text:
    A02A0402.
    PERDUE v. THE STATE.
    (578 SE2d 456)
   Mikell, Judge.

Following a bench trial, David Perdue was found guilty of driving under the influence of alcohol to the extent it was less safe for him to drive, a violation of OCGA § 40-6-391 (a). Perdue was acquitted of driving with an alcohol concentration of 0.08 grams or more pursuant to OCGA § 40-6-391 (a) (5). On appeal, Perdue argues that the trial court erred in denying his motion to suppress on the ground that the roadblock which led to his arrest was unconstitutional. We disagree and affirm.

In reviewing a trial court’s denial of a motion to suppress, “the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings of the disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.”

1. In LaFontaine v. State, our Supreme Court determined that a police roadblock is constitutional, providing that

[(1)] the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; [(2)] all vehicles are stopped as opposed to random vehicle stops; [(3)] the delay to motorists is minimal; [(4)] the roadblock operation is well identified as a police checkpoint; and [(5)] the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Perdue challenges the trial court’s findings with respect to the first, second, and fourth prongs of this test.

(a) Perdue asserts that the roadblock violated the first requirement of LaFontaine because the decision to implement the roadblock was made by Sergeant Miniatis, who was a field officer and “not a proper supervisory officer.” Sergeant Miniatis testified that he is the supervisor of the DIJI Task Force for the City of Atlanta; that the Chief of Police has authorized him to order roadblocks; that he ordered the roadblock for the intersection of Castlegate and West Paces Ferry Roads for the early morning hours of May 4, 2001; that none of the officers under his supervision were involved in the decision to set it up at that intersection; and that he focused on that intersection because it had previously proven to be a good location to detect impaired drivers.

Sergeant Miniatis is apparently a field officer and a supervisor. He accompanies the rest of the DUI Task Force into the field on patrol and, while on patrol, decides whether to have a roadblock, and when and where to have it. Sergeant Miniatis testified as follows:

Q. Does your office, your department have printed standard operating procedures as to who, when and where and how roadblocks are established?
A. We’ve got a standard operating procedure. But yes, when you call a roadblock, it’s up to the discretion of the supervisor.
Q. And you are that supervisor?
A. That’s correct. . . .
Q. So as I understand it, and you correct me if Fm wrong, if it’s in the City of Atlanta . . . you can put that roadblock up?
A. That’s correct.
Q. And you’re not given any limitations as long as it’s within the City of Atlanta; is that correct?
A. That’s correct. . . .
Q. Do you have like a printed protocol, standard operating procedure?
A. No. . . . So if I think it’s a good night to do a roadblock, Fll hold a roadblock. Some nights may go without any roadblocks. It just depends.

The dichotomy between decisions made by field officers and those made by supervisory officers apparently entered into Fourth Amendment jurisprudence in the decision of the United States Supreme Court in United States v. Martinez-Fuerte. That decision approved brief stops of vehicles, at fixed checkpoints without probable cause or articulable suspicion, under circumstances which would not justify a roving-patrol stop. As explained by Justice Powell, writing for the majority:

The location of a fixed checkpoint is not chosen by officers in the field, but by officials responsible for making overall decisions as to the most effective allocation of limited enforcement resources. We may assume that such officials will be unlikely to locate a checkpoint where it bears arbitrarily or oppressively on motorists as a class. And since field officers may stop only those cars passing the checkpoint, there is less room for abusive or harassing stops of individuals than there was in the case of roving-patrol stops.

“Roving-patrol stops,” in the absence of probable cause or articulable suspicion, had been criticized by several prior decisions as being excessively intrusive. They were expressly disallowed in Delaware v. Prouse. However, Delaware v. Prouse stated that states might develop “methods for spot checks . . . that do not involve the unconstrained exercise of discretion.” Constraining discretion was perhaps the reason that Georgia decisions following Delaware and Martinez- Fuerte approved roadblocks when the decision to implement the roadblock had been made by “supervisory personnel rather than by the officers in the field.” LaFontaine, the leading case in Georgia, reiterated this language from Golden when articulating the factors to be considered in determining whether a roadblock is lawful. In our recent full-bench decision, Baker v. State, we held that the criteria listed in LaFontaine were not general guidelines but were “minim [al] constitutional prerequisites.”

But something seems to have been lost in translation between Justice Powell’s suggestion in Martinez-Fuerte and present Georgia constitutional prerequisites. Justice Powell expressed approval of roadblocks whose location was “not chosen by officers in the field” but was chosen, presumably in advance, by officials who were not in the field. Instead, several Georgia precedents approve roadblocks whose location was chosen by field officers so long as those field officers were, in the words of Golden, “supervisory personnel,” or the decision of the field officers was approved by a supervisor, or the location was chosen by field officers after a supervisor decided that a roadblock would occur.

If we were deciding the case at bar based only on the guidance given by Justice Powell, we might well be inclined to disapprove of the roadblock at which Perdue’s vehicle was halted. Allowing an officer in the field, of whatever rank, to decide the time and location of checkpoints seems to have the same potential for abuse as did the much-maligned roving-patrol. But we now have the additional guidance of Georgia precedents, which are binding on us even if we would have decided the matter differently. In LaFontaine, “the determination as to the location of the roadblock was made by the field officers.” In the case at bar, Sergeant Miniatis decided on the location (and the time) of the roadblock. The discretion of this field officer was fettered only by the necessity to conduct the activity somewhere in the City of Atlanta. But LaFontaine is binding precedent and therefore we must decide against Perdue on this enumeration of error.

(b) Perdue next contends that the evidence fails to support the trial court’s finding that all vehicles passing the intersection were stopped. We disagree. The arresting officer, Michael Centola, testified that every vehicle was stopped and that every driver was asked to produce a driver’s license and proof of insurance. Officer Centola also testified that as long as the driver displayed no signs of impairment, he or she was detained for only ten to twenty seconds. Moreover, he testified that in addition to himself, three other officers stopped vehicles while Sergeant Miniatis supervised the roadblock; and that only one lane of traffic was being stopped.

Perdue testified that not every vehicle was detained and claimed that a videotape which had been introduced into evidence corroborated his testimony. The videotape was made for the purpose of showing Perdue’s interaction with Officer Centola; it depicts Perdue’s performance on various field sobriety tests, among other things. The videotape does not, however, depict the actual roadblock itself. Per-due argues that because several cars can be seen proceeding on West Paces Ferry Road less than ten seconds apart, the officers must not have stopped every vehicle. Of course, this can also be explained by several officers stopping cars simultaneously. In any event, this Court neither weighs the evidence nor determines witness credibility; rather, we defer to the trial court’s factfinding unless it is clearly erroneous. Perdue has failed to show clear error.

(c) Finally, Perdue contends that the roadblock was not well defined as a police checkpoint. It is true that Sergeant Miniatis did not use the signs, which he had in the trunk of his vehicle, to alert traffic to a checkpoint ahead. But Officer Centola testified that the checkpoint was identified by police cars, flashing blue lights, officers in uniform wearing reflective vests, and orange cones. These indicators have been held sufficient to identify a roadblock. It is highly unlikely that a motorist would have taken the activity to be anything other than a police checkpoint.

(d) In addition, Perdue argues that the roadblock was invalid because the state failed to show that the decision to implement it was based on statistical or empirical data or established departmental guidelines. This point was not precisely raised by the enumerations of error, although it may have been encompassed by an assertion in an enumeration that the decision of Sergeant Miniatis was “arbitrary.” In any event the point is controlled adversely to him by State v. Dymond.

Decided April 3, 2002

Reconsideration denied July 29, 2002

Head, Thomas, Webb & Willis, William C. Head, for appellant.

Joseph J. Drolet, Solicitor-General, Gerald Mason, Assistant Solicitor-General, for appellee.

2. In his final enumeration of error, Perdue asserts that the trial court erred in admitting evidence of his breath test results because Officer Centola failed to honor his request for an independent test of his own choosing. However, the trial court acquitted Perdue of the DUI charge based on his blood alcohol level, rendering any alleged error in the admission of the test results harmless. Moreover, when the judge sits as the trier of fact, it is presumed that the court considered only legally admissible evidence, unless it appears from the judgment that the judge relied upon evidence which should have been excluded. In this case, it is apparent from the judgment that in finding Perdue guilty of the less safe driver charge, the trial court relied on relevant, admissible evidence, including Officer Centola’s testimony that Perdue admitted consuming alcoholic beverages, had red, glassy eyes, a strong odor of alcohol on his breath and person, was very unsteady on his feet, was “thick tongued” with a “pasty mouth,” and did not stop at the roadblock until repeatedly admonished to do so. There is no support in the record for Perdue’s contention that the trial court was improperly influenced by the results of Perdue’s breath test. Accordingly, this enumeration is meritless.

Judgment affirmed.

Phipps, J, concurs. Andrews, P. J., concurs in judgment only.

       (Citation omitted.) Vaughn v. State, 243 Ga. App. 816, 817 (1) (534 SE2d 513) (2000).

       269 Ga. 251 (497 SE2d 367) (1998).

       Id. at 253 (3). In accordance with City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000), the state also must show that the supervisory officers who made the decision to implement the checkpoint had a “legitimate primary purpose” for doing so. Baker v. State, 252 Ga. App. 695 (556 SE2d 892) (2001).

       428 U. S. 543 (96 SC 3074, 49 LE2d 1116) (1976).

       Id. at 559 (IV) (B).

