text:
    A02A1389.
    STONE v. THE STATE.
    (570 SE2d 715)
   Blackburn, Chief Judge.

Following a jury trial, Charles Stone appeals his convictions on five counts of armed robbery, contending that (1) the trial court erred in failing to grant a mistrial where the State, during closing argument, improperly commented on Stone’s exercise of his right to remain silent and (2) the trial court’s charges lessened the State’s burden of proof and shifted the burden of proof to Stone. For the reasons set forth below, we affirm.

Viewed in a light most favorable to the verdict, the record shows that shortly after midnight on March 27, 1991, Stone and an accomplice approached Dexter Tuggle in a store parking lot. Stone pulled out an automatic pistol and took from Tuggle his money and car keys; he and his accomplice then drove away in Tuggle’s Monte Carlo.

On the following night, Stone and his accomplice drove Tuggle’s car to Perkerson Park, where they robbed at gunpoint Suzette Spencer and Anthony Welch, taking from Spencer her purse and from Welch his wallet, watch, and car, a blue Mercury Marquis.

Stone and his accomplice drove the Mercury from Perkerson Park to South Bend Park, where they took, again at gunpoint, Gwen Wilburn’s jewelry and purse and Johnny Russell’s billfold and money. When the two robbers sped away, they were noticed by the police, who gave chase. The robbers wrecked the car; Stone was apprehended after a brief chase, but his accomplice escaped. Proceeds of the recent robberies were found inside the car and on the ground at the point where Stone was caught by the police.

Stone was arrested on March 28, 1991. He was tried and convicted in Fulton Superior Court on November 22, 1991, and was sentenced on February 17, 1992. He filed a motion for new trial on March 18, 1992. The trial transcript was filed on April 23, 1993. On February 25, 1995, original counsel was permitted by the court to withdraw and present counsel was assigned to this case as substitute counsel. An amended motion for new trial was filed on March 9, 2001. Stone’s motion for new trial was denied on October 25, 2001, approximately nine years and seven months after he was sentenced. Stone was incarcerated for a period of 310 days between arrest and trial, approximately three months between trial and sentence, one month between sentence and the filing of the original motion for new trial, and over nine years and seven months between the filing and the denial of the motion for new trial, a total of approximately ten years and eight months, to get through the trial stage. In addition, Stone has been incarcerated over nine months from the filing of his notice of appeal through the date of this opinion. To date, Stone has been incarcerated a total of approximately eleven years and five months, while the judicial system resolves the question of his guilt or innocence. While this Court has affirmed Stone’s conviction, it is still subject to further appellate review. The courts have a duty to the citizens of this state to oversee the criminal justice system and to ensure that those who are accused of crimes are tried expeditiously, and that their constitutional rights are protected. The delay which has occurred in this case is simply not acceptable. The legislature has provided that a defendant must file a motion for new trial within 30 days of the entry of the judgment on the verdict. This and other statutorily established time limits clearly indicate the intention of the legislature that criminal matters be resolved promptly. Ten years is too long to take to address a motion that must be filed in thirty days. The judicial branch, prosecutors, and the criminal defense bar all have a duty to meet their respective responsibilities in ensuring that criminal cases are promptly resolved.

1. Stone contends that the trial court erred in denying his motion for mistrial after the State, during closing argument, improperly commented on his exercise of his right to remain silent. “The abuse of discretion standard applies to the review of the denial by the trial court of a motion for mistrial.” Underwood v. State. We find no abuse of discretion on the part of the trial court.

During cross-examination, defense counsel asked the arresting officer if he had asked Stone about his accomplice, and the arresting officer replied that he had asked Stone about his accomplice after advising him of his Miranda rights. Defense counsel then asked the officer what Stone had told him. At this point, the State objected, but the trial court overruled the objection. The officer then testified that when asked about his accomplice, Stone had not given the accomplice’s name but had simply stated that he lived in Carver Homes. Defense counsel next asked the officer if Stone had told him how he came to be with the accomplice; the officer stated that at this point, Stone “clammed up.” Defense counsel went on to ask the officer whether Stone had told him that he had “just caught a ride with him,” and the officer said that Stone had not.

Stone testified at trial that on the night of March 28, 1991, he had gone with his girlfriend and others to the home of his girlfriend’s father. Around midnight, he decided to go home and called a cab. When the cab did not show up, he got a ride with a man he had met once before through his girlfriend’s sister. Stone testified that the man was driving above the speed limit and that when he went through a yellow light, a police car started following them. Stone told the driver that the police were following and asked him if he had a license and insurance. The driver replied in the negative and then told Stone that the car was “hot.” After the driver increased his speed and ran a stop sign, the police turned on their lights and gave chase. Shortly thereafter, the driver crashed the car. Both men jumped out and ran. Stone was caught by the police, but the driver escaped.

Defense counsel also asked Stone what had happened after Stone was identified by several of the victims. Stone replied:

Okay. After I was identified, they called the ambulance. The ambulance came. Two people got out the ambulance. They looked at my legs. Told them I needed to be taken to Grady before I was taken to jail. They left. They finished writing the report. The police, you know, he was asking me about did I know the other guy. I was telling him all I know, you know, by [sic] I had seen him before. I didn’t know him personally, you know, all I know that he stayed in Carver Homes. That’s it. But as far as knowing him personally where I could take him to where he was at or something like that, I couldn’t do that.

In closing argument, the prosecutor stated:

[T]he police officer told you upon defense counsel’s questioning, did the defendant [make] any statements at the scene? He told you yes the defendant said he lives in Carver Homes. That’s all he said. Well, Ladies and Gentlemen, wouldn’t it be reasonable that if the story was as the defendant would have you believe he could say, listen, I don’t know why you all have these people looking at me but, by golly, let me tell you what it is. I was over at Pam Marshall’s house. I just left there” ten minutes ago. Lo and behold you guys jumped behind me.

Defense counsel objected to this argument, and the court instructed the jury that Stone “was not required to make any statement” or to “tell the police anything at any time.” The prosecutor then continued:

But he was Mirandized. Upon defense counsel’s questioning — the State didn’t question him on this. Defense counsel wanted to know — defense counsel wants you to know what the defendant said at the scene that night. Well, ask yourself, ask the defendant why he didn’t say, hey, I mean, if you are going to talk to him, why not tell the truth? Why not tell the police that night what you told us this morning instead of having about seven or eight months to find alibi witnesses at the jail and come in and give us malarkey.

Stone failed to renew his motion for mistrial or ask for additional instructions after the judge instructed the jury, and the State continued its argument.

Stone’s argument that he is entitled to a new trial because the State improperly commented on his exercise of his right to remain silent must fail for several reasons. First, as noted above, Stone failed to renew his motion for mistrial after the trial court gave curative instructions to the jury. Where a defendant objects and moves for a mistrial during the State’s closing argument “and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion; otherwise, the issue is waived. [Stone’s] silence after the trial court’s purported corrective action amounts to a waiver.” (Footnote omitted.) Frazier v. State. See also Pless v. State (holding that “the defendant failed to preserve this issue for appeal by renewing his motion for mistrial after the curative instructions by the trial court”).

Second, the prosecutor’s closing argument was not a comment on the defendant’s silence. Stone was not silent at the time of his arrest and spoke to the police officer after being advised of his Miranda rights. In Stone’s own words, he was “telling him all I know.” Neither was Stone silent at trial. In arguing as it did in closing, the State was not commenting on Stone’s silence but was instead pointing out that when Stone first spoke to the police, he did not, or could not, provide information supporting his alibi, as he did when he took the stand at trial. We recognize that in Doyle v. Ohio, the United States Supreme Court held that an accused’s post -Miranda silence could not be constitutionally used for impeachment purposes. But, “another issue altogether is presented when the defendant gives one version of his [story] to the police and then gives the jury a different version. In that instance the earlier statement of the defendant is admissible for purpose of impeachment of his sworn testimony at trial.” Wilson v. State. The State’s comments “were comments on [Stone’s] election to speak, if they were comments at all.” Wallace v. State. Such comments were permissible deductions based on the discrepancy between what Stone said to the police officer at the time of his arrest and what Stone told the jury at trial.

Third, the State’s line of argument was invited by defense counsel’s cross-examination of the arresting officer. By asking the officer questions that suggested answers consistent with Stone’s alibi, such as whether Stone had told the officer how he had come to be with the accomplice or that he had caught a ride with the accomplice, and then putting Stone on the stand so that he could present his alibi to the jury, the defense counsel opened the door to the State’s argument. Wallace, supra at 741. See also Burney v. State (“[b]y questioning the witnesses on these matters, the appellant opened the door to the questioning by the district attorney on the same matters”). Stone cannot pursue a line of questioning, over objection from the State, which is intended to support his alibi and then complain when, the State draws permissible conclusions from the responses to that line of questioning.

Finally, even if the State’s argument had been a comment on Stone’s exercise of his right to remain silent, and proper objection was made,

[improper reference to a defendant’s silence, however, does not automatically require reversal. Assuming that a defendant has preserved the point by proper objection, the error may be harmless beyond a reasonable doubt. The determination of harmless error must be made on a case by case basis, taking into consideration the facts, the trial context of the error, and the prejudice created thereby as juxtaposed against the strength of the evidence of defendant’s guilt.

(Citations omitted.) Hill v. State. In this case, the positive identifications of five witnesses, his apprehension in flight, and the recovery of the stolen property at the scene provided overwhelming evidence of Stone’s guilt. See Bruce v. State.

2. Stone contends that the trial court erred in failing to charge properly on the principle of reasonable doubt. The trial court charged the jury on reasonable doubt as follows:

Now, Ladies and Gentlemen, a reasonable doubt means exactly what it says. It is a doubt founded upon a reason. A reasonable doubt may grow out of the evidence or a lack of evidence or conflict in the evidence. While the law requires the state" to prove the defendant’s guilt of the offense charged to your satisfaction beyond a reasonable doubt, yet the law does not require the state to prove the defendant’s guilt to a mathematical or absolute certainty. A reasonable doubt is not a vague or a conjectural doubt. It is not a fanciful doubt. It is not an imaginary doubt. Neither does it mean a possibility that the defendant may be innocent. But as the court has stated to you, it is a doubt that is founded upon reason.

