author: Ruffin, Judge.

text:
    A00A0193.
    CRUMPTON v. THE STATE.
    (534 SE2d 809)
   Ruffin, Judge.

Darius Crumpton appeals his conviction of two counts of burglary. He argues that the trial court should have granted a mistrial after a witness for the State implicated his character and that the evidence is insufficient to support his convictions. Because these arguments lack merit, we affirm.

Appellant was tried for these burglaries along with his two brothers, Curtis Crumpton and Michael Crumpton, and their first cousin, Robert Bowen. All four were convicted on both counts. We recently reversed the convictions of Michael Crumpton because there was insufficient evidence that he participated in the burglaries. Although we set forth some of the relevant facts in that opinion, we elaborate on them here to address appellant’s involvement in the crimes and the different issues he raises on appeal.

Viewed in the light most favorable to the jury’s verdict, the record shows that two businesses in Berrien County — Parker’s Pickles and Berrien Gin Company — were burglarized in July and August 1996. In the Parker’s Pickles burglary, two doors were kicked in, the building was ransacked, and a box of payroll checks was taken. In-the Berrien Gin Company burglary, a rock was thrown through the window, and business checks and a typewriter were stolen. Berrien County Sheriff Jerry Brogdon, who investigated the crimes, found prints from different kinds of shoes at Berrien Gin Company and concluded that more than one person was involved in the burglary. He was able to make a cast of one print.

Shortly after the burglaries, a local bank began receiving forged, canceled checks written on Parker’s Pickles accounts. Sheriff Brogdon testified that the forged checks totaled approximately $23,000 and were made out to several different individuals. After questioning these individuals, Brogdon focused on Joseph Martin, appellant’s brother-in-law, as a suspect in the burglaries.

Police searched Martin’s residence and found a typewriter and a pair of tennis shoes that matched the cast from the shoe print at Berrien Gin Company. Martin told police that he, Curtis Crumpton, and appellant had driven past Berrien Gin Company in Curtis’ Cadillac and decided to burglarize it. According to Martin, appellant threw a rock through the window and then entered the building. Martin gave the police a written statement describing the burglary. He also told police that he, Curtis Crumpton, and appellant had burglarized Parker’s Pickles. Martin led the police to a large bag of stolen Berrien Gin Company checks. According to Sheriff Brogdon, tire prints found at both Parker’s Pickles and Berrien Gin Company after the burglaries were consistent with the wheelbase of a Cadillac.

The State charged appellant, Martin, Curtis Crumpton, Michael Crumpton, and Bowen with two counts of burglary. Martin pled guilty, and the remaining defendants were tried together.

Four of the individuals who cashed the forged checks testified at trial. Thomas Sheppard testified that appellant approached him on a street corner and asked him “about making some money cashing checks,” and Sheppard agreed. According to Sheppard, appellant returned with several checks which were drawn on Parker’s Pickles accounts and made out to Sheppard. Sheppard cashed the checks at local stores. Kevin Washington testified that Martin and Curtis Crumpton picked him up several times and drove him to stores to cash forged Parker’s Pickles checks. Kenneth Rountree testified that he cashed a check made out to him on a Parker’s Pickles account and gave the money to Curtis Crumpton, who paid him with crack cocaine. Finally, Derrick Davis testified that all three Crumpton brothers took him at various times to different places to cash checks. The checks were made out to Davis and were drawn on Parker’s Pickles accounts. Davis described the scheme as follows:

I go in there and cash the check. ... Go and cash the checks, then they tell me, hey, man, go and buy, you know, beer, cigarettes, baby Pampers or something like that, it’d be easy to cash the checks. : . . I would purchase about 65, $70 worth. . . . And I’d go in there and do that and come back out and give them the money and I always get, you know, between 50 and $75 for these checks.

According to Davis, whichever Crumpton brother had driven him to the store would keep the remainder of the money.

Martin also testified at the trial. He claimed that he alone committed the burglaries and that the Crumpton brothers were not involved. However, Martin’s prior statement to police implicating the Crumptons was admitted into evidence and read to the jury. The jury found appellant guilty of both burglaries.

1. (a) Appellant contends that the trial court should have granted a mistrial after Sheriff Brogdon testified that the Crumptons were the subject of ongoing investigation by different law enforcement agencies. Counsel for co-defendant Michael Crumpton elicited this testimony during cross-examination. After Brogdon admitted that Michael Crumpton was in jail when the burglaries occurred, counsel asked why Brogdon asked the grand jury to indict him. Brogdon responded that the information he presented to the grand jury was based on his year-long investigation of the Crumptons and included information from “other law enforcement agencies that had been in the past for quite some time been involved in an investigation on the Crumptons, and that went way back.” Appellant’s attorney objected and moved for a mistrial, arguing that Brogdon’s testimony improperly placed appellant’s character in issue. The court did not grant a mistrial but directed Michael Crumpton’s attorney and Brogdon to change the subject.

We review for manifest abuse of discretion a trial court’s denial of a motion for a mistrial. We will reverse the trial court’s ruling only if “a mistrial is essential to the preservation of the right to a fair trial.” As the State points out, Brogdon simply referred generally to the investigation of the Crumptons; he imparted no details of that investigation and did not accuse appellant of uncharged crimes. Even when a witness has directly mentioned a defendant’s prior criminal record — a circumstance far more prejudicial than Brogdon’s general statement — we have found no cause for a mistrial. Accordingly, the trial court’s ruling was not an abuse of discretion.

(b) Appellant argues that the prejudice associated with Brogdon’s testimony was compounded by the State’s introduction of evidence of other crimes. Although he provides no citation to the record, appellant is apparently referring to the testimony of Sheppard, Washington, Rountree, and Davis regarding the forged checks. Appellant does not denominate the admission of this evidence as a separate enumeration of error, but merely an aggravation of his first enumeration.

Before trial, the trial court held a hearing on the admissibility of forgery evidence. The State maintained that the defendants had committed the two burglaries for which they were on trial as part of a forgery conspiracy that began in 1994. Accordingly, the State argued that evidence of the forgeries was admissible because the forgeries were logically related to the burglaries. Appellant’s attorney objected to the admission of evidence of any forgeries committed “prior to 1996, July and August, when the dates of these two burglaries are alleged.” Although counsel for co-defendant Michael Crumpton challenged the admissibility of any evidence of forgery, counsel for appellant objected only to evidence of forgeries unrelated to the burglaries with which appellant was charged. The judge agreed to “let the transactions in,” but did not specify whether his ruling included all forgeries or only those related to the charged burglaries. Nevertheless, our review of the record shows that the testimony of Sheppard, Washington, Rountree, and Davis focused on checks written on the Parker’s Pickles accounts, not on earlier forgeries. Likewise, the canceled checks admitted as exhibits at the trial were all drawn on Parker’s Pickles accounts and dated after the burglaries. To the extent that appellant now attempts to challenge the admissibility of such testimony, he has waived this objection by not making it at trial. Even if appellant had not waived the objection, however, such evidence is clearly admissible because it tends to show appellant’s involvement in the crime — i.e., he had possession of the stolen property — as well as his motive for the burglaries.

Decided May 18, 2000.

Melinda I. Ryals, for appellant.

Robert B. EUis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

2. Appellant contends that the only evidence that he committed the burglaries is the testimony of co-defendant Martin, which is legally insufficient to support his convictions. We disagree.

Although OCGA § 24-4-8 provides that the uncorroborated testimony of an accomplice is insufficient to support a felony conviction, slight evidence of corroboration will satisfy the statute, and the evidence may be circumstantial. Moreover, “evidence of the defendant’s conduct before and after the crime may give rise to an inference that he participated in the crime.” Martin’s statements to police were corroborated by Sheriff Brogdon’s testimony that there were multiple sets of footprints at the scene of the burglaries, by the presence of tire tracks consistent with a Cadillac wheelbase at both businesses, by the discovery of the tennis shoes and typewriter at Martin’s residence, and by Martin’s leading police to Berrien Gin Company payroll checks. In addition, the State presented evidence that appellant and his co-defendants presented forged Parker’s Pickles checks to several individuals, drove those individuals to stores to cash the checks, and then pocketed the proceeds. Taken as a whole, this evidence was sufficient for the jury to convict appellant of the burglaries.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

        Crumpton v. State, 240 Ga. App. 422 (523 SE2d 624) (1999).

       See, e.g., Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       Although the parties refer to this business as the Pickle Shed, the owner of the business testified that it is called Parker’s Pickles.

       See Wilcox v. State, 229 Ga. App. 192, 193 (2) (493 SE2d 600) (1997).

       (Punctuation omitted.) Id.

       See, e.g., Smith v. State, 234 Ga. App. 586, 588-589 (1) (a) (i) (506 SE2d 406) (1998); Hillman v. State, 184 Ga. App. 712, 714 (3) (362 SE2d 417) (1987).

       Counsel for Michael Crumpton asked Rountree how many forgeries he had participated in, and Rountree responded that he tried to cash a check in 1994 but failed. But Rountree did not implicate any of the defendants in that forgery attempt. Even if he had, this one reference to a previous incident did not require a mistrial. See Smith, supra; Hillman, supra.

       See Foster v. State, 226 Ga. App. 334, 335 (1) (486 SE2d 635) (1997).

        Parkerson v. State, 265 Ga. 438, 439 (2) (457 SE2d 667) (1995).

       Id.

       Sheppard and Davis specifically testified that they dealt with appellant in cashing the forged checks.

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


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A00A0312.
    WALL v. HALL.
    (534 SE2d 828)
   Phipps, Judge.

Jane Wall sued Bradley Hall for claims arising out of an automobile collision. Wall appeals an adverse judgment on a jury verdict. She asserts that the trial court erred in its responses to questions from the jury, including its sua sponte recharge of the defense theory, and in failing to grant a mistrial. We find no abuse of discretion in either respect and affirm the judgment.

