author: Beasley, Judge.

text:
    A98A0942.
    BUCHNOWSKI v. THE STATE.
    (505 SE2d 263)
   Beasley, Judge.

Gregory Buchnowski was convicted of driving under the influence of alcohol (OCGA § 40-6-391). He challenges, in two respects, the trial court’s denial of his motion in limine: the police lacked an articulable suspicion to stop him, and the police failed to give him Miranda warnings.

While driving home from duty, Officer Finnegan observed a truck weaving in and out of its lane on two occasions. The truck broke down at a stoplight directly in front of Finnegan’s vehicle and would not start. Officer Finnegan, still in uniform, exited his vehicle and approached the truck to inquire. The driver, Buchnowski, reeked of alcohol. After Buchnowski admitted he had been drinking, the officer told him to stay in the truck and then radioed for help from an on-duty officer.

When Officer Llorens arrived, he spoke to Buchnowski and not only smelled the alcohol on his breath but observed his eyes were bloodshot, watery and sleepy, and that he spoke thickly and swayed. Buchnowski again admitted he had been drinking. Officer Llorens administered three field sobriety tests, which Buchnowski failed. He arrested Buchnowski and read to him the implied consent notice required by OCGA § 40-5-67.1. Buchnowski refused the chemical test.

Although Officer Finnegan testified he gave Buchnowski no Miranda warnings, it is unclear whether Officer Llorens did. For purposes of this appeal we assume Llorens did not.

Following a bench trial, the court found the officers could properly approach a vehicle in distress and, due to the odor of alcohol, were authorized to detain Buchnowski. The court considered all of the evidence admissible.

1. As in the past, “[t]he evidence at the suppression hearing was uncontroverted, and no question of credibility of witnesses was presented. We thus review the trial court’s ruling on the motion [in limine] to ensure that there was a substantial basis for it. The trial court’s application of the law to the undisputed facts is subject to de novo review.”

Claiming that Officer Finnegan lacked the requisite articulable suspicion to stop him, Buchnowski contends all evidence gathered by the officers was inadmissible, presumably under the Fourth Amendment. This contention fails for two reasons.

First, Officer Finnegan did not “stop” Buchnowski. Approaching a vehicle that has already stopped through no action of the officer is not a stop or seizure, but is a “communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment.” Coates v. State specifically held that upon seeing a car in distress in a through lane of traffic, an officer may quite properly approach the car and initiate inquiry. Even if Officer Finnegan’s first approach to the vehicle were considered a stop, he had observed Buchnowski weaving in and out of his lane and therefore had reasonable grounds to stop him. Neither Mulling v. State nor Clark v. State, cases cited by Buchnowski, involves an officer witnessing a traffic violation.

Second, only after Officer Finnegan smelled alcohol on Buchnowski’s breath did he ask Buchnowski to remain in his vehicle while he radioed for help. Although it is doubtful this request constituted a stop, if it did, “at that point the officer had smelled the alcohol on [his] breath [and heard him admit drinking], which provided reasonable grounds to conduct an investigative inquiry to determine whether appellant was engaged in criminal activity, e.g., driving under the influence.” Similarly, when Officer Llorens approached Buchnowski in his stopped vehicle and observed signs of intoxication as well as heard his admission, he also had sufficient grounds to conduct an investigative inquiry.

2. Buchnowski argues that, because neither officer read him his Miranda rights, the testimony regarding his admitting drinking, his failing the sobriety tests, and his refusal to submit to chemical tests was inadmissible. His admissions and his test results arose out of the roadside investigation occurring before he was arrested and thus required no Miranda warnings. State v. O’Donnell, cited by Buchnowski, involves statements and test results occurring after defendant had been arrested. Price v. State is also distinguishable in that, before administering the field sobriety tests, the officer in Price informed defendant she was going to jail and thus had taken her into custody.

As to federal constitutional law, in the first place “field sobriety tests are not statements. They are not evidence of a testimonial or communicative nature. They are therefore not inadmissible under the Fifth Amendment to the U. S. Constitution even if the accused was in custody and no Miranda warnings have been given.” And, unlike the defendant in O’Donnell, Buchnowski did not and does not invoke OCGA § 24-9-20 (a) to exclude the evidence.

Buchnowski’s refusal to submit to chemical tests came after he was arrested. “In any criminal trial, the refusal of the defendant to permit chemical analysis to be made of his blood, breath, urine, or other bodily substance at the time of his arrest shall be admissible in evidence against him. OCGA § 40-6-392 (d). A refusal to take a blood alcohol test which was requested by a police officer is not an act coerced by the officer, and the refusal is not protected by the privilege against self-incrimination. [Defendant’s] refusal to take the test is not protected by the privilege against self-incrimination. Accordingly the court was not required to exclude evidence of [defendant’s] refusal due to the officer’s failure to inform [him] of his Miranda rights.”

Decided August 4, 1998.

Spruell, Taylor & Associates, Billy L. Spruell, Melinda D. Taylor, for appellant.

Gerald N. Blaney, Jr., Solicitor, Kelly B. Willis, Assistant Solicitor, for appellee.

The court did not err in admitting the evidence.

Judgment affirmed.

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

       Buchnowski refers to his motion as a motion to suppress. Because it concerned the admission of testimony, it is actually a motion in limine. McClain a State, 226 Ga. App. 714, 715-716 (1) (487 SE2d 471) (1997).

       (Citations omitted.) State v. Armstrong, 223 Ga. App. 350, 351 (1) (477 SE2d 635) (1996).

       (Citations and punctuation omitted.) McClain, supra, 226 Ga. App. at 716 (1).

       216 Ga. App. 93, 95 (7) (453 SE2d 35) (1994).

       See Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997) (“when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment”); State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996) (driver weaving in and out of lane is reasonable grounds for stop); Huff v. State, 205 Ga. App. 557 (422 SE2d 664) (1992) (same).

       156 Ga. App. 404 (274 SE2d 770) (1980) (defendant was only seen weaving within his lane).

       208 Ga. App. 896 (432 SE2d 220) (1993) (defendant went to right without signaling, but signaling was not required).

       See McClain, supra, 226 Ga. App. at 718 (1); Ward v. State, 193 Ga. App. 137 (387 SE2d 150) (1989).

       (Citations and punctuation omitted.) McClain, supra, 226 Ga. App. at 718 (1); see Coates, supra, 216 Ga. App. at 95 (7) (once defendant admitted to drinking and driving, officer could conduct investigative inquiry).

       See Morrissette v. State, 229 Ga. App. 420, 422 (1) (a) (494 SE2d 8) (1997) (field sobriety tests occurred before taking into custody, even though defendant was placed temporarily in back of police car); State v. Pastorini, 222 Ga. App. 316, 317 (1) (474 SE2d 122) (1996) (field sobriety tests and admissions were during brief investigation and before taking into custody); Coates, supra, 216 Ga. App. at 95 (7) (“When [defendant] admitted she had been drinking and driving, the officer was authorized to conduct the field sobriety tests without giving Miranda warnings”) (citation omitted); Griffin v. State, 191 Ga. App. 302, 303 (2) (381 SE2d 562) (1989) (“A motorist detained pursuant to a roadside questioning at a routine stop is not in a custodial situation triggering the Miranda warning” requirement) (citation omitted).

       225 Ga. App. 502 (484 SE2d 313) (1997).

       269 Ga. 222, 224-225 (3) (498 SE2d 262) (1998).

       (Citation and punctuation omitted.) Morrissette, supra, 229 Ga. App. at 421-422 (1) (a); see Coates, supra, 216 Ga. App. at 95 (7) (same).

       225 Ga. App. at 504 (2); see Price, supra, 269 Ga. at 225, n. 13 (“defendant who raises only a federal law challenge will not succeed because under the U. S. constitution the prohibition against self-incrimination applies only when the evidence is ‘testimonial’ and field sobriety tests are not ‘testimonial’ in nature”) (citations omitted).

       (Citations and punctuation omitted.) Lankford v. State, 204 Ga. App. 405, 406 (1) (419 SE2d 498) (1992).


source: Caselaw Access Project

license: Public Domain

text:
    A98A1178.
    BURLESON v. THE STATE.
    (505 SE2d 515)
   Beasley, Judge.

Michael Burleson contends and the State agrees that the trial court erred when it re-sentenced him after his original sentencing in connection with his guilty plea to one count each of armed robbery (OCGA § 16-8-41) and possession of a hoax device (OCGA § 16-7-85). The court originally sentenced Burleson under the Georgia First Offender Act (OCGA § 42-8-60) to fifteen years to serve five for armed robbery and five years on probation to run concurrently for the hoax device. Over three months later, the court “voided” its sentence for the armed robbery count and imposed a sentence of twenty years to serve ten, apparently in a concern that OCGA § 17-10-6.1 required a mandatory minimum sentence of ten years in prison.

Burleson identifies two errors in one enumeration but the second, denial of a motion for new trial, is not supported by argument or citation of authority and is therefore deemed abandoned.

Based on this Court’s recent ruling in Fleming v. State the court’s original sentence was not valid. On March 27, 1998, the General Assembly amended OCGA § 17-10-6.1 and added OCGA § 42-8-66 to the First Offender statute in order to make clear that a defendant convicted of one of the serious violent felonies contained in OCGA § 17-10-6.1 will not be eligible for first offender treatment under OCGA § 42-8-60. State v. Allmond held that as the law existed prior to the amendments, one could be sentenced as a first offender for armed robbery and avoid the mandatory minimum sentence. Fleming overruled Allmond and held that the amendments showed that the General Assembly’s original intent in passing OCGA § 17-10-6.1 was to prohibit first offender treatment under these circumstances.

Decided August 4, 1998

Robert J. Pinnero, for appellant.

John R. Parks, District Attorney, for appellee.

