author: Johnson, Presiding Judge.

text:
    A00A2095.
    HARDEMAN v. THE STATE.
    (544 SE2d 481)
   Johnson, Presiding Judge.

A jury found Dexter Hardeman guilty of committing aggravated sexual battery upon his girlfriend’s 15-year-old daughter. On appeal, he challenges the constitutionality of Georgia’s aggravated sexual battery statute, the sufficiency of the evidence to support the conviction, the trial court’s exclusion of evidence that the victim accused another person of molestation on a prior occasion, and the admission of similar transaction evidence. Because the constitutional challenges were not preserved for appellate review and the other enumerations are without merit, we affirm the conviction.

1. Hardeman initially filed this appeal in the Supreme Court of Georgia, but the Supreme Court transferred the case to this Court after holding that Hardeman waived his challenges to the constitutionality of OCGA § 16-6-22.2 (b) by not raising them at the earliest opportunity. We are bound by the Supreme Court’s ruling that no constitutional question was properly raised. Therefore, we will consider only the remaining enumerations of error.

2. Hardeman’s challenge to the sufficiency of the evidence is without merit. On appeal, we view the evidence in a light most favorable to the verdict. So viewed, the evidence shows that 22-year-old Hardeman was living with his girlfriend and her children. One evening, while his girlfriend was at work, Hardeman went into the children’s bedroom. The victim, S. H., was sitting on her bed. Hardeman walked over to her and began rubbing her leg. S. H. told him to stop and tried to move away, but Hardeman grabbed her arm and told her to go into the bathroom. Afraid, S. H. complied with his request. Hardeman pulled down her pants and inserted his fingers into her vagina. S. H. testified that Hardeman then forced her to have sexual intercourse with him.

Three other witnesses testified to similar transactions. B. M., a 14-year-old friend of S. H., testified that she was riding in a car with Hardeman and S. H.’s mother around the date of the charged incident. S. H. was in the backseat, and Hardeman was in the passenger’s seat. The three began playing a game in which they hit each other whenever a car passed them. Hardeman turned around and tried to grab B. M.’s breasts. She knocked his hand away. When S. H.’s mother got out of the car, Hardeman told B. M. that she had “some pretty legs” and asked her when they were “going to hook up.”

A 12-year-old friend of S. H. testified that, at around the same time as the charged incident, she and several other people, including Hardeman and S. H., were playing hide-and-seek in S. H.’s home. Hardeman turned out the lights and found 12-year-old V. W. hiding behind a couch. He grabbed her breasts, buttocks and genital area. V. W. punched him and ordered him to get off of her.

The victim’s 14-year-old sister, E. R., testified that as she walked out of the bathroom, Hardeman tried to touch her breasts. She punched him in the face, and he left the room. This incident occurred the same day as the charged offense.

A person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without that person’s consent. The term “foreign object” includes not only inanimate instruments, but also a person’s body parts, such as a finger. The evidence was sufficient for a rational trier of fact to find Hardeman guilty beyond a reasonable doubt of aggravated sexual battery.

3. Hardeman contends the trial court erred in excluding evidence that S. H. made a prior allegation of molestation against her stepfather. Hardeman points to evidence that S. H. told investigators in the earlier case that she was not sure whether her stepfather had actually molested her or whether she had only dreamed that he had. This, Hardeman argues, shows S. H.’s state of mind, namely that she is unable to distinguish “between a dream and reality.” The trial court did not abuse its discretion in excluding the evidence.

Evidence that the victim previously accused someone other than the defendant of sexual misconduct is generally not admissible. It is admissible only under certain limited circumstances. Those exceptions are: (1) to show that someone other than the defendant caused the victim’s injuries; (2) to show the victim lacks credibility if the victim’s prior allegations were false; and (3) to show other possible causes for the victim’s symptoms.

Hardeman relies upon the second type of exception. That exception, however, does not apply in this case. Before admitting proof of a victim’s false allegation of sexual misconduct by another, the trial court must determine whether a reasonable probability of falsehood exists. This threshold determination exists in order to protect the victim from unfounded allegations that she has made false accusations in the past.

Outside of the jury’s presence, S. H. was asked about the prior incident. Although she had difficulty remembering much about the incident or investigation, she testified that the previous investigation came about after she went to the doctor complaining of abdominal pain. When her mother and medical personnel asked questions to figure out what was wrong with her, S. H. replied that her stepfather might have been “messing with” her, meaning “rubbing on” her “and stuff like that,” but that she had been sleeping when it happened and it might have been a dream. In this case, S. H. testified that she was not sure if the previous incident was a dream and that she communicated her uncertainty to the police. She further testified that, at the time of the trial of the instant case, she was still not sure if the earlier incident had been a dream.

The officer who investigated the earlier case testified that S. H. told her at the time of that investigation that “she thought she had had a dream” that her stepfather had come into her room that night and touched her. S. H. kept saying she was not sure if she was dreaming or not, “that she just didn’t know.” According to the investigator, S. H. never actually accused her stepfather of molesting her. Even though the case was never prosecuted, the officer “always believed that this really happened to her.”

In light of the foregoing, Hardeman has not shown a reasonable probability that the victim previously made false accusations.* Therefore, this exception to the general rule against admitting this type of evidence does not apply here.

Hardeman’s other basis for admitting the evidence, to show the victim’s state of mind, i.e., that she is unable to distinguish between dreams and reality, is not one of the exceptions to the rule against admissibility. Indeed, we have held that the limited exceptions to the rule barring introduction of evidence of prior sexual incidents involving the victim are not to be expanded to include the desire to show that the victim is confused.

Moreover, we do not agree with Hardeman that the fact that the victim was uncertain as to whether the prior incident was a dream was relevant to the present case. The victim testified that she was asleep when the prior incident occurred, if it did occur; this explains her uncertainty as to whether that incident was a dream. However, she testified that she was not asleep when Hardeman came into her room. In fact, she testified on cross-examination, outside of the jury’s presence, that she was not asleep and could not have been confused about what happened when Hardeman came into her room. The evidence was not relevant to the present charge.

Under the circumstances, we cannot say the trial court abused its discretion in excluding the evidence.

Furthermore, even if the trial court should have allowed Hardeman to introduce the evidence, it is highly probable that the error did not contribute to the verdict. In light of the evidence against him, including the victim’s testimony and the testimony of several other adolescent girls, the trial court’s exclusion of the evidence was harmless.

4. Hardeman maintains the trial court erred in admitting similar transaction evidence because (a) B. M.’s testimony was irrelevant, and (b) E. R. testified without the jury having been given separate limiting instructions. This enumeration presents no grounds for reversal.

(a) The rule allowing similar transaction evidence has been most liberally extended in the area of sexual offenses. In those cases, evidence of similar previous transactions is admissible to show the lustful disposition of the defendant and to corroborate the victim’s testimony. Acts involving the sexual molestation of children or teenagers, regardless of the type of acts, are of sufficient similarity to be admissible.

Here, B. M. and S. H. were teenage girls with whom Hardeman had improper sexual contact in his girlfriend’s home or car. Both incidents occurred around the same time, and both victims knew him and his girlfriend. The fact that on cross-examination B. M. testified that Hardeman did not actually touch her breasts and might have been trying to grab her arm instead does not make her testimony irrelevant, particularly given his comment immediately thereafter about her legs and his inquiry as to when they would get together. The prior incident was sufficiently similar to the aggravated sexual battery charge for the evidence to be admitted.

(b) The argument that E. R.’s testimony should not have been admitted because the trial court failed to give adequate limiting instructions before she testified is without merit.

Although the trial court did not give separate limiting instructions before the second and third similar transaction witnesses testified, it gave one before the first witness testified. In that instruction, the trial court told the jurors that it was giving a charge to guide them “in your consideration of the evidence and testimony that you’re fixing to hear,” and then thoroughly instructed them on the use of similar transaction evidence.

After the first similar transaction witness testified, the state called V. W. to the stand. Defense counsel stated her continuing objection to the testimony, though she never objected to the lack of a second limiting instruction nor requested another limiting instruction. The same transpired when E. R. was called as a witness. The three similar transaction witnesses testified consecutively.

In the absence of a request, a trial judge is not required to give a contemporaneous limiting instruction regarding similar transaction evidence. Regardless of when the defendant wishes the jury instructed on the limited admissibility of similar transaction evidence, it is incumbent upon him to make a timely request for such a charge. Here, although there is no indication in the transcript that Hardeman requested any limiting instruction whatsoever, the trial court gave a limiting instruction before the first similar transaction witness testified. And, the trial court reiterated the limited application of the similar transaction evidence in its final charge to the jury. If Hardeman wanted the trial court to instruct the jury on the proper use of the evidence two additional times, it was his duty to make that request. The trial court did not err in failing to give, sua sponte, limiting instructions contemporaneously with each witness’ testimony. This enumeration is without merit.

Decided January 9, 2001.

Phyllis V. Harris, for appellant.

James R. Osborne, District Attorney, for appellee.

Judgment affirmed.

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

        Hardeman v. State, 272 Ga. 361 (529 SE2d 368) (2000).

       See Schmidt v. Feldman, 230 Ga. App. 500, 501-502 (2) (497 SE2d 23) (1998).

       We note that Hardeman was also charged with statutory rape, but the trial court directed a verdict of acquittal on that charge based on the lack of corroborating evidence. See OCGA § 16-6-3 (a).

       OCGA § 16-6-22.2 (b).

