author: Ruffin, Judge.

text:
    A01A0427.
    BRADFORD v. ROSSI.
    (548 SE2d 70)
   Ruffin, Judge.

Marshall Bradford sued Dr. Mauro Rossi, alleging that Dr. Rossi abandoned him as a patient. Dr. Rossi moved to dismiss the complaint on the ground that the statute of limitation had expired. Dr. Rossi also asserted that dismissal was proper because Bradford failed to attach an expert affidavit to his complaint as required by OCGA § 9-11-9.1. The trial court granted Dr. Rossi’s motion on both grounds, and this appeal ensued. For reasons that follow, we affirm.

The record demonstrates that Dr. Rossi, a podiatrist, began treating Bradford in July 1997 for foot ulcers stemming from Bradford’s diabetes. On November 17, 1997, Bradford saw Dr. Rossi for an infection in his right foot, and Dr. Rossi prescribed antibiotics and instructed Bradford to return in 24 hours. When Bradford returned, his foot had not improved, and Dr. Rossi told him to go to Athens Regional Medical Center. According to Dr. Rossi’s affidavit, as a podiatrist, he does not have the authority to admit patients to the hospital, but he can assist in treatment once a patient has been admitted.

Bradford, in keeping with Dr. Rossi’s instructions, went to Athens Regional Medical Center, where he remained for over a week, during which time he was under the care of Dr. J. Michael Cobb. While Bradford was in the hospital, neither he nor any of the physicians at the hospital contacted Dr. Rossi. After Bradford was discharged, however, he returned to Dr. Rossi on three more occasions for foot problems.

On November 19, 1999, Bradford filed suit against Dr. Rossi, alleging that Rossi had “abandoned” him in November 1997, which caused him to suffer both “damage and deterioration of tissue in his ankles and feet” and “anxiety, distress, excruciating pain of body, psychological duress, and an influx [sic] of medical expenses.” In his complaint, Bradford acknowledged that he had “not filed ... an affidavit of an expert,” but noted that “there are exceptions to the rule requiring the affidavit of an expert.” The trial court concluded that this was not a case in which such exception applied, and it dismissed Bradford’s suit. We agree with the trial court.

Decided April 20, 2001.

1. Pursuant to OCGA § 9-11-9.1 (a), “[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” “This Code section applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.” An action alleges professional malpractice when it calls into question the conduct of a professional in his area of expertise.

Bradford claims that Dr. Rossi abandoned him. A claim of abandonment, which is a tort, “amounts to the same as negligent treatment.” As such, the claim requires that the plaintiff file an expert affidavit. This is so because the gravamen of the complaint is that Dr. Rossi somehow injured Bradford by sending him to the hospital rather than arranging for his continued medical treatment. Thus, Bradford essentially alleges that Dr. Rossi provided inadequate medical care. In order to prove such allegation, Bradford must establish what would have constituted adequate medical care, which requires the knowledge of an expert. Accordingly, Bradford’s failure to file an expert affidavit warrants dismissal. It follows that the trial court did not err in dismissing Bradford’s complaint.

2. In view of our holding in Division 1, we need not address Bradford’s remaining enumerations of error.

Judgment affirmed.

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

Marshall A. Bradford, pro se.

Nall & Miller, James S. Owens, Jr., Charles R. Carson, for appellant

       (Punctuation omitted.) Epps v. Gwinnett County, 231 Ga. App. 664, 666 (1) (499 SE2d 657) (1998).

       See Upson County Hosp. v. Head, 246 Ga. App. 386, 389 (1) (540 SE2d 626) (2000).

       (Punctuation omitted.) Norton v. Hamilton, 92 Ga. App. 727, 731 (89 SE2d 809) (1955).

        See Landers v. Ga. Baptist Med. Center, 175 Ga. App. 500, 501-502 (1) (333 SE2d 884) (1985).

       See Epps, supra.

       See id.; Upson, supra; Holloway v. Northside Hosp., 230 Ga. App. 371-372 (496 SE2d 510) (1998).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A01A0747.
    JONES v. THE STATE.
    (548 SE2d 75)
   Andrews, Presiding Judge.

In a bifurcated proceeding, Gerald Dexter Jones was convicted of providing a false name to a law enforcement officer and acquitted of obstructing an officer. During the second phase of the trial, Jones was convicted of possession of a firearm by a convicted felon and carrying a concealed weapon. Jones appeals the trial court’s rulings on his Batson challenge and his motion for mistrial. After review, we affirm.

1. Jones contends that the State violated the equal protection clause by exercising a peremptory strike against a juror whom the prosecutor regarded as disabled.

A prospective juror cannot be struck for cause purely on the basis of a hearing impairment. Carter v. State, 228 Ga. App. 335 (491 SE2d 525) (1997); see OCGA § 15-12-163. But this juror was not struck for cause. Instead, the State used one of its peremptory strikes to remove her.

During voir dire, Claudia Griffeth, an older African-American woman, experienced intermittent difficulty in hearing the prosecutor. On occasion, she could hear the prosecutor’s comments, and at other times she said she could not. At the conclusion of individual voir dire and after listening to her responses to questions posed by the court, the prosecutor, and defense counsel, the court noted: “Well, I think she — she hears things pretty well. We’ll just have to talk up and go from there. If you’re selected to serve on this jury, what I will ask you ma’am, at any point in time during the course of the trial you cannot hear a witness testifying, or you cannot hear or understand lawyers speaking, that you will let me know. All right.” After she agreed to do so, voir dire continued.

After selection of the jury, Jones asserted a challenge under Bat-son v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), premised on the State’s use of four of five strikes against African-Americans including Griffeth. The trial court conducted a Batson hearing. As to this prospective juror, the prosecutor stated: “I struck Ms. Griffeth because she apparently had difficulty hearing me talk. Now, she may have been able to hear other things and I would hope that I could hold my voice up, but I can’t promise anyone that I’ll always be focused on whether Ms. Griffeth can hear me or not. And she did indicate right up here she had trouble hearing me.” After the State’s proffer, defense counsel argued that the explanation was pretextual and impermissibly based on race as well as disability. The trial court disagreed and found that Jones, as the opponent of the strikes, had not carried his burden.

When a party alleges a Batson violation and shows the existence of a prima facie case, the proponent of the strike must offer racially neutral, legitimate, and nondiscriminatory reasons for the use of its peremptory challenge. See Williams v. State, 271 Ga. 323, 325 (2) (519 SE2d 232) (1999). A strike may be based on mistake, ignorance, or idiosyncracy provided that the reason for the strike is race-neutral. Howard v. State, 243 Ga. App. 836, 837 (534 SE2d 202) (2000). The opponent of the strike bears the burden of persuading the trial court that the proponent of the strike acted with discriminatory intent in exercising the strike. Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996). After reviewing the transcript and considering the trial court’s findings with great deference, we cannot say the court’s ruling was clearly erroneous. Howard, 243 Ga. App. at 838.

2. Jones contends that the trial court erred by allowing the State to rebut a prima facie case of racial discrimination in jury selection by stating it had exercised a peremptory strike against a black juror based on that juror’s hearing disability since that juror was protected from discrimination against the disabled by the Americans with Disabilities Act (ADA), 42 USC § 12101 et seq. Jones argues that an irrational and illegitimate reason cannot be used in defending a Bat-son challenge.

Without question, it is impermissible to exercise a peremptory challenge on the basis of race or gender. Batson, supra; J. E. B. v. Alabama, 511 U. S. 127 (114 SC 1419, 128 LE2d 89) (1994); Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995). But here, neither race nor gender was at issue. As to Jones’ equal protection argument, the U. S. Supreme Court has decided that the disabled, as a group, do not constitute a “suspect class” or a “quasi-suspect classification.” City of Cleburne v. Cleburne Living Center, 473 U. S. 432, 442 (105 SC 3249, 87 LE2d 313) (1985).

Even assuming, without deciding, that the ADA had any application to these particular facts, the appropriate level of review is rational basis analysis. See Cleburne, 473 U. S. at 445-447. “[S]tate action subject to rational-basis scrutiny does not violate the Fourteenth Amendment when it ‘rationally furthers the purpose identified by the State.’ [Cit.]” Bd. &c. of the Univ. of Alabama v. Garrett, 531 U. S. 356 (II) (121 SC 955, 964,148 LE2d 866) (2001). As noted in a federal circuit decision, “where a classification is subject only to ‘rational basis’ review, the state may use its peremptory challenges to strike jurors for any reason rationally related to the selection of an impartial jury.” United States v. Harris, 197 F3d 870, 874 (7th Cir. 1999). “Unlike race or gender, disability may legitimately affect a person’s ability to serve as a juror.” Id. at 875.

Here, in exercising the peremptory strike, the prosecutor articulated concerns that he would not be able to hold his voice up and that this juror had indicated she had trouble hearing him even when he was close to her. These reasons do not appear so implausible or so fantastic as to render the explanation pretextual. See Jones v. State, 240 Ga. App. 339, 341 (523 SE2d 402) (1999). Nor do they appear illegitimate or not rationally related to the selection of a fair and impartial jury. See Harris, 197 F3d at 874, n. 3 (“[peremptory strikes of class members not entitled to heightened scrutiny remain ‘challenges without cause, without explanation and without judicial scrutiny.’ [Cit.]”). Since the heightened level of review required by Batson and J. E. B. does not extend to the disabled, we find no error, even had this juror fit within the contours of the ADA. See Cleburne, 473 U. S. at 440-443.

