text:
    A11A0163.
    DURHAM v. THE STATE.
    (710 SE2d 644)
   MlKELL, Judge.

Travis Tyrone Durham, convicted by a Newton County jury of two counts of selling cocaine, appeals from the trial court’s denial of his motion for new trial. Durham contends that introduction of the circumstances of his arrest on another charge was prejudicial; that crucial evidence was withheld regarding the informant in the case; and that his trial counsel rendered ineffective assistance in not filing a motion to suppress video of the two buys. Finding no harmful error, we affirm.

Construed in favor of the verdict, the evidence shows that, in early 2008, the Special Investigations Unit (SIU) of the Newton County Sheriffs Office was using confidential informants to purchase cocaine in the area. Aundray Hardeman was a confidential informant who was being paid $100 per buy by SIU. On February 22, 2008, SIU agents Charles Cook and Philip Bradford met with Hardeman, had him sign the paperwork involved, searched him to ensure he had no weapons or drugs on him, and wired him with an audio/visual recorder. Hardeman was given a $20 bill which had been photocopied by SIU and was dropped off in the vicinity of Durham’s house by agent Bradford. Hardeman walked to Durham’s house, entered, and spoke to Durham, whom he called “Crack.” Hardeman asked Durham for a “big fat 20,” which is street slang for $20 worth of crack cocaine. Durham handed Hardeman the crack cocaine and Hardeman handed him the SIU-provided $20 bill. Hardeman then walked to a prearranged location, was picked up by agent Bradford, and taken to another location to meet agent Cook. There, Hardeman turned over the crack cocaine, which was logged into evidence, as well as the audio/visual equipment. Hardeman was searched again, with no weapons or contraband found.

On March 7, 2008, the same SIU process was followed and Hardeman was dropped off by agent Cook near Durham’s home at 3:56 p.m. Hardeman met Durham outside the house and followed him inside. On this occasion, Durham obtained the crack cocaine from another man, later identified as Kevin Banks, and then handed it to Hardeman, who then gave Durham the $20 bill. Hardeman was picked up by agent Cook at 4:09 p.m.; the post-buy procedure was performed again; and the cocaine was given to agent Cook.

1. Durham argues that he was denied a fair trial when the jury was allowed to hear “prejudicial evidence of an unrelated arrest occurring months after the charged offenses.”

Durham’s trial counsel made an oral motion in limine to exclude law enforcement officers from testifying about “other offenses that they may have suspected him of or arrested him for.” Following the state’s argument that evidence of flight would be admissible, Durham’s trial counsel acknowledged that the fact that Durham had a bench warrant or failed to appear for a calendar call on the sale of cocaine charges would be admissible as flight. In November 2008, Durham had failed to appear for the calendar call on the cocaine sale charges. As a result of that failure to appear, a bench warrant was issued. The trial court denied Durham’s motion and ruled that the circumstances of his later arrest for obstruction of, and giving false information to, an officer were admissible.

On January 3, 2009, Newton County Sheriffs Deputy Raymond Walden was dispatched on a suspicious person call. Upon arriving at the location, Walden observed a man, later identified as Durham, standing in the front yard of a residence wearing blue jeans and no shirt. Durham watched the officer as he drove up and, when Walden stopped his vehicle, Durham walked behind a tree. When Walden got out of his vehicle and asked Durham to step over toward him, Durham yelled at him and ran off. Walden chased Durham and, after a physical altercation, Walden captured and arrested Durham. When Walden took Durham to the jail for booking, another officer recognized Durham, who had given a false name and date of birth to Walden. At this point, Walden discovered that Durham also had an outstanding bench warrant for failure to appear on the cocaine charges. In February 2009, Durham pled guilty to obstruction of, and giving false information to, an officer, and a certified copy of this conviction was admitted at trial.

“Evidence as to whether a defendant tried to evade capture is admissible as evidence of flight. Furthermore, evidence of flight is relevant because a defendant’s ‘efforts to elude capture arguably provide circumstantial evidence of guilt.’ ” This holds true even if the flight is connected to a separate crime. “Further, evidence that the defendant forfeited his appearance bond [on the charge on trial] is admissible as tending to show flight.” Therefore, there was no error in the trial court’s denial of Durham’s motion.

2. Durham’s second enumeration is that he was “[d]enied a fundamentally fair trial when the state withheld crucial impeachment evidence regarding the informant, its primary witness against appellant at trial.” It is not disputed that, prior to trial, the state made available to defense counsel all evidence then within the possession of the prosecutor and that the state had provided discovery prior to trial. During the testimony of agent Cook, Durham’s trial counsel became aware of a file maintained by SIU on each confidential informant which had not been turned over to the state or defense. According to Cook, each file contained the forms signed by each informant, payment sheets, and a personal history sheet.

Trial counsel then moved for a mistrial “based on the fact that I just learned that the police or investigators have another file on this confidential informant.” Following this motion, the trial court announced it would conduct an in camera inspection of the file, which was then in the-possession of agent Bradford, for anything arguably exculpatory. Following this inspection, the trial court made available to Durham’s trial counsel Hardeman’s criminal history, his deactivation form (stating that he was no longer a confidential informant because of an arrest), and the fact that Hardeman had been used as an informant in 15 cases between February 7 and April 7, 2008. Following the provision of this information to Durham’s trial counsel, counsel renewed his motion for mistrial based on the ground that the “information has only been provided to us in the middle of trial after the first witness has already testified.”

During his subsequent cross-examination of agent Bradford, Durham’s trial counsel extensively questioned Bradford about Har-deman’s criminal history, including review of each of his convictions. Further, during the cross-examination of Hardeman, trial counsel elicited the fact that Hardeman had once been addicted to cocaine and again went through his convictions, introducing copies of them for the jury’s consideration. Trial counsel also elicited the fact that Hardeman pled guilty to forgery on September 30, 2008, and that he had been “deactivated” as an informant as a result of these charges.

Durham specifies two categories of material which he contends were withheld by the state during trial — the criminal history documents for Hardeman and the “confidential informant file” held by SIU. As set out above, the criminal history included in the file inspected by the trial court was turned over to trial counsel and used to cross-examine Bradford and Hardeman. Although appellate counsel speculates about other files containing exculpatory information which may have been in the possession of agents of the state and destroyed before trial, there is nothing before us to substantiate such claims.

To prevail on a Brady claim, a defendant must show that the State possessed evidence favorable to the defendant; defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; the prosecution suppressed the favorable evidence; and had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceeding would have been different.

Durham has failed to carry this burden, and we find no error in the trial court's denial of his motion for new trial on this ground.

Appellate counsel argues a number of evidentiary rulings made by the court which are not enumerated as error. "The appellate court is precluded from reviewing the propriety of a lower court's ruling if the ruling is not contained in the enumeration of errors."

3. Durham contends that his trial counsel rendered ineffective assistance to him by failing to file a motion to suppress the videotaped evidence showing the sales transactions in his residence because the videotaping was done in violation of OCGA § 16-11-62 (2) (B), (C).

`l'o prevail on a claim of ineffective assistance of counsel, a defendant "bears the burden of showing both that trial counsel was deficient and that he was prejudiced by the deficiency." To show prejudice, a defendant must demonstrate "that a reasonable probability exists that the outcome of the case would have been different but for the deficient performance of counsel." It is axiomatic that "an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." "In reviewing the trial court's decision, we accept the trial court's factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

Decided April 28, 2011.

Jimmonique R. S. Rodgers, for appellant.

W. Kendall Wynne, Jr., District Attorney, Clint C. Malcolm, Assistant District Attorney, for appellee.

Pretermitting whether trial counsel was deficient, Durham has failed to establish prejudice. Durham is correct that OCGA § 16-11-62 (2) prohibits “any person, through the use of any device ... to observe, photograph, or record the activities of another which occur in any private place and out of public view” without the consent of all persons observed. Durham is also correct that, in this case, the agents failed to obtain an “investigation warrant permitting the use of [video equipment] for the surveillance of such person or placet,]” as required by OCGA § 16-11-64 (c). Trial counsel acknowledged that he was unaware of this statutory provision and, had he been aware of it, he would have filed a motion to suppress the video made inside Durham’s home.

This, however, does not end the inquiry. Durham acknowledges that the audio recording of what transpired inside Durham’s home was admissible, even if the video portion of the tape inside the home had been excluded. In addition to the audio tape of the transaction, Hardeman testified in detail about the events during the two buys and identified Durham as the man he knew as “Crack” who was present and participated in both buys. Further, the agents searched Hardeman before each buy and kept him under surveillance to the extent possible during the transactions.

We conclude, as did the trial court, Durham has failed to show that a reasonable probability exists that the outcome of the case would have been different but for the deficient performance of counsel.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       Hardeman signed an oral interceptor agreement (allowing the use of an audio/visual recorder), a hold harmless agreement, and a cooperation agreement with SIU.

       Banks was also convicted of sale of cocaine.

       Both of the rocks purchased by Hardeman tested positive for cocaine.

       The evidence was legally sufficient. Wright v. State, 302 Ga. App. 332 (690 SE2d 654) (2010).

       (Citations and punctuation omitted.) Evans v. State, 288 Ga. 571, 574-575 (5) (707 SE2d 353) (2011).

        Lewis v. State, 269 Ga. App. 94, 95 (1) (603 SE2d 492) (2004).

       (Citations and punctuation omitted.) Allen v. State, 243 Ga. App. 730, 732 (3) (534 SE2d 190) (2000).

       Although the trial court relied on State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974) (extraneous crime admitted as part of res gestae) for its ruling, a ruling right for any reason will be affirmed. Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005).

       Durham’s pro se addition to trial counsel’s motion for new trial raised this ground, and we consider whether denial of his motion for new trial on this ground was error.

