text:
    A00A1532.
    BOLICK v. THE STATE.
    (536 SE2d 242)
   Eldridge, Judge.

Michael Jason Bolick appeals pro se from the denial of his motion for new trial, which followed his May 1998 convictions for burglary, kidnapping, kidnapping with bodily injury, false imprisonment, robbery, aggravated battery, and aggravated assault. In a comprehensive order, the trial court specifically considered and rejected each of the errors enumerated in Bolick’s motion for new trial. On appeal, without challenging the sufficiency of the evidence presented, Bolick raises the same enumerations of error. As the trial court’s conclusions were supported by the record and the applicable law, we affirm.

The relevant facts, viewed in the light most favorable to the jury’s verdict, are as follows: On November 12, 1997, Bolick went to the victim’s home in Cartersville, Bartow County. He had previously done some repair work on her home, and she recognized him from those encounters. Bolick went to the victim’s home with the intention of robbing her so that he could get money for drugs. However, he pretended to be interested in puppies that the victim previously had offered to him. The victim had no more puppies available but offered to call Bolick if another dog became available. After the victim thought Bolick had left, he rang her doorbell again, supposedly to give her a phone number where he could be reached. While she wrote down the number, Bolick suddenly grabbed the victim around the neck from behind. He bound her hands behind her back with two sets of handcuffs; during his brief absence, he had retrieved the handcuffs from his truck. Bolick choked her and dragged her through the house to the bedroom. Bolick “threw” the victim on the bed and “ripped” her jeans and boots off.

The victim told Bolick that her mother-in-law was going to arrive at any time. Bolick threw the victim to the floor and “hog-tied”, her. He dumped the victim’s purse onto the floor and forced her to find her checkbook and license. Bolick then dragged the victim to the bedroom closet and left in his truck with some of the victim’s cash. The victim was able to untie her feet and escaped out a bathroom door.

During the assault, however, Bolick caused the victim to suffer multiple injuries, including a lacerated and broken nose, a fractured eye socket, and severe swelling and bruising of her face and neck. The victim’s treating physician testified that her injuries were not consistent with those suffered when one simply falls down but were the type seen when someone is:

in a car wreck or they have a high-speed or even a medium-speed impact into a steering wheel or dashboard, some peopie who get hit real hard with a baseball or a baseball bat or get in a fight, fall off a roof or a ladder or whatever. It’s what we call more of an accelerated injury, because those bones don’t, especially the eye socket, don’t break very easily.

The victim also suffered lacerations from the handcuffs, which resulted in permanent scars on her wrists and forearms.

1. In his first enumeration, Bolick asserts that he was denied the effective assistance of trial counsel.

To establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Bolick] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable. In addition, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citation and punctuation omitted.) Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999).

(a) Bolick alleges that his trial counsel failed to interview two relatives who expressed interest in serving as character witnesses. It is undisputed that neither witness had any firsthand knowledge about the crimes at issue herein. Although counsel did not recall whether he and Bolick specifically discussed the use of character witnesses, counsel testified that he would have advised against presenting witnesses to testify solely of Bolick’s good character. Counsel expressed his concern about opening the door to allow the prosecution to introduce evidence of Bolick’s previous criminal convictions, including burglaries and forgeries, which “we certainly did not want the jury to know about.” Bolick’s father admitted that counsel had recommended against the use of character witnesses for this reason.

The decisions on which witnesses to call, whether and how to conduct cross-examination, which jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client. Trial counsel’s strategic decisions made after thorough investigation are virtually unchallengeable.

(Citations omitted.) Teat v. State, 237 Ga. App. 867, 869 (2) (516 SE2d 794) (1999). After hearing counsel’s testimony, the trial court determined that counsel’s decision regarding these character witnesses was “a strategic determination which falls well within [the] realm of ‘reasonably effective assistance.’ ” See id.; Strickland v. Washington, supra. The record supports this finding.

(b) Bolick also claims that counsel was ineffective for failing to file pre-trial discovery motions. This enumeration lacks merit. Counsel testified that he did not file such motions because the district attorney maintains an “open file policy; and so by not electing or opting into formal discovery, we had the ability to go through the state’s file and then read everything contained in the file.” As such, the trial court’s determination that counsel was not ineffective due to this strategic decision is supported by the record.

(c) Bolick asserts on appeal that counsel should have filed a motion for a change of venue but fails to demonstrate any basis for such motion. In order to support a motion for a change of venue, Bolick had the burden to demonstrate “(1) that the trial’s setting was inherently prejudicial or (2) that the jury selection process revealed actual prejudice to a degree that rendered a fair trial impossible. [Git.]” Brady v. State, 270 Ga. 574, 575 (3) (513 SE2d 199) (1999).

Although two jurors admitted during voir dire that they knew the victim, both stated that they would be able to consider the case solely on the evidence presented and to reach a fair verdict. Further, the fact that the victim in this case was related to “prominent” members of the legal community does not, in and of itself, require a change of venue. See Walker v. State, 223 Ga. App. 21 (476 SE2d 801) (1996). As such, we uphold the trial court’s finding that counsel was not ineffective for failing to file a change of venue motion.

(d) Bolick claims trial counsel should have asked that a prospective juror be removed for cause because of her response to his counsel’s question “is there any reason that anybody on this panel, if possible, would just prefer not to serve on this case?” The prospective juror responded that “I don’t have no open mind, and I forget what all happened. I went to a psychiatrist one time, and she told me I don’t concentrate.” According to Bolick, the juror should have been disqualified under OCGA § 15-12-163 (b) (3), because she suffered from a mental illness. There is no merit to this contention. The simple fact that an individual makes one visit — or multiple visits — to a psychiatrist does not per se disqualify that individual from jury service due to mental illness. Further, this juror did not affirmatively respond when her panel was asked, during the qualification stage of voir dire, whether she had already formed an opinion, held any biases against the parties, or could fairly and impartially decide the case. See OCGA § 15-12-164 (a) (1)-(3). As such, Bolick has failed to demonstrate a basis upon which this prospective juror should have been removed from the panel for cause. See Harris v. State, 178 Ga. App. 735, 736 (344 SE2d 528) (1986). Counsel cannot, therefore, be deemed ineffective for failing to move for such disqualification.

(e) Bolick argues that counsel was ineffective for failing to object (i) to the State’s request to allow Detective Bill Carlisle to remain at the State’s table after the rule of sequestration was invoked and (ii) when Carlisle was allowed to testify after other witnesses for the State. Immediately prior to presenting its first witness, the State moved to sequester the witnesses but requested permission to allow Carlisle to remain at the table. When asked why he did not object to Carlisle’s presence in the courtroom, counsel stated that, based upon his experience and the facts of this case, he did not feel that Bolick would have been prejudiced in any way by Carlisle’s presence at the prosecutor’s table.

The trial court found that counsel’s failure to object did not constitute ineffective assistance and further stated in its order that it would have utilized its discretion to overrule such objections. See McKenzie v. State, 249 Ga. 582 (1) (292 SE2d 692) (1982). This Court finds that (i) the trial court’s finding was not clearly erroneous, and (ii) Bolick has failed to demonstrate that the trial court’s decision to allow Carlisle to remain in the courtroom without testifying first was an abuse of discretion, particularly in light of the fact that Bolick subsequently admitted to every act for which he eventually was sentenced.

(f) According to Bolick, trial counsel “deliberately failed to establish a defense by intentionally limiting his cross-examination of state witnesses” and “failed to address important and critical issues . . . which were vital to [the] defense.”

(i) When questioned during the motion hearing, counsel testified that he could not mount a “traditional defense,” because Bolick admitted that he committed most of the offenses in the indictment. Therefore, counsel feared that intense cross-examination of the victim would “antagoniz[e] the victim in the eyes of the jury because there was very little mitigation to present to the jury.” As to the cross-examination of the other witnesses, counsel testified that he felt the most effective way of dealing with some of them was not to “highlight” or “reiterate” their testimony through cross-examination, but to “get them off [the stand] as quickly as possible.” After reviewing the trial transcript, the trial court found that counsel’s performance clearly did not fall below the level of reasonable professional assistance. This finding is supported by the record.

(ii) Bolick also claims that counsel failed to address an “important or critical issue” to his defense, i.e., alleged inconsistencies in the victim’s statement to the police and her trial testimony regarding whether she remembered how she received her injuries.

The victim gave a statement to police three days after the attack, during which the following exchange occurred: “[Victim] I do not remember what happened to my face I don’t know. . . . [Detective Carlisle:] You don’t know if he hit you, kicked you or what? [Victim:] I have no idea.” However, at trial, the victim repeatedly asserted that she did not lose consciousness and that her facial injuries were caused when Bolick “bashed” her face into the carpet before he dragged her into the closet.

Bolick asserts that this issue is critical to his defense based upon his testimony that the victim received the injuries when she passed out after he choked her. According to Bolick, counsel was ineffective due to his alleged failure to cross-examine the victim regarding her statements to police. However, the trial court found that counsel’s performance demonstrated “sound trial strategy. . . . [I]n choosing not to attack the victim with slight, seeming inconsistencies between the statement and her testimony, [counsel] did not fall below the wide range of reasonable professional assistance required by the Constitution.” (Punctuation omitted.) This conclusion is not clearly erroneous and is, therefore, affirmed.

Further, pretermitting the issue of the reasonableness of counsel’s actions, the specific method of causation of the victim’s injuries is an issue only as to Count 9 of the indictment, aggravated assault. As this count was merged into Count 8 for sentencing purposes, Bolick is unable to demonstrate any harm resulting from counsel’s alleged ineffectiveness as to this issue. See Griffin v. State, 265 Ga. 552, 554 (6) (458 SE2d 813) (1995).

