author: Judge Harold R. Banke.

text:
    A98A2123.
    SYKES v. THE STATE.
    (511 SE2d 566)
   Judge Harold R. Banke.

After Frank Sykes was charged with driving under the influence of alcohol, driving with an invalid license, speeding, improper passing, and improper lane change, he filed a demand for speedy trial. Sykes now appeals the denial of his motion for discharge and acquittal.

The traffic citations Sykes received required him to appear in court on December 2, 1997, and on that date his case was scheduled for arraignment on January 7, 1998. On December 18, 1997, Sykes filed a demand for trial under OCGA § 17-7-170. The demand was recorded by the clerk of court and served on the solicitor general by registered mail on December 18, 1997.

Subsequently, Sykes’ defense counsel received a notice to appear for a jury trial on January 2, 1998, but because Sykes did not receive formal personal notice of trial from the court, he was not present in court with his counsel. The clerk of court mailed the notice to Sykes at an address Sykes provided for bond purposes which did not include Sykes’ apartment number. Even though Sykes allegedly did not appear because of this purported deficient notice, Uniform Superior Court Rule (“USCR”) 32.1 provides that notice shall be given to the “defendant at the last address indicated in the court records. . . .” The clerk’s records had Sykes’ correct address from his traffic citations, but the incorrect address on the bond application, provided by Sykes, was the last address in the court’s records. Sykes’ defense counsel objected to proceeding on January 2, 1998, because Sykes was not present in court and could not be tried in absentia because he had not been arraigned.

Later, Sykes received a notice setting the case for a hearing on motions on February 25 with a jury trial set for April 17,1998. Sykes waived arraignment on January 23, 1998. On February 18, the State notified Sykes of its intent to present evidence of two prior DUIs as similar transactions.

At the scheduled motion hearing on February 25, neither Sykes nor his counsel appeared. After reviewing the record, the trial court directed an assistant solicitor to notify Sykes’ counsel at approximately 4:00 p.m. on February 25 that the case would be called for trial at 9:00 a.m. the next day to accommodate Sykes’ demand for speedy trial. The State telephoned the defense counsel’s office on February 25 and advised co-counsel the case would be called at 9:00 a.m. on February 26. On February 26, the trial court noted on the record that Sykes had filed a demand for speedy trial, the case must be tried before the end of the January/February term which would be Saturday, February 28. The trial court also noted that Sykes and bis counsel did not appear in court at 9:00 a.m. ready for trial.

At a hearing later that day, counsel from the firm of Sykes’ defense counsel re-stated the circumstances of his notification of the call of the case, stated Sykes has not received personal notice of the trial date, and argued the notice received on February 25 was unreasonable and less than the notice to which a defendant is entitled under USCR 32.1. The trial court responded that in the circumstances of this case Sykes was not entitled to that notice.

Although Sykes’ counsel did not request a continuance, when the court called the case for trial, counsel advised the court that Sykes was out of the state. Sykes’ lead counsel also was not present in court because he was “unavailable.” Although the trial court allowed defense counsel to withdraw a waiver of the speedy trial demand that was apparently filed erroneously, the trial court nevertheless ruled that Sykes’ failure to appear in court waived his speedy trial demand. The trial court set the case for trial on April 17, 1998.

Sykes then filed a motion for discharge and acquittal. Sykes and his lead counsel were present to argue the motion. Sykes contended that he was entitled to discharge and acquittal because the case was not tried by the end of the January/February term of court. He maintained that he never requested a continuance and did not state that he was not ready for trial. Sykes further contended that under USCR 32.1 he was entitled to personal notice through a written trial calendar at least seven days before the trial date even though there were not enough days remaining in the term for such notice to be provided. He argued the State could have given proper notice had the State merely given the required notice seven days before the end of the term, but it failed to do so. The parties stipulated that jurors were available to try Sykes in the November/December and January/February terms of court.

The trial court reiterated its ruling of February 26, 1998, that by refusing to go forward with the trial on that date Sykes had waived his demand for a speedy trial. Thereafter, Sykes filed this appeal challenging that decision. Held:

1. The State’s motion to dismiss the appeal is denied. Sykes was given an extension of time in which to file his enumeration of error and brief.

2. If a defendant who filed a demand for trial under OCGA § 17-7-170 (a) is not tried during the term in which the demand was filed or the next succeeding regular term of court and jurors were impaneled and qualified to try the defendant in both terms, the defendant must be absolutely discharged and acquitted. OCGA § 17-7-170 (b). If the failure to try the defendant results from a voluntary act of the defendant or the defense counsel which results in a continuance of the case to a time outside the period of the demand, however, discharge and acquittal are not required. Fletcher v. State, 213 Ga. App. 401, 402 (1) (445 SE2d 279) (1994). In such cases, the defendant will be found to have waived his demand for a speedy trial. Weidlund v. State, 191 Ga. App. 668, 669 (382 SE2d 709) (1989). The burden of showing such waiver is on the State. Birts v. State, 192 Ga. App. 476, 477 (385 SE2d 120) (1989).

Although Sykes went to great effort to assure that he did not formally request a continuance, requesting a continuance is not the only way to waive a demand for trial. “Any affirmative action of the defendant which results in a continuance of the case, or a failure to try it within the time fixed by the statute after the filing of a demand, has the effect of tolling the time. [Cits.]” Letbedder v. State, 129 Ga. App. 196, 197 (1), n. 1 (199 SE2d 270) (1973). A waiver of a demand for a jury trial may result from any act by the defendant that shows affirmatively that he consented to passing the case until a later term. State v. Waters, 170 Ga. App. 505, 508 (3) (317 SE2d 614) (1984). The defendant’s actions must show that he “affirmatively sought to avoid trial.” Birts, 192 Ga. App. at 477.

This case differs from McKnight v. State, 215 Ga. App. 899, 903-904 (3) (453 SE2d 38) (1994), in which the defendant was “present and ready for trial at the time his case was called,” but his lawyer was not present in court seemingly through some administrative confusion. Id. at 904. In this appeal, however, the record shows that Sykes affirmatively sought to avoid trial.

Sykes did not appear personally at the January 2 hearing even though his counsel was present. While his failure to appear might be mitigated by the notice problem, notice was sent to the address Sykes provided and Sykes’ defense counsel obviously received notice. Unless we are to assume that counsel and client did not communicate about the date of a scheduled trial date, we can only conclude that Sykes intentionally did not appear for this scheduled court date because it was felt that he could rely upon the clerk’s seeming failure to give notice under USCR 32.1. Sykes’ absence from this hearing, however, was not authorized by his failure to receive notice under USCR 32.1 since notice had been mailed in accordance with the Rule. Even though Sykes’ counsel did not request a continuance, Sykes’ absence from the proceedings may be considered when determining whether he waived his speedy trial demand.

Decided February 3, 1999

Reconsideration denied February 18,1999.

Patrick D. Deering, for appellant.

Barry E. Morgan, Solicitor, Lawton W. Scott, Jessica K. Moss, Marsha S. Lake, Assistant Solicitors, for appellee.

Also, at the April 28 hearing, Sykes’ counsel admitted that he “absolutely knew” when he signed the waiver form on January 23, 1998, that the motions would be heard on February 25 and the case tried on April 17 that the trial date would be beyond the permissible limit. Clearly, both Sykes and his lead counsel were absent on the only days remaining in the term in which Sykes could be tried to avoid trial. No excuse was proffered except that Sykes was out of the state and lead counsel was unavailable. These excuses are not sufficient. This Court’s opinion in McKnight cannot be “construed as authority approving the unexcused, unjustified ‘disappearance’ of counsel.” State v. McKnight, 265 Ga. 701, 702 (462 SE2d 142) (1995). Although our law does not demand that Sykes be physically present in court to preserve his demand for trial (see State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991)), it also does not countenance a defendant and his counsel absenting themselves so as to avoid the call of the case for trial.

We also find unpersuasive Sykes’ argument that he was not obliged to appear for trial because he did not receive notice of the trial date in accordance with USCR 32.1. Compliance with Rule 32.1 must be judged in the circumstances of each case. Payne v. State, 195 Ga. App. 523, 524 (1) (394 SE2d 781) (1990). If we were to adopt Sykes’ reading of the rule, the harshest sanction available would be required any time a defendant could not be given the full notice the rule prescribes. In the circumstances of this case, the trial court was complying with Sykes’ demand for trial, and the only way that could be done was by deviating from the requirement of USCR 32.1. Given the history of this case, which includes the instance in which Sykes did not appear for trial even when his attorney was given proper, timely written notice of the trial set for January 2, 1998, we do not find that the trial court abused its discretion. Croft v. State, 180 Ga. App. 705, 706 (350 SE2d 34) (1986).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A98A2164.
    CLAUSS et al. v. PLANTATION EQUITY GROUP, INC. et al.
    (512 SE2d 10)
   Johnson, Chief Judge.

This action involves a property dispute between adjoining landowners. Lawrence and Elizabeth Clauss sued Plantation Equity Group, Inc. (“PEGI”), Fairfield Plantation Property Owners Association, Inc. (“POA”), Ronald Mateja and Susan Mateja, contending the Matejas’ dock was located and constructed in violation of Fairfield’s restrictive covenants. The trial court granted the Matejas’ motion for summary judgment and denied the Clausses’ cross-motion for summary judgment. We reverse the trial court’s order.

The Clausses and Matejas own adjoining lots in the Fairfield Plantation development, which property is subject to certain restrictive covenants. At the time the action was brought, PEGI owned the water in and land under Treasure Lake, where the dock is located. Fairfield Plantation POA is a non-profit corporation organized to promote the interests of Fairfield property owners and is the current owner of the lake. According to the Clausses, the Matejas failed to obtain approval to construct the dock and failed to comply with an order of PEGI directing them to remove the dock, which are both violations of the “Declaration of Restrictions” governing lots in Fairfield Plantation. The Clausses further allege that the Matejas’ dock constitutes a continuing trespass to the use and enjoyment of their property.

