text:
    A92A0352.
    CLAYTON et al. v. THE STATE.
    (418 SE2d 610)
   Birdsong, Presiding Judge.

Johnny Ray Clayton and Kenneth Jerome Washington appeal their convictions of armed robbery and their sentences. A motel was robbed by two black males. Appellants were apprehended several minutes later, approximately four or five miles from the crime scene. The victim (assistant manager) was transported to the crime scene and positively identified appellants as the perpetrators. One appellant had a gun in his possession similar in appearance to the gun used in the robbery. The money from the robbery was not found in appellants’ possession. Subsequently, at the police station, the victim was shown mug shots of the two appellants, but of no other persons, and again positively identified appellants as the perpetrators. At trial the victim and certain police officers testified as to these out-of-court identifications by the victim. The victim testified that she was positive of her out-of-court identifications when they were made. However, she could not make a positive in-court identification of appellants due to the approximate one-year time lapse since the crime. The victim testified at trial that although she believed appellants to be the perpetrators she was not sure. Held:

1. Appellants, citing Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69), asserts the trial court erred in allowing the State, over timely objection, to strike the only black juror in the trial of the two black co-defendants.

Pretermitting the question whether a prima facie case under Bat-son has been established is the question whether the State met its burden of establishing a racially-neutral basis for its strike of the juror. The State explained its peremptory challenge of the only black juror as follows: (a) that during voir dire (which both the State and appellants elected not to have transcribed) the juror stated several times he could not be fair and impartial before finally replying to a question asked by the court that he could so act; and, (b) that the juror was aware that the Cobb County District Attorney’s office was “responsible for prosecuting” a potential abandonment case against him. The State further asserted on the record, without controversion, it had previously requested the court to strike the juror for cause. The trial court concluded the Batson rule had not been abridged after placing upon, the record its perceptions of the juror’s questioned responses on voir dire and finding, as fact, that the State’s exercise of a strike against the juror “was not done in any racially discriminatory manner.” “[T]he trial court’s determination that the prosecutor successfully rebutted the prima facie case is entitled to ‘great deference.’ ” Stripling v. State, 261 Ga. 1, 5 (4) (401 SE2d 500). A trial court’s ruling cannot be found clearly erroneous when the challenge is not based upon racial grounds, but upon those specific, racially-neutral grounds that prosecutors legitimately use every day in our courts. Burgess v. State, 194 Ga. App. 179, 181 (390 SE2d 92).

2. Appellant asserts error by the trial court in charging flight over timely objection, and absent any evidence thereof.

(a) This case was tried November 7-9, 1989. Renner v. State, 260 Ga. 515 (3) (397 SE2d 683) applies only to cases tried after January 10, 1991. Id. at 518 (3 b), n. 2. The holding in Renner clearly is prospective in nature and has no application to the case at bar. Ezzard v. State, 261 Ga. 744 (412 SE2d 839) (1991).

(b) We disagree with the State’s appellate claim that the issue of flight was reasonably raised by the conduct of the appellants after they were observed by the police. The record in its totality does not reasonably raise flight at that point in time. In fact, the State conceded on the record that if you exclude the fact the appellants “fled the scene from Knights Inn” that “there is no flight in the case.” However, the testimony of the victim (assistant manager) asserts that after the perpetrators seized the money they left the crime scene leaving change in the cash drawer and with one of the perpetrators jumping over an office railing on his way out the door. This testimony is sufficient, under the law existing before the effective date of Renner, to raise reasonably an issue of flight. It was not error to charge on flight. Nolan v. State, 129 Ga. App. 653, 655 (3) (200 SE2d 474).

3. Appellant enumerates “the court erred in allowing over objection the victim’s ‘show-up’ identification of both defendants simultaneously as there was no other direct evidence of guilt, and defendants had alibis.” (Emphasis supplied.) However, appellants, relying on the precedent of Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401), argue in their brief that the “show-up” identifications were too suggestive in this case under the totality of the circumstances. To the extent that appellants now attempt to assert that the pretrial identification procedures were too suggestive and imply that a due process violation has occurred within the meaning of Biggers, supra, they have presented no issue upon which we can rule in this appeal. This issue is not reasonably contained within the scope of the enumeration of error. An enumeration of error cannot be enlarged to include issues not made therein. Reese v. State, 139 Ga. App. 630, 631 (3) (229 SE2d 111). Moreover, an enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. That is, one cannot expand the scope of review or supply additional issues through a process of switching, shifting, or mending your hold. Rigenstrup v. State, 197 Ga. App. 176 (2) (398 SE2d 25).

4. Appellants assert the trial court erred in denying defendants’ motion for new trial on newly discovered evidence, and because certain testimony could not be read back to the jury as they requested.

(a) Pretermitting the question whether the trial court abused its discretion in proceeding with the trial without requiring a reading back of the testimony is the question whether appellants acquiesced or contributed to the procedure that was used. The record shows that the trial judge offered to hold the case over until Monday when the first court reporter could be present to read back the testimony requested to be heard by the jury. Thereafter, an off-the-record bench discussion was held between counsel and the judge. Following the discussion, the trial judge gave each attorney five minutes to argue the contents of the questioned testimony-to the jury. Appellants’ counsel participated in this procedure without posing any objection on the record, and the jury thereafter indicated it was ready to continue its deliberations. Because appellants did not object below to the procedure used by the trial court, he may not complain of it now. See Lawton v. State, 259 Ga. 855, 856 (2) (388 SE2d 691). Further, one cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing. Wilburn v. State, 199 Ga. App. 667, 669 (2) (405 SE2d 889).

(b) Regarding the issue of newly discovered evidence, appellants have failed to identify in their brief the evidence in issue or cite this court to the transcripts where this evidence could be found. This court will not cull the record on behalf of either the State or appellants. Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463). However, our examination of the trial record does reveal that an issue was litigated regarding whether a 911 emergency system dispatch card, which included therein a certain description of the perpetrators, constituted newly discovered evidence. The record, however, establishes that Officer Waddell on cross-examination testified as to the existence of the dispatch cards or case cards used by the 911 emergency system, thereby placing appellants on notice at trial of the existence of the document. The record does not reflect that appellants ever requested a continuance or any other form of relief in order to examine or obtain the dispatch cards. Further, at the hearing on the motion for new trial, appellants' counsel conceded that it was Officer Waddell who “said to check the dispatch card. Perhaps something I should have thought of on my own.” Thus, the record establishes that the dispatch cards did not constitute newly discovered evidence, within the meaning of Timberlake v. State, 246 Ga. 488, 490 (1) (271 SE2d 792), as the evidence had not come to appellants’ attention since trial and, additionally, there had been an inadequate showing that it was not owing to the want of due diligence that appellants did not acquire the evidence sooner.

Decided March 19, 1992

Reconsideration denied April 8, 1992

Ben W. Beazley, for appellants.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

5. The trial court did not err in denying appellants’ request to charge regarding the absence of the 911 tape. Examination of the record reveals that the oral request to charge was both inaccurate and confusing. “ ‘If any portion of the request is inapt, incorrect, or not authorized by the evidence, denial of the request is proper.’ ” Jones v. State, 200 Ga. App. 519, 521 (2 c) (408 SE2d 823). Moreover, the requested charge clearly is based on OCGA § 24-4-22; this statute is not applicable in criminal cases. Radford v. State, 251 Ga. 50, 53 (7) (302 SE2d 555).

6. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that each appellant was guilty of the armed robbery as charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgments affirmed.

Andrews, J., concurs. Beasley, J., concurs in Divisions 1, 2, 4, 5, 6, and the judgment.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A92A0418.
    MOM CORPORATION et al. v. CHATTAHOOCHEE BANK et al.
    (418 SE2d 74)
   Birdsong, Presiding Judge.

This case is a suit to collect on a note and guarantees in the principal sum of $480,017.33. This appeal is from the trial court’s grant of summary judgment to appellee bank et al., upon appellees’ “renewed” motion for summary judgment with resubmittal of affidavit evidence, following the Supreme Court’s decision in a former appeal (Taquechel v. Chattahoochee Bank, 260 Ga. 755 (400 SE2d 8)) wherein the court held insufficient the affidavit of the bank’s loan officer as to bank records not attached to the affidavit.

In four enumerations of error, appellants contend summary judgment was error because the new affidavit, submitted by the loan officer on remand of the case to the trial court, showed on its face that the bank charged usurious interest by charging a daily rate based on the annual interest rate divided by 360 days rather than by 365. Held:

1. The Supreme Court’s failure to state that it was remanding the case to the trial court for new evidence did not prohibit the trial court from proceeding with the case on remand and receiving additional evidence. The cases cited by appellants to prove that the trial court could not receive new or corrective evidence following a reversal of summary judgment, in fact prove the contrary, which is that following appellate review of summary judgment, “the law of the case” rule does not limit or prohibit the trial court from receiving new evidence which changes the evidentiary posture of the case. Stiltjes v. Ridco Exterminating Co., 192 Ga. App. 778, 779 (386 SE2d 696); Modern Roofing &c. Works v. Owen, 174 Ga. App. 875 (332 SE2d 14). On a reversal of summary judgment, a case is remanded in the posture existing prior to summary judgment; although the appellate court may choose to remand with express direction, this is generally for purposes of clarity, and the mere failure of the appellate court expressly to direct a “remand” does not prohibit the parties from proceeding with the evidence.