       See generally United States v. Morrison, 429 U. S. 1 (97 SC 24, 50 LE2d 1) (1976); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975); United States v. Ortiz, 422 U. S. 891 (95 SC 2585, 45 LE2d 623) (1975).

       440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979).

       Id. at 663 (VII).

        State v. Golden, 171 Ga. App. 27, 29 (2) (318 SE2d 693) (1984).

       269 Ga. at 253. See also Brent v. State, 270 Ga. 160 (510 SE2d 14) (1998).

       252 Ga. App. at 701.

       See, e.g., State v. Dymond, 248 Ga. App. 582 (546 SE2d 69) (2001).

       See, e.g., Evans v. State, 190 Ga. App. 856 (380 SE2d 332) (1989).

        LaFontaine, supra.

       No dichotomy exists when a supervisor in advance decides on the time and location and then goes to the scene to oversee the field officers. See, e.g., Brent v. State, supra.

       See, e.g., Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002).

       269 Ga. at 252 (3).

        Bellamy v. State, 243 Ga. App. 575, 577 (1) (b) (530 SE2d 243) (2000).

        Brent v. State, supra at 162 (2).

       248 Ga. App. 582.

        Ayers v. City of Atlanta, 221 Ga. App. 381, 382 (2) (471 SE2d 240) (1996).

        Schaffer v. City of Marietta, 220 Ga. App. 382, 384 (2) (469 SE2d 479) (1996).


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A02A0448.
    SOLEY v. DODSON.
    (569 SE2d 870)
   Mikell, Judge.

On January 3, 1999, Clarence Dodson, a Houston County sheriff’s deputy, responded to a radio call for assistance from a Georgia State Patrol officer who was pursuing a fleeing motorist. Dodson activated his patrol car’s blue lights and drove toward the chase. In doing so, Dodson collided with the back of a vehicle in which Michelle Soley was a passenger. Soley was injured and, on June 9, 2000, filed a negligence claim against Dodson in the State Court of Houston County. Soley dismissed the case without prejudice on March 12, 2001, and filed this action on March 15, 2001, in the Superior Court of Houston County, naming Dodson as a defendant both individually and in his capacity as deputy sheriff.

The trial court granted Dodson’s motion for summary judgment because (1) although Soley’s claim against him in his individual capacity related back to the original filing under the renewal statute, Dodson was personally immune from suit because his response to an emergency call was a discretionary action for purposes of official immunity, and (2) the claim against Dodson in his capacity as deputy sheriff was barred by the statute of limitation. Soley appeals. We agree with the reasoning of the trial court and affirm.

Soley’s arguments address the trial court’s grant of summary judgment on the grounds of the expiration of the statute of limitation. Soley does not contest the trial court’s grant of summary judgment to Dodson in his individual capacity on the grounds of official immunity, and so we will not consider that issue. To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law. Our review is de novo.

The collision giving rise to Soley’s cause of action occurred on January 3,1999, and this action was filed on March 15, 2001. Accordingly, the two-year statute of limitation acts as a bar absent an exception. Soley claims that the renewal statute, OCGA § 9-2-61, allowed her to refile this action within six months of her dismissal of the original action regardless of the expiration of the statute of limitation. OCGA § 9-2-61 (a) provides:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

“To suspend the running of the statute of limitation in a renewal action, the cause of action must be substantially the same as in the original action.” There must also be a substantial identity of essential parties. The parties in the original and renewal action can differ in certain circumstances.

The rule requiring substantial identity of essential parties has been held not to be violated: where a party in the later case is the successor trustee, or other representative, of an original party who occupied the same position as plaintiff or defendant; or where the first suit was dismissed for nonjoinder of one of the representatives of the estate, who is added as a party to the second suit; or where the first suit is brought against two defendants, dismissed as to both, and renewed as to only one; or where the difference is merely as to nominal or unnecessary parties.

But a person’s individual and representative capacities may not be substantially identical. For purposes of renewal, a defendant sued in his capacity as trustee, and against the trust property, is substantially different from the defendant sued in his individual capacity. Similarly, while a suit against Dodson in his individual capacity seeks a recovery from Dodson, a suit against Dodson in his capacity as deputy sheriff seeks a recovery from the employing county: “Suits against public employees in their official capacities are in reality suits against the state and, therefore, involve sovereign immunity.” It follows that Dodson in his individual capacity is not substantially identical to Dodson in his capacity as deputy sheriff.

Soley admits in her brief that she initially sued Dodson in his individual capacity. This is consistent with the record. The original complaint lists the defendant simply as “Clarence Dodson, Jr.” and contains no language to suggest a claim other than against Dodson personally. Although OCGA § 9-11-9 (a) provides that it is not necessary for a plaintiff to aver the capacity of a defendant to defend an action in a representative capacity, the statute applies to the issue of legal capacity and not to a failure to specify the defendant. Soley argues that the first suit nevertheless put Dodson on notice of a cause of action against him in his official capacity. In notice pleading, “[t]he test to be applied in determining whether the complaint states a specific claim for relief under which the plaintiff may recover is whether on its four corners the complaint places the defendant on notice of the claim against him.” The concept of notice pleading is also applicable in determining whether the issues in an original complaint are substantially identical to those in a renewal action. But the methodology used in identifying claims raised by a lawsuit is not the same as determining the parties to the suit. Soley could have sued Dodson in his official capacity before the expiration of the statute of limitation, but she did not, and cannot maintain a renewal action against a party not named in the original complaint. “[T]he renewal statute may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.” Accordingly, Soley’s action against Dodson in his capacity as deputy sheriff is barred by the statute of limitation.

Decided July 1, 2002

Reconsideration denied July 29, 2002

Carl A. Veline, Jr., Waymon S. Harrell, for appellant.

Cruser & Mitchell, William T. Mitchell, Deana S. Johnson, Downey & Cleveland, Russell B. Davis, Alan J. Gibson, Sherman E. Moody III, for appellee.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.

        Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001).

       See Court of Appeals Rule 27 (c) (2).

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Walker v. Virtual Packaging, 229 Ga. App. 124 (493 SE2d 551) (1997).

       OCGA § 9-3-33.

        Burns v. Dees, 252 Ga. App. 598, 607 (1) (d) (557 SE2d 32) (2001).

        Sheldon & Co. v. Emory Univ., 184 Ga. 440 (1) (191 SE 497) (1937).

       Id.

       See id. at 441 (1).

       (Punctuation omitted.) Cameron, supra at 126 (3). See Gilbert v. Richardson, 264 Ga. 744, 750 (4) (452 SE2d 476) (1994).

       See Colvin v. McDougall, 62 F3d 1316, 1318 (11th Cir. 1995) (“We stress as much as we can that the difference between an official capacity suit and an individual capacity suit is a big difference”).

       See Benschoter v. Shapiro, 204 Ga. App. 56, 57-58 (2) (418 SE2d 381) (1992).

       (Punctuation omitted.) Moore v. Goldome Credit Corp., 187 Ga. App. 594, 597 (370 SE2d 843) (1988).

       See Bertone v. Wilkinson, 213 Ga. App. 255 (444 SE2d 576) (1994).

        McCoy Enterprises v. Vaughn, 154 Ga. App. 471, 472 (268 SE2d 764) (1980).

       (Punctuation omitted.) Wagner v. Casey, 169 Ga. App. 500, 501-502 (2) (313 SE2d 756) (1984).


author: Barnes, Judge.

text:
    A02A0486.
    CHOICE CAPITAL CORPORATION et al. v. PHILLIPS.
    (569 SE2d 580)
   Barnes, Judge.

Choice Capital Corporation appeals from the grant of partial summary judgment to Earl Phillips on the issue of whether Choice Capital incurred any documentation or marketing costs related to a loan commitment. The trial court found that while Phillips never acquired the collateral required by the commitment, Choice Capital never incurred any costs for preparing, marketing, and delivering the documents associated with the loan. The court therefore concluded that Phillips was entitled to a refund of the $100,000 he paid Choice Capital for those services. Because we find that the trial court erred in its sua sponte finding that Choice Capital did not incur marketing expenses and because genuine issues of material fact remain regarding whether Choice Capital incurred expenses related to “preparing, filing, marketing and delivering” documents associated with the loan commitment, we reverse the trial court’s grant of summary judgment on this issue.

The record shows that on March 8, 1996, Phillips entered into a loan commitment (commitment one) with Choice Capital, which would provide up to $3 million in financing for Phillips to purchase an apartment complex. Pursuant to the loan commitment, Choice Capital would receive as collateral a lien on $2 million of “performing mortgage loan documents (the Papers) and or real estate resulting from the foreclosure of the Papers” and a second lien on the apartments Phillips was to purchase. Phillips was to pay

the cost of preparing, filing, marketing and delivering the documents necessary to raise the funds to be loaned to the Borrower by Choice International Corp. or assigned. This expense has been cap[p]ed at $100,000 by mutual agreement between Mr. Earl Phillips and Choice Capital Corporation. Any excess or shortage shall be absorbed by Choice Capital Corporation.