       (Citation omitted.) Younger v. State, 288 Ga. 195, 200 (4) (702 SE2d 183) (2010)

       (Citations omitted.) Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999),

       (Footnote omitted.) Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004).

       (Citations omitted.) Allen v. State, 277 Ga. 502, 503 (3) (591 SE2d 784) (2004).

       (Citation and punctuation omitted.) Collier v. State, 280 Ga. 148, 150 (2) (625 SE2d 757) (2006).

       (Punctuation and footnote omitted.) Mims v. State, 301 Ga. App. 436, 437-438 (2) (687 SE2d 670) (2009).

       (Emphasis supplied.)

       See Fetty v. State, 268 Ga. 365, 366 (3) (489 SE2d 813) (1997) (OCGA § 16-11-62 does not apply to audio recording of a conversation by one who is a party to it.). Although not addressed by either party, it appears that, based on the language of OCGA § 16-11-62 (2) emphasized above, the portion of the video made outside Durham’s home would also have been admissible, based on Hardeman’s consent.


source: Caselaw Access Project

author: MlKELL, Judge.

license: Public Domain

text:
    A11A0504.
    HUDSON v. HUDSON.
    (710 SE2d 652)
   MlKELL, Judge.

Wilbur Hudson appeals from the trial court’s order dismissing his complaint against his former wife, Mary Hudson. Because the trial court improperly dismissed the complaint, we reverse.

The Hudsons divorced in June 2003 and that judgment provided that Mary Hudson “shall have exclusive use and possession of the marital residence located . . . [in] Harris County, Georgia. . . . [Mary Hudson] shall be solely responsible for the taxes due on the dwelling and shall be solely responsible for moving the dwelling from the current location.” No timetable for removal of the residence was stated.

In 2010, Wilbur Hudson filed his complaint, at issue here, for equitable relief, alleging that the house occupied by Mary Hudson was located on real property owned by heirs of the Hudson family, including himself, and that she should be enjoined from occupying the house because of her failure to move it for over seven years. Mary Hudson’s amended answer pled that Wilbur Hudson’s failure to avail himself of an adequate remedy at law precluded equitable relief pursuant to OCGA § 23-1-4 and sought to have the complaint dismissed. Thereafter, Wilbur Hudson amended his complaint to add a count seeking a declaratory judgment regarding the interpretation of the judgment of divorce.

By order of August 17, 2010, the trial court found that Wilbur Hudson “failed to exhaust his legal remedies prior to filing a Complaint for Equitable Relief in this matter” and dismissed the “Complaint for Equitable Relief.”

Appellant correctly points out that, under the Civil Practice Act, a party may state as many separate claims as he has, “regardless of consistency and whether based on legal or on equitable grounds or on both.” Further, “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” No pretrial order is contained in the record before us.

Decided April 28, 2011.

F. Houser Pugh, for appellant.

Mary Hudson, pro se.

OCGA § 23-1-4 provides that

[ejquity will not take cognizance of a plain legal right where an adequate and complete remedy is provided by law; but the mere privilege of a party to bring an action at law or the existence of a common-law remedy not as complete or effectual as the equitable relief shall not deprive equity of jurisdiction.

Because the trial court’s order does not address the claim for declaratory relief added by proper amendment to appellant’s complaint and, because we are unable to discern from the record before us whether, in fact, there is an adequate remedy at law available to appellant, we reverse the judgment of the trial court and remand this case for further proceedings in compliance with this opinion.

Judgment reversed and case remanded.

Smith, P J., and Dillard, J., concur.

       This appeal was originally filed in the Supreme Court, but was transferred here “[sjince the dismissal of appellant’s complaint was merely ancillary to the resolution of the legal issue of whether available legal remedies existed, this appeal is not an equity case within our appellate jurisdiction.”

       OCGA § 9-11-8 (e) (2); see also OCGA § 9-11-18 (a) (“A party asserting a claim to relief... may join ... as many claims, legal or equitable, as he has against an opposing party.”); Miller v. Turner, 228 Ga. 701 (1) (a) (187 SE2d 688) (1972).

       OCGA § 9-11-15 (a).

       Compare McArthur Elec. v. Cobb County School Dist., 281 Ga. 773, 774-775 (642 SE2d 830) (2007) (Statutory payment bond rights available to subcontractor precluded equitable lien.) and Cantrell v. Henry County, 250 Ga. 822, 824 (1) (301 SE2d 870) (1983) (County’s implied assumpsit or quasi-contract claims against developer precluded injunctive relief in a dispute over water service.) with Luther v. Luther, 289 Ga. App. 428, 431 (1) (657 SE2d 574) (2008) (There was no adequate legal remedy available to prevent relatives’ interference with the duties of a holder of a health care power of attorney and general power of attorney for a person suffering with dementia.).


text:
    A11A0750.
    JACKSON v. THE STATE.
    (710 SE2d 649)
   MlKELL, Judge.

Nathaniel Lawrence Jackson was convicted of two counts of aggravated child molestation and one count of child molestation and was sentenced to life in prison without the possibility of parole. He appeals from the denial of his motion for new trial, asserting that the trial court erred in admitting similar transaction evidence and that his counsel rendered ineffective assistance. We affirm for the reasons set forth below.

Construed in the light most favorable to the verdict, the evidence shows that the victim, G. W, was 12 or 13 years old when he began living with Jackson, whom he called “Uncle Nick.” G. W described their “routine” as follows: Jackson would wake him up, take him into Jackson’s bedroom, take off G. W’s clothes, tell him to lie on his stomach, give him a massage, and then anally penetrate G. W with his penis. Jackson also had G. W. perform oral and anal sex on him. The sexual abuse continued for three or four years. Although Jackson does not enumerate the general grounds as error, we find the evidence sufficient to support his conviction beyond a reasonable doubt.

1. Jackson contends the trial court erred in admitting similar transaction evidence regarding his prior aggravated molestation of another young boy, arguing that the state failed to show that it sought to introduce the evidence for an appropriate purpose.

Before evidence of prior crimes is admissible, the trial court must determine that the [s]tate has affirmatively shown that: (1) the [s]tate seeks to admit evidence of the independent offenses or acts for an appropriate purpose; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.

“Appropriate purposes include showing motive, plan, scheme, bent of mind, and course of conduct.” Evidence of similar crimes is admissible where its relevance to show such purposes outweighs its prejudicial impact. “As a general rule, the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” A trial court’s decision to admit similar transaction evidence will be upheld absent an abuse of discretion.

In the case at bar, the state gave notice of its intent to introduce evidence concerning a 1989 case in which Jackson pled guilty, but mentally ill, to aggravated child molestation based on acts of anal penetration and oral sodomy committed against an eight-year-old boy. At the similar transaction hearing, the state proffered evidence that Jackson was a handyman at the apartment complex where the victim lived, and the victim helped Jackson with odd jobs in exchange for cash. This victim testified at trial that Jackson asked him if he wanted to make more money, then took him into an abandoned apartment, ordered him to remove his clothes, and anally penetrated him. Jackson had previously performed oral sex on the child.

At the hearing, the state indicated that it wished to introduce the similar transaction evidence for all appropriate purposes: identity, plan, motive, bent of mind, and course of conduct. The trial court ruled that the evidence would be admissible for the purpose of showing Jackson’s bent of mind, course of conduct, and lustful disposition.

In cases of sexual abuse of children, evidence of prior sexual acts performed on other children is admissible to show the lustful disposition of the defendant toward children, and, because there is seldom a competent witness other than the victim to what occurred, to corroborate testimony of the victim as to the acts charged.

As the evidence of Jackson’s prior aggravated child molestation was appropriate for showing Jackson’s lustful disposition toward molesting young boys, the trial court did not abuse its discretion in admitting the similar transaction into evidence.

2. Jackson argues that his counsel rendered ineffective assistance by failing to object to certain remarks made by the prosecutor during closing argument.

To prevail on his ineffectiveness claim, Jackson 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. Moreover, in ruling on an ineffectiveness claim, this Court need not analyze the deficient performance prong if the Court determines the prejudice prong has not been satisfied.

On appellate review, “[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.”

Here, Jackson contends that the prosecutor improperly expressed his personal belief in the veracity of the victim when he argued as follows:

Now, how do we know that the act that we are alleging was to arouse and satisfy the sexual desires of the defendant and the victim in this case? . . . Well, what did [G. W] testify to? . . . [G. W] . . . said the defendant gave me specific instructions. He said put some lotion on, but just on the tip. He said just put a little bit on the tip, and then go ahead and penetrate me. . . . [Tjhat is what we call a contextual detail. If [G. W] is going to stand up there and lie, how is he going to think to lie specifically about where the defendant told him to put the lotion? ... If [G. W] is going to lie, why not just say the defendant just said hey, wake up, I want you to do this? Look at the contextual details. . . . Why would he lie about having sucked the defendant’s penis for 30 minutes if, in fact, he didn’t have to ... ? This is not somebody who is making something up. This is not somebody who is going to lie. ... If he was going to lie[,] or if I was going to tell him what to say,... it would be just “naked,” but instead[,] we get “butt naked,” both of them.

“It is improper for counsel to state to the jury counsel’s personal belief as to the veracity of a witness; however, it is not improper for counsel to urge the jury to draw such a conclusion from the evidence.” Moreover, “[c]losing arguments are judged in the context in which they are made.” The prosecutor’s argument during closing that G. W could not have been lying due to the level of detail in his testimony merely urged the jury to make a deduction about his veracity based upon the evidence adduced at trial. The remarks did not constitute a statement of the prosecutor’s personal belief as to the victim’s veracity, and any objection thereto would have been meritless. “Failure to make a meritless objection cannot be evidence of ineffective assistance.”