The court had authority to impose a new sentence on Burleson in lieu of the original sentence because it was void. “In Georgia, a defendant, after a plea or verdict of guilty, may, when a void sentence has been imposed, be returned before the proper court so that a legal sentence may be imposed upon him in accordance with the existing law. [Cits.] Where a sentence is void the court may resentence the defendant at any time. [Cit.] The imposition of a void sentence is not an obstacle to the assumption by the court which imposed it of jurisdiction of the convict, in order that a legal sentence may be imposed. The case is to be regarded as pending until it is finally disposed of by the imposition of a lawful sentence.”

Judgment affirmed.

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

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

       233 Ga. App. 483 (504 SE2d 542) (1998) (Andrews, C. J., Beasley and Blackburn, JJ., dissenting).

       Id. at 484.

       225 Ga. App. 509 (484 SE2d 306) (1997).

         Fleming at 485.

       (Punctuation and emphasis omitted.) Bryant v. State, 229 Ga. App. 534, 536 (1) (494 SE2d 353) (1997). See also State v. Stuckey, 145 Ga. App. 434 (243 SE2d 627) (1978).


text:
    A98A1666.
    DYER v. THE STATE.
    (505 SE2d 71)
   Beasley, Judge.

Convicted of possessing and manufacturing marijuana (OCGA § 16-13-30 (a), (b)), Henry Dyer enumerates as error the court’s denial of his motion to suppress evidence obtained at or near his farm when a hunter led police to a stash of marijuana discovered while hunting. The court concluded that the evidence was found outside the curtilage of Dyer’s residence and thus was not protected by the “search and seizure” provisions of the Fourth Amendment.

Dyer unsuccessfully moved to suppress the marijuana and other items seized from his farm and the nearby woods on the ground the police had no warrant to search this area. On five occasions during trial, including retender, the State tendered four groups of these items or pictures of them into evidence. On three of these occasions, Dyer’s counsel volunteered that he had no objection to the admission of the evidence. On the other two, including when the State retendered all of its exhibits, the court inquired whether Dyer had any objections, to which Dyer’s counsel responded “no.”

In Nolton v. State the merits of the denial of defendant’s motion to suppress a key seized from his person were affirmed because the issue was waived. During trial “counsel did not merely fail to object to the introduction of the key as evidence; he affirmatively stated upon inquiry by the trial court that he had ‘no objection’ to it at the time it was tendered. We have no rule in this state which prohibits counsel from affirmatively waiving or withdrawing an objection previously made.” Maness v. State similarly concluded: “When defense counsel stated that he had no objection to the introduction of the evidence, he waived any objection which might have been urged including those contained in the motion to suppress.”

Mattingly v. State approximates the facts of this case. Defendant unsuccessfully moved to suppress evidence of marijuana seized from his home. “Although defendant argued during his motion to suppress hearing the evidence seized during the search of his home was inadmissible because the search was illegal, he did not offer that objection at trial. When each item of evidence seized during the search was offered for admission at trial, defendant affirmatively stated he had no objection. . . . Thus, defendant affirmatively waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress.”

Failing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point. Dyer waived his claim of illegal search by repeatedly stating he had no objections to admitting the seized items. It was too late to raise it in the motion for new trial long after the jury had returned its verdict and a ruling on the objection might have altered the body of evidence over which the jury deliberated.

Decided August 4, 1998.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

There being nothing further for this Court to decide, the conviction is affirmed.

Judgment affirmed.

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

       193 Ga. App. 200, 201 (1) (387 SE2d 364) (1989).

       Id. at 202.

       (Citations and punctuation omitted.) 159 Ga. App. 707, 708 (285 SE2d 193) (1981).

       205 Ga. App. 777 (1) (423 SE2d 709) (1992).

       (Citations omitted.) Id.

        Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981).

       See Chaney v. State, 224 Ga. App. 663 (1) (482 SE2d 398) (1997) (affirmative statement of “no objection” waives issue); Edmonson v. State, 212 Ga. App. 449, 452 (4) (442 SE2d 300) (1994) (affirmative statement there was no objection to knife that was subject of pretrial motion to suppress waives appeal on issue); Bowe v. State, 201 Ga. App. 127, 128 (1) (410 SE2d 765) (1991) (affirmative statement of “no objection” waives right to appeal denial of motion to suppress); Nolton, supra, 193 Ga. App. at 202; Wilbanks v. State, 176 Ga. App. 533, 534 (336 SE2d 312) (1985) (response of “no” to inquiry by trial court of any objections waives right to contest motion to suppress); Abrams v. State, 144 Ga. App. 874 (1) (242 SE2d 756) (1978) (by stating he had no objection, defendant waived right to pursue motion to suppress denial); Carter v. State, 137 Ga. App. 823 (225 SE2d 64) (1976) (same).


author: Judge Harold R. Banke.

text:
    A98A0804.
    SCRUGGS v. INTERNATIONAL INDEMNITY COMPANY.
    (505 SE2d 267)
   Judge Harold R. Banke.

In this declaratory judgment action, Raymond Leon Scruggs, individually and d/b/a Scruggs Pallett, and Donnie Leon Scruggs, (collectively “Scruggs”) appeal the trial court’s order granting summary judgment to International Indemnity Company (“IIC”). Scruggs enumerates two errors.

This case arose when a flat-bed truck owned by Raymond Scruggs d/b/a Scruggs Pallett and driven by Scruggs’ son, Donnie, collided with Linda Clowdis’ car. The truck was insured by IIC. Scruggs’ policy provided maximum coverage of $15,000 per person, $30,000 per accident, and $10,000 for property damage.

After the collision, Clowdis entered into a settlement agreement with IIC, which paid her $15,000 for bodily injury and $10,000 for property damage, thereby exhausting the policy’s limit of liability per occurrence. In return, Clowdis executed a release of all claims. State Farm, Clowdis’ uninsured motorist provider, paid $2,377.50 in property damage and $45,000 in bodily injury coverage to Clowdis.

A year later, State Farm commenced a subrogation action against Scruggs seeking reimbursement for the uninsured motorist payments it disbursed to Clowdis. IIC has defended Scruggs in that action under a reservation of rights. IIC also commenced this action seeking a declaratory judgment on the grounds that under the policy its duty to defend Scruggs ended when it paid the policy limits to Clowdis. The trial court apparently endorsed this theory, summarily granting summary judgment to IIC. Held:

1. Scruggs maintains the trial court erred in finding that IIC had no duty to defend Scruggs individually and d/b/a Scruggs Pallett. We disagree.

Decided August 5, 1998.

The policy clearly states, “Our payment of the liability insurance limits ends our duty to defend or settle.” Inasmuch as it is undisputed that IIC’s payment to Clowdis met the policy limits, this language appears to absolve IIC from its duty to defend here. See Anderson v. U. S. Fidelity &c. Co., 177 Ga. App. 520, 521 (339 SE2d 660) (1986) (terms of the policy determine insurer’s duty to defend).

Scruggs argues, however, that notwithstanding the plain language of the policy, IIC has a continuing duty to defend them because IIC gratuitously assumed their defense. We disagree.

The record clearly shows that IIC timely undertook their defense under a full reservation of rights which informed Scruggs that it had retained an attorney to seek a declaration on its duty to defend. IIC also notified Scruggs that it had retained another attorney to represent Scruggs in the subrogation case. These circumstances, among other things, distinguish the authority on which Scruggs relies. Compare Gibson v. Preferred Risk Mut. Ins. Co., 216 Ga. App. 871, 873 (456 SE2d 248) (1995). In light of Scruggs’ failure to present any evidence showing why the reservation of rights was invalid, we must reject his assertion that IIC had a continuing duty to defend. See Jacore Systems v. Central Mut. Ins. Co., 194 Ga. App. 512, 513 (1) (390 SE2d 876) (1990).

2. Scruggs contends that IIC’s duty to defend remained due to prejudice caused by IIC’s failure to include them in Clowdis’ release. Their failure to provide proof that they were excluded from the release forecloses this argument. They offer no record citation for the documents evincing that alleged fact and we are unable to find the release in the record on appeal. Court of Appeals Rule 27 (c) (3) (i); Barton v. State, 199 Ga. App. 363, 364 (3) (405 SE2d 92) (1991) (appellant bears the burden of affirmatively showing error by the record); Miller v. Tranakos, 198 Ga. App. 668, 671 (3) (402 SE2d 772) (1991). Moreover, this argument was not raised at the trial level and therefore is not preserved for review. Glisson v. Hosp. Auth. of Valdosta & Lowndes County, 224 Ga. App. 649, 655 (2) (481 SE2d 612) (1997).

Judgment affirmed.

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

Joseph M. Todd, for appellant.

Lane, O’Brien & Caswell, Stephen J. Caswell, David E. Keystone, Michael A. Penn, for appellee.

       IIC presented an affidavit from its vice-president attesting that a full and complete release of all claims was obtained. In its brief, IIC asserts that Scruggs defendants were included in the release.


author: Pope, Presiding Judge.

text:
    A98A1347.
    In the Interest of E. D. T., a child.
    (505 SE2d 516)
   Pope, Presiding Judge.

Appellant Diaz, the biological father of E. D. T., appeals from the juvenile court’s order terminating his parental rights. We affirm.

E. D. T. was placed into the care of the Department of Family & Children Services (the “Department”) on August 14, 1994 after E. D. T. was taken to a hospital by a maternal uncle and neither of E. D. T.’s parents appeared to claim the child. At the time, Diaz was incarcerated on drug trafficking charges, and the mother could not be located. Diaz attended the initial deprivation hearing and signed a case plan on August 29, 1994 which indicated, among other things, that Diaz needed to legitimate E. D. T. Diaz has not seen the child or had any further contact, other than speaking with the child’s caseworker, since 1994. Diaz acknowledged that the caseworker had been telling him since 1994 that he needed to file proceedings to legitimate E. D. T.

The Department filed a petition to terminate parental rights on April 27, 1997. On May 8, 1997, Diaz was personally served with a copy of that petition, which contained the notice required under OCGA § 15-11-83 informing him that he would lose all rights to his child and would not be entitled to object to the termination of his rights unless he filed a petition to legitimate E. D. T. within 30 days from his receipt of the petition. Diaz has never filed a petition to legitimate his child.

