text:
    A98A0741.
    In the Interest of J. J. K., a child.
    (502 SE2d 313)
   Ruffin, Judge.

The Juvenile Court of Bibb County found J. J. K., a minor, guilty of three counts of aggravated assault and adjudicated him delinquent. J. J. K. appeals from the juvenile court’s judgment, asserting that there was insufficient evidence to find him guilty of the crimes charged. For reasons which follow, we affirm.

“On appeal the evidence must be viewed in a light most favorable to support the findings and judgment. . . . Where a juvenile is charged with an offense which would constitute a crime if committed by an adult, the standard of proof in the lower court is ‘beyond a reasonable doubt.’ [Cit.]” In the Interest of A. D. C., 228 Ga. App. 829, 830 (493 SE2d 38) (1997). Moreover, conflicts in the evidence are decided by the trier of fact, which was the juvenile court judge. See M. J. W. v. State of Ga., 133 Ga. App. 350, 351 (1) (210 SE2d 842) (1974). And, “ ‘where issues of fact are in conflict, this court passes only on the sufficiency and not on the weight of the evidence. (Cit.)’ [Cit.]” Id. See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in a light most favorable to uphold the juvenile court’s judgment, the evidence shows that juveniles Anthony Lundy, Kenny Mays, and Frederick Stephens were walking together on a street in Macon on April 14, 1997 when a Cadillac drove up and several of the Cadillac’s occupants fired weapons at the boys, wounding Lundy in the left leg. Lundy testified at trial that there were four occupants in the car, and all were wearing black bandannas on their faces such that he could not recognize them. According to Lundy, the occupants of the car were also wearing “black shirts and stuff” which was an indication that they were in a gang called the Folks or the Mafia. The occupants also yelled “Mafia 931” as they drove up alongside Lundy and his friends. Lundy said that he knew J. J. K. was in the Folks gang, but he could not say that J. J. K. was one of the occupants of the car.

Kenny Mays also testified at trial, agreeing with Lundy that a Cadillac drove alongside them and that the occupants in the car were wearing black and white clothes, were yelling “931, Mafia” and shot at them. However, he said that the occupants were not wearing bandannas, as Lundy stated, but that they wore black and white hats. Mays said he knew J. J. K. and recognized him as one of the occupants in the car. He also testified that J. J. K. fired at them.

Frederick Stephens also testified that the incident took place on April 14. Stephens said that the occupants of the car, as they started shooting, yelled “931 Mafia for life.” In a statement to police officers after the incident, Stephens identified J. J. K. as one of the occupants in the car, stating that he recognized J. J. K. by his voice. At trial, Stephens testified that he recognized J. J. K. as one of the occupants, in part because he saw J. J. K.’s three gold teeth. He also testified that he saw J. J. K. fire a gun from the car.

Decided May 5, 1998.

Michael L. Randolph, for appellant.

Charles H. Weston, District Attorney, Jeffrey N. Powers, Howard Z. Simms, Assistant District Attorneys, for appellee.

At the close of the State’s case, J. J. K. moved to dismiss the charges because the State failed to prove J. J. K.’s identity as one of the shooters beyond a reasonable doubt. The trial court denied the motion. J. J. K. then testified, denying that he was involved in the incident or that he was a member of any gang. The juvenile court ultimately found J. J. K. had committed the crimes.

While the three State witnesses contradicted each other regarding certain aspects surrounding the crime, and at times contradicted their own testimony, such conflicts were matters of credibility for the factfinder to resolve. In re M. J. W., supra; Howard, supra. And, regardless of these conflicts, there was competent evidence elicited at trial to prove each element of the State’s case: that J. J. K. was an occupant of the car, that he shot at Lundy and his friends, and wounded Lundy. Howard, supra. See OCGA § 16-5-21. Accordingly, we find that there was sufficient evidence from which any rational trier of fact could conclude that J. J. K. was guilty beyond a reasonable doubt of aggravated assault. In the Interest of A. D. C., supra; Jackson, supra.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


source: Caselaw Access Project

author: POPE, Presiding Judge.

license: Public Domain

text:
    A98A0541.
    DOOB v. ATKINSON.
    (500 SE2d 657)
   POPE, Presiding Judge.

In July 1994 appellant Linda Atkinson Doob was appointed permanent guardian over the person and property of her mother, appellee Mary C. Atkinson, due to Atkinson’s chronic use of alcohol. Atkinson, an 81-year-old widow, petitioned the Randolph County probate court pursuant to OCGA § 29-5-9 (a) to terminate the guardianship. After a hearing, the probate court denied the petition, and Atkinson appealed to the superior court. Doob appeals from the superior court’s order granting summary judgment to Atkinson and relieving Doob of her duties as guardian. We reverse.

“In determining whether the trial court properly granted summary judgment. . . we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party.” Lane v. Spragg, 224 Ga. App. 606 (481 SE2d 592) (1997). The record shows that in 1994 when Doob petitioned for guardianship, Atkinson was a chronic alcoholic. Atkinson began receiving treatment in 1992 for significant weight loss resulting primarily from alcohol use and also was diagnosed with chronic lung disease and liver problems. By 1994 Atkinson’s condition had deteriorated to the point that she was not eating or bathing on a regular basis and had been found sleeping in her own waste and falling asleep with a lit cigarette. Her physician, Dr. Carl Sills, recommended that she be placed under guardianship. The probate court granted Doob’s guardianship petition on July 5, 1994, finding that Atkinson was incapacitated by reason of “chronic use of alcohol.”

After Doob was named guardian, Atkinson was placed in a nursing home, where she was allowed no access to alcohol. In addition, Atkinson was given a regular diet and her health and medication were monitored. After almost two years in this environment, Atkinson petitioned to terminate the guardianship, citing the opinion of Dr. Sills and her treating psychologist, Dr. Jimmy Shaddock, that she was no longer incapacitated.

At the hearing before the probate court, Dr. Deborah Gatins, an addictions specialist, testified that Atkinson suffered from chronic alcoholism, which is classified as a disease by the American Medical Association. Dr. Gatins said that Atkinson has never accepted that she is alcohol-dependent. In an interview Atkinson told Dr. Gatins that she could not promise that she would not drink again, and she did not believe that she needed to participate in a recovery program such as Alcoholics Anonymous (AA) because she did not belong there. While Dr. Gatins acknowledged that Atkinson was not currently drinking and was fully oriented and aware, Dr. Gatins attributed that to the controlled environment of the nursing home. Based on these factors, Dr. Gatins concluded that Atkinson is still incapacitated because she is incapable of making a decision for herself as to whether she can drink alcohol and that she needs a guardian to make that decision for her.

Dr. Gatins also testified that an alcoholic such as Atkinson, who is in denial and who does not participate in a treatment program, has a 100 percent chance of drinking again. If Atkinson drinks again, Dr. Gatins believes she will be “right back where she left off” in a matter of days and that would be a “death sentence.”

Dr. Sills, Atkinson’s physician, testified that he believed Atkinson to be competent, but acknowledged that she would never be “cured” of her alcoholism and that in his experience recovery from alcoholism required giving up alcohol and participating in a recovery program. Dr. Sills stated that if Atkinson started drinking again, she would very likely revert to the same physical condition in which she had been in 1994.

Dr. Shaddock, Atkinson’s psychologist, testified that Atkinson was competent in that her reasoning and memory were intact and she had the present ability to make good decisions. He noted, however, that she needed to be actively involved in AA or some other form of group support. Although Dr. Shaddock declined to make any predictions about Atkinson’s future behavior, he conceded that if she began drinking the way she did before, she would be dead.

Christina Scribner, the director of nurses at Atkinson’s nursing home, testified that Atkinson would be capable of taking care of herself outside the nursing home, but only “if she had a peer support in place to assist her with her health problems, mental and physical.” Scribner also noted that even in the nursing home environment Atkinson refused most of her medicines and sometimes did not eat when she became absorbed in reading.

Atkinson testified that she believes that she has a problem with alcohol, but she does not remember doing anything “real bad” under the influence of alcohol. Atkinson said that she has no plans to drink again but does not know if she would go back to AA or any other recovery group because of the difficulty of getting there.

Contrary to the superior court’s determination, this record presents a question of fact as to whether Atkinson remains incompetent and lacks “sufficient understanding or capacity to make significant responsible decisions” concerning her person and property. OCGA § 29-5-1. In particular, evidence of Dr. Gatins’ opinion that Atkinson is still incapacitated by alcohol and Atkinson’s refusal of prescribed medication raised a factual issue as to whether Atkinson presently is competent to make appropriate decisions for herself regarding her health and the treatment and management of her disease. See Epperson v. Epperson, 212 Ga. App. 420 (442 SE2d 12) (1994) (court affirmed guardianship where seventy-nine-year-old man disabled by two strokes functioned with minimal assistance in a nursing home environment, but would require substantial assistance outside that environment). Compare Jones v. Jones, 191 Ga. App. 401 (381 SE2d 565) (1989) (affirming the termination of a guardianship after trial court examined medical evidence and conducted a face-to-face interview with the ward in which he had an opportunity to observe ward’s appearance, speech and demeanor).

Decided May 6, 1998.

Bowles & Bowles, Jesse G. Bowles III, for appellant.

Collier, Hunt & Gamble, Edward R. Collier, for appellee.

Judgment reversed.

Beasley and Ruffin, JJ, concur.

       The transcript from the probate court hearing was presented to the superior court for consideration in conjunction with the motion for summary judgment.


author: Eldridge, Judge.

text:
    A98A1020, A98A1021.
    THE STATE v. KIRBABAS; and vice versa.
    (502 SE2d 314)
   Eldridge, Judge.

On June 7, 1997, Margaret Kirbabas, defendant-appellee and appellant, was observed weaving in her car on Towne Lake Parkway by Officer David Wooldridge of the Woodstock Police Department and was stopped. Officer Wooldridge saw the defendant cross completely the right lane marker and then drift to the left to partially cross the centerline; such weaving and defendant’s slow speed raised Wooldridge’s articulable suspicion that the defendant could be impaired.