2. Georgia courts have held that an interest rate based upon a daily charge equal to the annual rate divided by 360 is not usurious per se. See Broce v. Master Loan Svc., 171 Ga. 22 (154 SE 324); Patton v. Bank of LaFayette, 124 Ga. 965, 968-970 (53 SE 664); Beazley v. Ga. R. Bank &c. Co., 144 Ga. App. 215 (241 SE2d 39).

Appellants have gone behind the decisions in those cases in an effort to present facts not contained in the opinions, based on appellants’ view of the “archival records” in those cases. This is an attempt to impeach appellate decisions by adding facts not contained in the decisions. The decisions of our appellate courts must speak for themselves, and the archival records are not available to litigants in other cases to raise questions about facts or issues not stated or decided in them. “[Notwithstanding their paucity, it is the facts contained within an officially reported case which have legal significance when applying the case as precedent, not bare assertions of facts found within the briefs of the parties and not contained in the text of the reported case.” Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (3) (403 SE2d 840).

Moreover, OCGA § 7-4-2 (a) (1) (B) expressly states that the parties may establish by written contract any rate of interest, expressed in simple interest terms or otherwise. Accordingly, the trial court did not err in granting summary judgment to the bank.

3. In enumeration five, appellants urge “the trial court erred . . . in that there remained issues of fact as to liability as a result of the expanded record . . . furnished by the plaintiff’s renewed motion for summary judgment.”

As to this enumeration, appellants gave this statement of fact in Part One of their brief: “Appellants contend that the expanded record now supplies record facts missing in the prior appeal so that whether the present record supports summary judgment as to liability should be reviewed. The very documents which should have been provided by the bank in the prior appeal show that the bank changed its treatment of the loan so that interest was no longer charged after the precise time period when the defendants had previously testified that the parties modified their contracts. [Citation to record.] The facts are otherwise self-contained in enumeration of error 5.”

The foregoing does not constitute a “succinct and accurate statement of . . . facts” as required by Court of Appeals Rule 15 (a) (1).

It is not permissible to omit pertinent facts in Part One of the appellate brief by claiming they are “self-contained” in another part of the brief, for this circumvents the requirement to provide a “succinct and accurate” statement of facts in Part One of the original brief. Moreover, the argument portion of appellants’ brief merely discusses an “August 5, 1986 agreement” (undescribed) which is in some way (unexplained) breached on the date of perfection of the bank’s security interest, after which the bank kept appellants’ business open to collect accounts receivables, although “the unperfected ‘collateral’ [undescribed] if liquidated, would have been sufficient to pay the entire bank debt, but for the bank’s failure to perfect its interest, [from which] it follows that the entirety of the amounts claimed by the bank arise from the agreed upon funding [undescribed].” Included in this statement are remarks about bankruptcy. Appellants then argue vaguely that the Statute of Frauds bars such a “modification.”

As to this enumeration, the statement of facts in Part One of appellants’ brief is not in compliance with Rule 15 (a) (1) of this court. Appellants’ argument is not clear. Possibly the intended subject of this argument may have had an effect on the issue of “liability,” but then the entire case concerns liability. Possibly the missing facts could be found in the opposing parties’ brief, but it is not the appellees’ burden to correct deficiencies in appellants’ brief. The argument made as to this enumeration is an attempt to expand and enlarge in the brief issues not covered in the enumeration of errors (see Pier 1 Imports v. Chatham County &c., 199 Ga. App. 294, 296 (404 SE2d 637)), and does not give viability to any issue contained in the original enumeration. See Chezem v. State, 199 Ga. App. 869, 870 (406 SE2d 522). It is a waiver of the alleged error and we will not consider it. We note that parties may not correct fatal deficiencies in their original briefs by filing supplemental briefs. Oxley v. Little Switzerland &c. Co., 154 Ga. App. 36 (267 SE2d 460).

Decided March 17, 1992

Reconsideration denied April 8, 1992

Gambrell, Clarke, Anderson & Stolz, Irwin W. Stolz, Jr., Seaton D. Purdom, for appellants.

Kilpatrick & Cody, Susan Cahoon, Stephen E. Hudson, Bedford, Kirschner & Venker, Andrew R. Kirschner, for appellee.

Judgment affirmed.

Pope and Andrews, JJ., concur. Beasley, J., disqualified.


author: Johnson, Judge.

text:
    A92A0177.
    NELSON v. THE STATE.
    (418 SE2d 123)
   Johnson, Judge.

This is an out-of-time appeal granted by the Superior Court of Richmond County from Ernest Nelson’s (Nelson) conviction for robbery. On appeal, Nelson contends that there was not a clear and positive waiver of his right to a jury trial on the record, in violation of the Georgia Constitution as well as the Sixth and Fourteenth Amendments to the U. S. Constitution. He further asserts that the trial court erred in denying his motion for acquittal based on the insufficiency of the evidence.

1. The record in this case shows that when the case was called for trial, counsel for Nelson informed the court, in Nelson’s presence, that he had informed Nelson that he would recommend that the case be tried by a jury. He told the court that Nelson had been insistent on having a bench trial. At that point, the court asked Nelson if he wanted the case heard without a jury. Nelson responded affirmatively, but stated that he did not understand why he was in court. The court then read the indictment and explained the charges to him. The court inquired of trial counsel if he had explained the offense charged to Nelson. Counsel responded that it had been explained. Nelson was then asked a second time by the court if he wanted the trial to be heard by the judge at a bench trial rather than by a jury. Nelson again said yes.

Decided April 8, 1992.

Charles R. Sheppard, for appellant.

Michael C. Eubanks, District Attorney, Richard E. Thomas, Katherine F. Bond, Assistant District Attorneys, for appellee.

In Wooten v. State, 162 Ga. App. 719 (293 SE2d 11) (1982), defense counsel initialed the waiver of a jury on the indictment and responded on behalf of his client in court. This court held that the record was therefore incomplete as to the issue of the defendant’s knowledge and/or assent to that decision. The case was remanded to the trial court for a hearing on whether the defendant personally, knowingly, voluntarily and intelligently participated in the decision. However, in the case presently before us, it is clear in the record that the defendant actively participated in the waiver of the right to a jury. Therefore, as to this issue, we find that Nelson’s argument is without merit.

2. The victim positively identified her assailant in pre-trial photographic and physical lineups as well as in court. She testified that the commission of the robbery took approximately 15 minutes, throughout which time she had the opportunity to observe her assailant. A defendant is entitled to the reversal of a guilty verdict only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). It is clear from the eyewitness testimony offered at trial that the court was provided with sufficient evidence to authorize the guilty verdict.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A92A0181.
    PELIS v. LaPORTE et al.
    (418 SE2d 124)
   Beasley, Judge.

Pelis is a former City of Atlanta police officer who was dismissed by the city Civil Service Board of which appellee LaPorte is chairman. Pelis was indicted for bribery and found not guilty by a superior court jury in September of 1989. However, the Atlanta Bureau of Police Services brought charges against him and he was dismissed for alleged violations of four employee work rules. On appeal the board dismissed the first two charges including bribery, but upheld his dismissal for violations of the other two rules involving Transactions with Involved Persons and Conduct Bringing Discredit. The superior court on certiorari concluded, based upon the “any evidence” standard of review set forth in OCGA § 50-13-19 (h) (5), that the board’s findings of fact were not clearly erroneous and therefore adopted them. Pelis enumerates as error the superior court’s application of the “any evidence” standard of review rather than the “substantial evidence” standard. He urges further that proper application of the “substantial evidence” standard would have resulted in reversal of the board’s decision, and that the order failed to provide findings of fact and conclusions of law as required.

Decided April 8, 1992.

McKenney & Froelich, William J. McKenney, for appellant.

Malcolm J. Hall, for appellees.

The standard of review which is to be applied to thé issues of fact in cases on writ of certiorari to the superior court is “whether the judgment or ruling below was sustained by substantial evidence.” OCGA § 5-4-12 (b). This was affirmed in Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985). Smith, a whole court case, overruled earlier cases which had applied a lesser quantum test. See also Foreman v. City of College Park, 199 Ga. App. 827 (1) (406 SE2d 261) (1991). The superior court applied OCGA § 50-13-19, a part of the Administrative Procedure Act, but that governs judicial review of decisions of state agencies, not city boards. OCGA § 50-13-2 (1).

Inasmuch as the trial court should first perform its function using the proper standard of review, the case is remanded for reconsideration. Graham v. Wilkes, 188 Ga. App. 402 (373 SE2d 90) (1988). We decline to reach this question of law without the certiorari court having done so, see OCGA § 5-5-14 (b), and for this reason do not address appellant’s second enumeration.

Reversal of the judgment renders the third enumeration moot.

Judgment reversed and case remanded with direction.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0232.
    ALLEN v. THE STATE.
    (418 SE2d 125)
   Johnson, Judge.

Anthony Alonzo Allen (Allen) appeals from his conviction of rape and the denial of his motion for a new trial.

