause against him over co-defendant Moore’s objection.

In order to insure impartiality of prospective jurors, the trial court is vested with great latitude in exercising its direction to determine whether an individual juror can decide the case without bias and in accordance with the evidence. Unless there is a manifest abuse of that wide discretion, the determination by the trial court will not be disturbed. Furthermore, while a party is entitled as a matter of right to an array of impartial jurors to which peremptory challenges may be directed, a party is entitled to no more. Having no legal right to a jury which includes those who because of scruple or bias [a party] thinks might favor [its] cause, [a party] suffers no prejudice if jurors, even without sufficient cause, are excused by the judge. Only if a judge without justification overrules a challenge for cause and thus leaves on the panel a juror not impartial, does legal error occur. The entitlement of a party extends only to a fair and impartial jury; the right to reject, not select.

Decided May 17, 2000

Andrej S. Bajuk, for appellant (case no. A00A1396).

Carla J. Friend, for appellant (case no. A00A1629).

J. Tom Morgan, District Attorney, Kristin L. Wood, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

The superior court did not abuse its discretion in striking juror 28 in the cases sub judice.

Judgments affirmed.

Pope, P. J., and Miller, J., concur.

       We note that the constitutional right of confrontation does not require the exclusion of all hearsay evidence in criminal cases. See Lilly v. Virginia, 527 U. S. 116, 125 (119 SC 1887, 1894, 144 LE2d 117) (‘We have allowed the admission of statements falling within a firmly rooted hearsay exception since the Court’s recognition . . . that the Framers of the Sixth Amendment obviously intended to respect certain unquestionable rules of evidence in drafting the Confrontation Clause”) (citations and punctuation omitted). Accord Littles v. Balkcom, 245 Ga. 285, 286 (2) (264 SE2d 219).

        Harper v. State, 213 Ga. App. 444, 449 (6) (445 SE2d 303), citing Bruce v. State, 142 Ga. App. 211, 213 (2) (235 SE2d 606).

       See OCGA § 24-3-2 (“[w]hen, in a legal investigation, information, conversations, letters and replies, and similar evidence are facts to explain conduct and ascertain motives, they shall be admitted in evidence not as hearsay but as original evidence”).

        Momon v. State, 161 Ga. App. 629, 630 (2) (288 SE2d 767), aff’d, 249 Ga. 865 (294 SE2d 482).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560).

       (Citations and punctuation omitted.) Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489).

        Harper v. State, 241 Ga. App. 865, 866 (1) (528 SE2d 317).

       OCGA § 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults: ... (2) with a deadly weapon.”); Jackson v. Virginia, 443 U. S. 307, supra; Lowery v. State, 242 Ga. App. 375, 376 (1) (530 SE2d 22).

       (Citations and punctuation omitted.) Loper v. Drury, 211 Ga. App. 478, 485 (6) (440 SE2d 32), citing Southern R. Co. v. Minor, 196 Ga. App. 183, 185 (3) (395 SE2d 845).