author: Miller, Judge.

text:
    A02A0080.
    A02A0643.
    BRANCH v. THE STATE. MOSS v. THE STATE.
    (565 SE2d 910)
   Miller, Judge.

These companion cases are the result of a joint trial in which Derrick Levar Branch and Montrae Marshonne Moss were convicted of trafficking in cocaine. In separate appeals, Branch and Moss each contend that the trial court erred by admitting certain similar transaction evidence. We discern no error and affirm.

The underlying case arose after the Drug Enforcement Administration in conjunction with the Hall County Multi-Agency Narcotics Squad arranged for a confidential informant (“Cl”) to make two controlled buys of crack cocaine from Branch and his live-in girlfriend, Parish Michelle Cheeks.

On the date of the first buy, the Cl made a telephone call to Branch earlier in the day and spoke with Branch to confirm the amount of crack and the price. This conversation was recorded and played for the jury. Later that day, the Cl paged both Branch and Cheeks. Cheeks returned the page, and they agreed on a time for the Cl to make the buy. When the Cl arrived, Cheeks waved him off, indicating the presence of police.

About 20 minutes later, when the Cl returned, Branch was alone. A surveillance videotape depicting the Cl entering Branch’s trailer was viewed by the jury. Branch showed an ounce of crack to him and told him that the rest was on its way. Branch then contacted co-defendant Moss. After a few minutes, Moss arrived. Moss handed Branch roughly an ounce of crack cocaine. After weighing the cocaine, Branch handed it to the Cl, who paid for it and then left. The crack was packaged in two separate baggies, one weighing approximately 28.7 grams and the other weighing approximately 27.9 grams. The crack inside each baggie was broken down into smaller pieces. Thirteen days after the second controlled buy, Branch, Cheeks, and Moss were arrested. At the time of arrest, Branch had $440 in cash and Moss had $1,570. Branch, Cheeks, and Moss were indicted jointly, but Cheeks died before she could be brought to trial.

Branch and Moss were tried together under a two-count indictment for trafficking in cocaine by possessing more than twenty-eight grams on two occasions, a week apart. Both were convicted of Count 1, which pertained to the first controlled buy, and were acquitted of the other count. These two appeals followed.

Case No. A02A0080

In his sole enumeration of error, Branch contends that the trial court erred in admitting one of his other drug convictions as similar transaction evidence. He argues that the record does not support the trial court’s finding that the independent crime and the pending charges bore sufficient similarity. He claims that the facts and circumstances of each incident were dissimilar because different drugs and different packaging were involved.

Prior to trial, the State notified Branch of its intention to present similar transaction evidence of Branch’s two prior drug convictions: possession of marijuana with intent to distribute and possession of cocaine. The trial court held a hearing on the admissibility of this evidence. In the first incident, Branch was searched during a traffic stop. A plastic bag containing 15 individually packaged bags of marijuana was found inside his pants. Branch also had $723 in cash. Based on the apparent packaging of the marijuana for distribution and the large amount of cash, Branch was charged with possession of marijuana with intent to distribute, an offense to which he entered a guilty plea.

The second incident occurred when police discovered four pieces of crack packaged in separate bags and $170 in cash on Branch. Although indicted for possession of cocaine with intent to distribute, Branch was permitted to plead guilty to possession of cocaine. The State’s espoused purpose for presenting the prior acts was to show the bent of mind and course of conduct of Branch.

The trial court determined that evidence relating to Branch’s conviction for possession of marijuana with intent to distribute was admissible but excluded evidence pertaining to his conviction for possession of cocaine. The trial court refused to allow evidence about the cocaine conviction because Branch had entered a plea to the reduced charge of possession and the amounts of cocaine in this case and the other were substantially different.

Before similar transaction can be introduced, the State must make three affirmative showings as mandated by Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind; second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. [Cit.]

Davis v. State, 244 Ga. App. 708, 711 (3) (536 SE2d 596) (2000). The first and third showings are at issue here — appropriate purpose and sufficient similarity. The State’s professed purpose for presenting the evidence was to illustrate a course of conduct. From the evidence of Branch’s prior conduct in possessing marijuana with intent to distribute, the jury could infer a course of conduct in which Branch possessed and also intended to distribute cocaine. Burkett v. State, 230 Ga. App. 676, 678 (2) (497 SE2d 807) (1998). Since there was a logical connection between the two incidents in that Branch possessed illegal drugs with the intent to distribute both times, proof of the similar transaction tended to establish the offense at issue. White v. State, 225 Ga. App. 74, 76 (2) (483 SE2d 329) (1997).

The State also met its burden of showing sufficient similarity between the two offenses. Although Branch contends that sufficient similarity is lacking, there is no requirement that the drug allegedly being distributed or possessed in the indicted offense be the same drug distributed or possessed in the similar transaction. Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991); see Roundtree v. State, 222 Ga. App. 363 (2) (474 SE2d 224) (1996). In both incidents, Branch possessed illegal contraband that was packaged for distribution and was also found carrying large amounts of cash. Since the State adequately made the three affirmative showings required by Williams, supra, the trial court did not err in admitting the similar transaction evidence. See Scott v. State, 240 Ga. App. 50, 52 (4) (522 SE2d 535) (1999). In any event, in light of the overwhelming evidence of Branch’s guilt, no harm was shown even if the trial court’s ruling had been erroneous. See Moore v. State, 242 Ga. App. 249, 250 (1) (a) (529 SE2d 381) (2000).

Case No. A02A0643

Moss contends that his conviction should be reversed because the trial court erred in admitting evidence of his prior drug conviction. He claims that the two transactions were substantially dissimilar in both the quantity of drugs and the surrounding circumstances. He also argues that his prior conviction was too remote in time.

Over defense objection, Officer Jason Stover testified about an earlier incident when Moss was arrested for possession of cocaine with intent to distribute. As in the indicted offenses, Moss was not the initial target of the investigation. During a search of certain premises, 33 pieces of crack cocaine packaged for distribution were discovered and later connected to Moss. Although indicted for possession of cocaine with intent to distribute, Moss was allowed to enter a negotiated plea and was sentenced to the reduced charge of possession of cocaine.

The prosecution offered the evidence to refute Moss’s claim of mere presence and to illustrate his course of conduct in “delivering drugs to somebody else’s house for them to sell.” As in his prior drug arrest, Moss was not the initial target of the drug bust in the instant case, but was involved by possessing the packaged drugs before they were sold. This could show Moss’s course of conduct in possessing packaged drugs for others to sell and bears sufficient similarity to the circumstances of the instant case. Although the earlier incident stemmed from Moss’s conduct in January 1996 and the indicted offenses occurred in April 2000, the prior incident was not too remote in time, especially since Moss’s ability to participate in additional drug transactions was apparently hampered by incarceration. No error has been shown in the admission of this evidence. See Dent v. State, 233 Ga. App. 605, 607 (4) (506 SE2d 641) (1998).

Decided May 31, 2002.

Walter J. Rucker, for appellant (case no. A02A0080).

Rex J. McClinton, for appellant (case no. A02A0643).

Lydia J. Sartain, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Judgments affirmed.

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


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A02A0390.
    WILLIAMS v. THE STATE.
    (565 SE2d 917)
   Ruffin, Judge.

Concluding that Anthony Williams shot Tony Wilson, a jury found Williams guilty of aggravated assault and aggravated battery. On appeal, Williams contends that the trial court erred in admitting his custodial statement in evidence. Williams also asserts that the trial court erred in admitting evidence of a similar transaction. Williams’ allegations of error lack merit, and we affirm.

1. After two witnesses identified Williams as the man who shot Wilson, police took Williams into custody. Sergeant James Perry interviewed Williams, who admitted that he fired a shot, but claimed that he fired into the air. On appeal, Williams contends that the trial court erred in admitting the statement, arguing that it was “coerced and involuntary.”

Prior to admitting Williams’ statement, the trial court conducted a Jackson-Denno hearing. During the hearing, Perry testified that, prior to questioning Williams, he read Williams his Miranda rights, which he appeared to understand. According to Perry, he neither threatened Williams nor made any promises to him before obtaining the statement. Following this testimony, the trial court ruled that Williams’ statement was voluntary and admitted the statement in evidence.

OCGA § 24-3-50 provides that “a confession is admissible only if it was ‘made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.’ ” “It is the task of the trial court to determine whether a confession was voluntary, taking into account the totality of the circumstances.” Once the trial court has made such determination, we will uphold its factual and credibility findings unless they are clearly erroneous.

Here, Williams contends that Perry “suggested to [him] that he be truthful or [his girlfriend and child] could be in trouble.” According to Williams, this “threatening method [ ] of interrogation” coerced him into making his statement. Contrary to Williams’ contention, however, Perry testified that he made no such threat to Williams. Indeed, there is no evidence supporting Williams’ version of events. Under these circumstances, the trial court’s decision to admit Williams’ statement was not clearly erroneous. It follows that this enumeration of error presents no basis for reversal.