On June 6, 1996, a vehicle driven by Hall crossed a roadway into oncoming traffic and collided with a vehicle driven by Wall. Wall sued Hall on theories of negligence and negligence per se for violating various traffic laws. Hall defended partly on a theory that he had suffered an unforeseeable “fainting spell or loss of consciousness.” After the accident, Hall was diagnosed for the first time with a seizure disorder.

As part of its charge, the court instructed the jury that:

when an operator of a motor vehicle is suddenly stricken by a fainting spell or loss of consciousness for an unforeseen reason, where thére is no history of such event occurring in the past to provide notice of an existing condition, then such loss of consciousness is a defense to an action based upon negligence, which the jury may consider.

After retiring to deliberate, the jury returned with the question, “Can the loss of consciousness defense overrule the rules of the road as they apply to crossing the center of the road?” The judge responded, “Ladies and gentlemen of the jury, I have read your question and I’ve discussed it with the attorneys, and the loss-of-consciousness defense overrule [sic] the rules of the road as they apply to the crossing of the center of the road.” The judge then noted that he had the duty to make sure the jury understood the applicable law without emphasizing any particular provision of the law. Then, the judge instructed the jury that it must consider the total body of law given in the charge, that it must evaluate all the facts of the case, and that it must apply the former to the latter in making its decision. Then the court reread the instruction on the loss of consciousness defense. Immediately, one juror said, “Read it one more time,” referring to the loss of consciousness instruction. The judge replied: “All right. Again, in so doing it, it’s not to emphasize it, but to clarify it for you in your minds.” The court reread the loss of consciousness instruction and again cautioned the jury that it must consider the totality of law and fact.

After the jury retired to continue its deliberations, Wall’s counsel moved for a mistrial, asserting that the court had overemphasized the loss of consciousness defense by not repeating the remainder of the charge and that the substance of the loss of consciousness instruction was improper. The court reserved ruling on the motion. After the jury returned its verdict for the defendant, Wall’s counsel renewed the motion. The court heard arguments and gave the attorneys time to supplement their arguments with letter briefs. The record does not contain a final ruling on the motion. Wall subsequently moved for a new trial, challenging the judge’s comments and recharges regarding the loss of consciousness defense. The motion was denied.

1. In her first enumeration of error, Wall claims that the trial court erred by saying to the jury, “Ladies and gentlemen of the jury, I have read your question and I’ve discussed it with the attorneys, and the loss-of-consciousness defense overrule [sic] the rules of the road as they apply to the crossing of the' center of the road.” Wall argues that: (a) the jury had not asked for a recharge at that point; (b) the response left the jury with no choice but to find in favor of Hall; (c) the record does not support the judge’s statement that he had discussed the matter with the attorneys; and (d) the response gave the jury the impression that both attorneys agreed with it.

(a) “When the jury requests more instructions upon a particular phase of the case, the trial court is under a duty to instruct them in a plain, clear manner so as to enlighten rather than confuse them. [Cit.]” It may respond to the jury’s question by repeating charges which are legally sufficient and not misleading. However, it is not necessarily error for the trial court to respond to a jury’s question with a direct answer. Although the jury did not at first specifically request a recharge on the loss of consciousness defense, its question clearly concerned that point of law. Therefore the court was under a duty to provide some instruction aimed at enlightening the jury on the point.

(b)

In determining whether [a] recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error. Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.

At the hearing on Wall’s motion for new trial, the judge explained that his initial remarks were not intended to answer the question whether the loss of consciousness defense overruled traffic rules regarding crossing the centerline. He explained that he intended at that point only to state the issue which he would subsequently address by recharging the jury. Although the subject comments appear to be in the form of a statement, the record does support the judge’s assertion that he was only reiterating the question in his comments. Even if the comments are considered as an affirmative recharge, however, there is no error.

The loss of consciousness defense may overrule the rules of the road as they apply to crossing the center of the road. “[A] sudden and unforeseeable loss of consciousness by a driver is a complete defense to a claim that the driver negligently lost control of [his] automobile and proximately caused an ensuing accident. [Cit.]”

We do not find that the judge’s remarks would have misled the jury to believe it had to find in favor of Hall. The charge as a whole clearly conveyed that the loss of consciousness defense applied only if the jury found the necessary factual predicate.

(c) Wall’s remaining arguments regarding the judge’s comments are not supported by the record. Wall’s counsel stated at the motion for new trial hearing that after the jury came back with its question, he, the judge, and defense counsel went into the judge’s chambers and discussed the matter. And the comments do not appear to suggest that both lawyers agreed with the proposition that the loss of consciousness defense overrules the rules of the road regarding crossing the centerline. But even if they were so perceived, no harm arises because such a statement would have been a correct statement of law when considered with the charge as a whole.

2. Wall asserts the court overemphasized the loss of consciousness instruction by rereading it in response to the jury’s initial question when the jury had not specifically asked for the instruction to be reread. As noted, the judge had discretion to reread the charge. And, before doing so, the judge adequately cautioned the jury that it must consider the totality of the law as given in the charge.

3. Wall claims the court erred in reading the loss of consciousness instruction for a third time after one juror had asked the court to do so. “Responding to a jury’s request to restate portions of the charge is generally required of the trial judge, [cit.], and it is within the court’s discretion to recharge only that which is specifically requested. [Cit.]” With respect to this final reading of the instruction, the court cautioned the jury both that the rereading was not intended to emphasize the instruction and that the jury must consider the totality of law and fact. We find no error.

Decided May 18, 2000.

John W. Greer III, for appellant.

Downey & Cleveland, William C. Anderson, for appellee.

4. In her final enumeration of error, Wall asserts that the court erred in failing to grant her motion for mistrial. This issue does not appear to have been preserved for appellate review as the record does not reflect a definite and final ruling on Wall’s motion for mistrial. Because Wall’s motion for mistrial raised the same issues raised in her first three enumerations of error to this court, upon which we have found no error, we find that the trial court would not have erred in denying the motion.

For these reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

Johnson, C. J., and McMurray, Senior Appellate Judge, concur.

       This instruction is largely a quotation of language in Waits v. Makowski, 191 Ga. App. 794, 795 (1) (383 SE2d 175) (1989) and Freeman v. Martin, 116 Ga. App. 237, 239 (1) (156 SE2d 511) (1967). The drafter of the instruction added the language “where there is no history of such event occurring in the past to provide notice of an existing condition.” The substance of the instruction is not an issue in this appeal.

        Herrin v. State, 229 Ga. App. 260, 262 (2) (493 SE2d 634) (1997).

       Id.

       See Kimmel v. State, 261 Ga. 332, 334-335 (3) (404 SE2d 436) (1991).

       (Citations and punctuation omitted.) Herrin, supra.

        Lewis v. Smith, 238 Ga. App. 6, 7 (517 SE2d 538) (1999); see also Waits v. Makowski, supra; Freeman v. Martin, supra.

        Appling v. State, 256 Ga. 36, 38 (2) (343 SE2d 684) (1986).

       See Jones v. State, 240 Ga. App. 723, 724-725 (3) (524 SE2d 773) (1999).


text:
    A00A0587.
    In re ESTATE OF GARRETT.
    (534 SE2d 843)
   Ruffin, Judge.

Winifred Stoney, administratrix of the estate of Douglas J. Garrett, appeals from a probate court order ruling that William Phillips was Garrett’s natural father and is therefore entitled to inherit from him. Because no determination of paternity was made during Garrett’s lifetime, we reverse.

Garrett was born out of wedlock. He died in 1997, apparently intestate. While administering Garrett’s estate, Stoney learned that Phillips claimed to be Garrett’s natural father. Stoney filed a Petition to Determine Heirs at Law. After holding two hearings on the matter, a hearing officer of the probate court issued an order finding that Phillips was Garrett’s father and one of his legal heirs.

1. Under OCGA § 53-2-4 (b) (1), the father of a child bom out of wedlock may inherit from the child if:

Decided May 18, 2000.

Ronald B. Hatcher, for appellant.

(A) A court of competent jurisdiction has entered an order declaring the child to be legitimate under the authority of Code Section 19-7-22 or such other authority as may be provided by law;
(B) A court of competent jurisdiction has otherwise entered a court order establishing paternity;
(C) The father has executed a sworn statement signed by him attesting to the parent-child relationship;
(D) The father has signed the birth certificate of the child; or
(E) The presumption of paternity described in division (2) (B) (ii) of Code Section 53-2-3 [dealing with genetic testing] has been established and has not been rebutted by clear and convincing evidence.

In Dunlap v. Moody, we held that “a father’s opportunity to inherit from his illegitimate child is . . . lost unless the requirements of [subsection (b)] are met during the child’s lifetime” And in its recent decision in Rainey v. Chever the Supreme Court ruled that OCGA § 53-2-4 (b) (1) requires “that the father judicially establish paternity prior to the death of the child.”

Here, it is undisputed that there was no court determination of paternity before Garrett’s death, that Phillips did not sign Garrett’s birth certificate, that he did not execute a sworn statement attesting to his paternity, and that there was no genetic evidence concerning paternity. Phillips argues that he satisfied subsection (b) (1) (B) by proving to the satisfaction of the probate court that he was Garrett’s natural father. But the probate court’s order was not entered until after Garrett’s death. Thus, Phillips may not inherit from Garrett, and the order of the probate court must be reversed.

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

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

Steven J. Jackson, for appellee.

William Phillips, pro se.

       Although the record on appeal does not contain the transcripts of the probate court’s hearings, the relevant facts are undisputed.

       224 Ga. App. 38, 40 (2) (479 SE2d 456) (1996).

       (Emphasis supplied.) Id. Dunlap construed OCGA § 53-4-5 (b), the predecessor statute, which is identical to OCGA § 53-2-4 (b) in all relevant respects.

