text:
    A01A2238.
    BISHOP v. THE STATE.
    (555 SE2d 504)
   Eldridge, Judge.

This is the second appearance of this case before this court. In Bishop v. State, 241 Ga. App. 517 (526 SE2d 917) (1999) (Bishop I), we reversed the superior court’s order denying defendant Kyle Richard Bishop’s motion to suppress audiotaped recordings made by the parents of the underage victim of her conversations with the defendant. Subsequently, a Cobb County jury convicted the defendant of child molestation (Count 1), aggravated child molestation (Counts 2 and 3), and aggravated sexual battery (Count 4). The defendant was sentenced consecutively and concurrently to 40 years confinement, to serve 30, and the remainder probated upon the underlying facts as set out in Bishop I. The defendant now appeals, contending that the superior court erred: (1) in admitting the testimony of the victim’s mother as to a telephone conversation she overheard between the victim and the defendant, a recording of which we suppressed in Bishop I; (2) in refusing to admit defendant’s Exhibit 3, a typewritten note to the defendant purportedly signed by the victim, for confusing the question of the note’s admissibility with its authenticity as written by the defendant; and (3) in not admitting testimony that the victim had previously been molested upon expert State’s testimony describing the victim as exhibiting characteristics consistent with having earlier been sexually abused as a child. For the reasons that follow, we affirm.

1. The General Assembly amended OCGA § 16-11-66, effective April 20, 2000, permitting parents, as third parties, to intercept and tape telephone conversations to which their children are parties upon a “reasonable or good faith belief that such conversation ... is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child.” OCGA § 16-11-66 (d)† Malone v. State, 246 Ga. App. 882, 884-885 (541 SE2d 431) (2000). The defendant correctly argues that OCGA § 16-11-62 makes it “unlawful for . . . [a]ny person in a clandestine manner intentionally to overhear, transmit, record or attempt to overhear, transmit, or record the activities of another which occur in a private place and out of public view.” OCGA § 16-11-62 (1). However, the defendant errs insofar as he further asserts that the 2000 amendment .cannot be applied retroactively to the 1996-1997 offenses of which he was convicted.

While OCGA [§ 16-11-66 (d)] was passed after the commission of the offense [s] for which [defendant] was tried, it did not inflict greater punishment than was permitted by the law in effect at the time of the offense [s]; it did not make criminal an act which was innocent when done; it did not change the quality or degree of [defendant’s] offense; it did not require less or different evidence than required at the time of the offense; and it did not deprive [defendant] of any substantial right or immunity he possessed at the time of the offense. See Todd v. State, 228 Ga. 746, 751-752 (187 SE2d 831) (1972).

Love v. State, 271 Ga. 398, 399 (1) (517 SE2d 53) (1999). The sole effect of the amendment was to make evidence admissible in a criminal case which would not have been admissible at the time the offense was committed. Todd v. State, supra at 751. There is no claim that the victim’s mother lacked a proper basis to monitor surreptitiously the complained-of telephone conversation in this case, and, by its own terms, OCGA § 16-11-66 (d) authorizes the parents of minor children under 18 to monitor or intercept the telephone conversations of such children, with or without their consent. Accordingly, the superior court properly gave retroactive effect to OCGA § 16-11-66 (d); Price v. State, 269 Ga. 222, 225 (4) (498 SE2d 262) (1998); State v. Martin, 266 Ga. 244, 245-246 (3) (466 SE2d 216) (1996), and no error resulted upon admitting the mother’s testimony as to her daughter’s telephone conversation with the defendant.

2. The superior court did not err in refusing to admit defense Exhibit 3. The burden of proving the authenticity of a writing rests upon the party introducing it. OCGA § 24-7-1; Anderson v. Cuthbert, 103 Ga. 767, 773 (30 SE 244) (1898); State v. Smith, 246 Ga. 129 (269 SE2d 21) (1980). The defendant failed to meet his burden in this regard. On cross-examination, the victim denied having written the exhibit in issue. Further, although she conceded that the signature thereon looked like her own, the victim testified that she had not signed the writing.

Decided October 15, 2001

Reconsideration denied October 31,2001

Brenda J. Bernstein, for appellant.

Patrick H. Head, District Attorney, Eleanor A. Kornahrens, Dana J. Norman, Assistant District Attorneys, for appellee.

3. The defendant also asserts that he should have been allowed to present evidence as to a prior molestation of the victim by a family member. However, “[e]vidence of prior molestation or previous sexual activity on the part of the victim is not relevant in a . . . molestation case to show either the victim’s reputation for nonchastity or his [or her] preoccupation with sex. [Cits.]” (Punctuation omitted.) Duncan v. State, 232 Ga. App. 157,163 (5) (500 SE2d 603) (1998). “[A]n exception to this exclusion may be authorized when the State introduces . . . evidence . . . that the child has been sexually abused [in the past] or when the State presents evidence that the child exhibits symptoms of the [child] abuse accommodation syndrome. [Cit.]” Rocha v. State, 248 Ga. App. 53, 56 (2) (545 SE2d 173) (2001). Here the State presented neither medical evidence showing that the victim had been molested nor evidence showing that she had indicated symptoms consistent with the child abuse accommodation syndrome. As a result, the exception was inapplicable and inquiry into the victim’s sexual history was properly precluded under OCGA § 24-2-3 (b).

Judgment affirmed.

Andrews, R J, and Miller, J., concur.

       At the time of the offenses the victim was 13.

       “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a).

        “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

       “A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without the consent of that person.” OCGA § 16-6-22.2 (b).

       OCGA § 16-11-66 (d) provides:
      The provisions of this article shall not be construed to prohibit a parent or guardian of a child under 18 years of age, with or without the consent of such minor child, from monitoring or intercepting telephonic conversations of such minor child with another person by use of an extension phone located within the family home . . . for the purpose of ensuring the welfare of such minor child. If the parent or guardian has a reasonable or good faith belief that such conversation ... is evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity affecting the welfare or best interest of such child, the parent or guardian may disclose the content of such telephonic conversation ... to the district attorney or a law enforcement officer. A recording or other record of any such conversation or communication made by a parent or guardian in accordance with this subsection that contains evidence of criminal conduct involving such child as a victim or an attempt, conspiracy, or solicitation to involve such child in criminal activity shall be admissible in a judicial proceeding except as otherwise provided in subsection (b) of this Code section.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1059.
    MANSOUR PROPERTIES, LLC et al. v. REINHARDT COLLEGE, INC.
    (555 SE2d 877)
   Ruffin, Judge.

Reinhardt College, Inc. sold approximately 162 acres of land to I-85/Ga. 20 Ventures (Ventures). The sales contract provided that a four percent commission would be paid to Perimeter Properties, Inc., the broker for the transaction. After closing, a dispute arose as to the payment of the commission, and Reinhardt College filed an inter-pleader and declaratory judgment action, seeking guidance on the disbursement of the commission, which it paid into the registry of the court. Perimeter Properties moved for summary judgment, asserting that no other claimant was entitled to the commission. The trial court agreed and granted the motion, and this appeal ensued. For reasons that follow, we affirm.

“On motion for summary judgment, the movant must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in favor of the nonmovant, warrant judgment as a matter of law.” So viewed, the relevant facts demonstrate that on May 15, 1996, Ventures signed a contract with Reinhardt College to purchase land from the college. The contract provided, in pertinent part, that Perimeter Properties would receive a four percent commission as broker for the transaction. Jim Clower signed the sales contract in his capacity as president of Perimeter Properties. Although Clower also was a principal in Ventures, he did not sign the sales contract in any capacity other than as president of Perimeter Properties.

Ventures lacked sufficient funds to close on the contract. However, Ventures found investors willing to provide the necessary financial support — Mansour Properties, LLC and Lifestyle Family, L.P. (the investors). Ventures and the investors entered into a Tenancy-in-Common Agreement in which Ventures, as Tenant A, owned a 50 percent interest in the property, and Mansour Properties and Lifestyle Family, as Tenant B, owned an undivided 50 percent interest in the property. This agreement provided, in pertinent part, that “[n]o Tenant or an affiliate, related person, employee, or agent of any Tenant is entitled to any fees or salary whatsoever including any purchase and sale commission accruing prior to or after closing in connection with the Property purchase.” Clower signed this agreement as Tenant A in his individual capacity.

The record shows that when Reinhardt College sought to pay the four percent commission to Perimeter Properties, the investors challenged the broker’s right to the commission. The challenge was based upon the fact that, on July 23, 1995, the Georgia Secretary of State administratively dissolved Perimeter Properties. The investors asserted that, in light of the dissolution, Perimeter Properties was essentially Clower. As Clower agreed in the Tenancy-in-Common Agreement that he would not receive any commission, the investors argued that he should not receive the entire commission. Rather, the investors maintained that Clower was required to share this commission with the other tenants.

The investors wrote letters to Reinhardt College to this effect, which prompted the college to file its interpleader and declaratory judgment action against Perimeter Properties and the investors. Reinhardt College also sought to recover its attorney fees for prosecuting the action. Perimeter Properties moved for summary judgment, asserting that “the other claimants have absolutely no legal entitlement to the funds inter [pled].” The trial court agreed, ruling that the investors “are strangers to [the sales] contract and thus have no claim to those monies.” Thus, the trial court found that Perimeter Properties was entitled to judgment as a matter of law. With respect to the college’s request for attorney fees, the court concluded that the “remaining Defendants are jointly and severally liable for [the college’s] attorneys fees.”

1. On appeal, the investors assert that the trial court erred in concluding that Perimeter Properties is entitled to judgment as a matter of law. We disagree.

Once a movant has made a prima facie showing of entitlement to judgment as a matter of law, “the burden shifts to the respondent to come forward with rebuttal evidence. In rebutting this prima facie case, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response . . . must set forth specific facts showing that there is a genuine issue for trial.”