Stone contends that the language in the charge stating “[n] either does it mean a possibility that the defendant may be innocent” eliminates the possibility that the jury might believe that the defendant may have committed the crime but the State failed to meet its burden.

In Coleman v. State, our Supreme Court disapproved use of the language to which Stone objects. However, the Coleman decision, rendered in 1999, makes clear that its ruling would not be retroactive. Accordingly, the giving of this charge, as in the Coleman case, was not reversible error.

3. The trial court’s charge on intent was as follows:

A crime is a violation of a statute of this state in which there shall be a union or joint operation of act and intention. This just simply says that if there’s no statute prohibiting it, it’s not a crime in the State of Georgia. A crime involves both the act, that is, the act that is prohibited and the intention to commit that act. Basically putting it another way, you might say crimes áre not accidental. You don’t accidentally commit crimes. So the State contends that the defendant intentionally did certain acts here to amount to armed robbery. That’s for you to determine.

Decided September 6, 2002.

Sharon L. Hopkins, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Marc A. Mallon, Assistant District Attorneys, for appellee.

Stone argues that in charging the jury that there is no such thing as an accidental crime, the trial court eliminated the necessity for the State to prove the intent element of the offense.

The instruction that crimes are not committed by accident was not erroneous. Such an instruction is an authorized reference to OCGA § 16-2-2, which provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” “Because the charge was correct in substance, there was no error.” Hamilton v. State.

Judgment affirmed.

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

        Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995).

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

        Frazier v. State, 247 Ga. App. 500, 501-502 (544 SE2d 198) (2001).

        Pless v. State, 260 Ga. 96, 98 (2) (390 SE2d 40) (1990).

        Doyle v. Ohio, 426 U. S. 610 (96 SC 2240, 49 LE2d 91) (1976).

        Wilson v. State, 145 Ga. App. 315, 324 (5) (244 SE2d 355) (1978).

        Wallace v. State, 246 Ga. 738, 741 (2) (273 SE2d 143) (1980).

        Burney v. State, 244 Ga. 33, 39 (4) (257 SE2d 543) (1979).

        Hill v. State, 250 Ga. 277, 283 (4) (a) (295 SE2d 518) (1982).

        Bruce v. State, 263 Ga. 273, 274 (3) (430 SE2d 745) (1993).

        Coleman v. State, 271 Ga. 800, 804 (523 SE2d 852) (1999).

        Hamilton v. State, 260 Ga. 3, 5 (5) (b) (389 SE2d 225) (1990).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A1587.
    HUMPHREY v. THE STATE.
    (571 SE2d 187)
   Mikell, Judge.

Reginald Humphrey entered a negotiated plea of guilty to one count of child molestation. He was sentenced to ten years, with.one to serve in confinement and the balance on probation as well as a $1,000 fine. During sentencing, Humphrey requested first offender treatment, which the trial court denied. Humphrey appeals the trial court’s denial of his request, arguing that the trial court: (1) imper-missibly considered hearsay to arrive at its determination and (2) erred by refusing to exercise its discretion to grant him first offender status. We agree that the trial court considered impermissible hearsay and reverse.

The indictment alleged that Humphrey “perform [ed] an immoral and indecent act to [J. T.], a child under the age of sixteen years, to-wit: the said accused fondled the inner thigh of the said child, with the intent to arouse and satisfy his sexual desires in violation of OCGA § 16-6-4.” In response to Humphrey’s request for first offender treatment, the prosecution told the trial judge: “I would just ask that you consider that in Humphrey’s confession he said that it had occurred on a number of occasions. We’re simply proceeding on one charge.”

The record contains an investigator’s report which reads as follows: “Reginald Leon Humphrey interviewed at [Newton County Sheriffs Office] under Miranda — gave confession — not recorded see written interview summary — witnessed by Inv. J. Roberts.” Humphrey’s counsel filed a motion to suppress the statement but withdrew the motion after the negotiated plea agreement was reached. There is no evidence in the record that Humphrey admitted to anything other than the sole offense described in the indictment. The trial judge denied Humphrey first offender status, stating:

The one thing that occurs to me was that if this was an isolated incident that had occurred only once in his life — it’s part of the plea, and I understand the plea agreement, and I’m not going to depart from it, but under the circumstances where this apparently has occurred a number of times, . . . I’m not going to allow him to be sentenced as a First Offender. I do consider every case individually. I’m not saying because I’ve never done it before I’m not doing it here. I don’t think it justifies departing from the recommendation due to the facts and circumstances of this particular case taking everything into account as I have. . . . Does he wish to withdraw his guilty plea?

Humphrey declined to withdraw his plea.

1. Humphrey argues that the trial judge considered impermissible hearsay in denying him first offender status. In response, the state argues that Humphrey waived this argument on appeal because he failed to object to the admission of the evidence below. It is well established in Georgia that “hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact. Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862) (1938).” Thus, despite Humphrey’s failure to object to the prosecutor’s statement, the statement lacks probative value and carries no weight toward establishing it as a fact.

Decided September 6, 2002.

Moulton & Massey, Jeremy A. Moulton, for appellant.

W. Kendall Wynne, Jr., District Attorney, Brian K. Ross, Assistant District Attorney, for appellee.

“[T]here is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision.” The showing necessary to rebut that presumption is present in this case. The record shows that the trial court relied upon the prosecutor’s hearsay statement in denying Humphrey first offender status, and there was no evidence presented to corroborate the statement. Accordingly, we remand for resentencing with direction to the trial court to determine whether to grant Humphrey first offender status without considering unlawful evidence.

2. We note, however, that our decision does not in any way abrogate the rule that the determination to treat a defendant as a first offender lies entirely within the trial court’s discretion. But a refusal to consider first offender treatment or the automatic denial of such treatment as part of a sentencing formula or policy constitutes an abuse of that discretion. Here, our decision is not based upon the trial court’s refusal to consider first offender treatment as an option nor its use of a mechanical sentencing formula, as the record does not support either assertion.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Phipps, J., concur.

       The prosecution opposed first offender status although there can be advantages for the state in such treatment. See, e.g., Roland v. Meadows, 273 Ga. 857 (548 SE2d 289) (2001).

       Humphrey maintained that this was an isolated incident.

       (Punctuation omitted.) Day v. State, 235 Ga. App. 771, 772 (2) (510 SE2d 579) (1998), citing White Missionary Baptist Church v. Trustees of First Baptist Church, 268 Ga. 668, 669 (1) (492 SE2d 661) (1997).

        Curtis v. State, 190 Ga. App. 173, 175 (2) (378 SE2d 516) (1989), overruled in part on other grounds, Brown v. State, 274 Ga. 31, 34 (1) (549 SE2d 107) (2001).

       (Citation and punctuation omitted.) Workman v. State, 137 Ga. App. 746, 749 (7) (224 SE2d 757) (1976).

       Compare Welborn v. State, 166 Ga. App. 214, 215 (303 SE2d 755) (1983) (illegal evidence was injected in sentencing hearing but the trial court sustained objections to it, which supported the presumption that the court only considered the legal evidence, and the defendant did not show that the trial judge was prejudiced by the illegal evidence).

       In light of our decision, it is not necessary to address Humphrey’s argument that . OCGA § 17-10-2 (a) requires the state to give notice of its intent to introduce other acts in aggravation of the sentence. Nonetheless, we point out that in Martin v. State, 207 Ga. App. 861 (429 SE2d 332) (1993), we held that “[b]y its terms, OCGA § 17-10-2 (a) is not made expressly applicable to sentences imposed in the context of guilty plea hearings.” Id. at 862.

        Welborn, supra; Camaron v. State, 246 Ga. App. 80, 81-82 (1) (539 SE2d 577) (2000).

        Jones v. State, 208 Ga. App. 472 (431 SE2d 136) (1993), citing Cottingham v. State, 206 Ga. App. 197, 199 (3) (424 SE2d 794) (1992).


author: Phipps, Judge.

text:
    A02A1644.
    HEARD v. THE STATE.
    (573 SE2d 82)
   Phipps, Judge.

Henry James Heard was convicted of aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He appeals, contending that the trial court erred in instructing the jury. Because the record demonstrates no error, we affirm.

At trial, Demetrius Marks testified that on April 1, 2000, after a verbal exchange, Heard drew a handgun from his pocket and pointed it at him. When Marks noticed that the gun had “jammed” and that Heard had reached to pick up some shells from the ground, he ran toward Heard to disarm him. Marks testified that a struggle ensued between them, during which Heard shot him four times.

Several family members and friends were present during the incident. Heard testified that Marks and Marks’s friend were making threatening moves toward him and that he displayed the gun only to scare them away. He testified that Marks’s friend charged him, dislodging the gun, and that the gun fired about three times. Heard testified that Marks then picked up the gun and that during their struggle, it was Marks who was shooting the gun.

1. Heard contends that the trial court erred in refusing to charge the jury that “where evidence of self-defense is presented by the Defendant, the State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.”

Although the court did not use that exact language, the record shows that it did charge the substance of the requested charge. The court adequately covered the principles of justification, including self-defense, and instructed the jury that “[t]he State [had] the burden of proving beyond a reasonable doubt that the defendant was not justified.” The court also correctly defined affirmative defense and instructed the jury that “[o]nce the issue of an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.”

A trial court does not err in refusing to give a charge in the exact language requested where, as here, the charges given, in their totality, substantially and adequately covered the principles in the requested charge.

2. Heard contends that the trial court erroneously charged the jury on a manner of committing aggravated assault not specified in the indictment, thus impermissibly expanding the ways in which the jury could find him guilty.

