author: Judge Harold R. Banke.

text:
    A98A2261.
    QADIR v. THE STATE.
    (510 SE2d 362)
   Judge Harold R. Banke.

Sirajuddin Qadir was convicted of four counts of armed robbery arising from two separate incidents. He enumerates three errors on appeal.

Both robberies occurred during the daylight hours as the vicr tims, couples who appeared to be tourists, rode MARTA between the Five Points and East Lake stations. Qadir and his co-defendant committed the first robbery in January 1997 and the second a month later.

Shortly after the February robbery, a MARTA employee flagged down a city police officer, who had noticed the two young men running, and reported that MARTA officers were in pursuit. With citizen assistance, the officer quickly located Qadir and his co-defendant and held them for a MARTA officer who retraced their tracks and recovered the gun at the base of a nearby bush.

One of the February victims and a witness from the train identified Qadir at a subsequent showup. Qadir gave a written statement to the MARTA officers who took him into custody which inculpated his co-defendant, but admitted they were together. Held'.

1. Qadir maintains the trial court clearly erred in denying his motion to suppress this statement, arguing that as a juvenile, he was entitled to closer scrutiny of whether his waiver was knowing and voluntary. Notwithstanding Qadir’s youth, his mother’s absence during the questioning did not, of itself, render his statement illegal. Gilliam v. State, 268 Ga. 690, 692 (3) (492 SE2d 185) (1997).

Instead, the admissibility of Qadir’s confession must be assessed under the nine-factor test applied in State v. McBride, 261 Ga. 60, 63 (2) (b) (401 SE2d 484) (1991). Having considered the record, we find that Qadir at 15 was old enough, educated enough, and aware enough to understand the subject of the police questioning and the rights he was waiving. Id.; Gilliam, 268 Ga. at 692-693. The arresting officer read Qadir his rights, explained them in layman’s terms, permitted him to speak to his mother, and specifically asked whether he wanted a lawyer. At that point, Qadir wrote out his statement. The interview lasted no longer than 30 minutes. The record supports a finding that Qadir did not request a lawyer or the presence of a family member. Id. Nor did anything coercive or unusual induce Qadir to give the statement. Further, Qadir did not specifically repudiate its contents. The record supports the conclusion that his decision to give the statement was knowing, intelligent, and voluntary. Id. In any event, the statement was not materially inconsistent with Qadir’s trial testimony. See Moore v. State, 207 Ga. App. 897, 899 (2) (429 SE2d 340) (1993).

2. Qadir argues that the trial court erred by denying his motion to suppress an identification based on an impermissibly suggestive photographic lineup. He claims that his and his co-defendant’s photos were the clearest in the array.

The test for admitting evidence of a photographic array is whether the identification procedure was so suggestive as to create a very substantial likelihood of irreparable misidentification. Marshall v. State, 233 Ga. App. 573, 575 (2) (a) (504 SE2d 764) (1998). Absent such a likelihood, the witness’ pretrial identification is admissible notwithstanding any suggestiveness in the procedure itself. Id.

Here, the witness testified that the January robbery occurred 12 feet from him and he looked at the perpetrator at every opportunity without drawing attention to himself. The witness stated that he noticed the perpetrator even before the offense because he kept moving around the rail car. The witness indicated that he paid close attention to the perpetrator, describing his attire, stature, complexion and manner. The record shows that Qadir matched that description. After viewing the lineup, the witness was “very sure” about his identification, which was made approximately two months after the offense. Crumbley v. State, 189 Ga. App. 384, 385 (1) (375 SE2d 482) (1988) (five-month lapse did not undermine identification). In light of these circumstances, we cannot say the trial court erred in admitting evidence of the photographic lineup. Nicholson v. State, 265 Ga. 711, 713 (2) (462 SE2d 144) (1995). The witness’ subsequent confusion at trial went to his credibility. See Taylor v. State, 232 Ga. App. 383, 385 (501 SE2d 875) (1998).

3. The evidence, viewed in the light most favorable to the State, was sufficient to permit the jury to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). At trial, one of the victims of the January robbery identified Qadir as the “man who held me up,” testifying that she got a look at him when he faced her to pull off her necklace while keeping the gun pressed into her husband’s neck. Moreover, as noted, a passenger identified Qadir in a photographic lineup.

The evidence of the February robbery was also sufficient. One of the victims and another witness from the train identified Qadir at a showup shortly after the offense. At trial, the witness again testified of Qadir’s involvement, though he was unsure whether Qadir was the gunman or the lookout, probably because they resembled each other so closely. The bus driver who flagged down the city officer testified that Qadir and his co-defendant ran to his bus at the East Lake MARTA station and subsequently demanded to be let off after two young girls loudly told the driver the men had robbed passengers on the train at gunpoint. That testimony, in conjunction with the evidence of the two men’s joint escape and capture, the discovery of the gun and one of the victim’s wallets along their route, and Qadir’s statement to police, was sufficient to sustain a finding that Qadir was a party to the February robbery. Roundtree v. State, 192 Ga. App. 803, 805 (2) (386 SE2d 548) (1989) (witnesses’ credibility and the weight given their testimony on the perpetrator’s identity were for the jury).

Decided December 9, 1998

Reconsideration denied January 6, 1999.

Maryann F. Blend, for appellant.

Sirajuddin Qadir, pro se.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, R J., and Smith, J., concur.

       Midway through the trial, the co-defendant’s case was severed.

       Qadir’s testimony indicated that he was in school at the time of the first offense. In a subsequent proceeding, he testified that he was home schooled.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A0801.
    ZIELINSKI v. CLOROX COMPANY et al.
    (510 SE2d 856)
   Pope, Presiding Judge.

Gary Zielinski sued the Clorox Company and William Castle-berry for invasion of privacy. Zielinski also sued Castleberry for tortious interference with employment. The trial court directed verdicts in favor of Clorox on the invasion of privacy claim and in favor of Castleberry on the tortious interference with employment claim. The court submitted the invasion of privacy claim against Castleberry to the jury, which returned a verdict in favor of Castleberry.

Zielinski appealed to this Court. In a five-division opinion we affirmed the directed verdict to Clorox on the invasion of privacy claim, but reversed both the directed verdict to Castleberry on the tortious interference with employment claim and the jury verdict for Castleberry on the invasion of privacy claim. Zielinski v. Clorox Co., 227 Ga. App. 760 (490 SE2d 448) (1997). In Division 1 of that opinion, we concluded that during the trial the court had not erred in excluding evidence of statements made by Castleberry because the statements are privileged under OCGA § 51-5-7.

Decided January 6, 1999.

Bondurant, Mixson & Elmore, M. Jerome Elmore, Frank M. Lowrey IV, Vincent R. Lauria, Murray Z. Kahn, for appellant.

Arrington & Hollowell, Gary W. Diamond, Mark W. Wortham, Joni C. Hamilton, for appellees.

The Supreme Court granted certiorari in the case and reversed our conclusion that the statements are privileged under OCGA § 51-5-7. Zielinski v. Clorox Co., 270 Ga. 38 (504 SE2d 683) (1998). Accordingly, our evidentiary ruling in Division 1 of the opinion is vacated and the judgment of the Supreme Court is made the judgment of this Court.

The remainder of our opinion was not addressed by the Supreme Court and therefore still stands. Thus, the directed verdict to Clorox is affirmed, and both the directed verdict to Castleberry and the jury verdict in his favor are reversed.

Judgment affirmed in part and reversed in part.

Johnson, C. J., and Blackburn, J, concur.


author: McMurray, Presiding Judge.

text:
    A98A1779.
    REID v. THE STATE.
    (510 SE2d 851)
   McMurray, Presiding Judge.

Defendant Reid appeals his conviction of theft by taking of a motor vehicle and of giving a false name to a law enforcement officer. Held:

1. The first enumeration of error maintains that there was not sufficient evidence to authorize defendant’s conviction. Construed in a light most favorable to sustaining the verdict of the jury, the evidence shows that the owner of the vehicle was driving when he saw defendant and determined that defendant was looking for a ride. Defendant got into the car, and thus began a brief affiliation of about ten days duration which included sexual relations. During this interval of time, defendant accompanied the owner of the car on various errands and at their destinations would sit in the car listening to the radio while the owner of the vehicle went inside. The owner testified that defendant was never given permission or allowed to drive the car.

The theft of the car occurred on one of the occasions when defendant was accompanying the owner of the car on errands. The owner of the car returned home in order to change some soiled clothing and left defendant with the car key in order that he might listen to the radio while the owner changed. Shortly thereafter the owner discovered that defendant and the vehicle were gone. After some delay in order to allow defendant an opportunity to return the vehicle of his own accord, the owner contacted police. During telephone conversations that night with the owner and with a police officer, defendant indicated that he would return the vehicle. But the vehicle was not returned and approximately a week later police received information which led to the impoundment of the vehicle. When defendant learned that police had been told of the location of the vehicle he fled upon arrival of the police, but was apprehended when he returned to that location. After his arrest, defendant was asked his name by an officer and defendant replied that he was “John Doe.”

Defendant presented evidence through his own testimony and that of a corroborating witness that he had driven the vehicle repeatedly with the permission of the owner and that he had the consent of the owner to take the car on the occasion that the theft charge is predicated upon. However, it is within the province of the jury to resolve conflicts in the evidence and to assess the credibility of witnesses. Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389). “ As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489). See also Warren v. State, 232 Ga. App. 488 (2) (502 SE2d 336).

Also, defendant argues with respect to the conviction on the false name charge that there is no proof with respect to the element of intent to mislead the officer who was given the false name. “Whether the requisite intent is manifested by the circumstance is a question for the trier of fact, and, on review, this court will not disturb the factual determination unless it is contrary to the evidence and clearly erroneous.” (Citation and punctuation omitted.) Watson v. State, 222 Ga. App. 814, 816 (3) (476 SE2d 96). See also Flanders v. State, 230 Ga. App. 316, 318 (2) (496 SE2d 344) and Douglas v. State, 194 Ga. App. 182,183 (390 SE2d 98). While the false name used by defendant may seem poorly chosen to mislead the officer, the issue is not whether the officer was actually misled but whether defendant intended to mislead him. Flanders v. State, supra. Under the evidence presented, the jury’s determination as to this issue is not clearly erroneous.

