text:
    A93A1284.
    CANTRELL v. THE STATE.
    (435 SE2d 737)
   Blackburn, Judge.

In a two-count indictment, the appellant, John Alexander Cantrell, was charged with selling cocaine on October 10, 1991, and on October 11, 1991, respectively, in violation of the Georgia Controlled Substances Act. Following a trial by jury, he was acquitted on Count 1 of the indictme‘nt, convicted on Count 2, and sentenced to life in prison. This appeal follows the trial court’s denial of his motion for a new trial.

At trial, the state presented the testimony of a deputy sheriff who accompanied a known informant to the location where the cocaine sale was made on October 11, 1991. The informant had previously assisted undercover officers in the investigation of cocaine sales. The deputy and the informant proceeded to the Tote-A-Poke in the informant’s automobile, and Cantrell was seen pulling into the parking lot of the store. The deputy had seen Cantrell several times before and knew him by name. After the informant was given $40 by the deputy, he exited the automobile and began talking to Cantrell. The deputy saw the hands of the two men meet and observed the exchange of money between the two men. He also saw Cantrell provide the informant with what later proved to be crack cocaine. Thereafter, the informant returned to the automobile where the deputy had been sitting, and gave the deputy the cocaine. The two left the store and returned to the designated area where the cocaine was given to an investigating officer. The investigating officer had followed the deputy and the informant to the Tote-A-Poke and had observed the transaction from across the street. With the aid of binoculars, he also saw the hands of Cantrell and the informant meet, and saw Cantrell thereafter return to his car where he stayed for 15 seconds before exiting same at which time the hands of the two men again came together. The informant denied that Cantrell was involved in the sale of contraband on that date and maintained that he purchased the contraband from a passenger in Cantrell’s automobile. Cantrell testified and denied selling the crack cocaine to the informant, but he did admit that he had pled guilty to possession of cocaine with the intent to distribute in 1989.

1. In his first enumeration of error, Cantrell contends that the evidence produced at trial was insufficient to warrant his conviction for the sale of cocaine on October 11, 1991. We conclude otherwise. Although the evidence in this case is conflicting, the jury considered the diametrically-opposed testimony of Cantrell and the known informant versus the testimony of the investigating officer and the deputy sheriff, weighed the credibility of these witnesses, and resolved the conflict in the testimonial evidence against Cantrell. “[T]his court may not substitute its judgment for that of the jury.” Russell v. State, 207 Ga. App. 136, 137 (427 SE2d 106) (1993). “On appeal, we do not weigh the evidence, nor do we assess the quality of the evidence or the credibility of witnesses ... we look only to determine whether the evidence is sufficient to sustain the verdict, construed in the light most favorable to the jury’s verdict and giving that verdict every presumption and every inference towards upholding its validity. [Cits.]” Granderson v. State, 204 Ga. App. 451, 452 (419 SE2d 533) (1992). “The credibility of the undercover [officers] was for the jury.” Weldon v. State, 204 Ga. App. 221 (2) (419 SE2d 59) (1992). Reviewing the decidedly conflicting evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt of selling cocaine in violation of the Georgia Controlled Substances Act. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Gooden v. State, 204 Ga. App. 62, 64 (4) (418 SE2d 632) (1992).

2. Next, Cantrell argues that the trial court erred in its admission of his previous conviction because there was no evidence presented establishing the similarity or connection between the independent offense and the crime for which he was on trial. We disagree.

Generally, on a prosecution for a particular crime, evidence of independent offenses committed by an accused is irrelevant and inadmissible. Stephens v. State, 261 Ga. 467 (405 SE2d 483) (1991). “Before any evidence of an independent offense may be introduced, the state must show 1) that the evidence is relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character; 2) that there is sufficient evidence to establish that the accused committed the independent offense or act; and 3) that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” (Citations and punctuation omitted.) Wooten v. State, 262 Ga. 876, 880-881 (4) (426 SE2d 852) (1993). See also Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991); Stephens v. State, 261 Ga. at 469. “There is no requirement that, to come within the other transaction exception, the other transaction must be identical in every respect. The test of admissibility of evidence of other criminal acts by the defendant is not the number of similarities between the two incidents. Rather, such evidence may be admitted if it is substantially relevant for some purpose other than to show a probability that the defendant committed the crime on trial because he is a man of criminal character.” (Citations and punctuation omitted.) Collins v. State, 205 Ga. App. 341, 343 (2) (422 SE2d 56) (1992). See also Blige v. State, 205 Ga. App. 133 (2) (421 SE2d 547) (1992). However, “[i]t should also be emphasized that before such evidence is admissible, it must be shown that the evidence’s relevancy to the issues at trial outweighs the inherent prejudice it creates. [Cit.]” Randall v. State, 207 Ga. App. 637, 638 (428 SE2d 616) (1993).

In the case sub judice, both offenses involved a violation of the Georgia Controlled Substances Act and the sale or intent to sell cocaine. Accordingly, the offenses were substantially similar to justify admission as “[i]t is the factual similarity of the defendant’s possession of drugs on different occasions which renders it admissible to show his identity. . . .” (Citations and punctuation omitted.) Collins, supra at 343. “On the question of similarity, the trial court’s findings will not be disturbed unless ‘clearly erroneous.’ [Cits.]” Mitchell v. State, 206 Ga. App. 672, 673 (426 SE2d 171) (1992). Further, the similar transaction evidence was being introduced to show motive, intent, and knowledge, purposes deemed appropriate and exceptions to the general rule of inadmissibility. Williams, supra at 642. The trial court did not apply the balancing test in determining the admissibility of the similar transaction evidence as it should have done. However, this issue was not raised by Cantrell at the trial level or on appeal, and has therefore been waived by defendant. In view of Cantrell’s testimony and the informant’s denial of Cantrell’s involvement in the cocaine sale, it is clear in this case that the relevancy of this extraneous evidence outweighed that prejudice as this evidence was needed by the state to establish bent of mind, intent and motive. See Payne v. State, 207 Ga. App. 312, 315 (428 SE2d 103) (1993).

While Cantrell maintains that no evidence was offered to the jury regarding the facts of the possession with the intent to distribute charge, in his voluntary statement of August 15, 1989, which was read into evidence, Cantrell recounted his actions and the actions of his accomplice prior to his arrest. He further admitted therein that they sold all of the crack cocaine that they had except for the cocaine that was found on them at the time of their arrest. Unlike in Stephens, supra, and Williams, supra, the state did more than present a certified copy of Cantrell’s prior conviction as evidence of a prior similar transaction. Inasmuch as the state has met the three-prong test enunciated by our Supreme Court in Williams, supra, and the prejudicial impact of this evidence was outweighed by its relevancy to the issues and such issue was not raised by defendant in the current trial, we conclude that the trial court’s admission of this evidence was not erroneous.

3. In his final enumeration of error, Cantrell maintains that the trial court erred in admitting evidence of his previous conviction without requiring the state to prove that the plea taken therein was voluntarily given. We disagree as this court rejected a similar argument asserted by the defendant in McCann v. State, 203 Ga. App. 880, 881-882 (2) (418 SE2d 144) (1992).

In McCann, the defendant moved the court in limine to exclude two prior rape convictions on the grounds that they were obtained through guilty pleas based upon false pretenses and an ineffective counsel, relying on Pope v. State, 256 Ga. 195 (17) (345 SE2d 831) (1986) and Gadson v. State, 197 Ga. App. 315 (398 SE2d 409) (1990). In Pope, our Supreme Court noted that a plea of guilty is invalid and may not be used to enhance punishment in a subsequent trial unless the state meets its burden in showing that the defendant voluntarily and intelligently waived his rights with respect to the prior guilty plea once the issue is raised by the defendant. In Gadson, relying on Pope, we found that the trial court erred in admitting the defendant’s prior guilty plea offenses based upon the state’s failure to meet its burden in showing the voluntary nature of the pleas. However, in McCann, we stated that “[t]he holdings of Pope and Gadson specifically apply to the State’s introduction of a prior guilty plea during the sentencing portion of a criminal prosecution, and we will not extend the holdings in the manner suggested by defendant.” McCann, supra at 882. We find that the trial court did not err in admitting Cantrell’s prior guilty plea conviction.

Decided September 10, 1993.

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Brian K. Wilcox, Assistant District Attorney, for appellee.

However, in reference to the sentencing phase of the trial, once the issue of a prior non-voluntary guilty plea has been raised by the defendant, the state must present proof that the plea was made intelligently and voluntarily by the defendant. Id. In the case sub judice, although Cantrell objected to the voluntary nature of the prior guilty plea during sentencing, he admitted under oath at trial that he voluntarily pled guilty to the 1989 offense of possession of cocaine with the intent to distribute. As we noted under McCann, the “[defendant's admission waived any right he may have had to contest the validity of his prior guilty plea.” Id. at 882. Although Cantrell challenges the trial court’s judicial notice of his plea and the record in the prior case, he did not object to the trial court’s actions below and did not raise this alleged error in his enumerations of error. As this court has repeatedly held, “ ‘(o)n appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. (Cit.)’ [Cit.]” Kennedy v. State, 205 Ga. App. 152, 154 (2) (421 SE2d 560) (1992). See also Bridges v. State, 205 Ga. App. 664, 665 (423 SE2d 293) (1992). Consequently, this enumeration is without merit.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A93A1472.
    BRYANT v. THE STATE.
    (435 SE2d 741)
   Blackburn, Judge.