        Burke v. State, 208 Ga. App. 446, 447 (1) (430 SE2d 816) (1993).

       See Deal v. State, 241 Ga. App. 879, 881 (1) (528 SE2d 289) (2000).

       See Williams v. State, 236 Ga. App. 667 (1) (512 SE2d 363) (1999).

       See id.; Berry v. State, 235 Ga. App. 35, 37 (2) (508 SE2d 435) (1998).

        Gravitt v. State, 228 Ga. App. 760, 762 (2) (492 SE2d 739) (1997).

        Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992).

       See Mann v. State, 244 Ga. App. 756, 758-759 (2) (536 SE2d 608) (2000).

       See Williams, supra.

        Proper v. State, 208 Ga. App. 471 (1) (431 SE2d 133) (1993), overruled on other grounds, Strickland v. State, 223 Ga. App. 772, 775 (1) (a) (479 SE2d 125) (1996); see Blackwell v. State, 229 Ga. App. 452, 453-454 (2) (494 SE2d 269) (1997).

       See Berry, supra at 38 (2).

       See Gravitt, supra; Weldy v. State, 239 Ga. App. 849 (1) (521 SE2d 858) (1999).

       See Berry, supra.

        Wilson v. State, 210 Ga. App. 705, 708 (2) (436 SE2d 732) (1993).

        Condra v. State, 238 Ga. App. 174, 175 (2) (518 SE2d 186) (1999).

        Wilson, supra; see Baker v. State, 241 Ga. App. 666, 668 (1) (b) (527 SE2d 266) (1999) (physical precedent only).

        State v. Hinson, 269 Ga. 862 (506 SE2d 870) (1998); State v. Belt, 269 Ga. 763, 764-765 (505 SE2d 1) (1998).

        Hinson, supra.

       See generally Nealy v. State, 239 Ga. App. 651, 652 (2) (522 SE2d 34) (1999); Spruell v. State, 237 Ga. App. 448, 452-453 (5) (514 SE2d 896) (1999).


source: Caselaw Access Project

license: Public Domain

text:
    A00A2214.
    GOSNELL v. THE STATE.
    (544 SE2d 477)
   Johnson, Presiding Judge.

A grand jury indicted Paul Gosnell on two counts of aggravated sodomy and two counts of aggravated child molestation for acts committed against his son. A jury found him guilty of one count of aggravated sodomy and one count of aggravated child molestation. The trial court granted Gosnell’s motion for new trial as to the jury’s verdict for aggravated sodomy, but denied Gosnell’s motion as to the jury’s verdict for aggravated child molestation. Gosnell appeals from this ruling, asserting (1) individual voir dire of two prospective jurors was conducted at the bench without his presence, (2) the state elicited opinions from two expert witnesses regarding the ultimate issue, (3) the state elicited an opinion from an expert witness regarding the victim’s credibility, and (4) he was denied effective assistance of counsel. Because each of these assertions lacks merit, we affirm Gosnell’s conviction for aggravated child molestation.

1. Gosnell first contends that questions were asked of two prospective jurors during individual voir dire at the bench when he was not present and did not waive his presence. According to the record, Gosnell’s attorney requested the individual voir dire, and Gosnell was present in the courtroom when the trial judge held the individual voir dire at the bench.

A defendant and his attorney have a constitutional right to be present at every stage of the defendant’s trial, including voir dire. Pretermitting the question of whether Gosnell’s presence in the courtroom satisfies the requirement that he be present during individual voir dire which occurs at the bench, Gosnell has failed to show that he was unable to see and hear the voir dire at the bench. Since Gosnell has failed to carry his burden of showing affirmatively by the record that error was committed, we cannot say that the trial court erred in denying Gosnell’s motion for new trial on this ground.

2. Gosnell contends that questions directed to a doctor who examined the victim and the detective investigating the case were improper because they elicited opinions regarding the ultimate issue in the case: whether the victim was molested and whether Gosnell committed the crime. He further contends that another medical expert improperly commented on the victim’s credibility. While we find that error occurred in all three instances, we also find that the error does not require a reversal of Gosnell’s conviction.

(a) Georgia courts have repeatedly held that a witness, including an expert witness, may not express his or her opinion as to whether a child has been molested.

The record in the present case shows that the detective who investigated the case was asked questions by Gosnell’s attorney regarding his decision to reopen the investigation. In response, the state asked the detective whether his decision not to prosecute Gosnell in the initial investigation was a good decision or a bad decision. The detective replied that from what he now knew, it was a bad decision. The state then asked him, “Now that you have in fact prosecuted him, have you fulfilled what was requested, did you go through your investigation and find the man who did it?” The detective responded, “yes. I did.” We agree with Gosnell that the questions to the detective and his responses were improper. The detective’s comments were not based upon his professional knowledge or skill. And, the detective did not testify to any professional observations that formed the basis for his conclusions. He simply expressed his unsupported opinion that Gosnell was the perpetrator of the offense. This conclusion was a matter strictly within the province of the jury, and the admission of his testimony was error.

The record further shows that counsel for the state asked a doctor who examined the victim, “Did you formulate an opinion in this case as to whether or not [the victim] had been molested?” The doctor replied “yes” and was then asked, “And what is that opinion, please, sir?” The doctor responded that, given the victim’s story and the exam, it was “quite likely” that the victim had been molested. The state does not argue that the testimony is proper, and we agree with the trial court’s ruling that the testimony was an improper comment on the ultimate issue at trial.

(b) It is well established that credibility of witnesses is exclusively for determination by the jury, and the credibility of a victim may not be bolstered by the testimony of another witness. Although a medical expert may testify that certain symptoms or history described by a child are consistent with molestation, an expert cannot directly or indirectly vouch for the victim’s credibility.

The record in the present case shows that a pediatrician who examined the victim testified that her physical findings were negative and there was no evidence that the victim’s anus was torn. The pediatrician was asked, “Does that tell you that what he is saying is not true?” She responded, “No.” While this question may have been asked merely to allow the expert to explain her negative findings, the expert could have been asked a myriad of other questions to elicit an explanation. The question asked and the expert’s response clearly commented on the victim’s credibility and were improper.

(c) Having determined that the testimony complained of was error, we must decide whether its admission amounts to plain error in the absence of any objection by Gosnell’s trial counsel. As a general rule, a party cannot object to the admission of evidence after the evidence has been admitted without objection; failure to object at the time the evidence is offered amounts to a waiver of any objection which might have been raised. However, there is an exception to this general rule in cases of plain error. “Plain error is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” Although we do not condone the state’s conduct, we cannot say that any of the errors in this case amounts to plain error.

In the present case, neither the detective’s and the doctor’s comments on the ultimate issue nor the second doctor’s single comment bolstering the victim’s credibility was the only evidence linking Gosnell to the crime. The victim consistently testified and told others that Gosnell “stuck his goober up my butt” and “stuck it up my mouth.” Other evidence supporting Gosnell’s conviction included medical evidence of molestation and Gosnell’s previous conviction for aggravated child molestation of another of his children. Given this other evidence, we find it improbable that any of the complained-of errors was the deciding factor for the jurors. The trial court did not err in denying Gosnell’s motion for a new trial based on these errors.

3. Gosnell next argues that the trial court erred in refixsing to grant his motion for new trial because he received ineffective assistance of trial counsel. He bases his ineffective assistance argument on the fact that his trial counsel failed to object to the above testimony commenting on the ultimate issue in the case and bolstering the victim’s credibility. He also cites one other instance where the victim’s credibility was allegedly bolstered by his own trial attorney.

Gosnell bears the burden of establishing that he received ineffective assistance of trial counsel, and the trial court’s finding that Gosnell’s trial counsel was effective will be upheld xxnless it is clearly erroneous. To meet his burden of proof, Gosnell must show not only that his trial counsel’s performance was deficient, but also that the deficiency so prejudiced his defense that, but for trial counsel’s performance, a reasonable probability exists that the result of the trial would have been different. To succeed in his claim, Gosnell

must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result.

It is well established that the decision of whether to interpose certain objections is a matter of trial strategy and tactics. As such, these decisions usually provide no basis for a reversal of a defendant’s conviction. Additionally, trial counsel testified at the motion hearing that on at least one occasion she “did not take the question to be a comment on whether [the victim] was believable.”

Pretermitting whether trial counsel’s decision not to object to the challenged testimony constituted ineffective assistance of counsel, it does not require reversal because Gosnell has failed to establish that the testimony so prejudiced his defense as to affect the outcome of his trial. For the reasons discussed in Division 2, we are persuaded that the statements regarding the ultimate issue and the statements bolstering the victim’s credibility were not so significant as to have contributed to the jury’s verdict, especially in light of the consistency in the victim’s statements, the medical evidence submitted to the jury, and Gosnell’s previous conviction for aggravated child molestation. The trial court’s finding in the present case is not clearly erroneous. In fact, counsel was so effective that Gosnell was acquitted on one count of aggravated child molestation and one count of aggravated sodomy. It was not error to deny his motion for new trial on this ground.

Decided January 9, 2001.

Douglas L. Henry, for appellant.

Michael H. Crawford, District Attorney, E. Jay McCollum, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Speed v. State, 270 Ga. 688, 690 (2) (512 SE2d 896) (1999).

       See Jones v. State, 259 Ga. 603, 604 (2) (385 SE2d 400) (1989).