2. Over Williams’ objection, the trial court permitted Casey Hudson to testify about a similar transaction. Hudson testified that, in 1998, Williams fired several shots at him while he was sitting in his car. Williams asserts that the trial court erred in admitting this evidence before the State finished introducing its case-in-chief. Williams cites Gilstrap v. State for the proposition that the “premature” introduction of similar transaction evidence raises “a substantial possibility that the jury could have settled upon the guilt of [the] defendant based solely upon the similar transaction evidence.”

In Gilstrap, the State introduced evidence of nine similar transactions prior to offering any evidence on the crime for which the defendant was on trial. The Supreme Court noted that such procedure raised a possibility that the jury determined the defendant’s guilt based solely upon the number of similar transactions. However, the Supreme Court reversed the judgment in Gilstrap on another basis. Thus, that Court did not reach the issue of whether the procedure employed in admitting similar transaction evidence constituted an abuse of the trial court’s discretion.

Decided May 31, 2002.

Johnson, Word & Simmons, Gerald P. Word, for appellant.

Peter J. Skandalakis, District Attorney, Tara M. Wilson, Assistant District Attorney, for appellee.

On appeal, Williams asks this Court to establish a “bright line rule” with regard to the admission of similar transaction evidence. Williams invites us to rule that it is an abuse of discretion for a trial court to admit evidence of a single similar transaction prior to the State presenting the evidence relating to the crime for which the defendant is on trial. We note, however, that our Supreme Court recently addressed this issue in Hamilton v. State and declined to adopt such a bright line rule. Thus, this claim of error lacks merit.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       The jury found Williams guilty of two counts of aggravated assault, which the trial court merged for sentencing purposes.

        McFadden v. State, 251 Ga. App. 342, 343 (554 SE2d 323) (2001).

        Bailey v. State, 248 Ga. App. 120, 121 (545 SE2d 659) (2001).

       See McFadden, supra.

       See id.

       261 Ga. 798 (410 SE2d 423) (1991).

       See id. at 799.

       Id.

       Id.

       274 Ga. 582, 584-585 (5) (555 SE2d 701) (2001).


author: Smith, Presiding Judge.

text:
    A02A0720.
    CITY OF WARNER ROBINS v. BAKER.
    (565 SE2d 919)
   Smith, Presiding Judge.

In this case, Milton Baker’s employer, the City of Warner Robins, appeals from the trial court’s order granting Baker’s motion to extinguish the city’s subrogation lien asserted under OCGA § 34-9-11.1 (b) for payments made to Baker under the Georgia Workers’ Compensation Act, OCGA §§ 34-9-1 through 34-9-421. The city raises four enumerations of error, contending that the trial court made procedural and evidentiary errors, wrongly assigned the burden of proof, and erred in its conclusion. We find no error and affirm the judgment below.

The record shows that Baker was employed by the city as a meter reader. He was injured in an automobile accident in the course of his employment on February 2, 1995, and the city accepted the injury as compensable, paying medical and income benefits. Baker filed suit against the tortfeasor on January 28,1997, and began negotiations leading to a settlement. The city was aware of the negotiations and informed Baker of its intent to file a subrogation lien against any settlement he might receive pursuant to those negotiations. The city did not, however, intervene in the lawsuit. In September 2000, Baker accepted a settlement from the tortfeasor’s insurer in the amount of $90,000 and the action was dismissed with prejudice. In June 2001, Baker filed a motion to extinguish the city’s sub-rogation lien. He argued both that the city had waived its lien or was estopped to enforce it and that he had not been “fully and completely compensated” as required by OCGA § 34-9-11.1 (b). The trial court granted Baker’s motion after a hearing, and the city appeals.

1. In two enumerations of error, the city contends the trial court erred procedurally by admitting evidence at the hearing on Baker’s motion.

(a) The city first argues that it was given no notice that the hearing was to be evidentiary in nature, that the court did not specifically direct that an evidentiary hearing be held, as permitted under OCGA § 9-11-43 (b), that it was surprised by the court’s decision to allow evidence, and that its argument was prejudiced thereby.

We first note that no transcript of the hearing is included in the record. We cannot, therefore, review for error any evidentiary rulings made by the trial court. An appellant has the burden of providing us with a sufficient record to enable us to review the enumerations of error raised. When the error is shown only in the appellant’s brief and not by the record, we must assume that the trial court’s rulings were correct. Barnett Bank &c. v. Hazel, 251 Ga. App. 836, 838-839 (2) (555 SE2d 195) (2001).

In addition, the city should have been aware that evidence would be presented at the hearing, because the issue for decision was whether the city could enforce its subrogation lien. Ultimately, this was dependent upon whether Baker had been fully and completely compensated, which is a mixed question of law and fact. Anthem Cas. Ins. Co. v. Murray, 246 Ga. App. 778, 780-781, n. 10 (542 SE2d 171) (2000). It therefore requires the presentation of evidence.

But even if the trial court did err in admitting evidence, any prejudice to the city was cured by the trial court’s holding the record open for 15 days after the hearing, to permit the city to review and respond to Baker’s evidence and to present its own evidence. Moreover, any error in the admission or exclusion of evidence that in no event could have affected the outcome of the case is deemed harmless. Powers Ferry Constr. v. Commerce Builders, 191 Ga. App. 327, 329 (2) (381 SE2d 755) (1989). As discussed infra in Division 3, any error in the admission of evidence at the motion hearing could not have affected the outcome, because the city cannot come forward with any evidence showing that Baker has been “fully and completely compensated” for his injury.

(b) The city also argues that the trial court erred in allowing supporting evidence at the motion hearing because the evidence was not attached to the motion when it was filed, in violation of Uniform Superior Court Rule 6.1, which is also applicable in the State Courts. See Uniform State Court Rules (A). That rule provides, in pertinent part:

In civil actions every motion made prior to trial, except those consented to by all parties, when filed shall include or be accompanied by citations of supporting authorities and, where allegations of unstipulated fact are relied upon, supporting affidavits, or citations to evidentiary materials of record.

Id. This contention, too, lacks merit because no transcript is included in the record, and because any error did not affect the outcome. We also note that USCR 6.1 clearly applies to motions made “prior to trial.” In this case, the motion was made after the claim had been settled and the action dismissed. USCR 6.1 is therefore inapplicable.

2. The city maintains that the trial court erred in concluding that the city, and not Baker, carried the burden of proof on the issue of whether Baker had been fully and completely compensated. The city concedes that under the case law, it is clear that the burden of proof is the employer/insurer’s when the claimant has been awarded damages for economic and noneconomic losses after a jury trial. It argues, however, that the reason the burden is placed upon the employer/insurer in those cases is because the employer/insurer is granted the concomitant right of intervention in jury trials concerning subrogation liens and is required to intervene in order to preserve the lien. According to the city, the situation is different when the claimant settles his or her claim with the third-party tortfeasor, because in that situation the claimant voluntarily forgoes a jury trial, thereby “cutting off the intervention rights” of the employer/ insurer, which is not required to intervene in the negotiations.

The city is mistaken. The right of intervention is voluntary; an employer/insurer is never “required” to intervene. Dept, of Admin. Svcs. v. Brown, 219 Ga. App. 27, 28 (464 SE2d 7) (1995) (interpreting statutory language granting intervention right as allowing employer/ insurer “to intervene if it chooses to do so”).

Even though an employer/insurer that has a subrogation lien has an absolute right to intervene in both trials and settlement negotiations, the existence of the lien itself is not dispositive. The employer/insurer must act to protect it. Murray, supra, 246 Ga. App. at 782; Brown, supra, 219 Ga. App. at 28. The claimant in this case concedes that the city’s lien survived the settlement. Indeed, the claimant admits that in this case the city’s lien survived the settlement even though the city had knowledge of the settlement negotiations and still did not intervene. But the fact that the city did not intervene affects only whether it adequately protected its interest, not the survival of the lien. The only issue before the court below was whether Baker had been “fully and completely compensated” within the meaning of OCGA § 34-9-11.1 (b). On that issue, the employer carries the burden of proof, whether the employee has received compensation from the tortfeasor through a jury award or by settling his claim against the tortfeasor.

3. The city finally contends that the trial court erred in determining that Baker had not been “fully and completely compensated,” as required by OCGA § 34-9-11.1 (b). We do not agree.

Under OCGA § 34-9-11.1 (b), the employer’s lien may be enforced only “if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.” Id. When the employee has received a jury award, an appellate court cannot determine from a general verdict form what portion of an award was meant to compensate the employee for economic losses and what portion was meant to cover noneconomic losses. North Bros. Co. v. Thomas, 236 Ga. App. 839, 841 (513 SE2d 251) (1999). The same is true when the employee negotiates a settlement of his claim against the tortfeasor and the settlement is a lump sum. A reviewing court cannot determine from the settlement documents what portion of the settlement was allocated to economic losses and what portion was meant to compensate for noneconomic losses. The result is that the lien cannot be enforced, because full and complete compensation cannot be shown. Id.

