author: Birdsong, Presiding Judge.

text:
    A97A1943.
    SOSEBEE et al. v. McCRIMMON.
    (492 SE2d 584)
   Birdsong, Presiding Judge.

This appeal arises from a suit for damages for breach of contract for legal services or, alternatively, for the reasonable value of legal services under quantum meruit where the attorney withdrew from representation of the client before completion of the litigation for which he was retained. Suit was brought by appellee Edward W. McCrimmon, against appellant R. Shannon Sosebee, individually and as executrix of the estate of James B. Sosebee, seeking judgment against defendants jointly and severally for $53,097.50, past and future interest, attorney fees and costs.

The trial court granted appellee’s summary judgment motion, denied appellant’s motion for partial summary judgment, attempted to grant provisionally appellee’s motion for sanctions and ordered that appellant’s answer be stricken in the event its ruling on appellee’s summary judgment motion should be overturned. Held:

1. Appellant contends the trial court erred in granting summary judgment to appellee for $53,097.50, plus $21,844.79 past interest, court costs, and future interest, and denying appellant’s motion for partial summary judgment regarding the amount owed to plaintiff for legal representation in the Bobby Cobb litigation.

Appellant Sosebee retained appellee McCrimmon to represent her in two suits, brought against her individually and as executrix of her deceased husband’s estate, by Chrysler First Business Credit Corporation. Appellee represented appellant in these suits on an hourly fee basis. Appellant also engaged appellee on a contingent fee arrangement to initiate related litigation, hereinafter referred to as the Bobby Cobb litigation. In the Bobby Cobb litigation, appellant alleged that her co-defendants in the Chrysler First cases and certain others had defrauded her and were liable to Chrysler First for any amounts for which she might be found liable in Chrysler First’s cases.

The written contingent fee agreement (contract to employ attorney) in the Bobby Cobb litigation pertinently provided: “Attorney shall be entitled" to his full fee, notwithstanding the client may discharge or obtain the substitution of attorneys before attorney has completed the services for which he is hereby employed. Client understands that he/she may dismiss Attorney at any time for any reason, upon written notice to him and payment of unpaid expenses and services rendered to the date of the receipt of such notice; payment to be based upon time devoted to Client’s case at an hourly rate of $200.00 per hour, or the applicable percentage of fee due him under the terms of this agreement of any offers which have been made by any adversary or collateral party, whichever is greater. . . . This agreement and no other comprise the entire contract between attorney and client. . . .” (Boldface type denotes handwritten words and figures.)

This agreement is silent as to situations where the attorney withdraws from representing his client, either with or without client’s consent, thereby compelling the client either to proceed without an attorney or to obtain other representation. This Court will not revise this agreement to fill a contractual void under the pretext of contract construction. “Courts are not at liberty to revise contracts while professing to construe them.” Stuckey v. Kahn, 140 Ga. App. 602, 606 (1) (231 SE2d 565).

The fee agreement also contained the following contingency as a condition to fee payment: 40 percent of the gross amount recovered from any party (45 percent in the event of an appeal by any party). Under the clear and unequivocal terms of the agreement, no fee payment was to become due and owing absent appellee’s “recover[y]” of some gross amount “from any party,” either by suit or settlement, except under certain circumstances not here applicable. It is uncontested that appellee filed notice of intent to withdraw from the Bobby Cobb litigation and obtained the trial court’s authorization to withdraw prior to any such recovery. “[T]he termination of the employment of the [appellee] prior to the recovery under the contract prevented the contract contingency from occurring.” Yetman v. Greer, Klosik &c., 225 Ga. App. 397, 399 (1) (483 SE2d 878). “Thus, the contract was at an end, and the contingency of a recovery of money under the contract had not occurred prior to the termination of the attorney[’s] employment.” Id. “ Where there is an agreement for the payment of a contingent fee, the happening of the contingency is a condition precedent to the right of the attorney to recover for his services [under the terms of the contract], and the precise event which was contemplated must happen.’ [Cit.] Therefore, the amount of attorney fees cannot be calculated under the contract, which has been terminated.” Id.; compare Overman v. All Cities Transfer Co., 176 Ga. App. 436 (336 SE2d 341); Thomas v. Postell, 77 Ga. App. 784 (49 SE2d 835). Morrow v. Stewart, 197 Ga. App. 689 (399 SE2d 280) is distinguishable, as the contingent fee contract there at issue contained an express agreement as to the compensation to be paid in the event of an attorney’s dismissal or withdrawal.

The issue remains whether appellee could recover the reasonable value of his services under quantum meruit. Where the client discharges the attorney, with or without cause, the attorney retains the right of compensation, not under the contract of employment which is at an end, but under quantum meruit which is protected by the attorney’s lien statute. Yetman, supra at 399. In the case at bar, however, the attorney withdrew of his own election claiming that the conduct of the client compelled him to withdraw. “ “Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney’s fees for his services that have been rendered on behalf of the client.’ ” Id. at 400; Burnette v. Bradley, 190 Ga. App. 427, 428 (1) (379 SE2d 225); Overman, supra. This principle also applies when the client, by his or her conduct, gives the attorney reasonable cause to withdraw. In either event, however, “[i]f the services of the attorney have no value to the client under quantum meruit, then the client has no financial obligation to pay for services that did not achieve the contingency.” Yetman, supra at 400.

Once it is determined that the services rendered were received by and benefited, that is, had value to the client, there remains the question as to the amount of attorney fees due and owing. See Ford v. Smith, 25 Ga. 675 (3). A quantum meruit claim requires proof as to the reasonable value of the attorney’s services rendered in behalf of the client. Overman, supra at 438. It is error to rely blindly upon the contingency fee contract percentage in fixing this amount. Yetman, supra at 400 (1). “Since the value of the services rendered under quantum meruit is determined based upon the value to the clients, then the amount of attorney fees due may be greater or less than the contingent fee would be, depending upon the facts and circumstances of the case.” Id. Generally, “[t]he question of reasonable value of services rendered is for the determination of the jury where there has been no admission or agreement by the opposite party that the amount sued for is reasonable.” Dorsey v. Edge, 75 Ga. App. 388, 393 (2) (43 SE2d 425); accord Pembroke Steel Co. v. Technical Sales Assoc., 138 Ga. App. 744, 745 (2), (3) (227 SE2d 491) (jury question remained whether owner, in fact, benefited from the work and, if so, to what extent). But, “[w]here the services of the attorney, the reasonable dollar amount for attorney fees, and the value to the client are not in dispute of fact in quantum meruit, the trial court can decide the award of attorney fees as a matter of law without trial by jury, because there is no disputed issue of material fact for a jury to decide.” Yetman, supra at 400 (2).

By affidavit appellee asserts he was compelled to withdraw because appellant had commingled individual assets, assets of the deceased’s corporation, and estate assets; loaned estate money without obtaining a security or promissory note; transferred estate assets without authority or accounting; changed her allegations of damages resulting from the partnership; refused, contrary to advice given, to establish an estate bank account; failed and refused to pay other attorneys who had represented the estate; refused to obtain experts necessary to pursue her claims; refused to assist in discovery; and refused to consider and accept proposals for resolution of the underlying cases. An attorney stated, by way of affidavit, that appellee had approached him about his firm taking over appellant’s representation and the only reason appellee gave for withdrawing was that he would make a better witness (than counsel) at trial. He also stated that, after appellee withdrew, his firm commenced to represent appellant regarding the matters at issue and that appellant had paid his firm all but $5,000 of the amount which she owed for their representation. This testimony does not raise a genuine issue of material fact whether the sole reason for appellee’s withdrawal was that he would make a better witness — it merely reflects that this was one of the reasons asserted by him.

By way of affidavit, appellant asserted she “concluded” from conversations with appellee that he wanted to withdraw because of the time-consuming nature of his representation and his conclusion there was no reasonable prospect for a recovery from which he could recover his fees. She informed appellee that she did not consent to his withdrawal but he proceeded to withdraw despite her objections. Yet, in her deposition, appellant testified that she believed appellee withdrew because he was scared. She further testified that appellee told her he withdrew because he felt he could be a witness in the case and “a bunch of other information that made no sense [to her] and still doesn’t.” She also testifies that she did not “know why [appellee] withdrew” and does not “know why the judge allowed [appellee] to withdraw.” Appellant provided no reasonable explanation for the inconsistencies between her affidavit and deposition regarding the reason appellee gave for his withdrawal. Accordingly, the rule of inconsistent testimony discussed in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) and Gentile v. Miller, Stevenson &c., 257 Ga. 583 (361 SE2d 383), applies. Compare Sandifer v. Long Investors, 211 Ga. App. 757 (1) (440 SE2d 479). After this rule is applied, appellant at most has established that she does not know why appellee withdrew or why the trial judge allowed it. The record viewed in this posture creates no genuine issue as to the reason for appellee’s withdrawal; appellee’s sworn statement that he was required to withdraw due to appellant’s conduct remains uncontroverted in material part. Thus, the trial court did not err in concluding as a matter of law that appellee was entitled to recover the reasonable value of his services under quantum meruit.