        See Allison v. State, 256 Ga. 851, 853 (6) (353 SE2d 805) (1987); Putnam v. State, 231 Ga. App. 190, 191 (2) (498 SE2d 340) (1998); Hilliard v. State, 226 Ga. App. 478, 479-480 (487 SE2d 81) (1997).

       See Putnam, supra at 191-192.

       OCGA § 24-9-80.

        See Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994).

        Atkins v. State, 243 Ga. App. 489, 490-496 (2) (533 SE2d 152) (2000).

        Putnam, supra at 192.

       See id. at 193 (3).

        See Buice v. State, 239 Ga. App. 52, 56 (2) (520 SE2d 258) (1999).

       Id.

       (Citation and punctuation omitted.) Id.

       This state does not follow a “cumulative error” rule of prejudice; any error of record must stand or fall on its own merits and is not aided or aggravated by the accumulative effect of other claims of error. See Forehand v. State, 267 Ga. 254, 256 (7) (477 SE2d 560) (1996); Polk v. State, 225 Ga. App. 257, 259 (1) (d) (483 SE2d 687) (1997).

       See Buice, supra.

       See id.

       See id. at 59 (6); Polk, supra at 260 (1) (d).

       See Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997).

       (Citations and punctuation omitted.) Id.

       See Herndon v. State, 235 Ga. App. 258, 259 (509 SE2d 142) (1998).

       Id.

        Mency, supra at 645 (2) (c).

       See Buice, supra; Moss v. State, 216 Ga. App. 711, 714 (5) (455 SE2d 411) (1995).


text:
    A00A2377.
    DUKE v. THE STATE.
    (544 SE2d 201)
   Johnson, Presiding Judge.

Walter Duke appeals from his conviction of obstructing a law enforcement officer. Because the trial court erred in denying Duke’s motion to suppress evidence, we must reverse the conviction.

At about 12:40 a.m., on December 31, 1999, two undercover police officers were watching an apartment for suspected drug sales. The officers were sitting in a car in the apartment complex parking lot when they saw a moving van drive into the lot. The van stopped near the stairs leading down to both the basement apartment under surveillance and another basement apartment. The driver got out of the van and went down the stairs.

The officers could not actually see the two basement apartments from their vantage point, so they lost sight of the driver after he went down the stairs. They did not see if the driver entered either apartment. After about two minutes, the driver reappeared, coming up the stairs and getting back into the van. As the van left the parking lot, the undercover officers called on their radio for other officers in the area to look out for the van due to suspicious circumstances.

Two nearby patrol officers responded to the lookout. They did not see the van commit any traffic offenses, but they stopped the van based solely on the radio lookout. After the van had stopped on the side of the road, the driver jumped out and fled. The patrol officers searched the van and found a rental agreement with Duke’s name on it. But they found no contraband or other evidence of criminal activity.

Duke was eventually arrested and charged with obstructing an officer by fleeing. Duke moved to suppress the rental agreement, which led to his identification as the van driver, on the ground that the stop of the vehicle was unlawful. The trial court held a hearing on the motion, at which one of the undercover officers and one of the patrol officers testified. After the hearing, the trial court denied the motion, finding that the officers had an articulable suspicion that Duke had bought drugs.

Thereafter, Duke stipulated that the evidence presented at the suppression hearing would serve as the evidence for a bench trial. Based on that stipulation, the trial court found Duke guilty of obstruction. Duke appeals from his conviction, challenging the denial of the suppression motion.

A police officer may conduct a brief investigative stop of a vehicle only if he has specific and articulable facts which, taken with the rational inferences from those facts, reasonably warrant the intrusion. The critical issue in determining the stop’s validity is whether the officer had a particularized and objective basis for suspecting that the person stopped was engaged in criminal activity.

In the instant case, the patrol officers who stopped Duke did not see any traffic violations or other suspicious conduct justifying the stop. Instead, they stopped Duke based solely on the lookout broadcast by the undercover officers. Thus, in determining if the stop was justified, we must consider the facts known by the undercover officers.

Although the undercover officers were watching an apartment where drug sales were allegedly occurring, they were not in a position to actually see the apartment. Rather, they could see only the stairs leading to that apartment and another apartment. Once Duke went down the stairs, the officers could not see him. Consequently, they do not know if he went into the purported drug apartment. Instead, he may have gone into the other apartment, which the undercover officers also could not see, or he might not have entered either apartment. Regardless of any speculation about where Duke went after going down the stairs, there is no doubt that the officers did not observe any suspected drug transaction involving Duke.

Decided January 9, 2001.

Jennifer Snyder-Surges, for appellant.

Gwendolyn R. Keyes, Solicitor, Yolanda K. Johnson, Assistant Solicitor, for appellee.

Accordingly, the only facts known by the officers were that Duke stopped his van in the apartment complex parking lot, he went down the stairs, he came back up the stairs, and he left in his van. Those facts, and the rational inferences from them, did not give the officers an objective basis for suspecting Duke of criminal activity and did not reasonably warrant the stop of Duke.

Because the stop of Duke’s van was not lawful, the evidence discovered as a result of that stop should have been suppressed. The trial court’s failure to do so was error entitling Duke to a new trial.

Judgment reversed.

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

        Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998).

        McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999).

       See id. at 62-63.

       See Hughes, supra at 261.


author: Eldridge, Judge.

text:
    A00A0379.
    SEXTON v. CLAYTON COUNTY TAX DIGEST.
    (544 SE2d 202)
    Decided January 10, 2001.

      Lee Sexton, pro se.

      Thurbert E. Baker, Attorney General, Hancock & Echols, Jack R. Hancock, Brian R. Dempsey, Donald M. Comer II, Laurel E. Henderson, for appellee.

      Kilpatrick Stockton, Earle R. Taylor III, Alston & Bird, Kenneth B. Pollock, amici curiae.
   Eldridge, Judge.

In Clayton County v. Sexton, 273 Ga. 150 (538 SE2d 737) (2000) the Supreme Court reversed the judgment of this Court’s opinion in Sexton v. Clayton County Tax Digest, 242 Ga. App. 431 (529 SE2d 149) (2000). Therefore, we vacate our earlier opinion and adopt the opinion of the Supreme Court as our own.

Judgment affirmed.

Blackburn, C. J., and Barnes, J., concur.


author: Ruffin, Judge.

text:
    A00A2116.
    BRENNAN v. THE STATE.
    (544 SE2d 210)
   Ruffin, Judge.

. David G. Brennan was convicted in 1992 of two counts of child molestation and one count of aggravated child molestation. On December 28, 1999, Brennan filed a pro se motion for permission to file an out-of-time appeal, alleging that his court-appointed attorney failed to file an appeal after agreeing to do so, failed to respond to Brennan’s requests for information regarding the status of the appeal, and abandoned the case without notifying Brennan. Brennan also requested an evidentiary hearing at which he could examine his attorney regarding the failure to file an appeal. The trial court summarily denied the motion for an out-of-time appeal without holding a hearing, stating in a one-sentence order that the motion “fails to state a claim for which relief can be granted.” For reasons discussed below, we vacate the trial court’s ruling and remand for further consideration.

A defendant may be entitled to an out-of-time appeal if he was deprived of his right to appeal by his attorney’s negligence or ignorance, or if he was not adequately informed of his appeal rights. The defendant may, however, “by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights.” The disposition of a motion for out-of-time appeal thus turns on the issue of “who ultimately bore the responsibility for the failure to file a timely appeal.” “Where the record does not indicate that the trial court adequately addressed this dispositive issue, we will remand for a hearing to consider it.”

In this case, the trial court’s order does not reflect that the court considered the issue of who bore the ultimate responsibility for failure to file a timely appeal. “We will not speculate about the trial court’s reasoning,” particularly since it has failed to hold an evidentiary hearing on the matter. We cannot determine from the record exactly when Brennan first learned that no appeal had been filed on his behalf, so we cannot say whether he “slept on his rights” for an unreasonable period of time before filing his motion for an out-of-time appeal. Under these circumstances, the trial court’s summary denial of the motion must be vacated and this case remanded for an evidentiary hearing on the motion.

Decided January 10, 2001.

David G. Brennan, pro se.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Because of our decision above, it is not necessary to discuss Brennan’s remaining enumerations.

Judgment vacated and case remanded with direction.

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

       We note that the State’s appellate brief is singularly unhelpful, as it fails to offer any meaningful analysis of the relevant issues. In the five-sentence argument section of its brief, the State simply quotes a case for the proposition that a convicted party may forfeit his right to appeal by sleeping on his rights, without addressing whether Brennan did so in this case. The brief then says that “[t]he State also argues that appellant in his . . . request for an evidentiary hearing . . . failed to state a claim for which such relief could be granted,” without any discussion of why this might be so. The brief then purports to adopt this “argument” for “each of appellants [sic] remaining enumerations of error.” “We do not believe that this ‘argument’ satisfactorily discharges the State’s duty to file a response brief in all criminal appeals, as required by Court of Appeals Rule 13.” Williams v. State, 245 Ga. App. 259, 261, n. 1 (537 SE2d 125) (2000).

       See Eisele v. State, 238 Ga. App. 289 (519 SE2d 9) (1999).

       (Punctuation omitted.) Id.

       (Emphasis omitted.) Id. at 290.

       Id. at 289-290. See also Barnes v. State, 243 Ga. App. 703, 704 (534 SE2d 440) (2000); Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996).