The Clausses purchased their lot in 1991. At that time, both the Matejas’ dock and the dock built by the Clausses’ predecessor were in place. After purchasing their property, the Clausses made inquiries regarding the possibility of expanding their dock, as it was not large enough to accommodate both of their boats. The Clausses also became concerned that the Matejas’ dock encroached on their property. The dock issue was addressed in meetings between the Clausses, Matejas and representatives of PEGI and POA. During this time, it was discovered that POA had no evidence that plans had been submitted or approval obtained for the construction of the Matejas’ dock, as required by Fairfield’s Declaration. Believing approval had not been given, PEGI decided that an equitable arrangement required the Matejas to remove their dock.

Subsequently, the Matejas found the plans which they had submitted for approval and obtained the affidavit of Dan Kaminski stating that he had received the plans and that construction of the Matejas’ dock had been approved in 1984, when he was a member of the Property Control Committee and had the authority to approve plans presented to the Committee. According to the Matejas, PEGI’s general manager then agreed that they would not have to remove the dock. Although the Clausses dispute that the Matejas received this approval, it is undisputed that no further directive was issued ordering removal of the dock.

1. The Clausses first contend that the trial court erred in overruling their motion to strike the affidavits of Susan Mateja and Dan Kaminski and in relying on inadmissible evidence in granting the Matejas’ motion for summary judgment. We note at the outset that the Clausses never obtained a ruling on their motion to strike the affidavits. It is incumbent upon the party asserting error to obtain a ruling on his motions or objections, and the failure to do so will ordinarily result in a waiver. See Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 42 (1) (482 SE2d 536) (1997).

The trial court’s order on the parties’ motion and cross-motion for summary judgment is silent on the issues of whether the affidavits or portions of the affidavits were considered. However, the trial court granted summary judgment to the Matejas because the evidence showed they obtained approval for their dock and because the evidence showed the Matejas’ dock fell within their property lines. This evidence came from the two affidavits. Therefore, the trial court implicitly overruled at least portions of the Clausses’ motion to strike the affidavits. We will consider their enumeration of error with respect to those portions of the two affidavits necessary to the trial court’s ruling on the motion and cross-motion for summary judgment. A trial court’s decision overruling an objection to tendered evidence is a matter resting within the sound discretion of the trial court and will not be disturbed absent an abuse of that discretion; See Williams v. Terry, 197 Ga. App. 209 (1) (398 SE2d 239) (1990); West v. Nodvin, 196 Ga. App. 825, 827 (2) (b) (397 SE2d 567) (1990).

(a) The affidavit of Dan Kaminski. According to the affidavit, Kaminski was a member of the Property Control Committee in 1984 and had the authority to approve or disapprove all plans submitted to the Committee. He states that he “received, reviewed, and approved, by affixing my signature to the letter to the POA dated March 30, 1984, from Ronald and Susan Mateja, the construction and location of a pier as illustrated on the Plat of Survey attached to the above referenced letter.”

The Clausses argue this affidavit is legally insufficient based on three grounds. We need address only one: Kaminski’s affidavit is legally insufficient because it is merely a copy and not the original affidavit. The affidavit included in the record on appeal is labeled “original copy 2 of 2” and does not contain original signatures. In addition, the Carroll County Clerk’s office has indicated that the original affidavit was not filed in this case. OCGA § 9-11-56 (e) provides that the original affidavit must be filed with the court, with copies served on opposing parties. Since the trial court could not con-' sider the copy of Kaminski’s affidavit, it could not use the affidavit as evidence that plans for the Matejas’ dock were approved or as authentication for the approval notation on the March 30, 1984 letter.

(b) The affidavit of Susan Mateja. In paragraph 6 of this affidavit, Susan Mateja states in part that plans for dock construction were submitted to, and approved by, the Property Control Committee of the Fairfield Plantation POA. The Clausses argue that this paragraph contains hearsay because the statement regarding approval derives its value solely from the credit of the person or persons allegedly communicating the approval to Mateja. See OCGA § 24-3-1. We agree. While Susan Mateja’s statement that plans for the dock construction were submitted is based on her own personal knowledge, her statement regarding approval is hearsay. Her only knowledge regarding any approval came from a source who told her about such approval. The trial court erred in considering this evidence regarding approval.

The Clausses argue that Exhibit B to Susan Mateja’s affidavit, the March 30, 1984 letter purportedly approved by Kaminski, should be excluded as hearsay. While the contents of the letter itself are not hearsay because the Matejas have personal knowledge of the statements they themselves wrote, the “approval” notation on the letter is hearsay. In addition, the notation has not been authenticated because, as previously stated, Kaminski’s affidavit was legally insufficient. It was error for the trial court to consider this evidence of approval.

Exhibit I to Susan Mateja’s affidavit is a letter that was sent from the president of PEGI to the Matejas indicating that the Matejas’ dock fell within their property lines. Clearly, this letter is hearsay. It is being offered for the truth of the matter asserted, and no exception to the hearsay rule has been presented. The trial court erred in considering this evidence in ruling on the trespass claim.

2. Based on the admissible evidence in the record, the trial court erred in granting summary judgment to the Matejas. There is no admissible evidence presented regarding approval of the Matejas’ dock or that the Matejas’ dock is located solely within their property lines. On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993). Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). The Matejas failed to carry this burden based on the evidence submitted.

Decided February 3, 1999

Reconsideration denied February 18, 1999.

Stevens & Associates, Ronald S. Stevens, James B. McClung, for appellants.

Sutton & McCreary, Timothy A. McCreary, Johnson, Dangle & Parmer, Thomas E. Parmer, for appellees.

3. The trial court correctly ruled that the Clausses were not entitled to summary judgment. Based on the record before us, the Clausses have not carried their burden of proof regarding whether the Matejas’ dock was located and constructed in violation of Fair-field Plantation’s restrictive covenants.

Judgment affirmed in part and reversed in part.

Smith and Barnes, JJ., concur.

       PEGI has since transferred its interest in this property.


text:
    A98A2185.
    THE STATE v. HARRIS et al.
    (513 SE2d 1)
   Johnson, Chief Judge.

Linwood Harris was indicted for possession of cocaine and driving with a suspended license after police stopped the car he was driving and found crack cocaine in his passenger’s purse. The passenger, Denise Peters, was indicted for possession of cocaine. Harris and Peters filed motions to suppress, which the trial court granted based on its determination that the stop was “unreasonably pretextual.” The state appeals from the order granting those motions.

1. The state contends the trial court erred in finding that the police officer lacked a reasonable articulable suspicion of criminal activity to justify the stop. We agree and reverse.

“When we review a trial court’s decision on a motion to suppress, the evidence is construed most favorably to uphold the findings and judgment of the trial court; the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous and will not be disturbed if there is any evidence to support them.” (Citations and punctuation omitted.) Allenbrand v. State, 217 Ga. App. 609 (1) (458 SE2d 382) (1996). The trial court’s conclusion that the stop of Harris was invalid because it was unreasonably pretextual was clearly erroneous.

The arresting officer testified that other police officers in his department told him in the “last few weeks” preceding the stop that Harris’ driver’s license had been suspended. The officer recognized Harris and pulled him over. He approached the car and asked Harris for his driver’s license and proof of insurance. Harris replied that his license was suspended and that the officer already knew that. At the officer’s request, Harris got out of the car. The officer asked Harris if he would consent to a search of the car. Harris agreed verbally and then, after the officer read Harris a written consent to search form, Harris signed the consent form.

Peters was in the front seat and another passenger was in the back seat of the car. The officer asked both passengers to step out of the car. A handbag was left on the front passenger seat. The officer asked the passengers who owned the purse. Peters replied that it was hers. The officer asked Peters if she would empty the purse. Without giving any verbal response, Peters emptied her purse onto the hood of the car. The contents included a substance which later tested positive for cocaine. Harris and Peters were arrested for possession of cocaine; Harris was also charged with driving with a suspended license. The officer then ran a computer check and verified that Harris’ license was still suspended.

In order to justify stopping a car, an officer must have specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Jorgensen v. State, 207 Ga. App. 545 (428 SE2d 440) (1993). “A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.” (Punctuation omitted.) Kingree v. State, 228 Ga. App. 71, 72 (2) (491 SE2d 123) (1997). Information which an officer receives from another officer can provide sufficient grounds to create an articulable suspicion that will justify an investigative stop of a car. See Walton v. State, 194 Ga. App. 490, 491 (2) (390 SE2d 896) (1990).

Based on information he received from other officers that Harris’ license was suspended, the officer in this case had specific and articulable facts indicating that Harris was committing a crime. A brief investigatory stop of the car was therefore justified. See Brown v. State, 223 Ga. App. 364, 365 (477 SE2d 623) (1996); Stewart v. State, 220 Ga. App. 295 (1) (469 SE2d 424) (1996).

We do not agree with Harris’ contention that the stop was improper because the officer did not check to see if Harris’ license had been reinstated before stopping him. The officer was entitled to rely on the information given to him by fellow officers. See Chumbley v. State, 180 Ga. App. 603 (349 SE2d 823) (1986). We point out that, in most cases, a driver must wait a minimum of 30 days after his license is suspended before applying for reinstatement. See OCGA §§ 40-5-67.2 (a) (1), (2), (3); 40-5-70; 40-5-84; 40-5-85. Indeed, a suspension in some cases lasts up to five years. OCGA § 40-5-75. The officer was not required to verify that the information he received within the few weeks preceding the stop was still accurate before making a brief stop of the car. Given the nature of the activity in question, the lapse of time was acceptable and the officer’s belief that Harris was driving with a suspended license was reasonable. In this regard, those cases involving lapses of time in the execution of warrants are instructive. See, e.g., Tabb v. State, 250 Ga. 317, 322-323 (2) (b) (297 SE2d 227) (1982); Eaton v. State, 210 Ga. App. 273-274 (1) (435 SE2d 756) (1993); Wilbanks v. State, 176 Ga. App. 533, 534 (3) (336 SE2d 312) (1985). If an officer acting in good faith believes that an unlawful act has been committed, his actions are not rendered improper by a later determination that the defendant had not committed a crime. See McConnell v. State, 188 Ga. App. 653, 654 (1) (374 SE2d 111) (1988).