Upon beginning his investigatory stop, Wooldridge smelled about the defendant the odor of alcohol and observed a slightly slurred speech. He asked the defendant if she had been drinking; she said yes. He asked for and received her driver’s license and insurance card, checked them, and placed them in his ticket book in his patrol car while he completed his investigation.

Wooldridge requested that the defendant undergo the field sobriety tests, and she agreed to do them. Wooldridge had been certified to conduct the standardized field sobriety tests and had conducted 15 to 20 field sobriety tests at that time.

Upon performing the horizontal gaze nystagmus (“HGN”) test, he noted six positive indications of alcohol impairment. Defendant next performed the walk and turn test and exhibited difficulty with balance, broke her stance during instruction, and made an incorrect turn. Defendant next did a one-leg stand but put her foot down prematurely four times and had to raise her arms to maintain balance; she was deemed to have failed this test by Wooldridge. Finally, the defendant was administered an alco-sensor breath test, which indicated positive for alcohol.

Wooldridge came to the opinion from his observations and investigation that the defendant was a less safe driver under the influence of alcohol. He arrested her, placed her in handcuffs, and read her the Georgia implied consent notice. She stated that she did not want to take the State-administered breath test. At the Woodstock Police Station, defendant agreed to submit to the Intoxilyzer breath test. However, defendant insufficiently blew into the tube for the audible tone to be activated. After being given another chance to take the test, defendant refused because she was “scared.” Wooldridge then informed the defendant “Fine. I’ll suspend your license.” He then prepared a Department of Public Safety (“DPS”) Form 1205 for suspension.

At the motion to suppress hearing, the trial court held any field sobriety test results after the HGN were inadmissible because the defendant was in custody under arrest and had not been given a Miranda warning.

Case No. A98A1020

The State’s sole enumeration of error is that the trial court erred in finding that the defendant was under arrest following the administration of the HGN test, and, prior to the rest of the field sobriety tests, because, at that tipie, the officer “believed” that the defendant was probably an impaired driver; thus, the trial court concluded that Miranda warnings should have been given before the field sobriety tests were conducted. We agree with the State such conclusion was error under the facts of this case.

“For the proscriptions of Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) [(1966)] to apply, ‘a person must be taken into custody or otherwise deprived of his freedom of action in some significant way.’ Lobdell v. State, 256 Ga. 769, 773 (6) (353 SE2d 799) [(1987)]. Tn determining whether an individual was in custody, a court must examine all of the circumstances surrounding the interrogation, but “the ultimate inquiry is simply whether there (was) a ‘formal arrest or restraint on freedom of movement’ of the degree associated with a formal arrest.” (Cits.)’ Stansbury v. California, 511 U. S. 318, 322 (114 SC 1526, 128 LE2d 293) [(1994)].” McConville v. State, 228 Ga. App. 463, 465 (491 SE2d 900) (1997).

“The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. Berkemer v. McCarty, 468 U. S. 420, 442 (104 SC 3138, 82 LE2d 317) (1984).” (Emphasis supplied.) Hughes v. State, 259 Ga. 227, 228 (378 SE2d 853) (1989); see also Price v. State, 269 Ga. 222 (498 SE2d 262) (1998); State v. O’Donnell, 225 Ga. App. 502, 503 (1) (484 SE2d 313) (1997).

In Hughes v. State, supra, the arresting officer made an arrest when he told the defendant “that he was not free to leave the scene of the initial stop” so that the field sobriety tests were performed after an arrest without giving a Miranda warning. In State v. O’Donnell, supra, the defendant, after a serious accident, left the scene and was involved in a second accident; the defendant was arrested and brought back to the scene of the first accident before being given the field sobriety tests and without receiving a Miranda warning. In this case, the officer did not place the defendant trader arrest until after the field sobriety and alco-sensor tests had been administered.

Under both Berkemer v. McCarty, supra, and Hughes v. State, supra, it is the reasonable belief of an ordinary person under such circumstances, and not the subjective “belief” or intent of the officer, that determines whether an arrest has been effected. See Morrissette v. State, 229 Ga. App. 420, 422 (1) (a) (494 SE2d 8) (1997). Thus, when an officer tells a defendant that she is going to jail, whether or not she consents to submit to a field sobriety test, “[u]nder these circumstances we must conclude that, having been informed that she was going to jail, a reasonable person would have believed that the detention was not temporary. Therefore, the failure to give the Miranda warnings renders evidence regarding the field sobriety tests inadmissible.” Price v. State, supra at 225 (3).

Here, however, absent the officer making any statement that would cause a reasonable person to believe that she was under arrest and not temporarily detained during an investigation, the officer’s “belief” that probable cause exists to make an arrest does not determine when the arrest is effectuated until the officer overtly acts so that a reasonable person would believe she was under arrest.

“ Tn effect, (defendant) would have us rule that once a police officer has probable cause to arrest, he must arrest and Mirandize. But that is not the law. Whether a police officer (subjectively) focused his unarticulated suspicions upon the individual being questioned is of no consequence for Miranda purposes. Stansbury v. California, [supra].’ Hodges v. State, 265 Ga. 870, 872 (2) (463 SE2d 16) [(1995)].” McConville v. State, supra at 465-466.

Under Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968), an officer may make an investigatory stop where the officer has a reasonable articulable suspicion of criminal activity. This constitutes “brief ‘seizures’ that must be supported by reasonable suspicion” but does not constitute an arrest requiring that Miranda warnings be given in order to question. McClain v. State, 226 Ga. App. 714, 716 (1) (487 SE2d 471) (1997); see also Wells v. State, 227 Ga. App. 521, 523 (1) (489 SE2d 307) (1997); Crosby v. State, 214 Ga. App. 753 (449 SE2d 147) (1994); Cheatham v. State, 204 Ga. App. 483, 484 (1) (419 SE2d 920) (1992). “Momentary detention and questioning are permissible if based upon specific and articulable facts, which, taken together with rational inferences from those facts, justify a reasonable scope of inquiry not based on mere inclination, caprice or harassment. An authorized officer may stop an automobile and conduct a limited investigative inquiry of its occupants, without probable cause, if he has reasonable grounds for such action — a founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing. A Terry stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct.” (Citations and punctuation omitted.) Fritzius v. State, 225 Ga. App. 642, 643-644 (484 SE2d 743) (1997); Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997). “The temporary detention of a motorist based upon probable cause that [she] violated a traffic law does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures, even if a reasonable officer would not have made the stop absent an ulterior motive. [Cit.] In other words, if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail. See Jackson v. State, 267 Ga. 130, 131 (5) (a) (475 SE2d 637) (1996).” Buffington v. State, 229 Ga. App. 450, 451 (494 SE2d 272) (1997); see also Brantley v. State, 226 Ga. App. 872, 873 (487 SE2d 412) (1997); Hines v. State, 214 Ga. App. 476, 477 (448 SE2d 226) (1994).

The objective test is that “the police can be said to have seized an individual ‘only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Michigan v. Chesternut, 486 U. S. 567, 573 (108 SC 1975, 100 LE2d 565) (1988); see also Mosely v. State, 269 Ga. 17 (495 SE2d 9) (1998); State v. Wright, 221 Ga. App. 202, 207 (4) (470 SE2d 916) (1996). For seizure of a person “there must be either the application of physical force, however slight, or, where that is absent, submission to an officer’s ‘show of authority’ to restrain the subject’s liberty. See generally California v. Hodari D., 499 U. S. 621 (1) (a), (1) (b) n. 1, (1) (g) (111 SC 1547, 113 LE2d 690) [(1991)].” Id. The officer in this case did not seize and arrest the defendant until he placed the handcuffs on her at the completion of all the investigatory tests; at that time he clearly had probable cause for the arrest for DUI.

Since there was no arrest during the temporary investigatory stop to conduct the field sobriety tests and administer the alco-sensor test to the defendant with her consent, then the defendant was not deemed in custody, seized, or “under arrest” for Miranda purposes even if the officer had possession of her driver’s license and insurance card and temporarily detained her. Sisson v. State, 232 Ga. App. 61, 66 (4) (497 SE2d 642) (1998); Morrissette v. State, supra at 421-422; State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996).

Further, “field sobriety tests are not ‘statements.’ They are ‘not evidence of a testimonial or communicative nature.’ They are therefore not inadmissible under the Fifth Amendment to the U. S. Constitution even if the accused was ‘in custody’ and no Miranda warnings have been given. Hughes, supra, at 228 (2) (b).” Morrissette v. State, supra at 421-422. Therefore, no Miranda warnings were necessary, because such temporary investigatory stop does not trigger the requirements of Miranda. Morrissette v. State, supra at 422; State v. Pastorini, supra at 317-318; Coates v. State, 216 Ga. App. 93, 95 (453 SE2d 35) (1994); Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990); Lipscomb v. State, 188 Ga. App. 322 (372 SE2d 853) (1988); Montgomery v. State, 174 Ga. App. 95 (329 SE2d 166) (1985).

The trial court erred as a matter of law in applying the wrong legal standard for arrest and in suppressing the evidence of the field sobriety tests because no Miranda warnings had been given. The trial court erred in ruling that the Miranda warnings had to be administered as soon as the officer subjectively “believed” that he had probable cause to arrest the defendant for driving under the influence, prior to the completion of the field sobriety tests and the administration of the alco-sensor test, rather than after the officer completed his probable cause inquiry and actually arrested the defendant.

Case No. A98A1021

1. The defendant’s first enumeration of error is that the trial court erred in finding that the implied consent warnings were proper, although the officer stated three times “I will suspend” your license and did not trace the exact language of OCGA § 40-5-67.1 (b) (2). We do not agree.

