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Drug violation. Whitfield Superior Court. Before Judge Boyett.
A Whitfield County jury found Randy Blake Lovain guilty of attempted "Violation of the Georgia Controlled Substances Act, in violation of OCGA 16-13-30, [in that he] did perform an act to wit: purchasing a piece of a nut having the appearance of a crack cocaine rock from an undercover police officer." Lovain appeals and, in his sole enumeration of error, contends that the trial court erred in sentencing him to ten years, serve four, balance probated. He claims that the indictment failed to specify that he was being charged with attempted possession of crack cocaine, a Schedule II drug, which offense carries a penalty of between two and fifteen years under OCGA 16-13-30 (e). Lovain contends that, under the indictment, he might just as easily be guilty of attempted possession of a Schedule III, IV, or V drug under OCGA 16-13-30 (g), which offense carries a maximum penalty of five years. He asserts that an accused is entitled to have the lesser of two penalties apply where any uncertainty exists as to which penal clause applies.
We agree with Lovain's last assertion. It has long been the law that "[w]here any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered." 1 Clearly, however, this is not a case where there is such uncertainty. The indictment charged Lovain with attempting to purchase a substance with the appearance of crack cocaine. The jury found him guilty of attempting to purchase such substance. Under any reading of the indictment, Lovain was trying to buy a rock of crack cocaine from an undercover officer.
Lovain's exclusive reliance on our decision in Mallarino v. State 2 is misplaced. The indictment in Mallarino failed to charge the defendant with an amount of cocaine greater than "28 grams or more" under OCGA 16-13-31 (a) (1) (A); thus, the trial court was not authorized to impose a penalty for trafficking in an amount of cocaine in excess of 400 grams under OCGA 16-13-31 (a) (1) (C). This case does not involve an "amount" of cocaine so as to impact on sentencing.
Any person who attempts or conspires to commit any offense defined in this article [OCGA 16-13-1 et seq.] shall be, upon conviction thereof, punished by imprisonment not exceeding the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy. 3
Here, the indictment charged Lovain with a violation of our drug laws in that he attempted to purchase what looked like a rock of crack cocaine; the jury found Lovain violated our drug laws by attempting to purchase what looked like a rock of crack cocaine; and Lovain was sentenced within the parameters of the statute which specifies the penalties for the purchase of a rock of crack cocaine. 4 There was no error.
Kermit N. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.
1  (Punctuation omitted.) Gee v. State, 225 Ga. 669, 676 (7) (171 SE2d 291) (1969).
2  190 Ga. App. 398, 399 (1) (379 SE2d 210) (1989).
3  OCGA 16-13-33.
4  OCGA 16-13-30 (c). App.) JANUARY TERM, 2002. 273 upper hand in their pending divorce. In support of his defense, Burk showed that his daughter had a pattern of making sexual accusations against him and other men and quickly retracting the accusations. Burk also relied on evidence that a physical examination performed the day after the alleged April 1999 incident failed to reveal the presence of semen.1. Burk contends the trial court abused its discretion in allowing the State to elicit testimony from his wife that he possessed pornographic magazines in that his possession of the materials was not linked to the specific acts alleged in the indictment, citing Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999). Since Simpson, physical "evidence of sexual paraphernalia found in the defendant's possession is inadmissible in a prosecution for a sexual offense unless it can be linked to the crime charged." State v. Tyson, 273 Ga. 690, 694 (4) (544 SE2d 444) (2001).Pretermitting whether Simpson prohibits oral testimony regarding a defendant's possession of pornographic materials, as opposed to admission of the materials themselves, the victim and the similar transaction victim testified, without objection, that Burk showed them pornographic materials, thus linking the materials to Burk's offense. Jowers v. State, 245 Ga. App. 773, 774 (2) (538 SE2d 853) (2000); cf. Frazier v. State, 241 Ga. App. 125, 126 (1) (524 SE2d 768) (1999). Burk's wife's testimony was merely cumulative of the victims' testimony; therefore, any error in admitting the wife's testimony was harmless. Bearden v. State, 241 Ga. App. 842, 844 (1) (528 SE2d 275) (2000).2. Burk contends his trial counsel failed to afford him effective assistance in two areas: failing to perfect the record as to adverse evidentiary rulings and committing "tactical blunders."In order to establish ineffective assistance of counsel, [Burk] must show that his trial counsel's performance was deficient and establish a likelihood that the deficient performance prejudiced his defense. Trial counsel is presumed to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment, and judicial scrutiny of counsel's performance must be highly deferential. Counsel's decisions on matters of tactic and strategy, even if unwise, do not amount to ineffective assistance of counsel.(Punctuation and footnotes omitted.) Robertson v. State, 245 Ga. App. 649, 651-652 (2) (538 SE2d 755) (2000). See also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Further, each claim of inadequate representation must be examined independently of other claims, as Georgia does not recognize the cumulative
Michael R. McCarthy, for appellant.
Thursday May 21 01:43 EDT

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