The appellant, Ricky Bryant, was convicted of aggravated assault. His sole contention on appeal is that the trial court erred in denying his motion for mistrial based on his character having been improperly placed in issue.

On August 16, 1990, Bryant and two of his brothers spent the afternoon drinking beer with Robbie Browning. Eventually, a fight ensued over the beer and Browning was beaten up by the others. He drove to his sister’s house, and later that night, accompanied by his wife, sister, and brother-in-law, he went looking for Bryant. When they observed Bryant’s van in Browning’s neighborhood, they chased him down a dead-end road and partially blocked it with their own vehicle. Browning then tried to hit Bryant with a baseball bat, but Bryant was able to maneuver the van and drive away from the scene.

Browning and his group then returned to his sister’s house. As they were finishing supper, they noticed Bryant’s van pull into the driveway. When Browning went to the front door, two shots were fired, one striking the door and the other striking Browning in the abdomen. Browning fell to the floor, and watched Bryant pull a gun through the van’s window, smile at him, and drive away. Browning’s wife, sister, and brother-in-law witnessed the incident, and at trial unequivocally identified Bryant as the shooter.

At trial, the State called Browning as its first witness. After Browning testified that he had known Bryant for about ten years, the State inquired as to how he had first come to know him. In response, Browning stated that “Me and Ricky was in the detention center together.”

Defense counsel immediately moved for mistrial on the grounds that the remark injected Bryánt’s character into issue. The State apologized that it had not intended to elicit the objectionable response. The trial court acknowledged concern that the testimony would impress upon the jury that Bryant had been “at least locked up on some other occasion,” but felt that curative instructions would take care of the problem. The trial court then emphasized to the jury that it must disregard the testimony regarding where Browning met Bryant.

Although prior to the giving of the curative instruction, defense counsel indicated that he did not want his failure to object to the trial court’s giving the instruction to constitute a waiver of the motion for mistrial, following the curative instruction, he neither renewed the motion for mistrial, requested further instructions or took any other action. Under such circumstances, the motion for mistrial was not preserved for review. Schirato v. State, 260 Ga. 170 (391 SE2d 116) (1990).

In any event, “[w]here a witness for the State in a criminal case voluntarily injects into the trial improper and prejudicial matter, on motion for a mistrial based thereon, whether mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing testimony from the consideration of the jury under proper instructions, is a matter ordinarily in the discretion of the trial court. The trial court’s ruling will not be disturbed on appeal absent an abuse of discretion, which does not exist if the curative instructions given can serve to prevent the alleged harmful testimony from having any prejudicial impact. . . .” (Citations and punctuation omitted.) Crawford v. State, 256 Ga. 585, 587 (351 SE2d 199) (1987).

Decided September 10, 1993.

Thompson, Fox, Chandler, Homans & Hicks, David A. Fox, for appellant.

Lydia Sartain, District Attorney, William M. Brownell, Jr., Assistant District Attorney, for appellee.

In the instant case, although the objectionable testimony occurred at the beginning of the trial, ultimately Browning, his wife, his sister, and his brother-in-law all positively testified that Bryant shot Browning, and this testimony was unrefuted. “It is highly improbable that [Browning’s answer] influenced the outcome of the case, in view of the strong weight of the evidence against [Bryant]. . . . [Cit.] Under the circumstances of this case, the trial court did not abuse its discretion in refusing to grant a mistrial.” Id.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1617.
    GORDON v. THE STATE.
    (435 SE2d 742)
   Blackburn, Judge.

In a two-count indictment, the appellant, Gregory Gordon, was charged with child molestation and statutory rape. Following a trial by jury, he was found guilty on both counts and the trial court merged the child molestation into the statutory rape conviction before sentencing him to 15 years in prison. This appeal followed.

The evidence presented at trial showed that Gordon had been living with the mother of the seven-year-old victim approximately six years before the sexual exploitation of the victim was discovered. In late August 1990, the victim was taken to a local hospital for complaints of burning during urination and a vaginal discharge. When questioned by the hospital’s medical social worker about possible sexual abuse, the victim indicated that her “stepfather” had sexual intercourse with her on several occasions. The social worker notified the local police of the allegations of sexual abuse, and during her investigation at the hospital, the investigator was also informed by the victim that her “daddy” had been engaging in sexual intercourse with her while her mother was not at home. The victim identified Gordon at trial as the person that she refers to as daddy. A pediatrician who examined the victim at the hospital testified that the victim was suffering from gonorrhea which was contracted through sexual intercourse. During his examination of the victim’s vaginal area, he observed redness in the hymen and noticed that her hymen was not intact at all, which indicated that there had been hymenal penetration. The physician further indicated that the victim’s hymen was comparable to that of an adult woman who had engaged in routine sexual intercourse.

During his testimony at trial, Gordon denied any sexual involvement with the victim and denied having gonorrhea based upon the results of testing performed before he was arrested and after he was released on bond following his arrest. However, the victim’s mother testified that Gordon complained of a burning sensation in his penis on the night before the victim was taken to the hospital.

1. Gordon initially asserts that the prosecutor’s comment during closing argument on his failure to produce a medical report supporting his testimony that he did not have gonorrhea impermissibly shifted the burden of proof. He specifically challenges the following argument by the prosecutor, to which he objected: “If he was so adamant about proving that he didn’t give gonorrhea to [the victim], don’t you think when he went to get this all important test the day he got out of jail he would have gotten the doctor’s name? Would have gotten the report that said he didn’t have gonorrhea.” The prosecution further argued that “[djon’t you think if those tests were available that he would have made sure that there was documentation?” Gordon again voiced an objection to this line of questioning and moved for a mistrial, and the motion was denied by the trial court.

Although a prosecutor may properly draw inferences in closing argument from the defense’s failure to produce witnesses, McGee v. State, 260 Ga. 178 (4) (391 SE2d 400) (1990), and may comment on a defendant’s failure to adduce evidence to rebut the state’s evidence, Johnson v. State, 204 Ga. App. 369 (2) (419 SE2d 96) (1992), the trial court did conclude that the prosecution’s comments unfairly placed in the minds of the jury that Gordon could have received written documentation from the hospital indicating that he did not have the disease, and “took the action necessary to make sure that the prosecutor’s argument did not erroneously shift any burden to [Gordon] by promptly and accurately granting appropriate curative instructions.” Martin v. State, 193 Ga. App. 581, 587 (388 SE2d 420) (1989). “[T]he trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Citations and punctuation omitted.) Id. Considering the prosecutor’s comments in the context in which they were made, after the prosecutor argued that Gordon did not have to present any evidence in this case, we cannot say that the trial court abused its discretion in overruling Gordon’s motion for a mistrial. Moreover, Gordon’s reliance on the Supreme Court’s decision in Ranger v. State, 249 Ga. 315 (290 SE2d 63) (1982) is misplaced. In Ranger, the Supreme Court discussed a prosecutor’s comment on the failure of an accused to testify. Inasmuch as Gordon did testify on his behalf, Ranger is inapplicable under the facts in this case. Accordingly, this enumeration is without merit.

2. Gordon next argues that the trial court erred by charging the jury that their duty was to find him “guilty or innocent” as he specifically requested at the charge conference rather than “guilty or not guilty.” In addition to his assertion that such references impermissibly resulted in the shifting of the burden of proof, Gordon maintains that repeated references to his guilt or innocence dilutes the presumption of innocence, promotes misunderstanding in jury deliberations and denies his right to a “not guilty” verdict. We disagree.

As we recently stated in Bass v. State, 208 Ga. App. 859, 861 (4) (432 SE2d 602) (1993), where the defendant therein questioned the trial court’s usage of the phrase “guilt or innocence” in its charge to the jury, “ [i]t is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) There is nothing in the review of the charges in the case sub judice to show that the presumption of innocence was diluted, the jury misunderstood this presumption during deliberation, or that the burden of proof was shifted to Gordon to prove his innocence. See Roker v. State, 262 Ga. 220 (4) (416 SE2d 281) (1992). In fact, the trial court specifically charged the jury that Gordon was presumed innocent until proven guilty, that he entered the trial with the presumption of innocence, and that there was no burden of proof on Gordon. In addition, the court charged the jury that the burden of proof never shifts to Gordon to prove his innocence. Moreover, the charges given by the trial court covered substantially the same principles as the “guilty or not guilty” charge requested by Gordon. Kennedy v. State, 205 Ga. App. 152, 156 (421 SE2d 560) (1992). Accordingly, this enumeration is without merit.

