Appellant was convicted of theft of more than $500 from the Barrow County Probate Court between the period of April 1, 1985, and April 28, 1986. She appeals her conviction asserting six errors.
The probate court books were subjected to a general audit periodically. During this audit, the amount of money deposited in the bank by the office was balanced against the amount of money taken *893 in by the office as documented in the office’s cash receipt journal. Random checks were made of other files in the probate court to be sure that the amount of money associated with actual tickets received had been duly recorded in the cash receipt journal. The general audits revealed no discrepancies.
In April 1986, Judge Cape noticed that the ticket files appeared to contain a large number of tickets compared to the number of entries for the month contained in the cash receipt journal. Judge Cape made a cursory comparison between the amount of fines that should have been collected (based on the number of tickets actually received) and the amount of cash that should have been available for deposit in the bank (based on the receipts issued from and entries recorded in the cash receipt journal). The result of this comparison revealed a suspected $800 shortage. Judge Cape suspended the appellant from office duties. The day she was suspended, the appellant made two large cash deposits in the bank which reduced the shortage level to $92. The following Monday an envelope, which had not been in the cash drawer before, was found which contained the missing $92.
Subsequent investigative audit resulted in the detection of cash shortages in the total amount of $16,201.50. This audit also revealed that while the shortages had occurred over a period of approximately one year, at all times the case receipt journal and the bank deposits balanced, so that the shortages were only detected when the actual tickets and bond forfeitures received were examined and the actual amount of money due from these sources was calculated. Thus, the certified public accountant concluded that a person could not commit this particular type of taking merely by grabbing handfuls of money indiscriminately from the cash drawer. Rather, it can be inferred, that the person taking the money must have had access to the cash receipt journal and known exactly how much money had not been duly receipted therein, otherwise the amount of money deposited from and contained in the cash drawer would not have balanced with the amount recorded in the cash receipt journal. The audit further determined that during the period in question certain checks had been deposited in the bank but the transaction had not been recorded in the cash receipt journal. As the cash deposits still balanced with the cash receipt book, it can be inferred that an amount of cash equal to the amount of unreceipted checks had been removed from the cash drawer. Handwriting analysis revealed that of the over 270 unreceipted tickets processed during the period in question, all but one had been processed by appellant. Judge Cape had processed one unreceipted ticket. Only the appellant and Judge Cape were working in the probate court office throughout the entire time period during which shortages of funds were occurring. Two other women performed clerical duties in the office, but neither of them was employed *894 the entire time that losses occurred. The last unreceipted ticket was found on April 22, 1986, the appellant departed the office between 11:00 a.m. and noon that day, after being advised of a pending disciplinary action due to a minor matter unrelated to the missing funds. It was shortly thereafter that the loss initially was discovered.
The appellant denied committing the theft, and asserted that she was merely an innocent victim who had processed tickets received by someone else in the office without checking to see if the transaction had been duly recorded in the cash receipt journal. Appellant testified that Judge Cape would cash her personal checks from the cash drawer, and that sometimes her checks would be held for a prolonged period of time. The jury, however, found the appellant guilty as charged. Held:
1. Appellant’s first three enumerations of error are that: the court erred in accepting a verdict that is contrary to law, is contrary to the evidence, and is strongly against the weight of the evidence. These assignments of error are without merit.
Appellant asserts, in part, that the State’s evidence was circumstantial and failed to meet the statutory requirements of OCGA § 24-4-6. Appellant further asserts that “[t]here was no tangible evidence of the guilt of the accused, only circumstantial evidence which was purposefully slanted against the appellant.”
To support appellant’s conviction, the “[circumstantial evidence must exclude only reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.”
Smith v. State,
2. Appellant’s fourth enumerated error is that the trial court erred in its admission, over timely objection, of inflammatory and prejudicial evidence.
Appellant asserts that the court “allowed into evidence matters which bore no relationship” to the appellant’s guilt, and allowed the appellee to present “grossly enlarged charts and diagrams selected from part of the evidence . . . with contrived and partial data made by the appellee to be placed on the charts and diagrams, and the conclusions ... in red to bias the jury.” However, appellant in his brief fails to identify adequately which charts were “grossly enlarged,” which data thereon was contrived and partial, which specific matters bore no relationship to appellant’s guilt, and which specific charts and
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which specific portions thereof were printed in red. We find that Rule 15 (c) (3), as to specific reference to support enumerated errors, has been violated. Accordingly, this portion of appellant’s fourth enumeration of error is deemed to be waived and those assertions of error abandoned. See
Winget v. State,
In this same broad assertion of error, appellant argues that prejudicial error occurred when, over timely defense objection, the State was allowed to provide the jury with “blazen orange markers to highlight the work product” of the certified public accountant. The accountant’s “work product” apparently had been reproduced onto copies of summaries that had been distributed to the jurors. The record discloses that at trial appellant made a specific objection, which was overruled, to the use of the highlighters on the grounds that the color of the highlighters was improper because “[i]t tends to inflame the jury.” This objection was overruled. The trial judge has inherent power to supervise the course of the trial
(Johnson v. State,
We find appellant’s fourth enumerated error to be without merit.