(g) In response to Bolick’s assertion that counsel was ineffective for failing to request jury instructions on simple assault and theft by taking, we note that both instructions were, in fact, given by the trial court. Therefore, this enumeration is without merit.

(h) Finally, Bolick claims that counsel’s closing argument was prejudicial toward him in that it inflamed the jury and weakened his defense. At the motion for new trial hearing, however, counsel explained that:

[wjhat we were trying to do is acknowledge, because he acknowledged wrongdoing, we were trying to concede or acknowledge that there were terrible things that happened and that there were reasons why the jury certainly could be enraged by what occurred; but our theory here was that the state had gone overboard in drafting this indictment. . . . [Based on Bolick’s admissions on the stand,] there were certain things that we had to concede and, you know, it’s always better, I think, to raise those issues rather than appear to be ignoring them.

Based upon this explanation, the trial court found that counsel’s closing argument embodied a strategic decision that did not rise to the level of ineffective assistance. See Mize v. State, 269 Ga. 646, 655 (11) (501 SE2d 219) (1998). Having reviewed the record, we agree with this finding.

In sum, the trial court’s determination that Bolick was not denied the effective assistance of counsel is supported by the record and, therefore, affirmed.

2. In his second enumeration of error, Bolick claims he was denied due process of law when the State suppressed the victim’s November 15, 1997 statement to police which “clearly contained favorable evidence” to the defense, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). We agree with the trial court’s determination that there is no support for Bolick’s assertion.

In order to prevail on a Brady claim, [Bolick] must show: that the State possessed evidence favorable to the defendant; the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

(Citation and punctuation omitted.) Mize v. State, supra at 648-649. The State’s affirmative duty to disclose does not attach, however, unless the evidence is “clearly exculpatory.” Pontoon v. State, 177 Ga. App. 868 (341 SE2d 505) (1986). In this case, the State could hardly have been charged with recognizing the evidence at issue, which involved specific details of choking, dragging, kidnapping, handcuffing, etc., as “clearly exculpatory.” There was no error.

Further, at the motion for new trial hearing, the State testified that the victim’s statement to police had been requested on January 21, 1998, and placed into the file months prior to the May 1998 trial. Counsel testified that he reviewed the file several times before trial and was familiar with the victim’s statement. The trial transcript showed that defense counsel cross-examined the victim about the possibility that her injuries may have been caused inadvertently, e.g., by striking the bedpost while being dragged to the floor or while unconscious. Counsel also cross-examined the victim about another portion of her statement to police, i.e., her recollection of statements allegedly made by Bolick during the attack. As such, the record demonstrates that the State did not suppress the victim’s statement, as counsel clearly had access to the statement prior to trial.

3. Bolick also contends that the State knowingly presented false testimony by the victim and then allowed the testimony to go uncorrected. He points to an inconsistency between the victim’s statement to police and her trial testimony about whether she could remember how she received her facial injuries. Having reviewed the record, however, we affirm the trial court’s finding that Bolick has failed to present any evidence that the State knowingly put up false testimony. This enumeration is without merit.

4. Bolick’s claim that the State should have produced Detective Carlisle as its first witness has been considered and rejected. See Division 1 (e), supra.

5. Bolick challenges the State’s closing argument, wherein he claims the State made several improper remarks with the intention of playing on the jurors’ emotions. Specifically, Bolick complains about the prosecutor’s statement that Bolick appeared to be a nice person, but “don’t let him try to trick you by his appearance like he tried to do to [the victim].” The prosecutor also raised the possibility that Bolick may have murdered the victim if she had been unable to escape. Bolick had already admitted, however, that the fact that the victim escaped probably saved her life.

“A prosecutor is permitted to argue inferences from the evidence, even if such inferences are remote, illogical or unreasonable.” (Citations and punctuation omitted.) Crews v. State, 226 Ga. App. 232, 236 (5) (b) (486 SE2d 61) (1997). See also Mency v. State, 228 Ga. App. 640, 648 (2) (i) (492 SE2d 692) (1997). Under the egregious circumstances of this case, this Court finds that the State’s arguments were logical, reasonable inferences from the evidence presented, including Bolick’s own admissions.

6. Bolick’s claim that the trial court erred in failing to remove a potential juror for cause has been considered and rejected. See Division 1 (d), supra.

7. Bolick contends that the trial court erred when it failed to instruct the jury on the defense of “authorized entry” for the burglary charges. Bolick was charged with two counts of burglary: Count 1 — remaining in the dwelling of another without authority with intent to commit a theft therein, and Count 2 — entering without authority with intent to commit a theft therein. Count 2 was merged into Count 1 for sentencing purposes.

Bolick alleges that he was invited into the victim’s home prior to the assault, an assertion in direct contradiction to the victim’s testimony. It is undisputed, however, that Bolick remained inside the victim’s home without authority during the attack. Therefore, the facts did not support a charge of authorized entry as to Count 1, and he was guilty of burglary thereunder. Since Count 2 was merged into Count 1, any failure to charge as to authorized entry was harmless.

Further, the trial court fully charged the jury on the elements of burglary, including the requirement that the defendant enter or remain without authority. The jury charge, viewed as a whole, was sufficient to fully apprise the jury of each requirement for finding Bolick guilty of burglary beyond a reasonable doubt. There was no error.

8. In a similar vein, Bolick asserts that the trial court erred when it failed to instruct the jury on “accident and misfortune,” contending that it was his sole defense to the charge of kidnapping with bodily injury, Count 3. The “accident or misfortune” to which Bolick refers is his assertion that, while dragging the victim across the floor, he “accidentally” choked her to the point where she lost consciousness and fell, face first with her hands cuffed behind her back, landing with a “loud thump when she hit the ground.” Apparently, according to Bolick, it was the fall, not any affirmative act like punching, kicking, or hitting as described by the victim, that caused the substantial facial injuries which form the “bodily injury” portion of Count 3.

OCGA § 16-2-2 provides that a person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence. The defense of accident is an affirmative defense. The essence of the defense of accident is that the defendant’s act is not intentional.

(Citations and punctuation omitted.) Mansfield v. State, 214 Ga. App. 520, 521 (1) (448 SE2d 490) (1994). See also Brooks v. State, 262 Ga. 187, 188-189 (3) (415 SE2d 903) (1992). Therefore, even if Bolick’s assertions as to how the victim was injured were true, such facts would not support a jury instruction on accident or misfortune. There was no error.

9. Bolick claims that the trial court erred when it denied his oral request for a presentence investigation prior to sentencing. Bolick, however, had been convicted of kidnapping with bodily injury, which carries a minimum life sentence. OCGA § 16-5-40 (b). Although “[a] court is required to conduct a presentence hearing in a felony case under OCGA § 17-10-2 (a)[,] . . . because the sentence which the court imposed was the statutory minimum sentence under OCGA § [16-5-40 (b)], the court did not err.” Edwards v. State, 219 Ga. App. 239, 240 (1) (464 SE2d 851) (1995).

10. In his final enumeration, Bolick alleges that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal search and seizure of his truck.

When reviewing a trial court’s decision on a motion to suppress, this [C]ourt’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations and punctuation omitted.) Turner v. State, 233 Ga. App. 413 (1) (504 SE2d 229) (1998).

In this case, the following evidence was presented at the hearing on Bolick’s motion to suppress: the victim specifically identified Bolick as her attacker by name and through a photographic lineup and described the truck he used to get to her home before the attack. During their investigation of that attack, police officers discovered that Bolick’s employer had contacted the Canton Police Department and reported that Bolick had stolen the truck; the employer claimed that Bolick paid for it with “fictitious” bank papers. Armed with this information, police officers went to Bolick’s mother’s home, where they could see a truck matching the victim’s and employer’s descriptions from the road in plain view. The truck was behind the house and parked so that the license tag was hidden against the wall. Police officers seized the vehicle as evidence of both crimes and, during an inventory search, found documents with Bolick’s name on them.

After hearing this evidence, the trial court determined that the seizure of the vehicle was supported by probable cause, based upon the fact that the vehicle had been reported stolen and was suspected as having been involved in a violent crime. This finding is supported by the evidence and is not, therefore, clearly erroneous. An inventory search is allowed pursuant to such seizure. See Evans v. State, 216 Ga. App. 21, 24 (2) (453 SE2d 100) (1995). The denial of Bolick’s motion to suppress is affirmed.

Decided June 22, 2000.

Michael J. Bolick, pro se.

T. Joseph Campbell, District Attorney, Pamela D. Brophy, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Some of the convictions were merged for sentencing purposes.

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

       The checkbook and license were found on November 14,1997, by a postman in a box of mail in Cartersville, Georgia.

       In Count 9, Bolick was charged with aggravated assault in that he made “an assault upon the [victim] with an unknown solid object which when used offensivley [sic] against a person, is likely to result in serious bodily injury, to wit: by striking said victim about her face in an unknown manner with said unknown solid object.”


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A1587.
    GARY v. THE STATE.
    (536 SE2d 220)
   Johnson, Chief Judge.

Samuel Gary was indicted for burglary. The state offered to recommend that the judge sentence Gary to serve five years in prison and three years on probation if Gary pled guilty to the charge. Gary rejected the offer and instead pled not guilty and demanded a speedy trial. The case was tried before a jury, which found Gary guilty of the burglary. Because Gary had four prior felony convictions, the trial judge sentenced him as a repeat offender under OCGA § 17-10-7 to serve ten years in confinement followed by ten years on probation.

Gary moved for a new trial, claiming that his trial counsel had been ineffective in failing to inform him that if he were sentenced as a repeat offender for this fifth felony, then under OCGA § 17-10-7 (c) he would not be eligible for parole and would have to serve the entire term of confinement imposed by the judge. Gary claimed that had he known he would not be eligible for parole, he would have accepted the state’s plea bargain offer and would not have proceeded to trial.