3. Jones contends that the trial court erred in denying his motion for mistrial made in response to the surprise admission into evidence of a custodial statement taken in violation of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

The statement at issue arose in the following context. At about midnight, while on patrol, Officer B. Russell heard a radio alert for a suspect named Gerald Jones wanted for questioning about a possible stolen vehicle. Russell observed an individual who seemed to fit the broadcast description. Russell noticed that this person appeared “very, very nervous” and “looked around like he was trying to figure out what to do or where to go.” Suspicious, Officer Russell exited her patrol car and asked his name. Jones identified himself as “Tommy Smith.” When asked if he had seen anyone come through that area, Jones nervously described two men, information that Russell found odd since she had not seen anyone else. After she thanked him, Jones started walking eastbound then reversed direction. When Jones continued to look back over his shoulder, Russell pulled the patrol car up next to him and radioed Sergeant Randy Garrett, her supervisor, for instructions. As Jones was about seven feet from her, he suddenly reached into his right pocket and “started pulling out a silver revolver.” Exiting her patrol car, Russell drew her weapon and yelled at him to drop the gun. Ignoring her commands, Jones ducked behind a bush. One or two seconds later, Jones burst out from behind the bush at a full run. When Russell ordered him at gunpoint to stop, Jones complied.

After Jones was convicted on the false name charge, the case then proceeded to the weapons charges. When asked whether she was present while another officer frisked Jones for weapons, Russell responded, “I was there but I was headed back for the bush because he had told me he didn’t have the gun.” Jones immediately objected and sought a mistrial on the dual grounds that Jones had not been provided with Miranda warnings and the remark constituted a custodial statement for which the defense had no notice as required by OCGA § 17-16-4. Outside the presence of the jury, the trial court agreed that the statement would have to be suppressed. Instead of granting a mistrial, the trial court twice issued curative instructions directing the jurors to “completely disregard that statement as though it was never said” and to “totally wipe it out of your mind.” Twice, the trial court asked the jurors to indicate if they would be able to comply with the court’s directive. When Russell resumed testifying, she described finding the gun Jones had pointed at her, a fully loaded pistol, on a manicured lawn next to the bush Jones had ducked behind. Russell identified a Rossi .38 special as the weapon she found that night. Defense counsel extensively cross-examined Russell about her previous testimony that Jones had not made any statement and about her police incident report that did not refer to any incriminating remark.

Decided April 20, 2001

Russell C. Gabriel, for appellant.

When a motion for mistrial is made after the presentation of an inadmissible matter to the jury, the corrective measure to be taken lies within the discretion of the trial court. Wofford v. State, 234 Ga. App. 316, 317 (1) (506 SE2d 656) (1998). Absent an abuse of discretion, the trial court’s ruling on a motion for mistrial will not be disturbed. Jackson v. State, 207 Ga. App. 190, 191 (2) (427 SE2d 566) (1993).

Here, after the court gave curative instructions, none of the jurors indicated an inability to disregard the statement. See Binns v. State, 237 Ga. App. 719, 720 (2) (516 SE2d 583) (1999). In any event, by not renewing the motion for mistrial and by choosing, instead, to cross-examine the witness about the inconsistency, Jones waived this issue on appeal. McAlister v. State, 204 Ga. App. 259, 260 (419 SE2d 64) (1992). In light of the overwhelming evidence of guilt, even had the issue been preserved, the trial court did not abuse its discretion in deciding a mistrial was not necessary to preserve Jones’ right to a fair trial. Johnson v. State, 223 Ga. App. 668, 671 (3) (478 SE2d 404) (1996).

Judgment affirmed.

Eldridge and Miller, JJ, concur.

Kenneth W. Mauldin, District Attorney, Phillip C. Griffeth, Assistant District Attorney, for appellee.

       The prosecutor noted the defense had used 11 of 12 strikes against white veniremen. See Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992).


author: Eldridge, Judge.

text:
    A01A1085.
    ALBARRAN v. THE STATE.
    (548 SE2d 440)
   Eldridge, Judge.

A Gwinnett County jury found Juan Albarran and his two co-defendants, Indorfo Espinoza and Polinar Vasquez, guilty of possession of twenty-five pounds of marijuaná with intent to distribute. Two earlier appeals were taken by Albarran’s co-defendants wherein this Court consolidated such and affirmed their convictions. Now Albarran, pursuant to a properly granted motion for out-of-time appeal, seeks review and claims that four alleged errors of law require reversal of his conviction. Upon the record before us, we disagree and affirm.

The facts, as established in the earlier appeals and viewed most favorably to the verdict, show that

on August 5, 1998, a suspected drug trafficker, a man named Arzate, was placed under surveillance at a Smyrna apartment by Special Agent Jeffery Dalman, United States Drug Enforcement Administration (“DEA”), acting on a lead provided by another DEA office. When Arzate left the Smyrna residence in a pickup truck registered to a California man from whom 100 pounds of marijuana had been seized, Special Agent Dalman followed, eventually losing Arzate in the vicinity of Lilburn. Thinking that Arzate might reappear at the Lilburn residence where, two years earlier, the agent had seized 1,500 pounds of marijuana in conjunction with a drug trafficking arrest, Dalman went to that location, found Arzate’s truck, and initiated a second surveillance. Among other things, Special Agent Dalman noted the presence of a Ford van which was backed into the carport of the residence. After about an hour, three vehicles departed the residence in what appeared to be a convoy. Arzate, driving his pickup, led. In the second vehicle, the Ford van, driven by Cesar Hernandez, Vasquez rode as a passenger. Espinoza rode as a passenger in the third vehicle, a Ford Taurus, driven by Juan Albarran. As the three vehicles approached Interstate 85, contact was again lost with Arzate as he pulled away from the group in the pickup onto 185 southbound while the remaining vehicles stopped at a gas station where the van was refueled. The vehicles then entered 185 northbound where, based on the totality of the circumstances, Special Agent Dalman ordered them stopped. Gwinnett County Police Officer Dan Llorens, who assisted in the traffic stop, testified that Hernandez consented to a search of the van. In the search which followed, a second Gwinnett County police officer assisting on the scene, Officer Gary Linder, found a black duffel bag containing 25 pounds of marijuana under the van’s back bench seat.

1. In his first enumeration of error, Albarran contends the trial court erred in denying his motion to suppress the marijuana found in the Ford van. Such motion was filed individually by all three defendants and argued jointly in a hearing prior to trial. Before this Court, Albarran claims that the narcotics officers involved did not have probable cause to stop the Ford van.

Albarran claimed neither an ownership interest in the Ford van nor in the marijuana found in the van. Therefore, he does not have standing to challenge the search. Moreover, as stated in our earlier decision, under the totality of the circumstances, “there was evidence which established the legality of the search and seizure as based upon a traffic stop supported by articulable suspicion and valid consent given thereafter.”

2. Next, Albarran challenges the sufficiency of the evidence supporting his conviction. He contends that the evidence shows mere association with the co-defendants and that such is insufficient to demonstrate criminal intent. However, criminal intent is peculiarly a jury issue. In that regard, “[a]lthough mere presence at the scene is insufficient to authorize a conviction for committing an offense, criminal intent may be inferred from the accused’s conduct before, during and afterwards.” Accordingly, we reassert our rationale for finding this same claim of error meritless in the earlier appeals wherein both Espinoza and Vasquez claimed they were “merely present.” In the instant case, the evidence viewed in favor of the verdict shows that all four men who were involved and charged with this offense, Albarran, Espinoza, Vasquez, and Hernandez, were friends and roommates in Charlotte, North Carolina. On Wednesday, August 5, 1998, the men left Charlotte between 6:30 a.m. and 7:00 a.m.

[to drive] to Lilburn for the purpose of procuring contraband and returning it to North Carolina. To this end, they undertook substantial steps to bring the contraband home safely, electing to travel by convoy on the return trip and to ride “shotgun” as passengers in vehicles they did not own, to provide both security and deception to their illicit endeavor. That 25 pounds of marijuana was seized from the van, in the totality of the circumstances, was sufficient evidence upon which the jury might reasonably have inferred that the co-defendants had at least joint constructive possession of marijuana with the intent to distribute.

3. At the time of the stop, Espinoza was a passenger in the car driven by Albarran. During trial, an officer testified that a computer check on the Ford van showed that Espinoza was the owner of the van. Before this Court, Albarran claims that the officer’s testimony was inadmissible hearsay which “was highly prejudicial in that it connected a passenger in the car the defendant [Albarran] was driving to the van containing the contraband material.” He argues that such hearsay “was the only evidence connecting the ownership of the van to the passenger of the car defendant Albarran was driving.” We find this contention meritless. Pretermitting the issue of hearsay, defense witness Hernandez testified both during direct examination and on cross-examination that the Ford van belonged to Espinoza; thus, the officer’s testimony was not “the only evidence connecting the ownership of the van to the passenger of the car defendant Albarran was driving.” Further, the insurance card found in the van showed Albarran had taken out the insurance on the vehicle, thereby further connecting Albarran to the van containing the contraband material. “Evidence is harmless where admissible evidence of the same fact is before the jury.”

4. In his last enumeration of error, Albarran contends the trial court erred in permitting arresting officer Linder to testify as to the address of Albarran, Espinoza, Vasquez, and Hernandez. Albarran contends that this information was communicated by the defendants in Spanish to another officer who then translated such to Linder, thereby making Linder’s testimony inadmissible hearsay. He contends that the address information “is highly damaging as it makes a greater connection between the defendant Albarran and the parties who were connected to the van containing contraband.” However, defense witness Hernandez testified both on direct and cross-examination that all the defendants were friends, as well as roommates, in Charlotte, North Carolina, and that he had known both Albarran and Espinoza in Mexico. Accordingly, the connection between the men was clearly established absent the testimony about which Albarran now complains. “It is axiomatic that harm as well as error must be shown to authorize a reversal by this court.”

Decided April 20, 2001.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       (Punctuation omitted.) Florence v. State, 246 Ga. App. 479, 481 (4) (539 SE2d 901) (2000).