3. Appellant’s fifth enumerated error is that the trial court erred *896 in not allowing appellant’s sole defense. Appellant appears to have asserted two specific errors in support of this one assignment of error.
First, the appellant alleges without further discussion that the trial court erred in refusing to admit the bank statements and tax returns of the appellant and her husband, as they related to the defense that she did not take the money by establishing that her lifestyle had not changed during the period when the thefts of funds were occurring at the probate court. While the appellant may have meant only to address the court’s refusal to admit certain financial documents pertaining to Judge Cape and her husband in this particular enumerated error, we find the above issue also worthy of discussion.
In
Walker v. State,
In refusing to admit evidence of certain financial records of appellant and other evidence not here in issue, the trial judge apparently concluded that the evidence was not relevant, at least partially on the ground that it was self-serving and that the State had offered no evidence to show that appellant’s lifestyle had changed. In
Harris v. State,
Any error resulting from the trial judge’s failure to admit this particular lifestyle evidence, however, will not result in reversal of judgment unless prejudice is shown.
Riceman v. State,
166 Ga. App.
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825, 828 (
Assuming without deciding that the trial judge abused his discretion in failing to admit certain evidence of appellant’s unchanging lifestyle and that such error raises a due process issue, we find any such error harmless beyond a reasonable doubt in light of the overwhelming evidence of appellant’s guilt. See
Smith v. State,
Secondly, appellant asserts, citing
Henderson v. State,
The trial transcript reflects a certain amount of confusion existing in the resolution of this issue by the trial court. We are satisfied, however, that the following events are reflected in the trial transcript. Appellant filed a subpoena for certain financial records of Judge Cape and her husband, Judge Cape complied with the subpoena, and appellant was allowed to examine but not obtain copies of the documents. These records were admitted in evidence conditionally, but were not to be given to the jury pending further ruling of the trial court. Subsequently, when the appellant attempted to testify re *898 garding certain lists containing information about Judge Cape’s monthly income and expenses, the trial judge refused to allow appellant to do so, stating “until such time as you can show some participation by the Probate Judge in some criminal activity that is the subject matter of this case, I’m not going to let you go into the Probate Judge’s personal finances.” Subsequently, appellant was again precluded from testifying regarding seeing certain personal lists of Judge Cape, which allegedly showed that her expenses exceeded her income on a monthly basis. Appellant then attempted to introduce Judge Cape and her husband’s bank records and 1984 and 1985 state and federal tax returns. The income tax records were for periods from January 1 through December 31 of each year in question, but the bank statements were for a period of April to April. Subsequently, the trial judge stated that he was “going to allow” the bank statements and tax returns in evidence. However, the trial judge ultimately declined to allow the documents to go to the jury without objection by the appellant.
At trial, appellant testified that Judge Cape frequently cashed checks for herself and others at the office using cash drawer funds, and that she frequently observed checks of Judge Cape in the amounts of $350 and $240, respectively, being held in the cash drawer. Appellant denied that she had taken the money. However, she stated that she never suspected anyone else in the office of stealing the money, and that she had never accused anyone else of committing the crime. Appellant did believe and speculate that the actions of Judge Cape in repeatedly keeping two checks of $350 and $240 in the cash drawer “could have” something to do with the missing money, because it was not “normal to keep that amount of — checks written for that amount in our cash drawer.”
The facts of this case are distinguishable from those in Henderson v. State, supra. In Henderson, it was held to be prejudicial error to exclude evidence, which was relevant to prove the existence of a criminal motive of another person who had been expressly accused by the defendant of committing the crimes with which the defendant had been charged, when the defendant’s sole defense was that the other person was the real perpetrator of the crimes. In the case at bar, the appellant, although given every opportunity to do so, declined to accuse another specific person of committing the theft or to offer other evidence tending to establish that fact. The trial judge properly concluded that Henderson was not dispositive of the issue concerning ‘ the admissibility of Judge Cape’s financial records, and repeatedly informed the appellant that the relevance of these records would have to be satisfactorily established.
The question of relevancy of the financial records of the probate judge was a question for the court, “and in the absence of an abuse of
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judicial discretion, this court will not interfere” with the trial court’s ruling.
MacNerland v. Johnson,
4. Appellant’s sixth enumerated error is that the trial court erred in allowing appellee’s expert witness to invade the province of the jury.