The trial court denied the motion for a new trial. Gary appeals from that denial, reasserting his claim that his trial counsel was ineffective in failing to inform him of the consequences of a repeat offender sentence. We agree with the trial court’s finding that the claim is without merit.

Contrary to Gary’s claim, the evidence presented at the motion for a new trial hearing did not require the trial court to find that Gary’s counsel failed to fully inform him of the consequences of a repeat offender sentence. The attorney testified that before trial he spoke with Gary two separate times about the state’s plea bargain offer and each time he explained to Gary that if he were sentenced as a recidivist, he would have to serve every day of the sentence imposed by the judge. The attorney further testified that on the morning of trial, when the prosecutor served them with the state’s notice to seek recidivist sentencing, he and Gary again discussed the ramifications of a recidivist sentence.

Decided June 22, 2000

Anna Blitz, for appellant.

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

Gary first testified that his attorney could have talked to him about a recidivist sentence, but that he simply did not remember the conversation. Later, Gary changed his testimony and claimed that upon further reflection he did not believe his lawyer had told him about recidivist punishment. Based on the testimony given by Gary and his attorney, the trial court was authorized to find that Gary was fully informed of the risks of a recidivist sentence and was afforded effective assistance of counsel.

Moreover, even if the evidence demanded a finding that Gary’s attorney failed to inform him he would be ineligible for parole if sentenced as a recidivist, the Supreme Court has expressly held that such a failure does not amount to ineffective assistance of counsel. The Court has ruled that ineligibility for parole does not lengthen a sentence but is merely a legislatively imposed collateral effect on a sentence, and there is no requirement that a defendant be informed of such a collateral consequence. “Accordingly, counsel’s failure to advise the defendant of the collateral consequences . . . cannot rise to the level of constitutionally ineffective assistance.” Thus, in the instant case, even if Gary’s attorney did not inform him of the consequences of being sentenced as a repeat offender, Gary was not denied effective assistance of counsel.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       See Ellis v. State, 240 Ga. App. 498, 501 (1) (b) (523 SE2d 914) (1999).

        Williams v. Duffy, 270 Ga. 580, 582 (1) (513 SE2d 212) (1999).

       Id. at 581 (1).

       Id. at 582 (1).

       See Mann v. State, 240 Ga. App. 809, 810 (1) (b) (524 SE2d 763) (1999).


author: Eldridge, Judge.

text:
    A00A1671.
    HUNT v. THE STATE.
    (536 SE2d 251)
   Eldridge, Judge.

Gregory Hugh Hunt was tried in the Superior Court of Gwinnett County on an accusation charging him and his co-defendant, Dexter Bernard Freeman, with three counts of first degree forgery. The related facts, viewed in a light to uphold the verdict, are as follows:

At approximately 4:00 p.m. on June 24, 1997, Freeman drove up to the drive-through teller at Commercial Bank of Georgia in Lawrenceville. He pulled into an available booth farthest from the teller window. Appellant Hunt was the sole passenger in the car. Freeman and Hunt were laughing, and Freeman stated to the teller that “he had been looking for it [the bank] for awhile.” Freeman then placed three checks from the same payor made out to three different payees into the transaction tube; placed three driver’s license identifications (“IDs”) from the payees to whom the checks were made out into the transaction tube; placed the tube into the vacuum sender; and sent the items to the teller.

Upon receipt, the teller believed that one of the driver’s license IDs, i.e., “Manuel David, Jr.” (“Mr. David”), looked like Hunt and that one of the other driver’s license IDs looked like Freeman. However, the teller became suspicious because the third ID, with its related check, was for a female payee who was not present in the car with the two men. In addition, the teller did not recognize the payor’s signature line. A review of the payor’s signature card on file with Commercial Bank showed that the signature on the card did not match the one on the checks. A telephone call to the payor showed that the checks were stolen and forged. The police were called, and Hunt and Freeman were arrested. Neither the three driver’s license IDs nor their associated checks belonged to Hunt or Freeman.

A jury found Hunt not guilty under Counts 1 and 2 of the accusation regarding two of the three checks sent by Freeman through the transaction tube to the drive-through teller. But the jury found Hunt guilty of first degree forgery under Count 3 regarding the check made out to Mr. David, whose related driver’s license ID looked — to the teller — like Hunt. Held:

In pertinent part as related to this case, a person commits the offense of forgery in the first degree when, with intent to defraud, he knowingly possesses any writing in such a manner that the writing purports to have been made by another person, and he utters or delivers such writing. OCGA § 16-9-1 (a). In his sole enumeration of error, Hunt contends that the evidence was insufficient to prove that he ever possessed the check made out to Mr. David under Count 3 of the accusation or that he ever delivered such writing to the teller.

We agree that there is no direct evidence that shows Hunt possessed and delivered the checks. The direct evidence shows that co-defendant Freeman possessed and delivered all of the checks, and he, in fact, pled guilty to the charges. However, the inquiry does not end there. In this case, the trial court charged the jury on the law as it relates to “party to a crime.” Thus, the question becomes whether the circumstantial evidence is sufficient to prove beyond a reasonable doubt that Hunt was a party to Freeman’s crime. Bullard v. State, 263 Ga. 682, 684-685 (436 SE2d 647) (1993). On the evidence of record before this Court, the answer — as a matter of law — is no.

Under OCGA § 16-2-20 (b), a person may be found guilty as a party to a crime if that person:

(1) Directly commits the crime; (2) Intentionally causes some other person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact or because of legal incapacity; (3) Intentionally aids or abets in the commission of a crime; or (4) Intentionally advises, encourages, hires, counsels, or procures another to commit the crime.

Furthermore, although criminal intent may be inferred from conduct before, during, and after the commission of the crime, “presence at the scene of the crime is not sufficient to show that a defendant is a party to the crime under OCGA § 16-2-20. Even approval of the act, not amounting to encouragement, will not suffice.” (Citations omitted.) Bullard v. State, supra at 684-685.

Here, there was no evidence that Hunt intentionally aided, abetted, advised, counseled, encouraged, procured, or hired Freeman to possess and deliver the checks. Freeman did not testify at trial, and neither did Hunt. There was no evidence presented that Hunt touched the checks, touched the IDs, communicated with the teller about the checks or IDs, or communicated with Freeman about the checks or IDs. There was no evidence presented of conduct by Hunt either before or after the checks were delivered from which to infer Hunt even knew about Freeman’s crime, let alone aided and abetted in its commission. No statements were given to the police that either directly or impliedly connected Hunt to the forgeries. And Hunt was cooperative with the police at the time of arrest. The only evidence presented at trial was that Hunt was a passenger in the car at the time Freeman possessed and delivered the checks. Accordingly, on its face, the State’s evidence was insufficient to support the verdict. Crumpton v. State, 240 Ga. App. 422, 423 (1) (523 SE2d 624) (1999).

It appears to this Court that the only factual difference between the counts of the accusation for which the jury found Hunt “not guilty” and Count 3 of the accusation for which the jury convicted Hunt was the teller’s testimony that she thought Hunt looked like the picture ID of Mr. David — although Mr. David’s check was possessed and delivered solely by Freeman in the same manner and at the same time as the other two checks.

Decided June 22, 2000.

Mark E. Layng, for appellant.

As a matter of law, we find the teller’s testimony that she thought Hunt looked like the picture ID of Mr. David cannot, without more, support a finding that Hunt intentionally aided and abetted Freeman in the possession and delivery of the check made out to Mr. David. There is no evidence that Hunt was trying to pose as Mr. David or was even aware of the existence of Mr. David’s ID. Hunt’s picture taken at the time of arrest and the driver’s license ID of Mr. David are both in the record; there appears to be little similarity between the two men. The teller did not testify that Hunt suggested to her in any fashion that he was Mr. David. And the teller did not ask Hunt if he was Mr. David. Upon arrest, Hunt did not identify himself as Mr. David or otherwise mention that name. Thus, the teller’s mistaken belief that Hunt was Mr. David, based solely on her own unarticulated, unverified perceptions of Hunt, which perceptions were not initiated or supported by any action or averment on Hunt’s part, cannot serve to make Hunt an intentional party to Freeman’s possession and delivery of the check made out to Mr. David.

[T]he State had the burden of proving guilt. In a case such as this one, involving wholly circumstantial evidence, the law demands that 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.

(Citations and punctuation omitted.) Reid v. State, 212 Ga. App. 787, 789 (442 SE2d 852) (1994).

Here, the teller’s incorrect, unsupported assumption is not a proven fact of anything related to Hunt or his presence in Freeman’s car. Accordingly, such testimony cannot support a conviction based on circumstantial evidence. “The circumstantial evidence presented here was insufficient to exclude every other reasonable hypothesis save that of [Hunt’s] guilt, and his conviction must be reversed.” Reid v. State, supra at 789.

Judgment reversed.

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

Daniel J. Porter, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

       Freeman pled guilty to the offenses as charged and is not before this Court on appeal.

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


author: Ruffin, Judge.

text:
    A98A0501.
    WINGATE v. RIDGEVIEW INSTITUTE, INC.
    (536 SE2d 290)
    Decided June 23, 2000.

      Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellant.

      Troutman Sanders, Daniel S. Reinhardt, Jennifer K. Campbell, for appellee.
   Ruffin, Judge.

