text:
    A10A1986.
    ANDREWS v. THE STATE.
    (705 SE2d 319)
   MlKELL, Judge.

Hal Rickey Andrews was found guilty by a jury of interference with government property (Count 1), felony obstruction of an officer (Count 2), and escape (Count 3). After a pre-sentencing hearing pursuant to OCGA § 17-10-2, he was sentenced to five years to serve on Count 1; five years on Count 2, to serve consecutively to Count 1; and twelve months on Count 3, to serve concurrent with the sentence imposed under Count 1. Andrews filed a motion for new trial and a motion to modify the sentence. Following a hearing, the trial court denied both motions. Andrews appeals, challenging the sufficiency of the evidence as to his felony obstruction conviction and enumerating other errors. We affirm.

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

So viewed, the record reflects that Travis White, a deputy with eight years’ experience with the Monroe County Sheriffs Office, testified that on March 9, 2008, he was dispatched to Andrews’s home in response to a 911 domestic disturbance call. White was met by Andrews on the front step of the home, and he explained to Andrews that he needed to check on Andrews’s teen-age daughter. Andrews allowed the deputy to enter the residence, and once inside, White observed the daughter lying on her mother’s lap on the sofa, crying. When White asked her if she was all right, Andrews immediately told the deputy, “Can’t you see they’re all right? They’re all right. And you got to leave, it’s time for you to go.” White told Andrews that he would leave once he found out what was going on. Andrews again insisted that White leave. White testified that Andrews then took a fighting stance, nose to nose with White, who did not have other law enforcement officers with him at that time. White attempted to grab Andrews’s arms and put them behind his back, but Andrews “snatched away.” White asked Andrews to put his arms behind his back, so that White could handcuff him, but Andrews continued to struggle. White then used pepper spray in an effort to subdue Andrews, who continued to struggle. Eventually, after using pepper spray two more times, throwing Andrews to the ground, and striking him with his fists, White was able to handcuff Andrews and take him outside to the patrol car. Andrews continued to struggle, and as White placed him in the patrol car, Andrews spat in White’s face twice. White left Andrews in the back of the patrol car and went back inside to interview Andrews’s wife and daughter. While White was inside, Andrews kicked out the back window of the patrol vehicle and ran away into the woods.

Andrews’s daughter gave a statement to police, indicating that Andrews resisted White’s request that he put his hands behind his back. Andrews’s wife also gave a statement to police, stating that Andrews and White “got into a scuffle” and that White “begged” Andrews to put out his hands for handcuffs. At trial, however, both women testified that Andrews did not prevent them from speaking with White and did not resist White’s attempt to handcuff him. Andrews also took the stand, testifying that White asked his wife and daughter over and over if they were all right, and that they said they were. Andrews denied threatening White with bodily harm.

1. Andrews does not challenge his convictions for interference with government property and escape. However, he contends that the evidence was insufficient to support his conviction for felony obstruction of a law enforcement officer. He argues that the evidence adduced was only sufficient to support a conviction for misdemeanor obstruction, because he did not actually act with, or offer to do, violence to the officer. We disagree.

Under OCGA § 16-10-24 (b), “[w]hoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer” is guilty of felony obstruction of an officer. “The statute . .. does not require that the accused actually do violence to the officer, but allows a conviction if the accused offers to do violence.” White testified that Andrews interfered with his attempts to interview the mother and daughter; that Andrews ordered him to leave; that Andrews approached him so that their noses were almost touching; and that Andrews then took up a fighting stance. White was forced to wrestle Andrews to the ground in order to handcuff him, and Andrews later spat into White’s face as White was putting him in the patrol car. Viewed in the light most favorable to the verdict, the evidence adduced at trial and summarized above authorized any rational trier of fact to find Andrews guilty beyond a reasonable doubt of felony obstruction of a law enforcement officer, under the standard set forth in Jackson v. Virginia.

Andrews argues that his conviction cannot stand because his own testimony and that given by his wife and daughter conflicted with that given by White. “Conflicts in the testimony of the witnesses are, however, a matter of credibility for the jury to resolve.” “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the jury’s verdict will be upheld.”

2. In his third enumeration of error, Andrews contends that the trial court abused its discretion in permitting White to remain in the courtroom during the presentation of the state’s case and, in the alternative, that his trial counsel rendered ineffective assistance by his failure to object to White’s presence in the courtroom.

(a) The record reflects that the state invoked the rule of sequestration and asked that White, the chief investigator, be permitted to remain in the courtroom. Andrews did not object to the state’s request, nor did he request that White be examined first. Because Andrews made no objection at trial to White’s presence in the courtroom, he has waived appellate review of this claim of error.

(b) Andrews contends that his trial counsel rendered ineffective assistance by failing to object to White’s presence in the courtroom. In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set out in Strickland v. Washington. Andrews “must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different.” In order to show that counsel’s performance was deficient, “[t]he criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.” On appellate review of the trial court’s ruling, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Andrews has failed to prove either prong of the Strickland test. “[N]o abuse of discretion has been found in cases involving the grant of prosecutorial requests to except lead investigators from the rule of sequestration.” Here, White was the chief investigator in the case. The trial court was within its discretion to permit White to remain in the courtroom and was also within its discretion in not requiring that White be the first witness called to the stand. Merely failing to object to the investigator’s presence, or to the order of the state’s witnesses, does not constitute deficient performance. Further, Andrews has not shown that White’s testimony was influenced by the testimony of any other witness. Thus, Andrews has failed to show that he suffered any prejudice as a result of counsel’s failure to object to White’s presence.

3. Andrews contends that the trial court erred in considering a prior sexual battery charge at the pre-sentencing hearing, because the state failed to give Andrews timely notice of its intent to introduce the record of this conviction. Andrews has waived appellate review of this enumeration, however, because at the pre-sentencing hearing, Andrews made no objection to the use of this evidence in aggravation of punishment under OCGA § 17-10-2.

Decided January 19, 2011.

Alfred D. Dixon, Anna G. Cross, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Further, even had Andrews not waived his objection, and even assuming that he did not receive proper notice of the state’s intent to introduce this prior conviction at sentencing, this enumeration of error fails. In its order denying the motion for new trial, the trial court specifically stated that it did not consider this prior conviction in sentencing Andrews. “There is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision.” In light of the trial court’s statement that it did not consider this prior conviction, Andrews has not made a “strong showing” that the trial court relied upon it in sentencing him. Thus, he has failed to rebut the presumption.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       OCGA § 16-7-24 (a).

       OCGA § 16-10-24 (b).

       OCGA § 16-10-52.

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       Id., citing Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Footnote omitted.) Sampson v. State, 283 Ga. App. 92, 94 (2) (640 SE2d 673) (2006).

       Supra. See Wilcox v. State, 300 Ga. App. 35, 36-37 (1) (a) (684 SE2d 108) (2009) (defendant threatened officer with rake); In the Interest ofD. D., 287 Ga. App. 512, 513 (1) (651 SE2d 817) (2007) (defendant assumed fighting stance); Dixon v. State, 285 Ga. App. 211, 212 (1) (645 SE2d 692) (2007) (spitting in officer’s face).

       (Footnote omitted.) Johnson v. State, 255 Ga. App. 537, 538 (566 SE2d 349) (2002).

       (Citations omitted.) Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009). Accord Purvis v. State, 301 Ga. App. 648, 650 (1) (689 SE2d 53) (2009) (jury resolves conflicts in evidence raised by witness’s recantation at trial).

       See Bryant v. State, 286 Ga. App. 493, 498 (4) (649 SE2d 597) (2007); Hames v. State, 280 Ga. App. 708 (1) (634 SE2d 836) (2006).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Footnote omitted.) Jackson u. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

       (Citation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       (Citation and punctuation omitted.) Id.

      (Footnote omitted.) Hames, supra.

       See Flowers u. State, 275 Ga. 592, 594 (3) (571 SE2d 381) (2002); White v. State, 253 Ga. 106, 110 (5) (317 SE2d 196) (1984). Accord Gray u. State, 291 Ga. App. 573, 579-580 (3) (662 SE2d 339) (2008).

       Cf. Bihlear v. State, 295 Ga. App. 486, 489 (2) (c) (672 SE2d 459) (2009) (trial counsel’s failure to invoke rule of sequestration did not constitute deficient performance).

       See id. (no prejudice where appellant failed to show that any witness was influenced by testimony of any other witness).

       See Ingram v. State, 262 Ga. App. 304, 307 (4) (b) (585 SE2d 211) (2003).

       (Punctuation and footnote omitted.) Id. at 308 (4) (c) (no error where hearsay evidence was introduced at pre-sentencing hearing, absent strong showing that trial court relied on it in determining sentence).

       See id.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A10A2052.
    ARELLANO-CAMPOS v. THE STATE.
    (705 SE2d 323)
   Mikell, Judge.

Appellant Salvador Arellano-Campos was convicted of two counts of rape, based in part on evidence that he had sexually abused his girlfriend’s daughter, I. M. C., since she was eleven years old. The rapes for which appellant was convicted occurred in May 2004, when I. M. C. was 17 years old. Appellant was sentenced to life in prison. On appeal from the order denying his motion for a new trial, appellant challenges the sufficiency of the evidence to support his conviction and the effectiveness of his trial counsel. We affirm.