       270 Ga. 519, 521 (2) (510 SE2d 823) (1999).

       Id.


author: Barnes, Judge.

text:
    A00A0627.
    BENN v. THE STATE.
    (535 SE2d 28)
   Barnes, Judge.

David Lee Benn appeals from his theft by shoplifting convictions (two counts), contending insufficient evidence supports- his convictions and that the trial court should have granted his motion for new trial based upon newly discovered evidence. We disagree and affirm.

1. We must review Benn’s “challenge to the sufficiency of the evidence under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)], construing the evidence most strongly in favor of the jury’s verdict.” Sims v. State, 226 Ga. App. 116 (1) (486 SE2d 365) (1997). Viewed in this light, the record shows that the jury found Benn guilty of committing theft by shoplifting at two different stores approximately three months apart.

Saddle Rack Theft

Michelle McAvoy, the owner of Saddle Rack clothing store, testified that on September 8, 1998, she was working alone in the store. While she was arranging a display of Carhartt coveralls located approximately three feet from the store’s front door, a “real heavy set,” black male wearing a tank top, jogging shorts, sneakers, and a gold chain entered the store. McAvoy recognized the man as someone who had been in the store before.

As the two discussed the coveralls, a driver came into the store to deliver a shipment of hats. McAvoy went to her office at the rear of the store to pay for the shipment, and the deliveryman followed her to the back counter. McAvoy testified there were no other customers in the store when she went into the back room.

The front door was the only means of entry into the store, and every time the door opened, a chime would go off. This door automatically closed upon entry or exit, resetting the chime.

As McAvoy prepared to pay the deliveryman, the electronic chime on the store’s front entrance rang, indicating that someone had either entered or left the store. McAvoy left the back office and went to the hat counter, where she could see the front door. She then realized that the man looking at the Carhartt coveralls had left the store and that no one else had entered. The deliveryman left, and as McAvoy resumed her work on the Carhartt merchandise display, she realized that a stack of eight Carhartt coveralls, with a total value of approximately $800, was missing.

Approximately three months later, the same man returned to the store and asked McAvoy about clothing for his father. McAvoy immediately recognized him and decided to call 911. When McAvoy went to the back counter to obtain her cordless phone after asking the man to wait, he left. McAvoy then called the police and reported what had happened.

Red Wing Shoes Theft

Eric Stokes, the manager of Red Wing Shoes, testified that on December 7, 1998, he was working alone when a man entered his store and said he planned to buy a large number of Carhartt jackets. The man repeatedly requested several different sizes and colors of jackets, and Stokes went back to the stock room several times to retrieve the requested items and place them on the counter.

On Stokes’ last trip to the stock room, he heard the store’s electronic buzzer chime once, indicating that the front door had been opened. He returned to the front of the store and realized that the man, who had been the only other person in the store, had left. He then noticed that all of the jackets he had placed on the front counter, as well as several jackets from the displays, were missing. Stokes hurried to the front door and saw the man getting into the back seat of a white Toyota. The man was holding the Carhartt jackets, and a female was driving the car. Stokes testified that 15 jackets, worth over $1,000, were missing. Stokes testified that he obtained the Toyota’s license plate and was able to narrow it down to one of two series of numbers and letters, different only by one letter in the series.

Officer Perkins, the officer who reported to the shoe store on the day of the theft, matched one of the tag numbers Stokes gave him to a white Toyota Camry registered to Barbara Williams, the appellant’s wife. The other possible tag number was not listed in the computer system. The police then organized a photographic lineup of six men, one of whom was Benn. Both McAvoy and Stokes identified Benn as the man who had taken Carhartt clothing from their stores. They also identified him at trial.

We find this evidence sufficient to support Benn’s convictions under the standard set forth in Jackson v. Virginia, supra, 443 U. S. 307.

2. In his remaining enumeration of error, Benn claims the trial court should have granted his motion for new trial based upon newly discovered evidence, namely the confession of his wife’s nephew. The record shows that at the conclusion of Benn’s sentencing hearing, Quincy Williams, the nephew of Benn’s wife, approached appellant’s trial counsel and, in an off-record discussion, claimed responsibility for the shoplifting at Saddle Rack.

During a subsequent motion for new trial hearing, Williams testified on direct examination that he and Grady Thomas were responsible for the theft of merchandise at Saddle Rack on September 8, 1998. Specifically, he said that he walked into the store, saw the merchandise, grabbed it, and left the store without talking to anyone. Williams repeatedly claimed that when he entered the store, the door made no sound. Only after the trial judge informed Williams that a bell on the door rang every time the door was opened or closed, did Williams state that he probably did not push the door hard enough to sound the chime or that he did not hear it because he was not paying attention.

Williams also repeatedly testified that he took six or seven coats, but later agreed with defense counsel’s suggestion that he took brown coveralls. Williams’ description of himself as a 20-year-old male who is approximately 5’6” tall weighing 178 pounds varied from the store manager’s description of the thief.

Williams further testified that Thomas discussed with him the possibility of shoplifting merchandise from Red Wing Shoes. However, Thomas never told Williams that he committed the Red Wing Shoes theft.

Near the end of Williams’ testimony, the trial judge hearing the motion, who had also presided over Benn’s trial and thus heard all of the evidence against him, told counsel during a bench conference:

What this man has testified to so far . . . doesn’t even raise any speculation in my mind that he was there. In other words, bells he missed, the locations he’s missed — in other words, it’s not even close to something I should consider about giving Mr. Benn a new trial based on what he’s saying. In other words, the Red Wing Shoes, he’s telling me somebody else committed the crime that we can’t find and then The Saddle Rack — I’m sitting here debating whether I should hold him in contempt of court. . . . I’m not going to do it simply because I want you to read the transcript first. And I won’t rule today. But what he just testified to, it’s not even — it’s just off. It’s just way off. ... I think we just need to quit questioning this gentleman altogether to be honest with you all.

After this bench conference, Williams left the witness stand, counsel argued the motion, and the judge took the motion under advisement. In a written order issued ten days later, the trial court denied Benn’s motion for new trial based upon newly discovered evidence, finding “that the testimony of Quincy Williams is not so material that it would probably produce a different verdict, and the new evidence operates solely to impeach the credibility of Michelle McAvoy.” The trial court further concluded that “the testimony given by Quincy Williams concerning Grady Thomas committing the shoplifting at Red Wing Shoes is not supported by any credible evidence and is not so material that it would produce a different verdict.”

Motions for new trial based upon newly discovered evidence are addressed to the sound discretion of the trial judge, and we will not reverse a denial of such motions absent an abuse of discretion. Davis v. State, 221 Ga. App. 375, 377 (471 SE2d 307) (1996). In order to obtain a new trial based upon newly discovered evidence, a defendant must demonstrate each of the following six requirements:

(1) that the evidence has come to his knowledge since the trial; (2) that it was not owing to the want of due diligence that he did not acquire it sooner; (3) that it is so material that it would probably produce a different verdict; (4) that it is not cumulative only; (5) that the affidavit of the witness himself should be procured or its absence accounted for; and (6) that a new trial will not be granted if the only effect of the evidence will be to impeach the credit of a witness.

(Citations omitted.) Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

In this case, the trial court found Benn failed to demonstrate requirements (3) and (6). When evaluating requirement (3):

whether any newly discovered evidence would probably produce a different verdict, a trial court should not consider the new evidence in isolation. Rather, it should consider the strength and weaknesses of both the state’s and the defendant’s case and the nature and strength of a defendant’s new evidence. Moreover, the court should evaluate any credibility problems inherent in the new evidence and determine whether because of such problems, the proffered evidence would not result in a different verdict.

(Citations omitted.) Carl v. State, 234 Ga. App. 61, 62 (1) (506 SE2d 207) (1998). The trial court followed this mandate and concluded, based upon numerous inaccuracies in Williams’ description of the store and the merchandise taken, that his testimony would probably not result in a different verdict with regard to the Saddle Rack theft. The trial court also found that Williams’ testimony that another person talked about shoplifting at Red Wing Shoes was not so material that it would produce a different verdict. Having reviewed the trial transcript and Williams’ testimony in the motion for new trial hearing, we find no abuse of discretion by the trial court. Id. See also Walker v. State, 222 Ga. App. 491, 492 (474 SE2d 695) (1996) (physical precedent only).

Decided May 18, 2000.

James D. Crowe, for appellant.

Harry N. Gordon, District Attorney, Michael E. Eberhardt, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A00A0710.
    A00A0711.
    A00A0802.
    SMITH v. AIRTOUCH CELLULAR OF GEORGIA, INC. SABA v. AIRTOUCH CELLULAR OF GEORGIA, INC. GRIFFIN v. AIRTOUCH CELLULAR OF GEORGIA, INC.
    (534 SE2d 832)
   Eldridge, Judge.

On January 17, 1997, Joel Griffin filed suit against AirTouch Cellular of Georgia, Inc. in Civil Action No. E55480, Fulton Superior Court, because AirTouch rounded up its billing for air time rates to the next minute without contract or Public Service Commission authorization, and he sought class action certification for his suit. On March 2, 1997, Doug Smith in Civil Action No. E56092, Fulton Superior Court, brought a similar suit against AirTouch. On March 11, 1997, Marlene S. Sharpie and G. Katherine Saba in Civil Action No. E56074, Fulton Superior Court, brought a similar suit against AirTouch.