In Ridgeview Institute v. Wingate, the Supreme Court reversed this Court’s holding in Division 2 of Wingate v. Ridgeview Institute. In Division 2, this Court ruled that the trial court erred in granting summary judgment in favor of Ridgeview Institute on Wingate’s claim of false imprisonment. This Court concluded that Ridgeview failed to adhere to OCGA § 37-7-22, which governs the right of a voluntary patient to discharge himself from a treatment facility. The Supreme Court, on the other hand, held that this Court misconstrued OCGA § 37-7-22, and that Ridgeview did, in fact, adhere to the requirements set forth in that Code provision. Therefore, we now vacate our earlier opinion as to Division 2 and adopt the opinion of the Supreme Court as our own.

Wingate further alleged that, in failing to follow proper procedures under OCGA § 37-7-22, Ridgeview violated the Georgia Fair Business Practices Act. The trial court granted summary judgment to Ridgeview on this claim. In Division 3 of this Court’s earlier opinion, we reversed the trial court based upon our interpretation of OCGA § 37-7-22. In light of the Supreme Court’s opinion, however, the trial court properly granted summary judgment on the Fair Business Practices Act. Accordingly, we vacate our opinion in Division 3 and affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Blackburn, P. J., Eldridge, Ellington and Mikell, JJ, concur.

       271 Ga. 512 (520 SE2d 445) (1999).

       233 Ga. App. 649 (504 SE2d 714) (1998).

       Id. at 652 (3).


text:
    A00A0094.
    HOLLAND v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (536 SE2d 270)
   Ruffin, Judge.

David Holland appeals from the trial court’s order setting forth the amount of an attorney fee lien on certain insurance proceeds. For reasons discussed below, we affirm.

Many of the relevant facts of this case are discussed in Holland v. State Farm &c. Ins. Co. David and Ruby Holland sued State Farm’s insured for injuries David Holland sustained in an automobile accident. The Georgia Department of Medical Assistance (DMA) and Floyd Medical Center (FMC) asserted liens on David Holland’s cause of action pursuant to OCGA §§ 49-4-149 and 44-14-470. State Farm then filed an interpleader action seeking to determine the priority of the liens asserted by DMA and FMC. David Holland asserted a lien for attorney fees on the insurance proceeds pursuant to OCGA § 15-19-14 (b). The trial court in the interpleader action held, among other things, that the attorney fee lien was not asserted timely and was subordinate to the liens asserted by DMA and FMC. We reversed this ruling, holding that the lien was timely asserted and took priority over the DMA and FMC liens. Because the trial court did not receive evidence of the amount of the lien, we remanded the case so that it could “determine the amount of the lien.”

On remand, David Holland’s attorney filed a “Motion for Attorneys Fee,” seeking attorney fees and costs in the amount of $11,822.81 pursuant to a contingency fee contract with David Holland. Following a hearing, the trial court entered an order finding that “the sum of $2,000.00 for attorney fees, and $110.00 in costs is an appropriate award of attorney fees.” The court refused to apply the contingency fee contract, noting that “the insurer timely paid the entire insurance proceeds, $25,000.00, into the registry of the Court” and that “the majority of the time and expense in litigation in the case concerned the priority of the medical liens which was ultimately resolved against the Hollands.” David Holland appeals, contending that the trial court erred in refusing to calculate the amount of attorney fees pursuant to the contingency fee contract. However, he

failed to include a transcript of the hearing, at which the trial court heard evidence regarding the amount of attorney fees.

We have previously held that an attorney fee lien attaches only to “the fruits of the labor and skill of the attorney ... so long as they are the result of his exertions.” Furthermore, “[w]hile the statute safeguards an attorney’s right to a fee which has been earned, it does not control how the amount of the fee is determined.” Implicit in the trial court’s decision is a finding that State Farm’s payment of the insurance proceeds was not entirely the result of the attorney’s exertions on behalf of David Holland or the fruit of his labor and skill in prosecuting David Holland’s cause of action. In the absence of a transcript, we cannot say that such a finding was in error. We note that the contingency fee contract provided that a fee would be recoverable for funds recovered through “settlement or trial” of David Holland’s claim against the tortfeasor. State Farm paid the policy limits into the registry of the court in its own interpleader action, without admitting liability and without reference to any lawsuit filed by David Holland. Holland’s attorney admitted in the interpleader action that State Farm did not pay the funds pursuant to any settlement. Moreover, in the interpleader action, the attorney asserted that Holland “does not have to maintain a suit against the underlying tortfeasor if he does not want to do so. At this point in time, he does not want to do so.” Thus, according to the attorney, Ruby Holland was “the only person standing before this Court asserting an independent cause of action,” and the entire insurance proceeds should have been paid to her. Although, in our previous opinion, we rejected the argument that, because David Holland disclaimed any interest in pursuing an action against the tortfeasor, DMA and FMC had no lien on the funds, the statements by Holland’s attorney constitute an implicit admission that the funds were not recovered through his efforts in prosecuting David Holland’s claim against the tortfeasor. Under these circumstances, and in the absence of a transcript of the attorney fee hearing, the trial court’s order must be affirmed.

Judgment affirmed.

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

Decided June 23, 2000.

Rodney L. Mathis, for appellant.

Kinney, Kemp, Sponcler, Joiner & Tharpe, Wayne E. Brooks, Jr., F. Gregory Melton, for appellee.

       236 Ga. App. 832 (513 SE2d 48) (1999).

       Id. at 834 (3).

       Id.

       As an initial matter, we question whether David Holland is the proper party to appeal the trial court’s order. Only a party who has been “aggrieved” by a judgment has the right to appeal the judgment. In the Interest of B. R. W., 242 Ga. App. 232, 238 (3) (530 SE2d 5) (2000). It would appear that the one aggrieved by a ruling that an attorney fee lien does not extend to certain assets is the attorney, not the client. However, we are bound by the law of the case, since in our prior opinion we necessarily decided that David Holland had the right to appeal the trial court’s ruling. See Albany Fed. Sav. &c. Assn. v. Henderson, 198 Ga. 116, 134 (31 SE2d 20) (1944) (“a presumption of law exists that. . . this court of its own motion considered the question of its jurisdiction, and as between the parties the decisions became binding as the law of the case”); In the Interest of D. Q. H., 212 Ga. App. 271, 272-273 (441 SE2d 411) (1994).

       (Punctuation omitted.) Recoba v. State, 167 Ga. App. 447, 449 (306 SE2d 713) (1983).

        Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271, 274 (1) (496 SE2d 693) (1998).


text:
    A00A0317.
    BARNETT et al. v. THE STATE.
    (536 SE2d 263)
   Ruffin, Judge.

Following a jury trial, Christopher and Jonathan Barnett were convicted of armed robbery. Jonathan Barnett was also convicted of false imprisonment and criminal trespass. They both appeal, claiming that the evidence was insufficient and that the trial court erred in reopening the evidence and in refusing to give certain requested jury charges. For reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that Patrick Jordan, Sean Roberson, and the Barnetts gathered in Roberson’s house and decided to order Chinese food and hold up the delivery man. Jonathan Barnett called his mother to get the number for the restaurant, and Roberson then ordered about $45 worth of food for delivery to his house. The four discussed how to go about the robbery and decided that Roberson would answer the door, Jordan would have a gun, Christopher Barnett would stand in a hallway inside the house, and Jonathan Barnett would go outside and move the delivery man’s car. Roberson testified that his brother Dorion, who was also present in the house, got his mother’s gun from her car and that both defendants handled the gun before the delivery man arrived.

When the delivery man, Zhou Xing Zhao, arrived with the food, Sean Roberson answered the door. Roberson testified that, after Zhao handed him the food, “we all got scared” and Christopher Barnett said “just tell the man to leave.” Roberson told Zhao that he did not have any money. Jordan then pointed his gun at Zhao and told him to come inside the house. Roberson took Zhao’s money while Jordan threatened Zhao with the gun, and then Roberson hit Zhao on the head with a frying pan. During this time, Jonathan Barnett was outside the house, and Christopher Barnett was in the hallway inside the house.

Zhao dropped to the ground after being hit. Jonathan Barnett came back inside the house and helped Sean and Dorian Roberson drag Zhao to Zhao’s car and place him in the back seat. These three individuals then drove several blocks, with Sean Roberson driving and Jonathan Barnett giving him directions. Zhao testified that the individual in the back seat, presumably Dorian Roberson, was pointing a gun at his head. They stopped the car on a street, dragged Zhao out of the car, and left him lying next to a tree. The three then ran back to the Roberson residence and found Jordan and Christopher Barnett dividing up the cash from the robbery. Jordan, Sean Roberson, and the Barnetts received $50 apiece, and each in turn gave Dorian Roberson $5.

1. In two enumerations, both defendants claim that the trial court erred in reopening the evidence after the State rested. At the close of the State’s evidence, Christopher Barnett moved for a directed verdict. The trial court stated that the only evidence connecting the defendants with the crime was the uncorroborated testimony of an accomplice, Sean Roberson, who testified on behalf of the State. The prosecutor then moved to sever the cases and proceed against Christopher Barnett alone, but the trial court denied the motion. The prosecutor then asked to concede a directed verdict as to Jonathan Barnett and to proceed with trial against Christopher Barnett. The trial court did not rule on this request but had the following colloquy with the prosecutor, outside the presence of the jury:

The Court: Don’t you have other witnesses?
Prosecutor: We have a Co-defendant, Your Honor.
The Court: And, there’s a juvenile somewhere, a 14 year old. [Sean Roberson’s] brother. And, another Co-defendant? I mean, I don’t know what your problem is. . . . There is a Co-defendant that has pled guilty and gave a statement to me implicating these two Defendants.
Prosecutor: Mr. Patrick Jordan?
The Court: Yes. But, if you don’t want to call him — do you wish to rest?
Prosecutor: Your Honor, I’m still — we would call Patrick Jordan as a State’s witness.
The Court: You want to re-open?
Prosecutor: Yes, your Honor, with the Court’s permission.