1. Allen’s first enumeration of error is that the evidence produced at trial was insufficient to support the guilty verdict. The record on appeal, however, indicates otherwise.

Allen lived in a trailer home next door to the victim. Within minutes of the attack, the victim identified Allen to the police as the attacker. The victim also made an in-court identification of Allen as the perpetrator. A police officer testified that the attacker gained entry to the victim’s house through a window and that there were footprints leading from the victim’s house to Allen’s trailer. There was also medical evidence that someone had recently had sexual intercourse with the victim. Reviewing this evidence, along with the entire record on appeal, in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found Allen guilty of rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Allen also contends the trial court erred in denying his motion to suppress evidence of the victim’s pre-indictment identification of him at a showup. Allen argues that he was deprived of his right to counsel and due process at the showup. “The right to counsel attaches only at or after formal adversary proceedings which had not commenced when the showup occurred.” [Cits.] McCounly v. State, 191 Ga. App. 266, 267 (2) (381 SE2d 552) (1989). Thus, there was no violation of Allen’s right to counsel.

“Pre-indictment confrontations should be scrutinized to determine if they are unnecessarily suggestive and conducive to irreparable mistaken identification. The totality of the circumstances must be viewed to determine if there is a likelihood of misidentification which offends against due process and the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation.” (Citations and punctuation omitted.) Hood v. State, 199 Ga. App. 774, 775-776 (406 SE2d 120) (1991). In the instant case, the 72-year-old victim has known Allen, who was 28 years old at the time of the rape, since he was a child. Allen lived next door to the victim and had even been in the victim’s house on the day of the attack to help change a light bulb. That same night, the victim stepped out of her lighted bedroom into a lighted hallway where Allen stood facing her. He grabbed her, forced her into the bedroom and turned off the light. During the attack, the victim felt a prominent scar on Allen’s neck. Afterwards, she saw him run past her bedroom window toward his trailer. Within minutes after the attack, the victim told police that one of the Allen men living next door raped her. The police first brought Allen’s brother to the scene and the victim immediately said he was not the attacker. Several minutes later, Allen was found in his trailer. He was immediately brought to the crime scene where the victim positively and without hesitation identified him as the attacker.

Decided April 8, 1992.

Straughan & Straughan, William T. Straughan, for appellant.

James L. Wiggins, District Attorney, H. Frederick Mullís, Jr., Assistant District Attorney, for appellee.

It is clear, under the totality of the circumstances, that the victim’s confrontation with Allen immediately after the rape was not unnecessarily suggestive or conducive to mistaken identification. On the contrary, the victim’s identification of Allen was certain and reliable. “ ‘The show-up was an on-the-scene confrontation conducted as soon as possible after the [rape]. It was an immediate product of [that offense] and [Allen’s] connection thereto. Practicalities inherent in this type of situation suggest that an immediate on-the-scene confrontation between victims and suspect is essential both to effective law enforcement and to fairness toward innocent suspects.’ [Cits.]” Byrd v. State, 173 Ga. App. 449, 450 (2) (326 SE2d 813) (1985). Accordingly, the trial court did not err in denying Allen’s motion to suppress.

Judgment affirmed.

Carley, P. J. and Pope, J., concur.


text:
    A92A0300.
    GLOVER v. THE STATE.
    (418 SE2d 127)
   Johnson, Judge.

Jimmy Lee Glover (Glover) appeals from his conviction of possession of cocaine and the denial of his motion for a new trial.

1. Glover’s first enumeration is that the trial court erred in failing to conduct a hearing on his Brady motion to disclose the identity of the State’s confidential informant. This enumeration is without merit.

“[A] general Brady motion does not normally encompass the disclosure of the identity of a confidential informant.” Adams v. State, 196 Ga. App. 804, 805 (1) (397 SE2d 153) (1990). “This court has held that a defendant must make a motion to reveal the identity of a confidential informant, and the trial court must conduct an in camera hearing at which the defendant must show both the materiality and necessity of the witness’ testimony to the defense before the trial court decides whether the identity of an informant must be revealed. [Cits.]” State v. Morris, 202 Ga. App. 344, 345 (3) (414 SE2d 656) (1991). In the instant case, Glover followed none of the procedures which requires a hearing to determine whether the informant’s identity should be revealed. Glover did not file a Brady motion, or any other type of motion, specifically seeking disclosure of the informant’s identity. Instead, he attempted to raise the issue by relying on a general Brady motion coupled with a question posed to the state’s witness on cross-examination asking for the informant’s identity. When the court sustained the State’s objection to this question, Glover made a motion for a mistrial on the ground that he had been denied a thorough and sifting cross-examination, but he never moved the court to reveal the informant’s identity. Further, the record is devoid of any proffer of evidence by Glover showing the materiality and necessity of the informant’s testimony to the defense. The trial court cannot be faulted for failing to hold a hearing that was never properly requested. Accordingly, we find no error.

Decided April 8, 1992.

Martin, Snow, Grant & Napier, Thomas B. Gibson II, for appellant.

Willis B. Sparks III, District Attorney, Vernon R. Beinke, Howard Z. Simms, Assistant District Attorneys, for appellee.

2. Glover next argues that the trial court erred in allowing testimony from the State’s witness based on the contents of a police record not prepared by the witness. The record shows, however, that Glover posed no objection at trial to the testimony. “The trial court was not asked to rule on (this) ground and thus there is nothing to review. It is well established that appellate courts may not consider objections to evidence not raised at trial. [Cit.]” Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0321.
    THE STATE v. DAWSON.
    (419 SE2d 30)
   Johnson, Judge.

Appellee Dawson was issued a uniform traffic citation on December 23, 1990, charging him with driving under the influence of alcohol based on the results of a breath test on which he had registered “.19 grams.” The charge was returnable to the Municipal Court for the City of Albany, but at Dawson’s request the case was transferred by that court to the State Court of Dougherty County, where the district attorney filed a notice of intent to present similar transaction evidence. The record reflects that several months later, on August 9, 1991, the trial court allowed Dawson to plead guilty to the “reduced” charge of reckless driving and sentenced him to 12 months probation. Although the accusation form contains a space to be signed by the district attorney at the time any plea is entered, no signature appears in that space; and it is apparent without dispute from the record and from the briefs of the parties that the district attorney was not present in court when the plea was entered and did not consent to it.

Decided April 8, 1992.

Britt R. Priddy, District Attorney, Gregory W. Edwards, Assis tant District Attorney, for appellant.

On September 27, 1991, the district attorney moved to set aside the conviction and sentence on the ground that the plea had been received ex parte and without notice to the state. The state brings this appeal from the denial of that motion.

1. As a general rule, it is the exclusive province of the state’s attorney to enter into plea discussions with a criminal defendant, and the trial court is not authorized to participate in such negotiations except to the extent of indicating to the parties whether it is or is not likely to concur in the proposed disposition. See Rule 33.5 (A) & (B), Uniform State Court Rules. It follows that the trial court was without authority under the circumstances to accept a plea to an offense different from the one alleged in the accusation.

2. Assuming purely for the purpose of argument that a conviction of a different offense from the one alleged in the accusation would have been authorized by the actual facts of the case, there is no indication in the record before us that any evidentiary proceeding was ever conducted at which the facts of the case could have been determined. Certainly, no such proceeding was conducted at which the state was represented. For these reasons, we must agree with the state that the conviction and sentence entered by the trial judge were absolutely void.

3. The appellee contends that the state’s motion to set aside the conviction and sentence was in effect a motion in arrest of judgment and that, because it was not filed during the same term at which the conviction and sentence were entered, it was untimely. See generally OCGA § 17-9-61 (b). However, it has been held that a void judgment entered in a criminal case in which jeopardy has not attached is an absolute nullity and may be attacked at any time. See Potts v. State, 236 Ga. 230 (223 SE2d 120) (1976); State v. Cooperman, 147 Ga. App. 556, 558 (4) (249 SE2d 358) (1978). See also State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627 ) (1978); State v. Shuman, 161 Ga. App. 304 (6, 7) (287 SE2d 757) (1982); Jones v. State, 155 Ga. App. 382, 383 (271 SE2d 30) (1980).

Judgment reversed.

Carley, P. J., and Pope, J., concur.

Brimberry, Kaplan, Campbell & Donaldson, Jerry W. Brimberry, Mark D. Brimberry, for appellee.


author: Pope, Judge.

text:
    A92A0323.
    In the Interest of J. M. H., a child.
    (418 SE2d 128)
   Pope, Judge.

This is an appeal by the natural father from an order of the trial court terminating his parental rights to his minor son.

1. Defendant/appellant first contends the record does not support the trial court’s finding that he wilfully and wantonly failed to comply with the June 12, 1990, order of the Juvenile Court of Rockdale County or a prior order entered by a New Mexico court concerning this child. The trial court found the following facts: The parents of J. M. H. were married in 1978. In 1979, J. M. H. was born. In 1980, J. M. H.’s parents divorced. Joint custody was awarded to the parents with the mother appointed as the custodial parent. The father was ordered to pay $100 per month as child support. After the couple was divorced, the mother of the child was forced to take legal action to collect child support owed by the defendant. She also took out two criminal warrants for battery against the defendant.