(a) After placing the defendant under arrest, Officer Wooldridge read to the defendant the exact language of the statute contained in Ga. L. 1995, pp. 1160-1161, § 1 (OCGA § 40-5-67.1 (b) (2)). See Richards v. State, 225 Ga. App. 777 (484 SE2d 683) (1997); see also State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998); State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) (1998); State v. Fielding, 229 Ga. App. 675, 678 (494 SE2d 561) (1997). When the officer testified at the suppression hearing, he did misread in court the warning, stating: “Georgia law requires you to submit to a state administered chemical test.” However, the videotape was introduced and played, which showed that on the scene, the officer correctly stated “to submit to state administered chemical tests” Both the officer’s testimony, the videotape, and the statute state the implied consent warnings correctly despite defendant’s contentions to the contrary. See State v. Hassett, 216 Ga. App. 114 (453 SE2d 508) (1995); State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994).

“In cases involving the review of the grant or denial of motions to suppress or motions in limine, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and that court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous. [Cits.]” Wells v. State, supra at 521; State v. Fielding, supra at 675.

(b) While the officer may have subsequently, after the defendant’s refusal to submit to a breath test and after the initial warning at the time of arrest, incorrectly repeated all or portions of the statutory warning, such does not negate or nullify the giving of the warning correctly in compliance with the statutory mandate, because the officer was under no duty to give further warnings or instructions after the implied consent warning was given properly at the time of arrest. Wells v. State, supra at 524; see generally Dawson v. State, 227 Ga. App. 38, 40 (2) (488 SE2d 114) (1997). A defendant is entitled under the statute to have the implied consent warning given to her only once. OCGA § 40-5-67.1 (b) (2); Dawson v. State, supra at 40.

(c) The defendant, also, contends that the officer told her three times after he had completed the implied consent warning and after her initial refusal to submit to the breath test, that if she did not submit to a breath test, then he would suspend her driver’s license for one year. Earlier, the officer had correctly read to her that her license would be suspended for one year for refusal to submit to the State-designated and -administered test. The implied consent warning does not specify how such provision would be enforced if she refused, because the implied consent warning does not mandate the disclosure of such information as a part of the warnings. Thus, the officer was under no obligation to inform the defendant how her license would be suspended for her refusal to take the State chemical test. Wells v. State, supra at 524.

The officer was the agent for the State in the enforcement of the implied consent law, in providing the warning, in choosing the test, in administering the test, in initiating any sanction proceedings, and in providing the evidence of refusal. Therefore, for all practical purposes for the defendant, the officer was the State. While it is, in fact, the DPS that conducts the hearing to suspend the driver’s license for refusal to submit to a State-designated test, it is the officer that initiates any suspension proceeding and provides the evidence of refusal. See OCGA §§ 40-5-67.1; 40-5-67.2. Therefore, such statement was not false or misleading and directly and personally brought home to the defendant the consequences of her refusal. In any event, there was no harm shown by the defendant. Wells v. State, supra at 524.

2. The defendant’s final enumeration of error is that the trial court erred in finding that the officer had not engaged in an unconstitutional pretextual stop under the Georgia Constitution by looking for a reason to stop the driver. We do not agree.

Contrary to the defendant’s interpretation of Gary v. State, 262 Ga. 573, 574-575 (422 SE2d 426) (1992), Gary v. State was decided, not on Georgia constitutional grounds, but upon statutory grounds under OCGA § 17-5-30. The Supreme Court held that the “good faith” exception under the federal constitutional standards did not apply under state law, because legislatively, “the State of Georgia has chosen to impose greater requirements upon its law enforcement officers than that required by the United States Constitution, as interpreted by the U. S. Supreme Court.” Id. at 574-575.

The protection against unreasonable search and seizure of a person comes under Art. I, Sec. I, Par. XIII of the 1983 Constitution of Georgia. Such constitutional provision is similar to the provisions of the Fourth Amendment and is construed in the same way by Georgia appellate courts. Curry v. State, 255 Ga. 215, 217 (1) (336 SE2d 762) (1985); Mooney v. State, 243 Ga. 373, 375 (1) (254 SE2d 337) (1979); Cross v. State, 225 Ga. 760, 767 (171 SE2d 507) (1969); Smoot v. State, 160 Ga. 744 (128 SE 909) (1925); Oswell v. State, 181 Ga. App. 35, 36 (351 SE2d 221) (1986); Wells v. State, 180 Ga. App. 133 (348 SE2d 681) (1986); Bunn v. State, 153 Ga. App. 270 (265 SE2d 88) (1980); Cuevas v. State, 151 Ga. App. 605, 612 (260 SE2d 737) (1979). In regard to the interpretation of the Fourth Amendment and the Georgia Constitution regarding seizure of a person, this Court has held: “Since the standard to be applied is the same, it is apparent that the protection against unreasonable searches provided in the Georgia Constitution is the same as that provided by the United States Constitution.” Wells v. State, 180 Ga. App. 134 (2); see also Cuevas v. State, supra at 612.

The Supreme Court of Georgia rejected the argument that a pretextual arrest for parole violation violates the Fourth Amendment in Jackson v. State, supra at 131 (5), citing Whren v. United States, 517 U. S. 806 (116 SC 1769, 135 LE2d 89) (1996). See also State v. Bowen, 231 Ga. App. 95 (498 SE2d 570) (1998); Taylor v. State, 230 Ga. App. 749 (498 SE2d 113) (1998); State v. Aguirre, 229 Ga. App. 736, 738 (494 SE2d 576) (1997); Buffington v. State, 229 Ga. App. 450; Buffington v. State, 228 Ga. App. 811; Brantley v. State, supra at 873. Even though a reasonable officer would not make a stop for a minor traffic offense absent an ulterior motive, such pretextual stop, where'probable cause for the minor traffic offense exists, does not violate the Fourth Amendment and would not violate the Georgia Constitution, either. See generally Taylor v. State, supra; Buffington v. State, 229 Ga. App. 451. However, we have “specifically determined that an officer’s observation of a motorist’s ‘weaving’ may serve as sufficient reason to warrant an investigative stop for a possible DUI violation. [Cits.]” State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996); State v. Bowen, supra.

Tate v. State, 264 Ga. 53, 54-57 (2), (3) (440 SE2d 646) (1994) did not hold pretextual stops were illegal per se; it held that the finding of the trial court on a motion to suppress must be accorded great deference in the finding of facts and of credibility and that such decision should not be set aside by the appellate court unless clearly erroneous. The Supreme Court held: “[s]ince the trial court’s factual determination that the deputy’s testimony that he stopped [the defendant] for a valid purpose was not credible, and since the conclusion regarding credibility is supported by the evidence and is not clearly erroneous, our review of the law applied to these facts supports the trial court’s legal determination that the stop was pretextual and would not have been made by a reasonable officer in the absence of the invalid purpose. [Cit.]” Id. at 57.

Decided May 6, 1998.

G. Channing Ruskell, Solicitor, Thomas J. Melanson, Barry W. Hixson, Assistant Solicitors, for appellant.

John B. Sumner, for appellee.

In this case, the videotape clearly showed that the defendant, although not excessively, weaved within the lane, went onto the shoulder, and partially crossed the centerline. Therefore, the trial court’s determination that the officer had a “reasonably articulable suspicion” that supported stopping the defendant for weaving was not clearly erroneous. Tate v. State, supra at 57. If there was a legal reason to stop the defendant for a traffic violation, then it cannot, either legally or constitutionally, be “pretextual” under the Fourth Amendment and the Georgia Constitution. Whren v. United States, supra; Jackson v. State, supra at 131.

Judgment affirmed in Case No. A98A1021. Judgment reversed in Case No. A98A1020.

McMurray, P. J., and Blackburn, J., concur.


text:
    A98A1049.
    MARCHMAN v. GRANGE MUTUAL INSURANCE COMPANY.
    (500 SE2d 659)
   Eldridge, Judge.

Jimmy Marchman, individually and as executor of the estate of his late wife, Barbara Marchman, filed suit against the defendant, Grange Mutual Insurance Company (“Grange Mutual”), in an effort to recover $70,000 in property insurance following a May 1995 fire that destroyed Marchman’s home. The trial court granted summary judgment to Grange Mutual after finding that Marchman had not rebuilt his home, thereby failing to satisfy the condition precedent to recovery under a rider to the insurance policy at issue. Marchman appeals, and we affirm.

In his sole enumeration of error, Marchman asserts that the trial court misconstrued OCGA § 33-32-5 (a), Georgia’s Valued Policy Statute, and failed to apply its provisions to supersede the express terms of the insurance rider. OCGA § 33-32-5 (a) reads in pertinent part as follows: “Whenever any policy of insurance is issued to a natural person or persons insuring a specifically described one or two family residential building or structure located in this state against loss by fire and the building or structure is wholly destroyed by fire without fraudulent or criminal fault on the part of the insured or one acting in his behalf, the amount of insurance set forth in the policy relative to the building or structure shall be taken conclusively to be the value of the property” (Emphasis supplied.)

The Grange Mutual insurance policy on Marchman’s home showed basic coverage in the amount of $125,500. Marchman and Trust Company Bank, as mortgagee, jointly received this amount in December 1995. The bank retained approximately $109,000 in satisfaction of the mortgage and issued a check for the remaining proceeds to Marchman.

In addition to the basic coverage, Marchman also had purchased a “Homeowners Vantage Plus Endorsement”; this insurance rider provided for “dwelling replacement cost coverage.” Under this rider, Grange Mutual agreed to pay the full replacement cost of the destroyed property, regardless of the limits in the basic policy. However, the express language of the rider reads as follows: “We will pay only an amount equal to the actual cash value of your damaged property until the actual repair or replacement is complete.” (Emphasis supplied.) The requirement to repair or replace is restated in the homeowner’s policy manual, which states that “[i]f the full cost to repair or replace the damaged property is more than $2,500 or 5% of the insurance for the dwelling or other structure in this policy, we will not be liable for full replacement cost until actual repair or replacement is completed.” (Emphasis supplied.)

Further, as an additional condition precedent to receiving the benefits of the rider, Marchman was required to pay a higher “adjusted premium.” Although the rider contained a provision that the replacement had to occur within 180 days of the loss, Grange Mutual gave Marchman over a year to secure a building loan and replace his home.