Decided April 28, 2011.

Hollowell, Foster & Herring, Jolanda E. Herring, for appellant.

R. Javoyne Hicks White, District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Woods v. State, 304 Ga. App. 403 (1) (696 SE2d 411) (2010).

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

       (Citations omitted.) Pareja v. State, 286 Ga. 117, 119 (686 SE2d 232) (2009).

       (Citation and footnote omitted.) Cook v. State, 276 Ga. App. 803, 809 (6) (625 SE2d 83) (2005).

        Pareja, supra.

       (Citation, punctuation and emphasis omitted.) Woods, supra at 406 (2); Williams v. State, 263 Ga. App. 22, 24 (2) (587 SE2d 187) (2003).

        Pareja, supra at 121.

       (Citation and punctuation omitted.) Cook, supra; accord Mikell v. State, 281 Ga. App. 739, 742 (2) (637 SE2d 142) (2006); Williams, supra.

        Cook, supra at 809-810 (6); Mikell, supra at 742-743 (2).

       (Punctuation and footnotes omitted.) Jackson v. State, 282 Ga. 494, 497 (2) (651 SE2d 702) (2007).

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

       (Citation and punctuation omitted.) Id. at 302 (3) (e).

       (Citation omitted.) Id.

       See Moody v. State, 273 Ga. 24, 27 (4) (537 SE2d 666) (2000).

       Id.; accord Allen v. State, 277 Ga. 502, 504 (3) (d) (591 SE2d 784) (2004); Mason v. State, 274 Ga. 79, 80 (2) (b) (548 SE2d 298) (2001); Boyd v. State, 289 Ga. App. 342, 345 (4) (656 SE2d 864) (2008). Compare Bolden v. State, 272 Ga. 1 (525 SE2d 690) (2000) (“ ‘You look at what you heard from the officer, who I thought was very credible.’ ”).

       (Citation and punctuation omitted.) Moore v. State, 278 Ga. 397, 401 (2) (e) (603 SE2d 228) (2004); Boyd, supra.


author: BLACKWELL, Judge.

text:
    A11A0548.
    HARRISON v. THE STATE.
    (711 SE2d 35)
   BLACKWELL, Judge.

Brian Harrison and a co-defendant were tried by a Hall County jury and convicted of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1). Harrison appeals from the judgment of conviction, asserting that the trial court erred when it failed to excuse a prospective juror for cause and when it refused to give a jury charge that Harrison requested. We see no reversible error and affirm.

1. Harrison contends that the trial court erred when it failed to excuse a certain prospective juror for cause after this juror said that she could not understand why an innocent person might not testify at trial in his own defense. A trial court should excuse a prospective juror for cause when it appears that the juror “holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the court’s charge upon the evidence.” Daniel v. State, 296 Ga. App. 513, 521-522 (6) (675 SE2d 472) (2009) (citation and punctuation omitted). A trial judge is uniquely positioned to evaluate whether a prospective juror can render an impartial verdict, considering that the trial judge, unlike appellate judges, can observe a prospective juror in person and take account of her demeanor and countenance, not just the words that she speaks. Accordingly, a trial court is vested with discretion to determine whether a prospective juror ought to be excused for cause, and we will disturb an exercise of this discretion only upon a showing of abuse. See Blankenship v. State, 301 Ga. App. 602, 605 (3) (688 SE2d 395) (2009). We see no abuse of discretion in this case.

Here, during the voir dire of the prospective jurors, one juror wondered aloud why an innocent person might not want to testify in his own defense. This juror explained that, if she were wrongly accused of a crime, she would want to testify, and that she “wouldn’t understand why [an innocent person] wouldn’t want to [testify].” Upon further questioning, she admitted that good reasons unknown to her might cause an innocent person to decline the opportunity to testify, explaining that “I don’t know all the legalities of . . . why would you want to and why would you not.” This potential juror then stated that, if Harrison or his co-defendant chose not to testify and the court instructed the jury that it could not hold this choice against either defendant, she “would be okay with it,” although she still might wonder why they chose not to testify.

Harrison and his co-defendant both moved to excuse this potential juror for cause, but the trial court denied these motions, finding that this juror could follow the charge of the court, notwithstanding that she wondered why an innocent person would not testify. The trial court explained:

Well, my take on [this juror] was that she — if it were her in the defendant’s shoes, she would be chomping at the bit to get on the stand. That’s the point she was making. And so if he didn’t, she would wonder why he didn’t. But she said she could follow my instruction not to hold it against him for not doing it. And I think it is akin to, you know, I see people with purple hair, I wonder — I would never dye my hair purple and I wonder why they would do it, but I could not hold it against them if I was on the jury. Oh, the better example of that is all of these . . . body piercings. I’m going to wonder why they do it, but I don’t hold it against anybody. I wonder.

In light of the unique position of the trial court to observe and evaluate this prospective juror, we accept its assessment of the juror. As the trial judge said, that one might find the choices of another curious or strange does not mean that one necessarily would hold those choices against the other. Nothing in the record here shows that the prospective juror at issue had prejudged any issue in the case. And this prospective juror not only said that she could follow an instruction that the jury must not hold against a defendant his choice not to testify, but she also said that she would hold the State to its burden of proof. In these circumstances, the trial court did not abuse its discretion when it refused to excuse this prospective juror.

2. Harrison also contends that the trial court erred when it refused to charge the jury that it could convict Harrison of trafficking in cocaine only if the State proved beyond a reasonable doubt that Harrison knew that the cocaine in his possession had a weight of 28 grams or more. According to OCGA § 16-13-31 (a) (1), a person commits the offense of trafficking in cocaine when he is “knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine.” It is perfectly clear that, to prove a violation of this subsection of the statute, the State must prove that the defendant possessed a substance, that the substance was cocaine or a mixture with a purity of 10 percent or more of cocaine, and that the quantity of the substance was 28 grams or more. It also is perfectly clear that the State must prove that the defendant did so knowingly. But it is less clear whether this knowledge requirement pertains only to possession of the substance (that the defendant knew he had the substance, whatever it might be, in his possession), to the nature of the substance (that the defendant knew it was cocaine or a mixture with the requisite purity), to the weight of the substance (that the defendant knew it was 28 grams or more), or to all three.

In Barr v. State, 302 Ga. App. 60, 61-62 (1) (690 SE2d 643) (2010), and Cleveland v. State, 218 Ga. App. 661, 663 (1) (463 SE2d 36) (1995), we held that OCGA § 16-13-31 (a) (1) requires proof that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine, but it does not require proof that the defendant knew the purity or weight of the substance. But a reasoned analysis of the words of the statute appears nowhere in these opinions, notwithstanding that the words of a statute — at least when those words are clear and unambiguous — are the exclusive means of interpreting it, Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 575 (1) (707 SE2d 921) (2011), and notwithstanding also that, consistent with principles of due process, statutes defining the elements of crimes especially ought to be afforded their plain meaning. See United States v. Harriss, 347 U. S. 612, 617 (I) (74 SC 808, 98 LE 989) (1954) (“The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute. The underlying principle is that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.”); see also State v. Luster, 204 Ga. App. 156, 157 (1) (a) (419 SE2d 32) (1992) (noting that a purpose of the criminal code is to give fair warning of the nature of the conduct forbidden and the sentence authorized upon conviction, and explaining that statutory language should be assigned its ordinary, logical, and common meaning). Harrison asserts that Cleveland and Barr are wrongly decided and should be overruled, and he argues plausibly that the plain meaning of OCGA § 16-13-31 (a) (1) requires proof of knowledge as to all of the elements of trafficking, including weight, noting that, as the United States Supreme Court explained in Flores-Figueroa v. United States, 556 U. S. 646 (II) (129 SC 1886, 173 LE2d 853) (2009), “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Nevertheless, we conclude that this case does not require us to revisit Cleveland and Barr because, even if Harrison were right, and even if Cleveland and Barr were wrongly decided, the refusal of the trial court in this case to give the instruction that Harrison requested was not reversible error.

(a) When we review a refusal to give a requested instruction, we must look to the jury charge as a whole, and if the jury charge as a whole accurately and fully apprised the jury of the law to be applied in its deliberations, then the refusal to give an additional instruction, even if that additional instruction were accurate, does not amount to error. See Coleman v. Fortner, 260 Ga. App. 373, 375 (1) (b) (579 SE2d 792) (2003). Here, the trial court instructed the jury, in pertinent part:

Any person who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine commits the offense of trafficking in cocaine. . . . Knowledge on the part of the defendant that the crime of trafficking cocaine was being committed and the defendant knowingly and intentionally participated in or helped in the commission of such crime must be proven by the State beyond a reasonable doubt. If you find from the evidence in this case that the defendant had no knowledge that the crime charged was being committed or that the defendant did not knowingly and intentionally commit, participate or help in the commission of the crime charged, then it would be your duty to acquit the defendant. On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge that the crime charged was being committed and that the defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict the defendant.

The trial court did not charge the jury that the State was not required to prove knowledge of weight.

With respect to the plain meaning of the statute, Harrison argues that English-speaking people commonly would understand the phrase “knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine” as referring to possession with knowledge of, among other things, the weight of the cocaine or mixture. If that is so, then the charge of the trial court, which used precisely the same phrase, undoubtedly was understood by the jury to mean that the State was required to prove knowledge of, among other things, the weight.

The trial court also charged the jury that “[kjnowledge on the part of the defendant that the crime of trafficking cocaine was being committed. . . must be proven by the State beyond a reasonable doubt.” Trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1), of course, requires a substance having a weight of 28 grams or more, so a defendant could not possibly know that the offense of trafficking is being committed without knowing at the same time that 28 grams or more of a substance containing cocaine are involved. The trial court may not have used the precise words that Harrison preferred, but even if Harrison is right about the plain meaning of OCGA § 16-13-31 (a) (1), the charge accurately and fully apprised the jury of the applicable law, and the failure of the trial court to give the requested instruction is not error.