Here, Perimeter Properties moved for summary judgment, asserting that the investors had no legal claim to any part of the commission. Indeed, the Tenancy-in-Common Agreement, which is the only agreement to which the investors are parties, expressly provided that they were not entitled to any commission. The investors nevertheless assert that, by signing the Tenancy-in-Common Agreement, Clower waived his right to the commission. The investors further assert that, because Perimeter Properties was not a valid corporation, Clower and Perimeter Properties are the same entity. Through some leap in logic, the investors reach the conclusion that these facts require Clower/Perimeter Properties to share the commission with them. This conclusion is entirely unfounded.

The investors expend much effort arguing that Perimeter Properties’ status as a noncorporation is key. We disagree. Perimeter Properties’ corporate status is a red herring. The question is not whether Perimeter Properties is entitled to the commission. Indeed, Reinhardt College does not dispute that it owes the commission to that company. The question is whether the investors have shown that they are entitled to any part of the commission. The answer — simply put — is no. As the trial court correctly noted, the investors were strangers to the contract between Perimeter Properties and Reinhardt College. Accordingly, they accrued no rights under that contract. More importantly, the investors point to no subsequent agreement that requires either Glower or Perimeter Properties to share the commission. It follows that the trial court did not err in granting Perimeter Properties’ motion for summary judgment.

Decided October 31, 2001.

Alston & Bird, Peter M. Degnan, Lori P. Hughes, for appellants.

Dana M. Thompson & Associates, John D. Cline, Thompson, O’Brien, Kemp & Nasuti, John P. O’Brien, Daniel E. Tranen, for appellee.

2. This holding renders the investors’ remaining enumerations of error moot.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

        Fann v. Mills, 248 Ga. App. 460 (546 SE2d 853) (2001).

       See Scott v. Cushman & Wakefield, of Ga., 249 Ga. App. 264,265 (547 SE2d 794) (2001) (“The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it”).

        Smalls v. Walker, 243 Ga. App. 453, 457 (2) (532 SE2d 420) (2000).


author: Phipps, Judge.

text:
    A01A1456.
    FREEMAN v. THE STATE.
    (555 SE2d 879)
   Phipps, Judge.

In a bifurcated trial, a jury found Herman Derek Freeman guilty of armed robbery, aggravated assault, fleeing or attempting to elude, and possession of a firearm during the commission of a crime. Following the jury’s verdict, he pled guilty to possession of a firearm by a convicted felon. Freeman appeals, contending that the evidence was insufficient to support the jury’s verdict, that testimony mentioning his parole violated OCGA § 17-8-76, and that a State’s witness violated the rule of sequestration. We affirm because the record demonstrates that the evidence was sufficient and that no violation of OCGA § 17-8-76 occurred. Freeman abandoned his remaining contention.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that around 9:00 a.m. on February 1, 2000, Josh Parson arrived home from work and found Freeman and Freeman’s wife there. A disagreement appeared to be in progress. Mrs. Freeman was the daughter of Parson’s roommate, and the Freemans previously had lived in the home with Parson. Around noon, everyone left the house, and Parson and Freeman’s wife went together to the store. Upon returning home, Parson discovered Freeman hiding beside a bed. Freeman forced Parson at gunpoint to handcuff himself and lie on the floor, at which point, Freeman, still armed, fled the scene in Parson’s truck, taking his wife with him. Parson was able to release himself and call the police, who pursued Freeman. The chase ended in Alabama when the truck ran out of gas. After several hours of hostage negotiations, Freeman released his wife and turned himself in to police.

Decided October 31, 2001.

Meng H. Lim, for appellant.

1. Relying on OCGA § 17-8-76, Freeman contends that the trial court erred in denying his motion for a mistrial when a State’s witness testified that Freeman was on parole. That Code section prohibits an attorney from arguing that the defendant may not serve his full sentence if convicted.

The testimony to which Freeman objects came from Freeman’s wife, who stated that during the hostage negotiations Freeman mentioned his parole officer. Such testimony did not address the possibility of pardon, parole, or other clemency for the instant charges and thus did not violate OCGA § 17-8-76. Further, the trial court complied with Freeman’s later request for curative instructions, directing the jurors that Freeman’s parole was not relevant to the case before them and they should disregard it. The trial court did not abuse its discretion when it denied the motion for mistrial.

2. Freeman contends the evidence was insufficient to support the jury’s verdict. Having viewed the evidence in the light most favorable to the verdict, we conclude that a rational trier of fact could have found Freeman guilty beyond a reasonable doubt of armed robbery, aggravated assault, fleeing or attempting to elude, and possession of a firearm during the commission of a crime.

3. Freeman’s contention that a State’s witness violated the rule of sequestration is unsupported by any argument or citation to authority. It is therefore deemed abandoned.

Judgment affirmed.

Smith, P. J, and Barnes, J., concur.

James R. Osborne, District Attorney, Carmen T. Bolden, Assistant District Attorney, for appellee.

        Gilreath v. State, 247 Ga. 814, 835 (15) (279 SE2d 650) (1981); Hernandez v. State, 244 Ga. App. 874, 876 (1) (a) (537 SE2d 149) (2000).

       See Gilreath, supra; Hernandez, supra; Moore v. State, 242 Ga. App. 249, 251-252 (1) (b) (529 SE2d 381) (2000).

       See Romine v. State, 256 Ga. 521, 533 (10) (350 SE2d 446) (1986).

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

       Court of Appeals Rule 27 (c) (2); see Sapeu v. State, 222 Ga. App. 509, 512-513 (8) (474 SE2d 703) (1996).


text:
    A01A1486.
    GIRAUDY v. THE STATE.
    (555 SE2d 874)
   Ruffin, Judge.

A jury found Eduardo Giraudy guilty of two counts of trafficking in cocaine and two counts of selling cocaine. On appeal, Giraudy asserts that his due process rights were violated by the State’s destruction of certain audiotapes and the trial court’s failure to properly instruct the jury on the use of similar transaction evidence. Giraudy also contends that the State failed to prove he committed the similar transaction. These assertions lack merit, and we affirm.

Construed to support the jury’s verdict, the evidence demonstrates that, in the fall of 1997, a drug trafficking task force comprising federal, state, and local law enforcement officers was investigating Giraudy, who was suspected of trafficking in cocaine. The task force employed a confidential informant to make controlled buys of cocaine from Giraudy.

On October 17, 1997, Agent Walton Britt of the Atlanta Police Department met with the informant. Britt searched both the informant and his vehicle to ensure that he did not have any contraband. Britt gave the informant $14,000 to use for purchasing one pound of cocaine. The confidential informant then drove to Giraudy’s auto repair shop, spoke with Giraudy, and asked to purchase a pound of cocaine. Giraudy indicated that he had the cocaine and placed a phone call, and he and a woman identified as Barbara Garcia drove away. Britt followed Giraudy to a house on Coronet Way. Garcia entered the house for a few minutes before returning to the car. Giraudy and Garcia subsequently drove back to the auto shop where they were joined by Pedro Maldonado, who gave the confidential informant a pound of cocaine.

On November 4, 1997, Britt provided the confidential informant an additional $14,000 to purchase another pound of cocaine. The informant again drove to Giraudy’s auto repair shop, spoke to Giraudy, and asked to buy a pound of cocaine. Giraudy then placed another telephone call. Approximately an hour and a half later, Maldonado arrived with a pound of cocaine, which he gave to the informant in exchange for $14,000.

During the trial, Britt also testified regarding a similar transaction for which Giraudy had not been charged. According to Britt, on October 13, 1997, he provided the confidential informant $6,500 to purchase a quarter-kilogram of cocaine from Giraudy. Britt followed the informant to the auto repair shop. Britt did not, however, follow Giraudy when he left. Instead, he followed the informant. The informant subsequently returned to the auto repair shop, where he obtained what Britt described as “a clear ziplock plastic bag containing a white powdery substance which [he] suspected of being cocaine.”

1. In his first enumeration of error, Giraudy argues that the State violated his due process rights by failing to provide tapes that were made of the drug transactions for which Giraudy was convicted. We disagree.

Agent Britt testified that, on October 17 and November 4, the confidential informant was wired with audio recording equipment that was supposed to tape the transactions. Evidently, there were difficulties with both tapes. According to Britt, the tape from October 17 was “inaudible. You listened, but you could not understand anything whatsoever.” The tape from the November 4 transaction was similarly flawed. Britt testified that the recording was such that “[y]ou couldn’t hear conversation to where you could identify anything or any wording. All you [could] do was just hear a lot of sound.” Thus, the tapes were never turned in to the property room, and Britt stated that he did not know where the tapes were.

Contrary to Giraudy’s contention, the State’s failure to preserve these two tapes did not violate his constitutional right to due process. “The State has a constitutional obligation to preserve evidence that might be expected to play a significant role in the suspect’s defense.” Accordingly, “the prosecution may be penalized [if] it loses or destroys evidence that could potentially have been helpful to the defense ... if the defense shows that the evidence was material and [that] the State acted in bad faith in failing to preserve it.”

Here, Giraudy fails to show either that the evidence was material or that Britt acted in bad faith in failing to turn the tapes over. The record reveals that the tapes were inaudible. Thus, we fail to see how the tapes could have helped Giraudy’s defense. Moreover, it was clear that Britt was disappointed that the recordings were not audible. Britt testified that he realized the tapes “could have been extremely important at . . . trial.” Under these circumstances, the record does not support Giraudy’s assertion that Britt acted in bad faith.