       A fourth co-defendant, Cesar Hernandez, pled guilty to felony possession of marijuana with intent to distribute and testified at trial.

       See Espinoza v. State, 244 Ga. App. 96 (534 SE2d 824) (2000).

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

        Espinoza v. State, supra at 96-97.

        Gilbert v. State, 245 Ga. App. 809, 810 (539 SE2d 506) (2000).

       (Footnote omitted.) Espinoza v. State, supra at 98 (4).

        Blackmon v. State, 272 Ga. 858, 859 (536 SE2d 148) (2000).

        Espinoza v. State, supra at 100.

       (Punctuation omitted.) Mullinax v. State, 242 Ga. App. 561, 563 (530 SE2d 255) (2000).


author: Ellington, Judge.

text:
    A01A0160.
    THE STATE v. BURNETT.
    (548 SE2d 443)
   Ellington, Judge.

Gregory Scott Burnett was charged with trafficking in methamphetamine, OCGA § 16-13-31 (e). He filed a motion to suppress evidence, which the court granted. Pursuant to OCGA § 5-7-1 (a) (4), the State appeals. Because the arresting officer had probable cause to detain Burnett and search his car, the trial court erred in granting Burnett’s motion. Therefore, we reverse.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Where the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of law to the undisputed facts. State v. Stearns, 240 Ga. App. 806, 807 (524 SE2d 554) (1999).

The State adduced these undisputed facts: On October 22, 1999, agents with the Appalachian Drug Task Force detained Burnett and searched his car based, in part, on information provided by a confidential informant (“Cl”). Task Force Agent Champion testified that he worked with the Cl on three previous occasions. The Cl first made contact with Agent Champion by calling him at his home in the middle of the night. The Cl was not working with the authorities as a condition for favorable treatment for his own criminal activity. Information from the Cl led to three arrests, two of which ended in convictions by the time of the suppression hearing. The third case was pending trial. One of the Cl’s tips resulted in the seizure of a methamphetamine lab. In this case, the Cl telephoned Agent Champion and told him that he could arrange to purchase methamphetamine from Burnett. Agent Champion already knew of Burnett because the task force maintained a file on Burnett’s suspected drug activities. It contained information provided by both known, reliable informants and anonymous tipsters.

Agent Champion and Agent Hughes responded to the Cl’s call and met with him to discuss buying drugs from Burnett. During this meeting, the Cl told Agents Champion and Hughes that Burnett drove a white Grand Prix and carried a firearm with him. While Agent Champion watched and listened, the Cl placed a phone call to Burnett from a pay phone and arranged for Burnett to bring the drugs to an Amoco gas station in Pickens County. Agent Champion heard only the Cl’s end of the telephone conversation. Agent Champion testified that the Cl told him that Burnett would come to the Amoco station by way of Highway 515. He would be in a white Grand Prix and would be traveling with a friend. Agents Champion, Hughes, and others set up surveillance at the Amoco. A few hours later, Burnett arrived at the Amoco by way of Highway 515 in his white Grand Prix with a passenger. Burnett put gasoline in his car, and then both he and his passenger went inside the Amoco’s convenience store. Agent Hughes believed that Burnett spotted the surveillance van because Burnett’s demeanor changed suddenly — he started glancing around and appeared nervous and in a hurry. Burnett told his passenger to get back in the car. At that point, the agents gave the order to stop Burnett. Because Burnett reportedly had a firearm, the officers approached him with their weapons drawn. The agents removed Burnett and his passenger from the car, handcuffed them, and interviewed them. Agent Hughes read Burnett a consent to search form, which Burnett signed. The officers searched the car and found a loaded handgun located in the driver’s door panel and a quantity of suspected methamphetamine.

1. The trial court erred in disregarding the probable cause evidence provided by the Cl. The trial court assumed that the Cl was an “informer-participant” and that because Agent Champion heard only one side of the Cl’s telephone conversation with Burnett, all the information provided by the Cl was suspect. The trial court, therefore, asked the State to disclose the identity of the Cl or Burnett’s motion to suppress would be granted. This was improper.

The Supreme Court of Georgia stated that the strong public policy underlying the informer’s privilege, OCGA § 24-9-27 (d), “is to protect and encourage the flow of information to law enforcement officials.” Thornton v. State, 238 Ga. 160, 163 (2) (231 SE2d 729) (1977). Of course, that privilege is not absolute. It must be balanced against an accused’s constitutional right to a full and fair opportunity to defend himself against the crime charged. Id. at 164. However, the Supreme Court of Georgia also held that the informer’s privilege presents a question of evidentiary rather than constitutional magnitude at a motion to suppress hearing because the issue before the court is a preliminary one of probable cause and not of the defendant’s guilt or innocence. Keith v. State, 238 Ga. 157, 158 (231 SE2d 727) (1977), citing McCray v. Illinois, 386 U. S. 300 (87 SC 1056, 18 LE2d 62) (1967). Therefore, in the context of a motion to suppress, since the only issue is whether the information offered by the Cl “meets the test for probable cause, there is no need to reveal the informer’s identity.” Keith v. State, 238 Ga. at 159. The Court concluded that the existence of and reliability of the Cl could be tested through cross-examination of the police officers. Id.; see also Butler v. State, 185 Ga. App. 478, 480 (1) (364 SE2d 612) (1988) (defendant not permitted to cross-examine officer on identity of Cl who provided tip leading to warrantless arrest for possession of marijuana); Miller v. State, 169 Ga. App. 552, 553 (1) (314 SE2d 120) (1984) (“[T]he trial court did not err in failing to compel the state to disclose the informant’s identity in camera at the motion to suppress hearing.”); Scull v. State, 122 Ga. App. 696, 700 (2) (178 SE2d 720) (1970) (in a drug possession case, when the only significance of the Cl’s testimony is to attack the validity of the officer’s warrantless search, public policy supports the nondisclosure of the Cl’s identity). Consequently, the trial court erred in refusing to consider the information provided by the Cl on the issue of probable cause.

2. Probable cause to search may be provided by information from a reliable Cl. Martin v. State, 214 Ga. App. 388, 389 (448 SE2d 57) (1994). As we have held,

[t]he sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

Decided April 24, 2001.

(Citations and punctuation omitted.) Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). Further, when the details of a tip are corroborated “by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.” (Citation omitted.) Dupree v. State, 232 Ga. App. 573, 574 (502 SE2d 511) (1998); Wells v. State, 212 Ga. App. at 63 (2).

In this case, the information provided by the Cl supplied the probable cause necessary to support the warrantless search of Burnett’s car. Agent Champion’s -undisputed testimony was sufficient to show that the Cl was reliable. Agent Champion had worked with the Cl before, and the Cl had previously provided information that led to the arrest and conviction of drug dealers. See Wells v. State, 212 Ga. App. at 63 (2). Agent Champion also testified that the Cl was not providing information in exchange for leniency from the authorities.

The information provided by the Cl was also verified by the officers’ personal observations and by other indicia of reliability. The Cl knew Burnett by name, knew the make and color of the car in which he would be arriving, knew the route he would take to the Amoco, and knew Burnett would be traveling with a passenger. These details were corroborated by both Agents Champion and Hughes. Also, Agent Champion was already aware that Burnett was reportedly involved in the methamphetamine trade based upon information he acquired independently of the CL Further, the agents heard the Cl make the phone call and set up the transaction. Finally, Agent Hughes noticed a sudden change in Burnett’s behavior when it appeared Burnett spotted the surveillance team. Such furtive behavior not only validates the tip but is another factor to be taken into account in determining whether probable cause exists. See Brown v. State, 269 Ga. 830, 832 (2) (504 SE2d 443) (1998). Therefore, even though the basis of the Cl’s knowledge was not fully developed, Agent Champion’s previous experience with the Cl coupled with the other evidence validating the tip compensated for that deficiency. This evidence was sufficient to establish probable cause for a warrantless search of Burnett’s car. See Wells v. State, 212 Ga. App. at 60, 63 (2). Consequently, we must reverse the trial court’s order granting Burnett’s motion to suppress.

Judgment reversed.

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

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellant.

Teddy L. Henley, for appellee.

       This interpretation of the holding in McCray has been criticized. See LaFave, Search & Seizure (3rd ed.), § 3.3 (g). Nevertheless, we are bound by it.


text:
    A01A0226.
    EDMOND et al. v. CONTINENTAL INSURANCE COMPANY et al.
    (548 SE2d 450)
   Ellington, Judge.

James and Dena Edmond appeal from the trial court’s denial of their motion to dismiss this declaratory judgment action. The action arose from protracted personal injury litigation between the Edmonds and Jack Ferguson. The declaratory judgment action was filed by Ferguson to determine Continental Insurance Company’s obligation to defend Ferguson in the personal injury suit and its liability for an award of damages in the suit. In addition to denying the Edmonds’ motion to dismiss, the trial court determined that Continental was obligated to defend Ferguson in the personal injury suit, but that it would not be liable for any judgments entered therein. For the reasons that follow, we affirm the trial court’s order.

The relevant undisputed facts are as follows: In October 1994, Jack Ferguson was employed as the Road Superintendent of Lincoln County. In the early morning hours of October 3, 1994, before reporting to work, Ferguson was having coffee at the Fast Times Service Station when an employee notified him that a tree had fallen on a county road. As Road Superintendent, Ferguson was responsible for the maintenance and upkeep of county roads, including the removal of fallen trees. After learning of the fallen tree, Ferguson continued to drink coffee instead of immediately reporting to work. Before Ferguson and his crew arrived to remove the tree, an accident had already occurred. In the accident, a truck driver attempted to avoid the tree, lost control, and hit a van head-on. James Edmond was a passenger in the van. Edmond suffered a damaged spinal cord and became a quadriplegic.