3. In his third enumeration of error, Gordon contends that the trial court erred in allowing an investigating officer to testify that the victim’s demeanor was consistent with other sexually abused children as this was the ultimate issue at trial. On the contrary, the state “was not attempting to elicit a direct opinion on the ultimate issue of whether the victim had been molested . . . [but] was simply attempting to elicit testimony as to whether the victim had exhibited that behavior which, in the [opinion] of the [witness], was typically displayed by a sexually abused child, not an opinion, based upon the victim’s behavior, as to whether she had actually been molested.” Hall v. State, 201 Ga. App. 626, 627 (2) (411 SE2d 777) (1991). “Testimony merely as to whether the victim did or did not exhibit this ‘typical’ behavior would not invade the province of the jury, for the question of whether, notwithstanding her behavior, the victim was or was not molested would remain exclusively for jury resolution.” Id. However, the trial court on its own provided cautionary instructions to the jury to disregard the answer of the officer based upon Gordon’s objection. Consequently, a mistrial was not warranted.

4. Lastly, Gordon maintains that the trial court committed reversible error in failing to charge the jury on the law of sexual battery, as sexual battery, an offense involving the intentional physical contact with the intimate parts of the body of another without consent, OCGA § 16-6-22.1, is a lesser included offense of both child molestation and statutory rape. On the contrary, in Teasley v. State, 207 Ga. App. 719 (2) (429 SE2d 127) (1993), we recently rejected a similar argument made by the defendant therein, and held that the offense of sexual battery is not included in the offense of child molestation as a matter of law as “[t]he crimes of child molestation and sexual battery have different elements and protect different classifications of victims.” Id. In Barnes v. State, 244 Ga. 302, 305 (1) (260 SE2d 40) (1979), our Supreme Court specifically recognized that OCGA §§ 16-6-3; 16-6-4; 16-6-5, formerly Code Ann. §§ 26-2018; 26-2019; and 26-2020, together “provide a general statutory scheme giving protection to both male and female children under the age of fourteen. . . .” Therefore, we must conclude likewise that sexual battery is not a lesser included offense of statutory rape as a matter of law.

In considering whether sexual battery is a lesser included offense of statutory rape as a matter of fact, inasmuch as this offense is the sole offense on which the judgment herein was entered against the accused, we must recognize that “[wjhere the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense.” (Citations and punctuation omitted.) Teasley, supra at 720. The indictment in this case provides that the accused “did unlawfully take immoral, improper, and indecent liberties with the person of [the victim], a child under the age of fourteen (14) years, by placing accused’s sex organ against, upon and into the female sex organ of [the victim], with intent to arouse and satisfy his sexual desires.” The indictment in question was narrowly tailored to the offense of statutory rape as contained in OCGA § 16-6-3 (a), and based upon the evidence presented at trial in addition to the language of the indictment, a charge on sexual battery was not authorized. Accordingly, the trial court’s refusal to charge the jury on the law of sexual battery was not erroneous.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

Decided September 10, 1993.

Bruce S. Harvey, Pete C. Whitlock, for appellant.

Lewis R. Slaton, District Attorney, Shawn E. Lagrua, Vivian D. Hoard, Assistant District Attorneys, for appellee.


author: McMurray, Presiding Judge.

text:
    A93A0432.
    KNIGHT v. THE STATE.
    (435 SE2d 682)
   McMurray, Presiding Judge.

Defendant Knight appeals his conviction of the offenses of one count of child molestation, two counts of aggravated sodomy, and two counts of aggravated child molestation. Held:

1. Defendant contends that the trial court erred in permitting a videotape of a police interview of the victim to be played before the jury arguing that the tape failed to provide sufficient indicia of reliability. A redacted version of the videotape was played at trial following the testimony of the nine-year-old victim. The proof presented by the State related to incidents which occurred when the victim was six through eight years of age.

“The Child Hearsay Rule, OCGA § 24-3-16, is an exception to the hearsay rule. It provides ‘(a) statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.’ In Gregg v. State, 201 Ga. App. 238, 240 (411 SE2d 65) (1991), we set forth certain factors the trial court should consider when deciding if statements should be admitted pursuant to OCGA § 24-3-16. The factors include: ‘(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or'absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.’ (Emphasis omitted.) Id. at 240 (3) (b).” Peters v. State, 206 Ga. App. 143 (1) (424 SE2d 372). “These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even ‘several months after the alleged incident,’ in and of itself make the statement unreliable. [Newberry v. State, 184 Ga. App. 356, 358 (2) (361 SE2d 499).]” Gregg v. State, 201 Ga. App. 238, 241 (3b) (411 SE2d 65).

Applying these factors to the facts of the case sub judice, we hold the trial court correctly admitted the evidence in question pursuant to OCGA § 24-3-16. After a brief initial contact in the office of the investigating police officer, the interview with the victim was conducted at the Georgia Center for Children in a purpose built interview room furnished like a residential living room. The video cameras were concealed behind a two-way mirror, and only the officer dressed in civilian clothes and the victim were present in the room. The officer generally used open-ended questions which permitted the victim to tell her story in her own words and there was no evidence of any coaching, or inconsistent statements by the child. Our reading of the transcript of the interview, revealed the child, who was eight years old at the time of the interview, to be reasonably calm, composed, and coherent, and to understand the need for truthfulness.

Relying upon King v. State, 194 Ga. App. 662 (2) (391 SE2d 660), defendant complains that the interviewer was not neutral and that the place of the interview was not neutral ground. While the assertion that neither was neutral is arguably correct when directed to the goals of both the police officer and of the organization which provided the interview room, it is not accurate when applied to conduct. The reference to a neutral interviewer and place of interview in King should be recognized as relating to the atmosphere, circumstances, and manner in which the interview was conducted. King does not bar admission of interviews of young victims of sexual abuse by law enforcement officers. Such cases merely require that the officer conduct the interview in a manner conducive to eliciting the truth. This requirement was satisfied in this instance.

Defendant also argues that the interval of time between the commission of the offenses and the making of the videotape precludes any possibility of spontaneity. While we acknowledge the relevance of such chronological intervals which must be considered along with other factors, we find no authority for the bright-line rule advocated by defendant. Contrary to defendant’s argument, our refusal to accept the apparent spontaneity of the child’s statement in the videotape in Rolader v. State, 202 Ga. App. 134, 141 (1) (413 SE2d 752) did not arise from the passage of nine days between the molestation and the making of the videotape, but from the evidence of repeated questioning of the child by several adults during that interval. This enumeration of error is without merit.

Decided August 20, 1993

Reconsideration denied September 13, 1993.

John H. Tarpley, for appellant.

Kenneth E. Knight, pro se.

2. In his second enumeration of error, defendant contends that the playing of the videotape of the interview with the victim before the jury constituted an impermissible bolstering of the victim’s testimony. Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) held that where the veracity of a witness is at issue, and the witness is present at trial, under oath and subject to cross-examination, the prior consistent out-of-court statement of the witness is admissible as substantive evidence of the matter asserted. Defendant’s argument rests primarily upon language from Reynolds v. State, 257 Ga. 725 (1) (363 SE2d 249) where the Supreme Court noted that Cuzzort did not decide whether such statements were admissible over an objection that they bolstered the witness’ in-court testimony. In Reynolds the bolstering issue was not reached since it had not been raised below. However, other Supreme Court cases which have reached this issue have uniformly decided the matter adversely to defendant. Moon v. State, 258 Ga. 748, 758 (28) (375 SE2d 442); Lumpkin v. State, 255 Ga. 363, 365 (4) (338 SE2d 431); Edwards v. State, 255 Ga. 149, 150 (2) (335 SE2d 869).

3. In his final enumeration of error, defendant contends that OCGA § 24-3-16 works an unconstitutional deprivation of his due process rights under the Constitution of Georgia and under the Sixth and Fourteenth Amendments of the United States Constitution in that it permits the introduction of hearsay without a showing of “necessity.” Defendant argues that the introduction of the videotape of the victim’s out-of-court statement was improper because there was no showing of necessity since the victim was available for questioning. This argument reflects a misunderstanding of the meaning of “necessity” when used in this context as one of two prerequisites for admission of hearsay. The rule of necessity may be satisfied not only by showing that the declarant is not available for trial, but alternatively by producing the declarant at trial available to testify. Jackson v. State, 202 Ga. App. 582, 586 (2) (414 SE2d 905); Patterson v. State, 202 Ga. App. 440, 443 (4) (414 SE2d 895). Thus, in this case, the necessity requirement was satisfied by the fact that the victim was a witness at trial whom defendant was permitted to cross-examine.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Anne G. Maseth, Stacy Y. Cole, Assistant District Attorneys, for appellee.


text:
    A93A0740, A93A0741.
    CROCKER et al. v. STEVENS et al. BIRD & ASSOCIATES v. STEVENS et al.
    A93A0742.
    (435 SE2d 690)
   Blackburn, Judge.

These companion appeals arose from a petition to dissolve the Conyers Community Church, which was a nonprofit corporation, and to dispose of the church’s assets. The church was organized in 1976, and its membership, at its greatest, numbered 70 to 80. By late 1989, the membership had dwindled to approximately 23, and the church’s board of trustees (which included Kenneth Crocker (the church’s pastor), his son-in-law, and a third individual) decided to sell the church realty to a commercial buyer for $725,000.