2. In his second enumeration of error, Giraudy asserts that the trial court violated his due process rights by failing to properly instruct the jury with regard to the October 13 similar transaction. Specifically, Giraudy maintains that the trial court failed to instruct jurors “on what standard of proof to use in deciding whether [he] committed the similar transaction.” Although the Supreme Court has made clear that similar transactions must be proved by a preponderance of the evidence, Giraudy urges this Court to conclude that due process requires that the State prove he committed the transaction beyond a reasonable doubt.

Pretermitting what standard should be used, Giraudy has waived any error. “In a criminal case, the trial court is not required to give an unrequested charge as to any collateral matter,” and the standard of proof for a similar transaction is a collateral matter. Here, Giraudy has not shown where he requested such charge, and our review of the record reveals no such request. It follows that the trial court was not required to instruct the jury regarding the appropriate standard of proving similar transaction evidence.

3. In his third enumeration of error, Giraudy contends that his due process rights were violated by the State’s failure to “sufficiently prove” that he committed the similar transaction. Giraudy argues that the State failed to prove the substance was, in fact, cocaine. Again, Giraudy fails to show that he objected to the admission of the evidence on this basis at trial, “and ‘matters not objected to at trial cannot be raised for the first time on appeal.’ ” Accordingly, Giraudy has waived this issue on appeal.

Even assuming Giraudy had preserved this error, it provides no basis for reversal. The jury heard testimony from Britt, several other agents involved in the operation, and the confidential informant inculpating Giraudy in the crimes for which he was convicted. In view of the overwhelming evidence of Giraudy’s guilt, we find it highly unlikely that any error in admitting the similar transaction evidence contributed to Giraudy’s conviction.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Decided October 31, 2001.

Zell & Zell, Rodney S. Zell, for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

       The trial court merged the convictions for selling cocaine with Giraudy’s convictions for trafficking.

       Garcia and Maldonado were also charged with trafficking and selling cocaine, and Maldonado was tried jointly with Giraudy.

       (Punctuation omitted.) State v. Blackwell, 245 Ga. App. 135, 137-138 (2) (b) (537 SE2d 457) (2000).

        Penny v. State, 248 Ga. App. 772, 774 (1) (547 SE2d 367) (2001).

       See Spaulding v. State, 195 Ga. App. 420-421 (1) (394 SE2d 111) (1990) (no bad faith in destroying videotape); Terrell v. State, 271 Ga. 783, 787 (6) (523 SE2d 294) (1999) (no bad faith in destroying original notes after notes transcribed).

        Freeman v. State, 268 Ga. 185, 187-189 (4) (486 SE2d 348) (1997).

       Id. at 189 (4).

       See id.; see also Bishop v. State, 268 Ga. 286, 295 (16) (486 SE2d 887) (1997).

        Roberts v. State, 241 Ga. App. 259, 260 (2) (526 SE2d 597) (1999).

       See Crosby v. State, 240 Ga. App. 84, 85 (1) (522 SE2d 571) (1999).


author: Smith, Presiding Judge.

text:
    A01A0850.
    MOTEN v. THE STATE.
    (554 SE2d 553)
   Smith, Presiding Judge.

Julius Lamar Moten was convicted by a jury of the offense of armed robbery. His motion for new trial as amended was denied, and he appeals. None of Moten’s contentions warrants reversal.

1. We find no merit in Moten’s enumerations raising the general grounds. Evidence was presented that two clerks at a convenience store in Trenton were robbed at gunpoint by three men. Both clerks later identified Moten during separately conducted photographic lineups as one of the suspects. They also identified him at trial as one of the robbers. On the night of the Trenton robbery, a motel clerk was robbed at gunpoint in Dalton. That clerk later observed a surveillance video of the Trenton robbery and identified the men as the same individuals who had robbed her. Evidence was presented that the travel time between Dalton and Trenton is approximately 50 minutes.

Moten argues that the State’s evidence fails to satisfy the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), largely because he presented alibi evidence and because a number of witnesses testified on his behalf that he was not one of the individuals depicted in the surveillance video. But on appeal, a defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. Further, we do not weigh the evidence or determine witness credibility. Instead, an appellate court determines whether the evidence is sufficient to convict the defendant beyond a reasonable doubt. Conflicts in witness testimony, even the testimony of the State’s witnesses, are a matter of credibility for jury resolution. And as long as some competent evidence is presented to support every fact necessary to make out the State’s case, even though contradicted, we will not disturb the jury’s verdict. Sweeder v. State, 246 Ga. App. 557-558 (541 SE2d 414) (2000). Construed in this light, the evidence was sufficient to enable a rational trier of fact to find Moten guilty beyond a reasonable doubt. See State v. Willis, 218 Ga. App. 402, 404 (4) (461 SE2d 576) (1995) (victim’s pre-trial and in-court identification of defendant sufficient to authorize conviction).

2. Moten contends that the court erred in allowing the prosecutor to introduce testimony concerning his alleged gang activity. Relying on Cunningham v. State, 248 Ga. 835, 837 (4) (286 SE2d 427) (1982), he maintains that reversal is required because the prosecutor failed to “connect up” the testimony. The objected-to questions by the prosecutor arose during cross-examination of one of Moten’s character witnesses, when the prosecutor asked the witness if he knew whether Moten had any gang affiliation or whether he was affiliated with the “Thug gang.” The trial court allowed testimony concerning the subject on the condition that the prosecutor “connect it up.” The witness testified that he was not familiar with Moten’s affiliation with the gang or with Moten’s “Thug” tattoo. But the witness also acknowledged that an individual’s gang membership and having “Thug tattooed on their arm” would affect that person’s reputation in the community. The prosecutor asked similar questions of other defense witnesses, as well as questions concerning a “sign” made by Moten in a photograph tendered by the defense. In addition, at least one witness testified on Moten’s behalf that he was not involved in any gang. We note that although Moten testified that he was not a gang member, he showed fairly detailed knowledge concerning gang signs and clothing.

We do not agree with Moten that Cunningham, supra, is controlling. In Cunningham, physical evidence was admitted subject to being later connected with the crime and identified. Id. But the State concluded its evidence without connecting the evidence with the crime charged, and we held this to be reversible error. Here, however, the State first asked questions concerning Moten’s gang activity on cross-examination of the first of Moten’s character witnesses. And “it is permissible for the State to introduce evidence of a defendant’s ‘bad’ character when the defendant himself declares himself ‘a good man.’ ” Anthony v. State, 236 Ga. App. 257, 259 (2) (511 SE2d 612) (1999). Other questions posed by the State concerning gang activity related to Moten’s own exhibit, and as discussed above, Moten presented evidence that he was not involved in a gang. Under these facts, we conclude that Moten himself opened the door to the State’s questions on this subject and cannot now complain.

3. Moten argues that he was denied his rights to conduct a thorough and sifting cross-examination and to confront a witness when the trial court refused to allow him to ask one of the investigating officers if the officer had heard “about the fairly large number of people” who had recently been released from prison because they were misidentified. We do not agree. “Although a defendant is entitled to a thorough and sifting cross-examination of the witnesses against him, the scope of cross-examination is largely within the discretion of the trial court and will not be interfered with by this court unless abused.” (Citation and punctuation omitted.) Hamilton v. State, 238 Ga. App. 320, 321 (2) (517 SE2d 118) (1999). The information sought by Moten constituted very generalized hearsay. Further, the transcript is replete with testimony bearing on Moten’s misidentification defense. Given these circumstances, we cannot conclude that the trial court abused its discretion in sustaining the State’s objection to the proposed inquiry.

4. Moten contends that the trial court improperly shifted the burden of proof in charging the jury that it could take as substantive evidence the prior inconsistent statements of certain witnesses. But in Holiday v. State, 272 Ga. 779 (534 SE2d 411) (2000), the Supreme Court of Georgia explicitly upheld the rule stated in Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982), that prior inconsistent statements are admissible as substantive evidence. See also Gordon v. State, 273 Ga. 373, 376 (2) (b) (541 SE2d 376) (2001). Such prior statements are valuable, as they “are made closer in time to the event when memories are fresher and when there is less likelihood that the statement is the product of corruption, false suggestion, intimidation, or appeals to sympathy.” (Punctuation and footnote omitted.) Holiday, supra at 780-781 (2). We find no merit in Moten’s contention with respect to this issue.

5. We next address Moten’s three enumerations concerning the State’s alleged violations of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

(a) Moten’s first argument relates to the surveillance video that was played for the jury. Without any citation to the record, he states in his appellate brief that the State produced for him “a purported duplicate” of the tape involving the Trenton robbery and that after that trial, a trial was held in Whitfield County regarding the other robbery. He claims that during the Whitfield County trial, the original Trenton robbery tape was played in its entirety. He claims that the tape “shows a Trenton City Police Officer obliterating potential evidence, by leaning on and wiping the counter the Appellant is alleged to have jumped over.” Moten contends that palm prints or fingerprints could have been present that showed he was not the suspect. The only showing made by Moten concerning this issue was his argument on motion for new trial. His counsel contended during the hearing that the video showed a police officer “proceed to spread all of his stuff out and essentially wipe the counter off which would have eliminated the potential for at least for a print ... on that surface that we contend would have exonerated Mr. Moten.” Moten clearly has not shown error by the record. He “has the burden to affirmatively show asserted error by the record. Having failed to demonstrate support in the record for this enumeration, we find no error.” (Citations and punctuation omitted.) Sirmans v. State, 244 Ga. App. 252, 256 (4) (534 SE2d 862) (2000).

More importantly, even if Moten had met his burden of properly showing error, on appellate review, he has not shown grounds for reversal.

In dealing with the failure of the [S]tate to preserve evidence which might have exonerated the defendant, a court must determine both whether the evidence was material and whether the police acted in bad faith in failing to preserve the evidence. To meet the standard of constitutional materiality, the evidence must possess an exculpatory value that was apparent before it was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.