At the time of the hearing in July 1997, Diaz was still incarcerated on drug charges and had a maximum release date on his 12-year sentence of 2006, with the possibility of parole in 1998. The juvenile court terminated Diaz’s parental rights pursuant to OCGA § 15-11-83 (h) for failing to file a petition for legitimation and further found that the parent’s conviction for drug trafficking and possession, and his continued incarceration, have had a demonstrable negative effect on the quality of the parent-child relationship, citing OCGA § 15-11-81 (b) (4) (B) (iii). Diaz contends that the juvenile court’s order violated his right to due process of law by terminating his parental rights without clear and convincing evidence.

Decided August 5, 1998.

Deborah M. Lubin, for appellant.

Thurbert E. Baker, Attorney General, William C. Joy, Dennis R. Dunn, Senior Assistant Attorneys General, Shalen A. Sgrosso, Stephanie M. Baldauff Assistant Attorneys General, Nardone & Read, Robert G. Nardone, Jenkins & Nelson, John C. Shelton, Dorothy V. Murphy, for appellee.

The Georgia Code sets out specific procedures to be followed with regard to biological fathers in termination proceedings. OCGA § 15-11-83. A biological father, who is not a legal father, is to be given notice in connection with the petition for termination of parental rights. OCGA § 15-11-83 (e). The notice must spell out that he has 30 days in which to institute a proceeding to legitimate his child and to give notice of the legitimation proceeding to the court, or he will forfeit his right to object to the termination of his parental rights. OCGA § 15-11-83 (g). If the biological father fails to take these steps, the Code clearly states that “he loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the termination of his rights to the child.” OCGA § 15-11-83 (h).

Diaz received the required notice, but failed to take the required action. The juvenile court correctly terminated Diaz’s parental rights. See In the Interest of D. B. G., 226 Ga. App. 29, 30 (2) (485 SE2d 575) (1997).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       The hearing on the petition for termination in this matter was held before the 1997 amendment to the statute became effective on January 1, 1998. That amendment re-wrote and re-numbered several provisions of the statute. Under the current version, the applicable provision would be OCGA § 15-11-83 (i) (1).

       The version of the Code applicable to this case provided that such notice should be made by registered or certified mail, return receipt requested. Although Diaz received the required notice through personal service, he does not contest the form of the notice, or dispute that he received such notice. The current version of the statute specifically provides that such notice can be made through personal service. OCGA § 15-11-83 (f) (2).

       Now OCGA § 15-11-83 (h).

       Moreover, Diaz knew as early as 1994 that he needed to file a petition to legitimate E. D. T., but did nothing over the intervening three years. His argument that he thought he was the legal father because his name appeared on the child’s birth certificate thus is without merit. Further, his incarceration is no excuse for his inaction. Diaz filed several motions with the juvenile court in connection with these proceedings while incarcerated.


author: POPE, Presiding Judge.

text:
    A98A1379.
    PATTERSON v. THE STATE.
    (505 SE2d 518)
   POPE, Presiding Judge.

Tony Patterson appeals from his statutory rape and child molestation convictions.

1. Patterson argues the evidence was insufficient to support the convictions because the victim’s testimony was uncorroborated by other evidence. As to the child molestation conviction, this argument is without merit because “[t]here is no requirement that the testimony of the victim of child molestation or aggravated child molestation be corroborated.” (Citations and punctuation omitted.) Turner v. State, 223 Ga. App. 448, 449 (1) (b) (477 SE2d 847) (1996). As to the statutory rape conviction, Patterson is correct in noting that such a conviction shall not be had on the uncorroborated testimony of the victim. See OCGA § 16-6-3 (a). But Patterson is incorrect in claiming that the victim’s testimony in this case was not corroborated.

The victim testified that Patterson, a janitor at the victim’s school, had sexual intercourse with her in the school building when she was 14 years old. In support of this testimony, the state introduced letters in which the victim wrote to two friends that Patterson had sexual intercourse with her at the school; the state presented the victim’s videotaped statement given to the police; a counselor testified that the victim had discussed the sexual assault with her; the doctor who examined the victim a month after the rape testified that the victim said she had been raped by the janitor at her school; and a psychotherapist gave her opinion that the victim’s behavior was consistent with the child sexual abuse syndrome.

“The quantum of corroboration needed in a rape case is not that which is in itself sufficient to convict the accused, but only that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.” (Citations and punctuation omitted.) Byars v. State, 198 Ga. App. 793 (1) (403 SE2d 82) (1991). In the instant case, the victim’s trial testimony was sufficiently corroborated by her prior consistent statements, both verbal and written, and by the psychotherapist’s testimony that the victim showed signs of the sexual abuse syndrome. Byars v. State, supra; Long v. State, 189 Ga. App. 131, 132 (1) (375 SE2d 274) (1988).

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. [Cit.]” Ogles v. State, 218 Ga. App. 92, 93 (2) (460 SE2d 866) (1995). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Viewed in the light most favorable to the verdict, the evidence in the present case was sufficient to support the statutory rape and child molestation convictions. See Wallace v. State, 228 Ga. App. 686, 687 (1) (492 SE2d 595) (1997).

2. Patterson contends the trial court erred in prohibiting him from presenting evidence that the victim’s family and friends did not believe her statements about the sexual assault. This contention is without merit. Credibility of a witness is a matter solely within the province of the jury. OCGA § 24-9-80; State v. Oliver, 188 Ga. App. 47, 50 (2) (372 SE2d 256) (1988). Because Patterson in effect sought to invade the province of the jury by soliciting the opinion of the victim’s friends and family about the victim’s credibility on the ultimate issue in the case, the court did not abuse its discretion in prohibiting such opinion evidence. See Nichols v. State, 221 Ga. App. 600, 603 (5) (473 SE2d 491) (1996); Bogan v. State, 206 Ga. App. 696, 698 (2) (426 SE2d 392) (1992).

3. Patterson objects to the trial court’s failure to strike a juror for cause after she indicated she could not be impartial due to a prior sexual assault on a friend. Patterson, however, did not raise this objection in the trial court and therefore failed to preserve it for appeal. Clay v. State, 214 Ga. App. 160, 161 (2) (447 SE2d 156) (1994). Even if the objection were properly preserved, it is clear from the record that the court committed no error in not striking the juror because she ultimately agreed that she could decide the case based solely on the evidence and the law. “The fact that a potential juror may have some doubt about [her] impartiality or complete freedom from all bias does not demand as a matter of law that the juror be excused for cause. Because the record does not demonstrate that the juror’s opinion was so fixed and definite that it would not be changed by the evidence or the charge of the court upon the evidence, we cannot say that the trial court abused its discretion in declining to strike the juror for cause.” (Citations and punctuation omitted.) Nichols v. State, 221 Ga. App. at 601 (2). See Gibbins v. State, 229 Ga. App. 896, 898-899 (3) (495 SE2d 46) (1997).

4. Patterson argues the trial court erred in refusing to give his requested charge, that the parties in a criminal case have a constitutional right to confront and cross-examine the witnesses against them. “This request states a constitutional principle and is not required to be given as an instruction by the court to the jury. It was not error to refuse to give the requested charge.” Wright v. State, 254 Ga. 484, 488 (4) (330 SE2d 358) (1985).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

Decided August 5, 1998.

Paul J. McCord, for appellant.

J Torn Morgan, District Attorney, Sheila A. Connors, Barbara B. Conroy, Assistant District Attorneys, for appellee.


author: Johnson, Presiding Judge.

text:
    A98A0800.
    BURKE v. THE STATE.
    (505 SE2d 528)
   Johnson, Presiding Judge.

Patrick Burke was charged by accusation with driving under the influence to the extent he was a less safe driver and making an improper left turn. At the close of evidence, the trial court directed the jury to enter a verdict of guilty on the improper turn charge. The jury did so and also found him guilty on the DUI charge. Burke appeals from the convictions entered on the guilty verdicts.

1. Burke correctly asserts, and the state concedes, that the trial court erred in directing a verdict of guilty on the improper turn charge. The court cannot direct a jury to return a verdict of guilty no matter what the law or evidence would require. Johnson v. State, 223 Ga. App. 294, 295 (1) (477 SE2d 439) (1996). The judgment of conviction and sentence on the charge of improper turn is therefore reversed.

2. We are not persuaded by Burke’s argument that because proof that he made an improper turn was required to prove he was a less safe driver, reversal of the improper turn conviction requires a reversal of the DUI conviction. “OCGA § 40-6-391 (a) (1) makes it unlawful for a person to drive or be in actual physical control of any moving vehicle while under the influence of alcohol to the extent it is less safe for the person to drive. There is no requirement that the person actually commit an unsafe act.” (Citation and punctuation omitted.) Apperson v. State, 225 Ga. App. 804, 805 (2) (484 SE2d 739) (1997); see Shannon v. State, 205 Ga. App. 831, 833 (4) (424 SE2d 51) (1992). Therefore, proof that he turned illegally was not critical to establish that he drove while under the influence of alcohol when it was less safe to do so. See Ayers v. City of Atlanta, 221 Ga. App. 381 (1) (471 SE2d 240) (1996) (person may be convicted of less safe driver offense though acquitted on traffic offense).

Here there was sufficient evidence, other than that introduced to establish the improper turn, to support a finding by a rational trier of fact that it was less safe for Burke to drive. The arresting officer testified that he saw Burke abruptly turn left from a right turn only lane in front of another vehicle and nearly cause an accident. The officer activated his emergency lights and siren. Burke continued driving but eventually stopped the car. Upon approaching the car, the officer noticed an odor of alcohol on Burke’s breath and that he had bloodshot and glossy eyes. Burke told the officer he had consumed one or two beers. A breath test administered at the scene indicated a positive result for alcohol. Burke failed the HGN, walk and turn, and one-legged stand tests. Burke took the stand on his own behalf and admitted that he had consumed two beers and that he turned in front of another car to make a left turn from the right lane. Whether Burke’s turn was legal or illegal, his conviction of DUI was authorized by the evidence and is unaffected by the reversal of the improper turn conviction. See generally In the Interest of C. P. M., 213 Ga. App. 761, 762-763 (446 SE2d 242) (1994).