        Eisele, supra at 290. The fact that a defendant does not request sin out-of-time appeal until several years after his conviction does not necessarily mean that he has forfeited his right to appeal. See Barnes, supra (more than six-year delay); Clayton v. State, 228 Ga. App. 874 (492 SE2d 894) (1997) (two-year delay).

       See Burroughs v. State, 239 Ga. App. 600, 601 (1) (521 SE2d 652) (1999) (noting that defendant “waited an additional two years [after learning that no appeal had been filed] before filing the motion for an out-of-time appeal”).

       See Barnes, supra; Eisele, supra.

       Although Brennan complains of the trial court’s denial of his request for a free transcript, he admits that he ultimately obtained a transcript before filing his motion for an out-of-time appeal. See Gay v. State, 143 Ga. App. 857, 858 (3) (240 SE2d 226) (1977) (defendant who has access to transcript cannot complain of prejudice resulting from lack of transcript). We also note that, in another enumeration, Brennan appears to claim that the judge who presided over his original trial erred in failing to recuse itself from a separate civil case. This enumeration raises no issue relevant to this criminal case.


text:
    A00A2133.
    SMITH v. THE STATE.
    (544 SE2d 208)
   Ruffin, Judge.

A Liberty County jury found Roy Smith guilty of five counts of possession of a vehicle with an altered vehicle identification number (VIN). On appeal, Smith contends that the trial court erred in admitting a computerized printout in violation of the best evidence rule and in admitting evidence of his character. Smith also asserts that he received ineffective assistance of counsel. We find that Smith’s contentions lack merit and affirm.

1. Smith contends that the trial court erred in admitting into evidence four computer printouts that listed the make, model, VIN, and owner of four of the cars that allegedly had altered VINs. The printouts came from the Georgia Crime Information Center (GCIC) computer. Smith objected to the introduction of this evidence, arguing that it was not the best evidence. According to Smith, the best evidence rule required the State to tender certified copies of the certificates of title and registration for the vehicles.

The best evidence rule, or the “original document rule,” provides that “[i]n order to prove the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent.” However, OCGA § 24-3-17 (b) provides that “[a]ny court may receive and use as evidence in any case information otherwise admissible . . . from any terminal lawfully connected to the [GCIC] without the need for additional certification of those records.” Before introducing uncertified computer printouts, a witness must lay the foundation for the admission of the printout. Here, a certified GCIC operator testified that she obtained the computer printouts from a GCIC terminal, and Smith does not challenge this foundation. As the evidence was clearly admissible under OCGA § 24-3-17 (b), Smith’s best evidence objection has no merit.

2. Smith also asserts that the trial court erred in admitting evidence of his character. The officer who arrested Smith testified that, at the time of the arrest, Smith had an outstanding warrant for aggravated assault. Smith objected to the officer’s testimony because he was not on trial for aggravated assault and such charge “had nothing to do with possession of a vehicle with an altered VIN.” Following this objection, the trial court instructed the jury that Smith

is not on trial for the offense of aggravated assault and you should not consider the fact that [the officer] had a warrant against him for the offense of aggravated assault. You should not consider that against him and use it against him adversely in any way whatsoever. [The officer] is simply explaining why [he] was looking for the defendant. And please disregard the fact that he was charged with aggravated assault.

After this instruction, Smith neither renewed his objection nor moved for a mistrial. Accordingly, he has waived the right to challenge the admission of such evidence on appeal.

Decided January 10, 2001.

John E. Pirkle, for appellant.

J. Thomas Durden, Jr., District Attorney, Richard E. Braun, Jr., Assistant District Attorney, for appellee.

3. In a related claim of error, Smith argues that his trial attorney was ineffective for failing to preserve the objection to this character evidence. To establish a claim of ineffective assistance, Smith

must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. Prejudice exists where there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel. We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.

In its order denying Smith’s motion for new trial, the trial court concluded that “the curative instructions were sufficient to remove any prejudice from the minds of the jurors.” Thus, the trial court rejected Smith’s claim that his attorney was ineffective on this basis. This Court has recognized that such curative instructions “can serve to prevent the alleged harmful testimony from having any prejudicial impact.” As Smith fails to make any cogent argument as to how he was prejudiced by his attorney’s alleged ineffectiveness, we cannot say that the trial court clearly erred in concluding that Smith was not prejudiced. Accordingly, his claim of ineffectiveness presents no basis for reversal.

Judgment affirmed.

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

        Merrill Lynch &c. v. Zimmerman, 248 Ga. 580 (285 SE2d 181) (1981).

       See Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994).

        Henson v. State, 168 Ga. App. 210, 213 (3) (308 SE2d 555) (1983).

       See Williams v. State, 244 Ga. App. 26, 27 (2) (535 SE2d 8) (2000).

       (Punctuation and footnotes omitted.) Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 636) (2000).

       (Punctuation omitted.) Watts a State, 223 Ga. App. 412, 417 (3) (477 SE2d 852) (1996).


author: Andrews, Presiding Judge.

text:
    A00A2281.
    LEWIS et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (544 SE2d 212)
   Andrews, Presiding Judge.

Willie and Calandra Lewis, father and daughter, appeal from the trial court’s grant of summary judgment to State Farm Mutual Automobile Insurance Company on their claim for medical expenses after Calandra was injured in a car accident. For the reasons which follow, we affirm.

The facts in this case are not in dispute. Calandra Lewis was injured in an automobile accident while driving a Honda Civic owned by her father Willie Lewis and insured by Metropolitan Insurance Company. Metropolitan paid $1,000 in medical expenses, which was the policy limit. The Lewises then made a claim on State Farm for the excess medical expenses. But, the State Farm policy did not insure the Honda Civic; it insured a Chevrolet van also owned by Willie Lewis. The trial court granted State Farm’s motion for summary judgment, concluding that the insurance policy with State Farm, on its face, did not provide coverage for Calandra Lewis’s medical expenses for injuries incurred while driving the Honda Civic. This appeal followed.

The Lewises’ only argument on appeal is that there is an issue of fact as to whether the Honda Civic is a “non-owned car” under the State Farm policy. We disagree. The policy is clear and unambiguous, and the Civic cannot be a nonowned car under its terms.

The State Farm policy provides that medical expenses are payable for bodily injury sustained by the insured and his spouse and relatives (a) while they occupy a vehicle covered under the liability section; or (b) if they are struck as a pedestrian by a motor vehicle. The liability section of the policy extends coverage to the use, by an insured, of a newly acquired car, a temporary substitute car, or a nonowned car. The Lewises argue on appeal that this allows for coverage while Calandra was driving the Civic because it was a nonowned car as far as Calandra Lewis was concerned.

This ignores the plain language of the insurance contract which provides that a

non-owned car — means a car not owned by or registered or leased in the name of: (1) you, your spouse, (2) any relative unless at the time of accident or loss: (a) the car is or has been described on the declarations page of a liability policy within the preceding 30 days; and (b) you, your spouse or a relative who does not own or lease such car is the driver; (3) any other person residing in the same household as you, your spouse or any relative; or (4) an employer of you, your spouse or any relative.

‘You” and “your” are defined in the policy as referring to the named insured on the declarations page. The named insured is Willie Lee Lewis. Although the policy does provide that a nonowned car is one not owned by any relative, it also clearly provides that it cannot be a car owned by the named insured. No one disputes that the car Calandra Lewis was driving was owned by Willie Lee Lewis, the named insured. Therefore, the Honda Civic is not a nonowned car under the policy. Accordingly, there is no coverage under the policy, and the court correctly granted State Farm’s motion for summary judgment.

Decided January 10, 2001.

Van C. Wilks, for appellants.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


text:
    A00A2454.
    GOSS v. THE STATE.
    (544 SE2d 206)
   Ruffin, Judge.

A jury found Quinton Antwon Goss guilty of felony theft by taking. Goss appeals, challenging the sufficiency of the evidence supporting his conviction. For reasons that follow, we affirm.

In reviewing Goss’s challenge to the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Goss guilty of each element of the charged offense beyond a reasonable doubt.

Viewed in this light, the evidence shows that on Sunday evening, June 13, 1999, Goss was a guest in the home of Tiffany Thomas. Thomas’s parents were away on vacation, and she invited several friends to the house for a party by the pool. Goss drove to the party, accompanied by his friend, Russell Hardeman. At about 10:00 that evening, Hardeman noticed Goss was missing and went inside the house to look for him. Hardeman testified that he found Goss in a bedroom, taking items from the room and stuffing them into duffel bags. According to Hardeman, he and Goss took the bags and went to a bathroom were Goss had stowed a shotgun and rifle. Goss and Hardeman hid the bags and the guns outside the house. The pair immediately left the party, put the hidden items in the trunk of Goss’s car and went home.

The next day, Thomas’s stepbrother, David, came home and discovered several items missing from his bedroom, including two duffel bags, a shotgun, a rifle, a handgun, several boxes of ammunition, bottles of cologne and some purple bags that previously contained Crown Royal whiskey bottles. Concerned, David looked around the house to discern whether anything else was missing. David found that his parents’ jewelry was also gone. When David’s father returned home, he discovered that a videocamera and stamp collection had also vanished.

Two days after the party, Goss took the stolen guns to his cousin’s house. Goss’s cousin, Bobby Greer, testified that on that day he helped Goss and Hardeman retrieve several items from Goss’s car trunk, including the guns and purple Crown Royal bags containing ammunition, and that the three of them then fired the guns in Greer’s backyard. After shooting the firearms, Goss departed, but he left all three guns, the bag containing cologne bottles and the stamp collection with Greer. Greer told the police that Goss also hid a purple bag containing jewelry under the floor of a nearby bam. Although Greer later returned the stamps to Goss, he sold the shotgun and rifle.