After considering the evidence presented at trial, the jury was authorized to believe the State’s evidence and reject defendant’s evidence with respect to the circumstances under which the car was taken, and to conclude that defendant intended to mislead the officer as to his identity. A rational trier of fact was authorized to conclude that the evidence presented at trial showed defendant’s guilt beyond a reasonable doubt of the offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560).

Decided January 6, 1999.

Weldon & Ruppenthal, George H. Weldon, for appellant.

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.

2. In the remaining enumeration of error, defendant maintains that the sentences imposed upon him are “excessive and disproportionate to the offense[s] charged in violation of the Eighth Amendment of the United States Constitution’s guarantee against cruel and unusual punishment.” Defendant was sentenced as a recidivist to twenty years, ten to serve and the remaining ten suspended, on the count of theft by taking and twelve months to serve consecutively for the offense of giving a false name.

“ ‘Legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment. (Cit.)’ Fleming v. Zant, 259 Ga. 687, 689 (3) (386 SE2d 339) (1989). ‘(L)egislative discretion must be deferred to unless, under the circumstances, the sentence shocks the conscience. (Cits.)’ Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987).” Graham v. State, 266 Ga. 543, 544 (4) (468 SE2d 363). The sentences imposed against defendant are well within the statutory limits and not so disproportionate as to shock the conscience. Defendant’s “ ‘contention that his sentenced are) excessive may be presented to the sentence review board as provided in (OCGA § 17-10-6).’ Mydell v. State, 238 Ga. 450 (2) (233 SE2d 199) (1977).” Graham v. State, 266 Ga. 543, 544 (4), supra. See also King v. State, 265 Ga. 440 (2) (458 SE2d 98); Gordon v. State, 257 Ga. 439, 440 (2) (360 SE2d 253).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1903, A98A1904.
    GARNER et al. v. GEORGIA TRANSMISSION CORPORATION (two cases).
    (510 SE2d 624)
   Judge Harold R. Banke.

The Georgia Transmission Corporation (“GTC”) formerly known as Oglethorpe Power Corporation filed condemnation proceedings under the special master statute (OCGA § 22-2-102 et seq.) to obtain two parcels of land. After a hearing, the special master set the amount of one award at $3,111 and the other at $2,062. The awards, however, were not filed until November 13, 1997, six days after the hearing. The superior court ordered judgment in those amounts on November 25. Nineteen days after the awards were filed, on December 2, Harold Garner, the condemnee, filed notices of appeal under OCGA § 32-3-14 to seek a jury trial on damages. GTC moved to dismiss both appeals as untimely. Enumerating two errors, Garner challenges the order dismissing his appeals. Held:

1. Garner claims that the trial court erred by failing to rule that because the special master did not file his awards with the clerk within three days of the hearing as required by OCGA § 22-2-110 (a), the ten day appeal period did not begin until he received actual notice of the awards. We disagree.

Although Garner contends that the failure of the special master to file the awards within three days tolled the filing period, we find no such provision in the statute. See Savage v. Thomaston-Upson County Office Building Auth., 205 Ga. App. 634, 636 (1) (422 SE2d 896) (1992). Nor is this a situation where the condemnee received less than the requisite ten days to appeal. Compare Simmons v. Webster County, 225 Ga. App. 830, 832 (1) (485 SE2d 501) (1997) (special master award and judgment filed on same day). Here, the three day delay in the filings actually afforded Garner additional time to appeal. Compare Wrege v. Cobb County, 186 Ga. App. 512, 513 (1) (367 SE2d 817) (1988) (extension of continuance was a deliberate attempt by condemnor to circumvent statutory time constraints).

Garner also asserts that the special master’s failure to file the awards within three days resulted in his not receiving notice of them. But it is undisputed that the awards were, in fact, file-stamped November 13. As a matter of law those filings served as notice to the public including Garner and also commenced the ten day appeal period, which expired before Garner filed his notices of appeal. See Wilson v. City of Waycross, 130 Ga. App. 253 (203 SE2d 301) (1973); see also Kessler v. Liberty Mut. Ins. Co., 157 Ga. App. 287, 288 (277 SE2d 257) (1981) (duty of an attorney to keep client informed of filing entered in public record). Where an appeal is untimely, as here, it must be dismissed. City of Savannah Beach v. Thompson, 135 Ga. App. 63, 64 (1) (217 SE2d 304) (1975); Howell Enterprises v. City of Atlanta, 123 Ga. App. 767 (1) (182 SE2d 331) (1971).

2. Because the appeals were not timely, the trial court properly dismissed them. Thompson, 135 Ga. App. at 64 (1).

Decided January 6, 1999

Carothers & Mitchell, Richard A. Carothers, Thomas M. Mitchell, for appellants.

Webb, Tanner & Powell, Robert J. Wilson, for appellee.

Judgments affirmed in Case Nos. A98A1903 and A98A1904.

Johnson, C. J., and Smith, J., concur.

       OCGA § 32-3-14, part of the Code section on “Property Acquired for Transportation Purposes,” authorizes a 30 day appeal period. That statute has no application here.


text:
    A98A2085.
    DEER CREEK, INC. v. SECTION 1031 SERVICES, INC. CURTIS et al. v. SECTION 1031 SERVICES, INC. WILLIAMSON v. SECTION 1031 SERVICES, INC. HUGENBERG v. SECTION 1031 SERVICES, INC. WILLIAMSON et al. v. SECTION 1031 SERVICES, INC.
    A98A2086.
    A98A2087.
    A98A2088.
    A98A2089.
    (510 SE2d 853)
   Judge Harold R. Banke.

Deer Creek, Inc., Daniel and Margaret Curtis, James Hugenberg, and Elaine Williamson appeal the trial court’s order of January 27, 1998 which confirmed arbitration awards granted to David and Janice Miller and Burdine Enterprises, Inc. (“Burdine”). They collectively enumerate 11 errors on appeal.

This case arose after each of the above-mentioned parties executed separate contracts with Section 1031 Services, Inc. (“Section 1031 Services”) to facilitate tax-free like-kind exchanges of property pursuant to § 1031 of the Internal Revenue Code. The individual contracts were essentially identical. As part of each agreement, the parties deposited funds in Section 1031 Services’ escrow accounts. Each agreement also contained an arbitration clause which specifically applied to “any dispute as to the interpretation of the content, extent, or applicability of this [a]greement or Exchangor’s [the parties’] instructions to the Facilitator [Section 1031 Services].”

An individual who identified himself as James Gideon owned Section 1031 Services. Although he initially completed several successful § 1031 transfers, just prior to the commencement of this litigation, Gideon commingled funds in the escrow accounts, withdrew over $2 million and left the country, leaving only $255,000 in the escrow accounts. The parties later learned that Gideon gave the bank holding the escrow accounts the social security number of a deceased person and probably used a false name.

After several unsuccessful attempts to contact Gideon, the Millers became concerned and made a demand for arbitration under the agreement. Wachovia Bank of Ga. v. Miller, 232 Ga. App. 606 (502 SE2d 538) (1998). They also filed a civil action against Section 1031 Services and Wachovia Bank, successfully seeking a freeze on the assets in Section 1031 Services’ two escrow accounts and a stay pending arbitration. Id. Shortly thereafter, the arbitrator awarded the Millers the total amount they had deposited in the account, $152,820.96.

After a hearing at which neither Gideon nor the bank holding the escrow accounts appeared, the trial court confirmed the arbitration award and, at the Millers’ request, appointed a different facilitator to manage the tax-free exchange. Id. Shortly thereafter, Burdine, which had transferred $204,454.41 into one of the escrow accounts, followed this same procedure and received an arbitration award for the full amount of its claimed investment. However, before Burdine received judicial confirmation of the award, Daniel and Margaret Curtis filed a complaint against Gideon and Section 1031 Services, alleging fraud, breach of fiduciary duty, and breach of contract. In that action, the Curtises moved to vacate both arbitration awards and the Millers’ judgment.

After entry of the Millers’ confirmation order, Elaine Williamson filed a complaint against those same defendants, alleging conversion, fraud, and breach of contract. She also sought to enjoin the bank from disbursing any of the escrow funds. Williamson, Hugenberg, and Deer Creek were permitted to intervene in the Millers’ action. The bank filed an interpleader action. The trial court then consolidated all the separate actions and heard argument on the bank’s motion to set aside the order confirming the Millers’ arbitration award. The other parties, except the Millers and Burdine, joined with the bank. Neither Gideon nor Section 1031 Services responded to the pleadings or participated in any of these proceedings.

After several hearings, the trial court upheld its ruling confirming the Millers’ arbitration award and confirmed Burdine’s arbitration award. The bank appealed these rulings and this Court affirmed, finding that the bank lacked standing to raise the issues appealed. Wachovia Bank, 232 Ga. App. at 607 (1). Held:

This same principle applies to the enumerations raised by Deer Creek, the Curtises, Hugenberg and Williamson (collectively “Deer Creek”). Parties who neither participated in an arbitration, nor were served with a demand for arbitration or an order compelling arbitration may challenge an award on only a few limited grounds. OCGA § 9-9-13 (c); Gilbert v. Montlick, 232 Ga. App. 91, 93 (1) (499 SE2d 731) (1998) (absent one of the statutory grounds trial courts are bound to confirm arbitration awards). Assuming without deciding that Deer Creek is a “party” within the meaning of OCGA § 9-9-13 (c), the only tenable statutory ground it raised is that by overstepping his authority, the arbitrator prejudiced its rights. OCGA § 9-9-13 (c) (1).

The record shows that the Millers sought arbitration because they were unable to contact Gideon to timely give the notifications required to initiate a tax-free exchange. They were concerned that the statutory time would expire before Gideon could be contacted to accomplish this. Burdine likewise became concerned about Gideon’s unavailability. Under this evidence, we cannot say that the trial court clearly erred in implicitly finding that the Millers and Burdine sought arbitration regarding their instructions to Gideon and the arbitrator therefore did not overstep his authority. Gilbert, 232 Ga. App. at 93 (1).