In 1981, the mother remarried and moved to Georgia with the child. Although the mother claims she communicated with the defendant concerning the location of the child, there is no evidence that the defendant knew where the child was living until 1989. The mother also began to call the child by another name after she remarried.

During 1989, the defendant filed a motion in the New Mexico court that had granted the couple’s divorce to enforce the prior decree of that court regarding custody of the child and to hold the child’s mother in contempt of court for failing to comply with that decree. By order dated January 24, 1990, the New Mexico court granted that motion, and the order was later domesticated by the Rockdale County Superior Court.

Before the New Mexico court ruled on defendant’s motion, however, on January 16, 1990, the mother filed a petition to terminate the parental rights of the defendant in the Juvenile Court of Rockdale County. In May 1990, that court conducted a hearing on the petition and concluded that although there was evidence the defendant had not taken significant steps to establish a familial relationship with the child, there was not clear and convincing evidence at that time that he had abandoned the child. The May 1990 order also set forth a reunification plan to reunite the child and defendant. The defendant was ordered inter alia to take immediate steps to communicate with his son in the manner set forth in the order and to begin to pay child support for the child. The only evidence indicating that he attempted to comply with this order was that he corresponded with his son by letter on three or four occasions. The evidence is undisputed, however, that he made no efforts to visit with his son or to fulfill his obligation to contribute to his son’s support.

In June 1991, the mother filed another petition seeking to terminate the defendant’s parental rights to the child. After conducting a hearing in August 1991, the trial court issued an order holding the child was deprived as contemplated by OCGA § 15-11-81 (b) (4) (A) (i), and as defined in OCGA § 15-11-2 (8) (a), and terminated the defendant’s parental rights for failure to remit child support as ordered by the Juvenile Court of Rockdale County for a period of more than one year in violation of OCGA § 15-11-81 (b) (2).

Contrary to the defendant’s assertions, the record does establish by clear and convincing evidence that the defendant wantonly and wilfully failed to comply with the order of the Juvenile Court of Rockdale County issued in May 1990. There was no evidence that the defendant was not aware of the dictates of the May 1990 order, indeed, he was represented by his current counsel at that proceeding. The only evidence offered by either party regarding the defendant’s compliance with the dictates of the order concerning support was the testimony of the child’s mother that she had received no money from defendant. Defendant offered no evidence of justifiable cause for not supporting his child since November 1989 when he learned of the child’s location.

2. Defendant argues that there is no evidence supporting the trial court’s conclusion that the deprivation found by the trial court will continue and not likely be remedied. The only evidence that the defendant made any attempt to establish a relationship with his child since November 1989 is that he wrote to his son on three or four occasions after being ordered by the trial court to communicate with his child. The evidence further showed, however, that defendant had last written to his child five months before the instant termination proceeding was filed. Although defendant sought to enforce the original decree from the New Mexico court, after his motion to enforce was granted, he made no attempt to communicate with the child until ordered to do so by the Juvenile Court of Rockdale County as discussed above, nor did he offer any financial support to his son. Defendant has been given sufficient opportunity to establish a relationship with his son but appears more interested in enforcing his rights than exercising his rights. There is nothing in the record to suggest that defendant’s conduct will change. When, as in this case, “there is no indication but the promise to suggest hope of improvement,” In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987), we will not disturb the trial court’s holding that the parental rights of the father should be terminated.

Decided April 8, 1992.

Maddox, Starnes & Nix, John A. Nix, for appellant.

Summers & Jones, Robert H. Stansfield, Rebecca P. Dally, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A0576.
    MURRAY v. THE STATE.
    (418 SE2d 624)
   Birdsong, Presiding Judge.

Boris Dexter Murray appeals his judgment of conviction of trafficking in cocaine and possession of a weapon by a convicted felon, and his sentence.

The police obtained consent from appellant’s stepfather to search the home of the stepfather and appellant’s mother. Although appellant no longer lived at home, he occasionally used a bedroom in the house that he had occupied when growing up and living with his parents. Appellant had stayed several nights in that room within the week in which the search was conducted. In this bedroom, the police found chunks of rock cocaine in two ziplock bags placed inside a larger bag within a shoe box located under the bed. The cocaine had a wholesale value of about $16,000 and a street retail value in a range of $26,000-$55,000 depending upon varying marketing factors.

The shoe size shown on the Cole Haan shoe box was size “12M,” which was a size appellant could wear as his shoe size was 11-1/2; his stepfather’s shoe size was 9-1/2. A black card holder was found beside the box. Two or three cards in the card holder had appellant’s name on them and appeared to be business cards labelled “Universal Enterprises.” An automatic pistol was found under the mattress of the bed with two hollow-point bullets therein. Various business cards and phone numbers were found; a set of broken gram scales, together with 42 small coin envelopes, were found in a bag placed under a mirrored dresser drawer. Appellant, who works as a car detailer being paid $100-$150 every two weeks, has worn a beeper which he asserts is needed so that his work place can contact him when a car needs to be done.

Although the factual issue is contested, appellant’s stepfather initially testified appellant had a key to the house; and, that no one else slept or stayed in the bedroom. Subsequently, the stepfather attempted to modify or recant his testimony about the key by testifying that: “After talking to my wife, she made me remember that [appellant] did not have keys to all of the locks up until the time that her daughter got married.” And he also testified it was after he went home and talked with his wife that: “I remembered the time that he did not have a key.”

Both appellant’s stepfather and mother denied knowledge of the cocaine; however, appellant’s mother did testify that the pistol belonged to her. Two months prior to this incident, the stepfather had found some bags and some scales, with white powder residue on them, in the laundry room of the house; when confronted about these items, appellant told his mother they belonged to a friend.

A member of the Clayton County Narcotics Unit expressed his expert opinion regarding various drug sale procedures, including the significance of possession of a beeper, phone and beeper numbers, small envelopes, scales, and a gun by those selling drugs. He also testified that a silver tip hollow-point bullet is an anti-personnel round, not a target shooting round.

A member of the records and identification division of the sheriff’s department was qualified without objection as an expert witness in the field of fingerprint comparison. He testified regarding various latent prints found on items in the room and compared those prints to a known print of appellant. (We note some confusion exists in the record regarding whether the latent print, State Exhibit 35, was taken from State Exhibit 13 or State Exhibit 14, and whether the latent print, State Exhibit 36, came from State Exhibit 13 or State Exhibit 14. On appeal we are concerned with evidence sufficiency and will view the evidence in a light most favorable to the verdict.) Although he was shown to have issued an earlier report to the contrary, the State’s fingerprint comparison expert testified inter alia: that a known print of appellant matched a latent print found on a bag with the gram scale and small envelopes; that a known print of appellant matched a latent print found on the bag in which the above bag, gram scale and small envelopes were found; and that a latent print left on a bag, which was the large ziplock bag that contained the two bags of rock cocaine, was made by appellant’s right middle finger.

Appellant denied any knowledge of the cocaine, denied possession of the weapon and denied he had ever sold drugs; he admitted the card holder was his and that he used the gram scale to weigh gold. He also admitted to writing certain rap or so-called hip-hop songs for a rap group he was in; some of these songs had certain lyrics pertaining to drugs. Held:

1. Appellant asserts the trial court erred in allowing the State to introduce the opinion of their expert in fingerprint comparison since the State failed to provide this information as requested in defendant’s discovery requests.

The record reveals that appellant never filed a motion for copies of written scientific reports, pursuant to the provisions of OCGA § 17-7-211, either by expressly citing the statute or by demanding that the scientific reports, whether inculpatory or exculpatory, should be furnished prior to the statutory ten-day limit. Compare Massey v. State, 251 Ga. 515 (307 SE2d 489). Rather, appellant made a general motion for disclosure under Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), and a motion to produce pursuant to OCGA § 24-10-26, which included inter alia a demand for production of all reports and the results and copies of all reports of any scientific tests, experiments or studies made in connection with this case. Compare Mercer v. State, 169 Ga App. 723 (4) (314 SE2d 729).

As no adequate demand was made pursuant to OCGA § 17-7-211 for production of scientific reports, any issue concerning the failure timely to provide information pursuant to this statute is not before us on appeal. State v. Madigan, 249 Ga. 571 (292 SE2d 406); State v. Meminger, 249 Ga. 561 (1) (292 SE2d 681); Mercer, supra; see Moss v. State, 191 Ga. App. 387 (1) (381 SE2d 765).

As appellant did not argue in his brief or provide any citation of authority in support of a contention that it was error to fail to provide timely this information either pursuant to a Brady motion or a motion to produce under OCGA § 24-10-26, these issues have been abandoned on appeal. Court of Appeals Rule 15 (c) (2). Moreover, neither Brady nor OCGA § 24-10-26 mandates the disclosure of materials before trial. See Glenn v. State, 255 Ga. 533 (2) (340 SE2d 609); Wilson v. State, 246 Ga. 62 (1) (268 SE2d 895). Additionally, all information was supplied to appellant during trial if not sooner, and assuming without deciding such information would qualify as a scientific report, no motion for continuance or request for recess was entered, as a trial tactic, in order to allow appellant an opportunity to evaluate further the information obtained. An appellant cannot complain on appeal of a result he procured or aided in causing by his own conduct, procedure or trial tactics. Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251).