From those proceeds, the church satisfied a first mortgage on the property of $164,070, a second mortgage of $156,616 owed to the pastor, and the closing costs of $75,418 ($29,000 of which was paid to the pastor, who also was a real estate broker and served as co-broker in the sale). The last church meeting took place on February 18, 1990, at which time the majority of members present approved as retirement benefits for the pastor: a lump sum gift of $100,000, and conveyance of the parsonage (after payment of the $34,038 encumbrance on it). According to Crocker and the church, church operating costs from the closing date until the last congregation, totaling $22,558, were also paid from the proceeds. The remainder of the sale proceeds was to be used to carry on the church’s purpose through radio, tape, newsletter, ,and missionary ministry, with the pastor having control of those funds.

Subsequently, some of the church members commenced this action against Crocker and the church itself, seeking dissolution of the corporation, appointment of a receiver, an injunction against the defendants’ disposing of the corporate assets, and proper disposition of those assets. The trial court appointed a receiver over some of the assets in question, and enjoined Crocker from disposing of the assets in his control. Crocker eventually asserted a counterclaim against one of the plaintiffs, Ray Stevens, for comparing him to Jim Bakker in a newspaper article.

Crocker and the church corporation moved for summary judgment, which was denied by the trial court, and then sought an interlocutory appeal with the Georgia Supreme Court. The Supreme Court, however, denied the application. The matter proceeded to trial, and resulted in a jury verdict, wherein the plaintiffs were awarded $56,616.37 of the $156,616.37 second mortgage held by Crocker; the plaintiffs were awarded the $29,000 real estate commission claimed by Crocker; Crocker was awarded the parsonage and the $100,000 retirement gift; the plaintiffs were awarded the remaining church funds totaling $207,801.63, the church’s personal property, and all the interest that had accrued on the church’s funds while in the control of the receiver; and the plaintiffs were awarded $30,000 attorney fees and expenses of litigation against Crocker. The trial court directed a verdict against Crocker on his counterclaim for defamation, and denied the defendants’ claim for attorney fees to be paid from the church funds.

Subsequent to the trial, the court denied the defendants’ motion for j.n.o.v. and motion for new trial. It also dismissed Crocker’s notice of appeal from the directed verdict in his counterclaim, because he had not filed a transcript timely. In Case No. A93A0740, Crocker appeals the trial court’s direction of a verdict on the counterclaim in favor of Stevens. Case No. A93A0741 concerns the judgment entered on the jury’s verdict and the dismissal of Crocker’s notice of appeal on the counterclaim. Case No. A93A0742 involves the denial of attorney fees and litigation expenses incurred by the defendants.

1. Initially, we must address the issue of this court’s jurisdiction to consider these appeals. OCGA § 14-3-219 provides that superior courts have jurisdiction over the dissolution of corporations and the liquidation of the corporate assets and affairs, and the trial court specifically instructed the jury on this Code section. In Claire v. Rue de Paris, 239 Ga. 191, 193 (236 SE2d 272) (1977), wherein a shareholder filed a petition for dissolution of a corporation and an injunction to prevent the corporate officers from disposing of corporate assets, the Supreme Court quoted the above Code section and noted that the plaintiff’s complaint under that section “seeks equitable relief.” In Gervin v. Reddick, 246 Ga. 56 (268 SE2d 657) (1980), involving an action by a majority of church members against the Board of Deacons and the church’s pastor to enjoin depletion of church assets, the Supreme Court also held that courts of equity have jurisdiction over church disputes where property rights are involved. Further, a petition for dissolution of a corporation, injunction, and disposition of corporate assets may be likened to a complaint seeking dissolution of a partnership, injunction, and accounting, which has been held to be an equity action. Williams v. Tritt, 262 Ga. 173 (415 SE2d 285) (1992); Bettis v. Leavitt, 236 Ga. 213, 217 (223 SE2d 88) (1976).

In view of the above authorities, along with the fact that the Supreme Court did not transfer the previously-filed interlocutory appeal to the Court of Appeals, this court transferred these appeals to the Supreme Court by order dated March 10, 1993. However, on April 16, 1993, the Supreme Court ordered that these cases be returned to this court, without specifying the basis for doing so.

2. Crocker and the church, however, contend that any civil court’s exercise of jurisdiction over this church dispute is prohibited by the First Amendment to the United States Constitution. We disagree.

“[T]he First Amendment severely circumscribes the role that civil courts may play in resolving church property disputes. It is obvious, however, that not every civil court decision as to property claimed by a religious organization jeopardizes values protected by the First Amendment. Civil courts do not inhibit free exercise of religion merely by opening their doors to disputes involving church property.” Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U. S. 440, 449 (89 SC 601, 21 LE2d 658) (1969).

With regard to cases involving disputes over church property, the Georgia Supreme Court has previously distinguished between two types of church government, i.e., congregational and hierarchical. A congregational church is usually strictly independent of other ecclesiastical associations, while a hierarchical church is associated with other churches that share similar faith and doctrine and have a common ecclesiastical head. Crumbley v. Solomon, 243 Ga. 343 (254 SE2d 330) (1979). “If the church government is congregational, then a majority of its members control its decisions and local church property. If hierarchical, then we use ‘neutral principles of law’ to determine whether the local church or parent church has the right to control local property. Those ‘neutral principles’ are state statutes, corporate charters, relevant deeds, and the organizational constitutions of the denomination. [Cit.]” Id. See also Jones v. Wolf, 244 Ga. 388 (260 SE2d 84) (1979).

The instant case represents a hybrid of the above two forms of church government. It is clear that the church government cannot be categorized as congregational; although it had some elements of that form of governance, the church was organized as a nonprofit corporation, with articles of incorporation and by-laws. However, the church also was unconnected to any other churches with a common ruling convocation, and thus was not hierarchical. Nevertheless, as with hierarchical churches, the property dispute here was capable of resolution by reference to neutral principles of law, i.e., the applicable statutory provisions of the Georgia Nonprofit Corporation Code, without infringing upon any First Amendment values. In this regard, the trial court adhered to neutral principles by referring the jury to the church’s articles of incorporation and by-laws and instructing the jury on the state corporate law, part of which provides that “[i]f religious doctrine governing the affairs of a corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both.” OCGA § 14-3-180. Contrary to the defendants’ contention, it appears that the trial court ensured that First Amendment values were not jeopardized.

3. Crocker and the church contend that the plaintiffs lacked standing to bring this action because they did not represent a majority of the membership. In support of that contention, they rely upon OCGA § 14-5-43, which provides in part that “[t]he majority of those who adhere to its organization and doctrines represent a church,” and Heath v. Butler, 213 Ga. 411, 412 (99 SE2d 131) (1957), in which the Supreme Court cited the predecessor of that statutory provision and held that “[a] minority of a church membership can not act for the church.”

However, OCGA § 14-5-43 “properly is to be construed as being applicable only to churches having a congregational form of government.” Jones v. Wolf, supra at 389. Inasmuch as the church government in this case cannot be categorized as congregational, as discussed above, OCGA § 14-5-43 and Heath v. Butler, supra, are inapposite.

“Courts are reluctant to interpose in questions affecting the management of the temporalities of a church; but, when property is devoted to a specific doctrine or purpose, the courts will prevent it from being diverted from the trust.” OCGA § 14-5-45; Dowdell v. Cherry, 209 Ga. 849 (76 SE2d 499) (1953). Even where a church has a congregational form of governance, “[i]f the majority of the church depart from its organization and doctrines, they do not represent the church, and such majority can not divest the church property from the trust to which it has been devoted.” Tucker v. Paulk, 148 Ga. 228, 229 (96 SE 339) (1918). Accordingly, under the circumstances presented by the instant case, particularly where the resolution of the property dispute strictly followed neutral principles of law, the plaintiffs had standing in this action alleging a diversion of the church property from the purpose for which the church and its assets had been devoted.

4. Crocker and the church also argue that the First Amendment precludes the involuntary receivership imposed on the church by the superior court. However, they neither cite authority for that proposition, nor explain how such an action violates the First Amendment.

Under OCGA § 14-3-219, the superior court has full power to liquidate the assets and affairs of a nonprofit corporation when it is established that the acts of the directors or those in control of the corporation are illegal or fraudulent, the assets are being misapplied or wasted, or where the corporation is unable to carry out its purposes. OCGA § 14-3-220 authorizes the superior court to issue injunctions or appoint a receiver as needed to preserve the corporate assets. Inasmuch as the church chose to incorporate under the Georgia Nonprofit Corporation Code, and appointment of a receiver is authorized under those codified neutral principles of law regarding liquidation of nonprofit corporations, we reject the contention that the First Amendment prohibited the involuntary receivership in this case.

5. Crocker and the church enumerate multiple errors in the trial court’s instructions to the jury. Most of the jury charges about which they complain pertain to instructions patterned after portions of the Georgia Nonprofit Corporation Code. We find no error with regard to any of the jury charges.