Decided August 6,1998.

Conrad & Abernathy, H. Stephen Abernathy, Eric A. Ballinger, for appellant.

G. Channing Ruskell, Solicitor, Barry W. Hixson, Assistant Solicitor, for appellee.

3. Burke’s contention that the trial court erred in refusing to give his requested charge based on OCGA § 40-6-392 (a) (1) (A) is without merit. The statute at issue deals with the admissibility of chemical test results. See OCGA § 40-6-392 (a). The determination of whether evidence should be admitted pursuant to OCGA § 40-6-392 (a) (1) (A) is never a jury question. Gaston v. State, 227 Ga. App. 666, 670 (490 SE2d 198) (1997). The only relevant issue for the jury was the weight to give that evidence. See Beaman v. State, 161 Ga. App. 129, 130-131 (3) (291 SE2d 244) (1982). The trial court did not err in refusing to instruct the jury as to the foundation requirements of the statute.

Judgment affirmed as to driving under the influence conviction. Judgment reversed as to improper turn conviction.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0824.
    PALMER v. THE STATE.
    (505 SE2d 527)
   Judge Harold R. Banke.

Leonard Palmer entered a negotiated plea to a burglary charge and received a five-year sentence. In his sole enumeration, Palmer challenges the denial of his motion to withdraw the plea, arguing that (1) it was not freely and voluntarily entered into and (2) he was not in fact guilty.

Before the plea hearing, Palmer completed a written voluntariness questionnaire under oath with his appointed attorney’s assistance. In it, Palmer waived his right to remain silent and admitted his guilty plea was not coerced or motivated by threats or promises unrelated to the plea negotiations. To an inquiry as to his guilt, Palmer responded, “Alford plea (best interest).”

Prior to accepting the plea and imposing sentence, the trial court established the existence of a factual basis for the plea and assured its voluntariness. At the hearing, Palmer testified that he and his lawyer had gone over the questionnaire, and the answers were truthful and his own. The trial court then imposed the negotiated sentence.

Six days after this hearing, Palmer filed a pro se document seeking consideration of the sentence based on ineffectiveness grounds. A week later, he moved to set aside the conviction. The trial court appointed counsel, who then moved to withdraw the plea. After a hearing, the trial court denied the motion. Held:

Guilty pleas challenged after the imposition of sentence may be withdrawn only to correct a manifest injustice. Williams v. State, 221 Ga. App. 291, 293 (1) (470 SE2d 922) (1996) (physical precedent only); Uniform Superior Court Rule 33.12. Because the plea engendered no manifest injustice and the State met its burden of showing that it was intelligently and voluntarily entered into, the trial court did not abuse its discretion in denying Palmer’s motion to withdraw his plea. Moore v. State, 225 Ga. App. 860, 861-862 (2) (485 SE2d 552) (1997); see Williams, 221 Ga. App. at 292.

Notwithstanding Palmer’s claim of innocence and his dissatisfaction with the plea, the record from the plea hearing establishes that he entered into the plea voluntarily with full understanding of what he was doing. See Thornton v. State, 180 Ga. App. 274, 275 (349 SE2d 23) (1986). At the motion to withdraw hearing, Palmer’s former counsel disclosed his reasoning for advising Palmer to plead guilty, testifying that after an early morning burglary at a local tavern, police arrested Palmer at the scene near a cache of liquor bottles. Palmer’s fingerprints were found on one of the liquor bottles and on a shard of glass broken when the burglar entered the establishment. Former counsel also testified that he spent several hours investigating Palmer’s criminal history, learning Palmer had over 50 out-of-state arrests on 130 charges, some of which involved thefts. Former counsel testified that he explained to Palmer that with this record a recidivist sentence of 20 years would likely be imposed if a trial resulted in a guilty verdict. Former counsel also testified that Palmer expressed his intent to withdraw the plea even before it was entered. At the hearing, Palmer admitted that he had previously told the judge that his plea was not coerced, but denied committing the crime.

In light of this testimony and the record before us, we must uphold the trial court’s conclusion that Palmer’s plea was voluntary. We find no manifest injustice in the trial court’s denial of the motion to withdraw. See State v. Evans, 265 Ga. 332, 336 (3) (454 SE2d 468) (1995).

Decided August 6, 1998.

C. Jackson Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Barbara S. Foster, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.


text:
    A98A1403, A98A1404.
    GRIMSLEY v. THE STATE (two cases).
    (505 SE2d 522)
   Johnson, Presiding Judge.

Wesley Luke Grimsley and Regina Lee Grimsley appeal their convictions of five counts of child molestation. Regina Grimsley also appeals her additional conviction of one count of aggravated child molestation. The five counts of child molestation arise from Wesley and Regina Grimsley having sexual intercourse in the presence of five children between the period January 1, 1994 and July 24, 1996. The children were approximately nine to fourteen years of age at the time. The Grimsleys were the parents of two of the children, W. and J. Two of the children, C. and A., were the nephew and niece, respectively, of Wesley Grimsley. The third child, C. P. E., apparently was not related to the Grimsleys. The aggravated child molestation charge arises from Regina Grimsley committing an act of oral sodomy with one of the female children during the same time period.

Case No. A98A1403 (Regina Grimsley)

Similar Transaction Evidence. Regina Grimsley’s sole contention is that the trial court erred in admitting evidence of similar transactions which occurred between herself and some of the child victims. She cites no cases in support of her contention. Rather, she argues that the alleged similar transaction evidence was so vague as to time, place, and circumstances as to make it impossible for her to contest it; that it was inherently unfair to offer the evidence as similar transaction evidence rather than indicting her for it because it lessened the burden of proof; and that it violated due process and was a breach of the trial court’s discretion to allow the similar transaction evidence to be admitted when the state could have sought an indictment for such conduct thereby requiring its proof beyond a reasonable doubt. As these are the only grounds argued in support of this enumeration of error, all other grounds for error are deemed abandoned, including any contention that the evidence at issue failed to meet the test of Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991), or that the court erred either in giving a charge on similar transactions or as to the substance of such charge. Court of Appeals Rule 27 (c) (2); see Cole v. State, 211 Ga. App. 236, 237 (438 SE2d 694) (1993); Wells v. State, 208 Ga. App. 298, 300 (2) (a) (430 SE2d 611) (1993).

We first address Regina Grimsley’s argument that it is inherently unfair and violates due process for the court to allow conduct to be admitted as similar transaction evidence when the state could have sought an indictment for such conduct. Her assertion of this particular error, unsupported by any citation of legal authority is far from persuasive, as it is a general rule under Georgia law, that the decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor’s discretion. Noeske v. State, 181 Ga. App. 778, 779 (1) (353 SE2d 635) (1987). This Court presumes the trial court’s decision is correct, and decisions will not be reversed on argument of error not supported by authority, if authority is available, unless error is apparent without further research. In the case before us, no error is apparent. See Hertz Corp. v. McCray, 198 Ga. App. 484, 487-488 (4) (402 SE2d 298) (1991); Mattox v. MARTA, 200 Ga. App. 697, 700 (8) (409 SE2d 267) (1991). Furthermore, nothing in this record suggests that the prosecutor abused his discretion in electing not to prosecute the unindicted offenses here at issue.

Ms. Grimsley also contends that the similar transaction evidence was too vague. The notice of the state’s intent to present evidence of similar transactions asserted that Regina and Wesley Grimsley, acting together as parties to the crime, between January 1, 1993 and July 24, 1996, in Baldwin County, repeatedly engaged in sexual intercourse in the presence of J. and W. The notice further listed by name the persons who witnessed these similar transactions. This was adequate to place Ms. Grimsley on notice as to the type of evidence sought to be introduced by the state. At trial, the state introduced the following similar transaction evidence: K. G. testified that the victim, J., had repeatedly told her she had watched the Grimsleys have sex, and K. G. had repeatedly removed the victims, J. and W, from the immediate vicinity where the Grimsleys were having sex. A. F., a victim, testified she once removed J. and W. from the Grimsleys’ bedroom when the couple was having sex. A. F. also testified that J. told her that she had seen her parents having sex. C. G. testified that, when she was 14 years old, she heard the Grimsleys having sex in the bedroom of their house and she also heard J. and W. playing in that same bedroom while the sex act was occurring. About ten or fifteen minutes later, C. G. saw the Grimsleys and the two children come out of the bedroom.

It is immaterial to this particular enumeration of error whether the trial court admitted this evidence as similar transaction evidence. Each count of the indictment averred that the child molestation being charged occurred between January 1, 1994 and July 24, 1996. However, the dates in the various counts of the indictment were not averred to be material. “The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” (Citation and punctuation omitted.) Martin v. State, 196 Ga. App. 145, 146 (1) (395 SE2d 391) (1990). Thus, evidence of Ms. Grimsley’s guilt was not restricted to the time periods averred in the indictment, but could extend to any appropriate date prior to the dates in the indictment but within the statute of limitation period for the prosecution of the particular offense charged. Id. Ms. Grimsley concedes the similar transaction testimony pertained to alleged conduct which would have been within the statute of limitation for child molestation. Accordingly, K. G.’s, C. G.’s and A. F.’s testimony regarding sexual acts committed in the presence of the children by the Grimsleys was admissible not merely as similar transaction evidence but as direct evidence of the crime charged. See OCGA § 24-1-1 (3); Martin, supra.

The testimony of K. G. and A. F. regarding statements made by J. about seeing her parents engaged in sex was admissible as res gestae evidence. OCGA § 24-3-3. Moreover, although J. and W., who are mentally retarded, were not called as state witnesses, they were available to be called as witnesses. Thus, the statements attributed to J. by K. G. and A. F. were admissible pursuant to OCGA § 24-3-16. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose. [Cits.]” Boatright v. State, 192 Ga. App. 112, 116-117 (6) (385 SE2d 298) (1989). We will not reverse the correct ruling of a trial court regardless of the reason for that ruling given by the trial court. Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649) (1993). The trial court did not err in admitting the similar transaction evidence.

