Diazv.State

Court of Appeals of GeorgiaSep 2, 1999
239 Ga. App. 795 (Ga. Ct. App. 1999)
239 Ga. App. 795522 S.E.2d 242

A99A1401.

DECIDED: SEPTEMBER 2, 1999.

Drug violation. Colquitt Superior Court. Before Judge Horkan.

Douglas C. Rogers, for appellant.

J. David Miller, District Attorney, Wesley J. Lewis, A. Scott Gunn, Assistant District Attorneys, for appellee.


Following a jury trial, Juan Diaz was convicted of two counts of selling marijuana and one count of possession of marijuana with intent to distribute. On appeal he challenges the admission of the videotape of the drug transactions, the failure to issue several jury charges, and the sufficiency of the evidence. Diaz also contends the trial court erred by allowing the prosecution to attack his character in closing argument. We affirm.

1. Diaz challenges the admission of the videotaped sale of marijuana recorded by McClelland, an undercover informant. He contends the prosecution did not lay the proper foundation to admit the videotape and that it was not authenticated. McClelland testified he used the video camera to record the transactions and that he viewed the videotape prior to trial. He further testified that he was familiar with how the camera operated, that it was working properly, and that the videotape was a fair and accurate representation of the events that took place during the drug buy. This testimony established a foundation and properly authenticated the videotape. Gantt v. State, 229 Ga. App. 207, 208(1) ( 493 S.E.2d 608) (1997). The trial court overruled Diaz's objection which implies a finding that the foundation witness was credible. Dunn v. State, 218 Ga. App. 329, 330 ( 461 S.E.2d 294) (1995). This finding is not clearly erroneous.

2. Diaz contends the trial court erred in failing to give specific jury charges. However, following the court's instructions to the jury, the court asked for any objections, to which Diaz's counsel replied that he had none. Counsel's failure to object to the jury charge as given constitutes a waiver of any objection on appeal. Russell v. State, 264 Ga. 121, 122(3) ( 441 S.E.2d 750) (1994); Medina v. State, 234 Ga. App. 13, 15-16(2) ( 505 S.E.2d 558) (1998).

An exception to this waiver arises when there has been some substantial error in the jury charge which was harmful to the defendant as a matter of law, depriving him of a fair trial, regardless of whether an objection was made. OCGA § 5-5-24(c); Medina, supra. Here we find no substantial error. Diaz contends that the jury should have been charged on the contingency fee arrangement of the witness. The court in fact gave this charge in substance, which cures any problem. See Anderson v. State, 231 Ga. App. 807, 811(3)(b) ( 499 S.E.2d 717) (1998). Diaz also claims that the jury should have been charged regarding the law of immunity or leniency, but the court correctly found no evidence of either. The court was also correct in refusing to charge the jury on impeachment since no witnesses were impeached. Finally, Diaz maintains that the jury should have been charged on the law of identification. The court dismissed this request, explaining that nothing contradicted the testimony that the person on the videotape was Diaz. "If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper. [Cits.]" Harris v. State, 202 Ga. App. 618, 621(4)(c) ( 414 S.E.2d 919) (1992).

3. Diaz contends that the prosecution's closing argument challenged his truthfulness and character. But Diaz failed to provide a transcript of the closing arguments showing any impermissible statements or showing that he objected to such statements. Review is precluded. Campbell v. State, 269 Ga. 186, 188(11) ( 496 S.E.2d 724) (1998); Hand v. State, 206 Ga. App. 501, 503-504(5) ( 426 S.E.2d 18) (1992).

4. Diaz urges that because of insufficient evidence, the denial of his motion for directed verdict was error. The standard of review is whether, in reviewing the evidence in the light most favorable to the prosecution, a rational trier of fact could find Diaz guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 ( 99 S.Ct. 2781, 61 L.E.2d 560) (1979); see Humphrey v. State, 252 Ga. 525, 527(1) ( 314 S.E.2d 436) (1984).

Eyewitness testimony and a videotape showed that Diaz, on two separate occasions, sold marijuana to McClelland. Additionally, a sheriff's deputy testified that in executing a search warrant of Diaz's home, he found a jar containing marijuana in a closet. The evidence sufficed to sustain the convictions. Jackson, supra.

Judgment affirmed. Barnes and Ellington, JJ., concur.


DECIDED SEPTEMBER 2, 1999.