The trial court then stated that it would exercise its discretion to reopen the evidence. Counsel for both defendants objected to reopening “because the State had rested and we had already . . . made the motion for directed verdict as a result of them resting.” The trial court overruled the objection, and the State called two additional witnesses, Jordan and Dorian Roberson.

Both defendants claim that the trial court erred in reopening the evidence. They do not contend that, upon a proper motion by the State, the court would have lacked the discretion to reopen the evidence. Rather, they complain that the State “made no motion of its own” to reopen the evidence and that the trial court acted partially in suggesting that the State reopen the evidence. The defendants did not, however, raise these objections at trial but simply objected on the ground that the State had already rested and they had already moved for a directed verdict. “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it.” Because the defendants did not object to reopening the evidence on either of the grounds asserted on appeal, these enumerations present no basis for reversal.

2. Both defendants challenge the sufficiency of the evidence with respect to their armed robbery convictions, arguing that there was no evidence presented to corroborate Sean Roberson’s testimony concerning their involvement in the robbery.

A defendant may not be convicted of a felony on the uncorroborated testimony of an accomplice. However,

it is not required that this corroboration shall of itself be sufficient to warrant a verdict, or that the testimony of the accomplice be corroborated in every material particular. Slight evidence from an extraneous source identifying the accused as a participator in the criminal act will be sufficient corroboration of the accomplice to support a verdict. The sufficiency of the corroboration of the testimony of the accomplice to produce conviction of the defendant’s guilt is peculiarly a matter for the jury to determine. If the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said, as a matter of law, that the verdict is contrary to the evidence.

The testimony of a second accomplice may satisfy the corroboration requirement.

Here, there was corroborating evidence connecting both defendants to the crime. Dorian Roberson testified that he was at his brother’s house along with both defendants and Jordan. He testified that he helped his brother and Jonathan Barnett place Zhao into the car and drive away. He testified that, upon returning to the residence, his brother, Jordan, and both defendants divided the money among themselves and gave him a share. This testimony was sufficient to connect both Jonathan and Christopher Barnett to the robbery and, thus, constituted sufficient corroboration of Sean Roberson’s testimony.

The defendants contend that the evidence shows at most that they were accessories after the fact, and not parties to the crime of armed robbery. However, Sean Roberson testified that both defendants participated in the planning of the robbery and handled the gun before the delivery man arrived. Jonathan Barnett obtained the telephone number for the restaurant. Both defendants gave Sean Roberson food orders to give to the restaurant, thus participating in inducing the victim to come to the house. Both defendants took their assigned stations before the delivery man arrived — Jonathan going outside and Christopher standing in the inside hallway. Both defendants admit in their appellate briefs that they were “present when the plan was talked about to rob the delivery man” and that they “knew that a robbery was going to take place.” Although

mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

Viewed in the light most favorable to support the verdict, the evidence of the defendants’ actions before and after the robbery was sufficient to show that both defendants were guilty of being parties to the crime of armed robbery.

3. Jonathan Barnett contends that the evidence was insufficient to support his conviction for false imprisonment. “A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” Barnett states that Zhao, who was apparently feigning unconsciousness when Barnett placed him in the car and took him to another location, “never expressed his will during this time as to where he wanted to go or not to go.” Thus, according to Barnett, “[t]here is no evidence that the acts of Appellant . . . were against the will of the victim.” We believe, however, that when a person is bashed on the head during an armed robbery, dragged outside, placed into the back of a car with a gun to his head, and driven to another location, where he is dragged out of the car and left for dead, the jury may reasonably infer that such acts were against the victim’s will.

4. Jonathan Barnett also contends that the evidence was insufficient to support his conviction for criminal trespass. Under OCGA § 16-7-21 (a), a person commits the crime of criminal trespass when he “knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.” Barnett does not deny that entering into and driving another’s automobile without his consent constitute an interference with his possession or use of the automobile. Instead, he claims that there was no evidence he did not have Zhao’s consent. As with the false imprisonment claim, this argument is at the core of absurdity, as there could not be the slightest doubt that Zhao did not consent to the use of his car in such a manner. When asked whether he “voluntarily let them drive his car,” Zhao responded, “I was dragging — I was so scared. I absolutely don’t want to resist.” The evidence was more than sufficient to support Barnett’s conviction of criminal trespass.

5. Defendants contend that the trial court erred in refusing to give their requested charge that

[i]f you believe that the Defendant conspired with one or more other persons to commit the crime alleged in this indictment, but that the Defendant voluntarily and completely renounced and abandoned all participation in the criminal endeavor prior to the commission of the offense, if any, then the Defendant would not be guilty of the offense and it would be your duty to acquit the Defendant.

“A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence.” The defendants’ requested charge was not a complete statement of the applicable law, as it failed to inform the jury that

[a] renunciation of criminal purpose is not voluntary and complete if it results from: (1) [a] belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or (2) [a] decision to postpone the criminal conduct until another time.

Because the defendants’ requested charge was not a complete statement of the applicable law, the trial judge did not err in refusing to give it.

6. Defendants claim that the trial court erred by not giving their requested charge on theft by receiving stolen property. However, “[a] defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending.” The defendants were not indicted for theft by receiving, and theft by receiving is not a lesser included offense of armed robbery. The trial court thus did not err in refusing to give the charge.

7. The trial court did not err, as defendants contend, by refusing to give their requested charge that “[p]resence at the scene of a crime, even when coupled with knowledge and approval not amounting to encouragement, is not sufficient to show that the Defendant is a party to a crime.” Although the court did not charge this exact language, it instructed the jury that a person is a party to a crime only if the person

a) directly commits the crime, or b) intentionally helps in the commission of the crime, or c) intentionally advises, encourages, hires, counsels or procures another to commit the crime, or d) intentionally causes some person to commit the crime under such circumstances that the other person is not guilty of any crime either in fact, or because of a legal incapacity.

Decided June 23, 2000

Robert L. Mack, Jr., for appellants.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellee.

The court also charged that mere presence at the scene of a crime is not sufficient to authorize conviction “unless the evidence shows beyond a reasonable doubt that such person committed the alleged crime or helped in the actual perpetration of the crime or participated in the criminal endeavor as a party to a crime.” Because the applicable principles were covered in the court’s charge, the court did not err in refusing to charge the exact language requested by the defendants.

8. The defendants argue that the trial court erred by not giving the following request to charge: “An accessory after the fact is not considered an accomplice to the underlying crime itself, but is guilty of a separate, substantive offense in [the] nature of obstruction of justice.” Although this charge is correct as an abstract statement of the law, the defendants were not charged with obstruction of justice, and the court fully instructed the jury on when a person may be considered a party to the crime. Accordingly, it was not error to refuse to give the requested charge.

Judgment affirmed.

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

       See Porter v. State, 224 Ga. App. 276, 278 (1) (b) (480 SE2d 291) (1997) (trial court has “wide discretion” in allowing State to reopen case after resting). See also Britten v. State, 221 Ga. 97, 101 (4) (143 SE2d 176) (1965).

       Neither of these objections has any merit, as it is well settled that a trial court has discretion to reopen the evidence after the State has rested and the defendant has moved for a directed verdict. See Porter, supra; Jackson v. State, 230 Ga. App. 292, 296-297 (7) (496 SE2d 315) (1998).

       (Punctuation omitted.) Arnold v. State, 236 Ga. App. 380, 383 (3) (511 SE2d 219) (1999).

       See Gulley v. State, 271 Ga. 337, 346 (11) (519 SE2d 655) (1999) (defendant waived claim of judicial partiality by failing to raise it at trial).

       OCGA § 24-4-8.

       (Citations and punctuation omitted.) Whitlock v. State, 239 Ga. App. 763, 764-765 (521 SE2d 901) (1999).

        Gaskin v. State, 221 Ga. App. 142 (1) (470 SE2d 531) (1996).

       (Punctuation omitted.) Mosier v. State, 223 Ga. App. 75, 76 (476 SE2d 842) (1996).

       OCGA § 16-5-41 (a).

       Zhao, who did not speak English, was questioned through an interpreter.

       Barnett notes that Sean Roberson claimed he drove Zhao away to protect him from Jordan. Barnett does not, however, point to any evidence that this was his own motivation. In any event, the fact that a gun was held to Zhao’s head inside the car, and that he was left for dead next to a tree, belies any claim of benevolent intent.

       (Punctuation omitted.) Dill v. State, 235 Ga. App. 265, 267 (2) (508 SE2d 739) (1998).

       OCGA § 16-4-5 (b). See generally Smith v. State, 157 Ga. App. 238, 239 (2) (276 SE2d 905) (1981) (indicating that charge on abandonment would be incomplete unless the court charged section of statute “defining] when a renunciation of criminal purpose is not voluntary and complete”).

       See Young v. State, 163 Ga. App. 507, 508 (3) (295 SE2d 175) (1982) (not error to refuse to give written request on defense of justification, where request was not complete statement of law); McCane v. State, 147 Ga. App. 730 (2) (250 SE2d 181) (1978); Green v. State, 240 Ga. App. 774, 777-778 (3) (525 SE2d 154) (1999). Defendants do not contend that renunciation of criminal purpose was their “sole defense,” since their primary defense was that they did not participate in the crime at all. See Willingham v. State, 235 Ga. App. 475, 477 (2) (509 SE2d 744) (1998).

        Belton v. State, 270 Ga. 671, 675 (6) (512 SE2d 614) (1999).

        Bethel v. State, 232 Ga. App. 82, 84-85 (2) (500 SE2d 595) (1998).

       Id.

       See Wheeler v. State, 236 Ga. App. 197, 199 (2) (511 SE2d 564) (1999).