Decided May 31, 2002.

Murphy & Sibley, Phillip A. Sibley, Benjamin A. Leonard, for appellant.

Adams, Hemingway & Wilson, E Bradford Wilson, Jr., for appel-lee.

Because the record includes no transcript, we must determine whether Baker has been “fully and completely compensated” from the settlement documents and the record. Contrary to the city’s argument, the fact that Baker settled his claim, released the tortfeasor, and dismissed his action with prejudice does not prove that he has been “fully and completely compensated.” The statute does not differentiate between jury awards and compromise settlements. It speaks in terms of a claimant’s “recovery.” Neither does the case law differentiate between jury awards and settlements. See Liberty Mut. Ins. Co. v. Johnson, 244 Ga. App. 338, 340-341 (535 SE2d 511) (2000) (standard applied to settlement). As a matter of common sense, a decision to proceed to trial presents a significant risk, and a decision to settle for an amount less than what is perceived to be the full value of the claim is often made simply to minimize risk. Such a decision certainly does not always indicate that the claimant has been “fully and completely compensated.”

Here, the record shows that Baker is permanently disabled, receives Social Security disability benefits, and is unable to work. His settlement of $90,000 from the tortfeasor represents only five years of former salary. Of this amount, Baker received $58,725.80, after subtracting attorney fees and costs. The lien amount is $48,977.25. He has undergone two back surgeries and incurred medical expenses of $135,000-$137,000, with the possibility of more expenses in the future. He has become depressed, retreated into alcoholism, and has suicidal tendencies. Given Baker’s economic damages, the indications of pain and suffering, the possibility of future medical expenses, and the amount of net proceeds available to him, the record demonstrates no abuse of discretion on the part of the trial court in concluding that the city failed to carry its burden of showing that Baker has been “fully and completely compensated.”

Judgment affirmed.

Eldridge and Ellington, JJ, concur.

       The city filed an application for discretionary appeal, apparently believing that application was required under OCGA § 5-6-35 (a) (1) and (b). But that Code section applies only to decisions of the superior court reviewing decisions of the State Board of Workers’ Compensation. The order in this case was entered by the State Court of Houston County, and it did not review a decision of the State Board, but rather ruled on a motion to extinguish a lien, after an action brought in that court had been settled. No application therefore was required.

       We agree with the city that the subrogation lien survives even under more compelling circumstances, such as when a third-party tortfeasor settles with the claimant knowing about the employer/insurer’s subrogation lien but without the employer/insurer’s knowledge or consent to the settlement. Rowland v. Dept, of Admin. Svcs., 219 Ga. App. 899, 902 (466 SE2d 923) (1996). See also Ga. Elec. Membership Corp. v. Di-Ranger, Inc., 275 Ga. 197 (563 SE2d 841) (2002).

       OCGA § 34-9-11.1 (c), cited by the city as demonstrating that its lien is enforceable even if Baker has not been “fully and completely compensated,” does not apply to the facts of this case. That subsection applies only when an employee fails to pursue the claim against the third-party tortfeasor within one year of the date of the injury. The subsection then assigns the employee’s rights to the employer, enabling the employer to bring an action against the tortfeasor. If the employer does so and recovers more than the amount of the lien, the employer must then pay over to the employee the remainder of the recovery. That has no relevance to the standard applicable when the employee brings an action against the third-party tortfeasor and the employer asserts a subrogation lien under subsection (b) of the statute.


author: Johnson, Presiding Judge.

text:
    A02A0795.
    LAMMERDING v. THE STATE.
    (565 SE2d 908)
   Johnson, Presiding Judge.

John Lammerding challenges the sufficiency of the evidence supporting his conviction of felony obstruction of law enforcement officers. The challenge is without merit, so we affirm the conviction.

On appeal, we view the evidence in the light most favorable to support the verdict, and we no longer presume that the appellant is innocent. Moreover, we do not weigh the evidence or determine witness credibility. Instead, we only determine if there is sufficient evidence from which the jury could have found the appellant guilty beyond a reasonable doubt.

Viewed in the light most favorable to the verdict, the evidence shows that Carmen Lammerding called the police to report that her husband had been violent toward her. The call was abruptly disconnected by the husband, so two police officers went to the Lammer-ding house. The officers found Carmen and John Lammerding outside the house and asked if they could all go inside the house to discuss the situation.

Once inside, the officers spoke to the Lammerdings in separate rooms. Carmen Lammerding told one of the officers that she and her husband were in the process of divorcing. She said that she was vacuuming when Lammerding tried to force her to have sex with him. He had been drinking and started arguing with her when he dropped his pants and rubbed his penis on her. She refused his sexual advances, and he became angry. He picked up the vacuum cleaner and threw it into a wall. She then called 911 emergency to report the domestic disturbance. While she was on the phone with the police, Lammerding ripped the telephone cord out of the wall. The officer saw that the telephone cord had been pulled out of the phone jack in the kitchen and that the vacuum cleaner was lying on the floor near a hole in the wall.

Before the officer finished speaking with Carmen, Lammerding appeared in the hallway. The officer asked him to go into another room. Lammerding refused, saying that the officer could not tell him what to do in his own home. The officer then told Lammerding to turn around and put his hands behind his back because he was under arrest. Lammerding did not comply and pulled his hands away from the officer. The other officer intervened, and all three men fell to the floor. One of the officers hit a stepladder and cut his face. Lammer-ding continued to resist, struggling and scratching, but the officers finally subdued and arrested him.

Lammerding was charged by accusation with simple assault against his wife for throwing the vacuum cleaner, and obstruction of the officers for resisting arrest. The case was tried before a jury, which found him not guilty of simple assault, but guilty of obstruction. The trial court entered a judgment of conviction on the verdict, and Lammerding appeals.

He contends that because he was acquitted of simple assault against his wife, his arrest for that assault was unjustified. Thus, he reasons, the felony obstruction charge based on that unjustified arrest was unlawful, and his conviction is not supported by any evidence.

The argument is flawed because Lammerding’s acquittal on the assault charge does not render his arrest on that charge invalid. The fact that he was acquitted of simple assault simply means that the jury was not convinced beyond a reasonable doubt of his guilt on that charge. But the standard for arrest is not the beyond a reasonable doubt standard needed for a conviction; rather, it is the lesser standard of probable cause.

All that is required for an officer to make a lawful warrant-less arrest is for him to have the requisite probable cause. Thus, if at the time of arrest the officer had a reasonable belief that the person he was arresting had committed a crime in his presence or within his knowledge, the officer would have probable cause for the arrest.

Here, the arresting officers had probable cause to suspect Lam-merding of simple assault based on the statements of his wife that he tried to force her to have sex against her will, became angry when she rebuffed him, and then threw the vacuum cleaner. Her claims were bolstered by other evidence observed by the officers at the scene, including the vacuum cleaner lying on the floor, the hole in the wall, and the telephone cord ripped out of the phone jack. The fact that Lammerding was later acquitted on the simple assault charge is irrelevant to a probable cause analysis; an arrest may still be lawful even though an accused is subsequently found not guilty of the charge for which he was arrested.

Decided May 31, 2002.

Richard O. Allen, for appellant.

Patrick H. Head, District Attorney, C. Lance Cross, Dana J. Norman, Assistant District Attorneys, for appellee.

Because the officers lawfully arrested Lammerding for the domestic disturbance, Lammerding’s resistance of the officers as they tried to place him in custody amounts to felony obstruction of officers. Anyone who knowingly and wilfully resists or obstructs any law enforcement officer in the lawful discharge of his official duties by offering or doing violence to the officer is guilty of a felony. The evidence in this case is sufficient to authorize the jury’s finding that Lammerding is guilty beyond a reasonable doubt of obstructing law enforcement officers.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997).

       Id.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Williams, supra at 701 (2).

       (Citation omitted.) Williams, supra.

       A person commits the crime of simple assault when he commits an act which places another person in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a) (2).

        Williams, supra.

       OCGA § 16-10-24 (b).

       See Cornell v. State, 222 Ga. App. 476, 477 (474 SE2d 634) (1996).


text:
    A02A0822.
    PARHAM v. THE STATE.
    (565 SE2d 913)
   Johnson, Presiding Judge.

Randall Parham and Eddie Tucker were tried together on the charge of robbery by force. They were convicted of the lesser included offense of battery. Parham appeals from his conviction. He argues that the evidence is insufficient to support the conviction because only the victim identified him as a perpetrator of the crime. The argument is without merit.

Robert Phares testified that one night he and a friend were walking in Athens when they encountered two men who said they were from out of town. The men asked to be shown bars in Athens, and Phares agreed. Phares and the two men went to a bar, where they drank beer. They then left and walked to another bar called Boneshakers. Outside of Boneshakers, the two men and Phares went around the side of the building to smoke marijuana.