However, Trust Company Bank refused to finance the rebuilding of Marchman’s home. Marchman admitted during the summary judgment motion hearing that he had not contacted other lending institutions about securing a loan.

Marchman subsequently filed a claim against Grange Mutual, asserting that the replacement cost rider increased the “face value” of his insurance policy. Therefore, under OCGA § 33-32-5 (a), he was entitled to the proceeds of the basic coverage of $125,500 plus an additional $70,000, regardless of whether or not he rebuilt his home. For the following reasons, we disagree.

1. Marchman asserts that the insurance contract is ambiguous and, therefore, should be construed in his favor. See Isdoll v. Scottsdale Ins. Co., 219 Ga. App. 516, 518 (466 SE2d 48) (1995). However, the insurance contract is internally consistent, and the plain, unambiguous language requires no judicial construction. See OCGA §§ 13-2-1; 13-2-2 (2), (4); 33-24-16. The contract clearly requires, as conditions precedent to receiving benefits under the replacement cost rider, that Marchman (a) rebuild his home and (b) pay additional premiums. In fact, in responding to Grange Mutual’s motion for summary judgment, Marchman admitted that the $70,000 was due and payable “subject to the insured’s compliance with the conditions of the policy.”

“When a plaintiff’s right to recover on a contract depends upon a condition precedent to be performed by him, he must allege and prove the performance of such condition precedent, or allege a sufficient legal excuse for its nonperformance. [Cits.]” (Punctuation omitted.) Wolverine Ins. Co. v. Sorrough, 122 Ga. App. 556, 560 (177 SE2d 819) (1970). It is undisputed that Marchman has not rebuilt the home or paid the additional premiums. Further, his assertion that he was unable to get financing to rebuild because of his pending bankruptcy proceedings was lost when he admitted that he abandoned his pursuit of such financing once Trust Company Bank, his former mortgagee, rejected his rebuilding loan request. Accordingly, March-man failed to present any evidence to create a material issue of fact regarding his performance of the conditions precedent and his entitlement to benefits under the replacement cost rider, and the trial court was authorized to grant summary judgment to Grange Mutual. See OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

2. However, Marchman claims that OCGA § 33-32-5 (a) should supersede the express, unambiguous provisions of this rider, although he cites to no authority for this assertion. Instead, March-man argues that public policy requires that the statute be applied to insurance riders outside the basic coverage. This argument is without merit.

OCGA § 33-32-5 protects property owners from the overwhelming burden of proving the value of property after it has been totally destroyed by fire by “conclusively” establishing that the value of the property equals the face value of the policy. In this way, a property owner is entitled to the benefits of the insurance coverage without the difficult and perhaps impossible task of proving actual damages. See Harvey v. Gen. Guaranty Ins. Co., 201 S2d 689 (La. App. 1967). “Such a valuation is in the nature of a contract for liquidated damages.” 6A Appleman, Ins. Law & Practice, § 3827, pp. 245-246. In this case, Marchman has accepted the benefits of this statutory protection, receiving $125,500 in insurance proceeds without having to prove the value of his home prior to the fire. The proceeds were then deposited in the bank or used to satisfy his mortgage.

Decided May 6, 1998

Robert E. Richardson, for appellant.

Mozley, Finlayson & hoggins, William D. Harrison, Lawrence B. Domenico, for appellee.

However, when a property owner attempts to recover under a replacement cost rider, the actual cost of repair or replacement already has been incurred, so that it is definite and ascertainable. As such, there is no need to statutorily mandate conclusions as to the value of a structure once it has been rebuilt. Accordingly, OCGA § 33-32-5 (a) does not apply to insurance riders that require replacement or repair as a condition precedent to recovery of insurance proceeds. See generally BSF, Inc. v. Cason, 175 Ga. App. 271, 274 (333 SE2d 154) (1985). There was no error in the trial court’s grant of summary judgment to Grange Mutual.

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.

       The $70,000 figure represents the difference between the face value of the insurance policy, $125,500, and the alleged cost of $195,500 to rebuild the house to its pre-loss condition.


text:
    A98A1078.
    PERRY v. THE STATE.
    (500 SE2d 923)
   Eldridge, Judge.

The appellant, Lorenzo Perry, was convicted of armed robbery (four counts), criminal attempt to commit murder, aggravated assault on a peace officer, kidnapping, kidnapping with bodily injury, possession of a firearm during the commission of a crime, and theft by receiving stolen property.

The evidence in the light most favorable to the verdict shows the following: On June 1, 1993, three men, wearing ski masks, gloves, dark clothing with long sleeves, and long pants, robbed the Commercial Bank at the intersection of Maxham Road and Thornton Road in Douglas County. All three men were carrying guns. One of the men stood guard at the door and counted seconds, while the other two men demanded, at gunpoint, that the employees of the bank give them money from the teller windows and the vault. One of the men forced bank manager Sharon Loworn from her office at gunpoint, threatened her life, and threw her down on the floor in the lobby area of the bank, injuring her knee. The three men also threatened the lives of others during the robbery.

The three men fled from the bank in a stolen, red 1986 Nissan pickup truck. Deputy Sheriff Mitch Vaughn of the Douglas County Sheriff’s Department responded to the silent alarm. When he arrived at the bank, he observed a red Nissan pickup truck exiting the bank parking lot with a large cloud of red smoke, which appeared to be from a dye bomb, coming from the bed of the truck. Deputy Vaughn pursued the truck as the occupants fired shots at him.

Eventually, the men stopped the truck and fled into a wooded area, firing shots at Deputy Vaughn. Other police officers converged on the scene and set up a perimeter around the wooded area. Tracking dogs were brought in. All three men were captured.

The stolen vehicle in which the appellant and his companions used to flee the bank contained a bullet hole. A bullet that was recovered from the tailgate was consistent with the defendants shooting in the direction of Deputy Vaughn and striking the tailgate of their own vehicle. Paul Dragan of the Bureau of Alcohol, Tobacco, & Firearms examined the recovered bullet and the revolver the police found hidden in the woods and concluded that the bullet was fired from the revolver.

The appellant, without challenging the sufficiency of the evidence, raises two enumerations of error.

1. In his first enumeration of error, the appellant asserts that the trial court erred in refusing to charge the jury on the lesser included offense of robbery. However, “where the [SJtate’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. [Cit.]” (Emphasis in original.) Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994); see also Shepherd v. State, 234 Ga. 75 (214 SE2d 535) (1975). Under the facts of this case, the evidence established that if the appellant was guilty of any offense, he was guilty of armed robbery. Therefore, the trial court did not err in failing to charge the jury on robbery.

2. The appellant also alleges that the trial court erred by failing to declare a mistrial or give a curative instruction for improper statements made by the prosecutor during closing argument.

“The decision of whether to grant a mistrial [or give curative instructions] because of improper conduct by counsel rests with the trial judge. OCGA § 17-8-75. His decision will not be overturned on appeal absent a manifest abuse of discretion.” (Citations and punctuation omitted.) Grant v. State, 185 Ga. App. 497 (364 SE2d 628) (1988). There was no such abuse of discretion in this case.

(a) The appellant alleges that the prosecutor made certain statements which were solely for the effect of appealing to the sympathy or prejudices of the jurors. The prosecutor argued: “This isn’t a perfect case. There is no such thing. But this is very important and there are — look at those people (indicating) out there. Mo [sic] Harper risked his life. Sharon Loworn got slung to the ground.” The prosecutor later argued that: “It’s a tough position to be in to have some man telling you I’m going to kill you when I get out. Think about it. Think about what Terry Thomas told Mo [sic] Harper. I’m going to kill you, MF, when I get out. Folks, you’ve got the key. Let them out if that’s what you think you should do.”

“A [prosecutor] may argue to the jury the necessity for the enforcement of the law and may impress upon the jury with considerable latitude in imagery and illustration its responsibility in this regard. [Cit.]” Waites v. State, 178 Ga. App. 333, 335 (343 SE2d 115) (1986). The appellant’s argument is without merit.

(b) The appellant also argues that in closing argument, the prosecutor commented on the appellant’s failure to present a defense to prove his innocence. The transcript does not support this contention. The prosecutor argued that: “Now, in this case, ladies and gentlemen, the only evidence that’s before you, the only facts that are before you are facts that show guilt. There are no facts presented to you that show innocence. The Judge will give you a charge in which he will tell you that the law says that you can’t hold it against a Defendant or use it against a Defendant because he did not testify. That’s the law, and we’ve all got to follow the law. But, you know and I know that the State has presented over a hundred exhibits of guilt and the State has presented over thirty witnesses of guilt. Where is the evidence of innocence? There is none. There is no evidence of innocence in this case. There are no facts, there is no testimony, there are no people that have come in and said, no, they didn’t do it, they were with me. There is no tangible thing that you can hold in your hand that says they didn’t do it.”

“Of course, direct reference to a defendant’s failure to testify is prohibited. But [S]tate’s counsel still has the right to argue that evidence showing guilt has not been rebutted or contradicted.” (Citations omitted.) Bryant v. State, 146 Ga. App. 43, 44 (1) (245 SE2d 333) (1978). “The argument made in this case does not show a manifest intention on the part of the prosecutor to comment upon appellant’s failure to testify, nor were the remarks of such a character that a jury would naturally and necessarily construe them as a comment on appellant’s failure to testify.” (Citations and punctuation omitted.) Elam v. State, 211 Ga. App. 739, 741 (440 SE2d 511) (1994); see Ranger v. State, 249 Ga. 315 (290 SE2d 63) (1982); Rhodes v. State, 221 Ga. App. 792 (470 SE2d 790) (1996). This argument is without merit.