The transcript contains admissible evidence of the Grimsleys’ acts of sexual intercourse in the presence of children, of open and inappropriate sexual activity by J. and W. observed by others, and of Ms. Grimsley’s affirmative admission in open court that W. put her mouth on Ms. Grimsley’s “private parts.” Thus, the similar transaction evidence here at issue could not have shocked the jury, or made it highly probable that its admission contributed to the verdict, given all the sordid details of this case. See Tuggle v. State, 211 Ga. App. 854, 857 (2) (d) (440 SE2d 740) (1994). See also Griffin v. State, 221 Ga. App. 138, 141 (3) (470 SE2d 744) (1996) (physical precedent only). Any error in the admission of the evidence here at issue would be harmless.

Case No. A98A1404 (Wesley Grimsley)

1. Sufficiency of Evidence. The transcript contains testimony that Wesley Grimsley engaged in acts of sexual intercourse with Regina Grimsley in the presence of the five child victims. However, Mr. Grimsley claims there exists no evidence of intent as required by OCGA § 16-6-4 (a). “The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. . . . Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6.” (Citations and punctuation omitted.) Branam v. State, 204 Ga. App. 205, 206 (1) (419 SE2d 86) (1992). Although Mr. Grimsley contends that he did not have the requisite criminal intent, it can be inferred from his act of openly engaging in sexual intercourse in the presence of children that he acted with the intent to arouse or satisfy his sexual desires. See Hathcock v. State, 214 Ga. App. 188, 190 (2) (447 SE2d 104) (1994) (jury could find intent from act of defendant of exposing himself to a child).

Mr. Grimsley also claims that he did not commit any immoral or indecent acts, as required by OCGA § 16-6-4 (a), because he engaged in sexual intercourse with his own wife in his own home. We reject this contention. The record establishes several instances where the Grimsleys engaged in sexual activity in the presence of their own two children, and that they engaged in sexual intercourse in the presence of the five children when the children were playing a video game in the living room of the Grimsleys’ home. The children left and went into another room when this occurred. By their open and intentional act of sexual intercourse in the presence of all five children, the Grimsleys converted their residence from a constitutionally protected zone of privacy into a public place where their consenting sexual activity, albeit between husband and wife, was transformed from acceptable and protected marital conduct into an immoral and indecent act within the meaning of OCGA § 16-6-4 (a). Cf. Greene v. State, 191 Ga. App. 149 (381 SE2d 310) (1989) (marital bedroom converted from private zone to a public place by nudity in the presence of children who were not members of household); McGee v. State, 165 Ga. App. 423, 424 (2) (299 SE2d 573) (1983) (public indecency committed by lewd conduct in privacy of victim’s apartment). We totally reject the argument that child molestation cannot occur in the privacy of the perpetrator’s home.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Hendrix v. State, 230 Ga. App. 604, 607 (5) (497 SE2d 236) (1998). Review of the transcript reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that both Wesley Grimsley and Regina Grimsley were guilty of the five counts of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Failure to Give Requested Charge. The trial court did not err in declining to give Wesley Grimsley’s written request to charge on specific intent. The requested charge reads that it is the specific intent to “sexually exploit” a young child’s “body” in some form that makes the immoral or indecent act particularly harmful. The word “exploit” is defined both as “to utilize” especially for profit and “to use selfishly for one’s own end.” Webster’s Encyclopedic Unabridged Dictionary (1989 ed.). The requested charge would also require the jury to acquit the defendant if it finds “that the defendant did not have the specific intent to arouse or satisfy his sexual desires through the medium of using a young child’s body,” when defendant engaged in sexual intercourse in the presence of a child or children under 16 years of age. (Emphasis supplied.)

Viewed in its entirety, the requested charge would be confusing and potentially misleading to the jury. A defendant need not have intended to actually use the child’s body in some physical capacity in order to commit an act of molestation. It is sufficient if a person utilizes or capitalizes on a child’s mere presence as a witness to the person’s intentional immoral or indecent act, provided the act is accomplished “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a); see generally Gunter v. State, 215 Ga. App. 517 (451 SE2d 108) (1994) (defendant convicted of child molestation for exposing himself to a nine-year-old girl); Jordan v. State, 230 Ga. App. 560 (497 SE2d 48) (1998) (defendant convicted of child molestation for masturbating in his car in front of a group of young girls).

A request to charge must itself be correct, and even perfect; otherwise, the trial court’s refusal to give it will not be cause for reversal. See Lubiano v. State, 192 Ga. App. 272, 275 (2) (a) (384 SE2d 410) (1989). A trial court does not err when it refuses to give a confusing or misleading instruction. Jones v. State, 200 Ga. App. 519, 521 (2) (c) (408 SE2d 823) (1991); accord Continental Research Corp. v. Reeves, 204 Ga. App. 120, 127 (3) (419 SE2d 48) (1992).

Decided August 6, 1998.

Reginald L. Bellury, for appellant (case no. A98A1403).

Robert M. Boulineau, for appellant (case no. A98A1404).

Fredric D. Bright, District Attorney, Dawn M. Baskin, Assistant District Attorney, for appellee.

Judgments affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Smith, Judge.

text:
    A97A0761.
    THE STATE v. JOHNSON.
    (504 SE2d 566)
    Decided August 7, 1998.

      Thurbert E. Baker, Attorney General, Michael E. Hobbs, Counsel to Attorney General, Stacey K. Hydrick, Assistant Attorney General, for appellant.

      J. Converse Bright, for appellee.
   Smith, Judge.

In State v. Johnson, 226 Ga. App. 836 (487 SE2d 677) (1997), we affirmed the trial court’s grant of Carolene Johnson’s plea to the jurisdiction and dismissal of the indictment against her. In State v. Johnson, 269 Ga. 370 (499 SE2d 56) (1998), the Supreme Court reversed the judgment of this Court. Accordingly, our prior judgment is vacated, the judgment of the Supreme Court is made the judgment of this Court, the trial court’s judgment is reversed, and this case is remanded to the trial court for further proceedings.

Judgment reversed and remanded.

McMurray, P. J., and Beasley, J., concur.


text:
    A98A0947.
    BRAY v. THE STATE.
    (505 SE2d 532)
   Smith, Judge.

Eugenia Bray was convicted by a jury of DUI, no proof of insurance, and violation of the open container law. Her motion for new trial as amended was denied, and she appeals. Bray’s principal contention is that the trial court erroneously refused to exclude her post-arrest statements. We find no reversible error and affirm.

Evidence presented at trial shows that Officer John Fox, an employee of the DeKalb County Department of Public Safety assigned to the local DUI Task Force, conducted a traffic stop involving Bray during the early morning hours of March 13, 1997. He stopped her car for failure to maintain lane and for a “tag light violation.” While talking with Bray, Fox noticed an odor of alcohol about her and asked her to submit to field sobriety evaluations. After talking with Bray at length and performing the evaluations, Fox concluded that Bray was less safe to drive and arrested her for DUI. The traffic stop, field evaluations, arrest, and conversation between Fox and Bray were captured on video and audio equipment used by Fox on the night of Bray’s arrest.

Although Fox read Bray her implied consent rights after arresting her, he did not inform her of her Miranda rights, and a statement he made to Bray after arresting her is the subject of this appeal. The videotape introduced into evidence shows that just after Fox placed Bray under arrest, Bray stated that she would agree to perform an alco-sensor evaluation. Fox told her that blowing into the alco-sensor was irrelevant since he had already arrested her. Bray commented that she would do anything not to go to jail, and Fox replied, “I’ve already said the magic words. It’s over with.” Bray asked, ‘Why?” and Fox told her, “[OJnce I’ve placed you under arrest, that’s it. Everything that’s said now unless I read you your Miranda rights is not even admissible in court. Anything we do right now is not admissible in court.” (Emphasis supplied.) With the exception of post-arrest statements made in response to direct questioning by Fox that were redacted from the videotape, the trial court permitted the jury to view the entire videotape, concluding that other statements on the tape were merely spontaneous statements which were not the result of police interrogation. Bray claims that all post-arrest statements made by her should have been excluded because they were made in reliance on the emphasized portion of this conversation. She argues that other statements made by her were “inherently prejudicial,” including her comments “that if she agreed to take the state administered blood test, it would show that she was ‘DUI.’ ”

We first note that Fox should have read Bray her Miranda rights once she was arrested. See State v. O’Donnell, 225 Ga. App. 502, 503-504 (484 SE2d 313) (1997). But Miranda warnings are not required for admission of all post-arrest statements; such warnings are necessary to admit statements made while a suspect is being interrogated while in custody. See, e.g., McClendon v. State, 201 Ga. App. 262, 264 (1) (b) (410 SE2d 760) (1991). And “the term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. ... A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation. But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response.” (Footnotes omitted; emphasis in original.) Rhode Island v. Innis, 446 U. S. 291, 301-302 (100 SC 1682, 64 LE2d 297) (1980).

In analyzing whether Fox’s comment that nothing she said or did could be used against her elicited Bray’s post-arrest statements, we note the context of the comment. It was made in response to Bray’s statements that she would blow into the alco-sensor and that she would “do anything” not to go to jail. It appears Bray may have been trying at that point to initiate some action that could show that she was not driving under the influence of alcohol and that Fox, obviously and understandably frustrated by Bray’s uncooperative behavior, tried to explain that her actions after arrest could not be used to help her in court. But whatever the reason for Fox’s remark, such a comment that her statements could not be used against her could well elicit an incriminating response from a suspect. Confessions admitted after similar statements by police have been held to be involuntary or inadmissible against the confessor. See Linares v. State, 266 Ga. 812, 814 (2) (471 SE2d 208) (1996); Porter v. State, 143 Ga. App. 640, 642 (2) (239 SE2d 694) (1977) (physical precedent only). But even though Fox erroneously made such a statement to Bray, we cannot say that the court’s refusal to suppress all post-arrest statements was reversible error.