(b) Moreover, even if it were error to fail to give the requested instruction, the error was harmless in the circumstances of this case. When a trial court errs by refusing to instruct the jury as to a particular element of the crime of which the defendant is convicted, but the evidence as to that element is so overwhelming that it is highly probable that the refusal of the instruction contributed in no way to the verdict, the error is harmless. Braley v. State, 276 Ga. 47, 53 (30) (572 SE2d 583) (2002). Here, the evidence at trial showed that the mixture of which Harrison was convicted of possessing — a mixture with a purity of nearly 32 percent cocaine — weighed 106.84 grams, more than three-and-a-half times the trafficking threshold of 28 grams and was contained in a clear, plastic bag underneath a vehicle seat in which Harrison was sitting. Harrison testified and admitted that he previously had dealt cocaine, had previously handled 25 grams of cocaine, and was familiar enough with the weight of cocaine to know that 106 grams is not a “street level amount.” And the jury heard evidence of a similar transaction in which Harrison was in possession of a bag containing 25 grams of cocaine. Because the trafficking conviction in this case is based on the possession of a cocaine mixture that weighed far more than 28 grams, and because the evidence was overwhelming that Harrison had enough experience handling cocaine to know that the cocaine under his seat — which, the jury evidently believed, was in his possession — weighed more than 28 grams, we think there is no reasonable probability that an explicit instruction on knowledge of weight would have produced a different result in this case.

Decided April 29, 2011

Brett M. Willis, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

       Indeed, this juror twice referred during voir dire to the possibility that Harrison and his co-defendant might be “wrongly accused.”

       Although our decision is not based on these facts, we note that the prospective juror at issue was not seated on the jury that tried this case and, in any event, that Harrison ultimately elected to testify at trial.


author: McFadden, Judge.

text:
    A11A0525.
    DEAN v. THE STATE.
    (711 SE2d 42)
   McFadden, Judge.

Martha Darlene Dean appeals from the denial of her motion to dismiss on double jeopardy grounds. She argues that pursuant to OCGA § 16-1-7 (b), this prosecution is precluded by her prior guilty plea to other charges arising from the same conduct. We agree and reverse.

The underlying facts are not in dispute. On May 21, 2009, Dean drove down Poplar Springs Road just outside the city limits of Ringgold, Georgia to Highway 151. She turned left onto Highway 151 and collided with another vehicle. Rather than stop her car, Dean continued down Highway 151, where she collided with yet another vehicle. She drove on, entered the Ringgold city limits, and collided with a third vehicle, leaving her car disabled. At that point, a Georgia State Patrol (“GSP”) trooper and a Ringgold police officer responded. The trooper cited Dean for driving under the influence of drugs, leaving the scene of the first two collisions, and several other traffic offenses. She also received citations from the Ringgold officer for DUI and traffic offenses committed within the Ringgold city limits.

The Ringgold city citations directed Dean to appear in Ringgold Municipal Court on June 15, 2009. On that date, Dean demanded a jury trial, and the municipal court transferred the case to the Superior Court of Catoosa County. In the meantime, prosecution on the GSP citations proceeded in the Probate Court of Catoosa County. The attorney representing Dean informed the probate court solicitor about the pending Ringgold city charges, then negotiated a plea agreement regarding the GSP citations. Pursuant to that agreement, Dean pled guilty in probate court on December 17, 2009, to DUI and following too closely. The remaining GSP charges were nolle prossed.

In June 2010, Dean moved to dismiss the Ringgold city charges pending in superior court, arguing that resolution of the GSP citations precluded further prosecution of the Ringgold offenses. The trial court denied the motion, and this appeal followed.

Dean’s argument focuses on the procedural double jeopardy protection set out in OCGA § 16-1-7 (b), which provides: “If the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” This provision was “designed to protect an accused against the harassment of multiple prosecutions arising from the same conduct.” Waites v. State, 238 Ga. 683, 684 (2) (235 SE2d 4) (1977). Where the facts are not in dispute, we review the trial court’s ruling on a procedural double jeopardy claim de novo. Barlowe v. State, 286 Ga. App. 133 (648 SE2d 471) (2007).

Addressing the first requirement of OCGA § 16-1-7 (b), Dean contends that all of the citations she received on May 21, 2009, arose from the same conduct. We agree. The term “same conduct” is used interchangeably with the phrase “same transaction.” Morgan v. State, 220 Ga. App. 198, 199 (469 SE2d 340) (1996). We also consider whether the offenses at issue “arose out of one course of conduct.” Anderson v. State, 200 Ga. App. 530, 532 (408 SE2d 829) (1991) (numerous traffic violations committed during lengthy police chase that began within a Clarke County municipality and continued into unincorporated Clarke County arose out of same conduct).

The State argues on appeal that the charges against Dean arose from distinct and independent criminal conduct that cannot be characterized as a single transaction. Each charge, however, resulted from Dean’s erratic driving on May 21, 2009. There was no break in the action; she drove down the road, colliding with cars and committing numerous traffic violations in two jurisdictions until a final collision left her vehicle disabled within the city limits of Ringgold. While her actions “gave rise to several offenses, all of the offenses arose out of one course of conduct, i.e., there was only one transaction.” Anderson, supra at 532. The record thus shows that all charges involved the same conduct for purposes of OCGA § 16-1-7 (b). See id.; see also Morgan, supra at 200 (offenses that “were part of an ongoing chain of events” arose out of same conduct).

The evidence further shows that the “proper prosecuting officer” was aware of all charges when Dean entered her plea. “For OCGA § 16-1-7 (b) to apply, the prosecutor handling the proceedings must actually know of the crimes.” (Footnote omitted.) Barlowe, supra at 134. According to the State, the knowledge we must consider is that of the district attorney, who is handling the matter in superior court. The question, however, is whether Dean’s plea in probate court bars a subsequent prosecution. The only “knowledge” that matters, therefore, is the knowledge of the prosecutor who handled that plea — the probate court solicitor. See id. (knowledge of prosecutor who dealt with prior plea is key factor in determining whether plea bars further prosecution under OCGA § 16-1-7 (b)); see also Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010) (defendant must show that “prosecuting attorney for the State who handled the first prosecution had actual knowledge of the facts supporting the charge allegedly subject to a plea in bar”).

Although the State suggests that a probate court solicitor is not a “prosecuting officer,” the phrase “proper prosecuting officer” refers to “the prosecuting attorney for the State.” (Citation, punctuation and emphasis omitted.) Price v. State, 206 Ga. App. 161, 162 (1) (424 SE2d 841) (1992). The probate court solicitor testified that he prosecutes cases in the Probate Court of Catoosa County. He further testified that during plea negotiations, defense counsel informed him of the Ringgold city charges pending against Dean. Under these circumstances, the proper prosecuting officer actually knew about all pending charges.

Finally, we must conclude that all charges fell within the jurisdiction of a single court. In denying Dean’s plea in bar, the trial court found that the probate court lacked jurisdiction to prosecute the Ringgold city charges. This finding was correct, particularly given Dean’s demand for a jury trial with respect to those offenses. See OCGA § 40-13-23 (probate court cannot dispose of traffic misdemeanor cases unless defendant waives trial by jury). But the issue is whether any court had jurisdiction over all offenses. See Mann v. State, 160 Ga. App. 527, 528-529 (287 SE2d 325) (1981) (plea to misdemeanor offenses in state court precluded subsequent prosecution for felony arising out of same conduct; although state court lacked jurisdiction over felony, superior court had jurisdiction over all offenses); Brock v. State, 146 Ga. App. 78, 80 (245 SE2d 442) (1978) (same).

The superior court clearly had jurisdiction over the misdemeanor charges bound over to it from Ringgold Municipal Court. And it also had jurisdiction to hear the misdemeanor offenses pending in the Probate Court of Catoosa County. See Gregg v. State, 253 Ga. App. 243, 244 (2) (a) (588 SE2d 729) (2001) (“Georgia superior courts have concurrent jurisdiction over misdemeanors with inferior courts.”). Simply put, “[a]ll of the known offenses were within the jurisdiction of a single court — the superior court.” Brock, supra.

Decided May 2, 2011.

William B. Mills, for appellant.

Herbert E. Franklin, Jr., District Attorney, Melissa A. Pittman, Assistant District Attorney, for appellee.

The multiple charges against Dean could have — and should have — been prosecuted at the same time and in the same court. Accordingly, the probate court’s resolution of the GSP citations bars this superior court prosecution. See OCGA § 16-1-7 (b); Nicely, supra at 390; Brock, supra at 82-83.

Judgment reversed.

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


author: BARNES, Presiding Judge.

text:
    A11A0101.
    ALVAREZ v. THE STATE.
    (710 SE2d 583)
   BARNES, Presiding Judge.

A jury convicted Edwin Alvarez of rape, aggravated sodomy, aggravated assault with intent to rape, and simple battery. On appeal from the denial of his motion for a new trial, Alvarez contends that the trial court erred in admitting evidence of a prior similar transaction and that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

Following a criminal conviction, we construe the evidence adduced at trial in the light most favorable to the jury’s verdict. Vadde v. State, 296 Ga. App. 405 (674 SE2d 323) (2009). Construed in this manner, the evidence showed that Alvarez and the young female victim worked together at a company that manufactures and imports ceramic products and live plants. At the time in question, Alvarez also rented a room in the home where the victim, her husband, and her three children lived.