“The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that [he] is entitled to judgment as a matter of law.” Riley v. H & H Operations, 263 Ga. 652, 655 (3) (436 SE2d 659). Generally, issues of benefit and value of services rendered in a quantum meruit suit are exclusively for jury determination (see generally Wilburn, Ga. Law of Damages (4th ed.), § 17-2), but where the facts conclusively show by plain, palpable and undisputed evidence the value and benefit to the recipient of services rendered, such case properly may be resolved by summary judgment. Compare Soto v. Roswell Townhomes, 183 Ga. App. 286, 288 (358 SE2d 670); cf. Yetman, supra at 400 (2). “Ordinarily, when one renders service or transfers property which is valuable to another, which the latter accepts, a promise is implied to pay the reasonable value thereof.” (Emphasis supplied.) OCGA § 9-2-7; compare Hudson v. Hudson, 90 Ga. 581 (1) (16 SE 349). “The presumptions under this statute arise by operation of law . . . and are rebuttable [cit.]. [But a] contract to pay will not be implied from the mere performance of services. [Cit.]” Smith Dev. v. Flood, 198 Ga. App. 817, 819 (3) (b) (403 SE2d 249). Moreover, appellant “could not accept any services from [appellee] of which she was totally unaware.” Id.; Gosule v. Bestco, Inc., 227 Ga. App. 867 (490 SE2d 536). It would appear, however, that the required general awareness of the services being accepted could be either actual or constructive. In this case, appellee presented uncontradicted testimony as to the nature of and value of his hourly legal services and introduced evidence establishing the time spent on various legal tasks on behalf of appellant. Appellant countered that she believed appellee had been adequately paid for his services, she did not receive the benefit or result expected for the fee paid, and that she believes legal fees were incurred on needless legal action. She further admitted that she did not dispute that certain services were performed on her behalf in the Cobb case and that she had participated in a lot of hearings, depositions, and document review. Appellee proved the general value of the legal services which he established he had performed; he also proved appellant’s awareness of and implied acceptance of certain of these services. However, appellee failed to establish that appellant accepted all of these services, or that she was aware of all of these services and remained silent or otherwise acquiesced in the performance thereof in her behalf. Thus, appellee failed to show by plain and palpable evidence that all of the services for which he sought and received judgment were of benefit to appellant. (Benefit should be proven either by showing appellant obtained an actual benefit therefrom or that she had accepted such services actually or constructively, so that the statutory presumption of OCGA § 9-2-7 would apply.)

Further, there can arise an occasion when the value of the benefit received by a party must be reduced for reasons of equity or justice. See Hudson, supra at 582 (2). In the case at bar, appellee withdrew from representation without the consent of the appellant. Thereafter, appellant was required to obtain another counsel and paid a substantial amount of legal fees to such counsel to pursue the litigation from which appellee had withdrawn. If some of the legal fees appellant had to pay her new attorney were for services, which although originally performed by appellant, had to be re-performed in order to effectively represent appellant, e.g., reading files, personally examining disclosed precedent, case familiarization, etc., a jury could conceivably find that to the extent such duplication was required, appellant received no actual benefit of value from those same services initially performed by appellee.

Decided October 2, 1997.

Lamberth, Bonapfel, Cifelli, Willson & Stokes, Stuart F. Clayton, Jr., Gary D. Stokes, for appellants.

The issue of value and benefit to appellant thus remained within the jury’s exclusive province, and summary judgment should not have been granted as to a specific amount for the reasonable value of services rendered. Accordingly, we find the trial court did not err in denying appellant’s motion for partial summary judgment; however, it did err in granting appellee summary judgment as to a sum certain, because genuine issues of material fact remain as to whether all the services at issue were of benefit and value to appellant. Further, prejudgment interest cannot be awarded in a suit based upon quantum meruit. Howell v. Styles, 221 Ga. App. 781, 785 (5) (472 SE2d 548), citing Ga. Hospitality &c. v. Harrison Advertising, 181 Ga. App. 163 (351 SE2d 489). The trial court erred in granting summary judgment in the amount of $21,844.79 for past due interest.

2. Regarding appellant’s third enumeration of error, the judgment is ambiguous whether the trial court, in fact, adjudicated the material issues raised by appellee’s motion for imposition of sanctions merely by issuing a provisional ruling in the alternative, or whether the paramount holding of the trial court was that the grant of summary judgment rendered the sanctions issue moot. “ ‘[WJhere a judgment is susceptible [to] two interpretations, that one will be adopted which renders it the more reasonable, effective, and conclusive, and which makes the judgment harmonize with the facts and law of the case and be such as ought to have been rendered.’ ” Alexander v. Steining, 197 Ga. App. 328, 329 (1) (398 SE2d 390). We find that the judgment did not effectively adjudicate appellee’s motion for sanctions as the trial court’s paramount holding was that summary judgment rendered the sanctions motion moot. Thus, there exists no reviewable ruling on the motion for sanctions, and we will not render an advisory opinion thereon. See Bd. of Trustees &c. of Ga. v. Kenworthy, 253 Ga. 554, 557 (322 SE2d 720).

Judgment reversed and remanded with direction.

Ruffin and Eldridge, JJ, concur.

Edward W. McCrimmon, pro se.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A97A2261.
    TRAVITT v. THE STATE.
    (492 SE2d 574)
   Eldridge, Judge.

A Fulton County jury found appellant Johnny Travitt, Jr. guilty of the armed robbery of Cleveland Dunn. Appellant was acquitted of three additional counts: the burglary of Dunn’s home, and the aggravated assault and kidnapping of a second victim, Tiajuana Foot. Travitt appeals his conviction and we affirm.

1. In a light most favorable to the verdict, the record shows that at approximately 12:30 a.m. while Cleveland Dunn was in bed, appellant forced his way into Dunn’s home. Appellant entered Dunn’s bedroom, pointed a gun at Dunn’s head, and ordered him to “give it up.” The victim grabbed his pants, removed his money from the pocket, and threw it to the foot of the bed. Appellant took the money and left the house. We find that the evidence was sufficient for a rational trier of fact to find appellant guilty of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. We have reviewed the record and find that there was no error in the trial court’s refusal to dismiss for cause juror number three, Thad Matzke, simply because Matzke was initially confused by the defense voir dire question: “Is there anybody that feels like having heard that indictment and her [prosecutor] telling you the grand jury returned an indictment against him, well, he must have done something to get here?” Clearly from the response to this question as reflected in the record, juror number three was not the only one who was confused. However, further questions clarified the juror’s position and satisfied the trial court that Matzke held no opinion “so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]” Johnson v. State, 262 Ga. 652, 653 (424 SE2d 271) (1993); Cohen v. Baxter, 267 Ga. 422 (479 SE2d 746) (1997); see also OCGA § 15-12-163. Matzke stated that he did not have a fixed opinion as to the guilt or innocence of appellant; that appellant had no burden of proof; and that he would decide the case based upon the evidence presented and the trial court’s charge. Appellant has shown no abuse of the trial court’s discretion. Robinson v. State, 258 Ga. 279, 280 (368 SE2d 513) (1988).

3. Appellant contends that the trial court charged the jury that “[a] person commits [the offense of] armed robbery when, with intent to commit a theft, he takes property of another, from the person or the immediate presence of another,” while the indictment alleged that appellant took property “from the person and immediate presence of [another].” (Emphasis supplied.) This discrepancy, appellant argues, was error because the trial court charged the jury that the crime of armed robbery may be committed by alternative methods, when, the indictment alleged that the offense was committed by one specific method. Blige v. State, 208 Ga. App. 851 (2) (432 SE2d 574) (1993) . We disagree.

Decided October 2, 1997.

John R. Mayer, for appellant.

“When a defendant is charged with the violation of a penal statute containing disjunctively [‘or’] several ways or methods a crime may be committed, proof of any one of which is sufficient to constitute the crime, the indictment, in order to be good as against a special demurrer, must charge such ways or methods conjunctively [‘and’] if it charges more than one of them. Accordingly, on the trial of a defendant under an indictment so charging, it is not incumbent upon the state to prove all such separate ways or methods alleged in the indictment, but the state makes a prima facie case upon its establishment by proof of any one of them.” (Citations and punctuation omitted.) Camsler v. State, 211 Ga. App. 826, 827 (440 SE2d 681) (1994) . Since the indictment in this case properly charged conjunctively that appellant took property “from the person and immediate presence” of the victim and, as appellant concedes, the state offered proof to show commission of the offense by either method, the trial court’s charge in the disjunctive pursuant to the language of the statute was not error.

4. We decline appellant’s invitation to revisit the “inconsistent verdict rule,” since his conviction for armed robbery and his acquittal on the other three counts are not, as a matter of fact or law, mutually exclusive. See Dumas v. State, 266 Ga. 797 (471 SE2d 508) (1996); Thomas v. State, 199 Ga. App. 586, 587 (405 SE2d 512) (1991), rev’d on other grounds, 261 Ga. 854 (413 SE2d 196) (1992). Appellant’s arguments expressing incredulity regarding the jury’s “mental and logical gymnastics required to reconcile these verdicts” are precisely why this state has adopted its stance abolishing the inconsistent verdict rule, preferring instead to allow the jury to believe a part of a witness’ testimony, disbelieve other parts, and compromise on the verdict if they wish. Dumas, supra at 799.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

Paul L. Howard, Jr., District Attorney, Cari K. Johanson, Angela M. Dannelly, Assistant District Attorneys, for appellee.


text:
    A97A2315.
    WEST v. THE STATE.
    (492 SE2d 576)
   Eldridge, Judge.

Stephen L. West, the defendant-appellant, was indicted on multiple counts of child molestation in Colquitt County, Indictment Number 95-CR-379. Two counts were each tried separately; defendant was acquitted in both trials. Defendant was then indicted for two counts of perjury for the same statement made under oath in both trials, one count for each prior trial. Count 1 alleged that the defendant, in State v. West, on February 14, 1995, made a false statement material to the issue in question in a judicial proceeding under oath; Count 2 alleged that on June 6,1996, in the same case, the defendant made a false statement material to the issue in question in a judicial proceeding under oath. Such trial for perjury preceded a trial of the remaining counts of child molestation.

Prior to defendant’s trial for perjury, the district attorney made a motion in limine to exclude the verdicts of acquittal brought about as an alleged result of defendant’s perjury as not relevant or material. The trial court granted the motion in limine.