The indictment charged Heard with “unlawfully makfing] an assault upon the person of Demetrius Marks with a deadly weapon, to wit: a .25 caliber handgun.” In its charge, the trial court defined aggravated assault and both manners of committing simple assault:

Aggravated assault is defined as an assault — as an attempt to commit a violent injury to the person of another or an act which places another person in reasonable apprehension of receiving a violent injury. A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute an assault, actual injury to the other person need not be shown. It is only necessary that the evidence show beyond a reasonable doubt an intention to commit injury on the other person, coupled with the apparent ability to commit that injury or that the other person was intentionally placed in reasonable apprehension of immediately receiving a violent injury from the defendant.

Citing Harwell v. State, Heard argues that “this charge expanded the ways by which the jury could have convicted [him], as they could convict him based on intent and ability (as stated in the indictment) or if they found that he placed another in fear of injury (a method not stated in the indictment).”

In Harwell, the indictment charged ithe defendant with aggravated assault with the intent to rob, but the trial court instructed the jury on two methods of committing aggravated assault — the method alleged in the indictment, as well as aggravated assault with a weapon likely to cause serious bodily injury. Our Supreme Court reversed the defendant’s conviction for aggravated assault, holding that a defendant’s due process rights are violated where the indictment charges one specific method of committing an offense, yet the trial court’s instruction defines the crime as an act that could be committed in a manner other than the manner alleged in the indictment, where there is evidence supporting the unalleged method and no limiting instruction was given to the jury.

But unlike in Harwell, the trial court in this case did not charge the jury on an unalleged alternative method of committing aggravated assault. Rather, in its charge on aggravated assault, it defined aggravated assault and both manners of committing simple assault. We distinguished Harwell on this ground in Merneigh v. State, where the defendant, who had been indicted for aggravated assault, contended that the simple assault charge violated his right to due process because he was never specifically charged in the indictment with one of the manners in which a simple assault could have been committed. We found no error, ruling that the trial court had not instructed the jury on a separate method of committing aggravated assault, but had “simply defined both methods in which [a simple] assault can be committed.”

And in Marsh v. State, the defendant argued that the trial court erred in including in its charge both definitions of simple assault when the indictment alleged only one manner of aggravated assault. We rejected that argument, ruling that the simple assault charge did not present an improper basis on which jurors could convict the defendant of aggravated assault; rather, simple assault is a lesser included offense of aggravated assault.

We find that this case is controlled by Merneigh and Marsh. Contrary to Heard’s contention, the trial court did not charge a separate, unalleged method of committing aggravated assault, but simply defined both methods of committing simple assault, a lesser included offense. Furthermore, the charge tracked the suggested pattern charge on aggravated assault, which includes the statutory definitions of simple assault. The record demonstrates no error.

3. Heard contends that the trial court erred by telling the jury in the preliminary and final instructions that his plea of not guilty was not evidence. Citing Christensen v. State, he argues that the statement could have confused the jury and caused it to place the burden of proving his affirmative defense on him.

However, Heard’s counsel did not object or reserve objection to the instructions, and therefore this issue was not preserved for review on appeal. Furthermore, even if the contention were properly before us, it would be meritless. The challenged instructions were correct statements of the law and were not burden-shifting. Christensen is distinguishable. The charge there, unlike here, was that a plea of not guilty is not evidence of the defendant’s innocence, and we held that, because a defendant need not supply evidence of his innocence, that charge was confusing. The charge here did not imply that Heard had any evidentiary burden, and it was in accordance with the suggested pattern jury instruction. Moreover, our review of the entire charge shows that the court properly instructed the jury on Heard’s presumption of innocence and the State’s burden to prove his guilt beyond a reasonable doubt.

Decided September 6, 2002.

Thomas O. Humphries, Jr., for appellant.

W. Kendall Wynne, Jr., District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        Parker v. State, 242 Ga. App. 10, 12 (2) (528 SE2d 530) (2000).

       270 Ga. 765, 766 (1) (512 SE2d 892) (1999).

       Compare OCGA § 16-5-21 (a) (1) with OCGA § 16-5-21 (a) (2).

        Harwell, supra.

       242 Ga. App. 735, 737 (2), n. 3 (531 SE2d 152) (2000).

       Id.

       254 Ga. App. 342, 343-344 (2) (a) (562 SE2d 269) (2002).

       Id. at 344.

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, pp. 91-92 (2nd ed. 2001); OCGA § 16-5-20 (a).

       245 Ga. App. 165, 169 (6) (537 SE2d 446) (2000).

       See Spear v. State, 270 Ga. 628, 631 (5) (513 SE2d 489) (1999).

       See Griffin v. State, 265 Ga. 552, 554-555 (8) (458 SE2d 813) (1995).

        Christensen, supra at 169.

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 6 (2nd ed. 2001); see also Morgan v. State, 275 Ga. 222, 226 (8) (564 SE2d 192) (2002).


author: Blackburn, Chief Judge.

text:
    A02A1849.
    DANIELS v. BURSON et al.
    (571 SE2d 184)
   Blackburn, Chief Judge.

Jacqueline E. Daniels appeals the decision of the trial court setting aside the order and judgment in her favor and granting a new trial to appellees Juan and Taunya Burson (the “Bursons”), arguing that the trial court erred in: (1) setting aside the judgment when actual notice of trial was received; (2) setting aside the judgment when the Bursons failed to exercise due diligence; and (3) granting a new trial when there was no evidence to justify the grant of a new trial. For the reasons set forth below, we reverse and remand the case to the trial court for further action consistent with this opinion.

On June 16, 1999, the Bursons filed suit against Daniels for breach of a real estate lease-purchase agreement. Daniels answered and counterclaimed for unpaid rent and attorney fees under the contract. A nonjury trial was scheduled for August 6, 2001, at 9:30 a.m. Notice of the trial date was sent to both parties by the State Court of DeKalb County and published in the legal organ of DeKalb County.

On the day of trial, Daniels and her attorney were present for calendar call; counsel for the Bursons was also present, but the Bur-sons were not. The Bursons’ attorney told the court that he was waiting for his clients’ arrival and then attempted to reach the Bursons by telephone. Daniels announced ready for trial.

At 12:20, when the court called the case for trial, the Bursons still had not appeared. Counsel for the Bursons moved for a continuance; the trial court denied the motion. Daniels then moved to strike the complaint and dismiss the claim against her for failure to prosecute, but stated that she wanted to go forward with her counterclaim for nonpayment of rent. The trial court initially granted Daniels’ motion, but when counsel for the Bursons argued that he was prepared to go forward with his clients’ case, the trial judge denied Daniels’ motion to dismiss and a bench trial was held. The trial court heard evidence and argument from both Daniels’ attorney and the Bursons’ attorney. On the following day, the trial court entered judgment in favor of Daniels, awarding her unpaid rent in the amount of $16,800, attorney fees of $2,520, and all court costs and interest thereon, and ordered that the Bursons take nothing.

The Bursons retained new counsel, the seventh attorney to represent them in this suit, and filed a motion for new trial, alleging that they lacked notice as to the time of trial and did not have an opportunity to be heard or give evidence. They also filed, within the same term of court in which judgment was rendered for Daniels, a motion to set aside the judgment on the same grounds. Both the motion to set aside the judgment and the motion for new trial were granted.

1. Daniels first argues that the trial court erred in setting aside the judgment because the Bursons received actual notice of the trial date, and there was no meritorious reason to grant the motions. We review the trial court’s decision to set aside a judgment for abuse of discretion. Spyropoulos v. John Linard Estate. Although it is the rule that the judge “retains a plenary control over his judgments and orders during the term at which they are rendered . . . , that rule was never intended to authorize the judge to set aside a judgment duly and regularly entered unless some meritorious reason is given therefor.” (Punctuation omitted.) Holcomb v. Trax, Inc.

In this case, the trial court granted the motion to set aside the judgment because the Bursons contended that they lacked notice as to the time of trial and thus did not have an opportunity to be heard or give evidence. A review of the record indicates that the Bursons had both actual and constructive notice of the date and time of the trial.

First, the Bursons’ counsel received the trial court’s July 2, 2001 notice of trial. Notice of trial to the Bursons’ counsel of record constituted notice to them. McNally v. Stonehenge, Inc.

Second, the trial court’s July 5, 2001 publication of the trial calendar in the county’s legal organ also provided the Bursons with legal notice of the trial date. Glennco, Inc. v. Silver Shoes (“publication of the court calendar in the official county newspaper is sufficient notice to the parties of the trial date”).

Third, in her affidavit in support of the Bursons’ motion for new trial, Taunya Burson stated: “On July 13, 2001, I received a letter from my attorney saying to call him about the case. This letter was accompanied by a copy of a court notice stating the case trial would be on the August 6, 2001 trial calendar.” Given these facts, the Bur-sons had both actual and constructive notice of the time of trial.

Taunya Burson also stated in her affidavit that, “[o]n July 24, 200,1,1 was able to reach [my attorney] and he told me that opposing counsel had a conflict so the case would probably not be tried, and that he wanted to schedule mediation. I asked if that meant we do not go to court, and he replied that he would let me know.” It thus appears that the Bursons’ failure to appear in court was due, not to a lack of notice, which they clearly had, but to a misunderstanding between them and their attorney.

This Court has held that the “[flailure of a defendant to appear and plead, in consequence of misunderstanding between him and his counsel, does not afford a meritorious reason for granting a motion to set aside a judgment, even though made during the term when the judgment was yet in the breast of the court.” Drain Tile Machine v. McCannon. There was no appropriate reason to grant the motion for new trial under the facts of this case.

In McCannon, both the defendant and his counsel failed to appear for trial. In the present case, the Bursons’ attorney did appear and stated his desire to try the case, and the case was, in fact, tried. Under these circumstances, the trial court properly denied the motion to dismiss the action and allowed the Bursons’ counsel to proceed with the case since “[a] dismissal for want of prosecution based upon the non-appearance of the plaintiff is not warranted where plaintiffs counsel is present in his client’s stead.” Long v. Cochran. In her affidavit, Taunya Burson did not indicate any additional evidence or defenses she would have presented, had she attended the trial, which would have changed the outcome of the trial. Instead, she simply asserted, “I have important relevant testimony and evidence to provide in this case.”