On March 13, 1996, Phillips entered into a second loan commitment (commitment two) with Choice Capital for the purchase of a loan portfolio. Choice Capital agreed to finance between $100,000 and $10 million. Under the terms of the loan, the loan portfolio would act as collateral for commitment two. According to the evidence, commitment two was contingent upon Phillips’ successful bid for the loan portfolio. Phillips again paid Choice Capital $100,000 pursuant to commitment two for “the cost of preparing, filing, marketing and delivering the documents necessary to raise the funds to be loaned to the Borrower by Choice International Corp. or assigned.”

Neither loan closed, and Phillips filed suit to recover the $200,000 he paid Choice Capital, alleging breach of both commitments, fraud, and intentional infliction of emotional distress, among other things. Following discovery, Phillips moved for summary judgment, arguing that neither loan commitment was valid and even if the contracts were enforceable, Choice Capital had breached them. The trial court held a hearing on the motion and subsequently entered an order granting partial summary judgment to Phillips. The trial court found that while both commitments were valid and unambiguous, “questions of fact remain” as to commitment one. In ordering Choice Capital to refund Phillips the $100,000 paid under commitment two, the trial court found that it is “undisputed that Plaintiff never obtained the collateral addressed in Loan Commitment #2 and that Defendants never incurred any costs for preparing, marketing and delivering any documents necessary to raise any funds with respect to Loan Commitment #2.”

On appeal we review the trial court’s grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Preferred Real Estate Equities v. Housing Systems, 248 Ga. App. 745 (548 SE2d 646) (2001).

Choice Capital argues that a trial court errs in sua sponte granting summary judgment in circumstances where the nonmoving party has not been afforded a full and final opportunity to respond to the claims against it. See Aycock v. Calk, 222 Ga. App. 763, 764 (476 SE2d 274) (1996). The nonmoving party is denied such an opportunity in circumstances where the record shows that neither party briefed or presented oral argument on the claim. Dixon v. MARTA, 242 Ga. App. 262, 266 (3) (529 SE2d 398) (2000).

Here, we have reviewed the record and it does not reflect that either party presented arguments on the costs incurred for marketing or preparing commitment two. In Phillips’ brief on his motion for summary judgment, he argued that the loan commitments were invalid and therefore unenforceable, and thus he could not be bound by their terms. Choice Capital responded that the agreements were valid, and that Phillips’ failure to perform was the only reason the transactions were not completed. We cannot conclude that the appellants had a full and fair opportunity to controvert the assertions against them with respect to the marketing claim. See Aycock v. Calk, supra, 222 Ga. App. at 764.

Further, despite the trial court’s conclusion that it was undisputed that Choice Capital never incurred any cost for marketing, preparing, and delivering the loan documents, a review of the record reflects that Choice Capital presented evidence of these costs during discovery. In a document entitled “Breakdown of Expenses Earl Phillips Projects,” Choice Capital listed its expenses for professional services, legal fees, and printing costs related to the loan commitments as $225,000. Additionally, during his deposition, Choice Capital’s president testified that Phillips was aware that if he did not acquire the necessary collateral for commitment two, he would forfeit the $100,000 marketing costs. He also detailed some of the work that Choice Capital did related to commitment two.

Decided July 12, 2002

Reconsideration denied July 29, 2002.

Graham J. Purpura, for appellants.

Morris, Schneider & Prior, Larry W. Johnson, for appellee.

The trial court appears to conclude that because Phillips was unable to acquire the necessary loan collateral, there were no costs associated with “preparing, filing, marketing and delivering the documents necessary to raise the funds to be loaned” to Phillips. The record does not reflect when Phillips was to acquire the mortgage loans, but because the loan’s closing date was on or before April 12, 1996, we assume that it was contemporaneous to the closing date. It is not unreasonable to assume that during the period from March 13, the date Phillips signed commitment two, to the time Phillips knew that he would not have the collateral, Choice Capital might have incurred expenses related to raising the funds to be loaned to Phillips. Indeed, because the loan was going to be used to pay for the mortgage loans for which Phillips was bidding, had Phillips won the bid for the mortgage papers, he would have needed the proceeds of the loan to pay the bid.

For the foregoing reasons, the court erred in its partial grant of summary judgment to Phillips on commitment two.

Judgment reversed.

Pope, P. J., and Ruffin, J., concur.

       The transcript of the hearing on the motion for summary judgment was not included in the record, but Choice Capital asserts on appeal that the parties did not address the issue of costs at oral argument, and Phillips does not dispute the assertion.


author: Johnson, Presiding Judge.

text:
    A02A0525.
    THOMPSON v. THE STATE.
    (569 SE2d 884)
   Johnson, Presiding Judge.

Henry Thompson was convicted of driving a motor vehicle after having been declared an habitual violator and having received notice that his driver’s license had been revoked. On appeal, he raises nine enumerations of error. None of the enumerations has merit, so we affirm his conviction.

1. Thompson challenges the sufficiency of the evidence to support the conviction. When assessing the sufficiency of evidence to support a criminal conviction, this Court does not weigh or evaluate the evidence for itself, nor does it resolve conflicts concerning the evidence. Rather, it examines the evidence in its entirety in a light most favorable to the verdict to determine whether any rational trier of fact could have found the accused guilty beyond a reasonable doubt.

So viewed, the evidence shows that in November 1999, a police officer with the Glynn County Police Department was traveling in one direction when he passed a pickup truck traveling in the opposite direction. The officer looked at the truck in his rearview mirror and did not see a license plate. Because the truck did not have a license plate “in the proper place,” the officer turned his patrol car around and activated the car’s blue lights. The truck’s driver, Thompson, took a while to stop, but finally did pull over.

The officer got out of his car and walked toward the front of the truck. At “about the same time [the officer] got to the window,” he noticed that a license plate was mounted on the truck’s rear window, behind Thompson’s head. The officer asked Thompson for his driver’s license and proof of insurance. Thompson replied that his license had been suspended for nonpayment of child support. The officer then radioed the police department and found that Thompson’s license had been revoked because he had been declared an habitual violator.

A police officer with the City of Brunswick Police Department had personally served Thompson with the habitual violator license revocation notice in September 1999. The notice, which contained an acknowledgment of service signed by Thompson, was on a form provided by, returned to, and maintained by the Georgia Department of Public Safety. The evidence was sufficient for a jury to find Thompson guilty beyond a reasonable doubt of driving a motor vehicle after he was declared an habitual violator and after he received notice that his driver’s license had been revoked.

2. Thompson complains that the trial court erred in denying his motion for mistrial and in not giving curative instructions when the prosecutor remarked in opening argument that Thompson admitted that his license was suspended for failure to pay child support.

In his opening statement, the prosecutor stated that when the police officer stopped Thompson and asked for his license, Thompson remarked that his license was suspended for nonpayment of child support. Defense counsel objected on the grounds that the child support reference was irrelevant and improperly placed Thompson’s character at issue. We disagree.

Evidence which is relevant to an issue in the case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue. The evidence referenced by the prosecutor was relevant to show that Thompson knew that his license had been revoked. And, statements made during the commission of an offense are admissible as part of the res gestae. Thompson has not shown error.

3. According to Thompson, the trial court erred in admitting the habitual violator license revocation notice because: (a) it was not furnished to the defense until a few days before trial; (b) the notice does not describe the grounds for the revocation; (c) the acknowledgment of service portion of the notice is illegible; (d) the substantive contents of the document are hearsay; (e) the notice indicates that it was served by a City of Brunswick police officer, rather than an agent of the Department of Public Safety; and (f) the notice was irrelevant since it shows service by a police officer, while the indictment alleged service by the Department of Public Safety. This enumeration presents no grounds for reversal.

Thompson fails to support his argument regarding the notice’s absence of a description of the grounds for the revocation with any citation to authority. And, other than to state generally that his due process rights were violated under the Georgia Constitution and the Fifth and Fourteenth Amendments to the United States Constitution, Thompson cites no authority and makes no argument supporting his contentions regarding the furnishing of the notice to the defense or the legibility of the notice. This is not the type of meaningful argument contemplated by Court of Appeals Rule 27 (c) (2), and the claims made in those parts are deemed abandoned.

His challenges to the admissibility of the notice based on hearsay, service by the officer, and relevance were not raised in the trial court. These arguments, therefore, have been waived.

4. Thompson contends that the trial court erred in allowing the local police officer to testify that he personally served Thompson with the habitual violator license revocation notice when the law requires service by the Georgia Department of Public Safety, the indictment alleges that he was served by the Georgia Department of Public Safety, and the officer was not credible given his inability to recall specific circumstances surrounding service of the notice.

As to the validity of personal service by a local law enforcement officer, Thompson relies on statutory language that “the department shall forthwith notify such person that. . . [he] has been declared by the department to be a habitual violator.” The statute also provides that “notice may be given by personal service upon such person.” The statute does not require that personal service be performed by an employee of the Georgia Department of Public Safety. In fact, contrary to Thompson’s claim, the law does authorize local law enforcement officers to personally serve the habitual violator license revocation notice.

We reject Thompson’s argument that, besides the Department of Public Safety, the statute only allows a judge or prosecutor to serve a person with the notice. The provision at issue is “(i)n addition to the [other] procedure set forth in [OCGA § 40-5-58 (b)].” As already mentioned, local police officers can also validly serve the notice. The service required by the statute was accomplished when the police officer personally delivered the notice to Thompson.

Thompson is not correct that evidence regarding service by the police officer is irrelevant given the indictment’s allegation of service by the Department of Public Safety. As discussed above, service could properly be made on behalf of the department by a local police officer. The testimony was relevant to the issue of whether Thompson was served with the notice. The allegation as to which public safety entity actually served the notice was not material to the indictment.

