author: Johnson, Presiding Judge.

text:
    A01A1443.
    GRIGGS v. THE STATE.
    (554 SE2d 569)
   Johnson, Presiding Judge.

Michael Griggs, Jamoche Battles, Charles Hithe and Demarius Wiley were jointly indicted for the armed robberies of three employees of a Blockbuster Video store in Douglas County on September 21, 1998. Griggs was tried alone on the charges and was convicted of all three armed robbery counts. He appeals, challenging the trial court’s rulings admitting evidence of his statement to police and evidence of a similar transaction. The challenges are without merit, and we therefore affirm Griggs’ convictions.

At trial, the state presented numerous witnesses, including the testimony of Griggs’ co-indictee Wiley. Viewed in the light most favorable to support the verdict, the state’s evidence shows that on September 21, 1998, Griggs, Battles, Hithe and Wiley drove to a Blockbuster Video store in Douglasville. Griggs and Battles went into the store, while Hithe and Wiley waited outside in the car. Both Griggs and Battles were carrying guns, and Battles demanded that the three store employees give him money. The employees gave Battles money from the store register. Griggs and Battles then left the store, got in the car with Hithe and Wiley and drove away from the scene.

In addition to the evidence of the indicted robbery, the state introduced evidence of three similar transactions. The state proved that on September 20, 1998, the same four men drove to a Holiday Inn in Fulton County. Griggs and Battles entered the Holiday Inn, while Hithe and Wiley waited in the car. Griggs pulled out a gun as Battles jumped over the front counter and began taking money from the clerk. After stealing about $650, Griggs and Battles fled to the car and left the scene with Hithe and Wiley.

The state further proved that in the early morning hours of September 22, 1998, the same four men committed two armed robberies in Coweta County. They first robbed another Blockbuster Video store, and then an hour later they robbed a Chevron gas station.

The police identified the car used in the robberies and eventually arrested the four men. Griggs signed a waiver form and gave a voluntary statement to the police. In the statement, Griggs admitted that on September 21 he had gone into the video store with Battles, that he had carried a shotgun and that he had cocked the gun.

Griggs testified at trial, denying that he committed the September 21 video store robbery. He claimed that he was at his grandmother’s birthday party and then was at home watching a televised football game on that date. Griggs also denied admitting to the police that he had entered the video store with a shotgun.

Thereafter, the jury returned its verdict, finding Griggs guilty of the armed robberies of the three video store employees. Griggs appeals from the judgments of conviction entered on the verdict.

1. Griggs complains that the court erred in admitting similar transaction evidence of the Holiday Inn armed robbery because the state failed to show that he was the perpetrator of that crime, that it was sufficiently similar to the indicted offense or that its relevance outweighed its prejudice. The complaints are specious.

Both the victim of the Holiday Inn armed robbery and coindictee Wiley identified Griggs as one of the perpetrators of that crime. Thus, contrary to Griggs’ claim, the state showed that he committed the similar transaction.

Moreover, the Holiday Inn armed robbery is virtually identical in all material respects to the indicted Blockbuster armed robbery. In both instances, Griggs and Battles entered the businesses while Hithe and Wiley waited outside in the car, Griggs brandished a gun as Battles took money, and Griggs and Battles then fled from the businesses. Additionally, the two crimes took place on successive days, and both occurred in the metropolitan Atlanta area.

The similar transaction evidence was highly relevant. Griggs presented an alibi defense. Thus, the probative value of the similar transaction evidence to help identify Griggs as the perpetrator of the indicted offense outweighed any prejudice. The trial court committed no error in allowing the evidence.

Decided August 30, 2001.

Monica T. Myles, Virginia W. Tinkler, for appellant.

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

2. Griggs argues that the court erred in finding that his statement to the detective was freely and voluntarily given. Undermining Griggs’ argument is his signature on a waiver form indicating that he was informed of his rights to remain silent and to have a lawyer, that he wanted to waive those rights and make a statement, that no threats or promises were made to him, that no pressure or coercion was used against him and that he was not under the influence of any drugs.

Moreover, a detective testified that Griggs was 20 years old at the time of the statement, that Griggs had a high school degree and had attended college, that Griggs was read his rights, that Griggs appeared to understand his rights and agreed to waive them, that the interview lasted about an hour, that Griggs asked the detective to write down the statement admitting his involvement in the armed robbery, that Griggs then refused to sign the written statement and asked for an attorney and that the detective therefore ended the interview.

Under all the circumstances surrounding Griggs’ interview and statement, the trial court did not err in finding that Griggs gave the statement freely and voluntarily.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        See Belton v. State, 270 Ga. 671, 674 (5) (512 SE2d 614) (1999); Parks v. State, 210 Ga. App. 796, 797 (1) (437 SE2d 651) (1993) (victim identified defendant as perpetrator of similar crime).

       See Byrd v. State, 236 Ga. App. 485, 487 (5) (512 SE2d 372) (1999).

       See Shuman v. State, 244 Ga. App. 335, 337 (3) (535 SE2d 526) (2000).

       See Gulley v. State, 271 Ga. 337, 339-340 (2) (519 SE2d 655) (1999).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A1010.
    BILLINGS v. THE STATE.
    (558 SE2d 10)
   Ruffin, Judge.

A jury found Cara Billings guilty of possessing cocaine. On appeal, Billings contends that the trial court erred in allowing the State to make inappropriate comments during opening statements; limiting his cross-examination of a witness; hampering his ability to impeach a witness; and failing to give a written request to charge the jury. For reasons that follow, we affirm.

The record demonstrates that agents from the Hall County Multi-Agency Narcotics Squad (MANS) received complaints that drugs were being sold from an apartment complex. On June 11,1999, the agents placed the complex under surveillance. The agents saw Billings with Lorenzo Young, who had several prior convictions for drug sales. Within twenty minutes, the agents observed the two men engaged in what the agents believed to be two drug transactions.

Following the second transaction, Billings placed a cigarette pack on the ground. According to Agent Marcus Neville, it is not uncommon for drug dealers to hide their drugs nearby rather than keeping the drugs on their person. The agents then approached Billings and discovered that the cigarette pack contained six pieces of crack cocaine. Billings was arrested and charged with possession of cocaine with intent to distribute. In a statement Billings gave to police, he claimed that the cigarette pack, which he thought contained marijuana, belonged to Young. However, Billings also acknowledged that he knew the pack contained crack cocaine.

Prior to trial, Young pled guilty to possessing cocaine with intent to distribute, and he testified for the State. According to Young, Billings knew that the cigarette pack contained cocaine.

Based upon this evidence, the jury found Billings guilty of possessing cocaine.

1. In his first enumeration of error on appeal, Billings contends that the trial court erred in permitting the prosecutor to make “improper and inflammatory argument” during opening statements. Specifically, Billings objects to the prosecutor’s opening by telling jurors, ‘Welcome to your part in the war on drugs.”

“The purpose of the opening statement is to give the jury and the court an outline of the evidence that the party anticipates presenting.” It is not time for an attorney to argue the case. Informing jurors during opening statements that they are participating in the war on drugs serves no legitimate purpose, and such statement may serve “to inflame the minds of the jury against the defendant.” Accordingly, we agree that the trial court abused its discretion in failing to sustain Billings’ objection to the prosecutor’s comment. Nevertheless, we do not agree that reversal is required.

Here, the record provides ample evidence that Billings was guilty of possessing cocaine, including evidence that two MANS agents saw him with the cigarette pack that contained the cocaine and that Billings acknowledged holding the cigarette pack. Under these circumstances, we are persuaded that any error on the part of the trial court was harmless.

2. Billings asserts that the trial court erred in improperly limiting his cross-examination of Young. While Young was on cross-examination, Billings’ attorney asked him to “[t]ell the jury where you bought the cocaine from that you were selling.” The State objected to the question on relevance, and the trial court sustained the objection. On appeal, Billings asserts that “the trial court abused its[ ] discretion by unfairly limiting the scope of [his] cross-examination” of Young. We disagree.

Every defendant has the right to a thorough and sifting cross-examination of witnesses. “However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused.” We fail to see how the name of the individual who sold Young the cocaine is relevant to any issue at trial. To the extent that Billings suggests he was attempting to test Young’s memory, accuracy, and/or veracity, this argument lacks merit. As Billings made no proffer that he actually knew the name of the individual who sold Young the drugs, Young’s answer would not have provided jurors any insight into Young’s memory or veracity. Under these circumstances, the trial court did not abuse its discretion in limiting Billings’ cross-examination of Young.

3. Prior to Young’s guilty plea, the State provided notice of its intent to introduce evidence of similar transactions against Young should the case against him go to trial. During Billings’ cross-examination of Young, Billings attempted to tender the notice into evidence. According to Billings, he sought to introduce the notice against Young to establish Young’s guilt and argue that, since no such notice was introduced against Billings, it was less likely that he was guilty. On appeal, Billings challenges the trial court’s decision to exclude the exhibit.

“As a general rule, the admission of evidence is a matter resting within the sound discretion of the trial court, and unless an abuse of that discretion is shown, the court’s decision will not be disturbed.” In this case, the trial court permitted Billings to question Young extensively about his prior criminal convictions, and certified copies of his convictions were tendered. Thus, to the extent that Young’s criminal past was probative of Billings’ possible innocence, the evidence was before the jury. The actual notice of the State’s intent to introduce similar transactions against Young would have been largely cumulative, and a trial court does not abuse its discretion in excluding cumulative evidence.

Decided August 22, 2001

Reconsideration denied August 31, 2001

Summer & Summer, Daniel A. Summer, for appellant.