AirTouch answered each suit and pled as its first defense res judicata: that a Georgia resident, Darryl B. Cohen, sued AirTouch on the same basis on September 12,1995, in Cohen v. AirTouch Cellular, in Civil Action No. 972438, California Superior Court of San Francisco County; that a class action was granted for California, Georgia, Kansas, Michigan, and Ohio; that the suit was amended to include AirTouch of Georgia, Inc. as a defendant; that on July 19, 1996, the trial court approved the notice to all past and present subscribers of AirTouch’s cellular telephone service; that notice went to current subscribers through their August and September statements; that former subscribers received notice by repeated publication in each market; that AirTouch paid the cost of notice, $871,777.88; that on December 13, 1996, the trial court approved the settlement as final and binding on all class members who had not opted out; that class notice went to each of the plaintiffs; and that none of the plaintiffs timely opted out of the class action settlement. On April 29,1998, the California Court of Appeals affirmed the settlement.

On April 2, 1999, the Fulton Superior Court granted summary judgment on the basis of res judicata and entered the judgment of record as to each case on April 5, 1999. The trial court correctly held that res judicata barred each case.

Plaintiffs’ sole enumeration of error in all three cases is the same, i.e., that the trial court erred in granting summary judgment on the basis of res judicata from the California class action consent judgment. We do not agree.

1. Full faith and credit must be accorded the final California judgment by the courts of Georgia. U. S. Const. Art. IV, § 1; OCGA § 24-7-24; Williamson v. Williamson, 247 Ga. 260, 261-262 (275 SE2d 42) (1981); Chrison v. H & H Interiors, 232 Ga. App. 45, 49 (500 SE2d 41) (1998). “Choice of law provisions that may appropriately be considered prior to judgment are simply not material or relevant when considering the effect of a judgment entered in a foreign action.” Id.

2. Purposeful minimum contacts with the forum state by a nonresident defendant satisfy due process. See Hanson v. Denckla, 357 U. S. 235 (78 SC 1228, 2 LE2d 1283) (1958). However, as to absent class action plaintiffs, procedural due process is not an issue for purposes of jurisdiction, because the class has submitted itself voluntarily to the jurisdiction of the forum by making an appearance in court through their class representative without opting out of the class action. To satisfy procedural due process for absent class members and to bind them by judgment, there must be only (1) notice and reasonable opportunity to be heard; (2) opportunity to opt out of the proceeding; and (3) adequate class representation. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (105 SC 2965, 86 LE2d 628) (1985). In rejecting the minimum contacts argument as to absent class action plaintiffs, the U. S. Supreme Court carefully considered the argument and held that the reasons for minimum contacts for a defendant did not exist for absent class action plaintiffs, who had adequate representation through the class representative. Id.

In this case, the procedural due process clause conditions were all fully met. The class representative was a knowledgeable Georgia lawyer. These plaintiffs each received actual notice by first class mail, which prompted their suits. The California trial court found the conditions to have been satisfied. In this case, the trial court also found that they had been satisfied in granting summary judgment, as do we.

3. The California judgment has been neither reversed nor set aside; therefore, it has res judicata effect. OCGA § 9-12-40; Gilmer v. Porterfield, 233 Ga. 671, 674 (2) (212 SE2d 842) (1975). For res judicata to operate as a bar to a subsequent action, there must exist (1) a valid antecedent judgment, including jurisdiction over the subject matter and the parties; (2) identity of parties; (3) identity of issues; and (4) no public policy reason why a strict application of res judicata should not apply in the case. Fierer v. Ashe, 147 Ga. App. 446, 448 (249 SE2d 270) (1978). In other words, there must be (1) identity of parties; (2) identity of actions; and (3) adjudication by a court of competent jurisdiction. See Crowe v. Congress Financial Corp., 196 Ga. App. 36, 39 (3) (395 SE2d 321) (1990). These all have been satisfied in this case.

Regardless of the correctness of the prior trial court’s judgment, such case cannot be relitigated. Johnston v. Duncan, 227 Ga. 298 (1) (180 SE2d 348) (1971). See also Crowe v. Congress Financial Corp., supra at 39; House v. Benton, 42 Ga. App. 97, 98 (1) (155 SE 47) (1930).

The full faith and credit clause allows the judgment of a foreign state to give rise to the doctrine of res judicata. Chrison v. H & H Interiors, supra at 47; Roadway Express v. McBroom, 61 Ga. App. 223, 224-225 (6 SE2d 460) (1939); Gillis v. Atlantic Coast Line R. Co., 52 Ga. App. 806, 807 (5) (184 SE 791) (1936). The judgment must be an adjudication on the merits of the case for res judicata to apply. See Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998); Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995); Atlanta J’s v. Houston Foods, 237 Ga. App. 415, 418-419 (3) (514 SE2d 216) (1999). See also Blakely v. Couch, 129 Ga. App. 625 (200 SE2d 493) (1973). The California Superior Court in approving the class action settlement had to pass preliminarily upon the merits of the case to determine that it was fair to the class. See id. at 628. Thus, the California judgment cannot be collaterally attacked on the merits or procedurally.

(a) Court of competent jurisdiction. The California Superior Court, as a general jurisdiction court, had subject matter jurisdiction to try class action suits sounding in tort and in contract. See generally Morris v. Jones, 329 U. S. 545, 550-551 (67 SC 451, 91 LE 488) (1947). Thus, it was a court of competent jurisdiction.

(b) Final judgment. The California Superior Court entered a final judgment that terminated the class action. The judgment was appealed to the California Court of Appeals by one of the class members, but the judgment was affirmed without application for certiorari to the California Supreme Court. Thus, the judgment was final and not contingent.

(c) Adjudication on the merits.

[A]n adjudication on the merits does not require that the litigation should be determined on the merits, in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases. Thus, it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.

(Citation and punctuation omitted; emphasis in original.) Piedmont Cotton Mills v. Woelper, supra at 110.

(d) Identity of cause of action. Plaintiffs’ complaints raise substantially all of the same theories of liability and damages as raised in the Cohen case. Thus, there was identity of issues. Atlanta J’s v. Houston Foods, supra.

Decided May 18, 2000

Carr, Tabb & Pope, W. Pitts Carr, Render C. Freeman, Roberts, Erck & Schklar, Edwin J. Schklar, for appellants.

(e) Identity of parties. For res judicata to bar a subsequent action, there must be the identity of parties or their privies so that they were before the same court at the same time when the judgment was rendered. Waggaman v. Franklin Life Ins. Co., 265 Ga. 565 (1) (458 SE2d 826) (1995); Walka Mountain Camp, No. 565 &c. v. Hartford Accident &c. Co., 222 Ga. 249 (149 SE2d 365) (1966); Blakewood v. Yellow Cab Co., 61 Ga. App. 149 (6 SE2d 126) (1939). See also Fierer v. Ashe, supra at 448-449. Verdicts and judgments rendered by consent of counsel with authority, in good faith, not in violation of express instructions, and without any fraud bind the client. See Phoenix Properties &c. v. Umstead, 245 Ga. 172 (264 SE2d 8) (1980). See also Pembroke State Bank v. Warnell, 266 Ga. 819, 821 (1) (471 SE2d 187) (1996); Brumbelow v. Northern Propane Gas Co., 251 Ga. 674 (308 SE2d 544) (1983). The California trial court approved the settlement of the class action on behalf of the class. The California class action had as the class representative a Georgia resident, and the class action represented multiple states, including Georgia. Therefore, present and former subscribers of AirTouch were members of the class unless they opted out. The plaintiffs were members of the Georgia class and did not opt out. There existed an identity of parties.

(f) Pendency of simultaneous actions. When the plaintiffs filed their suits, the California action had a final judgment and was on appeal. The California action became final prior to any adjudication to judgment in the plaintiffs’ cases.

The doctrine of res judicata may be applied where actions between the same parties in relation to the same subject matter are pending at the same time, and a judgment is rendered in one of such actions. It is immaterial whether the action in which the judgment is interposed as an estoppel was commenced before or after the action in which the adjudication was made. This rule is not affected by the failure to plead the pendency of the latter action.

(Citation and punctuation omitted.) Darling Stores Corp. v. Beatus, 199 Ga. 215 (4) (33 SE2d 701) (1945).

Thus, the trial court properly granted summary judgment against the plaintiffs based on the doctrine of res judicata.

Judgment affirmed.

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

Sutherland, Asbill & Brennan, James R. McGibbon, Kristen J. Indermark, for appellee.

       Collateral attack on a foreign judgment is permitted only when procedural due process has been violated for lack of either subject matter or personal jurisdiction over the defendant, as shown by each of the cases cited by the plaintiffs. This was not the situation in this case.
      However, plaintiffs seek to make a collateral attack, nonetheless, by a conflict of law argument that there was a substantive due process violation in the California judgment. See Phillips Petroleum Co. v. Shutts, 472 U. S. 797 (105 SC 2965, 86 LE2d 628) (1985). In Shutts, the substantive due process issue of conflict of law came in a direct appeal of the judgment and not as a collateral attack on the judgment when full faith and credit were sought to be applied for res judicata purposes. Plaintiffs’ conflict of law/due process attack exists to permit a collateral attack on the California judgment and to allow a new class action to proceed in Georgia. Since the case settled in California with the trial court’s approval and was not tried, then the trial court under its procedural law did not have to finally determine which state’s substantive law to apply, including other states’ conflict of law rules, but did appropriately use California procedural law. Therefore, no conflict of law/due process violation occurred, as in Shutts, supra, because procedural law in a class action under conflict of law follows the law of the forum. See Sun Oil Co. v. Wortman, 486 U. S. 717, 723 (108 SC 2117, 100 LE2d 743) (1988). However, in the approval order, the California trial court had to make a preliminary evaluation of the case on its merits, which it did by looking to the substantive law from other states. Since approval of a class action settlement does not require a final decision on the substantive law merits, including applicable conflict of law rales, and does not require the trial court to expressly consider the law of every state involved, then there existed no conflict of law/substantive due process clause violation when the trial court made no final decision as to the applicable substantive law of other states. See Class Plaintiffs v.