The Edmonds sued the truck driver, the trucking company, Lincoln County, the county Board of Commissioners, and Ferguson. In the complaint, James Edmond alleged that the collision resulting in his injuries was jointly and proximately caused by the negligence of the truck driver and of Ferguson, who was acting “within his scope of employment with Lincoln County.” In Lincoln County v. Edmond, 231 Ga. App. 871, 874 (1) (501 SE2d 38) (1998), this Court found that sovereign immunity barred the suit against Lincoln County and its Board of Commissioners, but that Ferguson was not entitled to official immunity for his failure to perform a ministerial act. Id. The Edmonds settled with every other party except Ferguson. On January 4,1999, the Edmonds entered into a Limited Liability Agreement with Ferguson pursuant to OCGA § 33-24-41.1 (b). In the agreement, Ferguson’s job-related insurance agreed to pay benefits under its policy The Edmonds agreed not to pursue Ferguson’s personal assets in exchange for his cooperation in their efforts “to pursue any and all rights to coverage which Jack Ferguson may have” under his personal insurance policy with Continental. The agreement also provided, however, that

[i]t is expressly understood and agreed that this Limited Release is a settlement of claims for which the parties released hereby deny all liability and that by this release, the parties hereby intend merely to avoid litigation. This Limited Release in no way prejudices the rights of the released parties to deny liability in any suit based upon the said accident, casualty or event.

(Emphasis supplied.)

After the agreement was executed, the Edmonds continued to pursue the lawsuit against Ferguson in an effort to reach Continental’s liability insurance benefits. In their amended complaint, the Edmonds asserted that “Jack Ferguson failed to timely report for work but remained on personal leisure time which was the proximate cause of the collision producing [James Edmond’s] injuries.” (Emphasis supplied.)

Continental refused to defend Ferguson in the Edmonds’ lawsuit. Ferguson filed this declaratory action to determine the extent of Continental’s obligations under the policy for defending the claim and, if necessary, indemnification. The Edmonds moved to intervene in the action and to dismiss it for lack of subject matter jurisdiction. The trial court granted their motion to intervene, but denied the motion to dismiss, finding that the declaratory judgment action was properly before the court.

1. The Edmonds claim that the trial court erred in denying their motion to dismiss. We disagree.

(a) The Edmonds argue that Ferguson lacked standing to bring the suit because, under the settlement agreement, Ferguson had been relieved of any personal financial liability for damages. The agreement, however, was based upon OCGA § 33-24-41.1, which states in relevant part that a limited release under this statute shall not “[r]elease the tort-feasor from personal liability to the extent that there is other insurance in effect which covers the said claim or claims, but only to the extent of such other insurance.” OCGA § 33-24-41.1 (d) (4). In other words, a limited release “does not affect the injured party’s ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor’s personal liability to the amount of available insurance coverage.” Rodgers v. St Paul Fire &c. Ins. Co., 228 Ga. App. 499, 501 (1) (492 SE2d 268) (1997). Further, the agreement did not require Ferguson to concede that he was negligent, and Ferguson has declined to do so. Consequently, Ferguson will be required to defend against the pending personal injury suit.

In Atlantic Wood &c.1` v. Argonaut Ins. Co., 258 Ga. 800, 801 (2) (375 SE2d 221) (1989), the Supreme Court of Georgia held that when an insured is a defendant in a pending action, he can maintain a declaratory judgment action against his insurer to determine the scope of his insurance policy provisions, particularly the obligation of his insurer to defend him in the pending action. Therefore, the determination of whether Continental is obligated to defend Ferguson in the pending suit and, if necessary, indemnify him is an “actual controversy” that is appropriate for a declaratory judgment action. See OCGA § 9-4-2. The trial court did not err in denying the Edmonds’ motion to dismiss.

(b) In addition, the Edmonds allege that Ferguson lacked standing to pursue the declaratory judgment because he had “contracted away” his right to the Continental benefits and “gave exclusive rights to the Edmonds to pursue Continental and totally transferred any cause of action [against Continental] Ferguson had under the policy.” This allegation lacks merit.

The Edmonds failed to demonstrate any assignment or transfer within the agreement and, in fact, conceded in their answer to the declaratory judgment action that the personal injury suit against Ferguson is “derivative in nature.” See Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. at 501 (1). Further, Continental never agreed to an assignment from Ferguson to the Edmonds, as required under the contract. The Edmonds also concede that, generally, an injured party cannot proceed directly against an insurance carrier until a judgment has been obtained against the insured, except with specific authorization. Argonaut Ins. Co. v. Atlantic Wood &c., 187 Ga. App. at 476 (2); see also Smith v. Commercial Union Assurance Co., 246 Ga. 50 (268 SE2d 632) (1980). The insurance contract itself precludes legal action against Continental until the obligation for damages has been determined by final judgment or Continental’s written agreement. Because Continental refused to waive this requirement, and the Edmonds never obtained a valid assignment of Ferguson’s right to sue Continental directly, the trial court did not err in refusing to dismiss Ferguson’s declaratory judgment action for lack of standing.

2. The Edmonds claim that the trial court erred in finding that the business exclusion under the Continental insurance policy provided only a duty to defend Ferguson and not a duty to indemnify if Ferguson is found liable. The Continental policy states, in relevant part, that it does not cover liability: “arising out of or in connection with a business engaged in by a Covered Person. . . . This restriction applies but is not limited to an act or omission regardless of its nature or circumstance, involving a service or duty rendered, promised, owed, of implied to be provided because of the nature of the business.” (Emphasis supplied.)

(a) In their amended complaint, the Edmonds alleged that Ferguson “decided to remain off work and to drink coffee” rather than report to work on the morning of the accident, so that the tree was not timely removed. They further alleged that Ferguson’s failure to remove the tree was the proximate cause of the collision, even though Ferguson was on “personal leisure time” when the collision occurred. The Edmonds argue that, because Ferguson was on personal time, he was not “engaged in” his business and the Continental business exclusion should not apply. In rejecting this argument, the trial court properly held that “[i]f Ferguson was on ‘personal time’. . . [he] had no more duty to remove or warn about the danger posed by the tree than a disinterested passerby.” See Handiboe v. McCarthy, 114 Ga. App. 541, 543 (4) (151 SE2d 905) (1966) (where an injury is not due to the fault of an individual, there is no legal duty to afford relief or assistance). In this case, any duty that Ferguson owed to Edmond regarding removal or warning of the danger posed by the tree arose “out of or in connection with” Ferguson’s employment and, therefore, fell squarely within the policy’s business exclusion. See Lincoln County v. Edmond, 231 Ga. App. at 874-875 (2).

Notably, the Edmonds also argue in the alternative that Ferguson was not on personal time at the time of the accident but was, in fact, on the job 24 hours a day to respond to emergencies. Again, the trial court properly found that if Ferguson was on the job at the time of the accident, then any failure to perform his job duties was excluded by the plain language of the policy. The trial court did not err in finding that “Continental is not obligated to indemnify Ferguson for his alleged negligence, whether arising during his ‘personal time’ or during [his] business.”

Decided April 24, 2001

Larry E. Stewart, for appellants.

Fulcher, Flagler, Reed, Hanks & Harper, David H. Hanks, Barn-hart, O’Quinn & Williams, Michael A. O’Quinn, for appellees.

(b) The trial court also properly found, however, that Continental was obligated to provide a defense in the Edmonds’ personal injury suit, because its policy provided that

“[i]f a claim is made or a lawsuit is brought . . . [w]e will defend the claim or lawsuit even if the claim or lawsuit proves to be groundless, false or fraudulent.” . . . Therefore, the [trial court’s] opinion about whether the allegations contained in the amended complaint are meritorious is immaterial to the Court’s consideration [of] Continental’s duty to defend. The Court hereby finds that the terms of the policy obligate Continental to defend Ferguson’s estate in the underlying action.

We agree with the trial court that, unless and until the Edmonds dismiss their personal injury claim against Ferguson with prejudice, Continental will be obligated to provide a defense, even though Continental would not be required to indemnify Ferguson for damages awarded upon a finding of his liability. See Penn-America Ins. Co. v. Disabled American Veterans, 224 Ga. App. 557, 558 (481 SE2d 850) (1997); Crook v. Ga. Farm &c. Ins. Co., 207 Ga. App. 614-615 (428 SE2d 802) (1993).

Judgment affirmed.

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

       Ferguson is deceased, and his wife, as executrix of his estate, has been substituted as plaintiff in the declaratory judgment action and as defendant in the underlying personal injury suit.

       Additional facts are presented in this Court’s opinion in Lincoln County v. Edmond, 231 Ga. App. 871 (501 SE2d 38) (1998).

       Reversing Argonaut Ins. Co. v. Atlantic Wood &c., 187 Ga. App. 471, 474 (1) (370 SE2d 765) (1988), and overruling United States Cas. Co. v. Ga. Southern &c. R. Co., 95 Ga. App. 100, 103-104 (97 SE2d 185) (1957) (holding that an insured cannot maintain a declaratory judgment action to determine its rights under an insurance policy).


author: MlKELL, Judge.

text:
    A01A0731.
    HILL et al. v. DUNCAN et al.
    (548 SE2d 83)
   MlKELL, Judge.

The parties to this action own property in Circle East subdivision in Stephens County. One of the subdivision’s restrictive covenants states that “[n]o mobile home shall be permitted on any lot.” When Bob F. Hill, Jr. and Jo-Ann Hill sought to place a modular home on their lot, Roger Duncan and Paul Westmoreland (“plaintiffs”) filed suit requesting declaratory and injunctive relief. The trial court denied their request, ruling that the structure at issue was not a mobile home. Plaintiffs appeal, and we affirm.