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

4. In his final enumeration of error, Billings contends that the trial court erred in refusing to give his requested jury charge on “mere presence,” which he contends was his sole defense. Initially, we note that “mere presence at the scene of the crime is not a recognized defense to a criminal charge. Rather, the rule that mere presence without more is insufficient to convict is really a corollary to the requirement that the state prove each element of the offense charged.”* Moreover, the record demonstrates that mere presence was not, in fact, Billings’ defense. Billings was convicted of possessing cocaine, and the two MANS agents saw Billings holding the cigarette pack that contained the cocaine. Although Billings asserted that he thought the cigarette pack contained marijuana, a belief that one possesses different contraband does not equate to mere presence. Thus, Billings’ mere presence was not an issue at trial, and a trial court does not err in refusing to give a charge that is not raised by the evidence.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       Although Billings had been indicted for possessing cocaine with intent to distribute, the jury acquitted him of this greater charge.

        Miller v. State, 243 Ga. App. 764, 766 (7) (533 SE2d 787) (2000).

       See id.; see also Watson v. State, 137 Ga. App. 530-531 (1) (224 SE2d 446) (1976), overruled on other grounds, Quick v. State, 139 Ga. App. 440 (228 SE2d 592) (1976).

        Watson, supra at 530 (1).

       Although Billings claimed, that he thought the pack contained marijuana, his statement was equivocal on this point. Moreover, Billings was present during two drug sales. Thus, the jury had abundant evidence to support the conclusion that Billings knew the cigarette pack actually contained cocaine.

        Hartry v. State, 270 Ga. 596, 599-600 (2) (512 SE2d 251) (1999).

       See OCGA § 24-9-64.

       (Punctuation omitted.) Stevens v. State, 213 Ga. App. 293, 294 (2) (444 SE2d 840) (1994).

        Griffin v. State, 243 Ga. App. 282, 285 (4) (531 SE2d 175) (2000).

       See Hammond v. State, 237 Ga. App. 238, 240 (3) (515 SE2d 183) (1999).

       (Punctuation omitted.) Key v. State, 226 Ga. App. 240, 244 (4) (485 SE2d 804) (1997).

       See Ellis v. State, 245 Ga. App. 807, 809 (3) (539 SE2d 184) (2000).


author: Barnes, Judge.

text:
    A01A1070.
    DAVIS v. THE STATE.
    (554 SE2d 583)
   Barnes, Judge.

After a negotiated guilty plea, Damon C. Davis appeals his conviction for armed robbery. He contends the trial court erred by denying his motion to dismiss the charge against him because the State violated his right to a speedy trial under the Interstate Agreement on Detainers (see OCGA § 42-6-20 et seq.) and also violated his constitutional right to a speedy trial. Because Davis’ guilty plea waived his right to appeal these issues, we affirm the judgment of the trial court.

Before trial, Davis moved to dismiss the indictments against him, asserting that he was not tried within 180 days after his request for final dispositions of all untried indictments, and the trial court denied the motion. Later, Davis filed a second motion to dismiss the indictment based on the State’s alleged violation of the Interstate Agreement on Detainers, but also adding the alleged violation of his constitutional right to a speedy trial.

When the case was called for trial, and while the trial court considered these motions, Davis announced that he would make a non-negotiated Alford plea. Later, however, he decided not to plead guilty.

Finally, after court reconvened to select a jury, the trial court gave Davis another opportunity to enter a plea, and Davis did so. In the course of the discussions, the prosecutor and the trial court both stated that, if Davis pled guilty, he would still be able to appeal his motions on the denial of his rights to a speedy trial. Davis then pled guilty. The trial court accepted the plea and sentenced him to eight years confinement to run concurrently with a sentence Davis was serving in Florida.

Subsequently, however, the trial court signed a certificate of immediate review as if Davis were to pursue an interlocutory appeal. Pretermitting whether Davis would have been authorized to file an interlocutory appeal at this point in the proceedings, he did not do so.

Instead, Davis filed a notice of appeal, as amended, directed to the Supreme Court, appealing the denial of his motions to dismiss the indictments based on the denial of his constitutional right to a speedy trial under the Interstate Agreement on Detainers. After determining that the issues raised were not within its appellate jurisdiction, the Supreme Court transferred the appeal to this court.

This court does not recognize conditional guilty pleas. In March 1994, we ended our experiment with those pleas and held that “[after July 9, 1994,] pleas in which the accused attempts to condition upon the preservation of the rights to raise non-jurisdictional errors by the trial court will not be considered by this court, and all the usual rules of appellate practice, including the waiver of errors by guilty pleas, will be applied.” Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994). This rule has been consistently applied since that time.

Decided August 31, 2001.

Linda W. Lyons, for appellant.

Paul L. Howard, Jr., District Attorney, Manubir S. Arora, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Accordingly,

having voluntarily entered a plea of guilty, [Davis] cannot raise as a defense his right to a speedy trial. Mason v. Banks, 242 Ga. 292 (2) (248 SE2d 664) (1978). Once a defendant solemnly admits in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. Addison v. State, 239 Ga. 622 (238 SE2d 411) (1977). An exception will only be made if the error goes to the very power of the State to bring the defendant into court. Id. at 624. See also Blackledge v. Perry, 417 U. S. 21 (94 SC 2098, 40 LE2d 628) (1974). No such situation is presented here.

Tutt v. State, 267 Ga. 49, 50 (472 SE2d 306) (1996). Therefore, Davis has waived these issues notwithstanding his conditional plea (Pirkle v. State, 240 Ga. App. 24, 26 (2) (522 SE2d 526) (1999); Barber v. State, 231 Ga. App. 176, 177 (2) (498 SE2d 758) (1998)), and the judgment of the trial court is affirmed.

Judgment affirmed.

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

       If trial courts wish to permit defendants to appeal pre-trial rulings, the procedures in OCGA § 5-6-34 (b) are available.

       No issue concerning the voluntariness of Davis’ guilty plea is before us, and we express no opinion on whether Davis would be authorized to challenge the voluntariness of his plea because we have rejected his conditional plea. See Wilson v. State, 246 Ga. App. 30 (539 SE2d 539) (2000).


author: Ellington, Judge.

text:
    A01A1132.
    HILL v. THE STATE.
    (554 SE2d 579)
   Ellington, Judge.

Fred Hill, Jr. appeals from his conviction for violating the Georgia Controlled Substances Act, OCGA § 16-13-30, and the denial of his motion for new trial. We find Hill’s contentions on appeal to be without merit and, therefore, affirm.

The record shows that Hill was arrested following a routine strip search upon his return to a diversion center after participating in a work release program. During the search, Hill emptied his pockets and removed his clothing. Hill picked up a deodorant container from among the contents of his pockets. The officer conducting the search examined the container and discovered cocaine concealed inside. At trial, Hill argued that the cocaine belonged to another resident at the center, someone whose name he could not recall and whom he was unable to identify. The officer testified, however, that when he confronted Hill with the cocaine, Hill adamantly refused to name or describe the resident to whom it allegedly belonged.

1. On appeal, Hill argues that the State failed to establish a complete chain of custody for the cocaine. The State presented evidence, however, of a chain of custody from the discovery of the cocaine through its analysis at the Georgia Crime Laboratory. On appeal, Hill does not identify any specific gaps in the chain of custody, simply arguing that the chain was not established beyond a reasonable doubt.

Where evidence of a fungible nature is introduced against a defendant, the State must show with reasonable certainty that the evidence is the same as that seized and that there has not been any tampering or substitution. The State, however, need not negate all possibility of tampering and need only establish reasonable assurance of the identity of the confiscated evidence.

(Citations and punctuation omitted.) Hester v. State, 187 Ga. App. 46, 47 (2) (369 SE2d 278) (1988). Further,

[i]n proving chain of custody, the State is not required to show that the substance was guarded each minute it is in one’s custody, and in the absence of a showing to the contrary, the chain is not thereby broken. In the absence of evidence of tampering with the substance the chain of custody has not been shown to be broken. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to its weight.

(Citations and punctuation omitted.) Roberts v. State, 232 Ga. App. 745, 748 (6) (503 SE2d 614) (1998). Having reviewed the evidence presented, we find that the State presented sufficient evidence to demonstrate the chain of custody of the cocaine.

2. Hill contends the trial court erred during sentencing in considering certified copies of three prior felony convictions, because the certified copies had not been provided to him before trial and were admitted without sufficient authentication.

OCGA § 17-10-2 (a) provides that in determining punishment, the trial court shall hear in aggravation only the evidence that “the state has made known to the defendant prior to the defendant’s trial.” See also OCGA § 17-10-7 (c) (recidivist statute). The record shows that the State served defense counsel with a “Notice of Intent to Introduce Evidence in Aggravation of Punishment” on February 26, 1998, before the jury was sworn. During sentencing, the court admitted certified copies of three prior felony convictions. We conclude that the trial court did not err in admitting this evidence. “This Court has previously held that notice received prior to the jury’s being sworn is sufficient to satisfy the requirement of the statute.” (Citation and punctuation omitted.) Davis v. State, 246 Ga. App. 877, 879 (3) (542 SE2d 626) (2000). See also Day v. State, 188 Ga. App. 648, 650-651 (8) (374 SE2d 87) (1988) (the failure to attach a certified copy of a prior conviction to a pre-trial notice of aggravation does not render it inadmissible at the sentencing hearing). Further, the certified copies were admissible pursuant to OCGA § 24-7-20 without further authentication. Accordingly, there was no error.

3. Hill contends his trial counsel was ineffective for failing to find and interview an unidentified man that allegedly gave him the deodorant container with the hidden cocaine that was found in his possession. He also argues counsel failed to investigate the accuracy of a prior conviction allegedly used to sentence him as a recidivist.