The question of whether the officer should have been believed given his inability to remember certain aspects of the service involves credibility and is for the trier of fact, to decide.

5. The trial court did not err in denying Thompson’s motion for a directed verdict of acquittal based on the state’s failure to prove the indictment’s allegation that the Department of Public Safety, rather than a Brunswick police officer, served him with the notice.

As discussed above, a local law enforcement officer can properly serve such a notice. The elements of the crime charged do not include a requirement that personal service be accomplished by any particular public safety entity. Therefore, the fact that a local public safety officer served the notice rather than an employee of the Georgia Department of Public Safety, as alleged in the indictment, is not a fatal variance.

Georgia’s courts do not apply an overly technical interpretation of the fatal variance rule. Instead, our courts focus on materiality and determine whether there has been such a variance as to affect the substantive rights of the accused. If the allegations definitely inform the accused of the charges against him so as to enable him to present his defense and not be taken by surprise, and the allegations protect the accused from another prosecution for the same offense, the appellate courts will not find a fatal variance between the allegations and the proof. Thompson was definitely informed of the charge against him, he was not taken by surprise, and he was protected from another prosecution for the same offense. There was no fatal variance in this case.

6. Thompson complains generally that the trial court erred in instructing the jury regarding the habitual violator notice. Yet he does not explain how the charge was erroneous, he gives no indication as to where in the transcript the alleged error can be found, and he neglects to include any citation to legal authority. Therefore, this argument has not been preserved for appellate review.

7. Thompson argues that the trial court should have, sua sponte, declared a mistrial or given curative instructions after the prosecutor, in his closing remarks, undermined the presumption of innocence, lessened the state’s burden of proof, and shifted the burden of proof to Thompson.

Thompson takes issue with these three remarks by the prosecutor: “Now, if you don’t want to believe when you first start out you’ll never believe”; “If [the revocation notice] were unclear, he shouldn’t have signed it”; and the jurors could convict Thompson if they “thought” he was guilty.

Because Thompson failed to object to the closing argument at all, he can only obtain relief if he can show that there is a reasonable probability that the allegedly improper argument changed the result of the trial. This he has not shown.

In this case, it is undisputed that Thompson received actual notice of the habitual violator license revocation before he was stopped, and that he drove a car knowing his license had been revoked. The trial court properly charged the jury on the presumption of innocence and instructed the jury that the state bears the burden of proving each element of the crime beyond a reasonable doubt. So, even if the prosecutor’s argument was improper, it is unlikely that the argument changed the result of the trial. Therefore, reversal is not required.

8. Thompson contends the trial court erred in denying his motion to suppress inasmuch as the officer was not justified in questioning him. He says that although the officer did not initially see the license plate when he pulled him over, he did see the license plate in the truck’s window when he got near the truck’s cab. Since the license plate was plainly visible at that point, Thompson urges, the officer was not justified in asking him to produce his driver’s license. We disagree.

Investigative stops of vehicles are analogous to Terry stops and, therefore, must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. What is required is that an officer have a “founded suspicion” as a basis from which a court can determine that the detention was not merely arbitrary or harassing.

OCGA § 40-2-41 requires that any vehicle being driven upon the highway display a license plate, and that the plate “shall be fastened to the rear of the vehicle” and “shall be at all times plainly visible.”

In this case, the officer pulled Thompson’s truck over because no license plate was visible when he looked at the truck’s rear bumper, which is where, he testified, the license plate is supposed to be. Because the initial stop was based on a suspected violation of OCGA § 40-2-41, and was not merely arbitrary or harassing, the stop was valid.

We are not convinced by Thompson’s argument that the officer was not justified in asking him for his driver’s license because the officer knew at that time that there was no license plate violation. Affixing a license plate to the cab window of a pickup truck is not necessarily compliance with the statutory requirement that the license plate be placed at the rear of the vehicle, or that it be plainly visible. Even if Thompson’s license plate placement was not a clear violation of OCGA § 40-2-41, the officer had a reasonable, articulable suspicion that a traffic violation had been committed. The fact that the officer did not issue a citation for a license plate violation does not show that there was no violation or basis for the stop. The trial court did not err in denying Thompson’s motion to suppress.

9. Thompson contends the trial court erred in considering his three prior habitual violator convictions for enhancement of punishment because he was unrepresented by counsel when he entered guilty pleas in those cases. We disagree.

During sentencing, the state introduced certified copies of three prior habitual violator cases in which Thompson entered guilty pleas. The state acknowledged that Thompson did not have the benefit of an attorney in the prior cases, but suggested that the trial court use the convictions, which are felonies, in order to determine how much óf the sentence should be probated. Defense counsel objected, arguing that the convictions should not be considered by the court for any purpose at sentencing because Thompson did not have the benefit of counsel in the earlier cases. Defense counsel urged that Thompson was entitled to be represented by an attorney in those felony cases, and that there was no evidence in the record proving that he knowingly, intelligently, and voluntarily waived his right to counsel. Over defense counsel’s objection, the trial court considered the prior convictions and sentenced Thompson to five years, three of which would be served in confinement.

In general, felony convictions obtained when a defendant was not represented by or did not waive the right to an attorney may not be used to enhance punishment under a recidivist statute, or to otherwise determine the severity of a sentence. The prohibition against using prior convictions in which the defendant was unrepresented for sentencing purposes does not apply where the record shows a valid waiver of the right to counsel.

Here, the record shows that Thompson signed forms in all three prior cases expressly indicating that he waived his right to be represented by an attorney. And, in the most recent prior offense, the trial court also entered an order, signed by the judge and Thompson, indicating in more detail that Thompson understood his rights, including the right to be represented by counsel, that Thompson knowingly and voluntarily waived that right, and that the trial court ascertained that Thompson understood and intelligently and voluntarily waived the right to counsel. Upon such a showing, the presumption that the convictions were validly obtained is applied, and the burden shifts to Thompson to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the pleas. Thompson has not shown or even alleged, below or on appeal, any infringement or irregularity in the taking of the pleas. A silent record or mere naked assertion that the earlier pleas were constitutionally infirm is simply not enough to prohibit the consideration of the prior convictions.

This Court’s recent decision in Tucci v. State does not require a contrary result. In that case, the defendant pled not guilty to a felony traffic charge and signed a plea form stating she was willing to proceed to trial without an attorney and was waiving her right to an attorney. There was nothing in the form or record indicating that she was made aware of the dangers of proceeding to trial pro se. This Court reversed her conviction, holding that no valid waiver of counsel had been established. The Court stated that “as far as pro se defendants who go to trial are concerned,” waiver forms must contain more than the conclusions that a defendant has knowingly and voluntarily chosen to waive counsel in the entry of a plea. The forms must include information which shows that the “‘knowing prong” has been satisfied “when a defendant goes to trial pro se”; in other words, the forms must show in such cases that the defendant has been made aware of “the dangers of pro se trial representation.” The Court went on to spell out the dangers of self-representation at trial, such as the trial court’s enforcement of the rules of evidence, the need to make strategic decisions regarding voir dire and the calling of witnesses, and the need to preserve issues for appeal. In its decision, the Court repeatedly emphasized that its holding applies where a defendant pleads not guilty and elects to represent himself at trial. Nothing in Tucci warrants an extension of its narrow rule to this case. Moreover, because Thompson did not show (or even allege) any infirmity or irregularity in the taking of the guilty pleas as required by Nash, he did not meet the burden of proving the prior pleas were invalid.

Decided July 11, 2002

Reconsideration denied July 29, 2002

Kevin R. Gough, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

Interestingly, in Parke v. Raley, the United States Supreme Court discussed the alleged tension between a trial court requiring that a defendant in a recidivism proceeding produce evidence to support his claim that he was not advised of his rights before entering a guilty plea in a prior case, and the Boykin v. Alabama decision, in which the Supreme Court reversed a conviction based on a guilty plea because the record did not affirmatively show that the plea was knowing and voluntary. The Parke court said that there was no tension between the two because Boykin involved the direct review of a conviction based on a guilty plea, while the defendant in the recidivism proceeding had not appealed the earlier convictions. The Court noted that the prior convictions became final years earlier and held that the question of their validity could not be revisited in a separate recidivism proceeding.

Although this case does not arise in the context of a recidivism proceeding, the Court’s reasoning in Parke is compelling. Thompson never appealed his earlier convictions, and they became final years ago. Yet he seeks to have those convictions declared invalid in a separate proceeding in order to prevent the court from considering the convictions in determining his sentence. “To import Boykin’s presumption of invalidity into this very different context would, in our view, improperly ignore another presumption deeply rooted in our jurisprudence: the ‘presumption of regularity that attaches to final judgments, even when the question is waiver of constitutional rights.” As in Parke, there is no good reason to suspend the presumption of regularity here.

Therefore, this enumeration presents no grounds for reversal.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Barela v. State, 271 Ga. 169, 171 (517 SE2d 321) (1999).

       Id.

       See OCGA § 40-5-58 (c) (1); Sams v. State, 239 Ga. App. 715, 716 (1) (521 SE2d 848) (1999).

        Parrish v. State, 237 Ga. App. 274, 281 (6) (514 SE2d 458) (1999).

       See Hardegree v. State, 230 Ga. App. 111-112 (1) (495 SE2d 347) (1998).