During their investigation of the theft, sheriff’s deputies interviewed individuals who attended Thomas’s party. The investigation led the deputies to Hardeman, who was found in possession of one of the items taken from Thomas’s home. After his arrest, Hardeman admitted that he participated in the theft, and after pleading guilty to theft by taking, he testified for the State at trial. Many of the other stolen items were later recovered from Greer, who also testified for the State concerning Goss’s possession of the goods. In addition, while searching the area around Greer’s home, deputies found the shell casings from the three weapons Goss and his companions fired in the backyard.

Based on this evidence, the jury found Goss guilty of felony theft by taking. On appeal, Goss asserts that the testimony of his accomplice, Hardeman, was insufficiently corroborated to support his conviction. We disagree.

Goss’s assertion regarding insufficient corroboration is based on the evidentiary rule that in felony cases, “where the only witness is an accomplice, the testimony of a single witness is not sufficient.” In this case, however, Goss’s accomplice was not the sole witness for the State, and only “[s] light evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict.” At trial, Hardeman’s testimony was corroborated by Thomas’s testimony that Goss attended her party. Hardeman’s testimony was also corroborated by Greer’s testimony that he saw Goss take the stolen items from his car trunk, that the three companions fired the guns in his backyard, that Goss left some of the goods with Greer and that Goss hid the jewelry bag under the barn floor. Although circumstantial, this evidence provided the jury with sufficient corroboration to identify Goss as a participant in the theft. Accordingly, we find that a rational trier of fact could have found Goss guilty beyond a reasonable doubt of felony theft by taking.

Decided January 10, 2001.

Elizabeth M. Grant, for appellant.

Harry N. Gordon, District Attorney, William W. Tanner, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

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

       OCGA § 24-4-8.

        House v. State, 237 Ga. App. 504, 505 (1) (515 SE2d 652) (1999) (quoting Givens v. State, 227 Ga. App. 861, 862 (490 SE2d 530) (1997)).

       See id.

       See OCGA § 16-8-2 (defining theft by taking); Jackson, supra.


text:
    A00A2467.
    In the Interest of C. T. et al., children.
    (544 SE2d 203)
   Andrews, Presiding Judge.

The father of C. T. and D. T. appeals from the juvenile court’s order terminating his parental rights. He argues there was insufficient clear and convincing evidence to show that his rights should be terminated and also claims the court should have secured his presence at the hearing, either in person or by telephone. We find no reversible error and affirm.

1. Before terminating a parent’s rights, a juvenile court, pursuant to OCGA § 15-11-81 (a), must employ a two-step procedure. In the Interest of C. L. R., 232 Ga. App. 134 (1) (501 SE2d 296) (1998).

First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

(Citations and punctuation omitted.) Id.

On appeal, we must determine
whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. . . . [T]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of C. L. R., supra.

The evidence at the hearing, viewed in the light most favorable to the juvenile court’s judgment, was as follows. C. T. was born on January 9,1996, and D. T. was born June 28,1998. The children have been in the care of the Department of Family & Children Services (Department) since February 17,1999, because the children’s mother had Huntington’s Disease and was unable to care for them. The father, who is an illegal alien, had been in prison since August 1998 and was awaiting deportation as a convicted felon at the time of the termination hearing. The father wrote the Department only one time while the children were in its care and never attempted to communicate with the children. In addition, the father has a criminal history of one conviction for simple battery, one conviction for aggravated assault, and one conviction for family violence, all involving attacks on the children’s mother.

The children are currently in a foster home, and the foster parents wish to adopt them. The home is suitable for the children, and the children have bonded with the foster parents.

With regard to the juvenile court’s finding on the first prong, clear and convincing evidence of parental misconduct or inability, the father does not dispute that the children are deprived and that lack of proper parental care is the cause of the deprivation. But, he argues there was not clear and convincing evidence that the deprivation was likely to continue and the continued deprivation will cause serious harm to the children. In support of this claim, the father contends that there was no evidence that he was violent with the children or that any case plans were developed and communicated to him.

In determining whether conditions of deprivation are likely to continue, the court may consider the past conduct of the parent. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). In this case, there was not only evidence of past unfitness, there was present unfitness also. Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). While imprisonment alone does not automatically authorize a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of L. K., 203 Ga. App. 522 (417 SE2d 344) (1992). Moreover, an incarcerated parent’s history of repeated criminal offenses “constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue.” (Punctuation and emphasis omitted.) In the Interest of J. K., 239 Ga. App. 142, 145 (520 SE2d 19) (1999).

Here, the evidence is uncontradicted that the father is unable to provide a home or any other necessities of life for the children. At the time of the final hearing, he was awaiting deportation to Mexico. He provided no evidence of when, if ever, he would be able to care for the children. In addition, he has provided no support for the children while in prison, has not attempted to communicate with them, has not inquired about them and has no relationship with them. In the Interest of J. K., supra. We find these factors to be “aggravating circumstances” supporting the termination of the father’s parental rights. Id.

In light of the above, the juvenile court correctly concluded that there was clear and convincing evidence that the pattern of deprivation is likely to continue and to cause harm to the children.

If the first prong of the test is met, the trial court then considers whether termination of the parental rights is in the children’s best interests. In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997). Although appellant does not argue that the juvenile court erred in finding that termination was also in the best interests of the children, we will address this issue.

In looking at this second prong, the court may consider the children’s need for a stable home environment and the detrimental effects of prolonged foster care. In the Interest of J. M. C., supra at 175. The court may also look at the same factors which show parental inability to care for the child to support a finding that termination of parental rights would be in the child’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988). The same evidence showing parental misconduct may, and in this case does, satisfy this requirement. In the Interest of C. L. R., supra at 138.

Decided January 10, 2001.

Michael R. McCarthy, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

Accordingly, the children’s need for a stable home environment, the father’s past and present unfitness to care for them and his failure to put forth any evidence that he will ever be able to provide for them were sufficient clear and convincing evidence that termination was also in the best interests of the children. In the Interest of J. M. C., supra; In the Interest of T. R. G., 162 Ga. App. 177 (290 SE2d 523) (1982).

2. The father also argues that the trial court erred in not securing his presence at the termination hearing. There was evidence in the record that a request had been made to the facility where the father was being held that he be “transported for the Hearings on his children.” The response was that “under no condition could [appellant] be moved from the facility (except for deportation).” Because the father’s inability to be present at the hearing was the consequence of his own actions, “we know of no constitutional entitlement mandating the right to appear personally in civil proceedings under such circumstances.” In the Interest of M. G. F., 222 Ga. App. 816, 818 (476 SE2d 100) (1996). Nevertheless, the father argues that he should have been allowed to participate via telephone. He cites to no authority in support of this argument, and we find none.

The juvenile court judge, addressing this issue in her order, noted that the father was being held in a federal penitentiary in Alabama and the court had been denied a similar request by the federal government in a previous case. The court further stated that such a call “would be unduly burdensome, expensive, and onerous to the decorum and efficiency of these proceedings.”

Moreover, the father was represented by counsel who appeared in his stead and who could have introduced any evidence appellant wished to put before the court. Counsel argued on the father’s behalf and had the opportunity to cross-examine and did cross-examine the Department’s witness. In the Interest of M. G. F., supra at 817. Accordingly, we conclude the father suffered no harm in not participating in the hearing and, therefore, has shown no reversible error in the trial court’s decision. Id.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       The children’s mother surrendered her parental rights on November 19,1999.


author: Ellington, Judge.

text:
    A00A1823.
    KIRKLAND v. THE STATE.
    (543 SE2d 791)
   Ellington, Judge.

A Fulton County jury convicted James Donald Kirkland of three counts of burglary, OCGA § 16-7-1; three counts of armed robbery, OCGA § 16-8-41; one count of aggravated assault, OCGA § 16-5-21; two counts of kidnapping, OCGA § 16-5-40; and two counts of possession of a firearm during the commission of a crime, OCGA § 16-11-106. The charges were based on four incidents in Fulton County during June and September 1992: (1) nighttime entry into the Foxx Adult Entertainment Club and theft of a safe containing money; (2) nighttime entry into a Home Depot store and theft of tools; (3) nighttime entry into the same Home Depot, use of armed force to make the store manager open the safe, and theft of money; and (4) armed robbery of two bouncers in the parking lot of the Blue Flame Club. As to each count, Kirkland was indicted along with several others. Most of the other defendants were law enforcement officers, and the group was dubbed the “Bad Cop” crime ring.

Following the denial of his motion for new trial, Kirkland appeals, contending the prosecution was barred by double jeopardy or collateral estoppel, contending he received ineffective assistance from his trial counsel, and asserting numerous other errors in jury selection, jury instructions, and the admission of certain evidence. Finding no error, we affirm.

1. Kirkland contends the Fulton County prosecution was barred by double jeopardy or collateral estoppel by his earlier acquittal in a Coweta County prosecution, citing Ashe v. Swenson, 397 U. S. 436, 443 (90 SC 1189, 25 LE2d 469) (1970), and Sanchez v. State, 242 Ga. App. 686 (530 SE2d 775) (2000). In Sanchez, we noted

[t]he doctrine of collateral estoppel, which is embraced within the constitutional guarantee against double jeopardy, means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit. The record of the prior proceeding must affirmatively demonstrate that an issue involved in the second trial was definitely determined in the former trial. The possibility that an issue may have been determined in the former trial does not prevent the relitigation of that issue.