2. Appellant asserts the trial court erred in allowing the State’s fingerprint comparison expert to testify as to his opinion resulting from his fingerprint examination because the facts used to premise said opinion were not in evidence before the jury. Specifically, appellant asserts the expert rendered his opinion, over objection, on the match of fingerprints based upon an improper hypothetical question, which was as follows: “Based upon the type of evidence you took, the latents off of State’s Exhibit 36 and 37, and based upon the evidence that you obtained in State’s Exhibit Number 35 from the latent, do you have an opinion as to whether or not, plus based upon all the other evidence you have obtained during the course of your investigation in this case, do you have an opinion as to whether or not this known matches this latent?” Although the question may initially appear to be phrased in part as a hypothetical, when viewed in light of the remainder of the relevant record, it becomes apparent that in substance the question called upon the expert to give his opinion based on his observations of the specified latents and the known fingerprint of appellant. “A hypothetical question is not required where a properly qualified expert testifies as to his opinion based on facts within his personal knowledge” (Ware v. State, 252 Ga. 90 (3) (310 SE2d 908)), because “ ‘[a]n expert may base his opinion upon facts which he knows and has observed.’ ” Prevost v. Taylor, 196 Ga. App. 368, 369 (3) (396 SE2d 17).

Further, appellant in essence has argued on appeal that the following language, “plus based upon all the other evidence you have obtained during the course of your investigation in this case” establishes per se that the expert was permitted to answer the question based on facts not properly placed in evidence. We disagree. Appellant fails to call this court’s attention to any particular fact which would be encompassed in this language which was not in evidence before this court at the time the question was posed. It is not readily apparent from our reading of the record that such is the case. It is well-established that an appellant must show both error and harm (Robinson v. State, 229 Ga. 14, 15 (189 SE2d 53)), and “in carefully considering the validity of appellant’s enumeration, we will not cull the record in behalf of either appellant or the State as it is not the function of this court to cull the record on behalf of a party.” (Citations and punctuation omitted.) Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463).

Additionally, assuming arguendo error had occurred by including the offending language in the question posed, we find it is highly probable the error did not contribute to the verdict and was harmless. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869),

3. Appellant asserts the trial court erred in refusing to grant his motion for mistrial when the State elicited certain testimony from a witness for the State concerning his opinion as to the handwriting on a sales slip found with the cocaine. However, “appellant’s failure to make reference to specific portions of the transcript where the error occurred, results in a waiver of this issue. [Court of Appeals] Rule 15 (c) (3).” Thomas v. State, 199 Ga. App. 586, 588 (3) (405 SE2d 512), citing Palmer v. State, 186 Ga. App. 892, 894 (369 SE2d 38).

Moreover, after the motion for mistrial was made, the trial court gave additional curative instructions to the jury who indicated they could follow the instructions; thereafter, appellant failed to renew his motion for mistrial. Accordingly, the asserted error in failing to grant the motion for mistrial has not been preserved for appellate review. Schirato v. State, 260 Ga. 170, 172 (5) (391 SE2d 116).

4. Appellant asserts the trial court erred in refusing to permit the defense to impeach the State’s witness, Robert Butts, with evidence of bias and interest in the nature of his current status on probation. Pretermitting the question of whether appellant properly and in good faith had attempted to impeach the witness with evidence of bias and interest is the question whether he was entitled to impeach the witness under the operative circumstances. Robert Butts initially was called as a State’s witness. The record does not reveal that any attempt was made to impeach this witness, either during cross-examination or re-cross, for bias or interest specifically based on the fact he was subject to any form of a sentence of probation. The record reflects that on re-cross an attempt was made to impeach the witness for bias, but by showing the witness’ concern about either himself or his wife being charged with .some type of cocaine offense. The witness’ admission of concern appears on the record. At the conclusion of the witness’ cross-examination and re-cross, appellant made no timely attempt to preserve any right of continued cross-examination by obtaining permission subsequently to recall the witness for purposes of impeachment or otherwise. Thereafter, the record reveals that two days later appellant elected to recall the witness as a “defense witness,” without requesting the additional privilege of re-opening the original cross-examination concluded when the witness was a witness for the State. Under these circumstances, even if some limited right of continued cross-examination for purposes of impeachment or otherwise remained, it was waived.

As the witness was recalled solely as a “defense witness,” any impeachment thereafter would have to be conducted in accordance with the rules applicable for impeaching one’s own witness. “A party may not impeach his own witness without a showing of entrapment.” Hood v. State, 179 Ga. App. 387, 389 (1) (346 SE2d 867); Gielow v. Strickland, 185 Ga. App. 85, 87 (2) (363 SE2d 278). The record does not reveal that a timely showing of entrapment was made in this instance.

5. Appellant asserts the trial court erred in denying his request to charge relating to the inference of possession to the owner or lessee of a house. Pretermitting the question of whether appellant is entitled to such a charge by the state of the evidence is the question whether the charge was properly adjusted. Assuming without deciding that a legitimate charge as to the inference of possession of drugs was authorized by the evidence, we find that the last sentence of the requested charge is not adjusted properly to this case, and therefore the trial court did not err in refusing to give the requested charge. A requested instruction must be legal, apt, precisely adjusted to some principle involved in the case, and be authorized by the evidence. Hill v. State, 259 Ga. 557 (3 b) (385 SE2d 404). The trial court does not err when, as here, it fails to give a requested charge which does not meet this criteria, or which is otherwise confusing or misleading. Jones v. State, 200 Ga. App. 519, 521 (2 c) (408 SE2d 823). Regarding the existence of waiver as well, see Division 6 below.

6. Appellant asserts the trial court erred in refusing to give his request to charge “equal theories” in a circumstantial evidence case.

Following his charge to the jury as to the cocaine trafficking charge, the trial court inquired whether appellant had any objections to the charge. Appellant made a certain objection to the “equal access” charge given by the court and, also, attempted to reserve his right to make future charge objections as well. The trial court properly did not grant appellant’s request affirmatively on the record. “Having elected to take immediate exception to a portion of the charges at trial, rather than reserving a right to except or object to all charges until motion for new trial or on appeal, appellant waived his right to assert a charging error on appeal to the remaining portion of the charges to which he did not so object or except.” Grissett v. State, 199 Ga. App. 547 (1) (405 SE2d 542), citing Whatley v. State, 196 Ga. App. 73, 76 (2) (395 SE2d 582). The fact appellant concurrently attempted to reserve unilaterally his right to take future exceptions or objections is of no effect, as by voluntarily electing to take a partial exception to a portion of the charges, waiver as to the remainder of the charges occurred by operation of law. Additionally, appellant waived any objection to the charges given in the bifurcated trial as to the possession of firearms charge, by stating when asked by the trial court that he had “[n]o objection to those charges.” Pruitt v. State, 258 Ga. 583, 590 (14) (373 SE2d 192); Wright v. State, 182 Ga. App. 570 (1) (356 SE2d 531).

Assuming arguendo a lack of waiver, this enumeration of error remains without merit. Pretermitting the issue whether the so-called “equal theories” charge accurately reflects current Georgia law, particularly regarding its possible encroachment upon the powers of the jury to weigh evidence and judge witness credibility, is the issue whether the requested charge was required in any event, under existing precedent, in view of the charges actually given to the jury. In addition to charging the court as to equal access and mere presence, and defining both direct and circumstantial evidence, the trial court gave the following charge: “Circumstantial evidence alone will not justify a finding of guilt unless the circumstances are entirely consistent with the defendant’s guilt, wholly inconsistent with any reasonable theory of the defendant’s innocence, and are so convincing as to exclude a reasonable doubt of the defendant’s guilt.” Appellant has taken no exception to this latter charge. It may be inferred from Hamilton v. State, 260 Ga. 3, 5 (4 b) (389 SE2d 225) that the giving of the above charge would substantially and adequately cover the principles contained in a “two theories” or “equal theories” charge. Stephens v. State, 201 Ga. App. 737 (2) (412 SE2d 568). A trial court does not err in refusing to give a requested instruction in the exact language requested where the charges given in their totality substantially and adequately cover the principles contained in the requested charge. See Harrison v. State, 257 Ga. 528 (4) (361 SE2d 149); see also Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177). Further, assuming arguendo, the charging error was not waived and the failure to give the requested charge was error, we find that in view of the nature of the charges given it is highly probable that any error in the refusal to charge on “equal theories” or “two theories” did not contribute to the guilty verdicts in this case, and thus any error was harmless. Ross v. State, 192 Ga. App. 850, 851 (4) (386 SE2d 721); accord Barton v. State, 188 Ga. App. 237, 238 (372 SE2d 647).

7. Appellant asserts the trial court erred in denying his motion for directed verdict, as the law in this state regarding equal access required a directed verdict for the defendant. The jury was given adequate instructions on equal access as pertaining to the offenses of trafficking in cocaine and possession of a weapon by a felon, and notwithstanding found appellant guilty of these offenses. Generally, a motion for directed verdict in a criminal case should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Taylor v. State, 252 Ga. 125 (1) (3l2 SE2d 311). Applying this test, we find the trial court did not err in denying the motion for' directed verdict of acquittal. Moreover, assuming arguendo that the error enumerated herein could be classed as involving a motion for directed verdict of acquittal which at trial sought to challenge the sufficiency of the evidence (see generally Humphrey v. State, 252 Ga. 525, 527 (314 SE2d 436); Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889)), we remain satisfied the trial court did not err. See Division 8 below.