       See Reed v. State, 246 Ga. App. 373, 374, n. 3 (540 SE2d 636) (2000).

       See Valentine v. State, 229 Ga. App. 791 (2) (495 SE2d 116) (1997).

       OCGA § 40-5-58 (b).

       Id.

        Waits v. State, 194 Ga. App. 284 (390 SE2d 296) (1990); Hardison v. Booker, 179 Ga. App. 693, 694 (2) (347 SE2d 681) (1986); Stowe v. State, 176 Ga. App. 169 (335 SE2d 431) (1985).

       (Emphasis supplied.)

       See Hardison, supra.

       See Frei v. State, 252 Ga. App. 535, 536-537 (2) (a) (557 SE2d 49) (2001).

       See Waits, supra; Stowe, supra.

       See generally Valentine, supra at 791 (1).

        Woods v. State, 244 Ga. App. 359-360 (535 SE2d 524) (2000).

       Id.

       Id.

       See Hudson v. State, 246 Ga. App. 335-336 (2) (539 SE2d 860) (2000).

       We have not found in the transcript the exact language referenced in the third quotation. We will presume it is taken from this portion of the argument: “[Y]ou say to yourself, I think the defendant’s guilty the State has met its burden.”

        See Presnell v. State, 274 Ga. 246, 255 (19) (551 SE2d 723) (2001).

       See Shields v. State, 272 Ga. 32, 33 (2) (526 SE2d 845) (2000).

        Chiasson v. State, 250 Ga. App. 63, 64 (1) (549 SE2d 503) (2001).

        Johnson v. State, 230 Ga. App. 535, 537 (1) (496 SE2d 785) (1998).

       See generally Nelson v. State, 247 Ga. App. 455-456 (1) (544 SE2d 189) (2001).

       Id.

       See Castillo v. State, 232 Ga. App. 354, 356 (502 SE2d 261) (1998).

       OCGA § 40-5-58 (c) (1) provides for a punishment of imprisonment for one to five years.

       See Burgett v. Texas, 389 U. S. 109, 114-115 (88 SC 258, 19 LE2d 319) (1967); Blaylock v. Hopper, 233 Ga. 504, 505 (1) (212 SE2d 339) (1975); Tanner v. State, 230 Ga. App. 77, 79 (4) (495 SE2d 315) (1998).

        United States v. Tucker, 404 U. S. 443, 447 (92 SC 589, 30 LE2d 592) (1972).

       See Blaylock, supra at 506.

        Nash v. State, 271 Ga. 281, 284-285 (519 SE2d 893) (1999).

       See id. at 285; see generally Stargell v. State, 183 Ga. App. 434, 435-436 (2) (359 SE2d 205) (1987) (prior conviction can be used in determining severity of offense where record of guilty plea reflects finding of trial judge that defendant knew of right to counsel and knowingly chose to proceed without attorney). Compare Tanner, supra (recidivist sentence improperly based on prior convictions where state introduced no evidence regarding whether defendant had attorney or even pled guilty).

       255 Ga. App. 474 (565 SE2d 831) (2002).

       (Emphasis in original.) Id. at 476 (1).

       (Emphasis in original.) Id.

       Supra.

       506 U. S. 20, 29 (II) (B) (113 SC 517, 121 LE2d 391) (1992).

       395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969).

        Parke, supra.

       Id.

       Id.


text:
    A02A0862.
    SMITH v. THE STATE.
    (570 SE2d 26)
   Johnson, Presiding Judge.

Cherry Smith was found guilty of driving under the influence of alcohol, driving on the wrong side of the road* and driving without a current vehicle tag. She appeals, alleging (1) the trial court erred in admitting the results of a blood test and (2) there was insufficient evidence to support the verdict. Because both of these enumerations of error lack merit, we affirm Smith’s convictions.

1. Viewed in a light most favorable to support the trial court’s verdict, the evidence shows that Smith lost control of her car, crossed the road and almost ran into the ditch on the opposite side of the road, then traveled back across the road and ended up in the ditch on her side of the road. When the two investigating officers arrived at the scene approximately 10-15 minutes later, they found Smith’s car still in the ditch. No license plate or registration decal was displayed on the rear of the car. Smith was inside the car, still behind the steering wheel, but slumped toward the right passenger side. The car was still in gear and running, and a strong odor of alcohol was coming from the car. When Smith tried to explain why her car was in the ditch, the officers detected alcohol on her breath.

Before the ambulance left the scene for the hospital, an officer read Smith the implied consent notice, and Smith consented to a blood sample being taken by a nurse at the hospital. This blood sample was sent to the crime lab, where a forensic toxicologist discovered a blood alcohol level of 0.394 grams.

Smith contends the trial court erred in admitting the results of the crime lab blood test because the state failed to introduce any certificates showing that the machine used to test the blood had been maintained in proper working order. We find no error.

Contrary to Smith’s argument, certificates are not the exclusive means of laying the foundation to admit blood alcohol test results. Substantial statutory compliance can be established by circumstantial evidence arising from the testimony of a chemist who operated the machine and performed the test. Here, the state presented the testimony of Stacy Reynolds, a forensic toxicologist with the Georgia Bureau of Investigation and the individual who performed the blood test in this case. Reynolds testified that she was trained and certified to perform the blood test. According to Reynolds, she performs approximately 1,000 blood and urine tests per year and is qualified to use the machine used here. The state introduced a copy of the certificate showing that Reynolds was certified to run the machine. Moreover, Reynolds testified that, when she performed Smith’s blood test, the machine was working and there were no problems with the machine. This evidence satisfied the requirements of OCGA § 40-6-392 (a) (1) (A). The trial court’s admission of the blood test results into evidence was therefore proper.

Decided July 29, 2002.

Earle J. Duncan III, for appellant.

Wensley Hobby, Solicitor-General, for appellee.

2. Smith contends the evidence was insufficient to support the trial court’s verdict. We disagree. The undisputed evidence clearly established that Smith drove on the wrong side of the road and that her car did not have a license plate or decal. As for the driving under the influence charge, the officer’s testimony regarding the smell of alcohol, as well as the lab test results, establish that Smith was intoxicated. And, although the officers did not observe Smith actually driving the car, they provided testimony from which a reasonable trier of fact could infer that Smith was in actual physical control of the car when the car was driven on the wrong side of the road and ended up in a ditch. This testimony included the facts that Smith was the only occupant of the car, that the car was still in gear and running when the officers arrived at the scene, and that Smith was behind the steering wheel when the officers found her. A rational trier of fact was authorized to find Smith guilty beyond a reasonable doubt of driving under the influence of alcohol, driving on the wrong side of the road, and driving without a current vehicle tag.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       See Diaz v. State, 245 Ga. App. 380, 382 (3) (537 SE2d 784) (2000); Waggoner v. State, 228 Ga. App. 148, 151 (3) (b) (491 SE2d 88) (1997).

        Waggoner, supra.

         Diaz, supra at 382-383; Banks v. State, 235 Ga. App. 701, 702 (1) (509 SE2d 63) (1998).

         Deering v. State, 244 Ga. App. 30, 31-32 (1) (535 SE2d 4) (2000).


text:
    A02A0910.
    WILEY et al. v. THE STATE.
    (570 SE2d 28)
   Johnson, Presiding Judge.

Don Wiley and Robert Wilkes were convicted of unlawfully dumping waste on public land. They appeal, challenging the sufficiency of the evidence supporting their convictions. The challenge is without merit, so we affirm their convictions.

The evidence introduced at trial shows that a man was at the entrance of the Dawson Forest Wildlife Management Area preparing for a bicycle ride when he saw a truck, which was pulling a trailer loaded with a boat dock, enter the wildlife area. The man suspected that the people in the truck were going to dump the dock in the area, so he called the police.

A Dawson County sheriff’s deputy quickly responded to the call and went to the wildlife management area. He requested assistance from a Georgia Department of Natural Resources officer and then drove into the area to search for the truck. Inside the wildlife preserve, the deputy found Wiley driving the truck and Wilkes riding in it.

The deputy stopped the men, whose trailer was carrying only foam flotation pieces of a boat dock and not a dock platform. The man who had called the police then came by the scene of the stop on his bicycle and told the deputy that some of the items he had seen on the trailer were missing. Wiley initially denied that anything was missing from the trailer, but a few minutes later he told the deputy that some items had fallen off of it and he gave the location of the items.

By then, the DNR officer had arrived. The deputy told him where Wiley had said the missing items were located. The DNR officer went to search for the items. He found the metal and wood platform of the dock lying in woods by the side of a dirt road.

Wiley testified that he and Wilkes own a dock repair and replacement business. On the day in question, he claimed that they were actually going to dump the dock at a landfill. But then they realized that they would not get to the landfill before it closed, so they headed back home, and on the way they decided to ride through the wildlife management area. Inside the wildlife area, they came to a dead-end road. When Wiley tried to turn the truck around, the dock platform slid off the trailer.

The jury found Wiley and Wilkes guilty of unlawful dumping. The trial court sentenced each of them to serve two years on probation, to pay $2,500 in fines, and to perform 100 hours of community service.

1. Wiley and Wilkes argue that their convictions must be reversed because there is only circumstantial evidence that they dumped the dock. Contrary to their argument, the circumstantial evidence is sufficient to sustain the convictions.