Harris’ argument that the stop was illegal because it was pretextual is unavailing. When a police officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop. See Buffington v. State, 228 Ga. App. 810, 812 (492 SE2d 762) (1997); Brantley v. State, 226 Ga. App. 872, 873 (1) (487 SE2d 412) (1997). If the officer witnesses even a minor traffic violation, a suppression motion arguing that the stop was pretextual must fail. State v. Kirbabas, 232 Ga. App. 474, 477 (502 SE2d 314) (1998); see generally Jackson v. State, 267 Ga. 130, 131 (5) (475 SE2d 637) (1996). It is undisputed that Harris was driving when his driver’s license was suspended. The trial court’s determination that the stop was pretextual and therefore invalid was clearly erroneous. See generally State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996).

2. The state argues that the trial court erred in finding that the consent to search given by Harris and Peters was not freely and voluntarily given and was given as a result of the illegal stop. As discussed in Division 1, the stop was not illegal. We therefore consider whether the consent was freely and voluntarily given.

(a) Consent given by Harris. Immediately upon being stopped, Harris orally gave the officer permission to search the car. The officer then read and gave to Harris a written consent form which stated that: he was advised of his right to refuse to consent to a search, of his right to withdraw consent at any time, and that the search was being conducted in connection with the investigation of a drug crime; he was not threatened in any manner or promised any reward; and he freely and voluntarily gave his consent with full understanding of his rights. Harris signed the form. We do not agree that his consent was not valid because the officer indicated on the form that the search was in connection with an investigation of a drug crime when the stop was purportedly for the license violation. There is no evidence Harris was misled about the purpose of the search or that the evidence seized was used for any purpose other than that to which he consented.

Voluntariness of consent must be determined from all the circumstances. Hestley v. State, 216 Ga. App. 573, 575 (1) (455 SE2d 333) (1995). Considering the totality of the circumstances, we find that Harris’ consent to the search of his car was valid. See Raney v. State, 186 Ga. App. 758, 760 (368 SE2d 528) (1988).

Harris’ reliance on Murphy v. State, 230 Ga. App. 365 (496 SE2d 512) (1998), is misplaced. In Murphy, unlike in this case, the consent was coerced. There, the defendant refused to consent and asked the officers whether he had the right to refuse to consent. Instead of answering his question, police asked Murphy about his motivation for refusing and then told him they were detaining him so they could obtain a search warrant.

Nor was the consent like that given in State v. Frazier, 229 Ga. App. 344 (494 SE2d 36) (1998). In Frazier, after the defendant consented to a test of his urine for the purpose of determining whether he was driving while under the influence of drugs or alcohol, officers used the test results to charge him with possession of cocaine. We held that the use of the test for any purpose other than that to which the defendant consented would exceed the scope of the consent given. Id. at 345. In the instant case, however, the consent form specifically provided that the purpose of the search was to investigate a drug offense. Harris was not misled and his consent was voluntary.

Moreover, Harris orally consented to the search. If oral consent was freely and voluntarily given, written consent was not necessary. Brantley, supra at 874 (2) (a).

(b) Consent given by Peters.

(i) Peters argues that the search of her purse was illegal because her consent was given during an illegal detention. See generally Bowen v. State, 210 Ga. App. 348, 349 (1) (436 SE2d 76) (1993). As discussed above, the detention in this case was not illegal. An officer who has legitimately stopped a car may make a brief inquiry of the driver and passengers and may request consent to search. See Gamble v. State, 223 Ga. App. 653, 656 (3) (478 SE2d 455) (1996); Davis v. State, 194 Ga. App. 482, 483 (1) (391 SE2d 124) (1990). Her challenge to the search on this basis is therefore without merit.

(ii) Peters claims she did not consent to a search of her purse; she merely acquiesced to the officer’s authority. She argues that she was not asked for her consent and was not told she had the right to refuse consent. As noted above, the officer retrieved the purse from the car, handed it to Peters and “asked-her would she empty the purse.” Without saying anything, she emptied the purse.

Where the state seeks to justify a warrantless search on grounds of consent, it has the burden of proving the consent was freely and voluntarily given. Sutton v. State, 223 Ga. App. 721, 724 (1) (478 SE2d 910) (1996). Silence in the face of a request for permission to search may sometimes be interpreted as acquiescence, but such acquiescence cannot substitute for free consent. State v. Williams, 226 Ga. App. 346, 348 (486 SE2d 637) (1997); State v. Williams, 212 Ga. App. 164, 165 (1) (441 SE2d 501) (1994). While Peters’ conduct may well have signaled acquiescence, it did not show consent. See Miranda v. State, 189 Ga. App. 218, 221 (3) (375 SE2d 295) (1988). Peters was not informed of her right to refuse to consent to a search of her purse and did not give any express consent. See generally Rogers v. State, 206 Ga. App. 654, 660 (4) (426 SE2d 209) (1992). Under the totality of the circumstances, the trial court’s conclusion that the cocaine found in Peters’ purse was the product of a non-consensual search was not clearly erroneous. See State v. Westmoreland, 204 Ga. App. 312, 314 (418 SE2d 822) (1992). Accordingly, we affirm the trial court’s grant of Peters’ motion to suppress.

3. The state argues that Harris lacked standing to contest the search of Peters’ purse. We agree.

“The Fourth Amendment right against unreasonable search and seizure is a personal right and may not be asserted vicariously. When, as in the instant case, the accused disavows ownership of or other legitimate possessory interest in the item searched, he has no legitimate expectation of privacy in that item, and thus a search violates no right.” (Citations and punctuation omitted.) Henderson v. State, 211 Ga. App. 102, 103 (2) (438 SE2d 181) (1993). Harris did have a legitimate expectation of privacy in his car. See generally Edwards v. State, 194 Ga. App. 571, 572 (1) (391 SE2d 137) (1990). He gave up that expectation of privacy when he validly consented to a search of the car. Harris, however, never did have any ownership interest, possessory interest or expectation of privacy in Peters’ purse. The trial court erred in granting Harris’ motion to suppress evidence found in Peters’ handbag as to charges pending against him. See generally State v. Jackson, 201 Ga. App. 810, 813 (1) (412 SE2d 593) (1991).

Judgment affirmed as to Peters, reversed as to Harris.

Smith and Barnes, JJ, concur.

Decided February 1, 1999

Reconsideration denied February 18,1999.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for the State.

Healan Law Offices, William D. Healan III, Barbara A. Chakales, for Harris.

Kevin R. Christopher, for Peters.

       Although the state argues on appeal that the search was justified as incident to a lawful arrest, the state made no such argument before the'trial court. Where an entirely different basis for appeal is argued in the brief than was raised at trial, we will not consider it. See Hobdy v. State, 222 Ga. App. 625, 626 (475 SE2d 686) (1996); Goins v. State, 184 Ga. App. 452, 454 (361 SE2d 853) (1987).


text:
    A98A2265.
    TOWNSEND v. THE STATE.
    (511 SE2d 587)
   Johnson, Chief Judge.

Russell W. Townsend was charged with following too closely, driving under the influence of alcohol to the extent that it was less safe for him to do so, and driving with an unlawful alcohol concentration in his blood. At trial, the court granted Townsend’s motion for a directed verdict of acquittal as to the charge of following too closely. During its deliberation, the jury deadlocked on the issue of whether Townsend was guilty of driving under the influence of alcohol, but convicted him of driving with an unlawful alcohol concentration in his blood, a violation of OCGA § 40-6-391 (a) (1), (4). Townsend appeals from the judgment of conviction entered upon the jury’s verdict. For the reasons which follow, we affirm.

On October 5, 1995, the pickup truck Townsend was driving struck a disabled car in the far right-hand lane of 1-285 in DeKalb County. There was no emergency lane available to the operator of the disabled vehicle along that section of interstate highway. When the investigating officer approached Townsend’s truck, Townsend was lying across the front seat. He smelled strongly of alcohol, was moaning in pain, and his face was cut and bloody. Townsend did not respond when the investigating police officer asked if he was injured. Medical technicians arrived and took Townsend to the hospital. The officer proceeded to the hospital after he had secured the scene so that the two damaged vehicles could be safely towed away. Only after Townsend received medical treatment was the officer able to question him. Townsend’s breath still smelled strongly of alcohol, and the officer read Townsend an implied consent warning from a card which the officer carried. Townsend agreed to submit to a chemical test of his blood. His blood was drawn by a certified phlebotomist. A forensic chemist at the State Crime Lab analyzed Townsend’s blood using head space gas chromatography. Townsend’s blood tested positive for ethyl alcohol at a concentration level of “.20 grams percent.”

1. Townsend claims the trial court erred in denying his motion in limine to suppress the results of the chemical blood test. Townsend asserts that he was induced to submit to the test because the police read him an untimely and inaccurate implied consent warning.

(a) Pretermitting the issue of whether the officer failed to accurately recite the implied consent warning and, if so, whether any misstatements made rendered the warning invalid is the question of whether Townsend preserved this issue for appeal. See Harrison v. State, 235 Ga. App. 78 (508 SE2d 459) (1998), and State v. Nolen, 234 Ga. App. 291 (508 SE2d 733) (1998) (physical precedent only). At the motion hearing, Townsend raised an issue as to the timeliness of the implied consent warning. He reserved all other objections as to the warning. However, at trial, Townsend did not raise any issue as to the inaccuracy of the implied consent warning. As this specific issue was not raised before the trial court, it is not preserved on appeal. See Simms v. State, 223 Ga. App. 330, 332 (1) (477 SE2d 628) (1996).