1. Citing contradictions and inconsistencies in the evidence, appellant contends that the state failed to prove that he raped I. M. C. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and appellant no longer enjoys a presumption of innocence. We do not weigh the evidence or determine witness credibility. Rather, we determine, based on the evidence adduced at trial, whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Moreover, conflicts in the testimony of the witnesses, including the state’s witnesses, are for the jury to resolve. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, we must uphold the jury’s verdict.”

Rape is committed when a person has carnal knowledge of a female forcibly and against her will.

[T]he terms “forcibly” and “against her will” are two separate elements of proving rape. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. . . . Further, force may be proved by direct or circumstantial evidence.

Contrary to appellant’s assertions, the evidence in the case at bar was sufficient for any rational trier of fact to find him guilty of rape. I. M. C., who was twenty years old at the time of trial, testified that she had known appellant since she was four years old, when he began dating her mother and moved in with them in Mexico. I. M. C. called him “dad” and considered him as her father. I. M. C. testified that he began sexually abusing her when she turned 11. She stated that one day, appellant told her that he loved her and ordered her to take her clothes off. Appellant threatened to harm her family if she refused. Repulsed, I. M. C. said no, but appellant removed her clothing and put his penis inside her vagina. I. M. C. testified that it hurt, and she bled. She testified that appellant told her not to tell anyone or else her family would “pay very badly.” Appellant raped I. M. C. repeatedly and abused her in other ways as well. He would scream at her, “asshole, useless, idiot good for nothing,” and once beat her with a shovel. Appellant beat I. M. C.’s nine-year-old brother repeatedly, even punching him in the face. I. M. C. testified that the police were called but did nothing because appellant bribed them.

Appellant and I. M. C.’s mother separated when I. M. C. was 13 years old. Still she did not report his abuse, fearing repercussions. Appellant returned when I. M. C. was 14 and began raping her again. She believed that he would kill her family if she told anyone. He took her to a hotel on her 15th birthday, in 2001, claiming he had a surprise for her, and then raped her again. Appellant made a videotape of the incident; he claimed that the videotape was in his mother’s possession.

I. M. C. testified that the day after her birthday, appellant brought her from Mexico to the United States, promising her that she would attend school and that her mother would join them. The promises were false. Instead of permitting I. M. C. to attend school here, appellant put her to work selling cheese door-to-door. At the time of trial, she had only a sixth grade education. Appellant allowed her to speak to her family in Mexico but supervised the conversations and instructed her to say that she was studying. After living in one apartment for a year or so, I. M. C. testified that her mother learned their address and expressed an intention to visit. Appellant told I. M. C.’s mother that they were already back in Mexico, which was false. Then appellant moved I. M. C. to a different apartment and never allowed her to call her mother again. According to I. M. C., appellant installed a lock on the front door that could only be opened from the outside, and he kept I. M. C. locked in. He made her cook and do laundry and screamed at her, “idiot, . .. stupid imbecile.” I. M. C. testified that appellant continued to force her to have sexual intercourse and to threaten to harm her family if she refused.

Finally, on May 17, 2004, I. M. C. saw a taxi driving by and flagged down the driver, who took her to the Norcross police station. She testified that she escaped from the apartment through the window. I. M. C. told the police that appellant generally raped her “every third day,” but had raped her on each of the two days before she came to the police station. She testified that she had been watching cartoons when appellant told her to turn off the television and unbutton her pants. She tried to refuse him but he threatened her family.

At the police station, officer David Aguilar interviewed I. M. C., who stated that appellant, whom she referred to as her mother’s boyfriend, had touched her and penetrated her. Aguilar testified that I. M. C. was crying and embarrassed during the interview. After I. M. C. gave a statement to Aguilar, she was taken to the Gwinnett County Sexual Assault Center, where she was examined by Katherine Boyd “Kabee” Johnston, an expert sexual assault nurse examiner. Sergeant Edward Restrepo of the Gwinnett County Police Department assisted in translating for I. M. C., as she spoke only Spanish.

Johnston testified that I. M. C. told her, through Restrepo, that her “stepfather” had been vaginally penetrating her since she was 11 years old and that the last sexual assault had occurred 18 hours earlier. The parties stipulated that samples collected from the vaginal examination performed by Johnston failed to reveal the presence of seminal fluid. Johnston testified, however, that due to the physical characteristics of the vagina and the fact that she used dry swabs to collect the samples, there could have been seminal fluid in I. M. C.’s body that the swabs did not pick up. Johnston also testified that her examination revealed that I. M. C. “had little pieces of hymen left,” which would be consistent with a person having intercourse for a “fairly long period of time.” I. M. C. was 17 years old at the time of the examination. Finally, Johnston testified that I. M. C.’s statement that she had been vaginally penetrated since she was 11 years old, most recently 18 hours earlier, was consistent with the physical examination.

The parties stipulated that Restrepo advised appellant of his constitutional rights in Spanish and that he freely, willingly and voluntarily waived those rights before making a statement to the police. Restrepo testified that appellant, who was in his 40s, initially stated that he lived with I. M. C. in a “father-daughter type relationship” and that he had dated I. M. C.’s mother in Mexico. Appellant repeatedly denied having any sexual contact with I. M. C. until detectives confronted him with the possibility that semen evidence may have been collected from her. Appellant then admitted that he had sexual intercourse with I. M. C. two or three times. Appellant claimed that I. M. C. initiated the sex by grabbing his penis and that he told her, “No, we can’t do this; I’m your father.” Over his objection, a portion of appellant’s videotaped statement Was played for the jury. When questioned about the rapes for which he was indicted, appellant stated: “Well, what happened was I didn’t feel like doing it but she provoked me.”

Appellant presented the testimony of two witnesses and testified in his own behalf. I. M. C. had obtained a business card from the taxi driver who took her to the police station, and he had written his name and cell phone number on the card. The taxi driver identified the card but did not recognize I. M. C. and testified that he had never helped anyone climb out of a window.

Jose Espinosa Guzman, appellant’s brother-in-law, testified that appellant lived with him for a year in 2001 but then left with his “mate.” Guzman testified that he did not know the name of appellant’s “mate” although he had known her since she was a little girl. According to Guzman, appellant introduced the victim as his “girlfriend,” and they seemed to have a “good, normal,” and “intimate” relationship.

Finally, appellant testified. He admitted that he had sexual relations with I. M. C. “more than once” and claimed that they lived “like a couple” for more than 16 months. According to appellant, they first had sexual relations when I. M. C. was 16 years old. Appellant claimed that their relationship was consensual and that they “got along marvelously.” Appellant denied ever threatening to harm I. M. C.’s family if she refused to have sex with him. Appellant testified that he lied to the police when he told them that his relationship with I. M. C. was that of father and daughter. He also testified that he lied to the police when he stated that he had a romantic relationship with I. M. C.’s mother. Appellant claimed that the police forced him to say that he had been having sex with I. M. C. since she was 11 years old by verbally mistreating him and threatening to kill him. Restrepo testified in rebuttal that he did not threaten or verbally abuse appellant when interviewing him.

Appellant contends that the evidence adduced at trial is insufficient to sustain his conviction because the victim’s testimony concerning the method of her escape from the apartment was contradicted by the taxi driver and her testimony concerning bars on the apartment window was not supported by other witnesses. But these issues were fully explored before the jury, and it was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.

Appellant further contends that there was no evidence of force. We disagree. “Lack of resistance, induced by fear, is force, and may be shown by the prosecutrix’ state of mind from her prior experience with appellant and subjective apprehension of danger from him.” Here, I. M. C. testified that appellant threatened to harm her family if she did not have sex with him. I. M. C. believed him, as he beat her with a shovel, beat her little brother repeatedly, and induced her with false promises to travel from Mexico to the United States, where he kept her a virtual prisoner in his apartment. The jury was authorized to find from I. M. C.’s testimony that any lack of resistance on her part was induced by fear of reprisal and that appellant had carnal knowledge of her forcibly and against her will. Accordingly, we conclude that the evidence adduced at trial was sufficient to enable any rational trier of fact to find appellant guilty beyond a reasonable doubt of two counts of rape.

2. Appellant next complains that the trial court erred in denying his motion for new trial on the ground of ineffective assistance of counsel. He argues that tried counsel rendered ineffective assistance by stipulating to the admissibility of his custodial statement and by failing to present purportedly exculpatory evidence available at the time of trial.

In order to prevail on his ineffective assistance claim, appellant must show that trial counsel performed deficiently and that the deficient performance prejudiced him. To prove that his trial counsel performed deficiently, appellant “must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct.” In order to establish prejudice, appellant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” On appellate review, “we accept the trial court’s factual findings and credibility determinations unless [they are] clearly erroneous, [while] we independently apply the legal principles to the facts.”

(a) The statement. Appellant contends that trial counsel performed deficiently in failing to file a motion to suppress his custodial statement, and in stipulating to its admissibility, because it was obtained in violation of Miranda. “When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” We conclude that appellant did not make the requisite showing.

When a defendant invokes his right to counsel, police must cease all further interrogation until counsel is made available to defendant. However, if after invoking his right to counsel a defendant initiates further communication with police and knowingly and intelligently waives his right to counsel, police can question defendant further.