        City of Seattle, 955 F2d 1268, 1291 (9th Cir. 1992); see also Dunk v. Ford Motor Co., 48 Cal.App.4th 1794, 1806-1807, n. 18 (1996). See generally Alicke v. MCI Communications Corp., 111 F3d 909, 912 (D.C. Cir. 1997) (describing the prevailing industry practice of rounding up the billing minutes and finding that reasonable customers should have expected this).

       Plaintiffs raise an adequacy of notice through publication in the market for former subscribers; since the plaintiffs all were subscribers and received notice through their monthly statements, then they lack standing to raise this on behalf of past subscribers, because no class has been certified in any of these cases, and they were not personally aggrieved by lack of notice.

       A foreign judgment cannot be collaterally attacked except for lack of jurisdiction.


text:
    A00A0718.
    TREW v. THE STATE.
    (534 SE2d 804)
   Ruffin, Judge.

A jury found Jimmy Trew guilty of child molestation and enticing a child for indecent purposes. The trial court merged the two offenses and sentenced Trew on the child molestation conviction. Trew appeals, raising several issues. For reasons discussed below, we affirm.

1. Trew contends the evidence was insufficient to support his conviction of child molestation. This contention is without merit.

Bobby John and Lorraine Whitaker ran a child care business out of their home in Ellijay. Trew, who lived nearby, would often give four-wheeler rides to children who were staying with the Whitakers. On April 13, 1998, Trew gave a ride to three children: B., his wife’s four-year-old granddaughter; Steven, his fifteen- or sixteen-year-old stepson, who was blind; and four-year-old Austin. B. sat in front of Trew, while Austin and Steven sat behind him. Bobby Whitaker testified that this seating arrangement was unusual, in that Austin usually rode in front because he had a slight handicap. Whitaker testified that he became somewhat concerned because the ride took “longer than normal.” After about ten minutes, however, Trew returned with the children.

B.’s mother, Angela McClure, testified that later that day, B. told her that Trew (whom she referred to as “Pa”) had tickled her on her “pee-pee,” meaning her vaginal area. Bobby Whitaker testified that, after he heard what B. had said, he asked her, “What happened to you and [Trew] on the four wheeler?” According to Whitaker, B. pointed to her groin and said that Trew had touched her. Whitaker asked, “Well, was he just tickling you and happened to hit that?”, and she said, “No. ... He put his hand under my panties.” She told Whitaker that Trew “told me not to tell nobody. . . . If I did, me and him would get in big trouble.”

Whitaker testified that, a week or two after the incident, he listened in on a phone conversation between Trew and his wife, Donna Patterson, who is Whitaker’s sister. Whitaker said that Patterson had asked him to listen in on the conversation if Trew called. During the conversation, Patterson asked, “What about [B.]?” Trew responded, “I hope to God she forgets what happened that day,” and said that he had been praying for forgiveness.

B., who was five years old at the time of trial, testified that Trew tickled her on her private parts, under her panties. She was shown a diagram of a young girl and asked to show where Trew tickled her, and indicated the groin area.

Stacey Nicholson, the chief investigator for the Gilmer County Sheriff’s Office, testified that he interviewed B. the evening of the incident, April 13. According to Nicholson, B. told him that Trew tickled her in her genital area, under her panties. Nicholson testified that B. demonstrated how the tickling occurred by moving her finger back and forth. B. said that Trew “told me not to tell anybody or we’d both get into trouble.”

Later that evening, after Trew was arrested, he gave a statement to Nicholson about the incident. According to Nicholson, Trew said that he never touched B.’s vagina, and that the only time his hand could have come close to her vagina was when he was shifting gears. Trew told Nicholson that B. had misconstrued his comment about not telling anybody. Trew claimed that he actually said, “If I don’t get you back to Granny’s to eat supper we’ll be in trouble.”

About a week later, Nicholson conducted a second interview with B., which was recorded on videotape. The videotape was introduced into evidence and played for the jury.

Trew testified that B. “always loved for me to try to tickle her” during four-wheeler rides. He said that, on the occasion in question, he was tickling B.’s belly with his left hand when she “shoved back,” causing his hand to go down her pants. According to Trew,

[w]hen I was tickling her and she pushed back my hand went right down the front [of her pants]. . . . She had pushed back with her feet with her legs . . . [a]nd that’s what caused my hand to go down in front of her pants. . . .1 didn’t feel nothin’. I mean, it happened in a split second.

Trew denied that his hand went all the way down to B.’s vagina. He admitted that, when he was interviewed by Nicholson, he knew that his hands had gone down B.’s pants, but said he did not tell this to Nicholson because he was scared. Instead, he told Nicholson that the only time his hand could have gotten close to her vagina was while he was changing gears. Trew testified that B.’s blue jeans were “pretty loose.” B.’s mother, however, testified that the jeans were “very snug on her.”

Viewed in the light most favorable to support the verdict, this evidence was sufficient for the jury to find Trew guilty of child molestation. Although Trew claims that any touching was accidental and that there was “no conflict” between his testimony and B.’s, the jury was authorized to conclude otherwise. Trew’s claim that the touching lasted a “split second” was contradicted by B.’s claim that he tickled her private parts by moving his finger back and forth. Trew’s claim that his hand accidentally slipped down B.’s pants is contradicted by testimony that the pants were snug fitting. Furthermore, Trew’s account of the accidental touching is inconsistent with his original statement to Nicholson. Under all of the circumstances, the jury was authorized to find B.’s version of events more credible than Trew’s account. '

2. Trew contends that the evidence was insufficient to support his conviction of enticing a child for indecent purposes. Although the jury returned a guilty verdict on this count, the trial court did not enter a judgment of conviction on this count, but merged it with the conviction for child molestation. Therefore, it is unnecessary to consider whether the evidence supported the jury’s verdict.

3. Trew argues that the trial court erroneously admitted hearsay evidence under the child hearsay statute, OCGA § 24-3-16. He asserts that hearsay evidence cannot be admitted under the statute unless the child victim’s veracity is at issue or the child is unresponsive. However, the statute places no such limitation on the admissibility of evidence, but provides that:

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

Thus, the only limits set forth in the statute are that the child be “available to testify” and that the circumstances of the statement show “sufficient indicia of reliability.” We have held that the statute “actually contemplates testimony . . . from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ . . . Any ‘bolstering’ can be explored by defendant in cross-examination.” Because the child was clearly available to testify, and Trew does not challenge the existence of indicia of reliability, this enumeration is without merit.

Decided May 18, 2000.

Michael R. McCarthy, for appellant.

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

4. Finally, Trew asserts that the trial court “erred in instructing the jury not to consider sexual battery as a lesser included offense of child molestation until after they had acquitted [him] of the greater offense.” The court’s instruction was as follows:

If you do not believe beyond a reasonable doubt that the Defendant is guilty of count one child molestation but do believe beyond a reasonable doubt that the Defendant is guilty of sexual battery then you would be authorized to find the Defendant guilty of sexual battery.

Contrary to Trew’s assertion, this language did not require that the jury first acquit Trew of child molestation before considering the lesser included offense of sexual battery. Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       The videotape is not included in the record on appeal. Nicholson testified, however, that the videotape was consistent with B.’s earlier statement and her in-court testimony, and Trew does not contend otherwise.

       See Blackwell v. State, 229 Ga. App. 452, 454-455 (3) (494 SE2d 269) (1997); Jackson v. State, 213 Ga. App. 420, 421 (444 SE2d 854) (1994).

       See Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999); Carter v. State, 269 Ga. 420, 422 (2) (499 SE2d 63) (1998).

       OCGA § 24-3-16.

        Rayburn v. State, 194 Ga. App. 676, 677 (3) (391 SE2d 780) (1990).

        Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998), cited by Trew, does not change this result. In Woodard, the Supreme Court held that the statute was unconstitutional to the extent that it allowed hearsay testimony of a child witness other than the victim. Id. at 321-323 (3). The Court noted, however, that “[t]here are several compelling reasons for allowing a child victim’s hearsay statements to come into evidence.” (Punctuation omitted; emphasis supplied.) Id. at 323 (3).

       See Turner v. State, 241 Ga. App. 431, 433 (2) (a) (526 SE2d 95) (2000) (construing nearly identical language); Spradley v. State, 242 Ga. App. 340, 343 (2) (529 SE2d 647) (2000). Compare Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996); Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998).


text:
    A00A0861.
    HAYNES v. THE STATE.
    (534 SE2d 807)
   Barnes, Judge.

A jury convicted Cynthia Haynes of running a stop sign, driving with an open container of alcohol, and driving under the influence of alcohol. Haynes appeals the DUI conviction, arguing that the trial court erred in giving a jury charge regarding the “evidentiary value” of the Intoxilyzer 5000 machine. While we agree the charge was error, we conclude that the error was harmless and affirm Haynes’ conviction.

Haynes objects to the following jury charge: “I charge you the mere fact that the Intoxilyzer 5000 machine has some margin of error or may give an erroneous result under certain circumstances does not diminish the evidentiary value of the test results.”

The State argues that the charge, a direct quote from Lanier v. City of Manchester, 205 Ga. App. 597 (423 SE2d 30) (1992); is a correct statement of law. The issue we addressed in Lanier was whether sufficient evidence supported the defendant’s DUI conviction when two successive breathalyzer tests varied by 0.02 percent. The defendant argued that evidence of her guilt was insufficient because the machine had a 0.01 margin of error and numerous substances can interfere with the test.

In affirming the conviction in Lanier, we cited Lattarulo v. State, 261 Ga. 124, 126 (3) (401 SE2d 516) (1991), in which the Supreme Court rejected the defendant’s argument that breathalyzer test results should be excluded from evidence because they were not scientifically reliable. The court in Lattarulo held that:

the expert testimony introduced by [the defendant] does not indicate that the Intoximeter 3000 test is not based on sound scientific theory[;] rather it indicates only that the test has some margin for error or may give an erroneous result under certain circumstances. As we noted above, no procedure is infallible. An accused may always introduce evidence of the possibility of error or circumstances that might have caused the machine to malfunction. Such evidence would relate to the weight rather than the admissibility of breathalyzer results.