In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance was prejudicial to the defense. To meet the first prong of this test, a defendant must overcome the strong presumption that his counsel’s performance fell within a wide range of reasonable professional conduct and his counsel’s decisions were made in the exercise of reasonable professional judgment. The inquiry focuses on the reasonableness of counsel’s conduct from counsel’s perspective at the time of trial and under the circumstances of the case.

(Citations and punctuation omitted.) Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530) (1995).

(a) Although Hill claims on appeal that counsel should have searched for the unidentified man who gave him the deodorant container, Hill stated before trial that he was satisfied with counsel’s efforts in this case. He did not mention any dissatisfaction with counsel’s failure to search for this allegedly crucial defense witness. Further, at the motion for new trial hearing, counsel testified that Hill instructed him not to pursue the unidentified man who allegedly gave Hill the deodorant container, because Hill had demanded a speedy trial and the search would delay the trial. Counsel also testified that he had discussed with Hill the probability that, even if he was able to identify the man and bring him to trial as a witness, the man would deny ownership of the cocaine. Counsel testified that, based upon this concern, he decided to proceed with an “empty chair defense,” in other words, telling the jury that the person who committed the crime is not in the courtroom. Counsel’s strategic decision to proceed to trial without the testimony of the unidentified man, a decision made after consultation with Hill, is not subject to second-guessing by this Court. See Hall v. State, 243 Ga. App. 804, 806 (534 SE2d 196) (2000); DeYoung v. State, 268 Ga. 780, 786 (5) (493 SE2d 157) (1997). Further, this Court will not find ineffective assistance based upon the fact that Hill and his present counsel now disagree with this tactic. Williams v. State, 265 Ga. at 682 (1); Hall v. State, 243 Ga. App. at 806.

Decided August 31, 2001.

Axam, Adams & Secret, Herbert Adams, Jr., for appellant.

Daniel J. Porter, District Attorney, John S. Melvin, Assistant District Attorney, for appellee.

(b) Hill also argues that trial counsel was ineffective for failing to investigate a February 1981 habitual violator conviction allegedly considered during sentencing, claiming that counsel would have discovered that he had not been convicted of the felony. At the motion for new trial, however, Hill admitted that he did not know whether counsel, in fact, failed to investigate the accuracy of the certified conviction.

Further, as discussed in Division 2, supra, the record clearly demonstrates that the trial court considered only three prior felony convictions before sentencing Hill as a recidivist under OCGA § 17-10-7 (c). These convictions occurred in July 1981, March 1987, and January 1996. Hill does not challenge the accuracy of these three convictions. Under the circumstances, we find that counsel was not ineffective for failing to investigate the accuracy of a prior conviction that was not used at trial or for recidivist sentencing purposes.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A1242.
    BRYAN COUNTY v. YATES PAVING & GRADING COMPANY, INC.
    (554 SE2d 584)
   Johnson, Presiding Judge.

Bryan County and Yates Paving & Grading Company, Inc. entered into a written contract in which Yates agreed to construct and make improvements to public roads in a subdivision. After Yates began construction, the County ordered Yates to stop working and hired a third party to complete the project. Yates demanded arbitration as expressly provided for in the contract. On the day the arbitration hearing was to take place, however, the County withdrew from the proceedings. Contending that it did not have the requisite governmental authority to submit to binding arbitration proceedings, the County filed an action in superior court seeking a preliminary injunction, a stay of the arbitration proceedings, and a declaratory judgment. The superior court ruled in Yates’ favor and ordered arbitration. The County then filed an application for interlocutory appeal, which we denied. After a hearing, an arbitration panel awarded Yates $430,335 plus fees. The superior court entered an order confirming the award. The County appeals from that order.

The County claims that the trial court erred in declaring the arbitration clause valid and enforceable when the County lacked the authority to enter into binding arbitration. According to the County, it committed an ultra vires act in entering into binding arbitration on behalf of a political body, since the state legislature has not granted counties such authority.

It is true that a county can exercise only such powers as are conferred on it by law, and a grant of such power to the county must be strictly construed; and a county can exercise no powers except those that are expressly given or are necessarily implied from the express grant of such other powers. If there is a reasonable doubt as to whether it has a particular power, the doubt must be resolved in the negative. These principles, however, do not demand a holding in favor of the County.

OCGA § 32-4-42 provides (in relevant part) that, with respect to its county road system, unless otherwise expressly limited by law, a county’s powers include, but are not limited to: the authority to enter into contracts with any person for the construction, maintenance, administration, or operation of public roads or activities incident thereto; the power to provide for specifications and other things necessary in constructing and maintaining a county road system, or any activities incident thereto; and the authority to adopt and enforce rules and to perform all other acts which are necessary, proper, or incidental to the efficient operation and development of the county road system. Title 32 is to be liberally construed to this end: the efficient operation and development of the county road system. Furthermore, any power vested in or duty placed on a county but not implemented by specific provisions for the exercise thereof may be executed and carried out by a county in a reasonable manner subject to such limitations as may be provided by law.

Thus, the County is expressly authorized by law to enter into a contract for public roads, to do what is necessary, proper, or incidental to achieve the efficient operation and development of its roads, and to exercise its power to contract for roads in a reasonable manner. Considering the fact that (public policy favors the use of arbitration as a means of resolving disputes, the County’s agreeing to submit disputes regarding the construction contract to arbitration is a reasonable exercise of its powers. Moreover, the County’s authority to agree to arbitration is implied from the express grant of power to enter into road construction contracts. And, considering the statutory language that Title 32 is to be liberally construed, that a county’s road system contract powers are not limited to those listed, and because we have been shown no law expressly prohibiting a county from agreeing to arbitration in road system construction contracts, we hold that the County is authorized to consent to arbitration as a means of resolving road construction contract disputes. In fact, the County’s agreeing to submit disputes regarding a construction contract to arbitration (versus litigation) is a proper and reasonable means of assuring the efficient development of the public road system.

To support its argument to the contrary, the County points to specific provisions in the Official Code of Georgia that authorize arbitration in certain instances and maintains that, in the absence of a statute specifically enabling arbitration in this type of case, a county cannot submit to binding arbitration. This argument, however, is unpersuasive given Title 32’s express provision that a county has the power to enter into road construction contracts and the authority to exercise that power in a reasonable manner, unless otherwise expressly limited by law.

Decided August 31, 2001

Quillian, Loncon & Edwards, Abda L. Quillian, for appellant.

Childs & Lewis, Leonard W. Childs, Jr., W. Reeves Lewis, Jr., for appellee.

The County also relies on Local Division 732, Amalgamated Transit Union v. MARTA,* in which the Supreme Court concluded that the transit authority acted outside of its authority by submitting an agreement to arbitration. In that case, MARTA consented to submit to arbitration the terms and conditions of a new collective bargaining agreement with the transit workers’ union. The Supreme Court held that the transit authority was not authorized to submit this type of dispute to arbitration because it involved the formulation of new terms and conditions of employment; that function is an exercise in governmental decision-making, and an exercise of legislative authority which cannot be delegated.

This case is different. The County did not have the ability to unilaterally decide this dispute arising from an existing agreement it entered into with a third party. Thus, the arbitration provision in question does not constitute a delegation of the County’s own decision-making authority.

Inasmuch as the County did not exceed its authority in executing an agreement which provided for arbitration, the trial court did not err in holding that the arbitration clause was valid and enforceable.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Beazley v. DeKalb County, 210 Ga. 41, 43 (77 SE2d 740) (1953).

       Id.

       OCGA § 32-4-42 (1).

       OCGA § 32-4-42 (9).

       OCGA § 32-4-42 (10).

       Id.

       Id.

        Haynes v. Fincher, 241 Ga. App. 179, 181 (4) (525 SE2d 405) (1999).

       See OCGA §§ 36-71-10 (c) (a county impact fee ordinance may provide for resolution of fee disputes by arbitration); 48-5-24 (c) (1) (B) and 48-5-311 (f) (taxpayer not required to pay additional interest on unpaid taxes if, inter alia, the assessment is determined through arbitration); 48-8-89 (d) (3) (where county governing authority and political subdivisions are unable to agree on the use of certain taxes, they shall submit to alternative forms of dispute resolution); 36-70-25.1 (c) (if county and municipality cannot reach an agreement on a strategy for delivery of services, parties shall undergo some form of alternative dispute resolution).

       OCGA § 32-4-42.

       253 Ga. 219 (320 SE2d 742) (1984).

       Id. at 222 (3) (a), n. 1.


author: Smith, Presiding Judge.

text:
    A01A0939.
    SHERARD v. ALDRIDGE.
    (554 SE2d 590)
   Smith, Presiding Judge.

Calvin T. Sherard and Jacquelyn Amelia Aldridge both sought appointment as the personal representative of the estate of the decedent, Naomi Sherard Delcambre. Sherard is Delcambre’s brother, and Aldridge is Delcambre’s daughter and sole surviving child. After the probate court selected Aldridge to serve as personal representative and appointed her as administratrix with the will annexed, Sherard filed this appeal. Because we find that Sherard has not borne his burden of showing error in the selection of Aldridge, we affirm.

When Delcambre executed her last will and testament in September 1991, she named her brother, Robert D. Sherard, and her sister, Elizabeth S. Yerby, as co-executors. Robert Sherard, however, predeceased Delcambre, and Yerby, by failing to take or pursue any action toward being appointed executor, was found by the probate court to have waived her right to serve. Delcambre’s will did not appoint a successor executor in the event that her named co-executors were incompetent or unable or unwilling to serve. See generally Robbins v. Vanbrackle, 267 Ga. 871 (485 SE2d 468) (1997).

