McKay v. State, 507 S.E.2d 484 (Ga. Ct. App. 1998). · Go Syfert
McKay v. State, 507 S.E.2d 484 (Ga. Ct. App. 1998). Cases Citing This Book View Copy Cite
158 citation events (142 in the last 25 years) across 2 distinct courts.
Strongest positive: State v. Fidelis Besong (gactapp, 2025-12-30)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
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Top citers, strongest first. 50 distinct citers.
cited Cited as authority (rule) State v. Fidelis Besong
Ga. Ct. App. · 2025 · confidence medium
A demurrer . . . may be general or special.” (Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Rivera v. State (2×)
Ga. · 2023 · confidence medium
See also, e.g., Scandrett v. State, 124 Ga. 141, 141 (2) (52 SE 160) (1905) (holding that challenges to the substance of the indictment can be made “by motion in arrest of judgment”); McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998) (holding that “because a general demurrer attacks the legality of an indictment, it is permissible to raise this ground” before or during trial or “after verdict by a motion in arrest of judgment even if there was no earlier objection”).
cited Cited as authority (rule) Sorternio Pope v. State
Ga. Ct. App. · 2023 · confidence medium
McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
examined Cited as authority (rule) Lester Owensby Pauley v. State (3×) also: Cited "see"
Ga. Ct. App. · 2020 · confidence medium
McKay v. State, 234 Ga. App. 556, 558-560 (2) ( 507 SE2d 484 ) (1998) (citations and punctuation omitted; emphasis supplied). 19 In this case, the record contains no indication that Pauley filed a general demurrer or a motion in arrest of the judgment in order to challenge the statute of limitation with respect to the charges involving M.
discussed Cited as authority (rule) Jereno Sadatrice Kinslow v. State
Ga. Ct. App. · 2020 · confidence medium
OCGA § 16-9-93 (b) (2) defines the offense of computer trespass, in relevant part, as “us[ing] a computer or computer network with knowledge that such use is without authority and with the intention of . . . [o]bstructing, interrupting, 4 (Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559-560 (2) ( 507 SE2d 484 ) (1998). 5 or in any way interfering with the use of a computer program or data.” The accusation charged Kinslow with committing computer trespass by “us[ing] a computer network with knowledge that such use was without authority and with the intention of …
discussed Cited as authority (rule) Antonio Strickland v. State (2×)
Ga. Ct. App. · 2019 · confidence medium
(Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Strickland v. State
Ga. Ct. App. · 2019 · confidence medium
See Coleman v. State , 318 Ga. App. 478 , 479 (1), 735 S.E.2d 788 (2012) ("A general demurrer ... challenges the sufficiency of the substance of the indictment, such as an allegation that an indictment contains a defect on its face affecting the substance and merits of the offense charged, like a failure to charge a necessary element of a crime.") (footnote omitted); Newsome v. State , 296 Ga. App. 490 , 492-493 (1), 675 S.E.2d 229 (2009) (trial court erred in denying defendant's general demurrer to count in accusation, charging defendant with "unlawfully violat[ing] the provisions of a family…
examined Cited as authority (rule) Jackson v. the State (3×)
Ga. Ct. App. · 2015 · confidence medium
Although a defendant has “a right to be tried upon an indictment which is perfect in form and substance [,] . . . this right can, under certain circumstances, be waived if a defendant fails to timely challenge the indictment.” (Citations omitted.) McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) von Thomas v. State
Ga. · 2013 · confidence medium