Notwithstanding Deer Creek’s argument to the contrary, nothing in the Code required the Millers or Burdine to apply for an order compelling arbitration under OCGA § 9-9-6 before seeking arbitration. See OCGA § 9-9-13 (b) (4). Such an order would have had no effect on Gideon and Section 1031 Services’ absence from the proceedings. See Wilson v. Southern R. Co., 208 Ga. App. 598, 601 (2) (431 SE2d 383) (1993) (the law will not require a futile act). Nor did their absence necessarily invalidate the proceedings. Our law does not unequivocally reject ex parte arbitration. See Antinoro v. Browner, 223 Ga. App. 664, 666 (478 SE2d 392) (1996).

As in Wachovia Bank, we find that Deer Creek lacks standing to raise the remaining enumerations. Wachovia Bank, 232 Ga. App. at 607. Deer Creek’s injury does not “flow directly” from the Millers’ and Burdine’s acts. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 806 (1) (500 SE2d 591) (1998) (RICO case). Its claims are properly directed at Gideon and Section 1031 Services, the parties that purportedly absconded with their funds, not the Millers and Burdine. The Millers and Burdine contracted only with Section 1031 Services in an agreement which contemplates neither the participation nor even the existence of Deer Creek. Deer Creek’s failure to offer proof of its status as an intended third party beneficiary of the contract the Millers successfully enforced precludes their claim. See Patriot Gen. Ins. Co. v. Millis, 233 Ga. App. 867, 871 (2) (506 SE2d 145) (1998) (For a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit.).

Decided January 6, 1999.

Robertson Law Firm, Morgan M. Robertson, Mathew G. Nasrallah, Robertson & Walker, Charles T. Robertson II, Gerald W. Bruce, for appellants.

Bentley, Bentley & Bentley, Fred D. Bentley, Jr., Veronica S. Jones, for Miller et al.

D. Robert Autrey, Jr., for Burdine Enterprises, Inc.

Nor is Deer Creek entitled to relief under a constructive trust theory, assuming, arguendo, that it has standing to assert such a claim and properly raised it in the trial court. See OCGA § 53-12-93 (a); Eason v. Farmer, 261 Ga. 675, 676 (2) (409 SE2d 509) (1991). A constructive trust is a remedial device created in equity to prevent unjust enrichment. Atlanta Classic Cars v. Chih Hung USA &c., 209 Ga. App. 908, 910 (2) (439 SE2d 498) (1993).

Here, the Millers and Burdine were not Deer Creek’s debtors or fiduciaries. Deer Creek provided no evidence of their wrong-doing. Nor is there any evidence that the Millers and Burdine knew or should have known of Gideon’s scheme to abscond with the money. In these circumstances, we cannot say that the Millers and Burdine would be unjustly enriched if allowed to reclaim their own investments. Nor did Deer Creek establish that it exhausted all available legal remedies. See Jordan v. Caswell, 264 Ga. 638, 639-640 (2) (450 SE2d 818) (1994).

Judgments affirmed in Case Nos. A98A2085, A98A2086, A98A2087, A98A2088, and A98A2089.

Johnson, C. J., and Smith, J., concur.

       That order incorporates by reference the trial court’s December 31, 1997 order.

       Deer Creek has presented no evidence showing that the arbitration award was the result of corruption, fraud or misconduct. OCGA § 9-9-13 (b) (1). The mere brevity of the arbitration proceedings is insufficient to establish any of these elements.

        Tillman Group v. Keith, 201 Ga. App. 680 (411 SE2d 794) (1991), on which Deer Creek relies, is clearly distinguishable. That case holds that a party who fails to move for an order compelling arbitration waives its right to arbitration. Id. at 681 (2).


text:
    A98A2180.
    WOODS v. THE STATE.
    (510 SE2d 848)
   Judge Harold R. Banke.

Barron Woods was convicted of two counts of simple battery and received two consecutive twelve-month sentences. On appeal, he enumerates nine errors.

This case arose after Woods accused his fiancee of infidelity, choked her, and bit into her neck. The victim waited several days before calling the county’s victim witness assistance program director, who had helped her with a previous complaint against Woods. The victim then swore out an arrest warrant and obtained a temporary restraining order against Woods based on this incident and two other alleged batteries pending against Woods.

After his arrest some days later, Woods received appointed counsel. At Woods’ request, his counsel withdrew days before trial, after informing Woods that if he failed to obtain private counsel by his trial date, he could be required to proceed without counsel.

Notwithstanding that advice, Woods appeared in court without counsel, seeking a continuance in order to obtain counsel. The trial court refused to grant a continuance, finding he had waived his right to counsel by appearing without a lawyer and declining the public defender’s services.

The court then ordered recordation of the proceedings and outlined the elements of a trial to Woods, starting with voir dire. After reading the charges, the court assured that the State had satisfied its discovery obligations and informed Woods of the range of allowable punishments he faced if he pleaded guilty or proceeded to trial. Preliminary instructions to the jury commenced at 2:10, the jury retired at 4:50 and rendered a guilty verdict at 5:32. Held:

Woods argues that the trial court erred in finding that he knowingly, intelligently, and voluntarily waived his right to counsel. We agree.

The right to counsel attaches when an accused is placed on trial for any offense, felony or misdemeanor, for which he faces imprisonment. Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997). While the right to counsel, like all constitutional rights, may be knowingly and intelligently waived, the trial court bears “the serious and weighty responsibility” of conducting an investigation to assure that the waiver is intelligent and competent. Hamilton v. State, 233 Ga. App. 463, 466 (1) (b) (504 SE2d 525) (1998). To be valid, such a waiver “must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter” (Punctuation omitted.) Id. When a defendant challenges the validity of a waiver on appeal, the State bears the burden of proving that the trial court provided him with sufficient information and guidance upon which to knowingly and intelligently relinquish this right. Id.

Here, the record shows that the trial court only informed Woods of the statutory offenses and the range of allowable punishments. It does not indicate why Woods discharged his appointed attorney. Compare Flantroy v. State, 231 Ga. App. 744, 745 (2) (501 SE2d 10) (1998) . Nor does it show that he was warned of the dangers of self-representation. McCall v. State, 232 Ga. App. 684, 685 (1) (503 SE2d 578) (1998). Woods’ possible defenses and any circumstances in mitigation were not addressed. Hamilton, 233 Ga. App. at 466 (1). Although he signed a waiver, the adequacy of the form used was questioned in Hamilton, 233 Ga. App. at 464, n. 1. Woods never affirmatively stated that he wished to proceed without counsel and represent himself. Compare Prater v. State, 220 Ga. App. 506, 508 (469 SE2d 780) (1996). On the contrary, throughout the trial Woods continued to express his desire for representation.

Woods’ confusion about the nature of the charges was evident throughout the trial, particularly during his direct testimony. He faced other battery charges involving the same victim and apparently was confused about which charges were at issue here, believing they arose simply because he returned to the victim’s home.

Woods also failed to apprehend the dangers of self-representation. Woods was the only defense witness. During his cross-examination, the State inquired, without objection, court intervention, or a USCR 31.3 hearing, about his prior convictions (going back eleven years) and the pending charge. All but one of the nine convictions appear to be misdemeanors, but because the State provided no written record of the convictions, it is impossible to tell.

The State’s justification for this tactic, that Woods opened the door for this line of questioning or was subject to impeachment based upon his admission on direct that he had “bad faults,” had done “some wrong things,” and had “been messing up his whole life,” is tenuous at best. Generally, unless a defendant opens the door with evidence of his good character, bad character evidence is inadmissible. Jones v. State, 257 Ga. 753, 758 (363 SE2d 529) (1988). Moreover, cross-examination alone, without a record of the conviction, is insufficient to impeach a witness by prior conviction. O’Toole v. State, 258 Ga. 614, 616 (4) (373 SE2d 12) (1988); see also Tam v. State, 225 Ga. App. 101, 102-103 (2) (483 SE2d 142) (1997) (the State bears the burden of assuring that similar transaction evidence is properly admitted). The State’s inquiry regarding Woods’ pending charge was likewise suspect. Williams v. State, 197 Ga. App. 299, 300 (398 SE2d 285) (1990) (proof of conviction, not accusation is required to show general bad character). A jury charge on “impeachment by conviction of a crime of moral turpitude” only compounded this exploitation of Woods’ pro se status, inasmuch as the State failed to provide adequate proof that Woods was convicted of such a crime. Kimbrough v. State, 254 Ga. 504, 505 (2) (330 SE2d 875) (1985).

Having considered the peculiar facts and circumstances of this case, we must conclude that the State failed to meet its burden of demonstrating that Woods’ waiver of counsel was knowing, intelligent, and voluntary. Hamilton, 233 Ga. App. at 466-467 (1) (b). Nor can we say that this error was harmless. Woods was totally unprepared to defend himself and the evidence was not overwhelming. The only direct evidence against him was limited to Woods’ former fiancee, who testified about the incident and her injuries. The State then presented as an expert the county victim assistance program director, who testified of the “high risk” that Woods would badly injure or kill the victim, in effect characterizing Woods as a “potential killer.”

Decided January 6, 1999.

Virginia W. Tinkler, for appellant.

Ralph T. Bowden, Jr., Solicitor, David M. Zagoria, W. Cliff Howard, Assistant Solicitors, for appellee.

The record clearly shows that Woods indeed, stood “alone with no assistance or protection of his rights.” Compare Rutledge, 224 Ga. App. at 670 (3). We fail to see that the trial judge indulged in every reasonable presumption against waiver. Prater, 220 Ga. App. at 508. Woods received little or no latitude in conducting his defense. The State indulged in liberal and unrestricted presentation of bad character evidence. Woods was confused about the charges, ill-equipped to handle the case, and inadequately warned beforehand of these dangers. Prater, 220 Ga. App. at 509. In these circumstances, we cannot conclude that Woods’ conviction was independent of his alleged waiver of counsel. Id. We therefore remand for further proceedings consistent with this opinion.

Judgment reversed.

Johnson, C. J., and Smith, J., concur.