On the day of the sexual attack, Alvarez and the victim arrived at work in the early morning hours because a large order had to be filled. No one else was at the building at the time. Alvarez, who had keys to the building and usually gave the victim her work assignments, unlocked the building and directed the victim to begin counting bamboo pots. When the victim went to the back of the building, Alvarez suddenly grabbed her from behind and threw her to the floor. The victim tried to push Alvarez away and told him that she did not “want to do this,” but Alvarez ripped her pants down and threatened to strike her if she resisted. Alvarez then vaginally raped the victim as she struggled and pleaded with him that she did not “want to do that with him.” After raping the victim, Alvarez forced her to turn over on the floor, anally sodomized her, and licked and kissed on her back and neck.

When Alvarez finished and released the victim, she did not immediately report the attack because she was an immigrant and did not speak English. However, when a female co-worker arrived later that morning, the victim told her what had happened, and the co-worker immediately called the police. When the police arrived, the victim was subdued, would not make eye contact, and looked like she had been crying. She had scratches and abrasions on her forearm. The victim told the police about the attack. The police observed that Alvarez had glassy, bloodshot eyes, was unsteady on his feet, smelled of alcohol, and appeared intoxicated. He rambled in his speech and denied attacking the victim.

The police collected the victim’s pants, which had a broken zipper. The victim was transported to a rape crisis center where a sexual assault examination was performed. The sexual assault examiner took anal and vaginal swabs, and the state crime lab found that the anal swabs contained sperm. Alvarez also consented to the drawing of his blood for testing. Further testing revealed that the DNA profile obtained from the anal swabs matched that of Alvarez.

Alvarez was arrested, indicted, and tried on charges of rape, aggravated sodomy, aggravated assault with intent to rape, and simple battery. The victim testified at trial (through an interpreter) to the events as discussed above. She emphasized that she had never had a sexual relationship with Alvarez and that the encounter at issue was not consensual. The responding officer, police investigator, sexual assault examiner, crime lab forensic analyst, and co-worker to whom the victim made her initial outcry also testified on behalf of the State. Their testimony was consistent with the victim’s version of the sexual attack.

Additionally, the State introduced evidence of a similar transaction in which Alvarez raped a young Hispanic woman in a hotel room after meeting her and her ex-boyfriend at a nightclub. There was evidence that Alvarez had been drinking alcohol that night and that he had threatened the victim of the prior rape if she reported the attack. The trial court gave a limiting instruction and permitted the evidence of the prior rape to be introduced for the limited purposes of showing Alvarez’s intent, bent of mind, and course of conduct.

In contrast, Alvarez took the stand and testified (through an interpreter) that he had a prior sexual relationship with the victim. He claimed that his sexual encounters with the victim at their place of mutual employment, and with the prior victim in the hotel room, were consensual.

Upon hearing all of the evidence, the jury convicted Alvarez of the charged offenses. Alvarez moved for a new trial. The trial court denied the motion, resulting in this appeal.

1. The evidence presented at trial was sufficient to authorize a rational jury to find Alvarez guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In this regard, the victim’s testimony, standing alone, could sustain the convictions. See Johnson v. State, 305 Ga. App. 853, 854 (1) (700 SE2d 735) (2010). Furthermore, the jury was entitled to take into account the similar transaction evidence for the purpose of showing Alvarez’s intent, bent of mind, and course of conduct. See Towry v. State, 304 Ga. App. 139, 142 (1) (695 SE2d 683) (2010). While Alvarez testified to a different version of what transpired, it was the exclusive role of the jury to determine witness credibility and to “choose what evidence to believe and what to reject.” Lamb v. State, 293 Ga. App. 65, 67 (666 SE2d 462) (2008).

2. Alvarez contends that the trial court erred in admitting the similar transaction evidence of the prior rape. Specifically, Alvarez claims that evidence of the prior rape was erroneously admitted because it was introduced “solely for the purpose of raising an improper inference” and was not sufficiently similar to the present rape. We disagree.

To obtain admission of similar transaction evidence, the State must show (1) that it seeks to introduce the evidence for a proper purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that sufficient similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Absent an abuse of discretion, we will affirm a trial court’s determination that similar transaction evidence is admissible. Waters v. State, 303 Ga. App. 187, 190 (2) (692 SE2d 802) (2010).

The trial court acted within its discretion in admitting evidence of the prior rape. The State did not seek to introduce evidence of the prior rape to raise an improper inference concerning Alvarez’s character, but rather to show his intent, bent of mind, and course of conduct, all of which are proper purposes under the Williams test. See Ford v. State, 281 Ga. App. 114, 115 (1) (635 SE2d 391) (2006).

The prior and present rapes also were sufficiently similar. The sexual offenses need not be identical; the proper focus of the inquiry is on the similarities, not the differences, between them. Corbitt v. State, 301 Ga. App. 665, 666 (2) (688 SE2d 642) (2009).

Moreover, Georgia courts construe the rules regarding the use of similar transaction evidence liberally in cases involving sexual offenses. This is so because, in cases involving forcible sexual assaults, there is sociological evidence to support the conclusion that certain deviant sexual behavior is a sufficiently isolated abnormality so that proof of the propensity of the defendant to engage in it is at least admissible, and to this extent proof of the one tends to establish the other.

(Punctuation and footnotes omitted.) Coleman v. State, 284 Ga. App. 811, 813 (2) (644 SE2d 910) (2007). Here, in both rapes, Alvarez sexually attacked a young Spanish-speaking woman after he had been drinking alcohol, he threatened both victims, and the two attacks occurred only a few months apart. Based upon these similarities, there was no error in the trial court’s admission of evidence of the prior rape. See, e.g., Burden v. State, 250 Ga. 313, 315 (2) (297 SE2d 242) (1982) (similar transaction evidence properly admitted, where in the prior and present crimes, the defendant “had been drinking heavily” and had “demanded the victims have sexual intercourse with him, and upon being rebuffed, became violent”); Cooley v. State, 201 Ga. App. 171, 172 (2) (410 SE2d 453) (1991) (evidence of present and prior rape sufficiently similar, where both crimes occurred late at night after the defendant had been drinking and using drugs).

3. Alvarez contends that his trial counsel was ineffective for failing to locate and call witnesses who purportedly would have corroborated his claim that he had a prior, consensual sexual relationship with the victim. We are unpersuaded.

The two-prong test for determining the validity of a claim of ineffectiveness of counsel provided in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

Decided April 19, 2011

Reconsideration denied May 3, 2011.

John J. McArthur, for appellant.

Kenneth W. Mauldin, District Attorney, Brian V. Patterson, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Martinez v. State, 303 Ga. App. 166, 171-172 (4) (692 SE2d 766) (2010).

Alvarez has failed to show that the purported deficiency of his trial counsel prejudiced his defense, given that he failed to proffer the testimony of any of the alleged potential witnesses at the hearing on his motion for a new tried. Because Alvarez failed to make such a proffer, “it is impossible for him to show there is a reasonable probability the results of the proceeding would have been different,” and thus impossible for him to succeed on his ineffective assistance claim. (Punctuation and footnote omitted.) Middlebrooks v. State, 289 Ga. App. 91, 94 (3) (b) (656 SE2d 224) (2008). See also Boggs v. State, 304 Ga. App. 698, 707 (5) (e) (697 SE2d 843) (2010).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       For sentencing purposes, the trial court merged Alvarez’s conviction for aggravated assault with intent to rape into his conviction for rape.

       Alvarez does not contest on appeal that the State presented sufficient evidence that he committed the prior rape.

       Because Alvarez failed to include the transcript of the similar transaction hearing in the record on appeal, our review is restricted to the trial record. See Smith v. State, 304 Ga. App. 708, 709 (1) (699 SE2d 742) (2010).


author: PHIPPS, Presiding Judge.

text:
    A11A0198.
    SMITH v. THE STATE.
    (710 SE2d 654)
   PHIPPS, Presiding Judge.

A jury found Robert Smith guilty of burglary. Smith appeals, challenging the sufficiency of the evidence to support the conviction. We affirm.

When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed the following. Shortly after midnight on October 5, 2008, sheriffs deputies responded to a burglary alarm at a closed convenience store at the intersection of Highway 142 and Dixie Road. They arrived to find glass broken out of the store’s front door and a van parked directly in front of that door, which was located about 40 feet from the gasoline pumps.

The deputies entered the store; no one was inside. The deputies saw several packs of cigarettes scattered about the floor inside the store, and more packs of cigarettes outside between the store and the van. Packs of cigarettes were also found on the ground at the corner of the store, leading toward Dixie Road, and under the van’s tire.

A police officer brought a dog trained to track human scent to the scene. The dog acquired a scent and led the officer from the front of the store to the van, then around the store toward Dixie Road. The dog stopped upon losing the scent on Dixie Road.

Deputies searched the van and found therein several packs of cigarettes, some of which were “the same brand that was making the trail out from the counter.” They also found keys to the van inside the vehicle, along with a document bearing Smith’s name and address; the address indicated was located in the direction in which the canine had been heading when he lost the scent. Deputies observed that the gasoline gauge was on “E,” and they were unable to start the van. The van’s engine was warm. Deputies determined that the van was registered to a person at the same address as that shown on the document found in the van.

The burglary was captured on store surveillance cameras. The videotape evidence, which was transferred to a DVD and also made into still photographs, was shown to the jury. A sheriffs office investigator described in detail the store’s location and testified that, based on the surveillance footage, the van appeared to have entered the parking lot from Highway 142, not Dixie Road. He further testified that in one of the still photographs, the burglar appeared to be wearing “house slippers” as he walked inside the store. Another deputy concluded that based on the evidence found at the scene, the burglar had gone from the store to the van, had driven the van a short distance and, when he could not drive it any farther, had gotten out and fled on foot. The store’s owner testified that the store had been closed when it was broken into, and that cigarettes had been stolen.