See, e.g., Barrow v. Barker, 287 Ga. 145, 145-146 ( 695 SE2d 24 ) (2010); Robinson v. State, 283 Ga. 229, 231 (2) ( 657 SE2d 822 ) (2008); Tharpe v. State, 262 Ga. 110, 113 (8) ( 416 SE2d 78 ) (1992); Spencer v. State, 260 Ga. 640, 649 (10) (b) ( 398 SE2d 179 ) (1990); Dunham v. State, 315 Ga.App. 901, 905 (3) (729 SE2d 45) (2012); Boyd v. State, 302 Ga.App. 455, 457 (4) ( 691 SE2d 325 ) (2010); Thompson, 294 Ga.App. at 771 (3); Harden v. State, 239 Ga. App. 700, 701 (2) ( 521 SE2d 829 ) (1999); McKay v. State, 234 Ga. App. 556, 560 (3) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Eliborio Andrade v. State
Ga. Ct. App. · 2012 · confidence medium
Jones v. State, 290 Ga. App. 490, 493 (1) ( 659 SE2d 875 ) (2008). “[W]hen a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding.” McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Andrade v. State
Ga. Ct. App. · 2012 · confidence medium
Jones v. State, 290 Ga. App. 490, 493 (1) ( 659 SE2d 875 ) (2008). “[Wjhen a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding.” McKay v. State, 234 Ga. App. 556, 560 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Zabain v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
Barker, supra. McKay, supra at 559 (2) (punctuation omitted). 289 Ga. 95 ( 709 SE2d 762 ) (2011).
discussed Cited as authority (rule) Deshawn Zabian v. State (2×)
Ga. Ct. App. · 2012 · confidence medium
Instead, Zabain couches this contention as one challenging the sufficiency of the evidence, citing language from Lee v. State 19 that “the State was required to offer evidence or proof that . . . the crime charged occurred within the applicable statute of limitation.” 20 But unlike Zabain, the appellant in Lee had properly raised before the trial court the defense of the statute of limitation.21 And although Zabain moved for a directed verdict, he did so only on general grounds and not on the ground that any count of the indictment was barred by the statute of limitation.22 “A motion for…
discussed Cited as authority (rule) Pate v. State
Ga. Ct. App. · 2012 · confidence medium
J., concurs in judgment only. 1 OCGA§ 16-6-3 (a). 2 OCGA§ 16-5-21 (a) (2). 3 OCGA§ 16-11-106 (b) (1). 4 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Millsaps v. State
Ga. Ct. App. · 2011 · confidence medium
J., and Miller, P. J., concur. 1 OCGA § 16-12-100.2 (d) (1). 2 OCGA §§ 16-4-1; 16-6-4 (c). 3 OCGA §§ 16-4-1; 16-6-4 (a). 4 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) ( 507 SE2d 484 ) (1998). 6 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964). 7 (Citation and punctuation omitted.) Clark v. State, 309 Ga. App. 749, 751-752 (3) ( 711 SE2d 339 ) (2011). 8 (Citation and punctuation omitted; emphasis supplied.) Id. at 753 (3) (a). 9 (Punctuation omitted.) Robbins v. State, 290 Ga. App. 323, 328 (3) ( 659 SE2d 628 ) (2008)…
discussed Cited as authority (rule) Logan v. State
Ga. Ct. App. · 2011 · confidence medium
J., and Andrews, J., concur. 1 OCGA § 16-12-100.2 (d) (1). 2 OCGA §§ 16-4-1; 16-6-4 (c). 3 OCGA §§ 16-4-1; 16-6-4 (a). 4 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) ( 507 SE2d 484 ) (1998). 6 See St.
discussed Cited as authority (rule) Serna v. State (2×)
Ga. Ct. App. · 2011 · confidence medium
J., and Andrews, J., concur. 1 OCGA § 16-6-22.1 (b). 2 OCGA § 16-13-72. 3 OCGA § 3-3-23.1 (a). 4 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). 5 (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 556-557 (1) ( 507 SE2d 484 ) (1998). 6 (Punctuation omitted; emphasis supplied.) Cooper v. State, 286 Ga. 66, 68 (2) ( 685 SE2d 285 ) (2009). 7 We note that Serna did not file a general demurrer to the indictment in the trial court; therefore, in this direct appeal from the denial of a motion for new trial, we do not consider the argument that the indictment failed to allege the commission …
cited Cited as authority (rule) Thompson v. State
Ga. · 2010 · confidence medium
Hall v. State, 241 Ga. App. 454, 459 (1) ( 525 SE2d 759 ) (1999); McKay v. State, 234 Ga. App. 556, 558-560 (2) ( 507 SE2d 484 ) (1998). 3.
discussed Cited as authority (rule) Haynes v. State (2×)
Ga. Ct. App. · 2010 · confidence medium
A motion for a directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” (Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