Appellant has failed to follow our codal requirements that enumerations “shall set out separately each error relied upon.” OCGA § 5-6-40;
Hester v. Baker,
In
Smith v. State,
During trial, appellee introduced in evidence over timely objection, both testimony of and, a chart (see appendix) prepared by the certified public accountant who performed the investigative audit of the probate court. The conclusions presented to the jury by the testimony and chart purport to be based upon the expert witness’ “experience as a Certified Public Accountant.” The expert previously had testified that among other discrepancies certain tickets had been received, the disposition portion on the back of the tickets had been filled-in by the appellant, no receipt had been written in the cash receipt journal for the funds accompanying the tickets, that checks pertaining to some of the tickets had been found to have been deposited in the bank, that the bank deposits should therefore have been greater than the amount reflected in the cash receipt journal but the two items still balanced, and thus a certain stated sum of money was missing. The expert’s chart and testimony basically reached a conclusion as to how this type of transaction could be accomplished. Specifically, the accountant concluded that if a check accompanied an unreceipted ticket, it could be held and not deposited until another ticket came in with cash in the same amount as the retained check, then the check from the first unreceipted ticket could be substituted for the cash in the second ticket, the second ticket could then be receipted and the check from the first ticket deposited causing the cash receipt journal to continue to balance with the deposits being made in the bank.
Appellee cites a series of cases in an attempt to establish that the province of the jury was not invaded by the chart and testimony. Of these cases the most persuasive is
Lowe v. State,
We find that it would not be “beyond the ken of the average layman” to conclude that these unreceipted checks found their way into the bank when the books still balanced because they had been substituted for a like amount of receipted cash. Having found that error occurred in the admission of this evidence, we must now test for *901 prejudice. Riceman v. State, supra.
Having carefully examined the trial transcript, we are satisfied that the accused has not been prejudiced by the introduction into evidence of the chart and expert testimony discussed above, or by the introduction of any other testimony given by the expert witness. In this regard, we note that the trial judge carefully required the State’s expert witness not to give his conclusion that it was the appellant who retained any of the missing funds. Further, the trial court charged the jury regarding the presumption of innocence, burden of proof, reasonable doubt, expert witness testimony, and that the jury was “not bound or concluded by the testimony of any witness, expert or otherwise.” The trial court also charged the jury that, “opinion evidence is not conclusive or controlling. It is submitted to you, the jury, merely for whatever you may think it is worth. You may, upon review of the facts in the case, disregard entirely the opinion of any witness, whether he be an expert or non-expert.” Thus, we find that “it is ‘highly probable that the error did not contribute to the judgment,’ ” and accordingly that the error was harmless.
Johnson v. State,
Appellant further asserts that “a travesty of justice” occurred which denied appellant “the right of fundamental fairness,” when the trial court only allowed him $400 “to controvert the appellee’s expert witness ... a Certified Public Accountant” who received in excess of $4,000 to conduct his investigative audit and to testify for the State. The Supreme Court has held that “the general rule is that the grant or denial of a motion for assistance of expert witnesses and other investigative services lies within the sound discretion of the trial court.”
Castell v. State,
Appellant also argues that the testimony of the Certified Public Accountant was tainted for various reasons including conflict of interest and failure to follow accepted auditing standards. Appellant supports this argument with reference to an affidavit obtained from another Certified Public Accountant whose affidavit is attached to appellant’s amended motion for new trial. We have considered these
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allegations in light of the enumerated error that appellee’s expert was erroneously allowed repeatedly to invade the province of the jury and find that it adds nothing to our disposition of this issue. Further, we have carefully examined the affidavit in question and find that it does not meet the six-prong standard for new trial set forth in
Rogers v. State,
5. In the part of appellant’s brief labeled “CONCLUSION,” it is asserted that “[t]he apellant [sic] was denied the right of proper cross examination of apellee’s [sic] expert witness.” The constitutional right of cross-examination has been statutorily recognized in this state. OCGA § 24-9-64. But, this right is not unlimited, and “[t]he right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.”
Johnson v. State,
Reviewing the trial transcript from the point when the initial objection was made to the irrelevant question to the conclusion of appellant’s cross-examination of the State’s expert, we are satisfied that the negative response of the trial judge to counsel’s question was limited in scope to precluding the asking of a specific line of questions similar to that irrelevant question to which the objection had been filed; and, the ruling was not meant to be and did not have the legal effect of precluding subsequent proper cross-examination by counsel regarding the basis on which the expert’s opinion was fixed. Thus, we are satisfied that appellant was neither denied his right of cross-examination nor was he deprived of a fundamentally fair trial by the trial court’s ruling. Thus, we find that this assertion of error, contained in appellant’s brief but not properly enumerated as a specific error, is without merit.
Judgment affirmed.
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