The record herein shows that these conditions were satisfied. The transcript of appellant’s videotaped interview, which was introduced into evidence at the new trial hearing, reveals that after being advised of his Miranda rights, appellant stated, “I need an attorney to defend me.” The police officer who was questioning him, Re-strepo, then stated, “Ok. So you want an attorney?” Appellant replied “yes.” The following colloquy ensued:

[Restrepo:] Ok. You don’t want to talk to me?
[Appellant:] I don’t know what I’m being accused of. I was not told anything.
[Restrepo:] Before I can speak with you, you have to understand your rights. And then I explain to you everything that is happening and then you can understand at that time if you want to talk to me or not.
[Appellant:] I need to know what this is about. . . .
[Restrepo:] Ok, I’ll repeat it to you again. If you want to talk to me, we’ll talk. . . . And for me to be able to explain to you everything that is happening, and you to talk to me, you have to say yes, yes you understand your rights or you don’t understand them or you don’t want to talk to me.
[Appellant:] Ok, yes, I understand them.... And I need an attorney. I need to make a call.
[Restrepo:] Ok. That’s fine. One moment, ok?

The transcript shows that, at that point, Restrepo stopped the interview and left the room. The time stamp on the tape indicates that the recording was restarted seven minutes later. Restrepo testified that he stopped the tape because appellant had asked for a lawyer. He further testified that while preparing appellant for transport to the jail, appellant asked him “what this was all about.” Restrepo answered that “it was about him and [I. M. C.] having sex.” Restrepo testified there had been no conversation up to this point since he stopped the tape. Then appellant began to speak, and Restrepo informed him that he would need to advise him of his rights. The transcript reveals that appellant stated, “I already heard them once.” Restrepo read appellant the Miranda warnings again. Appellant acknowledged that he understood them and wanted to speak without an attorney. Although appellant testified at the new trial hearing, he did not testify concerning this issue.

Appellant’s trial counsel, Raymon Burns, testified that he took over the case from attorney Bruce Harvey. According to Burns, appellant’s file reflected that Harvey had already stipulated to the admissibility of the statement. Burns testified that he recalled discussing the statement with appellant and that appellant did not have a problem with his statement being revealed to the jury. Accordingly, Burns did not move to exclude the statement. Burns also testified that even if the statement had been excluded, he still would have advised appellant to testify because the victim’s testimony was “very, very damaging” and he did not believe that appellant “could let that victim’s testimony hang out there unchallenged.” The trial court found that counsel’s decision not to challenge the statement was sound trial strategy because, even assuming arguendo that the statement was subject to suppression under Miranda because the police did not cease questioning appellant once he requested an attorney, the statement would have been admissible to impeach appellant “had he changed his trial testimony in any way.” The trial court apparently relied on the rule that a statement obtained in violation of Miranda may not be used in the prosecution’s case-in-chief, although it may be used to impeach the defendant’s credibility if the trial court finds that the statement is voluntary.

Appellant argues that the court’s reasoning is flawed in light of Frazier v. State. In Frazier, the defendant repeatedly asked to speak to his lawyer during his interrogation, but the police continued to question him. We held that trial counsel’s failure to object to the admission of the defendant’s custodial statement during the state’s case-in-chief was deficient performance because, as the state conceded, the statement was obtained in violation of Miranda. Finally, we concluded that the defendant was prejudiced by the deficient performance and had established ineffective assistance of counsel.

Based on Frazier, we conclude that the trial court in the case at bar clearly erred in determining that counsel’s stipulation to the admissibility of appellant’s custodial statement was sound trial strategy even if a Miranda violation had occurred, because such violation would have rendered it inadmissible in the state’s case-in-chief. “Nevertheless, we will affirm the trial court’s denial of [appellant’s] motion for new trial under the ‘right for any reason’ rule if. . . the ultimate judgment was correct.”

In this case, unlike in Frazier, the record shows that questioning ceased after appellant invoked his right to counsel, albeit after the second request. Appellant made no incriminating statement between the two requests. Thereafter, appellant voluntarily reinitiated discussions with the police when he asked “what this was all about.” Appellant was advised of his Miranda rights and waived them. Contrary to appellant’s argument, Restrepo did not erroneously inform appellant that he was required to sign a Miranda waiver before making a statement. Accordingly, appellant has failed to make a strong showing that his statement would have been suppressed had counsel made the motion. Appellant has thus failed to carry his burden of showing that counsel was ineffective for stipulating to the admissibility of the statement.

(b) Purportedly exculpatory evidence. Appellant contends that trial counsel failed to present evidence that was available at trial and was exculpatory. This evidence consisted of photographs depicting appellant in an apartment, a few photographs of the victim, a “love note” that appellant claimed the victim wrote him, a copy of an airline reservation, and a copy of a lawsuit brought by the victim’s mother against appellant, accusing him of kidnapping her. Appellant testified at the new trial hearing that this evidence showed them as a “couple”; that he asked Burns to introduce it for that reason; and that Burns refused to do so. Appellant asserts on appeal that Burns should have introduced the evidence at trial to impeach the victim’s testimony that appellant held her against her will. Burns testified, however, that he had never seen any of the evidence at issue before the new trial hearing. In its order denying appellant’s motion for new trial, the trial court found Burns’s testimony that he was not presented with the evidence to be more credible than appellant’s testimony. As the finder of fact at the new trial hearing, the trial court was entitled to believe trial counsel and disbelieve appellant on this issue. Accordingly, the trial court did not err in rejecting appellant’s ineffectiveness claim on this ground.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

Decided January 19, 2011

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Karen M. Harris, Assistant District Attorney, for appellee.

        Chaparro v. State, 279 Ga. App. 145 (630 SE2d 645) (2006).

       Id.

       Id.

        Mora v. State, 295 Ga. App. 641, 642 (1) (673 SE2d 23) (2009).

       (Citation omitted.) Rankin u. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       OCGA § 16-6-1 (a) (1).

       (Citations and punctuation omitted.) Pollard v. State, 260 Ga. App. 540, 542-543 (3) (580 SE2d 337) (2003).

        Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004).

       (Citation and punctuation omitted.) Pollard, supra at 543 (3); accord Bradberry v. State, 297 Ga. App. 679, 681 (1) (678 SE2d 131) (2009); Wightman v. State, 289 Ga. App. 225, 228 (1) (656 SE2d 563) (2008).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Coleman v. State, 286 Ga. 291, 297 (6) (687 SE2d 427) (2009).

       (Citation and punctuation omitted.) Adams v. State, 283 Ga. 298, 299 (3) (658 SE2d 627) (2008).

       (Citation and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009).

       (Footnote omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

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

       (Citation and punctuation omitted.) Gossett v. State, 289 Ga. App. 792, 797 (6) (b) (658 SE2d 366) (2008).

       (Citation omitted.) Holmes v. State, 284 Ga. 330, 332 (5) (667 SE2d 71) (2008). See Edwards v. Arizona, 451 U. S. 477, 484-485 (II) (101 SC 1880, 68 LE2d 378) (1981).

        Linares v. State, 266 Ga. 812, 813 (2) (471 SE2d 208) (1996).

       298 Ga. App. 487 (680 SE2d 553) (2009).

       Id. at 489 (1).

       Id. at 489-490 (1).

       Id. at 490-491 (1).

       (Citation omitted.) Pierce v. State, 286 Ga. 194, 199 (4) (686 SE2d 656) (2009).

       Compare Robinson v. State, 286 Ga. 42 (684 SE2d 863) (2009) (police persisted in questioning defendant after he invoked his right to counsel).

       See Holmes, supra; Rios v. State, 281 Ga. 181, 182-183 (3) (637 SE2d 20) (2006).

       Compare State v. Darby, 284 Ga. 271, 272 (1) (663 SE2d 160) (2008) (affirming grant of motion to suppress custodial statement where officers informed defendant that signing the Miranda waiver was a precondition to making a statement).

        Gassett, supra.

        Ransom v. State, 297 Ga. App. 902, 906 (2) (a) (678 SE2d 574) (2009).


text:
    A10A2099.
    JOHNSON v. THE STATE.
    (707 SE2d 373)
   Mikell, Judge.

We granted Blake Anthony Johnson’s application for discretionary review of the revocation of his probation. Johnson contends that the trial court erred when it revoked his probation because he failed to pay court-ordered fines and fees. For the reasons that follow, we agree and reverse.

Johnson pled guilty to possession of marijuana in 2008. He was sentenced as a first offender to eight years on probation and ordered to pay a fine in the amount of $1,500, court costs of $110, and a monthly probation supervision fee of $32. In 2009, the state filed a petition to modify or revoke Johnson’s probation, alleging, inter alia, that Johnson failed to pay court-ordered fines, costs, and fees, and had committed new offenses. In response to the state’s petition, the trial court adjudicated Johnson guilty and sentenced him to serve eight years on probation, with credit for time already served, in accordance with the terms originally imposed for the 2008 possession of marijuana conviction. Additionally, he was ordered to complete a three-to-four-month program at a detention center and an outpatient substance abuse program. Two months later, Johnson pled guilty to possession of marijuana with intent to distribute. Johnson was sentenced to ten years probation, with the same conditions imposed, and he was ordered to pay $110 in court costs and a monthly probation supervision fee of $32. Subsequently, the state filed a petition to modify or revoke Johnson’s probation, on the sole ground that he failed to pay court-ordered fines, costs, and fees.