Her brother, Calvin Sherard, served as Delcambre’s court-appointed guardian for her person and property from August 1993 until her death in December 1999. Thereafter, Sherard filed a petition to probate the will in solemn form and for letters of administration with the will annexed. In this petition, Sherard claimed, inter alia, to be “the only one who is knowledgeable about the estate” and also to be a creditor of the estate. Aldridge filed a counterclaim to Sherard’s petition and also sought appointment as administratrix with the will annexed.

After a hearing, the probate court appointed Aldridge, finding her lawfully qualified to serve and determining that all other requirements of law had been fulfilled. The probate court ordered that all disbursements, expenditures, and payments be made through a checking account requiring the signature of Aldridge and the estate’s attorney. Sherard was ordered

to deliver instanter unto Jacquelyn Aldridge, above-named Administrator, any and all assets and property in his custody, control or possession which belongs to the Estate of Naomi Sherard Delcambre, to include, but not be limited to, possession of the premises of the deceased at 506 Laney Walker Place, Augusta, Richmond County, Georgia, any automobile belonging to said deceased, any and all personal property belonging to said deceased, as well as any cash or funds in any checking or banking account, which belong to said deceased.

1. In this pro se appeal, Sherard asserts that the probate court overlooked crucial evidence showing that the testatrix did not want her daughter to handle any part of her estate. He claims that the testator made a conscious choice not to let Aldridge distribute her assets.

Despite his arguments to the contrary, Sherard has not shown error in the probate court’s decision. Once an estate is deemed unrepresented, OCGA § 53-6-14 (b) governs the process by which personal representatives are selected. When the beneficiaries under a will cannot reach unanimous agreement in the selection of an administrator with the will annexed, the probate court must make an “appointment that will best serve the interests of the estate,” after considering the statutory preferences set forth in OCGA § 53-6-14 (b). Here, the list of statutory preferences did not settle the selection issue, since both Aldridge and Sherard were named beneficiaries under the will. To resolve the issue, the probate court then conducted a hearing that was not transcribed. See OCGA § 15-9-30 (a) (3).

Decided September 4, 2001

Sherard bore the burden of showing error by the record. This he failed to do. No transcript of the hearing was provided for appellate review despite the fact that the proceedings were continued on one occasion to accommodate Sherard’s request for recordation. Affidavits or exhibits attached to briefs are not evidence or considered part of the record. Hixson v. Hickson, 236 Ga. App. 894, 896 (3) (512 SE2d 648) (1999). While we recognize that the record does contain some evidence that would seem to contravene a finding that the best interests of the estate would be served by the appointment of Aldridge, the probate court found otherwise. In the absence of either a transcript of the lower court proceedings or an agreed statement of the events at trial, a reviewing court must presume that the evidence authorized the judgment. Hamm v. Willis, 201 Ga. App. 723 (1) (411 SE2d 771) (1991). Therefore, Sherard failed to show that the probate court did not properly comply with the appropriate statutory procedures in appointing Aldridge. See Robbins, supra.

2. Sherard also contends that the probate court erred in awarding the automobile and household furniture to the estate. He asserts that his sister wanted him to have her car and the furniture. Sherard claims that on Christmas in 1991, his sister told him that she had not listed her furniture or car in her will because she wanted him to have them. He also claims that he is entitled to reimbursement for certain expenses incurred while acting as guardian.

Probate courts may exercise jurisdiction over the sale and disposition of property belonging to a deceased person’s estate and may supervise the distribution of the assets of such an estate. OCGA § 15-9-30 (a) (4). Although it may well be that in her heart, Delcambre did, in fact, desire that Sherard, her younger brother, inherit her automobile and furniture, the controlling document is her last will and testament, which fails to mention giving this property to him. Although Delcambre could have modified her will to bequeath these gifts to Sherard by adding a codicil consistent with the requirements of OCGA § 53-4-20 (c), she apparently never did so.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

Calvin T. Sherard, pro se.

William R. McCracken, for appellee.

       On jurisdictional grounds, the Supreme Court ordered the transfer of this case to this court.

       The will directed the creation of a trust funded by the sale of certain property combined with any money in her checking or savings account or certificates of deposit. After the disbursement of several cash gifts including $1,000 each to Aldridge and Sherard, all funds remaining in the trust were to be distributed to Delcambre’s granddaughter and grandson.

       Any such claims must be brought against the estate, and the probate court order being appealed does not address them.


text:
    A01A1048.
    JACKSON v. THE STATE.
    (554 SE2d 592)
   Smith, Presiding Judge.

Johnnie Jackson was convicted by a jury of five counts of aggravated assault and two counts of aggravated battery. He filed a motion for new trial, which was denied. His sole contention on appeal is that evidence presented by him that he suffered from a delusional compulsion required verdicts of not guilty by reason of insanity. Because we conclude that Jackson did not meet his burden of showing by a preponderance of the evidence that he was insane at the time of the incident, we do not agree, and we affirm.

The events that resulted in the charges against Jackson occurred during a family gathering at the home of two of the victims. Those victims, a husband and wife, were Jackson’s next-door neighbors. The husband’s teenage children and some of their friends were present at the home. Jackson picked up a bush and threw it onto the victims’ driveway. The husband then picked it up and threw it back into Jackson’s yard, telling Jackson to leave them alone. The husband testified he did not threaten Jackson when he threw the bush back but did tell him, “I’m tired of you messing with my d— family.”

Immediately after the husband threw the bush, Jackson ran from his garage, aiming and firing a gun at the individuals gathered outside the victims’ home. He shot the wife in each arm and her head, and he shot the husband in his arm and back while the husband tried to help his wife. Four other individuals standing outside ran in fear for their lives. The gun was fired into the house as well, causing damage to furniture, walls, and other portions of the interior of the house. The incident was captured on videotape by a surveillance camera the victims had previously installed, and the tape was played to the jury.

Jackson’s version of the incident differed from that of the victims. He testified that while he was outside washing his car, some people were in the victims’ driveway, and one of them “kept coming outside looking in his trunk, digging through his trunk. And they were looking over at me, giving me dirty looks and he’d slam his trunk.” He testified that the wife walked onto her deck, “and she was waving a gun” and screaming something he could not hear because of the loud music playing outside. He stated that he became angry and scared and sent his wife and children into the house. Jackson stated he did not “have a clear memory” of the events that occurred after that time. He claimed that he did not remember throwing the bush and that the only thing he remembered was seeing the “plant come down” and the husband coming down onto his property. Jackson felt that his life was in danger.

On cross-examination, Jackson stated that the shooting happened quickly and admitted that he fired 15 shots. He agreed that there was no doubt in his mind that he “knew he had done something wrong.” He admitted shooting his gun and running toward the cross-tie wall on which he claimed the husband was standing. And although he stated on direct examination that he did not remember throwing the bush, on cross-examination, when asked why he pulled up the bush and threw it at the victims, he answered, “After she come out there waving that gun through the back of her house, it kind of made me angry.”

After the shooting, Jackson went inside his home. Law enforcement personnel arrived, and he was ordered outside. The arresting officer testified that Jackson followed his instructions concerning his commands to come out of the house, lie facedown on the ground, and keep his hands in plain view. Jackson was then handcuffed. The officer testified that Jackson was not injured and that he appeared to understand his Miranda rights after they were read to him. In response to the officer’s questions regarding the location of the gun, Jackson stated that it was in a closet inside the house. The officers used this information to search for the gun and indeed discovered it inside a closet on a shelf.

A few hours later, Sergeant Bruce Ferguson interviewed Jackson at the jail. He testified that Jackson was coherent and appeared to understand his Miranda rights. Ferguson stated that Jackson was not doing anything that Ferguson considered to be irrational or inappropriate. He responded appropriately to Ferguson’s questions and followed his instructions. Jackson told Ferguson that he had experienced problems over the past two and a half years with the victims, who had threatened to kill him, and he believed the husband was jealous of him. Jackson told him he was washing his vehicle, and the victims “had some company over and they were laughing [and] staring at him. And [the husband] went and pulled up a bush and threw it in his driveway. And then I asked him what happened then and he said ... he just got tired of it.”

The shooting was the culmination of longstanding difficulties between Jackson and the victims, which began when Jackson began complaining to the victims concerning water run-off onto his property that occurred when the victims watered their lawn. According to the wife, Jackson harassed her, broke their sprinkler, threw trash in their yard, cut their trees, “egged” their house, and threatened to kill her. She testified that Jackson was controlling and bossy and she felt intimidated by him. The sheriff’s department was summoned a number of times both by the victims and by Jackson concerning their many confrontations. Jackson was charged with a crime arising out of those confrontations but was tried and acquitted. The relationship between the victims and Jackson became even worse after that time.

Jackson testified as well concerning his relationship with the victims. He denied turning their water off, threatening them, or “egging” their house. He claimed that they “developed an attitude” regarding his requests for them to stop watering their lawn and that they harassed him concerning this issue. He believed that they watered their lawn on purpose to cause mud to ran down his driveway. He testified that after the first trial, he often saw both the husband and wife carrying guns outside. According to Jackson, the victims wanted to “get rid of” him, because he had yelled at the wife and because the wife was coming onto his property and talking to him. He testified that they were “plotting and planning. They’d do things to aggravate me.” Jackson stated that he believed his life was threatened and that his wife and children were in danger. He claimed to have heard voices from God telling him that the victims were going to kill him. Jackson stated that God had been revealing things to him as long as he could remember, testifying that “it seems like sometimes if I know something bad is going to happen, it usually does.” We note that the husband and wife denied owning or possessing a gun in their home.