(Citations and punctuation omitted.) Milton v. State, 232 Ga. App. 672, 678-679 (6) (503 SE2d 566) (1998). The record is devoid of any evidence that the police officer acted in bad faith by placing his materials on the counter. Further, unlike the defendant in State v. Blackwell, 245 Ga. App. 135 (537 SE2d 457) (2000), cited by Moten, Moten has failed to show that the purportedly destroyed evidence had exculpatory value that was apparent before it was destroyed. The counter was dusted for fingerprints, but only “smudges” were obtained. The testimony of one of the investigating officers showed that it was rare for usable fingerprints to be discovered. Moten has shown only a bare speculation that the purported evidence might have exonerated him. He has failed to show that the evidence would have played a “significant role” in his defense, Albert v. State, 180 Ga. App. 779, 783 (3) (350 SE2d 490) (1986), and has not met the standard for reversal of a conviction based on the destruction of evidence.

(b) Moten argues that the State committed a Brady violation by refusing to reveal that one of the investigating officers had offered money to a witness to procure his testimony. In support of his motion for new trial, Moten attached an affidavit of one of the witnesses, which recited that the officer had offered him $250 for his testimony. During the hearing on Moten’s motion for new trial, the officer adamantly denied this allegation. On motion for new trial, it was the trial court’s duty to determine witness credibility. See generally Mobley v. State, 264 Ga. 854, 856 (452 SE2d 500) (1995). Inherent in the trial court’s denial of Moten’s motion for new trial is the court’s ruling that the officer’s testimony was more credible than the post-trial affidavit testimony of another witness. A new trial is not required on this basis.

Decided August 28, 2001

Reconsideration denied November 1, 2001.

Frank B. Perry, for appellant.

Herbert E. Franklin, Jr., District Attorney, for appellee.

(c) Moten’s final enumeration of error is that the State violated Brady by failing to disclose that while showing one of the victims a photo lineup, one of the investigating officers told the victim that the other victim had made an identification of one of the suspects in the same photo lineup. In support of this contention, Moten submitted the purported transcript from the trial involving the Whitfield County robbery. We find no merit in Moten’s argument. Even assuming that the uncertified, unauthenticated transcript constituted proper evidence, the officer’s testimony showed that the transcript testimony was taken out of context and that the photo lineup at issue did not include any photographs of Moten. Again, the trial judge was the arbiter of witness credibility, Mobley, supra, and we find no reversible error with respect to the trial court’s denial of Moten’s motion for new trial on this ground.

Judgment affirmed.

Barnes and Phipps, JJ, concur.


text:
    A01A1583.
    THE STATE v. HAMMONS.
    (555 SE2d 890)
   Smith, Presiding Judge.

James Hammons voluntarily entered a guilty plea to a felony offense, vehicular homicide in the first degree, and received a 15-year prison sentence. After serving about nine years of that felony sentence, Hammons sought and obtained misdemeanor punishment. The State then filed this appeal. Because we find that the trial court erred in resentencing Hammons for a misdemeanor offense, we vacate and remand.

On December 12, 1991, Hammons pled guilty to vehicular homicide in the first degree. A sentence review panel affirmed that 15-year sentence. Dissatisfied with his continuing incarceration, Hammons filed unsuccessful pro se motions seeking to withdraw his guilty plea or, in the alternative, to have his sentence modified. Despite having entered a guilty plea to vehicular homicide in the first degree, a felony then requiring imprisonment for not less than two years nor more than fifteen years, Hammons filed a “Motion to Enter Valid Judgment” to seek a misdemeanor sentence. See OCGA § 40-6-393 (a). For the first time, Hammons argued that Count 1 of the accusation had charged him with a misdemeanor, so that when he pled guilty to Count 1, he should have received a misdemeanor sentence.

Finding itself constrained chiefly by Smith v. Hardrick, 266 Ga. 54 (464 SE2d 198) (1995), the trial court reluctantly granted Hammons’s motion. In resentencing Hammons, the trial court noted that after careful review of the record,

there is no doubt that all parties understood this negotiated plea and understood and accepted the sentence to be imposed. At the time of the plea, a scrivener’s error was made on the Accusation. The consequences of the State’s miswording of its Accusation are harsh under these circumstances, and it is distasteful to allow the Defendant to now benefit because he freely and voluntarily pled guilty to a crime which was and which he believed to be a felony punishable by fifteen years imprisonment.

The trial court then resentenced Hammons to 12 months in jail and payment of a $1,000 fine. In its appeal, the State argues that this case is not controlled by Hardrick, supra. We agree; we therefore vacate and remand.

1. As a preliminary matter, we address Hammons’s motion to dismiss the State’s appeal on jurisdictional grounds. Hammons claims that this appeal is not authorized by OCGA § 5-7-1. We disagree. Because the order being appealed effectively sets aside a felony conviction based on legal grounds appearing on the face of the record, the order may be fairly viewed as an arrest in judgment appealable under OCGA § 5-7-1 (a) (2). See State v. Freeman, 272 Ga. 813, 814 (1) (537 SE2d 92) (2000).

2. Next, we address the merits of the State’s appeal. The criminal conduct occurred on November 16, 1991, during a high-speed chase when Hammons ignored a stop sign and his vehicle rammed into another car, killing the driver of the other vehicle. At the time of the fatality, Hammons was an habitual violator and was driving a vehicle after drinking alcohol. The State drafted an eight-count accusation that included charging Hammons with committing vehicular homicide in the first degree (Count l). Count 1, however, was imperfectly phrased because it charged Hammons with committing “VEHICULAR HOMICIDE IN THE FIRST DEGREE” by unlawfully causing the death of another person by running a stop sign and did not properly set out the statutory elements for that offense. See OCGA § 40-6-393 (a).

At the call of the case, Hammons faced a possible 15-year sentence for vehicular homicide in the first degree plus additional prison time for the other crimes. As part of a negotiated plea, in exchange for Hammons’s agreement to enter a guilty plea to vehicular homicide in the first degree, the State agreed to enter a nolle prosequi on the remaining charges. See Sample v. State, 232 Ga. App. 690, 693 (2) (503 SE2d 576) (1998) (when the State uses its discretion to nolle prosequi charges pursuant to a negotiated plea, doing so does not mean the crimes were not committed). After verifying that Hammons had been advised of his rights and had discussed the charges with his counsel, and after confirming that Hammons had truthfully completed a plea of guilty and waiver of rights form, the trial court engaged in this colloquy with Hammons:

THE COURT: Do you know what you are charged with?
THE WITNESS: Yes, sir. Vehicular homicide.
THE COURT: So do you know what the maximum for that could be?
THE WITNESS: I think it was 20 something [years].
THE COURT: Fifteen.
MS. AVANS (defense counsel): There were some misdemeanors also, but they were going to be dismissed.
THE COURT: I find the plea is free and voluntary and the defendant understands the nature of the charges. Now, what transpired?
THE WITNESS: I hit a man, sir.
MS. AVANS: He needs to know.
THE WITNESS: I killed a man, sir. I’m guilty.
THE COURT: How did that occur?
THE WITNESS: In a high-speed chase, when I was drinking. I didn’t see him until it was too late.
THE COURT: Was this young man from Norcross?
THE WITNESS: Yes.
THE COURT: What is the negotiation?
MS. WILBANKS (for the State): We are recommending the maximum sentence on the vehicular homicide, which is 15 years, and he has agreed to plead to that and we have agreed to do that, and he agreed to a revocation concurrent with that.
THE COURT: Is that correct, sir?
THE WITNESS: Yes.

Nearly ten years after entering into this plea bargain, Hammons filed a motion seeking a misdemeanor sentence. Although styled as a “Motion to Enter Valid Judgment,” the substance of the motion alleged a fatal defect in the accusation, and the motion sought to set aside the judgment entered on the guilty plea. See Walker v. State, 199 Ga. App. 701, 702 (405 SE2d 887) (1991) (substance and function not nomenclature determine nature of a motion).

We find that Hammons’s motion should have been denied for two reasons.

(a) Hammons’s failure to timely challenge the phrasing of the accusation resulted in the waiver of that issue. When an indictment or an accusation charges an offense that is capable of being committed in more than one way and fails to specify the way in which the crime was committed, that deficiency subjects the indictment or accusation to a proper special demurrer. State v. Black, 149 Ga. App. 389, 391 (4). (254 SE2d 506) (1979). Unquestionably, homicide by vehicle in the first degree can be committed in more than one way. See OCGA § 40-6-393 (a), (c). To have properly tracked the statutory language, Count 1 should have charged Hammons with homicide by vehicle in the first degree by reckless driving, or by DUI, or by attempting to elude police. See OCGA § 40-6-393 (a).

But the right to be tried upon an indictment that is perfect in form and in substance is waived when a defendant fails to timely and properly challenge the indictment. McKay v. State, 234 Ga. App. 556, 558 (2) (507 SE2d 484) (1998). Because Hammons failed to challenge the accusation by way of special demurrer or by filing a motion to quash before entering his guilty plea, he waived the right to a perfect accusation. See England v. State, 232 Ga. App. 842, 844 (2) (a) (502 SE2d 770) (1998); compare Black, supra.

As in England, the transcript makes abundantly clear that Hammons knew that he was pleading guilty to a felony. Id. at 845. Hammons testified that he understood the charge of vehicular homicide and knew he could be sentenced to 15 years on that charge. He acknowledged in writing having read the accusation and admitted in open court having “killed a man” during a high-speed chase after he had been drinking. When the proceeding as a whole is reviewed, there was ample evidence to encompass all the factual and legal elements of the felony offense for which Hammons entered the guilty plea. See Wharton v. Anderson, 270 Ga. 22, 24 (2) (504 SE2d 670) (1998); Sample, supra at 692 (1). And, as in England, if Hammons questioned whether he was entering a plea to a felony charge, he should have raised the issue during the hearing. Since he failed to do so, he cannot now complain. See Harper v. State, 225 Ga. App. 510, 512 (2) (484 SE2d 307) (1997) (by intelligently and voluntarily entering a guilty plea, a defendant waives all defenses known and unknown).