In order to sustain a conviction based upon circumstantial evidence, the evidence must exclude every reasonable hypothesis except the guilt of the accused. The evidence does not have to remove every possibility of the accused’s innocence. Moreover, whether or not a hypothesis is reasonable is primarily a question for the jury, which heard the evidence. This is necessarily so, because we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.

Decided July 29, 2002.

William M. Brownell, Jr., for appellants.

Lydia J. Sartain, District Attorney, Richard A. Vandever, Assistant District Attorney, for appellee.

Based on all the circumstances in the instant case, the jurors were authorized to reject the defense theory that the dock fell off the trailer accidentally and to find instead that Wiley and Wilkes are guilty beyond a reasonable doubt of intentionally dumping the dock in the public wildlife management area. The jury’s finding will not be disturbed where, as in this case, it is supported by the evidence.

2. Wiley and Wilkes contend that their felony convictions must be reversed because there is insufficient evidence that they dumped the dock for commercial purposes. The contention is without merit.

Any person who unlawfully dumps waste “for commercial purposes” is guilty of a felony that is punishable by a fine of not more than $25,000 or imprisonment for not more than two years, or both. The phrase “commercial purposes” means for the purpose of economic gain.

Here, Wiley himself testified that he and Wilkes are in the business of repairing and replacing docks. The state also introduced evidence that the dock dumped by Wiley and Wilkes in the wildlife area had to later be disposed of at a landfill for a fee. The evidence is therefore sufficient to show that Wiley and Wilkes dumped the dock in the wildlife area while in pursuit of their dock business and to avoid having to pay for the disposal of the dock. Because they dumped the dock for economic purposes, their felony convictions are supported by the evidence.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       (Punctuation, footnotes and emphasis omitted.) Holland v. State, 251 Ga. App. 312, 313 (554 SE2d 303) (2001).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); OCGA § 16-7-52 (1) (it is unlawful for any person to dump waste, unless authorized to do so by law or permit, on public lands).

        Wright v. State, 274 Ga. 730, 731 (1) (559 SE2d 437) (2002).

       OCGA § 16-7-53 (c).

       OCGA § 16-7-51 (2).


text:
    A02A1135.
    WATSON v. THE STATE.
    (570 SE2d 30)
   Johnson, Presiding Judge.

A jury found Jeffrey Watson guilty of attempting to traffic cocaine. He appeals, alleging there was insufficient evidence to support his conviction, the trial court erred in its charges to the jury, the trial court erred in limiting his cross-examination of a witness, and the trial court erred in sentencing him to pay a fine. Because each of these enumerations of error lacks merit, we affirm Watson’s conviction.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that a sheriff’s investigator arrested Johnny Houston for possession and trafficking in drugs. Subsequently, Houston agreed to assist the investigator in the investigation of drug trafficking and called Watson while the investigator listened. Houston and Watson agreed that Houston would deliver the cocaine and Watson would pay him $25,000. The exchange would take place in a shopping area known as the Pavilion. Agents concocted a mixture of five two-pound bags of confectionary sugar and wrapped it in silver duct tape to give it the appearance of cocaine. The drug transaction proceeded and authorities videotaped the transaction. The videotape was shown to the jury.

The videotape and the officers’ testimony showed that Houston, who was a passenger in an undercover agent’s car, drove to the designated shopping mall where the exchange was to take place. Shortly thereafter, Watson arrived driving a white pickup truck with dark tinted windows. Houston and Watson both exited their cars and met. Houston handed Watson the package containing the counterfeit contraband, and, in turn, Watson handed Houston a package containing what turned out to be $20 less than $25,000. A prearranged radio “take down” signal was transmitted, and officers began moving in on the white truck. At this point, Watson jumped in his truck and fled from the scene. He drove to a nearby store’s parking lot and ran into the store, continuing to try and hide from the officers. However, the officers arrested Watson at the store and recovered the counterfeit contraband.

In support of his insufficient evidence argument, Watson contends that Houston’s testimony was not credible because he testified that he had no deal with the state. This argument is without merit. “Nothing is more firmly settled in the law than the principle that, in a jury trial, the jurors are the sole judges of the credibility of witnesses.” Here, Houston denied having received any benefit for his cooperation, and the state’s attorney stated that he knew of no deal. While the jury was free to accept or reject Houston’s statement, we do not find that under the circumstances Houston’s statement was so unbelievable as to warrant a reversal of Watson’s conviction.

2. Watson contends the trial court erred by charging OCGA § 16-13-30 (i), namely, that it is illegal to possess a counterfeit substance if it is believed that the counterfeit substance was in fact a controlled substance, because the trial court did not define “counterfeit substance.” Watson contends that without the definition of a counterfeit substance, the jury must assume that possession of a bag of sugar, believing it to be cocaine, is a crime.

While Watson may have a valid argument if he had been convicted of a counterfeit substance charge, he was not. Here, Watson was charged with and convicted of attempting to traffic cocaine. The evidence showed that Watson voluntarily entered what he perceived to be a bona fide drug sale. He arrived at the purchase site with all but $20 of the designated sum of money, took possession of the counterfeit substance, and handed the money to the seller. Clearly, Watson performed an act which constitutes a substantial step toward the commission of trafficking a contraband substance. The fact that the substance sold to Watson was not, in fact, cocaine, does not relieve Watson of culpability for attempting to traffic cocaine because there is no evidence that he was aware the substance was not cocaine. Whether the substance was, in fact, a counterfeit substance, is irrelevant.

Furthermore, we have reviewed the jury charges as a whole and do not find them to be confusing or misleading. It has long been the rule that where the trial court’s charge as a whole is an accurate statement of the law, it is generally not a good ground for a new trial that the charge includes a statement, one portion of which is applicable and one portion of which is inapplicable or not adjusted to the facts. Here, Watson was charged and convicted of attempting to traffic cocaine. While any reference to the crime of possession of a counterfeit substance was extraneous, we find it highly unlikely that the jury was misled by this portion of the charge, especially since the trial court read the indictment to the jury and instructed them throughout the jury charge that Watson was charged with attempting to traffic cocaine.

Likewise, Watson’s contention that the jury should have been given an instruction as to a verdict for the offense of possession of a counterfeit substance lacks merit. Clearly, Watson was not charged with such a crime, and it is highly probable the jury was not prejudiced or misled by the trial court’s extraneous instruction on the crime of possession of a counterfeit substance. No instruction as to a verdict on this offense was required or warranted, and the trial court did not err in failing to give such a charge.

3. Watson contends it was error for the trial court to charge the jury that they could convict Watson of possession of cocaine since it was undisputed that no cocaine was involved in the case. The record shows that the trial court charged as follows:

Now, there is a lesser included offense in this particular case, and in that I charge you that if you should not believe beyond a reasonable doubt that the defendant is guilty of the offense of criminal attempt to traffic in cocaine but do believe that he attempted to possess cocaine beyond a reasonable doubt then you would be authorized to find the defendant guilty of possession of cocaine. In which event, the form of that verdict would be: We, the jury, find the defendant guilty of possession of cocaine.
On the other hand, if you do not believe that the defendant is guilty of either of [the] offenses, attempting to traffic in cocaine or attempting to possess cocaine, or if you have any reasonable doubt as to the defendant’s guilt then it would be your duty to acquit the defendant; that is, find him not guilty. In which event the form of the verdict would be: We, the jury, find the defendant not guilty.

While the trial court did, in fact, state that the jury could find Watson guilty of possession of cocaine, it is clear from the entire jury charge that this was a mere slip of the tongue. In the same sentence and in the following paragraph, the trial court noted that the offense was attempting to possess cocaine.

It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. Here, while the trial court inadvertently stated that the jury could find Watson guilty of possession of cocaine, it is clear when the charge is considered as a whole that the lesser included offense was, in fact, attempting to possess cocaine and that the state had the burden of proving Watson attempted to possess cocaine beyond a reasonable doubt. Considering the jury charge as a whole, we find no likelihood that the jury was confused or misled, and therefore find no harmful error.

4. Watson contends the trial court erred in limiting his cross-examination of Houston. According to Watson, he should have been permitted to examine Houston regarding the identity of Houston’s cocaine supplier. We find no merit in this argument.

Although a defendant has the right to a thorough and sifting cross-examination, the scope of this examination is not unlimited; the extent of the examination is within the discretion of the trial judge and will not be disturbed absent an abuse of the trial judge’s discretion. Moreover, although Georgia law favors the admission of any relevant evidence, no matter how slight its probative value, the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial judge. Here, Watson’s attorney questioned Houston regarding the identity of his cocaine supplier, and the state objected on the ground of relevancy. We find no abuse of discretion. The identity of Houston’s drug source was not relevant to whether Watson attempted to traffic cocaine or attempted to possess cocaine.

5. In his final enumeration of error, Watson contends the trial court erred in sentencing him to pay a $10,000 fine because he did not receive a probated sentence. In support of this argument, Watson cites Gonzalez v. State, where this Court held that fines are not authorized under OCGA § 16-13-33 and may not be imposed under OCGA § 17-10-8 unless the accused is sentenced to probation. While we agree with Watson’s interpretation of Gonzalez, that case is not applicable here.