Both Jackson and the State presented expert testimony concerning Jackson’s mental state at the time of the shooting. Dr. Dennis Herendeen, a licensed psychologist, diagnosed Jackson as having a paranoid personality disorder. Dr. Herendeen testified that at the time of the shooting, Jackson “had reached the point where his paranoia had taken over and he was totally out of control and was experiencing a brief psychotic episode.” He believed Jackson was operating under the delusion that his neighbors were plotting to kill him and that the bush incident triggered Jackson’s delusion that the neighbors “were starting to implement their plan.” He testified that this delusion, if true, would have justified Jackson’s acts. He agreed on cross-examination, however, that Jackson was the aggressor and provoked the shooting. He also testified that Jackson knew that the shooting was wrong and agreed that throwing the plant was not a legal justification for the shooting.

Although the State’s experts testified that Jackson was paranoid, their opinions concerning Jackson’s mental state at the time of the shooting differed from Dr. Herendeen’s opinion. Dr. Robert Storms, a licensed psychologist, testified that Jackson was not psychotic and “was oriented to time, place, person, and situation, and that he knew what he was doing.” Dr. Julie Rand, a psychiatrist, testified that Jackson had no major mental illness and clearly knew right from wrong at the time of the shooting. She farther stated that when the shooting occurred, Jackson was not suffering from a “delusional compulsion . . . [n]ot to the degree, and especially to the degree that it would have justified the act.”

Jackson argues that the jury was required to find him not guilty Tinder OCGA § 16-3-3, which provides that an individual cannot be found guilty of a crime when, at the time of the crime, the individual, “because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.” A finding of insanity based on this Code section requires proof that the defendant acted under a delusional compulsion, that the crime was connected with the delusion, and that “the delusion related to a fact which, if true, would have justified the act. [Cit.]” Appling v. State, 222 Ga. App. 327, 329 (3) (474 SE2d 237) (1996). The standard of review “is whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that [the defendant] failed to prove by a preponderance of the evidence that he was insane at the time of the crimes.” (Citations and punctuation omitted.) Lawrence v. State, 265 Ga. 310, 311 (454 SE2d 446) (1995). Unless the evidence of a defendant’s insanity is overwhelming, a jury will not be bound by the opinions of expert witnesses regarding the defendant’s sanity and may rely on the presumption of sanity set out in OCGA § 16-2-3. Rodriguez v. State, 271 Ga. 40, 42-43 (1) (518 SE2d 131) (1999).

Evidence was presented that Jackson suffered from paranoia as well as from delusions that the victims had threatened him for a long period of time and that his life was in imminent danger. But unlike the evidence of the defendant’s insanity in Stevens v. State, 256 Ga. 440 (350 SE2d 21) (1986), relied on by Jackson, evidence of Jackson’s alleged insanity was not overwhelming. In Stevens, the defendant had undergone psychiatric treatment periodically for over 20 years before he killed his wife, and the evidence was unrebutted that he was suffering from delusions at the time of the homicide. The evidence overwhelmingly showed that he had “met the justification criterion for a defense of delusional compulsion. [Cit.]” Id. at 442. Here, however, it is notable that Jackson did not present evidence that he had previously been diagnosed with psychiatric problems. And the State presented expert testimony that his delusion, if any, did not justify the crime of shooting at the husband and wife and their young guests.

Also, both the State and the defense presented evidence that Jackson knew what he was doing was wrong. In addition, the arresting officer testified that Jackson understood his commands, and Jackson was able to direct the officers to the place where the gun was located. These facts were sufficient to authorize the jury to find that Jackson failed to prove by a preponderance of the evidence that he was insane at the time of the shooting. See Foote v. State, 265 Ga. 58, 59 (1) (455 SE2d 579) (1995) (jury authorized to reject insanity defense when State’s witnesses testified defendant knew right from wrong and arresting officer testified that defendant appeared rational). See also Lawrence, supra at 311-312 (where appellant knew right from wrong, despite “extremely complex delusion,” evidence sufficient to permit conclusion that appellant failed to show insanity). The evidence of Jackson’s insanity in this case was not “undisputed and so overwhelming as to require reversal of the jury’s decision. [Cit.]” Appling, supra at 329 (3).

Decided September 4, 2001.

Monica T. Myles, Mary Erickson, for appellant.

David McDade, District Attorney, Brian K. Fortner, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.


text:
    A01A1122.
    SMITH v. THE STATE.
    (554 SE2d 596)
   Smith, Presiding Judge.

Ronard Salvatore Smith was found guilty by a jury of armed robbery and possession of a firearm during the commission of a crime. He appeals from the conviction and sentence entered thereon following the denial of his amended motion for new trial. Smith raises the general grounds and also contends the trial court erred in several respects in recharging the jury. Finding no reversible error, we affirm.

On appeal of a criminal conviction, this court views the evidence in the light most favorable to the jury’s verdict. Jowers v. State, 244 Ga. App. 292, 293 (1) (535 SE2d 294) (2000). So viewed, the evidence presented at trial showed that a call came in to a pizza takeout restaurant in Richmond County. The caller gave his last name as Smith and ordered four large pizzas, three cheese breads, and a two-liter soft drink. After checking to confirm the order, the restaurant dispatched its delivery person to the address given by the caller.

The delivery person, with two bags full of food, arrived at the given address, a house that appeared unoccupied. He parked his car in front of the driveway, walked to the front door, and rang the doorbell. He was standing in front of the door when a man came up behind him. The robber was dressed in blue denim shorts and a gray and brown sweatshirt and had a handkerchief covering part of his face. He pointed a gun at the victim and told him to drop his bags and give him the money bag, which contained approximately $140. The victim did so and walked back to his car, and the robber followed him. When the victim entered his car, the windows were down, and the inside light was on; the robber looked in the passenger side door, and the victim was able to see the robber’s face “clearly.” As the victim drove off, he saw the robber run to the backyard, where he had come from.

The victim reported the crime to his supervisor, who called the police. Shortly thereafter, a Richmond County deputy sheriff on patrol heard the lookout on his radio and drove to the vicinity of the crime. Some passersby informed him they had seen a person fitting the broadcast description headed in a certain direction, and he followed this direction, shining his patrol car spotlight into yards. He observed several persons standing in a backyard who immediately lay down when the light shined on them. He drove around to the front of the residence and saw four men sitting on the front porch. Thinking he had found a suspect, he detained the four men until other deputies could bring the victim to attempt an identification. The police brought the victim shortly, and the victim identified Smith from the four-person lineup. At the lineup, Smith was wearing clothing different from that described as worn by the robber. Another deputy found a red insulated bag used to deliver pizza and a two-liter bottle of soft drink under a bush in the side yard of the house where the four men were found. Inside the bag were two pizzas. At the vacant house where the crime occurred, he found a pizza box. A neighbor who lived next door to the vacant house testified that Smith was a friend of her son’s and was at her home on the evening of the robbery. She testified that as she was preparing to go to the store, she jokingly asked Smith if he had any money, and he told her he did not. But when she returned home, she saw Smith “standing there with a large pizza and four boxes of cheese sticks.” He told her he had ordered pizza for himself and her children. A short time later, Smith left her home, and the police then came to question her.

1. Contrary to Smith’s contention, this evidence was sufficient to authorize any rational trier of fact to find him guilty of armed robbery and possession of a firearm during the commission of a crime under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The testimony of the victim, who made a positive identification, would alone have been sufficient. Smith v. State, 237 Ga. App. 852, 853 (1) (521 SE2d 7) (1999). The victim testified that he was able to recognize Smith’s complexion, the shape of his head, and his forehead. When Smith knelt at the passenger side window, the victim was able to see Smith’s face from the nose down, and he saw him “real, real, real good.” Identity is a question for the trier of fact, and the credibility of the victim was for the jury to determine. The fact that Smith had a handkerchief covering part of his face did not detract from the probative force of the victim’s positive identification. Morton v. State, 241 Ga. App. 330, 331 (526 SE2d 862) (1999).

2. Smith contends the trial court erred in recharging the jury on certain issues when the written charges were permitted to go out with the jury. Smith concedes that neither the recharge alone nor permitting the written charges to go to the jury room alone would be error. He argues, however, that, in combination, they served to render the jury “thoroughly confused.” He cites no authority in support of this argument. We find no evidence of such confusion, and we will not presume that the jury was confused without such evidence. If anything, both the recharge and the presence of the written instructions in the jury room would have served to enlighten, rather than confuse, the jury. We find no merit in this enumeration.

3. Smith maintains the trial court erred in its recharge on the lesser included offense of theft by receiving stolen goods by giving the sequential charge disapproved in Edge v. State, 261 Ga. 865, 867-868 (414 SE2d 463) (1992). We need not consider the merits of this enumeration. Even if the trial court’s charge on this issue was error, it does not require reversal. “[A] defendant is not entitled to an instruction on an offense for which he is not being tried, and which is not a lesser included offense of the one he is defending.” (Punctuation and footnote omitted.) Barnett v. State, 244 Ga. App. 585, 590 (6) (536 SE2d 263) (2000). Like the defendant in Barnett, Smith was “not indicted for theft by receiving, and theft by receiving is not a lesser included offense of armed robbery.” Id. Here, the evidence supports only the conclusion that if Smith was guilty of committing a crime, he was guilty of armed robbery. It is well established that an accused is not entitled to a charge on a lesser included offense when the evidence establishes the commission of the greater offense alleged in the charging instrument. Thomas v. State, 226 Ga. App. 441, 444 (8) (487 SE2d 75) (1997). Since Smith was not entitled to the charge and the evidence supports his conviction of the greater offense, any error in the charge was harmless. McWhorter v. State, 198 Ga. App. 493, 494 (2) (402 SE2d 60) (1991).

Decided September 4, 2001.

Paul IK David, for appellant.