(b) We find Townsend’s contention that the implied consent warning was untimely to be without merit.

As a general rule, the implied consent warning must be given by the arresting officer “at the time of arrest.” OCGA § 40-6-392 (a) (4); see also OCGA § 40-5-67.1. In each case, the warning must be given at a time as close in proximity to the instant of arrest as the circumstances of that particular case might warrant. Edge v. State, 226 Ga. App. 559, 560 (1) (a) (487 SE2d 117) (1997). “Only in limited situations is a delay warranted, such as where advising the accused at the moment of physical arrest would not enable him to make an intelligent choice concerning the state’s request and his right to undergo an independent test or where the exigencies of police work prevent giving the advice. See Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983).” Id.

After hearing the evidence at the suppression hearing, the trial court concluded that considering all the circumstances confronting the investigating officer, the implied consent warning was timely. In reaching this determination, the trial court found evidence of a perceived threat of a fire or explosion at the accident scene, and an apparent need for prompt medical transportation of the defendant for medical treatment at a hospital. Although the evidence shows that smoke was coming from the engine of Townsend’s truck, the threat of fire and explosion appears to have been perceived only by the driver of the car which Townsend struck and not by the officer. There exists sufficient evidence, however, from which the trial court could infer there was an apparent need for Townsend to be promptly transported to a hospital. The officer also testified that for safety reasons, he stayed at the accident scene until the vehicles were towed; and when he reached the hospital, Townsend was still receiving medical treatment. The officer read Townsend the implied consent warning when he next had the opportunity to speak to him.

Viewing this evidence in a light most favorable to the trial court’s ruling, we find that a fair risk existed that at the accident scene Townsend would not have been able to make an intelligent choice concerning the state’s request for a blood test, and there was also a fair risk that he would not have been able to understand his right to undergo an independent test. As in Edge, supra at 561 (1) (a), there exists no evidence that Townsend would have benefitted by being informed of his rights at an earlier point in time. We are also satisfied that the investigating officer was prevented by the exigencies of police and medical work from giving the implied consent warning any sooner. We will not reverse the correct ruling of a trial court regardless of the reason given therefor. See Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649) (1993).

We note that Townsend also failed to establish, either by citation to the record or transcript, the amount of time which elapsed from his arrest to the time when he was given the implied consent warning. Townsend merely argues that the warning was not given until after the officer arrived at the hospital. See Talley v. State, 200 Ga. App. 442, 446 (4) (408 SE2d 463) (1991).

2. Applying the standard approved in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), there exists sufficient evidence to support Townsend’s conviction of driving with an unlawful alcohol concentration in his blood under former OCGA § 40-6-391 (a) (4).

3. Townsend asserts the trial court erred in quashing his subpoenas for production of documentary evidence and that this error violated his right to a thorough and searching cross-examination. In particular, Townsend argues that he was denied an adequate opportunity to identify the blood sample, to challenge the accuracy of the state’s blood test results, and to challenge and impeach the testimony of the state’s expert witness. He also asserts that he was entitled to chain of custody documents to determine whether the state’s chemist had followed reasonable scientific procedures to avoid contamination and mismatch of the samples.

In pertinent part, OCGA § 40-6-392 (a) (4) provides that “[u]pon the request of the person who shall submit to a chemical test or tests at the request of a law enforcement officer, full information concerning the test or tests shall be made available to him or his attorney.” This discovery rule, which is consistent with the broad right of cross-examination provided in OCGA § 24-9-64, grants broader discovery rights than did earlier criminal discovery procedures which allowed discovery of only written scientific reports. See Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998). Thus, as a general rule, a defendant now has the right to subpoena memos, notes, graphs, computer printouts, and other data relied upon by a state crime lab chemist in obtaining gas chromatography test results. Id. However, a trial court has discretion to quash an unreasonable and oppressive subpoena, and abuse of discretion is the appropriate standard of review in such situations. OCGA § 24-10-22 (b) (1); see Price v. State, supra. Whether the trial court should quash a subpoena depends on the nature and scope of the discovery request. See Price, supra.

Decided February 4, 1999

Reconsideration denied February 18, 1999

Monte K. Davis, for appellant.

Townsend was seeking, among other documents, “[c]opies of any and all documents, as the same relates to the analysis of the blood sample which was seized from [him] . . . , including but not limited to all notes, memorandums, reports, statistics, submission sheets, worksheets, tracking sheets, chromatographs of the analysis of the blood sample, information pertaining to any and all standards and controls utilized in the testing procedure, etc., that [the state’s forensic chemist] may have prepared or that may have been prepared by others which [sic] are in [the chemist’s] possession.” He was also seeking records “of each and every individual who handled [his blood] sample or who participated in the analysis of the sample to show proof of the chain of custody.” The trial court granted the state’s motion to quash this subpoena.

The burden is upon Townsend to show both error and harm. Under the circumstances of this case, we find that the error was harmless. Townsend’s counsel contended at the motion hearing that either the test results were transposed erroneously or that the sample tested did not belong to Townsend. While the trial court granted the motion to quash, he provided Townsend with an equally effective remedy to test the validity of the blood sample, the testing procedure, and the test results. At Townsend’s request, the trial court ruled that an expert forensic chemist of Townsend’s selection would be permitted to examine a sample of Townsend’s blood and directed the GBI to release the sample to Townsend’s attorney or authorized agent. By giving Townsend the blood sample and allowing him to have it independently tested, Townsend had the means to effectively challenge the validity of the sample and the accuracy of the state’s testing procedures and test results. If a discrepancy did appear, Townsend was free to present this information to the trial court and to renew his requests. Townsend’s claim of prejudicial error is without merit.

Judgment affirmed.

Smith and Barnes, JJ., concur.

Ralph T. Bowden, Jr., Solicitor, Margaret A. Dunaway, Gwendolyn R. Keyes, Assistant Solicitors, for appellee.


author: Blackburn, Judge.

text:
    A97A0455.
    STOUT v. CINCINNATI INSURANCE COMPANY.
    (512 SE2d 392)
    Decided February 18, 1999.

      Jolles & Slaby, Isaac S. Jolles, Richard A. Slaby, for appellant.

      Fulcher, Hagler, Reed, Hanks & Harper, Scott W. Kelly, for appellee.
   Blackburn, Judge.

In Stout v. Cincinnati Ins. Co., 269 Ga. 611 (502 SE2d 226) (1998), the Supreme Court reversed this Court’s opinion in Stout v. Cincinnati Ins. Co., 226 Ga. App. 220 (486 SE2d 195) (1997). Therefore, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and remand the case to the trial court for proceedings not inconsistent with the opinion of the Supreme Court.

Judgment reversed and case remanded.

Johnson, C. J., and Pope, P. J., concur.


author: Beasley, Presiding Judge.

text:
    A98A2106.
    OWENS v. THE STATE.
    (512 SE2d 394)
   Beasley, Presiding Judge.

After a bench trial on stipulated facts, Chablis Owens was found guilty and convicted of violating the Georgia Controlled Substances Act (OCGA § 16-13-30) for possession of less than one gram of cocaine. Owens appeals his conviction and the denial of his motion to suppress and motion in limine.

Acting on a complaint about drugs, three officers responded to a motel in DeKalb County and knocked on the door of the identified room. Owens’ sister answered and stated the room was registered in her name. Owens was also there. The officers asked if they could see identification from both people. The woman cooperated, but Owens rapidly got up from the bed, went to a closet, and grabbed a large shoe box. He then turned his back and went into the bathroom out of view of the officers who were still standing outside the door. One officer entered the room a distance of about five feet and saw Owens put his hand in the box. The officer thought he was getting a gun and asked Owens what he was doing. When he saw Owens take what appeared to be cocaine and drop it in the toilet, the officer tackled Owens and arrested him. Cocaine was found in the toilet. No gun was found but .22 caliber ammunition was in the shoe box.

The officer was permitted to knock on the door without an articulable suspicion, in order to investigate the report of a crime. But the drugs were in plain view only after the officer stepped into the room. A police officer may only seize what is in plain sight if he is in a place where he is constitutionally entitled to be.

A motel room “is accorded the same Fourth Amendment considerations as a private home.” “The U. S. Supreme Court has . . . held that even where probable cause exists, warrantless intrusion of a person’s home is prohibited by the Fourth Amendment, absent consent or a showing of exigent circumstances. Steagald v. United States, 451 U. S. 204, 211 (III) (101 SC 1642, 68 LE2d 38) (1981).” There is no assertion Owens or his sister consented to the officer’s entry. The issue is whether the officer’s first few steps into the room were made under exigent circumstances.

“[A]n exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” The trial court made a finding of fact that the officer entered in order to prevent the destruction of contraband. “On reviewing a trial court’s ruling on a motion to suppress, evidence is construed most favorably to uphold the findings and judgment.” The court’s findings of fact “ ‘will not be disturbed if there is any evidence to support them.’ ”

But there is no evidence to support such a finding. The officer only explained that his safety was the reason for entering. Although destruction of illegal drugs may in some cases provide the required exigency, the officer had already entered the room before he became aware of the presence of drugs.

The officer testified that he entered the room when Owens went into the bathroom out of view, with a retrieved box of unknown contents and ignoring the officers’ request for identification, because he thought Owens was getting a gun. “It is not unreasonable for officers to anticipate that those who are suspected of involvement in the drug trade might be armed.” “Although we review police actions from the standpoint of a hypothetical reasonable officer, we must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.”

Decided February 18, 1999.

Corinne M. Mull, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Robert F. Schnatmeier, Robert M. Coker, Assistant District Attorneys, for appellee.

The court did not base its decision on the officer’s stated reason, but the officer’s fear that Owens had a gun and was getting it is a reasonable belief under the circumstances and justifies the limited entry to see whether that was so. Owens did not bring the box, which he obtained in response to the officers’ request for identification, to the officer or reach into it, as though it contained his identification. Instead, he secreted himself with it. Once inside the room with a clear view of Owens, the obvious destruction of drugs provided the exigent circumstances for the officer to proceed with the arrest and seizure.