There, the two men attacked Phares. One of them hit Phares twice on the head, and the other one grabbed him from behind. Phares tried to run away, but the men knocked him down and jumped on him. Phares briefly lost consciousness, and when he came to, he discovered that his wallet was missing.

Decided May 31, 2002.

William C. Bushnell, for appellant.

Kenneth W. Mauldin, District Attorney, for appellee.

Phares called the police to report the attack. He described his assailants, and a short time later the police picked up two suspects who were later identified as Parham and Tucker. The police brought the men to the crime scene, where Phares identified them as his attackers. Phares testified that Parham is the one who initially hit him and that Tucker is the one who grabbed him from behind.

In addition to identifying them on the night of the attack, Phares identified Parham and Tucker at their trial. The state also introduced Phares’ shirt, which was bloodied in the attack, and photos of Phares showing his injured face. Moreover, an officer who responded to the crime scene testified that Phares had a bloody face and swollen eye and that he identified Parham and Tucker as the assailants. Likewise, the police officer who found Parham and Tucker testified that they appeared to have been running, and he confirmed that Phares identified them at the scene as the perpetrators.

Contrary to Parham’s argument, the testimony of a single witness is generally sufficient to establish a fact, and this includes a victim’s uncorroborated identification of an assailant. The lack of corroboration goes only to the weight of the evidence and the victim’s credibility, matters which are solely within the purview of the jury. Thus, even though Phares is the only witness who could testify that Parham attacked him, that testimony was enough to establish Parham’s identity as one of the assailants. Having reviewed all the evidence in the light most favorable to the verdict, we find sufficient evidence from which the jury was authorized to find Parham guilty beyond a reasonable doubt of battery.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Davis v. State, 253 Ga. App. 803, 805 (1) (560 SE2d 711) (2002).

        Samuels v. State, 223 Ga. App. 275, 276 (1) (477 SE2d 414) (1996).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-5-23.1.


author: Eldridge, Judge.

text:
    A02A1331.
    JONES v. THE STATE.
    (565 SE2d 915)
   Eldridge, Judge.

Jerome Amos Jones was indicted for the offenses of robbery by force and aggravated assault. A jury acquitted him of aggravated assault and found him guilty of robbery by force. Jones appeals from the denial of his motion for new trial. Without challenging the sufficiency of the evidence, Jones alleges that the trial court erred in permitting the State to introduce evidence of a similar transaction. Finding no error, we affirm.

Before evidence of an independent offense or act may be admitted into evidence, the State must make three affirmative showings. First, the State must demonstrate that the evidence is not brought forth to raise an improper reference to character, but, rather, for an appropriate purpose deemed an exception to the general rule prohibiting this type of evidence; second, the state must show sufficient evidence to establish that the accused committed the independent offense or act; and third, the State must demonstrate a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991).

Jones contends that the State failed to prove that the prior conviction was similar to the crime charged.

The law does not require that a similar transaction crime be identical to the crime charged. There can be substantial variation of circumstances where there exists a logical connection between crimes which are essentially dissimilar. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. The State may only have the burden of showing a logical connection between [the] crimes which are essentially dissimilar. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than [where] such evidence is being introduced to prove identity.

(Citation and punctuation omitted; emphasis in original.) Maxey v. State, 239 Ga. App. 638, 640-641 (3) (521 SE2d 673) (1999).

In the present case, the evidence shows that on March 31, 1998, the victim had just returned home from the store when Jones, whom she had known for several years, knocked at her door. When the victim opened the door, Jones grabbed her, told her to shut up or he would kill her, and demanded that she give him her radio because he needed $150. When the victim refused, Jones choked her until she passed out, took the radio and her house key, which was lying on the kitchen table, and locked the victim inside her home, which could only be unlocked with the key. When the victim came to, she called the police. The victim indicated to the police that she felt that Jones attacked her because her husband owed him money on a bet. The victim had numerous bruises on her neck, face, and shoulders and required medical treatment at the hospital.

In the similar transaction, Jones was charged with murder, but entered a guilty plea to voluntary manslaughter. In substance, Jones admitted pulling a gun on the victim because he was angry over the victim previously hitting him in the MARTA station. Jones stated that he pointed the gun at the victim in order to scare him or intimidate him, but, when he fell backward and hit his elbow on the ground, the gun accidentally discharged, killing the victim.

The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). “On appeal, we focus on the similarities, rather than the differences between the similar transaction evidence and [the] present charges.” Quezada v. State, 236 Ga. App. 718, 721 (1) (512 SE2d 401) (1999). In both the present case and the similar transaction, Jones knew the victim and was involved in a dispute that he attempted to settle through intimidation and violence. Under these facts, we do not find as clearly erroneous the trial court’s conclusion that Jones’ prior act of intimidation was substantially similar to show intent and course of conduct as to the aggravated assault.

Jones further argues that the prior act should have been excluded because it occurred 17 years earlier and was too remote in time. However, similar transactions equally as remote in time have been allowed, and we held that the time lapse affected only their weight and credibility. See Tanner v. State, 243 Ga. App. 640, 642-643 (533 SE2d 794) (2000) (10-year lapse); Howard v. State, 228 Ga. App. 775 (492 SE2d 683) (1997) (12-year lapse); Moore v. State, 207 Ga. App. 412, 415-416 (1) (b) (427 SE2d 779) (1993) (22-year lapse); Mullins v. State, 269 Ga. 157, 158 (2) (496 SE2d 252) (1998) (17-year lapse). Furthermore, Jones was incarcerated on a 12-year sentence arising out of his plea to the voluntary manslaughter charge; thus, for a substantial portion of this time lapse, he was limited in his ability to commit a similar offense. “[T]he [17]-year interval between the offenses, standing alone, is not enough to require that evidence of the similar transaction be excluded, particularly where the accused was incarcerated for the first offense during most of the interval.” (Citations omitted.) Banks v. State, 250 Ga. App. 728, 730 (3) (552 SE2d 903) (2001); accord Davis v. State, 226 Ga. App. 83, 87 (485 SE2d 508) (1997).

Judgment affirmed.

Smith, P. J, and Ellington, J., concur.

Decided May 31, 2002.

Dell Jackson, for appellant.

Paul L. Howard, Jr., District Attorney, for appellee.


author: Phipps, Judge. Andrews, Presiding Judge,

text:
    A02A0078.
    PASSMORE et al. v. THOMAS.
    (565 SE2d 923)
   Phipps, Judge.

Gail Passmore and her husband sued Tammy Thomas for injuries arising out of an automobile collision. Thomas was a resident of Georgia at the time of the collision, but later moved to California. The Passmores obtained an order from Crisp County Superior Court specially appointing “MLQ Attorney Services or its designated agent who is qualified to effect service of process in Contra Costa County, California” to serve Thomas with a copy of the summons and complaint. An agent of MLQ Attorney Services, who was also a United States citizen, served Thomas.

The Passmores later voluntarily dismissed their complaint without prejudice. They then filed a renewal action and obtained another order from Crisp County Superior Court specially appointing “MLQ Attorney Services or its designated agent who is qualified to effect service of process in Contra Costa County, California” to serve Thomas with a copy of the summons and complaint. An agent of MLQ Attorney Services, who was also a United States citizen, served Thomas with the renewal action.

Thomas moved to dismiss the Passmores’ complaint, claiming that service was deficient in both the original action and the renewal action and that the applicable statute of limitation had expired. Thomas argued that the service was invalid in both actions for the same reason — it was not carried out by a citizen appointed by the superior court to effectuate service of process. The trial court (a different Crisp County Superior Court judge from the ones who issued the orders appointing a special process server) accepted Thomas’s argument and dismissed the Passmores’ complaint with prejudice.

The Passmores claim that the trial court erred by dismissing their complaint because it was served by a citizen of the United States whom the court had authorized to serve as a special process server. We agree and reverse.

OCGA § 9-11-4 (c) provides that process may be served “by any citizen of the United States specially appointed by the court for that purpose.” The court appointed MLQ Attorney Services or its designated agent to serve Thomas in both actions. And in both actions, the Passmores filed an affidavit of service executed by a process server who swore that he or she was a United States citizen and an agent of MLQ Attorney Services and that he or she had served Thomas with the summons and complaint. Although the better practice in a situation such as this would be to obtain an order naming a specific person to effect service, we find that the Passmores have not transgressed the requirements of OCGA § 9-11-4 (c). “In essence, by permitting [MLQ Attorney Services] or [its] designee to act as process server, service was made by a person ‘appointed by the court.’ ”

“When a defendant in a lawsuit challenges the sufficiency of service, [she] bears the burden of showing improper service.” Here, Thomas failed to show that the process servers were not United States citizens or that they were not agents of MLQ Attorney Services. Because the Passmores submitted uncontradicted evidence of proper service in both actions, the trial court erred by dismissing their complaint.

Judgment reversed.

Johnson, JR J., Smith, P. J., Miller and Mikell, JJ, concur. Blackburn, C. J., and Andrews, P. J., dissent.

Andrews, Presiding Judge,

dissenting.