       See Moore v. State, 240 Ga. 210, 212 (1) (240 SE2d 68) (1977).

       See Klinect v. State, 269 Ga. 570, 575 (9) (501 SE2d 810) (1998).


author: Pope, Presiding Judge.

text:
    A00A0369, A00A0370.
    NICHOLS et al. v. MAIN STREET HOMES, INC.; and vice versa.
    (536 SE2d 278)
   Pope, Presiding Judge.

Bonnie and Norman Nichols sued Main Street Homes, Inc. for damage resulting from water run-off after Main Street developed a tract upstream from their home. At trial, the Nicholses were awarded $125,000 in compensatory damages and $54,075.32 in attorney fees and litigation costs. But the trial court partially granted Main Street’s motion for judgment notwithstanding the verdict, striking the award of attorney fees and costs. The Nicholses appeal that ruling. Main Street filed a cross-appeal asserting that the trial court erred in denying its separate motion for new trial on the ground that the jury’s compensatory damage award was not supported by the evidence.

The record shows that the Nicholses operated a small organic produce farm on their property and had planned to use water from a stream that traversed the tract to irrigate their plants. Norman Nichols testified that he originally bought the property in 1984 because of the stream. The Nicholses’ stream originated from a spring located on property acquired by Main Street in 1993.

Main Street began developing its property into the Ashley Glen subdivision in the spring of 1994. In connection with the development, Main Street clear-cut all or most of the vegetation. They installed streets and roads and constructed storm sewers, which drained into a detention pond directly upstream from the Nicholses’ property.

The Nicholses presented evidence that after the construction began, the area around the stream experienced more accelerated erosion and increased water flow. The deepest point of the creek increased from between four and five feet to seven feet. In addition, mud, rock and heavy debris would wash down from the construction site. When it rained, Norman Nichols noticed silt and mud washing off the construction site into the stream and suspended silt in the water.

The Nicholses subsequently contacted both Cobb County and Main Street to see if the problem could be remedied. In response, Main Street put up a check dam and “riprap” on its property to slow down the volume of water, spent less than an hour cleaning out some of the silt on the Nicholses’ property after a flood and worked on the detention pond. In addition, the Nicholses petitioned the Cobb County Zoning Board for an eight-foot fence and a twenty-five-foot undisturbed buffer between the properties. These requests were granted.

Nevertheless, the Nicholses continued to experience problems with water quality, especially after a rain. The silt that Main Street had removed washed back into the stream and rock from the check dam also washed down. The Nicholses testified that following the construction they were not able to enjoy their property the way they did before. Nor could they use the water for their organic farming operation because they were concerned about chemicals washing off the subdivision lawns and street. Bonnie Nichols testified that you could sometimes see a film on the water and at times it would have a chemical smell. Despite continued discussions between the parties and their lawyers, the matter was not resolved, and litigation ensued.

Case No. A00A0369

1. The Nicholses first contend that the trial court erred in refusing to allow their attorney to testify as to the reasonableness of their attorney fees. The trial in this case was bifurcated as to the issue of attorney fees, and in the first phase of the trial, the jury was asked to determine only whether the Nicholses were entitled to attorney fees, but not to determine any amount. During the second phase of the trial, the parties were allowed to present evidence on the attorney fee issue. Norman Nichols testified that he and his wife had entered into a contingency fee arrangement with their attorney, and the fee agreement was placed into evidence. He also testified that he had incurred $4,075.32 in costs in connection with the litigation.

The Nicholses’ attorney then indicated that he would testify as to the reasonableness of the fee, but the trial court refused to allow the testimony. The trial court stated that the attorney could not testify because that would make him a fact witness, thus creating a conflict in his representation of the Nicholses. The Nicholses’ attorney excepted to the trial court’s ruling, and after the close of the case, the trial court allowed him to make a proffer of evidence on the issue.

It is well established that an attorney may testify as to the reasonableness of his own fee. See, e.g., Evans Toyota v. Cronic, 233 Ga. App. 318, 321 (2) (a) (503 SE2d 358) (1998); Ins. Co. of North America v. Allgood Elec. Co., 229 Ga. App. 715, 720 (3) (b) (494 SE2d 728) (1997); U-Haul Co. &c. v. Ford, 171 Ga. App. 744, 746 (5) (320 SE2d 868) (1984). Thus, it was error for the trial court to refuse the Nicholses’ counsel the opportunity to testify. And as discussed in Division 2 (b) below, because the trial court’s refusal to allow the testimony prevented the Nicholses from, presenting sufficient evidence of their fees, we cannot say the error was harmless.

2. The Nicholses also contend that the trial court erred in granting Main Street’s motion for j.n.o.v. as to the award of attorney fees. In reviewing the grant of j.n.o.v., we must view the evidence in the light most favorable to the party who obtained the jury verdict, and the standard of review is whether there is any evidence to support the verdict. Peters v. Hyatt Legal Svcs., 220 Ga. App. 398, 400 (1) (b) (469 SE2d 481) (1996).

(a) The Nicholses sought attorney fees on the ground of bad faith. They argue that evidence showed that Main Street continued the Ashley Glen development with knowledge that it was damaging their property, and that this evidence was sufficient to submit the issue of attorney fees to the jury.

Bad faith warranting attorney fees must arise out of the transaction on which the plaintiff’s claims are based. “It may be found in how defendant acted in his dealing with plaintiff.” (Citation and punctuation omitted.) CSX Transp. v. West, 240 Ga. App. 209, 211-212 (3) (a) (523 SE2d 63) (1999). In CSX Transp. v. West, we affirmed the trial court’s denial of j.n.o.v. on an award of attorney fees in a water run-off case. There we found that bad faith existed where the defendant failed to maintain drainage control despite its knowledge that the plaintiff’s property flooded as a result. Id. And in a recent case also involving claims arising from excessive storm water and sediment discharge, the Supreme Court of Georgia noted that “every intentional tort invokes a species of bad faith that entitles a person wronged to recover the expenses of litigation including attorney fees.” (Citations and punctuation omitted.) Tyler v. Lincoln, 272 Ga. 118, 122 (2) (527 SE2d 180) (2000).

Here, there was evidence to suggest that although Main Street took some steps to alleviate the run-off problem, it knew such steps were not working and, nevertheless, proceeded with its development of the property. We find this evidence was sufficient to submit the issue of attorney fees to the jury.

(b) But the evidence submitted to the jury as to the reasonableness of the fees was insufficient to sustain the jury’s award. The only evidence the Nicholses presented was the fee agreement and Norman Nichols’ testimony regarding the expenses of litigation. In order to recover for professional services, an attorney must prove the value of those services. Hsu’s Enterprises v. Hospitality Intl., 233 Ga. App. 309, 311 (2) (502 SE2d 776) (1998). And “[e]vidence of the existence of a contingent fee contract, without more, is not sufficient to support [an] award of attorney fees. [Cit.]” Id. Nor was Norman Nichols’ testimony sufficient to sustain the award. See City of College Park v. Pinchon, 217 Ga. App. 53, 56 (4) (456 SE2d 686) (1995).

Instead, evidence of the reasonableness of the fee arrangement is required, including evidence of “hours, rates or other indication of the value of the professional services.” Hsu’s Enterprises v. Hospitality Intl., 233 Ga. App. at 311 (2). Compare Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 817 (3) (423 SE2d 725) (1992). But here the trial court prevented the Nicholses’ attorney from presenting evidence as to the reasonableness of the fees. Under these circumstances, the trial court’s grant of j.n.o.v. must be reversed and the matter remanded for a new trial on the limited issue of the amount of attorney fees.

Case No. A00A0370

3. In its cross-appeal, Main Street argues that the evidence at trial was insufficient to support the jury’s compensatory damage award in the amount of $125,000. It notes that the only evidence of monetary damages came from Nelson Nunnally, a consultant on erosion and sediment control, who testified that it would take $27,000 to $28,000 to rebuild the stream to its original dimensions. But the Nicholses were not limited to recovery of those damages:

Decided June 23, 2000.

Jenkins & Burns, Brian M. Dubuc, for appellants.

Misner, Scott & Grate, Steven J. Misner, for appellee.

In a continuing, abatable nuisance case, the plaintiff is not limited to a recovery of rental value or market value; rather, he may recover any special damages whether the injury is of a temporary or a permanent nature. Unlawful interference with the right of the owner to enjoy possession of his property may be an element of damages. The measure of damages for “discomfort, loss of peace of mind, unhappiness and annoyance” of the plaintiff caused by the maintenance of a nuisance is for the enlightened conscience of the jury.

(Citations omitted.) City of Columbus v. Myszka, 246 Ga. 571, 573 (6) (272 SE2d 302) (1980). See also Arvida/JMB Partners v. Hadaway, 227 Ga. App. 335, 339-340 (2) (489 SE2d 125) (1997).

In addition to Nunnally’s testimony, the Nicholses presented evidence concerning their loss of enjoyment of the property and their inability to use the water from the stream for their organic produce operation. Moreover, the jury viewed pictures of the property before and after construction and viewed the site in person. This evidence gave the jury the opportunity to form an opinion as to the damages: “The jury, having viewed the premises by consent of the parties, were in a better position to form an opinion as to the damages alleged than is this court from the reported evidence alone.” (Citations and punctuation omitted.) Southern Mut. Investment Corp. v. Langston, 128 Ga. App. 671, 674 (5) (197 SE2d 775) (1973). See also Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (1) (321 SE2d 820) (1984). “The verdict of the jury, therefore, was not without evidence to support it,” and the trial court correctly denied Main Street’s motion for new trial. Southern Mut. Investment Corp. v. Langston, 128 Ga. App. at 674 (5).