King v. State is factually distinct. In that case, the officer was unable to explain why it was necessary to proceed through the open door for his own safety.

Since “ '[a] trial court’s ruling will be affirmed if it is right for any reason’ [cit.],” the denial of the motion and the conviction are affirmed.

Judgment affirmed.

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

        Gilreath v. State, 247 Ga. 814, 819 (1) (279 SE2d 650) (1981).

        State v. Brown, 158 Ga. App. 312, 314 (279 SE2d 755) (1981); Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994).

        Pickens v. State, 225 Ga. App. 792, 794 (1) (b) (484 SE2d 731) (1997) and cases cited therein.

        Carranza v. State, 266 Ga. 263, 264-265 (467 SE2d 315) (1996).

        Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982).

        Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993).

       (Citation omitted.) State v. Williams, 220 Ga. App. 100, 102 (2) (469 SE2d 261) (1996).

        State v. David, 269 Ga. 533, 536 (2) (501 SE2d 494) (1998).

        Condon v. State, 203 Ga. App. 163 (416 SE2d 802) (1992); Pickens v. State, supra; State v. Jarrells, 207 Ga. App. 192, 193 (4) (427 SE2d 568) (1993); Hayes v. State, 202 Ga. App. 204, 205 (414 SE2d 321) (1991).

       (Punctuation omitted.) State v. Brannan, 222 Ga. App. 372, 373 (1) (474 SE2d 267) (1996).

       See also Pace v. State, 219 Ga. App. 583, 585 (466 SE2d 254) (1995) (officer in a level one non-coercive, lawful stop allowed to “take appropriate self-protective measures when he lawfully confronts an individual and reasonably believes him to be armed or otherwise dangerous to the officer or others”).

        State v. David, supra.

       217 Ga. App. 889 (459 SE2d 605) (1995).

        Frederick v. State, 226 Ga. App. 540, 541 (1) (487 SE2d 107) (1997).


author: Smith, Judge.

text:
    A98A2187.
    In the Interest of L. S. M. et al., children.
    (512 SE2d 397)
   Smith, Judge.

Appellant James L. McIlveene appeals from an order of the juvenile court authorizing the Houston County Department of Family & Children Services (“DFACS”) to discontinue efforts to reunite his family under OCGA § 15-11-41 (i). Because the juvenile court’s decision is supported by clear and convincing evidence, we affirm.

In 1996, a deprivation petition was filed by DFACS on behalf of McIlveene’s three children, then aged ten, three, and one. The petition alleged that the mother was hopelessly addicted to drugs and left the children at home alone and unsupervised and that McIlveene, also a drug abuser, took the three-year-old and went to Idaho, leaving the other two children with the mother. McIlveene, by letter from Idaho) requested that the children be placed with his half-sister. The juvenile court found the children to be deprived and granted temporary custody to DFACS. A reunification plan was devised for McIlveene, but he did not follow all its recommendations. The record does not show that this 1996 order was ever appealed.

In 1997, McIlveene petitioned for the return of the children. After a hearing at which six witnesses testified, the juvenile court made the following findings: the children remained deprived; McIlveene was incapable of providing proper parental care and supervision; and the deprivation was likely to continue. The court also found that the children have severe psychological or psychiatric problems as a result of their unstable upbringing and that McIlveene fled the state with one of the children to escape the threats of drug dealers, had lived in thirteen different places in at least four states since the children were placed in DFACS custody, and was a cocaine user and dealer. Finally, the court found that McIlveene was evasive and untruthful in his testimony to the court. McIlveene did not appeal this order.

DFACS petitioned to change the case plan goal from reunification of the family to non-reunification. In October 1997, after a hearing at which seven witnesses testified, the trial court entered an order incorporating its earlier findings in denying return of custody to Mcllveene and making additional findings of fact.

The court noted that the court-appointed special advocate recommended termination of McIlveene’s parental rights. The court also noted the testimony of McIlveene’s relatives, including his stepmother and brother, that he has not maintained a stable, steady residence, and has abandoned two other sets of children he has fathered. The trial court specifically found credible the testimony of McIlveene’s brother that McIlveene has a long history of serious drug abuse and has sold cocaine. The court found McIlveene was not truthful about his cocaine abuse and has been as involved in cocaine as his seriously addicted wife. In addition to the psychological problems noted earlier, the court found that the two youngest children also suffer from fetal alcohol effect and require special treatment that McIlveene will not be able to provide. The court also found that McIlveene has been unable to deal with his children’s problems in the past, that he was unable to provide the court with any specific plan to care for the children, and that despite earning a significant salary, he had failed to provide any financial support for the children for a continuous period of one year.

“We are bound by the trial court’s findings that the children are deprived and that such deprivation was caused by [McIlveene] in its unappealed orders. [Cit.]” In the Interest of K. A. C., 229 Ga. App. 254, 257 (3) (493 SE2d 645) (1997). The trial court also found in its second unappealed order that the deprivation was likely to continue, and the evidence developed at the later hearing also supports that finding, particularly in light of McIlveene’s continuing and unexplained failure to support his children. Id. We must also consider the court’s explicit finding that McIlveene was untruthful, evasive, and inconsistent in his testimony before the court. In the Interest of J. S., 232 Ga. App. 876, 880 (1) (502 SE2d 788) (1998). McIlveene points to countervailing testimony presented on his behalf, but “[o]n appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.” (Citations and punctuation omitted.) In the Interest of K. S. W., 233 Ga. App. 144, 147 (1) (503 SE2d 376) (1998). While Mcllveene contends that he has changed his ways, “judging the credibility of [his] good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702) (1997).

For these reasons, we conclude that the criteria in OCGA § 15-11-41 (i) (1) and (3) were satisfied, and we find no error in the juvenile court’s finding that reunification services should be discontinued. In the Interest of S. A. W., supra, 228 Ga. App. at 200.

Judgment affirmed.

Johnson, C. J., and Barnes, J., concur.

Decided February 18, 1999.

Ricky E. Jones, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Williams, Sammons & Sammons, Walter G. Sammons, Jr., for appellee.

       The trial court found that the mother had notice of the hearing but did not appear. She is not a party to this appeal.

       This appeal is properly before us, because an order to discontinue reunification efforts is “final” for purposes of direct appeal. See In the Interest of S. A. W., 228 Ga. App. 197, 199 (1) (491 SE2d 441) (1997).


author: Ruffin, Judge.

text:
    A98A2188.
    GARCIA et al. v. VIRDEN.
    (512 SE2d 664)
   Ruffin, Judge.

Felipe Garcia and Guadelupe Gonzalez, individually and as natural guardians of Diana Gonzalez, dismissed and then re-filed an action against Thomas Virden for injuries they allegedly sustained in an automobile accident. The trial court dismissed the second action on the ground that plaintiffs failed to perfect service upon defendant in the original action, and plaintiffs appeal. Because dismissal was proper, we affirm.

Plaintiffs filed suit against defendant on March 13,1995 for injuries they allegedly sustained in a March 28, 1994 automobile collision. For two years, plaintiffs unsuccessfully attempted to serve defendant with a copy of the complaint and summons. On April 1, 1997, defendant filed a motion to dismiss, asserting, among other things, insufficiency of service of process, insufficiency of process, and the expiration of the statute of limitation. Plaintiffs voluntarily dismissed their case without prejudice on April 15, 1997, without ever perfecting service on defendant.

On May 5, 1997, after the expiration of the two-year statute of limitation for personal injuries (OCGA § 9-3-33), plaintiffs re-filed the same action against defendant and served him by publication on October 9, 1997. The trial court granted defendant’s motion to dismiss, holding that the second case constituted an improper attempt to renew a void action.

In three enumerations of error, plaintiffs contend that the trial court erred in concluding that their failure to perfect service in their original action voided their subsequent renewal action. We do not agree.

OCGA § 9-2-61 (a) provides that “[w]hen any case has been commenced . . . within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state . . . either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.” However, “[t]he privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action was merely voidable. . . . The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit.” (Punctuation omitted.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). Because plaintiffs never perfected service in the original suit, such suit was void and incapable of renewal under OCGA § 9-2-61 (a). Id.

Decided February 18, 1999.

Ivory T. Brown, for appellants.

Jenkins & Nelson, Robert W. Lamb, for appellee.

Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998), relied on by plaintiffs, does not require a different result. In that case, the defendants were in fact served in the original suit, although not until after the statute of limitation expired. Because the defendants were actually served, and plaintiffs voluntarily dismissed the original suit before the trial court ruled on the reasonableness of such service, such suit was merely voidable and thus capable of being renewed. In this case, by contrast, service was never perfected in the original suit, thus rendering such suit absolutely void.

Here, “[a]lthough [plaintiffs] commenced their first personal injury suit within the applicable two-year limitation period, they failed to serve [defendant] with the suit, and the limitation period expired before they voluntarily dismissed the action and refiled the second suit.” Sparrow v. Che, 232 Ga. App. 184, 185 (1) (501 SE2d 553) (1998). “Under these circumstances, the renewal provisions of OCGA § 9-2-61 (a) did not protect the second suit from the bar of the statute of limitation,” and thus we affirm the trial court’s dismissal of plaintiffs’ action with prejudice. Id.; see also Hobbs, supra.

Judgment affirmed.

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


author: Barnes, Judge.

text:
    A98A2203.
    DENT et al. v. CANDLER HOSPITAL, INC.
    (512 SE2d 392)
   Barnes, Judge.

Ruth Dent, individually, and Kim Birge, as executrix of the Estate of William Dent, sued Candler Hospital, Inc. for wrongful death and medical malpractice. After a three-day trial, the jury returned a verdict in favor of Candler Hospital on the wrongful death claim and awarded the executrix $25,100 for William Dent’s medical expenses and pain and suffering. Dent and Birge appeal, contending the trial court erred when it (1) failed to inform the parties of jury misconduct during the trial, (2) refused to allow their expert to refer to an authoritative text, and (3) denied a motion for new trial on these grounds. We affirm.