An evidentiary hearing was held at which Johnson testified that he did not have a job; that he had applied for employment at several places, which he named; that his family did not have the resources to help him pay his probation costs; and that he completed the detention center and substance abuse programs. The court posed questions to Johnson as to his age and his mental and physical ability to work, and Johnson explained that he was able to work. Johnson’s probation officer testified that Johnson was in arrears on both his fine and his fees; that he had not made a payment since August 2008; and that he had not talked with her about his failed efforts to obtain a job or his inability to pay his probation costs. The trial court ruled that Johnson had violated the terms and conditions of his probated sentences by failing to pay court-ordered fines and fees. The court revoked his probation, then reinstated it, making all of the conditions special, and required Johnson to serve 12 months in the detention center. It is from this order that Johnson appeals.

In support of his argument that the trial court erred, Johnson cites Bearden v. Georgia, in which the United States Supreme Court addressed the question of “whether a sentencing court can revoke a defendant’s probation for failure to pay the imposed fine and restitution, absent evidence and findings that the defendant was somehow responsible for the failure or that alternative forms of punishment were inadequate.” Answering the question in the negative, the Court held that

in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. If the probationer willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay, the court may revoke probation and sentence the defendant to imprisonment within the authorized range of its sentencing authority. If the probationer could not pay despite sufficient bona fide efforts to acquire the resources to do so, the court must consider alternative measures of punishment other than imprisonment. Only if alternative measures are not adequate to meet the State’s interests in punishment and deterrence may the court imprison a probationer who has made sufficient bona fide efforts to pay. To do otherwise would deprive the probationer of his conditional freedom simply because, through no fault of his own, he cannot pay the fine. Such a deprivation would be contrary to the fundamental fairness required by the Fourteenth Amendment.

Although we do not interfere with a revocation of probation unless the trial court has manifestly abused its discretion, we conclude here that such an abuse occurred. In the instant case, the trial court made no express or written findings as to the reasons for Johnson’s failure to pay or as to the inadequacy of alternative punishments. Rather, it inquired only as to Johnson’s fitness to work before deciding to revoke Johnson’s probation. Therefore, because the trial court made this determination without making the findings required by Bearden, it committed reversible error.

The state argues that these findings were not required because the instant case involved a negotiated plea. The state’s position is based on our holding in Dickey v. State, but we decline to read Dickey in such a broad manner that it abrogates the requirements set forth in Bearden. In Dickey, the defendant pled guilty to theft by taking over $160,000 from his employer and negotiated a probated sentence that required him to make restitution by a certain date. The defendant had paid only $2 by that date, and the trial court revoked his probation. The defendant argued on appeal that the trial court erred because there was no evidence that his failure to pay was wilful. However, we concluded that there was evidence of wilfulness because the defendant breached the contract he had made with the state to pay significant restitution in an effort to avoid imprisonment. We explained that when Dickey entered the contract with the state, he

knew that he would be required to pay $100,000 of restitution by August 15, 2001. Dickey also knew, better than the assistant district attorney and the trial judge, whether he had the ability to make this payment. If Dickey had any doubt concerning his ability to make the payment, he should have informed the other parties before everyone agreed to the terms. There is no evidence that he did so. Dickey’s silence, when he should have spoken, and his ultimate breach, make him culpable. He was not without fault.

Thus, the trial court was allowed to sentence him to imprisonment in accordance with the plea agreement because he “secure[d] his freedom by negotiating an agreement that require[d] restitution.” Therefore, because Dickey involves the failure to pay monies in accordance with a negotiated restitution provision, we find it inap-posite here.

Decided January 19, 2011.

Cook & Connelly, Andrea H. Strawn, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kevin J. Baugh, Assistant District Attorney, for appellee.

In the instant case, as in Bearden, although Johnson entered a negotiated plea, he was sentenced to general fines, costs, and fees. Thus, in order to revoke his probation based solely on the failure to pay these costs, the trial court was required to make a finding as to Johnson’s wilfulness, and if it concluded that Johnson was not at fault, it was required to consider other punishment alternatives, which' it did not do. Therefore, we reverse the revocation of probation and remand this case to the trial court for further proceedings consistent with the law.

Judgment reversed and case remanded.

Smith, P. J., and Adams, J., concur.

       461 U. S. 660 (103 SC 2064, 76 LE2d 221) (1983).

       Id. at 665 (II).

       (Footnote omitted; emphasis supplied.) Id. at 672-673 (II). Applying Bearden in Massey v. Meadows, 253 Ga. 389, 390 (321 SE2d 703) (1984), our Supreme Court held that the Bearden requirements also applied to cases where the payment of a fine is a condition precedent to probation and that a defendant’s probation could not be withheld for failure to pay a fine absent a showing of wilfulness on his part or that alternative punishments are inadequate.

        Griffin v. State, 302 Ga. App. 807, 808 (692 SE2d 7) (2010).

       Supra.

       257 Ga. App. 190 (570 SE2d 634) (2002).

       Supra.

       Supra.

       Id. at 190-191.

       Id. at 191.

       Id. at 191 (1).

       Id. at 192 (1).

       (Footnote omitted.) Id.

       (Footnote omitted.) Id. at 193 (1).

       Id.

       Supra.

       See Reid v. State, 204 Ga. App. 358, 362 (4) (419 SE2d 321) (1992) (a Bearden hearing is required if probation is about to be revoked for failure to pay a fine). Compare Cannon v. State, 260 Ga. App. 15, 16-17 (579 SE2d 60) (2003) (no inquiry as to wilfulness required where the defendant admitted that he violated the restitution condition but promised to pay the next month, which necessarily admitted wilfulness).


text:
    A10A2197.
    SANDLIN v. THE STATE.
    (707 SE2d 378)
   Mikell, Judge.

After a jury trial, Jason Allen Sandlin was acquitted of driving under the influence of drugs to the extent that he was less safe, and was convicted of driving under the influence of a controlled substance and failure to maintain lane. Sandlin was also charged with, and pled nolo contendere to, possession of marijuana. On appeal, Sandlin argues that the trial court committed three errors: (1) it denied his motion to suppress; (2) it overruled his demurrer challenging the constitutionality of OCGA § 40-6-391 (a) (6); and (3) it entered a judgment of conviction on the violation of OCGA § 40-6-391 (a) (6). Because this case is governed by Love v. State, which held that OCGA § 40-6-391 (a) (6) was unconstitutional on equal protection grounds, we reverse Sandlin’s conviction on this charge.

1. The record shows that David Golz, a forensic toxicologist employed by the Georgia Bureau of Investigation, testified that Sandlin’s blood contained metabolites of marijuana and alprazolam, which is commonly referred to as Xanax. Golz testified that alpra-zolam, a Schedule IV drug, is a controlled substance that acts as a central nervous system depressant, and is only available through prescription.

OCGA § 40-6-391 (a) (6) provides that a person with any amount of marijuana or a controlled substance in his or her urine or blood can be convicted of driving under the influence. Under OCGA § 40-6-391 (b), however, a person who legally uses a controlled substance can only be convicted of DUI if that person “is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.” Therefore, Sandlin maintains that the statute denies him equal protection under the law because it disparately treats legal and illegal users of alprazolam.

The same argument was made in Love, in which our Supreme Court held that OCGA § 40-6-391 (a) (6) was unconstitutional as it pertained to persons with detectable levels of marijuana in their systems. The Court explained that the legislative distinction between users of legal and illegal marijuana was not directly related to the public safety purpose of the legislation. Therefore, it concluded that the statute was arbitrarily drawn and was an unconstitutional denial of equal protection. The Court reversed the defendant’s conviction. The same result is warranted here because alprazolam is also a controlled substance that can be legally prescribed. The state maintains that Sandlin was required to show that he was legally authorized to use the alprazolam, but Love does not require such a showing to assert an equal protection challenge to the statute. Thus, Sandlin’s conviction of violating OCGA § 40-6-391 (a) (6) cannot stand.

Decided January 19, 2011.

Stemberger, Cummins & Arnall, D. Scott Cummins, Mien M. Trapp, Jr., for appellant.

Robert Stokely, Solicitor-General, Stephen J. Tuggle, Assistant Solicitor-General, for appellee.

2. In light of our holding in Division 1, we need not address Sandlin’s remaining enumeration of error.

Judgment reversed.

Smith, P. J., and Adams, J., concur.

       OCGA § 40-6-391 (a) (2). The drugs identified in the accusation were alprazolam and marijuana.

       OCGA § 40-6-391 (a) (6). The controlled substance named in the accusation was alprazolam.

       271 Ga. 398 (517 SE2d 53) (1999).

       See OCGA § 16-13-28 (a) (1).

       OCGA § 40-6-391 (b).

       Supra.

       Id. at 402-403 (3).

       Id. at 403 (3).

       Id.