(c) The appellant further argues that the prosecutor, in his closing argument, placed the appellant’s character in evidence and implied that the appellant had committed additional crimes. Specifically, after reiterating the evidence, the prosecutor stated: “You know these robbers knew what they were doing. They were not amateurs. Look at all the facts. Look at the fact that they counted time; that they knew they could only stay in the bank so long. . . . Use of a stolen car to conceal identity, use of masks to conceal identity from bank videos and from tellers so they can’t identify you later, use of outer clothing, use of gloves, counting time, knowing how to tell a package of money from a dye bomb, is that something everybody knows? . . . And the one that was taking the money from the tellers, Terry Thomas, messed up; the lady put the dye packs in his thing and, you know, armed robbers are human; they make mistakes. But, these armed robbers asked about dye packs.”

“[T]his Court has long held that the permissible range of argument during final summation is very wide.” (Citations and punctuation omitted.) Simmons v. State, 266 Ga. 223, 228 (6) (b) (466 SE2d 205) (1996). “What the law forbids is the introduction into a case by way of argument of facts which are not in the record and are calculated to prejudice a party and render the trial unfair.” (Citations and punctuation omitted.) Jordan v. State, 172 Ga. App. 496, 498 (323 SE2d 657) (1984). “However, it is permissible for counsel to draw deductions from the evidence regardless of how illogical or unreasonable.” (Citations and punctuation omitted.) George v. State, 260 Ga. 809, 810 (4) (400 SE2d 911) (1991). In this case, we find the argument of the prosecutor was logically inferred from the evidence and within permissible bounds.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

Decided May 6, 1998.

Wanda S. Jackson, for appellant.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

       The appellant also contends that the prosecutor argued in the State’s closing argument that “they’re going to get what is due them” and “defendants are not fit to be in the same courtroom.” However, such argument does not appear in the portion of the transcript cited to by the appellant. “Error must be shown affirmatively by the record, and not by mere recitations in a brief.” Standridge v. State, 196 Ga. App. 697, 698 (396 SE2d 804) (1990). “Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” Court of Appeals Rule 27 (c) (3) (i).


author: Ruffin, Judge.

text:
    A98A0177.
    WARREN v. THE STATE.
    (502 SE2d 336)
   Ruffin, Judge.

A jury found Kelvin Warren guilty of obscene and abusive language, aggravated assault upon a police officer, and obstruction of a police officer. Warren appeals, arguing that the evidence was insufficient to convict him of aggravated assault. Warren also asserts that the trial court erred in denying his motions for a continuance, a directed verdict, and a mistrial. Finally, Warren asserts that the trial court improperly admitted similar transaction evidence and confused the jury during deliberations. For the following reasons, we affirm.

1. Before reaching the merits of this appeal, we note that Warren’s appellate counsel violated Court of Appeals Rule 26 (a) by failing to file timely the brief and enumerations of error in this case. Such violations may subject the criminal appeal to dismissal and the offender to contempt. Court of Appeals Rules 7 and 13. We stress that compliance with our rules is not discretionary, but mandatory. Furthermore, we will not tolerate violations of the rules without good cause shown, and sanctions will be imposed where appropriate.

2. Turning to the merits of the appeal, we conclude that there was sufficient evidence to find Warren guilty of aggravated assault.

“‘On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant ... no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). Conflicts in the testimony of the witnesses, including the State’s witnesses, [are] a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489) (1997).

Viewed in this light, the evidence shows that during the late evening of March 30, 1996, Assistant Chief L. C. Cooper of the Dawson Police Department investigated a report of an assault and attempted robbery. Cooper contacted the victim and drove him around the area to see if he could spot his attackers. The victim saw three men that resembled his attackers walking down a street and Cooper called them over to his patrol car. Two of the men complied with Cooper’s request, but Warren, the third man, kept walking. Cooper called for back-up, and Officers Ned Broussard and Charles Ashley responded to the call. Ashley proceeded after Warren in order to detain him so he could be identified.

Ashley testified at trial that he asked Warren to stop on several occasions, but Warren refused to comply. According to Ashley, as he approached Warren, he placed his right hand on Warren’s shoulder. Warren then turned around and hit Ashley in the head. A struggle ensued with Ashley attempting to subdue Warren. Ashley said that during this struggle, Officer Cooper approached and sprayed Warren with a kind of pepper spray. However, Warren continued to resist, and when both Cooper and Ashley tried to tackle Warren, all three individuals fell to the ground. Ashley testified that he landed underneath Warren, who had Cooper on top of him. At that moment, Ashley saw Warren pointing Ashley’s service pistol in Ashley’s face. Ashley quickly twisted the gun out of Warren’s hand and reholstered it. Eventually, Cooper, Broussard and Ashley were able to handcuff Warren, who continued to struggle, and drag him to a police car. Warren cursed at the officers during the struggle and continued to curse until they arrived at the jail. Ashley denied ever hitting Warren.

Cooper and Broussard both testified, corroborating Ashley’s testimony concerning Warren’s assault and that Warren fought and struggled with and cursed at them. Specifically, Cooper testified that Ashley called for assistance in subduing Warren and that when he arrived on the scene, he saw Warren punching Ashley. Cooper further testified that he never saw Ashley hit Warren and he also denied hitting Warren. Although Cooper and Broussard stated that they did not see Warren pointing a gun at Ashley, they acknowledged that it was a dark evening.

Warren called Michael Wright as a witness, who said that he saw the incident that evening. According to Wright, the police followed Warren and when Warren turned around, the officers rushed him. He testified that he saw the police hit Warren.

Warren also testified, claiming that the police came up behind him and punched him in the eye as he turned around. He admitted resisting the officers, but only because he believed they were arresting him without cause. Warren denied touching Officer Ashley’s gun.

“[A]fter viewing the evidence in the light most favorable to support the jury’s verdict, we conclude that on this record there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that [Warren] was guilty of aggravated assault [of a police officer, namely Ashley]. See Jackson v. Virginia, supra.” Osborne v. State, 228 Ga. App. 758, 760 (492 SE2d 732) (1997).

3. Warren asserts that the trial court erred in denying his motion for continuance, which in turn resulted in Warren being denied effective assistance of counsel. The record shows that defense counsel requested a continuance because Warren did not give counsel a list of the defense witnesses until a week before trial and counsel had not had the opportunity to speak with all the witnesses. However, it is clear from the record that the same attorney who filed Warren’s motion for a speedy trial on June 24, 1996 also represented Warren at his trial on February 7, 1997. Thus, Warren and his trial counsel had over six months to prepare for the trial of this case.

(a) “‘[A] motion for a continuance predicated on the basis of counsel’s lack of preparation for trial addresses itself to the sound discretion of the trial court and a ruling denying such a motion will not be interfered with unless the court has abused its discretion in denying the motion.’ [Cit.] Aleman v. State, 227 Ga. App. 607, 610 (2) (a) (489 SE2d 867) (1997). Given the length of time in which Warren and defense counsel had to prepare for trial, we do not find that the trial court abused its discretion in denying a motion for continuance to afford counsel additional preparation time. Moreover, Warren “has not suggested any evidence or witness or any matter whatsoever which he could have produced in defense if he had had more ‘time to prepare.’ ” Scroggins v. State, 198 Ga. App. 29, 37 (2) (401 SE2d 13) (1990).

(b) Warren has also failed to show how his counsel was ineffective. “Besides his bare assertion that he received ineffective assistance due to the denial of his motion for continuance, he does not support his argument by pointing to even a single act or omission of his counsel at trial which he contends was deficient and resulted directly from the denial of his motion.” Aleman, supra at 611. Accordingly, the trial court did not err in denying the motion for continuance.

4. Warren claims that the trial court erred in denying his motion for directed verdict as to all counts made at the close of the State’s case. “ ‘A defendant is entitled to a directed verdict only where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom demands a verdict of not guilty. (Cits.) If there is any evidence of guilt such that an acquittal is not demanded as a matter of law, it is for the jury to decide the case. . . .’ [Cit.]” Parrish v. State, 182 Ga. App. 247, 249 (5) (355 SE2d 682) (1987).

In Division 2, we found that there was sufficient evidence to find Warren guilty beyond a reasonable doubt of aggravated assault. We further conclude that there was sufficient evidence to convict Warren of using obscene language and obstruction of the officers. See Jackson v. Virginia, supra; Howard, supra. In fact, Warren does not even contest on appeal the sufficiency of the evidence in these latter two convictions. Accordingly, a directed verdict was not warranted as the evidence clearly did not demand a verdict of not guilty. Parrish, supra.

5. Warren claims that the trial court erred in failing to grant his motion for mistrial after the prosecution cross-examined him regarding a prior aggravated assault charge of which he was acquitted.

During cross-examination, Warren testified that the police harassed him and that he “felt like [his] life was in danger of the police.” Warren further testified that the police told lies in order to incriminate him, and they were the reason he was in state prison. The prosecution then inquired why he was in state prison, and he said because he had violated probation. The prosecution then asked Warren if he knew Maggie Martin, a person against whom Warren committed acts of terroristic threats and aggravated assault. At this point, defense counsel objected and moved for mistrial, arguing that the State improperly mentioned the aggravated assault charge of which Warren was acquitted. The trial court denied the motion for mistrial, but gave curative instructions advising the jury to only consider offenses of which Warren had previously been convicted. Thereafter, Warren did not seek further instructions, nor did he renew his motion for mistrial.

“ Where illegal evidence is admitted at trial, it is not error to refuse the grant of mistrial if the illegal or harmful testimony can be corrected by proper instructions to the jury. . . ’ (Cits.) The decision not to declare a mistrial is within the discretion of the trial court, and this discretion should not be interfered with unless manifestly abused.’ [Cit.] Where the trial judge gives corrective instructions and thereafter counsel fails to request further instruction or renew his motion for mistrial, an enumeration addressed to such ground is without merit. [Cit.]” Chandler v. State, 143 Ga. App. 608, 609 (2) (239 SE2d 158) (1977).

Because Warren failed to renew his motion or request further instructions, his assertion on appeal is without merit. See id. Furthermore, even had Warren acted to secure this issue for appeal, he has failed to show how the trial court abused its discretion in denying the motion or how he was harmed by the court’s decision. “Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal. [Cit.]” Robinson v. State, 212 Ga. App. 613, 616 (2) (442 SE2d 901) (1994).