1. In their first enumeration of error, appellants assert the trial court committed reversible error because it learned of jury misconduct on the second day of trial and failed to advise the parties of this misconduct. Appellants support this claim with an affidavit from the court bailiff. In this affidavit, the bailiff states: “2. On the morning of the second day of jury trial in this matter, Thursday, January 15, 1998,1 was employed as a Chatham County deputy sheriff assigned to Judge Brannen’s courtroom. In this capacity I checked in jurors as they arrived for duty. In this capacity it was brought to my attention that one juror had read and brought with him copies of certain literature discussing the Glyburide drug in issue in the case. 3. I advised the juror he was not supposed to be talking to anyone about the case. I then immediately advised Judge Brannen of this conversation.” (Emphasis supplied.)

We find no merit in this enumeration because appellants have not met their burden of proof on appeal. “The burden is on the party alleging error to show it affirmatively by the record.” Wilson v. Walker, 139 Ga. App. 145 (227 SE2d 920) (1976). In this case, the bailiff’s affidavit does not affirmatively establish that the trial court knew everything that the bailiff had learned. The use of the words “this conversation” in paragraph three of the bailiff’s affidavit makes it impossible for us to determine exactly what the bailiff told the trial court. Did the bailiff tell the judge only that he told the juror that “he was not supposed to be talking to anyone about the case,” or did he tell the judge everything that he had learned? We note that, based upon the appellant’s motion for new trial brief, the appellants never argued below that the trial court committed error by failing to inform the parties of jury misconduct known to the court. Finally, the hearing on appellant’s motion is not included as part of the record and the trial court’s order on the motion for new trial gives no indication whatsoever that the trial judge was aware of actual or potential jury misconduct prior to the verdict.

When the evidence in the record is ambiguous as to whether the trial court did or did not know of jury misconduct during the trial, we cannot find an abuse of discretion by the trial court in failing to advise the parties of the misconduct. “The conduct of the trial of any case is necessarily controlled by the trial judge, who is vested with a wide discretion and in the exercise of which an appellate court should never interfere unless it is made to appear that wrong or oppression has resulted from its abuse.” (Citations and punctuation omitted.) Rogers v. State, 163 Ga. App. 641, 645 (5) (295 SE2d 140) (1982).

Decided February 18, 1999.

Ronald C. Berry, for appellants.

Oliver, Maner & Gray, William P. Franklin, Jr., Patricia T. Paul, for appellee.

2. In their second enumeration of error, appellants contend the trial court improperly sustained an objection to their medical expert referring to an authoritative text on direct examination. Appellants cite the following portion of the record in support of this enumeration: “Q. Doctor, you mentioned that you’re relying on some literature in discussing those opinions you just gave me. [Appellee’s Counsel]: Your Honor, I object. I don’t believe this is the way you introduce literature. I think it’s — you have an adverse party, you ask him if it’s standard and authoritative, if they agree, you can use it. I don’t think you can put your own witness up and have him self-authenticate. The Court: I sustain the objection.” The record does not show what literature the appellants were attempting to introduce or what information they were attempting to elicit from their expert because they made no offer of proof.

We find no merit in this enumeration because appellant failed to make an offer of proof at trial. This Court cannot determine the propriety of the trial court’s ruling without a proffer of the excluded evidence or testimony. Spruell v. Smith, 185 Ga. App. 484 (1) (364 SE2d 594) (1987); Wright v. State, 216 Ga. App. 486 (2) (455 SE2d 88) (1995).

3. In their remaining enumeration of error, appellants claim the trial court erred by failing to grant their motion for new trial which “addressed those errors cited above.” We find no merit in this enumeration based upon our holdings in Divisions 1 and 2 of this opinion.

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.


text:
    A99A0750.
    CHASTAIN v. THE STATE.
    (512 SE2d 665)
   Judge Harold R. Banke.

Tracy Chastain was convicted of aggravated child molestation and child molestation. He challenges the sufficiency of the evidence on appeal.

This case arose after the seven-year-old victim told her grandmother that Chastain had touched her private parts with his hands and tongue. The child reported that Chastain, her mother’s live-in boyfriend, threatened not to take her to Disney World if she told anyone. The grandmother informed the child’s mother and authorities and this prosecution commenced. Held:

Decided February 18,1999.

John F. McClellan, Jr., for appellant.

Tambra P. Colston, District Attorney, Martha P. Jacobs, Assistant District Attorney, for appellee.

The record refutes Chastain’s contention that the absence of corroborative evidence requires reversal. But at the outset, we note that unlike our statutory rape statute, OCGA § 16-6-4 does not require corroborating evidence for a conviction. Compare OCGA § 16-6-3 (a).

Even if it did, we would find the evidence sufficient to support the verdict. The victim testified that Chastain touched and licked her vaginal area. She stated that the touching occurred more than ten times and on occasion, “[i]t hurt bad.” The victim’s grandmother testified that the victim told her that Chastain had touched and licked her private parts. See Redd v. State, 232 Ga. App. 666, 667 (1) (502 SE2d 467) (1998). The State also played a video of the victim discussing the facts underlying the charges which corroborated her trial testimony. See Kapua v. State, 228 Ga. App. 193, 194-195 (1) (491 SE2d 387) (1997). The record showed that the molestation began less than a month after Chastain moved in with the victim’s mother. The victim’s mother testified that one night she followed Chastain into her daughter’s room and discovered him lying beside her daughter with an erection. He got angry because she followed him. At around the same time, the child’s grandmother received an anonymous letter stating that Chastain “liked” little children and the victim could be in danger. The evidence, viewed in the light most favorable to the verdict, is clearly sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J, and Smith, J., concur.


author: McMurray, Presiding Judge.

text:
    A98A0606.
    LUKE v. THE STATE.
    (512 SE2d 39)
   McMurray, Presiding Judge.

After this Court, on February 16, 1998, bound by this Court’s whole court holding in Belt v. State, 227 Ga. App. 425 (489 SE2d 157), decided July 16, 1997, reversed defendant Henry Norman Luke’s convictions for one count of possession of marijuana with intent to distribute and three counts of possession of a firearm by a convicted felon, the Supreme Court of Georgia granted certiorari and remanded to this Court for consideration in light of the holdings in State v. Belt, 269 Ga. 763 (505 SE2d 1) reversing Belt v. State, 227 Ga. App. 425, supra; Garrett v. State, 263 Ga. 131, 132 (1) (429 SE2d 515); and Brown v. State, 263 Ga. 89, 90-91 (2) (428 SE2d 78). Held:

1. Division 1 of our prior decision, at Luke v. State, 230 Ga. App. 712, 713 (1) (497 SE2d 376), is vacated. Upon consideration of the above-referenced authorities, defendant’s third enumeration of error is without merit.

2. Defendant’s second enumeration is without merit. Luke v. State, 230 Ga. App. 712, 714 (2), supra.

3. Defendant’s first enumeration contends he was denied his constitutional right to effective assistance of trial counsel. He moved this Court for a remand in which to present that claim of ineffective assistance of trial counsel to the trial court.

The procedure whereby this Court will stay a direct appeal from a criminal conviction and remand for a first hearing on the issue of ineffective assistance of counsel has been overruled. Howard v. State, 233 Ga. App. 724, 729 (7) (505 SE2d 768). In the case sub judice, new counsel appeared in time to file a timely notice of appeal, but did so without first filing a motion for new trial or otherwise demanding an evidentiary hearing on any claim of ineffective assistance of trial counsel. Consequently, this claim of ineffective assistance has been procedurally defaulted and presents nothing for review on appeal. Gantt v. State, 229 Ga. App. 207, 209 (3) (493 SE2d 608).

4. The fourth enumeration contends the trial court erred in denying defendant’s motion for mistrial purportedly based on improper closing argument by the State’s attorney.

In closing argument, the State’s attorney argued conspiracy to rebut “the second defense[, i.e.,] it didn’t get in the hands of the defendants. He didn’t possess it. . . . Ladies and gentlemen, that ain’t the law. Because I can tell you this. If the law was that the marijuana actually had to get to the person’s hands, I wouldn’t be here today. I’d be in my office working on another case. I wouldn’t be here wasting your time. ... Or do you think just because the police are able to get there in time and to stop the illegal substances from getting to its source, does that exonerate the folks who are at the receiving end? Well, if that was the law, people would laugh at it. We’d think it was crazy, and the law would be crazy. Common sense tells you that this defense, as stated by the defendants, is crazy, and that’s all it is. Because, if that was the law, the judge would be done dismissed the case and we’d all be done gone home, because that ain’t the law. We’re here and you’re deciding a verdict.” The State’s attorney then differentiated between actual and constructive possession and explained aiders and abettors as parties to the crime. Subsequently, as the State’s attorney recounted the evidence, defendant interposed an objection as to certain facts purportedly not in evidence. The trial court admonished the State’s attorney to “stay on track,” and argument continued. Only later did defendant move for a “mistrial based on the assistant district attorney making the statement if the defense . . . had a defense that was any good, the judge would have already dismissed the case. We take that as being highly prejudicial, improper, and calculated only to turn the jury against [defendants] and make the jury think the judge thinks the defense is no good. Plus, the burden shifting language which he has stated about [defendant] Norman Luke. He is insinuating that Norman Luke could have taken the stand and didn’t, and we think that is definitely grounds for a mistrial. . . .” Without seeking the State’s position, the trial court overruled the motion. No rebuke or curative instructions were given.

In our view, this enumeration is controlled favorably to defendant by Washington v. State, 80 Ga. App. 415 (56 SE2d 119), where it was held to be error requiring the grant of a new trial for a trial court simply to overrule, without remedial instructions to the jury, the defendant’s objection to the prosecutor’s use of the following language in his concluding argument to the jury: “If a case had not been made out against the defendant, then the court could and would have directed a verdict of not guilty.”