Whether a dwelling is a mobile home is a mixed question of law and fact, and the trial court’s determination “can only be overturned in the event of manifest abuse of discretion.” White v. Legodais, 249 Ga. 849, 850 (2) (295 SE2d 99) (1982). Accord Rose v. Barbee, 236 Ga. App. 176 (1) (511 SE2d 268) (1999).

We find no abuse of discretion here. Evidence adduced at the hearing amply supports the trial court’s finding that the dwelling at issue is an industrialized building, not a mobile home. Neil Sayers, the vice-president of All American Homes, which constructed the dwelling, testified that the home is built on a wood flooring system, not a chassis, is not accompanied by a certificate of title, is only 75 percent completed when placed on the site, and bears the seal of approval of the Georgia Department of Community Affairs (“DCA”) as required for an industrialized building. In addition, the project coordinator for the industrialized building section of the DCA testified that the dwelling met the criteria for such a building; a local bank president who resides in Circle East testified that the home would not be classified as a mobile home for mortgage purposes; a local insurance agent testified that the dwelling would not be considered a mobile home for insurance purposes; and the county tax commissioner testified that the dwelling does not fit the definition of a mobile home, which requires a tax permit. Plaintiff Duncan, a building contractor and licensed real estate broker, presented only his self-serving testimony that the dwelling at issue was “pretty much the same” as a mobile home.

According to OCGA § 8-2-111 (3):

“Industrialized building” means any structure or component thereof which is wholly or in substantial part made, fabricated, formed, or assembled in manufacturing facilities for installation or assembly and installation on a building site and has been manufactured in such a manner that all parts or processes cannot be inspected at the installation site without disassembly, damage to, or destruction thereof.

A mobile or manufactured home, on the other hand, is defined as one “which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation,” among other things. OCGA § 8-2-131 (3), (5). The testimony in the instant case clearly supports the trial court’s determination that the dwelling the Hills seek to erect is an industrialized building, not a mobile home prohibited by the restrictive covenant. It follows that the trial court did not err in refusing to grant the injunction.

Decided April 24, 2001.

Sean A. Black, for appellants.

Clifton, Sanders & Smith, Cecil L. Clifton, Jr., for appellees.

Judgment affirmed.

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

       See OCGA § 8-2-112 (a) (1).


text:
    A01A1066.
    POWELL v. THE STATE.
    (548 SE2d 447)
   Eldridge, Judge.

A Douglas County jury found Jimmy Louis Powell guilty of aggravated assault with a handgun, kidnapping, battery, and second degree criminal damage to an automobile. These charges arose in relation to acts Powell committed in a jealous rage directed at Vincent Simpson and at Powell’s girlfriend/mother of his child, Betty Parker, after he discovered Simpson sleeping in Parker’s bed. On appeal, he claims that (1) similar transaction evidence was improperly admitted, and (2) the evidence was insufficient to prove the offenses of aggravated assault and kidnapping beyond a reasonable doubt. We have reviewed these claims of error, and, finding them meritless, we affirm.

1. We find no error in the admission of the April 1995 similar transaction wherein Powell, who was driving his Jeep Cherokee on Highway 27 near Carrollton, observed another girlfriend/mother of his child, S. G., in a car with a male co-worker. The co-worker was giving S. G. a ride to her automobile, which was parked at a Waffle House. S. G. saw Powell’s Jeep and “started looking scared.” The coworker “asked her what was wrong, and she said that, ‘nothing, it’s just my son’s hus — I mean, my son’s father.’ And she said, ‘just let me out and you go on.’ So I let her out. We were at a Waffle House. I let her out, and when I did this Jeep started out behind me.” Powell, in a jealous rage, followed the co-worker’s car; began shooting at the co-worker’s vehicle with a handgun; blocked the co-worker’s vehicle in a cul-de-sac; rammed the vehicle with his Jeep; exited his own vehicle; and then ran toward the co-worker, striking him in the head with the handgun. Residents on the cul-de-sac observed the incident and called the police; Powell left before the police could arrive.

The similar transaction evidence and the case-in-chief show that Powell is jealous, physically abusive, and obsessively controlling in his relationships with his girlfriends/mothers of his children. While Powell now argues on appeal that the similar transaction incident was the product of “road rage,” not jealousy, that is not what was shown at trial. At trial, defense counsel made a point of establishing that Powell was correct in suspecting a “relationship” between S. G. and her co-worker and that Powell was motivated by having “caught” the two together.

Here, both the similar transaction incident and the case-in-chief “tend[ ] to show appellant’s temper and his propensity to settle disagreements with a gun, and particularly to act violently and impulsively to disappointment, jealousy or misunderstanding and to resort to the . . . use of firearms with little or no provocation.” Accordingly, the trial court properly admitted evidence of the similar transaction in order to demonstrate Powell’s course of conduct and bent of mind.

2. Next, Powell challenges the sufficiency of the evidence as to his convictions for (a) aggravated assault and (b) kidnapping. On appeal the evidence must be viewed in the light most favorable to the verdict, Powell no longer enjoys the presumption of innocence, and this court determines the sufficiency of the evidence and neither weighs the evidence nor judges the credibility of the witnesses. Conflicts in the evidence are resolved by the jury.

(a) Powell challenges his conviction for aggravated assault on Simpson, claiming Powell’s own testimony showed that Simpson had a gun and that Powell acted in self-defense. Such may well have been established by Powell’s testimony. But the State’s evidence established the elements of an aggravated assault against Simpson, including evidence that Powell intentionally shot Simpson with a handgun he obtained in a jealous rage over Simpson’s presence in Parker’s bed. The jury, by its verdict, accepted the State’s evidence. This Court will not go behind a jury’s verdict simply upon a reassertion of a defendant’s version of events. The jury is the sole arbiter of what evidence to believe and what to reject. As the State presented some evidence to support each necessary element of the aggravated assault on Simpson, we uphold the jury’s verdict.

(b) Powell also challenges his conviction for kidnapping Parker.

The State’s evidence established that while begging, “please, stop, don’t,” Parker followed Powell outside the residence as he obtained a handgun from his car. Parker “didn’t want him [Powell] to come back in the inside of the house.” Parker testified that Powell then “caught me and swirled me around.” Powell grabbed Parker around the neck; with his forearm “pressing against [her] throat,” Powell took her back into the house and “pulled” her into a bedroom. Parker testified that while in the bedroom, Powell “sort of popped me” with the handgun, causing her left eye to bleed and the left side of her face to swell. Powell then pulled Parker into a hallway and ordered her to call out for Simpson, “[a]nd he told me if he [Simpson] don’t get down that hall he was going to kill me — kill this b-i-t-c-h.” Thereafter, Powell shot Simpson. Then, with his forearm still around Parker’s neck, Powell took her back outside again and broke the windows in Simpson’s vehicle. The entire time, Parker was telling Powell “to stop. Stop it. You know, stop.” Parker described herself as “very hysterical.” Later, Parker gave the police a video statement that was played to the jury wherein she recounted being “drug around” the house by Powell. The State also introduced pictures of the injuries Parker suffered from the “pop” Powell inflicted upon her, which injuries demonstrate significant bleeding and swelling on the left side of Parker’s face.

However, on cross-examination, Parker — who has a 40-year relationship with Powell and is the mother of Powell’s 28-year-old daughter — also testified that she was never afraid of Powell and went with him willingly at all times on the night of the incident. She testified that she was not trying to get away from Powell; that she could have moved away at any point; and that she stayed with him willingly in order to “reassure Mr. Powell that [she] cared for him a great deal and that he was important in [her] life.” Because of this testimony, Powell now argues that the evidence failed to establish that his holding of Parker was “against her will,” which fact the State must prove as an essential element of kidnapping. He claims that “against the will” is a state of mind and only Parker can know her own state of mind. So, he contends, the jury is bound by Parker’s testimony regarding her own state of mind. We do not agree.

This issue illustrates the classic role of the jury in the resolution of conflicting evidence. Clearly, Parker’s description of being “pulled” and “drug” through the house with Powell’s forearm around her neck, the injuries she suffered at Powell’s hands, her hysteria, Powell’s threats against her life, and her pleas of “stop” are in conflict with her other testimony that Powell did not hold her against her will. Contrary to Powell’s assertion on appeal, the jury is not bound by Parker’s testimony regarding her state of mind. Instead, the jury, in arriving at a conclusion upon disputed issues of fact, may believe a part of the testimony of a witness and reject another part; it is the duty of the jury to ascertain the truth of the case from the opinion they entertain in consideration of all the evidence submitted at trial. When viewed in a light most favorable to the verdict, ample evidence was presented to enable a rational trier of fact to find that Powell held Parker “against her will” and thus was guilty of kidnapping beyond a reasonable doubt.

Decided April 24, 2001.

Monica T. Myles, Virginia W. Tinkler, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Hicks v. State, 221 Ga. App. 735, 736 (472 SE2d 474) (1996).

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

       See Thomas v. State, 246 Ga. App. 448, 449 (540 SE2d 662) (2000).

       At trial, Powell admitted to “fighting” with the co-worker over S. G., but denied using a handgun.

        Willis v. State, 214 Ga. App. 479, 480 (3) (a) (448 SE2d 223) (1994).

        Davis v. State, 244 Ga. App. 708, 711 (3) (536 SE2d 596) (2000); Jordan v. State, 192 Ga. App. 69, 70 (2) (383 SE2d 631) (1989).

        Kapua v. State, 228 Ga. App. 193, 195 (1) (491 SE2d 387) (1997).

        Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999).

        Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

       OCGA § 16-5-40 (a).


text:
    A01A1110.
    BACON v. THE STATE.
    (548 SE2d 78)
   Eldridge, Judge.