Because I do not believe that the service in the original suit complied with OCGA § 9-11-4,1 respectfully dissent.

As reflected in the majority, the original action was served in California pursuant to the Crisp County Superior Court’s order of August 6, 1998, in which “MLQ Attorney Services or its designated agent. . . [was] specially appointed” to make and file proof of service on Thomas. Service was made in California on October 5, 1998, according to the affidavit of service, by “Mark E. Harmon, an agent of MLQ Attorney Services.” The only identifying information in the record regarding Harmon is contained on the billing statement sent by him to plaintiffs’ attorneys. Next to the printed logo for “Erdman Attorney Service, Inc.,” Harmon is identified in typewriting as a “REGISTERED INDEPENDENT CONTRACTOR, ATTORNEYS MESSENGER SERVICE, Registration #1, Alameda County. . . .”

Pursuant to OCGA § 9-11-4 (c), process

shall be served by the sheriff of the county where the action is brought or where the defendant is found, or by such sheriff’s deputy, or by the marshal or sheriff of the court, or by such official’s deputy, or by any citizen of the United States specially appointed by the court for that purpose, or by someone who is not a party and is not younger than 18 years of age and has been appointed as a permanent process server by the court in which the action is brought.

Decided June 3, 2002.

Copeland & Haugabrook, Tyrone N Haugabrook, Karla L. Walker, for appellants.

John T. Croley, Jr., for appellee.

(Emphasis supplied.)

The trial court, correctly, I believe, concluded that the order for appointment of process server “was not effective to appoint a special process server because the appointee therein [(i.e., MLQ)] did not constitute a legal entity capable of being appointed as special process server” under the above-italicized portion of OCGA § 9-11-4 (c), the only one applicable to this situation.

Even assuming that, based on the record, there is some way to tie Harmon to MLQ Attorney Services, there is no indication that MLQ is a natural person “doing business as,” or a corporation, partnership, or other legally recognized artificial entity. See Brand v. Southern Employment Sue., 247 Ga. App. 638, 639 (545 SE2d 67) (2001); Russell v. O’Donnell, 132 Ga. App. 294, 296 (2) (208 SE2d 107) (1974).

In any event, OCGA § 9-11-4 (c) mandates that a “citizen of the United States” be specially appointed, which requires the naming of a natural person, not an artificial entity. OCGA §§ 1-2-1; 1-2-2. Here, Harmon was not named nor was any such natural person named, and I believe the trial court correctly dismissed the renewal action. Merck v. Saint Joseph’s Hosp. &c., 251 Ga. App. 631, 632 (555 SE2d 11) (2001); Hawkins v. Wilbanks, 248 Ga. App. 264 (546 SE2d 33) (2001).

“On the issue of improper service, the court is the trier of fact, and in the absence of legal error, we are without jurisdiction to interfere with a verdict supported by some evidence.” (Footnote omitted.) Wilkinson v. Udinsky, 242 Ga. App. 464 (1) (530 SE2d 215) (2000).

I am authorized to state that Chief Judge Blackburn joins in this dissent.

       The dissent claims that the process server in the original action was not an agent of MLQ Attorney Services because he is identified on a billing statement as an independent contractor for a messenger service in California. But that would not preclude him from serving process as an agent for MLQ Attorney Services, as he avers in his affidavit filed in the trial court.

       (Punctuation omitted.) Heritage House Frame &c. Co. v. Boyce Highlands Furniture Co., 88 FRD 172, 174 (E.D. N.Y. 1980) (applying FRCP 4 (c)).

       (Punctuation and footnote omitted.) Wilkinson v. Udinsky, 242 Ga. App. 464, 465 (1) (530 SE2d 215) (2000); Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (1) (442 SE2d 795) (1994).


text:
    A02A0474.
    LEISKE v. THE STATE.
    (565 SE2d 925)
   Smith, Presiding Judge.

In a jury trial, Paul R. Leiske was convicted of DUI, disobeying a traffic control device, and driving without a license on his person. Leiske’s motion for new trial was unsuccessful. In this appeal, Leiske contends that the trial court erred in denying his motion to suppress/ motion in limine to exclude the results of a State-administered test. He argues that his consent was coerced because he was misinformed about his option to refuse the testing.

In reviewing the grant or denial of motions in limine, we must construe the evidence most favorably toward upholding the findings and judgment of the trial court. Wells v. State, 227 Ga. App. 521 (489 SE2d 307) (1997). Additionally, the trial court’s findings as to disputed facts and witness credibility must be adopted unless clearly erroneous. Dooley v. State, 221 Ga. App. 245 (1) (470 SE2d 803) (1996).

Viewed in that light, the record shows that while on routine patrol, Officer Kelvin L. Walls encountered a two-car accident at the intersection of Piedmont and Roswell Roads in Atlanta. Walls directed both drivers to move to a nearby parking lot. Upon inquiry, Walls learned that Leiske was the driver at fault. Leiske told Walls that after the light in his direction of travel changed from yellow to red, he tried to stop but could not. The other driver recounted to Walls that while traveling with a green light, as she was almost through the intersection, Leiske’s vehicle struck the rear of her car. Walls testified that while speaking with Leiske, he noticed “he had an aroma of alcoholic beverage coming from his person.” Walls also noted that Leiske’s “speech was slow, and his body movements were lethargic.” When asked if he had been consuming alcohol, Leiske admitted having had a couple of drinks on his flight home from a business trip.

Walls testified that after completing his accident investigation, he asked Leiske to participate in field sobriety testing. During his recitation of the alphabet, Leiske stuttered over a few letters. On an alco-sensor test, Leiske registered above the legal limit. Then, using the copy of the implied consent notice that he kept in his pocket, Walls read that notice verbatim to Leiske. After being advised of his rights, Leiske agreed to take a State-administered breath test. Walls testified that upon their arrival at the jail, he again read the implied consent notice to Leiske and obtained his consent. Officer R. J. McLean administered the Intoxilyzer 5000 test to Leiske which resulted in readings of 0.137 and 0.138.

1. Leiske’s motion to dismiss the State’s supplemental brief is denied.

2. Leiske contends that he was misinformed about his rights so that his consent to testing was not voluntary but was coerced within the meaning of Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993). He claims that a DUI suspect has a statutory right to refuse to submit to a State-administered chemical test. See Klink v. State, 272 Ga. 605, 606 (1) (533 SE2d 92) (2000). He argues that he was unable to make an informed decision with regard to submitting to the State-administered breath test, because Walls indicated that the breath test was not voluntary. See State v. Terry, 236 Ga. App. 248, 251 (511 SE2d 608) (1999) (misleading information relevant to obtaining consent may necessitate exclusion of test result).

The hearing transcript belies this argument. Despite Leiske’s attempts to distort the testimony at issue, that testimony must be construed most favorably toward upholding the trial court’s findings. See Wells, supra. Although when isolated from its context, a part of Walls’s testimony may seem slightly confusing, it is not confusing when read as a whole. Walls testified without dispute that he read the implied consent notice to Leiske exactly as the words appear on his card. Walls testified that he did so twice, once after the field sobriety tests, and again after Leiske was transported to jail for testing. As to the sequence of events, Walls denied telling Leiske that he had to take the field sobriety tests or he would be placed under arrest. During cross-examination this colloquy ensued:

DEFENSE COUNSEL: And the first thing that you did is — and you’ve indicated this on your direct — is you told him that he had to take the field sobriety tests or you were going to place him under arrest. That’s a fair statement; you’ve testified to that.
OFFICER WALLS: No. What I said was — if I’m not mistaken, I recall myself saying that I asked him to do the field sobriety tests, and then I told him if he refused that, I would be forced to read him the Georgia implied consent notice, and if he refused that, he would be placed under arrest and his license would be suspended and he’d be taken to jail.
DEFENSE COUNSEL: Now, you — so basically you were telling him he had to perform these tests or —.
OFFICER WALLS: No, I did not. I didn’t basically tell him that he had to. He still had an option.
DEFENSE COUNSEL: But you told him, without saying that you have to, you said if you don’t perform these tests, the consequences will be I’m going to place you under arrest.
OFFICER WALLS: I merely just gave him his options that are provided to him by law.

Decided June 3, 2002.

Richard S. Lawson, for appellant.

Joseph J. Drolet, Solicitor-General, Meka B. Ward, Assistant Solicitor-General, for appellee.

DEFENSE COUNSEL: I understand that, but let’s go over exactly what those options were. If you don’t perform the tests I’m asking you to perform —.
OFFICER WALLS: Then —.
DEFENSE COUNSEL: — then I’m going to have to place you under arrest.
OFFICER WALLS: No. Then I’m going to have to read you this, being the Georgia implied consent notice.

This colloquy does not establish that Leiske was “coerced” into agreeing to any test. See State v. Gillette, 236 Ga. App. 571, 573 (512 SE2d 399) (1999) (artfully worded questions that assume facts not in evidence do not themselves constitute competent evidence).