6. Warren argues that the State did not give him notice of its intention to introduce at trial the terroristic acts conviction as a similar transaction. The State responds that it did not introduce similar transaction evidence, but was merely cross-examining Warren regarding statements he made about harassment by police and the fact he was in prison because of the police. We agree with the State’s position.

Decided May 7, 1998.

Ralph L. Phillips, for appellant.

Charles M. Ferguson, District Attorney, Keith W. Day, Assistant District Attorney, for appellee.

“ ‘[Wjhere the defendant testifies and admits prior criminal conduct, he has not placed his character “in issue” within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. (Cit.)’ [Cit.]” Weston v. State, 216 Ga. App. 806 (456 SE2d 214) (1995). Warren’s statement that he was in state prison permitted the State to inquire into this issue. Id. See also Dowdy v. State, 209 Ga. App. 95 (2) (432 SE2d 827) (1993) (criminal defendant’s inadvertent statement that he was on parole could be fully explored by State, including the crime giving rise to it). Even Warren’s counsel admitted at trial that the State “had every right to go into the terroristic threats [conviction].” Accordingly, the trial court did not err in allowing the State’s cross-examination to proceed on this matter.

7. In his last enumeration of error, Warren states that “[t]he jury was confused regarding the verdict form and said finding on the verdict form was not the finding of the jury.” The record shows that under the aggravated assault count on the verdict form were listed two lesser included offenses, reckless endangerment and simple battery. The jury returned a verdict in which it incorrectly marked two counts under the aggravated assault count. After the trial court clarified to the jury what they were required to do, the jury went back to the jury room and returned with only the aggravated assault charge marked guilty. The jury was polled and all the jurors said the verdict was unanimous.

Warren argues on appeal that the trial court’s clarification confused the jury. However, Warren fails to state how the court’s statement confused the jury and how he was harmed. Accordingly, we find no error in the trial court’s clarification to the jury.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


author: Beasley, Judge.

text:
    A98A0329.
    DAVIS v. SCOTT.
    (502 SE2d 332)
   Beasley, Judge.

Davis sued Scott on the theory of premise liability (OCGA §§ 51-3-1; 51-3-2) for injuries sustained when she slipped and . fell on a stairway at Scott’s home. Davis appeals the trial court’s grant of Scott’s motion for summary judgment.

Davis’ daughter was a hospice nurse who provided care for Scott’s mother. On about six or seven occasions, Davis accompanied her daughter to Scott’s homé in order to visit Scott’s mother socially. On each visit before the one during which she fell, Davis had traversed the stairs to Scott’s mother’s room without incident. As Davis was descending the stairway on September 24, 1993, she slipped and fell on a plastic runner which overlaid the steps. Although Scott was not then at home, her daughter was there with her children. The children routinely used the runner as a slide with the assistance of a box as a sled.

Davis’ daughter testified by affidavit that, after her mother’s fall, she “noticed that the plastic runner was not secure, it was just laying over the steps, and that there was a slant in the bottom of the steps”; that after the fall Scott’s daughter screamed she had told Scott someone was going to get hurt on the steps; and that at least three other people had fallen down the steps. In her complaint, Davis charged Scott with wilfulness, wantonness, and negligence in failing to warn her of the dangerous condition (loose sliding runner on slanted steps).

The trial court ruled that at the time of Davis’ fall, she was a licensee, that the duty owed by Scott to Davis was thus one of not wilfully or wantonly injuring her, and that there was no evidence of any breach of such duty by Scott. And further, that even if Scott had a duty to exercise ordinary care and breached it, she was still entitled to summary judgment for three reasons: (1) Davis testified she did not know what caused her fall and thus failed to establish any causal connection between any defect in the stairway and her injuries; (2) although Davis’ daughter testified she noticed certain defects in the stairway after her mother’s fall, she was unable to swear such condition existed before the fall; (3) since Davis had successfully negotiated the stairs on numerous prior occasions, she had at least equal knowledge of any dangerous condition.

Davis contends Scott was not entitled to summary judgment based on the three grounds articulated by the court in support of its latter ruling. See Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403) (1997). That aside, summary judgment was correct for another reason.

As a social guest, Davis’ legal status was that of a licensee. Riley v. Brasunas, 210 Ga. App. 865, 866 (1) (438 SE2d 113) (1993). “The owner of the premises is liable to a licensee only for willful or wanton injury.” OCGA § 51-3-2 (b). “ “Where the alleged injury is caused by the dangerous statical condition of the stairway, and no dangerous active operations are being carried on and no active negligence is involved, no duty arises with reference to the licensee of keeping the usual condition of the premises up to any standard of safety, except that they must not contain a pitfall, a mantrap, or other things of that character.’ [Cit.T Kahn v. Graper, 114 Ga. App. 572, 576 (2) (152 SE2d 10) (1966); see Francis v. Haygood Contracting, 199 Ga. App. 74, 75 (1) (404 SE2d 136) (1991).

Decided May 7, 1998.

Williams & Associates, Rita T. Williams, for appellant.

Crim & Bassler, Nikolai Makarenko, Jr., for appellee.

There is no evidence Scott wilfully or intentionally injured Davis. The only evidence possibly supportive of wantonness (or conscious indifference to consequences) is the affidavit of Davis’ daughter, which the court ruled was without probative value because it was made “upon information and belief,” not on personal knowledge. See Hassell v. First Nat. Bank of Newton County, 218 Ga. App. 231, 232 (2) (461 SE2d 245) (1995) (citing OCGA § 9-11-56 (e)). Thus there is no evidence of breach of duty, one of the four elements plaintiff must prove. Ridgeview Institute v. Handley, 224 Ga. App. 533, 536 (3) (481 SE2d 531) (1997).

Davis has not enumerated this ruling as error or pointed to any evidence of her personal knowledge of other people falling on earlier occasions. Nor has she otherwise sought to show or argue that the allegedly dangerous condition of the stairway could be considered a pitfall or mantrap. Consequently, the court correctly granted Scott’s motion for summary judgment on the ground that there is an absence of evidence to support Davis’ claim that Scott breached a duty of care owed to her as a licensee. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.


author: Judge Harold R. Banke.

text:
    A98A0518.
    KENNON v. THE STATE.
    (502 SE2d 330)
   Judge Harold R. Banke.

Eugene Kennon was convicted of theft by receiving stolen property, possession of tools for commission of crime, loitering, driving under the influence, habitual violator, attempting to elude, and speeding. On appeal, Kennon contests only his convictions for theft, possession of tools, and driving under the influence.

The evidence, when viewed in a light most favorable to the verdict, showed that at about 11:00 p.m., Deputy Lyle Mathis observed a pick-up truck lurking behind a furniture warehouse that is not open to the public at any time. When Mathis turned his marked patrol cruiser around to investigate, Kennon moved his truck behind an adjacent business that was also closed. After Mathis turned on his “take-down” lights, a high-speed chase ensued. Despite colliding with a parked vehicle and a tree, Kennon proceeded and the chase did not conclude until Kennon struck another parked vehicle. Having observed noticeable signs of intoxication, the arresting officer requested a urine test to which Kennon refused to consent.

Inside the truck, police discovered a crowbar, sledgehammer, bolt cutters, wire cutters, ax, flashlight, and a pair of rubber gloves. Investigators determined that this pick-up truck had been stolen from a used car dealership less than 24 hours earlier. The manager of the dealership testified that Kennon had test driven the same truck a few days earlier. He testified that none of the tools found had been in the truck when he cleaned it. Held:

1. Kennon claims that he was entitled to a directed verdict on the charge of driving under the influence of alcohol because the indictment was defective in that it failed to notify him that he could be convicted of driving under the influence to the extent that it was less safe to drive. We disagree. By failing to attack the indictment prior to trial, Kennon waived his right to a perfect indictment. Bowman v. State, 227 Ga. App. 598, 599 (1) (490 SE2d 163) (1997); Bentley v. State, 210 Ga. App. 862 (1) (438 SE2d 110) (1993).

Even assuming the issue was not waived, it lacks merit. The indictment charged Kennon with “[djriving under the influence of alcohol . . . did then and there unlawfully drive a moving vehicle while under the influence of alcohol, so that it was less safe for the defendant to drive, there being not less than .10 percent by weight of alcohol in his blood. . . .” These facts were sufficient to notify Ken-non as to the two ways he could be convicted of DUI. See OCGA § 40-6-391 (a) (1) and (5). See Jones v. State, 226 Ga. App. 619, 622 (3) (487 SE2d 371) (1997). Compare Kevinezz v. State, 265 Ga. 78, 83 (2) (d) (454 SE2d 441) (1995).

Where a crime, as here, can be committed in a variety of ways, an indictment must charge the ways in the conjunctive. Vann v. State, 153 Ga. App. 710, 711 (2) (266 SE2d 349) (1980). We find no error.

2. Kennon contends that he was entitled to a directed verdict on the charge of theft by receiving because venue was only proper in Dougherty County. We disagree. Venue for certain theft offenses, including this offense, is appropriate “in any county in which the accused exercised control over the property which was the subject of the theft.” OCGA § 16-8-11. The evidence, without question, shows that Kennon exercised control over the stolen vehicle in Lee County where he was prosecuted for that offense.

Decided May 7, 1998.

Joseph A. Grimsley, for appellant.

John R. Parks, District Attorney, Richard E. Nettum, Assistant District Attorney, for appellee.

3. Kennon contests the sufficiency of the evidence as to his conviction for possession of tools for the commission of a crime. The essential elements of that offense are: (1) possession of tools and implements commonly used in the commission of burglary, theft or other crime; (2) intent to use those in the commission of a crime. OCGA § 16-7-20 (a). Hogan v. Atkins, 224 Ga. 358, 359 (162 SE2d 395) (1968). Kennon was the sole occupant of the vehicle in which the tools were discovered and in sole possession of the tools. The sledgehammer, ax, bolt cutters, crowbar, wire cutters, and the pair of gloves shown in evidence satisfy the first element as they are commonly used in the commission of burglary, theft, or other crimes. Delvers v. State, 139 Ga. App. 119, 122 (5) (227 SE2d 844) (1976). See Douglas v. State, 194 Ga. App. 182, 183 (390 SE2d 98) (1990).