8.. On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662). Viewing the evidence of this case in a light most favorable to the verdict, we conclude the jury rationally could have found that it excluded every reasonable hypothesis except that of the defendant’s guilt. Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Decided April 8, 1992.

Steven L. Harris, for appellant.

Robert E. Keller, District Attorney, Tracy G. Gladden, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


text:
    A92A0585.
    McLENDON et al. v. ALBANY WAREHOUSE COMPANY et al.
    (418 SE2d 130)
   Birdsong, Presiding Judge.

Appellants brought suit against appellees in Calhoun County seeking damages in a tort action averred to have occurred in said county, due to damage to a peanut crop allegedly caused by defective insecticide and herbicide purchased from appellees Helena and Albany Warehouse Company. The complaint averred that Helena was a foreign corporation, registered to do business in Georgia, with an office and place of business in Calhoun County. By way of responsive pleadings, Helena denied having an office and place of business in Calhoun County. Helena then filed a motion to dismiss or transfer because of improper venue. The trial court found that Helena did not have “an office and transact business in Calhoun County as contemplated in OCGA § 14-2-510 (3)”; the trial court transferred the case to the Dougherty Superior Court noting that Helena had an office and place of business there and that Albany Warehouse is a' Dougherty County, Georgia, corporation. Appellants assert the trial court erred in finding Helena did not have an office and transact business in Calhoun County for purposes of establishing venue there, and that venue in Calhoun County was proper, based on Scott v. Atlanta Dairies Coop., 239 Ga. 721 (238 SE2d 340) and Musgrove v. Kirksey Ford Sales, 159 Ga. App. 276 (283 SE2d 292). Held:

1. OCGA § 14-2-510 (b), the appropriate venue statute pertinently provides: “For the purpose of determining venue, each domestic corporation and each foreign corporation authorized to transact business in this state shall be deemed to reside: (1) For purposes of proceedings generally, in the county where its registered office is maintained, or if the corporation fails to maintain a registered office, it shall be deemed to reside in the county in this state where its last named registered office or principal office, as shown by the records of the Secretary of State, was maintained ... (3) For purposes of proceedings for damages because of torts, wrong, or injury done, in the county where the cause of action originated, if the corporation has an office and transacts business in that county. . . .”

“ ‘A preliminary hearing over defenses of lack of jurisdiction over the person or subject matter and improper venue whether made in a pleading or by motion may be heard and determined before trial on the application of any party. [Cits.] At such hearing factual issues shall be determined by the trial court.’ ” (Emphasis supplied.) Montgomery v. USS Agri-Chemical Div., 155 Ga. App. 189, 190 (1) (270 SE2d 362). Factual determinations of the trier of fact will be reversed only where the evidence demands a contrary finding, and when the trial judge conducts a hearing on a motion to dismiss or transfer for improper venue, his findings, as a trier of fact, are tested by the any evidence, rule. Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288-289 (322 SE2d 900). In this case, the trial court did not enter separate findings of fact and conclusions of law, but did enter a mixed ruling of law and fact “that Helena Chemical Company does not have an office and transact business in Calhoun County as contemplated in OCGA § 14-2-510 (3).”

2. Appellees filed an affidavit of their corporate credit manager conceding Helena, a foreign corporation, was registered'to transact business in Georgia with its registered agent located in Bibb County; denying that Helena had an office or place of business in Calhoun County; and, admitting that it does have a sales office located in Dougherty County and that the products purchased from Helena were obtained from that sales office. Further, the record reflects that Helena did not rent the building Mac Grain Company was using to warehouse Helena’s chemicals in Calhoun County, had no sign displayed at that office, had no telephone listed under its name in Calhoun County, and had no permanent employees on said warehouse premises.

Helena entered into an agreement for certain Mac Grain services, captioned “Warehouse and Consigned Goods Agreement.” Helena contends this agreement basically is an agreement for a line of credit. The agreement specifies that Mac Grain Company (therein referred to as Warehouse Company) was Helena’s agent for purposes of delivering certain products to the persons designated by Helena, in the manner directed by Helena, and at a price established by current Helena price lists. The agreement also specified the manner and terms under which products could be delivered, and required Mac Grain to render certain periodic stock reports regarding deliveries made and information as to products sold and the balance of products on hand.

By way of deposition, Lester McNair testified he owns 100 percent of the stock in Mac Grain Company, also referred to as Warehouse, where he warehouses chemicals for Helena. Helena puts its agricultural chemicals “in stock at [McNair’s] place of business and [McNair has an] agreement with [Helena] where customers pick them up and they do the billing and all that kind of thing.” Although McNair has a $200,000 line of credit with Helena, “you can put most of that [$200,000 worth of Helena Products] on a pickup truck,” and the chemical inventory located at the warehouse is owned by Helena notwithstanding the credit line. When a Helena-approved credit customer obtains Helena chemicals from the Mac Grain Company, a Helena invoice is alway&xused and McNair makes out the bill and the customer signs it. Mac Grain Company gets a check from Helena, although the individual employees of Mac Grain are paid by Mac Grain. Mac Grain is the lessee of the building used for warehousing chemicals. Helena runs an ad in the local papers, contemporaneously with the annual horse show, advertising “Helena Chemical Company with facilities at Mac Grain Company [located in Calhoun County] and Curry Farm Supply [located in Randolph County].” If there is an outstanding local account, Helena contacts McNair who does the collecting on behalf of Helena; McNair also makes occasional deliveries of. chemicals to customers for Helena. Approved credit customers make payments for chemicals sold on credit both to McNair or to Helena; these checks are made out to Helena. A delivery truck from Helena, and bearing the Helena name, comes back and forth to Mac Grain daily and the checks are sent back with the driver. Once a month employees from Helena come to Mac Grain to inventory chemicals. Mac Grain is used as a “middle man” or as “the go-between, between Helena and the farmer.” Except for McNair himself, who as sole owner of Mac Grain is compensated indirectly by Helena’s payment of a percentage of the gross profits to Mac Grain, Helena has no employees who work steadily at the Mac Grain location. McNair gets all of the chemicals and some of the seeds Mac Grain sells from Helena. But Helena sells its goods to third persons who then obtain the goods from McNair. On limited occasion when someone has not been given a line of credit and has been placed on the Helena-approved customer credit list, McNair will of his own volition extend credit and sell Helena items to them. In these instances, it is McNair or Mac Grain who becomes directly responsible for paying these credit sales to Helena and not the customer. Helena does not pay rent on the building; however, it assumes responsibility to obtain insurance protection over the amount of $10,000 with Mac Grain obtaining the first $10,000 insurance protection. Although McNair has no authority to make expenditures for Helena without prior approval, he apparently can call and get approval when appropriate, such as to buy a hog for the market hog show. It is estimated that if Helena did not use Mac Grain’s facilities its sales would be cut by approximately two-thirds in that area. And in the spring of 1990, Helena had between $250,000-$500,000 in chemicals in the warehouse. McNair considers himself to be an agent of Helena, and this is not inconsistent with the “Warehouse and Consigned Goods Agreement” entered between the parties. McNair hosts some promotional meetings for Helena at the Mac Grain Company; however, the manufacturers and not Helena pay for these events. The Helena sales representative visits Mac Grain Company on his own volition for company purposes at least once a week and usually twice a week or more. In his supporting affidavit, McNair averred inter alia that he is a commissioned agent of Helena, has operated what is known as a depot or warehouse for Helena since 1985, and operated this facility at all times during the year 1990.

We find, contrary to Helena’s contention, that this case is not controlled by Barrow, supra. In Barrow a significant factor was that the agreement did not make either party an agent or legal representative of the other for any purpose whatsoever. Id. at 288. In the case sub judice, the agreement expressly made Mac Grain an agent, at least for purposes as above discussed.

The term office as used in OCGA § 14-2-510 (b) includes any place where a particular kind of business is transacted or a service is supplied by a corporation, and an office can be operated without being open (and thus virtually being unknown) to the public. Barrow, supra at 288; Musgrove, supra at 277-278. In this regard, the agreement expressly provided that Mac Grain “shall perform certain services for Helena in accordance with the terms and for the consideration set forth herein.” (Emphasis supplied.) And, the agreement thereafter provided for the appointment of Mac Grain as an agent of Helena to facilitate the accomplishment of certain of the specified services. Moreover, although Helena maintained a significant degree of control over its agent by the detailed instructions contained in the agreement, detailed billing procedures, sales representative visits, monthly inventory, and in retaining certain authority to approve expenditures by its agent, this degree of control is entirely consistent with the operation of an “office” within the meaning of Scott, supra, and Musgrove, supra.