       Woods informed the trial court that he initialed the statement in the waiver form indicating that he decided to represent himself at the assistant district attorney’s direction.

       We observe that the jury was instructed to disregard the “bad faults” comment.


text:
    A98A1866.
    GARVIN v. SMITH.
    (510 SE2d 863)
   Judge Harold R. Banke.

Mary Margaret Smith filed an action against James S. Garvin primarily seeking declaratory relief concerning her right to sell a certain tract of real estate. Garvin appeals the summary judgment awarded to Smith.

In August 1990, Smith sold two of three contiguous tracts to Garvin but retained title to a third one, Tract III. By a separate agreement dated June 29, 1990, Garvin received an irrevocable five-year option expiring on June 29, 1995, to purchase Tract III. The agreement also granted Garvin a right of first refusal, provided that “if subject property, i.e. Tract III, is improved by Sellers by erecting living quarters thereon, Purchaser [Garvin] may not exercise his option so long as Seller [Smith] maintains residence thereon (however, should Seller cease to maintain residence thereon, said option to purchase is reinstated). In the event Seller does erect living quarters thereon, and maintains residence thereon, Purchaser retains a right of first refusal to purchase subject property. . . .” (Emphasis supplied.)

By letter of March 24, 1992, Smith notified Garvin of her intention to build a permanent residence on Tract III. Although the Smiths began building a home on the property, the work was never completed. Instead, due to her husband’s health problems, the Smiths opted to travel extensively in their recreational vehicle (“RV”). During construction, the Smiths occasionally parked their RV on Tract III, and lived in it, using the water, sewer, and electrical hook-ups. After the death of her husband on April 27, 1993, Smith never returned to the property in the RV, and she abandoned all efforts to complete the house. The house was never certified for occupancy.

Smith, through her attorney, directly inquired by a letter dated May 5, 1994, as to whether Garvin had any interest in purchasing Tract III. The same correspondence offered to initiate negotiations for the purchase, or in the alternative, asked whether Garvin would agree to release the option so that Smith could sell the property. Garvin admitted that he “never formally exercised a specific sales agreement or anything like that during the five year period.”

After the option period passed, Smith began to market the property. But in November 1996, Garvin attempted to exercise the option. On November 20,1996, two days prior to a scheduled real estate closing involving a different purchaser, Garvin’s counsel sent notice to the parties and to the title insurance company asserting that Garvin had an exclusive purchase option. After Garvin thwarted Smith’s efforts to sell the property, Smith filed the underlying action.

The trial court determined that the agreement contained no provision to toll, extend, or suspend the expiration date of the option beyond June 29, 1995. Finding that the two conditions precedent of “building living quarters” on Tract III and “residing there permanently” did not occur, the trial court held that Garvin’s right of first refusal never took legal effect. Because the option had expired by its own terms and the right of first refusal was never activated, the court found that Garvin had no claim of title, lien, or other right in the property at issue. Held:

1. Garvin contends that the trial court erred in granting summary judgment to Smith and denying the same to him. We disagree. Where the terms of a contract are plain and unambiguous, the construction of the contract is a question of law for the trial court. Travelers Ins. Co. v. Blakey, 255 Ga. 699, 700 (342 SE2d 308) (1986); OCGA § 13-2-1. Where the words in a contract are plain and obvious, as here, they must be given their literal meaning. United States Fire Ins. Co. v. Capital Ford &c., 257 Ga. 77, 79 (1) (355 SE2d 428) (1987). Absent ambiguity, the interpretation of a written contract is particularly appropriate for summary adjudication. Foshee v. Harris, 170 Ga. App. 394, 395 (317 SE2d 548) (1984).

Notwithstanding the explicit contract terms, Garvin contends that Smith’s notice of intent to build tolled the option period until Smith gave contrary notice, thereby suspending the option period for 25 months. But the agreement contains no provision for suspending or tolling the five-year option period. Instead, in the event that Smith ceased living on the property before the end of the option period, the purchase option became reinstated.

Moreover, Garvin’s effort to substitute other circumstances for the express contractual terms is unpersuasive. Even assuming for the sake of argument only, that Smith had resided on the property in the RV or used the street address for voter registration purposes or telephone or utility billing, such facts cannot replace the plain and explicit terms of the agreement: to “improv[e] [the property] by erecting living quarters thereon.” See Bumgarner v. Green, 227 Ga. App. 156, 159 (1) (489 SE2d 43) (1997). According to her undisputed testimony, Smith never finished building the house and never resided in the incomplete structure. Therefore, no right of first refusal was created. Since the five-year option term had expired and was not extended, Smith was entitled to judgment as a matter of law. Foshee, 170 Ga. App. at 395. See Lothridge v. First Nat. Bank &c., 217 Ga. App. 711, 714 (3) (a) (458 SE2d 887) (1995).

2. Smith moved for sanctions under Court of Appeals Rule 15 (b) for a frivolous appeal. Upon reviewing the record, we cannot agree that a frivolous appeal penalty is appropriate. Compare Hightower v. Kendall Co., 225 Ga. App. 71, 73 (5) (483 SE2d 294) (1997).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

Decided January 7, 1999.

McCalla, Raymer, Padrick, Cobb & Nichols, Carol V. Clark, for appellant.

Goodman, Hudnall, Cohn & Abrams, H. Gilman Hudnall, for appellee.

       Citing Graham v. Tallent, 235 Ga. 47 (218 SE2d 799) (1975), the Supreme Court transferred this case to this Court.

       “It is further agreed that Purchaser’s option to purchase at the price specified herein shall continue beyond the initial five (5) year term, for an additional thirty (30) years, but may only be exercised if and when Seller, and/or her spouse, Dick Smith, cease to use the premises as her/their primary residence.”

       A professional real estate appraisal estimated that the house was about 40 percent completed. The house lacked plumbing, finished walls and needed a well drilled and the wiring completed.


author: Ruffin, Judge.

text:
    A98A2033.
    BOWEN v. THE STATE.
    (510 SE2d 873)
   Ruffin, Judge.

A jury found Hollis Bowen guilty of driving under the influence of drugs to the extent that it was less safe for him to drive, and of having defective equipment on his vehicle. In his sole enumeration of error, Bowen contends that the trial court erred in denying his motion for directed verdict of acquittal because there was insufficient evidence to prove that he was guilty of driving under the influence of drugs to the extent he was a less safe driver. Because the State provided no evidence that Bowen was a less safe driver, we reverse.

“The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citations, punctuation and emphasis omitted.) Noble v. State, 225 Ga. App. 470 (484 SE2d 78) (1997); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense.” Tyler v. State, 198 Ga. App. 685, 687-688 (2) (402 SE2d 780) (1991).

Viewed in this light, the evidence at trial showed that on September 20, 1997, Trooper Jimmy Jones stopped Bowen’s vehicle because Bowen “was pulling a boat on a trailer that did not have any tail lights on it after dark.” Trooper Jones testified that after he stopped Bowen, he “noticed that his eyes were red and glassy, and his eyelids were red,” and that when he asked Bowen if he had been smoking any marijuana, Bowen responded that he had smoked some a couple of hours ago. The officer could not remember whether Bowen commented on the defective tail lights, but recalled that he did not think Bowen knew they were out. A lab test confirmed that Bowen’s urine tested positive for metabolites of marijuana. At trial, Bowen denied that he had admitted smoking marijuana, but stated that he told the officer he had been in a room a few hours earlier where marijuana was being smoked.

Bowen was convicted under OCGA § 40-6-391 (a) (2), which provides that “[a] person shall not drive or be in actual physical control of any moving vehicle while . . . [u]nder the influence of any drug to the extent that it is less safe for the person to drive.” (Punctuation omitted.) “Although under that statute the State is not required to prove that the defendant actually committed an unsafe act, impaired driving ability is an element of the crime that the state must prove to obtain a conviction.” (Citation and punctuation omitted.) Webb v. State, 223 Ga. App. 9, 10 (476 SE2d 781) (1996). Moreover, “the mere fact that a defendant has ingested marijuana is not sufficient to support a conviction under OCGA § 40-6-391 (a) (2), because that statute does not prohibit driving after ingesting any quantity of drugs.” (Citations and punctuation omitted.) Id. In that regard, evidence which only shows that a defendant’s eyes were “red and glassy, and he had an odor of [marijuana] about his breath” is insufficient to support a conviction for driving under the influence to the extent that it was less safe for him to drive. Clay v. State, 193 Ga. App. 377, 379 (2) (387 SE2d 644) (1989). Compare Gilbert v. State, 262 Ga. 840, 841 (1) (426 SE2d 155) (1993) (evidence reflected more than defendant’s intoxicated state, including the fact that his car “left the roadway at a curve, knocked down several mailboxes, and crossed a private drive before landing nose first in [a] ditch”).

In this case, the State’s evidence that Bowen was impaired as a result of ingesting marijuana consisted of Trooper Jones’ testimony that Bowen had red, glassy eyes and red eyelids at the time he was stopped and that he admitted to having smoked marijuana earlier that evening. Trooper Jones did not testify that Bowen’s speech was slurred, that he was staggering, that he failed any field sobriety tests or that there was anything unusual or erratic about his driving. Thus, this evidence alone is insufficient to sustain a less safe driver conviction. See Clay, supra.

Without providing any authority, the State contends that the fact that Bowen was pulling a boat trailer with no tail lights at night shows that he was a less safe driver. However, this evidence alone is insufficient to support the State’s assertion that Bowen’s ability to drive safely was compromised by his having ingested marijuana. In fact, the evidence shows that Bowen was unaware that the tail lights were defective, and there is no evidence that his ignorance of the defect was attributable to any use of marijuana. Compare Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1989) (evidence of less safe driving included defendant’s driving a short distance without turning on his headlights).

Decided January 7, 1999.

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

Accordingly, because “there was nothing from which the jury could have inferred that [Bowen] was under the influence of marijuana to the extent that [he] was a less safe driver, such as additional evidence of [his] physical condition or conduct at the time of arrest, [his] conviction and sentence for violation of OCGA § 40-6-391 (a) (2) must be set aside.” (Punctuation omitted.) Webb, supra at 11; see also Clay, supra.

Judgment reversed.

