Saldona v. State

466 S.E.2d 655 (1996)

219 Ga. App. 762

SALDONA v. The STATE.

No. A95A2711.

Court of Appeals of Georgia.

January 3, 1996.

*656 Conrad M. Saldona, Peachtree City, Appellant pro se.

Saia, Richardson & Meinken, Joseph J. Saia, Peachtree City, for appellant.

Paul L. Howard, Jr., Solicitor General, Jane Morrison, Assistant Solicitor General, Atlanta, for appellee.

McMURRAY, Presiding Judge.

Defendant Saldona appeals his conviction of the offense of harassing phone calls (OCGA § 16-11-39(4)). Held:

1. The first enumeration of error maintains that the evidence is not sufficient to authorize defendant's conviction because there is evidence of only one telephone call in which defendant threatened the victim. Defendant's argument is predicated on an incorrect reading of Sarver v. State, 206 Ga.App. 459(2), 426 S.E.2d 48 which notes that the statute provides alternative and separate ways by which the crime may be committed. In the case sub judice, the accusation charged that defendant repeatedly telephoned the victim for the purpose of annoying and harassing him. The victim testified as to a dozen or more such calls and this evidence was sufficient to authorize defendant's conviction. Id. at 460, 426 S.E.2d 48. The conviction in Sarver was reversed because there was only one annoying and harassing phone call so that the statutory prohibition of repeated conduct of this type was not breached there as it has been in the case sub judice. On this appeal, the significance of the evidence that defendant threatened the victim is only that this was an additional harassing telephone call. Furthermore, defendant's assertion, that the repeated calls in which defendant screamed and cursed at the victim were only for the purpose of obtaining salary owed to his wife, addresses a factual issue which was properly submitted to the jury and decided adversely to defendant. A review of the entire record in the case sub judice reveals sufficient evidence from which a rational trier of fact could determine that defendant was guilty beyond a reasonable doubt of the offense of harassing phone calls. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560.

2. Next, defendant complains of the trial court's grant of the State's motion in limine prohibiting any mention of a prosecution witness's conviction of driving under the influence. Defendant argues that such evidence provided a proper means to impeach the witness by proof of a crime involving moral turpitude. But defendant is mistaken. Driving under the influence is not a crime involving moral turpitude. Syfrett v. State, 210 Ga.App. 185, 187(4), 435 S.E.2d 470. This enumeration of error is without merit.

3. In his final enumeration of error, defendant argues for the first time that he was denied effective assistance of trial counsel. The ineffectiveness claim is raised by appellate counsel who had no participation in the case until after the filing of the notice of appeal (which was done by defendant pro se). We, therefore, remand the case for a hearing by the trial court to consider the claim of ineffective assistance of trial counsel. Kennedy v. State, 217 Ga.App. 18, 19(2), 456 S.E.2d 288; Phillips v. State, 215 Ga.App. 526, 528, 451 S.E.2d 517.

Judgment affirmed and case remanded with direction.

ANDREWS and BLACKBURN, JJ., concur.