cited Cited as authority (rule) Chambers v. State
Ga. Ct. App. · 2007 · confidence medium
McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
cited Cited as authority (rule) Tucker v. State
Ga. Ct. App. · 2007 · confidence medium
(Cit.)” (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Keith v. State
Ga. Ct. App. · 2006 · confidence medium
J., and Smith, R J., concur. 1 S. P.’s mother also testified that Keith is S. P.’s father. 2 McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998). 3 Id. 4 See id. 5 Wright v. State, 277 Ga. 810, 811 ( 596 SE2d 587 ) (2004); Sanders v. State, 258 Ga. App. 16, 19 (2) ( 572 SE2d 712 ) (2002). 6 See Wright, supra. 7 See id. 8 Hash v. State, 248 Ga. App. 456, 457 (1) ( 546 SE2d 833 ) (2001). 9 Neal v. State, 271 Ga. App. 283, 285 (1) ( 609 SE2d 204 ) (2005) (citation and punctuation omitted). 10 OCGA§ 16-6-4 (a). 11 Cantrell v. State, 231 Ga. App. 629, 630 ( 500 SE2d 386 ) (1998).…
discussed Cited as authority (rule) Smith v. State
Ga. Ct. App. · 2006 · confidence medium
See also Turner v. State, 276 Ga. App. 381, 382-383 ( 623 SE2d 216 ) (2005) (presumption that contrabandfound in vehicle was possessedhy vehicle owner overcome by evidence that others had equal access to vehicle). 10 See Hodges, supra. 11 See id.; Mitchell v. State, 268 Ga. 592, 593 ( 492 SE2d 204 ) (1997). 12 OCGA §§ 16-13-32.4 (a) (school); 16-13-32.5 (a) (park). 13 See Allison v. State, 259 Ga. App. 775, 778 (2) ( 577 SE2d 845 ) (2003). 14 See, e.g., Harper v. State, 213 Ga. App. 611, 612-613 (2) ( 445 SE2d 300 ) (1994). 15 Rubaldino v. State, 271 Ga. App. 726, 727-728 (1) ( 611 SE2d 68 )…
discussed Cited as authority (rule) Dowdell v. State
Ga. Ct. App. · 2006 · confidence medium
McKeithen, Assistant District Attorney, for appellee. 1 McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998) (citation and punctuation omitted). 2 Campbell v. State, 223 Ga. App. 484, 485 (3) ( 477 SE2d 905 ) (1996). 3 Robles v. State, 277 Ga. 415, 421 (10) ( 589 SE2d 566 ) (2003). 4 See OCGA § 16-8-41 (a). 5 OCGA§ 16-11-106 (b)(1). 6 OCGA § 16-11-106 (b) (3). 7 Supra. 8 See Campbell, supra. 9 See id. 10 Moore v. State, 246 Ga. App. 163, 165 (3) ( 539 SE2d 851 ) (2000). 11 See State v. Eubanks, 239 Ga. 483, 485 ( 238 SE2d 38 ) (1977). 12 Parrish v. State, 237 Ga. App. 274, 283 …
discussed Cited as authority (rule) Polk v. State
Ga. Ct. App. · 2005 · confidence medium
McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998). 16 See Youngblood v. State, 253 Ga. App. 327, 329 (3) ( 558 SE2d 854 ) (2002) (all but one of defendant’s claims of ineffectiveness pertained to essentially unreviewable tactical decision of trial counsel, therefore conviction reversed as to the sole count where counsel’s performance was actually deficient). 17 See Ricks v. State, 70 Ga. App. 395 (1) ( 28 SE2d 303 ) (1943) (court properly denied plea in abatement where indictment, which did not appear to have been legally returned in open court, had the stamp of authenticit…
discussed Cited as authority (rule) Adkins v. State
Ga. · 2005 · confidence medium
Amotion for directed verdict of acquittal. .. addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.’ ” McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
cited Cited as authority (rule) Glass v. State
Ga. Ct. App. · 2004 · confidence medium
See generally Slinkard v. State, 259 Ga. App. 755 (1) ( 577 SE2d 825 ) (2003); McKay v. State, 234 Ga. App. 556, 560 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Collins v. State
Ga. Ct. App. · 2004 · confidence medium
NOTES [1] See, e.g., Willingham v. State, 262 Ga. 324 , 418 S.E.2d 25 (1992) (State abandoned felony murder count of indictment during trial and proceeded on remaining four counts). [2] Compare Ingram v. State, 211 Ga.App. 252, 253 (1), 438 S.E.2d 708 (1993) (the allegations contained in the counts of an indictment cannot be materially altered by striking from them or adding to them). [3] See Smith v. State, 213 Ga.App. 207, 208 (1), 444 S.E.2d 146 (1994) (objection must be registered to dismissal or nolle prosse of counts in order to complain on appeal). [4] (Citations omitted.) Morgan v. Sta…