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

       Although the presence of marijuana in a driver’s system would support a conviction under OCGA § 40-6-391 (a) (6), which prohibits driving with any amount of marijuana in one’s system, the State did not charge Bowen under this provision.


author: Blackburn, Judge.

text:
    A98A2129.
    MAYS v. FARAH U.S.A., INC.
    (510 SE2d 868)
   Blackburn, Judge.

Linda Mays appeals from the jury verdict in favor of defendant Farah U.S.A., Inc. (Farah) on her action for the wrongful death of her daughter, Sheniga. Mays contends the trial court erred in excluding from evidence an accident report filed with the State Board of Workers’ Compensation and erred in failing to give certain requested jury charges. Mays also contends that the evidence does not support the jury’s verdict. For the reasons discussed below, we affirm.

The record shows that Sheniga died after the automobile in which she was a passenger collided with a truck. Both Sheniga and Julie Ford, the driver of the automobile, were employees of Farah and worked at a retail outlet. On the day of the collision, Ford had arrived at work early. Upon her arrival, Ford learned that Sheniga had car trouble, so Ford volunteered to pick Sheniga up and bring her to work. On the way back to the store, the car collided with a truck hauling sand.

1. Mays contends the trial court committed reversible error in excluding from evidence a “First Report” accident report which Farah filed with the State Board of Workers’ Compensation (the Board). Mays wanted to introduce the report in her case-in-chief to establish the liability of Farah under the doctrine of respondeat superior. Accident reports like the First Report at issue here are required to be filed with the Board by the Workers’ Compensation Act. OCGA § 34-9-12. The Workers’ Compensation Act expressly restricts both access to the reports and use of the reports: “[T]he employers’ reports themselves shall be private records of the board and shall not be open for public inspection except for the inspection of the parties directly involved, and then only to the extent of such interest. These reports shall not be used as evidence against any employer in any action at law brought by any employee for the recovery of damages or in any proceeding under this chapter.” OCGA § 34-9-61 (b). Use of the report by Mays as evidence against Farah is barred by the Act. The trial court did not abuse its discretion in excluding the report, and there was no error. Candler v. Davis & Upchurch, 204 Ga. App. 167 (419 SE2d 69) (1992).

2. Mays contends the trial court erred by failing to give certain requested jury charges. However, Mays asserts the errors within the same enumeration. “This court has long recognized that OCGA § 5-6-40 requires that an enumeration of errors shall set out separately each error relied upon. The unauthorized practice of lumping more than one assertion of error within a single enumeration creates a fair risk that ambiguity, misdirection, or confusion as to the errors asserted will occur, thereby giving rise to an increased likelihood of generating inadvertent appellate error. . . . This court, in the exercise of our sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration and to treat the remaining assertions of error therein as abandoned.” (Punctuation omitted.) West v. Nodvin, 196 Ga. App. 825, 830 (4) (c) (397 SE2d 567) (1990). We will review the alleged error of the court in failing to give Mays’ request to charge no. 15 and will treat the other assertions of error as abandoned.

“[I]n all civil cases, no party may complain of the giving or the failure to give an instruction to the jury unless he objects thereto before the jury returns its verdict, stating distinctly the matter to which he objects and the grounds of his objection. . . . Objection need not be made with the particularity formerly required of assignments of error and need only be as reasonably definite as the circumstances will permit.” OCGA § 5-5-24 (a). Here, although Mays objected to the failure to give the charge, the objection consisted of simply listing the charge which was not given. Mays failed to state any grounds for her objection. We find the objection is insufficient to meet the requirements of OCGA § 5-5-24 (a), and the error was not preserved. First Union Nat. Bank v. Cook, 223 Ga. App. 374, 377-378 (6) (477 SE2d 649) (1996); compare Martini v. Nixon, 185 Ga. App. 328, 329 (2) (364 SE2d 49) (1987).

Decided January 7, 1999

Dennis J. Redic, for appellant.

Cobb, Grabbe & Spillers, Charles L. Spillers, for appellee.

3. Mays contends that the jury verdict in favor of Farah was against the weight of the evidence and that the trial court erred by failing to set aside the verdict. The general rule is that a jury verdict, after approval by the trial court, will not be disturbed on appeal if it is supported by any evidence. Horan v. Pickle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990). Furthermore, “a jury verdict returned in favor of the defendant in a tort case represents a finding by the jury that the plaintiff did not meet his burden of proof as to the defendant’s liability for damages. As against this negative finding by the jury against the plaintiff, an appellate court would not be authorized to hold that a contrary positive verdict in favor of the plaintiff was demanded unless a review of the record demonstrated that, as a matter of law, the plaintiff had met his initial burden of proof as to the defendant’s liability and that the defendant had then failed to produce any evidence as to his non-liability. Thus, an appellate court’s reversal on the general grounds of a judgment which was entered on a jury verdict returned for the defendant in a tort case requires the existence of undisputed evidence of the defendant’s liability for damages.” (Citations omitted.) Denny v. D.J.D., Inc., 188 Ga. App. 431, 432 (1) (373 SE2d 383) (1988).

Examining the record in a light most favorable to the verdict and judgment, the testimony at trial showed that Farah did not permit employees to decide unilaterally to come in early and work; that Farah did not ask Ford to come to work early; that Farah did not provide transportation to or from work for its employees; that the only authorized use of personal vehicles was for picking up supplies or trips to the bank or post office; and that Ford was not on company business when she volunteered to pick up Sheniga. The evidence supports the jury verdict and judgment that Farah was not liable for the death of Sheniga.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Redacted reports are used to supply data to various entities. OCGA §§ 34-9-12 (b); 34-9-61 (b).


text:
    A98A2304.
    BURNS v. THE STATE.
    (510 SE2d 865)
   Blackburn, Judge.

Following a jury trial, Phillip Burns appeals his convictions for trafficking in cocaine and possession of marijuana with intent to distribute, contending: (1) that the trial court erred in denying his motion to suppress evidence of illegal drugs found pursuant to his stop at a roadblock; (2) that the trial court erred by denying his motion for a directed verdict of acquittal with regard to the charge of possession of marijuana with the intent to distribute; and (3) that the trial court erred in denying his motion for a mistrial after the jury heard testimony which placed the character of one of his co-defendants into evidence. For the reasons set forth below, we affirm.

1. “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

At approximately 3:00 a.m. on February 20, 1997, Officers Daniel Stone and Mitch Parker stopped a van at a roadblock they had set up in Decatur County. The van was being driven by one of Burns’ co-defendants, Gurry Douglas. Douglas was placed under arrest for driving without a license. Noticing alcohol in the vehicle, Officers Stone and Parker asked the passengers, Burns, Charos Miller, and Stanley Carr, to step out of the van. As Burns did so, he dropped a clear plastic bag containing cocaine, grabbed it back, and fled the scene. Officer Stone pursued Burns and knocked him to the ground. Lying on his stomach with his arms beneath him, Bums attempted to bury and disperse the cocaine he was carrying into the dirt. After a struggle, Burns was subdued, and the cocaine was collected. A later search of the vehicle also revealed approximately 1.1 grams of marijuana.

In his motion to suppress, Burns contended that the roadblock was constitutionally improper and that the drug evidence seized as a result of the roadblock should be excluded from evidence. We disagree.

“As there is no question that state troopers are authorized to enforce laws on use, ownership, control, licensing, and registration of motor vehicles and using roadblocks for such purposes [is] reasonable and acceptable, the only issue in this appeal is whether the trial court correctly decided that the evidence established that this roadblock was authorized and that [the van in which defendant was a passenger] was not singled out to stop.” (Citation omitted.) Mims v. State, 201 Ga. App. 277, 280 (410 SE2d 824) (1991).

“In [State v. Golden], 171 Ga. App. 27 (318 SE2d 693) (1984) and Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989), we addressed several factors in determining whether the roadblocks which were there in issue were reasonable and constitutional. However, neither Evans nor Golden establishes absolute criteria which must be satisfied before a roadblock is legitimate. Indeed, in Evans, this Court looked at the totality of the circumstances surrounding the roadblock to decide whether the factors in Golden were satisfied. . . . Our Supreme Court, relying on Golden, has held that where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint, and the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication, a roadblock is satisfactory and is within the constitutional confines of a routine motorist roadblock. LaFontaine v. State, 269 Ga. 251, 253 (497 SE2d 367) (1998).” (Punctuation omitted.) Heimlich v. State, 231 Ga. App. 662, 663-664 (500 SE2d 388) (1998). See also Brent v. State, 270 Ga. 160 (510 SE2d 14) (1998).

At the motion to suppress hearing, there was evidence that all vehicles passing through the roadblock were stopped, the resulting delay to motorists was minimal, the roadblock was well identified, and the screening officer was qualified. Furthermore, Officer Stone testified that, for purposes of setting up roadblocks, he was acting as the shift supervisor on the night in question, although another officer, Sergeant Biggies, was “the supervisor of the entire shift.” As such, we cannot say that the trial court’s determination that the LaFontaine criteria were met was clearly erroneous. Burns’ “arrest was not the result of a State trooper’s whimsical decision to stop only his vehicle or an arbitrary scheme to single him out.” LaFontaine, supra at 253 (3).

2. Burns contends that the trial court erred by denying his motion for a directed verdict of acquittal with regard to the charge of possession of marijuana with intent to distribute. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Burns] 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. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged,, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Decided January 7, 1999.

Kenneth W. Musgrove, Mark T. Phillips, for appellant.

During trial, Douglas testified that he believed that Burns owned the marijuana found in the van and that, prior to being stopped, Burns passed a marijuana cigar to others in the van. Challenging his conviction, Burns argues that there was insufficient evidence presented to corroborate this testimony of his co-defendant. The evidence showed, however, that both Douglas and Miller tested positive for marijuana use, that the marijuana was discovered in a console next to the seat where Bums had been sitting, and that Deputy Stone saw Bums hiding something before he exited the van. This evidence was sufficient to corroborate Douglas’ testimony that the marijuana belonged to Burns and that he was distributing it to others in the van. See, e.g., Stephenson v. State, 220 Ga. App. 95, 96-97 (3) (469 SE2d 266) (1996).