(Citations and punctuation omitted.) 242 Ga. App. at 688 (3).

In the Coweta County prosecution, Kirkland was charged, along with two law enforcement officers, with one count of attempted burglary of a Wal-Mart store. The State presented evidence linking the attempted Wal-Mart break-in in December 1992 to other crimes attributed to the so-called Bad Cop crime ring. Kirkland testified and presented an alibi defense supported by several other witnesses. All three men were acquitted.

Kirkland contends that his acquittal in the Coweta County attempted burglary determined an issue of ultimate fact — that is, that he was not a member of the multi-jurisdictional criminal conspiracy — and prevented relitigation of the issue. This argument has no merit. Because Kirkland was not charged with conspiracy, the Coweta County jury’s general verdict of acquittal may or may not reflect a determination about whether Kirkland was a member of the Bad Cop conspiracy. Particularly in light of Kirkland’s presentation of an alibi defense, the jury’s verdict established only that the jury did not find beyond a reasonable doubt that Kirkland was involved in the Coweta County attempted burglary. The mere possibility that the Coweta County jury might have determined that Kirkland was not a member of the conspiracy did not prevent the relitigation of that issue in the later trial. Sanchez, 242 Ga. App. at 688 (3).

Furthermore, with regard to the Fulton County charges, whether Kirkland was a member of the Bad Cop conspiracy was not “an ultimate fact” because a finding of conspiracy was not necessary to support the charges of burglary, armed robbery, aggravated assault, and kidnapping. The State presented evidence that Kirkland personally and directly participated in the criminal acts charged. Davis v. State, 221 Ga. App. 168, 170 (2) (471 SE2d 14) (1996).

2. Kirkland challenges the decision to excuse a particular juror for cause on the basis of work responsibilities where other jurors were not excused for the same reason. During general questioning of the panel, many potential jurors responded that due to the length of the trial they might be distracted by other concerns. In particular, juror 13 indicated serving as a juror would impose a hardship because he had two projects due during the anticipated trial period and no one else could perform the work. Several of the veniremen who initially claimed work hardship stated on follow-up questioning that their work could be delayed or reassigned. The trial court excused juror 13, along with several other veniremen, on the basis of hardship but did not excuse some other jurors who initially responded that they had time concerns.

OCGA § 15-12-1 authorizes a trial court to exempt a person from jury duty if that person “shows that he or she will be engaged during his or her term of jury duty in work necessary to the public health, safety, or good order or who shows other good cause why he or she should be exempt.” From our review of the record, we conclude that the trial court properly considered each juror’s individual circumstances in light of the trial’s expected length and made a reasoned finding as to which veniremen would suffer an extraordinary hardship if required to serve. See Holsey v. State, 271 Ga. 856, 858 (2) (524 SE2d 473) (1999). The trial court did not abuse its discretion in excusing juror 13 while declining to excuse other prospective jurors with time concerns. McClain v. State, 267 Ga. 378, 382 (1) (477 SE2d 814) (1996).

3. (a) Kirkland contends that the trial court, by having an ex parte communication with a juror who asked to be excused, deprived him of his constitutional right to be present at all critical proceedings of the trial. On the morning of the fifth day of the trial, the trial court announced to counsel:

Juror Number 10 . . . came in this morning and informed me that her father who has been living with her [and] has been seriously ill . . . passed away [during the night]. . . . She is in no mental condition to continue as a juror in this trial. Based on these circumstances, I have exercised my discretion and have excused her from the remainder of the trial.

A criminal defendant has a constitutionally protected “right to be present, and see and hear, all the proceedings which are had against him on the trial before the Court.” (Citations, punctuation and emphasis omitted.) Hanifa v. State, 269 Ga. 797, 807 (6) (505 SE2d 731) (1998). “A critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” (Punctuation omitted.) Fortson v. State, 272 Ga. 457, 458 (1) (532 SE2d 102) (2000). The Supreme ■Court of Georgia has held that “where the accused is involuntarily absent from the proceedings, the trial judge should have no communications with a juror about the case, except as to matters relating to the comfort and convenience of the jury.” Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999). OCGA § 15-12-172 authorizes the trial court, in exercising its discretion, to “replace a juror with an alternate whenever it is convinced that the removed juror’s ability to perform his duties is impaired.” (Citations and punctuation omitted.) Cloud v. State, 235 Ga. App. 721, 722 (1) (510 SE2d 370) (1998).

Where a trial court makes an independent determination under OCGA § 15-12-172 that a juror is in fact too ill to complete deliberations, a defendant’s constitutional right to be present for all critical proceedings is not violated by the trial court’s failure to hold a hearing before excusing the juror. Miller v. State, 261 Ga. 679, 680 (6) (410 SE2d 101) (1991); Scott v. State, 219 Ga. App. 798, 799 (2) (466 SE2d 678) (1996); Graham v. State, 171 Ga. App. 242, 248-249 (5) (319 SE2d 484) (1984). Under the circumstances of this case, we find that the trial court independently determined that juror 10 was incapacitated and did not err in discharging her without conducting a hearing in Kirkland’s presence.

Kirkland also contends his trial counsel was ineffective for failing to move for a mistrial on this basis. See Division 6 (a), infra.

(b) Kirkland contends the trial court deprived him of his right to be present for another critical stage of the trial, specifically a discussion between counsel and the judge about how the trial court intended to respond to a note from the jury. The record shows that after a brief discussion with counsel about the jury’s question about certain definitions in the charge on the law, the trial court asked that Kirkland be brought into the courtroom before addressing its response to the jury.

The Supreme Court of Georgia has held that a defendant’s right to be present for all critical stages of his trial does not require his presence at every communication involving only the trial court and counsel. Ferrell v. State, 261 Ga. 115, 122-123 (12) (401 SE2d 741) (1991) (pretrial conference, limited in scope to scheduling, is not a critical stage of the proceedings requiring defendant’s presence). In this case, the trial court did not violate the proscription against communicating with the jury in Kirkland’s absence. Pennie, 271 Ga. at 421 (2). Furthermore, we conclude Kirkland failed to show what rights he could have lost or how the outcome of the case was otherwise substantially affected by the proceedings that occurred before he returned to the courtroom. Fortson, 272 Ga. at 458 (1). Under the circumstances, we conclude the brief colloquy between counsel and the trial judge about how the court intended to respond to the jury’s note was not a critical stage of the trial proceedings at which Kirkland had an absolute right to be present. Smith v. State, 209 Ga. App. 699-700 (1) (434 SE2d 528) (1993).

4. Kirkland contends that the trial court erred in admitting certain similar transactions evidence, specifically robbery of the Riverside Cinema in Riverdale and theft of a U-Haul truck, in that the State failed to prove that Kirkland committed those criminal acts. After a hearing, the trial court admitted six of the eleven extraneous acts the State proposed to introduce. After reviewing the entire record, we are satisfied that the trial court properly determined that Kirkland was a party to the robbery of the Riverdale theater and the theft of the U-Haul truck and that the crimes were admissible as similar transactions under the test set forth in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) and Uniform Superior Court Rule 31.3. See, e.g., Johnson v. State, 236 Ga. App. 252, 254 (1) (a) (511 SE2d 603) (1999). Furthermore, in light of the overwhelming evidence supporting Kirkland’s convictions, it is highly unlikely that the limited evidence of these two similar transactions contributed to the verdict, and any possible error in admitting them was harmless. Harris v. State, 222 Ga. App. 52, 53-54 (2) (473 SE2d 232) (1996).

5. (a) Kirkland claims the trial court erred in repeatedly failing to give a contemporaneous limiting instruction regarding the allowable uses of similar transactions evidence. The State contends that a contemporaneous instruction was given whenever requested. In State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998), the Supreme Court of Georgia reaffirmed the long-established rule that “[w]hen evidence is admitted for one purpose . . . , it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.” (Emphasis in original.) Id. Kirkland identifies a “myriad” of instances of evidence of the similar transactions. Kirkland, however, identified only one request for a limiting instruction, and the record shows that the trial court promptly instructed the jury regarding the limited use of similar transactions evidence. The trial court sua sponte or at the State’s suggestion gave contemporaneous limiting instructions at least three other times. Kirkland identified no instance in which he requested a limiting instruction and the trial court refused to give it. A defendant may not rely on a blanket request for “contemporaneous” instructions early in the trial: a request for a contemporaneous limiting instruction must itself be made contemporaneously with the admission of the evidence. State v. Hinson, 269 Ga. 862, 863 (506 SE2d 870) (1998).

(b) Kirkland also challenges the language of the similar transactions charge given during and at the end of the trial, relying on Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999) (conviction reversed where charge authorized jury to consider similar transactions as proof of the charged offenses). The record shows that in the first charge on similar transactions, the trial court limited the jury’s consideration of the evidence to identity, state of mind, knowledge, or intent of the defendant in the crimes charged in the indictment. In the final charge, the trial court instructed the jury:

The law allows a jury to consider evidence of other offenses of this defendant if the other offenses are similar in terms of common design, scheme, plan, course of conduct, motive and other factors connected with the offense for which the defendant is on trial. The evidence of prior offenses or transactions, if any, may be considered by you for the limited purpose of showing, if it does, bent of mind, course of conduct, or modus operandi of the defendant who is charged in the case now on trial.