On October 16, after being advised of his Miranda rights, Smith was interviewed by an investigator with the sheriffs office. Smith told the investigator that he had driven the van on the morning in question and that he had picked up a hitchhiker (who Smith said was approximately his height and had about the same skin tone as Smith). Smith stated that he had been driving on Dixie Road, and coasted into the parking lot of the convenience store when the van ran out of gasoline. He left the van there and walked home. Smith stated that he did smoke cigarettes and had been wearing “house slippers” that morning. Audiotapes of the interviews were played for the jury. Smith did not testify at trial.

Smith contends that the evidence was insufficient because it did not exclude the reasonable hypothesis that the burglar “may have been a third party who was not charged.” He argues that the photographic evidence “showed a hazy image of the [burglar’s] clothes, and did not clearly depict his face.” At trial, defense counsel proposed in closing argument the theories that the burglary either was committed by the hitchhiker or was “completely unrelated to . . . Smith’s car running out of gas.”

“For a conviction based on circumstantial evidence to stand, the facts must prove not only the hypothesis of guilt, but must exclude every other reasonable hypothesis but the guilt of the accused.” ‘ ‘ [C] ircumstantial evidence must exclude only reasonable hypotheses save the defendant’s guilt; it need not exclude every other inference or hypothesis except the defendant’s guilt.” Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence, and where the jury is authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of guilt, this court will not disturb that finding unless the verdict of guilty is insupportable as a matter of law. The verdict in this case was not insupportable as a matter of law.

The jury was authorized to reject Smith’s theory that a hitchhiker who bore a resemblance to him, or some other uncharged person, burglarized the store. The jury may have found Smith’s hypothesis unreasonable, particularly in light of evidence that: Smith had driven the van to the convenience store; he smoked cigarettes; cigarettes were stolen from the store; packs of cigarettes were found in, around, and under the van shortly after the store was burglarized; the van, its engine still warm, was stopped directly in front of the closed store’s broken front door, not near the gasoline pumps; until the scent was lost, the dog led its handler in the direction of Smith’s address; Smith wore footwear that appeared to be of the same type worn by the burglar; and the van entered the parking lot from a direction inconsistent with Smith’s version of events. Moreover, even if the photographic evidence was “hazy” and “did not clearly depict [the burglar’s] face,” Smith was present in the courtroom and the jury was able to compare some aspects of his physical appearance with that of the burglar.

Decided May 3, 2011.

Teresa L. Smith, for appellant.

W. Kendall Wynne, Jr., District Attorney, T. Buckley Levins, Assistant District Attorney, for appellee.

A rational trier of fact was authorized to find from the circumstantial evidence that every reasonable hypothesis was excluded except that Smith entered the convenience store without authority with the intention to commit a theft therein, and was authorized to find beyond a reasonable doubt that Smith was guilty of burglary.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       OCGA § 16-7-1 (a) provides, in relevant part, that “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters . . . any building.”

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

        Tauch v. State, 305 Ga. App. 643, 645 (1) (700 SE2d 645) (2010) (citations and punctuation omitted).

        Hall v. State, 294 Ga. App. 274, 276 (668 SE2d 880) (2008) (citation omitted; emphasis supplied). See Hewitt v. State, 277 Ga. 327, 330 (1) (b) (588 SE2d 722) (2003).

        Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

       See Hall, supra; see also Graham v. State, 269 Ga. App. 590, 593 (1) (604 SE2d 651) (2004).

       See Rolling v. State, 275 Ga. App. 902, 905 (1) (622 SE2d 102) (2005); Moore v. State, 242 Ga. App. 208, 210-211 (1) (529 SE2d 210) (2000).


text:
    A11A0334.
    AZAM v. RPR HOLDINGS, INC.
    (711 SE2d 50)
   MlKELL, Judge.

A Azam appeals pro se the trial court’s grant of summary judgment to RPR Holdings, Inc., on its claim for breach of contract, arising out of Azam’s failure to pay on a credit card account. As best we can discern from Azam’s enumerated errors, he appears to argue that the trial court should have denied the motion for summary judgment because the statute of limitation barred RPR’s action and that RPR had no standing to assert the claim. Finding no error, we affirm.

At the outset, we note that Azam’s brief fails to include any citations to the record, as required by Court of Appeals Rule 25 (a) (1), and his notice of appeal specifically directs that “[a] transcript of evidence and proceedings will not be filed for inclusion in the record on appeal,” even though a hearing was held on RPR’s motion. Court of Appeals Rule 25 (c) (2) (i) provides that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Decided May 3, 2011.

A Azam, pro se.

Panton P. Pou, for appellee.

But here, we have no transcript of the evidence or an authorized substitute. The record consists solely of the complaint, Azam’s answer, in which he raised no affirmative defenses, stating only that he “disagreed” with all damages sought by RPR, and the trial court’s order and judgment. In his brief, Azam sets forth minimal facts in support of his enumerated errors, but “[a]negations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review.” Therefore, “[g]iven the paucity of the record before us, we are unable to conduct meaningful appellate review of any alleged error. Under these circumstances, we must assume the trial court ruled correctly.”

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

       (Punctuation and footnote omitted.) Andrews v. Habitat for Humanity in Atlanta, 295 Ga. App. 392 (671 SE2d 879) (2008).

       See OCGA § 5-6-41 (g), (i).

       (Citation omitted.) Hallisy v. Snyder, 219 Ga. App. 128, 129 (2) (464 SE2d 219) (1995).

       (Citation omitted.) Marcus v. BAC Home Loans Servicing LP, 306 Ga. App. 164 (702 SE2d 9) (2010). Accord Samuel v. Samuel, 306 Ga. App. 590 (702 SE2d 439) (2010).


author: Doyle, Judge.

text:
    A11A0491.
    In the Interest of J. W., a child.
    (711 SE2d 48)
   Doyle, Judge.

J. W appeals his delinquency adjudication for possession of a firearm by a convicted felon. The sole issue on appeal is whether his previous juvenile delinquency adjudications for armed robbery and aggravated assault constitute “criminal convictions” sufficient to support a conviction or delinquency adjudication for possession of a firearm by a convicted felon under OCGA § 16-11-131 (b). We hold that they do not and reverse.

In reviewing a delinquency adjudication, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. The evidence is examined under the standard of Jackson v. Virginia, with all reasonable inferences construed in favor of the juvenile court’s findings.

So construed, the record shows that J. W was charged with possession of a pistol or revolver by a person under 18 years of age and possession of a firearm by a convicted felon. J. W. admitted that he was in possession of a firearm as a minor, and the case proceeded to a stipulated bench trial on the charge of possession of a firearm by a convicted felon. At the August 2010 hearing, the State relied upon an August 2009 commitment order indicating that J. W had been adjudicated delinquent for committing armed robbery, aggravated assault, and battery. J. W. argued that a juvenile delinquency adjudication did not constitute a felony conviction sufficient to support a charge of possession of a firearm by a convicted felon. The trial court disagreed and adjudicated J. W. delinquent on both charges.

OCGA § 16-11-131, which is titled “Possession of firearms by convicted felons and first offender probationers,” provides that “[a]ny person who is on probation as a felony first offender pursuant to Article 3 of Chapter 8 of Title 42 or who has been convicted of a felony by a court of this state or any other state . . . and who receives, possesses, or transports any firearm” commits the offense of possession of a firearm by a convicted felon. The statute further provides that a “felony” for this purpose “means any offense punishable by imprisonment for a term of one year or more . . the statute does not define the term “convicted.”

In A. B. W. v. State, the Supreme Court of Georgia held that

a [jluvenile [c]ourt cannot convict a juvenile of a crime as defined by Georgia [l]aw. A[j]uvenile [c]ourt convicts a child for being delinquent, and such an adjudication is not a conviction of a crime or crimes. . . . [T]he commitment of a juvenile to any authorized facility is not commitment for conviction of a crime. Such commitment is only for rehabilitation or treatment.

Our Supreme Court has also stated that “[ujnder Georgia law, when a juvenile is adjudicated to be a delinquent by a juvenile court, the adjudication is not regarded as a criminal conviction.” Based on the unequivocal language of the Supreme Court, we conclude that an adjudication of delinquency does not constitute a criminal conviction sufficient to support a conviction or delinquency adjudication for possession of a firearm by a convicted felon.

The fact that J. W.’s prior delinquency adjudication constituted a designated felony act under OCGA § 15-11-63 does not change our result. In In re L. C., the Supreme Court held that an order of restrictive custody under OCGA § 15-11-63, which lists designated felony acts for restrictive custody of juveniles adjudicated delinquent (including armed robbery and aggravated assault), “is not sufficiently like a criminal adjudication to invoke a constitutional right to a trial by jury.” The Court noted that “although OCGA § 15-11-63 has some punitive aspects, one of its primary functions is the treatment and rehabilitation of the child[,j and an adjudication under it is not a criminal conviction” and “does not impose any civil disability ordinarily resulting from a conviction nor operate to disqualify the child in any civil service application or appointment.”

The State relies upon In the Interest of D. T. C., in which we affirmed the juvenile court’s conclusion that “D. T. C. committed an offense which, had D. T. C. been an adult, would constitute the crime of possession of a firearm during the commission of a felony described in OCGA § 16-11-106 (b) (1),” rejecting D. T. C.’s argument that

Decided May 3, 2011.

Kimberly A. Gross, for appellant.

Scott L. Ballard, District Attorney, Christy R. Jindra, Robert W. Smith, Jr., David J. Younker, Assistant District Attorneys, for appellee.

because juveniles do not commit crimes but rather acts which would be crimes if committed by an adult, a juvenile cannot be adjudicated for a delinquent act if the definition of the crime (as it would be if committed by an adult) requires a finding of another included or coincident crime or felony.