3. Burns contends that the trial court erred by failing to grant his motion for a mistrial after a testifying officer improperly placed Miller’s character into evidence. During his cross-examination, Officer Parker inappropriately testified that Miller had told him that he had previously been arrested for armed robbery at the time of the stop. Both Miller and Bums moved for a mistrial, contending that the introduction of this character evidence was prejudicial. The court denied the motions for a mistrial, and, instead, it immediately instructed the jury not to give any consideration to Officer Parker’s inappropriate response.

“Whether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action [s] in dealing with the impropriety. We have previously held that curative instructions were an adequate remedy when witnesses improperly placed the defendant’s character into evidence by testifying about his prior convictions or criminal acts.” (Footnotes omitted.) Sims v. State, 268 Ga. 381 (2) (489 SE2d 809) (1997). In this case, the trial court’s curative instructions were an adequate remedy.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

J. Brown Moseley, District Attorney, Victoria Spear-Darrisaw, Assistant District Attorney, for appellee.


text:
    A98A2472.
    NORTHEN et al. v. MARY ANNE FROLICK & ASSOCIATES et al.
    (510 SE2d 857)
   Judge Harold R. Banke.

Mary Anne Frolick & Associates, d/b/a Re/Max Achievers (“Re/ Max”) obtained a default judgment against Arthur J. Northen, Jr. after Northen breached a January 1995 real estate contract to purchase a $3.2 million home. The trial court imposed the default judgment as a sanction for certain discovery problems. It awarded $97,500 plus interest to Re/Max on its breach of contract claim and $1,560 in attorney fees as damages for its bad faith claim.

After entry of default, Northen retained R. Scott Tobin, who served as Northen’s counsel from May 1, 1997 until October 7, 1997. One day before a bond hearing, Tobin filed an affidavit of indigency on Northen’s behalf.

It is undisputed that as of the time of the bond hearing on June 24, the marital residence and several luxury automobiles were not titled in Northen’s name. Northen’s greatest potential asset was B&N Companies, Inc. (“B & N”), a computer software company. But Northen’s accountant, CPA Richard Griffin, told Northen and Tobin that B&N was worth “nothing.” Griffin sent Tobin a 25 page facsimile showing that all of B & N’s stock had been issued to Northen’s wife, Bonnie. The cover sheet for the fax stated, “B&N Company supporting documentation Bonnie Northen — sole shareholder.” Tobin testified that the document from Griffin, combined with information from Northen, satisfied him that his client could properly avail himself of the protections of OCGA § 5-6-47.

During the hearing it was agreed that B&N would be subjected to extensive discovery to determine if Northen was concealing assets or income from Re/Max. Near the end of the hearing, when the court asked Tobin whether Northen could assist in production of documents from B&N, Tobin responded, “He’s not a shareholder but he is an officer, and he can assist.” In so stating, Tobin erroneously indicated that Northen was not a shareholder in B & N when, in fact, he was the principal shareholder. When Tobin subsequently discovered his error, he personally apprised opposing counsel about Northen’s stock interest on or about July 9 about two weeks after the hearing.

Notwithstanding the affidavit of poverty, the court ordered Northen to post a supersedeas bond in the amount of $182,401 and ordered detailed discovery involving B & N’s corporate records. Two days later, Tobin filed a supplemental affidavit wherein Northen testified, “I am indigent and because of my indigence I am unable to give bond in this matter.” Re/Max filed a traverse of Northen’s affidavit on August 7. Prior to the scheduled hearing on Re/Max’s traverse, the parties engaged in about two months of discovery. One day before the traverse hearing, Northen withdrew his affidavit. At the September hearing, without receiving testimony from a single witness, the trial court concluded, “the filing of this affidavit, just based on what I have heard, was for the purpose of prolonging this litigation and thwarting efforts to collect this judgment.” After Re/Max apparently targeted Tobin, filing two motions for contempt and a motion for attorney fees, Tobin withdrew as Northen’s counsel. The trial court issued an order on October 9, 1997 requiring Northen to appear and show cause why he should not be found in contempt of court for his conduct and/or that of his counsel related to the filing of the affidavits.

Eventually, the trial court conducted a hearing encompassing Re/Max’s OCGA § 9-15-14 motion and the court’s own sua sponte OCGA § 9-15-14 motion. The show cause hearing in early 1998 was directed to five issues: 1) filing an affidavit of poverty while receiving millions of dollars of untaxed money; 2) filing an affidavit of poverty without a reasonable and timely investigation of the cost of obtaining a bond; 3) representing to the court that Northen was not a shareholder of B & N; 4) representing to the court that Northen had no bank accounts in his name when he had just closed a First Union account; and 5) unilateral termination of a court-ordered deposition.

At the show cause hearing, Griffin testified that the day he sent the fax, he had told Tobin that B & N was “insolvent.” A First Union employee testified that the “close date” for the Northens’ joint checking account was May 30, 1996, a date many months before Re/Max obtained judgment for the real estate commission and long before Northen retained Tobin here.

Northen’s testimony was equivocal and inconsistent. Although Northen testified that he and Tobin “did not even talk about a bond,” elsewhere he admitted they did discuss obtaining a bond. Northen conceded that he knew that he “probably could have gotten a bond,” notwithstanding his testimony that he could not do so. Although Northen testified that he “thought the stock was in my wife’s name,” Shareholders Income Tax Schedule K-l’s, sworn federal tax documents bearing his signature belie that claim. Although Northen asserted that “[i]t was true I had no assets in my name,” he conceded that he gave false testimony in his June 26, 1997 affidavit of poverty.

B & N’s corporate counsel, David Stockton, confirmed that Northen had contacted him to inquire about the stock ownership question. When Tobin sought to ascertain what Northen had been told, Stockton was unable to respond because Northen refused to waive his attorney client privilege. Nor did the court permit Stockton to testify as to what he had told Tobin when Tobin contacted him about the stock ownership. The trial court curtailed Stockton’s testimony which Tobin claims would have confirmed his misunderstanding about the stock being in Bonnie Northen’s name.

Tobin testified that Northen complained to him about heavy-handed post-judgment collection tactics employed by Re/Max which, while unsuccessful due to his lack of assets, were disrupting his business and personal life. Northen had a prior bankruptcy and told Tobin he had no personal assets and no one from whom to borrow that amount of money. Tobin claimed that Northen told him the First Union account had no money and had been closed. When Tobin discussed with Northen the possibility of filing an affidavit of indigence in the event Northen could not post the bond, Tobin asked Northen to meet with his accountant before filing the affidavit to confirm his lack of sufficient assets.

Tobin testified that he did not know that Northen owned any part of B & N when he stepped into court on June 24, 1997. Tobin explained that he believed that Bonnie Northen owned all the stock. Tobin also testified that Northen told him that B & N was “upside down,” and that Griffin had told him that B & N was “insolvent.” By deposition, Griffin confirmed that he had told Northen that B & N was insolvent and worth “nothing.” In Griffin’s opinion, as of the end of 1996, the company’s worth was zero.

Tobin testified that it was still his belief that based on what Northen told him that Northen was not bondable and that B & N’s stock was not worth the amount of the judgment ($182,000). Steven J. Laffler, B & N’s controller, in a September 4, 1997 deposition confirmed that B & N was in dire financial straits and had trouble paying its obligations. According to Laffler, B & N’s financial situation was “poor.”

In response to the court’s query as to what steps he had taken prior to filing the affidavit, Tobin testified that in order to obtain financial information, he had contacted opposing counsel and sought financial statements and other information from Northen. Northen told him that B & N had creditor problems and that the marital home was heavily mortgaged and in his wife’s name. Before filing the affidavit, Tobin relied upon Northen’s accountant, B & N’s controller, and Northen for the facts underlying Northen’s financial situation. Tobin had no recollection of an interrogatory response he had filed in another case that Northen was a shareholder and emphatically testified that had he known otherwise, he would never have stated that Northen did not own stock. Tobin testified that a few days after the bond hearing, when B & N’s corporate counsel told him otherwise, he contacted Northen who claimed “that must be a mistake.” Tobin testified, without contradiction, that he duly informed opposing counsel about his error.

Tobin explained that he had suspended Northen’s deposition because he believed that opposing counsel was intentionally violating the trial court’s confidentiality order. It is undisputed that before postponement of the deposition, counsel made two unsuccessful attempts to contact the court for guidance. To protect his client from Re/Max’s threats “to bury” Northen as well as to pursue criminal prosecution against him, Tobin ended the deposition on Friday afternoon pending a ruling from the court and made Northen available to testify on Monday.

Citing time constraints, the trial court refused to allow two experts to testify on Tobin’s behalf. An offer of proof was made as to both witnesses. Michael Paul, a fidelity and surety bond manager, would have testified that he routinely rejects bonding applications from persons like Northen, who have filed bankruptcy. Paul, a licensed bonding agent, would have confirmed that Northen could not have qualified for a $182,000 bond. Gregory Gallagher, a CPA, would have testified that a company’s financial status cannot be determined from income statements as Re/Max claimed. Gallagher also would have testified that in his opinion, B&N was not solvent and B & N’s stock had no value due to B & N’s negative net worth. This excluded evidence would have supported Tobin’s testimony that he had a good faith belief that Northen was not bondable and that B&N was insolvent in June 1997.