Although the cases relied upon by appellants, Scott, supra, and Musgrove, supra, also have some dissimilarities of fact with this case, we nonetheless find the rationale therein persuasive; and, applying the standard of review in Division 1 above, we conclude that the evidence of record demands a contrary finding as to the mixed question of law and fact concerning the existence of venue. Compare Chrysler Credit Corp. v. Brown, 198 Ga. App. 653 (2) (402 SE2d 753). “ ‘The mere fact that the corporation does not maintain an office in [Calhoun] County with a desk and an iron safe and other articles usually found in an office of that character is immaterial. Indeed, we are not prepared to say that it would be necessary to have even a room in a house occupied by an agent of the corporation. If a corporation has a place where its business is being carried on, and has an agent in charge of it, performing such acts as are necessary in carrying on its business, it has an office and place of business within the meaning of the statute.’ ” Musgrove, supra at 278.

Decided April 8, 1992.

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

Hall, Bloch, Garland & Meyer, Benjamin M. Garland, Landau, Davis & Farkas; Edmund A. Landau III, for appellees.

Judgment reversed.

Beasley and Andrews, JJ., concur.


text:
    A92A0015.
    COX v. THE STATE.
    (418 SE2d 133)
   Pope, Judge.

Defendant Rochelle Cox appeals her conviction by a jury of theft by shoplifting.

On November 30, 1990, defendant and two other women allegedly shoplifted numerous items of clothing with a value of $174.81 from a Sears Department Store in Valdosta. Defendant was indicted on February 2, 1991, for theft by shoplifting and on February 14, 1991, signed a Waiver of Arraignment and Plea of Not Guilty. On March 5, 1991, defendant filed numerous pretrial motions along with a general demurrer alleging that the indictment failed to describe with the required specificity the property stolen from the store. The State conceded defendant’s demurrer, and defendant was re-indicted on the same charges in a more specific indictment filed on May 13, 1991. Defendant signed a second Waiver of Arraignment and Plea of Not Guilty on May 17, 1991, but did not file pretrial motions in the second criminal proceeding.

The trial on the second indictment commenced on July 2, 1991. After a jury was selected, defendant moved to dismiss the second indictment on the ground that a nolle prosequi had not been entered in the first proceeding prior to the re-indictment of defendant and commencement of trial thereon. The State immediately moved to enter a nolle prosequi in the first proceeding, which motion was granted by the trial court. Defendant’s motion to dismiss was thereafter denied. After the jury was sworn, the case proceeded to trial. Defendant was convicted of shoplifting and sentenced to four years probation. On appeal, defendant raises as her sole enumeration of,error, the trial court’s refusal to dismiss the second indictment.

Decided April 9, 1992.

Edith M. Edwards, for appellant.

H. Lamar Cole, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Defendant first claims that the trial court erred in failing to grant her motion to dismiss because OCGA § 9-2-5 prohibits the State from prosecuting two proceedings for the same offense at the same time. OCGA § 9-2-5, however, is part of the Civil Practice Act and does not apply in criminal proceedings.

Defendant next claims that she was placed in jeopardy more than once for the same offense in violation of the 1983 Constitution of the State of Georgia. “[I]n a criminal proceeding, the pendency of a former indictment for the same offense is no ground for a plea in abatement or in bar, although the accused may have been arraigned thereon and have filed a plea .... [W]here several indictments for the same offense are pending against the same person, it is immaterial upon which he is first tried.” (Punctuation and citations omitted.) Hobbs v. State, 229 Ga. 556, 557 (2) (192 SE2d 903) (1972). Moreover, a nolle prosequi was entered in the first proceeding before the second indictment was submitted to the jury. Thus, this enumeration is without merit. Bowens v. State, 157 Ga. App. 334 (277 SE2d 326) (1981).

We reject defendant’s last argument that she suffered harm as a result of the prosecuting attorney’s failure to enter a nolle prosequi in the first proceeding prior to her re-indictment for the same offense. Defendant alleges she did not begin her defense of the second proceeding, including the filing of pretrial motions, because she was waiting for notification that the first proceeding had been dismissed in accordance with OCGA § 17-8-3. However, the transcript reveals that defendant knew that the State had conceded her general demurrer to the first indictment, knew that she had been re-indicted for shoplifting, knew that pretrial motions in the second proceeding were due by June 4, 1991, and apparently chose not to renew her pretrial motions as part of her defense strategy. Under these circumstances, we find the trial court did not err in denying defendant’s motion to dismiss.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


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    A92A0031.
    GAY et al. v. FRANCHISE ENTERPRISES, INC.
    (418 SE2d 135)
   Pope, Judge.

This case arises out of an altercation at Hardee’s Restaurant in Dublin, operated by defendant Franchise Enterprises, Inc. Plaintiffs Ronnie and Janice Gay are husband and wife. According to the evidence of record, on the evening of October 21, 1987 they went inside the restaurant, placed an order at the counter and sat at a table in the dining area of the restaurant while they waited for their order to be prepared. A group of young men sitting near them were talking loudly and using profanity and Mr. Gay asked them to “watch [their] language.” The young men became even louder and responded that they could say what they pleased.

Mr. and Mrs. Gay rose from their table to leave and one of the men stepped in front of Mr. Gay, got “in his face” and blocked the couple’s way out of the restaurant. Mrs. Gay called to a restaurant employee behind the counter and asked her to call the police. Although Mrs. Gay said the employee took no immediate action, plaintiffs admit the police did come to the scene and they assume the restaurant employees called them. Mr. Gay admitted he shoved the man who had blocked his way and the man started toward him brandishing his fist. A fight broke out and several of the young men attacked Mr. Gay, who suffered a broken jaw and other injuries as a result of the fight. When Mrs. Gay came to her husband’s rescue, she was also beaten.

Plaintiffs filed a complaint against the restaurant and the man who allegedly started the fight, although only the restaurant answered the complaint. Plaintiffs allege that the restaurant, through its agents and employees, had knowledge of prior disturbances at the restaurant and failed to take reasonable care to warn and protect plaintiffs from the known danger of assault by third persons. The trial court granted summary judgment to defendant restaurant and plaintiffs appeal.

This case is governed by the holding in Grandma’s Biscuits v. Baisden, 192 Ga. App. 816 (386 SE2d 415) (1989). In that case, we held that a landowner is generally under no duty to anticipate a criminal assault upon an invitee by a third party unless the owner was on notice of such danger, and evidence of prior criminal acts is admissible to establish such notice. In Grandma’s Biscuits, the plaintiff, who had been shot by an unknown assailant while a patron at defendant’s restaurant, submitted a police computer printout showing various criminal offenses had been reported at the premises in question. None of the offenses involved a shooting, however, and only one, occurring five months prior to plaintiff’s injury, had involved an assault. Even the report of the assault did not indicate whether it involved a patron or whether it occurred inside or outside the restaurant. Thus, we concluded that it did “not establish the occurrence of a similar crime at the restaurant which would have served to place the appellant on notice that its patrons were exposed to an unreasonable risk of danger from criminal assault.” Id. at 817-818. Consequently, we ruled that the defendant restaurant was entitled to summary judgment.

Decided April 9, 1992.

J. Stanley Smith, Jr., for appellants.

Martin, Snow, Grant & Napier, William H. Larsen, Jay C. Traynham, for appellee.

In the case at hand, plaintiffs submitted the affidavit of a police officer who did not attest that the affidavit was based upon his personal knowledge, but only that the facts contained therein were “true upon his personal belief.” The affidavit stated that the officer was aware, and it was common knowledge at the police department, that both before and after the incident complained of in plaintiffs’ complaint the Dublin Police Department had, on many occasions, received calls to respond to “altercations, loitering, and other breaches of the peace” at the restaurant. He stated that incident reports exist concerning certain of the complaints investigated at the restaurant, but no copies of reports were submitted into evidence. Even if the affidavit provided competent evidence of previous incidents at the restaurant, none of the incidents was shown to involve criminal attacks upon patrons of the restaurant. Thus, the affidavit was insufficient to establish the essential element of defendant’s knowledge of prior substantially similar incidents sufficient to place defendant on notice of a danger to plaintiffs. See Washington Rd. Properties v. Stark, 178 Ga. App. 180 (342 SE2d 327) (1986) (evidence of two previous robberies at the front desk of a hotel did not establish notice to the innkeeper of a danger of personal attack upon guests); Arnold v. Athens Newspapers, 173 Ga. App. 735 (1) (327 SE2d 845) (1985) (evidence of three prior burglaries on the premises did not establish notice of a danger of armed robbery); Tolbert v. Captain Joe’s Seafood, 170 Ga. App. 26 (2) (316 SE2d 11) (1984) (evidence of one prior incident of a crime against property in a restaurant parking lot did not establish notice to the owner of the danger of personal attack upon patrons leaving the restaurant).

The trial court did not err in granting defendant’s motion for summary judgment because defendant showed “that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of [plaintiffs’] case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


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    A92A0078.
    DANIELS v. THE STATE.
    (418 SE2d 137)
   Johnson, Judge.

Larrice Daniels (Daniels) and his stepfather James Nolan Partridge (Partridge) were indicted for malice murder in connection with the shooting death of Eric McDowell (McDowell). Daniels was convicted of voluntary manslaughter. He brings this appeal from the denial of his motion for new trial.