On November 14, 1996, the jury convicted the defendant on both perjury counts. On November 19, 1996, defendant filed a timely notice of appeal.

1. Defendant’s first enumeration of error is that an alleged false statement made under oath at one trial and repeated under oath at another trial does not constitute a separate offense of perjury, because it constituted the same alleged perjury committed at two separate trials. Defendant contends that the two separate jury trials constitute, legally, only one judicial proceeding. We do not agree.

OCGA § 16-10-70 (a) states that “[a] person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.” When a person is placed under oath at a judicial proceeding and makes multiple false statements, the violation of the oath constitutes a single offense; proof of any one or all of the multiple false statements under the same oath constitutes a single act of perjury. Beecher v. State, 164 Ga. App. 54, 56 (2) (296 SE2d 374) (1982); Clackum v. State, 55 Ga. App. 44 (189 SE 397) (1936); Black v. State, 13 Ga. App. 541, 542-543 (4) (79 SE 173) (1913).

Therefore, it follows that, where two separate trials occur with the administration of the oath for each trial, two separate acts of perjury are committed when the defendant makes the same false statement in each trial. There has been a separate violation of each of the two separate oaths, each constituting separate offenses even though the same false statement was made at each trial. It is the violation of the oath and not the number of false statements during a judicial proceeding that constitutes a single act of perjury. See generally Beecher v. State, supra at 56.

2. The second enumeration of error is that the alleged false statement was not a material issue of fact so as to constitute an essential element of the crime of perjury. We do not agree.

“[Pjerjury is the wilful assertion as to a matter of fact, opinion, belief, or knowledge, made by a witness in a judicial proceeding as part of his evidence, either upon oath or in any form allowed by law to be substituted for an oath, whether such evidence is given in open court, or in an affidavit, or otherwise, such assertion being known to such witness to be false, and being intended by him to mislead the court, jury, or person holding the proceeding. The offense consists in swearing falsely and corruptly, without probable cause of belief; not in swearing rashly or inconsiderately, according to belief. Herring v. State, 119 Ga. 709, 715 (46 SE 876) [(1904)].” (Punctuation omitted.) Hicks v. State, 67 Ga. App. 475, 481-482 (4) (21 SE2d 113) (1942); see also Smith v. State, 85 Ga. App. 459, 471 (4) (69 SE2d 281) (1952). Thus, the false statement must be material but it may be as to fact, opinion, belief, or knowledge.

In both molestation trials, the defendant testified that he had not molested the children, that his “alibi” witness, Caspar Dean Cook, had been with him on the night of October 6, 1995, with the children until fifteen minutes until 10:00 p.m., and that he had been alone with the children only from such time until twenty minutes after ten. At the first trial, the defendant testified that Cook had been with him until “fifteen minutes till 10:00.” In the second trial, the defendant testified that Cook had been present with him at 9:30 p.m. and that Cook left about a quarter of ten or thereabouts and that he was certain that Cook left at 9:45 p.m. In the second trial, the defendant was asked if it would make any difference if he had been alone with the children an hour longer than he had testified to and he answered that he did not know. The defendant testified that he knew when Cook left based upon a movie that he had been watching and that he was positive that Cook left at 9:45 p.m. and not at 8:45 p.m. The defendant testified that he had been alone with the children approximately 25 to 30 minutes.

“[T]he question whether particular statements were material depends upon the nature of the proceeding and the matters at issue, and can be determined in each case for that case only, one test of materiality being whether the alleged false statements could have influenced the decision as to the question at issue.” Clackum v. State, supra at 49; see also Black v. State, supra at 541, 544. “[A]n investigation of the testimony in the record shows that while this testimony was apparently irrelevant and immaterial, it was, in the case in which the defendant was testifying, a material matter, because it was the statement of a fact which, if true, would perhaps have influenced the jury in the case then pending and in which the defendant was a witness.” Black v. State, supra at 544.

When a party or witness testifies on a material issue, either as part of the case-in-chief or any defense, the credibility of the witness becomes relevant, and so matters relevant to the witness’ credibility and, collaterally, material to the issue about which such witness is testifying, are material for purposes of perjury. “Perjury may be assigned on false testimony going to the credit of a witness.” Clackum v. State, supra at 49; see also Wilson v. State, 115 Ga. 206 (41 SE 696) (1902); Oxford v. State, 40 Ga. App. 511, 512-513 (150 SE 466) (1929).

In this case, Kevin John Morbach, the human resources manager at the Winn-Dixie Store where Cook worked and custodian of the time records, testified that, on October 6, 1995, Cook clocked into work at 8:59 p.m. and clocked out at 5:33 a.m. on October 7, 1995; he further testified that the time records were secure from tampering.

Investigator Donald Davis, who testified at the perjury trial as to the defendant’s testimony at the two molestation trials, testified that the materiality of the difference in time was that Cook could not have been present with the defendant to give the defendant an alibi regarding the molestation of the children during the earlier time when the alleged molestation occurred, and it would leave the defendant alone for a longer period of time with the children during the time in which the alleged molestation took place. Davis testified that it took twelve minutes to drive from the incident location to Winn-Dixie at normal speed and, speeding, that it took eight minutes. Thus, the materiality of the false statement of the defendant went to the length of defendant’s access to the children and his opportunity to molest them; the perjured testimony provided as an alibi the presence of Cook during the time of the alleged molestation in order to deny seeing any molestation of the children by the defendant.

The trial court determines by admission relevancy and materiality. Since materiality is an element of the crime of perjury, then it becomes an issue for the jury, which was found adversely to the defendant by their verdict of guilty. There was sufficient evidence for a rational trier of fact to find materiality, as well as guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The third enumeration of error is that the evidence did not sufficiently show that the alleged false statement was “made willfully, knowingly, and absolutely.” We do not agree.

Perjury can only be committed by knowingly and willfully making a materially false statement under oath; perjury cannot be committed by silence or refusal to testify, because perjury is an affirmative act of intentionally violating the oath. King v. State, 238 Ga. 386 (233 SE2d 340) (1977). The element of knowingly making a false statement refers to the time the statement was made under oath and not to subsequently acquired knowledge. Oxford v. State, supra at 513; see also Stokes v. State, 59 Ga. App. 878 (2 SE2d 674) (1939). The offense of perjury consists in swearing falsely and corruptly “without probable cause of belief; not in swearing rashly or inconsiderately, according to belief.” (Punctuation omitted.) Hicks v. State, supra at 482; see also Herring v. State, supra at 715. Thus, both the intent to testify falsely and the act of false testimony must be shown as elements of the crime. Thomas v. State, 71 Ga. 252 (1883).

Intent to make a false statement may be proven from all the circumstances in the same fashion as intent is established in other criminal cases. Rowe v. State, 99 Ga. 706 (27 SE 710) (1896); McCord v. State, 83 Ga. 521 (10 SE 437) (1889). One who intentionally makes what that person believes is a false statement under oath, has committed perjury, because the person intended to testify falsely in violation of their oath, even if the fact or opinion turns out to be true; the intent was to swear falsely, not to testify as to what they knew to be true at that time. Davis v. State, 7 Ga. App. 680 (67 SE 839) (1910).

If a person seeks to ascertain the facts and testifies upon their reasonable belief as to the facts, then such is good faith. “Reasonable ground for believing the statement to be true may furnish an adequate defense.” (Emphasis supplied.) Stokes v. State, supra at 879. “Although a witness may have testified to a fact which was not true, yet if he believed it to be true at the time, he is not guilty of perjury. The intent to testify falsely and the falsity of the testimony given must both appear.” Thomas v. State, supra; see also Herring v. State, supra at 714; Stokes v. State, supra at 880. Accordingly, it is a jury question as to whether or not the facts sufficiently prove the requisite intent and thus, perjury. In this case, there is sufficient evidence for a rational trier of fact to find intent beyond a reasonable doubt. Jackson v. Virginia, supra.

4. The fourth enumeration of error is that the trial court erred in granting the motion in limine and denying the defendant the right to inform the jury that he had previously been acquitted of child molestation in two trials, based on the allegedly peijured testimony. We do not agree.

The prior acquittals in the two trials for child molestation have no probative value on the trial for perjury, because evidence of the acquittals is neither relevant nor material to any issue in this case. OCGA § 24-2-1. Evidence is relevant when it logically tends to prove or disprove a material fact which is at issue in the case; every fact or circumstance serving to elucidate or throw light upon a material issue is relevant. Sample v. Lipscomb, 18 Ga. 687 (1855); see also Dept. of Transp. v. Delta Machine Prods. Co., 157 Ga. App. 423 (278 SE2d 73) (1981). Evidence proffered to prove an issue or fact not in issue is properly denied admission as immaterial. MacNerland v. Johnson, 137 Ga. App. 541 (224 SE2d 431) (1976). Even relevant evidence may be properly denied admission where its probative worth or value is outweighed by its potential or tendency to confuse either the issues or the jury. Id. The jury in this case had to decide the issue of whether or not the State had proven the defendant guilty of perjury, which was a different issue than those that the two prior juries had tried. Therefore, what different juries may have decided on different issues at prior times is not only irrelevant and immaterial, but confusing and prejudicial.

Decided October 2, 1997.

T. Mark Thedieck, for appellant.

H. Lamar Cole, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

“The object of all legal investigation is the discovery of the truth. The rules of evidence are framed with a view to this prominent end, seeking always for pure sources and the highest evidence.” OCGA § 24-1-2. “The reception of perjured evidence is never justice, no matter how salutary the end in view.” Hollins v. State, 133 Ga. App. 183, 184 (210 SE2d 354) (1974). Thus, a party cannot do indirectly that which he or she is prohibited from doing directly, i.e., introduce the fruits of perjured testimony to, again, influence this jury to acquit on the prosecution for the perjury, which perjury caused the earlier acquittals.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A2400.
    WRIGHT v. THE STATE.
    (492 SE2d 581)
   Eldridge, Judge.