       See Doster v. State, 259 Ga. App. 605, 607, n. 2 (578 SE2d 262) (2003) (demurrer to DUI charge granted based upon Love, supra, where defendant tested positive for the presence of amphetamine, a Schedule II drug (OCGA § 16-13-26 (3) (A)). Compare Keenum v. State, 248 Ga. App. 474, 475 (2) (546 SE2d 288) (2001) (OCGA § 40-6-391 (a) (6) is not unconstitutional when applied to those convicted of driving with a detectable level of cocaine in their systems because “there would never be an instance of a ‘legal cocaine user’ ”). Accord Head v. State, 303 Ga. App. 475, 477-478 (2) (693 SE2d 845) (2010) (same).

       Supra.


author: MlKELL, Judge.

text:
    A10A1783.
    OSORTO-AGUILERA v. THE STATE.
    (705 SE2d 330)
   MlKELL, Judge.

Based on acts committed against a 12-year-old child, appellant Adrian Osorto-Aguilera was indicted for rape, child molestation, and burglary. A jury convicted him of child molestation but acquitted him of the other charges. Appellant was sentenced to 20 years to serve. On appeal from the order denying his amended motion for new trial, appellant contends, inter alia, that the trial court’s charge on child molestation was incomplete and that the court erred in refusing to charge the jury on good character. We find no error and affirm.

1. Appellant asserts that the trial court erred in giving a pattern jury charge on child molestation without tailoring the charge to the indictment. The indictment accused appellant of committing child molestation by placing his fingers on the victim’s vagina. During the charge conference, appellant requested that the court charge the jury that he could not be found guilty of this offense unless the state proved that he committed the crime in the manner alleged in the indictment. The trial court denied the request, stating that it would give the pattern charge. When charging the jury, the trial court read the indictment, including the count that accused appellant of committing child molestation by placing his fingers on the victim’s vagina. The court further informed the jury of the state’s burden to prove “every material allegation and every essential element of the crime charged beyond a reasonable doubt.” The court then gave the pattern jury charge on child molestation. At the conclusion of the charge, the court reminded the jury that it would have the indictment during deliberations and that the indictment set out the elements of the offenses.

In support of his contention that he is entitled to a new trial because the jury charge was not tailored to the indictment, appellant cites, inter alia, Hopkins v. State, an aggravated battery case, and Walker v. State, a theft by taking case. Those cases are distinguishable because the indictment in each case alleged that the defendant had committed a crime by one method, and the court instructed the jury that the crime could be committed by another method not alleged in the indictment. That did not occur in this case. “OCGA § 16-6-4 (a) does not provide several methods for committing the offense of child molestation. Thus, it is highly unlikely that the jury found [appellant] guilty for committing the offense in some other manner than that charged in the indictment.”

2. Appellant contends that the trial court erred in denying his written request to charge the jury on good character. Appellant argued at trial that the charge was warranted based on his testimony that he had no criminal record other than a single misdemeanor involving license plates. There was no error, as “merely having no convictions or a clean record is insufficient to invoke good character.” Although on appeal, appellant cites other alleged instances of his own good character testimony, we cannot consider them because they were not argued in the trial court. “Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court.” The trial court did not err in refusing to give appellant’s requested charge on good character.

Decided January 20, 2011.

Jimmonique R. S. Rodgers, for appellant.

Gwendolyn Keyes Fleming, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

3. Appellant contends that reversible error occurred when a detective testified that the victim’s appearance and demeanor were consistent with those of a child who “had just been molested or had just been abused.” Appellant failed to make a contemporaneous objection to this testimony at trial, however, and has thus waived his current argument that the testimony invaded the jury’s province.

4. Finally, appellant asserts that counsel was ineffective for failing to object to the detective’s testimony quoted above in Division 3. Appellant waived this argument by failing to assert it either in his amended motion for new trial or during the hearing held thereon.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

       Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2009), § 2.34.10.

       255 Ga. App. 202 (564 SE2d 805) (2002).

       146 Ga. App. 237 (246 SE2d 206) (1978).

        Hopkins, supra at 205-206 (2); Walker, supra at 242 (1) (b).

       See Milan v. State, 293 Ga. App. 398, 402-403 (5) (667 SE2d 267) (2008) (rejecting argument that by reading entire charge on child molestation to the jury, the trial court permitted defendant to be convicted of committing a crime in a manner that was not alleged in the indictment).

       (Citation and punctuation omitted.) Buice v. State, 239 Ga. App. 52, 59 (5) (520 SE2d 258) (1999).

        Godsey v. State, 271 Ga. App. 663, 664 (610 SE2d 634) (2005), citing Knapp v. State, 229 Ga. App. 175, 177 (3) (493 SE2d 583) (1997); Etienne v. State, 219 Ga. App. 95, 96-97 (1) (464 SE2d 396) (1995).

       (Punctuation and footnote omitted.) Holmes v. State, 271 Ga. App. 122, 123 (1) (608 SE2d 726) (2004).

       See Sanchez v. State, 285 Ga. 749, 751-752 (3) (684 SE2d 251) (2009).

        Bryant v. State, 282 Ga. 631, 639 (8) (651 SE2d 718) (2007) (“Where the issue of trial counsel’s effectiveness has been raised on motion for new trial, any claims not raised at that time are waived”) (citation and punctuation omitted).


author: MILLER, Presiding Judge.

text:
    A10A1984.
    WILLIAMS v. THE STATE.
    (705 SE2d 332)
   MILLER, Presiding Judge.

A jury found Diago Williams guilty of a single count of aggravated assault (OCGA § 16-5-21 (a) (2)). Williams appeals, arguing that (i) the evidence was insufficient to support his conviction, and that the trial court erred (ii) in instructing the jury on aggravated assault and (iii) in denying his motion for mistrial based upon the State’s comment as to his failure to produce a witness. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, Berry v. State, 274 Ga. App. 366, 367 (1) (618 SE2d 72) (2005), the evidence shows that on August 10, 2002, Williams and his wife attended a social gathering at their neighbor’s home. While at the gathering, another guest, Albert Nichols, began picking on Williams verbally, causing Williams to become visibly upset. While the two were in the kitchen, Williams pulled out a gun and fired a shot at the small refrigerator on which Nichols was sitting. Williams then hit Nichols in the head with his gun, and an altercation ensued. Nichols attempted to escape to his parked vehicle, but Williams pursued him and fired two shots into the vehicle where Nichols was sitting.

Following the incident, the police were called to the scene. During the investigation, the police found a shell casing in the kitchen and a bullet hole inside the refrigerator. Williams was subsequently arrested, charged, and convicted of aggravated assault.

1. Williams’s claim to the contrary notwithstanding, the evidence was sufficient for a rational trier of fact to find Williams guilty of aggravated assault beyond a reasonable doubt.

At trial, a witness to the incident testified that Williams intentionally fired his gun in Nichols’s direction after he became upset with Nichols’s jokes. A bullet hole was also found inside the refrigerator where Nichols was sitting. Based on this evidence, a rational trier of fact could conclude that Williams committed the crime of aggravated assault by shooting at, toward, or in the direction of Nichols. OCGA § 24-4-8 (testimony of a single witness is sufficient to establish a fact); In the Interest of I. C., 300 Ga. App. 683, 684 (1) (686 SE2d 279) (2009) (evidence that juvenile fired shots in the direction of the victim sufficed to establish his delinquency of aggravated assault); Dukes v. State, 264 Ga. App. 820 (592 SE2d 473) (2003); Goodman v. State, 237 Ga. App. 795, 796 (516 SE2d 824) (1999).

2. Williams contends that the trial court erred in failing to instruct the jury on simple assault as an essential element of aggravated assault. We disagree.

As an initial matter, the record fails to indicate that Williams submitted a written request to charge on simple assault. “[T]he failure to give an unrequested charge constitutes reversible error only when the omission is clearly harmful and erroneous as a matter of law in that the charge that was given fails to provide the jury with the proper guidelines for determining guilt or innocence.” (Citation omitted.) Whitaker v. State, 283 Ga. 521, 526 (4) (661 SE2d 557) (2008). “We will not reverse a conviction on the basis of an erroneous jury instruction unless the instruction, viewed as part of the whole charge, is harmful.” (Punctuation and footnote omitted.) Emmanuel v. State, 300 Ga. App. 378, 380 (3) (685 SE2d 361) (2009).

Here, the trial court instructed the jury that “[a] person commits the offense of aggravated assault when that person assaults another person by shooting said person or by shooting at, towards, and in the direction of said person with a handgun, which is a deadly weapon.” The trial court also charged the jury on the indicted offense, the presumption of innocence, and the State’s burden of proof, including its burden “to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” Under these circumstances, the trial court’s instruction was sufficient to define the offense charged and provided a proper guideline for the determination of Williams’s guilt or innocence. See Whitaker, supra, 283 Ga. at 526 (4) (trial court’s failure to give unrequested charge on definition of deadly weapon was not harmful error where trial court instructed the jury as to the State’s burden of proof and particularly, that the State “had to prove that the aggravated assault was made with a deadly weapon as alleged in the case”).

Williams nevertheless contends that Coney v. State, 290 Ga. App. 364 (659 SE2d 768) (2008), supports his argument that the trial court’s failure to define simple assault in its instruction on aggravated assault constitutes plain legal error. We disagree.