The trial court instructed the jury about an implied trust resulting where one person obtains title to property by fraud, or where from the nature of the transaction it is manifest that it was the parties’ intention that the person taking legal title should have no beneficial interest. Crocker and the church contend that the doctrine of implied trust may not be applied in church disputes under Presbyterian Church v. Eastern Heights Presbyterian Church, 225 Ga. 259 (167 SE2d 658) (1969).

In Presbyterian Church, the Supreme Court prohibited implication of a trust in a dispute over church property between a local church and the general church with which it was connected, where that implied trust was conditioned on the general church adhering to its tenets of faith and practice at the time of the local church’s affiliation with it. Allowing such a condition would have resulted in the court determining ecclesiastical questions, contrary to the First Amendment to the United States Constitution. However, the Supreme Court specifically did not rule out creation of a trust on church property by other means, i.e., “by the deeds on the property, implied under the statutes of this State ... , or required by the constitution of the general church.” Id. at 260. The instant case does not involve the type of implied trust prohibited in Presbyterian Church.

Moreover, as pointed out by the plaintiffs, the jury charge on implied trust pertained to the allegations of Crocker having obtained the church property through his fraud and abuse of a confidential relationship, without reference to any ecclesiastical issues. The prohibition regarding implied trusts contained in Presbyterian Church thus is inappropriate in the instant case.

Crocker and the church also contend that the trial court erred in refusing to instruct the jury that when a nonprofit corporation’s bylaws are inconsistent with the articles of incorporation, the articles govern. However, the trial court adequately covered that principle of law by charging that “each corporation also shall have the power to make and alter bylaws, not inconsistent with its articles of incorporation or with the laws of this state, for the administration and regulation of the affairs of the corporation,” as provided in OCGA § 14-3-21 (b) (2). A jury charge need not be given in the exact language requested. Swint v. Smith, 204 Ga. App. 54 (418 SE2d 375) (1992).

Crocker and the church next contend that the trial court should have instructed the jury that it could not redetermine the membership of the board of trustees, because such issues were reserved to the church and not a secular authority. “Jurisdiction to determine who are the duly constituted trustees of the church organization rests with the ecclesiastical forum of the organization, and not with a court of equity. [Cit.]” Smith v. Kelly, 208 Ga. 233 (65 SE2d 795) (1951). However, although the jury was presented with the task of deciding whether Crocker had fraudulently manipulated the board of trustees, it was not necessary for the jury to redetermine the board’s membership and there was no showing that the jury made such a determination.

Crocker and the church assert that the trial court erred in refusing to give their requested charge regarding membership of the church corporation and voting rights of members, based on OCGA §§ 14-3-80 and 14-3-82, thereby conferring upon the jury an unfettered discretion to determine the membership in the corporation. The record, however, reveals that the trial court did instruct the jury on those statutory principles contained in OCGA § 14-3-80 et seq. As noted above, it also was unnecessary for the trial court to use the exact language requested in making the jury charge. Swint u. Smith, supra.

Citing a general treatise and one Pennsylvania case as authority, Crocker and the church argue that the trial court should have instructed the jury that objections not made at the time a vote is taken in a membership corporation, as to the membership entitled to vote or to the matters being voted upon, are waived. OCGA § 14-3-81 provides that attendance of a member at a meeting, either in person or by proxy, shall constitute a waiver of notice and waiver of any objections to the place and time of the meeting and the manner in which it has been called, and the trial court so instructed the jury. However, nothing in the Georgia Nonprofit Corporation Code provides for a waiver of objections to the matters voted upon. Moreover, such a waiver would be inapplicable where the gravamen of the plaintiffs’ complaint against Crocker is that the membership was not fully informed of all the circumstances behind the sale and disposition of the church property when it “approved” the proposed disposition.

6. The verdict form submitted to the jury first dealt with specific items to be awarded, and then authorized the jury to make a determination of the disposition of the balance of the proceeds from the sale of the church. After it began its deliberations, the jury inquired with the trial court whether it could simply indicate a general award of the remainder of those funds, rather than specify a dollar amount of that balance. Counsel for the plaintiffs and the defendants consented to allowing the jury to substitute for a dollar amount the words “the remainder,” and having the trial court determine the amount of the remainder if the parties could not agree upon such.

The trial court found that the remainder of the sale proceeds consisted of $207,000, along with the tangible personal property of the church and all interest accrued on the funds in the hands of the receiver. Crocker and the church now contend that the trial court failed to deduct church expenses that were incurred between the closing date of the sale and the last congregational meeting, and that the trial court erred in not allowing them to present additional evidence regarding such expenses.

With regard to the latter contention, the decision to reopen the evidence in a case lies within the sound discretion of the trial court, and will not be disturbed absent a showing of an abuse of that discretion. Williams v. State, 205 Ga. App. 445 (2) (422 SE2d 309) (1992). In the instant case, where the parties agreed, after the evidence was closed, to having the jury award “the remainder” of the sale proceeds and the trial court resolve any dispute over the actual dollar amount, we find no abuse of discretion in the trial court’s refusal to reopen the evidence.

With regard to the alleged miscalculation by the trial court of the remainder of the sale proceeds, the amount found by the trial court was within the range of the evidence presented during the trial. Where a verdict is within the range of the evidence adduced on the issue, and the award is not so excessive as to indicate bias or prejudice on the part of the factfinder, this court will not disturb the verdict. Moultrie Farm Center v. Sparkman, 171 Ga. App. 736 (320 SE2d 863) (1984).

7. The trial court also awarded the plaintiffs all of the interest that had accrued on the funds held by the receiver, as part of the remainder of the church assets. Throughout the litigation, Crocker remained in control of the parsonage, the $100,000 gift, and the full second mortgage amount. The plaintiffs were ultimately determined to be entitled to most of the funds held by the receiver throughout the litigation, but Crocker was awarded a portion of those funds.

Crocker contends that the trial court erred in awarding the plaintiffs all of the interest accruing on the funds held by the receiver, and we agree. Interest earned on court registry accounts usually is allocated proportionately to those who are ultimately determined to be owners of the principal. Odyssey Stevedoring Corp. v. “Celtic Venture,” 817 F2d 709, 711 (11th Cir. 1987). Similarly, the interest earned on funds held by a receiver should be allocated proportionately to the owners of the principal. Accordingly, Crocker was entitled to recover his proportionate share of the interest earned on the funds held by the receiver.

8. The plaintiffs asserted a claim for attorney fees under OCGA § 13-6-11, and the specific bases for that claim consisted of stubborn litigiousness and bad faith (in the form of fraud) on the part of the defendants. Because the plaintiffs recovered less on their primary claim than they sought, Crocker contends that the plaintiffs’ award for attorney fees was unauthorized. We disagree.

Great disparity between the damages sought and those actually awarded in a verdict may defeat an award of attorney feés based on stubborn litigiousness under OCGA § 13-6-11, but not an award that is based on bad faith. Ga. Carolina Brick &c. Co. v. Brown, 153 Ga. App. 747 (266 SE2d 531) (1980). Where there is some evidence supporting a finding of bad faith, an award of attorney fees on that basis must be affirmed. Harrell v. Gomez, 174 Ga. App. 8 (6) (329 SE2d 302) (1985). In the instant case, the evidence showing Crocker’s lack of disclosure of information regarding his personal benefit from the sale of the church, and his structuring of the church’s board of directors, supplied that evidence. Further, contrary to Crocker’s suggestion, the award of attorney fees is not apportioned to only those attorney fees attributable to the claims on which the plaintiffs prevailed. “In our view, a party acting in bad faith should pay the full price for losing. [Cit.]” McDonald v. Winn, 194 Ga. App. 459, 461 (390 SE2d 890) (1990).

9. The defendants contend that the trial court erred in refusing to award payment of their attorney fees and litigation expenses from the monies awarded to the plaintiffs.

OCGA § 14-3-220 (d) provides that in corporate liquidations, the superior court “shall have power to allow, from time to time, as expenses of the liquidation, compensation to the receiver or receivers and to attorneys in the proceedings and to direct the payment thereof out of the assets of the corporation or the proceeds of any sale or disposition of such assets.” Under this Code section, it was within the discretion of the trial court to award attorney fees and litigation expenses incurred by the corporation in its defense of the liquidation proceeding brought by. the plaintiffs. Considering the amount of the compensation awarded by the jury to Crocker and the degree to which payment of the church’s expenses of litigation from the remainder would frustrate the charitable and religious purposes for which the church funds were intended under the corporate charter, the trial court did not abuse its discretion in refusing to award attorney fees and expenses of litigation incurred by the corporation.