An Evans County jury found Sham E. Bacon guilty of armed robbery pursuant to acts he and two co-defendants committed at the Sunrise Chevron gas station/convenience store on the corner of Firetower Road and Highway 280 in Hagan. Bacon appeals by challenging the sufficiency of the evidence against him, by alleging ineffective assistance of trial counsel, by claiming error in the trial court’s charge to the jury, and by alleging error in the admission of evidence regarding the tracking of appellant by a law enforcement K-9. Finding these claims of error meritless, we affirm.

The trial evidence shows that Bacon and the two co-defendants were seen outside the Sunrise Chevron at approximately 4:00 a.m. on the incident date. Less than an hour later, two masked men entered the convenience store; one was wearing a rust-colored plaid jacket. One of the men brandished a shotgun and pointed it at the clerk. The clerk was too nervous to open the cash register, so the man came around the counter, grabbed the register, and ripped it off the counter. The two men fled the store carrying the cash register; the clerk saw them run around the side of the Chevron and disappear in the back.

The police were called. Within the hour, a law enforcement K-9 tracking dog, based at the nearby Georgia State Prison, was brought to the scene. The bloodhound immediately picked up a “hot track” on the side of the store where the robbers fled; the dog “hit” on a human scent, “and maybe six to ten feet in front of him there was some cash register tape, some change and some footprints.” Three distinctive sets of footprints led directly from the Chevron down Firetower Road; from the look of the tracks, the three suspects appeared to be running.

The bloodhound followed the three sets of tracks to Ponderosa Road, a dirt road that branched off Firetower Road. The tracks led to a residence identified as 131 Ponderosa Road. Bacon and the two co-defendants were inside. The dog then followed the same three sets of tracks to a pond behind the residence. A section of weeds on the bank of the pond was matted down, as if recently disturbed. More cash register tape and coinage were found there, as well as receipts from the Sunrise Chevron. Law enforcement dragged the pond, and the cash register was recovered about 30 feet from the bank. Pursuant to consent, the police obtained the shoes that each of the suspects wore on the night of the incident. The tread on Bacon’s shoes matched one of the sets of tracks; the tread on the co-defendants’ shoes matched the other two sets of tracks. In addition, a rust-colored plaid jacket was recovered from the residence where the suspects were located.

During the defense case-in-chief, Bacon did not testify, but he called to the stand the owner of 131 Ponderosa Road who testified that Bacon and the other co-defendants were asleep in the house at 5:00 a.m. Held'.

1. In his first two enumerations of error, Bacon challenges the sufficiency of the evidence introduced against him, claiming that such (a) was circumstantial, and (b) failed to disprove his “affirmative alibi defense.”

In that regard, any challenge to the sufficiency of the evidence supporting a jury’s verdict of guilty must be viewed to uphold the verdict. Since a jury found Bacon guilty, this Court looks only to see if there is a factual basis from which a rational trier of fact could conclude beyond a reasonable doubt that a guilty verdict was warranted. We do not judge the credibility of the witnesses. We do not revisit conflicts in the evidence. And we will not simply substitute our opinion for that of the jury. So long as there is some competent evidence to support each element of the offense(s) as charged, the jury’s verdict will be upheld.

(a) We find that sufficient evidence was presented from which a jury could find beyond a reasonable doubt that Bacon was a party to the armed robbery of the Sunrise Chevron. While the evidence is circumstantial, it directly links Bacon to the robbery itself, to the flight with the cash register, to the disposal of the cash register in the pond, and to the coverup of the crime. “Where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.” The evidence in this case, though circumstantial, supports the jury’s verdict.

(b) An “affirmative defense” is one in which a defendant admits the act but seeks to justify, excuse, or mitigate it. With an “affirmative defense,” the focus no longer becomes the act, itself, since such is admitted. Instead, the State’s burden becomes the introduction of evidence that disputes, i.e., “disproves,” the defendant’s alleged justification/excuse for the act.

That is not the case, however, with an alibi defense wherein a defendant does not admit the act and where the State assumes no further evidentiary burden than what it takes to prove its case. A defendant may choose to put forward evidence of alibi, but the jury may reject such evidence in favor of the State’s proof of the indicted act. This determination is simply a resolution of conflicting evidence, a traditional role of the jury. Here, the jury heard Bacon’s defense of alibi and rejected it in favor of the State’s evidence. That was the jury’s prerogative. We will not go behind it.

2. Bacon contends the trial court’s charge to the jury was erroneous in that the court stated, “the dog identified the charged defendant.”

Any challenge to the trial court’s charge has been waived by the failure to object or to preserve such for review upon direct request by the trial court for objections to the charge. Moreover, Bacon’s claim of error with regard to the charge is substantively meritless since the trial court’s charge in its entirety reads “the fact that the dog has identified the charged defendant is not proof of guilt but merely some evidence that the party’s track had been at the place where the crime was committed.” (Emphasis supplied.) Thereafter, the trial court charged on the notion that “mere presence” at the scene of a crime is insufficient to demonstrate guilt. “The charge to the jury is to be taken as a whole and not out of context when making determinations as to the correctness of same.” Considered as a whole, the trial court’s charge fully and adequately informed the jurors of the correct legal principles.

3. We reject Bacon’s claim of ineffective assistance of counsel based on trial counsel’s alleged failure to preserve errors by making specific objections. To prevail on a claim of ineffective assistance of counsel, a defendant must show both error and prejudice. A reviewing court need not address both components if the defendant makes an insufficient showing on one, nor must the components be addressed in any particular order. Here, Bacon fails utterly to demonstrate any prejudice other than by making the statement that “Mr. Bacon argues that each of these failures to preserve error for review has prejudiced his case on appeal, and thát effective trial counsel would have taken steps to preserve such possible errors on appeal.” Such conclusory statement, unsupported by reasons or authority, does not establish prejudice so as to prove ineffective assistance of counsel. A trial court’s determination that a defendant has been afforded effective assistance of counsel must be upheld unless clearly erroneous. On the claim before us, we will not find as clearly erroneous the trial court’s determination that Bacon received effective assistance of counsel.

4. Bacon contends the trial court erred in permitting testimony from Georgia Bureau of Investigation Special Agent Edwards that the “bloodhounds, upon their arrival, were able to find what they determined to be a hot track.” Bacon claims that Edwards was not qualified to give an opinion on bloodhounds. This contention is without merit. Edwards was present when the bloodhound arrived and testified as to what he witnessed. Further, pretermitting error in such testimony, the dog handler from Georgia State Prison, Larry Sikes, testified to precisely the same fact, and he was imminently qualified to do so. “Evidence is harmless where admissible evidence of the same fact is before the jury.”

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided April 24, 2001.

Hal T. Peel, for appellant.

J. Thomas,Durden, Jr., District Attorney, Joe G. Skeens, Melissa L. Heifferon, Assistant District Attorneys, for appellee.

       Co-defendant Darrell Jovan Sallie pled guilty to armed robbery on September 30, 1999, and co-defendant Malik Rashun Crawford pled guilty to theft by taking on September 26, 2000.

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

        McLeod v. State, 245 Ga. App. 668-669 (1) (538 SE2d 759) (2000).

        Foster v. State, 273 Ga. 34, 35 (537 SE2d 659) (2000).

        Brown v. State, 267 Ga. 350, 351 (1) (478 SE2d 129) (1996).

        Walton v. State, 242 Ga. App. 639, 641 (530 SE2d 531) (2000).

        Conger v. State, 245 Ga. App. 399-400 (2) (537 SE2d 798) (2000).

       (Citations and punctuation omitted.) Sharpe v. State, 272 Ga. 684, 688-689 (6) (531 SE2d 84) (2000).

        Rogers v. State, 195 Ga. App. 446, 447 (2) (394 SE2d 116) (1990).

        Turner v. State, 245 Ga. App. 294 (536 SE2d 814) (2000).

        Ross v. State, 231 Ga. App. 793, 795-796 (1) (499 SE2d 642) (1998).

       (Punctuation omitted.) Mullinax v. State, 242 Ga. App. 561, 563 (1) (530 SE2d 255) (2000).


author: Blackburn, Chief Judge.

text:
    A01A0146.
    THRASH et al. v. RAHN.
    (547 SE2d 694)
   Blackburn, Chief Judge.

In this action for personal injury damages arising out of a car collision, Quetella and Jada Thrash appeal the jury’s general verdict in favor of Steven Rahn, contending that the trial court erred by: (1) improperly instructing the jury regarding contributory negligence; (2) improperly instructing the jury regarding comparative negligence; (3) improperly instructing the jury regarding avoidance of the consequences; and (4) denying their motion for new trial. Generally, the Thrashes argue that the evidence neither supports the questioned instructions nor the general verdict for Rahn. For the reasons set forth below, we affirm.

The record shows that, on the evening of November 6, 1998, Rahn was traveling south on Buford Highway and entered the intersection of Buford Highway and the ramp leading to Interstate 285. Rahn entered the left turn lane, turned his car left, and began to cross the northbound lanes of Buford Highway in order to reach the 1-285 ramp. At the point that Rahn began his turn, the left turn arrow was gone, but the light remained green. Rahn testified that, during his turn, he decelerated his car to approximately ten mph because he was wary of northbound cars failing to yield before turning onto the same ramp he was about to enter.

While Rahn was turning, Quetella was driving her car north on Buford Highway at approximately 35 mph. Jada was a passenger in the car. As Quetella approached the intersection, the light was green, and Quetella did not slow down. Shortly after entering the intersection, Jada screamed when she noticed Rahn’s car approaching. Quetella then turned to her left and saw Rahn’s car. Moments later, the front driver’s side of Quetella’s car impacted with the passenger’s side of Rahn’s car in the area of its left front tire. Rahn testified that he simply did not see Quetella’s car prior to the collision.

1. The plaintiffs contend that the trial court erred by instructing the jury regarding contributory negligence because there was no evidence that Quetella was negligent. We cannot agree.