In Coney, the defendant was charged with aggravated assault by “making an assault upon [a police officer] with a pistol, a deadly weapon,... by shooting said officer[.]” (Punctuation omitted.) Id. at 365. The trial court instructed the jury that “a person commits the offense of aggravated assault when that person assaults another person with a deadly weapon,” but did not instruct the jury on the remaining portion of the pattern jury instruction, which includes the statutory definition of assault. Id. at 366 (1). Based on evidence that the defendant and the police officer struggled over a gun and that a gunshot rang out, injuring the officer’s hand, the defendant requested a jury charge on criminal negligence in connection with reckless conduct as a lesser included offense of aggravated assault, which charge the trial court gave. Id. at 364, 368 (1), n. 23. Since the evidence raised a question as to whether the defendant was guilty of criminal negligence as a lesser included offense to aggravated assault, we held that the trial court erred in failing to charge the statutory definition of assault. Id. at 365-369 (1).

The instant case, however, is distinguishable from Coney. Here, there is no evidence that Williams’s acts constituted criminal negligence or reckless conduct. Instead, the evidence showed that Williams intentionally shot at Nichols after becoming angry. Thereafter, Williams fought with Nichols, striking him in the head twice with his gun. Williams then pursued Nichols, who had sought refuge in his truck, and deliberately fired two shots into the truck where Nichols was sitting. Since Williams “has pointed to no evidence that his [gun] discharged as a result of negligence[,]” criminal negligence was not an issue in this case. Emmanuel, supra, 300 Ga. App. at 380 (2). Thus, any alleged error in omitting the statutory definition of assault from the trial court’s charge on aggravated assault was harmless. Whitaker, supra, 238 Ga. at 526 (4); Emmanuel, supra, 300 Ga. App. at 380 (3) (where evidence showed that defendant’s act of shooting gun was intentional or justified, and criminal negligence and reckless conduct were not at issue, the trial court’s failure to instruct the jury on simple assault was harmless).

3. Williams contends that the trial court erred in failing to grant a mistrial when the State in its closing argument improperly commented on his failure to call his wife as a witness. Again, we disagree.

On appeal, we review a trial court’s denial of a motion for mistrial for an abuse of discretion. See Dupont v. State, 204 Ga. App. 262, 264 (3) (418 SE2d 803) (1992).

During closing argument, the State argued to the jury, “It is important for you to realize also who was not called. [Williams’s] wife was not called to the stand. His wife was not called to the stand to say he came home that night and stayed home. We [were not] there. If he went straight home and stayed home that night, why [did not] she come and say it.” Williams moved for a mistrial on the grounds that the State’s comment on his failure to call a witness improperly shifted the burden to him to produce an alibi witness. After the trial court denied the motion, Williams did not request a curative instruction, but rather renewed the motion for a mistrial. Although Williams preserved the error for appeal (see Owens v. State, 250 Ga. App. 61, 62 (550 SE2d 464) (2001)), as discussed in Division 1, supra, the evidence was sufficient to sustain his conviction of aggravated assault beyond a reasonable doubt. In light of the strength of the State’s case and the trial court’s instructions to the jury explaining the State’s burden of proof and the lack of any burden on Williams to introduce evidence or prove his innocence, we conclude that any alleged error was harmless. See Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995) (trial court’s denial of defendant’s motion for mistrial was harmless when considered in light of overwhelming evidence of defendant’s guilt). See also Dupont, supra, 204 Ga. App. at 264 (3) (finding no abuse of discretion in the denial of defendant’s motion for mistrial where the trial court’s instructions to the jury adequately explained the State’s burden of proof and specifically informed the jury that defendant was not required to present any evidence).

Decided January 20, 2011

Cromwell & Hihbert, Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

McFadden, J., concurs. Phipps, P.J., concurs in the judgment only.

       OCGA § 16-5-20 (a) provides that “[a] person commits the offense of simple assault when he ... either: (1) Attempts to commit a violent injury to the person of another; or (2) Commits an act which places another in reasonable apprehension of immediately receiving a violent injury.”

       The pattern jury instruction on aggravated assault incorporates the statutory definition of assault:
      To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant (attempted to cause a violent injury to the alleged victim) [or] (intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury).
      Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.20.21.


text:
    A10A2132, A10A2133.
    BRITTON v. FEDERAL NATIONAL MORTGAGE ASSOCIATION (two cases).
    (705 SE2d 682)
   Mikell, Judge.

Kenneth A. Britton, proceeding pro se, appeals from two orders entered by the trial court in this dispossessory action. In Case No. A10A2132, he appeals the issuance of a dispossessory order entered in favor of the Federal National Mortgage Association (“FNMA”). In Case No. A10A2133, Britton appeals from the order requiring him to make rental payments into the registry of the court. For reasons set forth below, we dismiss Case No. A10A2132 and affirm the judgment in Case No. A10A2133.

The scant records in these cases show that FNMA filed a dispossessory warrant against Britton and two others, alleging that they were in possession of certain property in Stone Mountain as tenants at sufferance following a foreclosure sale of the property on February 2, 2010. Britton filed an answer, alleging wrongful foreclosure. Following a hearing, which was not transcribed, the trial court ordered that a writ of possession be issued the following week. Prior to the issuance of the writ, Britton filed a notice of appeal. Thereafter, FNMA filed a motion to compel payment of rent into court pursuant to OCGA § 44-7-54. A hearing was held, but it was not transcribed. On the date of the hearing, June 17, 2010, the trial court entered an order requiring Britton to pay $4,194 in back rent into court, plus $845 per month on the fifth day of each month thereafter.

Case No. A10A2132

1. Although Britton filed a notice of appeal in Case No. A10A2132, he has failed to file a brief or enumerations of error. Moreover, the brief filed by Britton in Case No. A10A2133 does not challenge the judgment determining that FNMA is entitled to possession of the property. Thus, his appeal from that judgment is deemed abandoned and is hereby dismissed pursuant to Court of Appeals Rule 23 (a).

Case No. A10A2133

2. Britton asserts that the trial court erred in ordering him to pay rent accruing from the date of foreclosure. Britton contends that rent should have been computed from the date of FNMA’s motion to compel payment of rent. He cites no authority in support of this proposition, and our research reveals none.

An owner of real property who remains in possession following a foreclosure sale of the property becomes a tenant at sufferance. “A tenant at sufferance is liable for the reasonable rental value of the premises.”

OCGA § 44-7-56 provides that, pending an appeal the trial court may require payment of rent into the registry of the court, even if the relationship as tenants at sufferance has not been decided by the court. The amount of rent is the reasonable rental value if no prior rent had been established.

Because Britton appealed the judgment ordering that a writ of possession be issued to FNMA, the trial court was authorized to order him to pay rent due from the date of foreclosure.

... If the judgment of the trial court is against the tenant and the tenant appeals this judgment, the tenant shall be required to pay into the registry of the court all sums found by the trial court to be due for rent in order to remain in possession of the premises. The tenant shall also be required to pay all future rent as it becomes due into the registry of the trial court. . . until the issue has been finally determined on appeal.

Decided January 20, 2011.

Kenneth A. Britton, pro se.

Shapiro & Swertfeger, Philip A. Hasty, Denise R. Griffin, Heather M. Malick, for appellee.

3. Finally, Britton contends that the trial court erred in failing to hear certain evidence concerning comparable rents in the area. We cannot review this contention, however, because Britton failed to include a transcript of the hearing in the record. In fact, his notice of appeal states that “a transcript will not be included with this Appeal.” Accordingly, Britton has failed to carry his burden, as the appellant, of affirmatively showing error by the record. We therefore presume that the trial court’s judgment is correct and affirm.

Appeal dismissed in Case No. A10A2132.

Judgment affirmed in Case No. A10A2133. Smith, P. J., and Adams, J., concur.

       See Brown v. Jackson, 221 Ga. App. 200, 201 (1) (470 SE2d 786) (1996).

        Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 750-751 (1) (512 SE2d 671) (1999); Mathews v. Fidelcor Mtg. Corp., 148 Ga. App. 292 (251 SE2d 68) (1978).

       (Citation omitted.) Bible v. Allday, 93 Ga. App. 231 (2) (91 SE2d 306) (1956).

       (Citations omitted.) Bellamy, supra at 751 (1). Accord Thomas v. Wells Fargo Credit Corp., 200 Ga. App. 592, 594 (5) (409 SE2d 71) (1991); Mathews, supra at 293 (1).

       OCGA § 44-7-56 pertinently provides:

        Sanders v. Daniel, 302 Ga. App. 350, 351 (1) (691 SE2d 244) (2010).

       Id.; accord Mackey v. Fed. Nat. Mtg. Assn., 294 Ga. App. 495,497-498 (5) (669 SE2d 397) (2008).


text:
    A10A2205.
    STUMP v. YOUNG.
    (705 SE2d 684)
   MlKELL, Judge.

In Young v. Stump, we affirmed the grant of summary judgment to Ann Stump, the executrix of William Rowland’s estate, finding that Rowland’s former wife, Donna Young, relinquished her interest as beneficiary in his IRA pursuant to a waiver provision in their divorce settlement agreement. Following receipt of the remittitur, the trial court entered final judgment on April 28, 2009. The judgment included an award of attorney fees, court costs, and prejudgment interest.