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

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       Concluding that it did not wish to prohibit a beneficial trial process by adhering “to the mechanistic regimes of the past,” in Anderson v. State, 262 Ga. 26 (413 SE2d 732) (1992), the Supreme Court of Georgia held that although the prohibition had been a longstanding ' practice, it was no longer impermissible to send written jury instructions out with the jury. Id. at 27-28 (3).


author: Eldridge, Judge.

text:
    A01A2173.
    JOHNSON v. THE STATE.
    (554 SE2d 587)
   Eldridge, Judge.

A Richmond County jury convicted Pamela Denise Johnson of three counts of financial transaction card theft, one count of forgery in the first degree and one count of giving a false name. She was sentenced consecutively to 20 years confinement. The defendant appeals from the superior court’s denial of her motion for new trial, as amended, contending that the superior court: (1) erred because the evidence was insufficient to support her convictions of financial transaction card theft (three counts) and forgery in the first degree (one count); (2) erred in that she was denied effective assistance of counsel; (3) erred in charging the jury it could consider the number of witnesses and exhibits on each side of the case; and. (4) erred in charging the jury as to circumstantial evidence. Finding defendant’s claims of error to be without merit, we affirm.

The evidence, viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979), showed that the defendant and a male companion entered an Augusta insurance agency in the late afternoon of July 28,1995. The defendant asked to use the restroom and, although she had no business to conduct, was permitted to enter a secured work area where restrooms were located. At that time the victim left the area to go on break. Once in the restroom, the defendant remained there not more than a minute before exiting, running from the restroom to her victim’s empty desk. She doubled over in the victim’s chair while clutching her stomach and, nearly in tears, stated that she thought she was pregnant and was having trouble. As she did so, she turned in the direction of the victim’s purse which was located on the floor under the victim’s typewriter. From an adjacent desk, a nearby worker described the episode as ending as suddenly as it had begun: “The defendant jumped up quickly, like I say and said she was fine.” Twenty minutes after the defendant departed, the victim discovered her wallet and all its contents missing, including two credit cards.

In addition, there was testimony as to a second incident wherein a checkbook belonging to a north Augusta beauty shop patron was stolen late in July or in early August 1995. Evidence showed that the defendant used one of the stolen checks to pay for a haircut she got at another beauty shop on August 11, 1995; in the presence of the proprietor, the defendant signed the check in the name of the woman whose checkbook had been stolen. The proprietor testified that minutes after the defendant left the beauty shop, she discovered that her wallet and all her credit cards had been taken from her purse — this after the defendant had asked for a wet towel saying that she was perspiring, which request caused the proprietor to leave the defendant momentarily to get such a towel from the rear of the shop. In further testimony, the proprietor indicated that her purse had been on the floor under her desk. The desk was open-faced and opposite the defendant as she got her hair done.

A third victim testified that on August 18, 1995, her wallet and credit cards had been taken from her purse at the clinic where she was employed. In this regard, the evidence showed that the defendant again asked to use the bathroom. On leaving, the defendant indicated she was starting a cleaning business and asked if there were an interest in using her as a cleaning lady. With her back to the victim and the victim’s unzipped purse on the floor below her, the defendant knelt to write out her address information. Two minutes after the defendant’s departure from the premises, the third victim discovered her wallet and credit cards missing. No one else had been present. Upon being arrested on August 18, the defendant falsely identified herself to the arresting officer. Held:

1. A jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the criminal offense beyond a reasonable doubt. Jackson v. Virginia, supra While the defendant was not directly observed in taking financial transaction cards as alleged and no stolen credit card was recovered, the “testimony of a single witness is generally sufficient to establish a fact.” OCGA § 24-4-8. Moreover, as noted below, to support a verdict, circumstantial evidence need exclude only reasonable hypotheses, not exclude every inference or hypothesis except that of the defendant’s guilt. Smith v. State, 257 Ga. 381, 382 (359 SE2d 662) (1987); Tweedell v. State, 248 Ga. App. 187, 189 (546 SE2d 306) (2001). Whether circumstances were sufficient in this case to exclude every reasonable hypothesis except that of the defendant’s guilt was substantially a question for the jury. Brown v. State, 245 Ga. App. 706, 709 (1) (538 SE2d 788) (2000). Further, the defendant’s denial of all charges against her raised no more than a question of her credibility as a witness. Such a question is likewise solely within the province of the jury as finder of fact; on appeal, we likewise do not determine witness credibility but determine the sufficiency of the evidence alone. Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

So construed, we conclude that the circumstantial evidence in this case was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offenses as charged. Harris v. State, 166 Ga. App. 202, 203 (1) (303 SE2d 534) (1983).

2. The defendant claims she received ineffective assistance of counsel at trial because her attorney failed to investigate and become familiar with her file, causing him to be unprepared at trial. We disagree.

To reverse a conviction upon a claim of ineffectiveness of counsel, the defendant has the burden of proving not only that counsel’s performance was deficient, but that the deficiency so prejudiced her defense that there is a reasonable probability that the outcome of the trial would have been different in the absence thereof. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). We will not disturb a trial court’s finding of effective assistance of counsel unless clearly erroneous. Thomas v. State, 246 Ga. App. 448, 449 (1) (540 SE2d 662) (2000).

Defendant contends that trial counsel was unprepared to defend her at trial because he met with her only twice prior to trial, each time for less than an hour; failed to make her aware of the evidence against her; failed to investigate; and failed to confer with her as each witness testified during trial. Defendant’s claims to the contrary notwithstanding, trial counsel testified that he recalled meeting with the defendant more than twice before trial; that he met with her for periods of time sufficient to prepare for the trial of the case; that he interviewed the State’s witnesses and discussed the strength of the State’s case with her; that he shared his view of the likely outcome of a contest in which the credibility of the State’s witnesses was pitted against her own; that he asked the defendant for the names of any witnesses who could testify on her behalf, although she supplied none; and that he sought to ensure her participation in her defense by conferring with her at trial. Under these circumstances, the superior court’s finding that the defendant was afforded effective assistance of counsel is not clearly erroneous. Consequently, it must be upheld. Cofield v. State, 216 Ga. App. 623, 627 (5) (455 SE2d 342) (1995) .

3. Citing Clifford v. State, 266 Ga. 620, 621 (2) (469 SE2d 155) (1996), the defendant contends that the superior court erred when it charged the jury, “Now while you may consider the number of witnesses on each side of the case and the number of exhibits on each side of the case, you are not required to decide in favor of the side with the most witnesses or exhibits.”

While giving this charge in a criminal case is inapt as pertinent only to the trial of civil cases, reversal need not result if in the context of the charge as a whole such charge may be deemed harmless. Clifford v. State, supra, citing Fountain v. State, 207 Ga. 144 (1) (60 SE2d 433) (1950), overruled on other grounds, Lavender v. State, 234 Ga. 608, 610 (2) (216 SE2d 855) (1975); Harper v. State, 201 Ga. 10, 18 (2) (39 SE2d 45) (1946); Couch v. State, 73 Ga. App. 153, 158 (5) (35 SE2d 708) (1945). See also Brinson v. State, 268 Ga. 227, 229 (4) (486 SE2d 830) (1997). The complained-of charge was here harmless inasmuch as the charge as a whole clearly advised the jury of the State’s burden of proof; that the burden of proof never shifted to the defendant to prove her innocence; and that a verdict for the party with the most witnesses and exhibits was not required. Inasmuch as the defendant testified and presented evidence, the charge as an impermissible comment upon the defendant’s failure to testify or otherwise present evidence was not in issue. See Jones v. State, 272 Ga. 154, 157 (5) (527 SE2d 543) (2000).

4. The defendant contends that the superior court gave an incomplete charge on circumstantial evidence. However, the record shows that the superior court substantially gave the functional equivalent of the OCGA § 24-4-6 charge on circumstantial evidence which the defendant requested, adding only the word “alone” and twice substituting the word “theory” for the word “hypothesis.” The superior court neither erred in this regard, nor did it err by altering OCGA § 24-4-6 in further amplifying thereon as follows:

Circumstantial evidence must exclude only . . . reasonable inferences and theories. It need not remove every possibility of the innocence of the accused. You, the jury, decide whether every reasonable theory other than the guilt of the accused has been excluded, so as to justify the inference beyond a reasonable doubt of the guilt of the accused.

See Martin v. State, 235 Ga. App. 844-845 (2) (510 SE2d 602) (1998) (addition of word “alone” to phrase “to warrant conviction on circumstantial evidence” not error as functional equivalent of OCGA § 24-4-6 circumstantial evidence rule).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

Decided September 4, 2001.

Ellis R. Garnett, for appellant.

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

         “The charge may be properly given as part of the instruction to the jury about assessing the credibility of witnesses in a civil case. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases, Part II (D), General Instructions (3rd ed. 1991). This is so because it relates to the quantum of proof in a civil case, that is, a determination of where the preponderance of the evidence lies. OCGA § 24-4-4.” Clifford v. State, supra at 621 (2), n. 3.


author: Phipps, Judge.

text:
    A01A1574.
    BROWN v. THE STATE.
    (554 SE2d 537)
   Phipps, Judge.

Stanley Brown was tried by a jury and convicted of aggravated child molestation and child molestation. He was sentenced as a recidivist to thirty years, ten in confinement and twenty on probation. On appeal, Brown challenges the sufficiency of the evidence and claims that the victim’s mother improperly gave her opinion of his guilt. We find that the evidence was sufficient to support the verdict and that Brown waived any objection to the challenged testimony. As a result, we affirm.