The determinative issue with the implied consent notice is “whether the notice given was substantively accurate so as to permit the driver to make an informed decision about whether to consent to testing.” State v. Becker, 240 Ga. App. 267, 271 (2) (523 SE2d 98) (1999). Here, the officer testified without contradiction that he read the notice to Leiske exactly as it appeared on his card. No evidence shows that the investigating officer misstated the law, misled Leiske, or told him that the State-administered breath test was not voluntary. See id. at 271-272 (2). Although Leiske argues that he was misinformed about his rights and about what the law requires, the implied consent notice for suspects age 21 or over unequivocally says, “Georgia law requires you to submit to state administered chemical tests. . . .” (Punctuation omitted; emphasis supplied.) OCGA § 40-5-67.1 (b) (2). The trial court clearly did not err in denying the motion in limine. See Dooley, supra at 245 (1).

Judgment affirmed.

Eldridge and Ellington, JJ, concur.


author: Blackburn, Chief Judge.

text:
    A02A0121.
    WINFREY v. TOTAL HEALTH CLINIC CORPORATION et al.
    (566 SE2d 372)
   Blackburn, Chief Judge.

In this medical malpractice action, Nina J. Winfrey appeals the trial court’s dismissal of her case against Total Health Clinic Corporation, Lee Wilkes, M.D., and Gary Richter, M.D., contending that the trial court erred by: (1) failing to hold a hearing, absent request, on her motion for an extension of time to file an expert affidavit pursuant to OCGA § 9-11-9.1 (b); and (2) with regard to Total Health and Richter only, dismissing her case for her failure to file an expert affidavit as a defense, contending that Total Health and Richter had waived their right to assert such failure. For the reasons set forth below, we affirm.

The record shows that Winfrey originally filed suit against the defendants on July 25, 2000, alleging medical malpractice for failure to diagnose pancreatic cancer as of July 29, 1998. In her complaint, Winfrey properly stated that her action was being filed within ten days of the statute of limitation, triggering an automatic statutory provision giving her an additional forty-five days in which to file her expert’s affidavit pursuant to OCGA § 9-11-9.1 (b). See Cabey v. DeKalb Med. Center.

Total Health and Richter answered the complaint on August 24, 2000, and both defendants requested in their original answer that Winfrey’s suit be dismissed for failure to file an expert’s affidavit. No separate motions to dismiss, however, were filed at that time. Wilkes answered the complaint on September 11, 2000, and he contemporaneously filed a motion to dismiss Winfrey’s claim for failure to file an expert affidavit. On September 8, 2000, the final day of her additional 45-day statutory period, Winfrey filed a motion for extension of time in which to file her expert affidavit.

On September 15, 2000, Total Health and Richter filed a joint motion to dismiss Winfrey’s case for failure to file an expert affidavit. Finally, on December 21, 2000, the trial court denied Winfrey’s motion for an extension of time to file an affidavit and dismissed her case with prejudice.

1. Winfrey contends that the trial court erred by failing to hold a hearing prior to denying her motion for an extension of time to file an expert affidavit. We disagree.

[Winfrey] never requested a hearing on her motion for an extension of time. Uniform Superior Court Rule 6.3 provides that “(u)nless otherwise ordered by the court, all motions in civil actions, including those for summary judgment, shall be decided by the court without oral hearing, except motions for new trial and motions for judgment notwithstanding the verdict.” It was therefore not error for the trial court to decide [Winfrey’s] motion for an extension of time without holding a hearing.

Cabey, supra at 314 (2).

Moreover, we have reviewed the evidence of record, and we cannot say that the trial court abused its discretion in determining that Winfrey had failed to show good cause for any further extension of time to file an expert affidavit.

2. Winfrey contends that, even if a hearing on her motion for an extension of time was not required, the trial court erred in dismissing her case against Total Health and Richter because they waived their right to the defense that she failed to file an expert’s affidavit. Again, we disagree.

OCGA § 9-11-9.1 (b) provides:

The contemporaneous filing requirement of subsection (a) of this Code section shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires. If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading [,] that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.

It is undisputed that Total Health and Richter, in their initial responsive pleading to Winfrey’s suit, moved the trial court to dismiss her case for failure to file an expert affidavit. By doing so, Total Health and Richter put both Winfrey and the trial court on notice of their intent to invoke this defense. In this case, this action was enough to assert this defense.

Winfrey argues that we should find that Total Health and Richter waived their right to raise this defense because they moved to dismiss her claims for failure to file an expert affidavit in their initial response, rather than in a separate motion filed contemporaneously therewith. While OCGA § 9-11-9.1 (b) authorizes the filing of a separate motion, it does not preclude its inclusion in the initial response. The critical requirement is the timing of defendants raising this defense, not the form in which it is raised. “ Tt is the duty of the court to consider the results and consequences of any proposed (statutory) construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ ” Cronan v. State.

Decided June 4,2002.

Angelyn M. Wright, Richard E. Johnson, for appellant.

Nina J. Winfrey, pro se.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Jonathan Marigliano, Love, Willingham, Peters, Gilleland & Monyak, Jonathan C. Peters, Jeffrey L. Shaw, for appellees.

Accordingly, contrary to Winfrey’s assertions, Total Health and Richter did not waive their right to assert her failure to file an expert affidavit as a defense to her claims against them simply because they raised the failure in their initial response, rather than by separate motion filed contemporaneously therewith.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Cabey v. DeKalb Med. Center, 252 Ga. App. 313 (555 SE2d 742) (2001).

        Cronan v. State, 236 Ga. App. 374, 377 (2) (511 SE2d 899) (1999).


text:
    A02A0210.
    In the Interest of C. F., a child.
    (566 SE2d 387)
   Miller, Judge.

A juvenile court adjudicated C. F. delinquent for acts which if committed by an adult would constitute of kidnapping, burglary, possession of a firearm during the commission of a crime, and two counts of aggravated assault. On appeal C. F. contends that (1) the evidence was insufficient to support a finding, beyond a reasonable doubt, that the juvenile committed the acts charged, (2) the juvenile court abused its discretion by admitting evidence of prior inconsistent statements from one of the prosecution’s witnesses, and (3) the juvenile court erred by failing to directly communicate its adjudication of delinquency to the juvenile courts of other counties where C. F. resided prior to proceeding to disposition. We discern no error and affirm.

On appeal from an adjudication of delinquency, we view the evidence in the light most favorable to the prosecution to determine whether a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. In the Interest of D. S., 239 Ga. App. 608 (521 SE2d 661) (1999). The evidence is examined under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), with all reasonable inferences construed in favor of the juvenile court’s findings. In the Interest of J. D., 243 Ga. App. 644 (534 SE2d 112) (2000).

So viewed, the evidence reveals that several employees who worked at the same McDonald’s restaurant as C. F. were closing the restaurant late one night. Earlier that same evening, one of the employees saw C. F. leave work in a turquoise sport utility vehicle. While the employees were closing the McDonald’s, several males wearing masks and gloves approached the drive-through window. One of the perpetrators, who had a gun, forced his way into the restaurant through the drive-through window and held two of the employees at gunpoint. The male with the gun did not speak but tried to pull one of the employees from the drive-through window and grabbed the other employee in an attempt to force him to the front of the store. When the perpetrators saw the manager on the phone calling the police, they fled the scene and escaped in the same SUV that C. F. had left work in earlier that evening.

Prior to this incident at work, C. F. had talked to several people about robbing the McDonald’s. Three witnesses also testified that C. F. asked them to help him rob the McDonald’s. One of these witnesses testified that two days before the incident, C. F. asked him to leave the drive-through window open so that C. F. could get into the restaurant, but this witness refused to help C. F.

After the incident at the restaurant, C. F. told three witnesses that he was one of the people who attempted to rob the McDonald’s. One of these prosecution witnesses testified at trial that C. F. told him about a week after the incident that he was the one who stuck the gun into the side of one of the employees. This same witness had previously spoken to police and informed them that C. F. had told him the day after the incident that he was the one who robbed the store with three other men, put a gun to the side of one of the employees, and did not speak during the robbery for fear that someone might recognize his voice. These spoken statements, as well as two more detailed written statements from this witness, were introduced by the prosecution as prior inconsistent statements. The statements were introduced through the testimony of the investigating police officer over objection from C. F.’s counsel.

Prior to the proceedings, C. F.’s father moved to another county, thereby making C. F. a resident of a different county from the county where the proceedings began. His prior home address was also located in a different county. After the juvenile court in the county where the proceedings began adjudicated C. F. delinquent for committing the charged offenses, the prosecution informed the court that it wanted the court to retain jurisdiction and proceed to disposition. The prosecution advised that it had already contacted the juvenile court in the county where the father moved as well as in the county of C. F.’s previous address, and that the other courts had no problem with the original court proceeding to disposition at that time. The juvenile court judge then specifically asked if there were any objections to the court proceeding to disposition, and C. F. raised none.