The trial court found that Tobin had incorrectly represented to the court that Northen was not a shareholder in B & N, when, in fact, Tobin, in a February 3, 1997 interrogatory response for a different case, had answered, “Mr. Northen is a shareholder, officer, and director of B&N Companies, Inc.” The court found that “Tobin knew or should have known B&N Company was solvent [on June 24, 1997].” The court determined that Tobin “filed the Affidavits of poverty with approval from Defendant [Northen] for the purpose of delaying the proceedings to accomplish diversion of Defendant’s assets.” The court held that the affidavits were false, filed in bad faith, and made wilful misrepresentations. The court also concluded that Tobin lacked legal grounds to terminate the court-ordered deposition. Based on these factual findings, the court imposed sanctions under OCGA § 9-15-14 of $27,157.69 against Tobin and $13,376.17 against Northen. Enumerating ten errors, Tobin appeals. Held:

1. Tobin contends that the trial court erred in refusing to permit the expert testimony of a licensed bonding agent and a CPA in support of his defense. We agree. “Punishment should not be imposed on a party [or his attorney] to a civil case for conduct which is ancillary to the merits of the case and which occurs during the life of the case without a consideration of the nonmovant’s defense of its conduct.” General Motors Corp. v. Conkle, 226 Ga. App. 34, 42 (1) (a) (486 SE2d 180) (1997). Given the potential for imposition of sanctions, Tobin should have been afforded a full opportunity to present his defense. The excluded expert testimony would have corroborated Tobin’s belief that B&N was insolvent and Northen was not bondable, thereby negating a finding of bad faith. Dept. of Transp. v. Woods, 269 Ga. 53, 56 (494 SE2d 507) (1998). Exclusion of evidence critical to Tobin’s defense was reversible error. Whidby v. Columbine Carrier, 182 Ga. App. 638, 648 (6) (356 SE2d 709) (1997) (overruled on other grounds, Pender v. Witcher, 194 Ga. App. 72, 74 (389 SE2d 560) (1989)).

2. Tobin contends that the trial court abused its discretion in finding him liable for attorney fees under OCGA § 9-15-14. We agree and reverse. Bass v. Pearson, 219 Ga. App. 487, 488 (466 SE2d 17) (1995).

The threshold inquiry is the nature of the duty implicitly imposed upon an attorney when his client tells him that his company is “upside down,” he has no assets, and a judgment creditor is hounding him. Here, the record indicates that Tobin did not solely rely upon Northen’s claims of insolvency but required Northen to verify his financial situation with his accountant. In light of Tobin’s legal duty to his client, who asserted that Re/Max was subjecting him and his business to harassment, and who apparently did not disclose to Tobin his stock ownership in B & N which he understood had a negative value, we cannot say that Tobin’s investigation of Northen’s financial circumstances before filing the affidavits was inadequate. See Tarver v. Wills, 174 Ga. App. 550, 551 (1) (330 SE2d 896) (1985). Hindsight is always 20/20.

Apparently, the trial court hinged its decision on the credibility of Northen, without giving weight to Northen’s admitted perjury or to the inconsistencies in Northen’s testimony. See Mutual Ins. Co. of New York v. Dublin Pub., 190 Ga. App. 94, 95 (378 SE2d 497) (1989) (findings of fact will not be set aside unless clearly erroneous). However, Northen’s contradictory testimony about not discussing the bond with Tobin and his affidavit averring that he was “unable to give bond,” must be construed against Re/Max who bore the burden of proof on this issue. Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 31 (3) (343 SE2d 680) (1986). See Ferguson v. Scadron, 227 Ga. App. 614, 615 (489 SE2d 873) (1997). When Tobin’s misstatement about the stock ownership is considered in context, its significance is questionable. It would defy logic to believe that Tobin would have deliberately misrepresented to the court Northen’s ownership interest in B & N while simultaneously agreeing that discovery would include B & N’s corporate minutes, B & N’s stock ledgers, B & N’s financial statements, salary and expense reports, and a wealth of other internal corporate documents. This information, especially the stock ledgers and corporate minutes, would have readily exposed Northen’s stock ownership.

Notwithstanding the trial court’s conclusion to the contrary, the record contains no evidence that Tobin delayed the proceedings to “accomplish diversion of Northen’s assets.” In fact, the record is devoid of any evidence that Northen diverted assets after filing either affidavit or that the filings were instigated for “purpose of delaying the proceedings to accomplish diversion of Defendant’s assets.” Although Northen claimed the affidavits were a “stall tactic,” Tobin vehemently denied that claim. Tobin testified without contradiction that “looking at the statute and the proceedings, I thought this [resolution of the indigency issue] would all be done within a few days. So I had no reason to even believe or suggest to anyone that this was some sort of stalling tactic. I expected an answer actually pretty quickly.”

Significantly, Re/Max failed to offer evidence demonstrating any nexus between any delay in the proceedings attributable to the filing of the affidavits and the diversion of Northen’s assets. It is undisputed that the transfer of Northen’s interest in the marital residence as well as the stock transfer occurred long before Tobin became Northen’s counsel. As to the First Union joint checking account, it had been closed even before Re/Max filed suit. Moreover, if B & N was insolvent and its stock worthless, as Tobin testified that he believed, who owned it would have been immaterial to Northen’s purported indigency or bondability.

These conclusions are supported by Re/Max’s subsequent lawsuit filed against both Arthur and Bonnie Northen on March 25,1998. Re/ Max alleged, inter alia, that Northen fraudulently transferred his interest in the residence to his wife ten days after being served with its suit, and conveyed all his personal property, wages, and income to his wife during the pendency of Re/Max’s suit. Notably, Re/Max alleged that the fraudulent transfers and conveyances had rendered Northen insolvent and made no claim that the stock had been fraudulently transferred. None of these purported misdeeds occurred while Tobin served as Northen’s counsel in the underlying case or after the affidavits were filed.

Re/Max painted an elaborate portrayal of the Northens’ lavish lifestyle, fancy home, high income, and luxury vehicles, ignoring facts disclosing a reversal of fortunes and substantial indebtedness. But even assuming arguendo, that Northen himself lacked the resources to post the bond without assistance, Re/Max points to no authority, and we know of none, which would obligate his spouse to do so from her personal resources.

In sanctioning the misconduct surrounding the filings, the trial court imposed punishment on Tobin for Northen’s misconduct for averring that he could not obtain a bond when Northen apparently knew otherwise. This was plainly unfair in the absence of evidence of complicity or duplicity. In light of what Tobin knew, it cannot be said that Tobin lacked “substantial justification” for his actions. Compare Cobb County School Dist. v. MAT Factory, 215 Ga. App. 697, 703 (4) (452 SE2d 140) (1994). Similarly, the record does not show bad faith on Tobin’s part. Sacha v. Coffee Butler Svc., 215 Ga. App. 280, 282 (2) (450 SE2d 704) (1994). Nor does the record show that Tobin engaged in improper conduct, intended to harass Re/Max or attempted to interpose delay to enable Northen to divert assets. Having reviewed the record, we find that it fails to satisfy the criteria for imposing sanctions against Tobin. Woods, 269 Ga. at 56. Therefore, the attorney fees awarded against Tobin cannot stand. Id.

Decided January 7, 1999

Hendrick, Phillips, Schemm & Salzman, Victoria H. Tobin, for appellants.

Bivens, Hoffman & Fowler, Luther B. Bivens, Stanley E. Kreimer, Jr., for appellees.

In light of the above disposition, we need not address the remaining enumerations of error.

Judgment reversed.

Johnson, C. J., and Smith, J., concur.

       Northen is not a party to this appeal.

       Griffin incorporated B&N. The articles of incorporation list Bonnie Northen as the registered agent, president, and secretary/treasurer.

       At some point after Northen replaced Tobin with L. Brown Bivens as his new counsel, Northen’s and Tobin’s interests diverged. Beginning in October 1997, Bivens engaged in settlement negotiations with Re/Max. In April 1998, on behalf of Northen, Bivens sought to enforce a settlement agreement with Re/Max in which Northen had agreed to provide his cooperation and assistance to Re/Max in its contempt proceedings against Tobin. Bivens wrote to Re/Max’s counsel, “I am sure that you will agree that I have bent over backwards to cooperate with you and to assist you in connection with the resolution of these claims and with the contempt action against Mr. Northen and against Mr. Tobin.”

       The hearing spanned portions of January 29, February 2, 19, and 27, 1998. During that time frame, Northen and Re/Max were embroiled in settlement negotiations and purportedly reached a settlement on February 3. Northen’s brief in support of his motion to enforce that settlement stated, “[i]n further reliance upon the settlement agreement, Northen presented very little defense to the contempt action brought by Plaintiff or to Kreimer’s request for extensive attorney’s fees, and even assisted Kreimer [Re/Max’s attorney] in the presentation of evidence in the case.”

       B & N’s balance sheet for the year ending December 31, 1996 indicates a negative total capital value of-$3,332,466. B & N’s balance sheet for the period ending May 31,1997 shows a negative total capital of-$2,593,503.

       Laffler testified that B & N’s financial position had drastically deteriorated in 1996 and 1997 due to a heavy debt load, creditor claims, and the loss of market share in the highly competitive computer software business. B & N had also downsized dramatically. Laffler revealed that Northen was heavily in debt to B & N and owed $1.5 million to B & N.

       The order awarding Re/Max “every penny” it sought for attorney fees included attorney fees for routine post-judgment discovery and for fees for Re/Max’s in-house counsel, Howard Delashmit, who never testified as to the necessity for his services or the reasonable value of his fees. See Mitcham v. Blalock, 214 Ga. App. 29, 31-32 (2) (447 SE2d 83) (1994) (court must limit an award to actual and reasonable costs incurred as a result of sanction-able conduct). Oden v. Legacy Ford-Mercury, Inc., 222 Ga. App. 666, 668-669 (2) (476 SE2d 43) (1996).


author: Eldridge, Judge.

text:
    A98A2050.
    GOMILLION v. THE STATE.
    (512 SE2d 640)
   Eldridge, Judge.

A Richmond County jury found Wade Gomillion guilty of armed robbery, aggravated assault, possession of a firearm during the commission of a crime, and giving a false name. Gomillion appeals, contending that he received ineffective assistance of counsel at trial.

In a light most favorable to the verdict, the record shows that two males approached a young couple who had been to dinner at the Riverwalk in Augusta. As the males passed the couple, one male punched the young man in the face, dropping him to the ground. The other male held a gun on the young woman and demanded her black backpack. She complied. After taking the backpack, the two males ran from the area.

The couple immediately informed a policeman who was nearby and provided a description of the perpetrators. The policeman was a motorcycle patrol officer. He mounted his motorcycle and set off in the direction in which the perpetrators fled. Almost immediately, the officer spotted two males who fit the description given by the victims. Both males were running and one wás carrying a black backpack. The two males saw the motorcycle officer and hid in some bushes behind a building. The officer called for backup while watching the bushes. When multiple patrol units arrived with sirens and lights activated, the two males in the bushes broke and ran. They were apprehended in the middle of Broad Street and transported in separate patrol cars to Riverwalk for identification.