Id.

In the case before us, however, the trial court instructed the jury that the breathalyzer machine’s margin for error “[did] not diminish the evidentiary value of the test results.” While this analysis may be appropriate when considering whether the State presented sufficient evidence to sustain a DUI conviction, it is not an appropriate jury charge.

Language [that] is appropriate when contained in an opinion by a reviewing court may be improper when embodied in a jury charge. We have frequently held that the language employed by a judge of a reviewing court in discussing a case, or in giving reasons for a decision [,] is not always appropriate for use by a trial judge in charging a jury.

Decided May 18, 2000

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

Robert Stokely, Solicitor, for appellee.

(Citations and punctuation omitted.) Gibbs v. State, 174 Ga. App. 19, 20 (1) (329 SE2d 224) (1985).

The charge at issue here instructed the jury that the breathalyzer’s margin of error did not diminish the test results’ “evidentiary value,” a conclusion rightly within the jury’s domain. “It is the province of the judge in all instances to determine the admissibility of evidence. But it is the province of the jury to determine what weight shall be given to the evidence that has been admitted.” Brock v. State, 206 Ga. 397, 400 (2) (57 SE2d 279) (1950).

However, jury instructions must be read and considered as a whole in determining whether an error is reversible. Williams v. State, 249 Ga. 822, 825 (3) (295 SE2d 293) (1982). In this case, the trial court properly charged the jury twice more on the issue of the weight the jury could accord the breathalyzer test results. These charges read as follows:

[T]he reliability and performance of any given breathalyzer machine [are] subject to challenge. If there is any evidence that a particular machine has malfunctioned or was designed to operate so as to produce unreliable results, such evidence is relevant to the weight you should accord the test results. ... I charge you that an accused may always introduce evidence of the possibility of error or circumstances that might have caused the State’s breath-testing machine to malfunction. Such evidence goes to the weight of the breathalyzer results.

Further, the State introduced evidence at trial that Haynes had a blood alcohol content of 0.20 upon her arrest. Considering the charge as a whole and the evidence introduced at trial, we conclude that the trial court’s error was harmless.

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.


text:
    A00A0878.
    BIXLER v. MERRITT et al.
    (534 SE2d 837)
   Barnes, Judge.

Janet Bixler sued Lisle Merritt and David Glover, individually and as employees of DeKalb County, alleging she suffered damages because the two emergency medical technicians failed to take her to the hospital after responding to her 911 call. Bixler alleged that the defendants failed to perform ministerial duties, acted in bad faith, and acted outside the scope of their authority. The trial court granted the defendants’ motion for summary judgment, and Bixler appeals. Pretermitting the official immunity issues, we affirm because Merritt and Glover are entitled to immunity under OCGA § 31-11-8.

Under OCGA § 9-11-56 (c), the trial court should grant summary judgment when no issue of material fact remains to be decided and the movant is entitled to judgment as a matter of law. We review de novo a grant of summary judgment, viewing the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592-593 (472 SE2d 140) (1996).

OCGA § 31-11-8 provides that:

[a]ny person, including agents, and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim. . . . (c) The immunity provided in this Code section shall apply only to those persons who perform the aforesaid emergency services for no remuneration.

The parties do not dispute that Merritt and Glover were employees of DeKalb County, which was licensed by the State of Georgia to provide ambulance services. We have concluded previously that, although the county charged fees to defray a portion of the costs of the services provided, those fees did not constitute remuneration. Thomas v. DeKalb County, 227 Ga. App. 186, 189 (2) (489 SE2d 58) (1997); Ramsey v. City of Forest Park, 204 Ga. App. 98, 100-101 (2) (d) (418 SE2d 432) (1992). Therefore, if the defendants rendered emergency care to Bixler in good faith, they are entitled to immunity from Bixler’s claims.

Bixler claims that a question of fact exists on whether the defendants acted in good faith because she told them she was having chest pains, and they failed to follow DeKalb County policy and directives which provided that a patient with chest pains must be transported to the hospital. The defendants deny that Bixler said anything about chest pains; Bixler thus argues that a genuine issue of material fact exists for the jury to determine.

In determining the constitutionality of the predecessor to OCGA § 31-11-8, the Supreme Court of Georgia defined “good faith” as “a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation,” and concluded that the Code section was not unconstitutionally vague. Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978).

We have noted that the policy considerations underlying the immunity provided by OCGA § 31-11-8 would be undermined if we conclude that the issue of determining “good faith” is always a jury question.

Such an application would force all emergency care providers protected by the statute to incur the substantial costs associated with defending an action through trial, which itself could be enough to drive many providers of ambulance service out of the business and greatly discourage others from entering.

(Citation and punctuation omitted.) Thomas v. DeKalb County, supra, 227 Ga. App. at 189. Therefore, on a motion for summary judgment, we closely scrutinize evidence of whether a defendant acted in good faith.

In Thomas, the defendants disputed the plaintiffs’ evidence that no heavy furniture blocked the paramedics’ path to the patient, that the patient was gasping for air after they made her walk to the door, and that after she became unconscious, they pushed her 30 feet down the driveway before administering any medical treatment. Id. at 187-188.

Here, assuming Bixler’s assertions regarding what she told the emergency medical technicians are true, she has presented no evidence that the defendants believed their conduct was unconscionable or that the circumstances required further investigation. “Even if the paramedics exercised bad judgment and acted negligently, such does not amount to a lack of good faith.” Thomas v. DeKalb County, supra, 227 Ga. App. at 190. Accordingly, the trial court did not err in granting summary judgment to the defendants. Anderson v. Little & Davenport Funeral Home, supra, 242 Ga. at 753; Thomas v. DeKalb County, supra, 227 Ga. App. at 190.

Judgment affirmed.

Blackburn, P. J, and Eldridge, J., concur.

Decided May 18, 2000

McKinney & Salo, Sonja L. Salo, for appellant.

Jonathan A. Weintraub, Joan F. Roach, Howard W. Indermark, for appellees.


text:
    A00A1003.
    CHASTAIN v. THE STATE.
    (535 SE2d 25)
   Barnes, Judge.

Steve Eugene Chastain was convicted of theft by taking. In this appeal, he claims the evidence was insufficient to sustain the verdict. He also contends the trial court erred in recharging the jury and in refusing to exclude the victim’s testimony after a purported violation of the rule of sequestration. Finding no merit to these assertions, we affirm.

Viewed in a light most favorable to the verdict, the evidence established that the theft of the victim’s 1993 Toyota pickup truck occurred after Chastain had been a guest at the victim’s home for two days. The victim permitted Chastain, his mother-in-law’s friend, to stay with him and his family because Chastain had no money, steady job, car, or place to live.

The victim testified that when he went to bed at about 11:00 p.m. or 12:00 a.m., the keys to his truck were on the nightstand in his bedroom. Shortly after arising at 3:45 the next morning, the victim discovered that his keys, his truck, and Chastain had vanished. Lacking transportation, the victim contacted his employer to explain that he could not get to work because his truck had been stolen. At about 9:00 a.m., Chastain telephoned. When asked if he had taken the truck, Chastain initially remained silent. But after the victim begged him to return the truck saying, “I have to make money for my family,” Chastain finally responded, saying, “I’m sorry.” When the victim demanded the truck’s return, Chastain hung up. The victim then contacted law enforcement authorities to report the theft.

Wfiien Chastain telephoned a second time, he said, “Please don’t have me locked up.” The victim again asked him to bring his truck back and told Chastain he had already called the police. Shortly thereafter, Chastain returned the truck in a slightly damaged condition, and after confronting Chastain about the theft, the victim contacted police. As a sheriff’s vehicle approached, Chastain fled out the back door. The victim denied giving Chastain permission to use or borrow his truck.

1. Chastain asserts the verdict was contrary to the evidence and justice and was against the weight of the evidence. When the general grounds are raised, this court considers only the sufficiency of the evidence. Yawn v. State, 237 Ga. App. 206 (515 SE2d 182) (1999). Therefore, we address only whether the evidence was sufficient to sustain a verdict that Chastain committed the offense of theft by taking. See Romano v. State, 233 Ga. App. 149, 152 (2) (503 SE2d 380) (1998). “A person commits the offense of theft by taking when he unlawfully takes . . . any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” OCGA § 16-8-2. Chastain took the truck without the owner’s knowledge or consent and failed to return it when asked to do so. Since it is undisputed that Chastain did, in fact, take property belonging to another without lawful authority, the only real issue was intent to deprive the owner of the property, a question solely for the jury. Cole v. State, 186 Ga. App. 243, 244 (1) (366 SE2d 844) (1988).

In this context, to deprive means to withhold without justification the property belonging to another, either permanently or temporarily. Smith v. State, 172 Ga. App. 356, 357 (2) (323 SE2d 257) (1984). Once criminal intent at the time of taking is proven, it becomes irrelevant whether the deprivation is permanent or temporary. Id. Here, Chastain apparently slipped into the victim’s bedroom during the dead of night while the victim and his wife were asleep, took the keys, then absconded with the truck. Whether Chastain subsequently got “cold feet” after being advised that authorities had been contacted and so returned the vehicle is irrelevant. Also, when the police arrived, Chastain fled immediately. See Hogans v. State, 251 Ga. 242 (1) (304 SE2d 699) (1983) (jury may consider whether flight constitutes some evidence of guilt). This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to authorize a jury’s finding beyond a reasonable doubt that Chastain committed the crime of theft by taking. See Romano, supra.

2. Chastain contends the trial court erred by failing to exclude the victim’s testimony after the rule of sequestration was violated.