cited Cited as authority (rule) In the Interest of E. S.
Ga. Ct. App. · 2003 · confidence medium
McKay v. State, 234 Ga. App. 556, 559-560 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Motes v. State
Ga. Ct. App. · 2003 · confidence medium
Eldridge and Mikell, JJ., concur. 1 McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998). 2 Id. 3 Id. at 559 . 4 OCGA § 17-9-61 (b). 5 (Citation and punctuation omitted.) McKay, supra. 6 See Felder v. State, 274 Ga. 870, 871 ( 561 SE2d 88 ) (2002) (Supreme Court looked at substance of motions rather than their nomenclature). 7 OCGA § 17-9-61 (b). 8 See Manry v. State, 226 Ga. App. 445, 447 ( 487 SE2d 80 ) (1997) (motion to vacate sentence not a proper motion in arrest of judgment because it was not filed during term judgment obtained). 9 223 Ga. App. 484 ( 477 SE2d 905 ) (1996).…
cited Cited as authority (rule) Totten v. State
Ga. · 2003 · confidence medium
State v. Eubanks, 239 Ga. 483, 485-486 ( 238 SE2d 38 ) (1977); McKay v. State, 234 Ga. App. 556, 558-560 ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Slinkard v. State
Ga. Ct. App. · 2003 · confidence medium
J., and Ellington, J., concur. 1 208 Ga. App. 431, 434 ( 430 SE2d 765 ) (1993). 2 McKay v. State, 234 Ga. App. 556, 559 ( 507 SE2d 484 ) (1998). 3 (Citations and punctuation omitted.) Bentley v. State, 210 Ga. App. 862 (1) ( 438 SE2d 110 ) (1993). 4 (Citation, punctuation, footnote and emphasis omitted.) Parks v. State, 246 Ga. App. 888, 889 (1) ( 543 SE2d 39 ) (2000). 5 Kevinezz v. State, 265 Ga. 78, 81 (2) (b) ( 454 SE2d 441 ) (1995); Morgan v. State, 212 Ga. App. 394 (1) ( 442 SE2d 257 ) (1994); Hogan v. State, 178 Ga. App. 534, 535 ( 343 SE2d 770 ) (1986); see also Lumpkins v. State, 264 G…
discussed Cited as authority (rule) Harris v. State (2×) also: Cited "see, e.g."
Ga. Ct. App. · 2002 · confidence medium
(Citations and punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Sanders v. State
Ga. Ct. App. · 2002 · confidence medium
Youngblood v. State, 253 Ga. App. 327, 328 (2) ( 558 SE2d 854 ) (2002); McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998); Collum v. State, 195 Ga. App. 42 (1) ( 392 SE2d 301 ) (1990). 3.
examined Cited as authority (rule) Youngblood v. State (3×)
Ga. Ct. App. · 2002 · confidence medium
He filed no demurrer to the indictment, nor did he file within the term of court in which the judgment of conviction was entered a proper motion in arrest of judgment. 3 See, e.g., Parks v. State, 246 Ga. App. 888, 889 (1) ( 543 SE2d 39 ) (2000); McKay v. State, 234 Ga. App. 556, 558-559 (2) ( 507 SE2d 484 ) (1998); Hammock v. State, 201 Ga. App. 614 -615 (1) (a) ( 411 SE2d 743 ) (1991).
cited Cited as authority (rule) State v. Hammons
Ga. Ct. App. · 2001 · confidence medium
McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Howard v. State (2×)
Ga. Ct. App. · 2001 · confidence medium
Ordinarily, “[a] motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment.” McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited as authority (rule) Moore v. State
Ga. Ct. App. · 2000 · confidence medium
Andrews, P. J., and Ellington, J., concur. 1 See Vick v. State, 237 Ga. App. 762, 763 (1) ( 516 SE2d 815 ) (1999). 2 See Bluain v. State, 242 Ga. App. 125, 129 (1) ( 529 SE2d 155 ) (2000). 3 Hayes v. State, 244 Ga. App. 12 (1) ( 534 SE2d 577 ) (2000). 4 Carswell v. State, 244 Ga. App. 516, 518 (1) ( 534 SE2d 568 ) (2000). 5 266 Ga. 54 ( 464 SE2d 198 ) (1995). 6 McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998). 7 Id. at 559 . 8 Id. at 558 . 9 Id. at 559-560 . 10 Id. 11 (Punctuation omitted.) Dennard v. State, 243 Ga. App. 868, 870 ( 534 SE2d 182 ) (2000). 12 (Punctuation omitte…
discussed Cited as authority (rule) Hall v. State
Ga. Ct. App. · 1999 · confidence medium