However, with regard to Crocker’s attorney fees and litigation expenses associated with the liquidation proceeding, we reach a different conclusion. OCGA § Í4-2-852 (applicable to nonprofit corporations pursuant to OCGA § 14-3-110) provides that “[u]nless limited by its articles of incorporation, to the extent that a director has been successful, on the merits or otherwise, in the defense of any proceeding to which he was a party, or in defense of any claim, issue, or matter therein, because he is or was a director of the corporation, the corporation shall indemnify the director against reasonable expenses incurred by him in connection therewith.” This Code section endorses the approach towards indemnification expressed in Merritt-Chapman & Scott Corp. v. Wolf son, 321 A2d 138 (Del. 1974), i.e., a defendant director is entitled to partial mandatory indemnification if he succeeds on some but not all claims or charges against him.

The title of this Code section is “Mandatory indemnification,” and by its express terms the statute leaves no room for discretion. Indemnification of a director is required where the director prevails on a claim in connection with his position as director, unless limited by the articles of incorporation. In the instant case, the articles contained no limitation in this regard, and Crocker thus was entitled to mandatory indemnification of the reasonable expenses incurred in the defense of the liquidation proceeding, pursuant to OCGA § 14-2-852. However, the indemnification must be proportionate to the extent that Crocker was successful in the claims against him.

The plaintiffs argue that Crocker was not entitled to mandatory indemnification under OCGA § 14-2-852 because their action against him was unrelated to his position as director of the church corporation. However, in their amended complaint, the plaintiffs specifically alleged that Crocker breached his fiduciary duty as director of the church corporation, and that allegation actually constituted the gist of their claim against Crocker. We also reject the plaintiffs’ contention that inasmuch as OCGA § 14-2-852 provides for indemnification out of the corporation’s funds, such relief was unavailable because the verdict already disposed of all of the corporation’s assets. Under OCGA § 14-3-220 (c) (1), in a liquidation proceeding, the assets of a corporation or the proceeds resulting from a sale, conveyance, or other disposition must be applied to the liabilities and obligations of the corporation. In short, the corporation’s liabilities, one of which would be mandatory indemnification to Crocker, would have priority in the distribution of the corporate assets.

10. After commencement of this action against Crocker and the church, one of the plaintiffs, Ray Stevens, was quoted in a newspaper as saying: “This is sort of like Jim Bakker on a smaller scale.” Crocker subsequently filed a counterclaim against Stevens alleging defamation. The trial court, however, directed a verdict in favor of Stevens on this counterclaim. Further, after Crocker filed a notice of appeal but failed to file a transcript timely, the trial court dismissed the notice of appeal.

The trial court directed the verdict on the counterclaim on June 4, 1992; after an extension of time to file, notice of appeal was filed on August 5, 1992. The entire transcript in the matter was ordered on July 2, 1992 although the portion of the trial transcript pertaining to Crocker’s counterclaim consisted of only 78 pages. At that time, the court reporter advised Crocker that the entire transcript could be prepared in about two months, but a cost deposit of $2,500 was required. The court reporter immediately began working on the transcript, and within three weeks had completed nine hundred pages of the approximately two thousand-page transcript.

On July 15, 1992, the court reporter called counsel for Crocker and the church to inquire about the $2,500 deposit which still had not been paid, and she was informed of some uncertainty over whether an appeal would be filed. On July 16, 1992, Crocker filed a motion for extension of time for filing a transcript. On August 10, 1992, Crocker paid $1,000 towards the cost of the transcript, but again expressed some uncertainty about proceeding with an appeal. Finally, on September 15, 1992, Crocker sent $1,360.50 to the clerk of court for appeal costs, which was handed over to the court reporter to count towards the $2,500 deposit, and work on the transcript resumed. Ultimately, the transcript was filed on December 8, 1992, three months late.

OCGA § 5-6-48 (c) provides, in part, that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by such party.” In Baker v. Southern R. Co., 260 Ga. 115, 116 (390 SE2d 576) (1990), the Supreme Court reiterated those showings required under that Code section, and emphasized that “[t]he failure to apply for an extension does not automatically convert the delay into one which fits all of the conditions necessary to vest the trial court with the discretion to dismiss the appeal.”

In the instant case, the notice of appeal was not dismissed because of the failure to apply an extension timely. The evidence showed that the reason for the delay in the preparation of the transcript was Crocker’s failure to pay the required $2,500 deposit, in conjunction with his expressed uncertainty about proceeding with an appeal in the matter. Although the trial court dismissed the notice of appeal on November 30, 1992, the transcript was not filed until December 8, 1992, making the total length of the delay about three months.

“The trial court has a very broad discretion in deciding whether or not to dismiss for delay. [Cits.]” Barmore v. Himebaugh, 205 Ga. App. 381, 382 (422 SE2d 255) (1992); see also A. Roberts Corp. v. Roberts, 207 Ga. App. 663 (428 SE2d 671) (1993). Under the circumstances presented in the instant case, we find no abuse of discretion in the trial court’s dismissal of the notice of appeal from the directed verdict on the counterclaim, on the grounds that the delay was inexcusable, unreasonable, and caused by Crocker’s failure to pay the required deposit for preparation of the transcript.

Decided August 26, 1993

Reconsideration denied September 13, 1993

Bird & Associates, Wendell R. Bird, David J. Myers, for appellants.

Strauss & Walker, John T. Strauss, Lance & Associates, Forrest J. Lance, for appellees.

11. In view of our holding in Division 10 above, Crocker’s appeal on the merits of the trial court’s direction of a verdict on the counterclaim is dismissed as moot.

Judgment affirmed in part, reversed in part in. Case No. A93A0741 and in Case No. A93A0742. Case No. A93A0740 dismissed.

McMurray, P. J., and Johnson, J., concur.


text:
    A93A1326.
    SHROPSHIRE v. THE STATE.
    (435 SE2d 700)
   Blackburn, Judge.

The appellant, Timothy Shropshire, was convicted of four counts of rape, four counts of incest, five counts of aggravated child sodomy, three counts of aggravated child molestation, four counts of child molestation, and two counts of enticing a child for indecent purposes, with all offenses involving his two stepdaughters. This appeal follows the denial of Shropshire’s motion for new trial.

Both victims, who were ten and eleven years old at the time of the trial, testified in graphic detail about numerous sexual encounters with Shropshire. It was not until the younger victim developed a vaginal discharge and reported it to her mother, that Shropshire’s actions were revealed. Both children were subsequently examined by a physician, during which they related episodes of sexual activity with Shropshire. Vaginal and rectal swabs from each child were positive for gonorrhea, which was “absolutely indicative of abuse,” in the examining physician’s opinion. The victims’ mother testified that she also had to be treated, for gonorrhea, and that about one week before her daughter divulged the sexual abuse, Shropshire had gone to the health department for something, but she did not know what.

1. Shropshire is black and his two stepdaughters are white. On appeal, he contends that the trial court erred in restricting his defense that the allegations against him were fabrications, motivated out of racial animosity felt by the victims’ paternal family.

Upon cross-examination, the victims’ mother acknowledged that she had experienced some problems with her ex-husband (the father of the victims) over her interracial marriage with Shropshire. When defense counsel attempted to elicit her testimony about racial animosity held by the ex-husband and his family against Shropshire, the state objected on the grounds of relevancy. Outside the presence of the jury, the trial court allowed defense counsel to question the witness, who stated that the paternal family disapproved of the marriage but never, to her knowledge, communicated such to the two children. In light of that absence of any factual basis for the defense theory asserted, the trial court then sustained the state’s objection.

Both victims testified later in the proceeding, but defense counsel made no inquiry as to any racial bias, influence or pressure on the part of any paternal family member. Shropshire also testified at trial, but was not allowed to recount either the stepdaughters’ remark that their daddy called him a “nigger,” or what his ex-wife had told him other family members had said about him, on the grounds that such testimony would deliberately interject racial bias in the trial.

“A defendant is entitled to a thorough and sifting cross-examination of the witnesses called against him. However, evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded. The right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning. The trial court has a wide range of discretion in the control of cross-examination. That discretion will not be limited in the absence of obvious abuse.” (Citations and punctuation omitted.) Mitchell v. State, 200 Ga. App. 146, 148 (407 SE2d 115) (1991).

In the instant case, the trial court disallowed defense counsel’s cross-examination of the mother of the victims regarding the racial animosity felt by the father of the children and his family, after determining outside the presence of the jury that the witness had no knowledge of such racial bias having been impressed upon the children. Under these circumstances, the trial court’s restriction of the cross-examination did not constitute an abuse of discretion.

Similarly, the trial court’s limitation on Shropshire’s testimony was not an abuse of discretion, particularly where Shropshire failed to raise the inquiry of racial animosity during cross-examination of the victims. Allowing Shropshire’s proffered testimony recalling the remarks of the two victims and their mother would have served no purpose other than to interject racial bias into the proceeding. Matters which tend to destroy the impartiality of the jury are properly discountenanced. Teasley v. State, 177 Ga. App. 554 (2) (340 SE2d 32) (1986).

Decided August 26, 1993

Reconsideration denied September 13, 1993

Katrina L. Breeding, August F. Siemon III, for appellant.

Ralph L. Van Pelt, Jr., District Attorney, Melodie B. Swartzbaugh, Assistant District Attorney, for appellee.