On February 4, 2010, Young filed a “motion to vacate and set aside pursuant to OCGA § 9-11-60 (d); extraordinary motion for new trial pursuant to OCGA § 5-5-41 (a); and motion for temporary stay of enforcement of judgment.” Among the grounds she asserted was that “[s]aid Final Order was never served upon either Defendant or Defendant’s counsel, either by opposing counsel or by the Clerk of Court’s office. As such, Defendant was entirely unaware of the entry of the final judgment.” Young moved to set aside only that portion of the final order as pertained to attorney fees, costs of litigation, and prejudgment interest, noting that the trial court had never held a hearing on Stump’s claim therefor.

Decided January 20, 2011.

Randall A. Constantine, for appellant.

Alan Mullinax, Zachary R. Stepp, for appellee.

The trial court held a hearing on Young’s motion and then granted it. In its order, the court vacated and set aside the portion of its final judgment that awarded attorney fees and interest. The trial court correctly ruled that it should have scheduled a hearing on those issues. Stump directly appealed to this Court. Young filed a motion to dismiss the appeal, arguing that the trial court’s order is not final and may not be appealed absent a certificate of immediate review.

At first blush, it would appear that a direct appeal is proper. “Motions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.” The judgment in the case at bar, however, made clear that the issues of attorney fees, costs and interest remain to be resolved. Under OCGA § 5-6-34 (a) (1), direct appeals are allowed from “[a]ll final judgments, that is to say, where the case is no longer pending in the court below.” As the judgment left issues pending in the trial court, it is not a final judgment within the meaning of OCGA § 5-6-34 (a) (l). Absent a certificate of immediate review and application for interlocutory appeal, Young’s direct appeal is premature and must be dismissed.

Appeal dismissed.

Smith, P. J., and Adams, J., concur.

       294 Ga. App. 351 (669 SE2d 148) (2008).

       Id.

       See Mays v. City of Fairburn, 301 Ga. App. 386, 387 (2) (687 SE2d .591) (2009) (trial court erred in awarding attorney fees under OCGA § 9-15-14 without conducting a hearing).

        Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869 (1) (481 SE2d 903) (1997), citing Leuenthal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455) (1995).

       See Northen v. Mary Anne Frolick & Assocs., 235 Ga. App. 804, 806 (1) (510 SE2d 122) (1998) (direct appeal dismissed, where plaintiffs claim for attorney fees in a contract action remained for adjudication after entry of judgment on all other counts).

       Id.


text:
    A10A2211.
    WHEELER v. THE STATE.
    (705 SE2d 686)
   MILLER, Presiding Judge.

A jury convicted Jeffrey J. Wheeler of criminal damage to property in the first degree (OCGA § 16-7-22 (a)), possession of less than one ounce of marijuana (OCGA § 16-13-30 (a)), and possession of a sawed-off shotgun (OCGA § 16-11-122). Wheeler appeals, contending that (i) the evidence was insufficient to support his convictions of possession of less than one ounce of marijuana and possession of a sawed-off shotgun, and (ii) the trial court erred in refusing to instruct the jury on lesser included offenses. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, Cox v. State, 300 Ga. App. 109 (684 SE2d 147) (2009), the evidence shows that at approximately 12:45 a.m. on September 26, 1993, Jennifer Langley was awake in her bedroom when she heard what appeared to be several gunshots “hitting the side of [her] trailer and going through like it had been shot.” When she looked out her window, Langley saw a silver El Camino leaving the trailer park and recognized it as Wheeler’s vehicle. Crawling on her hands and knees to her parents’ room, Langley screamed that someone had fired a bullet through the trailer. Langley’s mother, Pamela Harris, immediately called 911. Harris told the responding officer that Wheeler drove a silver El Camino and provided the officer with Wheeler’s address in Buford.

When Gwinnett County police officers thereafter responded to Wheeler’s residence and knocked on the front door, Wheeler’s father appeared at a side door, followed by Wheeler. An El Camino, matching the description provided by Langley, was parked outside the residence. The engine was still ticking as if it had just been turned off, and the hood was hot. The investigating detective observed a .22 caliber shell casing in the driver’s seat of the vehicle, which he later retrieved. Following his initial investigation, the detective left Wheeler’s residence and went to the scene at Harris’s residence. During his investigation of the scene, the detective observed that a bullet had entered and exited the bathroom, passing through four separate areas of the trailer. Nine spent .22 shell casings were scattered in the street in front of Harris’s residence.

The officers obtained a search warrant for Wheeler’s residence. Upon executing the warrant, Wheeler and his father were in the kitchen. The police found a small quantity of marijuana in a plastic cigarette case inside a coffee table in the den and some marijuana on the coffee table. In Wheeler’s bedroom, inside a dresser drawer, officers found a makeup compact containing marijuana residue and a marijuana cigarette butt. A loaded 19-inch sawed-off shotgun was in plain view, leaning against a dining room door, the barrel of which was located in a closet area. Officers also found a .22 caliber pistol under a living room couch and .22 caliber ammunition in a kitchen drawer. According to the detective, Wheeler admitted that the marijuana and the shotgun were his; Wheeler’s father also provided a statement, claiming his ownership of the items. The total weight of the marijuana found in the residence was less than one ounce.

Harris testified at trial that her son and Wheeler simultaneously dated the same young woman approximately two or three months before the shooting. A conversation intended to resolve the issue about the mutual girlfriend ended in a tacit threat when Wheeler told Harris that he kept a .22 caliber pistol in his car.

Wheeler’s cousin testified as an alibi witness in favor of the defense. According to Wheeler’s cousin, on the evening of September 25, 1993, he took his children skating and then to dinner with Wheeler. They returned to Wheeler’s cousin’s house at approximately midnight, and the two adults watched television until approximately 1:00 a.m., when Wheeler’s cousin fell asleep.

1. Wheeler contends that the evidence was insufficient to support his convictions for possession of less than one ounce of marijuana and possession of a sawed-off shotgun because the State failed to show that he was in sole constructive possession of the contraband. We disagree.

Possession may be either actual or constructive. Constructive possession exists where a person though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing. ... As long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.

(Citations and punctuation omitted.) Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008).

The evidence shows that Wheeler and his father both lived at the residence. Since Wheeler alone was charged with possession of marijuana and the sawed-off shotgun, he argues that the State was required to show that he had sole constructive possession of these items. See Xiong v. State, 295 Ga. App. 697, 699 (2) (a) (673 SE2d 86) (2009) (“Where the State prosecutes only one of two or more people who had equal access to the contraband, the State must show sole constructive possession by the defendant.”) (citations and punctuation omitted). Compare Edwards v. State, 306 Ga. App. 713, 716 (703 SE2d 130) (2010) (where defendant and his wife were jointly charged with possession of methamphetamine and other charges, the state “could establish the element of possession by showing that [defendant] was in joint constructive possession of the contraband”).

If the State presents evidence that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband. Although this presumption may be rebutted by showing that others had access to the premises, the equal access doctrine applies to rebut the presumption of possession only where the sole evidence of possession of contraband found on the premises is the defendant’s ownership or possession of the premises.

(Citations and punctuation omitted; emphasis in original.) Bailey, supra, 294 Ga. App. at 439-440 (1). Unlike the defendant in Xiong, Wheeler’s possession of the contraband was not based solely on his possession of the residence. Rather, the State presented direct evidence of Wheeler’s admission that the contraband belonged to him and that some marijuana was found in his bedroom. While Wheeler’s father also claimed that the contraband belonged to him, the detective believed that he did so in order to protect his son. The conflicts in the evidence in this regard presented a question for the jury’s resolution. See Mickens v. State, 277 Ga. 627, 629 (593 SE2d 350) (2004) (discussing jury’s province to determine the credibility of the witnesses and to resolve any conflicts in the evidence). Viewing the evidence in the light most favorable to the verdict, the jury was authorized to reject Wheeler’s father’s claim of ownership and conclude that Wheeler had sole constructive possession of the contraband. Id.; Bailey, supra, 294 Ga. App. at 440 (1) (presence of gun in office containing defendant’s personal belongings, and defendant’s admission that the “guns” and drug contraband found in the house were his supported finding that defendant constructively possessed sawed-off shotgun and cocaine). Accordingly, the evidence was sufficient to support Wheeler’s convictions for possession of less than one ounce of marijuana and possession of a sawed-off shotgun. Sing u. State, 217 Ga. App. 591, 592 (1) (458 SE2d 493) (1995) (where evidence connects a defendant to contraband “other than his own equal access,” the jury determines his guilt or innocence) (citation omitted).

2. Wheeler claims that the trial court erred by failing to charge the lesser included offenses of criminal damage to property in the second degree, reckless conduct, and criminal trespass. We are not persuaded.

A written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. However, when the evidence establishes all the elements of the indicted offense and there is no evidence showing the lesser offense, there is no error in refusing to charge the lesser offense.

(Citations and punctuation omitted.) Thompson v. State, 277 Ga. App. 323, 325 (3) (626 SE2d 825) (2006).