1. Brown claims that the evidence was insufficient to support his convictions because the victim’s account of the incident was not credible.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in the light most favorable to the verdict, the evidence shows that in February and March 1999, Brown was living in a two-bedroom trailer with six-year-old B. B., B. B.’s father (Brown’s first cousin), B. B.’s mother and B. B.’s brother and sister. At trial, B. B. testified that on a weekend day, her parents, brother and sister went shopping and left her with her ten-year-old cousin and Brown. B. B. said that when her cousin went to visit his aunt across the street, Brown gave her a “bad touch” with his tongue and his hand on her “front private” and her “butt” while she was sitting on a love seat in the living room. She testified that Brown then went into the kitchen and asked if she wanted some tea and cereal. When he returned to the living room, he “did it again.” B. B. testified that after the incident, she slapped Brown in the face and locked him out of the trailer.

B. B. testified that “right away” she told her eleven-year-old cousin and a four-year-old neighbor about the incident. The neighbor’s eleven-year-old sister overheard the conversation and suggested that B. B. tell her mother. When B. B. told her mother what had happened, her mother spanked her. The next day at school, the eleven-year-old neighbor told B. B.’s teacher about the incident, and the teacher informed the school counselor. When the school counselor called B. B. to her office, B. B. told her that an adult male staying in their home had “pulled her pants down and licked her privates.” The school counselor promptly notified the Department of Family & Children Services (DFACS).

The following day, DFACS Investigator Martin and Floyd County Police Detective Conway met with B. B.’s mother and told her they wanted to interview B. B. about allegations of sexual abuse. Detective Conway conducted the interview, and Investigator Martin observed and took notes. During the interview, B. B. told Detective Conway that Brown had touched her “private” with his hand and his mouth while she was sitting on a love seat in the living room.

After the interview, Detective Conway met with B. B.’s mother again and interviewed Brown. He then obtained a warrant charging Brown with child molestation and aggravated child molestation.

“A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” Aggravated child molestation is an act of child molestation that physically injures the child or involves an act of sodomy. “[T]aking the victim’s testimony as true, as we must, it alone was clearly sufficient to authorize [Brown’s] conviction of the offenses as charged under the standard set forth in Jackson v. Virginia.”

2. Brown challenges testimony from B. B.’s mother in which she stated that she wished she had not spanked her child “when she was telling me the truth.” The court responded promptly with a curative instruction to the effect that the jury must determine what the truth is and that no witness can testify about whether someone else is telling the truth. After the instruction, B. B.’s mother testified that she had changed her mind as to whether he had “done it or not.” The court intervened, instructing the prosecution that “[t]hat’s about as far as we need to go.” Brown never objected or moved for mistrial in response to the testimony he now challenges. “Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.”

Decided August 27, 2001

Reconsideration denied September 5, 2001.

James C. Wyatt, for appellant.

Tambra P. Colston, District Attorney, Kay A. Wetherington, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       (Punctuation omitted.) Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       Supra.

       OCGA § 16-6-4 (a).

       OCGA§ 16-6-4 (c).

       (Citation and punctuation omitted.) Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998).

       (Citations and punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 751 (2) (b) (412 SE2d 859) (1991).


text:
    A01A1105.
    GORE v. THE STATE.
    (554 SE2d 598)
   Smith, Presiding Judge.

Jessie Gore was convicted of three counts of sexual battery and one count of contributing to the delinquency of a minor.* He appeals, following the denial of his motion for new trial. We find no error, and we affirm.

1. Gore contends that the State failed to produce sufficient evidence of criminal intent and therefore that the trial court erred in denying his motion for directed verdict. We do not agree.

The State presented the testimony of the three victims: the daughter of Gore’s girlfriend and two of the daughter’s 14-year-old friends. The girlfriend’s daughter, S. W, was 14 or 15 at the time of the incidents. S. W. testified that Gore often pinched her on her breasts and buttocks. Although she thought Gore was just “playing around” at first, she testified that she began to feel uncomfortable. She stated that he once sat on her lap, facing her and straddling her, on the sofa in their apartment. In addition, one time he tried to remove her towel after she had stepped out of the shower. On another occasion, he lay down beside her on the floor and pinched her, and she “told him to get up and he wouldn’t move out of the way.” He stayed beside her for “a minute or so,” and he “pinched so hard it just hurt.”

She testified that after she reported the incidents, Gore sat on her on the couch and told her that he could “do this” no matter what anyone said and that after he got up, he pinched her on the breast. We note that one witness, a man who lived in the apartment with his girlfriend, Gore, S. W, and her mother, testified that he saw Gore grab S. W. on her breasts or buttocks, that their playing went “too far,” and that S. W. did not “like it.” This witness twice saw Gore lying on top of S. W, and he testified that she would get angry and go to her room and sometimes would cry about this behavior. Gore stated that he did not remember touching S. W.’s breasts and perhaps only touched her buttocks “in passing,” but he denied making sexual advances.

The other two victims, twins, often visited S. W. on weekends. They, as well as S. W, testified that Gore often purchased alcohol for them, and the girls would become intoxicated. Sometimes they would drink until they passed out. Gore drank with the girls but did not get drunk. Evidence was presented that he pinched the twins on their buttocks and lay beside or on top of each of them on the couch. He also sat on one of the twin’s buttocks and massaged her back. This happened at least twice, once on the floor and once on the bed. One twin testified that when they would arrive, he would hug her very tightly and would press up against her with his chest and abdomen. Both acknowledged feeling uncomfortable with the manner in which Gore touched them. Gore admitted giving a massage to one of the twins but said he only rubbed her legs. One of these victims saw-Gore pinching S. W. on the buttocks and chest area and testified that S. W. did not like this behavior.

Whether a defendant had the requisite intent to commit a crime is particularly a question of fact for the jury, to be determined “after considering all the circumstances surrounding the acts of which the accused is charged, including words, conduct, demeanor, and motive.” (Citations and punctuation omitted.) Foster v. State, 216 Ga. App. 26-27 (1) (453 SE2d 482) (1995). A trial court does not err in refusing to direct a verdict when, considering “the evidence in the light most favorable to the prosecution, a rational trier of fact could find the elements of the crime, including intent, beyond a reasonable doubt. [Cit.]” Touchton v. State, 210 Ga. App. 700 (1) (437 SE2d 370) (1993).

Gore argues that the evidence showed only that he touched the victims while he and the victims “were engaged in playful, mutual teasing.” While some evidence was presented that Gore and the victims were “teasing” one another, construing the evidence in favor of the prosecution, other evidence was presented that he touched them on their “intimate parts” without their consent, as required by OCGA § 16-6-22.1 (b). S. W.’s testimony clearly showed that Gore touched her without her consent and over her protests, and the twins expressed that they were uncomfortable with Gore’s behavior. The trial court did not err in denying Gore’s motion for directed verdict.

2. Gore contends that the trial court erroneously admitted privileged information disclosed by him to a counselor. This enumeration relates to testimony by an “associate professional counselor” who worked with S. W. and her family, at the request of the juvenile court, after S. W. was placed on probation by that court. During one session, Gore told this witness that he had gone to a dance with one of his own daughters and “described how during the night at the dance he had kissed his daughter in a way where others thought he was his daughter’s boyfriend instead of father.” Gore contends that this statement was privileged. We find no basis for reversal. Gore did not object to this testimony on the basis of privilege and therefore has waived appellate review of this argument. “In order to raise on appeal an impropriety regarding the admissibility of evidence, the specific ground of objection must be made at the time the evidence is offered, and the failure to do so amounts to a waiver of that specific ground.” (Footnote omitted.) Trotter v. State, 248 Ga. App. 156, 157-158 (2) (546 SE2d 286) (2001).

We also note that, contrary to Gore’s argument, the testimony was not protected by OCGA § 43-39-16, which provides that “communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client.” The record shows neither that this was a “licensed psychologist” nor that Gore was her client.

3. In two enumerations, Gore complains about testimony introduced by the State concerning his behavior with his own daughters. He contends that the testimony was erroneously admitted “for any purpose” and should have been accompanied by a limiting instruction concerning the admissibility of similar transactions. Under the unusual circumstances of this case, we find no reversible error.

Gore’s arguments relate to the testimony of two witnesses, Tracy Luallen and Shannon Bond. Gore contacted Luallen, the caseworker from the local Department of Family & Children Services who investigated S. W.’s initial complaint, after Luallen requested that he do so, even though his attorney instructed him not to talk with Luallen. Luallen testified that she had spoken with his attorney, who had told her that he did not want Gore to make any statements to her. She stated that Gore told her he had been instructed not to give a statement by his attorney as well, “but he felt like he needed to speak with me.” According to Luallen, she “just listened to him speak” and did not question him. He told her that he was “very close” to his own daughters and that when they were out together, people would think that one of them was his girlfriend. “He said that this was because of the way that he walked with his arm around her and that he loved them so much that he loved to touch them.”

Bond, the counselor who met with S. W. and her household at the request of the juvenile court, testified concerning Gore’s statements about his relationship with his own children. He described love to Bond “as a passion for how to raise children” and told her about a school dance when “he had kissed his daughter in a way where others thought he was his daughter’s boyfriend instead of father.” Gore clarified the details of this event during his testimony. He stated that he had sneaked his underage daughter into a bar and that he “gave her a little kiss.” Friends who observed this incident thought he was her boyfriend.

The State filed a notice of similar transactions “out of an abundance of caution” concerning the testimony of these two witnesses, but the prosecutor believed the testimony to be relevant to Gore’s intent and therefore admissible “in the main part of the case anyway” regardless of whether the evidence was admissible as similar transactions. Gore “strenuously” objected to the evidence. The prosecutor argued that the evidence was relevant to “the kind of relationship he had with his own children and what he wanted for [one of the victims].”

