Lamons v. State

Court of Appeals of Georgia

Lamons v. State

335 S.E.2d 652, 176 Ga. App. 290, 1985 Ga. App. LEXIS 2222

CourtCourt of Appeals of Georgia

DecidedSeptember 12, 1985

Docket70489

StatusPublished

Cited by7 cases

This text of 335 S.E.2d 652 (Lamons v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lamons v. State, 335 S.E.2d 652, 176 Ga. App. 290, 1985 Ga. App. LEXIS 2222 (Ga. Ct. App. 1985).

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Opinions

Deen, Presiding Judge.

A Cobb County jury found appellant Lamons guilty on one count of violating the Dangerous Drug Act, OCGA § 16-13-70 et seq., by selling pills containing amitriptyline; and on one count of violating the Georgia Controlled Substances Act, OCGA § 16-13-1 et seq., by selling ephedrine (a non-scheduled drug) on the express representation that it was a controlled substance, methamphetamine. Lamons was sentenced to a total of ten years’ imprisonment, with probation after seven years, plus a fine. On appeal Lamons enumerates eleven errors having to do with the allegedly impermissible placing of his character in evidence; the denial of his motions for mistrial, a di[291]*291rected verdict of acquittal, judgment notwithstanding the guilty verdict, and a new trial; and the general grounds. In reviewing these enumerations we have treated together those that are related to one another. Held:

1. Examination of the trial transcript reveals that a witness’ unsolicited remark might arguably have been construed as reflecting adversely on the defendant’s character when the defendant himself had not placed his character in issue: the witness stated that during one of the alleged drug transactions the defendant “appeared to be under the influence and said he had been taking the [amitriptyline] pills.” The trial court sustained defense counsel’s objection and gave the jury curative instructions. In view of the other competent evidence adduced, it seems highly probable that this error did not contribute to the conviction. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Chester v. State, 144 Ga. App. 717 (242 SE2d 356) (1978). Therefore, neither a mistrial nor a new trial was warranted on this ground, and appellant’s seventh and eighth enumerations are devoid of merit.

2. Scrutiny of the record indicates that appellant’s case did not meet the statutory criteria for a directed verdict of acquittal. OCGA § 17-9-1. Moreover, as the trial court correctly pointed out in its order of February 6, 1985, a motion for judgment notwithstanding the verdict is inappropriate in a criminal proceeding and when, as in this case, it is made in the alternative with a motion for new trial, it amounts only to the latter and should be treated as the equivalent of a motion for new trial on the general grounds. Deen v. State, 216 Ga. 387 (116 SE2d 595) (1960); Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980). The record further reveals that the court below correctly denied appellant’s motion for new trial. The first, second, tenth, and eleventh enumerations of error are without merit.

3. The record reveals that sufficient competent evidence was presented at trial to authorize a reasonable trier of fact to find appellant guilty as charged beyond a reasonable doubt. Hampton v. State, 250 Ga. 805 (301 SE2d 274) (1983). The appellate court assesses the sufficiency of the evidence, not its weight. Barnes v. State, 171 Ga. App. 478 (320 SE2d 597) (1984). Appellant’s third and fourth enumerations of error are also without merit.

4. Study of the trial transcript reveals that the alleged misconduct involving a conversation between a prosecution witness and a juror was thoroughly explored by the court outside the jury’s presence. Both the witness (who had called the conversation to the court’s attention) and the juror were questioned, and it was established to the court’s satisfaction that the conversation was unrelated to the case sub judice. See Hardy v. State, 242 Ga. 702 (251 SE2d 289) (1978); Smith v. State, 218 Ga. 216 (126 SE2d 789) (1962). No mis[292]*292trial or new trial was authorized, and the fifth and sixth enumerations are without merit.

5. Also without merit is appellant’s ninth enumeration of error, as examination of the entire record in this case reveals no reversible error of law.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Parley, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

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Deen, Presiding Judge.

A Cobb County jury found appellant Lamons guilty on one count of violating the Dangerous Drug Act, OCGA § 16-13-70 et seq., by selling pills containing amitriptyline; and on one count of violating the Georgia Controlled Substances Act, OCGA § 16-13-1 et seq., by selling ephedrine (a non-scheduled drug) on the express representation that it was a controlled substance, methamphetamine. Lamons was sentenced to a total of ten years’ imprisonment, with probation after seven years, plus a fine. On appeal Lamons enumerates eleven errors having to do with the allegedly impermissible placing of his character in evidence; the denial of his motions for mistrial, a di[291]*291rected verdict of acquittal, judgment notwithstanding the guilty verdict, and a new trial; and the general grounds. In reviewing these enumerations we have treated together those that are related to one another. Held:

1. Examination of the trial transcript reveals that a witness’ unsolicited remark might arguably have been construed as reflecting adversely on the defendant’s character when the defendant himself had not placed his character in issue: the witness stated that during one of the alleged drug transactions the defendant “appeared to be under the influence and said he had been taking the [amitriptyline] pills.” The trial court sustained defense counsel’s objection and gave the jury curative instructions. In view of the other competent evidence adduced, it seems highly probable that this error did not contribute to the conviction. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869) (1976); Chester v. State, 144 Ga. App. 717 (242 SE2d 356) (1978). Therefore, neither a mistrial nor a new trial was warranted on this ground, and appellant’s seventh and eighth enumerations are devoid of merit.

2. Scrutiny of the record indicates that appellant’s case did not meet the statutory criteria for a directed verdict of acquittal. OCGA § 17-9-1. Moreover, as the trial court correctly pointed out in its order of February 6, 1985, a motion for judgment notwithstanding the verdict is inappropriate in a criminal proceeding and when, as in this case, it is made in the alternative with a motion for new trial, it amounts only to the latter and should be treated as the equivalent of a motion for new trial on the general grounds. Deen v. State, 216 Ga. 387 (116 SE2d 595) (1960); Russell v. State, 155 Ga. App. 555 (271 SE2d 689) (1980). The record further reveals that the court below correctly denied appellant’s motion for new trial. The first, second, tenth, and eleventh enumerations of error are without merit.

3. The record reveals that sufficient competent evidence was presented at trial to authorize a reasonable trier of fact to find appellant guilty as charged beyond a reasonable doubt. Hampton v. State, 250 Ga. 805 (301 SE2d 274) (1983). The appellate court assesses the sufficiency of the evidence, not its weight. Barnes v. State, 171 Ga. App. 478 (320 SE2d 597) (1984). Appellant’s third and fourth enumerations of error are also without merit.

4. Study of the trial transcript reveals that the alleged misconduct involving a conversation between a prosecution witness and a juror was thoroughly explored by the court outside the jury’s presence. Both the witness (who had called the conversation to the court’s attention) and the juror were questioned, and it was established to the court’s satisfaction that the conversation was unrelated to the case sub judice. See Hardy v. State, 242 Ga. 702 (251 SE2d 289) (1978); Smith v. State, 218 Ga. 216 (126 SE2d 789) (1962). No mis[292]*292trial or new trial was authorized, and the fifth and sixth enumerations are without merit.

5. Also without merit is appellant’s ninth enumeration of error, as examination of the entire record in this case reveals no reversible error of law.

Judgment affirmed.

Banke, C. J., McMurray, P. J., Birdsong, P. J., Parley, Sognier, Pope and Benham, JJ., concur. Beasley, J., dissents.

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Bluebook (online)

335 S.E.2d 652, 176 Ga. App. 290, 1985 Ga. App. LEXIS 2222, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lamons-v-state-gactapp-1985.

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