The second element of intent is a question of fact for jury resolution. Farlow v. State, 59 Ga. App. 881, 883 (1) (2 SE2d 500) (1939). Intent may be proven by circumstantial evidence, by conduct, demeanor, motive, and all other circumstances. Harp v. State, 136 Ga. App. 897, 900 (3) (a) (222 SE2d 623) (1975). Here, the evidence showed that late at night Kennon had positioned his vehicle behind a closed business, and upon noticing the police immediately moved. His stolen pick-up truck contained numerous tools commonly used in the commission of burglaries. See Evans v. State, 216 Ga. App. 21, 22 (1) (453 SE2d 100) (1995) (possession of screwdrivers, pliers, and various car keys combined with act of casing a parking lot sufficient to prove offense). The evidence adduced at trial including Kennon’s unexplained presence in possession of these tools behind a closed business was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to support the verdict. See Thomas v. State, 193 Ga. App. 419, 420-421 (388 SE2d 32) (1989).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


author: Smith, Judge.

text:
    A98A0602.
    SWORD v. THE STATE.
    (502 SE2d 334)
   Smith, Judge.

Stephanie Ann Sword was charged by accusation in Clayton County with four counts of financial transaction card fraud, OCGA § 16-9-33 (a) (2) (B). She filed a plea in bar, claiming the prosecution was barred by her previous conviction in Fayette County for financial transaction card theft, OCGA § 16-9-31 (a) (1). Her plea was denied, and she filed this appeal. The sole issue on appeal is the merit of her contention that financial transaction card theft constitutes a lesser included offense of financial transaction card fraud and that her prior conviction for the former offense therefore precludes her prosecution for the latter. We conclude Sword’s contention is without merit in this instance, and we affirm the denial of her plea.

OCGA § 16-9-31 (a) provides a number of alternative ways in which the offense of financial transaction card theft may be committed. The Fayette County indictment charged Sword with committing the offense of financial transaction card theft in that she did “knowingly and willfully take and possess a financial transaction card . . . without the authorization of the cardholder.” This is one of the methods of committing financial transaction card theft specified in OCGA § 16-9-31 (a) (1), and it requires proof of nothing other than a knowing taking and possession of the card without the permission of the cardholder. No showing of intent to use the card is necessary, nor is a showing of actual use. The crime was complete when Sword took the card. Even if she had never used the card to obtain merchandise or money, she was gtdlty of violating OCGA § 16-9-31 (a) because she obtained and retained the card, having knowledge that she was not authorized by the cardholder to do so.

The Clayton County accusation charged Sword with violating a different statute: financial transaction card fraud. The accusation alleged that on four occasions on one day, Sword presented the financial transaction card without the authorization of the cardholder to receive merchandise.

These acts constituted violations of OCGA § 16-9-33 (a) (2) (B) and are completely different from the offense with which she was charged in Fayette County. Under these circumstances, Sword’s prosecution for the Clayton County offenses is not precluded by the double jeopardy provisions of the Fifth Amendment to the United States Constitution, or by those of Article 1, Section 1, Paragraph 18 of the Georgia Constitution or by those of Georgia statutes.

“The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ The Georgia Constitution also contains a double jeopardy clause which provides ‘no person shall be put in jeopardy of life or liberty more than once for the same offense.’ The double jeopardy clause protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” (Citations and punctuation omitted.) Battista v. State, 223 Ga. App. 369, 370 (477 SE2d 665) (1996).

Under Blockburger v. United States, 284 U. S. 299, 304 (52 SC 180, 76 LE 306) (1932), successively charged offenses are separate for purposes of double jeopardy if each offense requires the State to prove some element or fact that is not required in the other. State v. Williams, 214 Ga. App. 701, 702 (448 SE2d 700) (1994). Clearly, under this test the Clayton County prosecutions were separate and different from the Fayette charge, and they were not barred. They required proof of presentation of the card to receive merchandise or other things of value.

“OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct. [Cit.]” Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995). Sword relies upon OCGA § 16-1-7 in contending that the Clayton prosecutions were barred because financial transaction card theft is a lesser included offense of financial transaction card fraud. OCGA § 16-1-7 (a) provides that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if . . . [o]ne crime is included in the other.” OCGA § 16-1-6 defines a crime as being included if “(1) [i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) [i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.”

Neither of these definitions governs the offenses in issue in this case. A violation of the theft statute requires retention without authorization in addition to simply obtaining the card, which is not required under the fraud statute. It therefore does not require “the same or less than all the facts” required to establish the fraud offense. And it differs from financial transaction card fraud in that the injury is to a different person or entity. See fn. 2, supra.

Decided May 7, 1998

Alfred L. King, Jr., for appellant.

Robert E. Keller, District Attorney, Brian J. Amero, Assistant District Attorney, for appellee.

The record shows that at the plea and sentencing hearing in the Fayette County case, the prosecutor mistakenly informed the judge that the statute violated was OCGA § 16-9-33. It also shows that Sword’s sentence on the Fayette County theft charge included restitution to the card issuer. But even if restitution in the Fayette case was erroneous, it nevertheless does not constitute a bar to the Clayton County prosecution. Sword did not point out the error in that case, either by informing the court at the time of the hearing or by appealing. Moreover, the sentencing ranges for both OCGA §§ 16-9-31 and 16-9-33 are identical. See OCGA §§ 16-9-31 (c); 16-9-33 (c); 16-9-38. The trial court did not err in denying Sword’s plea in bar. But because the record does not indicate the basis for the restitution ordered in the Fayette County case, if Sword is convicted in this case the trial court should consider the previous order for restitution to ensure that Sword is not required to make restitution for the same injury twice.

Judgment affirmed.

Birdsong, P. J., dnd Johnson, J, concur.

       It is true that OCGA § 16-9-31 (a) (1) also includes another method of committing the crime: by receiving the card with intent to use, sell, or transfer it, knowing that it has been obtained unlawfully. But the two methods are listed in the statute in the disjunctive, making clear that they are alternative methods; intent is not a necessary element when the offense is committed by the first alternative method: taking and possessing the card without authorization by the holder.

       The trial court also correctly concluded that the two crimes have different victims. The victim of financial transaction card theft is the cardholder, whereas the victim of financial transaction card fraud is the card issuer or the merchant.


text:
    A98A1059.
    MOODY v. THE STATE.
    (502 SE2d 323)
   Eldridge, Judge.

Following a July 1996 jury trial, the defendant, Sylvester Moody, was convicted of possession of cocaine under OCGA § 16-13-30 (a) and sentenced to fifteen years imprisonment, with eight to serve. He appeals his conviction and we affirm.

The facts are as follows: at approximately 3:00 p.m. on February 2, 1996, the Savannah-Chatham Counter Narcotics Team (CNT) executed a search warrant, predicated on three previous controlled drug buys, at 116-a Garden Homes, Savannah. The CNT agents were dressed in vests bearing the word “Police” in large letters and each had a police badge on a chain around his neck in plain view. As the CNT agents approached the front door of the apartment, they yelled “police with a search warrant.” Moody, who was standing inside a screen door, slammed the inner metal door in the agents’ faces. The front door was then locked, and Moody attempted to flee out the back door, which was blocked by CNT agents. The agents repeatedly yelled out “police, police, stop.” Moody turned, threw a gun and some drugs on the floor, and ran upstairs, where he eventually was found hiding in a bedroom closet.

In the apartment, the CNT seized almost 100 grams of crack cocaine. Some of the cocaine was found on the kitchen counter and in a bottomless Ajax cleanser can. However, cocaine also was scattered on the kitchen floor near the back door where Moody had attempted to escape. In addition, the CNT seized a “very large” Glock .40 caliber pistol, “thousands” of empty small plastic baggies of the type used to package cocaine, as well as a bottle of inositol (or isotol), a cocaine cutting agent. Moody was searched and was found to be carrying $1,090 in cash and a pager.

The CNT arrested Moody and Michelle Massey, the apartment’s lessee. Massey claimed that she had left work and arrived at the apartment just before the arrest. This claim was corroborated by employment pay records and by the woman who gave her a ride home from work. Massey also disavowed any knowledge that drugs or firearms were in the apartment.

Moody claimed that he had arrived at the apartment shortly before the arrest, and was only there to use the phone. It is undisputed that Moody was a visitor to the apartment.

Moody was indicted on two counts of trafficking in cocaine, OCGA § 16-13-31 (a), and one count of possession with intent to distribute, OCGA § 16-13-30 (b). Following a jury trial, Moody was acquitted of these charges, but convicted of the lesser included offense of possession of cocaine. It is from this conviction that Moody appeals.

1. In his first enumeration of error, Moody contends that the trial court erred in sustaining the State’s motion in limine to exclude evidence regarding controlled drug buys at the apartment prior to his arrest. These drug buys were used as the basis upon which to secure the search warrant executed in this case. Moody argues that testimony regarding the previous drug buy would prove that drugs were present in the apartment before he arrived on February 2, 1996. Although it is not clear from his brief, Moody apparently contends that others brought the cocaine to the apartment and that his mere proximity to the cocaine is insufficient to prove his guilt of possession beyond a reasonable doubt.

At the outset, it is unnecessary to decide whether such evidence was relevant to the charges upon which Moody was indicted, since Moody was acquitted of the trafficking and possession with intent charges. He was convicted, instead, of simple possession. Accordingly, we must decide only whether such evidence was relevant and admissible regarding the issue of whether Moody “purchase[d], possessed], or [had] under his control any controlled substance” while in the apartment at the time of his arrest. OCGA § 16-13-30 (a). If so, we must determine whether such evidence was wrongly excluded by the trial court.