In Gonzalez, the defendant was convicted of conspiracy to traffic cocaine and marijuana, and there is no provision for the imposition of a fine for such an offense. However, this is not a conspiracy case. Here, Watson was convicted of attempting to traffic cocaine. Under OCGA § 16-13-31, fines may be imposed for trafficking cocaine depending on the quantity of the drugs involved. And, under OCGA § 16-4-6, a person convicted for criminal attempt to commit a felony may be fined up to one-half the maximum fine for which he could have been subjected if he had been convicted of the crime attempted. Since the controlling statutes both authorize imposition of a fine and since the fine imposed in this case is within the applicable limit, the trial court did not err in imposing the fine.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

Decided July 29, 2002

Gordon, Brown & Eberhardt, Gerald W. Brown, for appellant.

William T McBroom III, District Attorney, Thomas J. Ison, Jr., Assistant District Attorney, for appellee.

       (Citations and punctuation omitted.) Franklin v. State, 208 Ga. App. 740, 741 (4) (431 SE2d 733) (1993).

       See OCGA § 16-13-21 (6).

       OCGA § 16-13-31.

       OCGA § 16-4-1.

       See OCGA § 16-4-4; Guzman v. State, 206 Ga. App. 170, 172 (2) (424 SE2d 849) (1992) (physical precedent only).

       See Chandler v. State, 213 Ga. App. 46, 47 (2) (443 SE2d 679) (1994).

        Chandler, supra.

         Williams v. State, 201 Ga. App. 384, 385 (2) (411 SE2d 316) (1991).

       See Martin v. State, 228 Ga. App. 59, 62-63 (2) (491 SE2d 142) (1997).

        Bell v. State, 235 Ga. App. 825 (510 SE2d 589) (1998).

       Id.

       201 Ga. App. 437 (411 SE2d 345) (1991).


author: Blackburn, Chief Judge.

text:
    A02A1183.
    HIGHTOWER v. THE STATE.
    (570 SE2d 22)
   Blackburn, Chief Judge.

Bo Rodley Hightower appeals his conviction by a jury of statutory rape, child molestation, and cruelty to children in the first degree. He argues that the trial court erred in: (1) denying his motion for directed verdict on the charge of cruelty to children; (2) charging the jury on the definition of a crime; (3) instructing the jury that proof of force is not necessary to establish a charge of statutory rape; and he further argues that (4) the State failed to establish venue for the charges of child molestation and cruelty to children. The trial court erred in denying Hightower’s motion for directed verdict on the charge of cruelty to children, and we reverse that conviction; we affirm the remaining convictions.

1. We first address Hightower’s assertion that the trial court erred in denying his motion for directed verdict as to the charge of cruelty to children in the first degree. He contends that the State failed to present sufficient evidence to support his conviction as charged in the indictment. We agree.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hightower] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdiet or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

Chastain v. State.

OCGA § 16-5-70 (b) provides that a “person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” “[T]he basic elements of the offense' must be shown by evidence. That is, there must be evidence establishing the age of the child, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing.” Brewton v. State. Count 3 of the indictment alleged only mental pain, stating that Hightower “did maliciously cause S. G, a child under 18 years of age, cruel mental pain and excessive mental pain by engaging in sexual intercourse with said child with intent to cause said child to get pregnant while professing that he loved said child.”

At trial, S. G, the victim in this case, testified that she met Hightower in May 2000, while visiting her father. She was 14 years old at the time, and Hightower was 25. Hightower obtained S. G.’s phone number and called her a week later. Hightower also visited S. G. at her home when her mother and stepfather were at work. A romantic relationship developed, with both S. G. and Hightower testifying that they had fallen in love. In the middle of July, their relationship became sexual. S. G. testified that the regular sex she had with Hightower was voluntary and that her father, aunt, and grandmother knew of the relationship.

S. G. and Hightower began to talk of marriage and having a home together; Hightower started giving S. G. money to save for the purchase of a wedding ring. S. G. and Hightower both testified that S. G. wanted to get pregnant and have a baby, that Hightower had told her that she was too young to be a mother, but that she had finally changed his mind about having a child.

After S. G.’s mother called the police and told them of her daughter’s relationship with Hightower, Hightower was arrested. A police officer testified that, after Hightower had been given his Miranda warning, Hightower gave a statement in which he admitted his relationship with S. G., but said that he was in love with her and wanted to marry her.

Hightower learned that S. G. was pregnant after his arrest. He continued to say that he wished to marry S. G. After the baby was born, Hightower went to the hospital, where he signed the birth certificate and indicated his intention to support the child. S. G. took a picture of Hightower holding the baby and gave the baby Hightower’s surname. Another picture of the baby, along with text beginning “Congratulations to S. and Bo Hightower who had a baby giri,” was published in the local newspaper. Hightower testified that he still wants to marry S. G. and intends to support his child.

On cross-examination, S. G. testified that Hightower had never caused her either physical or mental pain. In an effort to show that Hightower had caused S. G. pain, the prosecution questioned S. G. as follows:

Prosecutor: [S. G.], the term of your pregnancy, you had pain during that, didn’t you?
S. G.: Yes, but it was good pain.
Prosecutor: And the birth of the child, you had pain with that, didn’t you?
S. G.: Yes.
Prosecutor: Matter of fact, you’ve had some sleepless nights or troubled days and nights because of this thing, haven’t you?
S. G.: Yes.
Prosecutor: Caused a lot of stress between you and your mother? Would that be fair to say that?
S. G.: I don’t — I couldn’t say that; not that he caused it.

This was the only evidence at trial that S. G. suffered any pain, physical or mental, because of her relationship with Hightower.

While S. G. experienced stress in her relationship with her mother, she denied that it was caused by Hightower. S. G.’s admission that she had suffered pain during pregnancy and childbirth, which she describes as “good pain,” and had lost sleep is not sufficient to support a conviction of cruel or excessive mental pain. To find otherwise on the evidence presented here, would be to render this element of the crime meaningless.

We recognize that “[w]hat constitutes cruel or excessive physical or mental pain must be resolved by a jury ” Alford v. State. But, “[o]n the pole with which we are concerned here (and will be whenever there is an appeal from a conviction), there will be instances where the law would not countenance a finding of cruel or excessive pain.” Sims v. State. This is such an instance.

As for the element of malice, this Court has explained:

For purposes of this Code section, malice in the legal sense [ ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

(Punctuation omitted.) Brewton, supra at 161 (2).

We view the testimony here in a light most favorable to the verdict and assume that Hightower caused the pain. Nonetheless, the evidence is insufficient to support the finding that Hightower acted maliciously in causing S. G. pain. The indictment charged Hightower with maliciously causing S. G. “cruel mental pain and excessive mental pain by engaging in sexual intercourse with said child with intent to cause said child to get pregnant while professing that he loved said child.” There was no evidence presented at trial that High-tower acted with the malicious intent to cause S. G. mental pain when he had sexual relations with her. Cf. Sims, supra (finding sufficient evidence that defendant maliciously caused children to suffer cruel or excessive mental pain where defendant threatened to kill their mother with a knife, made them look at her after she had been stabbed multiple times, forced them to ride around in car as their mother continued to bleed, and then abandoned them and their mother in the middle of the night). The evidence was insufficient to prove either that S. G. suffered cruel or excessive mental pain or that Hightower maintained his relationship with S. G. with the malicious intent to cause her pain. This charge requires more than the fact of a sexual relationship with a minor, because otherwise, every incident of statutory rape would also constitute the crime of cruelty to children. Under such circumstance the charges would merge as a matter of law. Under these facts, Hightower’s conviction for cruelty to children must be reversed.

2. Hightower next asserts that the trial court should not have instructed the jury that proof of force is not necessary to establish a charge of statutory rape. This enumeration of error is without merit. “Acts of force are irrelevant in a statutory rape case. It is the act of sexual intercourse and the age of the female that constitute the crime of statutory rape.” Claitt v. State.

3. In charging the jury, the trial court stated: “A crime is a violation of a statute of this state in which there is joint operation of an act, or omission to act, and intention or criminal negligence.” High-tower argues that because none of the charges in the indictment can be proved by criminal negligence, the inclusion of this language improperly allowed the jury to consider criminal negligence in lieu of making a finding that he intended to commit the acts charged in the indictment.

The trial court gave a general charge on what constitutes a crime. Given our reversal of the conviction of cruelty to children, Hightower’s argument as to that crime is moot. Given Hightower’s admission that he had sexual relations with S. G., a minor, his conviction for statutory rape was not based on a finding of criminal negligence. Fields v. State. Accordingly, any error in this charge was harmless.

4. In enumerations of error 4 and 5, Hightower maintains that the State failed to establish venue for the crimes of child molestation and cruelty to children in Pickens County. A review of the record reveals that this enumeration is without merit.

“Venue is an essential element of a crime, and the state has the burden of proving venue beyond a reasonable doubt whenever a criminal defendant pleads not guilty.” Stover v. State. “[C]ircumstantial as well as direct evidence may be used to establish venue. Venue is a question to be decided by the jury, and its decision will not be set aside as long as there is any evidence to support it.” (Punctuation omitted.) Render v. State.

Hightower was charged with committing the crime of child molestation in Pickens County between October 28, 2000, and November 11, 2000, and with committing the crime of cruelty to children in the first degree in Pickens County between July 1, 2000, and October 28, 2000. S. G. testified that she talked with Hightower about becoming pregnant “later on” in their relationship, and that their relationship came to an end around the end of November 2000. When asked if she had made any special efforts to get pregnant, S. G. indicated that she and Hightower had tried through repeated sex to get pregnant and that these efforts had occurred at her house. Testimony established that S. G. lived with her mother and that her mother’s house was in Pickens County. The baby was born on August 23, 2001. Viewed in the light most favorable to the verdict, this testimony was sufficient to prove that the crimes occurred in Pickens County during the time periods alleged in the indictment. Given our reversal of the cruelty to children conviction, Hightower’s argument as to that count is moot.