“A person commits the offense of criminal damage to property in the first degree when he: . . . [k]nowingly and without authority interferes with any property in a manner so as to endanger human life[.]” OCGA § 16-7-22 (a) (1). The Supreme Court of Georgia has construed the phrase “in a manner so as to endanger human life” to mean “reckless endangerment rather than actual endangerment.” Carthern v. State, 272 Ga. 378, 381 (529 SE2d 617) (2000). Following the Model Penal Code’s formulation, our Supreme Court held that an “actual risk of danger must exist and the defendant must at least act recklessly.” Id. This construction is consistent with the purpose of the statute “to protect property in the interest of human life[.]” Id. at 380.

Here, the State’s evidence showed that at approximately 12:45 a.m. on the incident date, Wheeler intentionally fired several shots into Harris’s residence at a time when it was obviously inhabited. There was also evidence that two vehicles were parked in the driveway outside her residence. Although only one bullet entered the residence, the fact that nine empty shell casings were scattered in the street outside Harris’s residence showed that Wheeler specifically targeted Harris’s residence such that his acts were reckless, rather than negligent. See Carthern, supra, 272 Ga. at 381. The evidence also showed that Wheeler previously told Harris that he kept a .22 caliber pistol concealed in his car as a veiled threat that he would use it if Harris’s son continued to date the woman whom Wheeler was dating, which evinces Wheeler’s motive for the shooting. See OCGA § 16-2-6 (jury may find criminal intent “upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is being prosecuted”).

Accordingly, the evidence showed beyond a reasonable doubt that Wheeler committed the offense of criminal damage to property in the first degree when he “[kjnowingly and without authority interfered] with [Harris’s property] in a manner so as to endanger human life” by firing several shots at her residence in the early morning hours. OCGA § 16-7-22 (a); Carthern, supra, 272 Ga. at 381 (evidence that defendant fired a gun at night into an inhabited dwelling where residents were likely to be present was sufficient to uphold defendant’s conviction for criminal damage to property in the first degree; “[t]he fact that the occupants of the house were not physically present does not lessen the risk of danger to others or the recklessness of (defendant’s) behavior”) (punctuation omitted).

Decided January 20, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, David K. Keeton, Assistant District Attorney, for appellee.

Further, Wheeler presented an alibi defense, claiming that he was not present at the time of the shooting, and his evidence did not reasonably raise an inference which would mitigate the criminal intent required for criminal damage to property in the first degree. See, e.g., Martin v. State, 283 Ga. App. 652, 653-654 (642 SE2d 340) (2007) (evidence did not show that defendant was simply negligent when he drove the car with the victim caught on the outside; therefore, no factual basis existed for a charge on reckless conduct). Since the evidence established either the commission of the completed offense as charged, or no crime at all, the trial court did not err in refusing to charge the lesser included offenses of criminal damage to property in the second degree, criminal trespass and reckless conduct. See Thompson, supra, 277 Ga. App. at 325 (3); Brown v. State, 242 Ga. App. 858, 863 (3) (a) (531 SE2d 409) (2000) (where neither State’s evidence nor the defendant’s alibi defense “reasonably raised the inference of any intent other than that set out in the indictment (to commit a rape), the requested charge was not supported by evidence”) (footnote omitted).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

       Wheeler does not challenge the admissibility of his statement under Miranda.


author: Andrews, Judge.

text:
    A10A2279.
    BYRD v. THE STATE.
    (705 SE2d 690)
   Andrews, Judge.

Joe Byrd appeals after a jury found him guilty of aggravated assault and possession of a knife during the commission of a crime. Byrd contends that the trial judge violated OCGA § 17-8-57 by expressing to the jury his opinion that venue had been proven in the case. We agree and reverse.

The evidence at trial, taken in the light most favorable to the verdict, was that Byrd came to the victim’s home on the day in question with one of the victim’s friends. Byrd stayed after everyone else had left the victim’s house. Byrd was drinking and at some point, became belligerent and refused to leave. During an altercation, Byrd shoved the victim, then took a knife from the kitchen counter and stabbed the victim twice. Byrd and the victim struggled, and Byrd told the victim he was going to kill him. Byrd continued stabbing the victim until the victim’s father came in, at which point Byrd ran outside.

The victim’s father looked outside and saw Byrd standing by his son’s truck holding a rifle. The father got a gun and fired two shots at Byrd before Byrd threw the rifle down and ran away.

Byrd testified in his own defense and said that the victim attacked him with a knife. Byrd admitted that he stabbed the victim in the chest and the back, but said that he was acting in self-defense.

Although not enumerated as error, we conclude that the evidence was sufficient for the jury to find Byrd guilty of the crimes charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Because the trial court violated OCGA § 17-8-57 by commenting on whether venue had been proven, however, we reverse and remand for a new trial. The transcript shows that during the questioning of an investigator from the sheriffs office, the prosecutor asked: “Now, is that address 254 Currington Road or the trailer where this occurred, is that located —.” The trial court interrupted the questioning and said: “It’s in Taylor County. We’ve had two folks to tell us that already.” The prosecutor said: “I understand. Just making sure, Judge.” The judge responded: “I bet that’s the one thing right now I guarantee you that the jury doesn’t have a question that this happened in Taylor County.”

Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

Patel v. State, 282 Ga. 412, 414 (651 SE2d 55) (2007). Further, venue is challenged whenever a criminal defendant pleads not guilty to the charges in the indictment. Jones v. State, 272 Ga. 900, 901-902 (2) (537 SE2d 80) (2000).

OCGA § 17-8-57 provides:

It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused. Should any judge violate this Code section, the violation shall be held by the Supreme Court or Court of Appeals to be error and the decision in the case reversed, and a new trial granted in the court below with such directions as the Supreme Court or Court of Appeals may lawfully give.

In analyzing OCGA § 17-8-57, the Supreme Court held: “It is well established that this statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial. Paul v. State, 272 Ga. 845 (537 SE2d 58) (2000); Allen v. State, 194 Ga. 178 (2) (21 SE2d 73) (1942).” Patel, supra at 414.

Here, when the trial court stated in front of the jury that there was no doubt that the crimes happened in Taylor County, it improperly expressed its opinion as to what had been proved on a disputed issue of fact. The State argues, however, that venue was not contested in this case because both parties stipulated to venue. The transcript shows that after the State finished its closing argument, the trial court brought up the issue of venue, stating: “when we were mopping up our last odds and ends, that I did not get on the record, you had in the charge conference agreed to stipulate as to venue.” Defense counsel replied that “we, the defense and the State would stipulate venue.” The trial court then stated: “All right. Basically, it’s been proven, but it would just save a portion of the charge.” The court then instructed the jury: “You will take as proven without any further evidence that the events that are alleged in the bill of indictment occurred in Taylor County, Georgia.”

But at the time the judge made his comments, there was no stipulation as to venue and it was still a contested element of the crimes charged. In State v. Gardner, 286 Ga. 633 (690 SE2d 164) (2010), the Court noted that “[t]he record does not establish the point at which venue became uncontested, i.e., whether it occurred before or after the exchange regarding venue at issue here.” Id. at 635, n. 3. The court assumed, arguendo, that the issue of venue was contested at the time of the judge’s remarks, but held that the directive to “prove venue” was not an expression or intimation as to whether it had been proven. Id.

Decided January 20, 2011.

Robert L. Wadkins, for appellant.

Julia Fessenden Slater, District Attorney, Wayne Jernigan, Jennifer E. Dunlap, Assistant District Attorneys, for appellee.

Here, the court clearly expressed its opinion that venue had been proven. And, at the time the court made its comments, the record shows that venue was still contested. Accordingly, “[i]n light of the mandatory nature of the statute and the case law interpreting the statute, we must reverse [Byrd’s] conviction and remand the case to the trial court for a new trial.” Chumley v. State, 282 Ga. 855, 858 (655 SE2d 813) (2008). See also Patel, supra at 414 (“It is well established that this statutory language is mandatory and that a violation of OCGA § 17-8-57 requires a new trial.”).

Judgment reversed.

Ellington, C. J., and Doyle, J., concur.


text:
    A11A0426.
    SMITH v. BANK OF AMERICA, N.A.
    (705 SE2d 692)
   MILLER, Presiding Judge.

Appellant Vivian H. Smith, pro se, has filed a timely appeal from a dispossessory order. For this Court to address the merits of the instant appeal, however, we must have a sufficient record before us. As the appellant, Smith bears the burden of providing such record. See Hensley v. Young, 273 Ga. App. 687, 688 (615 SE2d 771) (2005) (on motion for reconsideration). Generally, this requires a transcript of the evidence or an authorized substitute. See OCGA § 5-6-41 (g) and (i). Here, we have neither. The record consists only of the disposses-sory warrant, Smith’s answer with attachment by which she alleges that Ocwen Loan Servicing, LLC (“Ocwen”), was not entitled to foreclose on her property because it held neither the promissory note nor the title to her residence when it “executed [the] Deed Under Power and Special Warranty Deed to [Appellee] Bank of America[ ] National Association].” Given the skeletal record before us, we are unable to meaningfully review any alleged error.

Under these circumstances, we must assume that the order of the trial court was proper. See Harden v. Young, 268 Ga. App. 619, 620 (606 SE2d 6) (2004) (“When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession.”) (punctuation and footnotes omitted).

Decided January 20, 2011

Vivian H. Smith, pro se.

Richard B. Maner, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       Smith’s motions to add Ocwen as a party and to reserve her defense on appeal are therefore denied as moot.