2. Shropshire also contends that the trial court erred in denying his motion for mistrial based upon the improper placement of his character in issue when a sheriff’s department detective testified about the older victim’s speculation that Shropshire devised his plan to molest her when he was in jail. Although the trial court denied Shropshire’s motion for mistrial, it instructed the witness not to repeat what the children said relative to Shropshire having been in jail, and offered to give curative instructions to the jury (which defense counsel declined).

Earlier in the proceeding, the same witness similarly testified about the younger victim’s statement that Shropshire told her that if she ever revealed what he had done, he would be in big trouble and would have to go back to prison, and also about that child’s remark that Shropshire “should get in prison for the rest of his life.” However, Shropshire raised no objection to that earlier testimony.

The testimony which ultimately prompted Shropshire’s objection was delivered in a narrative form, and was not solicited by the state, and arguably that testimony did not place Shropshire’s character in issue under OCGA § 24-9-20 (b). See Nelson v. State, 204 Ga. App. 409 (419 SE2d 502) (1992). However, even if it did, the decision whether the statement was so prejudicial as to warrant a mistrial lies within the discretion of the trial court. “ ‘(Appellate courts) will look at the relevant circumstances to determine if the trial court abused its discretion in denying the motion for mistrial. Some of the factors and circumstances to be reviewed include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.’ . . . [Cit.]” Id. at 410.

In the instant case, considering the earlier testimony without objection by the same witness relating essentially the same statements made by the other victim, the trial court’s instruction to the witness to refrain from further repeating such statements, and the overwhelming evidence of Shropshire’s guilt, we find no abuse of discretion in the trial court’s denial of Shropshire’s motion for mistrial.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A93A0877.
    THOMAS v. SCHOUTEN.
    (435 SE2d 746)
   Andrews, Judge.

This lawsuit arose from an automobile accident which occurred on December 21, 1989, when the vehicle appellant Monica Thomas was driving was struck from the rear by a vehicle driven by Daniel Passenger. Appellee Schouten owned the vehicle Passenger was driving, but was not in the vehicle at the time of the incident. On October 28, 1991, Thomas filed suit against Passenger and Schouten.

Defendant Schouten answered the complaint and Georgia Farm Bureau Casualty Company, the plaintiff’s uninsured motorist carrier filed a second answer. On September 9, 1992, Thomas amended her complaint to contain allegations that at all times relevant to the incident complained of, Passenger was the agent of Schouten and that Schouten was therefore responsible for any negligence of Passenger.

On October 26, 1992, Schouten filed a motion for summary judgment on the basis that there was no agency relationship between him and Passenger and thus no basis for liability against him. With the motion, Schouten filed his own affidavit in which he stated that he and Passenger were both employed by B & D Mechanical Company and that he was Passenger’s foreman. He avowed that he allowed Passenger to borrow his vehicle to perform a task for B & D Mechanical Company and at the time of the accident, Passenger was using his vehicle in the performance of his work. Nonetheless, Schouten stated that Passenger’s trip was performed solely for the benefit of B & D Mechanical Company and was of no personal benefit to him. Schouten swore that Passenger was not acting as his agent or employee at the time of the accident. On October 28, 1992, defendant Passenger filed an answer.

On November 23, 1992, Thomas filed a brief in opposition to the motion, which claimed that summary judgment was improper since a factual issue remained regarding whether an agency relationship existed between Schouten and Passenger.

On December 14, 1992, the trial court granted the motion for summary judgment, finding that as a matter of law, Passenger was not the agent or servant of Schouten and that there was no basis for liability against him. From that determination, Thomas appeals.

1. In her second enumeration of error, Thomas argues that the grant of summary judgment was improper, since despite her request, no hearing was held. Although the record contains no request for oral argument, attached to Thomas’ appellate brief is a letter to the state court judge. That letter, dated November 23, 1992, states in part that: “The Court’s help in scheduling a hearing on this matter as soon as possible shall be appreciated.”

Uniform Superior Court Rule 6.3 (applicable here to the state court, see Uniform State Court Rules) provides: “Unless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict. However, oral argument on any motion for summary judgment shall be permitted upon written request.” This rule has been determined to be consistent with OCGA § 9-11-56 (c) in that “[t]he statute contemplates but does not mandate a hearing. The rule fixes the method parties use to obtain a hearing. In fact, Rule 6.3 insures a right to oral argument of a summary judgment motion by declaring it shall be permitted upon written request. Thus, whether oral argument is heard is within the power of the parties, and is not left to the discretion of the trial court. All a party need do is make a written request for oral argument and it shall be held.” (Citations and punctuation omitted.) Kelley v. First Franklin Financial Corp., 256 Ga. 622, 623-624 (351 SE2d 443) (1987); Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734 (350 SE2d 265) (1986), aff’d 256 Ga. 739 (354 SE2d 160) (1987); Link v. Doe, 203 Ga. App. 388 (416 SE2d 874) (1992).

Pretermitting the question of whether Thomas’ letter constitutes a request for oral argument within the meaning of USCR 6.3, we are barred from considering it, since it is not properly before this court. “Since this is a court for correction of errors of law, our decision must be made upon the record and not upon briefs of counsel. Where there is nothing in the record to support the contention of error, there is nothing presented to this court for review.” (Citations and punctuation omitted.) Williams v. Lemon, 194 Ga. App. 249 (3) (390 SE2d 89) (1990). The letter attached to the brief is not part of the record. Thomas has not sought to complete the record in the manner provided for in OCGA § 5-6-41 and this enumeration is without merit.

2. Thomas claims that the trial court erred in granting the motion for summary judgment because there was a factual issue as to whether an agency relationship existed between Schouten and Passenger. Citing Lindsey v. Fitzgerald, 157 Ga. App. 124 (276 SE2d 275) (1981), and Reese v. Sanders, 153 Ga. App. 654 (266 SE2d 313) (1980), Thomas argues that the trial court’s grant of summary judgment was improper. In addition to Schouten’s affidavit, outlined above, the record includes the deposition of Schouten and of Thomas. In Schouten’s depositioh he briefly explained the arrangement by which Passenger was driving his vehicle; he stated: “We had a flat tire at the shop, and since I was a foreman, I loaned him my vehicle. . . . I just asked him to go to Wall Tire to have it fixed.” Thomas argues that as the foreman, Schouten was Passenger’s employer, and that he directed Passenger to perform the errand and therefore an agency relationship existed.

Decided September 13, 1993.

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Walker, Hulbert, Gray & Byrd, Michael G. Gray, Groover & Childs, Frank H. Childs, Jr., for appellee.

We note at the outset that “[o]wnership of the vehicle alone is insufficient to establish liability on the part of the owner.” (Citations and punctuation omitted.) Liddy v. Hames, 177 Ga. App. 517, 518 (2) (339 SE2d 778) (1986). “Under Georgia law the relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf. OCGA § 10-6-1. The historical test applied by Georgia courts has been whether the contract gives, or the employer assumes, the right to control the time and manner of executing the work, as distinguished from the right merely to require results in conformity to the contract.” (Citations and punctuation omitted.) McMullan v. Ga. Girl Fashions, 180 Ga. App. 228, 230 (2) (348 SE2d 748) (1986).

“The bare assertion or denial of the existence of an agency relationship is a statement of fact when made by one of the purported parties to the relationship; but when made by an outsider, bare assertions or denials are merely conclusions of law. The affidavit denying the existence of agency must be received as evidence of a fact, which cannot be overcome by conclusionary affidavits.” Standard Guaranty Ins. Co. v. Landers, 206 Ga. App. 803 (426 SE2d 574) (1992); see generally Hinely v. Barrow, 169 Ga. App. 529 (313 SE2d 739) (1984); Commercial Union Ins. Co. v. Taylor, 169 Ga. App. 177 (3) (312 SE2d 177) (1983).

In this case, contrary to Thomas’ contentions, the denial by Schouten of the agency relationship was evidence of the fact that no such relationship existed between him and Passenger. Apart from Thomas’ conclusory statements, the only evidence before us regarding this issue was that Passenger borrowed Schouten’s vehicle to perform a task for the sole benefit of their mutual employer. Thomas’ arguments that Passenger was a dual agent are similarly meritless.

The grant of summary judgment was proper. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Pope, C. J., and Birdsong, P. J., concur.


author: Johnson, Judge.

text:
    A93A0947.
    SUTTON v. THE STATE.
    (435 SE2d 748)
   Johnson, Judge.

Charlie J. Sutton was convicted of aggravated assault, burglary and criminal trespass. He appeals his convictions and the denial of his motion for a new trial.