But even if we consider Hammons’s “Motion to Enter Valid Judgment” as a motion in arrest of judgment, such a motion “must be made during the term at which the judgment was obtained.” OCGA § 17-9-61 (b). And, a motion in arrest of judgment due to a defective indictment should be granted only when the indictment is absolutely void. Campbell v. State, 223 Ga. App. 484, 485 (3) (477 SE2d 905) (1996). Since Count 1 of the accusation is not absolutely void, a motion in arrest of judgment was not timely made, and Hammons waived his right to raise this argument on appeal. England, supra; Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

(b) Second, the law is well settled that “ ‘[a] plea of guilty is a conviction of the highest order and waives all defenses other than that the indictment charges no crime! [Cit.]” (Emphasis in original.) Williams v. State, 174 Ga. App. 506, 507 (330 SE2d 435) (1985). Hammons therefore waived every defense except that the accusation did not charge him with a criminal offense. See Edmond v. State, 214 Ga. App. 707, 708 (1) (448 SE2d 775) (1994). Count 1 plainly accused Hammons of a crime, committing ‘VEHICULAR HOMICIDE IN THE FIRST DEGREE,” a charge to which Hammons entered the negotiated plea to avoid a greater sentence for his crimes. See Powell v. State, 229 Ga. App. 52, 53 (494 SE2d 200) (1997) (public policy and great ends of justice foreclose avoiding terms of plea agreement).

Hammons’s reliance upon Hardrick, supra, a case reviewing a habeas proceeding, is misplaced. In Hardrick, unlike here, the indictment was fatally defective because it did not charge Hardrick with any criminal offense whatsoever. Id. at 55-56. The indictment lodged against Hardrick failed to include two essential elements of aggravated assault, alleging only that Hardrick “did make an assault upon the victim by placing his hand around her neck and using his hands to apply pressure to her neck contrary to the law.” (Punctuation omitted.) Id. at 54. The Supreme Court criticized this aggravated assault charge as being so poorly drafted that licensed chiropractors could, in theory, have unwittingly run afoul of the allegations. Id. at 56. The Supreme Court found that “[b]ecause the indictment was so fundamentally flawed as to charge no crime at all, when Hardrick pled guilty to the allegations in the indictment, he did not thereby admit to any criminal conduct.” Id. at 56 (3).

Decided November 1, 2001

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

Kathleen J. Anderson, for appellee.

Here, Count 1 of the accusation did, in fact, charge Hammons with a crime, and as the transcript amply documents, Hammons admitted having killed a man during a high-speed chase after he had been drinking. Compare McCain v. Smith, 221 Ga. 353, 354 (144 SE2d 522) (1965); see Williams, supra at 507. Since Hammons’s motion was not meritorious, the trial court should have denied it. We therefore vacate the order entered on March 1, 2001, and direct the trial court to reinstate the original sentence that was imposed for vehicular homicide in the first degree. See Phillips v. State, 236 Ga. App. 744, 746 (1) (512 SE2d 32) (1999).

Judgment vacated and case remanded with direction.

Barnes and Phipps, JJ., concur.

       In a letter to the trial court, he complained that other inmates had been sentenced to less time for the same offense and claimed that his lawyer had misled him into believing that he would serve only 40 months.

       The other counts were: driving a vehicle without a valid license while being a habitual violator (Count 2); driving under the influence of alcohol to an extent less safe to drive (Count 3); driving without wearing a seat belt (Count 4); driving in reckless disregard for the safety of persons and property (Count 5); wilfully attempting to elude a pursuing police officer after being given both visual and audible signals to stop (Count 6); speeding by driving at a speed over 100 mph in a 50-mph area (Count 7); and running a stop sign (Count 8).

       At the motion hearing, his defense counsel stated, “I don’t think there’s any question that the plea was freely and voluntarily entered but the problem is that because of the way the case was accused, he was over-sentenced for it.”


author: Andrews, Presiding Judge.

text:
    A01A1610.
    STUART ENTERPRISES INTERNATIONAL, INC. et al. v. PEYKAN, INC. et al.
    (555 SE2d 881)
   Andrews, Presiding Judge.

Stuart Enterprises International, Inc. and Andrew H. Stuart (collectively “Stuart”) sued Peykan, Inc. and Jamshid Ahmadipour (collectively “Ahmadipour”) for breach of contract and other claims arising out of Stuart’s purchase from Ahmadipour of an Athens’ business known as “Munchie’s Italian Restaurant.” Ahmadipour counterclaimed, alleging that Stuart was in default on the promissory note delivered in connection with the purchase and asking for attorney fees for stubborn litigiousness. The trial court directed a verdict for Ahmadipour for $63,004.99 on his claim under the promissory note. The jury returned a verdict for Ahmadipour on Stuart’s claim of breach of contract, but awarded Stuart $360 on his claim for breach of the implied covenant of good faith and fair dealing. The jury awarded $23,000 to Ahmadipour on his litigiousness counterclaim. The trial court denied Stuart’s motion for a judgment notwithstanding the verdict or a new trial, but entered a j.n.o.v. in favor of Ahmadipour.

On appeal, Stuart claims the trial court erred in (1) certain instructions to the jury regarding the sale of the “Munchie’s” name, (2) granting Ahmadipour’s motion for a j.n.o.v. on Stuart’s claim for breach of the implied covenant of good faith, and (3) failing to grant his motion for a j.n.o.v. on Ahmadipour’s stubborn litigiousness claim. We disagree, and for the reasons set forth below, we affirm.

1. At issue at trial was whether Ahmadipour breached the requirement of the asset purchase agreement that he sell to Stuart the assets of the business, including “the name Munchie’s Italian Restaurant.” Evidence shows that a third party had previously registered a trademark with the Secretary of State of Georgia on February 20, 1988, consisting of a Normandy blue and blush pink dragon and the word “Munchie’s.” Ahmadipour did not file a trademark with the Secretary of State, although he did register the trade name “Munchie’s” with the Superior Court of Clarke County as required by OCGA § 10-1-490. Stuart argued that the prior registration of the trademark by a third party prevented Ahmadipour from selling the “Munchie’s” name to Stuart in violation of the asset purchase agreement and that Stuart remained subject to suit for trademark violation if he tried to use the “Munchie’s” name in the future.

At the charge conference, Stuart’s counsel objected to the charge the trial court proposed to give to the jury regarding trademarks and trade names. Stuart asked the trial court to also charge the jury that a registered trademark is subject to civil action for infringement. The trial court refused to change its proposed charge to the jury to include the reference to trademark infringement, but did instruct the jury regarding the difference between trade names and trademarks because the trial court found some ambiguity with regard to the interests that the parties intended to be covered by the sale.

In this appeal, Stuart enumerates as error the trial court’s failure to instruct the jury “that prior registration of the ‘Munchie’s’ name by a third party prevented [Ahmadipour] from selling the ‘Munchie’s’ name to Stuart.” As so composed, this enumeration of error is clearly without merit. The prior registration of a trademark which included the word “Munchie’s” would not prevent Ahmadipour from transferring the trade name “Munchie’s Italian Restaurant,” if this was the intent of the parties. A trade name and a trademark are not identical interests. A trademark functions as an identifier of goods or services, while a trade name “primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner.” Gordy v. Dunwody, 209 Ga. 627, 632 (2) (74 SE2d 886) (1953). A trademark logo is protected from infringement upon registration with the secretary of state, while trade name protection may be acquired by long and exclusive use. See OCGA § 10-1-450; Giant Mart Corp. v. Giant Discount Foods, 247 Ga. 775 (279 SE2d 683) (1981); Womble v. Parker, 208 Ga. 378 (67 SE2d 133) (1951). The trial court could not, as Stuart urges, instruct the jury that the prior registration of a mark including the name “Munchie’s” prevented the transfer of the restaurant’s name to Stuart. Such a charge amounts to a direction to the jury to find for Stuart on his breach of contract claim and ignores the difference between a trade name and a trademark.

Even if we were to interpret Stuart’s enumeration of error to encompass the argument made by trial counsel with regard to the trial court’s charge, which was that such charge should include a reference to the available causes of action for a trademark violation, we find no error. The instruction that the trial court gave to the jury is accurate insofar as it describes the difference between a trade name and a trademark. There was no evidence presented that Stuart had been subject to, or threatened with, an action for infringement of a trademark by his use of the name “Munchie’s Italian Restaurant.” An addition to the charge describing the actions which may or may not be available to a third party for a hypothetical violation of her trademark invites the jury to speculate about matters that are not in issue. We find that the trial court did not err in its charge to the jury.

2. The trial court granted Ahmadipour’s motion for a j.n.o.v. on the jury’s finding that he breached the covenant of good faith and fair dealing. Stuart argues that this implied covenant was breached when Ahmadipour removed a case of liquor from inventory and $300 from the cash register shortly before the closing of the sale. The trial court reasoned that this verdict was inconsistent with the jury’s finding for Ahmadipour on Stuart’s breach of contract claim. We find that Stuart’s claim of a breach of the covenant of good faith and fair dealing is not an independent cause of action which could be asserted separately from the claim for breach of contract, and so we affirm the trial court’s grant of Ahmadipour’s motion for a j.n.o.v.