Decided July 29, 2002.

Martin & Associates, Benny M. Martin, Nancee E. Tomlinson, for appellant.

Roger G. Queen, District Attorney, Darrell E. Wilson, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part and case remanded.

Johnson, P. J., and Miller, J., concur.

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Chastain v. State, 239 Ga. App. 602-603 (1) (521 SE2d 657) (1999).

        Brewton v. State, 266 Ga. 160 (1) (465 SE2d 668) (1996).

        Alford v. State, 243 Ga. App. 212, 214 (3) (534 SE2d 81) (2000).

        Sims v. State, 234 Ga. App. 678, 679 (1) (a) (507 SE2d 845) (1998).

        Claitt v. State, 154 Ga. App. 727 (270 SE2d 34) (1980).

        Fields v. State, 258 Ga. 595, 596 (372 SE2d 811) (1988).

        Stover v. State, 251 Ga. App. 215 (554 SE2d 221) (2001).

        Render v. State, 240 Ga. App. 797 (525 SE2d 368) (1999).


author: Ellington, Judge.

text:
    A02A1316.
    THE STATE v. ALLEN.
    (570 SE2d 34)
   Ellington, Judge.

A Baker County grand jury returned a true bill of indictment against Lemonte Montez Allen for the offenses of vehicular homicide, OCGA § 40-6-393, driving under the influence of alcohol, OCGA § 40-6-391, and failure to maintain his vehicle within its lane, OCGA § 40-6-48. Allen moved to suppress the results of his blood alcohol test, contending the State failed to read him the implied consent notice required by OCGA § 40-5-67.1 prior to the test. After a pretrial hearing on this issue, the trial court took the matter under advisement and later granted Allen’s motion; however, the court did not base its decision on the implied consent ground argued. Instead, the court suppressed the test results based upon a finding that “[n]o evidence was introduced from which the court can find that the blood sample was taken within three hours after the defendant was operating a motor vehicle,” citing OCGA § 40-6-391 (a) (5). Pursuant to OCGA § 5-7-1 (4), the State appeals. Because the trial court’s ruling is based upon an erroneous interpretation of the law, we reverse.

In reviewing a motion to suppress, we construe the evidence most favorably to uphold the findings and judgment of the trial court. Where the evidence is uncontroverted and there is no question concerning the credibility of witnesses, we conduct a de novo review of the trial court’s application of the law to the undisputed facts. State v. Stearns, 240 Ga. App. 806, 807 (524 SE2d 554) (1999). The State adduced the following relevant, undisputed facts: A state trooper testified that he met Allen at the hospital emergency room at the request of a trooper who remained at the accident scene. The trooper testified that he read Allen the appropriate implied consent notice from a card he carried. The trooper testified that Allen was conscious and communicative, appeared to understand him, and consented to the blood test. The trooper testified that he was not present at the scene of the accident and that he did not know when the accident occurred. The State presented evidence that Allen’s blood was drawn for testing at 1:39 p.m. on June 15, 2001.

OCGA § 40-6-391 (a) (5) provides, in pertinent part, that a “person shall not drive” while his or her alcohol concentration is above the proscribed limit “within three hours after” such driving. The statute does not require that an alcohol concentration test be administered within three hours of the accident allegedly caused by drunken driving. As we have held, “[i]t need be established only that [the defendant’s] alcohol concentration [exceeded the legal limit] during the three-hour period after he ceased driving or exercising actual physical control of the vehicle.” Yarbrough v. State, 241 Ga. App. 777, 782 (4) (c) (527 SE2d 628) (2000). This is because it is possible, through the use of expert testimony, to establish a defendant’s alcohol concentration for the relevant time period even though the test was administered more than three hours later. See Allen v. State, 229 Ga. App. 435, 440 (2) (c) (494 SE2d 229) (1997) (physical precedent only). Therefore, the trial court erred in suppressing Allen’s alcohol test results on this basis.

In his appellate brief, Allen argues that the court’s ruling was nevertheless right for other reasons. He contends the State failed to show, among other things, that his blood alcohol test was taken “as soon as possible” after the accident. None of the arguments Allen makes on appeal, however, were presented in his written motion, argued before the trial court, or ruled on below. “[I]ssues not raised in the trial forum in any form calling for a ruling will not be considered on appeal, for this is a court for correction of errors made by the trial court.” (Citations and punctuation omitted.) Romano v. State, 193 Ga. App. 682 (1) (388 SE2d 757) (1989). Moreover, a motion to suppress must be made “in writing and state facts showing that the search and seizure were unlawful.” OCGA § 17-5-30 (b). On a motion to suppress, the State is entitled to proper notice of the issue raised or it will be deemed waived. State v. Armstrong, 203 Ga. App. 159, 160 (1) (416 SE2d 537) (1992). For these reasons, we do not consider the alternate bases Allen urges for granting his motion to suppress.

Decided July 29, 2002.

J. Brown Moseley, District Attorney, Joseph E. Griffin, Assistant District Attorney, for appellant.

Donald D. Rentz, for appellee.

Because the trial court’s order granting Allen’s motion to suppress is based upon an erroneous interpretation of the law, it is reversed.

Judgment reversed.

Smith, P. J., and Eldridge, J., concur.

       Although Allen labeled his motion a motion to suppress, we note that most challenges to the admissibility of evidence based upon the procedures used in reading a defendant the statutory implied consent notice should be raised in a motion in limine. Goddard v. State, 244 Ga. App. 730, 731 (536 SE2d 160) (2000); see also State v. Johnston, 249 Ga. 413, 414-415 (3) (291 SE2d 543) (1982). The distinction can be significant (though it is irrelevant in Allen’s case) because the burdens of proof and whether the trial court has a duty to rule pretrial vary depending on the type of motion made. See Pierce v. State, 173 Ga. App. 551, 552-553 (2), (3) (327 SE2d 531) (1985).

       OCGA § 40-6-391 (a) (5) was amended in 2001 to reduce the alcohol concentration from 0.10 to 0.08. Ga. L. 2001, p. 208, § 1-5.

       An alcohol concentration test must be administered “as soon as possible” pursuant to OCGA §§ 40-5-55 (a) and 40-5-67.1 (a). See Joiner v. State, 239 Ga. App. 843, 847-849 (2) (522 SE2d 25) (1999). “As soon as possible” is determined based upon the circumstances of each case. Id. at 848 (2).


text:
    A02A1608.
    BLACKBURN v. THE STATE.
    (570 SE2d 36)
   Johnson, Presiding Judge.

Johnny Blackburn was indicted for possessing methamphetamine, possessing an open container of alcohol while operating a motor vehicle, and driving under the influence of drugs. Blackburn moved to suppress all evidence seized from him, arguing that it was obtained pursuant to an illegal roadblock. The trial court held a hearing on the motion and then denied Blackburn’s motion. We granted Blackburn’s application for interlocutory review, and we reverse the trial court’s ruling because the state failed to meet its burden of presenting probative evidence that a supervising officer authorized the roadblock for a valid purpose.

A police roadblock is constitutional provided that, among other things, the decision to implement the roadblock was made by supervisory personnel rather than officers in the field. Moreover, the supervisory officers must have a valid primary purpose for the roadblock other than merely seeking to uncover evidence of ordinary criminal wrongdoing. In establishing the lawfulness of a roadblock, the state has the burden of presenting some admissible evidence, testimonial or written, that supervisory officers decided to implement the roadblock, decided when and where to implement it, and had a legitimate primary purpose for it.

Decided July 29, 2002.

Robert R. McLendon IV, for appellant.

J. Broum Moseley, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

In the instant case, the only evidence presented by the state regarding the roadblock came from the testimony of the state trooper who stopped Blackburn at the roadblock. He testified that a supervising corporal had authorized the roadblock to check licenses and sobriety. The corporal, however, did not testify, and there was no other evidence, written or testimonial, establishing that supervisory officers decided to implement the roadblock for a legitimate purpose.

The state trooper’s testimony, to the extent the state relies on it to establish that the corporal decided to implement the roadblock and to establish the corporal’s purpose, is hearsay. Such hearsay, even if not objected to, proves nothing. Because the state failed to introduce any probative evidence that a supervising officer authorized the roadblock for a legitimate purpose, the state has not shown that the roadblock was constitutional. The trial court therefore erred in denying Blackburn’s motion to suppress evidence seized pursuant to the roadblock.

Judgment reversed.

Blackburn, C. J., and Miller, J., concur.

        LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998).

        City of Indianapolis v. Edmond, 531 U. S. 32, 41-42 (121 SC 447, 148 LE2d 333) (2000); Baker v. State, 252 Ga. App. 695, 698 (1) (556 SE2d 892) (2001).

        Baker, supra at 701-702.

       OCGA § 24-3-2; Baker, supra at 699.

        Baker, supra.

       Compare Perdue v. State, 256 Ga. App. 765, 766 (1) (a) (578 SE2d 456) (2002) (supervising officer testified that he ordered roadblock for an intersection that had previously been a good site for detecting impaired drivers).