In Phillips v. Taber, a case involving a motion to set aside a judgment, filed during the same term of court as the judgment, our Supreme Court held that in order for a defendant to set aside a judgment on the ground of absence for providential cause, the defendant must not only show his inability to be present in court, but must also

show to the court that he had a meritorious defence to the action, and show by his affidavit or the affidavits of others, such facts as would render it improbable or at least doubtful that the plaintiff would be entitled to recover. It is not enough for him to swear that he has a meritorious defence to the action, without going further and showing the facts upon which such defence is based, so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial; because it would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury.

Id. at 572 (4). In short, “[i]n setting forth reasons why the judgment should be set aside, facts and not merely conclusions should be stated so that the court itself may determine the merits thereof.” Blanch v. King. Both Phillips and Blanch impose sensible requirements on a party seeking to set aside a judgment.

This case had been pending over two years at the time of trial. During that period, the Bursons were dilatory in prosecuting the case. They did not respond to Daniels’ discovery requests until Daniels filed a motion for the imposition of sanctions. They did not respond for eight months after they were served with the discovery. The trial court conducted a bench trial, hearing from counsel for both parties, and, after consideration of the evidence and argument, entered a final judgment in favor of Daniels.

We note that even had the Bursons not received notice of trial, lack of notice alone is insufficient to justify the grant of a motion to set aside where the party’s attorney has appeared and the case has been tried. The party moving to set aside must present facts “so that the court can determine for itself whether, if the verdict and judgment were set aside, the result might be different on the next trial.” Phillips, supra. This is so because to do otherwise would be a waste of judicial resources, and this requirement does not meaningfully restrict the trial court’s exercise of discretion. “[I]t would be useless to set aside a verdict and go through another trial to have the same verdict rendered by the jury.” Id. Accordingly, the trial court abused its discretion in granting the motion to set aside the judgment. The decision of the trial court is reversed and the case is remanded with instruction to reinstate the original order and judgment of the court.

Decided September 6, 2002.

Karla Y. Vogel, for appellant.

Jon A. Green, Brian D. Clune, for appellees.

2. Because of our ruling on Division 1, it is unnecessary to address Daniels’ remaining enumerations of error.

Judgment reversed and case remanded.

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

        Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979).

        Holcomb v. Trax, Inc., 138 Ga. App. 105, 107 (225 SE2d 468) (1976).

        McNally v. Stonehenge, Inc., 242 Ga. 258 (248 SE2d 653) (1978).

        Glennco, Inc. v. Silver Shoes, 164 Ga. App. 30, 31 (295 SE2d 357) (1982).

        Drain Tile Machine v. McCannon, 80 Ga. App. 373, 376 (56 SE2d 165) (1949).

        Long v. Cochran, 247 Ga. 483, 484 (277 SE2d 25) (1981).

        Phillips v. Taber, 83 Ga. 565 (10 SE 270) (1889).

        Blanch v. King, 202 Ga. 779, 782 (44 SE2d 779) (1947).


text:
    A02A1916.
    STEWART v. WARNER et al.
    (571 SE2d 189)
   Phipps, Judge.

The question for decision in this case is whether the statute of limitation applicable to the recovery of damages for theft or conversion of personal property is tolled by the perpetrators’ concealment of their identities. We are constrained to answer this question in the negative and to reverse the judgment against those found by the jury to have committed the theft.

In January 1993, the home of Ronald and Mildred Warner was burglarized. A safe containing their life savings in the approximate amount of $23,000 was stolen. They were going to use the money to pay for an eye operation for their minor child. Law enforcement authorities conducted a prolonged investigation of the theft, as did the Warners. But no leads were developed until September 1998 when Michelle Delk informed a Georgia Bureau of Investigation agent that in 1997 Bryan Stewart had admitted to her that he, Perry Thompson, and Jamie Thornton had perpetrated the burglary. From the beginning, the Warners had suspected that Stewart was involved, and the police had questioned him during their investigation.

In December 1999, the Warners filed this action against Stewart, Thompson, and Thornton to recover for the theft. In their answer, the defendants asserted that the action is barred by a four-year statute of limitation. The trial court submitted the case to a jury. Delk testified that she had not told anyone what Stewart said because the defendants had threatened to burn her house down. The jury found that the defendants’ fraud tolled the statute of limitation and awarded $22,000 against Stewart and Thornton. The trial court entered judgment on the verdict and denied Stewart’s motion for judgment notwithstanding the verdict. Stewart appeals.

The applicable statute of limitation is OCGA § 9-3-32. It requires actions for the recovery of personal property, or for damages for the property’s conversion or destruction, to be brought within four years after the right of action accrues. This statute of limitation begins to run when the damage from the tortious act is actually sustained by plaintiffs. In this case, that would be on the date of the conversion or theft — January 1993.

The Warners claim that the defendants’ concealment of their identities as the burglars constitutes fraud tolling the statute of limitation under OCGA § 9-3-96. It provides: “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”

The Supreme Court of Georgia and this court have held that to establish tolling under OCGA § 9-3-96, plaintiffs must prove that defendants engaged in a species of fraud that concealed “the existence of a cause of action.” The defendants’ concealment of their identities as the parties liable, by making threats against those to whom they had admitted, their guilt or by denying their involvement to others, does not constitute concealment of the existence of the cause of action to avoid the running of the statute of limitation. Moreover,

“Where a right of action exists because of wrongful conduct which does not involve actual fraud, in order to prevent the statute of limitations from running by reason of the fraud of the party committing it, consisting in the concealment of such conduct, there must be something more than a mere failure, with fraudulent intent, to disclose such conduct, unless there is on the party committing such wrong a duty to make a disclosure thereof by reason of facts and circumstances, or the existence between the parties of a confidential relation.”

Decided September 6, 2002.

McGee & McGee, James B. McGee III, for appellant.

John D. Staggs, Jr., for appellees.

Judgment reversed.

Andrews, P. J., and Mikell, J., concur.

       See Park Place Café v. Metro. Life Ins. Co., 254 Ga. App. 733, 738 (2) (563 SE2d 463) (2002) (money may be subject of conversion claim as long as allegedly converted money constituted specific identifiable funds).

        Walden v. Jones, 252 Ga. App. 692, 694 (1) (556 SE2d 566) (2001).

       See Logan v. Tucker, 224 Ga. App. 404, 406 (2) (480 SE2d 860) (1997).

        Jim Walter Corp. v. Ward, 245 Ga. 355, 357 (265 SE2d 7) (1980); Mobley v. Faircloth, 174 Ga. 808, 811 (164 SE 195) (1932); Gropper v. STO Corp., 250 Ga. App. 820, 824 (3) (552 SE2d 504) (2001); McClung Surveying v. Worl, 247 Ga. App. 322, 324 (1) (541 SE2d 703) (2000); Charter Peachford Behavioral Health System v. Kohout, 233 Ga. App. 452, 458 (504 SE2d 514) (1998); Johannes v. Mitchell, 220 Ga. App. 102, 105 (3) (469 SE2d 255) (1996); Hahne v. Wylly, 199 Ga. App. 811, 812 (1) (406 SE2d 94) (1991).

       See 51 AmJur2d 572, Limitation of Actions, § 186 (2000).

       (Citation omitted.) Shipman v. Horizon Corp., 245 Ga. 808, 809 (267 SE2d 244) (1980).


author: Smith, Presiding Judge. Eldridge, Judge,

text:
    A02A0439.
    SAWYER v. CITY OF ATLANTA.
    (571 SE2d 146)
   Smith, Presiding Judge.

On February 20, 2001, following a trial in the City Court of Atlanta, Stanley J. Sawyer was found guilty of the offenses of operating a vehicle without a valid tag, a violation of OCGA § 40-2-8; no proof of insurance, a violation of OCGA § 40-6-10; and alteration of a Georgia license plate, a violation of OCGA § 40-2-6. On March 21, 2001, acting pro se, Sawyer filed a notice of appeal from the city court’s judgment which stated that the Superior Court of Fulton County had jurisdiction over the appeal. On September 28, 2001, the superior court found it was without jurisdiction to hear Sawyer’s appeal and dismissed it. Sawyer appeals from this order of dismissal. We find no error and affirm the dismissal.

1. An act of the 1996 General Assembly enacted pursuant to Article VI, Section I of the Constitution of the State of Georgia, as amended and entitled “COURTS — MUNICIPALITIES OF 300,000 POPULATION OR MORE; CITY COURTS HAVING JURISDICTION OVER TRAFFIC LAWS AND ORDINANCES RE-CREATED,” Ga. L. 1996, p. 627, established city courts for certain cities, including Atlanta, which have jurisdiction over:

(1) All crimes and offenses under the laws of the state relating to and regulating traffic, and all other crimes and offenses arising out of the same occurrence as such traffic offense, not above the grade of misdemeanor and not exclusively cognizable in the superior courts; ... (2) All offenses against the duly enacted laws and ordinances of such city relating to and regulating traffic, and all other offenses against laws and ordinances of such city arising out of the same occurrence as such traffic offense.

Ga. L. 1996, pp. 628-629, § 3. Appellate review is provided in Section 25 of the Act as follows: “(1) By the appropriate appellate court of this state in misdemeanor cases; and (2) By writ of certiorari in the appropriate superior court in all other cases.” Ga. L. 1996, pp. 636-637, § 25; see also OCGA § 5-6-34 (a).

The Georgia Code designates the offenses of operating a vehicle without a valid tag, no proof of insurance, and alteration of a Georgia license plate as misdemeanors. OCGA §§ 40-2-2; 40-2-8; 40-2-6; 40-6-10 (b). Therefore, appellate review in this case would be by notice of appeal to this court.

Sawyer contends the trial court erred in dismissing his action on the ground of lack of jurisdiction and in refusing to transfer the appeal to this court. He contends that the superior court was a proper forum and that even if it was not, the superior court rules provide that the appeal may be transferred when “the court in which the case is pending lacks jurisdiction or venue or both.” We do not agree.