The implied covenant of good faith and fair dealing in performing a contract has a basis in both statutory and common law. The Uniform Commercial Code establishes a duty of good faith in performance .for contracts governed thereunder, and there is a general statutory requirement to perform substantially within the spirit and letter of a contract. OCGA §§ 11-1-203; 13-4-20; Flynn v. Gold Kist, 181 Ga. App. 637, 638-639 (1) (353 SE2d 537) (1987). There is also a common law duty to diligently and in good faith seek to comply with all portions of the terms of a contract. See Brack v. Brownlee, 246 Ga. 818, 820 (273 SE2d 390) (1980); Smithloff v. Benson, 173 Ga. App. 870, 872-873 (1) (328 SE2d 759) (1985). The Eleventh Circuit Court of Appeals, in interpreting Georgia law, explains the concept succinctly: “[T]he ‘covenant’ [to perform in good faith] is not an independent contract term. It is a doctrine that modifies the meaning of all explicit terms in a contract, preventing a breach of those explicit terms de facto when performance is maintained de jure.” (Citation omitted.) Alan’s of Atlanta, Inc. v. Minolta Corp., 903 F2d 1414, 1429 (IV) (11th Cir. 1990).

In contracts governed by the UCC, the failure to act in good faith in performing a contract does not create an independent cause of action. See Greenwald v. Columbus Bank &c. Co., 228 Ga. App. 527, 530 (492 SE2d 248) (1997); Lake Tightsqueeze v. Chrysler First Financial Svcs. Corp., 210 Ga. App. 178, 180-181 (4) (435 SE2d 486) (1993). Although we have not expressly ruled whether the common law requirement of good faith and fair dealing in the performance of a contract creates an independent cause of action apart from breach of contract, the Eleventh Circuit Court of Appeals has examined the question and ruled that Georgia law would not recognize such an independent cause of action. Alan’s of Atlanta, supra. We agree. The implied covenant of good faith modifies, and becomes part of, the provisions of the contract itself. As such, the covenant is not independent of the contract. Furthermore, it would be logically inconsistent for us to hold that a claim of a breach of the duty of good faith imposed by the UCC would not create an independent cause of action while a breach of the corresponding common law duty would create such a cause of action.

Here, the jury found that there was no breach of contract, but returned a verdict based solely on a claim for the breach of the covenant of good faith in the performance of that contract. Inasmuch as such a breach cannot form the basis of an independent cause of action, this verdict cannot stand. See Troy v. Interfinancial, 171 Ga. App. 763, 767 (1) (320 SE2d 872) (1984) (j.n.o.v. in favor of the defendant was proper when jury returned a verdict for plaintiff for cause of action which could not be maintained).

3. Lastly, Stuart argues that, should the jury’s verdict on his breach of covenant of good faith claim be reinstated, it would follow that the trial court erred in denying his motion for a j.n.o.v. on Ahmadipour’s claim of stubborn litigiousness. As Stuart did not prevail on the claims of error considered above, and the jury’s finding of stubborn litigiousness is supported by the record, we find that this enumeration of error also lacks merit.

Judgment affirmed.

Eldridge and Miller, JJ, concur.

Decided November 1, 2001.

Irvin, Stanford & Kessler, Gary R. Kessler, for appellants.

J Hue Henry, for appellees.


author: Mikell, Judge.

text:
    A01A1762.
    SMILEY v. THE STATE.
    (555 SE2d 887)
   Mikell, Judge.

Vincent Arthur Smiley, who proceeded pro se, was convicted at a bench trial of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He appeals from the denial of his motion for new trial, claiming that (1) his conviction is void because the trial court applied the wrong standard of proof in finding him guilty; (2) he did not knowingly and voluntarily waive his right to counsel; and (3) he did not intelligently waive his right to a jury trial. Finding no error, we affirm.

1. In his first enumeration of error, Smiley asserts that the trial court failed to find the evidence sufficient beyond a reasonable doubt. Smiley points to the trial court’s statement that “the state has made out a prima facie case of aggravated assault by shooting, and I therefore find the defendant guilty of aggravated assault by shooting.” However, this issue has not been preserved for appellate review. Neither Smiley nor the attorney who stood by to advise him raised this objection at trial. Accordingly, it has been waived. Penaranda v. State, 203 Ga. App. 740, 741 (1) (417 SE2d 683) (1992). In any event, in denying Smiley’s motion for new trial, the court stated: “Upon careful review of the entire record in this case . . . the court finds that the evidence was sufficient for a rational trier of fact to find the defendant guilty of the crimes charged beyond a reasonable doubt.” It follows that this enumeration of error is meritless.

2. In his second enumeration of error, Smiley contends that the trial court erred in permitting him to proceed pro se without establishing on the record that he voluntarily and intelligently waived his right to counsel. We disagree.

At the outset, we note that new counsel appointed to represent Smiley post-conviction failed to raise this issue in his motion for new trial. Therefore, it has not been preserved for appellate review. Flantroy v. State, 231 Ga. App. 744, 745 (2) (501 SE2d 10) (1998). In any event, the record belies Smiley’s assertions. The trial court appointed three attorneys to represent Smiley at trial. Smiley’s first attorney filed an appearance on June 17,1998. On August 28, Smiley filed a motion seeking to “terminate” counsel’s services. The trial court appointed new counsel on October 1, but Smiley objected to counsel’s representation on account of his race (Caucasian). At a subsequent hearing, the trial court urged Smiley to reconsider accepting the second attorney. Smiley informed the court that he did not need a lawyer; rather, he needed a paralegal and an investigator to take statements from witnesses and prepare their affidavits. The court explained that such documents would be inadmissible in evidence:

Mr. Smiley, once again, without the benefit of a lawyer, you’re making a terrible mistake because affidavits and witness statements are not admissible in evidence. They couldn’t be used at trial. They’re not subject to cross-examination, the state would object and I’d have to sustain the objection, and you’re making a terrible mistake in rejecting the services of the lawyers that I have appointed to you. But that’s your business. I can’t make you use one of those lawyers and if you want to defend yourself you can do it, but I want to make sure the record is clear that I have told you over and over — listen to me — over and over again that it’s dangerous and to your serious disadvantage to defend yourself in this case. . . . You’re facing serious felonies here.

Later, the court issued similar warnings to Smiley: “Well, I’ve offered you assistance and you’ve rejected it, but you’re making a mistake because you’re facing the potential of 30 years in the state penitentiary. . . .”

Finally, at the conclusion of the hearing, the court decided to appoint yet a third lawyer, Zena E. McClain, to represent Smiley. However, at trial, Smiley declared that McClain was not his lawyer and that he planned to represent himself. The trial court again warned Smiley of the dangers of self-representation and directed McClain to stand by to assist him.

The determination of whether a defendant has intelligently waived his constitutional right to counsel depends upon the particular facts and circumstances surrounding each case. Gamble v. State, 235 Ga. App. 777, 780 (4) (510 SE2d 69) (1998). No magic language must be used by a trial judge in making the defendant aware of his right to counsel and of the dangers of proceeding without counsel. Brown v. State, 244 Ga. App. 206, 208 (1) (535 SE2d 281) (2000). In this case, the record shows that the trial court repeatedly warned Smiley of the specific dangers and disadvantages of self-representation. In fact, the court expended enormous energy in ensuring that Smiley’s constitutional right to counsel was not violated. It follows that this enumeration is meritless.

3. Finally, Smiley contends that his conviction should be reversed because the trial court failed to determine whether he intelligently waived his right to trial by jury. This enumeration is merit-less as well.

“When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant 'personally, knowingly, voluntarily, and intelligently waived his right to a jury trial.’ ” (Citations omitted.) Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996). “One of the ways the state may prove this is by demonstrating from the record transcript that the defendant understood the rights he was waiving.” Safford v. State, 240 Ga. App. 80, 82 (2) (522 SE2d 565) (1999).

The record discloses that after the court warned Smiley of the dangers of proceeding pro se, the court informed Smiley: “The jury will decide whether you did something or not. It certainly won’t be me.” The defendant then stated that he preferred a bench trial. The court emphatically insisted upon a trial by jury. At trial, when the court tried to persuade Smiley to accept McClain’s representation, the court explained that the trial was complicated and involved the selection of a jury. Smiley interrupted, stating: “I informed the Court . . . this will be a bench trial. It will be a bench trial. In my last motion ... I did give notice that this would be a bench trial.” The trial court made a thorough inquiry and then asked Smiley to sign a waiver. Smiley refused. The court held the panel of forty-six jurors for three hours during the remainder of the pretrial motions. Finally, Smiley tendered the following handwritten waiver:

I the Defendant/Pro se Vincent Smiley, have given Notice to the Superior Court of Chatham County that I do intend, and will proceed with a Bench Trial. And do hereby waive my right to a jury trial. And have been advised by Jg. Karpf’s concerns.
[Signed] Vincent Smiley

The trial court accepted the waiver with great reluctance, and only after McClain’s urging and the state’s acquiescence. The state has amply demonstrated on the record that Smiley was cognizant of the right being waived. Strickland v. State, 221 Ga. App. 120, 121 (1) (470 SE2d 508) (1996). There was no error.

Judgment affirmed.

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

Decided November 1, 2001

Jackson & Schiavone, Steven L. Sparger, for appellant.

Spencer Lawton, Jr., District Attorney, for appellee.

       The motion for new trial was denied on February 23, 2000. On March 2, 2001, Smiley was granted permission to file an out-of-time appeal. This appeal, docketed on May 3, 2001, is timely.


author: Ellington, Judge.

text:
    A01A2051.
    BAKER v. THE STATE.
    (555 SE2d 899)
   Ellington, Judge.