1. Sutton asserts that the trial court erred in denying his motion for a new trial in that the State’s evidence was insufficient to support a conviction. Viewing the evidence in the light most favorable to the jury’s verdict, the incident occurred as follows. Sutton’s estranged wife, Jackie Sutton, was visiting at the home of Betty Wilson. The two women were in the living room of the house. It was early on a summer night and the front door was open. Sutton appeared at the screen door and said he wanted to talk with Jackie. Ms. Sutton indicated that she did not wish to speak with him, and he left. According to Ms. Sutton’s testimony, Sutton returned about ten minutes later, carrying a knife. He tore the screen door from its frame and charged at Ms. Sutton, who was attempting to use Ms. Wilson as a shield. Several pieces of furniture were upset and broken in the fracas. The women moved into the kitchen where Ms. Sutton picked up a knife from the table. Sutton then stabbed his wife, for the first time, in the side. Ms. Wilson broke loose and ran to get help from Ms. Sutton’s grandmother who lived nearby. The struggle between the Suttons continued, moving back through the living room, out the front door, and into a hedge of plum bushes. Sweet Lee Strong, Ms. Sutton’s grandmother, arrived at the scene carrying a gun. At that point, Ms. Sutton had been stabbed 15 times on her chest, sides and back. According to Ms. Strong’s testimony, Sutton grabbed her, threatened her life and succeeded in wresting the gun from her. Ms. Strong stated that she believed that Sutton’s hand had been cut when he was struggling with her over the gun. During this altercation, Ms. Sutton managed to get away and was subsequently taken to the hospital.

Sutton, testifying in his own defense, asserted that he had never been to Betty Wilson’s house and that he had been attacked and cut by his wife as he attempted to go to his sister’s house, and that he was acting in self-defense. He offered testimony regarding the stormy and sometimes violent nature of his relationship with Ms. Sutton. “The jury determines the credibility of the witnesses and weight to be given their testimony.” (Citations and punctuation omitted.) Frost v. State, 204 Ga. App. 581, 582 (420 SE2d 81) (1992).

After reviewing all of the evidence in the case, we find the evidence and all reasonable deductions therefrom sufficient to enable a rational trier of fact to find the elements of burglary, criminal trespass, and aggravated assault beyond a reasonable doubt in accordance with the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Sutton’s motion for a new trial on this ground.

2. Sutton also claims that the trial court erred in denying his motion for a new trial because he was denied effective assistance of counsel. Specifically, Sutton complains that trial counsel failed to pursue the defense of justification and failed to locate witnesses who could testify regarding the violent temperament of the victim and nature of their relationship. The decision not to pursue the defense of justification is one of trial strategy with which we will not generally interfere. “ ‘Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decisions made by trial counsel does not require a finding that defendant’s original representation was inadequate.’ [Cit.]” Lee v. State, 199 Ga. App. 246, 247 (3) (404 SE2d 598) (1991). In light of the severity of the injuries sustained by the victim, asserting a defense of justification might well have been more harmful than helpful.

“ ‘The determination as to which defense witnesses will be called is a matter of trial strategy and tactics.’ [Cits.]” Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992). Sutton testified at length about his relationship with the victim and the criminal charges pending against the victim. There is no contention that the witnesses suggested by Sutton would have given any testimony which was not cumulative. See Pilcher v. State, 170 Ga. App. 869, 871 (4) (318 SE2d 640) (1984). Further there was rebuttal testimony from the chief of police indicating that Sutton had refused to cooperate with police in prosecuting the charges which Sutton had made against his wife. “A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. . . . Moreover, [Sutton] fails to prove that these alleged deficiencies prejudiced his defense. When a defendant asserts a claim of ineffective assistance, the test is whether there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. [Sutton] fails to show that there is a reasonable probability ,that the jury would have found him not guilty but for the inadequate performance of his attorney.” (Citations and punctuation omitted.) Chandler v. State, 204 Ga. App. 512 (419 SE2d 751) (1992). The trial court’s conclusion that Sutton had not been denied effective assistance of counsel is not clearly erroneous and therefore its determination will not be disturbed on appeal.

Decided September 13, 1993.

Jon L. Coogle, for appellant.

John R. Parks, District Attorney, Barbara A. Becraft, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       We note that Sutton’s original motion for a new trial, filed pro se, referred to his convictions on all counts and raised only an ineffective assistance of counsel ground. His amended motion for a new trial, notice of appeal and brief refer only to the conviction for aggravated assault and raise general sufficiency of the evidence grounds in addition to the ineffective assistance of counsel claim. Even though it appears that the issue of sufficiency of the evidence with respect to the burglary and criminal trespass counts has not been raised, we will evaluate the sufficiency of the evidence on those counts as well.


text:
    A93A0974.
    NELSON v. THE STATE.
    (435 SE2d 750)
   Johnson, Judge.

Michael J. Nelson appeals from his convictions of rape and robbery and the denial of his motion for a new trial.

1. Nelson contends that the State failed to establish venue in Sumter County, where he was tried. Despite this contention, Nelson does not suggest that venue was proper in some other county. “Generally, criminal actions must be tried in the county where the crime was committed. And, venue must be established beyond a reasonable doubt. However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue.” (Citations and punctuation omitted.) Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Nelson did not raise a challenge to venue at his trial. The State’s evidence shows that the victim was attacked at the corner of Ashby Street and Pine Street in Americus, Georgia.- Nelson denies attacking the victim at that or any other location, but claims that on the date in question he and the victim had consensual sex at another location in Americus. The incident was investigated by the Americus Police Department and the victim was taken to Sumter Regional Hospital for treatment. This court takes judicial notice of the fact that Americus is located entirely in Sumter County. See Brown v. State, 205 Ga. App. 31 (421 SE2d 340) (1992); Widner v. State, 203 Ga. App. 823, 824 (3) (418 SE2d 105) (1992). The evidence was sufficient to establish venue in Sumter County beyond a reasonable doubt.

2. Nelson complains that the court improperly allowed the State to attempt to show that he was in jail at the time of the trial by cross-examining him about the last time he had seen his girl friend. Nelson, however, did not raise this objection at trial; rather, he merely objected to the State’s line of questioning as irrelevant. “Where an entirely different objection is presented on appeal, we cannot consider it because this is a court for review and correction of error committed in the trial court. It is well established that appellate courts may not consider objections to evidence not raised at trial.” (Citations and punctuation omitted.) Walls v. State, 204 Ga. App. 348, 349 (2) (419 SE2d 344) (1992). Even if we could consider the argument raised on appeal, it is wholly without merit because Nelson never testified that he was in jail at the time of his trial. The trial court did not abuse its discretion in overruling Nelson’s objection to the evidence as irrelevant. Parnell v. State, 204 Ga. App. 488 (2) (420 SE2d 42) (1992).

3. Nelson argues that the court erred in failing to conduct an in camera hearing, as required by OCGA § 24-2-3, to examine his offer of proof of the victim’s past sexual behavior. This argument is without merit. The record reveals that outside the jury’s presence, Nelson’s attorney stated in his place to the court that Nelson would testify that he and the victim had consensual sex two months before the date the victim was attacked and that another witness would testify that he saw the prior consensual sex between Nelson and the victim. Nelson made no other offer of proof; he never asked the court to allow either himself or the independent witness to testify at the in camera hearing. The trial judge ruled that he would allow Nelson’s proffered testimony, but reserved ruling on whether he would admit the independent witness’ testimony; the judge stated that at the time the independent witness was called Nelson could make a proffer of the anticipated testimony and the judge would then rule on its admissibility. Thereafter, Nelson testified in front of the jury that he had consensual sex with the victim two months before the attack. Nelson, however, never called the independent witness and never made a proffer of that witness’ anticipated testimony. “If defendant desired a more formal hearing and an opportunity to present witnesses (instead of stating in his place what the evidence would show) he should have insisted upon doing so. Instead, defendant went along with the trial court’s in camera format without objection.” Ford v. State, 189 Ga. App. 395 (1) (376 SE2d 418) (1988). Under these circumstances, the court committed no error.

4. Nelson claims that the court erred in sentencing him as a recidivist under OCGA § 17-10-7 (b), which provides, “Any person who, after having been convicted under the laws of this state for three felonies . . . , commits a felony within this state other than a capital felony, must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” Here, the State proved that Nelson has previously been convicted of theft by conversion, driving after being declared an habitual violator and possession of a firearm by a convicted felon. Nelson relies on King v. State, 169 Ga. App. 444 (313 SE2d 144) (1984), to argue that possession of a firearm by a convicted felon cannot be used as one of the three prior offenses for sentencing as a recidivist under OCGA § 17-10-7 (b). This argument is wholly without merit because King does not stand for the proposition that possession of a firearm by a convicted felon cannot be used as one of the three prior offenses under OCGA § 17-10-7 (b); rather it stands for the proposition that the underlying felony used to convict a defendant of possession of a firearm by a convicted felon cannot also be used to enhance the defendant’s punishment as a repeat offender under OCGA § 17-10-7. Id. at 445; State v. Freeman, 198 Ga. App. 553 (402 SE2d 529) (1991). In the instant case, the underlying felony used to convict Nelson of being a felon in possession of a firearm is burglary. The State has not used Nelson’s burglary conviction to enhance his punishment as a repeat offender. The trial court did not err in considering Nelson’s conviction of possession of a firearm by a convicted felon as a prior felony for sentencing under OCGA § 17-10-7.

Decided September 13, 1993.

T. Lee Bishop, Jr., for appellant.

John R. Parks, District Attorney, for appellee.

Judgment affirmed.

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