Opinion
69604.
DECIDED MARCH 4, 1985. REHEARING DENIED MARCH 21, 1985.
Theft by taking. Fulton Superior Court. Before Judge Etheridge.
Derek H. Jones, for appellant.
Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Andrew Weathers, Assistant District Attorneys, for appellee.
Appellant and a co-defendant were tried for two counts of felony theft by taking and eight counts of misdemeanor theft by taking. The State sought to prove that appellant and her co-defendant had used their business, Paragon Financial Services, to perpetrate the crimes. The evidence showed that numerous customers had paid money to Paragon, but had never received the agreed consideration therefor or a refund. At the conclusion of the State's evidence, the trial court granted a directed verdict of acquittal as to three of the misdemeanor counts. The jury returned verdicts of guilty on the remaining counts. Appellant's motion for new trial was denied and she appeals.
1. Appellant raises the general grounds. Our review of the transcript demonstrates that, "while the evidence might well have made out a case under the provisions of [OCGA § 16-8-3] relating to theft by deception, it clearly made out a case also within the purview of [OCGA § 16-8-2]." Stull v. State, 230 Ga. 99, 103 ( 196 S.E.2d 7) (1973). See also Jones v. State, 137 Ga. App. 612, 613 (4) ( 224 S.E.2d 473) (1976). Contrary to appellant's assertions, there was sufficient admissible "other transactions" evidence which, in conjunction with other evidence, authorized the submission to the jury of the question of her criminal intent. See generally Wilson v. State, 155 Ga. App. 560 ( 271 S.E.2d 694) (1980). After a review of the entire record, we find that a rational trior of fact could reasonably have found from the evidence adduced at trial proof of appellant's guilt beyond a reasonable doubt. See generally McDonald v. State, 150 Ga. App. 506 ( 258 S.E.2d 246) (1979).
2. Appellant asserts that her character was impermissibly placed into evidence on several occasions.
As noted in Division 1, evidence of appellant's previous commission of similar offenses was not erroneously admitted. See generally Garrett v. State, 147 Ga. App. 666, 670 (8) ( 250 S.E.2d 1) (1978). Likewise, the scope of appellant's "course of conduct" in other business dealings taken in connection with Paragon Financial Services, the questionable business entity operated by appellant and her co-defendant, was a legitimate topic of inquiry. See generally Goldberg v. State, 20 Ga. App. 162, 163 (2) ( 92 S.E. 957) (1917); Barnes v. State, 57 Ga. App. 183 (1) ( 194 S.E. 839) (1938); Hodges v. State, 85 Ga. App. 617 (2) ( 70 S.E.2d 48) (1952); Bunge v. State, 149 Ga. App. 712, 716 (4) ( 256 S.E.2d 23) (1979).
The State introduced evidence that appellant had filed for personal bankruptcy and that, in connection with those bankruptcy proceedings, she had written two checks on the checking account of Paragon Financial Services. This evidence of appellant's financial condition was admissible on the issue of her motive to commit the crime of theft. It was also admissible on the issue of her intent to treat funds which had ostensibly been paid to the business entity under investigation as her own personal account. See generally Metts v. State, 162 Ga. App. 641 (2) ( 291 S.E.2d 405) (1982). "All the facts connected with the transaction under investigation are relevant and admissible in evidence, provided that they afford any fair presumption as to the matter in issue ([cit.]), and especially is this true where such facts tend to show motive and intent." Harris v. State, 69 Ga. App. 872, 873 ( 27 S.E.2d 51) (1943).
3. Appellant enumerates the denial of her motion to sever her trial from that of her co-defendant.
"Since the offense charged in the instant case was not a capital felony, the decision of whether or not to sever the [trial of the] co-defendants rested within the discretion of the trial court. [Cits.] In the absence of a showing that the trial court abused its discretion in denying severance, causing defendant to suffer prejudice amounting to a denial of due process, we [will not] disturb the trial court's ruling on appeal. [Cit.]" Jackson v. State, 153 Ga. App. 462-463 ( 265 S.E.2d 368) (1980). "Since the co-defendants were jointly indicted for the same offense, involved the same witnesses and there was evidence of concerted action, the trial court did not abuse its discretion in denying severance. [Cit.]" Johnson v. State, 159 Ga. App. 109, 110 ( 282 S.E.2d 645) (1981).
4. Before voir dire, the calendar clerk excused an individual from the panel of prospective jurors as "totally incompetent." Over appellant's objection, the trial court approved the actions of its clerk. On appeal, appellant asserts that the excusal of this prospective juror was in violation of OCGA § 15-12-1. Under the circumstances, we find no reversible error. See Franklin v. State, 245 Ga. 141, 146-147 ( 263 S.E.2d 666) (1980). Compare Joyner v. State, 251 Ga. 84, 85 (3) ( 303 S.E.2d 106) (1983).
5. Appellant attempted to introduce the transcript of certain testimony that had been given by a witness at the preliminary hearing. This witness was unavailable for trial. The trial court refused to admit the evidence, on the grounds that it was irrelevant, "repetitive and redundant and would add nothing and really have no probative value." On appeal, appellant enumerates as error the exclusion of this evidence. Our review of the excluded evidence demonstrates that it was in fact merely cumulative of other evidence that was already properly before the jury. Accordingly, the error in its exclusion, if any, was harmless. See generally Milstead v. State, 155 Ga. App. 407, 408 (2) ( 270 S.E.2d 820) (1980).
6. During appellant's cross-examination, she was asked when she had filed for bankruptcy. Appellant responded: "When my house was going to be advertised for foreclosure in the spring, I guess it would be termed, of `81." The assistant district attorney then prefaced his next question to appellant with a comment on "all the talk in front of the jury for sympathy about your house being foreclosed. . . ." Appellant's counsel moved for a mistrial, objecting to the characterization of appellant's testimony as an attempt to invoke the jury's sympathy. The motion was denied and the trial court did not give curative instructions or rebuke the assistant district attorney. Appellant asserts that the trial court's failure to take any curative action was reversible error.
"While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence, and the fact that a deduction may be illogical, unreasonable, or even absurd, is a matter for reply by adverse counsel and not rebuke by the court. [Cit.]" Johnson v. State, 150 Ga. App. 405, 407-408 ( 258 S.E.2d 22) (1979). That portion of appellant's answer which referred to the foreclosure on her house was seemingly unresponsive to the question, which had asked only that appellant give a date. We cannot say that this seeming unresponsiveness did not authorize the assistant district attorney's deduction that it was calculated only to evoke the jury's sympathy. "While it is improper for a district attorney to urge his personal belief, either as to the defendant's guilt or the veracity of the witnesses, he still is authorized to draw these conclusions from facts proven. [Cit.] It was therefore not improper for the assistant district attorney here . . . to infer that the defendant was [attempting to elicit sympathy]. Where the [comment] is based on evidence, conflicts in evidence, or lack of evidence and deductions, even far-fetched deductions, such [comment] is proper even if it questions the veracity of the defendant. [Cits.]" Smith v. State, 151 Ga. App. 697, 699-700 ( 261 S.E.2d 439) (1979). Thus, although the comment may have been somewhat argumentative in the context of appellant's cross-examination, and perhaps should have been reserved for closing argument, we conclude that it "was not so inflammatory as to deny the appellant a fair trial. [Cit.]" Stancil v. State, 157 Ga. App. 189, 190 ( 276 S.E.2d 871) (1981).
Judgment affirmed. Birdsong, P. J., and Beasley, J., concur.