The discussion at issue transpired before trial between the prosecutor and the victim, who was the State’s only witness. Chastain claims that because two other potential witnesses were present in the courtroom and could possibly have overheard the conversation, this conduct violated the rule.

The purpose of the rule of sequestration, codified at OCGA § 24-9-61, is to ensure that the testimony of a witness who has not yet testified is not influenced by that of another witness. Childress v. State, 266 Ga. 425, 431 (2) (467 SE2d 865) (1996). But this rule does not prohibit conversations between an attorney involved in a case and a prospective witness, provided that the attorney speaks with the witness separately and does not inform the witness about previous testimony. Ross v. State, 254 Ga. 22, 28 (4) (a) (326 SE2d 194) (1985). Further, a trial court is not required to enforce the rule of sequestration until the presentation of evidence has begun. Blankenship v. State, 258 Ga. 43, 46 (9) (365 SE2d 265) (1988). Since no person had yet testified, no violation of the rule could have occurred. See id.

Decided May 18, 2000.

Richard C. Sutton, for appellant.

James R. Osborne, District Attorney, Theo M. Sereebutra, Assistant District Attorney, for appellee.

3. Chastain alleges the trial court erred during its recharge by providing the jury with the definition of “depriving” instead of the entire charge on theft by taking.

During deliberations, the jury asked the court to explain the meaning of “intention of depriving said owner,” and asked whether “depriving” meant in any form, either for an hour or permanently. The court then recharged the jury on the statutory definition of theft by taking and the legal meaning of “deprived” and defined “intent” and mistake of fact.

Where, as here, the jury requests further instruction upon a particular point of law, the court, in its discretion, may recharge the jury in full or only upon the point or points requested. Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97) (1991). No error occurred.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.

       The victim also testified that $265 in cash was missing from his wallet that had been on the nightstand near the keys.


author: McMurray, Senior Appellate Judge.

text:
    A00A1245.
    In the Interest of S. T. et al., children.
    (534 SE2d 813)
   McMurray, Senior Appellate Judge.

C. W. T. appeals the termination of her parental rights to three of her biological children. She argues the juvenile court erred in finding clear and convincing evidence that the cause of the children’s deprivation was likely to continue and that the termination was in the children’s best interests. Our review of the record and the juvenile court’s comprehensive order indicates otherwise. Held:

1. In considering a challenge to the sufficiency of the evidence supporting an order terminating parental rights, this Court is required to view the evidence in the light most favorable to the appellee, here the Chatham County Department of Family & Children Services (“DFACS”), and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

OCGA § 15-11-81 (a) sets out a two-part procedure for termination cases. First, the juvenile court must make a finding of parental misconduct or inability, which is proved by clear and convincing evidence that: (1) the children are deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the children. OCGA § 15-11-81 (b) (4) (A) (i)(iv). If all four factors are met, the court must then decide whether the termination would be in the best interests of the children, considering their physical, mental, emotional, and moral condition and needs. OCGA § 15-11-81 (a).

C. W. T. concedes that the evidence adduced at the termination hearing supports the juvenile court’s findings under OCGA § 15-11-81 (b) (4) (A) (i), (ii), and (iv). Therefore, our inquiry is limited to determining whether the court correctly found that the children’s deprivation is likely to continue.

A review of the record reveals that S. T. and K. T., then four and three years old respectively, were placed in the custody of DFACS in March 1998. DFACS removed the children from C. W. T. after an investigation revealed that S. T. and K. T. were neglected and that S. T. had been sexually abused. C. W. T. had no permanent home and was residing with friends. C. W. T, then pregnant with M. T, tested positive for marijuana use. M. T. was born in July 1998. In October, she voluntarily placed M. T. into foster care.

DFACS designed a reunification plan for C. W. T, and the case manager testified to the extensive efforts undertaken by DFACS to assist C. W. T. in reaching the plan’s goals. The case manager also testified that C. W. T. was aware of the steps she was required to accomplish in order to regain custody of her children, but she failed to complete them. Specifically, C. W. T. failed drug screens, failed to secure a stable home or stable employment, and failed to visit the children regularly. She stayed only five weeks in a Medicaid-covered six- to twelve-month residential “Baby Help” program designed to provide drug rehabilitation as well as family reunification services. She was referred to a therapist but refused to follow his recommendation of inpatient treatment.

On February 22, 1999, an order was issued declaring M. T. deprived and extending a previous deprivation order as to S. T. and K. T. On April 9, 1999, six months prior to the termination hearing, C. W. T. moved to Jacksonville, Florida. She returned to reside in Savannah three weeks before the hearing but never visited the children. According to her testimony, C. W. T. left Jacksonville because she fought violently with her roommate. She did not testify that she returned to reunite with her children. Nor has C. W. T. provided financial support for the children since March 1998, save for one $50 payment to the foster mother.

Upon her return to Savannah, C. W. T. testified she was temporarily living with a friend and had no home for the children. Although she had previously resided in public housing, she testified she was currently ineligible to do so “because of the violence that went on at my residence” there. She claimed she was employed at a fast-food restaurant but failed to offer proof of same.

The juvenile court may consider a parent’s past conduct in determining whether conditions of deprivation are likely to continue. In the case sub judice, the evidence of past and present unfitness was clear, and C. W. T. could offer no concrete plan for housing or caring for her children in any manner. She failed to comply with the case plan DFACS drew up for her. Accordingly, there existed clear and convincing evidence from which the juvenile court could conclude that the deprivation was likely to continue.

2. The second step under OCGA § 15-11-81 (a) requires the juvenile court to consider whether termination of parental rights is in the children’s best interests. In making that determination,

the court may consider the child [ren]’s need for a stable home environment and the detrimental effects of prolonged foster care. [Cit.] Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems. [Cit.] The court may also look at the same factors which show parental inability to care for the child [ren] to support a finding that termination of parental rights would be in the child [ren]’s best interest [s]. [Cit.]

Decided May 18, 2000.

Thomas J. Gustinella, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Duffy, Feemster & Lewis, John R. Strother III, Linda J. Carter, for appellee.

As the juvenile court aptly stated in its thorough order:

Children need permanency and the security of a parent who will be present day in and day out. They do not need a parent who might be here one month and gone the next. Neither do they need the change of placement from a birth parent’s home to foster care and back again and then removal into foster care . . . because the parent chooses to be absent.

C. W. T. voluntarily absented herself from her children, allowing them to languish in foster care. This fact, in addition to her current inability to provide a home for the children, provided sufficient clear and convincing evidence that termination was in their best interests.

Judgment affirmed.

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

       The juvenile court also terminated the parental rights of the children’s putative fathers. They do not appeal.

        In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752).

        In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253).

        In the Interest of A. N. M., 238 Ga. App. 21, 22 (1) (517 SE2d 548).

        In the Interest of L. H., supra at 133.

       The fight erupted after C. W. T. apparently opted to obtain a manicure and coiffure instead of paying her share of the telephone bill.

        In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232).

       See In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613).

       Id.


text:
    A00A1287.
    DONALDSON v. THE STATE.
    (534 SE2d 839)
   Eldridge, Judge.

A Chatham County jury found David Donaldson guilty of forcible rape, aggravated child molestation, and furnishing alcohol to a minor. He appeals. In consideration thereof, we find the following.

1. First, evidence is sufficient as a matter of law if, when viewed in the light most favorable to the verdict, “a rational trier of fact could find all the essential elements of the crimes charged beyond a reasonable doubt. [Cit.]” Elrod v. State, 238 Ga. App. 80, 81-82 (517 SE2d 805) (1999). In this case, the evidence is sufficient to withstand Donaldson’s challenge. The 15-year-old victim testified in detail regarding the act of forcible sexual intercourse 45-year-old Donaldson perpetrated against her, after Donaldson first purchased a fifth of tequila which he shared with her. The victim testified that she attempted to push Donaldson off her and stated repeatedly “no,” “don’t,” and “stop.” She later told an outcry witness that “he made me do it.” Medical evidence showed that the victim’s inner thigh was bruised; her external genitalia were swollen and red, causing “irritation and pain”; and she suffered an internal vaginal abrasion consistent with trauma.

This Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 239 Ga. App. 608 (521 SE2d 654) (1999). On the record before us, a rational jury could find beyond a reasonable doubt the elements of the offenses with which Donaldson was charged.

2. Totally without merit is Donaldson’s next contention that the trial court charged the jury that “rape is forcible as a matter of law when the victim is under 16 years old.” No such charge was given. To the contrary, the trial court charged the jury that the State must prove the element of force. The trial court also charged the jury — correctly — that a female victim under the age of 16 is deemed by law to be incapable of consenting to an act of sexual intercourse. See State v. Collins, 270 Ga. 42, 43 (508 SE2d 390) (1998).

3. We find no error in permitting the “sexual assault nurse examiner” to testify as to what the victim told her regarding the incident. What the victim told the nurse was consistent with the victim’s trial testimony and, thus, was admissible as a prior consistent statement:

Where the veracity of a witness is at issue, and that witness is present at trial, under oath, and subject to cross-examination, that witness’ prior consistent out-of-court statement is admissible as substantive evidence of the matter asserted. [Cits.]

Rattansay v. State, 240 Ga. App. 165, 166 (1) (a) (523 SE2d 36) (1999). Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). We reject Donaldson’s contention that the veracity of the victim’s testimony was not at issue during trial and, thus, the nurse’s testimony was inadmissible as a prior consistent statement. The entry of Donaldson’s “not guilty” plea placed the veracity of the victim and her version of events at issue. Rattansay v. State, supra at 166 (after the victim testified at trial, her prior statement supporting an element of the charge was admissible as substantive evidence under Cuzzort).

4. Next Donaldson contends that the trial court erred by failing to merge for sentencing purposes his conviction on Count 3 for aggravated child molestation into his conviction on Count 1 for rape. We are compelled to agree.

A crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law. A crime is so included when “ [i] t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). Where a victim is under the age of consent, “the offense of child molestation may be included as a matter of fact in an indictment charging the offense of rape.” (Citations omitted.) Pruitt v. State, 258 Ga. 583, 589 (13) (e) (373 SE2d 192) (1988); Caldwell v. State, 263 Ga. 560, 562 (2) (436 SE2d 488) (1993).

Here, it is undisputed that there was but one act of forcible sexual intercourse and that both the rape count and the aggravated child molestation count of the indictment are in fact based upon the same, single act of forcible sexual intercourse against “a female child under the age of 16 years.” See Andrews v. State, 200 Ga. App. 47 (406 SE2d 801) (1991). Further, “[t]he evidence at trial established that the injuries sustained as a result of the rape were the same injuries as those specifically alleged in the indictment as the basis for the aggravated child molestation charge.” Caldwell v. State, supra at 562. Under the evidence and the offense as charged, the forcible rape was both the act and the cause-in-fact of the injuries that formed the basis for the aggravated child molestation. The proof of one necessarily proved the other. See OCGA § 16-1-7 (a) (1). While it was proper to prosecute Donaldson for both rape and aggravated child molestation, “he should have been convicted and sentenced only for the rape. Accordingly, [Donaldson’s] separate conviction and sentence for aggravated child molestation must be vacated.” (Citations omitted.) Caldwell v. State, supra at 562-563.

5. Finally, Donaldson contends that his 1990 guilty plea to possession of cocaine offered in aggravation of sentence under Counts 1 and 4 of the indictment was considered improperly by the trial court. Donaldson alleges that he entered the plea without being advised of the rights he was waiving, as required by Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). In support of this contention, Donaldson shows that the transcript of the guilty plea hearing did not include an articulation of the Boykin rights and Donaldson’s waiver thereof.

A plea of guilty that is invalid under Boykin may not be used to enhance punishment in a subsequent trial. Under the recent Supreme Court of Georgia decision ofd Nash v. State, 271 Ga. 281 (519 SE2d 893) (1999), when a defendant charged with a noncapital crime collaterally attacks a prior guilty plea introduced in aggravation of sentence, a series of “shifting” burdens ensues.

(a) First, the State has the initial burden “to prove both the existence of the prior guilty pleas and that the defendant was represented by counsel.” (Citations omitted.) Nash v. State, supra at 285. In this case, the State met such burden.

(b) Thereafter, the burden shifts to the defendant to affirmatively show any irregularity with regard to the entry of the prior plea. A mere “naked assertion” by the defendant that his plea was not made knowingly and intelligently is insufficient to affirmatively show an irregularity in the entry of the plea. Nash v. State, supra at 285. A defendant can, however, meet this burden by producing:

some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea. Defendant can attempt to meet his burden of production with a transcript, with testimony regarding the taking of the plea, or with other affirmative evidence.

(Citation and punctuation omitted.) Id. Absent such affirmative showing, a trial court is entitled to rely on a “presumption of regularity” with regard to the plea process. Id.; Rutledge v. State, 237 Ga. App. 390, 394 (7) (515 SE2d 1) (1999).

In this case, Donaldson met his burden to affirmatively show a “procedural irregularity in the taking of the plea,” since the guilty plea transcript did not establish that Donaldson was informed of the Boykin rights and knowingly waived them by the entry of his plea; thus, the transcript was not procedurally “perfect.”

(c) Once a defendant demonstrates an irregularity in the plea process, e.g., if the transcript of the prior plea is “anything less than a ‘perfect’ transcript,” Boykin v. Alabama, supra, the burden then shifts back to the State. At this point, the State must:

show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary. Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764) (1975).

(Punctuation omitted.) Barber v. State, 231 Ga. App. 176, 177 (498 SE2d 758) (1998). In this case, the State failed to meet — or even recognize — such burden.

The evidentiary hearing on Donaldson’s collateral attack of his 1990 guilty plea was incomplete, and thus, the trial court’s consideration of such plea in aggravation of sentence was premature. Accordingly, we vacate Donaldson’s sentences under Counts 1 and 4 of the indictment and remand this case to the trial court for a resentencing hearing wherein the “shifting” burdens of Nash v. State, supra, are recognized and followed. By this opinion, we do not preclude the imposition of sentences identical to the ones we now vacate under Counts 1 and 4 of the indictment, should the State meet its burden to show that Donaldson knowingly and voluntarily entered his 1990 guilty plea after being fully apprised of his rights, as required by Boykin.

Judgment affirmed as to Counts 1 and 4. Sentences on Counts 1, 3, and 4 vacated. Case remanded for resentencing on Counts 1 and 4 in a manner consistent with this opinion.

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

Decided May 18, 2000.

Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

       The State indicted Donaldson for the offense of forcible rape, charging him with the perpetration of the single offense in two different ways under Counts 1 and 2 of the indictment. The jury convicted on both, and Count 2 was merged into Count 1 for sentencing purposes. Thus, one conviction for rape is before this Court on appeal.

       “The testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8.

       “The fact that a victim is under the age of consent may supply the ‘against her will’ element in a forcible rape case since it shows that the victim is incapable of giving legal consent.” State v. Collins, supra at 43.

       Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.
      (Citations omitted.) Boykin v. Alabama, supra at 243 (5). See also Parke v. Raley, 506 U. S. 20 (113 SC 517, 121 LE2d 391) (1992).

        Nash v. State, supra at 285. A “perfect” plea transcript is one that demonstrates “defendant’s prior guilty plea was informed and voluntary, and made with an articulated waiver of the three Boykin rights. [Cit.]” Id. See footnote 4, supra, for the “three Boykin rights.”

       In the court below, the State alluded to the possibility of calling Thomas Herndon, the attorney who represented Donaldson during the entry of his 1990 guilty plea, in order to affirm that Donaldson knowingly and voluntarily entered his plea after being made fully aware of his Boykin rights. The State’s burden “to fill a silent record” may be met under such circumstances. See Cazanas v. State, 270 Ga. 130, 131-132 (508 SE2d 412) (1998); Bailey v. Baker, 232 Ga. 84, 86 (2) (a) (205 SE2d 278) (1974).


text:
    A00A1306.
    DODSON v. THE STATE.
    (534 SE2d 815)
   Eldridge, Judge.

A Floyd County jury found Timothy Dodson guilty of possession of cocaine and giving a false name. He appeals and raises a single enumeration of error challenging the sufficiency of the evidence introduced against him. We have reviewed the record, and finding the evidence sufficient, we affirm.

Viewed in a light to uphold the jury’s verdict, the evidence shows that the Rome police had been asked to patrol regularly in front of Gemini Club on East Main Street in Rome, in order to prevent a recurring problem with loitering. Gemini Club shares a parking lot with a game room, which is located on one side of the club, and a church, which is on the other side of the club.

At approximately 12:00 a.m. on October 7, 1998, Rome Police Officer Scott patrolled past Gemini Club. Officer Shipman provided backup in a separate vehicle. Scott exited his patrol car to disperse a large group that was loitering in the parking lot of the club. Appellant Dodson was part of the group. While Officer Scott dispersed the group, Dodson began to “slide behind the church to walk down the back side of the church area.” Scott testified that Dodson “was the only one going in the direction behind the church. I thought that was pretty strange.”

Scott followed Dodson and stopped him as he was going down a hill beside the church. The area was lit by streetlights on East Main and the lights in the parking lot of the church, club, and game room. Officer Scott approached Dodson and talked to him generally about the prohibition against loitering in the parking lot of Gemini Club. Officer Shipman had followed Officer Scott but remained several feet behind him. During the conversation between Scott and Dodson, Officer Shipman saw Dodson throw something to the ground. No one else was close to the area. Shipman approached Officer Scott and told him he saw Dodson drop something. Immediately after Dodson walked away from the conversation, the officers located the object less than a foot from where Dodson had been standing. The object was a rock of cocaine. Dodson, who had made his way back to East Main, was arrested. Upon arrest, Dodson told the officers that his name was “Christopher Johnson.”

During the defense case, Dodson called his cousin to the stand. He testified that he was with Dodson in the parking lot of Gemini Club on the night in question; that he witnessed the entire conversation between the police officers and Dodson; that Dodson had not thrown anything to the ground during his conversation with the officers; and that the path Dodson was on was well traveled.

To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused. OCGA § 24-4-6.

This does not mean that the state must exclude every possible hypothesis showing innocence, but any reasonable hypothesis showing innocence. Where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court. Thus, this court will not disturb its finding unless the verdict is insupportable as a matter of law. If the totality of the evidence is sufficient to connect defendant to possession of drugs, even though there is evidence to authorize a contrary finding, the conviction will be sustained. Singleton v. State, 194 Ga. App. 5, 6 (389 SE2d 496) (1989).

(Citations and punctuation omitted; emphasis in original.) Blair v. State, 216 Ga. App. 545, 546-547 (455 SE2d 97) (1995).

Here, the jury heard Officer Shipman’s testimony that he saw Dodson drop the cocaine and that there was “no doubt” in his mind that “what I picked up was what he [Dodson] dropped.” The jury also heard Dodson’s evidence that (1) Dodson did not drop any cocaine during his conversation with the police officers; and (2) the path behind the church was well traveled, thereby raising the inference that someone else could have left the cocaine on the path. The jury rejected Dodson’s theory of defense. See Smith v. State, 235 Ga. App. 223, 226 (510 SE2d 295) (1998). And since the totality of the evidence is sufficient to connect Dodson to possession of the drugs, such evidence is sufficient to sustain the jury’s verdict. Blair v. State, supra at 546-547; Smith v. State, supra at 226; Eason v. State, 234 Ga. App. 595, 597 (507 SE2d 175) (1998).

Decided May 18, 2000.

William H. Newton III, for appellant.

Tambra P. Colston, District Attorney, John F. McClellan, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

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