1. C. F. concedes that the charged crimes were in fact committed, but argues on appeal that the evidence was insufficient to connect C. F. to the crimes as one of the perpetrators. We disagree and conclude that the evidence was sufficient.

C. F.’s admissions to several witnesses that he was the one who was planning to rob and actually did attempt to rob the McDonald’s were corroborated by eyewitness testimony that C. F. left work in the same SUV that was driven by the perpetrators of the crime. In addition, the robber with the gun entered the McDonald’s through the drive-through window, consistent with C. F.’s plan made at least the night before for one of the witnesses to leave the drive-through window open so that he could get in. The evidence was sufficient for the juvenile court to find, beyond a reasonable doubt, that C. F. committed the charged offenses. See In the Interest of D. S., supra, 239 Ga. App. at 608.

2. C. F. further contends that the trial court erred by admitting the oral and written statements of a prosecution witness as prior inconsistent statements. We disagree.

“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). Moreover, a party may impeach its own witnesses with prior inconsistent statements. See Rollins v. State, 262 Ga. 698, 699 (1) (425 SE2d 285) (1993). The witness who took the stand for the prosecution made statements that were inconsistent with his prior statements to police and was available for cross-examination . The prosecution was free to use the prior inconsistent statements of this witness to impeach the witness and further develop the facts of this case. The trial court therefore did not err by admitting these statements.

3. C. F. also claims that the trial court erred by failing, pursuant to OCGA § 15-11-30 (b), to directly contact the juvenile courts of other counties where C. F. resided prior to proceeding to disposition. C. F. waived or induced any such error.

After being specifically asked whether he had any objections to the manner in which the juvenile courts of other counties had been informed of the proceedings, C. F. stated no objection and agreed to allow the original juvenile court to proceed to disposition without further inquiry to the juvenile courts of these other counties. The original juvenile court was not required to transfer the case to another county for disposition once the case had been properly adjudicated in the county where the incident took place. See OCGA § 15-11-30 (b) (“[T]he adjudicating court may after adjudication of delinquency or unruliness retain jurisdiction over the disposition of the nonresident child or may transfer the proceeding to the county of the child’s residence for disposition. Like transfer may be made if the residence of the child changes pending the proceeding.”) (emphasis supplied). We discern no error from the juvenile court proceeding to disposition without requesting additional information from juvenile courts of other counties when C. F. himself acquiesced in this process. See In the Interest of K. D. J., 246 Ga. App. 500, 502 (2) (540 SE2d 682) (2000) (“Induced error does not furnish a basis for reversal.”) (footnote omitted).

Decided June 4, 2002.

Webb, Lindsey, Collins, Jones & Wade, Martin C. Jones, for appellant.

Tommy K. Floyd, District Attorney, Mary Evans-Battle, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A02A0520.
    WASHINGTON v. THE STATE.
    (566 SE2d 386)
   Miller, Judge.

Joseph Patrick Washington appeals from the denial of his pro se motion to modify his sentence. On appeal he contends that the trial court erred by (1) denying him a pre-sentencing hearing following his guilty plea, (2) informing him that the court could not reduce his sentence after the sentence was approved by the sentence review panel, and (3) failing to provide him standby counsel at the hearing on his motion for modification of sentence. We discern no error and affirm.

The record reveals that Washington pled guilty to burglary, aggravated assault, and possession of a firearm during the commission of a crime. He was sentenced to twenty years for burglary and aggravated assault and an additional five years for possession of a firearm during the commission of a crime. Within the same term of court, Washington’s counsel moved to modify Washington’s sentence, but did not move to withdraw Washington’s guilty plea. However, no ruling on this motion to modify Washington’s sentence appears in the record.

Three years later, Washington, now pro se, filed his own motion for modification of his sentence. He also requested a hearing on this motion. Prior to the hearing, Washington filed a motion for standby counsel to assist him at the hearing.

At the hearing on Washington’s motion for sentence modification, Washington was still pro se, and the court allowed the hearing to go forward without the requested standby counsel. The court denied the motion and further commented that it believed that Washington’s sentence had been approved by the sentence review panel, which further persuaded the court not to disturb the sentence. Washington appeals.

1. Washington contends that the trial court erred by failing to grant him a hearing after he entered his guilty plea and before he was sentenced. However, there is no evidence in the record that this argument was raised below, nor is the trial transcript a part of the record. Washington has therefore presented nothing for this court to review. See Norwood v. State, 199 Ga. App. 536 (405 SE2d 526) (1991) (issues raised for the first time on appeal present nothing for this court to review); Peters v. State, 210 Ga. App. 211, 213 (2) (435 SE2d 731) (1993) (“Error must be shown affirmatively by the record, and not by mere recitations in a brief. [Cit.]”).

2. Washington further argues that the trial court erred by telling him that it could not reduce his sentence once the sentence had been reviewed by the sentence review panel. However, the hearing transcript reveals that the court was simply providing one of several reasons why Washington’s motion was subject to denial. The trial court did not abuse its discretion in refusing to reduce Washington’s sentence, which sentence was authorized by law. See Murray v. State, 216 Ga. App. 593, 596 (2) (455 SE2d 79) (1995).

3. Washington finally urges that the trial court erred by failing to provide standby counsel to assist him at the hearing on his motion to modify his sentence. We disagree.

Setting aside the question of whether Washington was even entitled to counsel at this stage of the proceedings, the law is clear that although “[a] criminal defendant has the right to be represented by counsel, and has the right to represent himself, [he] does not have the right to represent himself and also be represented by an attorney. [Cit.]” Reviere v. State, 231 Ga. App. 329, 332 (2) (498 SE2d 332) (1998). A trial court may but is not required to provide standby counsel once a defendant has elected to proceed pro se. Id. The trial court therefore did not err by refusing to appoint an attorney to assist Washington as standby counsel at the hearing that Washington had requested pro se.

Judgment affirmed.

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

Decided June 4, 2002.

Joseph P. Washington, pro se.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.


text:
    A02A0612.
    GRESHAM v. THE STATE.
    (566 SE2d 380)
   Ruffin, Judge.

A jury found Darrin Gresham guilty of rape, simple battery, attempted kidnapping, theft by bringing a stolen vehicle into the state, burglary, and three counts of aggravated assault. Gresham appeals, challenging several evidentiary rulings and the sufficiency of the evidence supporting one of his aggravated assault convictions. For reasons that follow, we affirm.

Viewed in favor of the verdict, the evidence shows that the victim was Gresham’s former girlfriend. In September 1995, following a physically abusive two-year relationship, the victim moved from Virginia to Georgia to live with her father.

In January 1996, Gresham paid the victim a surprise visit in Georgia. He showed up at the victim’s workplace in a mall and told her that he wanted them to get back together. The victim, afraid to be alone with Gresham, agreed to meet him at a restaurant the next day. After the meeting, as the victim was walking to a bus stop to go home, Gresham accompanied her and insisted that she go with him to his motel room. The victim refused, and Gresham followed her onto the bus where he continued to badger her about going to his motel room. At the end of her bus ride, the victim’s father picked her up, and Gresham went his own way.

The following morning, after her father had left the house, the victim saw Gresham emerge from a wooded area in back of the house. She confronted Gresham, and he asked her to loan him some money. When the victim refused, Gresham requested to use the phone. Afraid to let Gresham in the house, the victim handed him a cell phone to use outside. According to the victim, the next thing she knew, Gresham “pulled open the screen door and forced his way in.” The victim ran into the kitchen to call the police, but Gresham caught her. Gresham wrapped neckties that he had brought with him tightly around the victim’s neck, pulled her to the floor, hit her with his fists, and kicked her. Grabbing the neckties, Gresham dragged the victim into the living room, threatened to kill her and her father, and ordered her to remove her clothes. After further beating the victim, Gresham dragged her into her bedroom, where he twice forced intercourse, and then took her money. Gresham eventually left the house, and the victim called the police.

Gresham went to the Washington, D.C., area for a short time, where he continued to harass the victim and her family by telephone. On February 16, 1996, Gresham returned to the victim’s workplace in Georgia. As the victim was walking through a parking garage, Gresham drove up, got out of his car, and told the victim that he had a gun and would shoot her if she screamed. Although the victim believed Gresham had a gun, she screamed anyway. Gresham then grabbed the victim and attempted to drag her into the car and take her purse. When the victim resisted, Gresham started punching her. Two men, who heard the victim’s cries for help, came to her aid. As one of the men approached, Gresham got back in the car and attempted to run over the victim and her rescuer before driving away.

After police arrived, a lookout bulletin was posted for the car Gresham was driving. About one and one-half hours later, Officer Jeffery Adcock spotted the car and arrested Gresham. Adcock searched Gresham, found no weapons, and put him in the back of the patrol car. Another officer then told Gresham “that there was an outstanding warrant for his arrest [a]nd that [they] would take him up to the Felony Against Persons Office ... so [they] could talk to him there.” According to the officer, Gresham responded that “he would tell [them] where the gun was if he [was allowed to] talk[ ] to [the victim].” The officer told Gresham that “it was impossible and it would be [in] his best interest not to talk until [they] reached the office.”