This case comes before us as an appeal of the denial of a plea in bar of double jeopardy. Defendant Jill Anne Wright, a Georgia resident since December 1995, was involved in a head-on collision on Lawrenceville Highway, DeKalb County, in March 1996. She was subsequently cited for DUI, failure to yield right-of-way, and no proof of insurance. Although required by law to obtain a Georgia driver’s license 30 days after assuming residence, OCGA § 40-5-20, at the time of the collision, Wright had not obtained a Georgia license and was using her Florida license. Her Florida license was confiscated pursuant to OCGA § 40-5-67, with the Uniform Traffic Citations serving as a temporary license.

At the time of the incident, defendant refused chemical testing, and pursuant to OCGA § 40-5-67.1, an administrative hearing was held with regard to the proposed suspension of Wright’s driving privileges in Georgia. The arresting officer failed to appear at the June 6, 1996 hearing (as did Wright), and Wright’s driving privileges were not suspended. Wright’s Florida license was not returned to her, and in July 1996 she obtained a Georgia license.

Prior to trial on the charged offenses, defendant filed a motion for discharge and acquittal based upon a plea in bar of double jeopardy; Wright claims that after “winning” the administrative hearing, the State failed to return her plastic Florida license; that the administrative hearing process as established by OCGA § 40-5-67.1 does not provide an adequate remedy for a person to retrieve her license, “even if a person’s license is not suspended,” thereby violating due process; and that this alleged violation of due process prejudiced her in numerous ways, including difficulty in renting cars and cashing checks. Therefore, Wright argues, she has already been “punished” and a trial on the merits of the traffic offenses would be double jeopardy. Held:

1. The state’s motion to dismiss the instant appeal is denied.

2. The suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy. Martinez v. State, 221 Ga. App. 483 (471 SE2d 551) (1996); Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995). Further, had defendant followed the law she would have already surrendered her Florida license by the incident date, and she has no factual or legal basis upon which to demand the return of a license she should have relinquished two months before.

Moreover, “[w]henever any resident or nonresident person is charged with violating Code Section 40-6-391 [DUI], the law enforcement officer shall take the driver’s license of the person so charged. The driver’s license shall be attached to the court’s copy of the uniform traffic citation and complaint form and shall be forwarded to the court having jurisdiction of the offense.” OCGA § 40-5-67 (a). The court then retains possession of the plastic license of a defendant charged under OCGA § 40-6-391 until the final disposition of the case pursuant to a plea or verdict, and such defendant is authorized to drive on the temporary license that is issued at the time the plastic license is confiscated. OCGA § 40-5-67 (c) (1), (2).

Decided October 2, 1997.

William C. Head, for appellant.

Ralph T. Bowden, Jr., Solicitor, Noah H. Pines, W. Cliff Howard, Assistant Solicitors, for appellee.

In contrast, a Department of Public Safety administrative hearing, conducted by a hearing officer pursuant to OCGA § 40-5-67.1, is a determination as to the suspension of one’s driving privilege within this state, outside the merits of the pending criminal DUI charge. Martinez, supra at 483-484. The “winning” of such hearing does not result in the acquittal of the defendant on the pending DUI charge or the return of the defendant’s plastic license, which by statute remains in the trial court’s possession until disposition of the DUI charge. Accordingly, due process is not violated by the failure to return a defendant’s plastic license simply because an administrative hearing was resolved in the defendant’s favor, when the rationale for the confiscation of the license in the first place, a pending criminal charge under OCGA § 40-6-391, has not been so resolved. “If the laws passed are seen to have a reasonable relation to a proper legislative purpose, and are neither arbitrary nor discriminatory, the requirements of due process are satisfied.” (Punctuation omitted.) Quiller v. Bowman, 262 Ga. 769, 771 (425 SE2d 641) (1993) (quoting Nebbia v. New York, 291 U. S. 502 (54 SC 505, 78 LE 940) (1934)).

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A2425.
    In the Interest of R. F. T., a child.
    (492 SE2d 590)
   Eldridge, Judge.

This is an appeal from an adjudication of delinquency. Appellant is a student at Heritage High School in Rockdale County. At the time of the incident in question, she was on “indefinite” juvenile probation for a 1995 adjudication of delinquency based upon her possession of marijuana and methamphetamine. On March 21, 1997, after another student reported that appellant had been selling drugs on campus, appellant’s backpack was searched by the high school principal; found was a small green and white plastic container with three single-edged razor blades inside.

Thereafter, a delinquency petition was filed for a violation of OCGA § 16-11-127.1, carrying a weapon within, a school safety zone. Appellant was adjudicated delinquent on May 28, 1997, for such violation. Held:

1. The issue presented for review is a narrow one, and it is not whether a single-edged razor blade may be used as a weapon. The issue is whether a single-edged razor blade constitutes a weapon within the proscriptions of OCGA § 16-11-127.1, the School Safety Zone Act. We find that it does not and reverse the juvenile court’s determination.

OCGA § 16-11-127.1 (b) makes it a felony “for any person to carry to or to possess or have under such person’s control while within a school safety zone . . . any weapon or explosive compound.” (Emphasis supplied.) The statute provides a “laundry list” of weaponry that is specifically prohibited: “ ‘Weapon’ means and includes any pistol, revolver, or any weapon designed or intended to propel a missile of any kind, or any dirk, bowie knife, switchblade knife, ballistic knife, any other knife having a blade of three or more inches, straight-edge razor, spring stick, metal knucks, blackjack, any bat, club, or other bludgeon-type weapon, or any flailing instrument consisting of two or more rigid parts connected in such a manner as to allow them to swing freely, which may be known as a nun chahka, nun chuck, nunchaku, shuriken, or fighting chain, or any disc, of whatever configuration, having at least two points or pointed blades which is designed to be thrown or propelled and which may be known as a throwing star or oriental dart, or any weapon of like kind, and any stun gun or taser[.]” OCGA § 16-11-127.1 (a) (2).

This statute was enacted pursuant to Ga. L. 1992, p. 1315, § 2, wherein the General Assembly intended to assign criminal penalties for the possession of “certain weapons” while at school. (Emphasis supplied.) Ga. L. 1992, pp. 1315, 1316. The Legislature has altered this statute three times since its enactment in order to further include certain items in the definition of “weapons,” to exclude certain other items from the definition of “weapons,” and to exclude certain people from the proscriptions of the Act. See Ga. L. 1994, p. 543, § 1; Ga. L. 1994, p. 547, § 1.

The time and effort our Legislature has spent in perfecting this law reflects the inherent difficulty in developing restrictions when education is involved. Clearly, many educational institutions encompassed within a “school safety zone” offer instruction in sports, art, mechanics, wood shop, metal shop, home economics which includes sewing and cooking, and other “hands-on” classes that necessarily require the presence of “tools” or “equipment” which could constitute “weapons” to some, e.g., cleats, screwdrivers, scissors, paring knives, awls, saws, seam rippers (i.e., razor blades), mat knives, forks, needles, pins, hammers, and nails. To ban such items would be to chill the learning potential in our schools. Thus, the General Assembly had the task of balancing the chilling effect on classroom endeavors with the stated purpose for the Act, “[t]o provide measures and procedures to enhance school safety.” Ga. L. 1994, p. 1012. Accordingly, the General Assembly clearly intended to specifically list those instruments that it decided should fall within the category of “weapons” and intended to leave out those instruments whose proper use would label them as “tools” or “equipment.”

To this end, it appears obvious that a body politic which deliberately included in its definition of “weapon” a “nun chahka” with four additional synonyms therefor, and all forms of “oriental dart” certainly would have included an item as common as a razor blade, had they intended for that “tool” to fall within the proscribed weaponry of OCGA § 16-11-127.1 (a) (2).

Contrary to the position of the state, our decision In the Interest of L. N. M., 222 Ga. App. 589 (474 SE2d 762) (1996) does not demand a different result, because L. N. M. is distinguishable from this case on both the facts and the law.

OCGA § 16-11-127.1 (a) (2) specifically lists a “straight-edge razor” as a prohibited weapon. In L. N. M., this Court found that the retractable razor blade utility knife which was removed from the defendant at school could fall within the definition of such “razor.” In the Interest of L. N. M., supra at 590. Thus, since this instrument could fall within the definition of a weapon prohibited by the statute, whether it did or not was a question for the trier of fact. On appeal, the factual determination of the juvenile court was not disturbed, because it was not shown to be clearly erroneous. In the Interest of L. N. M., supra at 590, citing State v. Wilson, 220 Ga. App. 538, 539 (469 SE2d 804) (1996). However, in this case the single-edged blades, alone, cannot be considered to fall within the definition of a “straightedge razor.” Simply as a matter of common sense, the blade that goes into a razor is not the razor, itself.

“It is an elementary rule of statutory construction that, absent clear evidence to the contrary, words should be assigned their ordinary, logical, and common meaning.” (Citations and punctuation omitted.) Fields v. State, 216 Ga. App. 184, 186 (453 SE2d 794) (1995). As the instruments considered to be “weapons” are specifically described in OCGA § 16-11-127.1 (a) (2), under the historic principle expressum facit cessare taciturn, it may be inferred that the Legislature intended to include only those types of instruments specifically mentioned therein. Fields, supra at 186; State v. Peters, 213 Ga. App. 352, 355 (444 SE2d 609) (1994). It follows, then, that the Legislature did not intend for OCGA § 16-11-127.1 (a) (2) to include a single-edged razor blade alone, without an accompanying implement for wielding the blade, in its proscribed list of weaponry.