In substance, with the exception of post-arrest comments redacted from the videotape, the statements made by Bray after arrest were the same as those made before arrest. Before Fox arrested Bray, she was talkative, repetitious, uncooperative, and at times acted confused. For example, although Bray performed field sobriety evaluations, she did so only after Fox asked her at least seven times whether she would submit to these evaluations. And several times during the conversation concerning the field sobriety tests, Bray asked Fox to give her “a break.” When Fox asked her questions, she often was silent, changed the subject, or answered him with other questions. Bray also expressed concern about going to jail. When Fox asked her to blow into an alco-sensor, she replied that she might go to jail if she did so. In addition, after Bray finally agreed to submit to field sobriety tests, she did not perform the “walk and turn” evaluation, telling Fox that the evaluation would be hard to do even if sober.

Decided August 7, 1998.

Robert W. Chestney, Tracy M. Delgado, for appellant.

After Bray was arrested, she continued to be uncooperative. Fox read Bray’s implied consent rights and asked whether she wished to submit to a state administered blood test, and she again replied by asking him to give her “a break.” Just as Fox asked Bray several times whether she would submit to field sobriety evaluations, he asked her many times whether she desired to take the blood test. Again, as before her arrest, Bray answered Fox’s questions either with silence or other repetitive questions. Also, several times after Fox asked Bray whether she wished to take the test, she stated that she did not know “what to say” and even asked Fox what she should do and expressed concern about going to jail. We note that before Bray refused the test, Fox twice told her that the results would be admissible in court. Bray twice asked Fox whether those results would “hurt” her case, and Fox acknowledged the “possibility” of such a result. After Fox asked Bray several times whether she wanted to submit to the blood test, Bray finally refused, stating that she “was going to jail anyway.”

Bray’s post-arrest statements were no more incriminating than those made before arrest. Although after arrest she expressed concern about going to jail and stated that taking the state-administered blood test could damage her case, she similarly stated before she was arrested that she might go to jail if she blew into the alco-sensor. Her pre-arrest statement that the walk and turn evaluation would be hard to do even if she were sober also was particularly incriminating. Bray’s post-arrest statements were merely cumulative of those made before arrest and likely did not contribute to the verdict. Under these circumstances, admission of the post-arrest statements constituted harmless error. See generally Hardin v. State, 269 Ga. 1, 4 (2) (b) (494 SE2d 647) (1998).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Margaret A. Dunaway, Assistant Solicitors, for appellee.

       Bray could not complete the alphabet and could not follow instructions when Fox administered the horizontal gaze nystagmus (HGN) evaluation.

       After Fox arrested Bray, he questioned her concerning the fact that her license had been restricted due to a hit and run accident. The court ruled that this portion of the videotape was inadmissible.


text:
    A98A1060.
    ROMINES v. THE STATE.
    (505 SE2d 530)
   Smith, Judge.

Edward Romines was charged with one count of burglary and three counts of entering an automobile. He was acquitted of one count of entering an automobile and convicted of the remaining counts. His motion for new trial was denied, and he appeals. We find no error and affirm.

1. Romines contends the evidence was insufficient to convict him of burglary. Construed to support the verdict, the evidence showed that during the early morning hours of June 11, 1994, the home of Edward and Nancy Gray was burglarized and a VCR taken. Mrs. Gray testified that she awoke around 4:10 a.m. As she walked through her house, she saw that her VCR was missing and noticed an odor of gasoline inside the house. She also found her front door ajar. When she looked outside, she saw that the dome light inside her car was on. She found the automobile’s gas tank open, the glove compartment “ripped apart,” and ten dollars missing from the car. A pouch containing documents including Mrs. Gray’s insurance cards was also taken from the car. Mr. Gray also testified, stating that he awoke that night to the sound of a truck with a loud muffler and someone running through his house. He, too, noticed the smell of gasoline, and the gas cap on his car was removed as well. He stated that whoever entered his home did not have permission to be there.

On that same morning around 5:30 a.m., Robin Arthur heard a noise outside his home, looked out a window, and noticed a man inside his car. Arthur then walked outside and began wrestling with this man, who ran away. Immediately after the man ran away, Arthur discovered Romines asleep inside a truck in his driveway. Although Arthur could not positively identify the man he observed inside his car, he did state that Romines was not that individual. The police were summoned to Arthur’s house, where they discovered the Grays’ VCR in the back of the truck. Romines appeared to be “asleep or pretending to be asleep” inside the cab of the truck when they arrived. Officers smelled alcohol and gasoline on Romines’s person and noticed that his pants legs were wet up to his knees as if he had been walking in wet grass. Romines testified, stating that he was intoxicated on the night of June 11,1994 and remembered little other than being sick that night. He did not remember going to either Arthur’s or the Grays’ home. He offered no explanation for the stolen property in the truck.

“Although the evidence of recent, unexplained or unsatisfactorily explained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary, the sufficiency of the evidence to support the conviction must still be adjudged by the totality of the evidence under the reasonable doubt standard applied in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)].” (Citation, punctuation and emphasis omitted.) Funderburk v. State, 195 Ga. App. 441, 442 (2) (393 SE2d 727) (1990). And “[w]hether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation. What constitutes recent possession is in all cases a jury question.” (Citations and punctuation omitted.) Id. See also Hanson v. State, 229 Ga. App. 205, 206 (1) (493 SE2d 605) (1997).

In addition to the inference created by Romines’s recent unexplained possession of property stolen from the Grays’ home, other circumstantial evidence of his guilt was presented. The Grays both testified that they noticed an odor of gasoline inside their home, and Romines smelled of gasoline when police officers discovered him. Also, Mr. Gray testified that the vehicle that awoke him had a loud muffler, and Romines admitted that the muffler on the truck he was driving was loud and needed repair. “To support the verdict, circumstantial evidence must only exclude reasonable hypotheses; it need not exclude every inference or hypothesis except that of the defendant’s guilt.” Funderburk, supra at 443 (2). The trial court properly charged the jury on circumstantial evidence, and viewing this evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found that the evidence excluded every reasonable hypothesis except that of Romines’s guilt. See Funderburk, supra; Hanson, supra.

2. Romines testified that he was intoxicated on June 11 and did not remember giving a statement. The trial court found from a preponderance of the evidence that he had been advised of his Miranda rights, was coherent, understood his rights, voluntarily waived those rights by signing the waiver, and gave his statement freely and voluntarily. Romines contends the admission of this statement was error.

The detective who took the statement, Anthony Peters, testified during the Jackson-Denno hearing that he talked with Romines about eight hours after he was arrested and advised Romines of his Miranda rights. According to Peters, he offered no kind of hope or benefit to Romines if he signed the waiver form. Peters stated that Romines signed the form, did not appear to be intoxicated, and seemed to understand his rights. He even asked Romines to read a portion of the Miranda waiver form so that he could be sure that Romines could indeed read.

Decided August 7, 1998.

Weems & House, Brian M. House, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth A. Over-camp, Assistant District Attorney, for appellee.

“ ‘A trial court’s findings as to factual determinations and credibility relating to the admissibility of an appellant’s pretrial statement will be upheld on appeal unless clearly erroneous.’ [Cit.]” Funderburk, supra at 442 (1). Because we cannot say that the trial court as factfinder and judge of witness credibility clearly erred in accepting Peters’s account of the circumstances surrounding Romines’s statement, we conclude that the trial court did not err in admitting that statement. Jones v. State, 226 Ga. App. 619, 622 (5) (487 SE2d 371) (1997).

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1081.
    THOMPSON v. THE STATE.
    (505 SE2d 535)
   Smith, Judge.

This appeal involves the issue of the intent required to violate OCGA § 16-8-15, conversion of payments for real property improvements. Fred Thompson III was indicted in Dodge County for violating that statute. He was found guilty after a bench trial, and his motion for new trial was denied. Thompson contends on appeal that the statute requires specific intent to defraud, contrary to the trial court’s ruling, and that the State failed to prove that intent beyond a reasonable doubt. We agree, and we reverse Thompson’s conviction.

The evidence presented at trial showed that the owner of a building in Eastman was remodeling the building for a restaurant and hired Thompson to perform stucco work. He paid Thompson in full for the labor and materials. He had no complaint with Thompson; the work was done. No dispute exists that, to do the work, Thompson arranged with Joe Yearty, Jr., a ceiling contractor, to have Yearty purchase the materials needed for the stucco work. He did this because Yearty had an account at a building supply store, and Thompson did not. Yearty purchased the materials and delivered them to Thompson. The dispute arose between Yearty and Thompson when Thompson refused to pay Yearty for the materials, claiming he was setting off a debt Yearty owed him for work Thompson performed for Yearty on a previous job.

Decided August 7, 1998.

OCGA § 16-8-15 (a) provides, in pertinent part, that “[a]ny . . . contractor . . . who with intent to defraud shall use the proceeds of any payment made to him on account of improving certain real property for any other purpose than to pay for labor or service performed on or materials furnished by his order for this specific improvement while any amount for which he may be or become liable for such labor, services, or materials remains unpaid commits a felony and, upon conviction thereof, shall be punished by imprisonment for not less than one year nor more than five years or upon the recommendation of the jury or in the discretion of the trial judge, punished for a misdemeanor. . . .”

The trial court recognized that this case was “akin . . . to a civil action,” and that “[sjometim.es it’s a difficult matter to decide what is properly in criminal court and what is properly in civil court.” But the trial court reasoned that Thompson was guilty of violating the statute because “it is not the fact Mr. Thompson intended to violate the criminal statute that he is charged with but that he intended to do the act which happens to be against the law. That’s the intent that’s required.” The trial court erred. It is clear that OCGA § 16-8-15 requires not only the general intent required in all criminal statutes but also a specific intent to defraud.

Subsection (b) of the statute provides that “[a] failure to pay for material or labor furnished for such property improvements shall be prima-facie evidence of intent to defraud.” But the presumption created by the statute is a permissive presumption, not a conclusive one. State v. Hudson, 247 Ga. 36, 38 (273 SE2d 616) (1981). “[Tjhe duty still devolved upon the state to prove every element of the crime charged beyond a reasonable doubt,” id., including the specific intent to defraud. We cannot agree that it did so.