Both in the contemporaneous charge and in the final charge, the trial court emphasized that the similar transactions evidence could not be considered by the jury for any other purpose. The error that caused reversal in Rivers was not duplicated here. Read in context, the phrase “other factors connected with the offense” did not “substantially expand [ ] the limited purposes for which similar transaction evidence can be used.” Rivers, 236 Ga. App. at 712 (1) (b). There was no error. Griffin v. State, 241 Ga. App. 783, 785 (4) (a) (527 SE2d 577) (1999). See Dumas v. State, 239 Ga. App. 210, 216-217 (4) (521 SE2d 108) (1999).

6. (a) Kirkland contends his trial counsel was ineffective for failing to move for a mistrial after the trial court, without conducting a hearing, excused the juror whose father had died. See Division 3 (a), supra.

In order to establish ineffectiveness of trial counsel under Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984), [Kirkland] must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Unless a defendant makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversary process that renders the result unreliable.

(Citations and punctuation omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

Furthermore, there is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance and that any challenged action might be considered sound trial strategy. In the absence of testimony to the contrary, counsel’s actions are presumed strategic. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Citations and punctuation omitted.) Clark v. State, 239 Ga. App. 245, 248 (5) (520 SE2d 245) (1999). Because there was no evidence that a hearing would have shown that the juror could have continued serving, Kirkland has not shown how he was prejudiced by his counsel’s failure to object to the replacement of the juror without a hearing.

(b) Kirkland contends his trial counsel was ineffective for failing to move to excuse for cause all jurors who owned stock in a victim, Home Depot. Assuming deficient performance, we find that Kirkland has not carried his burden of showing prejudice, that is, a reasonable probability that, but for counsel’s errors, the results of the proceeding would have been different. Tucker v. State, 245 Ga. App. 551, 554 (3) (538 SE2d 458) (2000). Prejudice is presumed only in very rare circumstances, as when the assistance of counsel is denied altogether or when counsel actively represents conflicting interests. Pullen v. State, 208 Ga. App. 581, 585-586 (3) (431 SE2d 696) (1993). See United States v. Cronic, 466 U. S. 648, 658-659 (104 SC 2039, 80 LE2d 657) (1984). We conclude after reviewing the record that Kirkland failed to produce any evidence that his counsel’s error in not moving to have Home Depot stockholders removed for cause contributed to the guilty verdicts. There was no evidence that Kirkland’s trial counsel had to accept undesirable jurors because he used peremptory strikes on Home Depot stockholders. Furthermore, there was no evidence regarding the jury’s deliberations. Therefore, the trial court did not err in denying his motion for new trial on this basis.

(c) Kirkland contends his trial counsel was ineffective for failing to object to testimony that a co-defendant attempted to suborn perjury. The statement would have been admissible over objection as an inculpatory statement of a co-conspirator made during the concealment phase of the conspiracy. Dalton v. State, 237 Ga. App. 217, 221 (1) (513 SE2d 745) (1999). See OCGA § 24-3-5. Because the statement was admissible, Kirkland has not carried his burden of showing prejudice resulting from his counsel’s failure to object. Allen v. State, 272 Ga. 513, 516 (6) (a) (530 SE2d 186) (2000).

(d) Kirkland claims his trial counsel was ineffective for failing to make a “continuing witness” objection to the jury having a police report and a letter with them during deliberations. Assuming deficient performance, we find that Kirkland has not carried his burden of showing prejudice. We conclude after reviewing the record that Kirkland failed to produce any evidence that his counsel’s error in not objecting to the jury having the letter and police report contributed to the guilty verdicts. Specifically, neither the letter nor the police report directly inculpated Kirkland in any of the indicted offenses, and neither provided the only evidence as to any element of any charged crime. And, again, there was no evidence regarding the jury’s deliberations.

Decided December 21, 2000

Reconsideration denied January 11, 2001

Brian Steel, for appellant.

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

(e) Kirkland claims his trial counsel was ineffective for failing to advance his sole defense. Certain witnesses testified for the State at the Fulton County trial who had earlier testified in the Coweta County trial in which Kirkland had been acquitted. See Division 1, supra. Kirkland contends his trial counsel should have objected to the State’s motion to exclude any evidence of the Coweta County attempted burglary. Specifically Kirkland argues his trial counsel should have presented his alibi witnesses to the Coweta County attempted burglary to impeach certain of the State’s witnesses in the Fulton County trial by proving

that these Fulton County witnesses were not truthful about [Kirkland’s] supposed involvement in criminal activity in Coweta County in order to show that therefore, these same witnesses were not being truthful about [Kirkland’s] alleged criminal conduct in Fulton County.

We conclude after reviewing the record that Kirkland failed to produce any evidence that his counsel’s failure to object to the exclusion of evidence of the Coweta County attempted burglary contributed to the guilty verdicts.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.”


author: Smith, Presiding Judge.

text:
    A00A1871.
    FORTSON v. THE STATE.
    (544 SE2d 719)
   Smith, Presiding Judge.

Randall Fortson was indicted on charges of trafficking in cocaine, selling cocaine, and possessing cocaine with intent to distribute, and a jury found him guilty as charged. His amended motion for new trial was denied, and he appeals, challenging the trial court’s denial of his motion to suppress and his challenge to the composition of the jury under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Finding no error, we affirm.

1. The evidence presented at the hearing on the motion to suppress and at trial showed that after receiving information from the Elbert County Sheriff’s Department that a certain pager number might be that of a drug dealer, agents of the Piedmont-Northern Multi-Agency Narcotics Squad (“MANS”) initiated a drug “buy/bust.” An agent called the pager number and arranged a drug buy using a confidential informant. The buy took place, and two individuals, Eddie Hall and Henri Ridgeway, were arrested. Ridgeway informed the arresting officers that Fortson had given him the cocaine to sell and that Fortson had been observing the transaction from a nearby alleyway, waiting to pick up Ridgeway after the sale was completed. The agents then decided to go to Fortson’s residence, detain and question him, and arrest him for selling cocaine.

When the officers arrived at Fortson’s home it was dark outside, and they found Fortson outside his home, running and carrying a flashlight and a police scanner. The officers identified themselves, then pursued and apprehended Fortson. Fortson was searched incident to the arrest, and a roll of money and a quantity of cocaine were found in his pockets. The officers then sought and obtained a search warrant for Fortson’s residence.

The premises were secured, and the search warrant was executed the next morning. In a search of the woods behind the residence, the officers uncovered under a log a bag containing a set of scales and a plastic bag of cocaine.

Fortson contends the trial court erred in denying his motion to suppress because the evidence seized from his person and at his home was the result of an illegal arrest since neither probable cause nor exigent circumstances existed to justify a warrantless arrest.

Both federal law and state law are involved in determining the validity of a warrantless arrest. Under federal law, the test is whether the arrest meets the requirements of the U. S. Constitution. An arrest is constitutionally valid if, at the moment the arrest was made, the facts and circumstances within the arresting officers’ knowledge based upon reasonably trustworthy information were sufficient to allow a prudent man to believe the suspect had committed, or was committing, a crime. Callaway v. State, 257 Ga. 12, 13-14 (2) (354 SE2d 118) (1987); Puckett v. State, 239 Ga. App. 582, 586 (2) (a) (521 SE2d 634) (1999). If an arrest fails to meet this standard, evidence obtained in connection with it is subject to the exclusionary rule.

Under state law, OCGA § 17-5-30 creates an exclusionary rule as well. OCGA § 17-4-20 (a) provides that a warrantless arrest is permissible in certain situations, such as when the offense is committed in the presence of the arresting officer or within his immediate knowledge; when the offender is trying to escape; or when a “failure of justice” is likely to occur if the officer delays the arrest until a warrant is issued. The Supreme Court of Georgia has held that if an officer acquires probable cause to arrest an accused outside his home, a failure of justice is likely to occur as a matter of law if the officer delays the arrest until a warrant is obtained. Durden v. State, 250 Ga. 325, 327 (1) (297 SE2d 237) (1982). The state rule is therefore the functional equivalent of the federal rule.

In determining whether probable cause existed, the totality of the circumstances must be considered. Norman v. State, 214 Ga. App. 408, 409 (448 SE2d 219) (1994). And flight in connection with other circumstances may constitute sufficient probable cause. Id. Here, Fortson identified himself to the caller seeking to buy drugs, who in reality was a police officer, and Fortson was named by the person actually selling the drugs as the supplier. When the officers went to his home, he attempted to flee. He was carrying a police scanner, which is typically used to monitor police activity and avoid police detection. In addition, the hood of his car was hot, indicating the car had been driven recently. Under the totality of these circumstances, probable cause existed to arrest Fortson.

No dispute exists that the arrest of Fortson took place outside his home, at the edge of some woods. Contrary to Fortson’s argument, therefore, the exigent circumstances requirement is not applicable here. See Puckett, supra at 586-587 (2) (b) (warrantless arrest with probable cause valid when defendant complied with officers’ request to step outside his home). See also Mincey v. State, 251 Ga. 255, 261-262 (6) (a) (304 SE2d 882) (1983) (warrantless arrest with probable cause proper when defendant requested to exit his home and did so). The trial court did not err in denying Fortson’s motion to suppress.

2. Fortson, who is African-American, also contends the trial court erred in denying his Batson challenge to the prosecutor’s use of peremptory strikes. We do not agree.