Nor are we persuaded by the state’s contention regarding the phrase of inclusion contained in the statute, “or any weapon of like kind”: the state maintains that “a person of common intelligence understands that the language of ‘any weapon of like kind’ refers back to the entire list of named instruments, not the last instrument specifically named,” and thus, encompasses a razor blade as a prohibited weapon “of like kind.” (Emphasis in original.) We cannot agree.

“It is a well-recognized rule of construction that when a statute or document enumerates by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis with the things specifically named.” (Emphasis supplied.) Beavers v. LeSueur, 188 Ga. 393, 403 (3) (3 SE2d 667) (1939). However, the statutory listing in question did not conclude with the referenced phrase, “or any weapon of like kind”; another weapon is named thereafter. Thus, this phrase of inclusion was not intended to refer to the entire list, and the principle of ejusdem generis does not apply.

In fact, a review of OCGA § 16-11-127.1 (a) (2) shows that several similar phrases of inclusion are made as a part of the statutory listing of weapons. Each of these phrases of inclusion refers to the category of “weapon” immediately preceding: (1) referring to guns, “or any weapon designed or intended to propel a missile of any kind”; (2) referring to knives, “or other knife having a blade of three or more inches”; (3) referring to clubs, “or other bludgeon-type weapon”; and (4) referring to the recent phenomenon of razored throwing discs, which come in a myriad of shapes and sizes, “or any weapon of like kind.” If “any weapon of like kind” was intended to be a general term of enlargement referring to the entire list of weapons, it would render the other phrases of inclusion used in the list redundant surplusage. “Where possible, effect is to be given to all the words of a statute, and it is firmly established that courts should not interpret a statute so as to render parts of it surplusage or meaningless.” (Citations omitted.) Jordan v. State, 223 Ga. App. 176, 181 (477 SE2d 583) (1996).

While, as the state urges, there is little doubt that a razor blade can be used as a weapon, that is not the question before this Court, nor was it the question before the court below. Unless or until the statute is changed legislatively, the single-edged razor blades involved herein are not “weapons” within the meaning of OCGA § 16-11-127.1 (a) (2), the School Safety Zone Act. Accordingly, we are constrained to hold that the juvenile court’s finding to the contrary was clearly erroneous, and the appellant’s adjudication of delinquency is reversed.

Decided October 2, 1997.

Michael Terrell, for appellant.

Cheryl F. Custer, District Attorney, Robert G. Mikell, Assistant District Attorney, for appellee.

2. The petition in this case specifically charged appellant with a violation of OCGA § 16-11-127.1. While appellant’s act as alleged in the petition, possession of the razor blades in the plastic container, does not rise to a violation of the state law as charged, her act may well have violated school rules or the conditions of her probation so as to support a determination that appellant is “unruly.” By this opinion, we express no view as to whether appellant’s conduct may justify further action deemed appropriate pursuant to OCGA §§ 15-11-2 (12) and 15-11-25 et seq.

Judgment reversed.

Ruffin, J., concurs. Birdsong, R J., concurs in judgment only.

       The propriety of the search has not been contested.

       Citing Webster’s Third New International Dictionary: “Razor: A keen-edged cutting instrument made with, the cutting blade and handle in one (as a straight razor) or with the cutting blade inserted into a holder (as a safety razor or electric razor) and used chiefly for shaving or cutting the hair.” (Emphasis supplied.)

       “Razor blade: A thin, sharp-edged piece of steel that can be fitted into a razor.” (Emphasis supplied.) The American Heritage Dictionary, 3rd ed., p. 1503.

       “That which is expressed makes that which is implied to cease.” Black’s Law Dictionary, 5th ed., p. 522; see also Hinton v. State of Ga., 224 Ga. App. 49 (479 SE2d 424) (1996).


author: McMurray, Presiding Judge.

text:
    A97A1235.
    HARDEMAN v. SPIRES.
    (492 SE2d 532)
   McMurray, Presiding Judge.

Hardeman, the plaintiff in this slip and fall case, was injured while making a pizza delivery to the home of defendant Spires. Plaintiff delivered pizza to the front door of defendant’s home in the early afternoon of a rainy day. As she was leaving, plaintiff slipped on the porch and fell. The complaint alleges that plaintiff fell due to the slippery condition of the tile flooring on the porch combined with the lack of any handrails or other protective devices. Plaintiff appeals the grant of summary judgment in favor of defendant. Held:

1. Plaintiff contends that the affidavit of her expert was sufficient to create genuine issues of material fact. One argument in support of this contention is that the expert’s affidavit was unopposed since no other evidence had been filed in the case. However, this position is contrary to the record sent up from the lower court. Attached as exhibits to defendant’s motion for summary judgment were a number of depositions taken in an earlier filing of this action which was voluntarily dismissed. These are the depositions of plaintiff, defendant, and Ayers, a friend of defendant’s who installed the tile flooring of the porch. Plaintiff made no objection in the superior court to defendant’s reliance on these depositions and instead referenced these same depositions in her argument in opposition to defendant’s motion for summary judgment. In addition, the affidavit of plaintiff’s expert is predicated in part upon review of these depositions. Plaintiff’s contention that the superior court did not consider these depositions is contradicted by the record. Any contentions that the superior court should not have considered the depositions could have been raised in the first instance below but were not, resulting in waiver. Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 439 (4) (280 SE2d 842). Plaintiff’s contention that the depositions should not have been considered because they had not been filed is without merit. Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604).

2. The affidavit of plaintiff’s expert opined that the construction of the porch was in violation of the requirements of “the ‘Standard Building Code,’ which is a model construction code in place and utilized throughout the South . . .” in that guardrails and handrails should have been provided but were not. The expert further opined that the porch constituted an unreasonable hazard and that plaintiff’s injuries could have been avoided by the placing of proper guardrails and handrails. Nonetheless, under the decision in Florence v. Knight, 217 Ga. App. 799, 800 (459 SE2d 436), even if plaintiff can establish that the absence of a guardrail and handrail was negligence per se as a violation of an applicable building code, plaintiff may be precluded from recovery by the equal knowledge rule.

The evidence of record does show that plaintiff had equal knowledge of the absence of any guardrail or handrail. Plaintiff had made previous deliveries to the same door of defendant’s home on two occasions. The absence of any handrail or guardrail was an easily visible static condition which plaintiff is assumed to have seen and realized the risk involved. Columns Properties v. Coleman, 222 Ga. App. 800, 801 (2) (476 SE2d 86). Also fatal to plaintiff’s claim of less than equal knowledge is the fact that the fall occurred as she was leaving, shortly after having previously crossed the area where she fell. Steele v. Rosehaven Chapel, 223 Ga. App. 523, 524 (478 SE2d 596); Souder v. Atlanta Family Restaurants, 210 Ga. App. 291 (435 SE2d 764).

Girone v. City of Winder, 215 Ga. App. 822, 824 (2) (452 SE2d 794) has no application to the case sub judice. Ayers, who installed the tile flooring on the porch, was not a trespasser. Additionally, the reasoning from that case relied upon by plaintiff was rejected by the Supreme Court of Georgia, and that portion of this Court’s opinion was overruled. City of Winder v. Girone, 265 Ga. 723 (1) (462 SE2d 704).

Decided September 15, 1997

Reconsideration denied October 3, 1997

We should also note that the use of the tile as a flooring material on the porch and the fact that the tiles became slippery when wet provided no basis for a recovery by plaintiff. It was uncontroverted that the tiles were a type appropriate for use outdoors. We have held that tile is a proper building material for covering floors and that installation of such an accepted material does not constitute negligence even though it may become slippery when wet. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 171 (1), 172 (138 SE2d 77).

3. Plaintiffs final enumeration of error contends that summary judgment should not have been granted in favor of defendant because the porch in question had been destroyed, depriving plaintiff of reasonable inspection, measurement, and testing of the site of her injury. Plaintiff contends such destruction or spoliation of evidence creates a presumption favorable to her and precludes summary judgment. American Cas. Co. &c. v. Schafer, 204 Ga. App. 906, 909 (420 SE2d 820).

Nonetheless, under the facts and circumstances of the case sub judice the principle that spoliation of evidence raises a presumption against the spoliator is of no assistance to plaintiff. Plaintiff’s contention is raised for the first time on appeal and is not supported in the record below by either evidence or argument, although on appeal defendant concedes that the porch has been dismantled since plaintiff’s fall.

Any prejudice arising from removal of the porch has been cured by photographs and other evidence which were examined by plaintiff’s expert. The primary allegations of plaintiff’s complaint, that the porch tiles were slippery and that the porch lacked guardrails and handrails, were established by the available evidence so that the practical importance of further evidence as to the condition of the porch is very slight. Furthermore, there is no suggestion in the record that dismantling of the porch was done in order to deny evidence to plaintiff. Under these circumstances, there is no support for a theory that plaintiff’s case was prejudiced by defendant’s destruction of evidence, and summary judgment in favor of defendant was not precluded. See Chapman v. Auto Owners Ins. Co., 220 Ga. App. 539, 542 (469 SE2d 783).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Dozier, Lee, Graham & Sikes, Neal B. Graham, for appellant.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas P. Allen III, for appellee.


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A0924.
    McGLOHON v. THE STATE.
    (492 SE2d 715)
   Birdsong, Presiding Judge.

Joel M. McGlohon appeals his convictions of aggravated assault and aggravated battery. He contends the trial court erred by setting aside two of his peremptory jury strikes and reseating two jurors previously challenged, and by failing to charge on the lesser included offense of battery in violation of OCGA § 16-5-23.1. McGlohon also contends his trial defense counsel was ineffective for failing to request a charge on this lesser included offense.