Noting that the prosecutor may have had a “sinister purpose” for the evidence, the trial court stated that the evidence could “be taken another way. It could be exculpatory. The statements could show that he did not form any criminal intent in his touching of” the victims. The court went on to find that defense counsel could make the “misguided” argument that Gore believed himself to be involved in a proper relationship and therefore was not engaging in criminal acts. The court found the statements to be “admissible from both perspectives to explain conduct” rather than as evidence of similar transactions. And most importantly, the trial court stated that it would not instruct the jury on the law of similar transactions “unless the defendant specifically wants it, because it would imply that I think that they are criminal; that . . . these incidents amounted to criminal acts against his own daughters and I’m not going to say that and I don’t even want to imply that.” It does not appear that defense counsel requested an instruction concerning the admissibility of similar transactions.

(a) Gore contends that the trial court erroneously failed to give a limiting instruction concerning any testimony that he had “snuck” one of his daughters into a bar, as this testimony bore on the charge of contributing to the delinquency of a minor. But as discussed above, he did not request such an instruction and therefore cannot now argue that the trial court failed to give it. See State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998).

Decided September 5, 2001.

Phyllis V. Harris, for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

(b) In a more general enumeration, as best we understand his arguments, Gore contends that both statements constituted evidence of irrelevant acts toward his own mature biological daughters and had no probative value with respect to the allegations against him. We find no basis for reversal. The trial court astutely observed that the statements, one of which was voluntarily made during the course of the investigation despite defense counsel’s admonition to Gore, could have been exculpatory. A jury might have found them to bear on Gore’s intent simply to show a strong parental type of love to his girlfriend’s daughter. And again, Gore did not request the court to admit the evidence for any limited purpose. Instead, even after the trial court indicated that it might give a similar transaction charge if desired by Gore, no such charge was requested. He therefore cannot now argue that the trial court allowed the evidence “for any purpose” when he failed to take the opportunity afforded him to request a charge concerning the limited purposes for which similar transactions may be admitted.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       He was acquitted of three counts of child molestation.

       This witness’s girlfriend, was S. W.’s older sister.


text:
    A01A1112.
    MERCER et al. v. THE STATE.
    (554 SE2d 732)
   Barnes, Judge.

Sheila Mercer and Joseph Q. Champion appeal their convictions for possession of illegal drugs by ingestion. They moved to suppress drug test results acquired as a result of statements Mercer made while being detained during the execution of a search warrant in which she was not a named party and following Champion’s detention and search. The trial court denied appellants’ motion to suppress, accepted their stipulations of evidence, found them guilty, and sentenced them to probation, fines, and community service. On appeal they assert that the trial court erred in denying their motion to suppress the drug test results, and that without these illegally obtained tests insufficient evidence supports the guilty verdicts. Because Mercer and Champion were illegally detained and handcuffed, we reverse the convictions.

1. “Where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo review.” (Citation and footnote omitted.) State v. Mallard, 246 Ga. App. 357 (541 SE2d 46) (2000). The evidence presented at the motion to suppress hearing revealed that on February 25, 2000, 11 deputies from the Bartow County Sheriff’s Department executed a search warrant at the residence of Rosa Lee Vernon, expecting to find 25 to 30 people at a party there. The warrant authorized the search of the premises, curtilage, Vernon, and all persons present for illegal drugs, items related to the drug trade, and firearms.

As officers arrived on the scene, they saw the appellants as they were just getting out of their car, with no one standing close to them, but did not see them drive up. The deputies intended from the beginning to search everyone on the property for drugs and did so. They detained everyone, handcuffed them, and patted them down for weapons. Nothing in particular made the appellants appear dangerous, but they were handcuffed and searched along with everyone else, according to the deputies’ plan.

While securing and searching the premises, officers found marijuana and various drug paraphernalia on some of the other guests and on the premises. After completing the search, the sergeant approached Mercer, who was still handcuffed. The sergeant did not advise Mercer of her Miranda rights, although she was in custody and was not free to leave. Instead, the sergeant asked her why she was there. Mercer answered that she and her boyfriend, Champion, were there to “get away” from things. The sergeant stated that the officers were searching for drugs, and Mercer responded that she had smoked marijuana two days before. She also volunteered that Champion had driven there and had a suspended license, which the sergeant verified. Based on this information, the sergeant arrested Champion for driving with a suspended license and arrested Mercer for possession of marijuana by ingestion.

The appellants were transported to jail, where an officer found marijuana on Champion during processing. Mercer orally consented to a drug test, read and signed a consent form, then provided a urine sample. Champion refused to consent to a drug test, so the sergeant obtained a warrant for his urine based on the drugs found on the premises and on Champion. Mercer’s sample tested positive for methamphetamine and marijuana, and Champion’s sample tested positive for methamphetamine.

2. “A defendant aggrieved by an unlawful search and seizure may move the court ... to suppress as evidence anything so obtained on the grounds that [t]he search and seizure without a warrant was illegal.” OCGA § 17-5-30 (a) (1). The appellants argue their seizure was illegal because the police had no probable cause to initially detain and handcuff them.

The search warrant being executed when Mercer and Champion were detained and handcuffed gave the officers permission “to enter, search and seize within ten days of this date, the person, premises, or property described above, including the entire curtilage, outbuildings, vehicles, etc. and all persons present at the time the search warrant is executed,” (Emphasis supplied.)

The search warrant did not give the officers the authority to detain and search the appellants, because a general warrant, one that does not sufficiently identify the persons to be searched as is the case here, is void. Collins v. State, 187 Ga. App. 430, 431 (370 SE2d 648) (1988). However, “ ‘[a] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.’ Michigan v. Summers, 452 U. S. 692, 705 (101 SC 2587, 69 LE2d 340) (1981).” Gober v. State, 264 Ga. 226, 227 (2) (a) (443 SE2d 616) (1994). OCGA § 17-5-28 defines the limits of an officer’s authority to detain or search as follows: “In the execution of the search warrant the officer executing the same may reasonably detain or search any person in the place at the time: (1) [t]o protect himself from attack; or (2) [t]o prevent the disposal or concealment of any instruments, articles, or things particularly described in the search warrant.”

In this case, a deputy sheriff testified that ten or twelve officers executed the search warrant. They intended to search every person on the property “[bjecause of the drugs located there and because of the — the drugs the informant had seen there and because of the fugitive being there.” Everyone at the party was actually searched and handcuffed, and no one was free to leave. After the officers completed the search, they questioned each person and released “numerous individuals there that we had talked to and determined they had nothing to do with it. There was nothing found on them, and we turned them loose.” The officer questioned Mercer to see if she should be detained or released.

“To support a search under OCGA § 17-5-28 (1), the officer must be able to articulate specific facts that would support a reasonable belief or suspicion that the person to be searched was armed and dangerous.” State v. Holmes, 240 Ga. App. 332, 333 (525 SE2d 698) (1999). In Holmes, the police had a warrant authorizing them to search premises occupied by a named couple, including the “ ‘entire premises and any persons found therein or thereupon,’ ” based on the allegation that the wife possessed cocaine. Id. at 332. Arriving at the address, they found Holmes in the yard talking to the husband, searched him, found cocaine, and arrested him. We noted that “it is illegal to search a person not named in the warrant but found on the premises to be searched, without independent justification for a personal search,” and we found no justification for searching Holmes under OCGA § 17-5-28 (1) because nothing in the arresting officers’ testimony indicated he was a threat. Id. at 333.

In the case before us now, the officer testified that neither Mercer nor Champion made any kind of threatening gesture and nothing in particular made him think the defendants were dangerous people. Because nothing about the defendants’ demeanor would support a reasonable belief or suspicion that they were armed and dangerous, the State cannot justify the handcuffing and search under OCGA § 17-5-28 (1).

If the defendants had been located in a position that would enable them to help dispose of or conceal the drugs specified in the warrant, or if they were trying to escape from the premises, the officers’ handcuffing and search may be justified under OCGA § 17-5-28 (2). Holmes, supra. In Holmes, we concluded the officers were not justified in arresting the defendant under this Code section because he was outside the house, not close to the person named in the warrant, and had been under constant surveillance. Id. at 333-334. Similarly, the defendants in the case before us were 40 to 50 feet from a closed garage in which the officers found the only person named in the warrant, and no one was standing near Mercer and Champion. Because the defendants were not inside any of the buildings to be searched and were not standing close to the person named in the warrant, the State cannot justify the handcuffing and search under OCGA § 17-5-28 (2). Therefore, the trial court erred in denying the defendants’ motion to suppress.

3. Finally, we consider the defendants’ argument that insufficient evidence supports their convictions. “[W] here an appellate court reverses a conviction on the basis that competent evidence was erroneously admitted, the appellate courts in Georgia will not and need not then review the remaining evidence on sufficiency grounds.” (Footnote omitted.) Hall v. State, 244 Ga. 86, 94 (5) (259 SE2d 41) (1979). Evidence that was inadmissible but not incompetent, such as improper hearsay, is not “automatically excluded at a retrial but could be made admissible by laying the proper foundation.” Id. at 93 (5). Conversely, incompetent evidence cannot be made admissible and should not be considered in determining the sufficiency of the evidence against the defendant. Livingston v. State, 268 Ga. 205, 209-210 (1) (486 SE2d 845) (1997).

Decided September 6, 2001.

Joshua D. Earwood, for appellants.

T. Joseph Campbell, District Attorney, Donald S. Smith, Assistant District Attorney, for appellee.

Because the evidence that flowed from Mercer’s statement and Champion’s arrest resulted from a statutorily invalid detention, that evidence is incompetent as well as inadmissible and therefore could not be introduced at a later trial. The inadmissible evidence was all the State had to prove their case; thus, the evidence against Mercer and Champion was insufficient for a rational trier of fact to find them guilty beyond a reasonable doubt of the offenses charged. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment reversed.

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