OCGA § 5-3-27, part of the article dealing with appeals to superior court, provides that no appeal “shall be dismissed because of any defect in the notice of appeal. . . but the superior court shall at any time permit . . . amendments”; OCGA § 5-6-37, part of the article dealing with appeals to the appellate courts, provides that appeals to the Supreme Court or the Court of Appeals “shall not be dismissed nor denied consideration because of failure to include the jurisdictional statement or because of a designation of the wrong appellate court.” The Supreme Court of Georgia has held that, even assuming that OCGA § 5-3-27, “which is contained in an article dealing with the right to appeal in civil cases, applies” in a criminal case, when the defect consists of filing an appeal of a criminal case in a court that has no jurisdiction to entertain the appeal, the trial court is correct in dismissing it. Zornes v. State, 262 Ga. 757, 759 (2) (426 SE2d 355) (1993).

In Zornes, the defendant was convicted in the Recorder’s Court of Gwinnett County of DUI. He filed a direct appeal to the Superior Court of Gwinnett County; the correct procedure would have been to file a petition for writ of certiorari. The superior court dismissed Zomes’s appeal for lack of jurisdiction. The Supreme Court affirmed the dismissal, holding that Zornes had filed an appeal in a court having no jurisdiction to entertain it.

This holding has been followed in two recent cases in this court. In Smith v. Gwinnett County, 247 Ga. App. 888 (545 SE2d 147) (2001), the appellants appealed their convictions in Gwinnett County Recorder’s Court for violating a local ordinance by filing a petition for certiorari in the State Court of Gwinnett County. The county moved to dismiss the petition for lack of jurisdiction, and the state court granted the motion. We affirmed, citing Zornes, and reiterating that when an appeal is filed in a court that has no jurisdiction to entertain it, dismissal is proper. Id.

In Smith v. Gwinnett County, 246 Ga. App. 865 (542 SE2d 616) (2000), a different Smith also was convicted in the Gwinnett County Recorder’s Court of violating two county ordinances. He filed a petition for writ of certiorari in the state court, which affirmed his convictions. He then appealed to this court, arguing that the state court had lacked jurisdiction to entertain his appeal. We agreed, holding that the state court should have dismissed the appellant’s petition filed in that court, because the proper appeal procedure was by petition for writ of certiorari in superior court, not state court, and the state court therefore had no jurisdiction to entertain his appeal.

The situation was different in Adams v. State, 234 Ga. App. 696 (507 SE2d 538) (1998). In that case, the defendant was convicted in Cobb County State Court of theft by taking. He filed a pro se notice of appeal, incorrectly stating he was appealing to superior court rather than to this court. After amending the notice of appeal several times, each time designating a different court as the appellate court, he finally filed an amended notice of appeal correctly designating this court. The State argued on appeal that Adams’s appeal should be dismissed because the amended notice of appeal that correctly designated this court was not timely filed. We held that Adams’s initial notice of appeal was timely filed, and he had the right to . amend the notice of appeal under OCGA § 5-6-48 (d). His failure to initially name the proper appellate court did not warrant dismissal because he had exercised his right to amend the notice of appeal. Id.

The appeal now before us is similar to that in Adams because the notice of appeal was filed in the right court but the wrong court was designated. The crucial difference, however, is that Sawyer did not amend his notice of appeal. The procedural posture of this case is therefore different from that of Adams. There, we held that we could consider the substance of Adams’s appeal — whether he was properly convicted — because his amended notice of appeal designating the correct court related back to his timely filed original notice of appeal. In this case, in contrast, Sawyer is not appealing his conviction but the superior court’s dismissal of his unamended notice of appeal.

We hold that the superior court correctly dismissed the appeal. OCGA § 5-6-37, which provides inter alia that no appeal shall be dismissed for designating the wrong appellate court, appears in Chapter 6 of Title 5, entitled “Certiorari and Appeals to Appellate Courts Generally.” That chapter deals only with the procedure applicable to appeals to this court and the Supreme Court. Further, only the Supreme Court and the Court of Appeals are mentioned in OCGA § 5-6-37. A separate chapter, Chapter 3, deals with appeals to the superior courts. It is clear, therefore, that OCGA § 5-6-37 applies in cases such as Evans v. State, 235 Ga. App. 877 (510 SE2d 619) (1999), when an appeal is filed incorrectly in the Supreme Court of Georgia, rather than in this court. We held in Evans that under OCGA § 5-6-37, such an error “provides no basis for dismissing defendant’s appeal.” Id. In contrast, OCGA § 5-6-37 does not apply when the appeal is filed in the superior court but belongs in the Court of Appeals or the Supreme Court.

Similarly, the rules of court cited by Sawyer do not permit the “transfer” of an appeal from a superior or state court to an appellate court. Neither USCR 19.1, permitting transfer to another court in a civil case when venue is improper, nor USCR 19.2, permitting a superior court to continue to preside after granting a change of venue in a criminal case, has any application here. Supreme Court Rules 32 and 35 expressly apply only to the transfer of interlocutory and discretionary appeals between the Supreme Court and the Court of Appeals; this court’s Rule 11 (b) and (c) expressly apply only to the transfer of “an appeal or application” between this court and the Supreme Court. Under standard principles of construction, the express mention of particular transfers in the rules implies that other “transfers,” such as that contemplated by the dissent, are not authorized.

OCGA § 5-6-34 (a) provides clearly that appeal may be taken to “the Supreme Court and the Court of Appeals from . . . judgments and rulings of. . . the constitutional city courts.” Sawyer did not designate either the Supreme Court or the Court of Appeals in his notice of appeal. Although Sawyer could have corrected this error by exercising his right to amend the notice of appeal, he did not do so. Allowing appeals from city courts erroneously taken to the superior courts to be “transferred” to this court when such transfers are not authorized by statute circumvents the statutory scheme intended by the General Assembly and can only engender confusion, and we decline to do so.

2. Because the trial court correctly dismissed the appeal, we need not consider Sawyer’s remaining enumerations of error.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Ruffin, Barnes and Ellington, JJ., concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I must respectfully dissent because, in my view, a timely filed notice of appeal should be transferred to the appropriate appellate court and not dismissed when the sole defect is the designation of the incorrect appellate court with jurisdiction over the appeal. The cases cited by the majority are not dispositive of the issue before us. In both Smith v. Gwinnett County, 246 Ga. App. 865 (542 SE2d 616) (2000), and Smith v. Gwinnett County, 247 Ga. App. 888 (545 SE2d 147) (2001), the issue of transfer was not raised by the appellant on appeal.

As an intermediate appellate court, we are a court for the correction of errors which are properly preserved below and which are raised in this [C]ourt. It is not the function of this [C]ourt to raise and decide issues not complained of by the parties. It follows that our review of [a] case is limited to those issues properly raised by [appellant] on appeal to this [C]ourt.

(Citations omitted.) Cole v. State, 211 Ga. App. 236, 237-238 (438 SE2d 694) (1993). While the issue of transfer was raised by the appellant in Zornes v. State, 262 Ga. 757 (426 SE2d 355) (1993), the proper vehicle for appeal in that case was a writ of certiorari, and appellant had filed a notice of appeal. Since appellant had failed to comply with the statutory scheme to perfect a writ of certiorari, there was no viable appeal to transfer.

It seems clear to me from an examination of the cases, statutes, and uniform rules, that the intention of the General Assembly and the Supreme Court is to avoid dismissal of a timely filed appeal because of a defect in the notice of appeal, such as the designation of the wrong appellate court, and to bring about a decision on the merits of the case. See OCGA §§ 5-3-27; 5-6-30; 5-6-37; Evans v. State, 235 Ga. App. 877 (510 SE2d 619) (1999); Adams v. State, 234 Ga. App. 696 (507 SE2d 538) (1998); Court of Appeals Rule 11 (b) and (c); and Supreme Court Rules 32 and 35. See also Uniform Transfer Rules, 251 Ga. 893, and Uniform Superior Court Rule 19. While these statutes, cases, and rules do not specifically address the transfer of appeals from the superior court to this Court, both this Court and the Supreme Court of Georgia have transferred appeals of civil actions erroneously docketed in each of the respective courts to the superior court which had proper subject matter jurisdiction over the appeal, citing Art. VI, Sec. I, Par. VIII of the Georgia Constitution as authority therefor. See Bosma v. Gunter, 258 Ga. 664 (373 SE2d 368) (1988); MacLellan v. Munford, 189 Ga. App. 789 (377 SE2d 702) (1989). See also Walker v. Yarus, 258 Ga. 346 (369 SE2d 32) (1988). Such constitutional provision directs the transfer of civil cases when jurisdiction or venue lies in a different court. At the trial level, the necessity of treating the transfer of criminal and civil cases differently may be mandated; however, to require a defendant in an appeal of a criminal action, where his liberty interests are at stake, to adhere to a higher appellate procedural standard than is required for civil appellants would violate both federal and state constitutional mandates of due process and equal protection.

Decided July 30, 2002

Reconsideration denied September 9, 2002

Stanley J. Sawyer, pro se.

In this case, appellant was proceeding pro se, and the process of appeal from a traffic conviction varies depending on the type of court in which the traffic offense was tried. While the majority asserts that a litigant needs no interpretation to see that OCGA § 5-6-34 (a) provides clearly that an appeal may be taken to the “Supreme Court and the Court of Appeals from . . . judgments and rulings of. . . the constitutional city courts,” the procedure for the appeal of a traffic offense conviction is not that clear. Article 2 of Chapter 13 of Title 40 deals with the prosecution of traffic offenses. Within such article, a municipal court is defined and “construed to include municipal courts of the incorporated municipalities of this state.” OCGA § 40-13-20. OCGA § 40-13-21 (a) gives municipal courts of incorporated towns and cities, as well as probate courts, the right to conduct the trial of a traffic offense that does not exceed misdemeanor status. OCGA § 40-13-28 provides that a “defendant convicted under this article shall have the right of appeal to the superior court.” Nowhere within Article 2 of Chapter 13 of Title 40 does it distinguish that for municipalities with a population of 300,000 or more, our General Assembly has created constitutional city courts with jurisdiction over traffic offenses that do not exceed misdemeanor status and that such courts have a different method for appellate review. In fact, other than the reference to constitutional city courts under OCGA § 5-6-34 dealing with the type of judgments and rulings deemed directly appealable to the Supreme Court and this Court, there is no reference within the Official Code of Georgia to the appropriate procedure for appellate review of a ruling of a constitutional city court.