Judgment affirmed in Case No. A00A0370. Judgment reversed in Case No. A00A0369 and case remanded.

Smith, P. J., and Miller, J., concur.


text:
    A00A0395.
    LEBBAGE v. THE STATE.
    (536 SE2d 282)
   Ruffin, Judge.

Andre Lebbage was charged with armed robbery, possession of a firearm during commission of a felony, and attempting to elude police. Although Lebbage pleaded not guilty by reason of insanity, the jury found him guilty on all counts. On appeal, Lebbage contends that the evidence demanded a verdict of guilty but mentally ill, and that the trial court gave an incomplete recharge to the jury. For reasons that follow, we affirm.

The essential facts of this case are not in dispute. On the morning of September 5, 1995, Lebbage telephoned an Atlanta car dealership and asked sales representative Russell Siefert whether any Porsches were available. After Siefert described one such car, Lebbage said he would come to the dealership later that day to look at the car. Lebbage arrived at the dealership that afternoon, and Siefert showed him the car. Lebbage asked to drive the car, but Siefert said they needed to agree on purchase terms first and that he needed to make a copy of Lebbage’s driver’s license. Lebbage pulled out a gun, pointed it at Siefert, and demanded the car keys. Siefert threw the keys at him. Lebbage then said, “tell the cops I’ll be on 285” and drove away in the Porsche. Siefert ran inside the dealership and called police.

Police located the Porsche on Roswell Road and activated their blue lights and sirens, but Lebbage did not stop. They followed the Porsche onto 1-285, where Lebbage drove at speeds in excess of 100 mph and darted in and out of traffic. Lebbage exited 1-285 and continued on 1-20, where he eventually lost control of the Porsche, which hit another vehicle and came to a halt. Police then arrested Lebbage.

At trial, Lebbage’s expert witness, Dr. Barry Scanlon, testified that Lebbage suffers from a bipolar disorder that causes him to experience periods of psychosis — i.e., an inability to correctly perceive reality — followed by periods of normalcy. Lebbage reportedly told Dr. Scanlon that he heard voices in his head beginning at the age of six or seven, and that one of those voices repeatedly recited a poem that prophesied that Lebbage would die in 1995. Lebbage also told Dr. Scanlon that, when he was in high school, his mother predicted that he “would die driving a car fast into a roadblock and the car would explode into flames and kill him.” According to Dr. Scanlon, Lebbage suffered from a delusion that he needed to drive a car very fast so that he could fulfill the prophecy that he would die by crashing into a police roadblock, and so that he could overcome his racing thoughts “by physically racing himself fast enough to catch up with his thinking.” In Dr. Scanlon’s opinion, this delusion “overmastered” Lebbage’s will and compelled him to “kill himself in a high speed car wreck at a police roadblock.”

A court-appointed psychiatrist, Dr. Alisa Smith, agreed that Lebbage suffered from bipolar disorder with psychotic features. Dr. Smith also testified that Lebbage had a delusion that he needed to drive very fast. According to Dr. Smith, however, Lebbage admitted he could achieve this goal in his own car, which he said he had driven to Alabama several times before at speeds of 120 to 140 mph. In Dr. Smith’s opinion, Lebbage’s delusions did not cause his criminal acts:

I think that he did have a delusion that he needed to go very rapidly and that he would be calmer if he could go real rapidly. . . . But nothing about his delusion specifically told him that the only way that he could accomplish this was to steal an automobile at gunpoint.

Dr. Smith also testified that Lebbage told her that he brought to the dealership a bag containing a change of clothes and a ping pong paddle. Dr. Smith found it “odd” that Lebbage would bring such items if he expected to die.

The trial court instructed the jurors that they could find Lebbage not guilty, not guilty by reason of insanity, guilty, or guilty but mentally ill. The court further instructed the jurors that if they did not find Lebbage not guilty by reason of insanity, then they could consider whether he was guilty but mentally ill. After defining mental illness, the court charged: “If you believe beyond a reasonable doubt that the defendant is guilty and was mentally ill at the time of the commission of the offense or offenses, then you would be authorized to find the defendant guilty but mentally ill as to the time of the crime.” The jury found Lebbage guilty on all counts.

1. In his first enumeration, Lebbage contends that the evidence demanded a verdict of guilty but mentally ill. Lebbage points out that, although the State argued that he was not legally insane at the time of the crimes, it was undisputed that he was suffering from a mental illness.

For the jury to return a verdict of guilty but mentally ill, it had to find beyond a reasonable doubt that Lebbage was mentally ill at the time he committed the crimes. Here, there was evidence that Lebbage’s mental illness was characterized by periods of normalcy, and that his criminal acts on the day in question were not motivated by the delusions from which he suffered. Moreover,

ijjurors are not bound by the opinions of either lay witnesses or expert witnesses as to the question of sanity and they may rely on the basic presumption [of sanity] existing under our law. The jury is free to reject expert testimony as to sanity and may find an accused sane even without positive testimony as to sanity.

Accordingly, we cannot say that the jury was required to return a verdict of guilty but mentally ill. Thus, Lebbage’s first enumeration lacks merit.

2. Lebbage also argues that the trial court gave an incomplete recharge in response to a question submitted by the jury.

During deliberations, the jury submitted the following written question to the trial court: “When considering the verdict of guilty but mentally ill, do we limit our consideration to the time of the act or mentally ill in general?” The trial court told counsel that it would not recharge the jury on the entire law of insanity but would write the jury a note that they should consider whether Lebbage was mentally ill at the time of the commission of the alleged crimes. The court then asked counsel if that response was correct, and defense counsel replied, ‘Yeah, I suppose that is — yeah.”

Later, the jury submitted another question: “In the case of guilty but mentally ill, are we being asked if his mental illness caused the crime or whether he carries a diagnosis of mental illness?” Once again, the court discussed the question with counsel, as follows:

COURT: I think at this point I might just reread to them the charge of guilty but mentally ill. Any other comments?
DEFENSE COUNSEL: Well, I mean the defense was delusional compulsion. Would you be charging on delusional compulsion?
COURT: They haven’t asked any questions about delusional compulsion.
DEFENSE COUNSEL: That’s true. I’m sorry, could you just — what was the question again?
COURT: [repeats question]
DEFENSE COUNSEL: Okay, thank you.
PROSECUTOR: I think that would —
COURT: Everybody concur with just recharging them on mentally ill?

Decided June 23, 2000.

Elaine T. McGruder, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, George W. K. Snyder, Jr., Assistant District Attorneys, for appellee.

PROSECUTOR: I think that’s fine.
COURT: Guilty but mentally ill.
DEFENSE COUNSEL: Yes, judge.

The court then repeated to the jury its previous charge on guilty but mentally ill.

Lebbage contends that the court also should have recharged the jury on not guilty by reason of insanity. But Lebbage waived any objection to the trial court’s recharge. His attorney agreed with the trial court that the jury had not asked any questions about the delusional compulsion defense. Then, when asked if he concurred with just recharging the jury on guilty but mentally ill, Lebbage’s attorney said, ‘Yes, judge.” Having acquiesced in the recharge as given, Lebbage cannot object to it now.

Judgment affirmed.

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

       Lebbage does not contend that the court’s initial jury charge on the “guilty but mentally ill” option was incorrect.

       Although Lebbage also states that the evidence “authorized a verdict of not guilty by reason of insanity,” he does not contend that the evidence demanded such a verdict.

       See OCGA § 17-7-131 (c) (2).

       (Citations and punctuation omitted.) Brooks v. State, 247 Ga. 744, 745 (279 SE2d 649) (1981); see also Kirkland v. State, 166 Ga. App. 478, 481 (1) (304 SE2d 561) (1983).

       See, e.g., Eackles v. State, 270 Ga. 558, 563 (9) (512 SE2d 635) (1999); Orr v. CSX Transp., 233 Ga. App. 530, 531 (2) (b) (505 SE2d 45) (1998); Levin v. State, 222 Ga. App. 123, 125-126 (3) (473 SE2d 582) (1996).


text:
    A00A0634.
    BATTLE v. THE STATE.
    (536 SE2d 273)
   Ruffin, Judge.

Bobby Battle was convicted of possession of marijuana and possession of marijuana with intent to distribute, each count relating to a separate incident. He appeals, contending that the evidence was insufficient to support the possession with intent to distribute conviction, and that the trial court erred in responding to a jury question. For reasons discussed below, we affirm.

1. On February 9, 1997, Sergeant Arvo Bowen of the Covington Police Department stopped Battle for various traffic offenses. Battle was driving an Oldsmobile Cutlass, and there were two passengers, Tyson Bell and Stan Price. After Battle got out of the car, Bowen saw the front seat passenger, Bell, lean over in the seat. Another officer, Jerry Lee Roberts, later searched the car and found ten plastic bags of marijuana in the pocket of a coat on the driver’s seat. Battle admitted at trial that the coat was his but denied any knowledge of the marijuana. Battle introduced evidence that Bell pled guilty in July 1998 to possession of marijuana with intent to distribute.

On May 9,1997, Battle was again stopped by police, this time for a noise violation. After Battle failed to produce a driver’s license, Officer Wayne Digby asked for Battle’s permission to search the car, a Buick Regal. Although Battle initially refused, he ultimately consented to the search. Digby found a partially smoked marijuana cigarette in the open ashtray. Digby then placed Battle under arrest for possession of less than an ounce of marijuana. Upon further search, Digby found a bluish-green bag under the hood of the car, between the headlight and the battery. Digby described the bag as a “fresh bag” with “no dust or anything on it.” Digby opened the bag and found that it contained 27 individually wrapped bags of marijuana.