Our holding in no way supports the State’s argument in this case that a delinquency adjudication constitutes a criminal conviction, and the State’s reliance thereon is misplaced.

Thus, we conclude that the evidence was insufficient to support J. W’s delinquency adjudication for possession of a firearm by a convicted felon and reverse.

Judgment reversed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-11-131 (b).

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

       (Citations and punctuation omitted.) In the Interest of C. R., 294 Ga. App. 164 (669 SE2d 193) (2008).

       OCGA § 16-11-132 (b).

       J. W did not challenge the evidence relied upon by the State to establish his prior delinquency adjudication.

       On appeal, J. W. does not challenge his adjudication of delinquency for possession of a pistol or revolver by a person under 18 years of age.

       OCGA § 16-11-131 (b).

       OCGA § 16-11-131 (a) (1).

       231 Ga. 699 (203 SE2d 512) (1974).

       (Emphasis supplied.) Id. at 701-702 (II).

        Carrindine v. Ricketts, 236 Ga. 283, 284 (223 SE2d 627) (1976).

       We note that any expansion of OCGA § 16-11-131 (b) to include juvenile delinquency adjudications “must come from the legislature, as it alone is entrusted with the authority to amend existing laws.” Abdulkadir v. State, 279 Ga. 122, 124 (2) (610 SE2d 50) (2005), superseded by statute on other grounds as stated in Krirat v. State, 286 Ga. App. 650, 653 (1) (649 SE2d 786) (2007).

       273 Ga. 886 (548 SE2d 335) (2001).

       See OCGA § 15-11-63 (a) (2) (B) (ii).

        In re L. C., 273 Ga. at 889 (1).

       (Punctuation omitted.) Id. at 888-889 (1).

       226 Ga. App. 364 (487 SE2d 21) (1997).

       (Punctuation and emphasis omitted.) Id. at 367 (4).


text:
    A11A0679.
    BAILEY v. THE STATE.
    (710 SE2d 656)
   MlKELL, Judge.

Gerard Anthony Bailey was convicted of possession of cocaine, possession of marijuana, and possession of an open container of an alcoholic beverage in a motor vehicle. Following the denial of his motion for new trial, and pursuant to the grant of an out-of-time appeal, Bailey contends that the trial court abused its discretion in denying his motion for continuance to procure the testimony of an absent witness. We disagree and affirm.

The denial of a motion for continuance is addressed to the sound discretion of the trial court, and the court’s ruling will not be disturbed absent a clear abuse of its discretion, which has not been demonstrated here. The record shows that Bailey’s tried commenced on Wednesday, March 17, 2010, and the state rested its case at approximately 3:40 p.m. that day. Defense counsel informed the court that he was unable to contact a witness who had been subpoenaed and who had appeared at the calendar call on Monday, and counsel requested that trial be adjourned until the next day so that he might procure the witness’s attendance. The witness was the driver of the vehicle in which Bailey was a passenger when it was stopped; the arresting officer saw Bailey kick a plastic bag containing the contraband out of his sock as he exited the vehicle. Counsel had telephoned the witness on multiple occasions Tuesday evening and Wednesday but had received no response. In denying counsel’s request to adjourn the trial early, the trial court noted that the case had been put on a two-hour call on Monday; that counsel did not move for a continuance prior to trial due to the absence of the witness; that jeopardy had attached; and that there was no indication that the witness would appear the next day if the trial adjourned early.

Requests for continuances founded upon the absence of a witness are governed by OCGA § 17-8-25, and all of the requirements set forth in that statute must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance on that ground. The statutory requirements are:

(1) that the witness is absent[;] (2) that he has been subpoenaed[;] (3) that he does not reside more than 100 miles from the place of trial...[;] (4) that his testimony is material^] (5) that the witness is not absent by permission ... of the movant[;] (6) that [the] movant expects to be able to procure the testimony of the witness at the next term of court[;] (7) that the continuance is not requested for purposes of delay . . . and, (8) the facts expected to be proved by the absent witness must be stated.

In the case at bar, the fourth, sixth and eighth requirements of OCGA § 17-8-25 were not met. Bailey did not establish, either at trial or at the hearing held on his motion for new trial, that the absent witness’s testimony was material or that Bailey expected to be able to procure his testimony during an adjournment. Moreover, Bailey never stated any facts that he expected to prove through the testimony of the absent witness. Under these circumstances, it cannot be said that the trial court abused its discretion in denying the motion for continuance.

Decided May 3, 2011.

Alfred D. Dixon, for appellant.

Tracy Graham-Law son, District Attorney, Stephen N. Knights, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P J., and Dillard, J., concur.

        Brown v. State, 304 Ga. App. 168, 171-172 (2) (695 SE2d 698) (2010); accord Riggins v. State, 206 Ga. App. 239, 241 (2) (424 SE2d 879) (1992).

        Brown, supra at 172 (2).

        Beasley v. State, 115 Ga. App. 827-828 (1) (156 SE2d 128) (1967).

       See Riggins, supra at 241-242 (2).


author: Andrews, Judge.

text:
    A11A0554.
    3400 PARTNERS, LLC v. CHAVEZ.
    (711 SE2d 19)
   Andrews, Judge.

On appeal from a grant of summary judgment enforcing a subcontractor’s lien, the defendant owner of the property argues that the lien is defective because the legal description referred to in the lien listed only one of the many condominium units on the property. We affirm.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo, viewing it in the light most favorable to the non-movant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

So viewed, the record shows that 3400 Partners, LLC, the owner of a 60-unit condominium and retail complex located at 3400 Malone Drive in Atlanta, hired a general contractor, MGR Inc., who hired Maria O. Chavez d/b/a Parra Construction (Parra), as a concrete and painting subcontractor. After 3400 Partners failed to pay Parra’s bills, Parra timely filed a materialmen’s lien on the property as specified in OCGA § 44-14-361.1. The lien listed the property as “3400 Malone Drive, Chamblee, Georgia 30341 (See Exhibit A),” and added that “[t]his lien is claimed, separately and severally, as to all buildings and improvements thereon, and the said land.” The legal description attached as “Exhibit A” denoted the property, however, as “all that tract or parcel of land lying and being in land lot 299, 18th District, Chamblee Section, Dekalb County, Georgia, and being Unit No. 311, 3400 Malone Condominium.” (Emphasis supplied.) The legal description also referred to plat book pages containing drawings of the entire complex.

As condition precedent to this action to enforce the lien, Parra obtained a consent judgment against 3400 Partners in its favor in the amount of $185,746.25. See OCGA § 44-14-361.1 (a) (specifying procedure for perfecting a lien, including commencing an action to recover the amount claimed within 12 months of when the claim became due); Few v. Capitol Materials, 274 Ga. 784, 784-785 (1) (559 SE2d 429) (2002).

As the parties have agreed, the only issue on appeal is whether Parra’s lien is invalid as a result of the property description’s reference to a single unit of the complex. Mull v. Mickey’s Lumber & Supply Co., 218 Ga. App. 343, 344 (2) (461 SE2d 270) (1995) (sufficiency of a lien’s legal description is a question of law for the court).

It is true that “[t]he creation of liens under [OCGA] § 44-14-361.1 is in derogation of the common law,” and that “strict compliance with the requirements of [the statute] is required.” Consolidated Systems v. AMISUB, Inc., 261 Ga. 590, 591 (1) (408 SE2d 109) (1991). As our Supreme Court has recently emphasized, however, “[i]t is only when a description [of property] is manifestly too meager, imperfect, or uncertain to serve as adequate means of identification that the court can adjudge the description insufficient as a matter of law.” Deljoo v. SunTrust Mtg., 284 Ga. 438, 440 (668 SE2d 245) (2008). Thus this Court has previously enforced liens whose legal descriptions contained surplusage, omissions, and even errors. See North v. Waffle House, 177 Ga. App. 162, 163 (338 SE2d 750) (1985) (tracts not owned by the defendant); Love v. Hockenhull, 91 Ga. App. 877, 878 (87 SE2d 352) (1955) (multiple street numbers); Southwire Co. v. Metal Equip. Co., 129 Ga. App. 49 (198 SE2d 687) (1973) (land lot number and description of buildings and tanks but no street number); Grubb v. Woodglenn Properties, 220 Ga. App. 902, 905 (4) (470 SE2d 455) (1996) (incorrect plat book page number).

This description’s apparent limitation of the lien to “Unit 311” of the subject property stands in contradiction to all the remaining evidence in the case, both intrinsic and extrinsic, including (a) the lien’s assertion of an interest in “all buildings and improvements” on the property; (b) the description’s own reference to plat book drawings of the entire project; (c) a letter from 3400 Partners about Parra’s “work done at 3400 Malone Drive” without limitation to any particular unit; and (d) the disproportion between the nearly $186,000 worth of work Parra performed concerning all 60 units and the less than $200,000 market value of individual units in the complex. In short, “there is no evidence that the parties were confused” about the property on which the lien was imposed. See CDM Custom Homes v. Windham, 280 Ga. App. 728, 734 (3) (634 SE2d 780) (2006) (enforcing specific performance where a contract description was sufficient extrinsic evidence to perfect the legal description of the property).

Decided April 11, 2011

Reconsideration denied May 4, 2011

Mahaffey, Pickens & Tucker, Andrew D. Standi, Gerald Davidson, Jr., for appellant.

Wasson, Sours & Harris, Mark D. Gropp, for appellee.