Similar argument was ruled improper by the Supreme Court of Georgia in Hammond v. State, 156 Ga. 880, 883 (5) (120 SE 539). “The language in the instant case was objectionable in its use and harmful in its effect. It is objectionable as introducing into the argument the opinion of the trial judge on questions of fact which opinion should not have been in the minds of the jurors in arriving at the verdict. It was erroneous and harmful by reason of the circumstances under which it was used and the [trial] court’s action in simply overruling the defendant’s objection was . . . likely to have impressed the jury that if the [prosecutor’s] statement had not been accurate the court would have adopted some corrective measures relative thereto; and it is too elementary, under our practice, to warrant discussion that the court is not to indulge even in the intimation of what it thinks the evidence does or does not demonstrate so long as the jury remains the trior of the facts.” Washington v. State, 80 Ga. App. 417, supra. In the case sub judice, the trial court erred in overruling defendant’s objections to the State’s attorney’s improper argument without any corrective measures. This error requires a new trial, see Forster v. State, 60 Ga. App. 598, 599 (2) (4 SE2d 498), but only as to the single count of possession of marijuana with intent to distribute. Nothing in the improper argument or the trial court’s inadequate response was calculated to address defendant Norman Luke’s illegal possession of firearms after having previously been convicted of a felony. Consequently, we affirm his conviction as to Counts 2, 3, and 4, but reverse his conviction as to Count 1, possession of marijuana with intent to distribute, and remand for a new trial as to that count.

Decided February 8, 1999

Reconsideration denied February 19, 1999

George A. Bessonette, Sandra L. Michaels, for appellant.

Robert B. Ellis, Jr., District Attorney, Timothy L. Eidson, Assistant District Attorney, for appellee.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Blackburn and Eldridge, JJ, concur.


author: Andrews, Judge.

text:
    A98A1672.
    BREWER v. THE STATE.
    (512 SE2d 30)
   Andrews, Judge.

David Roy Brewer appeals from the judgment of conviction entered on jury verdicts finding him guilty of aggravated sodomy, aggravated child molestation, and child molestation. In sentencing Brewer, the trial court merged the aggravated child molestation conviction into the aggravated sodomy conviction.

1. The evidence was sufficient to support the jury verdicts. The State presented testimony from the 11-year-old victim, from a Department of Family & Children Services investigator who interviewed the victim, from a police detective who interviewed the victim, and from neighbors who spoke to the victim about the allegations, describing the alleged acts of aggravated sodomy and child molestation. The State also presented evidence of statements given by Brewer to the police admitting that he committed the alleged acts on the victim. Although Brewer testified and denied committing any of the alleged acts, determining the credibility of the witnesses was a task for the jury. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that Brewer was guilty of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Brewer claims that a jury instruction given by the trial court on the offense of aggravated sodomy improperly relieved the State of its burden to prove the essential element of force.

In instructing the jury on the offense of aggravated sodomy, the trial court stated that: “[A] person commits the offense of sodomy when he performs or submits to any sexual act involving the sex organs of one person and the mouth or anus of another. A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the other person. A child under the age of fourteen years is legally incapable of consenting to sexual contact. In cases of incapacity, such as with a child under the age of fourteen years, the element of force is automatically supplied by the law.”

Brewer contends the portion of the instruction stating that the element of force is automatically supplied by law when the victim is a child under the age of 14 years improperly relieved the State of its obligation to prove the element of force. There was no error in the instruction. “[T]he commission of sodomy by an adult on a child could not be simple sodomy, but would always be aggravated sodomy because the ‘with force and against the will’ element of the crime is automatically supplied by the commission of the crime on a person [under the legal age of consent].” (Citations and punctuation omitted.) Huggins v. State, 192 Ga. App. 820, 821 (386 SE2d 703) (1989); Luke v. State, 222 Ga. App. 203, 204-206 (474 SE2d 49) (1996). Although the State must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent, the Supreme Court has distinguished forcible rape from other sexual offenses and made clear that no such proof is required to obtain a conviction for aggravated sodomy against a victim under the age of consent. State v. Collins, 270 Ga. 42-45 (508 SE2d 390) (1998); Cooper v. State, 256 Ga. 631 (352 SE2d 382) (1987). Accordingly, the instruction correctly informed the jury that the proof presented by the State that the victim was 11 years old at the time of the offense would be sufficient evidence that the act of sodomy was done with force and against the will of the victim.

3. There is no merit to Brewer’s claim that the State failed to produce evidence of the essential element of force on the offense of aggravated sodomy. Evidence that the victim was 11 years old at the time of the offense was sufficient proof of force on the offense of aggravated sodomy. Luke, 222 Ga. App. at 204-206. Contrary to Brewer’s contention, it was not necessary for the State to allege in the language of the indictment charging aggravated sodomy that the victim was under the legal age of consent. See McFall v. State, 235 Ga. 105, 106 (218 SE2d 839) (1975), disapproved on other grounds, Drake v. State, 239 Ga. 232, 233-234 (236 SE2d 748) (1977).

4. Brewer contends the trial court erred by refusing, upon request, to instruct the jury that sodomy is a lesser included offense of aggravated sodomy.

There was no error because the evidence did not warrant the instruction. State v. Stonaker, 236 Ga. 1, 2 (222 SE2d 354) (1976). As stated in Division 1, supra, the commission of sodomy by Brewer on an 11-year-old victim could not be simple sodomy, but would necessarily be aggravated sodomy because the “with force and against the will” element of aggravated sodomy is automatically supplied by the commission of the crime on a victim under the legal age of consent. Huggins, 192 Ga. App. at 821; Luke, 222 Ga. App. at 204-206.

Decided February 5, 1999

Reconsideration denied February 19, 1999

Michael R. McCarthy, for appellant.

Kermit N. McManus, District Attorney, Stephen E. Spencer, Assistant District Attorney, for appellee.

5. Brewer contends the trial court erred by failing to merge the aggravated sodomy conviction into the conviction for child molestation because the same act of sodomy used to prove the aggravated sodomy charge was also used to prove one of the alleged acts of child molestation.

We disagree. In the aggravated sodomy charge, Brewer was charged with placing his mouth on and licking the victim’s vagina. The child molestation charge alleged, among other acts, that Brewer placed his mouth on and kissed the victim’s vaginal area. The charges alleged two separate and distinct acts, and there was evidence to support the jury’s guilty verdicts as to both charges. Compare Wyatt v. State, 222 Ga. App. 604, 605-606 (475 SE2d 651) (1996).

Judgment affirmed.

Beasley, P. J, and Ruffin, J., concur.


text:
    A98A2280.
    SMITH v. THE STATE.
    (512 SE2d 19)
   Johnson, Chief Judge.

After a bench trial, Charles Smith was found guilty of driving under the influence of alcohol to the extent it was less safe for him to drive, driving without a license and driving without proof of insurance. Smith appeals from the DUI and driving without a license convictions.

1. Smith contends the trial court erred in denying his motion to suppress because the arresting officer had no reasonable articulable suspicion justifying the stop of his car. We disagree.

In reviewing a trial court’s ruling on a motion to suppress, this Court construes the evidence most favorably to uphold the findings and judgment of the trial court. Pickens v. State, 225 Ga. App. 792 (1) (484 SE2d 731) (1997).

The arresting officer testified that she was on patrol on November 15, just before 8:00 p.m., when she first encountered Smith driving on Tara Boulevard in Clayton County. An automobile race had just ended nearby, and traffic was heavy in the area. It was well known to police officers that the racing events were often accompanied by an increase in drunk driving incidents.

The officer observed Smith “weaving erratically back and forth” within his lane. The officer followed Smith for a while and was unable to observe any legitimate reason for the weaving. There were cars in the adjoining lane, and the officer thought that Smith’s driving was unsafe. The officer testified that, in her experience, there seemed to be a relationship between weaving and driving while under the influence of alcohol. Thinking that Smith might be under the influence of alcohol, the officer pulled him over. After further investigation, including her observations, Smith’s attempt at a field test and license and insurance checks, the officer formally arrested Smith.

“A police officer may legally conduct a brief investigatory stop without a showing of probable cause where the officer observes unusual conduct which, when viewed in the light of [her] experience, causes [her] to conclude that the individual is involved in criminal activity.” (Citations and punctuation omitted.) Atkins v. State, 209 Ga. App. 70 (432 SE2d 661) (1993).

In Semich v. State, 234 Ga. App. 89 (506 SE2d 216) (1998), we examined the issue of whether weaving within a lane, which is not a crime per se, justifies a brief investigatory stop. Id. at 91 (b). We held that the defendant’s action of weaving within a lane, combined with his abrupt change in direction of travel and the late hour, gave rise to reasonable suspicion justifying a stop. Id. at 92. Although in Semich the officer observed furtive movement, a fact not present in the instant case, the court’s reasoning and decision were primarily based upon the sufficiency of weaving within a lane as grounds for a brief stop.

We find the reasoning in Semich persuasive. The Semich court expressly recognized that the law has become increasingly less tolerant of intoxicated drivers and implicitly disapproved an earlier case intimating that weaving within a lane was insufficient to justify a stop. We agree and hold that under the circumstances presented here, weaving within a lane raised a reasonable suspicion that Smith was intoxicated and should not be driving.

This is not a situation in which an officer was arbitrarily harassing a motorist for no sensible reason; rather the officer stopped someone she reasonably suspected, based on her own observations, posed an immediate and significant danger to the public. See Atkins, supra at 71; State v. Armstrong, 223 Ga. App. 350, 352-353 (2) (477 SE2d 635) (1996). The trial court did not err in denying Smith’s motion to suppress. See Allenbrand v. State, 217 Ga. App. 609, 610 (1) (458 SE2d 382) (1995).