“A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence.” Walker v. Bruno’s, Inc. If there is even slight evidence on a specific issue, however, it is not error for the court to charge the jury on the law related to that issue. Sanders v. Moore. Furthermore, the evidence supporting the charge does not have to be direct- evidence. “[I]t is enough if there is something from which a jury could infer a conclusion regarding the subject.” Id.

The evidence in this case shows that Rahn was traveling at a very slow rate of speed, that Jada, from the passenger’s side of the car, saw Rahn approaching although Quetella did not, and that Jada screamed out to Quetella before the collision. Based on this evidence, the jury could logically infer that, if Jada could have seen Rahn, Quetella should have as well. The jury could also infer that Quetella, had she been more vigilant, might have been able to avoid the collision. As such, there was some evidence based on which the jury could infer that Quetella was negligent in this case, and the trial court did not err in charging the jury regarding contributory negligence. Sanders, supra at 731-732.

2. The Thrashes further contend that the trial court erred by charging the jury with regard to comparative negligence, again arguing that there was no evidence of Quetella’s negligence. For the reasons discussed in Division 1, the trial court did not err in charging the jury regarding comparative negligence. Sanders, supra. Moreover, during the charge conference, the Thrashes’ counsel specifically stated that he had no objection to a charge on comparative negligence. The objection was raised for the first time after the charge had been given. “[A] party will not be heard to complain of error induced by his own conduct, nor to complain of errors expressly invited by him during the trial of the case.” (Punctuation omitted.) Clark v. Stafford.

3. The Thrashes also contend that the trial court erred by charging the jury on the doctrine of avoidance of consequences, arguing that there was no evidence supporting even an inference that Quetella could have avoided the collision. To the contrary, the evidence showed that Jada alerted Quetella to Rahn’s oncoming car prior to the collision and that Rahn was traveling at a slow rate of speed. This provides at least slight evidence that Quetella might have been able to avoid the collision, and, accordingly, the trial court did not err in instructing the jury regarding avoidance of the consequences. Clark, supra.

4. The Thrashes contend that, with regard to its instructions about comparative negligence, contributory negligence, and avoidanee of consequences, the trial court erred by not instructing the jury whether the instructions should apply to either Quetella, Jada, or both.

At trial, however, the Thrashes never objected to the trial court’s charge on this basis. Rather, they contended merely that there was no evidence of Quetella’s negligence to support the charges.

To be reviewable on appeal, an objection must clearly direct the attention of the trial court to the claimed error and must be stated with sufficient particularity to leave no doubt as to the specific ground upon which the charge is challenged; the ground of error urged must fully apprise the court of the error and the correction needed. . . . OCGA § 5-5-24 (a) places a duty on counsel to exercise a high degree of clarity in objecting to charges.

Gay v. Hatfield.

Moreover, after the charge was given to the jury in this case, the trial court specifically inquired as to objections, and the plaintiffs’ counsel simply adopted the objections made in the charge conference, without reference to any need to instruct the jury regarding the duties of a guest passenger. Plaintiffs’ counsel did not reserve the right to make additional objections in a motion for new trial or on appeal. Under these circumstances, this failure amounts to a procedural default precluding appellate review of the charge. See Palmer v. State; Young v. State. “The decision to raise at trial specific objections to the jury charge and the failure thereafter to reserve the right to raise additional objections on motion for new trial or on appeal preclude! ] this Court’s consideration of any alleged errors in the charge not raised in the court below. Russell v. State” Maxwell v. State

5. Finally, the plaintiffs argue that the trial court erred by denying their motion for a new trial, contending that there was no evidence that Quetella could have caused the collision. As we have found to the contrary above, this enumeration lacks merit.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

Decided April 5, 2001

Reconsideration denied April 25, 2001

Michael B. King, for appellants.

Shur, McDuffie, Brockman & Wilson, Darrell W. Hinson, Terence D. Williams, for appellee.

        Walker a Bruno’s, Inc., 228 Ga. App. 589, 591 (3) (492 SE2d 336) (1997).

        Sanders v. Moore, 240 Ga. App. 730, 731 (2) (524 SE2d 780) (1999).

        Clark v. Stafford, 239 Ga. App. 69, 72 (2) (522 SE2d 6) (1999).

        Gay v. Hatfield, 237 Ga. App. 826, 827-828 (2) (516 SE2d 856) (1999).

        Palmer v. State, 271 Ga. 234 (517 SE2d 502) (1999).

        Young v. State, 238 Ga. App. 555 (519 SE2d 481) (1999).

        Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994).

        Maxwell v. State, 233 Ga. App. 419, 423 (3) (b) (503 SE2d 668) (1998).


text:
    A01A0010. A01A0011.
    CARTER v. THE STATE. FREEMAN v. THE STATE.
    (548 SE2d 102)
   Andrews, Presiding Judge.

Aldraco Zokenda Carter and Jameel Zaheem Freeman were jointly indicted and tried and both found guilty of hijacking a motor vehicle (Count 1), aggravated assault (Count 4), two counts of kidnapping (Counts 6 and 7), and fleeing from police (Count 10). Freeman was also found guilty of driving with a suspended license (Count 11), reckless driving (Count 12), speeding (Count 13), and failure to stop at a traffic control device (Count 14). Their separate appeals have been consolidated for consideration in this opinion.

The State presented the following evidence in support of the convictions. Testimony from the victims showed that four masked men in a white van approached Wesley Wicker’s car, a green Pontiac, while the car was parked at Walnut Grove Apartments and was occupied by Wicker, Jonathan Carroll, and Patrice Jackson. The four men, who were armed with handguns, forced Wicker, Carroll, and Jackson out of the car at gunpoint. The men then took Wicker’s car and drove away — two of the men in the car and two in the van.

The victims immediately notified the police. Police officers testified that they spotted the white van and the green Pontiac within minutes of being notified and began chasing the vehicles with emergency lights and sirens activated as the vehicles entered onto Interstate 75. On the entrance ramp to 1-75, the van passed the car on the emergency shoulder and led police on a chase reaching speeds of at least 100 mph. The van exited 1-75, ran a red light, then stopped in the front yard of a house. At that point the driver of the van, Freeman, fled on foot, but was captured within a few minutes. Carter, who was the,front seat passenger in the van, surrendered to police when the van stopped. After Carter was arrested and given the warnings required by Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), he gave police a written statement stating that “I was picked up from my house, we rode to Walnut Grove, then we left, and then we were leaving going up the road, the green car came behind us.”

While chasing the green Pontiac, police were able to see that it was occupied by two males, both of whom fled on foot and eluded police after the car stopped. A police officer later identified the driver of the car as Miquiheus Kiwanis Bell, whose wallet was found in the van. Bell, who was named as a co-defendant in the indictment, testified that the white van belonged to Wholesale Laundry, where he was employed, and that he had lent the van to Freeman.

Carroll and Jackson identified the white van occupied by Carter and Freeman as the same van occupied by the four masked men who forced them from Wicker’s car at gunpoint.

Case No. A01A0010

1. Carter contends his written statement given to police with the benefit of Miranda warnings should have been excluded because it was. tainted by an earlier oral statement he gave to police without the benefit of Miranda warnings which was excluded by thé trial court.

We find no error in the admission of the subsequent statement. The trial court excluded the first custodial statement on the basis that it was given without the benefit of Miranda warnings. As to the admissibility of the second statement given with Miranda warnings, the relevant issue is whether, under all the circumstances, the second statement was voluntary. Oregon v. Elstad, 470 U. S. 298, 309, 318 (105 SC 1285, 84 LE2d 222) (1985); Livingston v. State, 264 Ga. 402, 407-408 (444 SE2d 748) (1994). The voluntariness of a subsequent statement given with the benefit of Miranda warnings is not tainted or compromised by a prior unwarned statement unless the prior statement was obtained by coercive police tactics that rendered it involuntary under due process standards. Oregon v. Elstad, 470 U. S. at 314, 317-318; Moore v. State, 263 Ga. 11, 12 (427 SE2d 766) (1993); Metheny v. State, 197 Ga. App. 882, 885-886 (400 SE2d 25) (1990).

The record supports the trial court’s conclusion that no such coercive tactics were employed in obtaining the prior statement and that both the prior and subsequent statements were voluntary. Accordingly, the subsequent statement was properly admitted.

2. Carter, who is African-American, claims the State violated his rights under the Equal Protection Clause of the U. S. Constitution by exercising peremptory jury selection strikes to exclude African-American potential jurors from the jury on the basis of race. He claims the trial court erred by denying his motion making this claim under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

A Batson challenge initiates a three-step process requiring first that the party challenging the strikes establish a prima facie inference that the strikes were exercised with racially discriminatory intent. If a prima facie case of racial discrimination is established, under the second and third steps, the burden of production shifts to the proponent of the strikes to give race-neutral reasons for the strikes, and the trial court then considers the reasons given and decides whether the challenger has proven discriminatory intent. During this process, the burden of persuasion as to discriminatory intent does not shift from and remains with the challenger.

Griffeth v. State, 224 Ga. App. 462, 463 (2) (480 SE2d 889) (1997).

The trial court concluded that Carter had established a prima facie inference that the strikes were exercised with racially discriminatory intent and required that the State explain its reasons for striking the African-American potential jurors. On appeal Carter claims that two potential jurors were struck by the State with racially discriminatory intent, John Q. Jones and Choslen K. Scott. The State explained that it struck Jones because he had friends who lived in the same apartments where the defendants lived and that he had visited these apartments several times. Based on these facts, the prosecutor stated he was concerned that Jones might know the defendants or might realize during the course of the trial that he had some knowledge about the defendants. As for striking Scott, the State explained that she had a shoplifting conviction which she failed to disclose in her jury questionnaire and that she had been prosecuted on this offense by the same district attorney prosecuting the present case. The State further explained that Scott frequented the apartments where the defendants lived and said she recognized Carter’s face.