Therefore, nothing is presented here for our determination regarding either the validity of the ground contained in the demurrer or, as a basis for demurring, the argument made here. 5 McKay v. State, 234 Ga. App. 556, 558 (2) ( 507 SE2d 484 ) (1998); Gatlin v. State, 18 Ga. App. 9 (6) ( 89 SE 345 ) (1916).
cited Cited as authority (rule) Jones v. State
Ga. Ct. App. · 1999 · confidence medium
(Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
cited Cited as authority (rule) Harden v. State
Ga. Ct. App. · 1999 · confidence medium
As a result, we cannot review this alleged error on appeal.” McKay v. State, 234 Ga. App. 556, 560 (3) ( 507 SE2d 484 ) (1998). 3.
cited Cited as authority (rule) Williams v. State
Ga. Ct. App. · 1999 · confidence medium
(Cit.)” (Punctuation omitted.) McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited "see" Raoul Lynch v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See McKay v. State, 234 Ga. App. 556, 558-559 (2) ( 507 SE2d 484 ) (1998) (A general demurrer challenges the legality of an indictment and may be raised anytime before or during trial, as well as after a conviction by a timely motion in arrest of judgment – even if the defendant had not previously raised an objection to the validity of the indictment.); see also Moss, 220 Ga. App. at 150 (Because the State filed the indictment outside the statute of limitation period and failed to allege any exception to the statute in the indictment, it was legally incapable of proving at trial that the lim…
discussed Cited "see" Lynch v. State (2×)
Ga. Ct. App. · 2018 · signal: see · confidence high
See McKay v. State , 234 Ga. App. 556 , 558-559 (2), 507 S.E.2d 484 (1998) (A general demurrer challenges the legality of an indictment and may be raised anytime before or during trial, as well as after a conviction by a timely motion in arrest of judgment-even if the defendant had not previously raised an objection to the validity of the indictment.); see also Moss , 220 Ga. App. at 150 , 469 S.E.2d 325 (Because the State filed the indictment outside the statute of limitation period and failed to allege any exception to the statute in the indictment, it was legally incapable of proving at tri…
discussed Cited "see" Taylor v. State (2×)
Ga. · 2018 · signal: see · confidence high
See McKay v. State , 234 Ga. App. 556 , 560, 507 S.E.2d 484 (1998) (holding that "when a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding").
discussed Cited "see" Taylor v. State (2×)
Ga. · 2018 · signal: see · confidence high
See McKay v. State, 234 Ga. App. 556, 560 ( 507 SE2d 484 ) (1998) (holding that “when a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas 10 corpus proceeding”).
discussed Cited "see" Edward Coleman v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited "see" Coleman v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited "see" Edward Coleman v. State (2×)
Ga. Ct. App. · 2012 · signal: see · confidence high
See McKay v. State, 234 Ga. App. 556, 559 (2) ( 507 SE2d 484 ) (1998).
discussed Cited "see" Shelnutt v. State (2×)
Ga. Ct. App. · 2008 · signal: see · confidence high
Johnson, P. J., and Mikell, J., concur. 1 Jackson v. State, 259 Ga. App. 566, 569 (2) ( 578 SE2d 181 ) (2003) (footnotes omitted); see Woods v. State, 275 Ga. 844, 845 (2) ( 573 SE2d 394 ) (2002). 2 Ellis v. State, 272 Ga. 763, 766 (2) ( 534 SE2d 414 ) (2000). 3 Compare Golden v. State, 250 Ga. App. 288, 289 (2) ( 551 SE2d 398 ) (2001) (defendant waived possible conflict of interest in counsel’s joint representation of her and her co-defendant). 4 Smith v. Hardrick, 266 Ga. 54, 55 (1) ( 464 SE2d 198 ) (1995) (punctuation and footnotes omitted); see generally McKay v. State, 234 Ga. App. 556,…
McKAY
v.
THE STATE
A98A0902.
Court of Appeals of Georgia.
Sep 29, 1998.
507 S.E.2d 484
June E. Fogle, for appellant., Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.
Ruffin, Pope, Beasley.
Cited by 60 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 70%
Citer courts: Colorado Court of Appeals (1)
Ruffin, Judge.