“Possession of contraband may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” (Citations and punctuation omitted.) Allen v. State, 191 Ga. App. 623, 624 (2) (382 SE2d 690) (1989). Such intent to exercise control can be inferred by the totality of the circumstances, including the presence of large amounts of contraband and drug paraphernalia in plain view, inconsistent explanations by the defendant for his behavior, and the defendant’s attempt to flee or hide from police. See Allen v. State, supra at 625; see also Petty v. State, 221 Ga. App. 125 (470 SE2d 517) (1996); Hicks v. State, 195 Ga. App. 887 (395 SE2d 341) (1990).

However, this Court recognizes the long-standing rule that “[a] finding of constructive possession must be based upon some connection between the defendant and the contraband other than spatial proximity. Evidence of mere presence at the scene of the crime, and nothing more to show participation of a defendant in the illegal act, is insufficient to support a conviction.” (Citations and punctuation omitted.) Paden v. State, 216 Ga. App. 188, 189 (453 SE2d 788) (1995).

Further, “where a conviction for possession of contraband depends entirely on circumstantial evidence, it must both be consistent with the hypothesis of guilt and must exclude every other reasonable hypothesis. Ennis v. State, 130 Ga. App. 716, 717 (2) (204 SE2d 519) (1974).” (Punctuation omitted; emphasis supplied.) Paden v. State, supra at 189; see also Hicks v. State, supra. “Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. . . . After having heard the witnesses and having observed them testify, they are more capable of judging of the reasonableness of a hypothesis produced by the evidence, or the lack of evidence, and the defendant’s statement, than is a court of law.” (Citations and punctuation omitted; emphasis supplied.) Harris v. State, 236 Ga. 242, 244-245 (1) (223 SE2d 643) (1976).

In this case, Massey, the co-defendant, pled guilty and testified that she saw Moody throw the pistol near the pantry and cocaine on the floor before he ran upstairs to hide. However, in addition to this direct evidence of actual possession, the State also presented circumstantial evidence to show his constructive possession of the cocaine. Specifically, this circumstantial evidence included the presence of large amounts of cocaine and drug paraphernalia, as well as a Glock .40 caliber pistol, in plain view. Several witnesses also testified regarding Moody’s extensive attempts to interfere with the execution of the search warrant, to flee the apartment, and to elude police by hiding in an upstairs bedroom. As previously noted, such actions constitute evidence of Moody’s consciousness of guilt and of his intention to exercise control over the contraband. See OCGA § 16-2-6; Hurston v. State, 202 Ga. App. 311 (414 SE2d 303) (1991); Scott v. State, 193 Ga. App. 74 (387 SE2d 31) (1989); Travis v. State, 192 Ga. App. 695, 696 (385 SE2d 779) (1989); Stafford v. State, 187 Ga. App. 401 (370 SE2d 646) (1988); Prather v. State, 116 Ga. App. 696 (158 SE2d 291) (1967).

This evidence also directly conflicts with Moody’s assertion that he was at the apartment simply to use the telephone, an explanation that obviously was rejected by the jury. Although Moody claims to have been at the apartment only two minutes prior to the execution of the warrant, Massey testified that he was there when she got home from work several minutes before the agents arrived. Even though approximately ten CNT agents surrounded the apartment, not one saw Moody enter the apartment immediately prior to the raid.

Such evidence distinguishes this case from the cases cited by Moody in which the defendants presented reasonable explanations for their behavior that were not excluded by the circumstantial evidence. See Paden v. State, supra at 190; Farmer v. State, 152 Ga. App. 792, 793 (264 SE2d 235) (1979) (holding that evidence was insufficient to prove possession when there was no paraphernalia or attempt to flee and when the defendants were “polite and cooperative, even helpful”).

Moody’s attempts to avoid arrest and the presence of contraband in plain view also distinguish this case from those in which the circumstantial evidence did not exclude the possibility that someone else had equal access to the premises and had brought the contraband to the premises without the defendant’s knowledge. See Ivey v. State, 226 Ga. 821, 824 (4) (177 SE2d 702) (1970); Reid v. State, 212 Ga. App. 787 (442 SE2d 852) (1994); Ennis v. State, supra at 717. Massey’s testimony supports a finding that Moody knew about the drugs and, at a minimum, jointly possessed the drugs.

Finally, even if evidence had been presented that others had access to the apartment and had previously brought drugs to the apartment, such evidence does not preclude a finding that Moody was in joint constructive possession of the cocaine on the day of his arrest. “The evidence [that previous controlled drug buys had taken place at the apartment] did not logically tend to prove or disprove either that [a] third party committed [this] crime or that [Moody] did not commit [this] crime. The evidence offered would have served merely to divert the jury’s attention from the pertinent facts of the case.” (Citations and punctuation omitted.) Pitts v. State, 206 Ga. App. 635, 636 (426 SE2d 257) (1992); see also Higginbotham v. State, 207 Ga. App. 424, 427-428 (5) (428 SE2d 592) (1993); McNeil v. State, 202 Ga. App. 900, 901-902 (415 SE2d 922) (1992). There was no error in the trial court’s decision to exclude evidence of prior drug buys at the apartment.

2. Moody asserts that the trial court erred in denying his motion for a directed verdict of acquittal at the conclusion of the State’s case. He argues that Massey was an accomplice whose testimony was not corroborated, so that such evidence was insufficient to prove that he was in possession of the cocaine. See OCGA § 24-4-8. However, Massey’s testimony was, in fact, corroborated by testimony of the CNT agents regarding Moody’s attempts to flee the apartment and the presence of cocaine and drug paraphernalia in plain view. Further, Massey’s co-worker corroborated her claim that Massey arrived home from work a few minutes before the execution of the search warrant. Such circumstantial evidence is sufficient corroboration of Massey’s testimony. “The necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct before and after the crime was committed may give rise to an inference that he participated in the crime.” (Citations and punctuation omitted.) Bradford v. State, 262 Ga. 512, 513 (421 SE2d 523) (1992); Daniel v. State, 207 Ga. App. 720, 721 (429 SE2d 130) (1993); Allen v. State, 175 Ga. App. 128, 129 (2) (333 SE2d 11) (1985). “Slight 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.” (Citations and punctuation omitted.) Daniel v. State, supra at 721.

Further, as noted in Division 1, supra, there was substantial evidence of Moody’s guilt beyond Massey’s testimony. In addition to evidence that Moody attempted to flee the apartment and elude arrest, the record shows that substantial amounts of cocaine and drug trafficking paraphernalia, including “thousands” of small plastic baggies, a bottle of isotol, and a weapon, were found in the apartment in plain view.

Such evidence created a jury issue as to Moody’s possession of cocaine, so that he was not entitled to a directed verdict of acquittal. OCGA § 17-9-1 (a).

3. Further, “[o]n appeal the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). This evidence was sufficient for a rational trier of fact to find Moody guilty beyond a reasonable doubt of possession of cocaine. Jackson v. Virginia, supra.

4. Moody also challenges the validity of the search warrant and asserts that the trial court erred in denying his motion to suppress evidence. “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made[,] . . . [and the] trial court’s findings must be adopted unless determined to be clearly erroneous.” (Citations and punctuation omitted.) Dennis v. State, 166 Ga. App. 715, 716 (305 SE2d 443) (1983).

(a) It is undisputed that Moody has no ownership or possessory interest in Massey’s apartment. As such, he had no expectation of privacy in the premises and lacks standing to challenge the validity of the search warrant. Rakas v. Illinois, 439 U. S. 128 (1) (99 SC 421, 58 LE2d 387) (1978); Delgado v. State, 192 Ga. App. 356, 357 (384 SE2d 680) (1989); Sanders v. State, 181 Ga. App. 117, 119 (351 SE2d 666) (1986); Dennis v. State, supra at 717; Staton v. State, 164 Ga. App. 464, 465 (1) (297 SE2d 375) (1982); Lester v. State, 163 Ga. App. 604 (295 SE2d 566) (1982).

(b) Further, although Moody was not specifically named in the warrant, the warrant authorized the search of “all persons present at time of warrant execution who may reasonably be involved in the crime of possession of illegal drugs or narcotics.” Since the evidence supports a finding that Moody constructively possessed the contraband at issue, he was subject to detention and search under the terms of the warrant. Travis v. State, supra at 695-696; Willis v. State, 122 Ga. App. 455, 456-458 (177 SE2d 487) (1970).

Decided May 7, 1998.

William O. Cox, for appellant.

Spencer Lawton, Jr., District Attorney, George R. Asinc, Assistant District Attorney, for appellee.

Finally, under OCGA § 17-5-28, during the execution of a search warrant, “the officer executing the same may reasonably detain or search any person in the place at the time: (1) To protect himself from attack; or (2) To prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.” “It has been held that this statute does not limit the officer’s right to search persons as to whom probable cause for a warrantless search exists. Probable cause need not be defined in relation to any one particular element, but may exist because of the totality of the circumstances surrounding a transaction. ... In the present case, [Moody’s] presence on the premises at the time the warrant was executed, coupled with his flight, provided probable cause for a belief that he was in possession of, or was at least a party to the possession of, unlawful contraband.” (Citations and punctuation omitted.) Travis v. State, supra at 696; see also Delgado v. State, supra at 357 (holding that a pat-down was authorized during the execution of a search warrant because contraband was discovered in plain view).

The trial court properly denied Moody’s motion to suppress.

5. Moody’s remaining enumerations are deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2), which requires enumerations of error to be supported by citation to authority or argument.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Moody also was charged with one count of possession of a firearm by a convicted felon, OCGA § 16-11-131. However, this charge was severed from the trial on the cocaine charges.

       In this enumeration, Moody also argued that he was denied the right to cross-examine Massey regarding her motivations for testifying. However, the transcript shows that the trial court did, in fact, allow such cross-examination. Even so, such assertion is outside the enumeration of error. “[E]rror argued but not enumerated will not be considered [on appeal]. . . . Enumerations of error cannot be enlarged by means of statements in the brief of counsel to include issues not made in the enumeration.” (Citation and punctuation omitted.) Donelson v. State, 220 Ga. App. 688, 689 (469 SE2d 861) (1996).