3400 Partners seeks to forestall this conclusion by pointing to Bollers v. Noir Enterprises, 297 Ga. App. 435 (677 SE2d 338) (2009), in which we invalidated three liens containing “as many as three separate property descriptions.” Id. at 442 (3). As we pointed out, however, the Boilers liens referred to addresses in different cities, while their legal descriptions referred to “different, presumably larger tracts of land than the property described” in the deeds. Id. By contrast, the single lien at issue here contains a proper street and city address and a specification that it applies to “all buildings and improvements thereon.” The Boilers lienholder also failed to offer extrinsic evidence to explain the discrepancies, id. at 442-443 (3), whereas Parra attached a letter to its complaint tending to show that Parra had worked on the entire complex, and not simply at one unit of that complex. For all these reasons, we affirm the trial court’s grant of summary judgment to Parra concerning the enforceability of its lien.

Judgment affirmed.

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


author: Mikell, Judge.

text:
    A11A0564.
    PULLIAM v. THE STATE.
    (711 SE2d 21)
   Mikell, Judge.

Joey Lee Pulliam was found guilty by a jury of leaving the scene of an accident which resulted in serious injury (Count 1, a felony under OCGA § 40-6-270 (b)) and leaving the scene of an accident resulting in damage to a vehicle (Count 2, a misdemeanor under OCGA § 40-6-270 (c) (l)). After a hearing, the trial court denied Pulliam’s motion for new trial, and Pulliam appeals, asserting that the 'victim’s testimony as to his own injuries was inadmissible; that the indictment as to the felony count was fatally insufficient; and that the trial court erred in denying Pulliam’s motion for a directed verdict. Discerning no error, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that on March 2, 2007, while driving his truck, Pulliam ran through a stop sign and struck another vehicle, driven by John Thomas Moss. The collision occurred with such force that Pulliam’s truck ended up in an embankment and Moss’s vehicle became airborne, landing with Moss pinned inside his vehicle. One witness, a passenger in Pulliam’s truck, testified that after the accident occurred, he could hear Moss screaming. The officer investigating the accident testified that Moss suffered cuts and lacerations and was bleeding, and that he could not move.

After the accident, Pulliam told one of his passengers that “he was leaving and that we could stay there if we wanted to, but he was leaving.” Pulliam left the scene of the accident within three minutes after its occurrence and did not return. He did not provide his information or make any effort to check on the driver of the other vehicle or to render assistance.

Pulliam, testifying at trial, admitted that he was going too fast, ran a stop sign, and “t-boned” a car; and that “it was a major wreck.” He explained that the driver’s side airbag in his vehicle deployed, triggering an asthma attack; and that when he could not find his inhaler in his truck, he told one of his passengers to check on the other driver and to give the officer all of his information, because he had to go home to get his inhaler. Pulliam testified that he made sure that “the gentleman was being tended to” and that 911 was called “for the people injured in the wreck.” He admitted that he left the scene and did not return.

1. Pulliam contends that the trial court erred in denying his motion in limine seeking to exclude Moss’s testimony as to the injuries received in the accident, on the grounds that as a layman, Moss was not competent to give a medical opinion.

Moss testified that when Pulliam’s truck hit his car, the door panel hit him in the side and that he was “gasping for air because [he] was having trouble breathing.” He was transported directly to the hospital from the accident scene, and he was in an ICU for four days. Moss further testified, “I had several rib fractures. I had a pulmonary contusion which is a punctured lung. And I had problems with my hip at the time. I spent eight months in the bed.”

Although “[a] lay witness is not competent to give what amounts to a medical opinion relative to his injuries or the effect thereof,” this Court has ruled that “victims . . . are competent to testify as to the injuries they suffered during an assault,” including broken bones. Thus, the trial court did not err in permitting Moss to testify as to his broken ribs.

Further, even if Moss’s testimony that “I had a pulmonary contusion which is a punctured lung” constitutes a medical opinion which a lay witness is not competent to give, Pulliam has failed to show reversible error, in light of the overwhelming evidence of his guilt.

2. Pulliam asserts that the trial court erred in denying his pre-trial demurrer to Count 1 of the indictment, the felony count, which he contends was fatally defective in failing to provide a description of the victim’s injuries and in failing to allege that the accident was the “proximate cause” of his injuries. We disagree. Count 1 of the indictment charged Pulliam

with the offense of FAILURE TO STOP AT OR RETURN TO SCENE OF ACCIDENT (OCGA § 40-6-270) in that the said accused, in the State of Georgia and County of Gwin-nett, on the 2nd day of March, 2007, being the driver of a vehicle involved in an accident resulting in serious injury to John Moss, did then and there unlawfully fail to stop his vehicle immediately and return to the scene of the accident, and did fail to render to said person reasonable assistance, contrary to the laws of said State, the peace, good order and dignity thereof.

In determining the sufficiency of an indictment to withstand a general demurrer, the following test is applied:

If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.

Under this test, Count 1 of the indictment is sufficient, because the facts alleged in Count 1, if established, constitute a violation of OCGA § 40-6-270 as a matter of law. Under subsection (b) of this Code section, if an accident is “the proximate cause of death or a serious injury,” then “any person knowingly failing to stop and comply with the requirements of [OCGA § 40-6-270 (a)] shall be guilty of a felony.”

The allegation in the indictment that this was “an accident resulting in serious injury to John Moss” adequately asserted proximate cause. Further, the allegation of “serious injury to John Moss” sufficiently stated the offense in the terms and language of the statute. This indictment was sufficient to put Pulliam on notice of the crime with which he was charged; and he could not admit the facts as charged in the indictment and still be innocent of committing the offense of a violation of OCGA § 40-6-270. The fact that the injuries to Moss were not set forth with specificity in the indictment does not render it insufficient. As this Court has often stated,

[t]he true test of the sufficiency of an indictment is not whether it could have been more definite, but whether it contains the elements of the offense charged, sufficiently informs the defendant of the charges so that he can present his defense without being surprised by the evidence and protects him against another prosecution for the same offense.

Decided April 15, 2011

Reconsideration denied May 4, 2011.

David S. Cason, for appellant.

Daniel J. Porter, District Attorney, Sabrina Nizamuddin, Karen

“In this case, the indictment sufficiently informed [Pulliam] of the offense that he needed to defend against and fully protected him against any subsequent prosecution for the same offense.” Therefore, the trial court did not err in denying Pulliam’s demurrer to the indictment.

3. Pulliam asserts that the trial court erred in denying his motion for directed verdict. This enumeration is without merit.

“In reviewing the denial of a directed verdict of acquittal, we employ the same test used to determine sufficiency of the evidence.” Applying that standard, 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 offense charged beyond a reasonable doubt. Moreover, “conflicts in the testimony of witnesses, including the [s]tate’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.”

Applying this standard to the case before us, we conclude that the evidence adduced at trial provided ample authority for the jury to find Pulliam guilty of the offenses charged beyond a reasonable doubt. The trial court did not err in denying Pulliam’s motion for directed verdict.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

M. Harris, Assistant District Attorneys, for appellee.

       The state entered a nolle prosequi on the third count of the indictment, driving with a suspended or revoked license.

        London v. State, 289 Ga. App. 17 (656 SE2d 180) (2007).

       (Citation omitted.) Jones v. State, 294 Ga. App. 564, 566 (2) (669 SE2d 505) (2008).

        Watson v. State, 301 Ga. App. 824, 826 (689 SE2d 104) (2009) (victim of aggravated assault testified to broken fingers and injuries to head and spine resulting from attack by defendant), citing Jones, supra at 567 (2) (victim testified that her right jawbone was fractured during attack).

       See Ferrell v. State, 283 Ga. App. 471, 473 (2) (641 SE2d 658) (2007) (victim testified to injuries including eye socket broken in three places, broken cheekbone and nose, and four broken ribs); Code v. State, 255 Ga. App. 432 (1) (565 SE2d 477) (2002) (victim testified to jaw broken in two places).

       See Ferrell, supra.

       See Manning v. State, 231 Ga. App. 584, 585 (2) (499 SE2d 650) (1998) (admission of medical records, even if hearsay, did not constitute reversible error where evidence of guilt was overwhelming). See also Tucker v. State, 222 Ga. App. 517 (1), 519 (4) (474 SE2d 696) (1996) (victim’s testimony that knife wounds seriously damaged his internal organs, even if inadmissible as a medical diagnosis, was merely cumulative of other admissible evidence of victim’s injuries and therefore did not constitute reversible error).

       (Citation omitted.) Bishop v. State, 266 Ga. App. 129, 131 (2) (596 SE2d 674) (2004). See OCGA § 17-7-54 (a) (“Every indictment. . . which states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct”); Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993).

       OCGA § 40-6-270 (b). In any accident involving death or injury, OCGA § 40-6-270 (a) requires the driver of any vehicle involved to stop immediately “at the scene of the accident” or “as close thereto as possible”; to provide certain information (OCGA § 40-6-270 (a) (1), (2)); and to “[r]ender to any person injured in such accident reasonable assistance” (OCGA § 40-6-270 (a) (3)). Further, OCGA § 40-6-270 (a) specifically provides that “[t]he driver shall in every event remain at the scene of the accident until fulfilling the requirements of this subsection.”

        Tidwell v. State, 216 Ga. App. 8, 10 (1) (453 SE2d 64) (1994).

        Hovis v. State, 260 Ga. App. 278, 281 (1) (a) (582 SE2d 127) (2003).

       (Footnote omitted.) Harridge v. State, 243 Ga. App. 658, 664 (5) (534 SE2d 113) (2000).

       Id.

        Fluellen v. State, 284 Ga. App. 584 (644 SE2d 486) (2007) (whole court), citing Joyner v. State, 280 Ga. 37, 38 (1) (622 SE2d 319) (2005).

        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).

       (Punctuation omitted.) Williams v. State, 287 Ga. 199, 200 (695 SE2d 246) (2010), citing Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

        Jackson, supra. See London, supra at 20 (2).