McGlohon, covered in blood, was apprehended by police who were responding to cries for help from a woman who had been physically attacked. Both McGlohon and the woman testified that they had been engaged in an extramarital affair and that one of them decided to break it off. The woman testified that it was her decision, but McGlohon testified that it was his. In any event, the woman testified that as she walked McGlohon to his car, he suddenly attacked her, stabbing her with a knife and hitting her. She testified that after she was knocked to the ground, McGlohon continued his attack by hitting her in the face while she was still on the ground. Medical personnel testified that she received serious injuries to her face and that she continues to suffer nerve damage. Held:

1. The transcript shows that after McGlohon exercised his peremptory challenges, the State invoked State v. Mayweather, 262 Ga. 727 (425 SE2d 659) to challenge McGlohon’s challenge of several potential women jurors, and after considering McGlohon’s explanation, the trial court overruled the challenges as to two jurors. McGlohon alleges that the trial court erred by disallowing these peremptory challenges.

“In J. E. B. v. Alabama, 511 U. S. [127] (114 SC 1419, 1429-1430, 128 LE2d 89) (1994), the United States Supreme Court advanced its holding in Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), to prevent litigants from exercising peremptory jury strikes based upon gender. The Equal Protection Clause of the United States Constitution prohibits discrimination in jury selection on the basis of gender as well as race. See Tedder v. State, 265 Ga. 900, 901 (2) (463 SE2d 697) (1995); Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996).” Herrin v. State, 221 Ga. App. 356, 357 (471 SE2d 297). The same standards used for reviewing claims of race discrimination are used for gender discrimination claims. Id. Batson requires a three-step process for evaluating these claims: After a prima facie showing that the challenges were used on the basis of gender, the party exercising the challenge must then articulate a gender-neutral explanation for the challenge, and then the trial court must determine whether the party alleging the discrimination proved purposeful discrimination. Kelly v. State, 209 Ga. App. 789, 790 (1) (434 SE2d 743). In this case, McGlohon used all of his 13 strikes against female potential jurors. Therefore, the trial court properly required his counsel to explain the basis for his strikes.

In responding, McGlohon’s burden was to show that his peremptory strikes were gender neutral, related to the case to be tried, and clear and reasonably specific. See Berry v. State, 263 Ga. 493, 494 (435 SE2d 433). Further a defendant may strike “from mistake, or from ignorance, or from idiosyncrasy” (Gamble v. State, 257 Ga. 325, 326 (2) (357 SE2d 792)), and he may strike for all sorts of consequential or inconsequential reasons, but he may not strike on the basis of gender. When the proponent of the strike offers a purported gender-neutral explanation, there is no requirement “to enunciate ‘an explanation that is persuasive, or even plausible.’ ” Jackson v. State, 265 Ga. 897, 898 (463 SE2d 699). A neutral explanation is one based on something other than the gender of the juror, and if discriminatory intent is not inherent in the explanation, the reason offered will be deemed gender neutral. Id. At the final stage of a Batson inquiry, the ultimate burden of persuasion regarding motivation rests with, and never shifts from, the opponent of the strike. Id. at 899. At the final stage, “ ‘implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.’ ” Id.

In this case, McGlohon’s counsel explained his challenge of one of the jurors, “one reason, because they had no children. I know that’s a reason. Another reason is because they just moved down here, they hadn’t been down here too long. ... I thought she was too old. I didn’t like her being 70 years old.” In regard to the other juror he stated, “I struck her, Mrs. Gross, because of the age difference between she [sic] and her husband. And she also has somebody in journalism and I don’t particularly hanker for it. And she also works for Advantage Health Care over at Candler Hospital and she had some knowledge of nursing that we voir dired on.”

A disparity in the ages of the prospective juror and the appellant can be a gender-neutral explanation which was related to the case being tried since the potential juror might consciously or unconsciously identify with the party/victim closer in age to the juror’s own age. Strozier v. Clark, 206 Ga. App. 85, 87 (424 SE2d 368); Bess v. State, 187 Ga. App. 185, 186-187 (369 SE2d 784). Age, however, was only one of the reasons offered for this strike. McGlohon also asserted that he struck this woman because she just moved to the area when the record showed that she had lived in the area for 17 years, and McGlohon retained male jurors who had lived in the area for less time. In regard to the other strike that was reversed, McGlohon stated that he based his strike, in part, because she had a knowledge of nursing, but the record shows that McGlohon also retained a male juror who also had such knowledge. Here considering the number of McGlohon’s strikes against women, the fact that McGlohon proffered a “laundry list” of reasons for almost every strike, only some of which were facially neutral, and the indication that counsel was engaging in post hoc rationalization, the trial court’s decision was well supported by the record.

As a trial court’s findings on a Batson issue are entitled to great deference and will be affirmed unless clearly erroneous (Higginbotham v. State, 207 Ga. App. 424, 426 (428 SE2d 592)), we must affirm the trial court.

2. McGlohon also contends the trial court erred by refusing to charge on the lesser included offense of battery (OCGA § 16-5-23.1) on Counts 2 and 3. As the record shows that McGlohon did not request such a charge, we start from the proposition that “[a] trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” Mosley v. State, 257 Ga. 382, 383 (2) (359 SE2d 653). “It is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Bullock v. State, 202 Ga. App. 65 (413 SE2d 219) (1991).” American Assn. of Cab Cos. v. Egeh, 205 Ga. App. 228, 231 (5) (421 SE2d 741). Therefore, there was no error in failing to give these charges.

3. McGlohon also alleges that his defense counsel was ineffective because he did not request charges on the lesser included offense of battery on Counts 2 and 3. “It is a well established rule that any allegation of a violation of the right to counsel should be made at the earliest practicable moment. See Smith v. State, 255 Ga. 654 (341 SE2d 5) (1986). Because an attorney cannot reasonably be expected to assert or argue his or her own ineffectiveness, claims of ineffective assistance of counsel are often properly raised for the first time in a habeas corpus petition. However, in Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987), we held that where new counsel appointed or retained after the trial amends the motion for new trial without raising the issue of ineffective assistance, the claim was waived. In Johnson v. State, 259 Ga. 428 (383 SE2d 115) (1989), we held that the claim may be raised for the first time in the direct appeal if the direct appeal marks the first appearance of new counsel. The rule is consistent: New counsel must raise the ineffectiveness of previous counsel at the first possible stage of post-conviction review.” White v. Kelso, 261 Ga. 32 (401 SE2d 733). As this record shows that McGlohon’s appellate counsel were not appointed when there was an opportunity to raise this issue in the trial court, the case must be remanded to the trial court for consideration of this issue.

Judgment affirmed in part and remanded.

Ruffin, J., concurs. Eldridge, J., concurs specially.

Eldridge, Judge,

concurring specially.

I concur in the majority’s judgment. I write to clarify the standard of review with regard to Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), in Division 1. Much has been written regarding Batson and Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992) analysis since 1995 when the Supreme Court of Georgia authored Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995), the case upon which the majority relies in its analysis of a trial court’s step three inquiry into the proffered explanations for the use of peremptory strikes.

Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995), which Jackson discussed in detail, has come to be seen in relation to its purpose, which was an explanation, of appellate court procedure when reviewing Batson/McCollum challenges on appeal; Purkett was not a directive for the trial court in its handling of a Batson/McCollum step three inquiry at the trial level. Purkett, supra at 131 LE2d at 840; Gardner v. State, 225 Ga. App. 427, 430 (483 SE2d 912) (1997). Thus, while Purkett held that “a legitimate reason is not a reason that makes sense” to the appellate court and that there is no requirement to “enunciate an explanation that is persuasive or even plausible” to an appellate court, such holding was never meant to apply to a trial court. Purkett, supra at 131 LE2d 840; Gardner, supra at 430-433. A legitimate reason is one that does make sense to the trial court and is plausible or persuasive to a trial court, whose duty it remains to determine that the proffered reason passes muster as “neutral, related to the case, clear and reasonably specific” based upon a myriad of factors to which an appellate court may not be privy through the record alone. Purkett, supra at 131 LE2d at 840; Batson, supra; Gardner, supra at 429-431, 434; see also Russell v. State, 267 Ga. 865, 867 (485 SE2d 717) (1997); Turner v. State, 267 Ga. 149 (476 SE2d 252) (1996); Greene v. State, 266 Ga. 439, 443 (5) (469 SE2d 129) (1996); Tedder v. State, 265 Ga. 900, 901 (463 SE2d 697) (1995). Purkett in no way required a trial court in step three to accept explanations that are unpersuasive or implausible simply because they are neutral on their face, and such a requirement would fly in the face of the trial court’s constitutional duty under Batson. Gardner, supra at 431; see also McKenzie v. State, 227 Ga. App. 778 (490 SE2d 522) (1997).

Further, the step three procedure of Batson/McCollum analysis on the trial court level has not been “collapsed” when the trial judge makes a decision regarding the plausibility of the striker’s explanations without hearing further from the challenger/opponent of the strikes. “Once the explanation for the strikes has been proffered, the inquiry is properly framed for the trial court’s determination.” (Punctuation omitted.) Gardner, supra at 429, citing Greene, supra at 443; Turner, supra; McKenzie, supra; Jones v. State, 226 Ga. App. 428 (487 SE2d 62) (1997); Herrin v. State, 221 Ga. App. 356 (471 SE2d 297) (1996). There is no obligation in step three for a trial court to formally “deem” explanations gender or race neutral simply because the explanations may be neutral on their face. Regardless of their neutral aspect, if the striker’s explanations appear implausible or unpersuasive to the trial court, the trial court may so find immediately following the proffered explanations and based upon the totality of the circumstances. McKenzie, supra; Scott v. State, 225 Ga. App. 729, 730 (484 SE2d 780) (1997); Gardner, supra at 428-429.