Relying upon Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998), Fortson argues that the trial court erred because after the State gave its explanations for the challenged strikes, the court ruled on the motion without allowing him to show that the facially neutral explanations given by the State for its strikes were, in fact, pretextual. We cannot agree with Fortson that any of the reasons given by the State were pretextual.

In his brief, Fortson supports his argument only with respect to juror no. 36. He claims that she was stricken because of her age and that another, white, juror in the same age bracket was not stricken, indicating that her strike was pretextual. But the prosecutor also stated that this juror knew Fortson and had attended school with him. In addition, and more importantly, she was the State’s last strike, and the State struck her to get to another juror on the list, which is permissible. See Alford v. State, 224 Ga. App. 451, 458 (6) (480 SE2d 893) (1997).

Decided January 11, 2001.

James W. Smith, for appellant.

Robert W. Lavender, District Attorney, for appellee.

The State also gave racially neutral reasons for the other four strikes used to eliminate African-American jurors. Juror no. 3 was stricken because he had problems with law enforcement, including five pending charges against him. The defendant had also dated a member of this juror’s family. Juror no. 15 was stricken because she was the owner and operator of a “notorious” establishment associated with drinking and drug problems, and she attended church with Fortson’s family. Juror no. 24’s husband was being prosecuted for child molestation at the time of the trial, and she had posted bond for her husband. Juror no. 33 had been sentenced on a DUI by the prosecutor when he was a state court judge. Although the State exercised five of its six peremptory strikes to eliminate African-American jurors, its reasons were all clear and specific and were based upon factors other than race. A trial court’s findings with regard to a Bat-son challenge are entitled to great deference, and we will accept them unless they are clearly erroneous. Barnes, supra at 349 (6). Applying this standard, the trial court did not err in denying the Batson challenge.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.

       Under the portion of his brief captioned “Preservation of Issues,” Fortson refers to an enumeration of error with regard to a jury instruction. This enumeration, however, does not appear in Part Two of the brief in which enumerations of error are listed and is not argued in Part Three of Fortson’s brief. Instead, Fortson enumerates as error and argues the denial of his Batson challenge. We therefore address only that issue, in addition to the denial of his motion to suppress.


author: Blackburn, Chief Judge.

text:
    A00A1988.
    MCKENYE v. THE STATE.
    (544 SE2d 490)
   Blackburn, Chief Judge.

Jeremiah McKenye appeals his convictions of possession of a firearm by a convicted felon and two counts of aggravated assault. McKenye contends that the trial court: (1) erred during jury selection; (2) improperly allowed the introduction of bad character evidence; and (3) failed to properly instruct the jury during the second phase of the trial. McKenye further contends that the evidence was insufficient to support his conviction of possession of a firearm by a convicted felon.

1. In two enumerations of error, McKenye contends that the trial court erred during jury selection. Specifically, McKenye asserts that the trial court improperly (1) refused to strike a juror for cause and (2) excused another juror without legal cause.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Before a juror is to be excused for cause, it must be shown that he or she holds an opinion of the guilt or innocence of the defendant that is 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.

(Citation omitted.) Brady v. State.

(a) In the present case, juror no. 35, Mr. Sanderson, stated during voir dire that he had strong feelings against guns. He stated that he could be fair, but that he was already biased against McKenye because of the use of a gun. However, Sanderson also said that he could “definitely” listen to all the evidence, consider all the evidence and be guided by the jury instructions. Because Sanderson said he could be fair and listen to the evidence and the law before reaching a verdict, the trial court did not abuse its discretion by not striking him for cause. Additionally, “the trial transcript does not show that [Mc-Kenye] exhausted his peremptory strikes, and if [he] did not use all his strikes no harm would be shown and error cannot be said to exist.” Williams v. State

(b) The trial court excused juror no. 34, Ms. Long, for cause at the request of the State. Long had been convicted of simple assault, after a charge of aggravated assault was reduced. Long explained that she assaulted her ex-boyfriend, and he required several stitches in his head. She stated that he deserved it, but she would not elaborate on what the boyfriend had done to deserve it. The trial court struck Long for cause because she would not fully discuss her conviction with the trial court. Because McKenye was charged with aggravated assault, the trial court did not abuse its discretion in striking Long for cause. Again, the trial transcript does not reflect whether McKenye used all his peremptory strikes, so no harm is shown by the record. Williams v. State, supra.

2. McKenye contends that the trial court erred by improperly allowing the introduction of bad character evidence. McKenye objected after one of the victims, a security guard, testified that McKenye had gotten into a fight across the street. Although the jury did not receive any more information about the security guard’s statement, the trial court was made aware that the fight across the street from the shooting had occurred the previous week and was the basis for a criminal trespass warrant that was issued against McKenye. McKenye’s counsel objected and moved for a mistrial contending that the witness brought up a prior bad act which improperly placed McKenye’s character into evidence. The State argued that the witness’ statement was unresponsive to the question. The trial court denied the motion for mistrial and instructed the jury to disregard the witness’ last statement.

The decision whether to grant a mistrial is within the sound discretion of the trial court, and the ruling will not be disturbed absent abuse. Osborn v. State.

“[W]here the cause of the motion lies in the voluntary remark of a witness not invited by court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant, the court’s discretion will not be overturned.”

Collins v. State.

In the present case, the witness’ remark that McKenye had gotten into a fight on a previous occasion was unresponsive to the State’s question regarding what the witness observed after the police arrived. Additionally, the jury was made aware that the criminal trespass warrant forbade McKenye from coming onto the property where the incident took place, making harmless any mention of the reason for the warrant.

3. McKenye contends that the trial court erred in its instruction to the jury in the second phase of the bifurcated trial. After the jury returned verdicts of guilty on the aggravated assault charges, evidence was presented on the possession of a firearm by a convicted felon charge. Closing arguments were presented, and the trial court charged the jury regarding possession of a firearm by a convicted felon, the definition of firearm and the felony status of possession of marijuana with intent to distribute. McKenye did not object to this charge or offer any suggested charges to the trial court. On appeal, McKenye contends that the trial court should have repeated its instructions on reasonable doubt, presumption of innocence and other general principles of law that the trial court had charged at the end of the first part of the trial.

Although McKenye failed to object to the trial court’s practice and failed to request that those charges be given, the trial court erred in failing to give those instructions, which protect the defendant’s constitutional rights. In Griffith v. State, the Supreme Court of Georgia held that, pursuant to the mandatory language contained in OCGA § 5-5-24 (b), the trial court was required “to instruct comprehensively on the law applicable to the case, i.e., those charges which are relevant and necessary to weigh the evidence and enable the jury to discharge its duty,” after arguments were completed. In Griffith, the trial judge gave general instructions prior to the evidence phase of the trial and failed to reiterate those charges after arguments were completed. The Supreme Court held that it was “consistent with the mandatory language of the statute that final jury instructions, i.e., those given after argument, must be complete in and of themselves.” Id.

As in Griffith, however, “we find it highly probable that the failure of the trial court to repeat all instructions in the final charge to the jury did not contribute to the judgment; accordingly we find the error was harmless.” Id. The jury had received the trial court’s full instructions after arguments in the first phase of the trial; then only three hours later, the jury began deliberations in the second phase of the trial. See Massey v. State.

4. McKenye contends that the evidence was insufficient to support his conviction of possession of a firearm by a convicted felon.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Veal v. State. See Jackson v. Virginia.

Decided January 11, 2001.

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

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

So viewing the evidence, it reveals a certified copy of a conviction against Jeremiah McKenzie charged with a felony conviction of possession of marijuana with intent to distribute. McKenye contends that the State failed to prove that the Jeremiah McKenzie in the conviction was him. However, during the first phase of the trial, a witness testified that this defendant was also known as Jeremiah McKenzie. “Identity of name presumptively imports identity of person, in the absence of any evidence to the contrary.” (Punctuation omitted.) Evans v. State. “Furthermore, the jury was authorized by law to consider evidence from the first phase of the trial during its deliberations on the charge of possession of a firearm by a felon, and it apparently did so, even without being so instructed.” Id. at 217 (3). The jury was authorized to find McKenye guilty beyond a reasonable doubt of possession of a firearm by a convicted felon. Jackson v. Virginia, supra.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

        Brady v. State, 270 Ga. 574, 575 (2) (513 SE2d 199) (1999).

        Williams v. State, 146 Ga. App. 543, 544 (3) (246 SE2d 729) (1978).

        Osborn v. State, 233 Ga. App. 257, 258 (1) (504 SE2d 74) (1998).

        Collins v. State, 180 Ga. App. 220, 221 (348 SE2d 590) (1986).

        Griffith v. State, 264 Ga. 326, 327 (2) (444 SE2d 794) (1994).

       OCGA § 5-5-24 (b) provides:
      In all cases, at the close of the evidence or at such earlier time during the trial as the court reasonably directs, any party may present to the court written requests that it instruct the jury on the law as set forth therein. Copies of requests shall be given to opposing counsel for their consideration prior to the charge of the court. The court shall inform counsel of its proposed action upon the requests prior to their arguments to the jury but shall instruct the jury after the arguments are completed. The trial judge shall file with the clerk all requests submitted to him, whether given in charge or not.
      (Emphasis supplied.)

        Massey v. State, 270 Ga. 76, 78 (2) (b) (508 SE2d 149) (1998).

        Veal v. State, 242 Ga. App. 873 (1) (531 SE2d 422) (2000).

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

        Evans v. State, 240 Ga. App. 215, 216 (2) (522 SE2d 506) (1999).