On the afternoon of April 5, 1990, Partridge, a resident of Perry Homes in Atlanta, went to play cards with several of his neighbors at a table set up outside one of the apartments. Ms. Tarhoney Winfrey (Winfrey) stated that she did not want Partridge to play because he was a “sore loser.” She also called him a “sissy bitch” several times, despite his having told her to stop. Partridge then slapped her with the cards he was holding. Winfrey went to get a knife, but was distracted by a friend who convinced her to go to the store with her to buy beer. On the way back from the store, Winfrey encountered her boyfriend, McDowell, who was told of the incident and who approached Partridge to talk about it. Partridge was clear about not wanting to discuss it further. At that point, Winfrey threw a full can of beer at Partridge which hit him in the face. A fight broke out between Partridge and McDowell. McDowell seemed to have gotten the better of Partridge, who then yelled to his stepson, Daniels, to go and get his gun.

McDowell ran off, pursued by Partridge. McDowell tripped, and was on the ground when Daniels appeared with a nine millimeter semi-automatic handgun. McDowell was shot twice at close range as he lay on the ground. The only facts in dispute are whether Partridge fired both shots, or if Daniels shot first and then handed the gun to his stepfather to fire the second. McDowell died immediately.

1. Daniels contends that the trial court erred in refusing to allow the defense to present evidence of a prior inconsistent statement made by one of the State’s witnesses to a private investigator retained by the defense. At trial Elantria Tate testified in detail about the shooting. She admitted that prior to trial she was interviewed by a defense investigator and signed a statement he had prepared. She also testified that her child ran off during the interview and that she had ended their discussion to find him. Defense counsel was permitted to cross-examine Ms. Tate about the statement, but did not attempt to show her the summary at trial or to impeach her testimony based upon it. Later in the trial, the defense made a proffer of the statement through the testimony of Marvin Dixon, the defense investigator. The statement read: “This witness did not see the actually [sic] shooting.” The court properly excluded the statement.

It is clear that OCGA § 24-9-83 requires that in order to impeach a witness with previously given contradictory statements, the written statement must be shown or read to the witness. This was not done during her testimony. Further, when a witness admits making prior inconsistent statements, he has impeached himself and it is not error to exclude the statements themselves from evidence. Dickey v. State, 240 Ga. 634, 639 (3) (242 SE2d 55) (1978); Harden v. State, 166 Ga. App. 536, 537 (3) (304 SE2d 748) (1983); Patrick v. State, 150 Ga. App. 266 (1) (257 SE2d 356) (1979). In this case, the witness admitted making the statement and was available for cross-examination on the subject of its contents. Therefore, it was not error for the trial court to refuse to admit the statement itself.

Decided April 9, 1992.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Charles W. Smegal, Nancy A. Grace, Assistant District Attorneys, for appellee.

2. Daniels’ second and final enumeration of error asserts that the evidence presented at trial was insufficient to support the jury’s verdict, and therefore the trial court erred in failing to grant his motion for a new trial. Reviewing the evidence in the light most favorable to the jury’s determination, we conclude that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


text:
    A92A0085.
    VINCENT v. THE STATE.
    (418 SE2d 138)
   Pope, Judge.

Defendant Myra Smith Vincent and her sister Mattie Smith were charged with aggravated assault, kidnapping, armed robbery, and possession of a firearm during the commission of the other offenses named in the indictment. Defendant’s sister pled guilty to all charges. Defendant was tried before a jury and acquitted of aggravated assault and armed robbery but convicted of kidnapping and possession of a weapon during the commission of a felony. She appeals her convictions.

The evidence adduced at trial reveals that the victim, Albert Gross, had known defendant and her sister for about 15 years and had gone to school with the sisters’ nephew. On February 23, 1990, at approximately 5:00 p.m., the victim drove over to the sisters’ home in DeKalb County in his truck to visit them. Immediately after Gross was let into the house by Mattie Smith, she fired two shots at the victim both of which hit him in the neck. The victim fell to the floor. Mattie Smith went through the pockets of his shorts and told the victim that she was sorry it had to be him, but the sisters were late with their rent and were going to be evicted from their home. The victim was then wrapped in a blanket and dragged into a second room in the house. Although the victim was in shock, he remained conscious throughout the remainder of his ordeal. As time passed, the victim heard the voices of Mattie Smith, defendant and the sisters’ mother in the house.

While he lay on the floor in the second room, the victim was shot a third time. He did not see who fired the gun. Sometime thereafter, he was shot a fourth time. This time when he looked up from the floor, he saw the defendant walk by the door of the room in which he lay. Over a period of many hours, the sisters periodically came into the room where the victim was lying and checked him to see if he had passed out. Each time the victim pled with the sisters to take him to the hospital. Apparently, this went on for hours. At one point the victim pulled himself to his feet and ran to the sisters’ mother begging her to get help, but the sisters threatened to kill the victim and forced him back into the room. Finally, at some early hour in the morning, the sisters decided to take the victim out of the house. Mattie Smith tied the victim’s hands with cord, and the sisters attempted to carry him out to his truck. The victim, however, was too heavy so the sisters discussed the possibility of getting another man to help them. Gross, believing his only chance of survival was to get away from the house, encouraged the sisters to drag him outside the house, where he used his arms to help the sisters pull him into the passenger side of his truck. Defendant drove the truck for a long time while the victim, who lay on the floor of the truck with his hands tied, pled for his life. Eventually, defendant stopped the vehicle on a highway in Douglas County, and the sisters rolled the victim out of the truck and down an embankment. Mattie Smith walked down the hill and shot the victim two more times at close range. After the sisters drove off in the truck, the victim managed to pull himself up the embankment to the highway, where a passing truck driver noticed him and called an ambulance.

Mattie Smith testified during trial that the victim had come to her house to provide her with cocaine, that he was hostile, and that she “flipped out” and attacked him while she was under the influence of drugs. She further testified that defendant was not at home during the shootings and never held the gun or participated in the aggravated assault or armed robbery. She did admit, however, that defendant drove the truck and the victim to Douglas County. The victim testified that although he never saw defendant with a gun in her hand, there was no doubt in his mind that she was involved in the crimes that were committed against him. During trial, most of the victim’s testimony was corroborated by physical evidence and the testimony by the sisters’ landlord.

1. Defendant first contends the trial court erred in not giving charges on lesser included offenses of the offense of possession of a firearm during the commission of a crime, specifically a charge on the offense of “pointing or aiming a gun or pistol at another” person. OCGA § 16-11-102. “Any person concerned in the commission of a crime is a party to it and may be convicted as a principal. [Cits.] An aider or abettor is such a person, as is one who encourages another to commit the crime. [Cit.] The evidence was sufficient to establish that [defendant] was concerned in either or both of these ways in the commission of the crime of [her sister’s] actual possession of the firearm during commission of the [aggravated assault, kidnapping, and] armed robbery.” Wilcox v. State, 177 Ga. App. 596, 597 (340 SE2d 243) (1986). Therefore, the trial court correctly charged the jury on the offense of possession of a firearm during the commission of a crime.

Furthermore, “ [i]t is not error for the trial court to refuse to give a lesser included offense charge when the evidence does not reasonably raise the issue. [Cit.]” Alvarado v. State, 194 Ga. App. 781, 782 (391 SE2d 668) (1990). In this case, the evidence adduced at trial does not support a charge on pointing or aiming a gun or pistol at another because neither the State nor the defense presented evidence that defendant, at any time, pointed or aimed a gun or pistol at the victim.

We also note that defendant made no request for a charge on any specific crime as a lesser included offense of possession of a firearm during the commission of a crime. The record reveals that defense counsel submitted a request to charge which provided: “Charge on lesser included offenses of (a) Armed Robbery, (b) Kidnapping, (c) Aggravated Assault and (d) Possession of a firearm. . . .” But defendant never specified what he contended those lesser included offenses to be. Failure to charge on a lesser included offense is never error absent a written request to do so. Emmett v. State, 199 Ga. App. 650 (2) (405 SE2d 707) (1991). Because defendant never made a written request to charge on the offense of “pointing or aiming a gun or pistol at another person,” the trial court did not err in failing to give such a charge. See French v. State, 199 Ga. App. 873, 874 (1) (406 SE2d 526) (1991).

2. Defendant next alleges that the evidence was insufficient to support the verdict of guilty of kidnapping and contends that, at the most, the evidence establishes the crime of false imprisonment. “The essential difference between the two offenses is that kidnapping involves the additional element of asportation. See OCGA §§ 16-5-40 (a); 16-5-41 (a).” Raysor v. State, 191 Ga. App. 422, 423 (2) (382 SE2d 162) (1989). The transcript reveals that defendant assisted her sister carry and lift the victim into his truck and drove the truck to Douglas County where his body was dumped. We find that a rational trier of fact could have found defendant guilty beyond a reasonable doubt of assisting her sister in the kidnapping of the victim. Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). “We reject as too unreasonable to warrant serious consideration the [defendant’s] contention that the jury might have found [her] guilty of the lesser offense based on a determination that the victim had accompanied [her] voluntarily [into the truck by virtue of his helping pull his bullet-riddled body into the vehicle.]” Raysor v. State, supra at 423.

Decided April 9, 1992.

Hurl R. Taylor, Jr., for appellant.

Robert E. Wilson, District Attorney, Robert W. Houman, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.