The method of appellate review from a constitutional city court is set out only within the Act which established such courts. Such Act’s location within the bound volumes of Georgia Laws can only be found by looking in the Index to Local and Special Laws and General Laws of Local Application, Volume 42 of the Official Code of Georgia. The Act is indexed under the headings General Laws of Local Application, Census of 1990, 300,000 OR MORE, City Court (traffic court). See OCGA Volume 42, p. 166 (2001 cumulative supplement). With such confusion, when the sole procedural error is the designation of the wrong appellate court on an otherwise properly filed notice of appeal, the instant appeal, filed pro se, should be transferred and considered on the merits, not dismissed.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

       As best we can determine, the rule Sawyer refers to is Uniform Superior Court Rule 19.1 (A), which by its terms applies only to civil cases.


author: Miller, Judge.

text:
    A02A2077.
    COMMUNICATIONS MARKETING & DISTRIBUTION SERVICES, INC. v. MCI WORLDCOM TELECOMMUNICATIONS CORPORATION.
    (571 SE2d 399)
    Decided September 9, 2002.

      Greene, Buckley, Jones & McQueen, John D. Jones, William D. Matthews, Lawrence E. Newlin, Frank R. Olson, for appellant.

      Bodker, Ramsey & Andrews, Stephen C. Andrews, for appellee.
   Miller, Judge.

On July 21, 2002, defendant/appellee MCI WorldCom Telecommunications Corporation filed a Chapter 11 bankruptcy petition in the United States Bankruptcy Court for the Southern District of New York. A notice of the bankruptcy stay was filed in this Court on August 7, 2002. By virtue of Bankruptcy Code Section 362, any and all further proceedings in this matter are stayed.

Under these circumstances, this appeal is dismissed without prejudice, pending the resolution of MCI’s bankruptcy proceeding or lifting of the stay. Upon lifting of the bankruptcy stay, Communications Marketing & Distribution Services, Inc. may reinstigate this appeal by filing another notice of appeal within 30 days after the bankruptcy stay has been lifted. See Hoffman v. AC&S, Inc., 248 Ga. App. 608 (1) (548 SE2d 379) (2001); DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598, 599 (1) (417 SE2d 386) (1992).

Appeal dismissed.

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


author: Johnson, Presiding Judge.

text:
    A02A0911.
    McCOLLUM v. THE STATE.
    (571 SE2d 405)
   Johnson, Presiding Judge.

A jury found Christopher McCollum guilty of possession of cocaine and obstructing and hindering a law enforcement officer. He appeals from the judgments of conviction entered on the verdict, claiming the trial court erred in denying his motion for a new trial based on ineffective assistance of counsel, refusing to allow a proffer of evidence relating to his motion to suppress at the hearing on his motion for a new trial, and denying his motion for a new trial based on the sufficiency of the evidence. He also asks this Court to review the trial court’s decision not to allow him to review the arresting officer’s personnel file, though he makes no argument in this regard. For the reasons that follow, we affirm McCollum’s convictions.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence reveals that a sheriff’s deputy received information that McCollum was in possession of cocaine. The officer set out looking for McCollum, and, at approximately 5:00 p.m., he spotted McCollum standing between two trailers. The officer parked his car about 150 feet away and watched as McCollum conducted what appeared to be a hand-to-hand drug transaction with the driver of a pickup truck. The officer drove his patrol car to within about 15 feet of McCollum and parked. He casually approached McCollum and asked him what he was doing. McCollum replied “nothing.” The officer asked McCollum if he had any narcotics in his possession. McCollum said he did not and then put his hands up and asked if he was under arrest. The officer, who was now standing about two feet away, told McCollum that “he was not under arrest unless he had narcotics on his person and then he would be placed under arrest.” McCollum placed his finger in the front pocket of his pants and began scooping something out. The officer told McCollum not to reach into his pocket. As McCollum pulled his finger out of the pocket, a small plastic bag containing what the officer believed was cocaine became visible between McCollum’s finger and the pocket. The officer grabbed McCollum’s finger and the bag at the same time. McCollum struck the officer’s arm, causing the bag to fall from the officer’s hand onto the ground. McCollum spun away and ran down the street, leaving the bag containing cocaine behind. An arrest warrant was sworn out, and McCollum eventually turned himself in to police.

1. McCollum challenges the sufficiency of evidence to support the possession of cocaine conviction. He says that the only evidence that the cocaine came from his pocket was the officer’s testimony, that the officer’s testimony was “somewhat” impeached by his failure to include in his written report the presence of other witnesses, and that McCollum’s witnesses testified that they saw nothing fall to the ground and saw no cocaine or plastic bag. McCollum did not testify at trial.

Assuming there are conflicts in the evidence, such conflicts are a matter of credibility for the jury to resolve. If 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. Here, there was competent evidence from which a rational trier of fact could have found McCollum guilty beyond a reasonable doubt of possessing cocaine.

2. McCollum contends the trial court erred in denying his motion for a new trial because he was denied effective assistance of counsel. Specifically, he complains that trial counsel withdrew his motion to suppress without his consent, withdrew the motion to suppress in his absence and without him having waived his right to be present, and failed to object to a juror sleeping during the trial. None of the arguments presents grounds for reversal.

To prevail on a claim of ineffective assistance of counsel, a defendant must show two things: that counsel’s performance was deficient and that the deficiency prejudiced the defense. The trial judge, who oversaw the trial and heard the evidence presented at the hearing on the motion for new trial, makes the findings on whether the performance was deficient and whether it prejudiced the defendant, findings that this Court does not disturb unless clearly erroneous. In evaluating an attorney’s performance, there is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.

(a) McCollum claims he should have been granted a new trial because his trial counsel withdrew his motion to suppress, even though the motion was meritorious. McCollum argues that his attorney withdrew the motion because McCollum was not present in court when it was to be heard; his absence, he points out, was due to his not being given any notice of the hearing. McCollum contends the motion to suppress had merit in that the officer did not establish the informant’s reliability and had no grounds to request that he empty his pockets.

Even if we assume, without deciding, that trial counsel’s performance was deficient in that she failed to notify McCollum of the suppression hearing and then withdrew the motion because he was not present, there has been no showing of prejudice. This is because the motion to suppress lacked merit.

Even when a police officer has no basis for suspecting a particular individual, he may generally ask questions of that individual and request consent to search — as long as the officer does not convey a message that compliance with his requests is required. Here, the officer testified that he casually approached McCollum and asked him questions, which the law permits.

Furthermore, before the officer approached McCollum, he saw activity which aroused his suspicion of drug activity. A police officer is authorized to make a brief, investigatory detention of an individual where the intrusion can be justified by specific, articulable facts giving rise to a reasonable suspicion of criminal conduct. What is demanded of the police officer is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing. The suspicion was sufficient for a Terry-type inquiry. And, the contraband which was recovered at the scene was in plain view due to McCollum’s own actions. Although McCollum states in his brief that he was asked to empty his pockets, the testimony at trial does not support that statement. Instead, the officer testified that he told McCollum not to reach into his pocket.

The evidence shows that McCollum voluntarily reached into his pocket, thereby exposing the bag of cocaine. The officer was lawfully in position to obtain the view, the discovery was inadvértent, and the object viewed was immediately seen to be incriminating. Contraband lawfully found in plain view need not be ignored and can be seized.

There was nothing illegal about this search or seizure. The trial court did not err in denying McCollum’s new trial motion based on counsel’s failure to pursue a motion which had no merit.

(b) Nor did the trial court err in denying McCollum’s motion for a new trial on the grounds of ineffective assistance because counsel withdrew the suppression motion in his absence. According to McCol-lum, counsel’s withdrawal of the motion in his absence violated his right to be present during a critical phase of his trial — the hearing on his motion to suppress.

McCollum correctly states that, without waiver or acquiescence by the defendant, it is prejudicial error to conduct an evidentiary suppression hearing in the defendant’s absence. However, no evidentiary suppression hearing was held in this case, so that rule is inapplicable. Indeed, none of the authority cited by McCollum involves the withdrawal of a motion to suppress in the accused’s absence. We point out that counsel is not ineffective for failing to file a motion to suppress which would not have been granted, or for withdrawing a motion to suppress for strategic reasons. In light of the strong presumption that counsel’s conduct was reasonable, and the fact that there was no evidentiary hearing on the motion to suppress, we find no error in the trial court’s holding that trial counsel’s withdrawal of the suppression motion during McCollum’s absence from the courtroom did not amount to ineffective assistance of counsel.

(c) Trial counsel was not ineffective for failing to notify the trial court that a juror was sleeping. At the hearing on the motion for a new trial, trial counsel testified that she noticed a juror sleeping during the prosecutor’s and defense attorney’s closing arguments. She did not notice the juror sleeping during the presentation of evidence. Defense counsel testified that she intentionally did not bring the matter to the attention of the trial court because she believed that she “had lost that juror and that he was not going to be the one who was sympathetic to Mr. McCollum.”

We have previously held that trial counsel is not ineffective for failing to voice an objection to the court that a juror was asleep.

The test regarding effective assistance of counsel has been iterated many times by this Court to be “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance.” Applying this principle to the present case, we cannot say that McCollum was denied his constitutional right to effective assistance of counsel on this or any of the other proposed grounds. The trial court’s finding on this issue is not clearly erroneous and must be affirmed.