A jury found Tyrone McKay guilty of selling marijuana in violation of OCGA § 16-13-30 (j) (1) (Count 1) and selling marijuana within 1,000 feet of a housing project in violation of OCGA § 16-13-32.5 (Count 2). The trial court sentenced McKay as a recidivist. McKay appeals, asserting (1) there was insufficient evidence to support his convictions, (2) Count 2 of the indictment was insufficient, and (3) the State failed to prove the voluntariness of prior pleas for use in recidivist sentencing. For reasons which follow, we affirm.

1. “ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99[*557] SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the record shows undercover agents Quarterman and Lucas drove past an unoccupied building located at 603 Emerald Drive. Agent Quarterman noticed three individuals seated in a white Buick which was parked in front of the building. He also saw Tyrone McKay and Akeem Williams standing outside of the car facing one another. Quarterman testified that, after parking behind the Buick, he “observed Mr. McKay pass Mr. Williams one bag of marijuana, and . . . Mr. Williams pass Mr. McKay some paper currency.” Quarterman witnessed the exchange from a distance of approximately ten to fifteen feet. Quarterman testified that McKay and Williams were standing approximately 20 feet from the building located at 603A Emerald Drive at the time of the exchange.

When Williams started to walk toward the Buick, Quarterman drove his vehicle alongside the Buick. As Williams entered the right rear passenger compartment of the Buick, Quarterman saw him holding the bag of marijuana in his right hand. When the Buick drove away, Quarterman followed. He also called a “reaction take-down team” and provided them with a description of the Buick. When the reaction take-down team stopped the Buick approximately two blocks away, Quarterman exited his undercover vehicle, approached the rear passenger compartment of the Buick, opened the door, and asked Williams to step out. When Williams stepped out, “he dropped the bag of marijuana to the ground.” Quarterman retrieved it and arrested Williams. The contents of this bag tested positive for the presence of marijuana.