2. Smith claims the trial court erred in denying his motion to suppress evidence obtained at the scene because he was not given his Miranda warnings when he was first asked to step out of the car to take field sobriety tests. Smith argues that he was under arrest and the warnings were required because when he asked if he could leave, the officer told him he could not. Given the facts of this case, we disagree.

When a person is placed in custody or under arrest at a traffic stop, the protection of Miranda arises; however, roadside questioning at a routine stop does not constitute a custodial arrest. Lebrun v. State, 255 Ga. 406, 407 (3) (339 SE2d 227) (1986); Metheny v. State, 197 Ga. App. 882, 884 (1) (a) (400 SE2d 25) (1990). A detained individual is not under arrest simply because, by leaving, he could be arrested for violating state law. See State v. Pastorini, 222 Ga. App. 316, 317-318 (1) (474 SE2d 122) (1996). Nor is he under arrest because an officer has discovered the commission of a traffic offense for which he could be arrested. See Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990). The safeguards prescribed by Miranda become applicable only after a detainee’s freedom of action is curtailed to a degree associated with formal arrest. Johnson v. State, 234 Ga. App. 116, 117 (2) (506 SE2d 234) (1998). A person is in custody if a reasonable person in the detainee’s position would have thought the detention would not be temporary. See Pastorini, supra. The question of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous. Johnson, supra at 118.

The officer observed Smith weaving, stopped him and asked for his license and proof of insurance. The officer detected a strong odor of alcohol and noticed Smith’s speech was slurred and his eyes were red. Smith presented an expired insurance card and no driver’s license. A computer check revealed that Smith had a California license, but that it expired in 1985. Smith then admitted to the officer that he did not have a valid license and that it was suspended in Oregon.

The officer asked Smith where he had been going. Smith replied that he was on his way home and asked the officer if she would “go ahead and let [Smith] drive on home.” The officer replied that she would not. Because she wanted to conduct sobriety tests and to break up an argument Smith was having with his passenger, the officer asked Smith to step out of the car. Smith got out of the car but had difficulty standing. At some point during the stop, Smith told the officer “he’d only had a couple” of drinks.

The officer asked Smith if he would consent to some field tests, and he agreed. Smith hád difficulty following instructions and was unable to stand up to perform the tests. The officer discontinued the tests, placed Smith under arrest for DUI, then read him his Miranda rights.

The fact that Smith had become the focus of an investigation, even to the point where the officer had probable cause for an arrest, did not constitute a formal arrest for Miranda purposes. See Johnson, supra at 119 (2); Trudewind v. State, 224 Ga. App. 223, 224 (1) (480 SE2d 211) (1997). Smith was not in custody until after he was given the field sobriety tests and formally arrested. See Crum, supra. Although the officer told Smith during the investigation that he was not free to leave, not every detention is an arrest. See Radowick v. State, 145 Ga. App. 231, 238 (3) (244 SE2d 346) (1978). We conclude, as did the trial court, that a reasonable person under these circumstances would not have believed his freedom of action had been more than temporarily curtailed by the investigation and, therefore, he was not in custody for Miranda purposes. See Johnson, supra. The trial court’s decision is not clearly erroneous. See State v. Dible, 232 Ga. App. 73, 74 (502 SE2d 245) (1998). Compare Price v. State, 269 Ga. 222, 225 (3) (498 SE2d 262) (1998).

We do not agree that Hughes v. State, 259 Ga. 227 (378 SE2d 853) (1989), requires a different result. There the Supreme Court upheld the trial court’s determination that an arrest occurred when the officer told the detainee he could not leave. In that case, the officer detained the suspect while he waited for assistance from other officers. When the other officers arrived, the detainee was asked to perform field tests. Hughes involved more than just a temporary investigative detention. Brown v. State, 223 Ga. App. 364, 367 (477 SE2d 623) (1996). Here, the officer was still conducting her investigation at the time she denied Smith’s request to leave and asked him to step out of the car.

Moreover, the Supreme Court in Hughes affirmed the trial court’s determination that the detainee was arrested because there was evidence in the record to support that determination. Likewise, in this case there is evidence in the record to support the trial court’s ruling. A trial court’s factual determination after a suppression hearing must be accepted by the appellate court where it is not clearly erroneous. See State v. Louis, 185 Ga. App. 529 (364 SE2d 896) (1988).

Considering the circumstances surrounding the stop and the deferential treatment given the trial court’s determination on appeal, we find that the trial court did not err in denying the motion to suppress based on the officer’s failure to give Smith Miranda warnings prior to conducting the field test. See Brown, supra at 368-369.

3. Smith contends the trial court abused its discretion by permitting the state to introduce evidence of two prior DUI convictions entered against him in Oregon. Smith argues that the convictions were inadmissible because: (1) the state did not prove that the Oregon DUI statute was comparable to OCGA § 40-6-391 (see subsection (h) (3)); (2) the prior DUIs improperly injected his character into evidence; (3) the prior DUI convictions did not prove any elements of § 40-6-391; and (4) the prior evidence was so prejudicial it outweighed any probative value.

The state filed a notice of intent to introduce the evidence of similar transactions to show bent of mind and course of conduct. After a hearing and ruling that the evidence was admissible, the officers testified as to the details of the Oregon DUI cases, concluding that their observations of Smith indicated that he was driving under the influence of alcohol to the extent he was a less safe driver.

The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. See Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998). Although the general character of an accused is inadmissible unless he chooses to put his character in issue, where an accused is on trial for the commission of a crime, proof of a distinct, independent and separate offense is admissible if there is sufficient logical connection between the two from which it can be said the proof of one tends to establish the other. Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991). Prior acts of driving under the influence are relevant to prove bent of mind or course of conduct in a subsequent DUI case. Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992). Evidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the defendant has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so. McCullough v. State, 230 Ga. App. 98 (495 SE2d 338) (1998) (physical precedent only); Fields v. State, 223 Ga. App. 569, 571 (2) (479 SE2d 393) (1996).

Smith’s reliance on OCGA § 40-6-391 (h) (3) as requiring a different result is misplaced. OCGA § 40-6-391 (h) (3) provides that in determining whether an offense is a “prior conviction” under Chapter 6, a conviction in another state is taken into consideration if the law violated substantially conforms to or is parallel with this Code section. The “prior conviction” provision contained in Chapter 6 appears to relate to issues of punishment and sentencing, not to the admissibility of evidence in the guilt and innocence phase of a trial. This is because the only other references in Chapter 6 to other convictions concern sentencing. See, e.g., OCGA § 40-6-391 (c), (g) (2), (k) (2); Millwood v. State, 213 Ga. App. 419 (447 SE2d 343) (1994); Moore v. State, 181 Ga. App. 548 (1) (352 SE2d 821) (1987). Admissibility issues are primarily dealt with in Title 24 of the Code. See, e.g., OCGA § 24-2-2 (admissibility of parties’ character and conduct in other transactions).

Moreover, a person need not be convicted of an offense for evidence of the prior transaction to be admissible. See Sisson v. State, 232 Ga. App. 61, 64-65 (3), n. 1 (499 SE2d 422) (1998). Thus, the state did not have to show that Smith would have been convicted under Georgia law for the similar transaction evidence to be admitted. What was relevant was the fact that Smith previously got behind the wheel and drove while under the influence of alcohol when it was less safe for him to do so. See McCullough, supra. That he did so in Oregon rather than in Georgia is of little importance. Balancing the probative value of the evidence of the other DUIs against their potentially prejudicial impact, an abuse of discretion is not shown. Nelson v. State, 224 Ga. App. 623, 624 (2) (481 SE2d 605) (1997).

4. Smith claims the trial court abused its discretion by ordering him to pay travel expenses the state incurred in calling the Oregon police officers as witnesses. We disagree.

OCGA § 17-11-1 provides that the costs of prosecuting a case may be charged against a convicted defendant, and that judgment may be entered against him for “all costs accruing in the committing and trial courts and by any officer pending the prosecution.” Those costs include the costs of witnesses for the state. See OCGA § 17-11-2. OCGA § 24-10-27 provides that witnesses residing outside the county are entitled to be paid for expenses incurred in traveling from and returning to their homes by the nearest practical route.

Smith complains that the costs did not accrue in the trial court or by any officer involved in the prosecution of the instant case. He points out that the two Oregon police officers whose travel costs he was ordered to pay testified not about the offenses charged here, but about prior transactions. Smith cites and we have uncovered no authority prohibiting the assessment of such costs simply because the witnesses testified as to similar transactions rather than the charged offenses. We find no error in that regard.

Smith also complains that the payment of hotel and airline ticket costs for the witnesses was not authorized by any statute. We hold, however, that those expenses come within the meaning of “all costs accruing in the . . . trial courts.” OCGA § 17-11-1. There was no error.

Decided February 3, 1999

Reconsideration denied February 19, 1999

Monte K. Davis, for appellant.

Keith C. Martin, Solicitor, Kimberly A. Gross, Assistant Solicitor, for appellee.

Judgment affirmed.

Smith and Barnes, JJ., concur.

       The trial court granted Smith’s motion to suppress breath test results on the ground that, in reading Smith the implied consent warning, the officer read the word “test” instead of “tests.” The ruling was not appealed and is not at issue.


author: Eldridge, Judge.

text:
    A98A0531.
    VESTER v. MUG A BUG PEST CONTROL, INC. et al.
    (512 SE2d 681)
    Decided February 19, 1999.

      Robert L. Mack, Jr., for appellant.

      Lokey & Smith, G. Melton Mobley, Jessica F. Pardi, for appellees.
   Eldridge, Judge.

In Mug A Bug Pest Control v. Vester, 270 Ga. 407 (509 SE2d 925) (1999), the Supreme Court reversed Division 2 of this Court’s opinion in Vester v. Mug A Bug Pest Control, 231 Ga. App. 644 (500 SE2d 406) (1998). Therefore, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and remand this case to the trial court for proceedings not inconsistent with the opinion of the Supreme Court.

Judgment reversed and case remanded.

McMurray, P. J., and Blackburn, J., concur.