3. McCollum complains that, at the hearing on the motion for a new trial, the trial court erroneously refused to allow him to proffer the evidence necessary to show that his motion to suppress had merit. At the hearing, defense counsel asked the court to reserve ruling on the new trial motion until she had an opportunity to contact and call as a witness the arresting officer. The trial court asked counsel what she expected the arresting officer to say that would support McCollum’s motion to suppress. Counsel replied that the officer’s tip that McCollum possessed cocaine came from McCollum’s ex-girlfriend, who had numerous felony convictions. According to McCol-lum, the tip was the basis for the officer’s approach and search of McCollum. The trial court did not err in refusing to continue the hearing so that McCollum could examine the officer.

Decided September 10, 2002.

Moulton & Massey, Jeremy A. Moulton, for appellant.

Richard R. Read, District Attorney, Kirk M. Thomas, Assistant District Attorney, for appellee.

First, the officer testified at trial and McCollum was able to cross-examine him. McCollum could have explored at trial what he believed were pertinent issues surrounding the officer’s approach and attempted arrest of McCollum.

Second, the testimony McCollum says the officer would have given at the new trial hearing would not have resulted in a grant of the suppression motion. Testimony as to the reliability of the tip or informant is irrelevant in this case because, as discussed above, the officer was authorized by law to approach McCollum and ask him questions even without the tip. And the officer testified that McCollum reached into his own pocket without being told to do so. Under the circumstances, McCollum has not demonstrated that he was harmed by not being allowed to further question the officer.

4. In his final enumeration of error, McCollum requests that this Court review the arresting officer’s personnel file for the purpose of reviewing the trial court’s decision not to allow defense counsel to review the file. However, he does not address this enumeration in his brief, entirely omitting both argument and any citation of authority in support thereof. Accordingly, this enumeration of error is deemed abandoned under Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

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

        Davis v. State, 253 Ga. App. 803, 804 (1) (560 SE2d 711) (2002).

       Id.

        Willingham v. State, 242 Ga. App. 472, 473 (530 SE2d 224) (2000).

       Id.

       See Jester v. State, 229 Ga. App. 490, 493 (3) (494 SE2d 284) (1997).

        Fults v. State, 274 Ga. 82, 83-84 (2) (548 SE2d 315) (2001).

        Kilpatrick v. State, 252 Ga. App. 900, 902 (1) (557 SE2d 460) (2001).

        Rucker v. State, 271 Ga. 426, 427 (520 SE2d 693) (1999).

        Hooper v. State, 251 Ga. App. 533, 535 (1) (554 SE2d 750) (2001).

        Jones v. State, 216 Ga. App. 449, 450 (454 SE2d 631) (1995).

       Id.

        Edwards v. State, 194 Ga. App. 571, 572 (1) (391 SE2d 137) (1990).

       See Samuel v. State, 198 Ga. App. 558, 560 (2) (402 SE2d 325) (1991).

       Id.

       See generally McKinney v. State, 251 Ga. App. 896, 898 (2) (a) (555 SE2d 468) (2001).

        Hill v. State, 222 Ga. App. 839 (1) (476 SE2d 634) (1996).

        Arnold v. State, 253 Ga. App. 307, 308 (1) (560 SE2d 33) (2002).

        Coburn v. State, 252 Ga. App. 315, 319-320 (4) (b) (555 SE2d 750) (2001).

        Trenor v. State, 252 Ga. 264, 266-267 (7) (313 SE2d 482) (1984).

       (Punctuation omitted.) Id.

       Id.

       See generally Adams v. State, 274 Ga. 854, 856 (5) (561 SE2d 101) (2002).

       See Spivey v. State, 200 Ga. App. 284, 286 (407 SE2d 425) (1991).

       See Ochoa v. State, 252 Ga. App. 209, 211 (5) (555 SE2d 857) (2001).


author: JOHNSON, Presidiñg Judge.

text:
    A02A1004.
    PATTERSON et al. v. POWELL et al.
    (571 SE2d 400)
   JOHNSON, Presidiñg Judge.

Warren and Kay Powell brought an action for declaratory and injunctive relief against their neighbors, William and Jane Patterson, after the Pattersons attempted to restrict the Powells’ use of a lake located in the parties’ subdivision. The Pattersons appeal from the trial court’s judgment in favor of the Powells.

The following facts are undisputed. In 1974, the Powells purchased from developer C. T. Wessinger a tract of land situated in a subdivision known as Lake Frank Estates. The Powells’ property adjoins Lake Frank. The Powells were the first purchasers in the subdivision, and Wessinger relocated their driveway so that they could take advantage of the lake. A plat of the subdivision depicted the Powells’ property as adjoining Lake Frank, though Wessinger maintained title to the lake itself. A 1971 protective covenant provided, among other things, that Lake Frank homeowners could use the lake; the covenant expired on its own terms in 1996.

In 1989, Wessinger sold a lot in the subdivision to the Patter-sons. The Pattersons’ tract included the lake and a parcel of land adjoining the lake. As the lake’s new owners, the Pattersons informed the Powells that the Powells could no longer use the lake. The Powells sued to establish their right to use the lake, and to enjoin the Pattersons from interfering with that right. The trial court found that the Pattersons owned the lake, and that the Powells were entitled to use the lake because they acquired a permanent easement as an appurtenance to the purchase of their property. The court further held that the Powells’ right to use and enjoy the lake was an express grant and an irrevocable property right, and that the Patter-sons could not interfere with the Powells’ use of the lake.

On appeal, the Pattersons contend the trial court erred in determining that the Powells’ right to use the lake was by virtue of an express grant and that the Powells have an irrevocable right to use the lake. According to the Pattersons, the Powells’ rights are limited to those set forth in the protective covenants, and any rights the Pow-ells had regarding the lake expired with the covenant in 1996. Because the Powells’ easement rights were not established by the covenant, but by the subdivision plat, we disagree with the Patter-sons and affirm the judgment of the trial court.

In Walker v. Duncan the Supreme Court held that a developer could not interfere with the lot owners’ use of a lake area designated on a subdivision plat, because the lot owners had acquired an irrevocable easement in that area. As the Court stated:

It is well-established that where a developer sells lots according to a recorded plat, the grantees acquire an easement in any areas set apart for their use. An easement acquired in this manner is considered an express grant, and is an irrevocable property right. The rationale is that the grantees of the property have given consideration for its enhanced value in the increased price of their lots.

In Higgins v. Odom, a case similar to the instant case, several buyers bought lots in a subdivision. The subdivision plat of the land showed various lots to be sold, the subdivision’s streets, and a lake. The owner of the lake eventually sold the lake along with an adjoining lot, and the new buyer made plans to erect a fence to enjoin others from interfering with her use of the lake. The Supreme Court held that' the adjoining property owners had acquired an irrevocable easement in the lake, and the lake’s new owner could not interfere with that easement. As the Court pointed out, the availability of the lake constitutes a material part of the value of the adjoining property and is often the principal incentive for its purchase. The lake is in the same category as a recreational area or park shown on a subdivision plat, and the sale of lots by reference to the plat should be regarded as a dedication of the lake as a recreation area for the benefit of all adjoining owners.

In Doughtie v. Dennisson, a developer sold lots in a subdivision according to a recorded plat and then attempted to build a structure on his lot which would interfere with the other homeowners’ use of the lake. The Supreme Court held that a developer or his successor may not, in order to induce people to buy, set aside large areas of his property for recreational use and grant buyers access to his property and then later take that access away. The Supreme Court expressly stated that it based its ruling on the irrevocable easement created by the subdivision plat, rather than on a restrictive covenant (which also purportedly granted the right of access to the lake). In the instant case, too, it is the subdivision plat that creates the irrevocable easement.

Relying on the case of Lanier v. Ocean Pond Fishing Club, the Pattersons argue that the owner of a bed of a nonnavigable lake has. the exclusive right to use the waters thereon and may exclude others from the use of the surface waters. That case, though, does not require a ruling in the Pattersons’ favor. Nothing in the Lanier opinion indicates that a developer recorded a subdivision plat showing the lake and sold lots pursuant to it. In the instant case, the body of water is designated on the recorded subdivision plat as Lake Frank, and lots were sold according to the plat as a part of the “Lake Frank Estates.”

As discussed above, the Powells’ right to use the lake stems not from any covenant, but from an express and implied easement that runs with the land. Although the covenant is not what establishes the Powells’ right to use the lake, we note that the covenant makes clear the developer’s intent to dedicate the lake’s use to all adjoining landowners. He states in the covenant that he established in the subdivision a lake, “and has developed the land surface area into subdivided lots designed and dedicated to the purpose of providing scenic and pleasing living environment” for its purchasers. The developer adds that “[a]s an appurtenant running with the title to the land area, each owner is granted the privilege of using Lake Frank for lawful, recreational, and pleasurable activities. . . .”

It is undisputed that the subdivision was created around the lake, that Lake Frank was designated on the subdivision plat, and that the landowners in the subdivision were expressly granted rights of access to and use of the lake. Members of the subdivision acquired both express and implied easements in the lake. The easement was not created by the covenant, so it could not be nullified by the expiration of the covenant.

The Pattersons argue that Lake Frank was never designated a “common area.” However, that fact is not determinative, since owners of subdivision lots can acquire easements in areas not necessarily designated as “common areas.” The lake in the instant case was designated on a subdivision plat and the lots were sold according to that plat; that is sufficient.

Finally, the case of Sawyer v. Bush does not require a contrary result. In Sawyer, the homeowners in a subdivision sued the lake’s owner for damages and injunctive relief, alleging that the lake had not been properly maintained and that it was filled with noxious material and was a breeding ground for pests. Relying on Waiter, the Supreme Court noted that the subdivision property owners were expressly granted rights of access to and use of the lake. The Court stated that the landowners acquired both express and implied easements in the lake.

Despite these holdings which support the Powells’ arguments, the Pattersons contend this case supports their position. They point to the Supreme Court’s statement that under the terms of the subdivision’s restrictions and covenants, certain restrictions are renewed automatically unless owners agree in writing that they will not be renewed, and that this extension applies to certain building requirements, but does not apply to covenants granting “recreational rights in the lake.”