After arresting Williams, Agents Quarterman and Lucas, along with two other agents, returned to 603 Emerald Drive and found McKay standing in front of the building. When Quarterman approached McKay, he stated “Police! I need to talk to you for a second.” McKay immediately raised his hand and said, “I didn’t sell my man no weed.” The agents then placed McKay under arrest.

Jeffrey Barker, the chief construction inspector for the Housing Authority of Savannah, testified that State’s Exhibit 1 was a copy of a map for Frazier Homes and that Frazier Homes is a public housing project. Barker explained that the map was prepared from blueprints which were drawn to scale and prepared by architects. Barker further testified that he was personally familiar with the area depicted in Exhibit 1 and that it appeared to be accurate and correct. These blueprints show a building located at 603A and 603B Emerald Drive.[*558] This exhibit was admitted into evidence.

We find this evidence sufficient to support McKay’s convictions under OCGA §§ 16-13-30 (j) (1) and 16-13-32.5. Jackson v. Virginia, supra.

2. McKay contends Count 2 of the indictment fails to allege a violation of OCGA § 16-13-32.5 (b). Count 2 charges McKay with the offense of “SALE OF MARIJUANA WITHIN 1000 FEET OF A HOUSING PROJECT OCGA § 16-13-32.5.” It further alleges that “TYRONE A. MCKAY AKA JAUDON ANTHONY MCKAY ... on or about September 27, 1995, did unlawfully sell marijuana, within 1000 feet of a housing project. . . .” McKay asserts Count 2 of the indictment is insufficient because it alleges an unlawful sale of marijuana, and OCGA § 16-13-32.5 (b) makes it unlawful only to “manufacture, distribute, dispense, or possess with intent to distribute . . . marijuana . . .in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project. . . .” OCGA § 16-13-32.5 (b).

We must first determine whether this enumeration has been preserved for our review. The State claims McKay failed to preserve this issue because he raised it for the first time on appeal. McKay contends he preserved it through a motion for directed verdict of acquittal. However, the record shows that McKay never challenged the validity of the indictment in this motion. McKay did file a one-page motion for new trial in which he asserted “[t]he verdict is contrary to law.” After a hearing, the trial court denied this motion in a one-line order. The record contains no transcript of the hearing and no information about the specific grounds for McKay’s new trial motion.

In Georgia, a defendant has a right to be tried upon an indictment which is perfect in form and substance. State v. Black, 149 Ga. App. 389, 391 (4) (254 SE2d 506) (1979); State v. Stamey, 211 Ga. App. 837, 838 (1) (440 SE2d 725) (1994). However, this right can, under certain circumstances, be waived if a defendant fails to timely challenge the indictment. See Lanier v. State, 5 Ga. App. 472, 476-477 (63 SE 536) (1909).

A challenge to an indictment is typically made through a demurrer to the indictment. “A demurrer to an indictment may be general or special. A general demurrer challenges the very validity of the indictment and may be raised anytime; the special objects merely to its form or seeks more information and must be raised before pleading to the indictment.” State v. Eubanks, 239 Ga. 483, 485 (238 SE2d[*559] 38) (1977). See also OCGA §§ 17-7-113; [1] 17-7-111; [2] Uniform Superior Court Rule 31.1. [3]