Both Yearty and Thompson testified that Thompson believed Yearty owed him money. Thompson testified unequivocally that he withheld payment from Yearty as “an off-set bill” and that it was never his intention to steal. As the trial court stated, it is indeed difficult sometimes to discern whether a particular matter is civil or criminal. In this case, however, the trial court erred as to the intent required by the statute. And because we conclude, notwithstanding the statutory presumption, that the required specific intent was not proved by the State beyond a reasonable doubt, Thompson’s conviction must be reversed.

Judgment reversed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.

Straughan & Straughan, Mark W. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell R Spivey, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A98A1151.
    NEWMAN v. THE STATE.
    (504 SE2d 476)
   Blackburn, Judge.

James Newman appeals his conviction of two counts of child molestation, asserting numerous errors. For the reasons discussed below, we affirm.

1. Newman contends that the evidence was insufficient to support the convictions. “On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld. The testimony of a single witness is generally sufficient to establish a fact.” (Punctuation omitted.) Jessup v. State, 224 Ga. App. 176, 177 (480 SE2d 232) (1996).

Viewed in the light most favorable to the verdict, the evidence shows that, in January and February 1997, Newman often stayed at the home of his daughter and nine-year-old granddaughter. During this period,'he would sometimes sleep in the same bed with his granddaughter. The granddaughter testified that, while she pretended to be sleeping, Newman would pull up her nightgown and rub her vagina and breasts with his hand. Sometimes he would take off her panties. She testified that she eventually told her mother about the touchings, and that she also told Laura McElrath, a detective for the Gordon County Sheriff’s Department.

McElrath testified that she interviewed the victim on February 19, 1997. A videotape of the interview was introduced into evidence and played for the jury. The victim’s statements in the interview were consistent with her trial testimony that Newman touched her private parts while in her bed.

The State also presented evidence of a similar transaction in which Newman had previously molested another minor on numerous occasions by touching her vagina while giving her piggyback rides.

This evidence was sufficient to persuade a rational trier of fact of Newman’s guilt beyond a reasonable doubt of child molestation. See Kapua v. State, 228 Ga. App. 193, 194-196 (1) (491 SE2d 387) (1997).

2. Newman contends that the trial court erred by failing, during the Uniform Superior Court Rule 31.3 (B) hearing, to make an express determination that the probative value of the similar transaction evidence outweighed the prejudice to Newman. However, Newman made no specific objection to the similar transaction testimony on these grounds, either at the similar transaction hearing or when the testimony was offered at trial. Accordingly, he cannot raise this issue on appeal. See Garner v. State, 180 Ga. App. 146, 147 (1) (348 SE2d 690) (1986) (failure to make timely and specific objection to admission of prejudicial evidence constitutes waiver); Watson v. State, 230 Ga. App. 79, 82 (5) (495 SE2d 305) (1997).

To the extent that Newman is arguing that a trial court has an affirmative obligation, as part of the USCR 31.3 (B) similar transaction hearing, to make an express determination that the probative value of similar transaction evidence outweighs its prejudice to the defendant, he misunderstands the duties of the trial court in such hearing. The only issues required to be considered by the trial court in a similar transaction hearing are those set forth in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991): (1) whether “the state seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility,” (2) whether “there is sufficient evidence to establish that the accused committed the independent offense or act,” and (3) whether “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.”

It is true that, like any other evidence, the trial court has the discretion to exclude relevant similar transaction evidence on the grounds that its probative value is substantially outweighed by the danger of unfair prejudice. White v. State, 213 Ga. App. 429, 430 (1) (445 SE2d 309) (1994); Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993). However, this determination is not, strictly speaking, part of the Williams analysis, and the trial court is not obligated to make an express finding on this issue as part of the USCR 31.3 (B) hearing. In order to claim error in the introduction of unfairly prejudicial evidence, the defendant must make a proper objection on such grounds. See Garner, supra. As Newman failed to object to the introduction of the similar transaction evidence on these grounds, he has waived this issue on appeal.

3. At trial, the victim’s mother testified that, as a result of, among other things, publicity in the JonBenet Ramsey murder case, she asked her daughter whether anybody had bothered her, and that the daughter then told her about Newman’s actions. On cross-examination, Newman asked the following question: “And along with the JonBenet Ramsey matter that caused you to bring up this inquiry to [the victim] was conversations that you had with Laura Woods [the mother’s sister-in-law] about the visions or thoughts or dreams that Laura Woods had about James Newman with your daughter?” After the State raised a hearsay objection, Newman responded by stating that the conversation was relevant to show the mother’s actual reason for approaching her daughter. The court refused to allow the question, finding that the mother’s reason for approaching her daughter was not relevant. The court allowed Newman to ask whether conversations with Woods prompted the mother to ask the victim about any improper touching. In response to this question, the mother denied that any conversation with Woods prompted her to approach her daughter, noting that she seldom spoke with Woods. Newman now contends that the trial court erred in sustaining the State’s objection to his initial question.

The admission or exclusion of evidence on grounds of relevancy is within the sound discretion of the trial court, and such discretion will not be disturbed on appeal absent a clear abuse of discretion. Knapp v. State, 229 Ga. App. 175, 177 (2) (493 SE2d 583) (1997); O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985). Under the circumstances of this case, we cannot say that the trial court abused its discretion in sustaining the State’s objection to Newman’s question. Newman has not shown any basis for his contention that Woods in fact told the mother of “dreams” or “visions” she had had about Newman and the victim. The only support Newman cites for such a contention is a statement given by the mother to Officer McElrath, in which she referred to the JonBenet Ramsey case and stated that “I had been having a bad feeling and other people in the family been having bad feelings.” Nothing in this statement referred to a conversation with Woods or to any statement by Woods about dreams or visions. The mother specifically denied that any conversation with Woods prompted her to approach her daughter. In the absence of any factual basis for Newman’s question, the trial court did not abuse its discretion in sustaining the State’s objection.

4. Newman contends that the introduction of both a videotape and the live testimony of the victim was repetitious and prejudicial. This ground has been uniformly decided adversely to Newman. Price v. State, 220 Ga. App. 176, 178 (3) (469 SE2d 333) (1996); Guest v. State, 216 Ga. App. 457, 458-459 (3) (454 SE2d 622) (1995). The playing of the videotape of the interview does not constitute an impermissible bolstering of the victim’s testimony. Knight v. State, 210 Ga. App. 228, 230 (2) (435 SE2d 682) (1993).

5. Newman further contends that the trial court erred in allowing the jury, upon its request during deliberations, another viewing of the videotape. The replaying of evidence which the jury asks to hear is within the discretion of the trial court, and we cannot say that the trial court abused its discretion in this instance. Nelson v. State, 208 Ga. App. 671, 673 (4) (431 SE2d 450) (1993); Lee v. State, 259 Ga. 230, 232 (4) (378 SE2d 855) (1989).

Decided July 1, 1998

Reconsideration denied August 10, 1998

Jones & Ledbetter, Howard W. Jones, for appellant.

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

6. Newman contends that the trial court erred in failing to instruct the jury that the presumption of innocence stays with the defendant throughout the trial. However, the trial court correctly charged the jury on the presumption of innocence, and that such presumption remains until it is overcome by evidence sufficient to convince the jury that the defendant was guilty beyond a reasonable doubt. “This is a complete and accurate statement of law. It is no longer necessary to give the exact language of requests to charge when the same principles are fairly given to the jury in the general charge of the court.” (Punctuation omitted.) Guyton v. State, 206 Ga. App. 145, 147 (5) (424 SE2d 87) (1992).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.


text:
    A98A0817.
    CARNES v. WOODALL.
    (505 SE2d 537)
   Beasley, Judge.

Early one August morning Kenneth Carnes, a professional wheelchair racer, approached an intersection while propelling his wheelchair down a street during training. Betty Jean Woodall was traveling on the intersecting street and stopped her vehicle at the stop sign. When she pulled out, she collided with him because she did not see him.

Carnes sued Woodall for personal injuries and property damage but a jury rejected his claim. Carnes claims error in the admission of opinion testimony and testimony that Woodall did not receive a traffic citation.

1. The investigating officer appeared on the scene within 15 minutes of the accident. At trial he testified to Carnes’ dark training outfit, his dark low-profile wheelchair, the road, and the pre-dawn lighting conditions with cloud cover. Woodall asked the officer if, based on his observations, he had án opinion whether Carnes would have been visible to a driver in Woodall’s position. Over objection the officer testified that he did and that “[i]t was almost virtually impossible for Mrs. Woodall to have seen Mr. Carnes.”

Last year, the Supreme Court of Georgia synthesized the principles applicable to opinion testimony. “Properly qualified expert witnesses may render an opinion on any matter within their realm of expertise, so long as it is based upon conclusions drawn by the expert that the jury could not ordinarily determine for themselves. Expert opinions may be based upon facts proved by other witnesses. Lay witnesses, however, may state their opinion only when it is based upon their own observations, and a lay opinion is admissible only when it is necessary in order for the witness to convey those same observations to the jury. The opinion of a lay witness is not admissible when all of the facts and circumstances upon which it is based are capable of being clearly defined, so that the jury may readily reach its own opinion therefrom. Thus, the opinions of lay and expert witnesses are admissible under different circumstances, and for different purposes. . . .

“[I]n reviewing the admissibility of opinion testimony, an appellate court must assess the testimony in accordance with the appropriate standard. In reviewing the admissibility of expert opinion testimony, an appellate court must not use the standard assigned to lay opinion, and vice-versa.”

Woodall did not tender the officer as an expert and phrased the questioning so that it was based only on the officer’s personal observations at the scene that morning. The officer was thus testifying as a lay witness.

The Supreme Court reiterated the long-standing principle that “lay witnesses may relate their opinions as to the existence of a fact, so long as the opinion is based upon the witnesses’ own observations, and so long as the witness cannot adequately relate those observations to the jury without also relating a personal opinion formed through such observations.” This includes observations which “cannot be adequately described and presented to the jury with the same force and clearness as they appeared to the witness,” such as a person’s intoxicated state, an employee’s competence, or handwriting identity.