Battle was charged with several offenses relating to the two incidents, including two counts of possession of marijuana with intent to distribute. At trial, he denied having any knowledge of the marijuana on either occasion. With respect to the February 9 incident, Battle claimed that he had borrowed the Oldsmobile from Tim Bell, Tyson Bell’s brother. Although he admitted that the marijuana was found in his coat, he denied any knowledge of the drugs.

With respect to the May 9 incident, Battle claimed that he had borrowed the Buick from Anthony Bell that morning in order to go to a job interview. According to Battle, Bell asked him to take the car to his uncle’s car shop for some repairs. Battle stated that he arrived at the repair shop at 8:00 a.m. and left at 2:00 p.m., and that he was stopped by the police while driving from the repair shop to the interview. Although Battle stated that he borrowed the car the morning of the arrest, Anthony Bell testified that he loaned Battle the car the night before. He said he asked Battle to take the car to the transmission shop because he had to work the next morning. Bell denied that there was any marijuana in the car when he loaned it to Battle. Bell admitted that he had been convicted in 1995 of conspiracy to traffic in cocaine.

Regarding the February 9 incident, Battle was acquitted of possession of marijuana with intent to distribute but convicted of felony possession of marijuana. Regarding the May 9 incident, Battle was convicted of possession with the intent to distribute. On appeal, he challenges the sufficiency of the evidence only with respect to the May 9 incident. He argues that the evidence against him was circumstantial, and that “[o]ne reasonable interpretation of the evidence is that the car’s owner, a drug dealer, used [Battle] as an unwitting patsy to haul drugs for him. The mechanic placed the drugs under the hood for delivery to the car’s owner.”

As we stated in Henderson v. State,

[i]n the absence of any circumstances to the contrary, a presumption arises from proof of ownership and control of. . . an automobile . . . that the owner is in control and possession of contraband found therein. This rule is equally applicable to an automobile in which the accused is only the driver or in possession of the vehicle. As to automobiles, [however,] the rule does not apply where there is evidence in the case that the defendant has not been in possession of the vehicle for a period of time prior to the discovery of the contraband or that others have had access [to] it. In other words, merely finding contraband in a car occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. If the only evidence of possession of contraband found in an automobile is that the defendant is the owner, the driver, or is in possession of the vehicle, and there is evidence of prior use of the vehicle by other parties in the recent past, or equal access to the accessible portions of the vehicle by other parties, then the prior possession or equal access rule would demand an acquittal. However, if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the factfinder.

Here, there was evidence that Anthony Bell and, perhaps, the mechanic who allegedly worked on the car may have had access to the car in the period before Battle’s arrest. However, acquittal is not necessarily demanded simply because a defendant presents evidence that others had access to the vehicle. If there is evidence allowing the jury to conclude that none of the other parties with such access placed the drugs in the vehicle, or if the jury disbelieves the defendant’s claim that others in fact had such access, or if there is other evidence pointing to the defendant, the jury may conclude that the only reasonable hypothesis is that the defendant was in possession of the drugs.

As an initial matter, we note that there was significant evidence casting doubt on Battle’s general credibility as well as his account of the events surrounding the May 9 incident. For example, Battle denied that he ever smoked marijuana or that he had any knowledge of the marijuana found on either occasion. But the jury apparently rejected this claim by convicting Battle of possessing marijuana on February 9, and Battle does not challenge the sufficiency of the evidence with respect to that incident. In addition, the fact that a partially smoked marijuana cigarette was found in an open ashtray in the second incident contradicts Battle’s claim that he was not aware of any marijuana. Based on these contradictions, the jury could have concluded that Battle was not a credible witness, thus giving grounds for disbelieving his otherwise unsubstantiated claim that others at the repair shop had access to the car that morning.

The jury also could have found that Battle’s account of the events surrounding the May 9 incident was not credible. Although Battle claimed that he borrowed the car the morning of his arrest, Anthony Bell testified that he gave the car to Battle the night before. Assuming that the jury believed Bell’s version, it could have determined that Battle was not being truthful and was trying to understate the length of time he had control of the car. The jury also could have focused on inconsistencies and implausibilities in Battle’s account of how he spent his time before the arrest. For example, Battle testified that he delivered the car to the repair shop by 8:00 a.m. and left at 2:00 p.m. to drive straight to his job interview. The jury could have found it somewhat strange that, if Battle in fact was borrowing the car to go to an important job interview, he would have agreed to wait at a repair shop for a long and indeterminate amount of time while the car was being worked on. Moreover, Battle’s account of how he spent his time while the car was allegedly being repaired was somewhat vague. When asked if he waited at the shop while they worked on the car, Battle said, “Well, no. I mean, because I walked to [a convenience store], I bought me a drink and then like I had a bag of chips and when I got back, they said that the car . . . was ready.” He said that he “just stood around the, you know, the [convenience] store, you know, just there and you know, and started talking on the telephone and then I went straight back to [the repair shop] and [the mechanic] said it [was] ready.”

Battle testified that he went straight from the repair shop to his job interview, and that he was stopped by Officer Digby while driving to the interview. He said that he made no stops along the way, “because I had the job on my mind.” However, when it was pointed out that the spot where he was arrested was not on the route from the shop to the interview location, Battle stated (in response to leading questions by his own attorney) that he had driven over into a neighborhood where he could be seen by his friends “driving a sharp car.” This subtle changing of his story could have led the jury to conclude that Battle was not being truthful.

Battle called no witnesses from the repair shop or the alleged employer to confirm that he had in fact taken the car in for repairs or that he had a job interview, and he presented no documentary evidence, such as a receipt, indicating that any repairs were performed. Nor did Battle provide any explanation for his failure to present such evidence or call such witnesses. Given the many inconsistencies and implausibilities in his testimony, the jury could have completely disbelieved Battle’s claim that anyone else had access to the car on the day of his arrest.

As discussed above, Anthony Bell was called as a defense witness and denied that there were any drugs in the automobile when he gave it to Battle. If the jury found this testimony credible, then it had a basis for concluding that he was not responsible for the drugs. We note in this regard that witness credibility is a matter for the jury, and the jury may choose to believe part of a witness’ testimony while disbelieving other parts. We also note that Officer Digby testified that the bag found under the hood appeared “fresh” and did not have any dust on it, suggesting that it had recently been placed there. Under all of the circumstances, we believe the jury could have concluded that the only reasonable hypothesis was that Battle had possession of the drugs in question.

2. During deliberations, the jury sent the judge the following question: “[I]f the driver took a known drug dealer home, would this be possession of marijuana or possession of marijuana with the intent to distribute?” After discussing his response with counsel, the judge responded to the jury’s question by repeating his instruction on parties to a crime. In addition, the judge illustrated this concept by discussing three different hypothetical scenarios, each involving himself and his brother, Warren:

First one. . . . If I went up to Warren and said Warren, give rue a ride home because I have got some marijuana that I want to distribute in my neighborhood. Warren says okay and I get stopped on the ride home and parties to the crime, he was aiding me getting home to distribute the drugs. First scenario.
Second scenario. I go Warren, I have got some marijuana on me, I don’t feel good about it, how about driving me home before I get caught here. He says okay. We get into the car and get stopped halfway there. I possessed marijuana and Warren has driven me, knowing that I possessed marijuana.
The third scenario. I go up to Warren and say Warren, give me a ride home. He says okay. Halfway home the police stop us, and I have got drugs on me, unknown to Warren.

After giving these illustrations, the judge repeated his charge on criminal intent and instructed the jury that mere presence at the scene of a crime or mere association with persons involved in a crime is insufficient to support a conviction unless the defendant participated in the crime.

After both the prosecutor and defense counsel indicated dissatisfaction with the recharge, the judge recalled the jurors and instructed them to disregard the three scenarios involving the judge and Warren and to concentrate on the principles of law given in the charge. The judge stated that the scenarios were intended to illustrate principles of law and not to constitute a comment on the evidence. He asked if any of the jurors were unable to “disabuse your mind of the three examples I gave you,” and none of the jurors raised their hand.

On appeal, Battle argues that the judge’s instruction was erroneous because it did not specifically inform the jury that, under the third scenario, Warren would not be guilty of any crime. Pretermitting whether the judge’s subsequent withdrawal of the three scenarios cured any error caused by such an omission, Battle’s contention is without merit. The three scenarios were not given in isolation, but in the context of further instructions on criminal intent, mere presence, and mere association. Considering the recharge as a whole, along with the original charge, the jury was clearly instructed that a defendant could not be convicted under the facts described in the third scenario. Accordingly, this enumeration presents no basis for reversal.

Decided June 23, 2000.

James E. Millsaps, for appellant.

Alan A. Cook, District Attorney, W. Kendall Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Battle was also convicted of certain other offenses, but they are not at issue in this appeal.

       The jury also found him guilty of felony possession of marijuana, but the trial court did not sentence him on this charge, apparently merging it with the other conviction.

       (Citations, punctuation and emphasis omitted.) 191 Ga. App. 275, 276 (1) (a) (381 SE2d 423) (1989).

       See id. (“if there is additional evidence of possession of contraband by the accused — either circumstantial or direct, other than mere ownership, use or possession of the vehicle, then an issue is made for the factfinder”) (punctuation omitted).

       See OCGA § 24-9-85 (a) (“When a witness shall be successfully contradicted as to a material matter, his credit as to other matters shall be for the jury”).

       Anthony Bell admitted that he had no receipts showing that the car had been repaired.

       See Johnson v. State, 241 Ga. App. 448, 452 (4) (526 SE2d 903) (1999); Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999).

       See Mobley v. State, 218 Ga. App. 739, 740-741 (2) (463 SE2d 166) (1995) (charge and recharge to be considered as a whole in determining whether recharge contained error).

       Battle does not contend that the trial court committed any error with respect to the first two scenarios.