“[A] special demurrer is waived if not raised before pleading to the merits of the indictment.” Eubanks, supra at 486. On the other hand, because a “general demurrer attacks the legality of an indictment, it is permissible to raise this ground after verdict by a motion in arrest of judgment even if there was no earlier objection. [Cits.] . . . [A] motion in arrest asserts that the indictment contains a defect on its face affecting the substance and real merits of the offense charged and voiding the indictment, such as failure to charge a necessary element of a crime. [Cit.]” Id. at 485-486. Likewise, an oral objection or motion to quash based upon the same grounds as a general demurrer can be asserted anytime during the trial. Gilmore v. State, 118 Ga. 299-300 (1) (45 SE 226) (1903); Pullen v. State, 199 Ga. App. 881 (406 SE2d 283) (1991). Compare Perkins v. State, 151 Ga. App. 199, 206 (7) (259 SE2d 193) (1979) (motion to quash “because of objection to form is essentially the same as a special demurrer and must be made in writing before the plea”), overruled on other grounds; Chance v. State, 154 Ga. App. 543, 544 (268 SE2d 737) (1980).

“A motion for directed verdict of acquittal is not the proper way to contest the sufficiency of an indictment. A motion for a directed verdict of acquittal. . . addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment. [Cit.] When an indictment is absolutely void in that it fails to charge the accused with any act made a crime by the law and, upon the trial, no demurrer to the indictment is interposed and the accused is convicted under the indictment and judgment is entered on the verdict, the accused’s proper remedy is a motion in arrest of judgment or habeas corpus. [Cit.]” Williams v. State, 162 Ga. App. 350, 351 (291 SE2d 425) (1982). See also Echols v. State, 187 Ga. App. 870, 871-872 (371 SE2d 682) (1988); Lancaster v. State, 83 Ga. App. 746, 760 (2) (64 SE2d 902) (1951). A motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment. Boswell v. State, 114 Ga. 40, 41-42 (1), (2) (39 SE 897) (1901); Thompson v. State, 58 Ga. App. 452-453 (198 SE 805) (1938).

[*560] Decided September 29, 1998 June E. Fogle, for appellant. Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

Based on the above, it is clear that objections to defects in an indictment can be waived, except when “ ‘[the] defects are so great that the accusation is absolutely void.’ Lanier v. State, [supra at 472 (2)].” Goldstein v. State, 26 Ga. App. 651 hn. 1 (107 SE 176) (1921). See also Tennesson v. State, 214 Ga. App. 103 (447 SE2d 152) (1994); Staton v. State, 165 Ga. App. 572 (1) (302 SE2d 126) (1983). However, when a claim that an accusation or indictment is absolutely void is not properly asserted in the trial court, it can be reviewed on appeal only through a habeas corpus proceeding. Williams, supra; Lancaster, supra.

Here, McKay apparently claims that Count 2 of the indictment is void because it fails to allege a crime under OCGA § 16-13-32.5 (b). However, this claim is not properly before us because McKay failed to object to the indictment in any manner before or during trial and did not move to arrest the judgment after his conviction. “The issue of whether the indictment underlying appellant[’s] conviction[] was void must await determination until such time as [appellant avails himself] of the proper procedures for attacking the conviction on that basis.” Williams, supra at 353.

3. McKay contends the trial court erroneously sentenced him as a recidivist based upon two prior convictions. According to McKay, the trial court could not consider these convictions because the State failed to prove the voluntariness of his guilty pleas to the two prior offenses. However, McKay failed to object to the use of these convictions in the sentencing portion of the trial. As a result, we cannot review this alleged error on appeal. Simmons v. State, 222 Ga. App. 447 (1) (474 SE2d 253) (1996); Moody v. State, 206 Ga. App. 387, 391 (6) (425 SE2d 397) (1992); Darty v. State, 188 Ga. App. 447-448 (373 SE2d 389) (1988).

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.
1

This statute provides: “All exceptions which go merely to the form of an indictment or accusation shall be made before trial.”

2

This statute provides: “If the defendant, upon being arraigned, demurs to the indictment, .. . the demurrer .. . shall be made in writing. If the demurrer ... is decided against the defendant, he may nevertheless plead and rely on the general issue of‘not guilty.’ ”

3

This rule provides: “All motions [and] demurrers . . . shall be made and filed at or before time of arraignment, unless time therefor is extended by the judge in writing prior to trial____”