The trial court concluded that the State’s explanations for the strikes were race-neutral and that Carter did not carry the burden of proving that the State struck the potential jurors with racially discriminatory intent. The standard of review applied to these conclusions is whether the trial court committed clear error. Johnson v. State, 266 Ga. 775, 777 (470 SE2d 637) (1996). Finding no clear error, we conclude the trial court correctly denied the Batson challenge.

3. Contrary to Carter’s contention, the evidence was sufficient to support his convictions for the offenses of hijacking Wicker’s car by use of a firearm and aggravated assault on Jackson with a firearm.

Although none of the victims identified Carter as one of the four masked men who arrived in the white van and participated in hijacking Wicker’s car at gunpoint, the van was spotted by police and pursued shortly after the hijacking occurred. Carter was arrested by police as he exited the van after a high-speed chase. The victims identified the van as the one used in the hijacking, and Jackson testified that a firearm was pointed at her during the hijacking. Moreover, Carter’s statement to the police placed him at the apartments where the hijacking occurred and confirmed that, when he left the apartments, the vehicle he occupied was being followed by a green car. This was consistent with testimony by the victims that the van and Wicker’s hijacked green Pontiac left the apartments together.

The evidence, both direct and circumstantial, was sufficient for the jury to find beyond a reasonable doubt that Carter either directly committed the hijacking and the aggravated assault or was a party to those crimes. OCGA §§ 16-2-20; 16-2-21; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

4. Because there was no evidence that the car was taken from Wicker by means other than hijacking with a firearm, the trial court did not err by refusing to give a charge on the lesser included offense of theft by taking of an automobile. Edwards v. State, 264 Ga. 131, 132-133 (442 SE2d 444) (1994).

5. Carter contends that, because he was only a passenger in the van during the high-speed chase with police and was not the driver, the trial court erred by denying his motion for a directed verdict on the charge of fleeing from police in violation of OCGA § 40-6-395 after being given visual and audible signals to stop the van.

There was ample evidence that Carter participated in the car hijacking and assault and that he left the scene of the crimes as a passenger in the van driven by Freeman. However, there is no evidence that Carter did anything other than occupy the passenger seat of the van while Freeman drove the van and attempted to elude police in a high-speed chase. There was no evidence that Carter attempted to dispose of evidence during the chase, nor did he flee or resist arrest after the van stopped. Compare Bivins v. State, 166 Ga. App. 580 (305 SE2d 29) (1983); Ford v. State, 163 Ga. App. 745 (296 SE2d 85) (1982). Accordingly, contrary to the evidence implicating the passengers in Bivins and Ford, there was no evidence that Carter acted in concert with the driver in this case in an effort to flee from the police. Carter was entitled to a directed verdict in his favor on the charge of fleeing from police, and his conviction on this charge must be reversed.

Case No. A01A0011

6. Freeman claims that his convictions for hijacking a motor vehicle and kidnapping Wicker must be reversed because they either merged as a matter of fact into his convictions for aggravated assault on Wicker or were inconsistent with his acquittal on the charge of possession of a weapon during the commission of the aggravated assault on Wicker.

Decided April 25, 2001.

Stanley W. Schoolcraft III, for appellant (case no. A01A0010). James W. Bradley, for appellant (case no. A01A0011).

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

There is no merit to these claims. The hijacking and kidnapping convictions were supported by different and additional facts from those supporting the conviction for aggravated assault, so there was no merger of the offenses as a matter of fact. Davis v. State, 214 Ga. App. 360, 361 (448 SE2d 26) (1994). Moreover, even if Freeman’s acquittal on the possession of a weapon charge was inconsistent with his conviction on another charge, the inconsistency is not a ground for reversal of the conviction. Kimble v. State, 236 Ga. App. 391 (512 SE2d 306) (1999).

7. Freeman contends that his convictions for the offenses of aggravated assault and kidnapping against Jackson must be reversed because they are inconsistent with his acquittal on charges of armed robbery against Carroll, aggravated assault against Wicker and Carroll, kidnapping of Carroll, and possession of a weapon during the aggravated assault on Carroll. As stated in Division 6 above, any inconsistency between convictions on some charges and acquittal on others provides no grounds for reversal of the convictions. Kimble, 236 Ga. App. 391.

8. Finally, Freeman argues that the trial court erred by failing to factually merge his conviction for speeding into his conviction for reckless driving. There was no error because the record shows different facts established each offense. OCGA § 16-1-6 (1).

Judgment affirmed in Case No. A01A0011. Judgment affirmed in part and reversed in part in Case No. A01A0010.

Eldridge and Miller, JJ., concur.


text:
    A01A0234.
    BONNER v. THE STATE.
    (548 SE2d 84)
   Andrews, Presiding Judge.

James Craig Bonner appeals from the trial court’s denial of his plea of procedural double jeopardy (OCGA § 16-1-7 (b)). Finding no error, we affirm.

The following pertinent facts were stipulated by the parties. Bonner was arrested on September 29, 1999, by Cobb County Officer Tatum. Bonner was ticketed at that time for no driver’s license on his person and no proof of insurance. The next day, Officer Tatum obtained an arrest warrant for Bonner for the additional charges of possession of weapons on school property (a shotgun and two knives), criminal trespass, obstruction of an officer, and underage possession of alcohol. The latter charges were the subject of an indictment by the Cobb County grand jury, returned on January 6, 2000.

On December 6,1999, Bonner appeared in Cobb State Court and pled guilty to the driving without a license and not having proof of insurance citations. There is no indication on the citations of the name of the person who handled these charges for the solicitor-general’s office. Leeann MacDougall, assigned as the solicitor for this traffic court courtroom on that date, did not handle Bonner’s case and had no knowledge of it. Although MacDougall is unaware who handled Bonner’s case, many solicitors assist informally on an unscheduled basis in traffic court as time permits. There is no evidence of the identities of anyone so assisting on December 6, 1999.

The citations indicated that the “subject was arrested on other charges.” These other charges, however, were not enumerated. MacDougall indicated that solicitors typically understand such a notation to mean that the accused was arrested pursuant to an outstanding unrelated bench warrant or failure to appear warrant, rather than additional connected charges.

Officer Tatum did not appear in traffic court on December 6,

1999, nor is it the practice of officers to communicate with solicitors regarding routine traffic offenses such as those in Bonner’s case. There is no evidence of any such communication in Bonner’s case. In traffic court, the file consists of nothing but the traffic citations and, on occasion, a driver’s history. It does not contain a police report of the incident in question, a Georgia Crime Information Center criminal history, or a defendant’s book-in sheet. Upon completion of a traffic case, the procedure of the solicitor’s office is to retain only the citation itself. This procedure was followed in Bonner’s case, and the balance (if any) of the solicitor’s file was destroyed.

The felony weapons charge and other misdemeanor charges contained in indictment no. 00-0195 were received in the Cobb District Attorney’s Office pursuant to the original warrant, not pursuant to a transfer of the charges from the solicitor’s office.

On March 21, 2000, Bonner’s motion in autrefois convict and plea of former jeopardy was filed. It was denied by order of June 2, 2000.

1. Bonner’s first enumeration is that the trial court erred in denying his motion by “finding that the Solicitor did not have actual knowledge of all of the crimes arising from the same conduct.”

Decided April 25, 2001.

King, King & Jones, David H. Jones, Bernard S. Brody, for appellant.

Here, Bonner had the burden of affirmatively showing that, when his plea was entered in state court to driving without a license and no proof of insurance, the solicitor had actual knowledge of the other charges which are now included in the indictment. Turner v. State, 238 Ga. App. 438, 439 (518 SE2d 923) (1999); Honea v. State, 238 Ga. App. 135, 136 (517 SE2d 841) (1999).

Bonner’s argument that the trial court’s finding of no actual knowledge is in error is premised on his argument that the solicitor “has an absolute obligation to know the facts surrounding a case presented in court for prosecution.” This premise is apparently grounded on State v. Gilder, 145 Ga. App. 731 (245 SE2d 3) (1978), and other similar cases cited in his brief. Gilder, however, has been disapproved by Baker v. State, 257 Ga. 567 (361 SE2d 808) (1987), in which the Supreme Court made it clear that OCGA § 16-1-7 (b) applies only to such crimes which are actually known to the prosecuting official handling the proceedings. See also Blackwell v. State, 232 Ga. App. 884, 885 (502 SE2d 774) (1998).

There was no error in the trial court’s conclusion.

2. Bonner’s second enumeration is that the trial court erred in denying his motion because the denial was based on her finding “that the parties stipulated that the Solicitor did not have actual knowledge of all of the crimes arising from the same conduct.”

Even though that specific stipulation is not one of those contained in the record per se, this argument avails Bonner nothing because it was his burden to demonstrate such knowledge to the court and this he was unable to do. Turner, supra; Honea, supra. There was sufficient evidence contained in the stipulations from which the trial court could have and obviously did conclude that the solicitor lacked the requisite knowledge. Therefore, even if Bonner is correct in his argument, he has not demonstrated any harm from any such error. Christensen v. State, 245 Ga. App. 165, 166 (1) (537 SE2d 446) (2000).

3. Finally, Bonner contends that the solicitor’s destruction of the file violated due process. This argument is not contained in the record from the trial court, and we need not consider it further. Hall v. State, 241 Ga. App. 454, 463 (3) (525 SE2d 759) (1999).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

Patrick H. Head, District Attorney, Dana J. Norman, Ann B. Harris, Assistant District Attorneys, for appellee.

       Knowledge of the arresting officer is not that of the “proper prosecuting officer” for purposes of the statute. Blackwell v. State, 232 Ga. App. 884 (502 SE2d 774) (1998).