The female victim positively identified appellant Gomillion as the man who held the gun on her, demanded her backpack, and ran. She identified the backpack which was recovered near the bushes where Gomillion had been hiding. The gun was also recovered. The male victim positively identified Gomillion’s co-defendant, Kevin Parkman, as the one who punched him in the face, picked up the backpack, and ran. At arrest, Gomillion told police that his name was “Antonio Rodriquez Adams.” Held:

1. Gomillion’s appellate counsel was appointed after the trial court had denied Gomillion’s motion for new trial. Counsel immediately filed a notice of appeal with this Court in order to protect Gomillion’s right of appeal as to potential errors related to the denial of the motion for new trial. Thereafter, counsel filed a “motion to stay appeal,” so that he could raise a claim of ineffective assistance of trial counsel in the court below and develop the record thereon. See Herndon v. State, 229 Ga. App. 457 (494 SE2d 262) (1997). We denied such motion because the “stay” of appeal process outlined in Herndon v. State was overruled in Howard v. State, 233 Ga. App. 724, 729 (505 SE2d 768) (1998).

It bears reiteration that, on direct appeal of an order denying a motion for new trial, this Court will determine the merits of the asserted enumerations of error related thereto. If an appellant raises a claim of ineffective assistance of trial counsel, and we can decide such claim upon the record as a matter of law, we will resolve it. Brundage v. State, 208 Ga. App. 58, 60 (430 SE2d 173) (1993) (Beasley, P. J., concurring specially); Anderson v. State, 218 Ga. App. 872 (463 SE2d 502) (1995); Wright v. State, 211 Ga. App. 474, 477-478 (440 SE2d 27) (1993). If a claim of ineffective assistance of trial counsel cannot be decided as a matter of law upon the existing record, and the record supports appellate counsel’s contention that direct appeal was the first opportunity to raise such claim, we will enter judgment on the appeal as to the claims raised pursuant to the denial of the motion for new trial, and remand to the trial court solely for a determination of the ineffectiveness claim. Davitt v. State, 232 Ga. App. 427, 429 (502 SE2d 300) (1998). Thereafter, “[i]f the trial court finds that [appellant] did not receive effective assistance of counsel, a new trial is required. If the trial court finds that [appellant] did have effective assistance, [appellant] shall have 30 days in which to initiate an appeal of the trial court’s ruling on the issue.” Davitt v. State, supra at 429.

2. In this case the record shows that the instant appeal is the “earliest practicable moment” that appellate counsel could raise an ineffective assistance claim against trial counsel. Porter v. State, 258 Ga. 94 (365 SE2d 438) (1988). Accordingly, if Gomillion’s claims cannot be resolved as a matter of law upon the existing record, the instant case must be remanded.

3. Gomillion contends that his trial attorney was ineffective because trial counsel allegedly (a) failed to move for severance from Gomillion’s co-defendant; (b) failed to object to the introduction of prejudicial character evidence; (c) failed to file Requests to Charge or to reserve objection to the trial court’s charge to the jury; and (d) failed to have Gomillion properly arraigned and to plead Gomillion “not guilty.”

“[T]he proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) [(1984)]. First, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance. There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy. As to the second prong, the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Citations and punctuation omitted.) White v. State, 216 Ga. App. 583 (1) (455 SE2d 117) (1995).

Under the applicable legal standard as noted above, we have reviewed Gomillion’s claims of ineffective assistance of trial counsel and the trial record upon which they are based. We will not remand this case. On the record in this case, Gomillion’s claims are meritless as a matter of law.

(a) “The decision whether to file a motion to sever is a matter of trial tactics and the fact that such a motion was not filed does not require a finding that trial counsel was ineffective. Further, [Gomillion] must do more than raise the possibility that a separate trial would have given him a better chance of acquittal. [Gomillion] must make a clear showing of prejudice and a consequent denial of due process.” (Citations omitted.) Pierre v. State, 223 Ga. App. 43, 44 (476 SE2d 829) (1996).

Before this Court, Gomillion has put forward no legal basis for the granting of a severance. Gomillion “has not shown any evidence that the joint trial created confusion concerning the evidence and law applicable to each defendant and that the defendants’ defenses were somehow antagonistic. [Cit.]” Id. at 44. Far from antagonistic defenses, co-defendant Parkman took the stand and testified that Gomillion did not have a gun; that there was no intent to rob; that he did not know how the victim’s backpack ended up in Gomillion’s possession; and that neither Gomillion nor he ran from the police.

Moreover, Gomillion was apprehended almost immediately after the armed robbery. The victim’s backpack was located in the same area Gomillion was found. The gun was also found in the same location. Within minutes of the crime, the victim positively identified Gomillion as the man who robbed her at gunpoint. Accordingly, “in light of the overwhelming evidence of guilt as to the crimes for which he was convicted, it is highly unlikely that the evidence involving only [Parkman], affected the verdict.” Id. at 44.

Finally, while Parkman did give a statement to the police which was introduced at trial, Gomillion has failed to show that the statement was inadmissible. Sebastian v. State, 195 Ga. App. 346, 347 (393 SE2d 492) (1990). Parkman’s statement was initially redacted to remove reference to Gomillion and thus provides no legal basis for severance. See Harris v. State, 218 Ga. App. 472, 474 (3) (462 SE2d 425) (1995). Further, there was no objection to Parkman’s statement as redacted, and Parkman later took the stand to testify on his own behalf, making the issue of redaction moot.

Under these facts, Gomillion has failed as a matter of law to show the requisite prejudice to his defense to support his claim of ineffective assistance of counsel and has failed to show any reasonable probability that the jury would have reached a different result had the counts been severed.

(b) Trial counsel was not ineffective for failing to object to testimony regarding Gomillion’s ownership of a gun and his custom of carrying such weapon. Contrary to Gomillion’s conclusory contentions, gun ownership and carrying such weapon does not, by itself, impute bad character. OCGA §§ 16-11-129; 16-11-126 (c). Gomillion does not explain how the testimony about which he complains improperly placed his character in evidence, and it would appear that Gomillion’s real objection to this testimony is its relevance to his ability to perpetrate an armed robbery because of the availability of a weapon. To that end, such testimony was relevant and objection would not be appropriate. See, e.g., Richie v. State, 258 Ga. 361, 362 (3) (369 SE2d 740) (1988); Mantooth v. State, 197 Ga. App. 797, 800 (5) (399 SE2d 505) (1990); Perez v. State, 182 Ga. App. 628, 629 (3) (356 SE2d 706) (1987).

Gomillion also claims that his attorney was ineffective for failing to object to testimony by the arresting officer that jail personnel notified him of Gomillion’s real identity: “The next day I was notified by the jail that, apparently, they were familiar with him and they were able to locate a picture of him.” Contrary to Gomillion’s contentions, this testimony provided no basis for objection. Gomillion gave the arresting officer a false name, and he was indicted for giving such false information. Accordingly, Gomillion, himself, made relevant the facts by which his real identity was discovered. “Evidence which incidentally puts character in issue may be admitted if otherwise relevant. [Cit.]” Waldrip v. State, 267 Ga. 739, 748 (11) (482 SE2d 299) (1997).

(c) Gomillion alleges that his attorney’s performance was deficient because he did not submit any requests to charge. However, upon review of the court’s charge, it appears that the trial court covered all of the law applicable to the case. The law regarding confessions as reflected in OCGA § 24-3-52 was not applicable since Gomillion’s co-defendant testified at trial. See Akins v. State, 173 Ga. App. 797 (328 SE2d 413) (1985). “[T]he failure to file written requests to charge does not, without more, make trial counsel ineffective.” Williams v. State, 211 Ga. App. 393, 396 (439 SE2d 11) (1993); Jones v. State, 263 Ga. 835, 837-838 (439 SE2d 645) (1994).

Gomillion also contends that his trial counsel was ineffective for failing to reserve objections to the jury charge. “Failure to object to a court’s charge, however, is not ineffective assistance where the appellant does not show how this prejudiced his case.” Jones v. State, supra at 838.

(d) Gomillion claims his attorney was ineffective for failing to ensure he was formally arraigned. However, in this case, as in most cases, arraignment was waived. See Bunn v. State, 150 Ga. App. 294 (257 SE2d 364) (1979); Moore v. State, 153 Ga. App. 511 (265 SE2d 821) (1980). Waiver of arraignment provides no basis for a claim of ineffective assistance of counsel when Gomillion does not claim he was unaware of the charges against him, which is the purpose of arraignment. McArthur v. State, 169 Ga. App. 263 (1) (312 SE2d 358) (1983).

Also, when issue was joined and prior to sending the indictment to the jury, the prosecutor inadvertently circled “guilty” on the face of the indictment. Gomillion contends that his attorney was ineffective for failing to ensure that his plea of “not guilty” was clear on the face of the indictment. However, the jury heard the evidence in this case, as well as the charge of the court. In that regard, the trial court charged the jury, “To this indictment the defendants have entered their pleas of not guilty, and this makes up the issue which you are called upon to well and truly try. The indictment is not evidence, it is the charge of the State of Georgia made by and through the Grand Jury of this County and you should not consider the indictment as evidence in the trial of this case.” It is well settled that “qualified jurors under oath are presumed to follow the instructions of the trial court.” Smith v. State, 267 Ga. 372, 374 (3) (477 SE2d 827) (1996). Gomillion has failed to demonstrate that, but for the prosecutor’s error, there is a reasonable probability that he would have been found “not guilty.”

Decided January 8, 1999.

Joseph R. Neal, Jr., for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Accordingly, Gomillion’s claims of ineffective assistance of trial counsel fail as a matter of law.

Judgment affirmed.

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

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       Jurisdiction cannot reside in two places at one time so as to permit a “stay” of a case in this Court and a remand of the same case to the trial court in order to decide an ineffective assistance of counsel claim.

       This was the prosecutor’s error, not the defense attorney’s. OCGA § 17-7-96.