It is not clear from our reading of the opinion how this statement relates to the decision in Sawyer. We do not know what is meant by “recreational rights in the lake” (for example, if the term includes an easement to access and use or something more specific). The Supreme Court appears to have affirmed the trial court’s ruling on the issues set out in Division 1 of its opinion: that the lake was part of the development scheme of the subdivision, that the other owners have an implied easement in the lake, and that the lake’s owner had a duty to maintain the lake. The Court does not hold that the trial court erred in finding that the property owners had an easement in the lake. In fact, the Court expressly reverses the judgment of the trial court as it concerns issues of fact regarding lake conditions. In light of the overwhelming authority to the contrary, we are not convinced that Sawyer requires a result other than the one we reach here.

The trial court did not err in granting judgment in favor of the Powells.

Judgment affirmed.

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

Decided September 10, 2002

Denting, Parker, Hoffman, Green & Campbell, William R. Pike, Gary C. Harris, for appellants.

Wiggins & Camp, William J. Wiggins, for appellees.

       This Court, rather than the Supreme Court, has jurisdiction of this appeal because it concerns issues involving use of and access to land rather than title to land. Const. of Ga., Art. VI, Sec. VI, Par. III (1); see Henderson v. Easters, 178 Ga. App. 867, 869 (1) (345 SE2d 42) (1986).

       236 Ga. 331, 332 (223 SE2d 675) (1976).

       (Citations omitted.) Id.; see Smith v. Bruce, 241 Ga. 133, 144 (2) (244 SE2d 559) (1978).

       246 Ga. 309, 310 (271 SE2d 211) (1980).

       Id.

       Id.

       240 Ga. 299 (240 SE2d 89) (1977).

       Id. at 300.

       Id.

       253 Ga. 549 (322 SE2d 494) (1984).

       See Smith v. Clay, 239 Ga. 220, 221 (236 SE2d 346) (1977) (developer, as a matter of law, created easements for owners to use a road where he recorded a subdivision plat showing such road and sold lots pursuant to the plat).

       See generally Walker, supra.

       See Stanfield v. Brewton, 228 Ga. 92, 94-95 (1) (a) (184 SE2d 352) (1971).

       See, e.g., Higgins, supra; Smith v. Clay, supra.

       See Doughtie, supra.

       244 Ga. 785 (262 SE2d 102) (1979).

       Supra.

       Supra.

       Id.


text:
    A02A1543.
    KEMP v. THE STATE.
    (571 SE2d 412)
   Johnson, Presiding Judge.

Clarence Kemp appeals from his aggravated assault conviction. He argues that there is insufficient evidence supporting the conviction, that his trial counsel was ineffective, and that the conviction is the result of prosecutorial misconduct. The arguments are without merit, and we therefore affirm Kemp’s conviction.

1. On appeal from a criminal conviction, the appellant is no longer presumed innocent, and we do not weigh the evidence or determine witness credibility. Rather, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found beyond a reasonable doubt that the accused is guilty of the crimes charged.

In the instant case, the state presented, among other evidence, testimony from the victim, the victim’s co-worker who witnessed the assault, and a security guard who also saw the assault. According to their testimony, the victim and his co-worker were walking in the parking lot of a shopping mall when they were accosted by Kemp. Although the victim and co-worker did not know Kemp, he began talking to them and walked with them toward the mall entrance. Kemp followed them into the mall and then, without provocation, attacked the victim.

Kemp came from behind the victim, grabbed him around the neck, and punched him on the top of the head. The victim lost consciousness and slumped to the floor. Kemp, who was wearing work boots, then repeatedly stomped his boots on the victim’s chest and face, driving the victim’s head into the floor. The stomping left boot imprints on the victim and caused him to bleed from his mouth and head.

Two mall security guards saw the attack and ran to help the victim. They subdued Kemp, put him in handcuffs, and detained him until a police officer arrived to arrest him. Kemp told the police officer that the victim had bumped into him in the parking lot. The victim was taken by ambulance to a hospital, where he was treated for injuries from the assault.

Contrary to Kemp’s argument, there is sufficient evidence to support the verdict. A rational trier of fact could have found beyond a reasonable doubt that Kemp is guilty of aggravated assault for stomping the victim with his boot-clad feet.

2. Kemp complains that his trial counsel was ineffective in failing to challenge the sufficiency of the indictment and in admitting Kemp’s guilt during her opening argument. The complaints are baseless.

Kemp incorrectly posits that the indictment here is defective because it fails to allege that he assaulted the victim with a deadly weapon. No such allegation was necessary in the indictment. OCGA § 16-5-21 (a) (2) provides that a person commits the offense of aggravated assault when he assaults with a deadly weapon or with any object which, when used offensively against a person, is likely to or actually does result in serious bodily injury. This is a disjunctive clause that sets forth alternative methods of committing the crime either with a deadly weapon or with any other object that is likely to, or actually does, cause serious injury. Because the aggravated assault indictment here charged that Kemp’s kicking feet were likely to cause serious bodily injury, no reference to a deadly weapon was required. Consequently, any such challenge to the indictment by trial counsel would have been futile, and counsel’s failure to pursue a meritless challenge cannot amount to ineffective assistance.

Kemp also misconstrues trial counsel’s opening argument. Rather than admitting Kemp’s guilt as to the charged crime of aggravated assault, counsel told the jury that although Kemp got into an altercation with the victim and kicked him, his conduct did not rise to the level of being an aggravated assault. “Counsel’s decision as to which theory of defense to pursue is a matter of strategy and tactics; and, as a general rule, matters of tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.”

3. Kemp alleges prosecutorial misconduct based on the prosecutor’s introduction of evidence that Kemp’s boot-clad feet were a deadly weapon and based on the prosecutor’s closing argument that finding Kemp guilty of simple battery would be a slap on the wrist. Kemp failed to raise these objections during his trial, and therefore he cannot raise them for the first time on appeal. “[T]he contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.”

Decided September 10, 2002.

Dell Jackson, for appellant.

PaulL. Howard, Jr., District Attorney, Bettieanne C. Hart, Alvera A. Wheeler, Marc A. Mallon, Assistant District Attorneys, for appellee.

Moreover, we have reviewed the allegations made by Kemp and find no misconduct by the prosecutor, and further find that even if the prosecutor’s actions were deemed improper, there is no reasonable probability that such impropriety contributed to the verdict.

Judgment affirmed.

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

        Martin v. State, 254 Ga. App. 40 (1) (561 SE2d 154) (2002).

       See Wright v. State, 211 Ga. App. 474, 475 (440 SE2d 27) (1993); Lubiano v. State, 192 Ga. App. 272, 273-274 (1) (a) (384 SE2d 410) (1989).

        Jay v. State, 232 Ga. App. 661, 662 (1) (503 SE2d 563) (1998).

       Id.

        Banks v. State, 244 Ga. App. 191, 192 (1) (c) (535 SE2d 22) (2000).

       (Citations and punctuation omitted.) Craft v. State, 254 Ga. App. 511, 521-522 (13) (563 SE2d 472) (2002).

       (Citation and punctuation omitted.) Ledford v. State, 264 Ga. 60, 67 (18) (a) (439 SE2d 917) (1994).

       See Carr v. State, 275 Ga. 185, 186 (2) (563 SE2d 850) (2002).


text:
    A02A1867.
    PHILLIPS et al. v. FIRST BANK OF GEORGIA.
    (571 SE2d 410)
   Blackburn, Chief Judge.

In this case involving the allegedly improper assignments of a promissory note and corresponding deeds to secure debt, Bruce C. Phillips and Jean D. Phillips appeal the trial court’s grant of summary judgment to First Bank of Georgia, contending that the Bank should have cancelled the deeds to secure debt encumbering their residence. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that Bruce C. Phillips and Albert H. Dallas were the sole shareholders in Total Rehab, Inc., a company formed by them in 1990 and now undergoing Chapter 11 bankruptcy proceedings. In June 1990, the Bank extended a loan to Total Rehab. To secure the debt, Bruce and Jean Phillips granted a second mortgage on their home to the Bank, and Dallas conveyed a deed to secure debt in a certain apartment complex as collateral for a line of credit. Both Bruce Phillips and Dallas were guarantors for the loan.

Total Rehab defaulted on its loan payments, and the Bank looked to the guarantors for payment. At that time, the Phillipses made a number of payments on the outstanding debt, but the loan remained in default. Subsequently, the Bank demanded full payment from Dallas, and, on July 28, 2000, Dallas paid off the balance of the loan in full. At the time of payment, Dallas demanded that the note and the deeds to secure debt be assigned to him, and the Bank acquiesced to Dallas’ demand.

Subsequently, Dallas transferred the note and deeds to a third party who has instituted foreclosure proceedings on the Phillipses’ home. The Phillipses in turn brought this action against both Dallas and the Bank, contending that the deeds to secure debt should have been cancelled and that they should receive damages. Only the trial court’s subsequent grant of summary judgment to the Bank is at issue in this case.

With regard to banking loans, OCGA § 10-7-23 plainly provides: “The surety may tender to the creditor the amount of his debt and demand that the evidence of and the securities for the same be delivered up to him to be enforced against his principal or cosureties; and a failure of the creditor to comply, when within his power, shall operate to discharge the surety.”

That is exactly what happened in this case. The Bank demanded that Dallas pay off the outstanding debt of Total Rehab, and Dallas did so, demanding a transfer of the notes. The Bank complied, just as the statute requires it to do or lose the ability to enforce its debt against the demanding surety. The Bank did not act improperly in following these statutory parameters.

To the extent that the Phillipses argue that they are entitled to contribution for paying more than their share of the loan, their action is against Dallas, not the Bank. And, while the Phillipses contend that Dallas and the Bank colluded to defraud them of their home, there is simply no evidence in the record supporting this claim.

Judgment affirmed.

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

Decided September 10, 2002.

William M. Wheeler, for appellants.

Fowler & Wills, Samuel A. Fowler, Jr., for appellee.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

         The note was last renewed on February 8, 1999, with a remaining balance of $174,373.50.