A Bibb County jury convicted Randolph Baker of two counts of aggravated child molestation, OCGA § 16-6-4 (c), and one count of child molestation, OCGA § 16-6-4 (a). The trial court denied his motion for new trial, and he appeals. Finding no error, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in this light, the evidence showed that Baker was the live-in boyfriend of the mother of four children: a nine-year-old girl, B. A.; a six-year-old girl, B. F.; a six-year-old boy, B. F.’s twin; and a seven-year-old boy. The mother was employed as a child care worker and sometimes sang in a band at night. She testified that she left the children alone with Baker only two times.

In late June 1997, the children were visiting the home of Baker’s sister. Nine-year-old B. A. told her cousins that Baker had touched her between her legs. The cousins reported this statement to Baker’s sister, who called the children’s mother. The mother and Baker’s sister talked with B. A., who reported that Baker recently had touched her breasts and put his hand between her legs. B. A. told her mother that she had not reported the abuse sooner because she was afraid her father would not let her stay at her mother’s apartment anymore.

After speaking with B. A., the mother sent the child out of the room and called in six-year-old B. F. The mother testified that she did not think B. F. had been abused, but only wanted to know if she had witnessed the abuse of B. A. When asked if anyone ever touched her where she did not want to be touched, however, B. F. reported that Baker had licked his fingers and touched her genitals. B. F. also told her mother that Baker had tried to put his penis in her vagina. According to the child, one incident occurred when the mother was at work and the other occurred when the mother was at a band rehearsal.

After hearing the girls’ reports of abuse, the mother confronted Baker, who denied the allegations. The mother called the fathers of the two girls and arranged for the children to stay at a grandparent’s home until the fathers could pick them up. Both girls told their fathers about the abuse. B. F.’s father took her to the hospital, where he was referred to the Crescent House, a facility for sexually abused children. A pediatric physician examined B. F. at the Crescent House and found that the child’s hymen had been “eroded,” most likely through chronic, repeated penetration. During the exam, B. F. spontaneously told the physician that her “momma’s boyfriend” had touched her, licked her, and put his penis “down there.” The physician also opined at trial that it was very unlikely that a prepubescent boy could have had sexual intercourse with B. F. and caused her injury.

The same day, an investigator from the Macon Police Department conducted videotaped interviews of both girls at the Crescent House. The State introduced the videotapes at trial. Before trial, Baker challenged the admissibility of the tapes. The State proffered evidence about the circumstances surrounding the taped interviews in order to demonstrate their reliability. The State specifically notified Baker that B. F. would not be called as a prosecution witness, while noting that B. A. would testify. Before the tapes were shown to the jury, the investigator testified that she conducted the videotaped interview of B. F. on July 2,1997. She testified that she had over 500 hours of specialized training in interviewing child sexual abuse victims and investigating child abuse cases. She has performed “hundreds” of sexual abuse interviews with children. The investigator testified that she conducts her interviews in a “child-friendly” environment, and she and the child are the only people present during the videotaped interview. She testified that she interviewed B. F. using the RATAC method of interviewing children. According to the investigator, “The R stands for gaining rapport with the child, and the A stands for the anatomy identification, and the T stands for touch inquiry, and the A stands for abuse scenario, and the C stands for closure.” The investigator testified that she gains rapport with a child by asking general questions about school and by drawing a picture of the child. She explained that she does not use leading questions and does not threaten the child for nondisclosure or reward the child for making a disclosure.

When the investigator began the interview with B. F., she talked to her about her family and drew pictures of each person identified by B. F. After B. F. had named her mother and siblings, the investigator asked if anyone else lived in B. F.’s apartment. B. F. responded that her mother’s boyfriend, Baker, lived with them, but she did not want his picture placed with the other family members because “he be touching on me.” When asked where he touched her, the child pointed to her vaginal area. The child told the investigator that Baker touched her on two different occasions, once when her' mother was at work and another time when her mother was at band rehearsal. According to the child, Baker put saliva on his fingers and put lotion on her vaginal area and attempted to have intercourse with her. The child also told the investigator that Baker put his tongue on her genitals. B. F. used anatomical dolls to show what Baker did to her, pulling down the pants of the female doll and placing the male doll on top.

The investigator also interviewed B. A. using the same RATAC technique. B. A. told the investigator that she and the other children were lying in her mother’s bedroom with Baker when he rubbed her genitals three or four times on the outside of her clothes. B. A. told him to stop, and Baker got up and left the room. B. A.’s testimony at trial was consistent with her outcry statements and interview.

1. Baker contends the trial court erred in admitting the videotaped interviews with the children. He argues that the Child Hearsay Statute, OCGA § 24-3-16, prohibits the admission of a child’s out-of-court statement unless (a) the child is available to testify in court and (b) the State demonstrates that the statement was made under conditions that provide sufficient indicia of reliability. He complains that the tapes were improperly admitted because the younger child, B. F., was not available to testify at trial, and because the State did not establish the reliability of the videotaped statements. This enumeration lacks merit.

(a) Baker complains that B. F. was not available to testify at trial, but points to nothing in the record to support this assertion except the fact that the child did not, in fact, testify. The issue of her availability was not raised at trial.

In Sosebee v. State, 257 Ga. 298, 299 (357 SE2d 562) (1987), the Supreme Court of Georgia outlined the procedure to be followed by the trial court if the prosecution introduces out-of-court declarations by an alleged victim under the Child Hearsay Statute. In Sosebee, the Court ruled as follows:

Before the state rests, the court shall, at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.

(Emphasis supplied.) Id.

In this case, Baker knew that the videotaped interview of B. F. was to be played for the jury and that B. F. would not be testifying for the State. The record shows that he had the opportunity to call B. F., but that he did not inquire about B. F.’s availability to testify at trial, nor did he request that the child be produced to testify. Accordingly, the failure of the child to testify at trial did not make the videotape inadmissible at trial.

(b) Baker also argues that the State failed to establish that the videotaped statements had the requisite indicia of reliability arising from the circumstances surrounding the interviews. See Gregg v. State, 201 Ga. App. 238, 239-241 (3) (411 SE2d 65) (1991) (outlining ten factors that may be considered in determining whether a child’s out-of-court statement is reliable). In Gregg, this Court held that

while the [trial] court must find that the circumstances of the [child hearsay] statement provide sufficient indicia of reliability, such finding is not a condition precedent to the admissibility of the statement; rather, this statutory requirement is met if after both parties have rested, the record contains evidence which would support such a finding. In fact, our courts have consistently held OCGA § 24-3-16 does not require a hearing to determine “indicia of reliability” be held prior to receiving the testimony.

(Citation and punctuation omitted; emphasis in original.) Id. at 239 (3) (a).

Before the trial began in this case, the State proffered substantial evidence to establish the reliability of the statements. This proffer was then supported by evidence presented at trial. Having reviewed this evidence, we find that the State fulfilled its burden in demonstrating that the children’s statements had the “requisite degree of trustworthiness” to be admitted at trial. Gregg v. State, 201 Ga. App. at 241 (3) (b). The trial court did not abuse its discretion in admitting the videotapes. Id. at 240 (3) (a).

Further, much of Baker’s argument centers around alleged conflicts in the children’s stories, speculation about possible coaching of the children before the interview, and other issues that address the credibility of the witnesses themselves. Determinations as to the credibility of a witness are a matter solely within the jury’s purview, and such determinations will not be disturbed on appeal. OCGA § 24-9-80; Johnson v. State, 245 Ga. App. 690, 691 (1) (538 SE2d 766) (2000).

Decided November 1, 2001.

W. Lee Robinson, for appellant.

Howard Z. Simms, District Attorney, Myra H. Kline, Assistant District Attorney, for appellee.

2. Baker contends the trial court erred when it allegedly denied him the opportunity to present evidence of sexual play between six-year-old B. F. and her twin brother. He argues that he should have been allowed to develop his defense theory that this sexual play was another possible cause of B. F.’s injuries. Baker, however, presented the testimony of B. F.’s cousin, who babysat B. F. and her twin brother when they were four or five years old. The cousin testified that she found the twins in bed together one night without their clothes on and “on top of each other.” Baker has not articulated what additional evidence, if any, he was prevented from presenting to the jury. Accordingly, pretermitting whether the trial court’s ruling was error, Baker has failed to demonstrate that he was harmed by the ruling. See Evans v. State, 233 Ga. App. 879, 880 (2) (506 SE2d 169) (1998) (a defendant must show both error and harm affirmatively by the record to authorize a reversal on appeal).

3. Finally, Baker contends the evidence was insufficient to support the jury’s verdict and that, therefore, he was entitled to a directed verdict. We have reviewed the entire record and find that the evidence was sufficient for a rational factfinder to find the defendant guilty beyond a reasonable doubt of the crimes charged. Padgett v. State, 175 Ga. App. 818, 819 (334 SE2d 883) (1985) (corroboration of a victim’s testimony is not required to support a conviction of child molestation); see also OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”). Accordingly, Baker was not entitled to a directed verdict of acquittal.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       Under OCGA § 24-3-16,
      [a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.


text:
    A01A2184.
    BOSTIC v. THE STATE.
    (555 SE2d 894)
   Mikell, Judge.

After a bench trial, Alfred Saxton Bostic was convicted of trafficking in cocaine and possession of a firearm during the commission of a felony. Appealing the denial of his motion for new trial, Bostic argues that he did not knowingly and intelligently waive his right to a jury trial and that the state withheld discoverable evidence. Having found no evidence in the record that Bostic waived his right to a jury trial, we reverse the conviction and remand for a new trial.

1. “When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant personally, knowingly, voluntarily, and intelligently waived his right to a jury trial.” (Citation omitted.) Eason v. State, 249 Ga. App. 738, 740 (2) (549 SE2d 532) (2001). The state may prove this “either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.” (Citation and punctuation omitted.) Capelli v. State, 203 Ga. App. 79 (2) (416 SE2d 136) (1992). In this case, the state has not made either showing.

“Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver.” (Punctuation omitted.) Johnson v. State, 157 Ga. App. 155 (1) (276 SE2d 667) (1981), citing Patton v. United States, 281 U. S. 276 (50 SC 253, 74 LE 854) (1930). In Whitaker v. State, 244 Ga. App. 241 (535 SE2d 283) (2000), we vacated the judgment where the only evidence of the defendant’s waiver was the stated announcement to the court that he had waived his right and an unsigned notation that read, “I waive my right to a jury trial,” on the plea and verdict form. Similarly, in Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982), we found that the record did not reflect the defendant’s waiver where the defendant’s counsel stated that the defendant had waived his right to a jury trial in response to a question from the state, but no independent inquiry was made of the defendant.

In this case, the first comment about Bostic’s waiver of his right to a jury trial was made in the form of the trial judge’s announcement that “each (Bostic and his codefendant) have waived their demand for a jury trial.” The only other comment about the waiver was made by Bostic’s counsel during the sentencing phase when he stated, “I’d ask the Court to consider the fact that he did agree to a bench trial in this case instead of going through the process of picking a jury, that was Mr. Bostic’s decision.” No inquiry was made of the defendant. Moreover, at the hearing on the motion for new trial, the prosecutor stated, “As far as the bench trial is concerned, Judge, I don’t know by looking at the transcript and looking at the file; what I do know is that a jury trial was waived and a bench trial was had.”

We find that there was no showing on the record that Bostic was made cognizant of the right he waived nor did the state introduce extrinsic evidence at the hearing on the motion for new trial to prove that Bostic personally, knowingly, voluntarily, and intelligently waived his right to a jury trial. Accordingly, the trial court erred in denying Bostic’s motion for a new trial.

2. The remaining enumeration of error is not likely to recur on retrial.

Decided November 1, 2001.

King, King & Jones, David H. Jones, Matthew Ciccarelli, for appellant.

William T. McBroom III, District Attorney, Thomas J. Ison, Jr., Assistant District Attorney, for appellee.

Judgment reversed.

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


text:
    A01A2200.
    WATSON v. THE STATE.
    (555 SE2d 896)
   Mikell, Judge.

A jury convicted Randall Dale Watson of five counts of theft by taking, OCGA § 16-8-2, one count of theft by bringing stolen property into the state, OCGA § 16-8-9, and one count of theft by deception, OCGA § 16-8-3. The trial court denied Watson’s motion for new trial and granted his motion for an out-of-time appeal. Watson argues that the evidence was insufficient to support his conviction. We disagree and affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

1. Counts 1, 4, 5, 6, and 7 charge Watson with theft by taking three boat trailers, a 225-horsepower boat motor, and a stainless steel propeller. Under OCGA § 16-8-2, a person commits the offense of theft by taking “when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on or about June 1, 1997, an E-Z-Loader boat trailer belonging to Chip Zullinger was stolen from a marina on Tybee Island. Zullinger notified the police and provided them with the serial number of the trailer. Zullinger testified that the trailer was valued at $2,000 and that he did not give Watson permission to take it. Farrin Barber, a resident of Port Royal, South Carolina, testified that he purchased an E-Z-Loader trailer from Robert Lewis for $1,000 in July 1997. Evidence adduced at trial demonstrated that Lewis, an acquaintance of Watson for “twenty-something years,” purchased the trailer from Watson on June 1, 1997, for $800. When Barber learned that the trailer he bought from Lewis was stolen, he turned it over to the authorities, who determined that its serial number matched that of the trailer stolen from Zullinger.

The record further shows that on October 4, 1997, Steve Koskla discovered that his boat trailer had been stolen from the Savannah Bend Marina in Chatham County. Koskla reported the theft to the police and provided them with the serial number of the trailer. Koskla’s trailer was recovered in South Carolina. It was later determined that Watson had sold the trailer to Lewis, who sold it to a third party, Willie Seabrook. Koskla testified that he did not know Watson, nor did he give Watson permission to possess the trailer.

Also in October 1997, a triple-axle special heavy-hauling E-Z-Loader boat trailer valued at approximately $9,000 was stolen from Boater’s Dream World/Boater’s Paradise (“Boater’s Dream World”) in Thunderbolt, Georgia. Lynn Jordan, the owner of Boater’s Dream World, testified regarding the theft of the trailer and further testified that a 225-horsepower Mercury boat motor worth $13,000 had been stolen from his business in December 1996. Jordan provided the serial numbers of both the motor and the trailer. He further testified that he never gave Watson permission to possess the motor or the trailer.

Lewis testified that Watson and another man brought a 225-horsepower Mercury motor to his home in December 1996. He further testified that he purchased the motor from Watson for $2,000, after Watson produced a document purported to be a bill of sale for the motor. According to Lewis, he purchased an E-Z-Loader trailer from Watson on October 27, 1997. Lewis identified a bill of sale for the trailer prepared by Watson.

Joel O’Quinn, an officer in the marine patrol division of the South Carolina Department of Natural Resources, testified that he went to Lewis’ residence in Port Royal, South Carolina, on March 10, 1998, after receiving a report that Lewis might have stolen boat trailers in his possession. Lewis consented to a search of his home, and O’Quinn discovered both the motor and trailer stolen from Boater’s Dream World. The officer identified the stolen property by the serial numbers. In the course of his investigation, O’Quinn learned that Lewis had been in possession of the trailers stolen from Zullinger and Koskla before selling them. O’Qui’nn testified that Lewis provided statements to the authorities admitting that the stolen trailers and motor had been delivered to him by Watson.

On March 8, 1998, Robert Daniel discovered that his 15-pitch Mirage stainless steel boat propeller had been stolen from the same marina on Tybee Island where Zullinger’s trailer was stolen. Daniel reported the theft to the police. Edward Ubaly, a certified boat mechanic and an acquaintance of Watson, testified that Watson offered to sell him five boat propellers on March 13, 1998. Ubaly testified that he purchased all five propellers and that he was subsequently caught with them by the Thunderbolt police. The authorities seized the propellers, and Daniel identified one of them as his stolen propeller.

We conclude that the evidence in the record was sufficient for a rational trier of fact to find the essential elements of theft by taking beyond a reasonable doubt for all five counts. See Jackson, supra; Green v. State, 223 Ga. App. 467, 468-469 (1) (477 SE2d 895) (1996).

2. We also find the evidence sufficient to support Watson’s conviction for Count 2, which charged him with theft by bringing stolen property into the state. OCGA § 16-8-9 provides that “[a] person commits the offense of theft by bringing stolen property into this state when he brings into this state any property which he knows or should know has been stolen in another state.” See also Cunningham v. State, 222 Ga. App. 740, 742 (1) (b) (475 SE2d 924) (1996).

The record shows that an aluminum triple-axle boat trailer was discovered missing from East Coast Marine in Burton, South Carolina, on December 25, 1997. Ray Horn, the owner of East Coast Marine, testified that he noticed the chain blocking the entrance to his business had been cut and that the trailer was missing. Horn further testified that the missing trailer was new and that its value was $3,800. Horn reported the theft to the police and provided them with the serial number of the trailer. He testified that he subsequently received a call from the police department in Thunderbolt, notifying him that they had recovered his stolen trailer. Horn went to Georgia where he identified the trailer, and the police returned it to him. Horn testified that he did not know Watson and that he did not give Watson permission to be in possession of the trailer or to remove it from South Carolina.

Stanley Baker, an acquaintance of Watson, testified at trial that Watson approached him on December 25, 1997, to ask if he knew where Watson could obtain a vehicle with a trailer hitch on it. Baker farther testified that after Watson located a suitable truck, he asked Baker to ride with him to retrieve a boat trailer and promised to pay Baker $100. According to Baker, the two men arrived at a marine business near Beaufort, South Carolina, at approximately 1:00 that afternoon. No one was present at the business. Baker testified that Watson removed the chain blocking the entrance. Next, Watson backed the truck up to a trailer Baker described as aluminum with three axles. Baker further testified that they hooked the trailer to the truck, removed it from the marine lot, and drove it back to Georgia, where they proceeded to the home of Charles Smith in Thunderbolt. According to Baker, Watson said he was going to pawn the trailer.

Decided November 1, 2001.

Thomas J. Gustinella, for appellant.

Viewed with all inferences in favor of the jury’s verdict, the evidence adduced at trial was sufficient to enable a rational trier of fact to find Watson guilty of theft by bringing stolen property into the state.

3. Finally, we conclude that the evidence was sufficient to support Watson’s conviction of theft by deception. OCGA § 16-8-3 provides:

(a) A person commits the offense of theft by deception when he obtains property by any deceitful means or artful practice with the intention of depriving the owner of the property, (b) A person deceives if he intentionally: ... (4) Sells or otherwise transfers or encumbers property intentionally failing to disclose [an] . . . adverse claim, or other legal impediment to the enjoyment of the property.

The evidence shows that Watson sold Smith the trailer stolen from East Coast Marine without disclosing the fact that it was stolen. Smith testified that he purchased a trailer from Watson and Baker on December 25,1997, and that he paid for it with two checks. Smith identified one check for $100 payable to Baker and another for $800 payable to Watson. Smith testified that Watson provided him with a bill of sale for the trailer. Smith contacted the Thunderbolt Police Department after the sale when he discovered that the serial number on the trailer did not match the one in the bill of sale. The trailer was subsequently seized by the police and identified by Horn as the one stolen from his business.

Because we find that the evidence would authorize a rational trier of fact to find Watson guilty of theft by deception beyond a reasonable doubt, we affirm.

Judgment affirmed.

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

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

       According to Horn’s testimony, Burton, where East Coast Marine is located, is “right outside of Beaufort.”