In addition, although “the ultimate burden of persuasion rests with, and never shifts from, the opponent of the strike,” in step three the trial court may determine that such burden of persuasion is satisfied by the strength of the challenger/opponent’s prima facie showing under step one. McKenzie, supra; Gardner, supra at 438 (use of all ten strikes to remove white jurors “was very persuasive indeed”); see also Lingo v. State, 263 Ga. 664, 665 (1) (a) (437 SE2d 463) (1993) (trial court determines whether otherwise neutral explanations are “strong enough to overcome the prima facie case”); accord Ford v. State, 262 Ga. 558 (423 SE2d 245) (1992).

Also, regardless of whether the reasons are neutral on their face, the trial court may determine that the burden of persuasion is satisfied by, inter alia: (1) the strength of the prima facie showing in step one, and the trial court’s disbelief of the proffered neutral explanations in relation thereto; (2) the trial court’s determination that the neutral explanations themselves are unpersuasive or implausible; (3) the trial court’s consideration of similarly situated jurors who were left unchallenged; (4) the trial court’s knowledge of the one utilizing the strike in relation to the neutral explanations given; and/or (5) the trial court’s knowledge of the community in relation to the neutral explanations given. Gardner, supra at 429, citing Hernandez v. New York, 500 U. S. 352, 359 (111 SC 1859, 114 LE2d 395) (1991), St. Mary’s Honor Center v. Hicks, 509 U. S. 502 (113 SC 2742, 125 LE2d 407) (1993), Hairston v. Gainesville Sun Publishing Co., 9 F3d 913, 914 (11th Cir. 1993); McKenzie, supra, citing Hernandez, supra, St. Mary’s Honor Center, supra. “In the typical peremptory challenge inquiry, the decisive question will be whether counsel’s [otherwise] race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the [striker’s] state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” (Emphasis supplied.) Hernandez, supra at 365; McKenzie, supra; Gardner, supra at 428; Scott, supra at 730; Taylor v. State, 219 Ga. App. 475 (465 SE2d 473) (1995).

Instructive, too, is our Supreme Court’s recent decisions in Greene v. State, 268 Ga. 47 (485 SE2d 741) (1997), and its predecessor, Greene, supra at 440 (2) (“Greene F). Although the referenced portions of these opinions deal with jury challenges under Wainwright v. Witt, 469 U. S. 412 (105 SC 844, 83 LE2d 841) (1985), in death penalty cases, the Supreme Court’s thorough discussion of the necessity for deference to a trial court’s determinations with regard to factual matters during jury selection applies no less completely to a trial court’s step three determinations under Batson/McCollum — in fact, the language echoes that of Batson/McCollum case law: “On review, an appellate court should not substitute its findings for those of the trial court. The conclusion that a prospective juror is disqualified for bias is one that is based upon findings of demeanor and credibility which are peculiarly within the trial court’s province and such findings are to be given deference by appellate courts.” Greene I, supra at 441.

Clearly a trial record alone cannot provide a legitimate basis from which to substitute an appellate court opinion for a trial court’s factual/credibility findings in step three; this has been recognized in numerous recent decisions wherein Batson/McCollum issues were raised. Jones, supra at 430 (“[t]he trial court, unlike this Court, had the opportunity to view [the] prospective jurors”); McKenzie, supra at 780-781 (“the trial judge . . . alone has the opportunity to observe the witnesses’ testimony and evaluate their credibility”); Scott, supra at 731 (1) (“the trial court can visually and auditorially observe the demeanor of both prospective jurors and counsel”); Gardner, supra at 434 (“a trial court’s credibility determination under Batson/McCollum will often go beyond the mere words that accompany the record before the appellate courts”); see also Greene I, supra at 440, citing Wainwright, supra at 426 (deference must be paid the trial judge because it is the trial judge “who sees and hears the juror”).

Obviously, the evolution of Batson/McCollum jurisprudence has been ongoing since the Supreme Court’s decision in Jackson. Based thereon, I concur with the majority’s judgment because I cannot say that the trial court was clearly erroneous in choosing to disbelieve appellant’s explanations. Appellant has not demonstrated error in the trial court’s factual/credibility determination that appellant’s explanations failed to overcome the prima facie case. Greene I, supra at 442; Turner, supra at 151; McKenzie, supra; Scott, supra at 731; Jones, supra; Gardner, supra at 438; Herrin, supra at 357; see also Lingo, supra at 666.

Decided October 3, 1997.

Zipperer & Lorberbaum, Alex L. Zipperer, Eric R. Gotwalt, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.


author: Judge Harold R. Banke.

text:
    A97A1487.
    McQUEEN v. THE STATE.
    (492 SE2d 720)
   Judge Harold R. Banke.

Richard A. McQueen, after being tried without benefit of counsel, was convicted by a jury for the sale of cocaine and possession of cocaine. On the sale count, which involved .2 grams of cocaine “crumbs” sold to McQueen’s co-defendant for $2, the trial court imposed a 25-year sentence. McQueen enumerates two errors which relate only to the illegal sale conviction. Held:

1. McQueen contends that the evidence was not sufficient to support his conviction for sale of cocaine. In light of the eyewitness testimony from three drug agents who claimed to observe a street corner drug transaction between McQueen and his co-defendant, his co-defendant’s testimony that she bought $2 worth of cocaine crumbs from McQueen, and the actual recovery of the cocaine by police where it had been discarded, a rational trier of fact could have found McQueen guilty beyond a reasonable doubt of the crime of sale of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. McQueen claims his constitutional right to counsel was violated when his application for a court-appointed attorney was denied. A person charged with a felony, like McQueen, has an unconditional and absolute constitutional right to a lawyer. Houston v. State, 205 Ga. App. 703, 704 (423 SE2d 431) (1992). “ ‘Waiver [of this right] will not be lightly presumed and a trial judge must indulge every reasonable presumption against waiver. . . .’” Id. Although McQueen never waived his right to counsel, his request for a court-appointed attorney was denied by the administrator of the Lowndes County Indigent Defense Program, Teresa Steinberg, who concluded McQueen was not indigent.

The Georgia Criminal Justice Act defines an “indigent person” as one “who is unable, without undue hardship, to employ the legal services of an attorney or to defray the necessary expenses of legal representation.” OCGA § 17-12-2 (5). Under the uniform eligibility guidelines, qualification for court-appointed counsel is based on net income defined as “only a client’s take-home pay, which is the gross income earned by a client minus those deductions required by law or as a condition of employment.” Uniform Superior Court Rule 29.5. In addition, “a person who has sufficient assets that are easily converted to cash by sale or mortgage may not be qualified for representation.” USCR 29.5. Here, the record is sparse as to how the determination was made that McQueen did not qualify for appointed legal assistance. The record does not include a standard application form for the appointment of counsel or a certificate of financial resources, such as that set forth in USCR 29.3. Nor does the record contain any order finding that McQueen was not indigent. See sample order in USCR 29.3.

The administrator of the indigent defense program testified at the new trial motion hearing that she had rejected McQueen’s request for a court-appointed attorney because McQueen admitted to owning certain items of gold jewelry and his wife had an income of $500-$900 every two weeks. According to Steinberg, neither McQueen nor his wife ever turned over any of the jewelry to her office. There is no evidence that McQueen had possession of or access to any of the jewelry. Nor does the record reflect the value of the jewelry or that it was easily convertible to cash.

The State’s argument that McQueen and his wife comprised a “family unit” is unpersuasive inasmuch as the rule defines “family unit” as including a defendant and his spouse, “if living together” and here, McQueen was not living with his wife. USCR 29.5. It is undisputed that McQueen, the father of four children under the age of eighteen, had recently moved to Valdosta and was engaged in construction work while ids wife continued to live in central Florida and to maintain a separate residence there. The State presented no authority for the proposition that a wife can be required to hire a defense attorney for her husband. We find that the record is insufficient to show that McQueen was not “indigent” within the meaning of OCGA § 17-12-2 (5) at the time of his trial. See Stapp v. State, 249 Ga. 289, 291 (1) (290 SE2d 439) (1982) (conviction reversed where court was not provided information enabling it to consider special circumstances which may have warranted appointed counsel).

Decided October 3, 1997.

William D. Edwards, for appellant.

H. Lamar Cole, District Attorney, for appellee.

Moreover, a trial court has a duty to affirmatively exercise its discretion to appoint counsel for nonindigent defendants based on individual circumstances as authorized by USCR 29.4 and 29.5. Flanagan v. State, 218 Ga. App. 598, 599 (462 SE2d 469) (1995). See Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992) (court abdicated its judicial responsibility by using mechanical sentencing formula). Thus, at a minimum, when McQueen appeared in court without counsel, it was incumbent upon the court to delay the proceedings long enough to ascertain whether McQueen acted with reasonable diligence in attempting to obtain an attorney’s services and whether the absence of an attorney was attributable to reasons beyond his control. Hasty v. State, 210 Ga. App. 722, 724 (1) (437 SE2d 638) (1993); Flanagan, 218 Ga. App. at 599. See Shaw v. State, 251 Ga. 109, 111 (303 SE2d 448) (1983) (nonindigent defendant’s reasonable diligence in procuring counsel must be determined by trial court). Compare State v. Smith, 264 Ga. 634 (452 SE2d 90) (1994) (trial court need not make determination on the record of waiver where defendant is nonindigent yet unable to afford retained counsel).

The transcript reveals that the trial court failed to exercise its affirmative duty of determining on the record whether McQueen exercised reasonable diligence in attempting to retain trial counsel. See Hasty, 210 Ga. App. at 724 (1). The denial of McQueen’s request for counsel appears to have been based solely on the fact that he did not satisfy certain indigency criteria of dubious applicability. Under these circumstances, we remand for a determination on the record as to whether the circumstances warranted appointment of trial counsel. Flanagan, 218 Ga. App. at 601; OCGA § 17-12-2 (5). If so, the trial court must order a new trial. Woods v. State, 223 Ga. App. 99, 102 (476 SE2d 865) (1996).