As Officer Adcock was driving Gresham to the police station, Gresham started a conversation about “sports, football and baseball.” Adcock testified that,

as we talked, I told [Gresham] several times that if he wanted to talk, he could talk to a detective. And he spoke anyhow. . . . And on the way, he asked me if he ran, when I stopped him, would I have shot him. And I told him it depended. And he asked me if he had reached his hands into his pockets, would I have shot him. And I told him it depended. And he asked me if I would have shot to kill him. And I said it depended. And he said, I should have put my hands in my pockets. And then he told me it was just a matter of time.

Adcock stated that he did not ask any questions to elicit Gresham’s statements.

After arriving at the police station, Gresham was informed of his Miranda rights. Gresham gave a statement in which he denied raping the victim and maintained that he was not attempting to kidnap the victim from the parking garage, but merely wanted to talk to her.

Among the items found in the car Gresham was driving when he was arrested were a knife, pawnshop receipts, and two notes written by Gresham. The first note, which was addressed to the victim, read that, “by now you are feeling comfortable and safe mainly because the devil is gone.” Gresham further wrote that he was “tired of this person who sees blood when he sleeps or can’t control the berserk rage within himself” and that he “was afraid of what [he will] do or how [he will] do it to next [sic].” The second note, addressed to the police, stated in part: “since you guys are reading this . . . with any luck I am dead. Seems only fair that someone with my love for revenge against anyone who rebels against my love how violent I can be. Riding down here [to Georgia] the only thing I thought about was killing [the victim] and anyone who got in my way.”

1. Gresham asserts that the trial court erred in prohibiting him from testifying about the reason he visited the victim in January 1996. Outside the jury’s presence, Gresham proffered the following explanation:

She told me [on the telephone in December that] she was pregnant and that I need to come down [to Georgia] or send money so that she could ... go see an OBGYN. ... I said, ... I don’t have that much money [,] [b]ut I’ll come down there [,] . . . because I’m not going to send you no money so you can have another abortion. ... So we decided when I was going to come.

The prosecutor objected to the admission of this testimony, arguing that it impermissibly put the victim’s character in evidence. Gresham responded that the testimony was relevant to show “his motivation for being in the state and meeting with [the victim].” The trial court sustained the objection, finding that Gresham’s motivation for being in Georgia was irrelevant to the crimes charged. We agree.

The trial court had discretion to exclude the testimony, and we will not reverse its decision absent an abuse of that discretion. Although Gresham continues to argue that the testimony was relevant to show his motive for coming to Georgia, he has not shown, and “we are wholly unconvinced [,] that the evidence excluded tended in any way to disprove any element of the State’s case.” Thus, the trial court did not abuse its discretion in excluding the testimony on this ground.

Furthermore, Georgia’s Rape Shield Statute prohibits evidence of the victim’s past sexual behavior. Although an exception in the statute allows the trial court to admit such evidence if, among other requirements, it supports an inference that the defendant reasonably believed the complaining witness consented to the sex acts at issue, this exception would not have permitted Gresham to show his motive for traveling to Georgia to visit the victim. And, while Gresham now argues that his proffered testimony was relevant to show that he believed the victim consented to the intercourse during his January 1996 visit, he did not raise this argument below, and it is, therefore, waived for appeal.

2. Gresham next asserts that the trial court erred in overruling his objection to the victim’s testimony about a prior difficulty in which the police were called and Gresham fled the scene.

At trial, the victim testified that Gresham punched and strangled her on numerous occasions. During one incident, Gresham and the victim were watching television in the victim’s bedroom when she made a comment about somebody on the show. According to the victim, Gresham got angry and became violent “like file was] getting ready to hit [her].” The victim’s roommate heard the altercation and interceded. Later, the court permitted the victim to testify, over Gresham’s objection, that the police were called after the incident, but Gresham left the house. Gresham asserts that the ruling was error. Again, we disagree.

Unlike similar transactions, prior difficulties between the parties are not independent acts or occurrences, but are connected acts or occurrences arising from the relationship between the same people involved in the prosecution and are related and connected by such nexus. Evidence of the defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat, is admissible when the defendant is accused of a criminal act against the victim, as the prior acts are evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the defendant is being prosecuted.

In this case, the victim’s testimony concerned a prior altercation between her and Gresham. Thus, it was admissible evidence of Gresham’s violent bent of mind toward the victim. Although the victim also mentioned that Gresham struck her roommate, that does not change the fact that the evidence was admissible because it showed Gresham’s violent tendencies toward the victim and the state of their relationship. Accordingly, we find no error.

3. Gresham asserts that the trial court erred in admitting Officer Adcock’s testimony concerning the spontaneous statements Gresham made in the back of the patrol car. Gresham argues that the statements should have been excluded because he had not yet been informed of his Miranda rights and because they were irrelevant to the issues being tried. Neither contention merits reversal.

“Contrary to [Gresham’s first] argument, Miranda warnings are not a prerequisite to the admission of evidence concerning voluntary statements not made in response to any form of custodial interrogation.” At a Jackson v. Denno hearing, Officer Adcock testified that Gresham’s statements were unsolicited. Based on this testimony, the trial court found that the statements were admissible because they were not the result of an interrogation. Considering Adcock’s testimony, the trial court’s finding was not clearly erroneous, and Gresham’s “spontaneous and unsolicited statements . . . were not subject to the strictures of Miranda”

We also disagree with Gresham that the trial court committed reversible error by overruling his relevancy objection to the spontaneous statements. The statements suggested that Gresham contemplated fleeing after encountering the police, and evidence of flight is generally admissible “as circumstantial evidence of consciousness of guilt.”

Decided June 4, 2002.

John R. Greco, for appellant.

Patrick H. Head, District Attorney, Rose L. Wing, Dana J. Norman, Assistant District Attorneys, for appellee.

4. Likewise, we find no reversible error in the trial court’s admission of the diving knife and pawnshop receipts police found in the car at the time of Gresham’s arrest. As a general rule, evidence of the circumstances surrounding an arrest is admissible if it is relevant to the crimes charged, and we will not reverse a trial court’s relevancy determination absent a clear abuse of discretion.

In this case, the evidence showed that Gresham had repeatedly threatened the victim with violence, and his possession of the knife was consistent with those threats. And, even if the knife was irrelevant, given the overwhelming evidence of Gresham’s guilt, admission of the evidence, even if error, was harmless.

As for the pawnshop receipts, Gresham did not object to the relevancy of this evidence at trial, but only argued that they constituted hearsay. Thus, Gresham waived his relevance argument for appeal. Furthermore, assuming that the trial court erred in admitting the receipts over Gresham’s hearsay objection, given the overwhelming evidence of guilt, the court’s decision in this instance was also harmless.

5. Finally, Gresham asserts that the trial court erred in failing to direct a verdict in his favor on Count 2 of the indictment which charged him with aggravated assault. But the record shows that, in its judgment of conviction, the court merged Count 2 into Gresham’s rape conviction and did not, therefore, sentence Gresham under Count 2. Gresham does not challenge the sufficiency of the evidence supporting his rape conviction, and because he was not convicted and sentenced for aggravated assault under Count 2, the failure to direct a verdict provides no basis for reversal.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       See Richardson v. State, 239 Ga. App. 345 (521 SE2d 239) (1999).

       See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       See Davis v. State, 235 Ga. App. 362, 363 (1) (509 SE2d 655) (1998); Bates v. State, 216 Ga. App. 597 (454 SE2d 811) (1995).

        Bates, supra.

       See id.; Davis, supra.

       See OCGA § 24-2-3 (a).

       See OCGA § 24-2-3 (b).

       See Gordon v. State, 235 Ga. App. 169 (2) (508 SE2d 782) (1998); Croom v. State, 217 Ga. App. 596, 598-599 (3) (458 SE2d 679) (1995).

       (Citations and punctuation omitted.) Givens v. State, 273 Ga. 818, 823 (4) (546 SE2d 509) (2001).

       See id.

       See Wall v. State, 269 Ga. 506, 509 (2) (500 SE2d 904) (1998) (“prior acts toward the victim, be it a prior assault, a quarrel, or a threat, [are] admissible when the defendant is accused of a criminal act against the victim”); see also Warren v. State, 185 Ga. App. 108, 110 (3) (b) (363 SE2d 357) (1987).

       See Givens, supra; Warren, supra.

       Supra.

        Smith v. State, 264 Ga. 857, 859 (3) (452 SE2d 494) (1995).

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Smith, supra at 858, 860 (3).

         Landers v. State, 270 Ga. 189, 191 (5) (508 SE2d 637) (1998).

       See Benford v. State, 272 Ga. 348, 349-350 (3) (528 SE2d 795) (2000).

       See id. at 350.

       See Gordon, supra.

       See Benford, supra.

       See Wallin v. State, 270 Ga. 889, 890 (514 SE2d 828) (1999).