Based on these principles, Xiong v. Lankford, held that lay witnesses of a car-pedestrian accident could give opinion, based on their personal observations of complex lighting and road and other physical conditions, whether they would have been able to see the victim if they had been driving the car. Visibility was an issue.

McMichen v. Moattar held that a lay witness could testify whether the defendant could have avoided the collision. McMichen framed the test as whether the opinion is “readily ascertainable from [the witness’] description,” or whether the opinion is “an impression drawn from a totality of the circumstances.” This determination is for the trial court and will not be disturbed absent an abuse of discretion.

The investigating officer’s description of the pre-dawn lighting conditions and cloud cover did not make readily ascertainable whether Carnes in his dark clothing and in his dark low-profile wheelchair was visible to Woodall. Pre-dawn light and cloudiness are complex variables with degrees as to each. They are difficult to describe adequately to give the jury a clear mental picture of visibility. The jury is not able to stand in the same place at the same time to discern visibility themselves. But the disinterested observer on the scene could convey the fact by opinion from a totality of the then-existing circumstances. The court did not abuse its discretion in allowing the officer’s opinion even though there were photographs and a videotape of the intersection under similar light conditions.

This conclusion harmonizes with cases holding the investigating officer can testify to his observations and conclusions so long as he does not testify as to who he believed was at fault or caused the accident. That is the ultimate question for the jury to decide.

Decided August 10, 1998.

Webb & Lindsey, Eric K. Maxwell, for appellant.

Cooper & Avery, Gary M. Cooper, Ernest R. Bennett, Jr., for appellee.

2. Carnes claims that Woodall should not have been permitted to testify she received no traffic citation arising from the collision. Normally such testimony is inadmissible. Carnes immediately objected, and the court twice gave curative instructions to the jury to disregard the testimony.

“The issue is not properly before us because [Carnes] failed to renew his objection or move for a mistrial after the trial court’s curative instruction was given.” Carnes concedes on appeal he purposely did not ask for a mistrial because of the delay that would result. His tactic precludes consideration of a new trial at this far later stage.

Judgment affirmed.

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

       (Footnotes omitted.) Johnson v. Knebel, 267 Ga. 853, 855-856 (1) (485 SE2d 451) (1997); see OCGA §§ 24-9-65; 24-9-67.

       See American Golf Corp. v. Manley, 222 Ga. App. 7, 9 (3) (473 SE2d 161) (1996) (because witness was not offered as expert, his statement of opinion was reviewed under lay witness principles). Cf. Drummond v. Gladson, 219 Ga. App. 521, 522 (1) (465 SE2d 687) (1995) (implies that an investigating officer can testify as to his observations and conclusions only as an expert witness) (physical precedent only).

       (Footnote omitted.) Johnson, 267 Ga. at 856 (2).

       (Citation, punctuation and emphasis omitted.); see id. at fn. 10.

       226 Ga. App. 126, 127-129 (2) (485 SE2d 534) (1997).

       221 Ga. App. 230, 232 (2) (470 SE2d 800) (1996).

       Id.

        Xiong, supra, 226 Ga. App. at 129 (2).

       See Strickland v. Stubbs, 218 Ga. App. 279, 281 (4) (459 SE2d 473) (1995) (“a party-may ask the investigating officer what he observed at the scene of the accident and what he talked to witnesses about, but he may not inquire as to the officer’s ultimate opinion concerning fault, whether a citation was issued or there has been final disposition of the citation”) (citation omitted); Emory v. Dobson, 206 Ga. App. 482, 483-484 (426 SE2d 50) (1992) (“[t]he record reveals the officer was allowed to testify fully about what he observed at the accident scene and to opine based on that evidence about how the collision occurred. The trial court correctly prohibited the officer from opining concerning which party was at fault in the accident”). Compare McMichen, supra, 221 Ga. App. at 230-231 (1) (officer, testifying as expert, could not opine as to whether defendant contributed to or caused the accident); Smith v. Fee, 197 Ga. App. 483 (398 SE2d 801) (1990) (officer could not testify whether defendant’s actions contributed to the accident). See generally Xpress Cargo Systems v.

        McMath, 225 Ga. App. 32, 33 (2) (b) (481 SE2d 885) (1997) (doctor could testify to plaintiff’s visual impairment but could not testify to whether her vision was so impaired she could not drive safely).

       See Strickland, supra, 218 Ga. App. at 281 (4); Emory, supra, 206 Ga. App. at 483.

       (Citation omitted.) Jones v. State, 265 Ga. 84, 86-87 (5) (453 SE2d 716) (1995); see Weeks v. State, 268 Ga. 515, 516 (2) (491 SE2d 325) (1997) (“[I]f the trial court’s curative instructions were not sufficient, defendant should have sought additional relief. Absent any such motion or request by defendant. . . [no harm]”); Daniel v. State, 224 Ga. App. 673, 676 (6) (482 SE2d 409) (1997) (failure to request further instructions or to renew objection waives issue for appellate review).


text:
    A98A0892.
    POSTELL v. THE STATE.
    (505 SE2d 782)
   Johnson, Presiding Judge.

Timothy Postell was tried by a jury on charges of shoplifting and aggravated assault. The jury found him guilty of shoplifting but was unable to reach a verdict on the aggravated assault charge. The trial court entered a judgment of conviction as to shoplifting and declared a mistrial as to aggravated assault.

1. In two enumerations, Postell claims the trial court erred in denying his motion for directed verdict of acquittal as to aggravated assault because the state did not prove the elements of the offense beyond a reasonable doubt.

Ordinarily, neither the grant of a mistrial nor the denial of a motion for directed verdict of acquittal is directly appealable. See McCuen v. State, 191 Ga. App. 645 (382 SE2d 422) (1989); Phillips v. State, 153 Ga. App. 410 (265 SE2d 293) (1980). However, the issue raised in these enumerations is tied to a directly appealable judgment of conviction and is appealable pursuant to OCGA § 5-6-34 (d).

A motion for directed verdict of acquittal in a criminal case should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law; a challenge to the sufficiency of the evidence in connection with the denial of a directed verdict of acquittal is evaluated based on the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). King v. State, 230 Ga. App. 301, 305 (3) (496 SE2d 312) (1998). Viewed in the light most favorable to the prosecution, the evidence shows: A grocery store manager noticed Postell putting cartons of cigarettes into his pants. The manager and two other employees confronted him. Postell grabbed a 12-inch packaged knife from a display shelf, unwrapped it, and came toward the employees with the knife. Postell came within arm’s reach of one of the employees, pointing the knife and making jabbing motions. The employees backed away from him. Postell fled from the store and was apprehended shortly thereafter. There was more than sufficient evidence to withstand Postell’s motion for directed verdict. A rational trier of fact was authorized to find him guilty of aggravated assault beyond a reasonable doubt. See Jackson v. Virginia, supra; Slade v. State, 267 Ga. 868, 869 (1) (485 SE2d 726) (1997).

2. Postell contends the trial court permitted his character to be improperly injected into the trial. Specifically, he complains of a store employee’s testimony that Postell was acting “unusual” and another employee’s testimony that Postell “looked kind of suspicious.” We do not agree that either remark impugned Postell’s character. See generally Pettis v. State, 224 Ga. App. 77, 78-79 (2) (479 SE2d 460) (1996); Redd v. State, 222 Ga. App. 595 (2) (474 SE2d 651) (1996). Moreover, Postell made no objection to the testimony at trial and did not preserve the argument for review on appeal. Thomas v. State, 224 Ga. App. 816, 818 (4) (482 SE2d 472) (1997).

3. Postell claims the trial court erred in sentencing him as a recidivist because the state failed to show that his prior guilty pleas were made freely and voluntarily. When the state proffered at the sentencing hearing certified copies of Postell’s three prior shoplifting convictions, Postell stated that “any pleas must be freely and voluntarily entered and it’s the State’s burden to show that they were so done.” The trial judge replied that two of the pleas were taken in front of him and the third was taken in front of another judge, and that the court always inquires into the voluntariness of pleas before taking them. On that basis, the trial court found that the pleas were freely and voluntarily given. Postell excepted to the ruling based on the lack of evidence showing the pleas were made freely and voluntarily.

Decided August 10, 1998.

Donald L. Lambert, for appellant.

John R. Parks, District Attorney, for appellee.

“A plea of guilty that is invalid under Boykin [v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)] may not be used to enhance punishment in a subsequent trial. . . . [O]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver. . . . Presuming waiver from a silent record is impermissible.” (Citations and punctuation omitted.) Pope v. State, 256 Ga. 195, 209-210 (17) (345 SE2d 831) (1986); see Dowdy v. State, 209 Ga. App. 95, 96 (3) (432 SE2d 827) (1993).

The copies of the plea documents show that Postell was represented by counsel, but the record is otherwise devoid of any evidence that the pleas were free and voluntary. Under these circumstances, the trial court erred in admitting the pleas in evidence over Postell’s objection. See Pope, supra (plea documents showing defendant was represented by counsel not sufficient to show pleas intelligent and voluntary); Gadson v. State, 197 Ga. App. 315, 317 (4) (398 SE2d 409) (1990) (certified documents showing guilty pleas but not showing defendant was advised of rights do not satisfy state’s burden of proving pleas freely and voluntarily made). Compare Jones v. State, 161 Ga. App. 620, 623 (4) (288 SE2d 795) (1982) (showing by state sufficient where guilty plea documents affirmatively stated defendant was represented by attorney in good standing and was advised by the court of constitutional rights); and compare Miller v. State, 214 Ga. App. 393, 394 (2) (448 SE2d 20) (1994) (record introduced on prior charge showed defendant entered plea freely and voluntarily). Accordingly, the sentence must be vacated and the case remanded for hearing on this issue and resentencing.

Judgment of conviction affirmed; sentence vacated and case remanded.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.