Case remanded with direction.

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

       Less than five months after the conclusion of McQueen’s trial, the same administrator determined that due to indigency McQueen was entitled to appellate counsel. We question, what financial circumstances, if any, changed in the interim.


author: Smith, Judge.

text:
    A97A1538.
    COPELAND v. THE STATE.
    (492 SE2d 723)
   Smith, Judge.

Bobby Stinson Copeland was charged in one indictment with three counts of selling cocaine and one count of possessing cocaine with intent to distribute, OCGA § 16-13-30 (b), and in a separate indictment with possessing a firearm during the commission of a felony, OCGA § 16-11-106 (b) (4). The case was tried before a jury, and the trial court granted Copeland’s motion for directed verdict as to one count of selling cocaine. The jury acquitted Copeland of the two remaining charges of selling cocaine and found him guilty of possessing cocaine with intent to distribute and the firearm charge. Copeland’s motion for new trial was denied. In this appeal, he raises the general grounds and alleges several evidentiary errors during trial. Finding none of Copeland’s enumerations meritorious, we affirm his convictions.

1. Copeland contends that the evidence was insufficient to support his convictions because the State presented only circumstantial evidence of his guilt, while an unimpeached defense witness testified to facts within his personal knowledge clearly indicating Copeland’s innocence.

We do not agree that the evidence was insufficient to authorize the jury to find Copeland guilty of the two charges on which he was convicted. The evidence presented at trial showed that Investigator N. J. (Nick) Neal was employed by the City of Lawrenceville Police Department and assigned to the Gwinnett County Narcotics Task Force. A confidential informant told Neal that an individual named Steven Lacour could place him in contact with someone who could supply him with cocaine. The informant introduced Neal to Lacour, from whom Neal bought cocaine on four occasions.

Neal testified that on each of the first three occasions he met Lacour, Lacour made a telephone call, and a red Jeep Cherokee met them. Lacour then took Neal’s money, entered the Jeep for a few minutes, and returned with cocaine. The red Jeep was registered to Copeland. Neal testified that the second time he and Lacour met with the man in the Jeep he was able to see the driver clearly, and he identified that driver as Copeland. At the fourth and final meeting, Neal was to purchase $1,000 worth of cocaine. The buy was not completed. After Lacour took the money (which Neal had previously photocopied) and entered the Jeep, Neal gave a takedown signal to other officers, and both Lacour and Copeland were arrested.

As soon as Lacour and Copeland were removed from the Jeep, Neal located a quantity of cocaine on the vehicle’s console. He also found a small quantity of crack cocaine under the console and a nine millimeter Glock handgun on the passenger seat. The gun was fully loaded, with seventeen bullets in the magazine and one in the chamber. Officers recovered $100 from Lacour’s person and $900 from Copeland’s person. The bills matched those Neal had photocopied.

Lacour was charged with all four drug offenses in the same indictment that charged Copeland. He pled guilty and testified in Copeland’s defense. He claimed full responsibility for selling Neal cocaine, testifying that the cocaine was his and that on each occasion Neal bought drugs from him, he had the cocaine in his jacket pocket at all times before handing it to Neal. On the last occasion, he saw the officers coming to the Jeep and dropped the cocaine in the Jeep. He asserted that he was just using Copeland as a cover, that Copeland never participated in or even knew about the drug sales, and that he did not get the cocaine he sold Neal from Copeland. He claimed to know Copeland because he once worked with him at an air conditioning business, his ex-wife knew Copeland’s wife, and he sometimes worked for Copeland at Copeland’s janitorial business. He testified that when he met Copeland in the Jeep they discussed Lacour’s ex-wife or the possibility of Lacour picking up some extra cash by helping out in the janitorial business. Lacour refused to name his supplier.

Notwithstanding Lacour’s testimony that Copeland knew nothing of the drug sales, $900 of the $1,000 of photocopied money that Neal had given Lacour to purchase the cocaine was found on Copeland’s person, and Lacour did not claim ownership of the loaded gun found in Copeland’s car. This evidence was consistent with the considerable circumstantial evidence detailing the four meetings, and it authorized the jury to believe the State’s theory rather than Lacour’s testimony as to Copeland’s complete innocence. The evidence presented was sufficient to authorize the jury to find Copeland guilty of possessing cocaine with intent to distribute.

. The same is true of the firearms charge. OCGA § 16-11-106 (b) (4) makes it a felony to have a firearm on one’s person or “within arm’s reach” while committing the crime of possessing cocaine with intent to distribute. Copeland argues that the State did not prove that the gun was “within arm’s reach” of him, which was an essential element of the offense. But evidence was presented that the gun was found on the passenger seat of the Jeep and that Copeland had been driving. The jury had an opportunity to observe Copeland throughout the trial, and they were authorized to determine from their observation whether the weapon was within his arm’s reach. The evidence was sufficient to authorize Copeland’s convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. In response to a question concerning how he developed information leading to the arrest of Lacour and Copeland, Neal testified “I had a confidential informant who advised me that a Mr. Lacour . . . could put me in contact with somebody who could supply me with some cocaine.” Copeland objected on hearsay grounds, and this objection was sustained. Copeland also sought a mistrial and requested that the trial court give the jury a curative instruction. The motion was denied, and the trial court refused to give a curative instruction.

On appeal, Copeland contends that the trial court erred in denying his motion for mistrial and in refusing to give a curative instruction. He argues that the hearsay testimony in issue was objectionable both because it implied that Copeland was a supplier of cocaine without enabling him to cross-examine his accuser, the confidential informant, and because it impermissibly placed his character in issue. We do not agree.

First, the testimony detailing the information related by the confidential informant was given to explain Neal’s conduct in pursuing the investigation and, as such, falls under a well-established exception to the rule against hearsay. Goldsby v. State, 186 Ga. App. 180, 183 (2) (367 SE2d 84) (1988).

Second, even assuming that Copeland was identifiable from the statement as the supplier, unlike the testimony in Boyd v. State, 146 Ga. App. 359 (2) (246 SE2d 396) (1978), that an informant had told the officer he had “ ‘set up a deal with a known narcotics dealer,’ ” Neal’s testimony did not address Copeland’s general bad character or his conduct in other illegal transactions. The testimony in this case, like that in Bennett v. State, 153 Ga. App. 21 (264 SE2d 516) (1980), referred “merely to the particular circumstances giving rise to the investigation and prosecution of” Copeland for the charged crime. Id. at 24 (II) (A). It did not therefore impermissibly place his character in evidence.

Finally, the testimony was admissible as part of the res gestae. Gaston v. State, 211 Ga. App. 116, 117 (3) (438 SE2d 107) (1993). It dealt with the manner in which the drug transactions that were the subject of the charged crimes were initiated.

3. Copeland asserts the trial court erred in admitting into evidence an audiotape surreptitiously made by Neal capturing Lacour’s portion of a telephone call Lacour made in Neal’s presence. Copeland’s voice was not recorded, and Lacour never stated the identity of the party he was calling. Shortly after the call, however, Copeland arrived at the scene, and the buy was effected.

We first note that this evidence pertained to Neal’s second buy, which comprised Count. 2 of the indictment. Since Copeland was acquitted of this charge, his contention would be harmless even if error. Russell v. State, 226 Ga. App. 574, 576 (2) (486 SE2d 704) (1997). But we find no error.

Copeland argues that the State was required to prove the fact of a conspiracy before being allowed to present the declarations of one of the conspirators against another conspirator, and that it had not done so at the time the tape was played. Copeland’s contention is an incorrect statement of the law. A trial court may admit testimony by co-conspirators before the conspiracy is shown, provided that the conspiracy is later shown. Lee v. State, 204 Ga. App. 283 (1) (418 SE2d 809) (1992).

Decided October 6, 1997.

Felix J. Dowdell, Randall S. Rolader, for appellant.

Moreover, we do not agree that the State had not yet shown that Lacour and Copeland conspired to sell Neal cocaine when the tape was played. The fact of a conspiracy need not be shown by an express agreement; it may be shown by proof that the parties acted in a concerted manner to accomplish a crime. Duffy v. State, 262 Ga. 249, 250 (1) (416 SE2d 734) (1992). In this case, Neal testified that Lacour told him he had to meet someone else to get the cocaine for Neal. During the previous buy, when the red Jeep pulled up Lacour announced that “his man was there.” After meeting with the red Jeep’s occupant during the previous buy, Lacour had returned with the cocaine. The red Jeep’s registered owner had been identified as Copeland. Neal’s testimony showed the same pattern held for the second buy, when the telephone conversation was recorded. The trial court did not err in admitting the tape.

4. Copeland maintains the trial court erred in denying his motion for a directed verdict of acquittal as to Counts 1, 2, and 4 of the first indictment, and on the firearms charge. We have previously determined that the evidence was sufficient to support Copeland’s conviction as to the charges of which he was convicted. It follows that the trial court did not err in denying his motion for a directed verdict as to these counts. See generally Lewis v. State, 215 Ga. App. 161, 163 (3) (450 SE2d 448) (1994).

Copeland was acquitted on the remaining charges, and thus any error as to those charges would be harmless. Russell, supra. We reject Copeland’s argument that evidence presented as to these charges tainted the jury’s consideration of the charges on which he was convicted. The evidence pertaining to the prior buys would have been admissible even had Copeland not been charged with separate crimes relating to those occasions, either as similar transactions or as part of the res gestae.

5. The trial court did not err in refusing Copeland’s request for a charge on the equal access defense. This defense is not applicable to co-indicted co-conspirators such as Lacour and Copeland, who are charged with joint possession. Castillo v. State, 166 Ga. App. 817, 821-822 (2) (305 SE2d 629) (1983). Copeland has not suggested that any other person had equal access to his car during the relevant time periods.

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.